Exhibit 99.1
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This Fourth Amendment to Loan and Security Agreement (this
"Agreement") dated as of February 28, 2001 by and between Fleet Capital
Corporation (the "Lender") and IGI, Inc., IGEN, Inc., Immunogenetics, Inc.
and Blood Cells, Inc. (each a "Borrower" and collectively, the
"Borrowers"), as parties to that certain Loan and Security Agreement dated
October 29, 1999, as amended by that certain Amendment to Loan and Security
Agreement dated as of April 12, 2000, that Second Amendment to Loan and
Security Agreement dated as of June 23, 2000, and that Amendment and Waiver
to Loan and Security Agreement dated as of October 31, 2000 (as amended and
in effect from time to time, the "Loan Agreement").
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that certain amendments be made
to the Loan Agreement and the Term Loan A Note and that the Lender waive
certain Events of Default which exist under the Loan Agreement; and
WHEREAS, the Lender is willing to agree to such amendments and to waive
such Events of Default on the terms and conditions set forth herein; and
WHEREAS, capitalized terms used herein but not defined herein shall have
the meanings that are ascribed to such terms in the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
[SECTION]1. Amendment to the Loan Agreement. The Loan Agreement is
hereby amended as follows:
(a) The following definitions are deleted and replaced by the
following:
Borrowing Base - As at any date of determination thereof, an
amount equal to the lesser of:
(i) the result of (a) the Revolving Facility Limit, minus (b)
the sum of the Maximum Drawing Amount plus the Unpaid
Reimbursement Obligations; or
(ii) the then applicable Formula Availability.
Fixed Charge Coverage Ratio - The ratio obtained by dividing
the sum (i) of EBITDA minus non-financed Capital Expenditures
minus other non-cash income plus non-cash expenses accrued
during such period by (ii) Fixed Charges as determined on a
consolidated basis for Borrowers for the applicable measurement
period. For the purpose of determining the Fixed Charge
Coverage Ratio (a) for the fiscal period ending on March 31,
2001, the EBITDA, Capital Expenditure, Fixed Charges and other
items of income and expense shall be those applicable to the
three months ended on March 31, 2001; (b) for the fiscal period
ending on June 30, 2001, the EBITDA, Capital Expenditure, Fixed
Charges and other items of income and expense shall be those
applicable to the six months ended on June 30, 2001; (c) for
the fiscal period ending on September 30, 2001, the EBITDA,
Capital Expenditure, Fixed Charges and other items of income
and expense shall be those applicable to the nine months ended
on September 30, 2001; and (d) for each fiscal quarter ending
thereafter, the EBITDA, Capital Expenditure, Fixed Charges and
other items of income and expense shall be those applicable to
the twelve months ended at the end of such fiscal quarter.
Formula Availability - As at any date of determination thereof,
as to the Borrowers, an amount equal to the sum of:
(i) the sum of 85% of the net amount of Eligible Accounts of
each Borrower outstanding at such date;
PLUS
(ii) the lesser of (a) $3,000,000 and (b) the sum of 60% of
the value of Eligible Inventory of each Borrower at such
date, in each case calculated on the basis of the lower
of cost or market on a first-in, first-out basis;
MINUS
(iii) the sum of (a) the Maximum Drawing Amount, (b) the Unpaid
Reimbursement Obligations, and (c) such reserves as
Lender may establish from time to time under Section
1.1.1.
For purposes hereof, the net amount of Eligible Accounts at any
time shall be the face amount of such Eligible Accounts less
any and all returns, rebates, discounts (which may, at Lender's
option, be calculated on shortest terms), credits, allowances
or excise taxes of any nature at any time issued, owing,
claimed by Account Debtors, granted, outstanding or payable in
connection with such Accounts at such time.
Obligations - All Loans and Unpaid Reimbursement Obligations
and all other advances, debts, liabilities, obligations,
covenants and duties, together with all interest, fees and
other charges thereon, owing, arising, due or payable from
Borrowers to Lender of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other
instrument, whether arising under the Agreement or any of the
other Loan Documents or otherwise, whether direct or indirect
(including those acquired by assignment), absolute or
contingent, primary or secondary, due or to become due, now
existing or hereafter arising and however acquired. The term
includes without limitation, all interest, charges, fees,
expenses, attorneys' fees, and any other sums chargeable to
Borrowers under any of the Loan Documents.
Revolving Facility Limit. - $5,000,000.
(b) The following definitions are added to Appendix A to the Loan
Agreement in alphabetical order to read as follows:
Bank - Fleet National Bank.
Fourth Amendment Date - February 28, 2001.
EBIT - Adjusted Net Earnings From Operations plus the sum of
interest expenses and taxes during the period for which
Adjusted Net Earnings From Operations was calculated,
determined for the Borrowers for the applicable measurement
period.
Interest Coverage Ratio - The ratio obtained by dividing (a)
EBIT by (b) Total Interest Expense as determined on a
consolidated basis for Borrowers for the applicable measurement
period. For the purpose of determining the Interest Coverage
Ratio (a) for the fiscal period ending on March 31, 2001, the
EBIT and Total Interest Expense shall be those applicable to
the three months ended on March 31, 2001; (b) for the fiscal
period ending on June 30, 2001, the EBIT and Total Interest
Expense shall be those applicable to the six months ended on
June 30, 2001; (c) for the fiscal period ending on September
30, 2001, the EBIT and Total Interest Expense shall be those
applicable to the nine months ended on September 30, 2001; and
(d) for each fiscal quarter ending thereafter, the EBIT and
Total Interest Expense shall be those applicable to the twelve
months ended at the end of such fiscal quarter.
International Standby Practices - With respect to any standby
Letter of Credit, International Standby Practices (ISP98),
International Chamber of Commerce Publication No. 590, or any
successor code of standby letter of credit practices among
banks adopted by Lender in the ordinary course of its business
as a standby letter of credit issuer and in effect at the time
of issuance of such Letter of Credit.
LC Guaranty - Any guaranty or reimbursement agreement pursuant
to which Lender or any Affiliate of Lender shall guaranty the
payment or performance by any Borrower of its reimbursement
obligation under any Letter of Credit or shall agree to
reimburse the issuer of such Letter of Credit for any drawings
thereon.
Letter of Credit - Any letter of credit issued by Lender or
Bank or any of Lender's Affiliates for the account of any
Borrower.
Letter of Credit Fee - As defined in Section 1.6(g) of this
Agreement.
Maximum Drawing Amount - The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of
Credit, in each case determined as if any conditions to such
drawings have been satisfied (regardless of whether such
conditions have in fact yet been satisfied).
Reimbursement Obligation - The Borrowers' obligation to
reimburse the Lender on account of any drawing under any Letter
of Credit as provided in Section 1.6 of this Agreement.
Total Interest Expense - For any period, the aggregate amount
of interest required to be paid or accrued by the Borrowers on
a consolidated basis during such period on all Indebtedness of
the Borrowers outstanding during all or any part of such
period, whether such interest was or is required to be
reflected as an item of expense or capitalized, including
payments consisting of (or equivalent to) interest in respect
of any Capitalized Lease, and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees
or expenses in connection with the borrowing of money.
Uniform Customs - With respect to any Letter of Credit, the
International Standby Practices.
Unpaid Reimbursement Obligation - Any Reimbursement Obligation
for which the Borrowers do not reimburse the Lender on the date
specified in, and in accordance with, Section 1.6 of this
Agreement.
(c) The proviso added to the end of the first sentence of Section
1.2.1 by the Amendment and Waiver to Loan Agreement dated as of October 31,
2000 is deleted and the following sentence is added between the first and
second sentences of Section 1.2.1:
Notwithstanding the foregoing, (a) no principal payment shall
be payable on December 29, 2000, (b) Borrowers and Lender
acknowledge that the principal balance of Term Loan A as of the
Fourth Amendment Date is $2,605,000, (c) the principal of Term
Loan A shall be payable in the amounts and on the dates set
forth on Schedule I attached hereto.
(d) The first sentence of Section 1.3.1 is deleted and the
following sentence is substituted therefor:
Lender agrees to make Capital Expenditure Loans to Borrowers
from time to time, so long as no Default or Event of Default
exists, as requested by Borrowers in the manner set forth in
subsection 3.1.1 provided however that the Capital Expenditure
Loans shall not exceed $1,500,000 in the aggregate.
(e) The following Section 1.6 is added to the Loan Agreement
immediately following Section 1.5 thereof:
1.6 Letters of Credit; LC Guaranties.
(a) Subject to all of the terms and conditions of this Agreement,
if requested to do so by any Borrower, Lender shall issue its Letters of
Credit, or cause to be issued Bank's Letters of Credit, for the account of
Borrowers or shall execute LC Guaranties by which Lender shall agree to
reimburse the issuer for the Letters of Credit for amounts drawn thereon or
shall guaranty the payment or performance by Borrowers of their
reimbursement obligation with respect to Letters of Credit issued for any
Borrower's account by Bank or Lender; provided that the sum of the Maximum
Drawing Amount and Unpaid Reimbursement Obligations under and with respect
to all Letters of Credit and LC Guaranties outstanding at any time shall
not exceed Five Hundred Thousand Dollars ($500,000) and no Letter of Credit
may have an expiration date that is after fourteen (14) days prior to the
Termination Date. Further, the expiration date of any Letter of Credit
shall not be more than one year after the day of issuance thereof. Each
Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs. Any amounts paid by Lender under any Letter of Credit or
LC Guaranty or in connection with any Letter of Credit (i) shall become
part of the proceeds of a Revolving Credit Loan requested pursuant to
subsection 3.1.1 below, to the extent Lender is required to make Revolving
Credit Loans pursuant to the terms hereof and (ii) otherwise, shall be
jointly and severally payable by Borrowers on demand. In no event shall
Bank or Lender be required to issue or cause to be issued Letters of Credit
or LC Guaranties at any time there exists a Default or an Event of Default.
(b) Borrowers jointly and severally agree, unconditionally,
irrevocably and absolutely, to pay immediately to Lender on demand (i) the
amount drawn under a Letter of Credit or paid pursuant to a LC Guaranty,
(ii) the amount of any taxes, fees, charges or other reasonable costs and
expenses whatsoever incurred by the Lender or the Bank in connection with
any payment made by the Lender or the Bank with respect to such Letter of
Credit or the drawing thereon, (iii) upon the reduction (but not
termination) of the Revolving Facility Limit to an amount less than the
Maximum Drawing Amount, an amount equal to such difference, which amount
shall be held by the Lender in a non-interest bearing account as cash
collateral for all Reimbursement Obligations, and (iv) upon the Termination
Date, or the acceleration of the Reimbursement Obligations with respect to
all Letters of Credit in accordance with Section 10.2, an amount equal to
the then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Lender in a non-interest bearing account as cash
collateral for all Reimbursement Obligations. If Borrowers at any time
fail to make such payment in accordance with the terms of this Agreement,
Borrowers shall be deemed to have elected to borrow from the Lender on such
date Revolving Credit Loans equal in aggregate amount to the amount paid by
Lender under such Letter of Credit or LC Guaranty. The Borrowers'
obligations under this Section 1.6 shall be absolute and unconditional
under any and all circumstances and irrespective of the occurrence of any
Default or Event of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the Borrowers may have or
have had against the Lender, the Bank, or any beneficiary of a Letter of
Credit. The Borrowers further agree with the Lender that the Lender and
the Bank shall be entitled to rely, and shall be fully protected in relying
upon, any Letter of Credit or any draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document delivered in
connection with any Letter of Credit believed by the Lender or the Bank to
be genuine and correct and to have been signed and sent or made by the
proper Person or Persons, and in relying upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Lender or the Bank. Neither the Lender nor the Bank shall be responsible
for, and the Borrowers' obligations under Section 1.6 shall not be affected
by, among other things, the validity or genuineness of any documents or of
any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrowers, the beneficiary of any Letter of Credit or
any financing institution or other party to which any Letter of Credit may
be transferred or any claims or defenses whatsoever of the Borrowers
against the beneficiary of any Letter of Credit or any such transferee.
The Lender and the Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Letter of Credit.
The Borrowers agree that any action taken or omitted by the Lender or the
Bank under or in connection with each Letter of Credit and the related
drafts and documents, if done in good faith, shall be binding upon the
Borrowers and shall not result in any liability on the part of the Lender
or the Bank to the Borrowers.
(c) Borrowers shall pay to Lender for each Letter of Credit and LC
Guaranty of a Letter of Credit, a non-refundable fee (in each case, a
"Letter of Credit Fee") to the Lender in an amount per annum equal to the
product of (i) 3.25% multiplied by (ii) the Maximum Drawing Amount of such
Letter of Credit (or of the Letter of Credit with respect to which such LC
Guaranty was issued). Such Letter of Credit Fee shall also be payable by
the Borrowers at the time of any amendment of a Letter of Credit or LC
Guaranty, with respect to the increase, if any, in the Maximum Drawing
Amount of the applicable Letter of Credit. In respect of each Letter of
Credit and LC Guaranty, the Borrowers shall also pay to the Lender, at such
other time or times as such charges are customarily made by the Lender, the
Lender's customary issuance, amendment, negotiation or document examination
and other administrative fees as may be in effect from time to time. All
such charges shall be deemed fully earned and shall be due and payable upon
issuance of each such Letter of Credit or LC Guaranty and shall not be
subject to rebate or proration upon the termination of the applicable
Letter of Credit or LC Guaranty or this Agreement for any reason.
(f) The following Section 3.1.5 is added to the Loan Agreement
immediately following Section 3.1.4 thereof:
3.1.5 Letter of Credit and LC Guaranty Requests.
A request for a Letter of Credit or LC Guaranty shall be made in the
following manner: A Borrower may give Lender (and Bank, if Bank is the
proposed issuer) a written notice of its request for the issuance of a
Letter of Credit or LC Guaranty, not later than 11:00 a.m. Hartford,
Connecticut time, one Business Day before the proposed issuance date
thereof, in which notice such Borrower shall specify the proposed issuer
and issuance date; provided, that no such request may be made at a time
when there exists a Default or Event of Default. Such request shall be
accompanied by an executed application and reimbursement agreement in form
and substance satisfactory to the proposed issuer of the Letter of Credit
or LC Guaranty, as well as any required corporate resolutions. As an
accommodation to Borrower, unless a Default or an Event of Default is then
in existence, (i) Lender and Bank may, in their discretion, permit
electronic transmittal of requests for Letters of Credit and LC Guaranties
to them, and (ii) Lender may, in Lender's discretion, permit electronic
transmittal of instructions, authorizations, agreements or reports to
Lender. Neither Lender nor Bank shall have any liability to Borrowers for
any loss or damage suffered by Borrower as a result of Lender's or Bank's
honoring of any requests, execution of any instructions, authorizations or
agreements or reliance on any reports communicated to it telephonically or
electronically and purporting to have been sent to Lender or Bank by
Borrowers and neither Lender nor Bank shall have any duty to verify the
origin of any such communication or the authority of the person sending it.
Each telephonic request for a Loan, Letter of Credit, or LC Guaranty
accepted by Lender and Bank, if applicable, hereunder shall be promptly
followed by a written confirmation of such request from Borrowers to Lender
and Bank, if applicable.
(g) The proviso at the end of Section 3.2.1 is deleted and the
following is substituted therefor:
provided, however, that if an Overadvance shall exist at any
time, Borrowers shall immediately, and in any event within one
(1) Business Day, repay the Overadvance.
(h) The following Section 8.1.7 is added immediately after Section
8.1.6:
8.1.7 FDA Correspondence. Promptly provide to Lender copies
of all correspondence, notices, orders and other writings (a)
delivered to any Borrower or any agent, counsel or other
representative of any Borrower by the United States Food and Drug
Administration ("FDA"), or (b) delivered to the FDA by any Borrower
or any agent, counsel or other representative of any Borrower.
(i) Clause (ii) of Section 8.2.3 is deleted and the following
clause (ii) is substituted therefor:
(ii) accounts payable to trade creditors and current operating
expenses (other than for Money Borrowed), in each case incurred
in the ordinary course of business;
(j) Section 8.2.7 is deleted and the following Section 8.2.7 is
substituted therefor:
8.27. Capital Expenditures. Make non-financed Capital
Expenditures (including, without limitation, incurrence of
Capitalized Lease Obligations), which, in the aggregate, as to
Borrowers, exceed (i) $150,000 during the period from the
Closing Date through December 31, 1999, (ii) $500,000 during
the fiscal year ended on December 31, 2000, and (iii) $300,000
during any fiscal year thereafter.
(k) Section 8.3.1 is deleted and the following is substituted
therefor:
8.3.1 Fixed Charge Covenant. Borrowers shall maintain on a
Consolidated basis a Fixed Charge Coverage Ratio of not less than the
ratio shown below for the respective period corresponding thereto:
Fiscal Period Ending Ratio
-------------------- -----
March 31, 2001 0.90 to 1.00
June 30, 2001 1.01 to 1.00
September 30, 2001 1.01 to 1.00
December 31, 2001 1.01 to 1.00
March 31, 2002 and the end of 1.05 to 1.00
each fiscal quarter thereafter
(l) Section 8.3.2 is deleted and the following is substituted
therefor:
8.3.2 Intentionally Deleted.
(m) The following Sections 8.3.3 and 8.3.4 are added immediately
after Section 8.3.2:
8.3.3 Minimum EBITDA. Borrowers shall have EBITDA on a
consolidated basis of not less than the ratio shown below for the
respective fiscal periods ending on the following dates:
Fiscal Period Ending Minimum EBITDA
-------------------- --------------
March 31, 2001 $2,500,000
June 30, 2001 $2,650,000
September 30, 2001 $2,800,000
December 31, 2001 $3,000,000
March 31, 2002 and the end of $3,400,000
each fiscal quarter thereafter
For the purpose of determining EBITDA for the fiscal period ending
(a) on March 31, 2001, EBITDA shall be deemed to have been the
product of (i) EBITDA for the fiscal quarter ended on March 31, 2001,
multiplied by (ii) four; (b) on June 30, 2001, EBITDA shall be deemed
to have been the product of (i) EBITDA for the two fiscal quarters
ended on June 30, 2001, multiplied by (ii) two; (c) on September 30,
2001, EBITDA shall be deemed to have been the product of (i) EBITDA
for the three fiscal quarters ended on September 30, 2001, multiplied
by (ii) four/thirds; and (d) on December 31, 2001 and at the end of
each fiscal quarter thereafter, EBITDA shall be the EBITDA for the
four fiscal quarters then ended.
8.3.4 Interest Coverage Ratio. Borrowers shall maintain an
Interest Coverage Ratio on a consolidated basis of not less than the
ratio shown below for the respective fiscal periods ending on the
following dates:
Fiscal Period Ending Interest Coverage Ratio
-------------------- -----------------------
March 31, 2001 1.05 to 1.00
June 30, 2001 1.10 to 1.00
September 30, 2001 1.15 to 1.00
December 31, 2001 1.25 to 1.00
March 31, 2002 and the end of 1.30 to 1.00
each fiscal quarter thereafter
(n) The first paragraph of Section 9 is deleted and the following
paragraph is substituted therefor:
Notwithstanding any other provision of this Agreement or any of
the other Loan Documents, and without affecting in any manner
the rights of Lender under the other sections of this
Agreement, Lender shall not be required to make any Loan or
issue or procure any Letter of Credit or LC Guaranty under this
Agreement unless and until each of the following conditions has
been and continues to be satisfied:
(o) The first paragraph of Section 9 is deleted and the following
paragraph is substituted therefor:
Notwithstanding any other provision of this Agreement or any of
the other Loan Documents, and without affecting in any manner
the rights of Lender under the other sections of this
Agreement, Lender shall not be required to make any Revolving
Credit Loan or issue or procure any Letter of Credit or LC
Guaranty under this Agreement after the initial Revolving
Credit Loan unless, at the time of each such subsequent
Revolving Credit Loan or Letter of Credit or LC Guaranty, (i)
the representations and warranties herein and each other Loan
Document shall be correct in all material respects on and as of
the date of such Revolving Credit Loan, Letter of Credit or LC
Guaranty, both before and after giving effect thereto and to
the application of the proceeds therefrom; (ii) no event shall
have occurred and be continuing, or would result from such
Revolving Credit Loan, Letter of Credit or LC Guaranty or from
the application of the proceeds therefrom, that constitutes a
Default or Event of Default; and (iii) there shall have
occurred no material adverse change in the business condition
or prospects (financial or otherwise), operations, performance
or properties of any of the Borrowers.
[SECTION]2. Amendment to Term Loan A Note. The following is added
to the end of subsection (b) of the third paragraph on Page 1 of the Term
Loan A Note (and Schedule I to this Agreement is added to the end of the
Term Loan A Note as Schedule I thereto):
Notwithstanding the foregoing, (a) no principal payment shall be
payable on November 1, 2000, and (b) the $2,605,000 principal balance
of Term Loan A as of February 28, 2001 shall be payable in the
amounts and on the dates set forth on Schedule I attached hereto.
[SECTION]3. Conditions Precedent. The effectiveness of the
amendment and waivers contained herein shall be subject to the prior
satisfaction, on or before the date hereof, of the following conditions
precedent:
(a) Execution and delivery by the Borrowers and the Lender of
this Agreement.
(b) The Lender shall have received a copy of the fully
executed Amendment No. 4 to Note and Equity Purchase Agreement among
the Borrower and American Capital Strategies, Ltd. and ACS Funding
Trust I in form, scope and substance satisfactory to the Lender.
(c) The Lender shall have received evidence satisfactory to
the Lender that the Borrowers (including the IGI Petcare Division)
have no liability or exposure (or potential liability or exposure)
arising out of or in connection with any product recall or
anticipated product recall.
[SECTION]4. Representations and Warranties. The Borrowers hereby
represent and warrant to the Lender that (a) all of the representations and
warranties made by the Borrowers in the Loan Agreement and the other Loan
Documents are true and correct on the date hereof as if made on and as of
the date hereof, except to the extent that any of such representations and
warranties expressly relate by their terms to a prior date, and (b) after
giving effect to the transactions contemplated hereby, no Event of Default
under and as defined in any of the Loan Documents has occurred and is
continuing on the date hereof.
[SECTION]5. Ratification of Existing Agreements. Each of the
Borrowers hereby acknowledges and agrees that nothing set forth herein
shall alter or affect the validity or effectiveness of any of the
Obligations. All of the Obligations as evidenced by or otherwise arising
under the Loan Agreement and the other Loan Documents, are, by each
Borrowers' execution of this Agreement, ratified and confirmed in all
respects. In addition, by their execution of this Agreement, each of the
Borrowers represents, warrants and agrees that none of the Borrowers has
any counterclaim, right of set-off, right of recoupment or defense of any
kind with respect to the Obligations. As of the date hereof, the aggregate
principal amount of the Revolving Credit Loans outstanding is
$1,768,291.38; the outstanding principal amount of Term Loan A is
$2,605,000; and the aggregate principal amount of the Capital Expenditure
Loans outstanding is $0.00.
[SECTION]6. Waivers. Subject to the satisfaction of the conditions
set forth below, the Lender waives those Events of Default listed on
Schedule II attached hereto. The waiver set forth in this [SECTION]6 shall
be effective only for those Events of Defaults specified in Schedule II
which occurred on or before December 31, 2000 and such waiver shall not
entitle the Borrowers to any future waiver in similar or other
circumstances. Without limiting the foregoing, upon the occurrence of any
Event of Default after December 31, 2000, or if an Event of Default has
occurred and is continuing on the date hereof that is not set forth on
Schedule II, the Lender shall be free in its sole and absolute discretion
to accelerate the payment in full of the Borrowers' indebtedness to the
Lender under the Loan Agreement and the other Loan Documents, and may, if
the Lender so elects, proceed to enforce any or all of the Lender's rights
under or in respect of the Loan Agreement and the other Loan Documents and
applicable law.
[SECTION]7. No Waiver by Lender. Except as otherwise expressly
provided for herein, nothing in this Agreement shall extend to or affect in
any way the Borrowers' obligations or the Lender's rights and remedies
arising under the Loan Agreement or the other Loan Documents, and the
Lender shall not be deemed to have waived any or all of its remedies with
respect to any Event of Default (other than an Event of Default specified
in Schedule II which occurred on or before December 31, 2000 and then only
to the extent set forth in [SECTION]6 hereof) or event or condition which,
with notice or the lapse of time, or both would become an Event of Default
and which upon the Borrowers' execution and delivery of this Agreement
might otherwise exist or which might hereafter occur.
[SECTION]8. Release. The Borrowers, on their own behalf and on
behalf of their shareholders, employees and agents and their successors and
assigns, hereby waive, release and discharge the Lender and all affiliates
of the Lender, and all of the directors, officers, employees, attorneys and
agents of the Lender and all affiliates of the Lender, from any and all
claims, demands, actions or causes of action whether known or unknown,
arising out of or in any way relating to this Agreement, the Loan
Agreement, the Loan Documents and/or any documents, agreements, dealings or
other matters connected with the Loan Agreement, the Loan Documents or the
administration thereof.
[SECTION]9. Expenses. The Borrowers agree to pay to the Lender (a)
on the date hereof Lender's legal fees and disbursements incurred through
the date hereof in connection with the negotiation and preparation of this
Agreement and related matters, (b) on the date hereof Lender's examiner
fees and disbursements incurred through the date hereof, and (c) upon
demand from time to time any and all reasonable out-of-pocket costs or
expenses (including commercial examiner fees and reasonable legal fees and
disbursements) hereafter incurred by the Lender in connection with the
administration of credit extended by the Lender to the Borrowers or the
preservation of or enforcement of its rights under the Loan Agreement, the
Notes and the other Loan Documents or in respect of any of the Borrowers'
other obligations to the Lender.
[SECTION]10. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Agreement,
all of the terms, conditions and provisions of the Loan Agreement
shall remain the same. It is declared and agreed by each of the
parties hereto that the Loan Agreement, as amended hereby, shall
continue in full force and effect, and that this Agreement and the
Loan Agreement shall be read and construed as one instrument.
(b) The Borrowers shall at each time as the Lender may
reasonably request execute and deliver such further instruments, and
take such further action, in each case further to effect the purposes
of this Agreement, the Loan Agreement, the Notes and the other Loan
Documents. TIME IS OF THE ESSENCE AS TO ALL OF THE PROVISIONS OF THIS
AGREEMENT.
(c) This Agreement is intended to take effect under, and
shall be construed according to and governed by, the laws of the
Commonwealth of Pennsylvania without giving effect to its principles
of conflicts of laws.
(d) This Agreement may be executed in any number of
counterparts, but all such counterparts shall together constitute but
one instrument. In making proof of this Agreement it shall not be
necessary to produce or account for more than one counterpart signed
by each party hereto by and against which enforcement hereof is
sought. A facsimile of an executed counterpart shall have the same
effect as the original executed counterpart.
(e) THE BORROWERS AND THE LENDER HEREBY WAIVE THEIR RIGHT TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE LOAN AGREEMENT, THE
NOTES, THE OTHER LOAN DOCUMENTS OR ANY OF THE BORROWERS' OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH OBLIGATIONS.
[Signatures Follow on Next Page]
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed in its name and behalf by its duly authorized officer as of
the date first written above.
IGI, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Its: SRVP & CFO
IGEN, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Its: SRVP & CFO
IMMUNOGENETICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Its: SRVP & CFO
BLOOD CELLS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Its: SRVP & CFO
FLEET CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Its: SENIOR VICE PRESIDENT
Schedule I
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Amortization Schedule for Principal of Term Loan A
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Borrowers shall pay the principal of Term Loan A on the following dates in
the following amounts:
1. On April 1, 2001, $99,999.
2. On the first date of each month thereafter commencing on May 1, 2001
and continuing through and including January 1, 2002, $33,333.
3. On the first date of each month thereafter commencing on February 1,
2002 and continuing through and including January 1, 2003, $41,667.
4. On the first date of each month thereafter commencing on February 1,
2003 and continuing through and including October 1, 2004, $50,000.
5. On October 29, 2004, the entire remaining principal balance of Term
Loan A.
Schedule II
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List of Defaults Being Waived
-----------------------------
1. Between October 1, 2000 and December 31, 2000, the Borrowers had more
than $500,000 of accounts payable to trade creditors which were aged
more than 60 days, thereby breaching the covenant set forth in
Section 8.2.3.
2. The failure of the Borrowers to comply with Section 8.3.1 for the
twelve month periods ended on or prior to December 31, 2000.
3. The failure of the Borrowers to comply with Section 8.3.2 as at
December 31, 2000 or any date prior to December 31, 2000.
4. The failure of the Borrowers to pay the balance of the Term Loan A
quarterly payment in the amount of $133,333.33 due and payable on
December 29, 2000.