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EXHIBIT 10.14(a)
August 10, 1998
Genomic Solutions, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxxxx 00000
Gentlemen:
This letter (herein called the "Agreement") constitutes an agreement by and
between COMERICA BANK, a Michigan banking corporation (herein called "Bank"),
and GENOMIC SOLUTIONS, INC., a Delaware corporation (herein called "Company"),
pertaining to that certain line of credit which Bank has made available to
Company, under and pursuant to which Company may, from time to time, obtain
loans and advances not to exceed Two Million Dollars ($2,000,000.00), in
aggregate principal amount at any time outstanding, subject to the terms and
conditions of this Agreement and the Note (said line of credit, as the same may
be extended, renewed, amended and/or modified from time to time, is herein
called the "Line of Credit").
In consideration of Bank's agreement to make the Line of Credit available
to Company, and in consideration of all present and future Liabilities of
Company to Bank thereunder or in respect thereof, Company represents, warrants,
covenants and agrees as follows:
1. For purposes of this Agreement, the following terms shall have the
following respective meanings:
"Accounts" shall mean, collectively, all of Company's accounts
receivable, general intangibles, chattel paper, contract rights, deposit
accounts, documents and instruments.
"Acquisition" shall mean any purchase or acquisition by Company and/or
any of its Subsidiaries of any capital stock or other ownership interests
of any other Person(s) or of the property or assets of any other Person(s),
excluding purchases of Inventory and fixed assets in the ordinary course of
business.
"Affiliate" shall mean, with respect to any Person, any other Person
or group acting in concert in respect of the first Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with such first Person.
"Change in Control" shall mean if those Persons owning the outstanding
voting securities of Company as of the date of this Agreement shall fail,
for any reason whatsoever, (i) to own at least thirty five percent (35%)
of the outstanding voting securities of Company, or (ii) to retain control
of Company.
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"Collateral" shall mean all of Company's Accounts, Inventory, and any
and all other property, rights and interests in which a security interest,
lien, mortgage or other encumbrance has been granted or has arisen, or is
hereafter granted or arises, to or in favor of Bank under or in connection
with any of the Loan Documents, to secure the payment and performance of
the Liabilities, together with all property and assets of Company now or
hereafter in possession of Bank.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial statements or accounting terms in this Agreement, the
aggregate for two or more persons determined on a consolidated basis in
accordance with GAAP. Unless otherwise specified herein, references to
"consolidated" financial statements or data of Company includes
consolidation with all Subsidiaries of Company in accordance with GAAP.
"Contingent Obligation" shall mean any guaranty or other direct or
indirect obligation or undertaking on the part of Company whereby Company
is or becomes responsible for the obligations of any other Person, whether
by agreement to purchase the indebtedness of any other Person, by way of
agreement for the furnishing of funds to any other Person through the
furnishing of goods, supplies or services, by way of stock purchase,
capital contribution, advance or loan, for the purpose of paying or
discharging (or causing the payment or discharge of) the indebtedness of
any other Person, or otherwise.
"Control" or "control" (including, with correlative meanings, the
terms "controlled by", "controlling" and "under common control with"), as
used with respect to any Person or group of Persons, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Current Assets" shall mean, for any applicable Person(s) and as of
any applicable time of determination, the sum of all cash, non-affiliated
accounts receivable, federal income tax receivables, United States
government securities, and inventories of such Person(s) at such time, all
as determined in accordance with GAAP, excluding the amount of any loans or
advances to Affiliates of such Person(s) and investments in Subsidiaries
and Affiliates of such Person(s).
"Current Liabilities" shall mean, for any applicable Person(s) and as
of any applicable time of determination, all Debt of such Person(s) which
would be classified as a current liability at such time in accordance with
GAAP, including, without limitation, any portion of the Liabilities so
classified as a current liability at such time.
"Debt" shall mean, for any applicable Person(s) and as of any
applicable time of determination thereof, the total liabilities of such
Person(s) at such time, as determined in accordance with GAAP.
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"Default" shall mean any condition or event which, with the giving of
notice or the passage of time, or both, would constitute an Event of
Default.
"Environmental Laws" shall mean all laws, codes, ordinances, rules,
regulations, orders, decrees and directives issued by any federal, state,
local, foreign or other governmental or quasi-governmental authority or
body (or any agency, instrumentality or political subdivision thereof)
pertaining to hazardous or toxic materials, including, without limitation,
any hazardous materials or wastes, toxic substances, flammable, explosive
or radioactive materials, asbestos, and/or other similar materials; any
so-called "superfund" or "superlien" law pertaining to hazardous or toxic
materials on or about any property at any time owned, leased or otherwise
used by Company and/or any of its Subsidiaries, or any portion thereof,
including, without limitation, those relating to soil, surface, subsurface
groundwater conditions and the condition of the ambient air; and any other
federal, state, foreign or local statute, law, ordinance, code, rule,
regulation; order or decree regulating, relating to, or imposing liability
or standards of conduct concerning, any hazardous, toxic, radioactive,
flammable or dangerous waste, substance or material, as now or at any time
hereafter in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, or any successor act or code.
"Event of Default" shall mean the occurrence or existence of any of
the conditions or events set forth in Section 7 of this Agreement.
"GAAP" shall mean generally accepted accounting principles
consistently applied.
"Inventory" shall mean, collectively, all of Company's goods which are
held for sale or lease or which are to be furnished under contracts of
service, including finished goods, work in process, raw materials, and
materials to be used or consumed in Company's business.
"Liabilities" shall mean all present and future liabilities,
obligations and indebtedness of Company to Bank, howsoever created,
evidenced, existing or arising, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing or arising, or due
or to become due, whether under or pursuant to the Line of Credit, or
otherwise, and any and all extensions, renewals, amendments, modifications
and/or restatements thereof.
"Loan Documents" shall mean this Agreement, the Note, and any and all
other notes, instruments, documents and agreements between Bank, on the one
hand, and Company and/or other Person(s), on the other hand, at any time
evidencing, governing, securing or otherwise relating to any of the
Liabilities or the Collateral.
"Note" shall mean that certain Master Revolving Note in form similar
to that attached to this Agreement as Exhibit "A", executed and delivered
by Company unto Bank,
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with appropriate insertions, to evidence the indebtness of Company to Bank
in respect of loans and advances made by Bank to or in favor of Company
under the Line of Credit, as the same may be amended, restated, extended
and/or renewed from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Encumbrances" is defined in Section 5(c) of this Agreement.
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, trust, incorporated or
unincorporated organization, joint venture, joint stock company,
government, or any agency or political subdivision thereof, or any other
entity of any kind.
"Subsidiary" of a Person shall mean any corporation, association,
limited liability company, partnership or other business entity of which
more than fifty percent (50%) of the outstanding voting stock or other
equity interests is owned or controlled either directly or indirectly by
such Person or one or more of its other Subsidiaries, or any combination
thereof, or the management of which is controlled, either directly or
indirectly by such Person or one or more of its other Subsidiaries, or any
combination thereof.
"Tangible Net Worth" shall mean, for any applicable Person(s) and as
of any applicable time of determination thereof, the excess of (i) the net
book value of the assets of such Person(s) at such time (excluding all
amounts owing to such Person(s) at such time by any officers, employees or
Affiliates of such Person(s), investments in Affiliates, patents, patent
rights, trademarks, trade names, franchises, copyrights, licenses, goodwill
and all other intangible assets of such Person(s) at such time), after all
appropriate deductions in accordance with GAAP (including, without
limitation, reserves for doubtful receivables, obsolescence, depreciation
and amortization), over (ii) the total Debt of such Person(s) at such time,
all as determined in accordance with GAAP.
"Working Capital" shall mean for any applicable Person(s) and as of
any applicable time of determination thereof, an amount equal to (i) the
Current Assets of such Person(s) at such time, minus (ii) the Current
Liabilities of such Person(s) at such time.
2. Subject to the terms and conditions of this Agreement and the Note,
including, without limitation, the condition that no Default or Event of Default
shall have occurred and be continuing or exist, Bank agrees to make loans and
advances to or in favor of Company under the Line of Credit not to exceed Two
Million Dollars ($2,000,000.00) in aggregate principal amount at any time
outstanding. Each loan or advance made by Bank to or otherwise in favor of
Company under or pursuant to the Line of Credit shall be subject to the terms
and conditions of this Agreement and the Note, and the indebtedness of Company
to Bank under or pursuant to the Line of Credit shall be evidenced by, shall
accrue interest in accordance with, and shall be repaid in accordance with the
terms of the Note. In no event and under no circumstances shall Bank be
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obligated to make any loan or advance to or in favor of Company under the Line
of Credit if any Default or Event of Default shall have occurred and be
continuing or exist.
3. Company hereby represents and warrants, and such representations and
warranties shall be deemed to be continuing representations and warranties
during the entire life of this Agreement, so long as Bank shall have any
commitment or obligation to make loans or advances to or in favor of Company
under the Line of Credit, and thereafter, so long as any Liabilities remain
unpaid and outstanding under this Agreement, the Note or otherwise in respect of
the Line of Credit:
(a) Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, is duly qualified
and authorized to do business in each jurisdiction where the character
of its assets or the nature of its activities makes such qualification
necessary, except where the failure to so qualify or be authorized
shall not have a material adverse effect on the financial condition of
Company, its operations or ability to carry on its business, or upon
its ability to pay and perform its liabilities and obligations
hereunder or otherwise in respect of the Liabilities, and Company has
the corporate power and authority and legal right to own its
properties and assets and to carry out its business as now being
conducted; execution, delivery and performance of this Agreement, the
Note, and any and all other Loan Documents to which Company is a party
or by which it is otherwise bound, are within Company's corporate
powers and authorities, have been duly authorized by all requisite
corporate or other necessary or appropriate action, and are not in
contravention or violation of law or the terms of Company's Articles
of Incorporation or Bylaws, and do not require the consent or approval
of any governmental body, agency or authority; and this Agreement, the
Note, and any other Loan Documents contemplated hereby, when executed,
issued and/or delivered by Company, or by which Company is otherwise
bound, will be valid and binding and legally enforceable against
Company in accordance with their terms, except as enforcement may be
limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally.
(b) The execution, delivery and performance of this Agreement, the Note,
and any other Loan Documents required under or contemplated by this
Agreement to which Company is a party or by which it is otherwise
bound, and the issuance of this Agreement, the Note, and any such
other Loan Documents by Company, and the borrowings and other
transactions contemplated hereby and thereby, are not in contravention
or violation of the unwaived terms of any indenture, agreement or
undertaking to which Company is a party or by which it or any of its
property or assets is bound, and will not result in the creation or
imposition of any lien or encumbrance of any nature whatsoever upon
any of the property or assets of Company, except to or in favor of
Bank.
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(c) No litigation or other proceeding before any court or administrative
or governmental agency is pending, or, to the knowledge of Company or
any of its officers, is threatened against Company, the outcome of
which could materially impair Company's financial condition or its
ability to carry on its business or its ability to pay and perform its
liabilities and obligations hereunder or otherwise in respect of the
Liabilities.
(d) There are no security interests in, liens, mortgages, or other
encumbrances on any of the Collateral, except Permitted Encumbrances.
(e) No Default or Event of Default has occurred and is continuing or
exists.
(f) The most recent financial statements with respect to Company and its
Subsidiaries delivered to Bank fairly present the financial condition
of Company and its Subsidiaries and the results of their operations as
of the date thereof and for the period(s) covered thereby in
accordance with GAAP; and since December 31, 1997, there has been no
material adverse change in the condition (financial or otherwise) or
operations of Company or any of its Subsidiaries, and there are no
material debts, liabilities or obligations (absolute or contingent) of
Company or any of its Subsidiaries, except as disclosed in such
financial statements (or in the notes thereto).
4. So long as Bank shall have any commitment or obligation, if any, to make
any loans or advances to or in favor of Company under the Line of Credit, and so
long as any Liabilities remain unpaid and outstanding under this Agreement, the
Note or otherwise in respect of the Line of Credit, Company covenants and agrees
that it shall:
(a) Furnish to Bank, or cause to be furnished to Bank, in each case, in
form and detail and on a reporting basis satisfactory to Bank,
the following:
(i) as soon as available, and in any event not later than one hundred
twenty (120) days after and as of the end of each fiscal year of
Company, beginning with the fiscal year ending December 31, 1998,
consolidated and consolidating financial statements of Company
and its Subsidiaries, containing the consolidated balance sheets
of Company and its Subsidiaries as of the end of each such fiscal
year, consolidated and consolidating statements of income and
retained earnings and statements of cash flows of Company and its
Subsidiaries for each such fiscal year, and such other comments
and financial details as are usually included in similar reports.
Such financial statements shall be audited by independent
certified public accountants of recognized standing selected by
Company and acceptable to Bank, shall be prepared in accordance
with GAAP, and shall be in such detail as Bank may reasonably
require;
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(ii) as soon as available, and in any event not later than forty five
(45) days after and as of the end of each calendar month,
beginning with the month ending June 30, 1998, consolidating
financial statements of Company its Subsidiaries, containing the
consolidating balance sheets of Company and its Subsidiaries as
of the end of each such calendar month, consolidating statements
of income and retained earnings and statements of cash flows for
Company and its Subsidiaries for each such calendar month and for
the portion of the fiscal year of Company and its Subsidiaries
through the end of the calendar month then ending, and such other
comments and financial details as are usually included in similar
reports. Such financial statements shall be prepared by Company
in accordance with GAAP, and on a basis consistent with the
annual statements to be furnished to Bank pursuant to sub-section
(i) above, shall be in such detail as Bank may reasonably
require, and shall be certified as to accuracy and fairness by
the chief executive officer or chief financial officer of
Company;
(iii) simultaneous with the delivery to Bank of the respective
financial statements required in sub-sections (i) and (ii) above,
a compliance certificate in form and detail satisfactory to Bank,
certified by the chief financial officer of Company, certifying
that, as of the date thereof, to the best of such officer's
knowledge, no Default or Event of Default shall have occurred and
be continuing or exist, or if any Default or Event of Default
shall have occurred and be continuing or exist, specifying, in
detail, the nature and period of existence thereof and any action
taken or proposed to be taken by Company in respect thereto, and
also certifying as to whether Company is in compliance with the
financial covenants contained in Sections 4(g) through (j)
of this Agreement (which certificate shall set forth, in
reasonable detail, Company's calculations and the resultant
ratios or financial tests determined thereunder);.
(iv) as soon as available, and in any event within forty five (45)
days after and as of the end of each fiscal quarter of Company,
agings of Company's accounts receivable and accounts payable for
and as of the end of each such fiscal quarter, in each case, in
form and detail satisfactory to Bank;
(v) as soon as possible, and in any event within three (3) Business
Days after becoming aware of the occurrence or existence of any
Default or Event of Default, or of any other condition or
occurrence which has had or could reasonably be expected to have
a materially adverse effect upon Company's or any of its
Subsidiary's business, properties, or financial condition or upon
Company's ability to comply with its obligations hereunder, a
written statement of an authorized officer of Company setting
forth the details of such Default or Event of Default, or such
other condition or occurrence, and the action which Company has
taken or caused to be taken, or proposes to take or cause to be
taken with respect thereto;
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(vi) prior to Company and/or any of its Subsidiaries entering into any
merger, consolidation or Acquisition, pro forma consolidated and
consolidating financial statements of Company and its
Subsidiaries, showing the anticipated effects of such proposed
merger, consolidation or Acquisition upon the financial
condition and operations of Company and its Subsidiaries
immediately after giving effect thereto and through the end of
the fiscal quarter of Company during which such merger,
consolidation or Acquisition, as the case may be, takes place,
together with a compliance certificate in form and detail
satisfactory to Bank, certified by the chief financial officer of
Company, certifying that, to the best of such officer's
knowledge, no Default or Event of Default shall have occurred and
be continuing or exist, and that no Default or Event of Default
shall arise, exist or occur after giving effect to such merger,
consolidation or Acquisition, which certificate shall be
accompanied by Company's calculations, on a pro forma basis and
in reasonable detail, as to whether Company shall be in
compliance with the financial covenants of Company set forth in
Sections 4(g) through (j) of this Agreement immediately after
giving effect to such merger, consolidation or Acquisition, as
the case may be, and through the end of the fiscal quarter of
Company during which such merger, consolidation or Acquisition
takes place; and
(vii) promptly, at such times as Bank may reasonably require, in form
and detail satisfactory to Bank, such other information and
reports as may be required under the terms of any Loan Documents
or as Bank may reasonably request from time to time.
(b) Keep proper books of record and account in which full and correct
entries shall be made of all of its financial transactions and its
assets and businesses so as to permit the presentation of financial
statements (including, without limitation, those financial statements
to be delivered to Bank pursuant to Section 4(a) above) prepared in
accordance with GAAP.
(c) Permit Bank, through Bank's authorized attorneys, accountants and
representatives, to visit all of Company's offices and to make
inquiries as to Company's financial matters with its directors,
officers, employees, and independent certified public accountants, and
to inspect, audit and examine Company's books, accounts, records,
ledgers and assets and properties of every kind and description,
wherever located, at reasonable intervals and times during normal
business hours. So long as no Default or Event of Default shall have
occurred and shall be continuing or exist, Bank shall provide Company
with not less than two (2) weeks' prior written or oral notice to an
officer of Company of Bank's intent or desire to conduct any such
visit, inspection, audit and/or examination. In the event that any
Default or Event of Default shall have occurred and be continuing or
exist, Bank shall not be obligated to provide such two (2) weeks'
notice to Company, and Bank shall be permitted to conduct any such
visits, inspections, audits and/or examinations upon
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such sooner oral or written notice to an officer of Company as Bank
reasonably deems necessary or appropriate. In the event that any
Default or Event of Default shall have occurred and be continuing or
exist, Company agrees to reimburse Bank for all reasonable costs and
expenses incurred by Bank in connection with such visits, inspections,
examinations and audits. So long as no Default or Event of Default
shall have occurred and be continuing or exist, Company's obligation
to reimburse Bank for such costs and expenses and to pay any such
fees to Bank shall be as mutually agreed upon by Company and Bank.
(d) Keep its insurable properties (including, without limitation, any
Collateral at any time securing all or any part of the Liabilities)
adequately insured and maintain (i) insurance against fire and other
risks customarily insured against under an "all-risk" policy and such
additional risks customarily insured against by companies engaged in
the same or a similar business to that of Company, (ii) necessary
workers' compensation insurance, (iii) public liability and product
liability insurance, and (iv) such other insurance as may be required
by law or as may be reasonably required in writing by Bank, all of
which insurance shall be in such amounts, contain such terms, be in
such form, be for such purposes, prepaid for such time periods, and
written by such companies as may be reasonably satisfactory to Bank.
All such policies shall contain a provision whereby they may not be
canceled or materially amended except upon thirty (30) days' prior
written notice to Bank. Company will promptly deliver to Bank, at
Bank's request, evidence satisfactory to Bank that such insurance has
been so procured and, with respect to casualty insurance, made payable
to Bank. If Company fails to maintain satisfactory insurance as herein
provided, Bank shall have the option (but not the obligation) to do
so, and Company agrees to repay Bank, upon demand, with interest at
the highest rate of interest applicable to any of the Liabilities, all
amounts so expended by Bank. Company hereby appoints Bank, or any
employee or agent of Bank, as Company's attorney-in-fact, which
appointment is coupled with an interest and irrevocable, and
authorizes Bank, or any employee or agent of Bank, on behalf of
Company, to adjust and compromise any loss under said insurance and to
endorse any check or draft payable to Company in connection with
returned or unearned premiums on said insurance or the proceeds of
said insurance, and any amount so collected may be applied toward
satisfaction of the Indebtedness; provided, however, that Bank shall
not be required hereunder so to act.
(e) Pay, promptly and within the time that they can be paid without late
charge, penalty or interest, all taxes, assessments and similar
imposts and charges of every kind and nature lawfully levied, assessed
or imposed upon Company and/or its property, except to the extent
being contested in good faith and, if requested by Bank, bonded in an
amount and manner satisfactory to Bank. If Company fails to pay such
taxes and assessments within the time they can be paid without
penalty, late charge or interest, Bank shall have the option (but not
the obligation) to do so, and Company agrees to repay Bank, upon
demand, with interest at the highest rate of interest applicable to
any of the Liabilities, all amounts so expended by Bank.
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(f) Do, or cause to be done, all things necessary to preserve and keep in
full force and effect Company's corporate existence, rights and
franchises and comply with all applicable laws; continue to conduct
and operate its business substantially as conducted and operated
during the present and preceding calendar year; at all times
maintain, preserve and protect all franchises and trade names and
preserve all the remainder of its property and keep the same in good
repair, working order and condition; and from time to time make, or
cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times.
(g) Maintain, at all times, a Consolidated Tangible Net Worth of not less
than Five Million Dollars ($5,000,000.00).
(h) Maintain, on a non-consolidated basis, a Tangible Net Worth of not
less than the following amounts during each of the following
respective specified periods:
Period Amount
------ ------
(i) From the date of this Agreement through
September 29, 1998 $3,500,000
(ii) From September 30, 1998, through
December 30, 1998 3,750,000
(iii) From December 31, 1998, through March
30, 1999 4,000,000
(iv) From March 31, 1999, through June 29, 1999 4,250,000
(v) From June 30, 1999, through September 29, 1999 4,500,000
(vi) From September 30, 1999, through December
30, 1999 4,750,000
(vii) From and after December 31, 1999 5,000,000
(i) Maintain, at all times, Consolidated Working Capital of not less than
Five Million Dollars ($5,000,000.00).
(j) Maintain, on a non-consolidated basis, Working Capital of not less
than the following amounts during each of the following specified
periods:
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Period Amount
------ ------
(i) From the date of this Agreement through
September 29, 1998 $3,500,000
(ii) From September 30, 1998, through
December 30, 1998 3,750,000
(iii) From December 31, 1998, through March
30, 1999 4,000,000
(iv) From March 31, 1999, through June 29, 1999 4,250,000
(v) From June 30, 1999, through September 29, 1999 4,500,000
(vi) From September 30, 1999, through December
30, 1999 4,750,000
(vii) From and after December 31, 1999 5,000,000
(k) At all times meet the minimum funding requirements of ERISA with
respect to Company's employee benefit plans subject to ERISA; promptly
after Company knows or has reason to know of the occurrence of any
event, which would constitute a reportable event or prohibited
transaction under ERISA, or that the PBGC or Company has instituted or
will institute proceedings to terminate an employee pension plan,
deliver to Bank a certificate of an authorized officer of Company
setting forth details as to such event or proceedings and the action
which Company proposes to take with respect thereto, together with a
copy of any notice of such event which may be required to be filed
with the PBGC; and upon the request of Bank, furnish to Bank (or cause
the plan administrator to furnish Bank) a copy of the annual return
(including all schedules and attachments) for each plan covered by
ERISA, and filed with the Internal Revenue Service by Company not
later than ten (10) days after such report has been so filed. Company
shall be permitted to voluntarily terminate employee pension or
benefit plans, so long as any such voluntary termination is done in
accordance with ERISA and does not result in a material liability or
obligation to Company.
(i) Comply in all material respects with all applicable Environmental
Laws, and maintain all material permits, licenses and approvals
required under applicable Environmental Laws, where the failure to do
so could have a material adverse effect upon the business, operations,
condition (financial or otherwise) performance or properties of
Company, or could have a material adverse effect upon the ability of
Company to perform its obligations under this Agreement or any of the
other Loan Documents or otherwise in respect of any of the
Liabilities, or could materially adversely affect the enforceability
of this Agreement or any of the other Loan Documents; and promptly
provide to Bank, immediately upon receipt thereof, copies of any
material correspondence, notice, pleading, citation, indictment,
complaint, order, decree, or other document from any source asserting
or alleging a violation of any Environmental Laws by Company, or of
any circumstance or condition which requires or may require a
financial contribution by Company, or a clean-up, removal, remedial
action or other response by or on
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behalf of Company under applicable Environmental Law(s), or which seeks
damages or civil, criminal, or punitive penalties from Company for any
violation of any Environmental Law(s) by Company. Company hereby
indemnifies, saves and holds Bank, and any of Bank's past, present and
future officers, directors, shareholders, employees, representatives and
consultants, harmless from any and all losses, damages, suits, penalties,
costs, liabilities and expenses, (including, without limitation, reasonable
legal expenses and attorneys fees) incurred or arising out of any claim,
loss or damage of any property, injuries to or death of any persons,
contamination of or adverse effects on the environment, or other violation
of any applicable Environmental Law(s), in any case, caused by Company or
any of its Subsidiaries, or in any way related to any property owned or
operated by Company or any of its Subsidiaries, or due to any acts of
Company or any of its Subsidiaries, or any of their respective officers,
directors, shareholders, employees, consultants and/or representations;
provided, however that the foregoing indemnification shall not be
applicable, and Company shall not be liable for any such losses, damages,
suits, penalties, costs, liabilities or expenses, to the extent (but only
to the extent) the same arise or result from any gross negligence or
willful misconduct of Bank or any of its agents or employees.
5. So long as Bank shall have any commitment or obligation to make any
loans or advances to or in favor of Company under the Line of Credit, and so
long as any Liabilities remain unpaid and outstanding under this Agreement, the
Note, or otherwise in respect of the Line of Credit, Company covenants and
agrees that it shall not, without the prior written consent of Bank:
(a) Declare or pay any dividends on, or make any other distribution
(whether by reduction of capital or otherwise) with respect to, any
shares of its capital stock, except dividends payable solely in its
capital stock.
(b) Purchase, redeem, retire or otherwise acquire any shares of its
capital stock, or make any commitment to do so, to the extent that the
aggregate amount(s) paid or otherwise expended by Company in respect
of all such purchases, redemptions, retirements and acquisitions would
exceed Two Hundred Fifty Thousand Dollars ($250,000.00).
(c) Create, incur, assume or suffer to exist any mortgage, pledge,
encumbrance, security interest, lien or charge of any kind upon any of
Company's Accounts, Inventory or other Collateral, whether now owned
or hereafter acquired, other than the following (collectively,
"Permitted Encumbrances"):
(i) liens, mortgages, security interests and encumbrances to or in
favor of Bank;
(ii) liens for taxes, assessments or other governmental charges
incurred in the ordinary course of business and for which no
interest, late charge or penalty
12
13
is attaching or which is being contested in good faith by appropriate
proceedings diligently pursued and, if requested by Bank, bonded in an
amount and manner satisfactory to Bank;
(iii)liens, not delinquent, created by statute in connection with workers'
compensation, unemployment insurance, social security, old age
pensions (subject to the applicable provisions of this Agreement) and
similar statutory obligations;
(iv) liens in favor of mechanics, materialmen, carriers, warehousemen or
other like statutory or common law liens securing obligations incurred
in good faith in the ordinary course of business that are not yet due
and payable;
(v) minor encumbrances or imperfections of title consisting of existing
or future zoning restrictions, existing recorded rights-of-way,
existing recorded easements, existing recorded private restriction or
existing or future public restrictions on the use of real property,
none of which (individually or in the aggregate) materially impairs,
or would materially impair, the present or future use of such property
in the operation of the business for which it is used, or would be
violated in any material respect by any existing or proposed structure
or land use or would have a material adverse effect on the sale or
lease of such property, or render title thereto unmarketable; and
(vi) any liens and encumbrances existing as of the date of this Agreement,
as more particularly identified in Schedule 5(c) attached hereto.
(d) Incur, create, assume or permit to exist any indebtedness or liability on
account of deposits or advances or any indebtedness or liability for
borrowed money, or any other indebtedness or liability evidenced by notes,
bonds, debentures or similar obligations, or any other indebtedness
whatsoever, except:
(i) the Liabilities;
(ii) existing indebtedness to the extent set forth on Schedule 5(d)
attached hereto;
(iii) unsecured trade indebtedness incurred and paid in the ordinary
course of business;
(iv) additional indebtedness incurred or assumed by Company from and
after the date of this Agreement in respect of mergers or
consolidations involving Company, Acquisitions by Company, and
acquisitions of fixed assets and Inventory by Company in the
ordinary course of business, to the extent, in
13
14
each case, the incurrence or assumption of such indebtedness
would not result in or cause any Default or Event of Default; and
(v) indebtedness secured by Permitted Encumbrances.
(e) Incur or otherwise become liable or obligated for or upon any Contingent
Obligations, except: (i) guaranties in favor of Bank; (ii) the endorsement
of negotiable instruments in the ordinary course of business for deposit or
collection; and (iii) other Contingent Obligations not to exceed One
Hundred Thousand Dollars ($100,000.00) at any time in respect of any single
Contingent Obligation (or series of related Contingent Obligations), and
not to exceed Five Hundred Thousand Dollars ($500,000.00) in aggregate, at
any time, for all such Contingent Obligations.
(f) Subordinate any indebtedness due to it from a Person to indebtedness of
other creditors of such Person.
(g) Sell, lease (as lessor), transfer or otherwise dispose of properties and
assets having an aggregate book value of more than One Million Five Hundred
Thousand Dollars ($1,500,000.00) (whether in one transaction or in a series
of transactions), except as to the sale of Inventory and equipment in the
ordinary course of business; change its name; or consolidate with or merge
into any other Person, unless, at the time of any such merger or
consolidation and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing, or exist, and, in the case
of any such merger or consolidation in which Company shall not be the
survivor thereof, (A) the surviving entity shall be a corporation or other
business entity organized under the laws of the United States of America,
or any State thereof, (B) such survivor shall, in writing, unconditionally
assume all Liabilities of Company to Bank, and (C) there shall be no legal
or regulatory restrictions or impediments upon Bank's ability to maintain a
lending or contractual relationship with such surviving entity; provided,
however, and notwithstanding the foregoing, in the event that Company
enters into any such merger or consolidation in which Company shall not be
the survivor thereof, Bank shall have the right, in its sole discretion, to
terminate any commitment or obligation of Bank to make loans or advances or
otherwise extend credit to or in favor of Company, whether under the Line
of Credit or otherwise, upon sixty (60) days' prior written notice to
Company (or such surviving entity), and upon expiration of such sixty (60)
day period of time, any such commitment or obligation on the part of Bank
shall terminate and all Liabilities, whether under the Line of Credit or
otherwise, shall become due and payable (unless sooner accelerated in
accordance with the terms of this Agreement or any other relevant Loan
Document(s))
(h) Allow any fact, condition or event to occur or exist with respect to any
employee pension or profit sharing plan established or maintained by it
which might constitute grounds for termination of any such plan or for the
court appointment
14
15
of a trustee to administer any such plan; or permit any such plan
to be the subject of termination proceedings (whether voluntary or
involuntary) from which termination proceedings there may result
in a liability of Company to the PBGC which, in the opinion of
Bank, will have a materially adverse effect upon the operations,
business, property, assets, financial condition or credit of
Company.
(i) Furnish Bank with any certificate or other document that contains any
untrue statement of a material fact or omits to state a material fact
necessary to make such certificate or document not misleading in light
of the circumstances under which it was furnished.
(j) Apply any of the proceeds of any loan, advance or other extension of
credit by Bank to or in favor of Company, to the purchase or carrying
of any "margin stock" within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System, or any regulations,
interpretations or rulings thereunder.
6. In respect of the Line of Credit, Company agrees to pay to Bank the
following nonrefundable fees:
(a) A closing fee equal to $2,500.00.
(b) A facility fee equal to one quarter of one percent (.25%) per annum
on the daily average balance of the unused principal amount of the
Line of Credit (i.e., the maximum principal amount of the Line of
Credit minus the average daily principal amount outstanding
thereunder). Said fee shall be payable quarterly, in arrears,
commencing on October 1, 1998, and on the first day of each succeeding
January, April, July and October thereafter, and shall be computed on
the basis of a 360-day year and shall be assessed for the actual
number of days elapsed.
(c) In the event that, as a result of the occurrence and/or existence of
any Default(s) or Event(s) of Default, Bank notifies Company that Bank
shall not make any further loans or advances to or in favor of Company
under the Line of Credit until such Default(s) or Event(s) of Default
are cured or remedied to the satisfaction of Bank, the obligation of
Company to pay such facility fee to Bank shall be suspended until such
time that Bank notifies Company that loans and advances are again
available to Company under the Line of Credit.
7. The occurrence and/or existence of any of the following conditions or
events shall constitute an "Event of Default":
(a) Company shall fail to pay the principal of or interest on or shall
otherwise fail to pay any other amount owing by Company to Bank under
this Agreement, the Note, or otherwise in respect of the Line of
Credit and any such default in payment shall continue for five (5)
days; or Company shall fail to pay any other amount owing by Company
to Bank, when due, and such default in payment shall continue
15
16
unremedied or uncured beyond any applicable period of grace provided
with respect thereto, if any, in the relevant Loan Document(s);
(b) any material representation, warranty, certification or statement made
or deemed to have been made by Company herein, or by any Person(s)
(including, without V limit, Company) in any certificate, financial
statement or other document or agreement delivered by or on behalf of
Company in connection with the Liabilities or any of the Loan
Documents, shall prove to be untrue in any material respect;
(c) Company shall fail to observe or perform any condition, covenant or
agreement of Company set forth in Sections 4(a),(b),(e),(f),(k) or
(1) of this Agreement, and any such failure shall continue unremedied
or uncured for a period of thirty (30) days after written notice from
Bank to Company; or Company shall fail to observe or perform any other
condition, covenant or agreement of Company set, forth in this
Agreement;
(d) Company shall fail to observe or perform any condition, covenant or
agreement of Company set forth in any other Loan Document (other than
as provided in subparagraphs (a) and (c) above), and such default
shall remain unremedied or uncured beyond any applicable period of
grace or cure, if any, provided with respect thereto;
(e) if, for any reason or cause whatsoever, Xxxxxx X. Xxxxxxxxxx or
Xxxxxxx Xxxxxxxx shall fail to be employed by and remain an officer of
Company and/or shall fail to actively participate in the management of
Company, whether by reason of death, resignation or otherwise; or if
there shall be any Change in Control;
(f) if Company becomes insolvent or unable to pay its debts as they become
due, or if Company becomes the subject of a voluntary or involuntary
proceeding in bankruptcy, and in the case of any such involuntary
proceeding, the same remains undismissed or unstayed for sixty (60)
days following the commencement thereof; or if Company makes an
assignment for the benefit of creditors or becomes subject to a
reorganization or creditor composition proceeding, and, in the case of
any such involuntary proceeding, the same remains undismissed or
unstayed for sixty (60) days following the commencement thereof; or if
Company ceases doing business as a going concern or dissolves or
liquidates; or if any receiver, trustee or custodian shall be
appointed for all or substantially all of the property or assets of
Company, and, in the case of any involuntary appointment, such
receiver, trustee or custodian is not discharged within sixty (60)
days of such appointment;
(g) if there is any termination, notice of termination, or breach of any
guaranty, pledge, collateral assignment or subordination agreement
relating to all or any part of the Liabilities, and any such breach
shall remain unremedied or uncured beyond any applicable period of
grace or cure, if any, provided with respect thereto;
16
17
(h) if Company shall fail to pay, when due, any of its Debt (other than to
Bank) or shall fail to observe or perform any term, convenant,
agreement or condition in any document evidencing, securing or
relating to any such Debt, and any such failure shall continue beyond
any period of grace or cure, if any, provided with respect thereto; or
(i) if there is filed or issued a levy or writ of attachment or
garnishment or other like judicial process upon a material portion of
the assets of Company or any of the Collateral.
8. Upon the occurrence and at any time during the continuance or
outstanding existence of any Event of Default, Bank may declare any or all
outstanding Liabilities to be due and payable, whether under the Note or
otherwise, whereupon all such Liabilities then outstanding shall immediately
become due and payable, without further notice or demand,and any commitment or
obligation, if any, on the part of Bank to make loans or otherwise extend credit
to or in favor of Company, whether under the Line of Credit or otherwise, shall
immediately terminate; without any necessity of prior notice or demand, each of
which is hereby expressly waived by Company. Further, upon the occurrence or at
any time during the continuance or existence of any Event of Default hereunder,
Bank may collect, deal with and dispose of all or any part of any Collateral in
any manner permitted or authorized by the Michigan Uniform Commercial Code or
other applicable law (including public or private sale), and after deducting
expenses (including, without limitation, reasonable attorneys' fees and
expenses), Bank may apply the proceeds thereof in part or full payment of any of
the Liabilities, whether due or not, in any manner or order Bank elects. In
addition to the foregoing, upon the occurrence and at any time during the
continuance or existence of any Event of Default hereunder, Bank may exercise
any and all rights and remedies available to it as a result thereof, whether by
agreement, by law, or otherwise.
9. COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT COMPANY'S COMPLIANCE WITH
THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THE ABSENCE OF ANY EVENT OF
DEFAULT HEREUNDER, SHALL NOT, IN ANY WAY WHATSOEVER, LIMIT, RESTRICT OR
OTHERWISE AFFECT OR IMPAIR BANK'S RIGHT OR ABILITY TO MAKE DEMAND FOR PAYMENT OF
ANY OR ALL OF THE LIABILITIES WHICH MAY BE ON A DEMAND BASIS AT ANY TIME IN
BANK'S SOLE AND ABSOLUTE DISCRETION, WITH OR WITHOUT REASON OR CAUSE, AND THE
EXISTENCE OF ANY EVENT OF DEFAULT HEREUNDER SHALL NOT BE THE SOLE REASON OR
BASIS FOR ENABLING BANK TO MAKE DEMAND FOR PAYMENT OF ALL OR ANY PART OF SUCH
LIABILITIES.
10. No forbearance on the part of the Bank in enforcing any of its rights
or remedies under this Agreement or any other Loan Document, nor any renewal,
extension or rearrangement of any payment or covenant to be made or performed by
Company hereunder or any such other Loan Document, shall constitute a waiver of
any of the terms of this Agreement or such Loan Document or of any such right or
remedy.
11. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Michigan.
17
18
12. All covenants, agreements, representations and warranties by or on
behalf of Company made in connection with this Agreement and any other Loan
Documents shall survive the borrowing hereunder or thereunder and shall be
deemed to have been relied upon by Bank. All statements contained in any
certificate or other document delivered to Bank at any time by or on behalf of
Company pursuant hereto shall constitute representations and warranties by
Company.
13. This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that Company shall not assign or transfer any of its rights or
obligations hereunder or otherwise in respect of any of the Liabilities without
the prior written consent of Bank.
14. COMPANY AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVE ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS AGREEMENT OR THE LIABILITIES.
If the foregoing is acceptable to Company, please indicate such with the
authorized signature(s) of Company as provided below.
Very truly yours,
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Its: Account Officer
-------------------------------------
ACCEPTED AND AGREED:
GENOMIC SOLUTIONS, INC.
By: Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Its: Chief Financial Officer
-------------------------------------
Dated: August 10, 1998
-------------------------------------
19
NOTICE OF EXTENSION OF MATURITY DATE
With reference to that certain $2,000,000.00 Master Revolving Note
dated as of August 10, 1998 (the "Note"), executed and delivered by
GENOMIC SOLUTIONS, INC., a Delaware corporation ("Company"), unto Comerica
Bank, a Michigan banking corporation ("Bank"), the Bank hereby agrees to
extend the Maturity Date of the Note from July 1, 1999, to July 1, 2000.
This Notice is for the sole and exclusive purpose of extending the
Maturity Date of the Note, and, except as so modified hereby, all other
terms and conditions of the Note shall remain in full force and effect.
Nothing set forth herein shall be deemed to be a release, discharge or
novation of any of the Indebtedness of Company to Bank under the Note, and
all of such Indebtedness shall continue to be evidenced by and governed by
the Note.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings given to them in the Note.
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
---------------------------
Its: Account Officer
---------------------------
Dated: 4/23/99
-------------------------
ACKNOWLEDGED AND AGREED:
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Its: Executive Vice President
Chief Financial Officer
-----------------------------
20
[COMERICA LOGO]
COMERICA BANK REGIONAL METROPOLITAN CORPORATE BANKING
WEST OAKLAND LOAN GROUP
00000 XXXXX XXXXX
XXXXXXXXXX, XXXXXXXX 00000
TELEPHONE: (000) 000-0000
FAX: (000) 000-0000
XXX X. XXXX
ACCOUNT OFFICER
April 23, 1999
Xx. Xxxxxx Xxxxxxxxxx
CFO
Genomic Solutions Inc.
0000 Xxxxxxx Xx., Xxxxx X
Xxx Xxxxx, XX 00000
Dear Xx. Xxxxxxxxxx:
I am pleased to inform you that Comerica Bank ("Comerica") has agreed to extend
the working capital loan until July 1, 2000 (the "Loan") to Genomic Solutions,
Inc. for those purposes and on those terms and conditions set forth on the
attached Term Sheet (the "Commitment").
As a condition to extending this credit facility, Comerica must be provided with
all documents and information required by Comerica in form and substance
satisfactory to Comerica within a reasonable period of time. A further condition
of extending this credit facility is continued compliance with the existing
letter agreement and amendment between Genomic Solutions, Inc. and Comerica.
The financial services industry is extremely competitive. We view our approaches
and insights in the development of a complete value generating financing program
as proprietary. As such, we expect that the financing arrangements discussed
here herein be kept in confidence. This content should not be shared with other
financial institutions by you, the borrower, or by your financial advisors,
excluding lenders associated with the $6,000,000 subordinated debt financing.
Please indicate your acceptance of this Commitment by signing below where
indicated, and return your signed copy of this letter to me. This Commitment may
only be accepted as drawn, and may not be accepted in part, conditionally or
subject to modification.
Please call me at (000) 000-0000 if you have any questions regarding the terms
of this Commitment or the closing of this transaction.
Sincerely,
COMERICA BANK
By: /s/ Xxx X. Xxxx
--------------------------
Xxx X. Xxxx
Its: Account Officer
21
[COMERICA LOGO]
ACCEPTANCE
The undersigned hereby accepts this Commitment and agrees to be fully bound by
the terms and conditions set forth therein.
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxxxx
Title: CFO
Date: April 23, 1999
-------------------------
Attachment
2
22
April 29, 1999
Genomic Solutions, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
Amendment No. 1 Letter Loan Agreement
Gentlemen:
This letter (this "Amendment") amends the letter loan agreement (the
"Agreement") dated August 10, 1998 by and between Comerica Bank, a Michigan
banking corporation ("Bank"), and Genomic Solutions, Inc. a Delaware
corporation ("Company"). Terms used and not otherwise defined in this
Amendment have the meanings ascribed to them in the Agreement.
In consideration of the mutual promises made in this Amendment, and
other valuable consideration, the receipt and sufficiency of which is
acknowledged, Bank and Company agree as follows:
1. Section 1 of the Agreement is amended to add the following additional
definitions in appropriate alphabetical order:
"Effective Tangible Net Worth" shall mean for any applicable Person(s)' and
as of any applicable time of determination thereof, the sum of the
Person(s)' Tangible Net Worth plus the Person(s) Subordinated Debt.
"Subordinated Debt" shall mean, for any applicable Person(s) and as of any
applicable time of determination thereof, debt of the Person(s)
subordinated to the Person(s)' debt to Bank, in manner and by agreement
satisfactory to Bank.
2. Section 1 of the Agreement is further amended by deleting the definition
of Current Liabilities in its entirety and replacing it with the following:
"Current Liabilities" shall mean, for any applicable Person(s) and as of
any applicable time of determination, the difference of (a) all Debt of
such Person(s) which would be classified as a current liability at such
time in accordance with GAAP, including, without limitation, any portion of
the Liabilities so classified as a current liability at such time minus
(b) the current maturities of capital lease obligations at such time,
determined in accordance with GAAP.
3. Subsection 4(a)(ii) is amended by replacing the terms "forty-five (45)
days" with "thirty (30) days"
4. Subsection 4(g) of the Agreement is amended by deleting it in its entirety
and replacing with the following:
23
Genomic Solutions, Inc.
April 29, 1999
Page 2
(g) Maintain a Consolidated Effective Tangible Net Worth of not less than
the following amounts during each of the following specified periods.
Period Amount
------ ------
(i) From the date of this Agreement through April 29, 1999 $1,000,000
(ii) From April 30, 1999 through June 30, 1999 $4,650,000
(iii) From July 1, 1999 through September 30,1999 $3,250,000
(iv) From October 1, 1999 through January 30, 2000 $2,900,000
(v) From and after January 31, 2000 $7,500,000
5. Subsection 4(h) of the Agreement is amended by deleting it in its entirety
and replacing it with the following:
(h) Maintain, on a non-consolidated basis, an Effective Tangible Net Worth
of not less than the following amounts during each of the following
respective specified periods (figures in parenthesis indicate a
negative amount):
Period Amount
------ ------
(i) From the date of this Agreement through April 29, 1999 ($500,000)
(ii) From April 30, 1999 through June 30, 1999 $2,900,000
(iii) From July 1, 1999 through September 30, 1999 $1,500,000
(iv) From October 1, 1999 through January 30, 2000 $1,150,000
(v) From and after January 31, 2000 $5,750,000
6. Section 4(i) of the Agreement is amended by deleting it in its entirety and
replacing it with the following:
(i) Maintain Consolidated Working Capital of not less than the following
amounts during each of the following respective periods:
Period Amount
------ ------
(i) From the date of this Agreement through April 29, 1999 0
(ii) From April 30, 1999 through June 30, 1999 $3,500,000
(iii) From July 1, 1999 through September 30, 1999 $1,900,000
(iv) From October 1, 1999 through January 30, 2000 $1,350,000
(vi) From and after January 31, 2000 $6,000,000
24
Genomic Solutions, Inc.
April 29, 1999
Page 3
7. Subsection 4(j) of the Agreement is amended by deleting in its entirety
and replacing it with the following:
(j) Maintain, on a non-consolidated basis, Working Capital of not less
than the following amounts during each of the following respective
specified periods (figures in parenthesis indicate a negative amount):
Period Amount
------ ------
(i) From the date of this Agreement through April 29, 1999 (1,000,000)
(ii) From April 30, 1999 through June 30, 1999 $2,500,000
(iii) From July 1, 1999 through September 30, 1999 $ 900,000
(iv) From October 1, 1999 through January 30, 2000 $ 350,000
(vi) From and after January 31, 2000 $5,000,000
8. Section 4 of the Agreement is further amended to add the following
additional subsection (m):
(m) Prior to April 30, 1999, close on terms acceptable to Bank the
subordinated debt financing in the aggregate principal amount of at
least S6,000,000 described in the letter of intent, dated March 17,
1999 issued by White Pines Limited Partnership I and Pacific L.P. and
accepted by the Company (the "April, 1998 Subordinated Debt").
9. Subsection 5(c) of the Agreement is amended to add the following additional
clauses (vii) and (viii):
(vii) any liens or encumbrances on specific leased equipment under lease
facilities between the Company and third parties, including
Transamerica Business Credit Corporation, which facilities in the
aggregate do not exceed $3,000,000 (the "Lease Facilities").
(viii) liens or encumbrances on assets of the Company and its subsidiaries,
in connection with the April, 1998 Subordinated Debt Financing,
10. Subsection 5(d) of the Agreement is amended to add the following additional
clauses (vi) and (vii):
(vi) indebtedness and/or rents and other lease obligations under the Lease
facilities.
25
Genomic Solutions, Inc.
April 29, 1999
Page 4
(vii) the April 1998 Subordinated Debt Financing.
11. Schedules 5(c) and 5(d) to the Agreement are replaced by Schedules 5(c)
and 5(d) to this Amendment.
12. On or before October 31, 1999, the Company must execute an Advance
Formula Agreement in the form attached hereto as Exhibit A.
13. In consideration for the Bank's entering into this Amendment, the
Company shall pay the Bank an amendment fee of S40,000. In addition,
Company shall reimburse Bank for all of Bank's out-of-pocket expenses
and reasonable attorney fees incurred in connection with the closing of
the transactions contemplated by this Amendment.
14. The Company hereby reaffirms the representations and warranties set
forth in Section 3 of the Agreement and acknowledges and confirms that
those representations and warranties are continuing representations and
warranties during the life of the Agreement. Without limiting the
foregoing, the Company reaffirms those representations and warranties as of
October 31, 1998 and as of April 29, 1999.
15. The effectiveness of this Amendment is conditioned on the Bank's receipt of
the following:
a. The amendment fee of $40,000.
b. A pledge of all of the Company's equity interests in all of its
Subsidiaries, including without limitation Genomic Solutions Ltd.
("Genomic-U.K.") and Genomic Solutions, K.K. ("Genomic-Japan") as
collateral security for the Company's Liabilities to the Bank,
together with original stock certificates and stock powers signed in
blank.
c. Guaranties of all of Company's obligations to Bank executed by each of
Company's Subsidiaries, including without limitation Genomic-U.K. and
Genomic-Japan.
d. No later than May 15, 1999, Certified Articles of Incorporation,
Bylaws, and Good Standing Certificate (or comparable documents for the
jurisdiction of incorporation) of Genomic-U.K., Articles of
Incorporation (or comparable documents for the jurisdiction of
incorporation) of Genomic-Japan, certified by an authorized officer
or director of Genomic-Japan and Resolutions duly adopted by the
respective boards of directors of Genomic-U.K. and Genomic-Japan, in
each case certified by an authorized officer of director and
authorizing execution of their respective guaranties and such other
matters as Bank may reasonably require.
26
Genomic Solutions, Inc.
Xxxxx 29, 1999
Page 5
15. Except as amended by this Amendment, the terms of the Agreement and the
other Loan Documents shall remain in full force and effect.
16. This Amendment is executed as of April 29, 1999, but effective as of
October 31, 1998.
17. If the foregoing is acceptable to Company, please indicate such with the
authorized signature of Company as provided below.
27
Genomic Solutions, Inc.
April 29, 1999
Page 6
Very truly yours,
COMERICA BANK
By: Xxxxxx X. Xxxx
--------------------------
Its: Account Officer
--------------------------
ACCEPTED AND AGREED:
GENOMIC SOLUTIONS, INC.
By: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Its: Executive Vice President & CFO
----------------------------------
Dated: April 29, 1999
--------------------------------
28
February 29, 2000
Genomic Solutions, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
AMENDMENT NO. 2 TO LETTER LOAN AGREEMENT
Gentlemen:
This letter (this "Amendment"), effective as of September 30, 1999 (the
"Effective Date") amends the letter loan agreement dated August 10, 1998 (as
amended by the Amendment No. 1 to Letter Loan Agreement dated April 29, 1999,
the "Agreement") by and between Comerica Bank, a Michigan banking corporation
("Bank"), and Genomic Solutions, Inc. a Delaware corporation ("Company"). Terms
used and not otherwise defined in this Amendment have the meanings ascribed to
them in the Agreement.
In consideration of the mutual promises made in this Amendment, and other
valuable consideration, the receipt and sufficiency of which is acknowledged,
Bank and Company agree as follows:
1. Subsection 4(g) of the Agreement is amended by deleting it in its entirety
and replacing with the following:
(g) Maintain a Consolidated Effective Tangible Net Worth of not less than
the following amounts during each of the following specified periods:
Period Amount
------ ------
(i) On the Effective Date of this Agreement at all times
thereafter through January 30, 2000 $2,900,000
(ii) On and after January 31, 2000 $8,500,000
2. Subsection 4(h) of the Agreement is amended by deleting it in its entirety
and replacing it with the following:
(h) Maintain, on a non-consolidated basis, an Effective Tangible Net Worth
of not less than the following amounts during each of the following
respective specified periods:
29
Genomic Solutions, Inc.
February 29, 2000
Page 2
Period Amount
------ ------
(i) On the Effective Date of this Agreement and all times
thereafter through January 30, 2000 $1,000,000
(ii) On and after January 31, 2000 $6,500,000
3. Section 4(i) of the Agreement is amended by deleting it in its entirety and
replacing it with the following:
(i) Maintain Consolidated Working Capital of not less than the following
amounts during each of the following respective periods:
Period Amount
------ ------
(i) On the Effective Date of this Agreement and at all times
thereafter through January 30, 2000 $1,350,000
(ii) From and after January 31, 2000 $6,750,000
4. Subsection 4(j) of the Agreement is amended by deleting it in its entirety
and replacing it with the following:
(j) Maintain, on a non-consolidated basis, Working Capital of not less than
the following amounts during each of the following respective specified
periods:
Period Amount
------ ------
(i) On the Effective Date of this Agreement and at all times
thereafter through January 30, 2000 $ 350,000
(ii) On and after January 31, 2000 $5,750,000
5. The requirement set forth in paragraph 12 of the Amendment No. 1 to Letter
Loan Agreement that the Company execute an Advance Formula Agreement on or
before October 31, 1999 is hereby deleted and of no force or effect.
6. In consideration for the Bank's entering into this Amendment, the Company
shall pay the Bank an amendment fee of $10,000. In addition, Company shall
reimburse Bank for all of Bank's out-of-pocket expenses and reasonable
attorney fees incurred in connection with the closing of the transactions
contemplated by this Amendment.
30
Genomic Solutions, Inc.
February 29, 2000
Page 3
7. The Company hereby reaffirms the representations and warranties set forth
in Section 3 of the Agreement and acknowledges and confirms that those
representations and warranties are continuing representations and
warranties during the life of the Agreement. Without limiting the
foregoing, the Company reaffirms those representations and warranties as of
the Effective Date and as of February 29, 2000.
8. The effectiveness of this Amendment is conditioned on the Bank's receipt of
the following:
a. The amendment fee of $10,000.
b. This Amendment, fully executed by the Company and each of the
undersigned Guarantors.
9. Except as amended by this Amendment, the terms of the Agreement and the
other Loan Documents shall remain in full force and effect.
10. This Amendment is executed on February 29, 2000 but is effective as of the
Effective Date.
11. If the foregoing is acceptable to Company, please indicate such with the
authorized signature of Company as provided below.
Very truly yours,
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Its: Assistant Vice President
--------------------------------
ACCEPTED AND AGREED:
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------
Its: Exec. VP & CFO
-------------------------
Dated: February 29, 2000
-----------------------
31
Genomic Solutions, Inc.
February 29, 2000
Page
Each of the undersigned Guarantors acknowledges the Company's execution of the
foregoing Amendment and consents to the terms of the Amendment. Each Guarantor
ratifies and confirms its Guaranty of the obligations of the Company to the Bank
and acknowledges that such Guaranty remains in fully force and effect in
accordance with its terms.
GENOMIC SOLUTIONS, K.K.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Its: Director
-------------------------
Dated:
-----------------------
GENOMIC SOLUTIONS, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Its: Chairman
-------------------------
Dated:
-----------------------
32
NOTICE OF EXTENSION OF MATURITY DATE
With reference to that certain $2,000,000.00 Master Revolving Note dated
as of August 10, 1998 (the "Note"), executed and delivered by GENOMIC SOLUTIONS,
INC., a Delaware corporation ("Company"), unto Comerica Bank, a Michigan
banking corporation ("Bank"), the Bank hereby agrees to extend the Maturity
Date of the Note from July 1, 2000, to July 1, 2001.
This Notice is for the sole and exclusive purpose of extending the
Maturity Date of the Note, and, except as so modified hereby, all other terms
and conditions of the Note shall remain in full force and effect. Nothing set
forth herein shall be deemed to be a release, discharge or novation of any of
the Indebtedness of Company to Bank under the Note, and all of such
Indebtedness shall continue to be evidenced by and governed by the Note.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings given to them in the Note.
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx
Its: Assistant Vice President
Date: March 6, 2000
-------------------------
ACKNOWLEDGED AND AGREED:
GENOMIC SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Its: Executive Vice President
---------------------------
Chief Financial Officer
33
Schedule 5.C = Encumbrances
LIST OF LEASES
--------------
I. Geonomic Solutions Inc.
Date of Agreement with Length of Location Monthly Comments
Agreement Agreement- Payment
months
0/0/00 Xxxxxxxx Xxxxxxxxxx Xxxx 60 Xxx Arbor Effective 1/1/98
Transamerica Business Credit Corporation Master Lease
("Transamerica")
7/16/98 TRANSAMERICA EXHIBIT #1 48 $2,009.57 $77.507.00 leased equipment
7/16/98 TRANSAMERICA EXHIBIT #2 36 $2,537.79 $78,444.83 leased equipment
10/12/98 TRANSAMERICA EXHIBIT #3 48 $2,150.80 $82,954.22 lease equipment
10/27/98 TRANSAMERICA EXHIBIT #4 48 $4,451.61 $171,693.63 leased equipment
2/11/99 TRANSAMERICA EXHIBIT #5 48 $5,139.40 $200,109.00 leased equipment
12/17/98 TRANSAMERICA EXHIBIT #6 36 $3,652.07 $112,888.04 leased equipment
3/1/99 TRANSAMERICA EXHIBIT #7 48 $5,388.14 $205,886.53 leased equipment
3/5/99 TRANSAMERICA EXHIBIT #8 36 $2,247.30 $69,465.61 leased equipment
3/1/99 TRANSAMERICA EXHIBIT #9 36 $4,662.20 $152,758.70 leased equipment
4/1/99 TRANSAMERICA EXHIBIT #10 48 $5,956.00 $229,717.00 leased equipment
5/24/99 TRANSAMERICA EXHIBIT #11 48 $2,108.46 $86,200.13 leased equipment
5/17/99 TRANSAMERICA EXHIBIT #12 48 $1,515.50 $49,655.61 leased equipment
10/22/99 TRANSAMERICA EXHIBIT #13 48 $9,130.76 $346,562.17 leased equipment
7/22/98 Dart Container 60 Lansing Lansing Facility Lease
6/23/98 GMAC 36 $424.81 98 Chevy Venture Van
7/15/98 ADT Security Services 12 $687.04 per year
10/6/97 Dell Financial Services 36 Xxx Arbor $137.52 Dell Computer
1/16/98 Dell Financial Services 36 Xxx Arbor $172.71 Dell Computer
1/22/98 Green Tree Vendor Services 36 $151.27 Gateway computer w/printer
12/18/98 Chrysler Financial 24 Xxx Arbor $334.35 1999 Grand Caravan
12/18/98 Chrysler Financial 24 Lansing $334.35 1999 Grand Caravan
1/5/98 Old Kent Leasing 36 Xxx Arbor $84.75 Fax Machine
2/26/98 IKON 60 Xxx Arbor 397.00 Ricoh Copier
10/21/98 Off Tech 35 Chelmsford $494.00 Ricoh Copier
1/11/99 Accutemp Engineering Inc 12 Chelmsford $36.25 Preventive Maintenance -
Lab Equipment
12/2/98 EZ Mini Storage Month to Month Chelmsford $195.00 Off site storage
3/2/98 EZ Mini Storage Month to Month Chelmsford $195.00 Off site storage
12/30/98 Infotrac 12 Chelmsford $30.85
4/26/99 Lucent Technologies 18 Chelmsford $328.41 Phone system
10/30/97 Lucent Technologies 18 Chelmsford $274.93 Phone system
12/3/98 Pitney Xxxxx 48 Xxx Arbor $207.00 Postage meter & scale
3/9/99 GMAC 36 Xxx Arbor $743.20 1999 Escalade - Auto Lease
34
Schedule 5.d - Permitted Indebtedness
LIST OF BORROWINGS
- Genomic Solutions Inc. (the "Company") has a $2,000,000 bank borrowing
facility evidenced by a Letter Loan Agreement dated August 10, 1998 and
Amendment No. I to Letter Loan Agreement dated April 29, 1999 with
Comerica. Bank. TIES facility is available until July 1, 2000.
- Genomic Solutions Inc. has a fixed asset Master Lease Agreement dated as of
June 24, 1998 between Genomic Solutions and Transamerica Business Credit,
whereby Genomic Solutions may finance up to $1,500,000 in various
laboratory, office and computer equipment.
- Genomic Solutions Inc., as governed by the First Amendment to the Master
Lease Agreement dated as of October 13, 1999 between Genomic Solutions and
Transamerica Business Credit, may finance up to S1,500,000 in various
laboratory, office and computer equipment.
- Genomic Solutions Inc. entered into a loan agreement with several lenders,
who are also shareholders in the Company. The total loan was $6,000,000
entered into on April 23, 1999. The obligation to repay the loan is
evidenced by promissory notes.
- Genomic Solutions Inc. entered into a loan agreement with several lenders,
who are also shareholders in the Company. The total loan was $3,500,000
entered into on October 28, 1999. The obligation to repay the loan is
evidenced by promissory notes.
35
SCHEDULE 5.C - CONTINUED
LIST OF LEASES - CONTINUED
II. GENOMIC SOLUTIONS LTD LEASES
Date of Agreement with Length of Monthly Comments
Agreement Agreement- Payment
months
6/2/97 Peugeot Finance 48 Pound Sterling 338.62 Auto Lease - Van
3/30/98 Xxxxxx Finance 36 Pound Sterling 395.84 Auto Lease - Ford Scarpio
1/20/99 Guarantee Finance 36 Pound Sterling 425.50 Auto Lease - Xxxxxxx
00/00/00 Xxxxxxx Xxxxx Xxxxxxx XXX 00 Pound Sterling 208.39 Auto Lease
2/2/98 Xxxxxx Finance 36 Pound Sterling 283.81 Auto Lease - Mondeo
12/23/98 Guarantee Finance 48 Pound Sterling 443.20 Auto Lease - BMW
11/27/98 Xxxxxx Finance 36 Pound Sterling 358.24 Auto Lease - Rover
0/0/00 Xxxxxxx Xxxxx Xxxxxxx PLC 36 Pound Sterling 380.37 Auto Lease - Peugeot
3/24/99 General Guarantee Finance 36 Pound Sterling 494.20 Auto Lease - Peugeot
7/20/99 Financial Services 36 Pound Sterling 278.20 Auto Lease - Rover
2/19/98 British Linen Ltd. 58 Pound Sterling 399.89 Milling Machine & ancillary equipment
9/11/98 Schroders Leasing Ltd. 36 Pound Sterling 592.46 NEC MT1020 LCD Projector
2/13/98 Apple Commercial Credit 36 Pound Sterling 688.07 Epic Pentium II Computer
5/29/98 Dell Financial Services 36 Pound Sterling 363.02 Computer Equipment
4/29/97 Danwood Financial Services 60 Pound Sterling 420.06 Sharp Photocopier
4/15/99 Winter thru Life UK Limited 120 Scaled Facility Lease - 0 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxxx, XX
III. GENOMIC SOLUTIONS K.K. LEASES
Date of Agreement with Length of Monthly Comments
Agreement Agreement- Payment
months
4/21/98 Chuo Tochi K.K. 24 Yen 639,000 Facility lease in Tokyo, Japan
May 1, 98 - April 30, 2000
Various General office equipment, fax and copier
36
Schedule 5.d - continued.
GENOMIC SOLUTIONS LTD.
BANK BORROWING FACILITIES WITH NATIONAL WESTMINSTER BANK PLC.:
- Genomic Solutions Ltd. has an overdraft facility with National Westminster
Bank Plc. whereby Genomic Solutions Ltd. may borrow up to approximately
120,000 pound sterling (S200,000). Outstanding borrowings bear interest at
the bank's prime rate plus 2.75% and are collateralized primarily by a
stand-by letter of credit issued by the parent company's (Genomic Solutions
Inc.) bank (Comerica Bank).
- Genomic Solutions Ltd. has a line of credit agreement with National
Westminster Bank Plc. whereby Genomic Solutions Ltd. may borrow up to
75,000 pound sterling (approximately $120,000). Outstanding borrowings bear
interest at 10.5% and are collateralized by eligible accounts receivable.
- Note payable by Genomic Solutions Ltd. payable in monthly installments of
$4,167 plus interest at 10.5% through November 2000. Lender is National
Westminster Bank Plc.
- Note payable by Genomic Solutions Ltd. payable in monthly installments of
S2,778, plus interest at 10.5% through January 2001. Lender is National
Westminster Bank Plc,
See attached Security Schedule of securities given by Genomic Solutions Ltd.
37
March 24, 2000
Genomic Solutions, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, XX 00000
AMENDMENT NO. 3 TO LETTER LOAN AGREEMENT
Gentlemen:
This letter (this "Amendment"), amends the Letter Loan Agreement dated
August 10, 1998 (as amended by the Amendment No. 1 to Letter Loan Agreement
dated April 29, 1999 and Amendment No. 2 to Letter Loan Agreement dated February
29, 2000 but effective as of September 30, 1999, the "Agreement") by and between
Comerica Bank, a Michigan banking corporation ("Bank"), and Genomic Solutions,
Inc., a Delaware corporation ("Company"). Terms used and not otherwise defined
in this Amendment have the meanings ascribed to them in the Agreement.
In consideration of the mutual promises made in this Amendment, and
other valuable consideration, the receipt and sufficiency of which is
acknowledged, Bank and Company agree as follows:
1. The first unnumbered paragraph on page one of the Agreement is amended
by replacing the term "Two Million Dollars ($2,000,000)" with the term "Twenty
Two Million Dollars ($22,000,000)."
2 . Section 1 of the Agreement is amended to insert the following
definitions in appropriate alphabetical order:
"Cash" shall mean money, currency or a credit balance in a general
deposit account with a financial institution.
"Cash Equivalents" shall mean (i) unencumbered securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than three years from
the date of acquisition, (ii) unencumbered marketable direct
obligations issued by any State of the United States of America or any
local government or other political subdivision thereof rated (at the
time of acquisition of such security) at least AA by Standard & Poor's
Corporation ("S&P") or the equivalent thereof by Xxxxx'x Investors
Service, Inc. ("Moody's") having maturities of not more than one year
from the date of acquisition, (iii) unencumbered U.S. Dollar
38
Genomic Solutions, Inc.
March 24, 2000
Page 2
denominated time deposits, certificates of deposit and bankers'
acceptances of (x) Bank, (y) any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000 or (z)
any bank whose short-term commercial paper rating (at the time of
acquisition of such security) by S&P is at least A-l or the equivalent
thereof or by Xxxxx'x is at least P-1 or the equivalent thereof (any
such bank, an "Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition, (iv) unencumbered
commercial paper and variable or fixed rate notes issued by Bank or by
the parent company of Bank and commercial paper and variable rate notes
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating (at the time of acquisition of such
security) of at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long-term unsecured debt rating (at the time
of acquisition of such security) of at least AA or the equivalent
thereof by S&P or the equivalent thereof by Moody's and in each case
maturing within one year after the date of acquisition and (v)
unencumbered repurchase agreements with Bank maturing within one year
from the date of acquisition that are fully collateralized by
investment instruments that would otherwise be Cash Equivalents.
"Liquid Assets" shall mean Cash, and Cash Equivalents.
"unencumbered" shall mean with respect to any asset, that such asset is
not subject to any voluntary or involuntarily lien, security interest,
mortgage, pledge or other encumbrance, including without limitation any
lien or security interest in favor of the Bank.
3. Section 2 of the Agreement is amended by replacing the term "Two
Million Dollars ($2,000,000)" with the term "Twenty Two Million Dollars
($22,000,000)."
4. The following Section 2 A is inserted immediately after Section 2:
2A Standby letters of credit ("Letters of Credit") may be issued by
Bank on behalf of Company from time to time under the Line of Credit.
The undrawn amount of the Letters of Credit shall not exceed Two
Million Dollars ($2,000,000) at any time. Letters of Credit shall be on
terms and conditions (including fees) and issued subject to
documentation acceptable to Bank. Each Letter of Credit shall expire on
the earlier to occur of 360 days from its date of issuance and the
Maturity Date as set forth in the Note.
5. Section 3 is amended to add the following Section (g):
39
Genomic Solutions, Inc.
March 24, 2000
Page 3
(g) Proceeds of loans under the Line of Credit and Letters of Credit
shall be used for general, corporate purposes, including working
capital.
6. Section 4(m) is amended to replace the term "April 1998 Subordinated
Debt" with the term "April 1999 Subordinated Debt."
7. Section 4 of the Agreement is amended to add the following subsections
(n) and (o):
(n) Maintain at all times after Company's initial public offering
(including without limitation after payment of the debt now owing under
the April 1999 and October, 1999 Subordinated Debt financing)
unencumbered Liquid Assets of at least $10,000,000.
(o) Maintain at all times cash collateral acceptable to and under the
control of the Bank in which Bank shall have a first priority,
perfected security interest in an amount not less than $20,000,000. If
and when the Line of Credit is permanently and irrevocably reduced, the
amount of cash collateral required shall be reduced by the amount by
which the Line of Credit is reduced.
8. Section 5(c)(viiI) is amended to read in its entirety:
(viii) liens or encumbrances on assets of Company and its subsidiaries
in connection with the April, 1999 Subordinated Debt financing and the
October, 1999 Subordinated Debt financing.
9. The form of promissory note annexed to this Amendment as Exhibit A is
substituted for the form of promissory note annexed to the Agreement as
Exhibit A.
40
Genomic Solutions, Inc.
March 24, 2000
Page 4
10. In consideration for the Bank's entering into this Amendment, within 31 days
of the date of this Amendment, the Company shall pay the Bank a non-refundable
closing fee of $37,500. In addition, Company shall reimburse Bank for all of
Bank's out-of-pocket expenses and reasonable attorney fees incurred in
connection with the closing of the transactions contemplated by this Amendment.
11. The Company hereby reaffirms the representations and warranties set forth in
Section 3 of the Agreement and acknowledges and confirms that those
representations and warranties are continuing representations and warranties
during the life of the Agreement.
12. The effectiveness of this Amendment is conditioned on the Bank's receipt of
the following:
a. A fully executed promissory note in the form annexed hereto as
Exhibit A.
b. The documents required by the attached Closing Agenda, fully
executed by the parties thereto the Banks satisfaction.
13. Except as amended by this Amendment, the terms of the Agreement and the
other Loan Documents shall remain in full force and effect.
14. If the foregoing is acceptable to Company, please indicate such with the
authorized signature of Company as provided below.
Very truly yours,
COMERICA BANK
By: Xxxxxx X. Xxxx
------------------------------------------
Its: Assistant Vice President
------------------------------------------
ACCEPTED AND AGREED:
GENOMIC SOLUTIONS, INC.
41
Genomic Solutions, Inc.
March 24, 2000
Page 5
By: Xxxxxxx X. Xxxxxxxx
-----------------------
Its: President and CEO
-----------------------
Dated:
-----------------------
Each of the undersigned Guarantors acknowledges the Company's execution of the
foregoing Amendment and consents to the terms of the Amendment. Each Guarantor
ratifies and confirms its Guaranty of the obligations of the Company to the Bank
and acknowledges that such Guaranty remains in fully force and effect in
accordance with its terms.
GENOMIC SOLUTIONS, K.K.
By: Xxxxxxx X. Xxxxxxxx
---------------------------
Its: Chairman
---------------------------
Dated:
---------------------------
GENOMIC SOLUTIONS, LTD.
By: Xxxxxxx X. Xxxxxxxx
---------------------------
Its: Chairman
---------------------------
Dated:
---------------------------
42
AMENDMENT NO.1 TO SUBORDINATION AGREEMENT
This Amendment No. 1 to Subordination Agreement (this "Amendment") is
made as of March 24, 2000 by and among the Genomic Solutions, Inc., Genomic
Solutions, Ltd. and Genomic Solutions K.K., (each, a "Borrower") and, together,
(the "Borrowers"), the parties listed on the signature pages hereto as Creditors
(each "Creditor") and collectively ("Creditors") and Comerica Bank ("Bank").
RECITALS
A. The parties have entered into the Subordination Agreement dated as of April
23, 1999 (the "Subordination Agreement").
B. The parties wish to amend the Subordination Agreement as provided herein.
THEREFORE, in consideration of the recitals, and other valuable
consideration, the receipt and sufficiency of which is acknowledge, Bank,
Borrowers and Creditors agree as follows:
1. The proviso following the phrase (the "Senior Indebtedness") in the tenth
line of Section 1 of the Subordination Agreement is amended to read:
provided, however, that Senior Indebtedness does not include aggregate
principal amounts at any one time outstanding in excess of the sum of (a) an
amount equal to $3,000,000 during the calendar year 1999, $6,000,000 during the
calendar year 2000, $7,000,000 during the calendar year 2001 and $8,000,000
during the calendar year 2002 and thereafter, plus (b) the aggregate principal
amount of all indebtedness owing from time to time from the Borrower to the Bank
secured by cash and/or cash equivalents to the extent such indebtedness is paid
or satisfied by such cash and/or cash equivalents.
1. Section 20 of the Subordination Agreement is amended to add the
following additional subsection 20G.
G. Notwithstanding anything to the contrary in this Agreement, if the
Borrower closes an initial public offering on or before June 1, 2001 pursuant to
the Registration Statement filed with the Securities and Exchange Commission and
proceeds of that initial public offering exceed $50,000,000 (an "IPO"), then
Creditors may ask for, demand, xxx for, take or receive from Borrowers the full
outstanding principal balance of the Notes notwithstanding whether a Standstill
Notice has been given to Creditors.
2. After an IPO, evidence of the Subordinated Indebtedness shall no longer be
required to contain the restrictive legend set forth in the second sentence of
Section 6 of the Subordination Agreement.
43
3. Except as amended by this Amendment, the terms of Subordination Agreement
shall remain in full force and effect.
Executed as of the date first written above.
[Signatures begin on the following page]
44
WHITE PINES LIMITED PARTNERSHIP I
By: White Pines G.P., L.L.C. its general
partner
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
PACIFIC CAPITAL, L.P.
By: WP Pacific G.P., L.L.C., a general
partner
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxxx X. Xxxxx, Chairman
IAN R. N. BUND XXXXX XXXXXX
PROTOTYPE PS PLAN ACCOUNT
#000-00000-00000
XXXXX CONSULTING ASSOCIATES, INC.
VOLUNTEER HEALTHCARE ASSOCIATES, L.L.C
MCDONALD INVESTMENTS INC. CUSTODIAN
FBC S. XXXXXXXX XXXXXXXX III XXX
ROLLOVER ACCOUNT #00000000
XXXXXX X. XXXXXX LIVING TRUST U/A/D
SEPTEMBER 9, 1997
XXXX X. XXXXXX
XXXXXXXX INVESTMENTS INC. CUSTODIAN
FBO XXXXXX X. XXXXX XXX
ROLLOVER ACCOUNT #00000000
NATIONAL CITY BANK OF MI/IL CUSTODIAN
FBO XXXXXXX X. XXXXXX XXX
ROLLOVER ACCOUNT DATED JUNE 12, 1991
#MI-1491-00-4
XXXXXXX AND ASSOCIATES PROFIT SHARING
PLAN X/X/X XXXXXXX 0, 0000
XXXXXXX X. XXXXXXXX
By: White Pines Management, L.L.C.,
a Michigan limited liability
company, attorney-in-fact
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
45
COMERICA BANK BANK'S ADDRESS:
By: Xxxxxx X. Xxxx 000 Xxxxxxxx Xxxxxx
------------------------------- Xxxxxxx, XX 00000
Its: Assistant Vice President
-------------------------------
BORROWER'S ACKNOWLEDGMENT
The undersigned ("Borrowers") accept notice of the subordination created by this
Agreement and agree that they will take no action inconsistent with this
Agreement. Borrowers agree that the Bank may, at its option, without notice and
without limiting Bank's other rights, upon any breach by Creditors holding at
least 10% of the aggregate outstanding principal amount of the Subordinated
Indebtedness ("Material Creditors") of, or purported termination by Material
Creditors of, this Agreement, declare all Senior Indebtedness to be immediately
due and payable and/or terminate any commitments of Bank to Borrowers.
GENOMIC SOLUTIONS, INC. BORROWERS' ADDRESS
By: Xxxxxxx X. Xxxxxxxx 0000 Xxxxxxx Xxxxx
------------------------------- Xxx Xxxxx, XX 00000
Its: President & CEO
-------------------------------
GENOMIC SOLUTIONS, LTD
By: Xxxxxxx X. Xxxxxxxx
-------------------------------
Its: Chairman
-------------------------------
GENOMIC SOLUTIONS, K.K.
By: Xxxxxxx X. Xxxxxxxx
-------------------------------
Its: Director
-------------------------------
46
AMENDMENT NO. 1 TO SUBORDINATION AGREEMENT
This Amendment No. 1 to Subordination Agreement (this "Amendment") is made
as of March 24, 2000 by and among the Genomic Solutions, Inc., Genomic
Solutions, Ltd. and Genomic Solutions K.K., (each, a "Borrower") and, together,
(the "Borrowers"), the parties listed on the signature pages hereto as Creditors
(each "Creditor") and collectively ("Creditors") and Comerica Bank ("Bank").
RECITALS
A. The parties have entered into the Subordination Agreement dated as of
October 28, 1999 (the "Subordination Agreement").
B. The parties wish to amend the Subordination Agreement as provided herein.
THEREFORE, in consideration of the recitals, and other valuable
consideration, the receipt and sufficiency of which is acknowledge, Bank,
Borrowers and Creditors agree as follows:
1. The proviso following the phrase (the "Senior Indebtedness") in the tenth
line of Section 1 of the Subordination Agreement is amended to read:
provided, however, that Senior Indebtedness does not include aggregate
principal amounts at any one time outstanding in excess of the sum of (a) an
amount equal to $3,000,000 during the calendar year 1999, $6,000,000 during the
calendar year 2000, $7,000,000 during the calendar year 2001 and $8,000,000
during the calendar year 2002 and thereafter, plus (b) the aggregate principal
amount of all indebtedness owing from time to time from the Borrower to the
Bank secured by cash and/or cash equivalents to the extent such indebtedness is
paid or satisfied by such cash and/or cash equivalents.
1. Section 20 of the Subordination Agreement is amended to add the following
additional subsection 20G.
G. Notwithstanding anything to the contrary in this Agreement, if the
Borrower closes an initial public offering on or before June 1, 2001 pursuant
to the Registration Statement filed with the Securities and Exchange Commission
and proceeds of that initial public offering exceed $50,000,000 (an "IPO"),
then Creditors may ask for, demand, xxx for, take or receive from Borrowers the
full outstanding principal balance of the Notes notwithstanding whether a
Standstill Notice has been given to Creditors.
2. After an IPO, evidence of the Subordinated Indebtedness shall no longer be
required to contain the restrictive legend set forth in the second sentence of
Section 6 of the Subordination Agreement.
47
3. Except as amended by this Amendment, the terms of Subordination Agreement
shall remain in full force and effect.
Executed as of the date first written above.
[Signatures begin on the following page]
48
WHITE PINES LIMITED PARTNERSHIP I
By: White Pines G.P., L.L.C. its general
partner
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
PACIFIC CAPITAL, L.P.
By: WP Pacific G.P., L.L.C., a general
partner
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
IAN R. N. BUND
XXXXX CONSULTING ASSOCIATES, INC.
VOLUNTEER HEALTHCARE ASSOCIATES, L.L.C.
XXXXXX X. XXXXXX LIVING TRUST U/A/D
SEPTEMBER 9, 1997
McDONALD INVESTMENTS INC. CUSTODIAN
FBO XXXXXX X. XXXXX XXX ROLLOVER
ACCOUNT #00000000
XXXXXXX AND ASSOCIATES PROFIT SHARING
PLAN X/X/X XXXXXXX 0, 0000
XXXXXXX X. XXXXXXXX
By: White Pines Management, L.L.C.,
a Michigan limited liability
company, attorney-in-fact
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxxx X. Xxxxx, Chairman
49
COMERICA BANK BANK'S ADDRESS:
By: Xxxxxx X. Xxxx 000 Xxxxxxxx Xxxxxx
-------------------------- Xxxxxxx, XX 00000
Its: Assistant Vice President
-------------------------
BORROWER'S ACKNOWLEDGMENT
The undersigned ("Borrowers") accept notice of the subordination created by
this Agreement and agree that they will take no action inconsistent with this
Agreement. Borrowers agree that the Bank may, at its option, without notice
and without limiting Bank's other rights, upon any breach by Creditors holding
at least 10% of the aggregate outstanding principal amount of the Subordinated
Indebtedness ("Material Creditors") of, or purported termination by Material
Creditors of, this Agreement, declare all Senior Indebtedness to be immediately
due and payable and/or terminate any commitments of Bank to Borrower:
GENOMIC SOLUTIONS, INC. BORROWERS' ADDRESS
By: Xxxxxxx X. Xxxxxxxx 0000 Xxxxxxx Xxxxx
------------------------------- Xxx Xxxxx, XX 00000
Its: President and CEO
------------------------------
GENOMIC SOLUTIONS, LTD.
By: Xxxxxxx X. Xxxxxxxx
-------------------------------
Its: Chairman
------------------------------
GENOMIC SOLUTIONS, K.K.
By: Xxxxxxx X. Xxxxxxxx
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Its: Director
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