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Exhibit 10.29
AMENDMENT NO. 1 AND WAIVER
DATED AS OF NOVEMBER 14, 1997
TO
LOAN AND SECURITY AGREEMENT
DATED AS OF SEPTEMBER 12, 1997
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[EXECUTION COPY]
AMENDMENT NO. 1 AND WAIVER
DATED AS OF NOVEMBER 14, 1997
TO
LOAN AND SECURITY AGREEMENT
DATED AS OF SEPTEMBER 12, 1997
THIS AMENDMENT NO. 1 AND WAIVER dated as of November 14, 1997
(this "Amendment") is made between NABI, a Delaware corporation (the
"Borrower"), the financial institutions party from time to time to the Loan
Agreement referred to below (the "Lenders"), and NATIONSBANK, N.A., a national
banking association, as agent for the Lenders (in that capacity, together with
any successors in that capacity, the "Agent").
PRELIMINARY STATEMENTS
The Borrower, the Lenders, and the Agent are parties to a Loan
and Security Agreement dated as of September 12, 1997 (the "Loan Agreement";
terms defined in the Loan Agreement and not otherwise defined herein being used
herein as therein defined).
A Default has occurred and is continuing under the Loan
Agreement by reason of the Borrower's failure to maintain a minimum consolidated
Fixed Charge Coverage Ratio of at least 1.10 to 1 for the Fiscal Quarter ending
on September 30, 1997, as required under Section 10.1(a) of the Loan Agreement
(the "Existing Default"), as a result of which the Lenders are entitled to
exercise the rights and remedies provided for in the Loan Agreement.
The Borrower has requested that the Lenders waive the Existing
Default, modify certain financial covenants and amend certain other provisions
of the Loan Agreement, and the Lenders have agreed, upon and subject to the
terms, conditions and provisions of this Amendment.
NOW, THEREFORE, in consideration of the Loan Agreement, the
Loans made by the Lenders and outstanding thereunder, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is
hereby amended, subject to the provisions of Section 3 of this Amendment
(a) by amending Section 1.1 DEFINITIONS thereof
(i) by amending the definition of "Applicable Margin" by
adding a new sentence at the end thereof to read as follows:
"So long as the consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries for the four consecutive Fiscal Quarters most
recently ended is less than $18,000,000, the Applicable Margin as
determined above shall in each case be increased by .25%".
(ii) by amending the definition of "Fixed Charge Coverage
Ratio" in its entirety to read as follows:
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"FIXED CHARGE COVERAGE RATIO" means for any specified
period, the ratio obtained by dividing (i) the sum of EBITDA minus cash
outlays for income taxes, minus Maintenance Capex and minus Other
Included Expenditures of the Borrower and its Consolidated Subsidiaries
for such period, by (ii) the sum of interest expense plus scheduled
principal payments on Debt (other than the Loans), including scheduled
payments of Capitalized Lease Obligations, of the Borrower and its
Consolidated Subsidiaries during such period. For the purposes of this
definition "Other Included Expenditures" means any expenditures during
the computation period for a Permitted Repurchase or for Excess
Permitted Capital Expenditures or for Permitted Investments listed on
Schedule 1.1A (other than the 1st, 4th and 5th items listed on such
Schedule) made after the Effective Date that are not included in the
Capital Expenditures budgeted by the Borrower for such period and
subject to the limitations of SECTION 10.5.
(iii) by amending subsection (b) of the definition of
"Permitted Investments" in its entirety to read as follow:
(b) Investments of the Borrower and its Subsidiaries in:
(i) the Borrower's Subsidiaries existing on the
Effective Date,
(ii) Guaranties permitted pursuant to SECTION 10.3,
(iii) those items described on SCHEDULE 1.1A -
PERMITTED INVESTMENTS,
(iv) an Investment in any entity approved in writing
by the Required Lenders in an aggregate amount not in excess
of $10,000,000, funded exclusively with the proceeds of the
issuance and sale by the Borrower of additional common or
convertible preferred stock of the Borrower, and
(v) other Investments not in excess of $500,000
individually or $1,000,000 in the aggregate at any time
outstanding.
(b) by amending Section 10.1 FINANCIAL RATIOS in its entirety to read
as follows:
SECTION 10.1 FINANCIAL RATIOS. Permit:
(a) MINIMUM FIXED CHARGE COVERAGE. The consolidated Fixed Charge
Coverage Ratio of the Borrower and its Consolidated Subsidiaries as of the end
of any Fiscal Quarter ending during any period described
below to be less than the ratio set forth below opposite such period:
PERIOD RATIO
------ -----
Fiscal Quarter ending December 31, 1997 .36 to 1;
the two consecutive Fiscal Quarters ending
March 31, 1998 .52 to 1;
the three consecutive Fiscal Quarters ending
June 30, 1998 .62 to 1;
the four consecutive Fiscal Quarters ending
September 30, 1998 .76 to 1;
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the four consecutive Fiscal Quarters ending
December 31, 1998 1.0 to 1;
each four consecutive Fiscal Quarter period
ending during Fiscal Year 1999 1.1 to 1; or
each four consecutive Fiscal Quarter period
ending thereafter 1.25 to 1.
(b) MINIMUM EBITDA Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries for each Fiscal Year set forth below to be less than
the amount set forth opposite such Fiscal Year:
FISCAL YEAR AMOUNT
----------- ------
December 31, 2000 $32,000,000
December 31, 2001 $36,000,000
(c) MINIMUM CONSOLIDATED NET WORTH. Permit consolidated Net
Worth of the Borrower and its Consolidated Subsidiaries calculated at the end of
any Fiscal Quarter ending on or after December 31, 1997 to be less than an
amount equal to the sum of $79,000,000 PLUS 50% of the consolidated Net Income
(without deduction for losses) of the Borrower and its Consolidated
Subsidiaries, on a cumulative basis, for the period beginning on October 1, 1997
and ending on the last day of such Fiscal Quarter.
(c) by amending Section 10.15 MINIMUM COLLATERAL AVAILABILITY by
deleting the amount of "$2,000,000" therein and substituting therefor the amount
of "$5,000,000".
Section 2. WAIVER OF DEFAULT. On the Amendment Effective Date
(as hereinafter defined) the Lenders hereby waive the Existing Default.
Section 3. EFFECTIVENESS OF AMENDMENT. Section 1 of this
Amendment shall become effective as of the first date (the "Amendment Effective
Date") on which the Lenders shall have received four copies each of the
following documents (except that on the Amendment Effective Date, the
effectiveness of the "Applicable Margin" definition, as amended herein, shall be
retroactive to October 1, 1997 and the effectiveness of Section 2 of this
Amendment shall be retroactive to November 14, 1997):
(a) this Amendment duly executed and delivered by the Borrower, each
Lender and the Agent;
(b) a certificate of the Secretary of the Borrower having attached
thereto the articles or certificate of incorporation and bylaws of the Borrower
as in effect on the Amendment Effective Date attached thereto (or containing the
certification of such Secretary that no amendment or modification of such
articles or certificate or bylaws has become effective since the last date on
which such documents were delivered to the Lenders pursuant to the Loan
Agreement), all corporate and partnership action, including shareholders' or
partners' approval, if necessary, taken by the Borrower and/or its shareholders
or partners to authorize the execution, delivery and performance of this
Amendment, and to the further effect that the incumbency certificate delivered
in connection with the occurrence of the Effective Date remains in effect,
unchanged;
(c) a certificate of the president or any vice-president of the
Borrower stating that, to the best of his knowledge and based on an examination
reasonably believed by him to be sufficient to enable him to make an informed
statement,
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(i) after giving effect to the waiver set forth in Section 2
of this Amendment, all of the representations and warranties
made or deemed to be made under the Loan Agreement are true
and correct as of the date hereof, and
(ii) after giving effect to the waiver set forth in Section 2
of this Amendment, no Default or Event of Default exists, and
the Agent shall be satisfied as to the truth and accuracy
thereof;
(d) the Confirmation of Guarantors attached hereto as ANNEX A duly
executed and delivered by each Guarantor;
(e) the payment of an amendment fee in the amount of $50,000 and all
accrued interest resulting from the amendment to the Applicable Margin; and
(f) such other documents and instruments as the Agent or any Lender may
reasonably request.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
makes the following representations and warranties to the Agent and the Lenders,
which representations and warranties shall survive the delivery of this
Amendment and the making of additional Loans under the Loan Agreement as amended
hereby:
(a) AUTHORIZATION OF AGREEMENTS. The Borrower has the right and power,
and has taken all necessary action to authorize it, to execute, deliver and
perform this Amendment and each other agreement contemplated hereby to which it
is a party in accordance with their respective terms. This Amendment and each
other agreement contemplated hereby to which it is a party have been duly
executed and delivered by the duly authorized officers of the Borrower and each
is, or each when executed and delivered in accordance with this Amendment will
be, a legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(b) COMPLIANCE OF AGREEMENTS WITH LAWS. The execution, delivery and
performance of this Amendment and each other agreement contemplated hereby to
which the Borrower is a party in accordance with their respective terms do not
and will not, by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its
Subsidiaries,
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or
by-laws or any shareholders' agreement of the Borrower or any
of its Subsidiaries, any material provisions of any indenture,
agreement or other instrument to which the Borrower, any of
its Subsidiaries or any of Borrower's or such Subsidiaries'
property may be bound or any Governmental Approval relating to
the Borrower or any of its Subsidiaries, or
(iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower other than the Security
Interest.
Section 5. EXPENSES. The Borrower agrees to pay or reimburse
on demand all costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel, incurred by the Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment.
Section 6. EFFECT OF AMENDMENT. From and after the Amendment
Effective Date, all references in the Loan Agreement and in any other Loan
Document to "this Agreement," "the Loan
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Agreement," "hereunder," "hereof" and words of like import referring to the Loan
Agreement, shall mean and be references to the Loan Agreement as amended by this
Amendment. Except as expressly amended hereby, the Loan Agreement and all terms,
conditions and provisions thereof remain in full force and effect and are hereby
ratified and confirmed. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
Section 7. COUNTERPART EXECUTION; GOVERNING LAW.
(a) EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed signature page of any party hereto by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
(b) GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER
NABI
[CORPORATE SEAL]
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
Senior Vice President and
Attest: Chief Financial Officer
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
AGENT
NATIONSBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
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Title: Vice President
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LENDERS
NATIONSBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
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Title: Vice President
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BANKBOSTON, N.A.
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
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Title: Director
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ANNEX A
CONSENT AND CONFIRMATION OF GUARANTORS
The undersigned, each in their capacity as a Guarantor under
the Subsidiary Guaranty dated as of September 12, 1997 (as modified or amended
to date, the "Subsidiary Guaranty"), in favor of the Lenders, hereby confirms,
for the benefit of the Borrower and the Lenders, that (1) such Guarantor is a
Subsidiary of Borrower, (2) such Guarantor has received a copy of Amendment No.
1 and Waiver dated as of November 14, 1997 and consents thereto and (3) the
Subsidiary Guaranty of which such Guarantor is the maker constitutes a
continuing unconditional, guaranty of the Secured Obligations under and as
defined in the Subsidiary Guaranty. Each of the undersigned is and continues to
be liable under the Subsidiary Guaranty in accordance with the terms thereof,
notwithstanding the execution and delivery of the aforesaid Amendment.
Dated: December 27, 1997
BIOMUNE CORPORATION
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Treasurer
NABI FINANCE, INC.
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President
NABIMED, LTD.
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Secretary
UNIVAX PLASMA, INC.
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Treasurer and Chief Financial Officer
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