Exhibit 99.5
WAIVER AND SECOND AMENDMENT
TO SECURITIES PURCHASE AGREEMENT
This Waiver and Second Amendment to Securities Purchase Agreement
(this "Amendment") is entered into effective as of April 10, 2001 by and among
SeraCare, Inc., a Delaware corporation (the "Company"), each of the subsidiaries
of the Company named on the signature pages hereto (individually, a "Subsidiary"
and, collectively, the "Subsidiaries"), and each of the investors named on the
signature pages hereto (the "Investors").
RECITALS
WHEREAS, the Company, the Investors and certain of the Subsidiaries
are parties to that certain Securities Purchase Agreement, dated as of February
13, 1998 (as amended or modified from time to time including, without
limitation, pursuant to that certain Waiver and First Amendment to Securities
Purchase Agreement dated as of December 21, 1998, the "Securities Purchase
Agreement");
WHEREAS, the Company has requested credit be extended to it for its
benefit and the benefit of its Subsidiaries pursuant to the terms of that
certain Credit Agreement dated as of April __, 2001 by and among the Company,
Sanwa Bank California, as Administrative Agent (the "Administrative Agent"),
Sanwa Bank California., as Collateral Agent (the "Collateral Agent"), the
Issuing Bank and the Lenders party thereto a copy of which is attached hereto as
Exhibit A (as amended or modified from time to time, the "Sanwa Agreement").
WHEREAS, the Company has also recently incurred certain bridge
indebtedness in amounts approved by the Board of Directors of the Company (the
"Bridge Debt");
WHEREAS, in connection with the Sanwa Agreement and the repayment of
the Bridge Debt, the parties hereto desire to enter into this Amendment for the
purpose of amending certain provisions contained in the Securities Purchase
Agreement and to evidence a limited waiver by the Investors of compliance by the
Company and the Subsidiaries with certain other covenants contained in the
Securities Purchase Agreement;
NOW, THEREFORE. in consideration of the foregoing recitals, the
parties hereto, intending to be legally bound, agree as follows:
I. Terms Defined In Securities Purchase Agreement. All capitalized terms used
herein without definition but which are defined in the Securities Purchase
Agreement shall have the same meaning herein as therein, all of such terms
and their definitions being incorporated herein by reference.
II. Amendments to Agreement. The Securities Purchase Agreement is hereby
amended as follows:
1.1 Section 7A(i) is amended to add the following at the end
thereof: "Notwithstanding the foregoing, at any time the Company has complied
with the provisions of 9(k)(2) of that certain Credit Agreement dated as of
April __, 2001 by and among the Company, Sanwa Bank California, as
Administrative Agent, Sanwa Bank California, as Collateral Agent, the Issuing
Bank and the Lenders party thereto (as amended, modified, waived, extended,
refinanced or renewed from time to time, the "Sanwa Agreement"), the Company and
its Subsidiaries shall be deemed to have complied with this Section 7A(i) and
any other provision hereof relating to the Funded Debt Ratio."
1.2 Section 7A(ii) is amended to add the following at the end
thereof: "Notwithstanding the foregoing, at any time the Company has complied
with the provisions of Section 9(k)(4) of the Sanwa Agreement, the Company and
its Subsidiaries shall be deemed to have complied with this Section 7A(ii) and
any other provision hereof relating to the Fixed Charge Coverage Ratio."
1.3 Section 7B(i) is amended and replaced in its entirety as
follows:
"(i) Senior Debt from time to time in an amount not to exceed
the product obtained by multiplying the amount of the
Company's consolidated EBITDA for the preceding twelve
calendar months by two; provided, however, that Senior Debt
outstanding under the Sanwa Agreement shall at all times be
permitted under this clause (i)."
1.4 Section 7B(iv) is amended and restated in its entirety as
follows:
"(iv) Indebtedness secured by Liens permitted pursuant to
Section 7C, other Indebtedness not to exceed $500,000 incurred
in any fiscal year, Indebtedness reflected on Exhibit G to the
Sanwa Agreement, a copy of which is attached as Schedule A to
the Waiver and Security Amendment to Securities Purchase
Agreement dated as of April ___, 2001; and intercompany
indebtedness between or among the Company and any of its
wholly-owned subsidiaries;"
1.5 Section 7C(iii) is amended and restated in its entirety as
follows:
"(iii) Liens made to secure Senior Debt and Permitted Liens
(as defined in the Sanwa Agreement);"
1.6 Section 7.D is amended to add the following after the second
sentence of Section 7D:
"Notwithstanding the foregoing, nothing herein shall prohibit
the making of a Restricted Payment by any Subsidiary to the
Company or a wholly-owned Subsidiary of the Company."
1.7 Section 7E(v) is amended and restated in its entirety as
follows:
"(v) make or permit to remain outstanding loans or advances to
the Company or any wholly-owned Subsidiary."
1.8 Section 7N(b) is amended to add the following at the end of
Section 7B(b); "and except Indebtedness expressly permitted herein."
1.9 Section 7O is amended to add the following at the end of the
first sentence of Section 7O: "and except for Liens permitted under Section 7C".
1.10 The following is added as Section 4I of the Securities Purchase
Agreement:
"4I. Prepayment of Senior Subordinated Debentures and Required
Purchase of Warrants: "Notwithstanding anything to the contrary contained
herein, the Company will not be required to (i) repay or prepay all or any part
of the Senior Subordinated Debentures or (ii) repurchase from the holders of the
Warrants all or any part of the Warrants, unless such action is permitted
pursuant to Section 9(e)(2) of the Sanwa Agreement (as hereinafter defined)."
III. Waivers.
1.11 Sanwa Agreement. Each of the Investors hereby waives compliance
by the Company and the Subsidiaries with the covenants contained in the
Securities Purchase Agreement, including Sections 7A, 7B, 7G and 7K(iii)
thereof, to the extent that the execution, delivery or performance of the Sanwa
Agreement would otherwise cause the Company and the Subsidiaries to not be in
compliance with such covenants.
1.12 Bridge Debt. Each of the Investors hereby waives compliance by
the Company and the Subsidiaries with the covenants contained in the Securities
and Purchase Agreement, including Sections 7A, 7B and 7G thereof, to the extent
that the execution, delivery or performance of the Bridge Debt would otherwise
cause the Company and the Subsidiaries to not be in compliance with such
covenants.
1.13 Addition of Subsidiary. attached hereto as Exhibit B is a copy
of an acknowledgment letter (the "Acknowledgment Letter") pursuant to which
SeraCare Life Sciences, Inc., a Delaware corporation and subsidiary of the
Company ("SeraCare Life Sciences"), acknowledges its obligations under Section
6R of the Securities Purchase Agreement. Each of the Investors hereby
acknowledges receipt of the Acknowledgment Letter and waives earlier compliance
by the Company and SeraCare Life Sciences with Section 6R of the Securities
Purchase Agreement with respect to the event of SeraCare Life Sciences becoming
a Subsidiary. In addition, SeraCare Life Sciences has executed valid counterpart
signature pages to both the Securities Purchase Agreement and the Subsidiary
Guarantee Agreement, dated as of February 13, 1998 (collectively, the
"Agreements"), by which it becomes a bound party to and assumes all of the
obligations of a Guarantor under both Agreements.
1.14 Limitation on Waiver. Section 3 to this Amendment shall be
effective only in the specific instance and for the specific purpose set forth
herein and does not allow any other or further departure from the terms of the
Securities Purchase Agreement, which terms shall remain in full force and
effect.
IV. Reference to the Securities Purchase Agreement. The parties hereto hereby
agree (i) to incorporate all terms and conditions as set forth in the
Securities Purchase Agreement, in their entirety, other than such
provisions specifically amended or waived by this Amendment, and (ii) that
such provisions incorporated by reference shall remain in full force and
effect.
V. Successors and Assigns. All covenants and agreements in this Amendment
shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto.
VI. Governing Law. This Amendment is being delivered and is intended to be
performed in the State of New York, and shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the
law of such state without giving effect to the choice of law or conflicts
of law principles thereof.
VII. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
VIII. Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original, and it shall not be necessary in making
proof of this Amendment to produce or account for more than one such
counterpart.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
SERACARE, INC. BHM LABS, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Its: Chairman of the Board, President Its: Chairman of the Board, President
and Chief Executive Officer and Chief Executive Officer
AMERICAN PLASMA, INC. SERACARE ACQUISITIONS, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Its: Chairman of the Board, President Its: Chairman of the Board, President
and Chief Executive Officer and Chief Executive Officer
AVRE, INCORPORATED SERACARE TECHNOLOGY, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Its: Chairman of the Board, President Its: Chairman of the Board, President
and Chief Executive Officer and Chief Executive Officer
By: ________________________________
Name:________________________________
Its: ________________________________
BINARY ASSOCIATES, INC. THE WESTERN STATE GROUP, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Its: Chairman of the Board, President Its: Chairman of the Board, President
and Chief Financial Officer and Chief Executive Officer
SERACARE LIFE SCIENCES, INC.
By:
---------------------------------
Xxxxx X. Xxxxx
Its: Chairman of the Board, President
and Chief Financial Officer
INVESTORS:
DELAWARE STATE EMPLOYEES' RETIREMENT FUND
By: Pecks Management Partners Ltd.
Its Investment Advisor
By:
---------------------------------
Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By:
---------------------------------
Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT PLAN OF ZENECA
HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By:
---------------------------------
Xxxxxx X. Xxxxxx
Managing Director
THE X.X. XXXXXXXXX FAMILY FOUNDATION
By: Pecks Management Partners Ltd.
Its Investment Advisor
By:
---------------------------------
Xxxxxx X. Xxxxxx
Managing Director
LIST OF OMITTED EXHIBITS
The following Exhibit to the Waiver and Second Amendment to the Securities
Purchase Agreement has been omitted from this Exhibit and shall be furnished
supplementally to the Commission upon request:
EXHIBIT A Revolving Credit, Term Loan and Security Agreement
