LOAN AGREEMENT
BETWEEN
IMMUCOR, INC.
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
DATED AS OF OCTOBER 27, 1998
TABLE OF CONTENTS
Page
1. DEFINITIONS, TERMS AND REFERENCES..............................................................................1
1.1 Certain Definitions......................................................................................1
1.2 Use of Defined Terms....................................................................................11
1.3 Accounting Terms........................................................................................11
1.4 UCC Terms...............................................................................................11
1.5 Terminology.............................................................................................11
1.6 Exhibits................................................................................................11
2. FINANCING.....................................................................................................11
2.1 Extensions of Credit....................................................................................11
2.1.1 Line of Credit...................................................................................11
2.1.2 Acquisition Term Loans...........................................................................12
2.1.3 Additional Term Loans............................................................................12
2.2 Interest and Other Charges..............................................................................13
2.2.1 Interest at Applicable Rate......................................................................13
2.2.2 Fees.............................................................................................16
2.2.3 Capital Adequacy.................................................................................16
2.2.4 Usury Savings Provisions.........................................................................16
2.2.5 Margin Stock Savings Provisions..................................................................17
2.3 General Provisions as to Payments.......................................................................17
2.3.1 Method of Payment................................................................................17
2.3.2 Application of Payment...........................................................................17
2.4 Mandatory Term Loan Prepayments.........................................................................17
3. REPRESENTATIONS AND WARRANTIES................................................................................18
3.1 Corporate Existence and Qualification...................................................................18
3.2 Corporate Authority; Validity and Binding Effect........................................................18
3.3 Incumbency and Authority of Signing Officer.............................................................18
3.4 No Material Litigation..................................................................................18
3.5 Taxes...................................................................................................18
3.6 Capital Stock...........................................................................................18
3.7 Corporate Organization..................................................................................18
3.8 Insolvency..............................................................................................18
3.9 Title...................................................................................................19
3.10 Margin Stock............................................................................................19
3.11 No Violations...........................................................................................19
3.12 Financial Statements....................................................................................19
3.13 Pollution and Environmental Control.....................................................................19
3.14 Possession of Permits...................................................................................20
3.15 Subsidiaries............................................................................................20
3.16 Employee Benefit Plans..................................................................................20
3.17 Year 2000 Plan..........................................................................................20
3.18 Reaffirmation; Effect of the Acquisition................................................................20
4. AFFIRMATIVE COVENANTS.........................................................................................20
4.1 Right to Inspect........................................................................................20
4.2 Financial and Other Reporting...........................................................................20
4.2.1 Borrower's Quarterly Statement...................................................................20
4.2.2 Borrower's Annual Statement......................................................................21
4.2.3 Management Letters, Etc..........................................................................21
4.2.4 SEC Fillings and Press Releases..................................................................21
4.2.5 Default Notices..................................................................................21
4.2.6 Certificate of No Default........................................................................21
4.2.7 Certain Required Notices.........................................................................22
4.2.8 Other Documents or Information...................................................................22
4.3 Payment of Taxes........................................................................................22
4.4 Maintenance of Insurance................................................................................22
4.5 Maintenance of Property.................................................................................22
4.6 Preservation of Corporate Existence.....................................................................22
4.7 Compliance With Laws....................................................................................23
4.8 Year 2000 Plan..........................................................................................23
4.9 Additional Loan Documents...............................................................................23
5. NEGATIVE COVENANTS............................................................................................23
5.1 Liens...................................................................................................23
5.2 Debt....................................................................................................23
5.3 Contingent Liabilities..................................................................................24
5.4 Dividends...............................................................................................24
5.5 Redemptions.............................................................................................24
5.6 Restricted Investments..................................................................................24
5.7 Mergers.................................................................................................25
5.8 Affiliate Transactions..................................................................................25
5.9 Subsidiaries............................................................................................25
5.10 Fiscal Year.............................................................................................25
5.11 Disposition of Assets...................................................................................25
5.12 Employee Benefit Plans..................................................................................25
5.13 Excluded Subsidiaries...................................................................................25
6. FINANCIAL COVENANTS...........................................................................................26
6.1 Fixed Charge Coverage Ratio.............................................................................26
6.2 Funded Debt/EBITDA Ratio................................................................................26
6.3 Leverage Ratio..........................................................................................26
6.4 Liquidity Ratio.........................................................................................26
7. EVENTS OF DEFAULT.............................................................................................27
7.1 Obligations.............................................................................................27
7.2 Misrepresentations......................................................................................27
7.3 Certain Covenants.......................................................................................27
7.4 Certain Covenants.......................................................................................27
7.5 Other Debts.............................................................................................27
7.6 Voluntary Bankruptcy....................................................................................27
7.7 Involuntary Bankruptcy..................................................................................27
7.8 Judgments...............................................................................................28
7.9 Material Adverse Effect.................................................................................28
7.10 Change of Control.......................................................................................28
7.11 Change in Management....................................................................................28
8. REMEDIES......................................................................................................28
8.1 Acceleration of the Obligations.........................................................................29
8.2 Default Rate............................................................................................29
8.3 Other Remedies..........................................................................................29
8.4 Set Off.................................................................................................29
9. MISCELLANEOUS.................................................................................................29
9.1 Waiver..................................................................................................29
9.2 Governing Law...........................................................................................29
9.3 Survival................................................................................................29
9.4 No Assignment by Borrower...............................................................................30
9.5 Counterparts............................................................................................30
9.6 Reimbursement...........................................................................................30
9.7 Successors and Assigns..................................................................................30
9.8 Severability............................................................................................30
9.9 Notices.................................................................................................31
9.10 Entire Agreement; Amendments............................................................................31
9.11 Time of Essence.........................................................................................31
9.12 Interpretation..........................................................................................31
9.13 Lender Not a Joint Venturer.............................................................................31
9.14 Jurisdiction............................................................................................31
9.15 Acceptance..............................................................................................31
9.16 Payment on Non-Business Day.............................................................................31
9.17 Cure of Defaults by Lender..............................................................................32
9.18 Recitals................................................................................................32
9.19 Sole Benefit............................................................................................32
9.20 Indemnification.........................................................................................32
9.21 Jury Trial Waiver.......................................................................................33
10. CONDITIONS PRECEDENT.........................................................................................33
10.1 Conditions to Initial Loans.............................................................................33
10.1.1 Loan Documents...................................................................................33
10.1.2 Consummation of the Tender Offer.................................................................33
10.1.3 No Default.......................................................................................33
10.1.4 Secretary's Certificate..........................................................................33
10.1.5 Good Standing Certificates.......................................................................34
10.1.6 Articles/By-Laws.................................................................................34
10.1.7 Solvency Certificate.............................................................................34
10.1.8 Opinion of Counsel...............................................................................34
10.1.9 Telephone Instruction Letter.....................................................................34
10.1.10 Disbursement Letter..............................................................................34
10.1.11 Other............................................................................................34
10.2 Conditions to Merger Loan...............................................................................34
10.3 Conditions to all Loans.................................................................................34
10.3.1 Representations and Warranties...................................................................35
10.3.2 Material Adverse Effect..........................................................................35
10.3.3 Default Condition or Event of Default............................................................35
10.3.4 Actions or Proceedings...........................................................................35
10.3.5 No Violation of Law..............................................................................35
EXHIBIT A -........Form of Master Note
EXHIBIT B -........Form of Acquisition Term Note
EXHIBIT C -........Form of Additional Term Note
EXHIBIT D-1 -........Form of Guaranty
EXHIBIT D-2 -........Form of Stock Pledge Agreement
EXHIBIT E -........Form of Certificate Regarding Tender Offer Closing
EXHIBIT F -........Form of Certificate of No Default
EXHIBIT G -........Form of Secretary's Certificate (Borrower)
EXHIBIT H -........Form of Secretary's Certificate (Guarantor)
EXHIBIT I -........Form of Solvency Certificate
EXHIBIT J -........Form of Opinion of Counsel
EXHIBIT K -........Form of Telephone Instruction Letter
EXHIBIT L -........Form of Disbursement Letter
EXHIBIT M -........Form of Certificate Regarding Merger Closing
Schedule 3.4 -........Material Litigation
Schedule 3.15 -........Subsidiaries
Schedule 3.16 -........Employee Benefit Plans
Schedule 5.1 -........Existing Liens
Schedule 5.2 -........Existing Debt
37
ATLLIB01 662450.7
LOAN AGREEMENT
PREAMBLE. THIS AGREEMENT, made, entered into and effective as of October 27,
1998 by and between IMMUCOR, INC., a Georgia corporation ("Borrower") and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association ("Lender").
W I T N E S S E T H :
WHEREAS, Borrower has applied to Lender for financing of the type or
types more particularly described herein; and
WHEREAS, Lender is willing to extend financing to Borrower in
accordance with the terms hereof upon the execution of this Agreement by
Borrower, compliance by Borrower with all of the terms and provisions of this
Agreement and fulfillment of all conditions precedent to Lender's obligations
herein contained;
NOW, THEREFORE, to induce Lender to extend the financing provided for
herein, and for other good and valuable consideration, the sufficiency and
receipt of all of which are acknowledged by Borrower, Lender and Borrower agree
as follows:
1. DEFINITIONS, TERMS AND REFERENCES
1.1 Certain Definitions. In addition to such other terms as
elsewhere defined herein, as used in this Agreement or in any Exhibits hereto,
the following terms shall have the following meanings:
"Acquisition" shall mean the acquisition by Borrower or Gamma
Acquisition Subsidiary of all of the outstanding shares of the capital stock of
all classes of Gamma, which Acquisition shall be consummated in accordance with
the Acquisition Documents and Section 5.6 hereof by way of the Tender Offer
followed by the Merger.
"Acquisition Documents" shall mean Agreement and Plan of Merger dated
as of September 21, 1998 among Borrower, Gamma and the Gamma Acquisition
Subsidiary, the Stock Option Agreement dated as of September 21, 1998 between
Gamma and Borrower, and the Shareholders Agreement dated as of September 21,
1998 among Borrower, the Gamma Acquisition Subsidiary and certain shareholders
of Gamma.
"Acquisition Term Loan Commitment Termination Date" shall mean the 90th
day after the Closing Date.
"Acquisition Term Loans" shall mean the term loans in the aggregate
principal amount of $20,000,000 to be made by Lender to Borrower pursuant to the
provisions of Section 2.1.2.
"Acquisition Term Note" shall mean the term promissory note, dated of
even date herewith, as amended or supplemented from time to time, in the stated
principal amount equal to the committed amount of the Acquisition Term Loans
together with any renewals or extensions thereof, in whole or in part. The
Acquisition Term Note shall be substantially in the form of Exhibit B.
"Additional Term Loan Commitment Termination Date" shall mean December
31, 1999.
"Additional Term Loans" shall mean the term loans in the aggregate
principal amount of up to $4,500,000 to be made by Lender to Borrower pursuant
to the provisions of Section 2.1.3.
"Additional Term Note" shall mean the term promissory note, dated of
even date herewith, as amended or supplemented from time to time, in the stated
principal amount equal to the committed amount of the Additional Term Loans,
together with any renewals or extensions thereof, in whole or in part. The
Additional Term Note shall be substantially in the form of Exhibit C.
"Advance" shall mean an advance of borrowed funds made by Lender to or
on behalf of Borrower under the Line of Credit.
"Affiliate" shall mean, with respect to any Person, any Person
Controlling, Controlled by or under common Control with such Person or any
director, officer or employee of such Person.
"Agreement" shall mean this Loan Agreement, as it may be amended or
supplemented from time to time.
"Applicable Margin" shall have the meaning given such term in Section
2.2(b).
"Applicable Rate" shall mean the interest rate per annum payable on the
Obligations, as is defined and more particularly described in Section 2.2.1.
"Bankruptcy Code" shall mean Title 11 of the United States Code, as it
may be amended from time to time.
"Borrower" shall have the meaning given to such term in the preamble to
this Agreement.
"Borrowings" shall mean advances of borrowed funds made hereunder to or
on behalf of Borrower.
"Business Day" shall mean a day on which Lender is open for the conduct
of banking business at its principal office in Atlanta, Georgia; provided,
however, that for purposes of determining the timing of requests for, and
establishing the Applicable Rate, on LIBOR Borrowings, "Business Day" shall
mean, additionally, any day on which dealings with United States Dollar deposits
are also being carried out by Lender in the London interbank Eurodollar market.
"Capital Expenditures" shall mean all expenditures made in respect of
the cost of any fixed asset or improvement, or replacement, substitution, or
addition thereto, having a useful life of more than one (1) year, including,
without limitation, those arising in connection with the direct or indirect
acquisition of such assets by way of increased product or service charges or
offset items or in connection with Capital Leases.
"Capital Lease" shall mean any lease of property that, in accordance
with GAAP, should be reflected as a liability on the balance sheet of a Person.
"Closing Date" shall mean the date on which all of the conditions
precedent specified in Section 10.1 are fulfilled (or waived in writing by
Lender) and the initial Loan or Loans are made hereunder.
"Collateral" shall mean any property of any Credit Party which
hereafter may secure any or all of the Obligations.
"Consolidated Subsidiaries" shall mean those Subsidiaries of Borrower
(if any) existing from time to time which, for purposes of GAAP, are required to
be consolidated for financial reporting purposes.
"Control", "Controlled" or "Controlling" shall mean, with respect to
any Person, the power to direct the management and policies of such Person,
directly, indirectly, whether through the ownership of voting securities or
otherwise; provided, however, that, in any event, any Person which owns directly
or indirectly ten percent (10%) or more of the securities having ordinary voting
power for the election of directors or other governing body of a corporation or
other entity shall be deemed to "Control" such corporation or other entity for
purposes of this Agreement.
"Credit Parties" shall mean Borrower and its Subsidiaries.
"Current Liabilities" shall mean, with respect to any Person, all
liabilities which should, in accordance with GAAP, be classified as current
liabilities, and in any event shall include all Debt payable on demand or within
one year from any determination thereof without any option on the part of the
obligor to extend or renew beyond such year, all accruals for federal or other
taxes based on or measured by income and payable within such year, and the
current portion of any long-term Debt required to be paid by such Person within
one year, all as determined on a consolidated basis.
"Debt" shall mean all liabilities, obligations and indebtedness of a
Person, of any kind or nature, whether now or hereafter owing, arising, due or
payable, howsoever evidenced, created, incurred, acquired or owing, and whether
primary, secondary, direct, contingent, fixed or otherwise, including, without
in any way limiting the generality of the foregoing: (i) all obligations,
liabilities and indebtedness secured by any Lien on such Person's property, even
though such Person shall not have assumed or become liable for the payment
thereof; (ii) all obligations or liabilities created or arising under any
Capital Lease, conditional sale or other title retention agreement; (iii) all
accrued pension fund and other employee benefit plan obligations and
liabilities; (iv) all Guaranteed Obligations; (v) any liabilities under, or
associated with, interest rate protection agreements; (vi) all deferred taxes;
and (v) all reimbursement obligations with respect to letters of credit.
"Default Condition" shall mean the occurrence of any event which, after
satisfaction of any requirement for the giving of notice or the lapse of time,
or both, would become an Event of Default.
"Default Rate" shall mean that interest rate per annum equal to two
percent (2%) per annum in excess of the Applicable Rate otherwise payable on any
Obligation.
"Distributions" shall mean, with respect to any Person and for any
fiscal period, all dividends or other distributions paid or made by such Person
during such period with respect to any class of its capital stock or other
equity interests (other than any such dividends or distributions payable solely
in such stock or interests) together with any and all other payments made by
such Person during such period to purchase, redeem or otherwise acquire for
value any shares of any class of its capital stock or other equity interests.
"Domestic Subsidiary" shall mean any Subsidiary of Borrower which is
not a Foreign Subsidiary.
"EBITDA" shall mean, with respect to any Person and for any fiscal
period, the sum (without duplication) of such Person's (i) net income (or loss)
before interest and taxes, plus (ii) to the extent deducted in determining such
net income (or loss), depreciation, amortization or other similar non-cash
charges, minus (iii) to the extent recognized in determining such net income (or
loss), extraordinary gains, minus (iv) to the extent recognized in determining
such net income (or loss), non-operating gains (including without limitation
currency gains), all as determined on a consolidated basis.
"EBITDAR" shall mean, with respect to any Person and for any fiscal
period, the sum of such Persons' EBITDA plus, to the extent deducted in
determining such EBITDA, such Person's rental expense, all as determined on a
consolidated basis.
"Employee Benefit Plan" shall mean any employee welfare benefit plan as
that term is defined in Section 3(1) of ERISA, any employee pension benefit
plan, as that term is defined in Section 3(2) of ERISA or any other plan which
is subject to the provisions of Title IV of ERISA or which is for the benefit of
any employees of Borrower and any employees of any Subsidiary of Borrower or any
other entity which is a member of a controlled group or under common control
with Borrower, as such terms are defined in Section 4001(a)(14) of ERISA.
"Environmental Laws" shall mean all federal, state and local laws,
rules, regulations, ordinances, programs, permits, guidances, orders and consent
decrees relating to health, safety and environmental matters, whether now or
hereafter existing, including, but not limited to state and federal superlien
and environmental cleanup laws and U.S. Department of Transportation regulations
and any other state or local law or regulation relating to pollution,
reclamation, or protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into air, water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants, contaminants
or hazardous or toxic materials or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Event of Default" shall mean any of the events or conditions described
in Article 7, provided that any requirement specified therein for the giving of
notice or the lapse of time, or both, has been satisfied.
"Excess Cash Flow" shall mean, without duplication, with respect to any
Fiscal Year of Borrower and its Consolidated Subsidiaries, the excess of (a) the
sum without duplication of (i) its consolidated net income for such Fiscal Year,
plus (ii) an amount equal to the amount of non-cash charges deducted in arriving
at such consolidated net income, plus (iii) decreases in consolidated working
capital for such Fiscal Year, plus (iv) an amount equal to the aggregate net
non-cash loss on the sale, lease, transfer or other disposition of assets by
Borrower and its Consolidated Subsidiaries during such Fiscal Year (other than
sales of inventory in the ordinary course of business) to the extent deducted in
arriving at such consolidated net income, over (b) the sum without duplication
of (i) an amount equal to the amount of all non-cash credits included in
arriving at such consolidated net income, plus (ii) the aggregate amount
actually paid by Borrower and its Consolidated Subsidiaries in cash during such
Fiscal Year on account of Capital Expenditures (excluding the principal amount
of any Debt incurred in connection with such expenditures), plus (iii) the
aggregate amount of all payments or prepayments of the Term Loans made during
such Fiscal Year, plus (iv) increases in consolidated working capital of
Borrower and its Consolidated Subsidiaries for such Fiscal Year, plus (v) an
amount equal to the aggregate net-cash gain on the sale, lease, transfer or
other disposition of assets by Borrower and its Consolidated Subsidiaries during
such Fiscal Cash Year (other than sales of inventory in the ordinary course of
business) to the extent included in arriving at such consolidated net income,
all as determined on a consolidated basis in accordance with GAAP.
"Excluded Subsidiaries" shall mean the Italian Subsidiary, the Spanish
Subsidiary and the Portuguese Subsidiary.
"Fiscal Year", in respect of a Person, shall mean the fiscal year of
such Person employed by such Person as of the Closing Date, and ending on May
31st of each year in the case of Borrower. The terms "Fiscal Quarter" and
"Fiscal Month" shall correspond accordingly thereto.
"Fixed Charge Coverage Ratio" shall mean, with respect to any Person
and for any fiscal period, the ratio of (i) such Person's EBITDAR for the
consecutive 12-month period ending with such period to (ii) such Person's Fixed
Charges for the consecutive 12-month period ending with such period, all as
determined on a consolidated basis.
"Fixed Charges" shall mean, with respect to any Person and for any
fiscal period, the sum (without duplication) of such Person's (i) interest
expense for such period, plus (ii) rental expense for such period, plus (iii)
scheduled payments of principal with respect to its Debt during such period,
plus (iv) non-financed Capital Expenditures made during such period, plus (v)
Distributions made during such period.
"Foreign Subsidiary" shall mean any Subsidiary of Borrower which is
organized or incorporated under the laws of any jurisdiction other than the
United States of America or any state, territory or possession thereof.
"Funded Debt" shall mean, with respect to any Person, all Debt of such
Person evidenced by bonds, debentures, notes or other similar instruments
(including without limitation Capital Leases, banker's acceptances, obligations
to reimburse, but excluding trade accounts payable incurred in the ordinary
course of such Person's business).
"Funded Debt/EBITDA Ratio" shall mean, with respect to any Person and
for any fiscal period, the ratio of (i) such Person's Funded Debt as at the end
of such period to (ii) such Person's EBITDA for the consecutive 12-month period
ending with such period, all as determined on a consolidated basis.
"GAAP" shall mean generally accepted accounting principles consistently
applied for the period or periods in question.
"Gamma" shall mean Gamma Biologicals, Inc., a Texas corporation.
"Gamma Acquisition Subsidiary" shall mean Gamma Acquisition
Corporation, a Texas corporation and a wholly-owned Subsidiary of Borrower.
"Guaranteed Obligations" shall mean, with respect to any Person, all
obligations of such Person which in any manner directly or indirectly guarantee
or assure, or in effect guarantee or assure, the payment or performance of any
Debt of any other Person or assure or in effect assure the holder of any such
Debt against loss in respect thereof.
"Guarantor" shall mean the Gamma Acquisition Subsidiary prior to the
consummation of the Merger and Gamma after the consummation of the Merger as
well as any other Subsidiary (if any) which executes a Guaranty.
"Guaranty" shall mean the Guaranty Agreement executed by any Guarantor
in favor of the Lender, as amended or supplemented from time to time. Each
Guaranty shall be in substantially the form of Exhibit D-1.
"Interest Period" shall mean, in respect of LIBOR Borrowings, a period
commencing on the date of such borrowing and ending on the numerically
corresponding date in the first (1st), second (2nd) or third (3rd) month
thereafter, as Borrower may elect in the applicable notice of such borrowing to
be given pursuant to Section 2.2.1; provided, however, that any Interest Period
which would otherwise end on a day which is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, and any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month.
"Interest Rate Determination Date" shall mean in respect of LIBOR
Borrowings, two (2) Business Days prior to the first day of each Interest
Period.
"Italian Subsidiary" shall mean Immucor Italia SRL, a company organized
under the laws of Italy.
"Lender" shall have the meaning given to such term in the preamble to
this Agreement.
"Leverage Ratio" shall mean, with respect to any Person and for any
fiscal period, the ratio of (i) such Person's Funded Debt as at the end of such
fiscal period to (ii) the sum of such Person's Funded Debt plus its Net Worth as
at the end of such fiscal period, all as determined on a consolidated basis.
"LIBOR Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any Interest Period, an
interest rate per annum computed by dividing: (x) the rate per annum determined
by Lender from time to time on the basis of the offered rate for deposits in
United States dollars in the London interbank borrowing market of amounts equal
to or comparable to the amount of the Loan (or portion thereof) to which such
Interest Period relates offered for a term comparable to such Interest Period,
which rate appears on the display designated as page "3750" of the Telerate
Service (or such other page as may replace page "3750" of that service or such
other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
United States dollar deposits) as of 11:00 a.m., London time, on the Interest
Rate Determination Date applicable to such Interest Period, which rate shall be
rounded upward, to the next higher 1/10,000 of 1%; provided, however, that if
more than one such offered rate appears on such page, the offered rate shall be
deemed to be the arithmetic average (rounded upward, if necessary, to the next
higher of 1/100 of 1%) of such offered rates; by (y) the number 1 minus any then
applicable percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System (or its
successor) for determining the maximum reserve requirement for a member of the
Federal Reserve System in respect of "Eurocurrency liabilities" (or any other
category of liabilities which includes deposits by reference to which the
interest rate on such Borrowings is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
Lender to United States residents). The LIBOR Rate shall be adjusted
automatically on and as of the effective date of any change in the percentage
described in the foregoing clause (y).
"Lien" shall mean any deed to secure debt, deed of trust, mortgage or
similar instrument, and any lien, security interest, or other preferential
arrangement which has the practical effect of constituting a security interest,
security title, pledge, charge, encumbrance or servitude of any kind, whether by
consensual agreement or by operation of statute or other law, and whether
voluntary or involuntary, including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof.
"Line of Credit" shall refer to the line of credit opened by Lender in
favor of Borrower pursuant to the provisions of Section 2.1.1.
"Line of Credit Limit" shall mean $2,000,000, subject to reduction by
Borrower pursuant to Section 2.1.1.
"Liquid Assets" shall mean, with respect to any Person, all cash, trade
accounts receivable, and inventories of such Person as of any date of
determination, all as calculated on a consolidated basis.
"Liquidity Ratio" shall mean, with respect to any Person and as of any
date of determination, the ratio of (a) its Liquid Assets to (b) its Current
Liabilities, all as determined on a consolidated basis.
"Loan Documents" shall mean this Agreement, the Notes, the Stock Pledge
Agreement, any and all Guaranties, and any and all other documents, instruments,
certificates and agreements executed and/or delivered by Borrower or any
Guarantor in connection herewith, or any one, more, or all of the foregoing, as
the context shall require.
"Loans" shall mean the Advances under the Line of Credit together with
the Acquisition Term Loans and the Additional Term Loans.
"Master Note" shall mean the master promissory note, dated of even date
herewith, as amended or supplemented from time to time, in a stated principal
amount equal to the Line of Credit Limit, evidencing Advances to be obtained by
Borrower under the Line of Credit, together with any renewals or extensions
thereof, in whole or in part. The Master Note shall be substantially in the form
of Exhibit A.
"Material Adverse Effect" shall mean with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Lender under any of the Loan Documents or the ability of any Credit Party to
perform its obligations under any of the Loan Documents or (c) the legality,
validity or enforceability of any of the Loan Documents.
"Merger" shall mean the merger of the Gamma Acquisition Subsidiary with
and into Gamma in accordance with the Acquisition Documents and Section 5.6
hereof with Gamma being the surviving corporation therefrom.
"Net Worth" shall mean, with respect to any Person and as of any date
of determination thereof, the book value of the assets of such Person minus (i)
any reserves applicable thereto, and minus (ii) all of such Person's liabilities
(including accrued and deferred income taxes), all as determined on a
consolidated basis.
"Notes" shall mean, collectively, the Master Note, Acquisition Term
Note and the Additional Term Note.
"Obligations" shall mean any and all Debt of Borrower to Lender now
existing or hereafter arising under this Agreement, any of the Notes, or any of
the other Loan Documents or as a result hereof or thereof, whether for
principal, interest, fee, expenses or other amounts, including without
limitation the Loans, and any extensions, renewals, increases, modifications or
replacements of or for any of the foregoing in whole or in part.
"Payment Dates" shall mean the first (1st) day of each of the months of
March, June, September and December in each calendar year, commencing with
December 1, 1998.
"Permitted Encumbrances" shall mean (i) Liens for taxes not yet due and
payable or being actively contested as permitted by this Agreement; (ii)
carriers', warehousemen's mechanics, materialmen's, repairmen's or other like
Liens arising in the ordinary course of business, payment for which is not yet
due or which are being actively contested in good faith and by appropriate,
lawful proceedings, but only if such Liens are and remain junior to Liens
granted in favor of Lender; (iii) pledges or deposits in connection with
worker's compensation, unemployment insurance and other social security
legislation; (iv) deposits to secure the performance of utilities, leases,
statutory obligations and surety and appeal bonds and other obligations of a
like nature arising by statute or under customary terms regarding depository
relationships on deposits held by financial institutions with whom the
applicable Credit Party has a banker-customer relationship; (v) typical
restrictions imposed by licenses and leases of software (including location and
transfer restrictions); (vi) Liens existing on the date hereof and disclosed on
Schedule 5.1; and (vii) Liens in favor of Lender.
"Person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, joint stock company, trust, governmental unit
or other entity.
"Portuguese Subsidiary" shall mean Immucor Portugal, Lda, a company
organized under the laws of Portugal.
"Prime Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the Prime Rate.
"Prime Rate" refers to that interest rate so denominated and set by
Lender from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Lender.
Lender extends credit at interest rates above and below the Prime Rate.
"Principal Officers" shall mean Xxxxxx X. Xxxxxx, Xxxxx X. Xxxx and
Xxxxxx X. Xxxxxx.
"Purchase Money Lien" shall mean any Lien granted by Borrower or any
Subsidiary from time to time to vendors or financers of equipment to secure the
payment of the purchase price thereof so long as (i) such Liens extend only to
the specific equipment so purchased, (ii) secure only such deferred payment
obligation and related interest, fees and charges and no other Debt, and (iii)
are promptly released upon the payment in full of such purchase price and
related interest, fees and charges.
"Restricted Investment" shall mean any investment in cash or by
delivery of property to any Person, whether by acquisition of stock,
indebtedness or other obligation or security, or by loan, advance or capital
contribution, or otherwise, or in any property, or the acquisition of all or
substantially all of the assets of any Person, except that investments
consisting of or acquisitions of the following shall not constitute "Restricted
Investments": (i) property used or to be used in the ordinary course of
business; (ii) current assets arising from the sale of goods or the provision of
services in the ordinary course of business; and (iii) loans or advances to
employees for salary, commissions, travel or the like, made in the ordinary
course of business.
"Stock Pledge Agreement" shall mean, collectively, the Stock Pledge
Agreement, dated as of the date hereof, executed by Borrower in favor of Lender,
as amended or supplemented from time to time and any other stock pledge
agreement executed by any Credit Party in favor of Lender. The Stock Pledge
Agreement shall be in substantially the form of Exhibit D-2; provided, however
that the Stock Pledge Agreement covering the shares of Immucor GmbH shall not be
in the form of Exhibit D-2 but shall be in form and substance satisfactory to
Lender.
"Spanish Subsidiary" shall mean Immucor, S.L., a company organized
under the laws of Spain.
"Subsidiary" shall mean any corporation, partnership, limited liability
company, business association or other entity (including any Subsidiary of any
of the foregoing)of which Borrower owns, directly or indirectly, fifty percent
(50%) or more ofthe capital stock or other equity interests having
ordinary power for theelection of directors or others performing similar
functions.
"Tender Offer" shall mean the Gamma Acquisition Subsidiary's cash
tender offer to acquire all of the outstanding shares of the common stock of
Gamma on the Closing Date at the price of $5.40 net per share in accordance with
the Acquisition Documents and Section 5.6 hereof.
"Term Loans" shall mean the Acquisition Term Loans and the Additional
Term Loans.
"Termination Date" shall mean the earliest to occur of the following
dates: (i) the date on which, pursuant to Section 8, Lender terminates the Line
of Credit (or the Line of Credit is deemed automatically terminated) subsequent
to the occurrence of an Event of Default; (ii) the effective date of Borrower's
irrevocable termination of the Line of Credit pursuant to Section 2.1.1; or
(iii) the date which is three (3) years after the Closing Date.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of Georgia from time to time.
"Year 2000 Compliant and Ready" shall mean that the Credit Parties'
computer hardware and software systems with respect to the operation of its
business and their general business plan will: (i) handle date information
involving any and all dates before, during and/or after January 1, 2000,
including accepting input, providing output and performing date calculations in
whole or in part; (ii) operate, accurately without interruption on and in
respect of any and all dates before, during and/or after January 1, 2000 and
without any change in performance; (iii) respond to and process two digit year
input without creating any ambiguity as to the century; and (iv) store and
provide date input information without creating any ambiguity as to the century.
"Y2K Plan" shall have the meaning given such term in Section 3.17.
1.2 Use of Defined Terms. All terms defined in this Agreement
and the Exhibits thereto shall have the same defined meanings when used in any
other Loan Documents, unless otherwise defined therein or the context shall
require otherwise.
1.3 Accounting Terms. All accounting terms not specifically
defined herein shall have the meanings generally attributed to such terms under
GAAP.
1.4 UCC Terms. All other undefined terms shall, unless the
context indicates otherwise, have the meanings provided for by the UCC to the
extent the same are used or defined therein.
1.5 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement, and all references in this Agreement to Articles, Sections,
Subsections, paragraphs, clauses, subclauses, Exhibits or Supplements shall
refer to the corresponding Article, Section, Subsection, paragraph, clause,
subclause of, or Exhibit or Supplement attached to, this Agreement, unless
specific reference is made to the articles, sections or other subdivisions of,
or Exhibit or Supplement to, another document or instrument. Wherever in this
Agreement reference is made to any instrument, agreement or other document,
including, without limitation, any of the Loan Documents, such reference shall
be understood to mean and include any and all amendments or supplements thereto
or modifications, restatements, replacements, renewals or extensions thereof.
Wherever in this Agreement reference is made to any statute, such reference
shall be understood to mean and include any and all amendments thereof and all
regulations promulgated pursuant thereto. Whenever any matter set forth herein
or in any Loan Document is to be consented to or satisfactory to Lender, or is
to be determined, calculated or approved by Lender, then, unless otherwise
expressly set forth herein or in any such Loan Document, such consent,
satisfaction, determination, calculation or approval shall be in Lender's sole
discretion, exercised in good faith and, where required by law, in a
commercially reasonable manner, and shall be conclusive absent manifest error.
1.6 Exhibits. All Exhibits attached hereto are by reference
made a part hereof.
2. FINANCING
2.1 Extensions of Credit.
2.1.1....Line of Credit.
Subject to the terms and conditions of this Agreement, Lender
agrees to open the Line of Credit in favor of Borrower so that, during the
period from the Closing Date to, but not including, the Termination Date,
Borrower may borrow, repay and reborrow Advances up to a maximum aggregate
principal amount outstanding at any one time equal to the Line of Credit Limit
as then in effect. All proceeds so obtained under the Line of Credit may be used
by Borrower for working capital in such manner as Borrower may elect in the
ordinary course of its business operations. The Debts arising from Advances made
to or on behalf of Borrower under the Line of Credit shall be evidenced by the
Master Note, which shall be executed by Borrower and delivered to Lender on the
Closing Date. The outstanding principal amount of the Master Note may fluctuate
from time to time, but shall be due and payable in full on the Termination Date,
and each Advance thereunder shall bear interest from the date of such Advance
until paid in full at the Applicable Rate, calculated and payable in the manner
described in Section 2.2.1. Subject to any contrary provisions of Section 2.2.1
in respect of LIBOR Borrowings, Borrower shall have the option to request
Advances under the Line of Credit by telephone or in a writing delivered to
Lender not later than 11:00 a.m. (Atlanta, Georgia time) on the date of the
requested Advance; provided, however, that any telephone request shall be
confirmed in a writing not later than the Business Day following the
disbursement of the requested Advance. Borrower may, on not less than five (5)
Business Days prior written notice to Lender, irrevocably terminate the Line of
Credit or irrevocably reduce the amount of the Line of Credit Limit, but in the
case of any such reduction Borrower shall prepay the Advances to the extent the
aggregate outstanding principal balance thereof exceeds the amount of the Line
of Credit Limit as so reduced.
2.1.2. Acquisition Term Loans.
During the period from the Closing Date through the
Acquisition Term Loan Commitment Termination Date, and subject to the terms and
conditions of this Agreement, Lender agrees to make the Acquisition Term Loans
to Borrower, the proceeds from which shall be used by Borrower solely to finance
the Acquisition and to pay related fees and expenses. Lender's commitment
hereunder to make Acquisition Term Loans shall be reduced by the amount of each
Borrowing thereof. The Acquisition Term Loans shall be advanced in two
Borrowings, the first of which shall be made on the date of the closing of the
Tender Offer and shall be in an amount not to exceed the amount required to be
paid by the Gamma Acquisition Subsidiary in connection therewith together with
related fees and expenses, and the second of which shall be made on the date of
the closing of the Merger and shall be in an amount not to exceed the amount
required to be paid by Gamma (as the surviving corporation from the Merger) in
connection therewith together with related expenses and fees. The Debt arising
from the making of the Acquisition Term Loans shall be evidenced by the
Acquisition Term Note, which shall be executed by Borrower and delivered to
Lender on the Closing Date. The principal amount of the Acquisition Term Loans
shall be repaid by Borrower in installments as provided in the Acquisition Term
Note. In any event on March 1, 2005, the unpaid principal balance of the
Acquisition Term Loans together with all accrued but unpaid interest thereon
shall be due and payable in full. The Acquisition Term Loans shall bear interest
at the Applicable Rate, calculated and payable in the manner described in
Section 2.2.1, from the date thereof on the unpaid principal amount thereof from
time to time outstanding. The Acquisition Term Loans may be prepaid, in whole or
in part, by Borrower at any time or from time to time hereafter; provided,
however, that any partial prepayment of the Acquisition Term Loans shall be
applied by Lender in the inverse order of the maturities of the principal
installments of the Acquisition Term Loans then remaining to be paid.
2.1.3....Additional Term Loans.
During the period from the Closing Date through the
Additional Term Loan Commitment Termination Date, and subject to the terms and
conditions of this Agreement, Lender agrees to make the Additional Term Loans to
Borrower, the proceeds of which shall be used by Borrower solely to finance its
repurchase from time to time of shares of its common stock as permitted by
Section 5.5 hereof and to finance its repurchase of the distribution rights of
its Canadian and Belgian distributors. Lender's commitment hereunder to make
Additional Term Loans shall be reduced by the amount of each Borrowing thereof.
The Debt arising from the making of the Additional Term Loans shall be evidenced
by the Additional Term Note, which shall be executed by Borrower and delivered
to Lender on the Closing Date. The principal amount of the Additional Term Loans
shall be repaid by the Borrower in installments as provided in the Additional
Term Note. In any event on March 1, 2004, the unpaid principal balance of the
Additional Term Loans together with all accrued but unpaid interest thereon
shall be due and payable in full. The Additional Term Loans shall bear interest
at the Applicable Rate, calculated and payable in the manner described in
Section 2.2.1, from the date thereof on the unpaid principal amount thereof from
time to time outstanding. The Additional Term Loans may be prepaid, in whole or
in part, by Borrower at any time or from time to time hereafter; provided,
however, that any partial prepayment of the Additional Term Loans shall be
applied by Lender in the inverse order of the maturities of the principal
installments of the Additional Term Loans then remaining to be paid.
2.2 Interest and Other Charges.
2.2.1....Interest at Applicable Rate.
Lender and Borrower agree that the interest ratepayable on each Loan (herein
called the "Applicable Rate") shall be determined as follows:
(a)......Initial Rate.
The outstanding principal balance of each Loan, or each
outstanding portion thereof, shall bear interest initially at a rate per annum
equal to either: (i) the Prime Rate in the case of that portion of such Loan at
any time constituting a Prime Borrowing or (ii) subject to the conditions and
limitations set forth in subsection (c) below, the LIBOR Rate plus the
Applicable Margin in the case of that portion of such Loan at any time
constituting a LIBOR Borrowing; subject, however, in each case, to adjustment as
provided in subsection (b) below.
(b)......Applicable Margin.
The "Applicable Margin" shall mean as of the Closing Date
a rate per annum equal to one hundred twenty basis points (1.20%), and the
Applicable Margin shall be subject to subsequent adjustment, up or down, based
on Borrower's financial performance, determined by reference to the Funded
Debt/EBITDA Ratio, measured quarterly; that is, if the Funded Debt/EBITDA Ratio,
measured for each Fiscal Quarter of Borrower, commencing with the Fiscal Quarter
ending closest to, but occurring after, the Closing Date, is as described below,
the Applicable Margin shall be the interest rate appearing opposite said Funded
Debt/EBITDA Ratio:
Funded Debt/EBITDA Ratio
Applicable Margin
<2.0:1.0 0.50%
<2.5:1.0 but
=>2.0:1.0 0.75%
<3.0:1.0 but
=>2.5:1.0 1.00%
<3.5:1.0 but
=>3.0:1.0 1.20%
=>3.5:1.0 1.40%
Lender shall determine whether any adjustment to the Applicable Margin is to be
made quarterly, based on Borrower's financial statements for each Fiscal Quarter
delivered to Lender pursuant to Section 4.2; provided that if such financial
statements are not timely delivered to Lender, then an adjustment to the
Applicable Margin shall be made based on an assumed delivery of said financial
statements reflecting a Funded Debt/EBITDA Ratio of greater than or equal to
3.5:1.0; provided further if any Default Condition shall then exist no
adjustment downward shall occur. Each such adjustment to the Applicable Margin
shall become effective as of the first day of the calendar month following the
date on which such financial statements are delivered (or deemed delivered) to
Lender, and shall remain effective unless and until any subsequent adjustment
becomes effective in accordance with the terms of this subsection (b). Each such
adjustment shall apply only to LIBOR Borrowings made (including conversions and
continuations) within such period (but not to any then existing). In the event
that the annual audit financial statements of Borrower for any Fiscal Year shall
require restatement of financial statements of Borrower and such restatement
shall effect the Funded Debt/EBITDA Ratio and would have required a different
Applicable Margin for LIBOR Borrowings to be in effect for prior periods, then
Lender at its option, may require Borrower to make additional payments of
interest for such prior periods.
(c)......Conditions and Limitations on LIBOR Borrowings.
All Borrowings obtained onthe Closing Date and for a period of three (3)
Business Days thereafter shall be Prime Borrowings. Thereafter, Borrower shall
have the continuing right, provided that no Event of Default or Default
Condition exists, to obtain LIBOR Borrowings or to convert Prime Borrowings to
LIBOR Borrowings; subject, however, to the following conditions and limitations:
(i) Borrower must request a LIBOR Borrowing, specifying the amount thereof and
the applicable Interest Period, at least three (3) Business Days in advance of
the intended borrowing date; (ii) no more than three (3) LIBOR Borrowings under
each of the Line of Credit, the Acquisition Term Loans and the Additional Term
Loans may be obtained at any time; (iii) LIBOR Borrowings must be in minimum
amounts of Five Hundred Thousand Dollars ($500,000), or integral multiples
thereof, (iv) the Interest Period for LIBOR Borrowings in respect of the Line of
Credit shall not exceed the Termination Date; (v) the Interest Periods for, and
aggregate amount of, LIBOR Borrowings in respect of the Acquisition Term Loans
or the Additional Term Loans must be consistent with, and not exceed, the
scheduled principal amortization thereof; or (vi) if on or prior to the first
day of any Interest Period, Lender determines that deposits in United States
Dollars (in the applicable amounts) are not being offered in the relevant market
for such Interest Period or that the LIBOR Rate will not adequately and fairly
reflect the cost to Lender of funding any relevant borrowings for such Interest
Period, then, Lender shall forthwith give notice thereof to Borrower, whereupon,
until Lender notifies Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of Lender to make LIBOR Borrowings
available to Borrower shall be suspended; (vii) if, at any time, a change of
law, or compliance by Lender with any request or directive (whether or not
having the force of law) of any governmental authority shall make it unlawful or
impracticable for Lender to make available, maintain or fund any LIBOR
Borrowings, Lender shall forthwith give notice to such effect to Borrower,
whereupon, until Lender notifies Borrower that the circumstances giving rise to
such suspension no longer exist, the obligation of Lender to make such
Borrowings available to Borrower shall be suspended and if Lender shall
determine that it may not lawfully continue to maintain and fund any then
outstanding Borrowings to maturity and shall so specify in such notice, each
Borrowing so affected shall be converted to a Prime Borrowing effective
immediately; (viii) unless Borrower has timely given Lender a notice of LIBOR
Borrowing required hereinabove, a LIBOR Borrowing shall automatically convert to
a Prime Borrowing at the expiration of the Interest Period corresponding
thereto; (ix) no voluntary prepayment of any LIBOR Borrowing shall be permitted
unless Lender has given its written consent thereto; and (x) upon the request of
Lender, delivered to Borrower, Borrower shall pay to Lender such amount or
amounts as shall be determined by Lender in connection with the relevant
Interest Period as a result of: (A) any payment or prepayment of any LIBOR
Borrowing by Borrower on a date other than the last day of an Interest Period
for such Borrowing, whether as a result of voluntary prepayment, mandatory
prepayment, involuntary acceleration or otherwise; or (B) any failure by the
Borrower to undertake any such LIBOR Borrowing on the date for which notice of
such Borrowing is specified by Borrower. In the case of clause (x), such sum
shall include, without limitation, an amount equal to the excess, if any, of the
amount of interest which would have accrued on the amount so paid or prepaid or
not prepaid or borrowed for the period from the date of such payment, prepayment
or failure to prepay or borrow to the last day of the then current Interest
Period for such Borrowing (or, in the case of a failure to prepay or borrow, the
Interest Period for such Borrowing which would have commenced on the date of
such failure to prepay or borrow) at the applicable rate of interest for such
Borrowing provided for herein over the amount of interest (as determined by
Lender in the reasonable exercise of its discretion) Lender would have paid on
deposits in United States Dollars of comparable amounts having terms comparable
to such period placed with it by leading banks in the London interbank market.
(d)......Payment of Interest.
Accrued interest on each Prime Borrowing at the Applicable Rate shall be due and
payable quarterly in arrears, on each Payment Date. Accrued interest on each
LIBOR Borrowing shall be due and payable at the Applicable Rate on the same
dates as are prescribed for the payment of accrued interest on Prime Borrowings,
and, additionally, at the expiration of each Interest Period corresponding to
such Borrowing.
(e)......Calculation of Interest and Fees.
Interest on each Borrowing at the Applicable Rate (and any fees described in
Section 2.2.2 computed on a per annum basis) shall be calculated on the basis of
a 360-day year and actual days elapsed. The Applicable Rate on each Prime
Borrowing shall change with each change in the Prime Rate, effective as of the
opening of business on the Business Day of such change.
(f)......Charging Interest and Fees.
Accrued and unpaid interest on any Borrowings (and any outstanding fees
described in Section 2.2.2) may, when due and payable, be paid, at Lender's
option (without any obligation to do so), by Lender's charging the Line of
Credit for an Advance in the amount thereof.
(g)......Rate on Other Obligations.
To the extent that, at any time, there are other Obligations besides the Loans
which are outstanding and unpaid, such Obligations shall, unless any Note
evidencing such Obligations provides otherwise, bear interest at the same rate
per annum as is then and thereafter payable on Prime Borrowings under the Line
of Credit.
2.2.2....Fees.
In addition to the payment of interest at the Applicable Rate, Borrower shall
also be obligated to pay Lender the following fees:
(a) Loan Origination Fee.
On the Closing Date,
Borrower shall pay to Lender a fully
earned, non-refundable loan origination fee of $39,750.
(b)......Non-Usage Fee.
As additional compensation for Lender's making the Line of Credit available to
Borrower, Borrower shall pay Lender, in arrears, on each Payment Date prior to
the Termination Date as well as on the Termination Date, a fully earned,
non-refundable fee for Borrower's non-use of available funds under the Line of
Credit in an amount equal to one-quarter of one percent (0.25%) per annum
(calculated on the basis of a 360-day year for actual days elapsed) of the
difference between (x) the Line of Credit Limit then in effect and (i) the
average for the consecutive 3-month period ending on the day immediately
preceding such Payment Date of the daily closing balances of the aggregate
Advances outstanding under the Line of Credit during such period.
2.2.3....Capital Adequacy.
If, after the Closing Date, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the administration thereof, or
compliance by Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, affects or might affect the amount of capital required or
expected to be maintained by Lender or any corporation in control of Lender and
Lender determines that the amount of such capital is increased by or based upon
Lender's obligations hereunder, then from time to time, within thirty (30) days
after demand by Lender, Borrower shall pay to Lender such additional amount or
amounts as will compensate Lender in light of such circumstances, to the extent
that Lender reasonably determines such increase in capital is allocable to
Lender's obligations hereunder, and such payment, as and when received, shall be
applied by Lender in reimbursement of Lender's increased costs in regard to such
obligations.
2.2.4....Usury Savings Provisions.
Lender and Borrower hereby further agree that the only charge imposed by Lender
upon Borrower for the use of money in connection herewith is and shall be the
interest expressed in the Notes at the rate set forth in each of the Notes, and
that all other charges imposed by Lender upon Borrower in connection herewith,
are and shall be deemed to be charges made to compensate Lender for underwriting
and administrative services and costs, and other services and costs performed
and incurred, and to be performed and incurred, by Lender in connection with the
Borrowings, and shall under no circumstances be deemed to be charges for the use
of money. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest hereunder or under the Notes and charged or collected
pursuant to the terms of this Agreement or pursuant to the Notes exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that Lender has charged or received interest hereunder in
excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by applicable law and
Lender shall promptly refund to Borrower any interest received by Lender in
excess of the maximum lawful rate or, if so requested by Borrower, shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that Borrower not pay or contract to pay, and that Lender not receive or
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by Borrower under applicable law.
2.2.5....Margin Stock Savings Provisions.
It is the express intent and agreement of Borrower and Lender that none of the
transactions contemplated by this Agreement (including without limitation the
use of the proceeds of the Loans) violate any applicable provisions of
Regulation U or X of the Federal Reserve Board. Lender, in good faith, has not
relied on any "margin stock" (as such term is defined in the aforesaid
Regulation U) of any Credit Party as direct or indirect collateral for the
Loans. Nothing in this Agreement (including without limitation Section 5.9 or
5.11 hereof) shall in any way limit any Credit Party's right to sell, transfer,
encumber or otherwise dispose of any "margin stock" of any Credit Party if and
for so long as any of the Loans which constitutes "purpose credit" (as defined
in the aforesaid Regulation U) are outstanding.
2.3 General Provisions as to Payments.
2.3.1....Method of Payment.
Unless paid in accordance with Section 2.2.1(f), all payments of interest, fees
and principal pursuant to this Agreement must be received by Lender no later
than 2:00 p.m. (Atlanta, Georgia time) on the date when due, in Federal or other
funds immediately available to Lender in Atlanta, Georgia.
2.3.2....Application of Payment.
Except as may be otherwise agreed to by Borrower and Lender, all payments
received by Lender hereunder shall be applied, in accordance with the then
current billing statement applicable to the Loans, first to accrued interest,
then to fees, and then to principal. In the event more than one Loans shall be
outstanding hereunder, Lender in its sole discretion may determine which Loans
each payment shall be applied to. Notwithstanding the foregoing, upon the
occurrence of a Default Condition or Event of Default, payments shall be applied
as determined by Lender in its sole discretion.
2.4 Mandatory Term Loan Prepayments. So long as any of the
Term Loans are outstanding and unpaid, on the earlier of the date which is five
(5) Business Days after (a) the date on which Borrower's annual audited
financial statements for the immediately preceding Fiscal Year are delivered
pursuant to Section 4.2 hereof, or (b) the date on which such annual audited
financial statements were required to be delivered pursuant to Section 4.2
hereof, Borrower shall prepay the Term Loans in an amount equal to fifty percent
(50%) of Borrower's Excess Cash Flow as determined on a consolidated basis for
such immediately preceding Fiscal Year. Each such prepayment shall be
accompanied by a certificate signed by Borrower's Chief Financial Officer
certifying the manner in which such Excess Cash Flow and the resulting
prepayment of the Term Loans were calculated, which certificate shall be in form
and substance satisfactory to Lender. Any prepayment made by Borrower under this
Section 2.4 shall be applied, first, to prepay the scheduled installments of the
Acquisition Term Loans in inverse order of maturity until such Loan shall have
been prepaid in full, and then to prepay the scheduled installments of the
Additional Term Loans in inverse order of maturity until such Loans have been
prepaid in full.
3. REPRESENTATIONS AND WARRANTIES In order to induce Lender to enter
into this Agreement, Borrower hereby represents and warrants to Lender (which
representations and warranties, together with any other representations and
warranties of Borrower contained elsewhere in this Agreement, shall be deemed to
be renewed as of the date of each Loan hereunder) as set forth below:
3.1 Corporate Existence and Qualification. Each Credit Party
is duly organized and incorporated, validly existing and in good standing under
the laws of the jurisdiction of its organization or incorporation and is duly
qualified to do business and is in good standing in each other jurisdiction
wherein the conduct of its business or the ownership of its property requires
such qualification, except where the failure to be so qualified has not had and
could reasonably be expected to have a Material Adverse Effect.
3.2 Corporate Authority; Validity and Binding Effect. Each
Credit Party has the power to make, deliver and perform under the Loan Documents
executed by it and has taken all necessary and appropriate corporate action to
authorize the execution, delivery and performance of such Loan Documents. This
Agreement constitutes, and the remainder of such Loan Documents, when executed
and delivered for value received, will constitute, the valid obligations of each
Credit Party which is a party thereto, legally binding upon it and enforceable
against it in accordance with their respective terms.
3.3 Incumbency and Authority of Signing Officer. The
undersigned officer of Borrower holds the office specified hereinbelow and, in
such capacity, is duly authorized and empowered to execute, attest and deliver
this Agreement and the remainder of the Loan Documents for and on behalf of
Borrower, and to bind Borrower accordingly thereby.
3.4 No Material Litigation. Except as may be set forth on
Schedule 3.4, there are no legal proceedings pending (or, so far as Borrower
knows, threatened), before any court or administrative agency which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
3.5 Taxes. Each Credit Party has filed or caused to be filed
all tax returns required to be filed by it and has paid all taxes shown to be
due and payable by it on said returns or on any assessments made against it.
3.6 Capital Stock . All capital stock, debentures, bonds,
notes and all other securities of each Credit Party presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "blue sky" laws of all applicable
states and the federal securities laws.
3.7 Corporate Organization. The charter and bylaws of each
Credit Party are in full force and effect under the law of the jurisdiction of
its incorporation and all amendments to said articles of incorporation and
bylaws have been duly and properly made under and in accordance with all
applicable laws.
3.8 Insolvency. After giving effect to the execution and
delivery of the Loan Documents, the consummation of the Acquisition, and the
making of each Loan, no Credit Party will be "insolvent", within the meaning of
such term as used in O.C.G.A. ss. 18-2-22 or as defined in Section 101(32) of
the Bankruptcy Code, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital.
3.9 Title. Each Credit Party has good and marketable title to
all of its properties subject to no Lien of any kind except for the Permitted
Encumbrances.
3.10 Margin Stock. No Credit Party is engaged principally, or
as one of its important activities, in the business of purchasing or carrying
any "margin stock", as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System, and no part of the proceeds of any Loan
made pursuant hereto will be used to purchase or carry any such margin stock or
to extend credit to others for the purpose of purchasing or carrying any such
margin stock, or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation U or X of said Board of
Governors. In connection herewith, if requested by Lender, Borrower will furnish
to Lender a statement in conformity with the requirements of Federal Reserve
Form U-1 referred to in said Regulation U to the foregoing effect.
3.11 No Violations. The execution, delivery and performance by
each Credit Party of the Loan Documents executed by it have been duly authorized
by all necessary corporate or other action on its part and do not and will not
require any consent or approval of the shareholder(s) of such Credit Party,
violate any provision of any law, rule, regulation (including, without
limitation, Regulation U or X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to any Credit Party or of the charter
or bylaws of any Credit Party, or result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which any Credit Party is a party or by which it or its properties
may be bound or affected; and no Credit Party is in default under any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement, lease or instrument except to the extent
such default has not had and could not reasonably be expected to have a Material
Adverse Effect.
3.12 Financial Statements. The audited financial statements of
Borrower and its Consolidated Subsidiaries for its most recent Fiscal Year
ending prior to the date of this Agreement together with the unaudited financial
statements of Borrower and its Consolidated Subsidiaries for its most recent
Fiscal Quarter ending prior to the date of this Agreement for which statements
have been prepared, copies of which heretofore have been furnished to Lender,
are complete and accurately and fairly represent the financial condition of
Borrower and its Consolidated Subsidiaries, the results of its operations and
the transactions in its equity accounts as of the dates and for the periods
referred to therein, and have been prepared in accordance with GAAP. There are
no material liabilities, direct or indirect, fixed or contingent, of Borrower or
any such Consolidated Subsidiaries as of the date of such financial statements
which are not reflected therein or in the notes thereto. No Material Adverse
Effect has occurred since the date of the balance sheet contained in the
Borrower's annual audited financial statements described hereinabove.
3.13 Pollution and Environmental Control. Each Credit Party
has obtained all permits, licenses and other authorizations which are required
under, and is in material compliance with, all Environmental Laws.
3.14 Possession of Permits. Each Credit Party possesses all
material franchises, certificates, licenses, permits and other authorizations
from governmental political subdivisions or regulatory authorities, and all
material patents, trademarks, service marks, trade names, copyrights, licenses
and other rights, free from burdensome restrictions, that are necessary for the
ownership, maintenance and operation of any of its properties and assets, and no
Credit Party is violation in any material respect of any of the foregoing.
3.15 Subsidiaries. As of the Closing Date, Borrower has no
Subsidiaries except as described on Schedule 3.15.
3.16 Employee Benefit Plans. As of the Closing Date,
no Credit Party has any Employee
Benefit Plans except as described on Schedule 3.16.
3.17 Year 2000 Plan. Borrower has developed and has delivered
to Lender a comprehensive plan (the "Y2K Plan") for insuring that the Borrower's
and its Subsidiaries' software and hardware systems which impact or affect in
any way the business operations of the Borrower and its Subsidiaries will be
Year 2000 Compliant and Ready. Borrower and its Subsidiaries have met the Y2K
Plan's milestones such that all hardware and software systems will be Year 2000
Compliant and Ready in accordance with the Y2K Plan.
3.18 Reaffirmation; Effect of the Acquisition. Each request
for a Loan made by Borrower shall constitute an automatic representation and
warranty by Borrower to Lender that as of the date of such Loan and after giving
effect thereto there does not exist any Default or Event of Default and all
representations and warranties of the Credit Parties in the Loan Documents
(other than those representations or warranties which are, by their terms,
limited to a specific date) are true and correct in all material respects.
Without limiting the generality of the foregoing, all of the representations and
warranties of the Credit Parties in the Loan Documents (other than those which
are, by their terms, limited to a specific date) will be true and correct in all
material respects as of and after giving effect to the consummation of each of
the Tender Offer and the Merger and the making of any Loan in connection
therewith.
4. AFFIRMATIVE COVENANTS Borrower covenants to Lender that from and
after the date hereof, and so long as any amount remain unpaid on account of any
of the Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower will comply (and cause each Subsidiary of Borrower to comply)
with the affirmative covenants set forth below:
4.1 Right to Inspect. Lender (or any person or persons
designated by it) shall, in its sole discretion, have the right to call at any
place of business of any Credit Party at any reasonable time and without prior
notice, and, without hindrance or delay, inspect, audit, check and make extracts
from such Credit Party's books, records, journals, orders, receipts and any
correspondence and other data relating to such Credit Party's business or to any
other transactions between the parties hereto.
4.2 Financial and Other Reporting.
4.2.1....Borrower's Quarterly Statement. Borrower
shall, as soon as practicable, and
in any event within forty-five (45) days after the end of each Fiscal Quarter,
furnish to Lender unaudited financial statements of Borrower and its
Consolidated Subsidiaries, including balance sheets, income statements and
statements of cash flow, for the Fiscal Quarter ended, and for the Fiscal Year
to date, on a consolidated and, if requested by Lender, consolidating basis, all
prepared in accordance with GAAP (subject to year-end adjustments) and certified
as to truth and accuracy by the Chief Financial Officer of Borrower.
4.2.2....Borrower's Annual Statement.
Borrower shall, as soon as practicable, and in any event within one hundred
twenty (120) days after the end of each Fiscal Year, furnish to Lender the
annual audit report of Borrower, certified without qualification by independent
certified accountants selected by Borrower and acceptable to Lender, and
prepared in accordance with GAAP, together with relevant financial statements of
Borrower for the Fiscal Year then ended, on a consolidating and a consolidated
basis, if available. Borrower shall cause said accountants to furnish Lender
with a statement that in making their examination of such financial statements,
they obtained no knowledge of any Event of Default or Default Condition which
pertains to accounting matters relating to this Agreement or the Notes, or, in
lieu thereof, a statement specifying the nature and period of existence of any
such Event of Default or Default Condition disclosed by their examination.
4.2.3....Management Letters, Etc..
Borrower shall, within five (5) Business Days after its receipt thereof, provide
Lender with copies of all management letters, exception reports or other similar
letters or reports received by Borrower from its independent certified public
accountants.
4.2.4....SEC Filings and Press Releases.
Borrower shall, promptly upon their becoming available, provide Lender with
copies of (i) all financial statements, reports, notices and proxy statements
made publicly available by Borrower to its security holders, (ii) all regular
and periodic reports and all registration statements and prospectuses (if any)
filed by Borrower with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, and
(iii) all press releases and other statements made available by Borrower to the
public concerning material changes or developments in the business of Borrower
or any of its Subsidiaries.
4.2.5....Default Notices.
Borrower shall, as soon as practical and in any event within five (5) Business
Days after Borrower acquires knowledge of the existence of any Default Condition
or Event of Default or any other event which has had or could reasonably be
expected to have a Material Adverse Effect, provide Lender with telephonic or
telecopy notice of such Default Condition, Event of Default or any other event,
including the anticipated effect thereof, which notice, if given telephonically,
shall be promptly confirmed in writing on the next Business Day.
4.2.6....Certificate of No Default.
Borrower shall, on a quarterly basis not later than forty-five (45) days after
the close of each of its Fiscal Quarters and not later than one hundred twenty
(120) days after the close of its Fiscal Year, certify to Lender, in a statement
executed by the chief financial officer of Borrower in the form of Exhibit F
attached hereto, that no Event of Default and no Default Condition exists or has
occurred, or, if an Event of Default or Default Condition exists or has
occurred, specifying the nature and period of existence thereof. Such
certificate shall include a statement of the Chief Financial Officer of Borrower
to the effect that nothing has come to Borrower's attention to cause it to
believe that the Y2K Plan milestones have not been met in a manner such that the
Borrower's and its Subsidiaries' hardware and software systems will not be Year
2000 Compliant and Ready in accordance with the Y2K Plan. Such certificate shall
also set forth, in reasonable detail, compliance with all financial covenants
set forth in Article 6 for the immediately preceding Fiscal Quarter, as
applicable.
4.2.7....Certain Required Notices.
Promptly, upon its receipt of notice or knowledge thereof, Borrower will report
to Lender: (i) any lawsuit or administrative proceeding in which any Credit
Party is a defendant in which the amount or amounts in controversy exceed
$250,000; (ii) any deviations from the Y2K Plan which would cause compliance
with the Y2K Plan to be delayed or not achieved, a statement of the Chief
Financial Officer of Borrower setting forth the details thereof and the action
which the Credit Parties are taking or propose to take with respect thereto; or
(iii) any third party assessments of the Credit Parties' Y2K Plan together with
any recommendations made by such third party with respect to the Credit Parties'
Y2K Plan and Borrower's ability to be Year 2000 Compliant and Ready.
4.2.8....Other Documents or Information.
Borrower shall provide Lender with such other financial and other information
respecting Borrower or any of its Subsidiaries as the Lender may from time to
time reasonably request.
4.3 Payment of Taxes. Each Credit Party shall pay and
discharge all taxes, assessments and governmental charges upon it, its income
and its properties prior to the date on which penalties attach thereto, unless
and to the extent only that (x) such taxes, assessments and governmental charges
are being contested in good faith and by appropriate proceedings by such Credit
Party, (y) such Credit Party maintains reasonable reserves on its books therefor
and (z) the non-payment of such taxes does not result in a Lien other than a
Permitted Encumbrance.
4.4 Maintenance of Insurance. Each Credit Party shall maintain
insurance with responsible insurance companies on such of its properties, in
such amounts and against such risks as is customarily maintained by similar
businesses operating in the same vicinity, but in any event to include business
interruption, freight, loss, damage, flood, windstorm, fire, theft, extended
coverage and product liability insurance in amounts satisfactory to Lender.
Borrower shall file with Lender upon its request a detailed list of such
insurance then in effect stating the names of the insurance companies, the
amounts and rate of insurance, the date of expiration thereof, the properties
and risks covered thereby and the insured with respect thereto and a copy of
each such insurance policy.
4.5 Maintenance of Property. Each Credit Party shall maintain
its property in good working condition.
4.6 Preservation of Corporate Existence. Each Credit Party
shall preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, and qualify and remain
qualified as a foreign corporation in each jurisdiction in which such
qualification is necessary or desirable in view of its business and operations
or the ownership of its properties, except where the failure to be so qualified
has not had and could not reasonably be expected to have a Material Adverse
Effect.
4.7 Compliance With Laws. Each Credit Party shall comply with
the requirements of all applicable laws, rules, regulations and orders of any
governmental authority, noncompliance with which would or could reasonably be
expected to have a Material Adverse Effect. Without limiting the foregoing, each
Credit Party shall obtain and maintain all permits, licenses and other
authorizations which are required under, and otherwise comply with, all federal,
state, and local laws and regulations, except where the failure to obtain or
maintain the same has not had and could not reasonably be expected to have a
Material Adverse Effect.
4.8 Year 2000 Plan. Each Credit Party will take all required
actions to meet each Y2K Plan milestone applicable to such that all of its
computer hardware and software systems will be Year 2000 Compliant and Ready in
accordance with the Y2K Plan.
4.9 Additional Loan Documents. (a) Borrower shall deliver or
cause to be delivered promptly (and in any event within five (5) Business Days
of the Closing Date) the following documents (each in form and substance
satisfactory to Lender): (i) a Guaranty executed in favor of Lender by Delta
Diagnostics, Inc., a company organized under the laws of the U.S. Virgin
Islands, (ii) a Stock Pledge Agreement executed in favor of Lender by Borrower
covering 66% of the shares of Immucor GmbH, a company organized under the laws
of Germany, and (iii) closing documents from the Borrower and Delta Diagnostics,
Inc. of the types described in Sections 10.1.4, 10.1.5 and 10.1.6 of this
Agreement.
(b) Borrower also shall deliver or cause to be delivered
promptly (and in any event within ten (10) Business Days after the consummation
of the Merger) the following documents (each in form and substance satisfactory
to Lender): (i) a Stock Pledge Agreement executed by Gamma in favor of Lender
covering 66% of the shares of Gamma Biologicals, B.V., a company organized under
the laws of the Netherlands and (ii) closing documents from Gamma of the types
described in Sections 10.1.4, 10.1.5 and 10.1.6 of this Agreement.
5. NEGATIVE COVENANTS Borrower covenants to Lender that from and after
the date hereof and so long as any amount remains unpaid on account of any of
the Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower will not do (and will not permit any Subsidiary of Borrower to
do), without the prior written consent of Lender, any of the things or acts set
forth below:
5.1 Liens. No Credit Party shall create, assume, or suffer to
exist any Lien on its property, except for (i) Permitted Encumbrances and (ii)
any other Liens on (x) any shares of Borrower's common stock repurchased,
redeemed or otherwise acquired by it prior to the date hereof or pursuant to
Section 5.5 hereof or (y) any shares of Gamma if and for so long as such shares
constitute "margin stock" as that term is defined in Regulation U of the Board
of Governors of the Federal Reserve System. Without limiting the generality of
the foregoing, Borrower shall not create, assume or suffer to exist any Lien on
any certificated or uncertificated shares, general or limited partnership
interests, limited liability company interests, quotas or other equivalents
(regardless of how designated) of or in any Excluded Subsidiary.
5.2 Debt. No Credit Party shall incur, assume, or suffer to
exist any Debt, except for: (i) Debt to Lender or any Affiliate of Lender; (ii)
Debt to Persons other than Lender existing on the date of this Agreement and
described on Schedule 5.2; (iii) trade payables and contractual obligations to
suppliers and customers incurred in the ordinary course of business of such
Credit Party; (iv) accrued pension fund and other employee benefit plan
obligations and liabilities (provided, however, that such Debt does not result
in the existence of any Event of Default or Default Condition under any other
provision of this Agreement); (v) deferred taxes; (vi) Debt resulting from
endorsements of negotiable instruments received in the ordinary course of its
business; (vii) Debt secured by Purchase Money Liens not to exceed $750,000
aggregate outstanding principal amount at any one time; and (viii) all other
Debt not to exceed $100,000 in aggregate outstanding principal amount at any one
time.
5.3 Contingent Liabilities. No Credit Party shall guarantee,
endorse, become surety with respect to or otherwise become directly or
contingently liable for or in connection with the obligations of any other
Person, except for (i) endorsements of negotiable instruments for collection in
the ordinary course of business and (ii) Guaranteed Obligations incurred by any
Credit Party with respect to the Debt of another Credit Party so long as such
Debt is otherwise permitted hereunder.
5.4 Dividends. Borrower shall not declare or pay any dividends
on, or make any distribution with respect to, its shares of any class of capital
stock, except as permitted by Section 5.5.
5.5 Redemptions. Borrower shall not purchase, redeem, or
otherwise acquire for value any of its shares of any class of its capital stock,
except that Borrower may repurchase on or after the date of this Agreement up to
a total of 985,600 shares of its common stock in accordance with the repurchase
programs announced by Borrower on June 2, 1997 and August 26, 1998 provided that
no Default or Event of Default exists at the time of or is caused by any such
repurchase.
5.6 Restricted Investments. No Credit Party shall make any
Restricted Investment except the following: (i) investments in direct
obligations of the United States of America, or any agency thereof or
obligations guaranteed by the United States of America, provided that such
obligations mature within one year from the date of acquisition thereof; (ii)
investments in time deposits, demand deposits and certificates of deposit
maturing within one year from the date of acquisition issued by a bank or trust
company organized under the laws of the United States or any state thereof
having capital surplus and undivided profits aggregating at least $500,000,000;
(iii) investments in commercial paper given the highest rating by a national
credit rating agency and maturing not more than two hundred seventy (270) days
from the date of creation thereof; (iv) the repurchase of the distribution
rights of Borrower's Canadian and Belgian distributors; (v) repurchases of
Borrower's common stock to the extent permitted under Section 5.5 hereof; (vi)
the Acquisition; provided, however, that: (w) the Gamma Acquisition Subsidiary
shall acquire not less than sixty-seven percent (67%) of the capital stock of
all classes of Gamma on a fully diluted basis upon the consummation of the
Tender Offer on the Closing Date; (x) Borrower shall use its best efforts to
cause the Merger to be consummated subject to the fulfillment of the conditions
contained in the Acquisition Documents (and for Gamma to become a wholly-owned
Subsidiary of Borrower) as soon as possible after the Closing Date; (y) in any
event the Merger shall be consummated (and Gamma shall become a wholly-owned
Subsidiary of Borrower) on or before the Acquisition Term Loan Commitment
Termination Date; and (z) promptly (and in any event within five (5) Business
Days) after the consummation of the Merger, Borrower shall cause Gamma (as the
surviving corporation from the Merger) to execute a Guaranty in favor of Lender,
which Guaranty shall supersede and replace the Guaranty executed by the Gamma
Acquisition Subsidiary on the Closing Date and shall be accompanied by closing
documents and an opinion of counsel for Gamma of the types described in Section
10.1.4, 10.1.5, 10.1.6 and 10.1.8 (each in form and substance satisfactory to
Lender; and (vii) any capital contribution, loan or advance, or transfer of any
asset, to any Excluded Subsidiary to the extent permitted by Section 5.13 of
this Agreement.
5.7 Mergers. No Credit Party shall dissolve or otherwise
terminate its corporate status or enter into any merger, reorganization or
consolidation or make any substantial change in the basic type of business
conducted by Borrower and Gamma, as of the Closing Date, except that (i) Gamma
may merge with the Gamma Acquisition Subsidiary pursuant to the Acquisition
Documents and Section 5.6 hereof, (ii) any Subsidiary of Borrower may be merged
with and into Borrower so long as Borrower is the surviving corporation
therefrom and (iii) any Subsidiary of Borrower may merge with another
wholly-owned Subsidiary of Borrower (other than any Excluded Subsidiary)
(provided that if any such Subsidiary is a Guarantor, the surviving entity from
such merger shall also be a Guarantor).
5.8 Affiliate Transactions. No Credit Party shall enter into,
or be a party to, any transaction with any Affiliate, except in the ordinary
course of and pursuant to the reasonable requirements of such Credit Party's
business and upon fair and reasonable terms which are no less favorable to such
Credit Party than would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
5.9 Subsidiaries. Subject to the provisions of Section 2.2.5
hereof, no Credit Party shall create any Subsidiary or divest itself of any
material assets by transferring them to any Subsidiary, except that (i) the
Gamma Acquisition Subsidiary may merge with Gamma pursuant to the Merger and in
accordance with Section 5.6 hereof, (ii) any Subsidiary may transfer any of its
assets to Borrower or another Subsidiary of Borrower which is a Guarantor, and
(iii) subject to the limitations set forth in Section 5.13 hereof, any Foreign
Subsidiary may transfer any of its assets to any other Foreign Subsidiary.
5.10 Fiscal Year. No Credit Party shall change its Fiscal
Year, or permit any Subsidiary to have a fiscal year different from the Fiscal
Year of Borrower.
5.11 Disposition of Assets. Subject to the provisions of
Section 2.2.5 hereof, no Credit Party shall sell, lease or otherwise dispose of
any of its properties, including any disposition of property as part of a sale
and leaseback transaction, to or in favor of any Person, except (i) sales of
inventory or obsolete or unnecessary equipment in the ordinary course of such
Credit Party's business or (ii) dispositions otherwise expressly permitted by
this Agreement.
5.12 Employee Benefit Plans. No Credit Party shall permit an
Employee Benefit Plan to become materially underfunded or create any Employee
Benefit Plan without prior written notice to Lender and upon such notification,
this Agreement shall be amended as determined necessary by Lender in its
discretion as a result of the creation of such Plan.
5.13 Excluded Subsidiaries. No Credit Party shall make any
capital contribution, loan or advance, or transfer any assets, to the Portuguese
Subsidiary in an aggregate amount in excess of US$500,000.00 in any Fiscal Year.
No Credit Party shall make any capital contribution, loan or advance, or
transfer any assets, to the Spanish Subsidiary in an aggregate amount in excess
of US$500,000.00 in any Fiscal Year. No Credit Party shall make any capital
contribution, loan or advance, or transfer any assets, to the Italian Subsidiary
in an aggregate amount in excess of US$500,000.00 in any Fiscal Year.
6. FINANCIAL COVENANTS Borrower covenants to Lender that, from and
after the date hereof and so long as any amount remains unpaid on account of any
of the Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower shall not breach or fail to comply with any of the following
financial covenants with respect to any Fiscal Quarter, each of which shall be
calculated on a consolidated basis in accordance with GAAP consistently applied:
6.1 Fixed Charge Coverage Ratio. Borrower shall have for each
Fiscal Quarter ending on or after February 28, 1999, a Fixed Charge Coverage
Ratio of not less than 1.25 to 1.0.
6.2 Funded Debt/EBITDA Ratio . Borrower shall have for each
Fiscal Quarter ending on February 28, 1999 or May 31, 1999, a Funded Debt/EBITDA
Ratio of not more than 3.5 to 1.0, and Borrower shall have for each Fiscal
Quarter ending in each Fiscal Year set forth below a Funded Debt/EBITDA Ratio of
not more than that set forth below for such period:
Maximum Funded Debt/EBITDA Ratio:
Fiscal Year Ending:
May 31, 2000 3.0 to 1.0
May 31, 2001 2.5 to 1.0
May 31, 2002
or thereafter 2.5 to 1.0
6.3 Leverage Ratio. Borrower shall have at the end of each
Fiscal Quarter ending on February 28, 1999 or May 31, 1999, a Leverage Ratio
(expressed as a percentage) of not more than 55%, and Borrower shall have for
each Fiscal Quarter ending in each Fiscal Year set forth below a Leverage Ratio
(expressed as a percentage) of not more than that set forth below for such
period:
Fiscal Year Ending Maximum Leverage Ratio
May 31, 2000 50%
May 31, 2001 45%
May 31, 2002 40%
or thereafter
6.4 Liquidity Ratio. Borrower shall maintain at the
end of each Fiscal Quarter ending on
or after February 28, 1999, a Liquidity Ratio of not less than 2.0 to 1.0
7. EVENTS OF DEFAULT The occurrence of any events or conditions set
forth below shall constitute an Event of Default hereunder, provided that any
requirement for the giving of notice or the lapse of time, or both, has been
satisfied:
7.1 Obligations. Borrower shall fail to make any
payments on any of its Obligations when due.
7.2 Misrepresentations. Any Credit Party shall make any
representations or warranties in any of the Loan Documents or in any certificate
or statement furnished to Lender at any time hereunder or in connection with any
of the Loan Documents which proves to have been untrue or misleading in any
material respect when made or furnished.
7.3 Certain Covenants. Any Credit Party shall default in the
observance or performance of any covenant or agreement contained in Section 4.1,
4.2, 4.6 or 4.9 or in Article 5 or 6 hereof.
7.4 Other Covenants. Any Credit Party shall default in the
observance or performance of any covenant or agreement contained herein, in any
of the other Loan Documents (other than a default the performance or observance
of which is dealt with specifically elsewhere in this Article 7) unless (i) with
respect to this Agreement, such default is cured to Lender's satisfaction within
thirty (30) days after the sooner to occur of receipt of notice of such default
from Lender or the date on which such default first becomes known to Borrower
and (ii) with respect to any other Loan Document, such default is cured within
any applicable grace, cure or notice and cure period contained therein.
7.5 Other Debts. Any Credit Party shall default in connection
with any agreement for Debt with any creditor other than Lender in excess of
$100,000 which entitles said creditor to accelerate the maturity thereof.
7.6 Voluntary Bankruptcy. Any Credit Party shall file a
voluntary petition in bankruptcy or a voluntary petition or answer seeking
liquidation, reorganization, arrangement, readjustment of its debts, or for any
other relief under the Bankruptcy code, or under any other act or law pertaining
to insolvency or debtor relief, whether state, Federal, or foreign, now or
hereafter existing; any Credit Party shall enter into any agreement indicating
its consent to, approval of, or acquiescence in, any such petition or
proceeding; any Credit Party shall apply for or permit the appointment by
consent or acquiescence of a receiver, custodian or trustee of such Credit Party
or for a substantial part of its property; any Credit Party shall make an
assignment for the benefit of creditors; or any Credit Party shall be unable or
shall fail to pay its debts generally as such debts become due, or any Credit
Party shall admit, in writing, its inability or failure to pay its debts
generally as such debts become due.
7.7 Involuntary Bankruptcy. There shall have been filed
against any Credit Party an involuntary petition in bankruptcy or seeking
liquidation, reorganization, arrangement, readjustment of its debts or for any
other relief under the Bankruptcy Code, or under any other act or law pertaining
to insolvency or debtor relief, whether state, federal or foreign, now or
hereafter existing and such petition shall remain undismissed or unstayed for 60
days or more or an order for the relief sought by such petition shall have been
entered; any Credit Party shall suffer or permit the involuntary appointment of
a receiver, custodian or trustee of such Credit Party or for all or a
substantial part of its property; or any Credit Party shall suffer or permit the
issuance of a writ or warrant of attachment, execution or similar process
against all or any substantial part of the property of such Credit Party.
7.8 Judgments. A final judgment or order for the payment of
money is rendered against any Credit Party in the amount of $250,000 or more
(exclusive of amounts covered by insurance) and either (x) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (y) a stay of enforcement of such judgment or order, by reason of
pending appeal or otherwise, shall not be in effect for any period of thirty
(30) consecutive days.
7.9 Material Adverse Effect. There shall be any
event, act, condition or occurrence
having a Material Adverse Effect.
7.10 Change of Control. Either (a) any person or group of
persons (within the meaning of the Securities Exchange Act of 1934, as amended)
shall have acquired after the date hereof beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended) of twenty percent (20%)
or more of the issued and outstanding shares of capital stock of Borrower having
the right to vote for the election of directors of Borrower under ordinary
circumstances, or (b) during any period of 12 consecutive calendar months ending
after the date hereof, individuals who at the beginning of such period
constituted the board of directors of Borrower (together with any new directors
whose election to the board of directors of Borrower or whose nomination for
such election by the stockholders of the Borrower was approved by a vote of at
least 2/3rd of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason other than death or disability to
constitute a majority of the directors of Borrower then in office.
7.11 Change in Management. Two or more of the Principal
Officers shall die, become incapacitated or otherwise cease to be actively
involved in the day-to-day executive management of Borrower.
8. REMEDIES. Upon the occurrence of any Default Condition or Event of
Default, Lender's obligation to extend financing under the Line of Credit and to
disburse any then undisbursed portion of the Acquisition Term Loans or the
Additional Term Loans shall immediately cease; provided, however, that if such
obligation has ceased due to the occurrence of a Default Condition, and such
Default Condition does not become an Event of Default due to its having been
cured or waived before it has matured into an Event of Default, then such
obligation shall be reinstated as of the date such Default Condition is so cured
or waived. Upon the occurrence or existence of any Event of Default, or any time
thereafter, without prejudice to the rights of Lender to enforce its claims
against Borrower for damages for failure by Borrower to fulfill any of its
obligations hereunder, subject only to prior receipt by Lender of payment in
full of all Obligations then outstanding in a form acceptable to Lender, Lender
shall have all of the rights and remedies set forth in Sections 8.1, 8.2, 8.3
and 8.4 below, and it may exercise any one, more, or all of such remedies, in
its sole discretion, without thereby waiving any of the others.
8.1 Acceleration of the Obligations. Lender, at its option,
may declare all of the Obligations (including but not limited to that portion
thereof evidenced by any one or more of the Notes) to be immediately due and
payable, whereupon the same shall become immediately due and payable without
presentment, demand, protest, notice of nonpayment or any other notice required
by law relative thereto, all of which are hereby expressly waived by Borrower,
anything contained herein to the contrary notwithstanding.
8.2 Default Rate. If Lender so elects, by further written
notice to Borrower, Lender may increase the rate of interest charged on any or
all of the Obligations then outstanding for so long thereafter as Lender further
shall elect to a rate not to exceed the Default Rate.
8.3 Other Remedies. Unless and except to the extent expressly
provided for to the contrary herein, the rights of Lender specified herein shall
be in addition to, and not in limitation of, Lender's rights under the UCC, as
amended from time to time, or any other statute or rule of law or equity, or
under any other provision of any of the Loan Documents, or under the provisions
of any other document, instrument or other writing executed by Borrower or any
third party in favor of Lender, all of which may be exercised successively or
concurrently.
8.4 Set Off. To the extent not prohibited by law, Borrower
hereby grants to Lender a security interest in and security title to and hereby
assigns, pledges, transfers and conveys to Lender any balance or deposit
accounts of the Borrower with the Lender, whether such accounts be general or
special, or individual or multiple party, and upon all drafts, notes or other
items deposited for collection or presented for payment by Borrower with Lender,
exclusive of any such property in the possession or control of Lender as a
fiduciary other than as agent, and Lender may at any time during the existence
of any Event of Default, without demand or notice, appropriate and apply any of
such to the payment to any of the Obligations, whether or not then due.
9. MISCELLANEOUS
9.1 Waiver. Each and every right granted to Lender under this
Agreement, or any of the other Loan Documents, or any other document delivered
hereunder or in connection herewith or allowed it by law or in equity, shall be
cumulative and may be exercised from time to time. No failure on the part of
Lender to exercise, and no delay in exercising, any right shall operate as a
waiver thereof, nor shall any single or partial exercise by Lender of any right
preclude any other or future exercise thereof or the exercise of any other
right. No waiver by Lender of any Default Condition or Event of Default shall
constitute a waiver of any subsequent Default Condition or Event of Default.
9.2 Governing Law. THIS AGREEMENT, THE NOTES AND THE OTHER
LOAN DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
9.3 Survival. All representations, warranties and covenants
made herein and in the Loan Documents shall survive the execution and delivery
hereof and thereof. The terms and provisions of this Agreement shall continue in
full force and effect, notwithstanding the payment of one or more of the Notes
or the termination of the Line of Credit, until all of the Obligations have been
paid in full and Lender is no longer obligated to make any Loans hereunder, but
Borrower's obligations under Sections 2.2.3, 9.6 and 9.20 hereof shall survive
any termination of this Agreement..
9.4 No Assignment by Borrower. No assignment hereof or of any
Loan Document shall be made by Borrower without the prior written consent of
Lender. Lender may assign, or sell participants in, its rights, title and
interest herein and in the Loan Documents at any time hereafter without notice
to or consent of Borrower.
9.5 Counterparts. This Agreement may be executed in two or
more counterparts, each of which when fully executed shall be an original, and
all of said counterparts taken together shall be deemed to constitute one and
the same agreement.
9.6 Reimbursement. Borrower shall pay to Lender on demand all
out-of-pocket costs, taxes (other than taxes based on income) and expenses that
Lender pays or actually incurs in connection with the negotiation, preparation,
consummation, modification, administration, restructuring, enforcement or
termination of this Agreement and the other Loan Documents, including, without
limitation: (a) attorneys' fees and paralegals' fees and disbursements of
outside counsel; (b) costs and expenses (including outside attorneys' and
paralegals' fees and disbursements) for the initial preparation and closing of
the Loan Documents, or any amendment, supplement, waiver, consent or subsequent
closing in connection with the Loan Documents and the transactions contemplated
thereby; (c) sums paid or incurred to pay for any amount or to take any action
required of Borrower under the Loan Documents that Borrower fails to pay or
take; (d) stamp, documentary, recording, property, ad valorem or other similar
taxes payable in respect to any of the Loan Documents, the Obligations or the
Collateral, and (e) after an Event of Default, costs and expenses (including
attorneys' and paralegals' fees and disbursements) paid or incurred to obtain
payment of the Obligations, enforce any Lien in the Collateral, sell or
otherwise realize upon any Collateral, and otherwise enforce the provisions of
the Loan Documents or to defend any claim made or threatened against Lender
arising out of the transactions contemplated hereby (including, without
limitation, preparations for and consultations concerning any such matters). The
foregoing shall not be construed to limit any other provisions of the Loan
Documents regarding costs and expenses to be paid to Borrower. All of the
foregoing costs and expenses may, in the discretion of Lender, be charged to the
Master Note. Borrower will pay all expenses incurred by it in the transaction.
In the event Borrower becomes a debtor under the Bankruptcy Code, Lender's
secured claim in such case shall include interest on the Obligations and all
fees, costs and charges provided for herein (including, without limitation,
attorneys' fees actually incurred), all to the extent allowed by the Bankruptcy
Code.
9.7 Successors and Assigns. This Agreement and Loan Documents
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto and thereto.
9.8 Severability. If any provision this Agreement or of any of
the Loan Documents or the application thereof to any party thereto or
circumstances shall be invalid or unenforceable to any extent, the remainder of
such Loan Documents and the application of such provisions to any other party
thereto or circumstance shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
9.9 Notices. All notices, requests and demands to or upon any
party hereto shall be deemed to have been given or made when personally
delivered or the third day after being deposited in the mail, registered or
certified mail, postage prepaid, addressed to it at its address set forth
beneath its signature below (or to such other address as may be designated by it
hereafter in writing) except in cases where it is expressly provided herein or
by applicable law that such notice, demand or request is not effective until
received by the party to whom it is addressed.
9.10 Entire Agreement; Amendments. This Agreement, together
with the remaining Loan Documents, constitute the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this Agreement
nor any Loan Document may be changed, waived, discharged, modified or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement is sought.
9.11 Time of Essence. Time is of the essence in
this Agreement and the other Loan Documents.
9.12 Interpretation. No provision of this Agreement or any
Loan Document shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured or dictated such
provision.
9.13 Lender Not a Joint Venturer. Neither this Agreement nor
any Loan Document shall in any respect be interpreted, deemed or construed as
making Lender a partner or joint venturer with any Credit Party or as creating
any similar relationship or entity, and Borrower agrees that it will not make
any contrary assertion, contention, claim or counterclaim in any action, suit or
other legal proceeding involving Lender and any Credit Party.
9.14 Jurisdiction. BORROWER AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY LOAN DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF GEORGIA OR THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION, ALL AS LENDER MAY ELECT. BY
EXECUTION OF THIS AGREEMENT, BORROWER HEREBY SUBMITS TO EACH SUCH JURISDICTION,
HEREBY EXPRESSLY WAIVING WHATEVER RIGHTS MAY CORRESPOND TO IT BY REASON OF ITS
PRESENT OR FUTURE DOMICILE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER
JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED OR REQUIRED BY LAW.
9.15 Acceptance. This Agreement, together with the other Loan
Documents, shall not become effective unless and until delivered to Lender at
its principal office in Atlanta, Xxxxxx County, Georgia and accepted in writing
by Lender at such office as evidenced by its execution hereof (notice of which
delivery and acceptance are hereby waived by Borrower).
9.16 Payment on Non-Business Days. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a Saturday,
Sunday or a public holiday under the laws of the State of Georgia, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest
hereunder or under the Notes.
9.17 Cure of Defaults by Lender. If, hereafter, any Credit
Party defaults in the performance of any duty or obligation to Lender hereunder
or under any Loan Document, Lender may, at its option, but without obligation,
cure such default and any costs, fees and expenses incurred by Lender in
connection therewith shall be deemed to be advances against the Master Note,
whether or not this creates an overadvance thereunder, and shall be payable in
accordance with its terms.
9.18 Recitals. All recitals contained herein are hereby
incorporated by reference into this Agreement and made part thereof.
9.19 Sole Benefit. The rights and benefits set forth in this
Agreement and the other Loan Documents are for the sole and exclusive benefit of
the parties hereto and thereto and may be relied upon only by them.
9.20 Indemnification. Borrower will hold Lender, its
respective directors, officers, employees, agents, Affiliates, successors and
assigns harmless from and indemnify Lender, its respective directors, officers,
employees, agents, Affiliates, successors and assigns against, all loss,
damages, costs and expenses (including, without limitation, attorney's fees,
costs and expenses) actually incurred by any of the foregoing, whether direct,
indirect or consequential, as a result of or arising from or relating to any
"Proceedings" (as defined below) by any Person, whether threatened or initiated,
asserting a claim for any legal or equitable remedy against any Person under any
statute, case or regulation, including, without limitation, any federal or state
securities laws or under any common law or equitable case or otherwise, arising
from or in connection with this Agreement, and any other of the transactions
contemplated by this Agreement, except to the extent such losses, damages, costs
or expenses are due to the willful misconduct or gross negligence of Lender. As
used herein, "Proceedings" shall mean actions, suits or proceedings before any
court, governmental or regulatory authority and shall include, particularly, but
without limitation, any actions concerning Environmental Laws. At the request of
Lender, Borrower will indemnify any Person to whom Lender transfers or sells all
or any portion of its interest in the Obligations or participations therein on
terms substantially similar to the terms set forth above. Lender shall not be
responsible or liable to any Person for consequential damages which may be
alleged as a result of this Agreement or any of the transactions contemplated
hereby. The obligations of Borrower under this Section shall survive the
termination of this Agreement and payment of the Obligations.
9.21 Jury Trial Waiver. EACH OF BORROWER AND LENDER HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO ANY OF THE LOAN DOCUMENTS OR THE OBLIGATIONS OR ANY COLLATERAL
THEREFOR.
10. CONDITIONS PRECEDENT
10.1 Conditions to Initial Loans.
Unless waived in writing by Lender at or prior to the execution and delivery of
this Agreement, the conditions set forth below shall constitute express
conditions precedent to any obligation of Lender hereunder to make the initial
Loan or Loans on the Closing Date:
10.1.1...Loan Documents.
Receipt by Lender of this Agreement, the Notes and the Stock Pledge Agreement
duly executed by Borrower together with the certificates evidencing the shares
pledged under the Stock Transfer Agreement and duly executed blank stock
transfer powers for the same and also together with the Guaranty duly executed
by the Gamma Acquisition Subsidiary.
10.1.2...Consummation of the Tender Offer.
Lender shall have received fully executed copies of the Acquisition Documents,
no amendment or waiver of or supplement to any of the material terms and
conditions of the Acquisition Documents shall have been made or permitted by
Borrower (except as may have been consented to in writing by Lender), the Tender
Offer shall have been consummated in accordance with the terms of the
Acquisition Documents and Section 5.6 hereof (but for the payment of the portion
of the cash purchase price for the Tender Offer payable upon the consummation of
the Tender Offer pursuant to the Acquisition Documents which is to be financed
with the proceeds of the Acquisition Term Loans), and the Lender shall have
received a certificate from the Borrower with respect to the consummation of the
Tender Offer in the form of Exhibit E attached hereto, duly completed and
executed on behalf of the Borrower and dated as of the Closing Date.
10.1.3...No Default. No Default Condition or Event
of Default shall exist at the time
----------
of and after giving effect to such Loan, and Borrower shall in all respects be
in compliance with all of the terms of the Loan Documents, as evidenced by its
delivery of a duly completed and executed certificate of no default to such
effect, which shall be substantially in the form of Exhibit F attached hereto.
10.1.4...Secretary's Certificate.
Receipt by Lender of a certificate dated as of the Closing Date from the
Secretary (or Assistant Secretary) of each of Borrower and the Gamma Acquisition
Subsidiary certifying to Lender that appropriate resolutions have been adopted
by the Board of Directors of such Credit Party incident hereto and that the
officers of such Credit Party whose signatures appear hereinbelow or on the
other Loan Documents, and on any and all other documents, instruments and
agreements executed on behalf of such Credit Party in connection herewith, are
duly authorized by the Board of Directors of such Credit Party for and on behalf
of such Credit Party to execute and deliver such Loan Documents and such other
documents, instruments and agreements, and to bind such Credit Party accordingly
thereby, all in form and substance substantially similar to those board
resolutions set forth and described on Exhibit G in the case of Borrower and
Exhibit H in the case of the Gamma Acquisition Subsidiary.
10.1.5...Good Standing Certificates.
Receipt by Lender of a certificate of good standing with respect to each of
Borrower and the Gamma Acquisition Subsidiary from the secretary of state of the
state of incorporation of such Credit Party, dated within 30 days of the date
hereof.
10.1.6...Articles/By-Laws.
Receipt by Lender of copies of the articles of incorporation and bylaws of each
of Borrower and the Gamma Acquisition Subsidiary as in effect on the Closing
Date, certified as to truth and accuracy by the Secretary or an Assistant
Secretary of such Credit Party.
10.1.7...Solvency Certificate .
Lender shall have received a Solvency Certificate, in the form of Exhibit I
attached hereto, dated as of the Closing Date and duly executed and completed by
the Chief Financial Officer of Borrower.
10.1.8...Opinion of Counsel.
Receipt by Lender of an opinion of counsel for Borrower and the Gamma
Acquisition Subsidiary in substantially the form of Exhibit J.
10.1.9...Telephone Instruction Letter.
Receipt by Lender of a telephone instruction letter, concerning requests for
advances under the Line of Credit, and in the form of Exhibit K attached hereto,
duly completed and executed by Borrower.
10.1.10 Disbursement Letter.
Receipt by Lender of a disbursements letter, concerning the use of the proceeds
of the initial Loan or Loans hereunder, and in the form of Exhibit L attached
hereto, duly completed and executed by Borrower.
10.1.11 Other.
Receipt by Lender of such other documents, certificates, instruments and
agreements as shall be required hereunder or provided for herein or as Lender or
Lender's counsel may require in connection herewith.
10.2 Conditions to Merger Loan. Unless waived in writing by
Lender, Lender shall not be obligated to advance the balance of the Acquisition
Term Loans to finance the consummation of Merger unless the Merger shall have
been consummated in accordance with the terms of the Acquisition Documents and
Section 5.6 hereof (but for the payment of the balance of the cash purchase
price for the Acquisition payable upon the consummation of the Merger pursuant
to the Acquisition Documents which is to be financed with the proceeds of the
Acquisition Term Loans) and the Lender shall have received a certificate from
the Borrower with respect to the consummation of the Merger in the form of
Exhibit M attached hereto, duly completed and executed on behalf of the Borrower
and dated as of the date of the consummation of the Merger.
10.3 Conditions to all Loans.
Unless waived in writing by Lender, Lender shall not be obligated to make any
Loan (whether on or after the Closing Date) if as of the date of such Loan or
after giving effect to the making of such Loan:
10.3.1 Representations and Warranties.
Any representation or warranty by any Credit Party contained herein or in any of
the other Loan Documents shall be untrue or incorrect in any material respect as
of such date, except to the extent that such representation or warranty
expressly relates to an earlier date; or
10.3.2 Material Adverse Effect.
Any event or circumstance having a Material
Adverse Effect shall have occurred since the date of this Agreement as
determined by the Lender; or
10.3.3 Default Condition or Event of Default.
Any Event of Default or Default Condition shall have occurred and be continuing
or would result after giving effect to such Loan; or
10.3.4 Actions or Proceedings.
Any action or proceeding shall have been instituted or pending before any court
or other governmental authority or, to the knowledge of the Borrower or the
Lender, threatened which seeks to prohibit, enjoin or restrict the consummation
of the Acquisition or any part thereof or which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; or
10.3.5 No Violation of Law.
The Loan to be made and the use of the proceeds thereof shall contravene,
violate or conflict with, or involve any Credit Party or the Lender in a
violation of, any law, rule, injunction, regulation, or order of any court of
law or other governmental authority.
Each request for a Loan by Borrower hereunder shall constitute
a representation and warranty by Borrower to Lender, as of the date of such
Loan, that all applicable conditions specified in this Article 10 have been
satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
---------------------------
Title: Asst. Vice President
------------------------------
Address:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Specialized Finance Group
IMMUCOR, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------
Title: President
------------------------------
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
