EXHIBIT 10.30
INTERCREDITOR AGREEMENT, dated as of December 22, 1997, among V.I.
TECHNOLOGIES, INC. (formerly known as Melville Biologics, Inc.), a Delaware
corporation (the "Company"), BAYER CORPORATION (formerly known as Miles, Inc.),
an Indiana corporation ("Bayer") and THE CHASE MANHATTAN BANK ("Chase").
WITNESSETH:
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WHEREAS, pursuant to the Credit Agreement, dated as of December 22, 1997
(the "Credit Agreement"), between the Company and Chase, Chase has agreed to
make a term loan (the "Chase Term Loan") in the principal amount of $10,750,000
to the Company subject to the terms and conditions set forth therein;
WHEREAS, pursuant to the Credit Agreement, the Company (and in the event
the Company forms or acquires any Subsidiaries (as hereinafter defined) after
the date hereof, each such Subsidiary) will grant Liens (as hereinafter defined)
on its assets to secure its obligations in respect of the Chase Term Loan;
WHEREAS, Bayer and the Company are parties to the First Amended and
Restated Agreement for Custom Processing, dated as of January 24, 1996
("Agreement for Custom Processing"), and to the Other Agreements, as defined in
Section 17 of the Agreement for Custom Processing, relative to processing and
fractionation of plasma and related matters;
WHEREAS, in conjunction with this Agreement, Bayer and the Company are
entering into the Modification Agreement, dated as of the date hereof (the
"Modification Agreement") between the Company and Bayer which, among other
things, amends said Agreement for Custom Processing so as, among other things,
to increase the intermediate product to be processed for Bayer and to extend the
term thereof;
WHEREAS, the proceeds of the Chase Term Loan will be used, in part, to
refinance a term loan made by PNC Bank to the Company (the "Existing PNC Loan"),
and the related Letter Agreement between the Company and PNC Bank is being
terminated;
WHEREAS, in connection with the refinancing of the Existing PNC Loan (i)
the Guaranty Agreement of Bayer in favor of PNC Bank, dated as of February 7,
1995 (the "Bayer Guaranty") in respect of the Existing PNC Loan, is being
terminated; (ii) the reimbursement obligations of the Company in respect of the
Bayer Guaranty under the Reimbursement and Security Agreement, dated February 7,
1995 (the "Reimbursement Agreement") are being terminated and (iii) the
Reimbursement Agreement and the Mortgage dated February 15, 1995 from the
Suffolk County Industrial Development Agency and the Company to Bayer (the "1995
Mortgage") are being amended to provide that the reimbursement obligations of
the Company in respect of the Bayer Guaranty will no longer be secured by the
Liens granted pursuant to the Reimbursement Agreement and the 1995 Mortgage;
WHEREAS, to accomplish said amendments, the Company and Bayer are entering
into the Security Agreement (as defined below) and an amendment to the 1995
Mortgage (as so amended, the "Bayer Mortgage"), and, after giving effect to such
amendments, only the obligations of the Company under the Agreement for Custom
Processing will be secured by liens on certain assets of the Company pursuant to
the Security Agreement and the Bayer Mortgage;
WHEREAS, it is a condition precedent to the obligation of Chase to make the
Chase Term Loan pursuant to the Credit Agreement that the parties shall have
entered into this Intercreditor Agreement, whereby Chase and Bayer will agree on
their relative priorities and rights (and the relative rights and priorities of
any other holder of Senior Obligations (as hereinafter defined)) relative to the
assets of the Company and its Subsidiaries, in the manner provided for herein;
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and for other good and valuable consideration, the receipt of and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions. Unless otherwise defined herein, terms which are defined
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in the Credit Agreement and used herein are so used as so defined and the
following terms shall have the following meanings:
"Agreement" means this Intercreditor Agreement, as the same may be
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amended, supplemented or otherwise modified from time to time.
"Agreement for Custom Processing" shall have the meaning given such
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term in the recitals to this Agreement.
"Bayer" shall have the meaning given such term in the recitals to this
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Agreement.
"Bayer Documents" shall mean the Custom Processing Agreement, the
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Security Agreement, the Bayer Mortgage ,the Bayer Lease and the Bayer Sublease.
"Bayer Fractionation Collateral" shall have the meaning given to the
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term "Collateral" in the Security Agreement.
"Bayer Guaranty" shall have the meaning given such term in the
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recitals to this Agreement.
"Bayer Mortgage" shall have the meaning given such term in the
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recitals to this Agreement.
"Chase" shall have the meaning given such term in the recitals to this
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Agreement.
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"Chase Term Loan" shall have the meaning given such term in the recitals to
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this Agreement.
"Company" shall have the meaning given such term in the recitals to this
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Agreement.
"Credit Agreement" shall have the meaning given such term in the recitals
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to this Agreement.
"Creditors" shall mean the collective reference to Bayer and the Senior
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Lenders.
"Custom Processing Agreement" means said Agreement for Custom Processing as
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amended by the Modification Agreement, as the same may be amended, modified or
supplemented from time to time.
"Existing PNC Loan" shall have the meaning given such term in the recitals
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to this Agreement.
"Hedge Agreements": as to any Person, all interest rate swaps, caps or
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collar agreements or similar arrangements entered into by such Person providing
for protection against fluctuations in interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Modification Agreement" shall have the meaning given such term in the
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recitals to this Agreement.
"Mortgaged Property" shall have the meaning given such term in the Senior
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Loan Mortgage.
"1995 Mortgage" shall have the meaning given such term in the recitals to
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this Agreement.
"Person" an individual, partnership, corporation, limited liability
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company, business trust, joint stock company, trust, unincorporated association,
joint venture, governmental authority or other entity of whatever nature.
"Proceeds" shall have the meaning given such term in the Uniform Commercial
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Code as in effect in the State of New York.
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"Reimbursement Agreement" shall have the meaning given such term in the
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recitals to this Agreement.
"Security Agreement" means the Security Agreement dated as of the date
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hereof between the Company and Bayer, securing the Senior Bayer Obligations.
"Senior Bayer Obligations" means, at any time, the obligations of the
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Company to Bayer pursuant to the Custom Processing Agreement.
"Senior Lenders": the collective reference to Chase and all other holders
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from time to time of Senior Obligations.
"Senior Loan Collateral" shall mean at any time all assets of the Company
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or any of its Subsidiaries, now owned or hereafter acquired, upon which a Lien
is purported to be created by any Senior Loan Document.
"Senior Loan Documents" means the collective reference to any and all
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documents or instruments that from time to time evidence the Senior Obligations
or secure or support payment or performance thereof, including, without
limitation, the Credit Agreement and all related documents and instruments.
"Senior Loan Mortgage" means the Mortgage and Security Agreement, dated as
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of December 22, 1997, made by the Suffolk County Industrial Development Agency
and the Company in favor of Chase.
"Senior Obligations" means, at any time, the collective reference to the
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unpaid principal of and interest on all obligations and liabilities (including,
without limitation, any such obligations and liabilities in respect of the
replacement, refinancing or renewal of any other Senior Obligations) of the
Company to the Senior Lenders (including, without limitation, interest accruing
at the then applicable rate provided in any Senior Loan Document after the
maturity of the subject Senior Obligations and interest accruing at the then
applicable rate provided in any Senior Loan Document after the maturity of the
subject Senior Obligations and interest accruing at the then applicable rate
provided in any Senior Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, the Senior Loan Documents, any Hedge Agreement or any other document
made, delivered or given in connection therewith or otherwise, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
reasonable fees and disbursements of counsel to the Senior Lenders that are
required to be paid by the Company pursuant to the terms of any Senior Loan
Document or this Agreement).
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"Subsidiary" as to the Company, a corporation, partnership, or other
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entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by the Company, but any Joint Venture (as defined in the Credit Agreement) of
the Company and its Subsidiaries shall not be a "Subsidiary" of the Company and
any other Person which enters into a Collaboration (as defined in the Credit
Agreement) with the Company or any of its Subsidiaries shall not, solely by
virtue of entering into such Collaboration, become a "Subsidiary" of the
Company.
"Transaction Documents" means the Senior Loan Documents and the Bayer
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Documents.
SECTION 2. INTERCREDITOR AGREEMENTS
2.1 Bayer Collateral. The parties agree that at all times Bayer shall
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have the senior security interest and lien position in the Bayer Fractionation
Collateral to the extent of the Senior Bayer Obligations. Chase hereby agrees,
regardless of time and order of recordation or the rules for determining
priority under the Uniform Commercial Code or any other law governing the
relative priorities of secured creditors, to subordinate any security interests
and lien position it may have at any time in the Bayer Fractionation Collateral
to the security interests and liens of Bayer therein, up to the Senior Bayer
Obligations, and Chase agrees to refrain from taking or filing any action,
judicial or otherwise, to enforce any rights or to pursue or to exercise any
remedies under the Senior Loan Documents in the Bayer Fractionation Collateral
while the Custom Processing Agreement is in effect and prior to payment in full
of the Senior Bayer Obligations.
2.2 Senior Loan Collateral. The parties agree that at all times the
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Senior Lenders shall have the senior security interest and lien position in the
Senior Loan Collateral (other than the Bayer Fractionation Collateral) to the
extent of the Senior Obligations. Bayer hereby agrees, regardless of time and
order of recordation or the rules for determining priority under the Uniform
Commercial Code or any other law governing the relative priorities of secured
creditors, to subordinate any security interests and lien position it may have
at any time in the Senior Loan Collateral (other than the Bayer Fractionation
Collateral) to the security interests and liens of the Senior Lenders therein,
up to the Senior Obligations, and Bayer agrees to refrain from taking or filing
any action, judicial or otherwise, to enforce any rights or to pursue or to
exercise any remedies under the Bayer Documents in the Senior Loan Collateral
(other than the Bayer Fractionation Collateral) while any Senior Loan Document
is in effect and prior to payment in full of the Senior Obligations. Such
exercise and enforcement shall include, without limitation, the rights, subject
to Section 2.3, to sell or otherwise dispose of the Mortgaged Property, to incur
expenses in connection with such sale or disposition and to exercise all the
rights and remedies of a secured lender under the Uniform Commercial Code of any
applicable jurisdiction. Bayer and the Company hereby agree that no Liens shall
be granted in favor of Bayer, except for the Liens granted pursuant to the Bayer
Mortgage and the Security Agreement, in each case as in effect on
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the date hereof. It is understood that the foregoing shall not prevent a Bayer
Takeover, as defined in the Custom Processing Agreement as in effect on the date
hereof.
2.3 Leases. The parties recognize and agree that at all times the Senior
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Lenders shall have the senior security interest and lien position in the
Mortgaged Property as contemplated by Section 2.2, and that the Bayer Mortgage
will be subordinate to the Senior Loan Mortgage. Chase agrees that, except as
otherwise provided hereunder and so long as Bayer is not in default in any
material respect of its obligations hereunder or under the Bayer Lease or the
Bayer Sublease, Chase will take no action to disturb Bayer's possession and
right of quiet enjoyment under the Lease or Sublease notwithstanding any taking
of possession or control by Chase of said premises, by foreclosure or otherwise,
pursuant to the Senior Loan Mortgage; and Chase will take no action to effect a
termination of the Lease or Sublease by any such foreclosure or by any judicial
sale, deed in lieu of foreclosure or any other such proceeding.
2.4 Agreements Regarding Collateral.
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(a) Each of the Creditors hereby agrees that the liens and security
interests granted to the Creditors under the Transaction Documents shall be
treated, as among the Creditors, as having the priorities set forth herein. Any
money, property or securities ("Proceeds") realized upon the sale, disposition
or other realization by either Creditor upon or in respect of all or any part of
the Bayer Fractionation Collateral or the Mortgaged Property, shall be applied
by such Creditor in the following order:
(1) First, to the payment in full of all costs and expenses
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(including, without limitation, attorneys' fees and disbursements) paid or
incurred by such Creditor in connection with the realization on the Bayer
Fractionation Collateral or the Mortgaged Property, as the case may be, or
the protection of its rights and interests therein;
(2) Second, in the case of any Proceeds realized upon the sale,
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disposition or other realization by such Creditor upon all or any part of
the Bayer Fractionation Collateral, to the payment in full of all Senior
Bayer Obligations and, in the case of any Proceeds realized upon the sale,
disposition or other realization by such Creditor upon all or any part of
the Mortgaged Property, to the payment in full of all Senior Obligations;
(3) Third, in the case of any Proceeds realized upon the sale,
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disposition or other realization by such Creditor upon all or any part of
the Bayer Fractionation Collateral, to the payment in full of all Senior
Obligations and, in the case of any Proceeds realized upon the sale,
disposition or other realization by such Creditor upon all or any part of
the Mortgaged Property, to the payment in full of all Senior Bayer
Obligations; and
(4) Fourth, to pay to the Company, or its representative or as a
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court of competent jurisdiction may direct, any surplus then remaining.
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(b) The Company shall notify Bayer of any acceleration or enforcement
action taken by any Senior Lender under any Senior Loan Document.
(c) The priorities provided for in this Agreement shall be enforceable
against the Company and the Creditors in any proceeding filed by or against the
Company under the bankruptcy code (11 USC (S)101 et. seq.) or any other
liquidation proceeding, whether or not under court supervision, filed by or
against the Company.
(d) Nothing contained in this Agreement is intended to or shall relieve the
obligations of the Company to the Creditors to pay any amount in respect of the
Senior Bayer Obligations or Senior Obligations, as the case may be, as and when
such amount shall become due and payable in accordance with the terms thereof.
(e) No failure on the part of the Creditors to act in accordance with the
terms of this Agreement shall relieve the Company of any of its obligations to
the Creditors or either of them under the Transaction Documents or any related
agreement.
(f) To the maximum extent permitted by law, each Creditor waives any claim
it might have against any other Creditor with respect to, or arising out of, any
action or failure to act or any error of judgment, negligence, or mistake or
oversight whatsoever on the part of such other Creditor or its directors,
officers, employees or agents with respect to any exercise of rights or remedies
under the Transaction Documents or any transaction relating to the Bayer
Fractionation Collateral or the Senior Loan Collateral, as the case may be. No
Senior Lender nor any of its directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Senior Loan
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Senior Loan Collateral, or take any other action in
respect thereof, upon the request of the Company or Bayer.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Creditor represents and warrants to the other Creditor that (a) the
execution, delivery and performance of this Agreement (i) have been duly
authorized by all requisite corporate or partnership action on its part and (ii)
will not contravene any provision of its charter or by-laws or partnership
agreement or any order of any court or other Governmental Authority having
applicability to it or any applicable law, and (b) this Agreement has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligation.
SECTION 4. MISCELLANEOUS
4.1 Successors and Assigns; Continuing Effect. This Agreement is being
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entered into for the benefit of, and shall be binding upon, the Creditors and
their respective successors and assigns. Bayer may not assign or transfer any
of its rights or obligations under this Agreement or any Bayer Document without
the prior written consent of the Senior Lenders. This Agreement shall be a
continuing agreement and shall be irrevocable and shall remain in full force and
effect as long as there are any of the Senior Bayer Obligations or the Senior
Obligations outstanding.
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4.2 No Change in Obligations. Bayer may not waive, amend, supplement or
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otherwise modify the terms and conditions of the Bayer Mortgage and Bayer
Security Agreement without the prior written consent of the Senior Lenders.
4.3 Notices; Amendments, etc.
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(a) All notices hereunder shall be in writing and shall be sufficiently
given if personally delivered, telecopied or mailed by first class, registered
or certified mail, return receipt requested, postage prepaid, and addressed to
the address of the relevant party at the address set forth under its signature
below, or to such other address or addresses as the party to whom such notice is
directed may have designated by like notice in writing to the other parties
hereto. A notice shall be deemed to have been given when personally delivered
or, if telecopied, upon receipt or, if mailed, on the earlier of (i) three (3)
days after the date on which it is deposited in the mail, or (ii) the date on
which it is received.
(b) This Agreement may be amended and the terms hereof may be waived only
with the written consent of Bayer, each Senior Lender and the Company.
4.4. Counterparts. This Agreement may be executed in any number of
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counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one agreement.
4.5 Severability. Any provision to this Agreement which is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
4.6 Agreement; Governing Law. This Agreement embodies the entire
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agreement and understanding of the parties hereto regarding the subject matter
hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.7 Relative Rights. This Agreement is intended solely for the purpose of
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defining the relative rights of the Senior Lenders on the one hand and Bayer on
the other hand, and no other Person shall have any right, benefit or other
interest under this Agreement.
4.8 Further Assurances. Each Creditor and the Company, at their own
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expense and at any time from time to time, upon the written request of any
Creditor will promptly and duly execute and deliver such further instruments and
documents and take such further actions as such Creditor reasonably may request
for the purposes of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted.
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4.9 Expenses. The Company will pay or reimburse each Senior Lender, upon
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demand, for all its costs and expenses in connection with the enforcement or
preservation of any rights under this Agreement, including, without limitation,
reasonable fees and disbursements of counsel to the Senior Lenders. The Company
will pay, indemnify, and hold each Senior Lender harmless, from and against any
and all other liabilities, obligations, losses, damages, penalties, actions
(whether sounding in contract, tort of on any other ground), judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of, or
in any other way arising out of or relating to this Agreement or any action
taken or omitted to be taken by any Senior Lender with respect to any of the
foregoing.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered by their authorized officers on the date and year first
above written.
V.I. TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, CFO
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer
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BAYER CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for Notices:
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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