FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “First Amendment”) is dated effective as of January 10, 2024 (the “First Amendment Effective Date”), by and among INDCO, INC., a Tennessee corporation
(“INDCO”), ANTIBODIES INCORPORATED, a California corporation (“Antibodies”), AVES
LABS, INC., an Oregon corporation (“Aves”), PHOSPHOSOLUTIONS LLC, a Nevada limited liability company (“PSLLC”), IMMUNOCHEMISTRY TECHNOLOGIES LLC, a Minnesota limited liability company (“ICT”), ECM BIOSCIENCES, LLC, a Kentucky limited
liability company (“ECM”), XXXXXXX XXXX PHD LTD, an Indiana corporation (“SAH”),
IMMUNOBIOSCIENCE CORP., a Washington corporation (“IBSC”, and collectively with INDCO, Antibodies, Aves, PSLLC, ITC, ECM and SAH, the “Borrowers”), XXXXX CORPORATION, a Nevada corporation (“Guarantor”), and FIRST MERCHANTS BANK, an Indiana
bank (“Bank”).
Recitals
1. The Borrowers and Bank are parties to that certain Amended and Restated Credit Agreement, dated as of April 25, 2023 (the “Credit Agreement”).
2. Borrowers have requested that Bank amend the Credit Agreement to, among other things, permit certain Permitted Affiliate Loans.
3. Subject to the terms and conditions stated in this First Amendment, Bank and Borrowers are willing to modify and amend the Credit Agreement and the other Loan Documents, as provided in this First Amendment.
Agreement
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements herein, and each act performed and to be performed
hereunder, Bank, Xxxxxxxxx and Guarantor agree as follows:
1. Definitions. Except as otherwise expressly stated in this First Amendment, all terms used in the Recitals and in this First Amendment that are defined in the
Credit Agreement, and that are not otherwise defined herein, shall have the same meanings in this First Amendment as are ascribed to them in the Credit Agreement.
2. Amendments to Credit Agreement. Effective as of the First Amendment Effective Date, the following amendments are made to the Credit Agreement:
(a) New Definitions. The following definitions are added to Section 1.03 of the Credit Agreement to read in their entirety as follows:
“First Amendment” means that certain
First Amendment to Amended and Restated Credit Agreement, dated as of the First Amendment Effective Date, by and among the Borrowers, Parent and the Bank.
“First Amendment
Effective Date” means January 10, 2024.
“Permitted Affiliate Loans” loans
made by any Borrower to Parent or any Subsidiary of Parent that is not a Loan Party so long as (i) Availability, both before and after giving effect to any such loan, is not less than $1,000,000.00, (ii) the maturity date of each such loan shall
not exceed 14 days from the date of making such loan, (iii) such loans are paid in full on or prior to the applicable maturity date thereof, and (iv) at the time of making each such loan, no Event of Default shall be continuing.
(b) Amendment to Section 5.02(c)(8). Section 5.02(c)(8) of the Credit Agreement is amended and, as so amended, restated in its entirety as follows:
(8) (i) Permitted Affiliate Loans, and (ii) other Investments made in the ordinary course of business so long as (A) no Event of Default exists when such Investment is consummated and (B) the aggregate amount of such Investments does
not exceed $500,000 at any time.
3. Representations and Warranties. Each Borrower and Guarantor represents and warrants to Bank as follows:
(a) The execution and
delivery of this First Amendment, the execution and delivery of all of the other Loan Documents in connection herewith and the performance by each Loan Party of its obligations under this First Amendment and all of the other Loan Documents
executed in connection herewith are within the organizational powers of such Loan Party, have been duly authorized by all necessary organizational action, have
received any required governmental or regulatory agency approvals and do not and will not materially contravene or conflict with any provision of law or of the Organizational Documents of such Loan Party or of any agreement binding upon such
Loan Party. This First Amendment and all of the other Loan Documents executed in connection herewith to which each Loan Party is a party are the legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in
accordance with their respective terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws enacted for the relief of debtors generally and other similar laws
affecting the enforcement of creditors’ rights generally or by equitable principles which may affect the availability of specific performance and other equitable remedies.
(b) After giving
effect to the amendments contained in this First Amendment, the representations and warranties contained in Article III of the Credit Agreement are true and correct on and as of the First Amendment Effective Date with the same force and effect
as if made on and as of the First Amendment Effective Date, except representations and warranties which relate solely to an earlier date or time, which representations and warranties were true and correct on and as of the specific dates or
times referred to therein.
(c) No Event of
Default or Unmatured Event of Default has occurred and is continuing or will exist under the Credit Agreement as of the First Amendment Effective Date.
4. Consent of Guarantor. Guarantor represents and warrants to Bank as follows:
(a) Guarantor, by its execution of this First Amendment, expressly consents to the execution, delivery and performance by the Borrowers and Bank of this First Amendment and all agreements, instruments and documents delivered pursuant
hereto, and agrees that neither the provisions of this First Amendment nor any action taken or not taken in accordance with the terms of this First Amendment shall constitute a termination, extinguishment, release, or discharge of any of its
obligations under the Guaranty to which it is a party, or provide a defense, set off, or counterclaim to it with respect to its obligations under the Guaranty to which it is a party or any other Loan Documents. Guarantor affirms to Bank that
the Guaranty to which it is a party is in full force and effect, is a valid and binding obligation of Guarantor and continues to secure and support the Guaranty Obligations (as defined therein).
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(b) The request for and the grant of the confirmations, consents and waivers given herein shall not establish a course of conduct or dealing among Bank and the Guarantor and shall not impose any obligation on Bank to consult with,
notify or obtain the consent of the Guarantor in the future if the financial accommodations provided to the Borrowers should be revised, amended or increased.
5. Conditions. The obligations of Bank to execute and to perform this First Amendment shall be subject to full satisfaction of the following conditions precedent
on or before the First Amendment Effective Date:
(a) There shall exist no Event of Default or Unmatured Event of Default.
(b) Bank shall have received copies, certified as of the First Amendment Effective Date, of such corporate or limited liability company documents or resolutions of Borrowers and Guarantor as Bank may request evidencing necessary
corporate or limited liability company action by Borrowers and Guarantor with respect to this First Amendment and all other agreements or documents delivered pursuant hereto as Bank may reasonably request.
(c) All liens in favor of Bank shall be in full force and effect with the required first priority, subject to Liens by the Credit Agreement.
(d) This First Amendment shall have been duly executed and delivered by Xxxxxxxxx and Guarantor to Bank.
(e) Bank shall have received such additional agreements, documents and certifications, fully executed by Xxxxxxxxx and Guarantor, as may be reasonably requested by Bank.
6. Fees. Upon demand, Borrowers shall promptly pay all reasonable and documented costs and expenses incurred by Bank in connection with the negotiation,
preparation and closing of this First Amendment and the other documents and agreements delivered pursuant hereto, including the reasonable and documented fees and out-of-pocket expenses of Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to
Bank.
7. Waiver of Defenses and Claims. In consideration of the financial accommodations provided to Borrowers by Bank as contemplated by this First Amendment, each
Borrower and Guarantor hereby, jointly and severally, waives, releases, and forever discharges Bank from and against any and all rights, claims or causes of actions of any Borrower or Guarantor against Bank arising from Bank’s actions or
inactions with respect to the Loan Documents or any security interest, lien or collateral in connection therewith as well as any and all rights of set off, defenses, claims, causes of action and any other bar to the enforcement of the Loan
Documents which exist as of the First Amendment Effective Date.
8. Binding on Successors and Assigns. All of the terms and provisions of this First Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives.
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9. Governing Law/Entire Agreement/Survival/Miscellaneous. This First Amendment is a contract made under, and shall be governed by and construed in accordance
with, the laws of the State of Illinois applicable to contracts made and to be performed entirely within such state and without giving effect to the choice or conflicts of laws principles of any other jurisdiction. This First Amendment
constitutes and expresses the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, commitments, inducements or conditions, whether expressed or implied, oral
or written. All covenants, agreements, undertakings, representations and warranties made in this First Amendment shall survive the execution and delivery of this First Amendment, and shall not be affected by any investigation made by any
person. The Credit Agreement, as amended hereby, remains in full force and effect in accordance with its terms and provisions.
10. Amendment of Other Loan Documents. All references to the Credit Agreement in the other Loan Documents shall mean the Credit Agreement, as modified and amended
by this First Amendment and as it may be further amended, modified, extended, renewed, supplemented and/or restated from time to time and at any time. The other Loan Documents are hereby modified and amended to the extent necessary to conform
them to, or to cause them to accurately reflect, the terms of the Credit Agreement, as modified by this First Amendment. Except as otherwise expressly provided herein, all of the terms and provisions of the Credit Agreement and the other Loan
Documents, as modified and amended by this First Amendment, remain in full force and effect, and fully binding on the parties thereto and their respective successors and assigns.
11. Further Assurances. The parties shall duly execute and deliver, or cause to be executed and delivered, such further instruments and perform or cause to be
performed such further acts as may be necessary or proper in the reasonable opinion of any other party to carry out the provisions and purposes of this First Amendment.
12. Counterparts. This First Amendment may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one agreement. In the event any party executes and delivers this First Amendment via facsimile or other electronic transmission, such party hereby agrees that for the purposes of enforcement and all applicable statutes,
laws and rules, including, without limitation, the Uniform Commercial Code, rules of evidence and statutes of fraud: (i) the facsimile or electronic signature of such party shall constitute a binding signature of such party as a symbol and mark
executed and adopted by such party with a present intention to authenticate this First Amendment; (ii) the facsimile or electronic transmission of this First Amendment shall constitute a writing signed by such party; and (iii) the facsimile or
electronic transmission of this First Amendment shall constitute an original of and best evidence of this First Amendment.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their respective authorized
signatories effective as of the date set forth above.
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INDCO, INC.
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ANTIBODIES INCORPORATED
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PHOSPHOSOLUTIONS LLC
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ECM BIOSCIENCES, LLC
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AVES LABS, INC.
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IMMUNOCHEMISTRY TECHNOLOGIES LLC
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XXXXXXX XXXX PHD LTD
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IMMUNOBIOSCIENCE CORP.
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By:
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Xxxxxx X. Xxxxxx, Vice President
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XXXXX CORPORATION
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By:
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Xxxxxx X. Xxxxxx, President
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Signature Page to First Amendment to Amended and Restated Credit Agreement
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FIRST MERCHANTS BANK
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By:
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Xxxx Xxxxxxxx, Vice President
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Signature Page to First Amendment to Amended and Restated Credit Agreement
