Exhibit 10.1
|
***
|
Confidential
treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been
designated by an asterisk and has been filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and the
Commission’s rules and regulations promulgated under the
Freedom of Information Act, pursuant to a request for confidential
treatment.***
|
AMENDMENT NO. 3 TO
REVOLVING/TERM CREDIT AND
SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO
REVOLVING/TERM CREDIT AND SECURITY AGREEMENT (this
“Amendment”), dated as of October 3, 2005, is
entered into by and among the financial institutions listed on the
signature pages hereof (individually, a “Lender” and
collectively, the “Lenders”), UNION BANK OF CALIFORNIA,
N.A., as Administrative Agent, BROWN BROTHERS HARRIMAN &
CO., as Collateral Agent, and SERACARE LIFE SCIENCES, INC., a
California corporation (the “Borrower”), with reference
to the following facts:
RECITALS
A. The Borrower, the Lenders, the
Administrative Agent and the Collateral Agent are parties to the
Revolving/Term Credit and Security Agreement, dated as of
September 14, 2004, as amended (collectively, the
“Credit Agreement”), pursuant to which the Lenders have
provided the Borrower with a revolving loan, a term loan and a
letter of credit facility.
B. The Borrower the Lenders, the
Administrative Agent and the Collateral Agent wish to amend the
Credit Agreement to increase the Aggregate Revolving Loan
Commitment by $15,000,000, from $10,000,000 to $25,000,000, to add
a swing line facility in the amount of $2,000,000, and to make
certain other modifications, all as set forth below.
NOW, THEREFORE, the parties hereby
agree as follows:
1. Defined Terms . Any and
all initially-capitalized terms used in this Amendment (including,
without limitation, in the recitals hereto) without definition
shall have the respective meanings specified in the Credit
Agreement.
2. Increase in Revolving Credit
Facility .
A. Amendment to Definition of
“Aggregate Revolving Loan Commitment” .
Section 1.1 of the Credit Agreement is hereby amended
such that the definition of “ Aggregate Revolving Loan
Commitment ” shall read in full as follows:
“‘ Aggregate
Revolving Loan Commitment ’: The sum of the Revolving
Loan Commitments set forth on the signature pages hereof, which is,
as of the effective date of the Third Amendment, US
$25,000,000.”
-1-
B. Addition of Definition of
Third Amendment . Section 1.1 of the Credit
Agreement is hereby further amended and supplemented by adding
therein a new definition of “Third Amendment” as
follows:
“‘ Third
Amendment ’ means Amendment No. 3 to Revolving/Term
Credit and Security Agreement, dated as of October 3, 2005, by
and among the Borrower, the Lenders, the Administrative Agent and
the Collateral Agent.”
3. Addition of Swing Line
Facility .
A. Addition of Swing Line-Related
Definitions . Section 1.1 of the Credit Agreement
is hereby amended and supplemented by adding the following new
definitions therein:
“ Swing Line ”
means the revolving line of credit established by the Swing Line
Lender in favor of the Borrower pursuant to
Section 2.1A.
“ Swing Line Commitment
” means an amount equal to the lesser of (i) $2,000,000
or (ii) the then applicable Available Revolving Loan
Commitment.
“ Swing Line Lender
” means UBOC or any successor swing line lender
hereunder.
“ Swing Line Loan
” means a loan which bears interest at a rate per annum equal
to interest payable on Prime Rate Loan and made by the Swing Line
Lender to the Borrower under the Swing Line.
“ Swing Line Note
” means the promissory note made by the Borrower to the Swing
Line Lender, substantially in the form of Exhibit L , either
as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or
supplanted.
“ Swing Line
Outstandings ” means, as of any date of determination,
the aggregate principal amount of Swing Line Loans then
outstanding.
B. Amendment to Revolving Loan
Provision to Incorporate Swing Line Loan .
Section 2.1(a) of the Credit Agreement is hereby
amended to read in full as follows:
“(a) Subject to the terms and
conditions hereof, each Lender shall, pro rata, according to such
Lender’s pro rata share of the then applicable Aggregate
Revolving Loan Commitment, (i) make loans on a revolving
credit basis to the Borrower from time to time from and including
the Closing Date to but excluding the Maturity Date (each a ‘
Revolving Loan’ , and collectively, the ‘
Revolving Loans’ ) in accordance with the terms of
this Agreement and (ii) issue Letters of Credit for the
account of the Borrower pursuant to Section 2.2 below from
time to time from and including the Closing Date to but excluding
the Maturity Date; provided , however , that
(A) the sum of (1) the aggregate principal amount of all
Revolving Loans outstanding, (2) the aggregate principal
amount of all Swing Line Loans outstanding, (3) the aggregate
Letter of Credit Amount of all
-2-
Letters of Credit outstanding and
(4) the aggregate amount of unreimbursed drawings under all
Letters of Credit shall not exceed the lesser of (x) the
Aggregate Revolving Loan Commitment or (y) the Borrowing Base
at any time and (B) the sum of (1) the aggregate Letter
of Credit Amount of all Letters of Credit outstanding and
(2) the aggregate amount of unreimbursed drawings under all
Letters of Credit shall not exceed $1,000,000 at any time. Within
the limits of each Lender’s Revolving Loan Commitment and the
Borrowing Base, the Borrower may borrow, have Letters of Credit
issued for the Borrower’s account, prepay Revolving Loans,
reborrow Revolving Loans, and have additional Letters of Credit
issued for the Borrower’s account after the expiration of
previously issued Letters of Credit.”
C. Addition of Swing Line
Provisions . Section 2 of the Credit Agreement is
hereby amended and supplemented by adding therein:
“2.1A Swing Line
(a) The Swing Line Lender shall from
time to time prior to the Maturity Date make Swing Line Loans to
the Borrower in such amounts as the Borrower may request;
provided , however , that (i) after
giving effect to such Swing Line Loan, the Swing Line Outstandings
shall not exceed the Swing Line Commitment, and (ii) without
the consent of the Lenders and the Swing Line Lender, no Swing Line
Loan shall be made during the continuation of an Event of Default.
Unless notified to the contrary by the Swing Line Bank, advances
under the Swing Line may be made in amounts of at least $100,000
and integral multiples of $25,000 in excess thereof. Each request
by the Borrower for a Swing Line Loan shall be made pursuant to a
Loan Request (or telephonic request for Loan promptly confirmed by
telecopier) received by the Administrative Agent, at the
Administrative Agent’s office, not later than 9:00 a.m.,
California time, on the date (which must be a Business Day) such
Swing Line Loan is to be made. Each repayment of a Swing Line Loan
shall be in an amount which is an integral multiple of $25,000 or
the remaining outstanding principal amount of Swing Line
Loans.
(b) The Swing Line Loans shall bear
interest at a fluctuating rate per annum equal to the rate of
interest payable on Prime Rate Loans payable on such dates, not
more frequently than monthly, as may be specified by the Swing Line
Lender and in any event on the Maturity Date. Interest on Swing
Line Loans shall be payable upon demand of the Swing Line Lender,
and the Swing Line Lender shall be responsible for invoicing the
Borrower for such interest. The interest payable on Swing Line
Loans is solely for the account of the Swing Line
Lender.
(c) The principal amount of the
Swing Line Loans shall be payable not later than three
(3) days following demand made by the Swing Line Lender and in
any event on the Maturity Date.
(d) Upon the making of each Swing
Line Loan by the Swing Line Lender, each Lender shall be deemed to
have purchased from the Swing Line Bank a participatio