Exhibit 10.29
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Agreement"), dated as of May 1, 2001, is
entered into by and between LIFECELL CORPORATION, a Delaware corporation having
its principal executive offices at Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 ("Borrower") and PUBLIC SERVICE NEW MILLENNIUM ECONOMIC DEVELOPMENT FUND
L.L.C., a New Jersey limited liability company, having its principal executive
offices at 00 Xxxx Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx 00000 ("Lender").
RECITALS:
A. The Borrower and the Lender are parties to a certain Loan Agreement
and Assignment dated as of May 31, 2000, as amended pursuant to an Amendment
Agreement dated as of May 1, 2001 (said agreement, as so amended, the "Loan
Agreement") pursuant to which the following credit facility was made available
to the Borrower: a secured term loan in an aggregate principal amount of
$652,202.13 (the "Term Loan").
B. The Borrower has advised the Lender by letter dated April 2, 2001 of
certain issues regarding the Borrower's compliance with the Debt Service
Coverage Ratio set forth in Section 6 of the Loan Agreement, and accordingly has
requested an amendment to that covenant.
C. The Lender is willing to amend said covenants on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein, and for value received by each party, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS
1.1. EXISTING DEFINITIONS. Unless otherwise defined or modified
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herein, capitalized terms used herein shall have the meanings set forth in the
Loan Agreement.
SECTION 2. EXISTING OBLIGATIONS
2.1. ACKNOWLEDGMENT
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(a) The Borrower represents and warrants to the Lender that, after
giving effect to the amendment contemplated herein, (i) no Event of Default has
occurred and is continuing and (ii) no event has occurred and is continuing
which, with notice, lapse of time or both, would constitute an Event of Default.
(b) Subject to the continued compliance of the Amendment
Conditions set forth in Section 4 hereof, the Lender hereby agrees that the Debt
Service Coverage Ratio set forth in the Loan Agreement shall not be applicable
for the period commencing as of the January 1, 2001 and ending December 31,
2001, which period shall include the second, third and fourth fiscal quarters
for the fiscal year 2001 (the "Amendment Period"); provided, that (i) such
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amendment shall not apply to any other term, condition or covenant of the Loan
Agreement or any other Loan Document, (ii) such amendment shall be effective
only in connection with respect to non-compliance with the Debt Service Coverage
Ratio and solely for the Amendment Period, (iii) such amendment shall in no
event be interpreted or construed as the establishment or a course of dealings
between the Borrower and the Lender regarding the administration of the Loan,
including, but not limited to, the manner in which any issues of non-compliance
with the terms of any Loan Document may be cured in the future, and (iv) all of
the rights and remedies of the Lender are expressly reserved. The Borrower
further acknowledges that the Lender's agreement to amend as described above is
and constitutes good and valuable consideration in exchange for the Borrower's
agreement to and performance of each of the terms and conditions of this
Agreement.
2.2. ACKNOWLEDGMENT OF AMOUNTS OUTSTANDING. The Borrower acknowledges
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and agrees that, as of the date of this Agreement, the aggregate principal
amount outstanding under the Term Loan is $653,202.13 plus accrued and unpaid
interest and late charges, if any. The Borrower acknowledges and agrees that
such amounts outstanding under the Term Loan are the valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
the terms of the Loan Documents, and that, as of the date hereof, there are no
claims, set-offs or defenses to the payment thereof.
2.3. WAIVER OF CLAIMS AND DEFENSES; RELEASE.
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(a) The Borrower agrees that, as of the date hereof, it has no
claim, counterclaim, cause of action or defense of any kind by way of offset or
otherwise to the payment and satisfaction in full of the Loan. The foregoing
notwithstanding, to the extent that any such claim or defense may or does exist,
as of the date hereof, the Borrower waives and releases any and all such claims,
counterclaims, causes of action and defenses.
(b) The Borrower further waives and releases and affirmatively
agrees not to allege or otherwise pursue, in any manner, any and all defenses,
affirmative defenses, counterclaims, claims, causes of action, set-offs or other
rights that it may have as of the date hereof to contest: (i) any provisions of
the Loan Agreement and other Loan Documents; (ii) the rights of the Lender to
all rents, issues, profits, products and proceeds of the collateral for the
Loan; (iii) the liens for the benefit of the Lender in any property (whether
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real or personal, tangible or intangible), right or other interest, now or
hereafter arising in connection with the collateral for the Loan; (iv) any and
all acts or omissions of the Lender in administering the amounts outstanding
under the Loan Agreement, the consequences of this Amendment, or otherwise; and
the Borrower fully and forever releases and discharges the Lender from any and
all claims or liability of any kind or nature with respect to the foregoing.
2.4. REAFFIRMATION OF SECURITY INTEREST AND LIENS. The Borrower
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acknowledges and agrees that the security interests and other liens granted to
the Lender in the collateral described in the Loan Agreement given by the
Borrower in favor of the Lender are and remain valid and first priority liens on
the assets subject thereto. The Borrower further represents and warrants that
there are no claims, set-offs or defenses to the Lender's exercise of any rights
or remedies available to it as a creditor in realizing upon such collateral
under the terms and conditions of the Loan Documents. The Borrower further
acknowledges and agrees that the obligations secured by and under the Loan
Agreement include, but are not limited to, all such obligations of the Borrower
evidenced by the Note, as modified by this Agreement.
SECTION 3. RATIFICATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1. RATIFICATION. The Borrower hereby ratifies, confirms and
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restates, as if set forth herein in their entirety, all representations,
warranties, covenants, acknowledgments and agreements set forth in the Loan
Agreement, as amended hereby, at and as of the date hereof (other than
representations, warranties and covenants which expressly speak only as of a
different date), and affirmatively states that all of the same are true and
accurate and shall be and remain in full force and effect, subject only to
changes effected by this Agreement. In addition, the Borrower represents and
warrants to the Lender that:
(a) the Borrower has the power and authority to enter into this
Agreement;
(b) the audited financial statements of the Borrower for the
fiscal year ended December 31, 2000, which were furnished to the Lender in draft
form, were prepared in accordance with GAAP consistently applied throughout the
periods involved, and present fairly in all material respects the financial
position of the Borrower as at the date thereof and the results of operations
and cash flows of Borrower for the periods then ended;
(c) no changes having a material adverse effect have occurred
since the date of such financial statements referred to in Section 3.1(b) above;
(d) the execution, delivery and performance of this Agreement and
the instruments and agreements executed and delivered in connection herewith by
the Borrower have been duly authorized by all requisite corporate action and
this Agreement and the instruments and agreements executed and delivered in
connection herewith constitute the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with their terms;
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(e) the Borrower is not in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court or other governmental
authority which would have a material adverse effect on the business or
prospects of the Borrowers, financial or otherwise; and
(f) upon execution of this Amendment, no Event of Default or event
or circumstance which, with the passage of time, the giving of notice or both,
would constitute an Event of Default, has occurred and is continuing or will
result from the execution, delivery and performance of this Agreement and the
instruments and agreements executed and delivered in connection herewith.
SECTION 4. AMENDMENT CONDITIONS
4.1. AUDITS AND INSPECTIONS. In consideration of the amendment set
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forth in Section 2.1 above, notwithstanding the Audits and Inspections Paragraph
in Section 6 of the Loan Agreement, the Borrower agrees that Lender or its
designated representatives may visit the principal place of business, and
executive officers of the Borrower shall be available, in each case for the
purposes of reviewing and discussing the Books and Records of the Borrower
relating to the New Jersey Facility, the Project, the Obligations, the NJEDA
Payments and/or Borrower's reporting obligations pursuant to the Financial and
Other Information paragraph set forth in the Loan Agreement on at least a
monthly basis during regular business hours upon reasonable prior notice during
the term of the Amendment Period. The Borrower acknowledges and agrees that all
the other terms and provisions of the Audits and Inspections Paragraph in
Section 6 of the Loan Agreement remain in full force and effect. Violation of
this covenant shall constitute a breach of the Loan Agreement.
4.2. COSTS AND EXPENSES. The Borrower acknowledges and agrees that it
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shall reimburse and/or indemnify the Lender, its counsel and its designated
representatives for all costs and expenses incurred in connection with the
consideration of the amendment set forth herein, the preparation of this
Agreement, and the ongoing administration of the Loan (including, without
limitation, the monthly inspection contemplated in Section 4.1 above). Lender's
counsel fees shall be settled on or before the date of this Agreement with
payment to said counsel made directly to such counsel by the Borrower in
accordance with such counsel's invoice presented to the Borrower on or about
such date.
SECTION 5. MISCELLANEOUS.
5.1. CONTINUED EFFECTIVENESS. Except as specifically amended by and/or
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inconsistent with this Agreement, all of the terms and conditions of the Loan
Agreement shall remain unchanged and in full force and effect and are hereby
ratified, adopted and confirmed in all respects. All references to the Loan
Agreement in any Loan Document shall hereafter be deemed to refer to the Loan
Agreement as amended prior to the date hereof and by this Agreement. This
Agreement is a Loan Document.
5.2. ENTIRE AGREEMENT. This Agreement, together with the other Loan
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Documents, constitutes the entire agreement between the parties with respect to
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the subject matter hereof and supersedes any prior agreements, written or oral,
with respect to such subject matter.
5.3. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement, and any party may execute
this Agreement by signing any such counterpart.
5.4. GOVERNING LAW. This Agreement shall be interpreted, and the
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rights and liabilities of the parties hereto, whether arising in contract or
tort and howsoever pertaining to the parties' relationship, shall be determined
in accordance with the laws of the State of New Jersey.
5.5. HEADINGS. The section titles contained in this Agreement shall be
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without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties.
5.6. SEVERABILITY. If any term or provision of this Agreement or the
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application thereof to any person or circumstance shall to any extent be
determined by a court or arbiter of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid and unenforceable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above-written.
LIFECELL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, CFO
PUBLIC SERVICE NEW MILLENNIUM
ECONOMIC DEVELOPMENT FUND L.L.C.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
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