EXHIBIT 10.47
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[FINAL] EXECUTION COPY
AMENDMENT NO. 6
dated as of October 10, 2001
to
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 6 dated as of October 10, 2001 (this "Amendment") is
made between Nabi, a Delaware corporation (the "Borrower"), the financial
institutions party from time to time to the Loan Agreement referred to below
(the "Lenders"), and Bank of America, N.A., a national banking association, as
agent for the Lenders (in that capacity, together with any successors in that
capacity, the "Agent").
Preliminary Statements
The Borrower, the Lenders and the Agent are parties to a Loan and
Security Agreement dated as of September 12, 1997, as amended by Amendment No. 1
and Waiver dated November 14, 1997, Amendment No. 2 and Waiver dated March 30,
1998, Amendment No. 3 and Waiver dated as of March 1, 1999, Amendment No. 4
dated as of February 1, 2000 and Amendment No. 5 dated as of October 25, 2000
(the "Loan Agreement"; unless otherwise defined herein, terms are used herein as
defined in the Loan Agreement).
The Borrower has requested that the Lenders amend certain provisions of
the Loan Agreement as hereinafter set forth, and the Lenders have agreed, upon
and subject to the terms, conditions and provisions of this Amendment.
Statement of Agreement
NOW, THEREFORE, in consideration of the Loan Agreement, the Loans made
by the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement. The Loan Agreement is hereby
amended, subject to the provisions of Section 2 of this Amendment,
(a) by amending Section 7.1 Collection of Receivables by adding at
the end thereof a new subsection (d) to read as follows:
(d) Notwithstanding the foregoing, the Borrower shall not
be required to comply with the provisions of SECTIONS 7.1(B) and (C)
with respect to the collection and remittance of proceeds of Collateral
unless and until the Borrower has Revolving Credit Loans outstanding,
on the average, in an aggregate principal amount greater than
$1,000,000 for a period of five consecutive Business Days and the Agent
shall have given notice to the Borrower of its intention to require
compliance with such provisions.
(b) by amending subsection (c) of Section 7.12 Information and
Reports in its entirety to read as follows:
(c) Borrowing Base Certificate. The Borrower shall
deliver to the Agent and the Lenders (i) whenever there are Revolving
Credit Loans outstanding in an aggregate principal amount in excess of
$1,000,000 and Revolving Credit Availability is less than $10,000,000,
on the third day of each week, a Borrowing Base Certificate prepared as
of the close of business on the last Business Day of the preceding week
and (ii) at any other time, not later than the 15th day of each month,
a Borrowing Base Certificate prepared as of the close of business on
the last day of the preceding month.
(c) by amending Section 10.5 Capital Expenditures in its entirety
to read as follows:
SECTION 10.5 Capital Expenditures. Make or incur any
Capital Expenditures, in excess in the aggregate, of the amount set
forth below for the Fiscal Year of the Borrower set forth opposite such
amount:
Fiscal Year Amount
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1998 $33,500,000
1999 $24,000,000
2000 $27,900,000
2001 $17,500,000
Each Fiscal Year thereafter $10,000,000 or such greater or
lesser amount as may be agreed
to by the Borrower and the
Required Lenders
Section 2. Effectiveness of Amendment. This Amendment shall become
effective as of the date hereof on the date (the "Amendment No. 6 Effective
Date") on which the Agent shall have received (1) counterparts of this Amendment
duly executed and delivered by the Borrower, each Lender and the Agent, which
shall be in form and substance satisfactory to the Agent and in sufficient
copies for each Lender, (2) a certificate of the president or chief financial
officer of the Borrower stating that, to the
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best of his knowledge and based on an examination sufficient to enable him to
make an informed statement, (i) all of the representations and warranties made
or deemed to be made under the Loan Agreement are true and correct in all
material respects on and as of the Amendment No. 6 Effective Date, and (ii) no
Default or Event of Default exists (and the Administrative Agent shall be
satisfied as to the truth and accuracy thereof), (3) the Confirmation of
Guarantors attached hereto as ANNEX A duly executed and delivered by each
Guarantor; and (4) such other documents and instruments as the Agent or any
Lender may reasonably request.
Section 3. Representations and Warranties. The Borrower hereby makes
the following representations and warranties to the Agent and the Lenders, which
representations and warranties shall survive the delivery of this Amendment and
the making of additional Loans under the Loan Agreement as amended hereby:
(a) Authorization of Agreements. The Borrower has the right and
power, and has taken all necessary action to authorize it, to execute, deliver
and perform this Amendment and each other agreement contemplated hereby to which
it is a party in accordance with their respective terms. This Amendment and each
other agreement contemplated hereby to which it is a party have been duly
executed and delivered by the duly authorized officers of the Borrower and each
is, or each when executed and delivered in accordance with this Amendment will
be, a legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(b) Compliance of Agreements with Laws. The execution, delivery
and performance of this Amendment and each other agreement contemplated hereby
to which the Borrower is a party in accordance with their respective terms do
not and will not, by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or by-laws
or any shareholders' agreement of the Borrower or any of its
Subsidiaries, any material provisions of any indenture, agreement or
other instrument to which the Borrower, any of its Subsidiaries or any
of Borrower's or such Subsidiaries' property may be bound or any
Governmental Approval relating to the Borrower or any of its
Subsidiaries, or
(iii) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by the Borrower other than the Security Interest.
Section 4. Expenses. The Borrower agrees to pay or reimburse on
demand all costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel, incurred by the Agent in connection with the
negotiation, preparation,
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execution and delivery of this Amendment and the other Loan Documents
contemplated hereby.
Section 5. Effect of Amendment. From and after the Amendment
Effective Date, all references in the Loan Agreement and in any other Loan
Document to "this Agreement," "the Loan Agreement," "hereunder," "hereof" and
words of like import referring to the Loan Agreement, shall mean and be
references to the Loan Agreement as amended by this Amendment. Except as
expressly amended hereby, the Loan Agreement and all terms, conditions and
provisions thereof remain in full force and effect and are hereby ratified and
confirmed. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
Section 6. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart signature page of any party
hereto by facsimile transmission shall be effective as delivery of a manually
delivered counterpart thereof.
(b) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, without giving
effect to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
[CORPORATE SEAL] BORROWER:
Attest: Nabi
By: /s/ Xxxxxxx X. Link By: /s/ Xxxxxx X. Xxxx, Ph.D.
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Name: Xxxxxxx X. Link Name: Xxxxxx X. Xxxx, Ph.D.
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Title: Manager, Project Management Title: Senior Vice President
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AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Vice President
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ANNEX A
CONSENT AND CONFIRMATION OF GUARANTORS
The undersigned, each in its capacity as a Guarantor under the
Subsidiary Guaranty dated as of September 12, 1997 (as modified or amended to
date, the "Subsidiary Guaranty"), in favor of the Lenders, hereby confirms, for
the benefit of the Borrower and the Lenders, that (1) such Guarantor is a
Subsidiary of Borrower, (2) such Guarantor has received a copy of Amendment No.
6 dated as of October 10, 2001 and consents thereto (to the extent such consent
may be required) and (3) the Subsidiary Guaranty of which such Guarantor is the
maker constitutes a continuing, unconditional, guaranty of the Secured
Obligations under and as defined in the Subsidiary Guaranty. Each of the
undersigned is and continues to be liable under the Subsidiary Guaranty in
accordance with the terms thereof, notwithstanding the execution and delivery of
the aforesaid Amendment.
Dated: October 30, 2001
BIOMUNE CORPORATION
[CORPORATE SEAL] By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
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Title: Treasurer
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NABI FINANCE, INC.
[CORPORATE SEAL] By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
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Title: President
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