LOAN AGREEMENT
AMONG
IMMUCOR, INC.,
DOMINION BIOLOGICALS LIMITED,
AND
IMMUCOR MEDIZINISCHE DIAGNOSTIK GMBH,
AS BORROWERS,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION, AS LENDER,
DATED AS OF FEBRUARY 23, 2001
TABLE OF CONTENTS
1. DEFINITIONS, TERMS AND REFERENCES...................................1
1.1. Certain Definitions........................................1
1.2 Use of Defined Terms......................................16
1.3 Accounting Terms..........................................16
1.4 UCC Terms.................................................16
1.5 Terminology...............................................16
2. FINANCING..........................................................17
2.1 Extensions of Credit......................................17
2.1.1 U.S. Line of Credit............................17
2.1.2 Temporary Line of Credit.......................17
2.1.3 Canadian Line of Credit........................18
2.1.4 German Line of Credit..........................18
2.1.5 Aggregate Limitation on Advances Under
Lines of Credit................................19
2.1.6 Term Loan A....................................19
2.1.7 Term Loan B....................................19
2.1.8 CAD Term Loan..................................19
2.2 Interest and Other Charges................................20
2.2.1 Interest at Applicable Rate....................20
2.2.2 Fees...........................................22
2.2.3 Capital Adequacy...............................24
2.2.4 Usury Savings Provisions.......................24
2.2.5 Margin Stock Savings Provisions................24
2.2.6 Increased Cost.................................24
2.3 General Provisions as to Payments.........................25
2.3.1 Method of Payment..............................25
2.3.2 Application of Payment.........................25
2.4 Mandatory Term Loan Prepayments...........................25
2.5 Payments to be Made Free of Taxes.........................25
2.6 Failure to Pay in Foreign Currency........................26
2.7 Funding Indemnification...................................26
2.8 U.S. Borrower Guaranty....................................26
3. REPRESENTATIONS AND WARRANTIES.....................................28
3.1 Existence and Qualification...............................28
3.2 Authority; Validity and Binding Effect....................28
3.3 Incumbency and Authority of Signing Officer...............28
3.4 No Material Litigation....................................28
3.5 Taxes.....................................................28
3.6 Capital Stock.............................................28
3.7 Corporate Organization....................................29
3.8 Insolvency................................................29
3.9 Title.....................................................29
3.10 Margin Stock..............................................29
3.11 No Violations.............................................29
3.12 Financial Statements......................................29
3.13 Pollution and Environmental Control.......................29
3.14 Possession of Permits.....................................29
3.15 Subsidiaries..............................................30
3.16 Employee Benefit Plans....................................30
3.18 Reaffirmation.............................................30
4. AFFIRMATIVE COVENANTS..............................................30
4.1 Right to Inspect..........................................30
4.2 Financial and Other Reporting.............................30
4.2.1 U.S. Borrower's Monthly Statement..............30
4.2.2 U.S. Borrower's Quarterly Statement............30
4.2.3 Borrower's Annual Statement....................30
4.2.4 Management Letters, Etc........................31
4.2.5 SEC Filings and Press Releases.................31
4.2.6 Default Notices................................31
4.2.7 Certificate of No Default......................31
4.2.8 Budget.........................................31
4.2.9 Certain Required Notices.......................31
4.2.10 Borrowing Base Certificate and Other Collateral
Reports........................................31
4.2.11 Other Documents or Information.................32
4.3 Payment of Taxes..........................................32
4.4 Maintenance of Insurance..................................32
4.5 Maintenance of Property...................................32
4.6 Preservation of Corporate Existence.......................32
4.7 Compliance With Laws......................................32
4.8 Certain Post-Closing Matters..............................32
5. NEGATIVE COVENANTS.................................................33
5.1 Liens.....................................................33
5.2 Debt......................................................33
5.3 Contingent Liabilities....................................34
5.4 Dividends.................................................34
5.5 Redemptions...............................................34
5.6 Restricted Investments....................................34
5.7 Mergers...................................................34
5.8 Affiliate Transactions....................................34
5.9 Subsidiaries..............................................34
5.10 Fiscal Year...............................................34
5.11 Disposition of Assets.....................................35
5.12 Employee Benefit Plans....................................35
5.13 Excluded Subsidiaries.....................................35
5.14 Certain Capital Expenditures..............................35
6. FINANCIAL COVENANTS................................................35
6.1 Fixed Charge Coverage Ratio...............................35
6.2 Funded Debt/EBITDA Ratio..................................35
6.3 Leverage Ratio............................................36
6.4 Interest Coverage Ratio...................................36
7. EVENTS OF DEFAULT..................................................36
7.1 Obligations...............................................36
7.2 Misrepresentations........................................37
7.3 Certain Covenants.........................................37
7.4 Other Covenants...........................................37
7.5 Other Debts...............................................37
7.6 Voluntary Bankruptcy......................................37
7.7 Involuntary Bankruptcy....................................37
7.8 Judgments.................................................37
7.9 Material Adverse Effect...................................37
7.10 Change of Control.........................................37
7.11 Change in Management......................................38
7.11 Change in Management......................................38
8. REMEDIES 37
8.1 Acceleration of the Obligations...........................38
8.2 Default Rate..............................................38
8.3 Other Remedies............................................38
8.4 Set Off...................................................38
9. MISCELLANEOUS......................................................39
9.1 Waiver....................................................39
9.2 Governing Law.............................................39
9.3 Survival..................................................39
9.4 No Assignment by Borrower.................................39
9.5 Counterparts..............................................39
9.6 Reimbursement.............................................39
9.7 Successors and Assigns....................................40
9.8 Severability..............................................40
9.9 Notices...................................................40
9.10 Entire Agreement; Amendments..............................40
9.11 Time of Essence...........................................40
9.12 Interpretation............................................40
9.13 Lender Not a Joint Venturer...............................40
9.14 Jurisdiction..............................................40
9.15 Acceptance................................................41
9.16 Payment on Non-Business Days..............................41
9.17 Cure of Defaults by Lender................................41
9.18 Recitals..................................................41
9.19 Sole Benefit..............................................41
9.20 Indemnification...........................................41
9.21 Jury Trial Waiver.........................................41
9.22 Judgment Currency.........................................41
10. CONDITIONS PRECEDENT...............................................42
10.1 Conditions to Initial Loans...............................42
10.1.1 Loan Documents.................................42
10.1.2 Reserved.......................................42
10.1.3 No Default.....................................42
10.1.4 Secretary's Certificate........................42
10.1.5 Good Standing Certificates.....................42
10.1.6 Articles/By-Laws...............................43
10.1.7 Solvency Certificate...........................43
10.1.8 Opinion of Counsel.............................43
10.1.9 Telephone Instruction Letter...................43
10.2 Conditions to all Loans...................................43
10.2.1 Representations and Warranties.................43
10.2.2 Material Adverse Effect........................43
10.2.3 Default Condition or Event of Default..........43
10.2.4 Actions or Proceedings.........................43
10.2.5 No Violation of Law............................43
EXHIBIT A ....- Form of Master Note
EXHIBIT B ....- Form of CAD Term Note
EXHIBIT C-1 ....- Form of Term Note A
EXHIBIT C-2 ....- Form of Term Note B
EXHIBIT D-1 ... - Form of Guaranty
EXHIBIT D-2 ... - Form of Stock Pledge Agreement
EXHIBIT E ....- Not Used
EXHIBIT F ....- Form of Certificate of No Default
EXHIBIT G ....- Form of Secretary's Certificate (Borrower)
EXHIBIT H ....- Form of Secretary's Certificate (Guarantor)
EXHIBIT I ....- Form of Solvency Certificate
EXHIBIT J ....- Form of Opinion of Counsel
EXHIBIT K ....- Form of Telephone Instruction Letter
EXHIBIT L ....- Form of Borrowing Base Certificate
Schedule 1.1A .... Existing Credit Facilities and Foreign Credit
Facility Liens
Schedule 1.1B ..... Existing Capital Leases
Schedule 3.4 .....- Material Litigation
Schedule 3.15 .....- Subsidiaries
Schedule 3.16 .....- Employee Benefit Plans
LOAN AGREEMENT
PREAMBLE. THIS AGREEMENT, made, entered into and effective as of February 23,
2001 by and between IMMUCOR, INC., a Georgia corporation ("U.S. Borrower"),
DOMINION BIOLOGICALS LIMITED, the successor by amalgamation to 3000524 Nova
Scotia Limited and itself a corporation incorporated under the laws of Canada
("Canadian Borrower"), and IMMUCOR MEDIZINISCHE DIAGNOSTIK GMBH, a corporation
incorporated under the laws of the Federal Republic of Germany ("German
Borrower"; U.S. Borrower, Canadian Borrower and German Borrower, individually
and collectively, "Borrower"), as borrowers, and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as lender ("Lender").
W I T N E S S E T H :
WHEREAS, the U.S. Borrower and Lender are parties to a certain Loan
Agreement, dated as of October 27, 1998 (as amended or modified to date, the
"U.S. Loan Agreement"), pursuant to which Lender has made available to the U.S.
Borrower the "Line of Credit", the "Acquisition Term Loans", the "Additional
Term Loans", the "Second Additional Term Loan" the "Third Additional Term Loan"
and the "Fourth Additional Term Loans" (as such terms are defined therein); and
WHEREAS, the Canadian Borrower and Lender are parties to a certain Credit
Agreement, dated as of December 10, 1996 (as amended or modified to date, the
"Canadian Loan Agreement"), pursuant to which Lender has made available to the
Canadian Borrower a certain line of credit described therein; and
WHEREAS, the German Borrower and Lender are parties to a certain Credit
Agreement, dated as of March 27, 1995 (as amended or modified to date, the
"German Loan Agreement"; the U.S. Loan Agreement, the Canadian Loan Agreement
and the German Loan Agreement, collectively, the "Existing Loan Agreements"),
pursuant to which Lender has made available to the German Borrower a certain
line of credit described therein; and
WHEREAS, the U.S. Borrower has guaranteed to Lender the payment and
performance by the Canadian Borrower and the German Borrower, each of which is a
wholly-owned subsidiary of the U.S. Borrower, of their respective obligations
under the Canadian Loan Agreement and the German Loan Agreement; and
WHEREAS, Borrower and Lender have agreed to amend in certain respects the
provisions of the Existing Loan Agreements; and
WHEREAS, Borrower and Lender wish to enter into this Agreement in order to
effect such amendments and to restate the Existing Loan Agreements, as so
amended, in their entireties, as a single combined agreement; and
WHEREAS, in accordance with the foregoing, this Agreement shall constitute
an amendment and restatement, in their entireties, of the Existing Loan
Agreements;
NOW, THEREFORE, to induce Lender to enter into this Agreement, and for
other good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged by Borrower, Lender and Borrower agree as follows:
1. DEFINITIONS, TERMS AND REFERENCES
1.1 Certain Definitions. In addition to such other terms as elsewhere
defined herein, as used in this Agreement or in any Exhibits hereto, the
following terms shall have the following meanings:
"Accounts Receivable" shall mean and include all accounts, instruments,
investment property and chattel paper of each Borrower and its Subsidiaries,
including, without limitation, all rights of each Borrower and its Subsidiaries
to payment for goods sold or leased, or to be sold or to be leased, or for
services rendered or to be rendered, howsoever evidenced or incurred, and
together with all returned or repossessed goods and all books, records, computer
tapes, programs and ledger books arising therefrom or relating thereto, all
whether now owned or hereafter acquired or arising.
"Adjusted Canadian Interbank Offered Rate" shall mean, with respect to each
Interest Period, the sum of (i) the rate obtained by dividing (A) the Canadian
Interbank Offered Rate for such Interest Period by (B) a percentage equal to 1
minus the then stated maximum rate (stated as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D), plus (ii) a percentage
sufficient to compensate Lender for the cost of complying with any reserves,
liquidity and/or special deposit requirements of any other foreign governmental
or regulatory authority directly or indirectly affecting the maintenance or
funding of any Advance under the Canadian Line of Credit or the CAD Term Loan.
"Adjusted German Interbank Offered Rate" shall mean, with respect to each
Interest Period, the sum of (i) the rate obtained by dividing (A) the German
Interbank Offered Rate for such Interest Period by (B) a percentage equal to 1
minus the then stated maximum rate (stated as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D), plus (ii) a percentage
sufficient to compensate Lender for the cost of complying with any reserves,
liquidity and/or special deposit requirements of any other foreign governmental
or regulatory authority directly or indirectly affecting the maintenance or
funding of any Advance under the German Line of Credit.
"Advance" shall mean an advance of borrowed funds made by Lender to or on
behalf of a Borrower under a Line of Credit.
"Affiliate" shall mean, with respect to any Person, any Person Controlling,
Controlled by or under common Control with such Person or any director, officer
or employee of such Person.
"Agreement" shall mean this Loan Agreement, as it may be amended or
supplemented from time to time.
"Applicable Margin" shall have the meaning given such term in Section
2.2.1(b).
"Applicable Rate" shall mean the interest rate per annum payable on the
Obligations, as is defined and more particularly described in Section 2.2.1.
"Bank Products" shall mean any one or more of the following types of
services offered at any time or from time to time to any Credit Party by Lender
(or any Affiliate of Lender in reliance on Lender's agreement to indemnify such
Affiliate): (a) credit cards; (b) cash management or related services, including
the automated clearinghouse transfer of funds; (c) Interest Rate Protection
Agreements; (d) letters of credit; (e) bankers' acceptances; (f) foreign
exchange; and (g) other derivative products.
"Bankruptcy Code" shall mean Title 11 of the United States Code, as it may
be amended from time to time.
"Barbados Subsidiary" shall mean Immucor Trading Company, a company
organized under the laws of Barbados.
"BCA" shall mean BCA Acquisition Corporation, a corporation organized under
the laws of the State of Georgia.
"Belgian Subsidiary" shall mean Immucor Acquisitions, Inc., S.A., a company
organized under the laws of Belgium.
"Borrower" shall have the meaning given to such term in the preamble to
this Agreement.
"Borrowing Base" shall mean the aggregate of the following amounts: (i) an
amount equal to eighty-five percent(85%)of the Dollar value of Eligible Domestic
Entity Accounts plus (ii) an amount equal to forty-five percent (45%) of the
Dollar value of Eligible Foreign Entity Accounts plus (iii) an amount equal to
the lesser of (A) fifty percent (50%) of the Dollar value of Eligible Inventory
or (B) fifty percent (50%) of the amount of Advances outstanding pursuant to the
preceding clauses (i) and (ii) minus (iii) Borrowing Base Reserves.
"Borrowing Base Reserves" shall mean reserves: (i) for costs, expenses and
liabilities incurred by Lender which Lender is authorized to charge to any
Borrower pursuant to this Agreement or any of the other Loan Documents, to the
extent not paid in full when due; (ii) with respect to any Borrower's debt
service to Lender and other creditors holding Funded Debt from time to time, to
the extent not paid when due; (iii) for sales, excise or similar taxes and
returns, discounts, claims, credits and allowances of any nature at any time
issued, owing, granted, outstanding, available or claimed with respect to any
accounts; (iv) for landlord rents past due or owing for any locations of
Collateral where no landlord's lien waiver agreement exists; and (v) for such
other or additional matters as Lender in the good faith exercise of its credit
judgment may elect to impose reserves from time to time.
"Borrowings" shall mean advances of borrowed funds made hereunder to or on
behalf of Borrower.
"Business Day" shall mean a day on which Lender is open for the conduct of
banking business at its principal office in Atlanta, Georgia; provided, however,
that for purposes of determining the timing of requests for, and establishing
the Applicable Rate, on LIBOR Borrowings, "Business Day" shall mean,
additionally, (i) in the case of LIBOR Borrowings under the U.S. Line of Credit,
the Temporary Line of Credit, the Term Loan A or the Term Loan B, any day on
which dealings with Dollar deposits are also being carried out by Lender in the
London interbank Eurodollar market, (ii) in the case of LIBOR Borrowings under
the Canadian Line of Credit or the CAD Term Loan, any day on which dealings with
CAD deposits are also being carried out by Lender in the Toronto interbank
market, and (iii) in the case of LIBOR Borrowings under the German Line of
Credit, any day on which dealings with DM deposits are also being carried out by
Lender in the Frankfurt interbank market.
"CAD" "Cn. Dollars" and "Cn$" shall mean dollars in the lawful currency of
Canada.
"CAD Term Loan" shall mean the term loan heretofore made by Lender to the
U.S. Borrower pursuant to the U.S. Loan Agreement and identified therein as the
"Third Additional Term Loan", the outstanding principal balance of which on the
date hereof is the Dollar Equivalent of 3,827,333.34 Cn$.
"CAD Term Note" shall mean the term promissory note, dated as of even date
herewith, made by the U.S. Borrower in favor of Lender, as amended or
supplemented from time to time, in the stated principal amount equal to the
outstanding principal balance of the CAD Term Loan on the date hereof, together
with any renewals or extensions thereof. The CAD Term Note executed and
delivered by the U.S. Borrower on the date hereof shall constitute an extension
and renewal of that certain term note, dated as of December 20, 1999, made by
the U.S. Borrower in favor of Lender. The CAD Term Note shall be substantially
in the form of Exhibit B.
"Canadian Borrower" shall have the meaning given to such term in the
preamble to this Agreement.
"Canadian Interbank Offered Rate" means, for any Interest Period, the
offered rate for deposits in CAD for a term comparable to such Interest Period
and in an amount comparable to the Loan (or portion thereof) to which such
Interest Period relates, as such offered rate appears on Telerate page 3750 as
of 11:00 A.M. (London, England time) on the Interest Rate Determination Date
applicable to such Interest Period. If the foregoing rate is unavailable from
Telerate for any reason, then such rate shall be determined by the Lender from
any other interest rate reporting service of recognized standing designated in
writing by the Lender to the Borrower.
"Canadian Line of Credit" shall refer to the line of credit made available
by Lender to the Canadian Borrower pursuant to the provisions of Section 2.1.3.
"Canadian Line of Credit Limit" shall mean 6,200,000 Cn$, subject to
reduction by the Canadian Borrower pursuant to Section 2.1.3.
"Canadian Line of Credit Termination Date" shall mean the earliest to occur
of the following dates: (i) the date on which pursuant to Section 8, Lender
terminates the Canadian Line of Credit (or the Canadian Line of Credit is deemed
automatically terminated subsequent to the occurrence of an Event of Default),
(ii) the effective date of the Canadian Borrower's irrevocable termination of
the Canadian Line of Credit pursuant to Section 2.1.3; or (iii) February 28,
2003.
"Canadian Loan Agreement" shall have the meaning given to such term in the
recitals to this Agreement.
"Canadian Master Note" shall mean the master promissory note of even date
herewith, made by the Canadian Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the
Canadian Line of Credit, evidencing Advances to be obtained by the Canadian
Borrower under the Canadian Line of Credit, together with any renewals or
extensions thereof, in whole or in part. The Canadian Master Note shall be
substantially in the form of Exhibit A, with appropriate insertions.
"Capital Expenditures" shall mean all expenditures made in respect of the
cost of any fixed asset or improvement, or replacement, substitution, or
addition thereto, having a useful life of more than one (1) year, including,
without limitation, those arising in connection with the direct or indirect
acquisition of such assets by way of increased product or service charges or
offset items or in connection with Capital Leases.
"Capital Lease" shall mean any lease of property that, in accordance with
GAAP, should be reflected as a liability on the balance sheet of a Person.
"Closing Date" shall mean the date on which all of the conditions precedent
specified in Section 10.1 are fulfilled (or waived in writing by Lender) and
this Agreement becomes effective.
"Collateral" shall mean any property of any Credit Party which hereafter
may secure any or all of the Obligations. Without limitation, the Collateral
shall include all of the "Collateral", as that term is defined in the Security
Agreement.
"Consolidated Subsidiaries" shall mean those Subsidiaries of the U.S.
Borrower existing from time to time which, for purposes of GAAP, are required to
be consolidated for financial reporting purposes.
"Control", "Controlled" or "Controlling" shall mean, with respect to any
Person, the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities or otherwise;
provided, however, that, in any event, any Person which owns directly or
indirectly ten percent (10%) or more of the securities having ordinary voting
power for the election of directors or other governing body of a corporation or
other entity shall be deemed to "Control" such corporation or other entity for
purposes of this Agreement.
"Credit Parties" shall mean, collectively, the U.S. Borrower, the Canadian
Borrower, the German Borrower and each other Subsidiary of the U.S. Borrower.
"Debt" shall mean all liabilities, obligations and indebtedness of a
Person, of any kind or nature, whether now or hereafter owing, arising, due or
payable, howsoever evidenced, created, incurred, acquired or owing, and whether
primary, secondary, direct, contingent, fixed or otherwise, including, without
in any way limiting the generality of the foregoing: (i) all obligations,
liabilities and indebtedness secured by any Lien on such Person's property, even
though such Person shall not have assumed or become liable for the payment
thereof; (ii) all obligations or liabilities created or arising under any
Capital Lease, conditional sale or other title retention agreement; (iii) all
accrued pension fund and other employee benefit plan obligations and
liabilities; (iv) all Guaranteed Obligations; (v) any liabilities under, or
associated with, interest rate protection agreements; (vi) all deferred taxes;
and (v) all reimbursement obligations with respect to letters of credit.
"Default Condition" shall mean the occurrence of any event which, after
satisfaction of any requirement for the giving of notice or the lapse of time,
or both, would become an Event of Default.
"Default Rate" shall mean that interest rate per annum equal to two percent
(2%) per annum in excess of the Applicable Rate otherwise payable on any
Obligation.
"Distributions" shall mean, with respect to any Person and for any fiscal
period, all dividends or other distributions paid or made by such Person during
such period with respect to any class of its capital stock or other equity
interests (other than any such dividends or distributions payable solely in such
stock or interests) together with any and all other payments made by such Person
during such period to purchase, redeem or otherwise acquire for value any shares
of any class of its capital stock or other equity interests.
"DM" shall mean German Deutsche Marks.
"Dollar Equivalent" shall mean, with respect to any monetary amount in CAD
or DM, at any time for the determination thereof, the amount of Dollars obtained
by converting such amount of CAD or DM, as applicable, into Dollars at the spot
rate for the purchase of Dollars with CAD or DM, as applicable, as quoted by the
Lender at approximately 11:00 a.m. London time, on the date of determination
thereof specified herein or, if the date of determination thereof is not
otherwise specified herein, on the date which is two (2) Business Days prior to
such determination.
"Dollars" or "$" shall mean dollars in lawful currency of the United States
of America.
"Domestic Subsidiary" shall mean any Subsidiary of the U.S. Borrower which
is not a Foreign Subsidiary. On the Closing Date, the Domestic Subsidiaries are
Gamma, Gamma International and BCA.
"Dutch Subsidiary" shall mean Gamma Biologicals B.V., a company organized
under the laws of the Netherlands.
"EBIT" shall mean, with respect to any Person and for any fiscal period,
such Person's net income (or loss) before interest and taxes, all as determined
on a consolidated basis.
"EBITDA" shall mean, with respect to any Person and for any fiscal period,
the sum (without duplication) of such Person's (i) net income (or loss) before
interest and taxes, plus (ii) to the extent deducted in determining such net
income (or loss), depreciation, amortization or other similar non-cash charges,
minus (iii) to the extent recognized in determining such net income (or loss),
extraordinary gains, minus (iv) to the extent recognized in determining such net
income (or loss), non-operating gains (including without limitation currency
gains), all as determined on a consolidated basis.
"EBITDAR" shall mean, with respect to any Person and for any fiscal period,
the sum of such Person's EBITDA plus, to the extent deducted in determining such
EBITDA, such Person's rental expense, all as determined on a consolidated basis.
"Eligible Accounts" shall mean, collectively, the Eligible Domestic Entity
Accounts and the Eligible Foreign Entity Accounts.
"Eligible Domestic Entity Accounts" shall mean that portion of the Accounts
Receivable of the U.S. Borrower, the Domestic Subsidiaries existing on the
Closing Date and, subject to the proviso hereto, the Canadian Borrower
consisting of trade accounts receivable actually owing to such Borrower or such
Subsidiary by its account debtors subject to no counterclaim, defense, setoff or
deduction, provided, however, that, except in the case of Accounts Receivable of
the Canadian Borrower prior to April 30, 2001, such Accounts Receivable are at
all times subject to a duly perfected, first priority security interest in favor
of Lender, subject only to any Permitted Encumbrances (other than Foreign Credit
Facility Liens), excluding, however, in any event, any such account:
(i) which is outstanding more than ninety (90) days after the invoice date
or sixty (60) days after the due date;
(ii) which is owing by any Subsidiary or other Affiliate of Borrower;
(iii) which is owing by any account debtor having fifty percent (50%) or
more in face value of its then existing accounts with Borrower and Borrower's
Subsidiaries, collectively, ineligible under this Agreement;
(iv) the assignment of which is subject to any requirements set forth in
the Assignment of Claims Act or any other similar law of any Governmental
Authority unless all rights with respect to such account have been assigned to
Lender on terms acceptable to Lender pursuant to such Act;
(v) which is owing by any account debtor whose accounts, in face amount,
with Borrower and Borrower's Subsidiaries, exceed ten percent (10%) of all then
Eligible Accounts (as determined by Lender in its sole discretion), but only to
the extent of such excess;
(vi) unless otherwise determined by Lender in its sole discretion, which is
owed by, billed to, or will be paid by an account debtor with its principal
office, assets or place of business outside the United States or Canada
(excluding Quebec) unless such account is secured by an irrevocable letter of
credit which is payable in Dollars, issued and confirmed by a bank acceptable to
Lender in a form and substance satisfactory to Lender and, if requested by
Lender, such letter of credit and the amounts payable thereunder is collaterally
assigned to Lender;
(vii) which is subject to a "xxxx and hold" arrangement; i.e., where the
account debtor has been invoiced but the goods have not yet been shipped;
(viii) which is owing by any account debtor which is the subject (as
debtor) of any voluntary or involuntary case or proceeding under any bankruptcy,
insolvency or other similar law of any Governmental Authority, whether domestic
or foreign, or as to which a trustee, receiver, liquidator, custodian or other
similar official has been appointed for it or for any substantial part of its
property;
(ix) which arises from the sale of any Inventory that is not Eligible
Inventory pursuant to clause (iii) of the proviso contained in the definition of
"Eligible Inventory";
(x) with respect to which the account debtor's executive office is located
in the State of New Jersey, Minnesota, West Virginia or any other State imposing
similar conditions to the right of a creditor to collect accounts, unless (A)
the applicable Borrower or the applicable Subsidiary has filed a notice of
business activities report, or such other similar report required by such State,
with the appropriate officials of such State for the then current year, or (B)
such account debtor has substantial assets located, respectively, outside of the
States of New Jersey, Minnesota, West Virginia or such other State, as the case
may be;
(xi) which is owed by, billed to, or will be paid by an account debtor
located in the State of Alabama or any other State the laws of which deny
creditors access to its courts in the absence of qualification to do business as
a foreign corporation in such state or in the absence of the filing of any
required reports with such state, unless the applicable Borrower or the
applicable Subsidiary has qualified as a foreign corporation authorized to do
business in Alabama or such State or has filed such required reports;
(xii) which arises from (A) the sale of goods which have not been delivered
and accepted by the account debtor, or (B) services which have not been
performed by a Borrower or a Subsidiary and accepted by the Account Debtor;
(xiii) which is owing by any Account Debtor with respect to which any
Borrower or Subsidiary has determined for any reason not to continue selling
goods to or performing services for on open account;
(xiv) which is evidenced by chattel paper or an instrument of any kind, or
has been reduced to judgment;
(xv) with respect to which a Borrower or Subsidiary has made an agreement
with the account debtor (A) for any deduction therefrom, except for discounts or
allowances which are made in the ordinary course of business for prompt payment
and which discounts or allowances are reflected in the calculation of the face
amount of each invoice related to such Account, but only to the extent of such
deduction, or (B) to extend the time of payment thereof beyond the applicable
period set forth in clause (i) in this definition;
(xvi) in which any Borrower or Subsidiary is indebted in any manner to the
account debtor (as creditor, lessor, supplier or otherwise), with the exception
of customary credits, adjustments and/or discounts given to an account debtor by
a Borrower or Subsidiary in the ordinary course of its business; provided;
however, that, notwithstanding the foregoing, if a Borrower or a Subsidiary is
indebted in any manner to an account debtor, such account debtor's account shall
be ineligible under this clause only to the extent of the amount of such
indebtedness;
(xvii) which constitutes retainage or arises under a bonded contract;
(xviii) which is being financed by or is subject to a Lien in favor of any
other lender; or
(xix) which has otherwise been determined by Lender, in its sole
discretion, not to be eligible for purposes hereof;
provided, however, that notwithstanding anything contained herein to the
contrary, no Account Receivable of the Canadian Borrower shall be an Eligible
Domestic Entity Account hereunder on or after April 30, 2001 unless on or prior
to such date, the Canadian Borrower has complied with the requirements of
Section 4.8(c) hereof.
"Eligible Foreign Entity Accounts" shall mean, subject to the proviso
hereto, that portion of the Accounts Receivable of the German Borrower and the
other Foreign Subsidiaries existing on the Closing Date (other than the Canadian
Borrower) consisting of trade accounts receivable actually owing to each such
Foreign Subsidiary by its account debtors subject to no counterclaim, defense,
setoff or deduction, excluding, however, in any event, any such account:
(i) which is owing by any Subsidiary or other Affiliate of Borrower;
(ii) which is owing by any account debtor having fifty percent (50%) or
more in face value of its then existing accounts with Borrower and Borrower's
Subsidiaries, collectively, ineligible under this Agreement;
(iii) the assignment of which is subject to any requirements set forth in
the Assignment of Claims Act or any other similar law of any Governmental
Authority unless all rights with respect to such account have been assigned to
Lender on terms acceptable to Lender pursuant to such Act;
(iv) which is owing by any account debtor whose accounts, in face amount,
with Borrower and Borrower's Subsidiaries, exceed ten percent (10%) of all then
Eligible Accounts (as determined by Lender in its sole discretion), but only to
the extent of such excess;
(v) which is subject to a "xxxx and hold" arrangement; i.e., where the
account debtor has been invoiced but the goods have not yet been shipped;
(vi) which is owing by any account debtor which is the subject (as debtor)
of any voluntary or involuntary case or proceeding under any bankruptcy,
insolvency or other similar law of any Governmental Authority, whether domestic
or foreign, or as to which a trustee, receiver, liquidator, custodian or other
similar official has been appointed for it or for any substantial part of its
property;
(vii) which arises from the sale of any Inventory that is not Eligible
Inventory pursuant to clause (iii) of the proviso contained in the definition of
"Eligible Inventory";
(viii) with respect to which the account debtor's executive office is
located in the State of New Jersey, Minnesota, West Virginia or any other State
imposing similar conditions to the right of a creditor to collect accounts,
unless (A) the applicable Borrower or the applicable Subsidiary has filed a
notice of business activities report, or such other similar report required by
such State, with the appropriate officials of such State for the then current
year, or (B) such account debtor has substantial assets located, respectively,
outside of the State of New Jersey, Minnesota, West Virginia or such other
State, as the case may be;
(ix) which is owed by, billed to, or will be paid by an account debtor
located in the State of Alabama or any other State the laws of which deny
creditors access to its courts in the absence of qualification to do business as
a foreign corporation in such state or in the absence of the filing of any
required reports with such state, unless the applicable Borrower or the
applicable Subsidiary has qualified as a foreign corporation authorized to do
business in Alabama or such State or has filed such required reports;
(x) which arises from (A) the sale of goods which have not been delivered
and accepted by the account debtor, or (B) services which have not been
performed by a Borrower or a Subsidiary and accepted by the Account Debtor;
(xi) which is owing by any Account Debtor with respect to which any
Borrower or Subsidiary has determined for any reason not to continue selling
goods to or performing services for on open account;
(xii) which is evidenced by chattel paper or an instrument of any kind, or
has been reduced to judgment;
(xiii) with respect to which a Borrower or Subsidiary has made an agreement
with the account debtor (A) for any deduction therefrom, except for discounts or
allowances which are made in the ordinary course of business for prompt payment
and which discounts or allowances are reflected in the calculation of the face
amount of each invoice related to such Account, but only to the extent of such
deduction, or (B) to extend the time of payment thereof beyond the applicable
period set forth in clause (i) in this definition;
(xiv) in which any Borrower or Subsidiary is indebted in any manner to the
account debtor (as creditor, lessor, supplier or otherwise), with the exception
of customary credits, adjustments and/or discounts given to an account debtor by
a Borrower or Subsidiary in the ordinary course of its business; provided,
however, that, notwithstanding the foregoing, if a Borrower or a Subsidiary is
indebted in any manner to an account debtor, such account debtor's account shall
be ineligible under this clause only to the extent of the amount of such
indebtedness;
(xv) which constitutes retainage or arises under a bonded contract;
(xvi) which is being financed by or is subject to a Lien in favor of any
other lender (including, without limitation, any Foreign Credit Facility Lien)
or is subject to any other Lien other than a Permitted Encumbrance which is not
a Foreign Credit Facility Lien; or
(xvii) which has otherwise been determined by Lender, in its sole
discretion, not to be eligible for purposes hereof (including, without
limitation, by reason of its age);
provided, however, that notwithstanding anything contained herein to the
contrary, no Account Receivable of the German Borrower or any other Foreign
Subsidiary shall be an Eligible Foreign Entity Account hereunder on or after
April 30, 2001 unless on or prior to such date, Borrower has complied with the
requirements of Section 4.8(b) hereof with respect to such Foreign Subsidiary.
"Eligible Inventory" shall mean the lower of FIFO cost or market value, in
Dollars, of Inventory of the U.S. Borrower, the Domestic Subsidiaries existing
on the Closing Date and the Canadian Borrower consisting of: (a) raw materials;
and (b) finished goods, subject to no further processing and held for sale in
the ordinary course of business to customers and not Affiliates of Borrower or
any Subsidiary; provided, however, in each of the foregoing cases, that such
Inventory:
(i) is at all times subject to a duly perfected, first priority security
interest in favor of Lender, subject only to any Permitted Encumbrances;
(ii) is in good and saleable condition;
(iii) is not on consignment from or subject to any guaranteed sale,
sale-or-return, sale-on-approval, or repurchase agreement with any supplier;
(iv) does not constitute work-in-process, supplies, displays, promotional
materials or goods held for lease to customers;
(v) does not constitute returned goods in transit to customers,
(vi) does not constitute obsolete, discontinued product, repossessed,
damaged or slow-moving goods;
(vii) conforms in all respects to the warranties and representations with
respect to Inventory set forth in the Security Agreement and any other
applicable security document;
(viii) is not subject to a document of title (unless issued or endorsed,
and delivered to Lender);
(ix) is not subject to any license or other agreement that limits or
restricts a Borrower or Subsidiary or the Lender's right to sell or otherwise
dispose of such inventory;
(x) is located in the United States or Canada on premises owned by the U.S.
Borrower, the Canadian Borrower or a Domestic Subsidiary or with respect to
which Lender holds a landlord lien waiver agreement, and is a collateral
location reported pursuant to the Security Agreement or other applicable
security document;
(xi) meets all standards imposed by any Governmental Authority over such
Inventory Collateral or its production, storage or use; or
(xii) which has not otherwise been determined by Lender, in its sole
discretion, to be ineligible for purposes hereof.
"Employee Benefit Plan" shall mean any employee welfare benefit plan as
that term is defined in Section 3(1) of ERISA, any employee pension benefit
plan, as that term is defined in Section 3(2) of ERISA or any other plan which
is subject to the provisions of Title IV of ERISA or which is for the benefit of
any employees of Borrower and any employees of any Subsidiary of Borrower or any
other entity which is a member of a controlled group or under common control
with Borrower, as such terms are defined in Section 4001(a)(14) of ERISA.
"Environmental Laws" shall mean all federal, state and local laws, rules,
regulations, ordinances, programs, permits, guidances, orders and consent
decrees relating to health, safety and environmental matters, whether now or
hereafter existing, including, but not limited to state and federal superlien
and environmental cleanup laws and U.S. Department of Transportation regulations
and any other state or local law or regulation relating to pollution,
reclamation, or protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into air, water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants, contaminants
or hazardous or toxic materials or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" shall mean any of the events or conditions described in
Article 7, provided that any requirement specified therein for the giving of
notice or the lapse of time, or both, has been satisfied.
"Excess Cash Flow" for each applicable Fiscal Year of the U.S. Borrower and
its Consolidated Subsidiaries shall mean an amount equal to consolidated net
income for such Fiscal Year plus depreciation and other non-cash charges
deducted in determining consolidated net income, less all payments of principal
and interest on long term Debt scheduled to be due and payable in such Fiscal
Year, excluding, however, any Excess Cash Flow prepayments made in such Fiscal
Year; less any increases in working capital (but, plus any decreases in working
capital) in such Fiscal Year; less any unfinanced Capital Expenditures made in
such Fiscal Year; all as determined on a consolidated basis in accordance with
GAAP.
"Existing Loan Agreements" shall have the meaning given to such term in the
recitals to this Agreement.
"Fiscal Year", in respect of a Person, shall mean the fiscal year of such
Person employed by such Person as of the Closing Date, and ending on May 31st of
each year in the case of the U.S. Borrower and its Consolidated Subsidiaries.
The terms "Fiscal Quarter" and "Fiscal Month" shall correspond accordingly
thereto.
"Fixed Charge Coverage Ratio" shall mean, with respect to any Person and
for any fiscal period, the ratio of (i) such Person's EBITDAR for the
consecutive 12-month period ending with such period to (ii) such Person's Fixed
Charges for the consecutive 12-month period ending with such period, all as
determined on a consolidated basis.
"Fixed Charges" shall mean, with respect to any Person and for any fiscal
period, the sum (without duplication) of such Person's (i) interest expense for
such period, plus (ii) rental expense for such period, plus (iii) scheduled
payments of principal with respect to its Debt during such period, plus (iv)
non-financed Capital Expenditures made during such period, excluding
non-financed Capital Expenditures made during such period to purchase equipment
for lease to customers of such Person, if and to the extent permitted pursuant
to Section 5.14 hereof, plus (v) Distributions made during such period.
"Foreign Credit Facilities" shall mean, collectively, (a) those lines of
credit and other credit facilities of the Foreign Subsidiaries which are,
described on Schedule 1.1A, as extended or renewed from time to time, and (b)
increases in the amounts of such existing Foreign Credit Facilities or
additional credit facilities of the Foreign Subsidiaries established hereafter,
in each case if and to the extent permitted pursuant to Section 5.2 hereof.
"Foreign Credit Facility Liens" shall mean, collectively, those Liens in
the Accounts Receivable and certain bonds of the Foreign Subsidiaries which are
described on Schedule 1.1A hereto and which secure the obligations of the
Foreign Subsidiaries under the Foreign Credit Facilities existing on the date
hereof and additional Liens in the Accounts Receivable of the Foreign
Subsidiaries securing increases in the Foreign Credit Facilities or additional
Foreign Credit Facilities permitted pursuant to Section 5.2 hereof.
"Foreign Subsidiary" shall mean any Subsidiary of the U.S. Borrower which
is organized or incorporated under the laws of any jurisdiction other than the
United States of America or any state, territory or possession thereof. On the
Closing Date, the Foreign Subsidiaries are the Canadian Borrower, the German
Borrower, the Italian Subsidiary, the Portuguese Subsidiary, the Spanish
Subsidiary, the Dutch Subsidiary, the Barbados Subsidiary, the Belgian
Subsidiary, the Second Belgian Subsidiary and the French Subsidiary.
"French Subsidiary" shall mean Immunochim, s.a.r.l., a company organized
under the laws of France.
"Funded Debt" shall mean, with respect to any Person, all Debt of such
Person evidenced by bonds, debentures, notes or other similar instruments
(including without limitation Capital Leases, banker's acceptances, obligations
to reimburse, but excluding trade accounts payable incurred in the ordinary
course of such Person's business).
"Funded Debt/EBITDA Ratio" shall mean, with respect to any Person and for
any fiscal period, the ratio of (i) such Person's Funded Debt as at the end of
such period to (ii) such Person's EBITDA for the consecutive 12-month period
ending with such period, all as determined on a consolidated basis.
"GAAP" shall mean generally accepted accounting principles consistently
applied for the period or periods in question.
"Gamma" shall mean Gamma Biologicals, Inc., a Texas corporation.
"Gamma International" shall mean Gamma Biologicals International, Inc., a
corporation organized under the laws of the U.S. Virgin Islands.
"German Borrower" shall have the meaning given to such term in the preamble
to this Agreement.
"German Interbank Offered Rate" shall mean, for any Interest Period, the
offered rate for deposits in DM for a term comparable to such Interest Period
and in an amount comparable to the Loan (or portion thereof) to which such
Interest Period relates, as such offered rate appears on Telerate Page 3750 as
of 11:00 A.M. (London, England time) on the Interest Rate Determination Date
applicable to such Interest Period. If the foregoing rate is unavailable from
Telerate for any reason, then such rate shall be determined by the Lender from
any other interest rate reporting service of recognized standing designated in
writing by the Lender to the Borrower.
"German Line of Credit" shall refer to the line of credit made available by
Lender to the German Borrower pursuant to the provisions of Section 2.1.4.
"German Line of Credit Limit" shall mean 5,400,000 DM, subject to reduction
by the German Borrower pursuant to Section 2.1.4.
"German Line of Credit Termination Date" shall mean the earliest to occur
of the following dates: (i) the date on which pursuant to Section 8, Lender
terminates the German Line of Credit (or the German Line of Credit is deemed
automatically terminated subsequent to the occurrence of an Event of Default),
(ii) the effective date of the German Borrower's irrevocable termination of the
German Line of Credit pursuant to Section 2.1.4; or (iii) February 28, 2003.
"German Loan Agreement" shall have the meaning given to such term in the
recitals to this Agreement.
"German Master Note" shall mean the master promissory note of even date
herewith, made by the German Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the German
Line of Credit, evidencing Advances to be obtained by the German Borrower under
the German Line of Credit, together with any renewals or extensions thereof, in
whole or in part. The German Master Note shall be substantially in the form of
Exhibit A, with appropriate insertions.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any department, agency or instrumentality thereof. The term
includes, without limitation, any central bank or comparable agency.
"Guaranteed Obligations" shall mean, with respect to any Person, all
obligations of such Person which in any manner directly or indirectly guarantee
or assure, or in effect guarantee or assure, the payment or performance of any
Debt of any other Person or assure or in effect assure the holder of any such
Debt against loss in respect thereof.
"Guarantor" shall mean BCA, Gamma and Gamma International, as well as any
other Subsidiary (if any) which executes a Guaranty.
"Guaranty" shall mean the Guaranty Agreement or Guaranty Agreements, dated
as of even date herewith made by BCA, Gamma and Gamma International in favor of
Lender, which Guaranty Agreement or Guaranty Agreements shall amend and restate
the Guaranty Agreement, dated as of October 27, 1998, made by Gamma in favor of
Lender, the Guaranty Agreement, dated as of October 27, 1998, made by Gamma
International in favor of Lender, and the Guaranty Agreement, dated as of April
30, 1999, made by BCA in favor of Lender, together with any other guaranty
agreement hereafter executed and delivered by any guarantor in favor of Lender,
in each case, as amended or supplemented from time to time. Each Guaranty is or
shall be in substantially the form of Exhibit D-1.
"Interest Coverage Ratio" shall mean, with respect to any Person and for
any fiscal period, the ratio of (i) such Person's EBIT for the consecutive
12-month period ending with such period to (ii) such Person's interest expense
for the consecutive 12-month period, ending with such period, all as determined
on a consolidated basis.
"Interest Period" shall mean, in respect of LIBOR Borrowings, other than
LIBOR Borrowings under the German Line of Credit, a period commencing on the
date of such borrowing and ending on the numerically corresponding date in the
first (lst), second (2nd) or third (3rd) month thereafter, as a Borrower may
elect in the applicable notice of such borrowing to be given pursuant to Section
2.2.1 and, in respect of LIBOR Borrowings under the German Line of Credit, a
period commencing on the date of such borrowing and ending on the numerically
corresponding date in the third (3rd) month thereafter; provided, however, that
any Interest Period which would otherwise end on a day which is not a Business
Day shall be extended to the next succeeding Business Day unless such Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day, and any Interest Period which begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
"Interest Rate Determination Date" shall mean in respect of LIBOR
Borrowings, two (2) Business Days prior to the first day of each Interest
Period.
"Interest Rate Protection Agreement" means an interest rate "hedge",
"swap," "collar" or other interest rate protection agreement entered into by and
between any Credit Party and a financial institution, together with all
exhibits, schedules, extensions, renewals, amendments, substitutions and
replacements thereto and thereof.
"Italian Subsidiary" shall mean Immucor Italia S.r.l., a company organized
under the laws of Italy.
"Lender" shall have the meaning given to such term in the preamble to this
Agreement.
"Leverage Ratio" shall mean, with respect to any Person and for any fiscal
period, the ratio of(i) such Person's Funded Debt as at the end of such fiscal
period to (ii) the sum of such Person's Funded Debt plus its Net Worth as at the
end of such fiscal period, all as determined on a consolidated basis.
"LIBOR Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the LIBOR Rate.
"LIBOR Rate" shall mean, except as provided below with respect to Advances
under the Canadian Line of Credit, the CAD Term Loan and Advances under the
German Line of Credit, with respect to any Interest Period, an interest rate per
annum computed by dividing: (x) the rate per annum determined by Lender from
time to time on the basis of the offered rate for deposits in Dollars in the
London interbank borrowing market of amounts equal to or comparable to the
amount of the Loan (or portion thereof) to which such Interest Period relates
offered for a term comparable to such Interest Period, which rate appears on the
display designated as page "3750" of the Telerate Service (or such other page as
may replace page "3750" of that service or such other service or services as may
be nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for Dollar deposits) as of 11:00 a.m., London
time, on the Interest Rate Determination Date applicable to such Interest
Period, which rate shall be rounded upward, to the next higher 1/10,000 of 1%;
provided, however, that if more than one such offered rate appears on such page,
the offered rate shall be deemed to be the arithmetic average (rounded upward,
if necessary, to the next higher of 1/100 of 1%) of such offered rates; by (y)
the number 1 minus any then applicable percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or its successor) for determining the maximum reserve
requirement for a member of the Federal Reserve System in respect of
"Eurocurrency liabilities" (or any other category of liabilities which includes
deposits by reference to which the interest rate on such Borrowings is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of Lender to United States
residents); provided, however, (i) with respect to the CAD Term Loan and
Advances under the Canadian Line of Credit, "LIBOR Rate" shall mean, with
respect to any Interest Period, the Adjusted Canadian Interbank Offered Rate and
(ii) with respect to Advances under the German Line of Credit, "LIBOR Rate"
shall mean, with respect to any Interest Period, the Adjusted German Interbank
Offered Rate. The LIBOR Rate shall be adjusted automatically on and as of the
effective date of any change in the percentage described in the foregoing clause
(y).
"Lien" shall mean any deed to secure debt, deed of trust, mortgage or
similar instrument, and any lien, security interest, or other preferential
arrangement which has the practical effect of constituting a security interest,
security title, pledge, charge, encumbrance or servitude of any kind, whether by
consensual agreement or by operation of statute or other law, and whether
voluntary or involuntary, including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof.
"Lines of Credit" shall mean, collectively, the U.S. Line of Credit, the
Temporary Line of Credit, the Canadian Line of Credit and the German Line of
Credit.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Agreement, the Stock Pledge Agreement, any and all Guaranties, and any and all
other documents, instruments, certificates and agreements executed and/or
delivered by any Borrower or any Guarantor in connection herewith, or any one,
more, or all of the foregoing, as the context shall require.
"Loans" shall mean the Advances under the Lines of Credit together with the
Term Loans.
"Master Notes" shall mean, collectively, the U.S. Master Note, the
Temporary Master Note, the German Master Note and the Canadian Master Note.
"Material Adverse Effect" shall mean with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon any of (a) the
financial condition, operations, business, properties or prospects of the U.S.
Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Lender under any of the Loan Documents or the ability of any Credit Party to
perform its obligations under any of the Loan Documents or (c) the legality,
validity or enforceability of any of the Loan Documents.
"Net Worth" shall mean, with respect to any Person and as of any date of
determination thereof, the book value of the assets of such Person minus (i) any
reserves applicable thereto, and minus (ii) all of such Person's liabilities
(including accrued and deferred income taxes), all as determined on a
consolidated basis.
"Notes" shall mean, collectively, the Master Notes and the Term Notes.
"Obligations" means all Debts of each Credit Party, whether existing on or
after the Closing Date, whether joint or several, absolute or contingent,
primary or secondary, as maker, endorser, surety, guarantor or otherwise, to
Lender, including, without limitation, (i) all Debts evidenced, incurred or
arising from to time under this Agreement, the Notes or any of the other Loan
Documents, including principal, interest, fees, costs, guarantees (including,
without limitation, the guaranty by the U.S. Borrower of the Obligations of the
Canadian Borrower and the German Borrower hereunder), indemnification amounts
and any amounts for which any Credit Party is required to reimburse the Lender,
whether under Section 9.6 or otherwise; and any and all extensions or renewals
thereof in whole or in part; and (ii) all Debts in respect of Bank Products,
including, without limitation, in respect of any early termination or breakage
fees, costs or expenses associated with the termination of any Bank Products.
"Override Borrowing Limitation" shall mean the lesser of (a) the Borrowing
Base or (b) the sum of (i) the U.S. Line of Credit Limit plus (ii) the Temporary
Line of Credit Limit, plus (iii) the Dollar Equivalent of the Canadian Line of
Credit Limit plus (iv) the Dollar Equivalent of the German Line of Credit Limit,
each as in effect from time to time.
"Payment Dates" shall mean the first (1st) day of each of the months of
March, June, September and December in each calendar year, commencing with March
1, 2001.
"Permitted Encumbrances" shall mean (i) Liens for taxes not yet due and
payable or being actively contested as permitted by this Agreement; (ii)
carriers', warehousemen's mechanics', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business, payment for which is not yet
due or which are being actively contested in good faith and by appropriate,
lawful proceedings, but only if such Liens are and remain junior to Liens
granted in favor of Lender; (iii) pledges or deposits in connection with
worker's compensation, unemployment insurance and other social security
legislation; (iv) deposits to secure the performance of utilities, leases,
statutory obligations and surety and appeal bonds and other obligations of a
like nature arising by statute or under customary terms regarding depository
relationships on deposits held by financial institutions with whom the
applicable Credit Party has a banker-customer relationship; (v) typical
restrictions imposed by licenses and leases of software (including location and
transfer restrictions); (vi) Liens pursuant to Capital Leases existing on the
date hereof and disclosed on Schedule 1.1B; (vii) additional Liens pursuant to
Capital Leases and Purchase Money Liens if and to the extent that pursuant to
Section 5.2 Borrower is permitted to incur the Debt arising thereunder or
secured thereby; (viii) Foreign Credit Facility Liens; and (ix) Liens in favor
of Lender.
"Person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, joint stock company, trust, governmental unit
or other entity.
"Portuguese Subsidiary" shall mean Immucor Portugal, Lda, a company
organized under the laws of Portugal.
"Prime Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the Prime Rate.
"Prime Rate" refers to that interest rate so denominated and set by Lender
from time to time as an interest rate basis for borrowings. The Prime Rate is
but one of several interest rate bases used by Lender. Lender extends credit at
interest rates above and below the Prime Rate.
"Principal Officers" shall mean Xxxxxx X. Xxxxxx, Xxxxx X. Xxxx and Xxxxxx
X. Xxxxxx.
"Purchase Money Lien" shall mean any Lien granted by Borrower or any
Subsidiary from time to time to vendors or financiers of equipment to secure the
payment of the purchase price thereof so long as (i) such Liens extend only to
the specific equipment so purchased, (ii) secure only such deferred payment
obligation and related interest, fees and charges and no other Debt, and (iii)
are promptly released upon the payment in full of such purchase price and
related interest, fees and charges.
"Restricted Investment" shall mean any investment in cash or by delivery of
property to any Person, whether by acquisition of stock, indebtedness or other
obligation or security, or by loan, advance or capital contribution, or
otherwise, or in any property, or the acquisition of all or substantially all of
the assets of any Person, except that investments consisting of or acquisitions
of the following shall not constitute "Restricted Investments": (i) property
used or to be used in the ordinary course of business; (ii) current assets
arising from the sale of goods or the provision of services in the ordinary
course of business; and (iii) loans or advances to employees for salary,
commissions, travel or the like, made in the ordinary course of business.
"Second Belgian Subsidiary" shall mean Immucor Belgium S.A., f/k/a
Medichim, S.A., a company organized under the laws of Belgium.
"Security Agreement" shall mean that certain Security Agreement, dated as
of the Closing Date, made by the U.S. Borrower, Gamma, Gamma International and
BCA in favor of Lender (which constitutes an amendment and restatement of that
certain Security Agreement, dated as of December 5, 2000, made by the U.S.
Borrower, Gamma and Gamma International in favor of Lender), as amended or
supplemented from time to time.
"Stock Pledge Agreement" shall mean, collectively, that certain Stock
Pledge Agreement, dated as of October 27, 1998, made by the U.S. Borrower in
favor of Lender, relative to stock of the Canadian Borrower, the Share Pledge
Agreement, dated as of December 17, 1998, made by the U.S. Borrower in favor of
Lender, relative to stock of the German Borrower, that certain Deed of Pledge of
Registered Shares in a Private Company with Limited Liability, dated as of May
12, 1999, made by Gamma in favor of Lender, relative to stock of the Dutch
Subsidiary, that certain Stock Pledge Agreement, dated as of even date herewith,
made by Gamma in favor of Lender, relative to stock of Gamma International
(which constitutes an amendment and restatement of that certain Stock Pledge
Agreement, dated as of May 7, 1999, made by Gamma in favor of Lender relative to
such stock), that certain Stock Pledge Agreement, dated as of even date
herewith, made by the U.S. Borrower in favor of Lender, relative to stock of BCA
(which constitutes an amendment and restatement of that certain Stock Pledge
Agreement, dated as of April 30, 1999, made by the U.S. Borrower in favor of
Lender relative to such stock), that certain Stock Pledge Agreement, dated as of
April 30, 1999, made by the U.S. Borrower in favor of Lender, relative to stock
of the Barbados Subsidiary, that certain Share Pledge Agreement, dated as of May
7, 1999, made by the U.S. Borrower in favor of Lender, relative to stock of the
Belgian Subsidiary, that certain Stock Pledge Agreement, dated as of even date
herewith, made by the U.S. Borrower in favor of Lender, relative to the stock of
Gamma, and any other stock pledge agreement executed by any Credit Party in
favor of Lender, in each case, as amended or supplemented from time to time.
Each Stock Pledge Agreement is or shall be in substantially the form of Exhibit
D-2; unless otherwise approved by Lender.
"Spanish Subsidiary" shall mean Immucor, S.L., a company organized under
the laws of Spain.
"Subsidiary" shall mean any corporation, partnership, limited liability
company, business association or other entity (including any Subsidiary of any
of the foregoing) of which the U.S. Borrower owns, directly or indirectly, fifty
percent (50%) or more of the capital stock or other equity interests having
ordinary power for the election of directors or others performing similar
functions.
"Temporary Line of Credit" shall refer to the line of credit made available
by Lender to the U.S. Borrower pursuant to the provisions of Section 2.1.2.
"Temporary Line of Credit Limit" shall mean $2,000,000, subject to
reduction by the U.S. Borrower pursuant to Section 2.1.2.
"Temporary Line of Credit Termination Date" shall mean the earliest to
occur of the following dates: (i) the date on which pursuant to Section 8,
Lender terminates the Temporary Line of Credit (or the Temporary Line of Credit
is deemed automatically terminated subsequent to the occurrence of an Event of
Default), (ii) the effective date of the U.S. Borrower's irrevocable termination
of the U.S. Line of Credit pursuant to Section 2.1.2; or (iii) October 31, 2001.
"Temporary Master Note" shall mean the master promissory note of even date
herewith, made by the U.S. Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the
Temporary Line of Credit, evidencing Advances to be obtained by the U.S.
Borrower under the Temporary Line of Credit, together with any renewals or
extensions thereof, in whole or in part. The Temporary Master Note shall be
substantially in the form of Exhibit A, with appropriate insertions.
"Term Loan A" shall mean the term loan in the principal amount of
$20,000,000 to be made by Lender to the U.S. Borrower pursuant to the provisions
of Section 2.1.6.
"Term Loan B" shall mean the term loan in the principal amount of
$6,000,000 to be made by Lender to the U.S. Borrower pursuant to the provisions
of Section 2.1.7.
"Term Loans" shall mean, collectively, the Term Loan A, the Term Loan B,
and the CAD Term Loan.
"Term Note A" shall mean the term promissory note, dated of even date
herewith, made by the U.S. Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the
principal amount of Term Loan A, together with any renewals or extensions
thereof, in whole or in part. Term Note A shall be substantially in the form of
Exhibit C-1.
"Term Note B" shall mean the term promissory note, dated of even date
herewith, made by the U.S. Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the
principal amount of Term Loan B, together with any renewals or extensions
thereof, in whole or in part. Term Note B shall be substantially in the form of
Exhibit C-2.
"Term Notes" shall mean, collectively, the Term Note A, the Term Note B and
the CAD Term Note.
"UCC" shall mean the Uniform Commercial Code as in effect in the State of
Georgia from time to time.
"U.S. Borrower" shall mean the meaning given to such term in the preamble
to this Agreement.
"U.S. Line of Credit" shall refer to the line of credit made available by
Lender to the U.S. Borrower pursuant to the provisions of Section 2.1.2.
"U.S. Line of Credit Limit" shall mean $7,000,000, subject to reduction by
the U.S. Borrower pursuant to Section 2.1.1.
"U.S. Line of Credit Termination Date" shall mean the earliest to occur of
the following dates: (i) the date on which pursuant to Section 8, Lender
terminates the U.S. Line of Credit (or the U.S. Line of Credit is deemed
automatically terminated subsequent to the occurrence of an Event of Default),
(ii) the effective date of the U.S. Borrower's irrevocable termination of the
U.S. Line of Credit pursuant to Section 2.1.1; or (iii) February 28, 2003.
"U.S. Loan Agreement" shall have the meaning given to such term in the
recitals to this Agreement.
"U.S. Master Note" shall mean the master promissory note, dated of even
date herewith, made by the U.S. Borrower in favor of Lender, as amended or
supplemented from time to time, in a stated principal amount equal to the U.S.
Line of Credit Limit, evidencing Advances to be obtained by the U.S. Borrower
under the U.S. Line of Credit, together with any renewals or extensions thereof,
in whole or in part. The U.S. Master Note shall be substantially in the form of
Exhibit A, with appropriate insertions.
1.2 Use of Defined Terms. All terms defined in this Agreement and the
Exhibits thereto shall have the same defined meanings when used in any other
Loan Documents, unless otherwise defined therein or the context shall require
otherwise.
1.3 Accounting Terms. All accounting terms not specifically defined herein
shall have the meanings generally attributed to such terms under GAAP.
1.4 UCC Terms. All other undefined terms shall, unless the context
indicates otherwise, have the meanings provided for by the UCC to the extent the
same are used or defined therein.
1.5 Terminology. All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement, and all
references in this Agreement to Articles, Sections, Subsections, paragraphs,
clauses, subclauses, Exhibits or Supplements shall refer to the corresponding
Article, Section, Subsection, paragraph, clause, subclause of, or Exhibit or
Supplement attached to, this Agreement, unless specific reference is made to the
articles, sections or other subdivisions of, or Exhibit or Supplement to,
another document or instrument. Wherever in this Agreement reference is made to
any instrument, agreement or other document, including, without limitation, any
of the Loan Documents, such reference shall be understood to mean and include
any and all amendments or supplements thereto or modifications, restatements,
replacements, renewals or extensions thereof. Wherever in this Agreement
reference is made to any statute, such reference shall be understood to mean and
include any and all amendments thereof and all regulations promulgated pursuant
thereto. Whenever any matter set forth herein or in any Loan Document is to be
consented to or satisfactory to Lender, or is to be determined, calculated or
approved by Lender, then, unless otherwise expressly set forth herein or in any
such Loan Document, such consent, satisfaction, determination, calculation or
approval shall be in Lender's sole discretion, exercised in good faith and,
where required by law, in a commercially reasonable manner, and shall be
conclusive absent manifest error.
1.6 Exhibits. All Exhibits attached hereto are by reference made a
parthereof.
2. FINANCING
2.1 Extensions of Credit.
2.1.1 U.S. Line of Credit. Subject to the terms and conditions of this
Agreement, Lender agrees to open the U.S. Line of Credit in favor of the U.S.
Borrower so that, during the period from the Closing Date to, but not including,
the U.S. Line of Credit Termination Date, the U.S. Borrower may borrow, repay
and reborrow Advances under the U.S. Line of Credit up to a maximum aggregate
principal amount outstanding at any one time equal to the U.S. Line of Credit
Limit as then in effect; subject, however, to the further limitations set forth
in Section 2.1.5. All proceeds so obtained under the U.S. Line of Credit may be
used by the U.S. Borrower for working capital in such manner as the U.S.
Borrower may elect in the ordinary course of its business operations. The Debts
arising from Advances made to or on behalf of the U.S. Borrower under the U.S.
Line of Credit shall be evidenced by the U.S. Master Note, which shall be
executed by the U.S. Borrower and delivered to Lender on the Closing Date. The
outstanding principal amount of the U.S. Master Note may fluctuate from time to
time, but shall be due and payable in full on the U.S. Line of Credit
Termination Date, and each Advance thereunder shall bear interest from the date
of such Advance until paid in full at the Applicable Rate, calculated and
payable in the manner described in Section 2.2.1. Subject to any contrary
provisions of Section 2.2.1 in respect of LIBOR Borrowings, the U.S. Borrower
shall have the option to request Advances under the U.S. Line of Credit by
telephone or in a writing delivered to Lender not later than 11:00 a.m.
(Atlanta, Georgia time) on the date of the requested Advance; provided, however,
that any telephone request shall be confirmed in a writing not later than the
Business Day following the disbursement of the requested Advance. The U.S.
Borrower may, on not less than five (5) Business Days prior written notice to
Lender, irrevocably terminate the U.S. Line of Credit or irrevocably reduce the
amount of the U.S. Line of Credit Limit, but in the case of any such reduction
the U.S. Borrower shall prepay the Advances under the U.S. Line of Credit to the
extent the aggregate outstanding principal balance thereof exceeds the amount of
the U.S. Line of Credit Limit as so reduced. The U.S. Line of Credit shall
constitute an extension and renewal of the "Line of Credit" (as that term is
defined in the U.S. Loan Agreement).
2.1.2 Temporary Line of Credit. Subject to the terms and conditions of this
Agreement, Lender agrees to open the Temporary Line of Credit in favor of the
U.S. Borrower so that, during the period from the Closing Date to, but not
including, the Temporary Line of Credit Termination Date, the U.S. Borrower may
borrow, repay and reborrow Advances under the Temporary Line of Credit up to a
maximum aggregate principal amount outstanding at any one time equal to the
Temporary Line of Credit Limit as then in effect; subject, however, to the
further limitations set forth in Section 2.1.5. All proceeds so obtained under
the Temporary Line of Credit may be used by the U.S. Borrower for working
capital in such manner as the U.S. Borrower may elect in the ordinary course of
its business operations. The Debts arising from Advances made to or on behalf of
the U.S. Borrower under the Temporary Line of Credit shall be evidenced by the
Temporary Master Note, which shall be executed by the U.S. Borrower and
delivered to Lender on the Closing Date. The outstanding principal amount of the
Temporary Master Note may fluctuate from time to time, but shall be due and
payable in full on the Temporary Line of Credit Termination Date, and each
Advance thereunder shall bear interest from the date of such Advance until paid
in full at the Applicable Rate, calculated and payable in the manner described
in Section 2.2.1. Subject to any contrary provisions of Section 2.2.1 in respect
of LIBOR Borrowings, the U.S. Borrower shall have the option to request Advances
under the Temporary Line of Credit by telephone or in a writing delivered to
Lender not later than 11:00 a.m. (Atlanta, Georgia time) on the date of the
requested Advance; provided, however, that any telephone request shall be
confirmed in a writing not later than the Business Day following the
disbursement of the requested Advance. The U.S. Borrower may, on not less than
five (5) Business Days prior written notice to Lender, irrevocably terminate the
Temporary Line of Credit or irrevocably reduce the amount of the Temporary Line
of Credit Limit, but in the case of any such reduction the U.S. Borrower shall
prepay the Advances under the Temporary Line of Credit to the extent the
aggregate outstanding principal balance thereof exceeds the amount of the
Temporary Line of Credit Limit as so reduced. Notwithstanding anything contained
herein to the contrary, the U.S. Borrower shall have no rights to obtain
Advances under the Temporary Line of Credit unless it has first obtained all
Advances available under the U.S. Line of Credit.
2.1.3 Canadian Line of Credit. Subject to the terms and conditions of this
Agreement, Lender agrees to open the Canadian Line of Credit in favor of the
Canadian Borrower so that, during the period from the Closing Date to, but not
including, Canadian Line of Credit Termination Date, the Canadian Borrower may
borrow, repay and reborrow Advances under the Canadian Line of Credit up to a
maximum aggregate principal amount outstanding at any one time equal to the
Canadian Line of Credit Limit as then in effect; subject, however, to the
further limitations set forth in Section 2.1.5. All proceeds so obtained under
the Canadian Line of Credit may be used by the Canadian Borrower for working
capital in such manner as the Canadian Borrower may elect in the ordinary course
of its business operations. The Debts arising from Advances made to or on behalf
of the Canadian Borrower under the Canadian Line of Credit shall be evidenced by
the Canadian Master Note, which shall be executed by the Canadian Borrower and
delivered to Lender on the Closing Date. The outstanding principal amount of the
Canadian Master Note may fluctuate from time to time, but shall be due and
payable in full on the Canadian Line of Credit Termination Date, and each
Advance thereunder shall bear interest from the date of such Advance until paid
in full at the Applicable Rate, calculated and payable in the manner described
in Section 2.2.1. Subject to any contrary provisions of Section 2.2.1 in respect
of LIBOR Borrowings, the Canadian Borrower shall have the option to request
Advances under the Canadian Line of Credit by telephone or in a writing
delivered to Lender not later than 11:00 a.m. (Atlanta, Georgia time) on the
date of the requested Advance; provided, however, that any telephone request
shall be confirmed in a writing not later than the Business Day following the
disbursement of the requested Advance. The Canadian Borrower may, on not less
than five (5) Business Days prior written notice to Lender, irrevocably
terminate the Canadian Line of Credit or irrevocably reduce the amount of the
Canadian Line of Credit Limit, but in the case of any such reduction the
Canadian Borrower shall prepay the Advances under the Canadian Line of Credit to
the extent the aggregate outstanding principal balance thereof exceeds the
amount of the Canadian Line of Credit Limit as so reduced. The Canadian Line of
Credit shall constitute an extension and renewal of the line of credit made
available by Lender to the Canadian Borrower pursuant to the Canadian Loan
Agreement.
2.1.4 German Line of Credit. Subject to the terms and conditions of this
Agreement, Lender agrees to open the German Line of Credit in favor of the
German Borrower so that, during the period from the Closing Date to, but not
including, the German Line of Credit Termination Date, the German Borrower may
borrow, repay and reborrow Advances up to a maximum aggregate principal amount
outstanding at any one time equal to the German Line of Credit Limit as then in
effect; subject, however, to the further limitations set forth in Section 2.1.5.
All proceeds so obtained under the German Line of Credit may be used by the
German Borrower for working capital in such manner as the German Borrower may
elect in the ordinary course of its business operations. The Debts arising from
Advances made to or on behalf of the German Borrower under the German Line of
Credit shall be evidenced by the German Master Note, which shall be executed by
the German Borrower and delivered to Lender on the Closing Date. The outstanding
principal amount of the German Master Note may fluctuate from time to time, but
shall be due and payable in full on the German Line of Credit Termination Date,
and each Advance thereunder shall bear interest from the date of such Advance
until paid in full at the Applicable Rate, calculated and payable in the manner
described in Section 2.2.1. Subject to any contrary provisions of Section 2.2.1
in respect of LIBOR Borrowings, the German Borrower shall have the option to
request Advances under the German Line of Credit by telephone or in a writing
delivered to Lender not later than 11:00 a.m. (Atlanta, Georgia time) on the
date of the requested Advance; provided, however, that any telephone request
shall be confirmed in a writing not later than the Business Day following the
disbursement of the requested Advance. The German Borrower may, on not less than
five (5) Business Days prior written notice to Lender, irrevocably terminate the
German Line of Credit or irrevocably reduce the amount of the German Line of
Credit Limit, but in the case of any such reduction the German Borrower shall
prepay the Advances under the German Line of Credit to the extent the aggregate
outstanding principal balance thereof exceeds the amount of the German Line of
Credit Limit as so reduced. The German Line of Credit shall constitute an
extension and renewal of the line of credit made available by Lender to the
German Borrower pursuant to the German Loan Agreement.
2.1.5 Aggregate Limitation on Advances Under Lines of Credit.
Notwithstanding anything contained herein to the contrary, the Dollar Equivalent
of the aggregate amount of Advances outstanding to Borrower under the Lines of
Credit, shall not at any time exceed the amount of the Override Borrowing
Limitation. If at any time the Dollar Equivalent of the aggregate amount of the
Advances outstanding to Borrower under the Lines of Credit exceeds the Override
Borrowing Limitation, Borrower shall immediately repay or prepay such principal
amount of Advances as may be necessary so that after such payment, the Dollar
Equivalent of the aggregate unpaid principal amount of the Advances does not
exceed the Override Borrowing Limitation.
2.1.6 Term Loan A. Subject to the terms and conditions of this Agreement,
on the Closing Date, Lender shall make the Term Loan A to the U.S. Borrower. The
debt arising from the making of Term Note A shall be evidenced by the Term Note
A, which shall be executed by the U.S. Borrower and delivered to Lender on the
date hereof. The principal amount of Term Loan A shall be repaid by the U.S.
Borrower in twenty (20) quarterly installments on each Payment Date, commencing
on March 1, 2001, the first four (4) of which shall be in the amount of $375,000
each, the next four (4) of which shall be in the amount of $875,000 each and the
next twelve (12) of which shall be in the amount of $1,250,000 each; provided,
however, that the final such installment, due and payable on December 1, 2005,
shall be in such amount as is required to pay in full the unpaid principal
balance of Term Loan A, together with all accrued and unpaid interest thereon.
Term Loan A shall bear interest at the Applicable Rate, calculated and payable
in the manner described in Section 2.2.1, from the date hereof on the unpaid
principal amount thereof from time to time outstanding. Term Loan A may be
prepaid, in whole or in part, by the U.S. Borrower, at any time or from time to
time hereafter following prepayment in full of Term Loan B; provided, however,
that any partial payment of Term Loan A shall be applied by Lender in the
inverse order of the maturities of the principal installments of the Term Loan A
then remaining to be paid.
2.1.7 Term Loan B. Subject to the terms and conditions of this Agreement,
on the Closing Date, Lender shall make the Term Loan B to the U.S. Borrower. The
debt arising from the making of Term Loan B shall be evidenced by a term
promissory note, dated as of even date herewith, in form and substance
satisfactory to Lender, in the stated principal amount equal to the Term Loan B
(as amended or supplemented from time to time and together with any renewals and
extensions thereof, the "Term Note B"), which shall be executed by the U.S.
Borrower and delivered to Lender on the date hereof. The principal amount of
Term Loan B, together with all accrued and unpaid interest thereon, shall be due
and payable in full on December 1, 2005. Term Loan B shall bear interest at the
Applicable Rate, calculated and payable in the manner described in Section 2.2
of the U.S. Loan Agreement, from the date hereof on the unpaid principal amount
thereof from time to time outstanding. Term Loan B may be prepaid, in whole or
in part, by the U.S. Borrower at any time or from time to time hereafter. The
proceeds of the Term Loan A and the Term Loan B shall be used to refinance the
outstanding principal balances of the "Acquisition Term Loans," the "Additional
Term Loans", the "Second Additional Term Loan" and the "Fourth Additional Term
Loans" (as those terms are defined in the U.S. Loan Agreement), and the Term
Loan A and the Term Loan B shall constitute restructurings of, and extensions
and renewals of, the Acquisition Term Loans, the Additional Term Loans and the
Second Additional Term Loans and the Fourth Additional Term Loans.
2.1.8 CAD Term Loan. The outstanding principal balance of the CAD Term Loan
shall continue to be repaid by the U.S. Borrower in quarterly installments in
accordance with the amortization schedule set forth in the CAD Term Note;
provided, however, that the final such installment, due and payable on December
1, 2002, shall be in such amount as is required to pay in full the unpaid
principal balance of the CAD Term Loan, together with all accrued and unpaid
interest thereon. The CAD Term Loan shall bear interest at the Applicable Rate,
calculated and payable in the manner described in Section 2.2.1, from the date
hereof on the unpaid principal amount thereof from time to time outstanding. The
CAD Term Loan may be prepaid, in whole or in part, by the U.S. Borrower at any
time or from time to time hereafter following prepayment in full of the Term
Loan A and the Term Loan B; provided, however, that any partial prepayment of
the CAD Term Loan shall be applied by Lender in the inverse order of the
maturities of the principal installments of the CAD Term Loan then remaining
unpaid. On the Closing Date, the U.S. Borrower shall execute and deliver to
Lender the CAD Term Note to evidence its continuing obligations in respect of
the CAD Term Loan.
2.2 Interest and Other Charges.
2.2.1 Interest at Applicable Rate. Lender and Borrower agree that the
interest rate payable on each Loan (herein called the "Applicable Rate") shall
be determined as follows:
(a) Applicable Rate. The outstanding principal balance of each Loan (other
than Advances under the Canadian Line of Credit, Advances under the German Line
of Credit and the CAD Term Loan), or each outstanding portion thereof, shall
bear interest initially at a rate per annum equal to either: (i) the Prime Rate
in the case of that portion of such Loan at any time constituting a Prime
Borrowing or (ii) subject to the conditions and limitations set forth in
subsection (c) below, the LIBOR Rate plus the Applicable Margin in the case of
that portion of such Loan at any time constituting a LIBOR Borrowing; subject,
however, in each case, to adjustment as provided in subsection (b) below. The
outstanding principal balance of Advances under the Canadian Line of Credit,
Advances under the German Line of Credit and the CAD Term Loan, or each
outstanding portion thereof, subject to the conditions and limitations set forth
in subsection (c) below, shall bear interest at a rate per annum rate equal to
the LIBOR Rate plus the Applicable Margin, subject to adjustment as provided in
subsection (b) below.
(b) Applicable Margin. The "Applicable Margin" shall mean as of February
23, 2001 a rate per annum equal to, with respect to Advances under the Lines of
Credit, the Term Loan A and the CAD Term Loan, 325 basis points (3.25%) and,
with respect to the Term Loan B, 375 basis points (3.75%), and the Applicable
Margin shall be subject to subsequent adjustment, up or down, based on the U.S.
Borrower's financial performance, determined by reference to the Funded
Debt/EBITDA Ratio, measured quarterly; that is, if the Funded Debt/EBITDA Ratio,
measured for each Fiscal Quarter of the U.S. Borrower, commencing with the first
Fiscal Quarter ending after the Closing Date, is as described below, the
Applicable Margin shall be the margin appearing opposite said Funded Debt/EBITDA
Ratio:
Applicable Margin
Lines of
Credit,
Term Loan A and
Funded Debt/ CAD Term Loan
LEVEL EBITDA Ratio Term Loan B
----- ------------ ---------------- -----------
I <=2.50:1.00 2.00% 2.50%
II >2.50:1.00, but 2.25% 2.75%
<= 2.75:1.00
III >2.75:1.00 2.50% 3.00%
but <=3.00:1.00
IV >3.00:1.00 3.00% 3.50%
but <=3.50:1.00
-
V >3.50:1.00 3.25% 3.75%
Lender shall determine whether any adjustment to the Applicable Margin is
to be made quarterly, based on the U.S. Borrower's financial statements for each
Fiscal Quarter delivered to Lender pursuant to Section 4.2; provided that if
such financial statements are not timely delivered to Lender, then an adjustment
to the Applicable Margin shall be made based on an assumed delivery of said
financial statements reflecting a Funded Debt/EBITDA Ratio of greater than
3.5:1.0; provided further if any Default Condition shall then exist no
adjustment downward shall occur to the Applicable Margin hereunder. Each such
adjustment to the Applicable Margin shall become effective as of the first day
of the calendar month following the date on which such financial statements are
delivered (or deemed delivered) to Lender, and shall remain effective unless and
until any subsequent adjustment becomes effective in accordance with the terms
of this Section 2.2.1(b). Each such adjustment shall apply only to LIBOR
Borrowings made (including conversions and continuations) within such period
(but not to any then existing). In the event that the annual audited financial
statements of the U.S. Borrower for any Fiscal Year shall require restatement of
financial statements of the U.S. Borrower and such restatement shall effect the
Funded Debt/EBITDA Ratio and would have required a different Applicable Margin
to be in effect for prior periods, then Lender, at its option, may require
Borrower to make additional payments of interest for such prior periods.
(c) Conditions and Limitations on LIBOR Borrowings. Each Borrower shall
have the continuing right to elect that Loans to it under this Agreement be made
as, continued as, or converted into LIBOR Borrowings or Prime Borrowings;
subject, however, to the following conditions and limitations: (i) the U.S.
Borrower shall have no right, with respect to Advances under the U.S. Line of
Credit, the Temporary Line of Credit, the Term Loan A or the Term Loan B, to
obtain a LIBOR Borrowing or to convert Prime Borrowings to LIBOR Borrowings if
an Event of Default or Default Condition exists; (ii) Borrower must request a
LIBOR Borrowing, specifying the amount thereof and the applicable Interest
Period, at least three (3) Business Days in advance of the intended borrowing
date; (iii) no more than three (3) LIBOR Borrowings under each Line of Credit,
the Term Loan A, the Term Loan B and the CAD Term Loan may be obtained at any
time; (iv) LIBOR Borrowings must be in minimum amounts of $500,000, in the case
of LIBOR Borrowings under the U.S. Line of Credit, the Temporary Line of Credit,
the Term Loan A and the Term Loan B, 500,000 CAD, in the case of LIBOR
Borrowings under the Canadian Line of Credit and the CAD Term Loan, and 500,000
DM, in the case of LIBOR Borrowings under the German Line of Credit, or integral
multiples thereof, in each case, (iv) the Interest Period for LIBOR Borrowings
in respect of the U.S. Line of Credit shall not exceed the U.S. Line of Credit
Termination Date; (v) the Interest Period for LIBOR Borrowings in respect of the
Canadian Line of Credit shall not exceed the Canadian Line of Credit Termination
Date; (vi) the Interest Period for LIBOR Borrowings in respect of the German
Line of Credit shall not exceed the German Line of Credit Termination Date;
(vii) the Interest Period for LIBOR Borrowings in respect of the Temporary Line
of Credit shall not exceed the Temporary Line of Credit Termination Date; (viii)
the Interest Periods for, and aggregate amount of, LIBOR Borrowings in respect
of the Term Loans must be consistent with, and not exceed, the scheduled
principal amortization thereof; (ix) if on or prior to the first day of any
Interest Period, Lender determines that deposits in Dollars, CAD or DM (in the
applicable amounts), as applicable, are not being offered in the relevant market
for such Interest Period or that any LIBOR Rate will not adequately and fairly
reflect the cost to Lender of funding any relevant borrowings for such Interest
Period, then, Lender shall forthwith give notice thereof to Borrower, whereupon,
until Lender notifies Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of Lender to make the applicable
LIBOR Borrowings available to Borrower shall be suspended, all relevant Loans
thereafter (other than Advances under the German Line of Credit, Advances under
the Canadian Line of Credit and the CAD Term Loan) shall be made as Prime
Borrowings and, with respect to Advances under the German Line of Credit,
Advances under the Canadian Line of Credit and the CAD Term Loan, Lender shall
designate a substitute index for calculation of the interest rate which
adequately and fairly reflects the cost to Lender of funding such Advances
and/or the CAD Term Loan, and Loans made thereunder shall thereafter bear
interest at a per annum rate equal to such index plus the Applicable Margin; (x)
if, at any time, a change of law, or compliance by Lender with any request or
directive (whether or not having the force of law) of any governmental authority
shall make it unlawful or impracticable for Lender to make available, maintain
or fund any LIBOR Borrowings, Lender shall forthwith give notice to such effect
to Borrower, whereupon, until Lender notifies Borrower that the circumstances
giving rise to such suspension no longer exist, the obligation of Lender to make
such Borrowings available to Borrower shall be suspended and if Lender shall
determine that it may not lawfully continue to maintain and fund any then
outstanding Borrowings to maturity and shall so specify in such notice, each
Borrowing, other than Advances under the Canadian Line of Credit, Advances under
the German Line of Credit and the CAD Term Loan, so affected shall be converted
to a Prime Borrowing effective immediately and Advances under the Canadian Line
of Credit, Advances under the German Line of Credit and the CAD Term Loan shall
from the date of such notice bear interest at a per annum rate equal to an index
determined by Lender as set forth in clause (ix) above plus the Applicable
Margin; (xi) unless the applicable Borrower has timely given Lender a notice of
LIBOR Borrowing required hereinabove, a LIBOR Borrowing (other than an Advance
under the Canadian Line of Credit, an Advance under the German Line of Credit or
the CAD Term Loan) shall automatically convert to a Prime Borrowing at the
expiration of the Interest Period corresponding thereto; (xii) unless the
applicable Borrower has timely given Lender a notice of LIBOR Borrowing
hereinabove, a LIBOR Borrowing which is an Advance under the Canadian Line of
Credit, an Advance under the German Line of Credit or the CAD Term Loan shall be
continued as a LIBOR Borrowing having the same Interest Period as the expired
Interest Period; (xiii) no voluntary prepayment of any LIBOR Borrowing shall be
permitted unless Lender has given its written consent thereto; and (xiv) upon
the request of Lender, delivered to a Borrower, such Borrower shall pay to
Lender such amount or amounts as shall be determined by Lender in connection
with the relevant Interest Period as a result of: (A) any payment or prepayment
of any LIBOR Borrowing by such Borrower on a date other than the last day of an
Interest Period for such Borrowing, whether as a result of voluntary prepayment,
mandatory prepayment, involuntary acceleration or otherwise; or (B) any failure
by the Borrower to undertake any such LIBOR Borrowing on the date for which
notice of such Borrowing is specified by Borrower. In the case of clause (xiv),
such sum shall include, without limitation, an amount equal to the excess, if
any, of the amount of interest which would have accrued on the amount so paid or
prepaid or not prepaid or borrowed for the period from the date of such payment,
prepayment or failure to prepay or borrow to the last day of the then current
Interest Period for such Borrowing (or, in the case of a failure to prepay or
borrow, the Interest Period for such Borrowing which would have commenced on the
date of such failure to prepay or borrow) at the applicable rate of interest for
such Borrowing provided for herein over the amount of interest (as determined by
Lender in the reasonable exercise of its discretion) Lender would have paid on
deposits in Dollars of comparable amounts having terms comparable to such period
placed with it by leading banks in the London interbank market.
(d) Payment of Interest. Accrued interest on each Prime Borrowing at the
Applicable Rate shall be due and payable quarterly in arrears, on each Payment
Date. Accrued interest on each LIBOR Borrowing shall be due and payable at the
Applicable Rate on the same dates as are prescribed for the payment of accrued
interest on Prime Borrowings, and, additionally, at the expiration of each
Interest Period corresponding to such Borrowing.
(e) Calculation of Interest and Fees. Interest on each Borrowing at the
Applicable Rate (and any fees described in Section 2.2.2 computed on a per annum
basis) shall be calculated on the basis of a 360-day year and actual days
elapsed. The Applicable Rate on each Prime Borrowing shall change with each
change in the Prime Rate, effective as of the opening of business on the
Business Day of such change.
(f) Charging Interest and Fees. Accrued and unpaid interest on any
Borrowings (and any outstanding fees described in Section 2.2.2) may, when due
and payable, be paid, at Lender's option (without any obligation to do so), by
Lender's charging of the U.S. Line of Credit or the Temporary Line of Credit, in
the case of any Borrowings, the Canadian Line of Credit, in the case of any
Borrowings thereunder, or the German Line of Credit, in the case of any
Borrowings thereunder, for an Advance in the amount thereof.
(g) Rate on Other Obligations. To the extent that, at any time, there are
other Obligations besides the Loans which are outstanding and unpaid, such
Obligations shall, unless any Note evidencing such Obligations provides
otherwise, bear interest at the same rate per annum as is then and thereafter
payable on Prime Borrowings under the U.S. Line of Credit.
2.2.2 Fees. In addition to the payment of interest at the Applicable Rate,
Borrower shall also be obligated to pay Lender the following fees:
(a) Loan Origination Fee. On the Closing Date, Borrower shall pay to Lender
a fully earned, non-refundable loan origination fee in an amount equal to the
sum of (i) one-half of one percent (.50%) of the sum of the U.S. Line of Credit
Limit plus the Dollar Equivalent of the Canadian Line of Credit Limit plus the
Dollar Equivalent of the German Line of Credit Limit plus the amount of Term
Loan A plus the Dollar Equivalent of the CAD Term Loan, plus (ii) three-fourths
of one percent (.75%) of the sum of the Temporary Line of Credit Limit plus the
amount of Term Loan B.
(b) Non-Usage Fee. (i) As additional compensation for Lender's making
available to the U.S. Borrower the U.S. Line of Credit, the U.S. Borrower shall
pay to Lender, in arrears, on each Payment Date prior to the U.S. Line of Credit
Termination Date, as well as on the U.S. Line of Credit Termination Date, a
fully earned, non-refundable fee for the U.S. Borrower's non-use of available
funds under the U.S. Line of Credit, in an amount equal to the "Applicable
Percentage" (as defined below) per annum (calculated on the basis of a 360-day
year for actual days elapsed) of the difference between (x) the U.S. Line of
Credit Limit then in effect and (y) the average for the consecutive 3-month
period ending on the day immediately preceding such Payment Date (or in the case
of such payment due on the U.S. Line of Credit Termination Date, the period
commencing on the immediately preceding Payment Date and ending on the U.S. Line
of Credit Termination Date) of the daily closing balance of the aggregate
Advances outstanding under the U.S. Line of Credit during such period.
(ii) As additional compensation for Lender's making available to the
U.S. Borrower the Temporary Line of Credit, the U.S. Borrower shall pay to
Lender, in arrears, on each Payment Date prior to the Temporary Line of Credit
Termination Date, as well as on the Temporary Line of Credit Termination Date, a
fully earned, non-refundable fee for the U.S. Borrower's non-use of available
funds under the Temporary Line of Credit in an amount equal to the Applicable
Percentage per annum (calculated on the basis of a 360-day year for actual days
elapsed) of the difference between (x) the Temporary Line of Credit Limit then
in effect and (y) the average for the consecutive 3-month period ending on the
day immediately preceding such Payment Date (or in the case of such payment due
on the Temporary Line of Credit Termination Date, the period commencing on the
immediately preceding Payment Date and ending on the Temporary Line of Credit
Termination Date) of the daily closing balance of the aggregate Temporary
Advances outstanding under the Temporary Line of Credit during such period.
(iii) As additional compensation for Lender's making available to the
Canadian Borrower the Canadian Line of Credit, the Canadian Borrower shall pay
to Lender, in arrears, on each Payment Date prior to the Canadian Line of Credit
Termination Date, as well as on the Canadian Line of Credit Termination Date, a
fully earned, non-refundable fee for the Canadian Borrower's non-use of
available funds under the Canadian Line of Credit in an amount equal to the
Applicable Percentage per annum (calculated on the basis of a 360-day year for
actual days elapsed) of the difference between (x) the Dollar Equivalent of the
Canadian Line of Credit Limit then in effect and (y) the average for the
consecutive 3-month period ending on the day immediately preceding such Payment
Date (or, in the case of such payment due on the Canadian Line of Credit
Termination Date, the period commencing on the immediately preceding Payment
Date and ending on the Canadian Line of Credit Termination Date) of the Dollar
Equivalent of the daily closing balance of the aggregate Advances (as defined in
the Canadian Loan Agreement) outstanding under the Canadian Line of Credit
during such period.
(iv) As additional compensation for Lender's making available to the German
Borrower the German Line of Credit, the German Borrower shall pay to Lender, in
arrears, on each Payment Date prior to the German Line of Credit Termination
Date, as well as on the German Line of Credit Termination Date, a fully earned,
non-refundable fee for the German Borrower's non-use of available funds under
the German Line of Credit in an amount equal to the Applicable Percentage per
annum (calculated on the basis of a 360-day year for actual days elapsed) of the
difference between (x) the Dollar Equivalent of the German Line of Credit Limit
then in effect and (y) the average for the consecutive 3-month period ending on
the day immediately preceding such Payment Date (or, in the case of such payment
due on the German Line of Credit Termination Date, the period commencing on the
immediately preceding Payment Date and ending on the German Line of Credit
Termination Date) of the daily closing balance of the aggregate Advances
outstanding under the German Line of Credit during such period.
(v) For purposes hereof, the term "Applicable Percentage" shall mean as of
the Closing Date, one-half of one percent (.50%), and the Applicable Percentage
shall be subject to subsequent adjustment, up or down, based on the U.S.
Borrower's financial performance, on a quarterly basis, commencing with the
first Fiscal Quarter ending after the Closing Date, as set forth in the table
below (with references to Levels I through V below corresponding to the same
Levels I through V in Section 2.2.1):
LEVEL APPLICABLE PERCENTAGE
I .250%
II .375%
III .375%
IV .500%
V .500%
Lender shall determine whether any adjustment to the Applicable Percentage is to
be made quarterly, based on the U.S. Borrower's financial statements for each
Fiscal Quarter delivered to Lender pursuant to Section 4.2; provided that if
such financial statements are not timely delivered to Lender, then an adjustment
to the Applicable Percentage shall be made based on an assumed delivery of such
financial statements reflecting a Funded Debt/EBITDA Ratio of greater than
3.50:1.00; provided further if any Default Condition shall exist no adjustment
downward shall occur. Each such adjustment to the Applicable Percentage shall
become effective as of the first day of the calendar month following the date on
which such financial statements are delivered (or deemed delivered) to Lender,
and shall remain effective unless and until any subsequent adjustment becomes
effective in accordance with the terms of this Section 2.2.2(b). In the event
that the annual audited financial statements of the U.S. Borrower for any Fiscal
Year shall require restatement of financial statements of the U.S. Borrower and
such restatements shall effect the Funded Debt/EBITDA Ratio and would have
required a different Applicable Percentage to be in effect for prior periods,
then Lender, at its option, may require Borrower to make additional payments of
interest for such prior periods.
2.2.3 Capital Adequacy. If, after the Closing Date, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
administration thereof, or compliance by Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, affects or might affect the amount
of capital required or expected to be maintained by Lender or any corporation in
control of Lender and Lender determines that the amount of such capital is
increased by or based upon Lender's obligations hereunder, then from time to
time, within thirty (30) days after demand by Lender, Borrower shall pay to
Lender such additional amount or amounts as will compensate Lender in light of
such circumstances, to the extent that Lender reasonably determines such
increase in capital is allocable to Lender's obligations hereunder, and such
payment, as and when received, shall be applied by Lender in reimbursement of
Lender's increased costs in regard to such obligations.
2.2.4 Usury Savings Provisions. Lender and Borrower hereby further agree
that the only charge imposed by ender upon Borrower for the use of money in
connection herewith is and shall be the interest expressed herein or in the
Notes at the rate set forth herein or in Notes, and that all other charges
imposed by Lender upon Borrower in connection herewith, are and shall be deemed
to be charges made to compensate Lender for underwriting and administrative
services and costs, and other services and costs performed and incurred, and to
be performed and incurred, by Lender in connection with the Borrowings, and
shall under no circumstances be deemed to be charges for the use of money. In no
contingency or event whatsoever shall the aggregate of all amounts deemed
interest hereunder or under the Notes and charged or collected pursuant to the
terms of this Agreement or pursuant to the Notes exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that Lender has charged or received interest hereunder in excess of
the highest applicable rate, the rate in effect hereunder shall automatically be
reduced to the maximum rate permitted by applicable law and Lender shall
promptly refund to Borrower any interest received by Lender in excess of the
maximum lawful rate or, if so requested by Borrower, shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that Borrower
not pay or contract to pay, and that Lender not receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may be paid by Borrower under applicable law.
2.2.5 Margin Stock Savings Provisions. It is the express intent and
agreement of Borrower and Lender that none of the transactions contemplated by
this Agreement (including without limitation the use of the proceeds of the
Loans) violate any applicable provisions of Regulation U or X of the Federal
Reserve Board. Lender, in good faith, has not relied on any "margin stock" (as
such term is defined in the aforesaid Regulation U)of any Credit Party as direct
or indirect collateral for the Loans.
2.2.6 Increased Cost. (a) If the adoption of any law, order, ruling or
regulation or any change therein or any change in the interpretation or
administration thereof including, without limitation, impositions, or changes in
reserve requirements, excise taxes, non-United States income taxes or monetary
restraints (but excluding taxes imposed on the overall net income of Lender by
the United States or the State of Georgia) by the United States, any foreign
government, any central bank, governmental authority or comparable agency or
compliance by Lender with any request or directive (whether or not having the
force of law) of any such authority or agency shall increase the cost to Lender
of making or maintaining any Loan, or reduce the amount of any sum received or
receivable by Lender under this Agreement, in any amount deemed by Lender to be
material (which determination shall be final, conclusive and binding upon all
parties in the absence of manifest error) (any such change being hereinafter
called a "Law Change" and any loss to Lender by reason of any Law Change being
hereinafter called a "Law Change Loss"), Lender may give Borrower written notice
thereof (hereinafter called "Notice"), which Notice shall state that a Law
Change Loss has occurred and shall set forth a general description of the
reasons for such Law Change Loss. The failure of Lender to provide any notice
shall not reduce, limit or condition Borrower's obligation in the following
paragraph.
(b) Borrower shall pay to Lender upon demand, as an indemnity, such
amount or amounts as shall cause Lender's net return in connection with any
Loans to equal the net return that would have been realized by Lender if the
Law Change Loss had not occurred. If the Borrower, in the event of a Law Change,
shall not elect promptly after notice thereof has been given to it by Lender to
agree in writing satisfactory to Lender to revisions to this Agreement and any
other documents evidencing the Loans which shall place Lender in a position
as favorable as Lender's position prior to such Law Change (if such revisions
can be made), the Borrower will, upon thirty (30) days notice in writing from
Lender, repay all unpaid principal of, and all unpaid interest accrued with
respect to, such Loans to the date of such repayment. Such repayment shall
not release the Borrower from its obligations as aforesaid to indemnify Lender
in connection with a Law Change Loss incurred by Lender prior to or on the date
of such repayment.
2.3 General Provisions as to Payments.
2.3.1 Method of Payment. Unless paid in accordance with Section 2.2.1(f),
all payments of interest, fees and principal pursuant to this Agreement must be
received by Lender no later than 2:00 p.m. (Atlanta, Georgia time) on the date
when due. All payments of principal and interest with respect to Advances under
the Canadian Line of Credit and the CAD Term Loan shall be made in CAD; all
payments of principal and interest with respect to Advances under the German
Line of Credit shall be made in DM; and all other payments hereunder shall be
made in Dollars; in each case in funds immediately available to Lender in
Atlanta, Georgia.
2.3.2 Application of Payment. Except as may be otherwise agreed to by
Borrower and Lender, all payments received by Lender hereunder shall be applied,
in accordance with the then current billing statement applicable to the Loans,
first to accrued interest, then to fees, and then to principal. Notwithstanding
the foregoing, upon the occurrence of a Default Condition or Event of Default,
payments shall be applied as determined by Lender in its sole discretion.
2.4 Mandatory Term Loan Prepayments. So long as any of the Term Loans are
outstanding and unpaid, on the earlier of the date which is fifteen (15) days
after (a) the date on which the U.S. Borrower's annual audited financial
statements for the immediately preceding Fiscal Year are delivered pursuant to
Section 4.2 hereof, or (b) the date on which such annual audited financial
statements were required to be delivered pursuant to Section 4.2 hereof, the
U.S. Borrower shall prepay the Term Loans in an amount equal to seventy-five
percent (75%) of Excess Cash Flow for such immediately preceding Fiscal Year.
Each such prepayment shall be accompanied by a certificate signed by the U.S.
Borrower's chief financial officer certifying the manner in which such Excess
Cash Flow and the resulting prepayment of the Term Loans were calculated, which
certificate shall be in form and substance satisfactory to Lender. Any
prepayment made by the U.S. Borrower under this Section 2.4 shall be applied,
first, to prepay Term Loan B until fully paid, then to pay the scheduled
installments of Term Loan A in inverse order of maturity until such Loan shall
have been prepaid in full, and then to prepay the scheduled installments of the
CAD Term Loan in inverse order of maturity until such Loan has been prepaid in
full.
2.5 Payments to be Made Free of Taxes. (a) All payments of principal,
interest and fees and all other amounts to be paid by Borrower pursuant to this
Agreement with respect to any Loan shall be paid without deduction for, and free
from, any tax, imposts, levies, duties, deductions or withholdings of any nature
now or at any time hereafter imposed by any Governmental Authority or by any
taxing authority thereof or therein, excluding taxes imposed on or measured by
Lender's net income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which Lender is organized or located or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholding of any nature being "Taxes"). In the event that
Borrower is required by applicable law to make any such withholding or deduction
of Taxes with respect to any Loan, interest, fee or other amount, Borrower shall
pay such deduction or withholding to the applicable taxing authority, shall
promptly furnish to Lender all receipts and other documents evidencing such
payment and shall pay to Lender additional amounts as may be necessary in order
that the amount received by Lender after the required withholding or other
payment shall equal the amount Lender would have received had no such
withholding or other payment been made. If no withholding or deductions of Taxes
are payable with respect to any Loan, interest or fees relating thereto,
Borrower shall furnish Lender, at Lender's request, a certificate from each
applicable authority or an opinion of counsel acceptable to Lender, in either
case stating that such payments are exempt from or not subject to withholding or
deduction of Taxes. If Borrower fails to provide the original or certified copy
of a receipt evidencing payment of Taxes, or a certificate or opinion of counsel
of exemption, the Borrower hereby agrees to compensate the Bank for, and
indemnify it with respect to, the tax consequences of the Borrower's failure to
provide evidence of tax payments.
(b) In the event Lender receives a refund of any Taxes paid by the Borrower
pursuant to this Section 2.5, it will pay to Borrower the amount of such refund
promptly upon receipt thereof; provided, however, if at any time thereafter
Lender is required to return such refund, the Borrower shall promptly repay to
Lender the amount of such refund.
(c) The Borrower shall reimburse Lender for, and hold Lender harmless from
any taxes in connection with the execution, holding or enforcement of this
Agreement, the Notes or the other Loan Documents.
(d) Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 2.5 shall constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
2.6 Failure to Pay in Foreign Currency. (a) If the German Borrower is
unable for any reason to effect payment of principal or interest on the Advances
under the German Line of Credit in DM as required by this Agreement or if the
German Borrower shall default in the payment when due of any payment of
principal or interest in DM, Lender may, at its option, require such payment to
be made in the Dollar Equivalent. In any case in which the German Borrower shall
make such payment of principal or interest in Dollars, the German Borrower
agrees to hold Lender harmless from any loss incurred by Lender arising from any
change in the value of Dollars in relation to DM between the date such payment
became due and the date of payment thereof.
(b) If the Canadian Borrower is unable for any reason to effect payment of
principal or interest on Advances under the Canadian Line of Credit in CAD or to
effect payment of principal or interest on the CAD Term Loan in CAD as required
by this Agreement or if the Canadian Borrower shall default in the payment when
due of principal or interest in CAD, Lender may, at its option, require such
payment to be made in the Dollar Equivalent. In any case in which the Canadian
Borrower shall make such payment of principal or interest in Dollars, the
Canadian Borrower agrees to hold Lender harmless from any loss incurred by
Lender arising from any change in the value of dollars in relation to CAD
between the date such payment became due and the date of payment thereof.
2.7 Funding Indemnification. If any payment of any Loan occurs on a date
which is not the last day of the applicable Interest Period, whether because of
acceleration, prepayment, failure to pay in DM or CAD, as applicable, or
otherwise, or a Loan is not made on the date specified by Borrower for any
reason, Borrower will indemnify Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Loan, or any
loss or cost in liquidating or closing out any foreign currency contract
undertaken by Lender in funding or maintaining a Loan.
2.8 U.S. Borrower Guaranty.
(a) The Guaranty. The U.S. Borrower hereby guarantees to Lender the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations of the German Borrower and the Canadian Borrower
(such Obligations herein called, collectively, the "Subsidiary Obligations"), in
each case strictly in accordance with the terms thereof. The U.S. Borrower
hereby further agrees that if the Canadian Borrower or the German Borrower, as
applicable, shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Subsidiary Obligations, the U.S. Borrower
will promptly pay the same, without demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Subsidiary
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
(b) Obligations Unconditional. The obligations of the U.S. Borrower
hereunder are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the Subsidiary
Obligations or any substitution, release or exchange of any other guarantee of
or security for any of the Subsidiary Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section that the obligations of
the U.S. Borrower hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the U.S. Borrower hereunder which
shall remain absolute and unconditional as described above.
(i) at any time or from time to time, without notice to the U.S.
Borrower, the time for any performance of or compliance with any of
the Subsidiary Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred
to herein or therein shall be done or omitted;
(iii) the maturity of any of the Subsidiary Obligations shall be
accelerated, or any of the Subsidiary Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other Loan Document shall be waived or
any other guarantee of any of the Subsidiary Obligations or any
security therefor shall be released or exchanged in whole or in part
or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Agent as security for any of the Subsidiary Obligations shall fail
to be perfected.
The U.S. Borrower hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever; any requirement that Lender exhaust
any right, power or remedy or proceed against the German Borrower or the
Canadian Borrower under this Agreement or the Notes or any other Loan Document,
or against any other Person under any other guaranty of, or security for, any of
the Subsidiary Obligations; any right arising pursuant to Official Code of
Georgia Section 10-7-24 or any other similar or subsequent law; and any right to
assert any of the benefits under any statute providing appraisal or other,
similar rights which may reduce or prohibit any deficiency judgments or claims.
(c) Reinstatement. The obligations of the U.S. Borrower hereunder shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of the German Borrower or the Canadian Borrower in respect to the
Subsidiary Obligations is rescinded or must be otherwise restored by any holder
of any of the Subsidiary Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the U.S. Borrower agrees that it
will indemnify Lender on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
(d) Subrogation. The U.S. Borrower hereby waives all rights of subrogation
or contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Bankruptcy Code) or
otherwise by reason of any payment by it pursuant to the provisions hereof and
further agrees with each of the German Borrower and the Canadian Borrower for
the benefit of each of its creditors (including, without limitation, Lender)
that any such payment by it shall constitute a contribution of capital by the
U.S. Borrower to the German Borrower or the Canadian Borrower, as applicable (or
an investment in the equity capital of German Borrower or the Canadian Borrower,
as applicable, by the U.S. Borrower).
(e) Remedies. The U.S. Borrower agrees that, as between the U.S. Borrower
and Lender, the Subsidiary Obligations may be declared to be forthwith due and
payable as provided herein (and shall be deemed to have become automatically due
and payable in the circumstances provided herein) for purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the German Borrower or the Canadian Borrower and that, in the event of
such declaration (whether or not due and payable by the German Borrower or the
Canadian Borrower) shall forthwith become due and payable by the U.S. Borrower
for purposes hereof.
(f)Continuing Guaranty. The guaranty set forth herein is a ontinuing
guaranty, and shall apply to all Subsidiary Obligations, whenever and howsoever
arising.
3. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter into
this Agreement, Borrower hereby represents and warrants to Lender (which
representations and warranties, together with any other representations and
warranties of Borrower contained elsewhere in this Agreement, shall be deemed to
be renewed as of the date of each Loan hereunder) as set forth below:
3.1 Existence and Qualification. Each Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization or incorporation and is duly qualified to do business and is in
good standing in each other jurisdiction wherein the conduct of its business or
the ownership of its property requires such qualification, except where the
failure to be so qualified has not had and could reasonably be expected to have
a Material Adverse Effect.
3.2 Authority; Validity and Binding Effect. Each Credit Party has the power
to make, deliver and perform under the Loan Documents executed by it and has
taken all necessary and appropriate corporate action to authorize the execution,
delivery and performance of such Loan Documents. This Agreement constitutes, and
the remainder of such Loan Documents, when executed and delivered for value
received, will constitute, the valid obligations of each Credit Party which is a
party thereto, legally binding upon it and enforceable against it in accordance
with their respective terms.
3.3 Incumbency and Authority of Signing Officer. The undersigned officer of
each Borrower holds the office specified hereinbelow and, in such capacity, is
duly authorized and empowered to execute, attest and deliver this Agreement and
the remainder of the Loan Documents for and on behalf of each Borrower, and to
bind each Borrower accordingly thereby.
3.4 No Material Litigation. Except as may be set forth on Schedule 3.4,
there are no legal proceedings pending (or, so far as Borrower knows,
threatened), before any court or administrative agency which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
3.5 Taxes. Each Credit Party has filed or caused to be filed all tax
returns required to be filed by it and has paid all taxes shown to be due and
payable by it on said returns or on any assessments made against it.
3.6 Capital Stock. All capital stock, debentures, bonds, notes and all
other securities of each Credit Party presently issued and outstanding are
validly and properly issued in accordance with all applicable laws, including,
but not limited to, the "blue sky" laws of all applicable states and the federal
securities laws.
3.7 Corporate Organization. The charter and bylaws (or equivalent
organizational documents) of each Credit Party are in full force and effect
under the law of the jurisdiction of its incorporation and all amendments to
said charter and bylaws (or equivalent organizational documents) have been duly
and properly made under and in accordance with all applicable laws.
3.8 Insolvency. After giving effect to the execution and delivery of the
Loan Documents and the making of each Loan, no Credit Party will be "insolvent",
within the meaning of such term as used in O.C.G.A. ss. 18-2-22 or as defined in
Section 101(32) of the Bankruptcy Code, or be unable to pay its debts generally
as such debts become due, or have an unreasonably small capital.
3.9 Title. Each Credit Party has good and marketable title to all of its
properties subject to no Lien of any kind except for the Permitted Encumbrances.
3.10 Margin Stock. No Credit Party is engaged principally, or as one of its
important activities, in the business of purchasing or carrying any "margin
stock", as that term is defined in Regulation U of the Board of Governors of the
Federal Reserve System, and no part of the proceeds of any Loan made pursuant
hereto will be used to purchase or carry any such margin stock or to extend
credit to others for the purpose of purchasing or carrying any such margin
stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation U or X of said Board of Governors. In connection
herewith, if requested by Lender, Borrower will furnish to Lender a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in said
Regulation U to the foregoing effect.
3.11 No Violations. The execution, delivery and performance by each Credit
Party of the Loan Documents executed by it have been duly authorized by all
necessary corporate or other action on its part and do not and will not require
any consent or approval of the shareholder(s) of such Credit Party, violate any
provision of any law, rule, regulation (including, without limitation,
Regulation U or X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to any Credit Party or of the charter or bylaws (or
equivalent organizational documents) of any Credit Party, or result in a breach
of or constitute a default under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which any Credit Party is a party or
by which it or its properties may be bound or affected; and no Credit Party is
in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument except to the extent such default has not had and could not
reasonably be expected to have a Material Adverse Effect.
3.12 Financial Statements. The audited financial statements of the U.S.
Borrower and its Consolidated Subsidiaries for its most recent Fiscal Year
ending prior to the date of this Agreement together with the unaudited financial
statements of the U.S. Borrower and its Consolidated Subsidiaries for its most
recent Fiscal Quarter ending prior to the date of this Agreement for which
statements have been prepared, copies of which heretofore have been furnished to
Lender, are complete and accurately and fairly represent the financial condition
of the U.S. Borrower and its Consolidated Subsidiaries, the results of its
operations and the transactions in its equity accounts as of the dates and for
the periods referred to therein, and have been prepared in accordance with GAAP.
There are no material liabilities, direct or indirect, fixed or contingent, of
the U.S. Borrower or any such Consolidated Subsidiaries as of the date of such
financial statements which are not reflected therein or in the notes thereto. No
Material Adverse Effect has occurred since the date of the balance sheet
contained in the U.S. Borrower's annual audited financial statements described
hereinabove.
3.13 Pollution and Environmental Control. Each Credit Party has obtained
all permits, licenses and other authorizations which are required under, and is
in material compliance with, all Environmental Laws.
3.14 Possession of Permits. Each Credit Party possesses all material
franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities, and all material
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, that are necessary for the ownership,
maintenance and operation of any of its properties and assets, and no Credit
Party is violation in any material respect of any of the foregoing.
3.15 Subsidiaries. As of the Closing Date, no Credit Party has any
Subsidiaries except as described on Schedule 3.15.
3.16 Employee Benefit Plans. As of the Closing Date, no Credit Party has
any Employee Benefit Plans exceptas described on Schedule 3.16.
3.17 Reaffirmation. Each request for a Loan made by Borrower shall
constitute an automatic representation and warranty by Borrower to Lender that
as of the date of such Loan and after giving effect thereto there does not exist
any Default Condition or Event of Default and all representations and warranties
of the Credit Parties in the Loan Documents (other than those representations or
warranties which are, by their terms, limited to a specific date) are true and
correct in all material respects.
4. AFFIRMATIVE COVENANTS. Borrower covenants to Lender that from and after
the date hereof, and so long as any amount remain unpaid on account of any of
the Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower will comply (and cause each Subsidiary of Borrower to comply)
with the affirmative covenants set forth below:
4.1 Right to Inspect. Lender (or any person or persons designated by it)
shall, in its sole discretion, have the right to call at any place of business
of any Credit Party at any reasonable time and without prior notice, and,
without hindrance or delay, inspect, audit, check and make extracts from such
Credit Party's books, records, journals, orders, receipts and any correspondence
and other data relating to such Credit Party's business or to any other
transactions between the parties hereto.
4.2 Financial and Other Reporting.
4.2.1 U.S. Borrower's Monthly Statement. The U.S. Borrower shall, as soon
as practicable, and in any event within thirty (30) days after the end of each
Fiscal Month, furnish to Lender unaudited financial statements of the U.S.
Borrower and its Consolidated Subsidiaries, including balance sheets, income
statements and statements of cash flow, for the Fiscal Month ended, and for the
Fiscal Year to date, on a consolidated and, if requested by Lender,
consolidating basis, all prepared in accordance with GAAP (subject to year-end
adjustments) and certified as to truth and accuracy by the chief financial
officer of the U.S. Borrower.
4.2.2 U.S.Borrower's Quarterly Statement.Borrower shall, as soon as
practicable, and in any event within forty-five (45) days after the end of each
Fiscal Quarter, furnish to Lender unaudited financial statements of the U.S.
Borrower and its Consolidated Subsidiaries, including balance sheets, income
statements and statements of cash flow, for the Fiscal Quarter ended, and for
the Fiscal Year to date, on a consolidated and, if requested by Lender,
consolidating basis, all prepared in accordance with GAAP (subject to year-end
adjustments) and certified as to truth and accuracy by the chief financial
officer of the U.S. Borrower.
4.2.3 Borrower's Annual Statement. Borrower shall, as soon as practicable,
and in any event within ninety (90) days after the end of each Fiscal Year,
furnish to Lender the annual audit report of the U.S. Borrower, certified
without qualification by independent certified accountants selected by the U.S.
Borrower and acceptable to Lender, and prepared in accordance with GAAP,
together with relevant financial statements of the U.S. Borrower for the Fiscal
Year then ended, on a consolidating and a consolidated basis, if available. The
U.S. Borrower shall cause said accountants to furnish Lender with a statement
that in making their examination of such financial statements, they obtained no
knowledge of any Event of Default or Default Condition which pertains to
accounting matters relating to this Agreement or the Notes, or, in lieu thereof,
a statement specifying the nature and period of existence of any such Event of
Default or Default Condition disclosed by their examination.
4.2.4 Management Letters, Etc. Borrower shall, within five (5) Business
Days after its receipt thereof, provide Lender with copies of all management
letters, exception reports or other similar letters or reports received by
Borrower from its independent certified public accountants.
4.2.5 SEC Filings and Press Releases. Borrower shall, promptly upon their
becoming available, provide Lender with copies of (i) all financial statements,
reports, notices and proxy statements made publicly available by Borrower to its
security holders, (ii) all regular and periodic reports and all registration
statements and prospectuses (if any) filed by Borrower with any securities
exchange or with the Securities and Exchange Commission or any governmental or
private regulatory authority, and (iii) all press releases and other statements
made available by Borrower to the public concerning material changes or
developments in the business of Borrower or any of its Subsidiaries.
4.2.6 Default Notices. Borrower shall, as soon as practical and in any
event within five (5) Business Days after Borrower acquires knowledge of the
existence of any Default Condition or Event of Default or any other event which
has had or could reasonably be expected to have a Material Adverse Effect,
provide Lender with telephonic or telecopy notice of such Default Condition,
Event of Default or any other event, including the anticipated effect thereof,
which notice, if given telephonically, shall be promptly confirmed in writing on
the next Business Day.
4.2.7 Certificate of No Default. Borrower shall, on a quarterly basis, not
later than forty-five (45) days after the close of each of its Fiscal Quarters,
and, on an annual basis, not later than one hundred twenty (120) days after the
close of its Fiscal Year, certify to Lender, in a statement executed by the
chief financial officer of the U.S. Borrower in the form of Exhibit F attached
hereto, that no Event of Default and no Default Condition exists or has
occurred, or, if an Event of Default or Default Condition exists or has
occurred, specifying the nature and period of existence thereof. Each quarterly
and annual certificate shall also set forth, in reasonable detail, compliance
with all financial covenants set forth in Article 6 for the immediately
preceding Fiscal Quarter, as applicable.
4.2.8 Budget. Borrower shall, at least ten (10) days prior to the beginning
of each Fiscal Year, deliver to Lender an annual budget for the U.S. Borrower
and its Consolidated Subsidiaries for such Fiscal Year, as approved by the Board
of Directors of the U.S. Borrower.
4.2.9 Certain Required Notices. Promptly, upon its receipt of notice or
knowledge thereof, Borrower will report to Lender: any lawsuit or administrative
proceeding in which any Credit Party is a defendant in which the amount or
amounts in controversy exceed $250,000.
4.2.10 Borrowing Base Certificate and Other Collateral Reports. As soon as
practicable, but in any event, on or before fifteen (15) days after the end of
each Fiscal Month (or more frequently as requested by Lender from time to time
in its sole discretion), Borrower shall deliver to Lender a duly executed
certificate, with respect to satisfaction of the requirement that the aggregate
amount of Advances outstanding shall not exceed the Override Borrowing
Limitation, as of the last day of the preceding Fiscal Month, in the form of
Exhibit L (a "Borrowing Base Certificate"), the statements in which, in each
instance, shall be certified as to truth and accuracy by the chief financial
officer of the U.S. Borrower, together with a status report, certified by the
chief financial officer of the U.S. Borrower, which shall accompany each monthly
Borrowing Base Certificate, showing: (A) the aggregate Dollar value of the items
comprising the Accounts Receivable and the age of each individual item thereof
as of the last day of the preceding Fiscal Month (segregating such items in such
manner and to such degree as Lender may request, including, without limitation,
by account debtor name, address, invoice date, invoice number and due date); (B)
the aggregate Dollar value of the items of Accounts Receivable subject to "xxxx
and hold" arrangements (segregating such items in such manner and to such degree
as Lender may request); (C) the aggregate Dollar value of the items comprising
the accounts payable of the U.S. Borrower and its Subsidiaries and the age of
each individual item thereof as of the last day of the preceding month
(segregating such items in such manner and to such degree as Lender may
request); (D) the type, age, Dollar value and location of the Inventory as at
the end of the preceding month, valued at the lower of its FIFO cost or market
value; and (E) the aggregate Dollar value of all returns, repossessions or
discounts with respect to Inventory. Additionally, Lender may, at any time in
its sole discretion, require Borrower and each Subsidiary to permit Lender in
its own name or any designee of Lender in its own name to verify the individual
account balances of or any other matter relating to the individual account
debtors immediately upon its request therefor by mail, telephone, telegraph or
otherwise. Borrower and its Subsidiaries shall cooperate fully with the Lender
in an effort to facilitate and promptly conclude any such verification process.
In any event, with the above described status report for the month of December
of each year and upon request from the Lender, made at any time hereafter,
Borrower shall furnish Lender with a then current customer and account debtor
name and address list. In addition thereto, at such time or times as Lender may
request or at any time if a Default Condition or Event of Default exists,
Borrower shall provide Lender with copies of proof of delivery and the original
copy of all documents, including, without limitation, repayment histories and
present status reports relating to all accounts listed on any Borrowing Base
Certificate and such other matters and information relating to the status of the
Accounts of the Borrower and its Subsidiaries as the Lender shall reasonably
request;
4.2.11 Other Documents or Information. Borrower shall provide Lender with
such other financial and other information respecting Borrower or any of its
Subsidiaries as the Lender may from time to time reasonably request.
4.3 Payment of Taxes. Each Credit Party shall pay and discharge all taxes,
assessments and governmental charges upon it, its income and its properties
prior to the date on which penalties attach thereto, unless and to the extent
only that (x) such taxes, assessments and governmental charges are being
contested in good faith and by appropriate proceedings by such Credit Party, (y)
such Credit Party maintains reasonable reserves on its books therefor and (z)
the non-payment of such taxes does not result in a Lien other than a Permitted
Encumbrance.
4.4 Maintenance of Insurance. In addition to any requirements regarding
insurance set forth in the Security Agreement or any of the other Loan
Documents, each Credit Party shall maintain insurance with responsible insurance
companies on such of its properties, in such amounts and against such risks as
is customarily maintained by similar businesses operating in the same vicinity,
but in any event to include business interruption, freight, loss, damage, flood,
windstorm, fire, theft, extended coverage and product liability insurance in
amounts satisfactory to Lender. Borrower shall file with Lender upon its request
a detailed list of such insurance then in effect stating the names of the
insurance companies, the amounts and rate of insurance, the date of expiration
thereof, the properties and risks covered thereby and the insured with respect
thereto and a copy of each such insurance policy.
4.5 Maintenance of Property. Each Credit Party shall maintain its property
in good working condition.
4.6 Preservation of Existence. Each Credit Party shall preserve and
maintain its existence, rights, franchises and privileges in the jurisdiction of
its organization, and qualify and remain qualified as a foreign corporation or
company in each jurisdiction in which such qualification is necessary or
desirable in view of its business and operations or the ownership of its
properties, except where the failure to be so qualified has not had and could
not reasonably be expected to have a Material Adverse Effect.
4.7 Compliance With Laws. Each Credit Party shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, noncompliance with which would or could reasonably be
expected to have a Material Adverse Effect. Without limiting the foregoing, each
Credit Party shall obtain and maintain all permits, licenses and other
authorizations which are required under, and otherwise comply with, all federal,
state, and local laws and regulations, except where the failure to obtain or
maintain the same has not had and could not reasonably be expected to have a
Material Adverse Effect.
4.8 Certain Post-Closing Matters
(a) On or prior to March 15, 2001, Borrower shall deliver, or cause to be
delivered to Lender, (i) an opinion of German counsel, in form and substance
satisfactory to Lender, as to the existence of the German Borrower, the due
execution and delivery of this Agreement and all related Loan Documents to which
it is party and such other matters as Lender shall request and (ii) an opinion
of U.S. Virgin Islands counsel, in form and substance satisfactory to Lender, as
to the existence of Gamma International, the due execution and delivery by it of
its Guaranty and all related Loan Documents to which it is party and such other
matters as Lender shall request and certified authorizing resolution of Gamma
International.
(b) On or prior to April 30, 2001: (i) Borrower shall deliver, or cause to
be delivered to Lender, a (A) Stock Pledge Agreement relative to the stock of
each Foreign Subsidiary as to which a Stock Pledge Agreement has not previously
been delivered and (B) such amendments to, restatements of or ratifications of
any Stock Pledge Agreements relative to the stock of Foreign Subsidiaries
delivered to Lender prior to the Closing Date as Lender shall require (after
consultation with local counsel as it shall deem appropriate); (ii) Borrower
shall take all actions, or cause to be taken, all actions under the laws of each
applicable jurisdiction necessary to perfect Lender's security interest in the
stock pledged thereby (including, without limitation, effecting all necessary
registrations and re-registrations), and (iii) Borrower shall deliver, or cause
to be delivered, to Lender certified authorizing resolutions relative to each
such Stock Pledge Agreement or amendment, restatement or ratification and such
legal opinions in regard thereto as Lender shall request.
(c) On or prior to April 30, 2001: (i) the Canadian Borrower shall deliver,
or cause to be delivered to Lender, security documents, in form and substance
satisfactory to Lender, relative to all, or substantially all, of its assets and
shall take all actions, or cause to be taken all actions, under the laws of each
applicable jurisdiction necessary to perfect Lender's security interest in such
assets and (ii) the Canadian Borrower shall deliver, or cause to be delivered,
to Lender certified authorizing resolutions relative to such security documents
and such legal opinions in regard thereto as Lender shall request.
(d) On or prior to April 30, 2001, the Borrower shall deliver, or cause to
be delivered to Lender, a landlord lien waiver agreement, in form and substance
satisfactory to Lender, signed by the landlords of each of its Norcross, Georgia
locations.
5. NEGATIVE COVENANTS. Borrower covenants to Lender that from and after the
date hereof and so long as any amount remains unpaid on account of any of the
Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower will not do (and will not permit any Subsidiary of Borrower to
do), without the prior written consent of Lender, any of the things or acts set
forth below:
5.1 Liens. No Credit Party shall create, assume, or suffer to exist any
Lien on its property, except for (i) Permitted Encumbrances and (ii) any Liens
on any shares of the U.S. Borrower's common stock repurchased, redeemed or
otherwise acquired by it prior to the date hereof if and to the extent permitted
pursuant to Section 5.5 of the U.S. Loan Agreement. Without limiting the
generality of the foregoing, no Borrower shall, or shall permit any of its
Subsidiaries to, create, assume or suffer to exist any Lien on any certificated
or uncertificated shares, general or limited partnership interests, limited
liability company interests, quotas or other equivalents (regardless of how
designated) of or in any Foreign Subsidiary, other than in favor of Lender.
5.2 Debt. No Credit Party shall incur, assume, or suffer to exist any Debt,
except for: (i) Debt to Lender or any Affiliate of Lender; (ii) trade payables
and contractual obligations to suppliers and customers incurred in the ordinary
course of business of such Credit Party; (iii) accrued pension fund and other
employee benefit plan obligations and liabilities (provided, however, that such
Debt does not result in the existence of any Event of Default or Default
Condition under any other provision of this Agreement); (iv) deferred taxes; (v)
Debt resulting from endorsements of negotiable instruments received in the
ordinary course of its business; (vi) Debt under Capital Leases (inclusive of
those described on Schedule 1.1B) and Debt secured by Purchase Money Liens not
to exceed $3,700,000 in aggregate principal amount at any time outstanding;
(vii) the Foreign Credit Facilities and increases thereof or additions thereto
in an amount not to exceed $750,000 in aggregate maximum amount during the term
of this Agreement; and (viii) all other Debt not to exceed $100,000 in aggregate
outstanding principal amount at any one time. Notwithstanding the foregoing, a
Credit Party shall be permitted to cause letters of credit to be issued for the
benefit of any creditor of any Foreign Subsidiary to the extent permitted by
Section 5.13 of this Agreement.
5.3 Contingent Liabilities. No Credit Party shall guarantee, endorse,
become surety with respect to or otherwise become directly or contingently
liable for or in connection with the obligations of any other Person, except for
(i) endorsements of negotiable instruments for collection in the ordinary course
of business and (ii) Guaranteed Obligations incurred by any Credit Party with
respect to the Debt of another Credit Party so long as such Debt is otherwise
permitted hereunder.
5.4 Dividends. No Credit Party shall declare or pay any dividends on, or
make any distribution with respect to, its shares of any class of capital stock,
except that each Subsidiary of the U.S. Borrower may pay dividends to the U.S.
Borrower.
5.5 Redemptions. No Credit Party shall purchase, redeem, or otherwise
acquire for value any of its shares of any class of its capital stock, except
for purchases, redemptions or acquisitions from the U.S. Borrower.
5.6 Restricted Investments. No Credit Party shall make any Restricted
Investment except the following: (i) investments in direct obligations of the
United States of America, or any agency thereof or obligations guaranteed by the
United States of America, provided that such obligations mature within one year
from the date of acquisition thereof; (ii) investments in time deposits, demand
deposits and certificates of deposit maturing within one year from the date of
acquisition issued by a bank or trust company organized under the laws of the
United States or any state thereof having capital surplus and undivided profits
aggregating at least $500,000,000; (iii) investments in commercial paper given
the highest rating by a national credit rating agency and maturing not more than
two hundred seventy (270) days from the date of creation thereof; (iv)
repurchases of stock of the Subsidiaries of the U.S. Borrower permitted pursuant
to Section 5.5; and (v) any capital contribution, loan or advance, or transfer
of any asset, to any Foreign Subsidiary to the extent permitted by Section 5.13
of this Agreement.
5.7 Mergers. No Credit Party shall dissolve or otherwise terminate its
corporate or company status or enter into any merger, reorganization or
consolidation or make any substantial change in the basic type of business
conducted by such Credit Party, as of the Closing Date, except that (i) any
Subsidiary of the U.S. Borrower may be merged with and into the U.S. Borrower so
long as the U.S. Borrower is the surviving corporation therefrom and (ii) any
wholly-owned Subsidiary of the U.S. Borrower may merge with another wholly-owned
Subsidiary of the U.S. Borrower (other than (A) in the case of any Domestic
Subsidiary, any Foreign Subsidiary and (B) in any event, any Foreign Subsidiary
as to which a Stock Pledge Agreement has not been delivered to Lender), provided
that (A) if any such Subsidiary is a Guarantor, the surviving entity from such
merger shall also be a Guarantor and (B) neither the German Borrower nor the
Canadian Borrower may be party to any such merger unless it is the surviving
entity thereof.
5.8 Affiliate Transactions. No Credit Party shall enter into, or be a party
to, any transaction with any Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of such Credit Party's business and upon
fair and reasonable terms which are no less favorable to such Credit Party than
would obtain in a comparable arm's length transaction with a Person not an
Affiliate.
5.9 Subsidiaries. No Credit Party shall create any Subsidiary or divest
itself of any material assets by transferring them to any Subsidiary, except
that (i) any Subsidiary may transfer any of its assets to the U.S. Borrower or a
Subsidiary of the U.S. Borrower which is a Guarantor or a Borrower, and (ii)
subject to the limitations set forth in Section 5.13 hereof, any Foreign
Subsidiary may transfer any of its assets to any other Foreign Subsidiary.
5.10 Fiscal Year. No Credit Party shall change its Fiscal Year, or permit
any Subsidiary to have a fiscal year different from the Fiscal Year of the U.S.
Borrower.
5.11 Disposition of Assets. No Credit Party shall sell, lease or otherwise
dispose of any of its properties, including any disposition of property as part
of a sale and leaseback transaction, to or in favor of any Person, except (i)
sales of inventory or obsolete or unnecessary equipment in the ordinary course
of such Credit Party's business or (ii) dispositions otherwise expressly
permitted by this Agreement.
5.12 Employee Benefit Plans. No Credit Party shall permit an Employee
Benefit Plan to become materially underfunded or create any Employee Benefit
Plan without prior written notice to Lender and upon such notification, this
Agreement shall be amended as determined necessary by Lender in its discretion
as a result of the creation of such Plan.
5.13 Foreign Subsidiaries. No Credit Party shall make any capital
contribution, loan or advance to any Foreign Subsidiary or transfer any assets
to any Foreign Subsidiary or cause to be issued any letter of credit for the
benefit of any creditor of any Foreign Subsidiary; provided, however, that a
Credit Party shall be permitted to make capital contributions, loans or advances
to any Foreign Subsidiary, or transfer any assets to any Foreign Subsidiary or
cause to be issued letters of credit for the benefit of any creditor of any
Foreign Subsidiary, so long as the aggregate amount of such transactions does
not exceed $1,500,000 in any Fiscal Year and so long as no Default Condition or
Event of Default exists or would be caused thereby.
5.14 Certain Capital Expenditures. The U.S. Borrower and its Subsidiaries
shall not make Capital Expenditures to acquire equipment for lease to their
customers in an aggregate amount in excess of $2,500,000 during any Fiscal Year.
6. FINANCIAL COVENANTS. Borrower covenants to Lender that, from and after
the date hereof and so long as any amount remains unpaid on account of any of
the Obligations or this Agreement remains effective (whichever is the last to
occur), the U.S. Borrower and its Consolidated Subsidiaries shall not breach or
fail to comply with any of the following financial covenants with respect to any
Fiscal Quarter, each of which shall be calculated on a consolidated basis in
accordance with GAAP consistently applied:
6.1 Fixed Charge Coverage Ratio. The U.S. Borrower and its Consolidated
Subsidiaries shall have for each Fiscal Quarter ending closest to each date set
forth below, a Fixed Charge Coverage Ratio of not less than that set forth below
for such period:
Minimum Fixed
Fiscal Quarter Ending: Charge Coverage Ratio:
--------------------- ---------------------
May 31, 2001 1.00:1.00
August 31, 2001 1.00:1.00
November 30, 2001 1.10:1.00
February 28, 2002 1.20:1.00
May 31, 2002 and each Fiscal Quarter 1.25:1.00
ending thereafter
6.2 Funded Debt/EBITDA Ratio. The U.S. Borrower and its Consolidated
Subsidiaries shall have for each Fiscal Quarter ending closest to each date set
forth below a Funded Debt/EBITDA Ratio of not more than that set forth below for
such period:
Maximum Funded
Fiscal Quarter Ending: Debt/EBITDA Ratio:
--------------------- -----------------
February 28, 2001 6.20 to 1.00
May 31, 2001 4.85 to 1.00
August 31, 2001 4.00 to 1.00
November 30, 2001 3.25 to 1.00
February 28, 2002 2.75 to 1.00
May 31, 2002 and each Fiscal Quarter 2.50 to 1.00
ending thereafter
Solely for purposes of this Section 6.2, so long as any Debt of the U.S.
Borrower or any of its Consolidated Subsidiaries is, by its terms, expressly
subordinated to the obligations of such Credit Party to Lender, including,
without limitation, all Obligations, on terms and conditions satisfactory to
Lender in its sole discretion, and so long as Lender determines, in its sole
discretion, that such subordination is and continues to be in all respects valid
and enforceable against the holders of such obligations, such subordinated Debt
shall not be included as Funded Debt; provided, however, that the foregoing
shall not be deemed to be a consent by Lender to the incurrence by any Credit
Party of any Debt not otherwise permitted to be incurred pursuant to Section
5.2.
6.3 Leverage Ratio. The U.S. Borrower and its Consolidated Subsidiaries
shall have at the end of each Fiscal Quarter ending on February 28, 2001, May
31, 2001, August 31, 2001, November 30, 2001 or February 28, 2002, a Leverage
Ratio (expressed as a percentage) of not more than 55%, and the U.S. Borrower
and its Consolidated Subsidiaries shall have for each Fiscal Quarter ending
thereafter a Leverage Ratio (expressed as a percentage) of not more than 50%:
6.4 Interest Coverage Ratio. The U.S. Borrower and its Consolidated
Subsidiaries shall have for each Fiscal Quarter ending closest to each date set
forth below an Interest Coverage Ratio of not less than that set forth below for
such period:
Minimum Interest Coverage
Fiscal Quarter Ending: Ratio
---------------------- -------------------------
May 31, 2001 1.00:1.00
August 31, 2001 1.00:1.00
November 30, 2001 1.20:1.00
February 28, 2002 1.50:1.00
May 31, 2002 and each Fiscal Quarter 1.80:1.00
ending thereafter
7. EVENTS OF DEFAULT. The occurrence of any events or conditions set forth
below shall constitute an Event of Default hereunder, provided that any
requirement for the giving of notice or the lapse of time, or both, has been
satisfied:
7.1 Obligations. Borrower shall fail to make any payments on any of its
Obligations when due.
7.2 Misrepresentations. Any Credit Party shall make any representations or
warranties in any of the Loan Documents or in any certificate or statement
furnished to Lender at any time hereunder or in connection with any of the Loan
Documents which proves to have been untrue or misleading in any material respect
when made or furnished.
7.3 Certain Covenants. Any Credit Party shall default in the observance or
performance of any covenant or agreement contained in Section 4.1, 4.2, 4.6 or
4.9 or in Article 5 or 6 hereof.
7.4 Other Covenants. Any Credit Party shall default in the observance or
performance of any covenant or agreement contained herein, in any of the other
Loan Documents (other than a default the performance or observance of which is
dealt with specifically elsewhere in this Article 7) unless (i) with respect to
this Agreement, such default is cured to Lender's satisfaction within thirty
(30) days after the sooner to occur of receipt of notice of such default from
Lender or the date on which such default first becomes known to Borrower and
(ii) with respect to any other Loan Document, such default is cured within any
applicable grace, cure or notice and cure period contained therein.
7.5 Other Debts. Any Credit Party shall default in connection with any
agreement for Debt with any creditor other than Lender in excess of $100,000
which entitles said creditor to accelerate the maturity thereof.
7.6 Voluntary Bankruptcy. Any Credit Party shall file a voluntary petition
in bankruptcy or a voluntary petition or answer seeking liquidation,
reorganization, arrangement, readjustment of its debts, or for any other relief
under the Bankruptcy Code, or under any other act or law pertaining to
insolvency or debtor relief, whether state, Federal, or foreign, now or
hereafter existing; any Credit Party shall enter into any agreement indicating
its consent to, approval of, or acquiescence in, any such petition or
proceeding; any Credit Party shall apply for or permit the appointment by
consent or acquiescence of a receiver, custodian or trustee of such Credit Party
or for a substantial part of its property; any Credit Party shall make an
assignment for the benefit of creditors; or any Credit Party shall be unable or
shall fail to pay its debts generally as such debts become due, or any Credit
Party shall admit, in writing, its inability or failure to pay its debts
generally as such debts become due.
7.7 Involuntary Bankruptcy. There shall have been filed against any Credit
Party an involuntary petition in bankruptcy or seeking liquidation,
reorganization, arrangement, readjustment of its debts or for any other relief
under the Bankruptcy Code, or under any other act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign, now or hereafter
existing and such petition shall remain undismissed or unstayed for 60 days or
more or an order for the relief sought by such petition shall have been entered;
any Credit Party shall suffer or permit the involuntary appointment of a
receiver, custodian or trustee of such Credit Party or for all or a substantial
part of its property; or any Credit Party shall suffer or permit the issuance of
a writ or warrant of attachment, execution or similar process against all or any
substantial part of the property of such Credit Party.
7.8 Judgments. A final judgment or order for the payment of money is
rendered against any Credit Party in the amount of $250,000 or more (exclusive
of amounts covered by insurance) and either (x) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order, or (y) a stay
of enforcement of such judgment or order, by reason of pending appeal or
otherwise, shall not be in effect for any period of thirty (30) consecutive
days.
7.9 Material Adverse Effect. There shall be any event, act, condition or
occurrence having a Material Adverse Effect.
7.10 Change of Control. Either (a) any person or group of persons (within
the meaning of the Securities Exchange Act of 1934, as amended) shall have
acquired after the date hereof beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of twenty percent (20%) or more of the issued
and outstanding shares of capital stock of the U.S. Borrower having the right to
vote for the election of directors of the U.S. Borrower under ordinary
circumstances, (b) during any period of 12 consecutive calendar months ending
after the date hereof, individuals who at the beginning of such period
constituted the board of directors of the U.S. Borrower (together with any new
directors whose election to the board of directors of the U.S. Borrower or whose
nomination for such election by the stockholders of the U.S. Borrower was
approved by a vote of at least 2/3rd of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason other
than death or disability to constitute a majority of the directors of the U.S.
Borrower then in office; or (c) the U.S. Borrower shall fail to own one hundred
percent (100%) of the issued and outstanding capital stock of the German
Borrower, the Canadian Borrower or any other Credit Party having the right to
vote for the election of directors of such Credit Party under ordinary
circumstances.
7.11 Change in Management. Two or more of the Principal Officers shall die,
become incapacitated or otherwise cease to be actively involved in the
day-to-day executive management of the U.S. Borrower.
7.12 Interest Rate Protection Agreements. Any default, event of default or
similar event shall occur under any Interest Rate Protection Agreement between
any Borrower and Lender or any Affiliate of Lender, including, without
limitation, any "Event of Default" or "Termination Event" under that certain
Master Agreement, dated as of March 17, 1995, between the German Borrower and
Lender, together with the Schedules and Confirmations thereto, as amended or
modified from time to time, or any "Event of Default" or "Termination Event"
under that certain Master Agreement, dated as of December 10, 1996, between the
Canadian Borrower and Lender, together with the Schedules and Confirmations
thereto, as amended or modified from time to time.
8. REMEDIES. Upon the occurrence of any Default Condition or Event of
Default, Lender's obligation to extend financing under the Lines of Credit shall
immediately cease; provided, however, that if such obligation has ceased due to
the occurrence of a Default Condition, and such Default Condition does not
become an Event of Default due to its having been cured or waived before it has
matured into an Event of Default, then such obligation shall be reinstated as of
the date such Default Condition is so cured or waived. Upon the occurrence or
existence of any Event of Default, or any time thereafter, without prejudice to
the rights of Lender to enforce its claims against Borrower for damages for
failure by Borrower to fulfill any of its obligations hereunder, subject only to
prior receipt by Lender of payment in full of all Obligations then outstanding
in a form acceptable to Lender, Lender shall have all of the rights and remedies
set forth in Sections 8.1, 8.2, 8.3 and 8.4 below, and it may exercise any one,
more, or all of such remedies, in its sole discretion, without thereby waiving
any of the others.
8.1 Acceleration of the Obligations. Lender, at its option, may declare all
of the Obligations (including but not limited to that portion thereof evidenced
by any one or more of the Notes) to be immediately due and payable, whereupon
the same shall become immediately due and payable without presentment, demand,
protest, notice of nonpayment or any other notice required by law relative
thereto, all of which are hereby expressly waived by Borrower, anything
contained herein to the contrary notwithstanding.
8.2 Default Rate. If Lender so elects, by further written notice to
Borrower, Lender may increase the rate of interest charged on any or all of the
Obligations then outstanding for so long thereafter as Lender further shall
elect to a rate not to exceed the Default Rate.
8.3 Other Remedies. Unless and except to the extent expressly provided for
to the contrary herein, the rights of Lender specified herein shall be in
addition to, and not in limitation of, Lender's rights under the UCC, as amended
from time to time, or any other statute or rule of law or equity, or under any
other provision of any of the Loan Documents, or under the provisions of any
other document, instrument or other writing executed by Borrower or any third
party in favor of Lender, all of which may be exercised successively or
concurrently.
8.4 Set Off. To the extent not prohibited by law, Borrower hereby grants to
Lender a security interest in and security title to and hereby assigns, pledges,
transfers and conveys to Lender any balance or deposit accounts of the Borrower
with the Lender, whether such accounts be general or special, or individual or
multiple party, and upon all drafts, notes or other items deposited for
collection or presented for payment by Borrower with Lender, exclusive of any
such property in the possession or control of Lender as a fiduciary other than
as agent, and Lender may at any time during the existence of any Event of
Default, without demand or notice, appropriate and apply any of such to the
payment to any of the Obligations, whether or not then due.
9. MISCELLANEOUS
9.1 Waiver. Each and every right granted to Lender under this Agreement, or
any of the other Loan Documents, or any other document delivered hereunder or in
connection herewith or allowed it by law or in equity, shall be cumulative and
may be exercised from time to time. No failure on the part of Lender to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise by Lender of any right
preclude any other or further exercise thereof or the exercise of any other
right. No waiver by Lender of any Default Condition or Event of Default shall
constitute a waiver of any subsequent Default Condition or Event of Default.
9.2 Governing Law. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS,
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS
(AND NOT THE LAWS OF CONFLICTS) OF THE STATE OF GEORGIA.
9.3 Survival. All representations, warranties and covenants made herein and
in the Loan Documents shall survive the execution and delivery hereof and
thereof. The terms and provisions of this Agreement shall continue in full force
and effect, notwithstanding the payment of one or more of the Notes or the
termination of the Lines of Credit, until all of the Obligations have been paid
in full and Lender is no longer obligated to make any Loans hereunder, but
Borrower's obligations under Sections 2.2.3, 9.6 and 9.20 hereof shall survive
any termination of this Agreement.
9.4 No Assignment by Borrower. No assignment hereof or of any Loan Document
shall be made by Borrower without the prior written consent of Lender. Lender
may assign, or sell participants in, its rights, title and interest herein and
in the Loan Documents at any time hereafter without notice to or consent of
Borrower.
9.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which when fully executed shall be an original, and all of
said counterparts taken together shall be deemed to constitute one and the same
agreement.
9.6 Reimbursement. Borrower shall pay to Lender on demand all out-of-pocket
costs, taxes (other than taxes based on income) and expenses that Lender pays or
actually incurs in connection with the negotiation, preparation, consummation,
modification, administration, restructuring, enforcement or termination of this
Agreement and the other Loan Documents, including, without limitation: (a)
attorneys' fees and paralegals' fees and disbursements of outside counsel; (b)
costs and expenses (including outside attorneys' and paralegals' fees and
disbursements) for the initial preparation and closing of the Loan Documents, or
any amendment, supplement, waiver, consent or subsequent closing in connection
with the Loan Documents and the transactions contemplated thereby; (c) sums paid
or incurred to pay for any amount or to take any action required of Borrower
under the Loan Documents that Borrower fails to pay or take; (d) stamp,
documentary, recording, property, ad valorem or other similar taxes payable in
respect to any of the Loan Documents, the Obligations or the Collateral, and (e)
after an Event of Default, costs and expenses (including attorneys' and
paralegals' fees and disbursements) paid or incurred to obtain payment of the
Obligations, enforce any Lien in the Collateral, sell or otherwise realize upon
any Collateral, and otherwise enforce the provisions of the Loan Documents or to
defend any claim made or threatened against Lender arising out of the
transactions contemplated hereby (including, without limitation, preparations
for and consultations concerning any such matters). The foregoing shall not be
construed to limit any other provisions of the Loan Documents regarding costs
and expenses to be paid to Borrower. All of the foregoing costs and expenses
may, in the discretion of Lender, be charged to any of the Master Notes.
Borrower will pay all expenses incurred by it in the transaction. In the event
Borrower becomes a debtor under the Bankruptcy Code, Lender's secured claim in
such case shall include interest on the Obligations and all fees, costs and
charges provided for herein (including, without limitation, attorneys' fees
actually incurred), all to the extent allowed by the Bankruptcy Code. Without
limitation of the foregoing, Borrower shall pay Lender's standard audit fee in
connection with any field audits conducted pursuant to Section 4.1 (which on the
date hereof is $2500) and shall further pay all Lender's out-of-pocket expenses
(including, without limitation, expenses for travel, lodging and meals) incurred
in connection with any such audit.
9.7 Successors and Assigns. This Agreement and Loan Documents shall be
binding upon and inure to the benefit of the successors and permitted assigns of
the parties hereto and thereto.
9.8 Severability. If any provision this Agreement or of any of the Loan
Documents or the application thereof to any party thereto or circumstances shall
be invalid or unenforceable to any extent, the remainder of such Loan Documents
and the application of such provisions to any other party thereto or
circumstance shall not be affected thereby and shall be enforced to the greatest
extent permitted by law.
9.9 Notices. All notices, requests and demands to or upon any party hereto
shall be deemed to have been given or made when personally delivered or the
third day after being deposited in the mail, registered or certified mail,
postage prepaid, addressed to it at its address set forth beneath its signature
below (or to such other address as may be designated by it hereafter in writing)
except in cases where it is expressly provided herein or by applicable law that
such notice, demand or request is not effective until received by the party to
whom it is addressed.
9.10 Entire Agreement; Amendments. This Agreement, together with the
remaining Loan Documents, constitute the entire agreement between the parties
hereto with respect to the subject matter hereof. Neither this Agreement nor any
Loan Document may be changed, waived, discharged, modified or terminated orally,
but only by an instrument in writing signed by the party against whom
enforcement is sought. This Agreement constitutes an amendment and restatement
of the U.S. Loan Agreement, the Canadian Loan Agreement and the German Loan
Agreement. The execution and delivery of this Agreement shall not constitute a
novation, waiver, release or modification of any rights, claims or remedies of
Lender under the U.S. Loan Agreement, the Canadian Loan Agreement or the German
Loan Agreement or otherwise, based on any facts or events occurring or existing
prior to the execution and delivery of this Agreement.
9.11 Time of Essence. Time is of the essence in this Agreement and the
other Loan Documents.
9.12 Interpretation. No provision of this Agreement or any Loan Document
shall be construed against or interpreted to the disadvantage of any party
hereto by any court or other governmental or judicial authority by reason of
such party having or being deemed to have structured or dictated such provision.
9.13 Lender Not a Joint Venturer. Neither this Agreement nor any Loan
Document shall in any respect be interpreted, deemed or construed as making
Lender a partner or joint venturer with any Credit Party or as creating any
similar relationship or entity, and Borrower agrees that it will not make any
contrary assertion, contention, claim or counterclaim in any action, suit or
other legal proceeding involving Lender and any Credit Party.
9.14 Jurisdiction. BORROWER AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF GEORGIA OR THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT
OF GEORGIA, ATLANTA DIVISION, ALL AS LENDER MAY ELECT. BY EXECUTION OF THIS
AGREEMENT, BORROWER HEREBY SUBMITS TO EACH SUCH JURISDICTION, HEREBY EXPRESSLY
WAIVING WHATEVER RIGHTS MAY CORRESPOND TO IT BY REASON OF ITS PRESENT OR FUTURE
DOMICILE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION OR
TO SERVE PROCESS IN ANY MANNER PERMITTED OR REQUIRED BY LAW.
9.15 Acceptance. This Agreement, together with the other Loan Documents,
shall not become effective unless and until delivered to Lender at its principal
office in Atlanta, Xxxxxx County, Georgia and accepted in writing by Lender at
such office as evidenced by its execution hereof (notice of which delivery and
acceptance are hereby waived by Borrower).
9.16 Payment on Non-Business Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a Saturday, Sunday or
a public holiday under the laws of the State of Georgia, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest hereunder or
under the Notes.
9.17 Cure of Defaults by Lender. If, hereafter, any Credit Party defaults
in the performance of any duty or obligation to Lender hereunder or under any
Loan Document, Lender may, at its option, but without obligation, cure such
default and any costs, fees and expenses incurred by Lender in connection
therewith shall be deemed to be advances against the Master Note, whether or not
this creates an overadvance thereunder, and shall be payable in accordance with
its terms.
9.18 Recitals. All recitals contained herein are hereby incorporated by
reference into this Agreement and made part thereof.
9.19 Sole Benefit. The rights and benefits set forth in this Agreement and
the other Loan Documents are for the sole and exclusive benefit of the parties
hereto and thereto and may be relied upon only by them.
9.20 Indemnification. Borrower will hold Lender, its respective directors,
officers, employees, agents, Affiliates, successors and assigns harmless from
and indemnify Lender, its respective directors, officers, employees, agents,
Affiliates, successors and assigns against, all loss, damages, costs and
expenses (including, without limitation, attorney's fees, costs and expenses)
actually incurred by any of the foregoing, whether direct, indirect or
consequential, as a result of or arising from or relating to any "Proceedings"
(as defined below) by any Person, whether threatened or initiated, asserting a
claim for any legal or equitable remedy against any Person under any statute,
case or regulation, including, without limitation, any federal or state
securities laws or under any common law or equitable case or otherwise, arising
from or in connection with this Agreement, and any other of the transactions
contemplated by this Agreement, except to the extent such losses, damages, costs
or expenses are due to the willful misconduct or gross negligence of Lender. As
used herein, "Proceedings" shall mean actions, suits or proceedings before any
court, governmental or regulatory authority and shall include, particularly, but
without limitation, any actions concerning Environmental Laws. At the request of
Lender, Borrower will indemnify any Person to whom Lender transfers or sells all
or any portion of its interest in the Obligations or participations therein on
terms substantially similar to the terms set forth above. Lender shall not be
responsible or liable to any Person for consequential damages which may be
alleged as a result of this Agreement or any of the transactions contemplated
hereby. The obligations of Borrower under this Section shall survive the
termination of this Agreement and payment of the Obligations.
9.21 Jury Trial Waiver. EACH OF BORROWER AND LENDER HEREBY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF
THE LOAN DOCUMENTS OR THE OBLIGATIONS OR ANY COLLATERAL THEREFOR.
9.22 Judgment Currency. (a) If any Obligation due from the Borrower under
this Agreement, any Note, any other Loan Document or any Interest Rate
Protection Agreement or under any order or judgment given or made in relation
hereto or thereto has to be converted from the currency (the "first currency")
in which the same is payable hereunder or thereunder or under such order or
judgment into another currency (the "second currency") for the purpose of (i)
making or filing a claim or proof against the Borrower with any Governmental
Authority or in any court or tribunal or (ii) enforcing any order or judgment
given or made in relation hereto or thereto, such Obligation shall be discharged
only to the extent that on the date when received by Lender, the sum so adjudged
to be due in the second currency, after conversion to the first currency is
equal to the amount of the Obligation when denominated in the first currency,
and the Borrower shall indemnify and hold harmless Lender from and against any
loss actually suffered as a result of any discrepancy between (A) the rate of
exchange used to convert the amount in question from the first currency into the
second currency, and (B) the rate or rates of exchange at which Lender, acting
in good faith, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. The foregoing indemnity
shall constitute a separate obligation of the Borrower distinct from its
obligations hereunder and under the other Loan Documents.
(a) Except where otherwise expressly provided in this Agreement in any case
where the first currency is to be converted into the second currency, the rate
of exchange used shall be Lender's spot rate of exchange for the purchase of the
first currency with the second currency at the close of business on the Business
Day preceding the date on which judgment is given or any order for payment is
made.
10. CONDITIONS PRECEDENT
10.1 Conditions to Initial Loans. Unless waived in writing by Lender at or
prior to the execution and delivery of this Agreement, the conditions set forth
below shall constitute express conditions precedent to the effectiveness of this
Agreement and any obligation of Lender hereunder to make the initial Loan or
Loans on the Closing Date:
10.1.1 Loan Documents. Receipt by Lender of this Agreement and the Notes as
well as the Security Agreement, the Stock Pledge Agreements to be executed and
delivered on the date hereof and the other Loan Documents and such additional
Loan Documents as Lender shall deem to be necessary or appropriate (including,
without limitation, patent and trademark collateral assignments).
10.1.2 Guaranties. Receipt by Lender of a Guaranty signed by each
Guarantor.
10.1.3 No Default. No Default Condition or Event of Default shall exist at
the time of and after giving effect to such Loan, and Borrower shall in all
respects be in compliance with all of the terms of the Loan Documents, as
evidenced by its delivery of a duly completed and executed certificate of no
default to such effect, which shall be substantially in the form of Exhibit F
attached hereto.
10.1.4 Secretary's Certificate. Receipt by Lender of a certificate dated as
of the Closing Date from the Secretary (or Assistant Secretary) of each of
Borrower and Guarantor certifying to Lender that appropriate resolutions have
been adopted by the Board of Directors of such Credit Party incident hereto and
that the officers of such Credit Party whose signatures appear hereinbelow or on
the other Loan Documents, and on any and all other documents, instruments and
agreements executed on behalf of such Credit Party in connection herewith, are
duly authorized by the Board of Directors of such Credit Party for and on behalf
of such Credit Party to execute and deliver such Loan Documents and such other
documents, instruments and agreements, and to bind such Credit Party accordingly
thereby, all in form and substance substantially similar to those board
resolutions set forth and described on Exhibit G in the case of Borrower and
Exhibit H in the case of each Guarantor.
10.1.5 Good Standing Certificates. Receipt by Lender of a certificate of
good standing with respect to each Borrower and Guarantor from the appropriate
officer of the jurisdiction of organization of such Borrower or Guarantor, dated
within 30 days of the date hereof.
10.1.6 Articles/By-Laws. Receipt by Lender of copies of the articles of
incorporation and bylaws (or equivalent documents) of each of Borrower and
Guarantor as in effect on the Closing Date, certified as to truth and accuracy
by the Secretary or an Assistant Secretary of such Borrower or Guarantor.
10.1.7 Solvency Certificate. Lender shall have received a Solvency
Certificate, in the form of Exhibit I attached hereto, dated as of the Closing
Date and duly executed and completed by the chief financial officer of the U.S.
Borrower.
10.1.8 Opinion of Counsel. Receipt by Lender of an opinion of counsel for
each Borrower and Guarantor in substantially the form of Exhibit J.
10.1.9 Telephone Instruction Letter. Receipt by Lender of a telephone
instruction letter, concerning requests for advances under the Line of Credit,
and in the form of Exhibit K attached hereto, duly completed and executed by
Borrower.
10.1.10 Other. Receipt by Lender of such other documents, certificates,
instruments and agreements as shall be required hereunder or provided for herein
or as Lender or Lender's counsel may require in connection herewith.
10.2 Conditions to all Loans. Unless waived in writing by Lender, Lender
shall not be obligated to make any Loan (whether on or after the Closing Date)
if as of the date of such Loan or after giving effect to the making of such
Loan:
10.2.1 Representations and Warranties. Any representation or warranty by
any Credit Party contained herein or in any of the other Loan Documents shall be
untrue or incorrect in any material respect as of such date, except to the
extent that such representation or warranty expressly relates to an earlier
date; or
10.2.2 Material Adverse Effect. Any event or circumstance having a Material
Adverse Effect shall have occurred since the date of this Agreement as
determined by the Lender; or
10.2.3 Default Condition or Event of Default. Any Event of Default or
Default Condition shall have occurred and be continuing or would result after
giving effect to such Loan; or
10.2.4 Actions or Proceedings. Any action or proceeding shall have been
instituted or pending before any court or other governmental authority or, to
the knowledge of the Borrower or the Lender, threatened which seeks to prohibit,
enjoin or restrict the consummation of the Acquisition or any part thereof or
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect; or
10.2.5 No Violation of Law. The Loan to be made and the use of the proceeds
thereof shall contravene, violate or conflict with, or involve any Credit Party
or the Lender in a violation of, any law, rule, injunction, regulation, or order
of any court of law or other governmental authority.
Each request for a Loan by Borrower hereunder shall constitute a representation
and warranty by Borrower to Lender, as of the date of such Loan, that all
applicable conditions specified in this Article 10 have been satisfied.
11. COLLATERAL. Each Borrower hereby acknowledges and agrees, for itself
and its Subsidiaries, that all Collateral in which it or any such Subsidiary has
granted a security interest to Lender, whether pursuant to the Security
Agreement, any Stock Pledge Agreement or any other Loan Document, shall secure
all Obligations of such Borrower and such Subsidiary and of each other Credit
Party to Lender, whether for principal, interest, fees, expenses or other
amounts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
WACHOVIA BANK,
NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Specialized Finance Group
[SIGNATURES CONTINUED ON FOLLOWING PAGE)
IMMUCOR, INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE)
DOMINION BIOLOGICALS LIMITED
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE)
IMMUCOR MEDIZINISCHE DIAGNOSTIK GMBH
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Chief Financial Officer
EXHIBIT 1.1A
Foreign Credit Facilities and Foreign Credit Facility Liens
Immucor, Inc.
Debt by Affiliate as of 11/30/2000
USD USD
------------ -----------
Credit Type of Collateral Interest Maturity
Description Affiliate Lines Collateral Amount Guarantor Rate Date
Line of Credit Existing 1,571,000 A/R, gov't 602,000/160,000 Immucor 5.65% to until
Italy bonds, parent 8.625% revocated
guarantee
Line of Credit New Italy 766,000 A/R, parent 586,000 Immucor until
guarantee revocated
Line of Credit Spain 1,500,000 parent guarantee Immucor 6.25% 12/20/2001,
annual
renewal
Notes Payable Belgium 222,222 parent guarantee Immucor 5.03% to Nov-07
10.09%
Line of Credit Belgium 666,667 parent guarantee Immucor 5.5% to 6% Nov-07
4,725,889 AR=$1,888,000
gov't bonds =
$160,000
EXHIBIT 1.1B
Capital Leases
Immucor, Inc.
Capital Lease detail as of 1/31/01
Totals
Vendor Current Long Term as of 1/31/01
------------------------------------------- -------------------- ---------------------- ----------------------
Banker's Direct Leasing 635,743.31 1,639,510.46 2,275,244.77
EAB 84,757.24 199,703.89 284,461.13
IBM 9,609.96 - 9,609.96
Steelcase 23,047.17 78,159.32 101,206.49
Volvo 5,737.53 12,858.74 18,596.27
-------------------- ---------------------- ----------------------
758,886.21 1,930.232.41 2,689,118.62
EXHIBIT A
COUNTY OF XXXXXX
STATE OF GEORGIA February ___, 2001
MASTER NOTE
1. FOR VALUE RECEIVED, the undersigned, ___________________________ a
_____________________ ("Borrower"), promises to pay to the order of WACHOVIA
BANK, NATIONAL ASSOCIATION ("Lender"), at the principal office of Lender in
Atlanta, Georgia, or at such other place as Lender hereafter may direct in
writing, in _______________________, the principal sum of _____________________
($__________), or so much thereof as may be disbursed and remain outstanding
from time to time hereafter under that certain "__________________ Line of
Credit" opened by Lender in favor of Borrower pursuant to the terms of that
certain Loan Agreement, dated as of February 23, 2001, among Lender, Borrower
and certain affiliates of Borrower (hereinafter, as it may be amended or
supplemented from time to time, called the "Loan Agreement"; all capitalized
terms used herein and not otherwise defined herein shall have the meanings given
such terms in the Loan Agreement), the terms and provisions of which are hereby
incorporated herein by reference and made a part hereof, on the
___________________ Termination Date, with interest thereon (computed on the
daily outstanding principal balance, for the actual number of days outstanding,
on the basis of a 360 day year) on each advance made hereunder from date of
advance until paid in full at the rate per annum equal to the Applicable Rate.
Accrued interest on the unpaid principal balance hereof from time to time
outstanding shall be due and payable at such times as are provided in the Loan
Agreement and on the _______________ Termination Date.
2. Borrower agrees, in the event that this Master Note or any portion
hereof is collected by law or through an attorney at law, to pay all costs of
collection incurred by Lender, including, without limitation, reasonable
attorneys' fees.
3. This Master Note evidences borrowing under, is subject to and secured
by, and shall be paid and enforced in accordance with, the terms of the Loan
Agreement, and is the "___________ Master Note" defined in Section 1.1 thereof.
4. Nothing herein shall limit any right granted to Lender by any other
instrument or by law or equity.
5. Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be provided for in the Loan Agreement.
IN WITNESS WHEREOF, Borrower has caused this ______________ Master Note to
be signed and delivered as of the day and year first above written.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT X
XXXXXX XX XXXXXX
XXXXX XX XXXXXXX February ___, 2001
CAD TERM NOTE
1. FOR VALUE RECEIVED, the undersigned, IMMUCOR, INC., a Georgia
corporation ("Borrower"), promises to pay to the order of WACHOVIA BANK,
NATIONAL ASSOCIATION ("Lender"), at the principal office of Lender in Atlanta,
Georgia, or at such other place as Lender hereafter may direct in writing, in
legal tender of Canada, the principal sum of THREE MILLION EIGHT HUNDRED
TWENTY-SEVEN THOUSAND THREE HUNDRED THIRTY-THREE AND 34/100 CANADIAN DOLLARS
(3,827,333.34 Cn$), constituting the outstanding principal balance of the "CAD
Term Loan", as that term is defined in that certain Loan Agreement, dated as of
even date herewith, among Lender, Borrower and certain affiliates of Borrower
(hereinafter, as it may be amended or supplemented from time to time, the "Loan
Agreement"; all capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Loan Agreement), the terms and
provisions of which are hereby incorporated herein by reference and made a part
hereof, with interest thereon (computed on the daily outstanding principal
balance, for the actual number of days outstanding, on the basis of a 360 day
year) from date hereof at the rate per annum equal to the Applicable Rate.
Accrued interest on the unpaid principal balance hereof from time to time
outstanding shall be due and at such times as are provided in the Loan Agreement
and at maturity. Commencing on March 1, 2001, and continuing to be due on each
succeeding Payment Date, the principal amount hereof shall be due and payable in
the following installments which shall be due on the following Payment Dates
(except that the entire remaining unpaid principal balance hereof together with
all accrued but unpaid interest thereon shall be due and payable on the last
Payment Date specified below):
Payment Date Principal Installment Due
------------ -------------------------
March 1, 2001 Cn$478,416.66
June 1, 2001 Cn$478,416.66
September 1, 2001 Cn$478,416.66
December 1, 2001 Cn$478,416.66
March 1, 2002 Cn$478,416.66
June 1, 2002 Cn$478,416.66
September 1, 2002 Cn$478,416.66
December 1, 2002 Cn$478,416.72
2. Borrower agrees, in the event that this CAD Term Note or any portion
hereof is collected by law or through an attorney at law, to pay all costs of
collection incurred by Lender, including, without limitation, reasonable
attorneys' fees.
3. This CAD Term Note evidences borrowing under, is subject to and secured
by, and shall be paid and enforced in accordance with, the terms of the Loan
Agreement, and is the "CAD Term Note" defined in Section 1.1 thereof.
4. Nothing herein shall limit any right granted Lender by any other
instrument or by law.
5. Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be provided for in the Loan Agreement.
IN WITNESS WHEREOF, Borrower has caused this CAD Term Note to be signed and
delivered as of the day and year first above written.
IMMUCOR, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT X-0
XXXXXX XX XXXXXX
XXXXX XX XXXXXXX February ___, 2001
TERM NOTE A
1. FOR VALUE RECEIVED, the undersigned, IMMUCOR, INC., a Georgia
corporation ("Borrower"), promises to pay to the order of WACHOVIA BANK,
NATIONAL ASSOCIATION ("Lender"), at the principal office of Lender in Atlanta,
Georgia, or at such other place as Lender hereafter may direct in writing, in
legal tender of the of the United States of America, the principal sum of TWENTY
MILLION DOLLARS ($20,000,000), constituting the proceeds of the Term Loan A made
to Borrower by Lender pursuant to that certain Loan Agreement, dated as of even
date herewith, among Lender, Borrower and certain Subsidiaries of Borrower
(hereinafter, as it may be amended or supplemented from time to time, the "Loan
Agreement"; all capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Loan Agreement), the terms and
provisions of which are hereby incorporated herein by reference and made a part
hereof, with interest thereon (computed on the daily outstanding principal
balance, for the actual number of days outstanding, on the basis of a 360 day
year) from date hereof at the rate per annum equal to the Applicable Rate.
Accrued interest on the unpaid principal balance hereof from time to time
outstanding shall be due and payable at such times as are provided in the Loan
Agreement and at maturity. Commencing on March 1, 2001, and continuing to be due
on each succeeding Payment Date, the principal amount hereof shall be due and
payable in the following installments which shall be due on the following
Payment Dates (except that the entire remaining unpaid principal balance hereof
together with all accrued but unpaid interest thereon shall be due and payable
on the last Payment Date specified below):
Payment Date Principal Installment Due
------------ -------------------------
March 1,2001 $375,000
June 1, 2001 $375,000
September 1, 2001 $375,000
December 1, 2001 $375,000
March 1, 2002 $875,000
June 1, 2002 $875,000
September 1, 2002 $875,000
December 1, 2002 $875,000
March 1, 2003 $1,250,000
June 1, 2003 $1,250,000
September 1, 2003 $1,250,000
December 1, 2003 $1,250,000
March 1, 2004 $1,250,000
June 1, 2004 $1,250,000
September 1, 2004 $1,250,000
December 1, 2004 $1,250,000
March 1, 2005 $1,250,000
June 1, 2005 $1,250,000
September 1, 2005 $1,250,000
December 1, 2005 $1,250,000
2. Borrower agrees, in the event that this Additional Term Note or any
portion hereof is collected by law or through an attorney at law, to pay all
costs of collection incurred by Lender, including, without limitation,
reasonable attorneys' fees.
3. This Term Note A evidences borrowing under, is subject to and secured
by, and shall be paid and enforced in accordance with, the terms of the Loan
Agreement, and is the "Term Note A" defined in Section 1.1 thereof.
4. Nothing herein shall limit any right granted Lender by any other
instrument or by law.
5. Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be provided for in the Loan Agreement.
IN WITNESS WHEREOF, Borrower has caused this Term Note A to be signed and
delivered as of the day and year first above written. IMMUCOR, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT X-0
XXXXXX XX XXXXXX
XXXXX XX XXXXXXX February ___, 2001
TERM NOTE B
1. FOR VALUE RECEIVED, the undersigned, IMMUCOR, INC., a Georgia
corporation ("Borrower"), promises to pay to the order of WACHOVIA BANK,
NATIONAL ASSOCIATION ("Lender"), at the principal office of Lender in Atlanta,
Georgia, or at such other place as Lender hereafter may direct in writing, in
legal tender of the of the United States of America, the principal sum of SIX
MILLION DOLLARS ($6,000,000), constituting the proceeds of the Term Loan B made
to Borrower by Lender pursuant to that certain Loan Agreement, dated as of even
date herewith, among Lender, Borrower and certain affiliates of Borrower
(hereinafter, as it may be amended or supplemented from time to time, the "Loan
Agreement"; all capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Loan Agreement), the terms and
provisions of which are hereby incorporated herein by reference and made a part
hereof, with interest thereon (computed on the daily outstanding principal
balance, for the actual number of days outstanding, on the basis of a 360 day
year) from date hereof at the rate per annum equal to the Applicable Rate.
Accrued interest on the unpaid principal balance hereof from time to time
outstanding shall be due and payable at such times as are provided in the Loan
Agreement and at maturity. The outstanding principal balance of this Term Note B
shall be due and payable in full on December 1, 2005.
2. Borrower agrees, in the event that this Term Note B or any portion
hereof is collected by law or through an attorney at law, to pay all costs of
collection incurred by Lender, including, without limitation, reasonable
attorneys' fees.
3. This Term Note B evidences borrowing under, is subject to and shall be
paid and enforced in accordance with, the terms of the Loan Agreement, and is
the "Term Note B" defined in Section 1.1 thereof.
4. Nothing herein shall limit any right granted Lender by any other
instrument or by law.
5. Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be provided for in the Loan Agreement.
IN WITNESS WHEREOF, Borrower has caused this Term Note B to be signed
and delivered as of the day and year first above written.
IMMUCOR, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT D-1
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of _____________, ____,
made by [_______________________________________________________________], a
______________ corporation ("Guarantor"), in favor of WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (the "Guaranteed Party").
W I T N E S S E T H:
WHEREAS, Immucor, Inc., a Georgia corporation (the "U.S. Borrower"),
Dominion Biologicals Limited, the successor by amalgamation to 300524 Nova
Scotia Limited and itself a corporation incorporated under the laws of Canada
("Canadian Borrower"), and Immucor Medizinische Diagnostik GmbH, a corporation
incorporated under the laws of the Federal Republic of Germany ("German
Borrower"; U.S. Borrower, Canadian Borrower and German Borrower, individually
and collectively, "Borrower") the Guaranteed Party are parties to a Loan
Agreement, dated as of February ___, 2001, which constitutes an amendment and
restatement of that certain Loan Agreement dated as of October 27, 1998, between
the U.S. Borrower and the Guaranteed Party, as amended (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement"; the terms defined therein and not otherwise defined herein
being used herein as therein defined), pursuant to which, subject to the terms
and conditions set forth therein, the Guaranteed Party has committed to make
certain Loans available to or at the request of the Borrower; and
WHEREAS, Borrower and Guarantor share an identity of interests as members
of a consolidated group of companies engaged in similar or related businesses
and the making of the Loans available to or at the request of Borrower will
facilitate expansion and enhance the overall financial strength and stability of
the corporate group of which Guarantor is a part; and
WHEREAS, it is a condition precedent to the Guaranteed Party's obligations
to make or continue to make the Loans available under the Loan Agreement that
Guarantor execute and deliver this Guaranty, and Guarantor desires to execute
and deliver this Guaranty to satisfy such condition precedent.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Guaranteed Party to make or continue to make the Loans available under the Loan
Agreement, Guarantor hereby agrees as follows:
1. Guaranty of Obligations. (a) Guarantor hereby absolutely,
unconditionally and irrevocably guarantees to the Guaranteed Party the prompt
payment when due, whether at stated maturity, by acceleration or otherwise, of
the Loans made to Borrower and all of Borrower's other Obligations (as defined
in the Loan Agreement, and including all renewals, extensions, modifications,
and refinancings thereof) now or hereafter existing, whether for principal,
interest, fees, expenses or otherwise, and all expenses (including reasonable
attorneys' fees and expenses) incurred by the Guaranteed Party in enforcing any
of its rights under the Loan Agreement and the other Loan Documents (all of the
foregoing, collectively, the "Guaranteed Obligations"). Any and all payments
made by Guarantor hereunder shall be made free and clear of and without
deduction for any set-off, counterclaim, or withholdings so that, in each case,
the Guaranteed Party shall receive the full amount that it would otherwise be
entitled to receive with respect to the Guaranteed Obligations.
(b) Guarantor acknowledges and agrees that this Guaranty is a guaranty of
payment and not of collection and that the liability of Guarantor under this
Guaranty shall be immediate and primary and shall not be contingent upon the
exercise or enforcement by the Guaranteed Party of any remedies the Guaranteed
Party may have against the Borrower, any other guarantor of the Guaranteed
Obligations or any other person, or the enforcement of any lien or realization
upon any collateral the Guaranteed Party may at any time possess for any of the
Guaranteed Obligations.
2. Maximum Liability. It is the intention of Guarantor and the Guaranteed
Party that Guarantor's obligations hereunder shall be in, but not in excess of,
the maximum amount permitted by applicable federal bankruptcy, state insolvency,
fraudulent conveyance or transfer or similar laws ("Applicable Law"). To that
end, but only to the extent such obligations would otherwise be subject to
avoidance under Applicable Law if Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for its
obligations hereunder, Guarantor's obligations hereunder shall be reduced to
that amount which, after giving effect thereto, would not render Guarantor
insolvent, or leave Guarantor with unreasonably small capital to conduct its
business, or cause Guarantor to have incurred debts (or intended to have
incurred debts) beyond its ability to pay such debts as they mature, at the time
such obligations are deemed to have been incurred under Applicable Law. As used
herein, the terms "insolvent" and "unreasonably small capital" shall likewise be
determined in accordance with Applicable Law. This Section is intended solely to
preserve the rights of the Guaranteed Party hereunder to the maximum extent
permitted by Applicable Law, and neither Guarantor nor any other Persons shall
have any right or claim under this Section that would not otherwise be available
under Applicable Law.
3. Guaranty Absolute. This Guaranty shall in all respects be an absolute,
unconditional and irrevocable guaranty of payment of the Guaranteed Obligations
and Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of the Loan Documents under which they arise,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Guaranteed Party
with respect thereto. The liability of Guarantor under this Guaranty shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated, modified or otherwise affected by any
circumstance or occurrence whatsoever, including without limitation any of the
following (whether or not Guarantor consents thereto or has notice thereof): (i)
any change in or waiver of the time, place or manner of payment, or any other
term, of any of the Guaranteed Obligations or Loan Documents, any waiver of or
any renewal, extension, increase, amendment or modification of or addition,
consent or supplement to or deletion from, or any other action or inaction under
or in respect of, any of the Guaranteed Obligations or Loan Documents or any
other document, instrument or agreement referred to therein or any assignment or
transfer of any of the Guaranteed Obligations or Loan Documents; (ii) any lack
of validity, legality or enforceability of any of the Guaranteed Obligations or
Loan Documents or any other document, instrument, or agreement referred to
therein or of any assignment or transfer of any of the foregoing; (iii) any
furnishing to the Guaranteed Party of any additional collateral for any of the
Guaranteed Obligations or any sale, exchange, release or surrender of, or
realization on, any collateral for any of the Guaranteed Obligations; (iv) any
settlement, release or compromise of any of the Guaranteed Obligations or Loan
Documents, any collateral therefor, or any liability of any other party
(including without limitation any other guarantor) with respect to any of the
Guaranteed Obligations or Loan Documents, or any subordination of payment of any
of the Guaranteed Obligations to the payment of any other indebtedness,
liability or obligation of the Borrower; (v) any bankruptcy, insolvency,
reorganization, composition, adjustment, merger, consolidation, dissolution,
liquidation or other like proceeding or occurrence relating to the Borrower or
any other change in the ownership, composition or nature of the Borrower; (vi)
any non-perfection, subordination, release, avoidability or voidability of any
security interest, security title, pledge, collateral assignment or other lien
of the Guaranteed Party on any collateral for any of the Guaranteed Obligations
or this Guaranty; (vii) any application of sums paid by the Borrower or any
other person with respect to any of the Guaranteed Obligations, except to the
extent actually applied against the Guaranteed Obligations, regardless of what
other liabilities of the Borrower remain unpaid; (viii) the failure of the
Guaranteed Party to assert any claim or demand or to enforce any right or remedy
against the Borrower or any other person (including any other guarantor of any
of the Guaranteed Obligations) under the provisions of any of the Loan Documents
or otherwise, or any failure of the Guaranteed Party to exercise any right or
remedy against any other guarantor of or any collateral for any of the
Guaranteed Obligations; (ix) any other act or failure to act by the Guaranteed
Party which may adversely affect any guarantor of the Guaranteed Obligations; or
(x) any other circumstance which might otherwise constitute a defense against,
or a legal or equitable discharge of, the liability of any guarantor of the
Guaranteed Obligations.
4. Guaranty Continuing; Reinstatement. This Guaranty shall in all respects
be a continuing and irrevocable guaranty of payment and shall remain in full
force and effect until the Guaranteed Party is no longer under any obligation to
extend any further credit to Borrower under the Loan Agreement and no Guaranteed
Obligations are outstanding. If claim is ever made upon the Guaranteed Party for
repayment or recovery of any amount received by the Guaranteed Party in payment
or on account of any of the Guaranteed Obligations, and if the Guaranteed Party
repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body having jurisdiction over the Guaranteed
Party or any of its property or (ii) any settlement or compromise of any such
claim effected by the Guaranteed Party with any such claimant (including without
limitation the Borrower or a trustee, conservator or receiver for the Borrower),
then and in such event Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon Guarantor, notwithstanding any
revocation or cancellation of this Guaranty or of any of the Loan Documents, and
Guarantor shall be and remain liable to the Guaranteed Party hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been paid to the Guaranteed Party and Guarantor's obligations and
liabilities to the Guaranteed Party under this Guaranty shall be reinstated to
such extent and this Guaranty and any collateral for this Guaranty shall remain
in full force and effect (or shall be reinstated) to such extent. Guarantor
hereby expressly waives the benefit of any applicable statute of limitations and
agrees that it shall be liable under this Guaranty whenever the Guaranteed Party
seeks to enforce such liability against Guarantor or its property.
5. Waivers and Consents. Guarantor hereby waives: (i) notice of acceptance
of this Guaranty by the Guaranteed Party; (ii) notice of the creation,
existence, acquisition, extension, or renewal of any of the Guaranteed
Obligations; (iii) notice of the amount of the Guaranteed Obligations
outstanding from time to time, subject, however, to Guarantor's right to make
inquiry of the Guaranteed Party at reasonable intervals to ascertain the amount
of Guaranteed Obligations then outstanding; (iv) notice of any default or event
of default under any of the Loan Documents or with respect to any of the
Guaranteed Obligations or notice of any other adverse change in the Borrower's
financial condition or means or ability to pay any of the Guaranteed Obligations
or perform its obligations under any of the Loan Documents or notice of any
other fact which might increase the risk of any guarantor of the Guaranteed
Obligations; (v) notice of presentment, demand, protest, and notice of dishonor
or nonpayment as to any instrument; (vi) notice of any acceleration or other
demand for payment of any of the Guaranteed Obligations; and (vii) all other
notices and demands to which Guarantor might otherwise be entitled with respect
to any of the Guaranteed Obligations or the Loan Documents or with respect to
the Guaranteed Party's enforcement of its rights and remedies thereunder.
Guarantor further waives any right Guarantor may have, by statute or otherwise,
to require the Guaranteed Party to seek recourse first against the Borrower or
any other person, or to realize upon any collateral for any of the Guaranteed
Obligations, as a condition precedent to enforcing Guarantor's joint and several
liability and obligations under this Guaranty, and Guarantor further waives any
defense arising by reason of any incapacity or other disability of the Borrower
or by reason of any other defense which the Borrower may have on any of the
Guaranteed Obligations or under any of the Loan Documents. Guarantor consents
and agrees that, without notice to or consent by any other guarantor of the
Guaranteed Obligations and without affecting or impairing the liability of any
guarantor of the Guaranteed Obligations, the Guaranteed Party may compromise or
settle, extend the period of duration or the time for the payment, discharge or
performance of any of the Guaranteed Obligations or Loan Documents, or may
refuse to enforce or may release all or any parties to any or all of the
Guaranteed Obligations (including without limitation any other guarantor
thereof) or any collateral therefor, or may grant other indulgences to any of
the Borrower or such other parties in respect thereof, or may waive, amend or
supplement in any manner the provisions of any of the Loan Documents or any
other document, instrument or agreement relating to or securing any of the
Guaranteed Obligations (other than this Guaranty), or may release, surrender,
exchange, modify, or compromise any and all collateral securing any of the
Guaranteed Obligations or in which the Guaranteed Party may at any time have a
lien, or may refuse to enforce its rights or may make any compromise or
settlement or agreement therefor, in respect of any and all of such collateral,
or with any party to any of the Guaranteed Obligations or Loan Documents, or
with any other person, or may release or substitute any one or more of the other
endorsers or guarantors of the Guaranteed Obligations whether parties to this
Guaranty or not, or may exchange, enforce, waive or release any collateral for
any guaranty of any of the Guaranteed Obligations. Guarantor further consents
and agrees that the Guaranteed Party shall not be under any obligation to
marshal any assets in favor of any guarantor of the Guaranteed Obligations or
against or in payment of any of the Guaranteed Obligations.
6. Waiver of Certain Rights. Guarantor expressly waives any and all rights
of subrogation, reimbursement, indemnity, exoneration or contribution or any
other claim which Guarantor may now or hereafter have against the Borrower or
against any property of the Borrower arising from the existence, payment,
performance or enforcement of Guarantor's obligations and liabilities under this
Guaranty unless and until the Guaranteed Obligations are paid in full and the
Guaranteed Party is under no obligation to extend any further credit to Borrower
under the Loan Agreement.
7. Guarantor Due Diligence and Benefit. Guarantor is fully aware of the
financial condition, assets and prospects of the Borrower, and Guarantor is
executing and delivering this Guaranty based solely upon Guarantor's own
independent investigation thereof and in no part upon any representation,
warranty or statement of the Guaranteed Party with respect to the Borrower's
financial condition, assets or prospects. Guarantor is in a position to and
hereby assumes full responsibility for obtaining any and all information
concerning the Borrower's financial condition, assets and prospects as Guarantor
may now or hereafter deem material to Guarantor's decision to enter into and
become liable under this Guaranty and Guarantor is not relying upon, nor does
Guarantor expect the Guaranteed Party to furnish Guarantor with any information
which may be now or hereafter in the Guaranteed Party's possession concerning
the Borrower's financial condition, assets or prospects. Guarantor hereby
knowingly accepts the full range of risks encompassed within a contract of
guaranty, which risks Guarantor understands may include, without limitation, the
possibility that the Borrower may incur additional indebtedness to the
Guaranteed Party for which Guarantor may be liable hereunder after the
Borrower's financial condition or means or ability to pay its lawful debts when
they fall due has deteriorated. Guarantor further acknowledges and agrees that
any credit or other financial accommodations now or hereafter extended by the
Guaranteed Party to the Borrower and any and all forbearances with respect to
the Borrower or its assets which the Guaranteed Party may now or hereafter grant
are and will be of direct interest, benefit and advantage to Guarantor.
8. Application of Payment. Guarantor irrevocably waives the right to direct
the application of any and all payments and collections at any time hereafter
received by the Guaranteed Party from or on behalf of the Borrower, any
guarantor of the Guaranteed Obligations or otherwise with respect to any of the
Guaranteed Obligations and Guarantor does hereby irrevocably agree that the
Guaranteed Party shall have the continuing exclusive right to apply and re-apply
any and all such payments and collections received at any time hereafter by the
Guaranteed Party against the Guaranteed Obligations in such manner and order as
the Guaranteed Party may deem advisable, notwithstanding any contrary entry by
the Guaranteed Party upon any of its books and records.
9. Automatic Acceleration of Guaranty. Upon the occurrence of any Event of
Default described in Section 7.6 or 7.7 of the Loan Agreement, all of the
Guaranteed Obligations shall be deemed immediately due and payable, without
notice or demand of any kind by the Guaranteed Party, and Guarantor agrees
immediately to pay the Guaranteed Obligations in full, irrespective of whether
any or all of the Guaranteed Obligations can then be accelerated against the
Borrower and irrespective of any right which the Borrower then may have under
any bankruptcy, receivership or insolvency laws.
10. Notices to Guarantor. All notices, demands and other communications
hereunder or under any of the other Loan Documents by the Guaranteed Party to
Guarantor shall be effective (i) if given by mail within the United States of
America, three (3) days after such communication is deposited in the United
States mail with first class postage prepaid, return receipt requested,
addressed to Guarantor at the Guarantor's address set forth beneath its
signature hereon, or (ii) if given by any other means, when delivered at the
address of the party to whom such notice is being delivered. Guarantor may
designate a different address for Guarantor's receipt of such notices or other
communications but no such change shall be effective unless and until the
Guaranteed Party actually receives written notice thereof from Guarantor.
11. Collection Costs. Guarantor shall be liable to the Guaranteed Party
for, and shall pay to the Guaranteed Party on demand, all costs (including
without limitation attorneys' fees and expenses) incurred by the Guaranteed
Party in enforcing performance of or collecting any payments due under this
Guaranty.
12. Assignment and Transfer. This Guaranty shall be binding upon Guarantor
and Guarantor's successors and permitted assigns and shall inure to the benefit
of and be enforceable by the Guaranteed Party and its successors and assigns.
Without limiting the generality of the preceding sentence, the Guaranteed Party
may assign or grant participations in all or any part of the Guaranteed
Obligations, whereupon such assignee or participant shall become entitled to all
of the rights in respect thereof granted to the Guaranteed Party herein.
13. Governing Law. This guaranty shall be governed by the internal laws of
the State of Georgia (without giving effect to its conflicts of law rules).
14. Subordination of the Borrower's Obligations to Guarantor. As an
independent covenant, and subject to the terms and conditions of the Loan
Agreement, Guarantor hereby expressly covenants and agrees for the benefit of
the Guaranteed Party that all present or future indebtedness, obligations and
liabilities of the Borrower to Guarantor of whatsoever description
(collectively, the "Junior Claims") shall be subordinate and junior in right of
payment to all Obligations of the Borrower to the Guaranteed Party
(collectively, the "Senior Claims"), effective upon the occurrence of an Event
of Default under the Loan Agreement. If an Event of Default under the Loan
Agreement shall occur or be caused thereby, then, unless and until such Event of
Default shall have been cured or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities by set-off or otherwise) shall
be made by the Borrower to Guarantor on account of or in any manner in respect
of any Junior Claim except such payments and distributions the proceeds of which
shall be applied to the Senior Claims. In the event of a Proceeding (as
hereinafter defined), all Senior Claims shall first be paid in full before any
direct or indirect payment or distribution (in cash, property, securities by
set-off or otherwise) shall be made to Guarantor on account of or in any manner
in respect of any Junior Claim except such payments and distributions the
proceeds of which shall be applied to the Senior Claims. For the purposes of the
previous sentence, a "Proceeding" shall occur if the Borrower shall make an
assignment for the benefit of creditors, file a petition in bankruptcy, have
entered against or in favor of it an order for relief under the Bankruptcy Code
or similar law of any other jurisdiction, generally fail to pay its debts as
they come due (either as to number or amount), admit in writing its inability to
pay its debts generally as they mature, make a voluntary assignment for the
benefit of creditors, commence any proceeding relating to it under any
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect, or by
any act, indicate its consent to, approval of or acquiescence in any such
proceeding or in the appointment of any receiver of, or trustee or custodian (as
defined in the Bankruptcy Code) for itself, or any substantial part of its
property, or a trustee or a receiver shall be appointed for the Borrower or for
a substantial part of the property of the Borrower, or a petition under any
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction (whether now or hereafter in
effect) shall be filed against the Borrower. In the event any direct or indirect
payment or distribution is made to Guarantor in contravention of this Section,
such payment or distribution shall be deemed received in trust for the benefit
of the Guaranteed Party and shall be immediately paid over to the Guaranteed
Party for application against the Guaranteed Obligations. Guarantor agrees to
execute such additional documents as the Guaranteed Party may reasonably request
to evidence the subordination provided for in this Section.
15. Set-off. To the extent not prohibited by law, the Guarantor hereby
grants to the Guaranteed Party a security interest in and security title to and
hereby assigns, pledges, transfers and conveys to the Guaranteed Party any
balance or deposit accounts of the Guarantor with the Guaranteed Party, whether
such accounts be general or special, or individual or multiple party, and upon
all drafts, notes or other items deposited for collection or presented for
payment by the Guarantor with the Guaranteed Party exclusive of any such
property in the possession or control of the Guaranteed Party as a fiduciary
other than as agent, and the Guaranteed Party may at any time during the
existence of any Event of Default (as defined in the Loan Agreement), without
demand or notice, apply and appropriate any of such to the payment of any of the
Guaranteed Obligations, whether or not then due.
16. Miscellaneous. (a) This Guaranty constitutes the sole and entire
agreement between Guarantor and the Guaranteed Party with respect to the subject
matter hereof and supersedes and replaces any and all prior agreements,
understandings, negotiations or correspondence between them with respect
thereto, including without limitation any and all prior guaranty agreements
executed by Guarantor in favor of the Guaranteed Party with respect to any or
all of the Guaranteed Obligations.
(b) Time is of the essence of this Guaranty.
(c) Words importing the singular number hereunder shall include the plural
number and vice versa and any pronouns used herein shall be deemed to cover all
genders. The term "person" as used herein means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated association, or government (or any agency or political
subdivision thereof).
(d) Wherever possible, any provision in this Guaranty which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any one jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(e) No amendment or waiver of any provision of this Guaranty, nor consent
to any departure by Guarantor therefrom, shall be effective or binding upon the
Guaranteed Party unless the Guaranteed Party shall first have given written
consent thereto. Any such amendment, waiver or consent which is so granted by
the Guaranteed Party shall apply only to the specific occasion which is the
subject of such amendment, waiver or consent and shall not apply to the
occurrence of the same or any similar event on any future occasion. No failure
on the part of the Guaranteed Party to exercise, and no delay by the Guaranteed
Party in exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right by the Guaranteed
Party. No notice to or demand on any Guarantor in any case by the Guaranteed
Party hereunder shall entitle Guarantor to any further notice or demand in any
similar or other circumstances or constitute a waiver of the rights of the
Guaranteed Party to take any other or future action in any circumstances without
notice or demand. The remedies provided to the Guaranteed Party in this Guaranty
are cumulative and not exclusive of any other remedies provided by law.
(f) This Guaranty may be executed in one or more counterparts and each such
counterpart shall constitute an original and all such counterparts together
shall constitute one and the same instrument.
(g) All Section headings herein are for convenience of reference only and
shall not limit or otherwise affect the meaning or interpretation of the
provisions of this Guaranty.
17. Jury Trial Waiver; Consent to Jurisdiction and Venue. GUARANTOR HEREBY
WAIVES ANY RIGHT GUARANTOR MAY HAVE UNDER ANY APPLICABLE LAW TO A TRIAL BY JURY
WITH RESPECT TO ANY SUIT OR LEGAL ACTION WHICH MAY BE COMMENCED BY OR AGAINST
GUARANTOR, THE GUARANTEED PARTY OR THE BORROWER CONCERNING THE INTERPRETATION,
CONSTRUCTION, VALIDITY, ENFORCEMENT OR PERFORMANCE OF THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS. IN THE EVENT ANY SUCH SUIT OR LEGAL ACTION IS
COMMENCED BY THE GUARANTEED PARTY, GUARANTOR HEREBY EXPRESSLY AGREES, CONSENTS
AND SUBMITS TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA
OR THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA
DIVISION, WITH RESPECT TO SUCH SUIT OR LEGAL ACTION, AND GUARANTOR ALSO
EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES THAT VENUE IN ANY SUCH SUIT OR
LEGAL ACTION IS PROPER IN SAID COURTS AND GUARANTOR HEREBY EXPRESSLY WAIVES ANY
AND ALL PERSONAL RIGHTS UNDER APPLICABLE LAW OR IN EQUITY TO OBJECT TO THE
JURISDICTION AND VENUE OF SAID COURTS. THE JURISDICTION AND VENUE OF THE COURTS
CONSENTED AND SUBMITTED TO AND AGREED UPON IN THIS SECTION ARE NOT EXCLUSIVE BUT
ARE CUMULATIVE AND IN ADDITION TO THE JURISDICTION AND VENUE OF ANY OTHER COURT
UNDER ANY APPLICABLE LAW OR IN EQUITY.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the date first above written.
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By:
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Name:
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Title:
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Address:
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Attn:
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SECTION 14 OF THE FOREGOING
GUARANTY ACKNOWLEDGED AND
AGREED TO:
IMMUCOR, INC.
By:
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Name:
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Title:
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EXHIBIT D-2
STOCK PLEDGE AGREEMENT
THIS AGREEMENT, dated as of __________________ made by IMMUCOR, INC., a
Georgia corporation (the "Pledgor"), to WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association (the "Lender").
W I T N E S S E T H :
WHEREAS, pursuant to and subject to the terms and conditions set forth in,
that certain Loan Agreement dated as of February __,2001 among Pledgor, Dominion
Biologicals Limited, the successor by amalgamation to 300524 Nova Scotia Limited
and itself a corporation incorporated under the laws of Canada ("Canadian
Borrower"), and Immucor Medizinische Diagnostik GmbH, a corporation incorporated
under the laws of the Federal Republic of Germany ("German Borrower"; Pledgor,
Canadian Borrower and German Borrower, individually and collectively,
"Borrower") and Lender, which constitutes an amendment and restatement of that
certain Loan Agreement dated as of October 27, 1998, between Pledgor and Lender,
as amended (as the same may be hereafter amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement;" capitalized terms
used herein and not otherwise defined are used herein with the meanings ascribed
to such terms in the Loan Agreement), the Lender has committed to make certain
Loans available to the Borrower, as described therein; and
WHEREAS, it is a condition precedent to the Lender's obligation to make, or
continue to make, Loans available to the Borrower under the Loan Agreement that
the Pledgor execute and deliver this Agreement to the Lender; and
WHEREAS, the Pledgor desires to execute this Agreement in order to satisfy
the condition described in the preceding paragraph;:
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Lender to make or continue to make the
Loans available to the Borrower under the Loan Agreement, the Pledgor hereby
makes the following representations and warranties to the Lender and hereby
covenants and agrees with the Lender as follows:
1. SECURITY FOR OBLIGATIONS, ETC. This Agreement is for the benefit of the
Lender to secure the prompt payment in full when due, whether at stated
maturity, by acceleration or otherwise, of (i) all of the Loans and the other
Obligations of the Borrower to the Lender (whether now existing or hereafter
arising, whether for principal, interest, fees, expenses or otherwise, and
including without limitation interest which, but for the filing by or against
the Borrower of a petition in bankruptcy, would accrue on the Obligations of the
Borrower now or hereafter existing under the Loan Agreement, any Note, this
Agreement or any of the other Loan Documents), and (ii) all costs and expenses
incurred by the Lender in connection with the exercise of its rights and
remedies hereunder (including attorneys' fees) (all such obligations
collectively being herein called the "Secured Obligations").
2. PLEDGED STOCK.
2.1 Pledged Stock. As used herein, the term "Pledged Stock" shall mean
________ percent (__%) of all shares of the outstanding capital stock or other
equity interests of each of the Subsidiaries of Pledgor listed on Schedule 1
attached hereto (each, a "Company" and collectively, the "Companies"), of any
class that the Pledgor may now or hereafter own, control or hold, which stock as
of this date is described on Schedule I attached hereto.
2.2 Pledgor's Representations and Warranties. The Pledgor represents and
warrants to the Lender that on the date hereof (a) the Pledged Stock owned by
Pledgor consists of the capital stock of each of the Companies shown on Schedule
I attached hereto, (b) Pledgor is the holder of record and beneficial owner of
such Pledged Stock, and (c) such Pledged Stock constitutes all of the issued and
outstanding capital stock of each Company owned as of such date by Pledgor.
3. PLEDGE OF SECURITIES; ETC.
3.1 Pledge. Subject to the terms and conditions hereof, and in order to
secure the Secured Obligations, the Pledgor hereby pledges to the Lender all of
its rights, titles and interests in and to the Pledged Stock, together with (i)
subject to the rights of the Pledgor set forth in Section 5, all dividends
(whether in cash, stock, warrants, options, or other securities), cash,
instruments or other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Stock, and (ii) all cash and non-cash proceeds of the foregoing, and the Pledgor
hereby grants to the Lender a present and continuing security interest in, and
hereby assigns, transfers, hypothecates and sets over to the Lender, all of
Pledgor's rights, titles and interests in and to the Pledged Stock (and in and
to the certificates or instruments evidencing the items described in clauses (i)
and (ii) above) to be held by the Lender, upon the terms and conditions set
forth in this Agreement. The Pledgor agrees to deliver to the Lender on the date
hereof the certificates representing the Pledged Stock accompanied by undated
stock powers duly executed in blank by the Pledgor and all certificates and
instruments evidencing the items described in clauses (i) and (ii) above
promptly upon Pledgor's receipt thereof.
3.2 Definition of Pledged Securities and Collateral. The Pledged Stock and
all items described in clause (i) of Section 3.1 are hereinafter collectively
called the "Pledged Securities", and the Pledged Securities, together with all
other securities and moneys received and at the time held by the Lender
hereunder and any cash or non-cash proceeds of any of the foregoing, are
hereinafter collectively called the "Collateral".
4. VOTING; ETC. Unless an Event of Default (such term to mean an Event of
Default as defined herein) shall have occurred and be continuing and the Lender
has elected to exercise its rights and remedies under Section 6, the Pledgor
shall be entitled to vote any and all of the Pledged Securities and to give
consents, waivers or ratifications in respect thereof; provided that no vote
shall be cast or any consent, waiver or ratification given or any action taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Loan Agreement, or any other Loan Document. All such rights of Pledgor to
vote and to give consents, waivers and ratifications shall cease during the
continuation of an Event of Default upon Pledgor's receipt of written notice
from the Lender that an Event of Default has occurred and that Lender has
elected to exercise its rights and remedies under Section 6 below,
5. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless an Event of Default shall have
occurred and be continuing or be caused thereby, all cash dividends payable in
respect of the Pledged Securities shall be paid to the Pledgor as its interests
may appear. The Lender shall be entitled to receive directly, and to retain as
part of the Collateral:
(a) all other or additional stock or securities paid or distributed by way
of dividend in respect of any of the Pledged Securities;
(b) all other or additional stock or other securities paid or distributed
in respect of any of the Pledged Securities by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar rearrangement; and
(c) all other or additional stock or other securities which may be paid in
respect of any of the Pledged Securities by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or similar corporate
reorganization.
6. EVENTS OF DEFAULT.
6.1 Definition of Events of Default. Any of the following specified events
shall constitute Events of Default under this Agreement:
(a) the occurrence of any Event of Default under (and as defined in) the
Loan Agreement;
(b) any representation, warranty or statement made or deemed to be made by
Pledgor under or in connection with this Agreement shall have been false or
misleading in any material respect when made or deemed to be made; or
(c) Pledgor shall fail to observe or perform any covenant or agreement set
forth in this Agreement.
6.2 Remedies. In case an Event of Default shall have occurred and be
continuing, the Lender shall be entitled to exercise all of the rights, powers
and remedies (whether vested in it by this Agreement, any other Loan Document or
by law and including, without limitation, all rights and remedies of a secured
party of a debtor in default under the Uniform Commercial Code as in effect on
such date in any applicable jurisdiction at that time for the protection and
enforcement of its rights in respect of the Collateral), and the Lender shall be
entitled, without limitation, to exercise the following rights:
(a) to receive all amounts payable in respect of the Collateral otherwise
payable under Section 5 to the Pledgor and to enforce the payment of the Pledged
Securities and to exercise any and all of the rights, powers, and remedies of
the Pledgor thereunder;
(b) to transfer all or any part of the Collateral into the Lender's name or
the name of its nominee or nominees;
(c) to vote all or any part of the Collateral (whether or not transferred
into the name of the Lender) and give all consents, waivers and ratifications in
respect of the Collateral and otherwise act with respect thereto as though it
were the outright owner thereof;
(d) at any time or from time to time to sell, assign and deliver, or grant
options to purchase, all or any part of the Collateral in one or more parcels,
or any interest therein, at any public or private sale at any exchange, broker's
board or at any of the Lender's offices or elsewhere, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or option to redeem or otherwise (all of
which are hereby expressly and irrevocably waived by the Pledgor), for cash, on
credit or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on such terms as the
Lender in its reasonable discretion may determine. The Pledgor agrees that to
the extent that notice of sale shall be required by any applicable law that ten
(10) days' notice to Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Lender may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and any such sale may, without further notice, be made at the
time and place to which it was so adjourned. The Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder. At any such sale, unless prohibited by applicable law, Lender may bid
for and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. The Lender shall not be liable for failure to
collect or realize upon any or all of the Collateral or for any delay in so
doing nor shall it be under any obligation to take any action whatsoever with
regard thereto;
(e) to settle, adjust, compromise and arrange all accounts, controversies,
questions, claims and demands whatsoever in relation to all or any part of the
Collateral;
(f) to execute all contracts, agreements, documents and instruments to
bring, defend and abandon all such actions, suits and proceedings and to take
all other actions in relation to all or any part of the Collateral as the Lender
in its reasonable discretion may determine;
(g) to appoint managers, agents, officers and servants for any of the
purposes mentioned in the foregoing provisions of this Section 6.2 and to
dismiss the same, all as the Lender in its reasonable discretion may determine;
and
(h) generally, to take all such other action as the Lender reasonably may
determine as incidental or conducive to any of the matters or powers mentioned
in the foregoing provisions of this Section 6.2 and which the Lender may or can
do lawfully and to use the name of the Pledgor for the purposes aforesaid and in
any proceedings arising therefrom.
7. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the Lender
provided for in this Agreement or any other Loan Document now or hereafter
existing at law or in equity or by statute shall be cumulative and concurrent
and shall be in addition to every other such right, power or remedy. The
exercise or beginning of the exercise by the Lender of any one or more of the
rights, powers or remedies provided for in this Agreement or any other Loan
Document or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Lender of
all such other rights, powers or remedies, and no failure or delay on the part
of the Lender to exercise any such right, power or remedy shall operate as a
waiver thereof.
8. APPLICATION OF PROCEEDS. All moneys collected by the Lender upon any
sale, collection or other disposition of any of the Collateral, together with
all other moneys received by the Lender hereunder, shall be applied as follows:
First, to the payment of the reasonable costs and expenses of such
sale, collection or other realization, including, without limitation,
reasonable attorneys' fees and all other reasonable expenses, liabilities
and advances made or incurred by the Lender in connection therewith;
Second, to the payment of the Secured Obligations then due; and
Third, after payment in full of all Secured Obligations then due, to
the Pledgor or its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct any surplus then remaining from such proceeds.
9. PURCHASERS OF COLLATERAL. Upon any sale of any of the Collateral
hereunder (whether by virtue of the power of sale herein granted, pursuant to
judicial process or otherwise), the receipt of the Lender or the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the Lender
or such officer or be answerable in any way for the misapplication or
nonapplication thereof.
10. INDEMNITY. The Pledgor shall: (i) whether or not the transactions
hereby contemplated are consummated, pay all out-of-pocket costs and expenses of
the Lender incurred after the date hereof in connection with the administration
of this Agreement (including advice of counsel as to the rights and duties of
the Lender with respect thereto) and all out-of-pocket costs and expenses of the
Lender incurred in connection with the preservation of rights under, and
enforcement of, and the renegotiation or restructuring of this Agreement and any
amendment, waiver or consent relating thereto (including, without limitation,
the fees and disbursements of counsel for the Lender), (ii) pay and hold the
Lender harmless from and against any and all present and future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to this Agreement and
save the Lender harmless from and against any and all liabilities with respect
to or resulting from any delay or omission to pay any such taxes, charges or
levies, and (iii) indemnify the Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all costs, losses, liabilities, claims, damages or expenses actually incurred by
any of them (whether or not any of them is designated a party thereto) arising
out of or by reason of any investigation, litigation or other proceeding arising
out of this Agreement, the Lender's holding or administration of the Collateral
or any transaction contemplated hereby, including, without limitation, the fees
and disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding. Notwithstanding anything in this Agreement to
the contrary, the Pledgor shall not be responsible to the Lender or any officer,
director, employee, representative or agent of the foregoing (an "Indemnified
Party") for any costs, losses, claims, damages, liabilities or expenses which
result from such Indemnified Party's gross negligence or willful misconduct. The
Pledgor's obligations under this Section 10 shall survive any termination of
this Agreement.
11. FURTHER ASSURANCES. The Pledgor agrees that the Pledgor will do such
acts and things and promptly execute and deliver to the Lender such additional
conveyances, assignments, agreements and instruments as the Lender may
reasonably require or deem advisable to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Lender its fights, powers
and remedies hereunder.
12. STANDARD OF CARE. The Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Lender accords its own property, it being understood that the Lender
shall not have responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters relative
to any Collateral, whether or not the Lender has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any parties with respect to any Collateral.
13. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents and
warrants that (i) it is the legal record and beneficial owner of, and has good
and marketable title to, the Pledged Stock described in Section 2 hereof,
subject to no Lien whatsoever, except Permitted Encumbrances, (ii) the Pledgor
has full power, authority and legal right to pledge all the Pledged Securities
and the other Collateral pursuant to this Agreement, (iii) no consent of any
other party (including, without limitation, any other creditor of the Pledgor)
and no order, consent, license, permit, approval, validation or authorization
of, exemption by, notice to or registration, recording, filing or declaration
with, any governmental or public body or authority is required to be obtained by
the Pledgor in connection with the execution, delivery or performance of this
Agreement or consummation of the transactions contemplated hereby, including,
without limitation, the exercise by the Lender of the voting or other rights
provided for in this Agreement or the remedies in respect of the Collateral
pursuant to this Agreement (except as may be required in connection with the
disposition of the Pledged Securities by laws affecting the offering and sale of
securities generally), (iv) all shares of Pledged Stock have been duly and
validly issued, are fully paid and nonassessable, and (v) the pledge and
delivery of the Pledged Securities pursuant to this Agreement creates a valid
and perfected first priority security interest in the Pledged Securities subject
only to Permitted Encumbrances, and the proceeds thereof, which security
interest is not subject to any prior Lien or any agreement purporting to grant
to any third party a Lien on the property or assets of the Pledgor which would
include the Pledged Securities.
14. COVENANTS OF THE PLEDGOR. The Pledgor covenants and agrees that (i) the
Pledgor will assist each Company in defending the Lender's right, title and
security interest in and to the Pledged Securities and the proceeds thereof
against the claims and demands of all persons whomsoever, (ii) the Pledgor will
have like title to and right to pledge any other property at any time hereafter
pledged to the Lender as Collateral hereunder and will likewise defend the right
thereto and security interest therein of the Lender, and (iii) the Pledgor will
not, with respect to any Collateral, without the prior written consent of the
Lender enter into any shareholder agreements, voting agreements, voting trusts,
trust deeds, irrevocable proxies or any other similar agreements or instruments.
15. NOTICES, ETC. All notices and other communications hereunder to Lender
or Pledgor shall be given in the manner specified in Section 9.9 of the Loan
Agreement.
16. POWER OF ATTORNEY. The Pledgor hereby absolutely and irrevocably
constitutes and appoints the Lender to be Pledgor's true and lawful agent and
attorney-in-fact, effective upon the occurrence and during the continuation of
an Event of Default, with full power of substitution, in the name of Pledgor:
(a) to execute and do all such assurances, acts and things which Pledgor ought
to do but has failed to do under the covenants and provisions contained in this
Agreement; (b) to take any and all such action as the Lender may, in its
reasonable discretion, determine as necessary or advisable for the purpose of
maintaining, preserving or protecting the security constituted by this Agreement
or any of the rights, remedies, powers or privileges of the Lender under this
Agreement; and (c) generally, in the name of Pledgor exercise all or any of the
powers, authorities, and discretions conferred on or reserved to the Lender by
or pursuant to this Agreement, and (without prejudice to the generality of any
of the foregoing) to seal and deliver or otherwise perfect any instrument or
document of conveyance, agreement, or act as the Lender reasonably may deem
proper in or for the purpose of exercising any such powers, authorities or
discretions. The Pledgor hereby ratifies and confirms, and hereby agrees to
ratify and confirm, whatever lawful acts the Lender shall do or purport to do in
the exercise of the power of attorney granted to the Lender by Pledgor pursuant
to this Section, which power of attorney, being given for security, is
irrevocable.
17. TERMINATION. This Agreement shall terminate upon the date on which all
Obligations are paid in full and Lender is no longer under any obligation to
extend any further credit to Borrower under the Loan Agreement and all of
Lender's rights, titles and interests in and to the Collateral hereunder shall
automatically be terminated and released on such date.
18. MISCELLANEOUS. This Agreement shall create a continuing security
interest in the Collateral and shall be binding upon the respective heirs, legal
representatives, successors and assigns of the Pledgor and shall inure to the
benefit of and be enforceable by the Lender and its successors and assigns. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto. Pledgor waives acceptance and notice of acceptance of
this Agreement by Lender.
19. GOVERNING LAW. This agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
law of the State of Georgia applicable to contracts made in such state.
20. ENTIRE AGREEMENT. This Agreement, together with all instruments,
certificates and documents executed or delivered by the parties in connection
herewith or with reference hereto, embodies the entire understanding and
agreement between the parties hereto with respect to the Collateral and
supersedes all prior agreements, understandings and inducements, whether express
or implied, or oral or written.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Pledgor has executed this Agreement as of the date
first above written.
IMMUCOR, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SCHEDULE I
to
STOCK PLEDGE AGREEMENT
Dated as of February __, 2001
Pledged Stock
Percentage of
Issuer Class of Stock Number of Shares Shares of Such Class
------------ ----------------- ------------------- --------------------
------------ ----------------- ------------------- --------------------
EXHIBIT F
CERTIFICATE OF NO DEFAULT
The undersigned, being the Chief Financial Officer of IMMUCOR, INC., a
Georgia corporation ("Borrower"), and in such capacity being familiar with the
matters set forth herein and duly authorized and empowered to issue this
Certificate for and on behalf of Borrower, does hereby certify to WACHOVIA BANK,
NATIONAL ASSOCIATION ("Lender"), in connection with and pursuant to that certain
Loan Agreement, dated as of February __, 2001, among Borrower, certain of
Borrower's Subsidiaries and Lender (herein, as it may be amended to date, called
the "Loan Agreement"; capitalized terms used herein, without definition, having
the meaning given to such terms in the Loan Agreement) that, as of the date of
this Certificate, (i) there exists no Event of Default or Default Condition, and
(ii) without limiting the generality of the foregoing, Borrower is in compliance
with all financial covenants set forth in Article 6 of the Loan Agreement, as
demonstrated by the computations set forth on Schedule 1 attached hereto.
WITNESS my hand as of ____ __, ____.
______________________________________________
____________, Chief Financial Officer of
Immucor, Inc.
EXHIBIT G
SECRETARY'S CERTIFICATE
(Borrower)
I hereby certify that I am the duly elected, qualified and serving
Secretary or Assistant Secretary of _______________, a _______________
("Borrower"); that Borrower is a corporation organized and existing under the
laws of such jurisdiction, having its registered office and registered agent in
such jurisdiction, that the following copy is a true and correct copy of
resolutions duly adopted at a meeting of the Board of Directors or other
governing body of Borrower, or by written consent in lieu of a meeting of the
Board of Directors or other governing party of Borrower on or prior to the date
of this Certificate, at which a quorum was present and acting throughout; that
said meeting or action by written consent was duly authorized by the articles or
certificate of incorporation and the bylaws, or other organizational documents,
of said corporation; that true, correct and complete copies of the articles or
certificate of incorporation and the by-laws or other organizational documents
of said corporation as in effect on this date are attached hereto as Exhibit 1
and Exhibit 2, respectively; that the actions taken at such meeting or pursuant
to such written consent and reflected in said resolutions are authorized by the
articles or certificate of incorporation and the by-laws or other organizational
documents of Borrower; that said resolutions are now in full force and effect
and have not been modified or amended; that on the date hereof the persons named
below hold the offices of the Borrower indicated below; and that the following
are the genuine signatures of said officers:
Name Title Signature
___________________________ President _____________________________
___________________________ Vice President _____________________________
___________________________ Secretary _____________________________
___________________________ Assistant Secretary _____________________________
"RESOLVED that this corporation enter into, deliver and perform a certain
loan agreement with Wachovia Bank, National Association ("Lender"), providing
generally for the [extensions of certain lines of credit to this corporation in
the maximum aggregate principal amount of $9,000,000, certain term loans to this
corporation in the aggregate principal amount of $26,000,000 and a certain term
loan to this corporation in the amount of 2,499,075 Cn$] [extension of a line of
credit to this corporation in the maximum principal amount of 6,2000,000 Cn$]
[extension of a line of credit to this corporation in the maximum principal
amount of 5,400,000 DM];
RESOLVED FURTHER, that pursuant to such loan agreement or a separate
guaranty this corporation guaranty all of the obligations of its subsidiaries,
Immucor Medizinische Diagnostik GmbH and Dominion Biologicals Limited, to
Lender, whether presently existing or hereafter arising;
RESOLVED FURTHER, that this corporation secure its obligations in respect
of such loan agreement and guaranties by granting to Lender security interests
in all, or substantially all, of its assets, including, without limitation, the
stock of all subsidiaries owned by it;
RESOLVED FURTHER, that the President or any Vice President of this
corporation be and each such officer is hereby authorized to execute and deliver
said agreement, any notes, security agreements, pledge agreements and other
agreements or documents which said Lender may require, and to consent and agree
to any and all terms to each and every one thereof;
RESOLVED FURTHER, that the execution and delivery of any writings or the
taking of any other actions in connection with the foregoing by the President or
any Vice President of this corporation be and the same is hereby ratified as the
act and deed of this corporation; and
RESOLVED, FURTHER, that the Secretary or any Assistant Secretary of this
corporation be and such officer is hereby authorized to affix the seal (if any)
of said corporation to any writings executed by the President or any Vice
President of this corporation in connection with the foregoing, and to attest
the same, but such affixing and attestation are not required to evidence the
same as the act and deed of this corporation."
So certified to as of February __, 2001.
CORPORATE SEAL)
--------------------------------------------------------
Name:
---------------------------------------------------
Title:
--------------------------------------------------
I, _____________________, ___________________ of ________, a __________
_____________ do certify that ______________________ is the duly elected and
qualified Secretary or Assistant Secretary (as indicated above) of said
corporation as of the date hereof and the keeper of the records and minutes of
the meetings of the Board of Directors of said corporation.
So certified to as of February __ 2001.
Name:
---------------------------------------------------
Title:
--------------------------------------------------
EXHIBIT H
SECRETARY'S CERTIFICATE
(Guarantor)
I hereby certify that I am the duly elected, qualified and serving
Secretary or Assistant Secretary of _______________________, a ________________
corporation ("Company"); that Company is a corporation organized and existing
under the laws of the State of its incorporation, having its registered office
and registered agent in such state; that the following copy is a true and
correct copy of resolutions duly adopted at a meeting of the Board of Directors
of the Company, or by written consent in lieu of a meeting of the Board of
Directors of the Company on or prior to the date of this Certificate, at which a
quorum was present and acting throughout; that said meeting or action by written
consent was duly authorized by the articles or certificate of incorporation and
by-laws of the Company; that true, correct and complete copies of the articles
or certificate of incorporation and the by-laws of said corporation as in effect
on this date are attached hereto as Exhibit 1 and Exhibit 2; respectively; that
the actions taken at such meeting or pursuant to such written consent and
reflected in said resolutions are authorized by the articles or certificate of
incorporation and the by-laws of Company; that said resolutions are now in full
force and effect and have not been modified or amended; that on the date hereof
the persons named below hold the offices of the Company indicated below; and
that the following are the genuine signatures of said officers:
Name Title Signature
___________________________ President _____________________________
___________________________ Vice President _____________________________
___________________________ Secretary _____________________________
___________________________ Assistant Secretary _____________________________
"RESOLVED, that this Company enter into, deliver and perform a certain
guaranty agreement, or reaffirmation of any existing guaranty, in favor of
Wachovia Bank, National Association (the "Lender"), providing generally for the
guaranty of all liabilities and obligations of Immucor, Inc. ("U.S. Borrower"),
Dominion Biologicals, Ltd. ("Canadian Borrower") and Immucor Medizinische
Diagnostik GmbH ("German Borrower"; U.S. Borrower, Canadian Borrower and German
Borrower, collectively, "Borrower") to Lender now in existence or hereafter
created, including without limitation, under extensions of certain lines of
credit to the U.S. Borrower in the maximum aggregate principal amount of
$9,000,000, certain term loans to the U.S. Borrower in the aggregate principal
amount of $26,000,000, a certain term loan to the U.S. Borrower in the amounts
of 2,499,075 Cn$, a line of credit to the Canadian Borrower in the maximum
principal amount of $6,200,000 Cn$ and a line of credit to the German Borrower
in the maximum principal amount of 5,400,000 DM;
RESOLVED FURTHER, that this corporation secure its obligations in respect
of such guaranty by granting to Lender security interests in all, or
substantially all, of its assets, including, without limitation, the stock of
all subsidiaries owned by it;
RESOLVED FURTHER, that the President or any Vice President of this Company
be and each such person is hereby authorized to execute and deliver said
guaranty agreement and any other agreements or documents which said Lender may
require, and to consent and agree to any and all terms to each and every one
thereof;
RESOLVED FURTHER, that the execution and delivery of any writings or the
taking of any other actions in connection with the foregoing by the President or
any Vice President of this Company be and the same is hereby ratified as the act
and deed of this Company, and
RESOLVED FURTHER, that the Secretary or Assistant Secretary of this Company
be and such officer is hereby authorized to affix the seal (if any) of said
Company to any writings executed by the President or any Vice President of the
Company in connection with the foregoing, and to attest the same, but such
affixing and attestation are not required to evidence the same as the act and
deed of this Company."
So certified to as of February __,2001.
(CORPORATE SEAL)
-------------------------------------------------------
Name:
---------------------------------------------------
Title:
--------------------------------------------------
I, _____________________, ___________________ of a [_________________]
_____________ corporation, do certify that ______________________ is the duly
elected and qualified Secretary or Assistant Secretary (as indicated above) of
said Company as of the date hereof, and the keeper of the records and minutes of
the meetings of the Board of Directors of said Company.
So certified to as of February __ 2001.
Name:
---------------------------------------------------
Title:
--------------------------------------------------
EXHIBIT I
SOLVENCY CERTIFICATE
This Certificate is delivered in connection with the Loan Agreement (the
"Loan Agreement"), dated as of February 23, 2001, among WACHOVIA BANK, NATIONAL
ASSOCIATION ("Lender"), a national banking association, IMMUCOR, INC., a Georgia
corporation ("U.S. Borrower"), DOMINION BIOLOGICALS LIMITED, the successor by
amalgamation to 3000524 Nova Scotia Limited and itself a corporation
incorporated under the laws of Canada ("Canadian Borrower"), and IMMUCOR
MEDIZINISCHE DIAGNOSTIK GMBH, a corporation incorporated under the laws of the
Federal Republic of Germany ("German Borrower"; U.S. Borrower, Canadian Borrower
and German Borrower, individually and collectively, "Borrower"). All capitalized
terms used in this Certificate which are defined in the Loan Agreement are used
in this Certificate with the same meanings as provided in the Loan Agreement.
I hereby certify, to the best of my knowledge and belief and in my
representative capacity on behalf of the U.S. Borrower, to the Lender as
follows:
1. I am the duly qualified and acting Chief Financial Officer of the
U.S. Borrower, and in such capacity I am familiar with the financial
affairs of Borrower. I was responsible for and acted on behalf of Borrower
in connection with the negotiation and signing of the Loan Agreement and
the other Loan Documents and in furnishing information to the Lender and
its representatives in connection therewith. I understand that such
information will be used by the Lender in determining whether to enter into
the Loan Agreement on this date. I also understand that the delivery of
such information will also be a condition precedent to the Lender's
obligation to make Loans under the Loan Agreement and that the Lender will
rely on the truth and accuracy of such information in connection with
extensions of credit from time to time to Borrower pursuant to the Loan
Agreement.
2. I have reviewed the contents of this Certificate, and I have
conferred with counsel and accountants for the U.S. Borrower for the
purpose of discussing the meaning of its contents, and I have consulted
with other officers, employees, representatives, advisers and agents of
Borrower and its Subsidiaries with respect to providing this certification.
I have made such other investigations and inquiries as I have deemed
necessary or prudent.
3. Borrower is not now insolvent nor will Borrower's incurrence of all
debt under the Loan Agreement render Borrower "insolvent." "Insolvent" as
used herein means that the sum of Borrower's assets, at their fair
valuation and based on their present fair saleable value, is less than its
debts, including contingent liabilities. As used herein, the term "debt"
means any liability on a claim, and "claim" as used herein means (i) the
right to payment, whether or not such right is reduced to judgment or is
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, or (ii) the right to an
equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is
reduced to judgment or is fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. In reaching the foregoing conclusion, I
have also taken into consideration the probable liabilities, contingent or
otherwise, of Borrower to its creditors after giving effect to the
transactions contemplated by the Acquisition and the Loan Agreement.
4. After the incurrence of its obligations under the Loan Agreement,
Borrower will not have incurred debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be
received by Borrower) and the cash available to Borrower, after taking into
account all other anticipated uses of the cash of Borrower, is anticipated
to be sufficient to pay all such amounts on or in respect of the debts of
Borrower when such amounts are required to be paid.
5. After the incurrence of its obligations under the Loan Agreement,
Borrower will have sufficient capital with which to conduct its present or
proposed business, and the property of Borrower does not constitute
unreasonably small capital with which to conduct its present or proposed
business.
6. Borrower is not entering into the arrangements contemplated by the
Loan Agreement or intending to make any transfer of property or incur any
obligations thereunder with the actual intent to hinder, delay or defraud
either present or future creditors of Borrower.
I represent the foregoing information to be true and correct to my
best knowledge and belief and execute this Certificate, in my
representative capacity on behalf of Borrower, as of this ___ day of ,
__________, ______.
_____________________________________________
______________, Chief Financial Officer of
Immucor, Inc.
EXHIBIT J
FORM OF OPINION OF COUNSEL
February __, 2001
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to Immucor, Inc., a Georgia corporation
("U.S. Borrower"), Dominion Biologicals, Ltd., the successor by amalgamation to
300524 Nova Scotia Limited and itself a corporation incorporated under the laws
of Canada ("Canadian Borrower"), and Immucor Medizinische Diagnostik, GmbH, a
corporation incorporated under the laws of the Federal Republic of Germany
("German Borrower"; U.S. Borrower, Canadian Borrower and German Borrower,
individually and collectively, "Borrower") in connection with that certain Loan
Agreement dated as of even date herewith (the "Loan Agreement") between Borrower
and Wachovia Bank, National Association ("Lender"). In that regard, we have also
acted as counsel to BCA Acquisition Corporation ("BCA"), Gamma Biologicals,
Inc., a Texas corporation ("Gamma") and Gamma Biologicals International, Inc., a
U.S. Virgin Islands corporation ("Gamma International"; BCA, Gamma and Gamma
International, collectively, "Guarantor"; Borrower and Guarantor, collectively,
the "Credit Parties"). Capitalized terms used herein, but not otherwise defined
herein, shall have the meanings ascribed to such terms in the Loan Agreement.
This opinion is delivered to you at Borrower's request pursuant to the Loan
Agreement. In rendering the opinions set forth herein, we have examined the
following documents (items (iii) through (vii) below are herein collectively
called the "Transaction Documents"):
(i) the Credit Parties' respective articles or certificates of
incorporation and bylaws or equivalent organizational documents;
(ii) resolutions of the respective boards of directors of the
Credit Parties with respect to the transactions referred to herein;
(iii) the Loan Agreement;
(iv) the Guaranty Agreement executed by Guarantor (the
"Guaranty");
(v) the Notes;
(vi) the Stock Pledge Agreement; and
(vii) the Security Agreement;
(viii) such other agreements, instruments and documents as we
have deemed necessary or appropriate to enable us to render the
opinions expressed below.
Additionally, we have examined originals or copies, certified to our
satisfaction, of such certificates of public officials and officers and
representatives of the Credit Parties and we have made such inquiries of
officers and representatives of the Credit Parties as we have deemed relevant or
necessary, as the basis for the opinions set forth herein.
In rendering the opinions expressed below, we have, with your consent,
assumed that the signatures of Persons signing all documents in connection with
which this opinion is rendered are genuine (other than Persons signing on behalf
of the Credit Parties), all documents submitted to us as originals or duplicate
originals are authentic and all documents submitted to us as copies, whether
certified or not, conform to authentic original documents. Additionally, we
have, with your consent, assumed and relied upon, the following: (a) the
accuracy and completeness of all certificates and other statements, documents
and records reviewed by us, and the accuracy and completeness of all
representations, warranties, schedules and exhibits contained in the Transaction
Documents, with respect to the factual matters set forth therein;
(b) all parties to the documents reviewed by us (other than the Credit
Parties) are duly organized, validly existing and in good standing under the
laws of all jurisdictions where they are conducting their businesses or
otherwise required to be so qualified, and have full power and authority to
execute, deliver and perform their duties under such documents and all such
documents have been duly authorized, executed and delivered by such parties; and
(c) the proceeds of the initial Loans have been disbursed in whole or in
part and each Transaction Document constitutes the legal, valid and binding
obligation of each party thereto (other than the Credit Parties) enforceable
against such party in accordance with its terms.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual present knowledge of the particular attorneys in the firm who have
represented the Credit Parties during the course of our representation of the
Credit Parties in connection with the Transaction Documents. Except as expressly
set forth herein, we have not undertaken any independent investigation,
examination or inquiry to determine the existence or absence of any facts (and
have not caused the review of any court file or indices) and no inference as to
our knowledge concerning any facts should be drawn as a result of the limited
representation undertaken by us.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that:
1. Each of the Credit Parties is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation as set forth above. Each of the Credit Parties has the requisite
corporate power and authority to own and operate its properties, to lease any
properties it operates under lease, to conduct its business as presently
conducted and to execute and deliver each of the Transaction Documents to which
it is a party.
2. The execution, delivery and performance of each of the Transaction
Documents to which each of the Credit Parties is a party have been duly
authorized by such Credit Party, and each such Transaction Document constitutes
the legal, valid and binding obligation of such Credit Party, enforceable
against such Credit Party in accordance with its terms.
3. Assuming the proceeds of the Loans are used in accordance with the Loan
Agreement, neither the execution and delivery by each of the Credit Parties of
the Transaction Documents to which it is a party, nor the consummation by each
of the Credit Parties of the transactions contemplated thereby: (i) violates any
provision of the Credit Parties' respective articles or certificates of
incorporation or bylaws; (ii) violates any law or regulation (including any
applicable order or decree of any court or governmental instrumentality known to
us) applicable to any Credit Party; (iii) to our knowledge, results in the
breach of, or constitutes a default under, or requires any consent under, any
indenture, mortgage or other agreement to which any Credit Party is a party or
by which any Credit Party or any of its properties are bound; (iv) to our
knowledge, results in the creation or imposition of any lien upon any of the
property of any Credit Party under any indenture, mortgage or other agreement
described in clause (iii) above; or (v) requires the consent or approval of, or
any filing or registration with, any governmental authority other than (a) those
which have been obtained, and (b) any consents, approvals or filings required in
connection with the exercise by the Lender of certain remedies under the
Transaction Documents to the extent required pursuant to the terms thereof.
4. To our knowledge, except as disclosed in the Transaction Documents or
the disclosure schedules thereto, there are no judgments outstanding against any
Credit Party which seek to enjoin or restrict the consummation of the
Acquisition or any part thereof or which, if adversely determined, could
reasonably be expected to have a material adverse effect on the Credit Parties'
consolidated financial condition or business. We have not been retained to
represent any Credit Party with respect to any pending or threatened litigation,
other than matters disclosed in the Transaction Documents or the disclosure
schedules attached thereto.
5. None of the Credit Parties is an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
or, to our knowledge, controlled by such a company. None of the Credit Parties
is a "holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6. Assuming that the proceeds of the Loans are used in accordance with the
Loan Agreement, the making of the Loans will not violate or result in a
violation of Regulation U or X of the Board of Governors of the Federal Reserve
System.
7. The interest rates applicable to the obligations of Borrower under the
Loan Agreement and the Notes do not violate any interest or usury law of the
State of Georgia.
8. Pursuant to the Stock Pledge Agreement, Lender has been granted a valid
security interest in the shares of stock of [each Credit Party] pledged
thereunder which security interest has been perfected by the delivery to Lender
of the certificates evidencing such pledged shares.
9. Pursuant to the Security Agreement, Lender has been granted a valid
security interest in the "Collateral" (as defined therein) which security
interest, as to that portion of the Collateral consisting of property in which
under the Uniform Commercial Code, as in effect in the States of Georgia, Texas
and the U.S. Virgin Islands, a security interest may be perfected by the filing
of a financing statement, such security interest has been perfected by the
filing of financing statements in the offices identified on Annex I hereto.
The opinions expressed herein are based upon and are limited to the laws of
the State of Georgia, the Texas Business Corporation Act, the laws of the U.S.
Virgin Islands (as to which with your permission, we have relied on the opinion
of _______________________, a copy of which is attached hereto), the laws of the
Republic of Germany (as to which, with your permission, we have relied on the
opinion of _________________, a copy of which is attached hereto), and the laws
of Canada (as to which, with your permission, we have relied on the opinion, of
_______________________), and any applicable federal laws of the United States
of America and we express no opinion with respect to the laws of any other state
or jurisdiction.
Our opinions set forth in this letter are based upon the facts in existence
and laws in effect on the date hereof and we expressly disclaim any obligation
to update our opinions herein, regardless of whether changes in such facts or
laws come to our attention after the delivery hereof.
This opinion is solely for the benefit of the Lender in connection with the
execution and delivery of the Loan Agreement. This opinion may not be relied
upon in any manner by any other person and may not be disclosed, quoted, filed
with a governmental agency or otherwise referred to without our prior written
consent.
Very truly yours,
ANNEX I
FINANCING STATEMENTS FILING OFFICES
1. Clerk of Superior Court of Gwinnett County, Georgia
2. Secretary of State of Texas
3. Office of the Lieutenant Governor of U.S. Virgin Islands
EXHIBIT K
TELEPHONE INSTRUCTION LETTER
February __, 2001
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Please refer to that certain Loan Agreement, dated as of _________________,
__________ between you and us ("Loan Agreement").
From any Advances under the ____________ Line of Credit which you make to
us under the Loan Agreement, we hereby authorize and direct you to make
disbursement from time to time for our account to our bank account number
_______________________ maintained with __________ __________________________ of
______________________________, _________________, _________________________
upon receipt of telephone instructions from any of the following persons or
their respective designees:
Name Title
___________________________ _____________________________
___________________________ _____________________________
___________________________ _____________________________
You shall have no liability to us whatsoever for acting upon any such
telephone instruction which you, in good faith, believe was given by any of the
above designated persons or their respective designees and you shall have no
duty to inquire as to the propriety of any disbursement.
You shall have the right to accept the telephone instructions of any of the
above designated persons or their respective designees unless and until actual
receipt by you from us of written notice of termination of the authority of any
such designated persons. We may change persons designated to give you telephone
instructions only by delivering to you written notice of such change.
EXHIBIT L
Form of Borrowing Base Certificate
[See attached]
