Exhibit 10A
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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
(HAEMONETICS CORPORATION)
This First Amendment to Revolving Credit Agreement (the or this "First
Amendment") is dated as of December 26, 1997 by and among HAEMONETICS
CORPORATION (the "Borrower"), a Massachusetts corporation, and banks from time
to time a party hereto (each a "Bank" and, collectively, the "Banks") and
MELLON BANK, N.A., a national banking association (hereinafter "Mellon"), and
as contract representative for the Banks (in such capacity, the "Agent").
NOW, THEREFORE, for the promises herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
I. Background
As of June 25, 1997, the Borrower and the Banks entered into a revolving
loan arrangement of up to Forty Million Dollars ($40,000,000) (the "Original
Loan"). The Original Loan was evidenced by three promissory notes: a
$20,000.000 note dated June 25, 1997 made by the Borrower to the order of
Mellon Bank, N.A., a $10,000,000 note dated June 25, 1997 made by the Borrower
to the order of BankBoston, N.A. and a $10,000,000 note dated June 25, 1997
made by the Borrower to the order of The Sanwa Bank, Limited (collectively, the
"Notes"). The Borrower and the Banks entered into a revolving credit agreement
dated as of June 25, 1997 (the "Original Credit Agreement").
The Borrower and the Banks have agreed to amend the Original Credit
Agreement to provide for certain revised pricing options and to exclude certain
non-cash charges from the covenant calculations.
The Borrower has agreed to pay an amendment fee upon the execution of
this Amendment in connection with the execution and delivery of this First
Amendment.
Capitalized terms used in this First Amendment and not defined herein
shall have the meaning given such terms in the original Loan Agreement. This
First Amendment, together with the Original Loan Agreement and such other
amendments, modifications, supplements or restatements, as may be made from
time to time, is referred to herein as the "Loan Agreement").
II. Amendment to Article I. Section 1.01 "Certain Definitions" is hereby
amended as follows:
A. The following definition is hereby added: "Federal Funds Effective
Rate" shall mean the rate per annum (based on a year of 360 days and actual
days elapsed and rounded upward to the nearest 1/100 of 1%) announced by the
Federal Reserve Bank of New York (or any successor) on such day as being the
weighted average of the rates on overnight federal funds transactions arranged
by federal funds brokers on the previous trading day, as computed and announced
by such Federal Reserve Bank (or any successor) in substantially the same
manner as such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor) does not
announce such rate on any day, the "Federal Funds Effective Rate" for such day
shall be the Prime Rate.
B. The definition of "Money Market Rate" and "Money Market Rate
Options" is hereby deleted.
C. In the term "Option" the term "the Money Market Rate Option" is
hereby deleted and the term "Federal Funds Rate Option" is hereby inserted in
lieu thereof.
D. The following definition is hereby added. The term "Applicable
Margin" shall mean:
(a) 0.45 of one percent (1%) per annum if Consolidated Total
Indebtedness shall be less than or equal to thirty percent
(30%) of Consolidated Tangible Net Worth;
(b) 0.55 of one percent (1%) per annum if Consolidated Total
Indebtedness shall be greater than thirty percent (30%) of
Consolidated Tangible Net Worth but less than or equal to
forty-two percent (42%) of consolidated Tangible Net Worth;
(c) 0.65 of one percent (1%) per annum if Consolidated Total
Indebtedness shall be greater than forty-two percent (42%) of
Consolidated Tangible Net Worth.
The Applicable Margin shall be determined based upon the Borrower's
Compliance Certificate and the covenant calculations for the fiscal quarter
immediately preceding the date for which the calculation of the Applicable
Margin shall apply. The Applicable Margin, once determined, shall apply for the
entire fiscal quarter.
E. The term "Additional Interest Event" is hereby deleted.
F. In the term "Standard Notice" the term "the Money Market Rate Loan"
is hereby deleted and the term "Federal Funds Rate Loan" is hereby inserted in
lieu thereof.
III. Amendment to Article II. The Credits
Article II is hereby deleted and the following is hereby inserted in lieu
thereof:
ARTICLE II
THE CREDITS
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2.01. Revolving Credit Loans; Money Market Loans. Subject to the terms
and conditions and relying upon the representations and warranties herein set
forth, each Bank agrees, severally and not jointly, to (such agreement being
herein called the Bank's "Commitment") make Loans to the Borrower at any time
or from time to time on or after the date hereof and to but not including the
Expiration Date in an aggregate principal amount for each Bank not exceeding at
any time the amount designated as the "Commitment" set opposite such Bank's
signature to this Agreement, as such amount may have been reduced under Section
2.04 at such time (for each Bank, the "Commitment Amount"). Within such limits
of time and amount and subject to the provisions of this Agreement, the
Borrower may, subject to all of the terms and conditions hereof, borrow, repay
and reborrow hereunder.
2.02. The Notes. The obligations of the Borrower to repay the aggregate
unpaid principal amount of the Loan or Loans made by the Banks to the Borrower
hereunder and to pay interest thereon shall be evidenced in part by promissory
notes of the Borrower dated on or prior to the Closing Date in substantially
the form attached hereto as Exhibit A, with the blanks appropriately filled and
payable to the order of each respective Bank in the amount of the lesser of the
applicable Bank's Commitment Amount or the unpaid principal amount of all Loans
made to the Borrower by the Bank. The outstanding principal amount of each
Loan, the unpaid interest accrued thereon, the interest rate or rates
applicable and the duration of such applicability shall be determined from the
Agent's records, which shall be conclusive on the Borrower absent manifest
error. The executed Notes shall be delivered by the Borrower to each Bank on or
prior to the Closing Date.
2.03 Making of Loans. (a) 1. Whenever the Borrower desires to request a
Euro-Rate Loan or an AB Rate Loan hereunder it shall give Standard Notice
thereof to the Agent at the Agent's Office setting forth the following
information:
(i) The date, which shall be a Business Day and, in the case of
Euro-Rate Loans, a London Business Day, on which such Loan is to be made;
(ii) The interest rate Option applicable to such Loan, selected in
accordance with Section 2.05(a) hereof;
(iii) The Maturity Period to apply to such Loan, selected in
accordance with Section 2.05(b) hereof;
(iv) The total principal amount of such Loan, selected in
accordance with Section 2.05(c) hereof.
Standard Notice having been so given the Agent shall promptly notify each Bank
of the information contained therein and of such Bank's proportionate share of
the proposed borrowing. On the date for such Loan specified in such notice from
the Agent and by the close of the applicable Bank's business on such date, each
Bank shall make the proceeds of its Loan available to the Borrower at the
Agent's Office, in funds immediately available at such office (ratably in
proportion to its Commitment). The proceeds of each Loan may be applied by the
Agent in whole or in part against amounts then due and payable by the Borrower
hereunder.
2. Whenever the Borrower desires to request a Federal Funds Effective
Rate Loan hereunder, it shall give Standard Notice thereof to the Agent at the
Agent's Office setting forth the total principal amount of such Loan, selected
in accordance with Section 2.05(c) hereof.
(b) Absent contrary notice from the Borrower by 12:00 o'clock Noon,
Pittsburgh time, one Business Day prior to any Maturity Date (other than the
Expiration Date) the Borrower shall, at the Agent's option (and without in any
manner limiting the Borrower's ability to repay the Loan on its Maturity Date
without premium or penalty), be deemed to have given the Agent notice at such
time pursuant to Section 2.03(a) hereof to the effect that the Borrower
requests that the Banks make a Loan to the Borrower on such Maturity Date under
the AB Rate Option in an aggregate principal amount equal to the aggregate
principal amount of the Loans becoming due and payable to such Bank on such
Maturity Date.
2.04. Commitment Fees, etc. The Borrower agrees in consideration of the
Commitment of each Bank hereunder, to pay to the Agent for the account of each
Bank a fee ("Commitment Fees") for the period from the Closing Date to and
including the Expiration Date calculated (based on a year of 365 or 366 days as
the case may be) at a rate of .20 of 1% per annum of the aggregate unutilized
Commitment Amount of each respective Bank in effect from time to time;
provided, however, that if Consolidated Total Indebtedness shall be greater
than or equal to thirty percent (30%) of Consolidated Tangible Net Worth, the
Commitment Fees shall be calculated at the rate of .35 of 1% per annum
likewise, at such time as Consolidated Total Indebtedness shall be less than
thirty percent (30%) of Consolidated Tangible Net Worth, commencing with the
next following fiscal quarter the Commitment Fee shall decrease to .20 of 1%
per annum. Such fee shall be payable quarterly on the last day of each March,
June, September and December after the Closing Date, and on the Expiration
Date, for the preceding period for which such fee has not been paid. The
Borrower may at any time upon at least ten (10) Business Days' notice to Agent
terminate in whole or reduce in part the unused Commitments hereunder to an
amount not less than the aggregate principal amount of all Loans then
outstanding plus the principal amount of all Loans not yet made as to which
notice has been given pursuant to Section 2.03 hereof; provided, however, that
each partial reduction shall be in a minimum amount of $1,000,000 or an
integral multiple thereof. The Agent shall promptly advise each Bank of the
date of any such termination of the Commitments and of the date and amount of
each such reduction of Commitments. Each such reduction shall be permanent and
may not be reinstated and commencing on the date thereof the Commitment Fees
shall be calculated upon the amount of the Commitments as so reduced.
2.05. Interest Rates: Maturity Periods; Transactional Amounts.
(a) Optional Basis of Borrowing. Each Loan and all Loans made by the
Banks on the same day as part of one borrowing, if offered, shall bear interest
for each day until due on a single basis selected by the Borrower from among
the interest rate Options set forth below; but the Borrower may select
different Options to apply simultaneously to different Loans, as follows:
(i) AB Rate Option: The "AB Rate Option" shall mean the Borrower's
option to elect a rate per annum (computed on the basis of a year of 365
or 366 days, as the case may be) (the "AB Rate") for each day equal to
the Prime Rate for such day. "Prime Rate" as used in this Agreement shall
mean the interest rate per annum announced from time to time by Mellon as
its "prime rate". Changes in the AB Rate shall take effect on the date
Agent announces a change in the Base Rate.
(ii) Euro-Rate Option: The "Euro-Rate Option" shall mean the
Borrower's option to elect a rate per annum (based on a year of 360 days
and actual days elapsed) for each day equal to the EuroRate for such day
plus the Applicable Margin. "Euro-Rate" for any day, as used herein,
shall mean for each Euro-Rate Loan corresponding to a proposed or
existing Euro-Rate Maturity Period the rate per annum determined by Agent
by dividing (the resulting quotient to be rounded upward to the nearest
1/100 of 1%) (x) the rate of interest (which shall be the same for each
day in such Euro-Rate Maturity Period) determined in good faith by Agent
(which determination shall be conclusive absent manifest error) to be the
average of the rates per annum for deposits in Dollars offered to banks
in the London interbank market at approximately 11:00 o'clock a.m.,
London time, two London Business Days prior to the first day of such
Euro-Rate Maturity Period for delivery on the first day of such Euro-Rate
Maturity Period in amounts comparable to such Euro-Rate Maturity Period
by (y) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The "Euro-Rate" described in this Section 2.05(a)(ii) may also be
expressed by the following formula:
[average of the rates offered to ]
[banks in the London interbank market ]
[determined by Agent per subsection (ii) ]
Euro-Rate = [of this Section 2.05(a) ]
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[1.00 - Euro-Rate Reserve Percentage]
The "Euro-Rate Reserve Percentage" for any day is the maximum
effective percentage (expressed as a decimal fraction, rounded upward to
the nearest 1/100 of 1%), as determined in good faith by Agent (which
determination shall be conclusive absent manifest error), which is in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve
requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities") of a member bank in
such System, but only to the extent actually incurred by the Agent, the
Agent's determination thereof to be conclusive in the absence of manifest
error. The Euro-Rate shall be adjusted automatically as of the effective
date of each change in the Euro-Rate Reserve Percentage.
The Agent shall give prompt notice to the Borrower and the Banks of
the Euro-Rate so offered or adjusted from time to time and Agent's
determination thereof shall be conclusive in the absence of manifest
error.
(iii) Federal Funds Effective Rate Option. The "Federal Funds
Effective Rate Option" shall mean the Borrower's option to elect a rate
per annum computed on the basis of 360 days, as the case may be, equal to
the Federal Funds Effective Rate for such day plus the Applicable Margin.
(b) Maturity Periods. At any time when a Borrower shall request Agent
to make a Loan, the Borrower shall specify the term of such Loan (the "Maturity
Period" of each such Loan) within the limitations set forth in the chart below:
Type of Loan Available Maturity Periods
- --------------------------------- ----------------------------------------
AB Rate Loan Any number of days as Agent may agree
("AB Rate Maturity Period")
Euro-Rate Loan One Week, One, two, three, or six months
("Euro-Rate Maturity Period")
Federal Funds Effective Rate Loan One day ("Federal Funds Rate Maturity
Period")
(i) Each AB Rate Maturity Period or Euro-Rate Maturity Period which
would otherwise end after the Expiration Date shall instead end on the
Expiration Date;
(ii) Each AB Rate Maturity Period or Federal Funds Effective Rate
Maturity Period or EuroRate Maturity Period which would otherwise end on
a day which is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day is after the Expiration
Date in which event, such Maturity Period shall end on the immediately
preceding Business Day;
(iii) Each Euro-Rate Maturity Period shall begin on a London
Business Day, and the duration of each Euro-Rate Maturity Period shall be
determined in accordance with the definition of the term "month" herein;
(iv) Notwithstanding any other provision of this Agreement, the
Borrower may not fix a Maturity Period that would end after the
Expiration Date.
The principal amount of each Loan shall be due and payable on the last day of
the Maturity Period corresponding thereto (the "Maturity Date" therefor).
(c) Transactional Amounts. Every request for a Loan and every
prepayment of a Loan shall be in a principal amount such that, after giving
effect thereto, the principal amount of such Loan shall be as set forth in the
table below:
Type of Loan Allowable Principal Amounts
- --------------------------------- ----------------------------------------------
AB Rate Loan $500,000 plus an integral multiple of $1,000
Euro-Rate Loan $1,000,000 plus an integral multiple of $1,000
Federal Funds Effective Rate Loan $200,000 plus an integral multiple of $1,000
(d) Interest After Maturity. After the principal amount of any Loan
shall have become due (by acceleration or otherwise), such Loan shall bear
interest for each day until paid (before and after judgment) at a rate per
annum (based on a year of 365 or 366 days, as the case may be) which shall be
2% above the then-current Prime Rate, such interest rate to change
automatically from time to time effective as of the effective date of each
change in such Prime Rate.
(e) Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a Euro-Rate would otherwise be set the
Agent shall have in good faith determined (which determination shall be
conclusive) that adequate and reasonable means do not exist for
ascertaining such Euro-Rate; or
(ii) on any date on which a Euro-Rate would otherwise be set the
Required Banks shall have in good faith determined (which determination
shall be conclusive absent manifest error) that the effective cost to
each of such Required Banks of funding its Loan to which such rate would
apply, will exceed the interest rate payable by the Borrower in respect
thereof under this Agreement; or
(iii) at any time any Bank shall have determined in good faith
(which determination shall be conclusive absent manifest error) that the
making, maintenance or funding by such Bank of any Euro-Rate Loan has
been made impracticable or unlawful by (A) the occurrence of a
contingency which materially and adversely affects the interbank
eurodollar market, or (B) compliance by such Bank or a Notional Euro Rate
Funding Office of such Bank in good faith with any Law or guideline or
interpretation or administration thereof by any Official Body charged
with the interpretation or administration thereof or with any request or
directive of any such Official Body (whether or not having the force of
law);
then, and in any such event, such Bank or Banks shall forthwith so notify the
Agent, and the Agent shall forthwith advise the other Banks and the Borrower
thereof. A certificate as to the specific circumstances specified in such
notice shall be promptly submitted by such Bank or Banks to the Agent (which
shall promptly confirm the same to the Borrower and the other Banks).
Upon such date as shall be specified in such notice (which shall not be
earlier than the date such notice is given) the obligation of each of the Banks
(in the case of clauses (i) and (ii) above) or of the Bank giving such notice
(in the case of clause (iii) above) to allow the Borrower to select the
Euro-Rate Option, shall be suspended until the Bank furnishing such notice
shall have later notified the Agent of its determination in good faith (which
determination shall be presumed correct) that the circumstances giving rise to
such previous determination no longer exist.
If a Bank notifies the Agent of a determination under subsection (iii) of
this Section 2.05(e), any Euro Rate Loans covered by such notice which are then
outstanding shall be due and payable on the date specified in such notice.
Absent contrary notice from the Borrower to the Agent by 12:00 o'clock Noon,
Pittsburgh time, one Business Day prior to such date, the Borrower shall, at
the option of the Agent, be deemed to have notified the Agent at such time
pursuant to Section 2.05(a) to the effect that the Borrower requests the Banks
to make AB Rate Loans to the Borrower on such date in an aggregate principal
amount equal to the aggregate principal amount of the outstanding Loans covered
by such notice.
If, at the time the Agent or the Required Banks, as the case may be, make
a determination under subsection 2.05(e) in respect of the Euro-Rate Option,
the Borrower has previously notified the Agent that it wishes to select that
Option in respect of a proposed Loans, but such Option has not yet gone into
effect, such notification shall be deemed to provide for selection of the AB
Rate Loan instead of a Euro Rate Loan.
2.06. Prepayments. Subject to Section 2.09(b) hereof, the Borrower shall
have the right at its option from time to time to prepay any Loan in whole or
in part upon at least: (i) in the case of any AB Rate Loan, one Business Day's
prior written notice to the Agent, and Borrower shall simultaneously with
making any such prepayment provide a notice of prepayment to Agent, provided,
however, that any prepayment of any AB Rate Loan shall be in a minimum
principal amount of $500,000; and (ii) five Business Days' prior written notice
to the Agent in the case of any Euro-Rate Loan; provided, however that any
prepayment of any Loan referenced in this clause (ii) shall be in a minimum
principal amount of $1,000,000. Whenever the Borrower desires to prepay any
part of any Loan, it shall provide notice in writing to the Agent, setting
forth the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The Maturity Date, principal amount of, and interest rate
Option applicable to, the Loan to be prepaid; and
(c) The principal amount to be prepaid.
In the case of AB Rate Loans and Euro Rate Loans only, the Agent shall deliver
prepayment notices received from the Borrower to the other Banks. Notice having
been so provided, and on the date specified in such notice the principal amount
of the Loan specified in such notice, together with interest on such principal
amount to such date and any amounts due under Section 2.09(b), shall be due and
payable.
2.07 Interest Payment Dates. Interest on each AB Rate Loan and each
Federal Funds Effective Rate Loan shall be due and payable on the Maturity Date
thereof. Interest on each Euro-Rate Loan shall be due and payable on the
Maturity Date thereof and, if the corresponding Euro-Rate Maturity Period is
longer than three months, also every third month during such Maturity Period.
After maturity of any Loan (by acceleration or otherwise), interest on such
Loan shall be due and payable on demand.
2.08. Payments. All payments and prepayments to be made in respect of
principal, interest, Commitment Fees or other amounts due from the Borrower
hereunder or under any Note shall be payable at 12:00 o'clock Noon, Pittsburgh
time, on the day when due without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, and an action therefore shall
accrue on and as of the expiration of any grace period. Unless otherwise agreed
by the Agent, such payments shall be made to the Agent at its respective Office
in Dollars in funds immediately available at such Office. Such payments shall
be made without setoff, counterclaim or other deduction of any nature, and
shall be distributed by the Agent to each Bank pro-rata based upon the
Commitments of each Bank, except as may be otherwise provided herein. The
Borrower shall, at the time of making each prepayment under this Agreement,
specify to the Agent the Loan or Loans or other amounts payable by the Borrower
hereunder to which such payment is to be applied and, if the Borrower fails to
so specify or if an Event of Default has occurred, the Agent may distribute
such payment to the Banks in such manner as it or the Required Banks may
determine to be appropriate. To the extent permitted by law, after there shall
have become due (by acceleration or otherwise) interest, Commitment Fees or any
other amounts due from the Borrower hereunder or under any Note (excluding
overdue principal, which shall bear interest as described in Section 2.05(d)
hereof, but including interest payable under this Section 2.08), such amounts
shall bear interest for each day until paid (before and after judgment),
payable on demand, at a rate per annum (based on a year of 365 or 366 days, as
the case may be) which shall be 2% above the then-current Base Rate or Prime
Rate, such interest rate to change automatically from time to time effective as
of the effective date of each change in the Base Rate or Prime Rate.
2.09. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes. Reserves;
Capital Adequacy Requirements; Expenses. etc. If any now existing or hereafter
adopted Law or guideline or interpretation or application thereof by any
Official Body charged with the interpretation or administration thereof or
compliance with any request or directive of any Official Body (whether or not
having the force of law) hereafter:
(i) subjects a Bank or any Notional Euro-Rate Funding Office of any
Bank to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by the Borrower of principal,
interest, Commitment Fees or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on the overall net income
of any Bank or such Notional Euro-Rate Funding Office imposed by the
jurisdiction in which any Bank's respective principal office or Notional
Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against assets held by, credit extended
by, deposits with or for the account of, or other acquisition of funds
by, a Bank or its respective Notional Euro-Rate Funding Office (other
than requirements expressly included herein in the determination of the
Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or
credits or Commitments to extend credit by, a Bank or its respective
Notional Euro-Rate Funding Office or holding company, or (B) otherwise
applicable to the obligations of a Bank or its respective Notional
Euro-Rate Funding Office under this Agreement, or
(iv) imposes upon a Bank or its respective Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement, the Note held by any Bank or its making, maintenance or
funding of any Loans,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon a
Bank or its respective Notional Euro-Rate Funding Office with respect to this
Agreement, its Note or the making, maintenance or funding of any part of any
Loan or, in the case of any capital adequacy or similar requirement, to have
the effect of reducing the return on such Bank's or holding company's capital,
of such Bank or the Bank holding company which is the parent of such Bank
(taking into account the Bank's policies with respect to capital adequacy) by
an amount which such Bank deems to be material (such Bank being deemed for this
purpose to have made, maintained or funded each Euro-Rate Loan from a
Corresponding Source of Funds), such Bank shall from time to time notify the
Agent, who will in turn notify the Borrower of the amount determined (using any
averaging and attribution methods) by such Bank in good faith (which
determination shall be conclusive) to be necessary to compensate such Bank or
its Notional Euro-Rate Funding Office for such increase in cost, reduction in
income or additional expense reasonably allocable to the making, maintenance or
funding of Loans hereunder; provided that, if such Bank has withheld or delayed
its issuance of such notice, such Bank shall not be entitled to receive
additional amounts pursuant to this Section 2.09(a) for periods occurring prior
to the 90th day before the Bank gave such notice, and provided further that
each Bank agrees not to seek such compensation unless it seeks similar
compensation from other borrowers of such Bank from which it is entitled to
seek compensation. Such amount shall be due and payable by the Borrower to
Agent for distribution to such Bank no later than ten (10) business days after
such notice from Agent is given. A certificate by such Bank as to the amount
due under this 2.09(a) from time to time describing in reasonable detail the
determination of such amount shall be conclusive absent manifest error. Each
Bank agrees that it will use good faith efforts promptly to notify the Agent of
the occurrence of any event that would give rise to a payment under this
Section 2.09(a).
(b) Indemnity. In addition to the compensation required by subsection
(a) of this Section 2.09, the Borrower shall indemnify each Bank against any
loss or expense (including loss of margin) which the applicable Bank has
sustained or incurred as a consequence of any
(i) payment or prepayment of any part of any Euro-Rate Loan on a
day other than the last day of the corresponding Maturity Period (whether
or not such payment or prepayment is mandatory including, without
limitation a prepayment required to be made under Section 2.03(c) hereof,
and whether or not such payment or prepayment is then due),
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any notice stated
herein to be irrevocable (such Bank having in its discretion the options
(A) to give effect to any such attempted revocation and obtain indemnity
under this Section 2.09(b) or (B) to treat such attempted revocation as
having no force or effect, as if never made), or
(iii) default by the Borrower in the performance or observance of
any covenant or condition contained in this Agreement or the Notes,
including without limitation any failure of the Borrower to pay when due
(by acceleration or otherwise) any principal, interest, Commitment Fees
or any other amount due hereunder or under the Notes, or
(iv) claims, demands, losses or expenses incurred by or asserted
against any Bank or the Agent in connection with the Borrower's use of
the proceeds of any Loan and/or any Bank's role as a lender hereunder
except to the extent caused by such Bank's gross negligence or willful
misconduct.
If a Bank sustains or incurs any such loss or expense it shall from time to
time notify the Borrower of the amount determined by such Bank in good faith
(which determination shall be conclusive) to be necessary to indemnify such
Bank for such loss or expense (the Bank being deemed for this purpose to have
made, maintained or funded each Euro-Rate Loan from a Corresponding Source of
Funds). Such amount shall be due and payable by the Borrower to such Bank ten
(10) Business Days after such notice is given. Notwithstanding the provisions
of this Section 2.09(b), the Borrower shall not be required to indemnify such
Bank as a consequence of any of the events specified in clauses (i) through
(iv) of this Section 2.09(b) if the sole cause of such event is an act of God,
civil commotion, governmental action, fire, explosion, strike or other
industrial disturbance, equipment malfunction or any other cause that is beyond
the Borrower's reasonable control.
2.10. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Bank shall have the right from time to time,
prospectively or retrospectively, without notice to the Borrower, to deem any
branch, subsidiary or affiliate of such Bank to have made, maintained or funded
any of the Bank's Euro-Rate Loans at any time. Any branch, subsidiary or
affiliate so deemed shall be known as a "Notional Euro-Rate Funding Office."
Each Bank shall deem any of its Euro-Rate Loans or the funding therefor to have
been transferred to a different Notional Euro-Rate Funding Office if such
transfer would avoid or cure an event or condition described in Section
2.05(e)(ii) hereof or would lessen compensation payable by the Borrower under
Section 2.09(a) hereof, and if such Bank determines in its sole discretion that
such transfer would be practicable and would not have an adverse effect on such
Bank or on such Loans, such Bank or its Notional Euro-Rate Funding Office (it
being assumed for purposes of such determination that each such Euro-Rate Loan
is actually made or maintained by or funded through the corresponding Notional
Euro-Rate Funding Office). Notional Euro-Rate Funding Offices may be selected
by each Bank respectively without regard to each Bank's actual methods of
making, maintaining or funding Loans or any sources of funding actually used by
or available to such Bank.
(b) Actual Funding. Each Bank shall have the right from time to time to
make or maintain any Euro-Rate Loan by arranging for a branch, subsidiary or
affiliate of such Bank to make or maintain such Loan. Each Bank shall have the
right to hold any applicable Note payable to its order for the benefit and
account of such branch, subsidiary or affiliate. If a Bank causes a branch,
subsidiary or affiliate to make or maintain any Loan hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such Loan to the same extent as if such Loan were
made or maintained by such Bank.
IV. Amendment Fee. The Borrower shall pay, upon the execution of this First
Amendment by the Borrower and the Banks, an amendment facility fee in the
amount of 1/8 of 1% of the Commitment. Such amount shall be deemed fully earned
upon the execution of this First Amendment by the Borrower and the Banks and
shall not be subject to rebate or return, in whole or in part.
V. Ratification and Consent
A. The loan documents shall otherwise remain unaltered, ratified,
confirmed and in full force and effect. The Borrower hereby also ratifies and
confirms the Notes.
B. The Borrower represents and warrants as follows: There are no
defenses, offsets or counterclaims against obligations to the Banks evidenced
by the Notes or the other loan documents, and to the extent there are any
defenses, offsets or counterclaims, the same are hereby waived. All the
representations and warranties contained in the Loan Agreement are true,
correct and accurate in all material respects as of the date hereof.
C. The Banks hereby agree that up to $21.2 million in non-cash charges
as outlined in the attached Schedule 1 to be taken by the Borrower in the
fiscal third quarter of 1997 ending December 27, 1997, shall be excluded from
the covenant calculations in Section 6.1 for which such quarter is used. In all
other respects each of the covenant terms remains unmodified and unchanged.
[End of Page]
[Signature Page for First Amendment to Revolving Credit Agreement
(Haemonetics Corporation)]
IN WITNESS WHEREOF, the parties hereto have set their hand and seal as of
the date first above written.
Dated as of December 26, 1997.
HAEMONETICS CORPORATION
By: John F. White
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Its Chief Executive Officer
MELLON BANK
By: Rita C. Long
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Its Vice President