FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this
"Amendment") effective as of the 31st day of December, 1997,
among INTERNATIONAL MUREX TECHNOLOGIES CORPORATION, MUREX
DIAGNOSTICS INTERNATIONAL, INC., MUREX DIAGNOSTICS CORPORATION,
IMTC HOLDINGS (UK) LIMITED, MUREX DIAGNOSTICS, INC. and MUREX
BIOTECH LIMITED, as Borrowers (collectively, the "Borrowers" and
each, a "Borrower"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (as successor by merger to Bank of America Illinois),
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
ACTING THROUGH ITS LONDON BRANCH, as Issuing Banks (collectively,
the "Issuing Banks" and each, an "Issuing Bank"), BANK OF
AMERICA, F.S.B., as Agent (the "Agent") and the financial
institutions listed on the signature pages hereof as Lenders (the
"Lenders"),
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Issuing Bank
and the Agent are parties to that certain Credit Agreement dated
as of November 12, 1996 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, the Borrowers have requested that certain
terms of the Credit Agreement be amended, and the Agent, the
Issuing Bank and the Lenders have agreed to the requested
amendments on the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration paid by each
party to the other, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Article I. Article I of the Credit
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Agreement, Definitions, is hereby amended by deleting the
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definitions of "BAI", "Borrower Representative", and "Borrowers"
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set forth therein in their entirety and substituting the
following, respectively, in their place:
""BAI" means Bank of America National Trust and Savings
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Association, as successor by merger to Bank of America
Illinois.
"Borrower Representative" means International Murex
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Technologies Corporation, a corporation organized under the
laws of the Province of British Columbia, or any other
Borrower selected by the Borrowers in accordance with
Section 2.20.
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"Borrowers" means International Murex Technologies
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Corporation, a corporation organized under the laws of the
Province of British Columbia, Murex Diagnostics
International, Inc., a corporation organized under the laws
of Barbados, Murex Diagnostics Corporation, a corporation
organized under the laws of Barbados, IMTC Holdings (UK)
Limited, a corporation organized under the laws of England,
Murex Diagnostics, Inc., a corporation organized under the
laws of the State of Delaware (individually and as the
successor by merger to IMTC Holdings, Inc.) and Murex
Biotech Limited, a corporation organized under the laws of
England, and "Borrower" means any of the foregoing."
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2. Amendment to Article VI. Article VI of the Credit
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Agreement, Representations and Warranties, is hereby amended by
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adding the following Section 6.27 to the end thereof:
"6.27 Year 2000 Compliance. Each Borrower has
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conducted a comprehensive review and assessment of its
computer applications with respect to the "year 2000
problem" (that is, the risk that computer applications may
not be able to properly perform date-sensitive functions
after December 31, 1999) and, based on that review, such
Borrower does not believe the year 2000 problem will result
in a material adverse change in such Borrower's business
condition (financial or otherwise), operations, properties
or prospects, or ability to repay the Obligations."
3. Amendment to Section 8.9. Section 8.9 of the Credit
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Agreement, Contingent Obligations, is hereby deleted in its
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entirety and replaced with the following:
"8.9 Contingent Obligations. IMTC shall not, and
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shall not suffer or permit any Material Subsidiary to,
create, incur, assume or suffer to exist any Contingent
Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Contingent Obligations of IMTC and its
Material Subsidiaries existing as of the Agreement Date
and listed in Schedule 8.9;
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(c) Guaranty Obligations entered into by (i) IMTC
not exceeding $1,450,000 in the aggregate at any time
outstanding with respect to obligations of Murex
Biotech S.A. (Pty) Limited in connection with the
construction of a manufacturing facility in South
Africa, and (ii) IMTC or any Material Subsidiary after
the Agreement Date with respect to any other
obligations of an Affiliate of IMTC and not exceeding
$1,000,000 in the aggregate at any time outstanding."
4. Amendment to Section 8.18. Section 8.18 of the Credit
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Agreement, Capital Expenditures, is hereby deleted in its
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entirety and replaced with the following:
"8.18 Capital Expenditures. IMTC and its Subsidiaries
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shall not make or incur during (a) the fiscal year ending on
December 31, 1997, in the aggregate any Capital Expenditures
in excess of $10,500,000 and (b) the fiscal year ending on
December 31, 1998, and during each fiscal year thereafter,
in the aggregate any Capital Expenditures in excess of
$7,000,000."
5. No Other Amendment. Except for the amendments
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expressly set forth above, the text of the Credit Agreement and
all other Loan Documents shall remain unchanged and in full force
and effect. Each Borrower acknowledges and expressly agrees that
the Lenders reserve the right to, and do in fact, require strict
compliance with all terms and provisions of the Credit Agreement
and the other Loan Documents.
6. Representations and Warranties. Each Borrower hereby
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represents and warrants in favor of the Agent, the Issuing Banks,
and each Lender, as follows:
(a) such Borrower has the corporate power and
authority (i) to enter into this Amendment, and (ii) to do
all acts and things as are required or contemplated
hereunder to be done, observed and performed by it;
(b) this Amendment has been duly authorized, validly
executed and delivered by one or more authorized signatories
of such Borrower, and constitutes the legal, valid and
binding obligation of the Borrower, enforceable against such
Borrower in accordance with its terms;
(c) the execution and delivery of this Amendment and
performance by such Borrower under the Credit Agreement, as
amended hereby, do not and will not require the consent or
approval of any regulatory authority or governmental
authority or agency having jurisdiction over such Borrower
which has not already been obtained, nor contravene or
conflict with the charter documents of such Borrower, or the
provisions of any statute, judgment, order, indenture,
instrument, agreement or undertaking, to which such Borrower
is a party or by which any of its properties are or may
become bound; and
(d) as of the date hereof, and after giving effect to
this Amendment (i) no Default or Event of Default exists
under the Credit Agreement or is caused by this Amendment,
and (ii) each presentation and warranty set forth in Article
VI of the Credit Agreement is true and correct in all
material respects, except (x) to the extent previously
fulfilled in accordance with the terms of the Credit
Agreement, as amended hereby, or (y) to the extent
specifically relating to the Agreement Date.
7. Loan Document. This Amendment shall be deemed to be a
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Loan Document for all purposes.
8. Expenses. The Borrowers agree to pay all reasonable
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expenses of the Agent incurred in connection with this Amendment,
including, without limitation, all fees and expenses of counsel
to the Agent.
9. Counterparts. This Amendment may be executed in
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multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one
and the same agreement. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
10. Governing Law. This Amendment shall be deemed to be
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made pursuant to the laws of the State of Georgia with respect to
agreements made and to be performed wholly in the State of
Georgia, and shall be construed, interpreted, performed and
enforced in accordance therewith.
11. Definitions. All capitalized terms not otherwise
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defined herein shall have the meanings set forth in the Credit
Agreement.
12. Effectiveness. This Amendment shall be effective as of
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the date first set forth above upon the Agent's receipt of a
counterpart hereof duly executed by the Borrowers, the Issuing
Banks and the Lenders.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment or caused it to be executed by their duly
authorized officers, effective as of the day and year first
written above.
BORROWERS: INTERNATIONAL MUREX TECHNOLOGIES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: CFO
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MUREX DIAGNOSTICS INTERNATIONAL,
INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Director
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MUREX DIAGNOSTICS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: Director
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IMTC HOLDINGS (UK) LIMITED
By: /s/ Xxxxxx X. Xxxxxx
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Title: Director
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MUREX DIAGNOSTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: VP Finance
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MUREX BIOTECH LIMITED
By: /s/ Xxxxxx X. Xxxxxx
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Title: Director
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AGENT: BANK OF AMERICA, FSB
By: /s/ Xxxx Yankavskas
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Title: V.P.
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LENDERS: BANK OF AMERICA, FSB
By: /s/ Xxxx Yankavskas
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Title: V.P.
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, acting through
its London Branch
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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ISSUING BANKS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, acting through
its London Branch
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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