Exhibit 10.24
FIRST MODIFICATION OF LOAN AGREEMENT
THIS FIRST MODIFICATION is made as of this 30th day of April,
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 (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, and Borrower
has requested that Lender grant certain consents and waivers relating to the
Loan Agreement, 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. Consents. Subject to the fulfillment of the conditions
precedent to the effectiveness of this First Modification which are set forth
below, Lender hereby consents to the following actions of Borrower:
(a) (i) the acquisition by Borrower of the assets of the BCA Division ("BCA") of
Biopool International, Inc., a Delaware corporation, and the formation and
organization by Borrower of BCA Acquisition Corporation, a Georgia corporation
("BCA Acquisition") which will be a wholly-owned subsidiary of Borrower and
which will acquire the assets of BCA; (ii) the acquisition by Borrower of its
Belgian distributor Medichim, S.A., a company organized under the laws of
Belgium ("Medichim"); (iii) the indirect acquisition of Immunochim, s.a.r.l., a
company organized under the laws of France ("Immunochim") and a subsidiary of
Medichim; and (iv) the formation and organization of Immucor Acquisitions Inc.,
S.A. ("Immucor Acquisitions") for the purpose of acquiring the capital stock of
Medichim; and
(b) the dissolution of Delta Diagnostics, Inc., a Texas corporation ("Delta"),
which was an indirect Subsidiary of Borrower.
2. Waivers. Subject to the fulfillment of the conditions
precedent to the effectiveness of this First Modification which are set forth
below, Lender hereby waives any Default or Event of Default under the following
sections of the Loan Agreement, as amended by the amendments set forth in
Section 3 herein, which may arise from the following actions of Borrower:
(a) any Default or Event of Default under Section 5.9 which may arise from
Borrower's (i) acquisition of the assets of BCA, (ii) formation and organization
of BCA Acquisition to hold the assets and assume the liabilities of BCA, (iii)
acquisition of Medichim and (iv) the creation of Immucor Acquisitions to acquire
the capital stock of Medichim; and
(b) any Default or Event of Default under Section 4.6 and Section 5.7 which may
arise from Borrower's dissolution of Delta.
3. Amendments of Loan Agreement. Subject to the fulfillment of
the conditions precedent to the effectiveness of this First 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 deleting the definition of the term
"Line of Credit Limit" in Section 1.1 thereof and by substituting in lieu
thereof the following new definition of such term:
"Lineof Credit Limit" shall mean $5,000,000, subject to reduction pursuant to
Section 2.1.1.
(b) The Loan Agreement is hereby amended by adding the following new sentence at
the end of Section 2.1.1 thereof:
Notwithstanding anything herein to the contrary, the Line of
Credit Amount shall be reduced on each date shown below to the
amount shown opposite such date below, all without further
action by Borrower or Lender:
Reduction Date Line of Credit Limit
December 31, 1999 $4,800,000
March 31, 2000 $4,600,000
June 30, 2000 $4,400,000
September 31, 2000 $4,200,000
December 31, 2000 $4,000,000
March 31, 2001 $3,800,000
June 30, 2001 $3,600,000
September 30, 2001 $3,400,000
December 31, 2001 $3,200,000
March 31, 2002 $3,000,000
(d) The Loan Agreement is hereby amended by deleting the first sentence of
Section 2.1.3. therein in its entirety and by substituting in lieu thereof the
following new first sentence of Section 0.0.0.:
"During the period from the Closing Date through the
Additional Term Loan Commitment Termination Date, and subject
to the terms and conditions of this Agreement, Lender agrees
to make the Additional Term Loans to Borrower, the proceeds of
which shall be used by Borrower solely to finance its
repurchase from time to time of shares of its common stock as
permitted by Section 5.5 hereof and to finance its purchase of
all of the outstanding stock of Medichim and to finance the
purchase of substantially all of the assets of the BCA"
(e) The Loan Agreement is hereby amended by adding to the end of Section 5.2
therein the following new sentence:
"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 Excluded Subsidiary to the
extent permitted by Section 5.13 of this Agreement, and BCA
Acquisition shall be permitted to assume the trade payables
and other current liabilities of BCA in connection with its
acquisition of the assets of BCA."
(f) The Loan Agreement is hereby amended by deleting the "and" prior to
subsection (iii) of Section 5.9 and by adding to the end of such section the
following new subsection:
"; and (iv) the creation by Borrower of Immucor Acquisitions,
Inc., S.A., a company organized under the laws of Belgium ("Immucor
Acquisitions")."
(g) The Loan Agreement is hereby amended by deleting Section 5.13 therein in its
entirety and by substituting in lieu thereof the following new Section 5.13:
"5.13 Excluded Subsidiaries. No Credit Party shall
make any capital contribution, loan or advance to any Excluded
Subsidiary or transfer any assets to any Excluded Subsidiary
or cause to be issued any letter of credit for the benefit of
any creditor of any Excluded Subsidiary provided, however that
a Credit Party shall be permitted to make capital
contributions, loans or advances to any Excluded Subsidiary,
or transfer any assets to any Excluded Subsidiary or cause to
be issued letters of credit for the benefit of any creditor of
any Excluded Subsidiary so long as the aggregate amount of
such transactions does not exceed US $1,500,000 in any Fiscal
Year and so long as no Default Condition or Event of Default
exists or would be caused thereby."
(h) The Loan Agreement is hereby amended by deleting Schedule 3.4, Schedule
3.15, Schedule 3.16, Schedule 5.1 and Schedule 5.2 thereof in their entireties
and by substituting in lieu thereof the following new Schedule 3.4, Schedule
3.15, Schedule 3.16, Schedule 5.1 and Schedule 5.2 attached hereto and
incorporated herein and therein by reference, respectively.
4. Delivery of Stock Pledge Agreements and Additional
Documents. The Borrower shall have until May 7, 1999 to deliver the following
documents:
(a) the Stock Pledge Agreements from (i) Gamma Biologicals, Inc. in favor of
Lender covering 65% of the shares of Gamma Biologicals B.V., a company organized
under the laws of The Netherlands ("Gamma B.V."); (ii) Borrower in favor of
Lender covering 66% of the shares of Immucor Trading Company, a company
organized under the laws of Barbados ("Immucor Trading"); (iii) Borrower in
favor of Lender covering 66% of the shares of Immucor Acquisitions and (iv)
Borrower in favor of Lender covering all of the shares of BCA Acquisition
(collectively, the "Stock Pledge Agreements"); and
(b) the closing documents from Gamma B.V., Gamma International, Immucor Trading,
Immucor Acquisitions and BCA Acquisition of the types described in Sections
10.1.4, 10.1.5 and 10.1.6 of the Loan Agreement (collectively, the "Closing
Documents").
5. No Other Amendments, Consents or Waivers. Except for the
consents, waivers and amendments expressly set forth and referred to in Sections
1 and 3 above, the Loan Agreement shall remain unchanged and in full force and
effect. Nothing in this First 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. The consents and
waivers granted herein are given on a one-time basis only, and nothing contained
herein shall be deemed to permanently modify the provisions of the Loan
Agreement whether through course of dealing, course of conduct or otherwise.
6. Representations and Warranties. To induce Lender to enter
into this First 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 First Modification; and
(b) Borrower has the power and is duly authorized to enter into, deliver and
perform this First Modification and this First Modification is the legal, valid
and binding obligation of Borrower enforceable against it in accordance with its
terms.
7. Conditions Precedent to Effectiveness of this First
Modification. The effectiveness of this First Modification and the consents,
waivers and 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 6 above and to the fulfillment of the following additional
conditions precedent: (a) Lender shall have received one or more counterparts of
this First 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 First
Modification and all of the transactions contemplated hereby by signing one or
more counterparts of this First Modification in the appropriate space indicated
below and returning same to Lender; (c) Lender shall have received the executed
Stock Pledge Agreements described in Section 4(a) above in form and substance
satisfactory to Lender; (d) Lender shall have received a fully earned,
non-refundable additional loan origination fee of $11,250; (e) BCA Acquisition
and Gamma International shall have executed a guaranty agreement in form and
substance satisfactory to Lender guaranteeing Borrower's Obligations under the
Loan Agreement; and (f) Lender shall have received a replacement Master Note
dated as of the date of this Modification and having a stated principal amount
equal to the Line of Credit Limit as amended by this Modification (the
"Replacement Master Note") 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 Modification and the Replacement Master Note.
8. Counterparts. This First 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.
9. Governing Law. This First 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 First
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 First
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
