Exhibit 10.27
FOURTH MODIFICATION OF LOAN AGREEMENT
THIS FOURTH MODIFICATION is made as of this 20th day of April, 2000, 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, and as further modified by that certain Third
Modification of Loan Agreement, dated as of December 20, 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
additional 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 Fourth 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:
"Fourth Additional Term Loans" shall mean the term loans in the
aggregate principal amount of $5,000,000 to be made by Lender to Borrower
pursuant to the provisions of Section 2.1.6.
"Fourth Additional Term Loan Commitment" shall mean the Commitment of
Lender to make the Fourth Additional Term Loans pursuant to Section 2.1.6,
which Commitment shall be in the initial amount of $5,000,000 as reduced by
the amount of each Fourth Additional Term Loan that is made.
"Fourth Additional Term Loan Commitment Termination Date" shall mean
May 31, 2001.
"Fourth Additional Term Note" shall mean the term promissory note,
dated April 20, 2000, as amended or supplemented from time to time, in the
stated principal amount equal to the initial Fourth Additional Term Loan
Commitment, together with any renewals or extensions thereof, in whole or
in part.
"Fourth Modification Effective Date" shall mean the date on which all
of the conditions precedent to the effectiveness of that certain Fourth
Modification of Loan Agreement, dated as of April 20, 2000, 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:
"Loans" shall mean the Advances under the Line of Credit together with
the Acquisition Term Loans, the Additional Term Loans, the Third Additional
Term Loan, and the Fourth Additional Term Loans.
"Notes" shall mean, collectively, the Master Note, the Acquisition
Term Note, the Additional Term Note, the Third Additional Term Note, and
the Fourth Additional Term Note.
"Term Loans" shall mean the Acquisition Term Loans, and the Additional
Term Loans, the Third Additional Term Loan, and the Fourth Additional Term
Loans.
(c) The Loan Agreement is hereby amended by adding the following Section
2.1.6 thereto:
2.1.6 Fourth Additional Term Loans. During the period
from the Fourth Modification Effective Date until the Fourth Additional
Term Loan Commitment Termination Date, and subject to the terms and
conditions of this Agreement, Lender agrees to make the Fourth
Additional Term Loans to Borrower, the proceeds of which shall be used
by Borrower solely to finance the repurchase of the outstanding common
stock of the Borrower as permitted by Section 5.5 hereof. Lender's
commitment hereunder to make the Fourth Additional Term Loans shall be
reduced by the amount of each Borrowing thereof. The Debt arising from
the making of the Fourth Additional Term Loans shall be evidenced by
the Fourth Additional Term Note, which shall be executed by Borrower
and delivered to Lender on the Fourth Modification Effective Date. The
principal amount of the Fourth Additional Term Loans shall be repaid by
the Borrower in installments as provided in the Fourth Additional Term
Note. In any event on June 1, 2006, the entire unpaid principal balance
of the Fourth Additional Term Loans together with all accrued but
unpaid interest thereon shall be due and payable in full. The Fourth
Additional Term Loans 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 Fourth Additional Term Loans 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 Fourth
Additional Term Loans shall be applied by Lender in the inverse order
of the maturities of the principal installments of the Fourth
Additional Term Loans then remaining to be paid.
(d) 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 and the Term Loans
(other than the Third Additional Term Loan) 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 any of the Term Loans 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.
(e) The Loan Agreement is hereby amended by adding the following at the end
of Section 2.2.2 (b) thereof:
As additional compensation for Lender's making the Fourth
Additional Term Loan Commitment available to Borrower, Borrower shall
pay Lender, in arrears, on each Payment Date prior to the Fourth
Additional Term Loan Commitment Termination Date as well as on the
Fourth Additional Term Loan Commitment Termination Date, a fully
earned, non-refundable fee for Borrower's non-use of available funds
under the Fourth Additional Term Loan Commitment in an amount equal to
three-eighths of one percent (0.375%) per annum (calculated on the
basis of a 360-day year for actual days elapsed) of the average unused
amount of the Fourth Additional Term Loan Commitment for the
consecutive three month period ending on the day immediately preceding
such Payment Date.
(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 Fourth
Additional Term Loans in inverse order of maturity until such Loans shall
have been prepaid in full, second, to prepay the scheduled installments of
the Third Additional Term Loan in inverse order of maturity until such
Loans have been prepaid in full, third to prepay the scheduled installments
of the Additional Term Loans in inverse order of maturity until such Loans
have been prepaid in full, and fourth to prepay the scheduled installments
of the Acquisition Term Loans in inverse order of maturity until such 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 Fourth 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 Fourth 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 Fourth Modification; and
(b) Borrower has the power and is duly authorized to enter into, deliver and
perform this Fourth Modification and this Fourth 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 Fourth
Modification. The effectiveness of this Fourth 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 Fourth
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 Fourth Modification
and all of the transactions contemplated hereby by signing one or more
counterparts of this Fourth Modification in the appropriate space indicated
below and returning same to Lender; (c) Lender shall have received the Fourth
Additional Term Note, dated as of the date of this Fourth Modification and
having a stated principal amount equal to $5,000,000, 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 Fourth Modification and the Fourth Additional Term Note; and (d)
Lender shall have received payment from Borrower of a closing fee for this
Fourth Modification in the amount of $25,000, which shall be fully earned and
non-refundable upon payment thereof.
5. Counterparts. This Fourth 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 Fourth 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Modification to be duly executed and delivered as of the day and year specified
at the beginning hereof.
BORROWER:
IMMUCOR, INC.
By: /s/ Edward L. Gallup
Edward L. Gallup, President
LENDER:
WACHOVIA BANK, N.A.
By: /s/ Ernesto Moran
Title: President
<PAGE>
CONSENT OF GUARANTORS
Each of the undersigned guarantors does hereby consent to the
execution, delivery and performance of the within and foregoing Fourth
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/ Edward L. Gallup
Edward L. Gallup, President
GAMMA BIOLOGICALS INTERNATIONAL, INC.
By: /s/ Edward L. Gallup
Edward L. Gallup, President
BCA ACQUISITION CORPORATION
By: /s/ Edward L. Gallup
Edward L. Gallup, President
