EXHIBIT 10.2.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made as of the
27th day of September, 2005, among CRYOLIFE, INC., a Florida corporation
("Parent"), each of Parent's Subsidiaries identified on the signature pages
hereof (such Subsidiaries, together with Parent, are referred to hereinafter
each individually as a "Borrower" and individually and collectively, jointly,
and severally, as the "Borrowers") and XXXXX FARGO FOOTHILL, INC., a California
corporation ("Lender"),
W I T N E S S E T H:
WHEREAS, Borrowers and Lender are parties to that certain Credit Agreement
dated as of February 8, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; unless otherwise defined
herein, all capitalized terms used in this Amendment shall have the meanings
ascribed to such terms in the Credit Agreement); and
WHEREAS, Borrowers and Lender desire to amend the Credit Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendment to Section 7.7. Section 7.7 of the Credit Agreement is hereby
modified and amended by deleting such section in its entirety and by
substituting the following therefor:
"If one or more judgments or settlements involving an aggregate amount of
$1,000,000, or more (except to the extent covered by insurance pursuant to which
the insurer has accepted liability therefor in writing and except to the extent
set forth on Schedule 7.7 and only in an aggregate amount up to the amount
therein indicated,) shall be entered or filed against (or, in the case of a
settlement claim, entered into by) any Borrower or any Subsidiary of any
Borrower or with respect to any of their respective assets, and (except in the
case of a settlement) the same is not released, discharged, bonded against, or
stayed pending appeal before the earlier of 30 days after the date it first
arises or 5 days prior to the date on which such asset is subject to being
forfeited by the applicable Borrower or the applicable Subsidiary;"
2. Amendment to Exhibit C-1. Exhibit C-1 to the Credit Agreement, "Form of
Compliance Certificate" is hereby modified and amended by deleting such exhibit
in its entirety and by substituting Exhibit C-1, attached hereto, therefor.
3. Amendment to Schedule 7.7. The Credit Agreement is hereby modified and
amended by incorporating Schedule 7.7, attached hereto, thereto.
4. No Other Amendments. Except for the amendments expressly set forth
above, the text of the Credit Agreement and all other Loan Documents shall
remain unchanged and in full force and effect. Each Borrower acknowledges and
expressly agrees that Lender reserves the right to, and does in fact, require
strict compliance with all terms and provisions of the Credit Agreement.
5. Conditions of Effectiveness. This Amendment shall become effective as of
the date hereof when, and only when, Lender shall have received:
(a) counterparts of this Amendment duly executed by each Borrower; and
(b) such other information, documents, instruments or approvals as Lender
or Lender's counsel may require.
6. Representations and Warranties of Borrowers. Each Borrower represents
and warrants as follows:
(a) Each Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Borrower of this
Amendment are within such Borrower's corporate powers, have been duly authorized
by all necessary corporate action and do not (i) contravene such Borrower's
charter or by-laws, or (ii) violate the law or any material contractual
restriction binding on or affecting such Borrower.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by any Borrower of this Amendment.
(d) Each representation or warranty of each Borrower set forth in the
Credit Agreement is hereby restated and reaffirmed as true and correct on and as
of the date of this Amendment, and after giving effect to this Amendment, as if
such representation or warranty were made on and as of the date of, and after
giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or period
and except to the extent of changes in facts or circumstances permitted by the
terms of the Credit Agreement).
(e) This Amendment constitutes the legal, valid and binding obligation of
each Borrower, enforceable against such Borrower in accordance with its terms.
(f) No Default or Event of Default is existing.
7. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment, on and after the date hereof
each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to "the Credit Agreement," "thereunder,"
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other Loan Documents, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. No Borrower has any knowledge
of any challenge to Lender's claims arising under the Loan Documents or the
effectiveness of the Loan Documents.
(c) 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 Lender under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents. This Amendment shall not constitute a
modification of the Credit Agreement or a course of dealing with Lender at
variance with the Credit Agreement such as to require further notice by Lender
to require strict compliance with the terms of the Credit Agreement and the
other Loan Documents in the future, except as expressly set forth herein.
8. Costs and Expenses. Borrowers, jointly and severally, agree to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder,
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including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for Lender with respect thereto and with respect to advising Lender as
to its rights and responsibilities hereunder and thereunder.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to conflict of
laws principles of such state.
10. Loan Document. This Amendment shall be deemed to be Loan Documents for
all purposes.
11. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission or by e-mail transmission of an adobe
file format document (also known as a PDF file) shall be as effective as
delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first written above.
CRYOLIFE, INC.,
a Florida corporation, as a Borrower
By: /s/ X.X. Xxx
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Title: EVP, COO & CFO
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CRYOLIFE TECHNOLOGY, INC.,
a Nevada corporation, as a Borrower
By: /s/ X.X. Xxx
-----------------------------
Title: V.P. Finance
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AURAZYME PHARMACEUTICALS, INC.,
a Florida corporation, as a Borrower
By: /s/ X.X. Xxx
-----------------------------
Title: V.P. Finance & CFO
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XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Lender
By: /s/
-----------------------------
Title: Vice President
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EXHIBIT C-1
FORM OF COMPLIANCE CERTIFICATE
[on Parent's letterhead]
To: Xxxxx Fargo Foothill, Inc.
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000.
Attn: Business Finance Division Manager
Re: Compliance Certificate dated _________________
Ladies and Gentlemen:
Reference is made to that certain CREDIT AGREEMENT (the "Credit Agreement")
dated as of February 8, 2005, as modified by that certain First Amendment to
Credit Agreement dated as of September ___, 2005 by and among XXXXX FARGO
FOOTHILL, INC., a California corporation, (together with its successors and
assigns, "Lender"), CRYOLIFE, INC. ( "Parent"), and each of its Subsidiaries
party thereto. Capitalized terms used in this Compliance Certificate have the
meanings set forth in the Credit Agreement unless specifically defined herein.
Pursuant to Schedule 5.3 of the Credit Agreement, the undersigned officer
of Parent hereby certifies that:
1. The financial information of Parent and its Subsidiaries furnished in
Schedule 1 attached hereto, has been prepared in accordance with GAAP (except
for year-end adjustments and the lack of footnotes), and fairly presents in all
material respects the financial condition of Parent and its Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has
made, or caused to be made under his/her supervision, a review in reasonable
detail of the transactions and condition of Parent and its Subsidiaries during
the accounting period covered by the financial statements delivered pursuant to
Schedule 5.3 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date
hereof, and the undersigned does not have knowledge of the existence as of the
date hereof, of any event or condition that constitutes a Default or Event of
Default, except for such conditions or events listed on Schedule 2 attached
hereto, specifying the nature and period of existence thereof and what action
Parent and its Subsidiaries have taken, are taking, or propose to take with
respect thereto.
4. The representations and warranties of Parent and its Subsidiaries set
forth in the Credit Agreement and the other Loan Documents are true and correct
in all material respects on and as of the date hereof (except to the extent they
relate to a specified date), except as set forth on Schedule 3 attached hereto.
5. Parent and its Subsidiaries are in compliance with the applicable
covenants contained in Section 6.16 of the Credit Agreement as demonstrated on
Schedule 4 hereof. In addition, if the covenant being tested is solely Section
6.16(a), Schedule 4 also includes a calculation of EBITDA, the BioGlue Gross
Margin and an indication of whether Excess Availability fell below the amount
set forth in Section 6.16(b)(iii) of the Credit Agreement on any day during the
preceding fiscal quarter.
IN WITNESS WHEREOF, this Compliance Certificate is executed by the
undersigned this _____ day of _______________, 2005.
CRYOLIFE, INC.
By:
---------------------------
Name:
-------------------------------
Title:
---------------------------
CRYOLIFE TECHNOLOGY, INC.
By:
---------------------------
Name:
-------------------------------
Title:
---------------------------
AURAZYME PHARMACEUTICALS, INC.
By:
---------------------------
Name:
-------------------------------
Title:
---------------------------
SCHEDULE 1
FINANCIAL INFORMATION
SCHEDULE 2
DEFAULT OR EVENT OF DEFAULT
SCHEDULE 3
REPRESENTATIONS AND WARRANTIES
SCHEDULE 4
FINANCIAL COVENANTS
1. Average Excess Availability plus Qualified Cash for the fiscal quarter ended
__________, 200_, is $__________, which [IS/IS NOT] greater than or equal to the
amount set forth in Section 6.16(a) of the Credit Agreement.
2.
a. MINIMUM EBITDA.
Parent's and its Subsidiaries' EBITDA, measured on a quarter-end basis, for
the twelve month period ending _________, 200_ is $______________, which amount
[is/is not] greater than or equal to the amount set forth in Section 6.16(b)(i)
of the Credit Agreement for the corresponding period.
b. MINIMUM BIOGLUE GROSS MARGIN.
Parent's and its Subsidiaries' BioGlue Gross Margin, measured on a fiscal
quarter-end basis, for the twelve month period ending _________, 200_ is ___%,
which [is/is not] greater than or equal to the amount set forth in Section
6.16(b)(ii) of the Credit Agreement for the corresponding period.
c. EXCESS AVAILABILITY.
Parent's and its Subsidiaries' Excess Availability plus Qualified Cash for
every day in the fiscal quarter ending ___________, 200_ [did/did not] exceed
the amount set for in Section 6.16(b)(iii) of the Credit Agreement.
Schedule 7.7
Judgments and Settlements
1. In re CryoLife, Inc. Securities Litigation. United States District Court,
Northern Division of Georgia, Atlanta Division. (Civil Action No. 1:02-CV-1868
BBM). A Stipulation of Settlement to be entered into between "Lead Plaintiffs",
Xxxx and Xxxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxx X. Xxxxxx, on behalf of
themselves and each of the class members and defendants CryoLife, Inc., Xxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx Xxx, and Xxxxx X. Xxxxxx Wyk. An amount
not to exceed $23,250,000 in the aggregate (with not less than $11,000,000
covered by insurance with respect to which the insurers have accepted
liability). So long as no Change of Control would be caused thereby, CryoLife,
Inc. has the option of funding $3,750,000 of the settlement with CryoLife common
stock or cash.
