Exhibit 10.26
THIRD MODIFICATION OF LOAN AGREEMENT
THIS THIRD MODIFICATION is made as of this 17th day of December, 1999, by and
between IMMUCOR, INC., a Georgia corporation ("Borrower"), and WACHOVIA BANK,
N.A., a national banking association ("Lender").
Statement of Facts
Lender and Borrower are parties to that certain Loan
Agreement, dated as of October 27, 1998, as modified and amended by that certain
First Modification of Loan Agreement, dated as of April 30, 1999 , and as
further modified and amended by that certain Second Modification of Loan
Agreement, dated as of December 10, 1999 (the "Loan Agreement"), pursuant to
which Lender has agreed to make one or more loans from time to time to the
Borrower in accordance with the terms and conditions thereof. Lender and
Borrower desire to modify the Loan Agreement in certain respects, all in
accordance with and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Borrower and Lender do hereby agree that all capitalized terms used herein shall
have the meanings ascribed thereto in the Loan Agreement (except as otherwise
expressly defined or limited herein) and do hereby further agree as follows:
Statement of Terms
1. Amendments of Loan Agreement. Subject to the fulfillment of the
conditions precedent to the effectiveness of this Third Modification which
are set forth below, the Loan Agreement shall be amended from and after
this date as follows:
(a) The Loan Agreement is hereby amended by adding each of the following
definitions to Section 1.1 thereof in the appropriate
alphabetical order:
"Adjusted Interbank Offered Rate" shall mean, with respect to each
Interest Period, the sum of (i) the rate obtained by dividing (A) the
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 the Bank 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 the Third Additional
Term Loan.
"Cn. Dollars" and "Cn.$" shall mean dollars in the lawful currency of
Canada.
"Dollars" shall mean dollars in lawful currency of the United States
of America.
"Dollar Equivalent" shall mean, with respect to any monetary amount in
Cn. Dollars, at any time for the determination thereof, the amount of
Dollars obtained by converting such amount of Cn. Dollars into Dollars at
the spot rate for the purchase of Dollars with Cn. Dollars 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.
"Interbank Offered Rate" means, for any Interest Period, the offered
rate for deposits in Cn. Dollars for a term comparable to such Interest
Period and in an amount comparable to the Third Additional Term Loan, as
such offered rate appears on Telerate Page 3750 as of 11:00 A.M. (London,
England time) on the Interest Determination Date. 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.
"Third Additional Term Loan" shall mean the term loan in the principal
amount of Cn.$5,741,000 to be made by Lender to Borrower pursuant to the
provisions of Section 2.1.5.
"Third Additional Term Note" shall mean this term promissory note,
dated December 17, 1999, as amended or supplemented from time to time, in
the stated principal amount equal to the committed amount of the Third
Additional Term Loan, together with any renewals or extensions thereof, in
whole or in part.
"Third Modification Effective Date" shall mean the date on which all
of the conditions precedent to the effectiveness of that certain Third
Modification to Loan Agreement, dated as of December 17, 1999, between the
Borrower and the Lender, have been satisfied.
(b) The Loan Agreement is hereby amended by amending each of the following
definitions in Section 1.1 ----------- to read as follows:
"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, any day on which dealings with United States
Dollar deposits (or,solely in the case of the third Additional Term Loan
Cn. Dollar deposits) are also being carried out by Lender in the London
interbank Eurodollar market.
"LIBOR Rate" shall mean, except as provided below with respect to the
Third Additional Term Loan, 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 United States 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 United States 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, with respect to the Third
Additional Term Loan "LIBOR Rate" shall mean, with respect to any Interest
Period, the Adjusted 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).
"Loans" shall mean the Advances under the Line of Credit together with
the Acquisition Term Loans, the Additional Term Loans and the Third
Additional Term Loan.
"Notes" shall mean, collectively, the Master Note, the Acquisition
Term Note, the Additional Term Note and the Third Additional Term Note.
"Term Loans" shall mean the Acquisition Term Loans, the Additional
Term Loans and the Third Additional Term Loan.
(c) The Loan Agreement is hereby amended by adding the following Section
2.1.5 thereto:
2.1.5 Third Additional Term Loan. (a) On the Third
Modification Effective Date, and subject to the terms and conditions of
this Agreement, Lender agrees to make the Third Additional Term Loan to
Borrower, the proceeds of which shall be used (after being converted to
Dollars) by Borrower solely to finance the repayment of the outstanding
principal amount of the Second Additional Term Loan. The Debt arising
from the making of the Third Additional Term Loan shall be evidenced by
the Third Additional Term Note, which shall be executed by Borrower and
delivered to Lender on the Third Modification Effective Date. The
principal amount of the Third Additional Term Loan shall be repaid by
the Borrower in installments as provided in the Third Additional Term
Note. In any event on December 1, 2002, the unpaid principal balance of
the Third Additional Term Loan together with all accrued but unpaid
interest thereon shall be due and payable in full. The Third Additional
Term Loan shall bear interest at the Applicable Rate, calculated and
payable in the manner described in Section 2.2.1, from the date thereof
on the unpaid principal amount thereof from time to time outstanding.
The Third Additional Term Loan may be prepaid, in whole or in part, by
Borrower at any time or from time to time hereafter; provided, however,
that any partial prepayment of the Third Additional Term Loan shall be
applied by Lender in the inverse order of the maturities of the
principal installments of the Third Additional Term Loan then remaining
to be paid.
(b) The Third Additional Term Loan shall be repaid by
Borrower in Cn. Dollars. If Borrower for any reason fails to make any
payment of principal or interest on the Third Additional Term Loan in
Cn. Dollars, or if Borrower shall default in the payment when due of
any payment on the Third Additional Term Loan, the Lender may, at its
option, require such payment to be made in the Dollars Equivalent. In
any such case, Borrower agrees to hold the Lender harmless from any
loss incurred by it arising from any change in the value of Dollars in
relation to Cn. Dollars between the date such payment became due and
the date of payment thereof.
(c) If for the purpose of obtaining judgment in any
court or enforcing any such judgment it is necessary to convert any
amount due in Cn. Dollars into Dollars, the Cn. Dollars shall be
converted to the Dollar Equivalent on the Business Day preceding the
date on which judgment is given or any order for payment is made. The
obligation of the Borrower in respect of any amounts due from it under
the Third Additional Term Loan shall, notwithstanding any judgment or
order for a liquidated sum or sums in respect of amounts due hereunder
or any judgment or order in any other currency or otherwise, be
discharged only to the extent that on the day following receipt by
Lender of any payment in a currency other than Cn. Dollars the Lender
is able (in accordance with normal banking procedures) to purchase an
amount of Cn. Dollars with such other currency equal to the amount
owed. If the amount of the Cn. Dollars that the Lender is able to
purchase with such other currency is less than the amount due in Cn.
Dollars, notwithstanding any judgment or order, the Borrower shall
indemnify the Lender for the shortfall.
(d) The Loan Agreement is hereby amended by amending Section 2.2.1(a) to
read as follows:
(a) Initial Rate. The outstanding principal balance of each
Loan (other than the Third Additional 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 the Third Additional Term Loan shall bear interest
at a rate per annum equal to the LIBOR Rate plus the Applicable Margin,
subject to adjustment as provided in subsection (b) below.
(e) The Loan Agreement is hereby amended by amending Section 2.2.1(c) to
read as follows:
(c) Conditions and Limitations on LIBOR Borrowings. All
Borrowings obtained on the Closing Date and for a period of three (3)
Business Days thereafter shall be Prime Borrowings. Thereafter,
Borrower shall have the continuing right, provided that with respect to
Borrowings other than the Third Additional Term Loan no Event of
Default or Default Condition exists, to obtain Borrowings which are
LIBOR Borrowings or to convert Prime Borrowings to LIBOR Borrowings;
subject, however, to the following conditions and limitations: (i)
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; (ii) no more than three (3)
LIBOR Borrowings under each of the Line of Credit, the Acquisition Term
Loans and the Additional Term Loans may be obtained at any time; (iii)
LIBOR Borrowings (other than the Third Additional Term Loan) must be in
minimum amounts of Five Hundred Thousand Dollars ($500,000), or
integral multiples thereof, (iv) the Interest Period for LIBOR
Borrowings in respect of the Line of Credit shall not exceed the
Termination Date; (v) the Interest Periods for, and aggregate amount
of, LIBOR Borrowings in respect of the Acquisition Term Loans, the
Additional Term Loans or the Third Additional Term Loan must be
consistent with, and not exceed, the scheduled principal amortization
thereof; or (vi) if on or prior to the first day of any Interest
Period, Lender determines that deposits in United States Dollars or Cn.
Dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period or that the 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 LIBOR Borrowings
available to Borrower shall be suspended and with respect to the Third
Additional Term Loan the Lender shall designate a substitute index for
calculation of the interest rate which adequately and fairly reflects
the cost to Lender of funding and maintaining the Third Additional Term
Loan; (vii) 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 the Third Additional
Term Loan, so affected shall be converted to a Prime Borrowing
effective immediately and the Third Additional Term Loan shall from the
date of such notice bear interest at an rate equal to an index
designated by the Lender plus the Applicable Margin; (viii) unless
Borrower has timely given Lender a notice of LIBOR Borrowing required
hereinabove, a LIBOR Borrowing (other than the Third Additional Term
Loan) shall automatically convert to Prime Borrowing at the expiration
of the Interest Period corresponding thereto; (ix) no voluntary
prepayment of any LIBOR Borrowing shall be permitted unless Lender has
given its written consent thereto; and (x) upon the request of Lender,
delivered to Borrower, 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 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 (x), 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 United States Dollars of comparable amounts having
terms comparable to such period placed with it by leading banks in the
London interbank market.
(f) The Loan Agreement is hereby amended by amending the last sentence of
Section 2.4 to read as follows:
"Any prepayment made by Borrower under this Section 2.4 shall be
applied, first, to prepay the scheduled installments of the Acquisition
Term Loans in inverse order of maturity until such Loan shall have been
prepaid in full, second, to prepay the scheduled installments of the
Additional Term Loans in inverse order of maturity until such Loans have
been prepaid in full and third to prepay the scheduled installments of the
Third Additional Term Loan in inverse order of maturity until Loans have
been prepaid in full."
2. No Other Amendments. Except for the amendments expressly set forth and
referred to in Sections 1 above, the Loan Agreement shall remain unchanged
and in full force and effect. Nothing in this Third Modification is
intended, or shall be construed, to constitute a novation or an accord and
satisfaction of any of the Borrower's indebtedness or other indebtedness to
the Lender under or in connection with the Loan Agreement (collectively,
the "Obligations") or to modify, affect or impair the perfection or
continuity of Lender's security interests in, security titles to or other
liens on any collateral for the Obligations.
3. Representations and Warranties. To induce Lender to enter
into this Third Modification, the Borrower does hereby warrant, represent and
covenant to Lender that: (a) each representation or warranty of the Borrower set
forth in the Loan Agreement is hereby restated and reaffirmed as true and
correct on and as of the date hereof as if such representation or warranty were
made on and as of the date hereof (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period), and no Default or Event of Default has occurred and is continuing as of
this date under the Loan Agreement as amended by this Third Modification; and
(b) Borrower has the power and is duly authorized to enter into, deliver and
perform this Third Modification and this Third Modification is the legal, valid
and binding obligation of Borrower enforceable against it in accordance with its
terms.
4. Conditions Precedent to Effectiveness of this Third
Modification. The effectiveness of this Third Modification and the amendments
provided herein are subject to the truth and accuracy in all material respects
of the representations and warranties of the Borrower contained in Section 3
above and to the fulfillment of the following additional conditions precedent:
(a) Lender shall have received one or more counterparts of this Third
Modification duly executed and delivered by the Borrower; (b) if and to the
extent required by Lender, any and all guarantors of the Obligations shall have
consented to the execution, delivery and performance of this Third Modification
and all of the transactions contemplated hereby by signing one or more
counterparts of this Third Modification in the appropriate space indicated below
and returning same to Lender; (c) Lender shall have received the Third
Additional Term Note, dated as of the date of this Third Modification and having
a stated principal amount equal to Cn.$5,741.000, duly executed and delivered,
as well as a closing certificate of Borrower and an opinion of Borrower's
counsel (both in form and substance satisfactory to Lender) with respect to this
Third Modification and the Third Additional Term Note.
5. Counterparts. This Third Modification may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of
which when taken together shall constitute one and the same instrument.
6. Governing Law. This Third Modification shall be governed by, and
construed in accordance with, the internal laws of the State of Georgia
applicable to contracts made and performed in such state.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Modification to be duly executed and delivered as of the day and year specified
at the beginning hereof.
BORROWER:
IMMUCOR, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
LENDER:
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxx
Title: President
CONSENT OF GUARANTORS
Each of the undersigned guarantors does hereby consent to the
execution, delivery and performance of the within and foregoing Third
Modification of Loan Agreement.
IN WITNESS WHEREOF, each of the undersigned guarantors has
executed this Consent under seal as of the day and year first above set forth.
GAMMA BIOLOGICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
GAMMA BIOLOGICALS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
BCA ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
