EXHIBIT 10.24(e)
FOURTH MODIFICATION OF
THIRD AMENDED AND RESTATED LOAN AGREEMENT
AND
FIRST MODIFICATION OF REVOLVING NOTE
THIS MODIFICATION (this "Modification") is made and entered into as of the
31st day of December, 1999, by and between CRYOLIFE, INC., a Florida corporation
("Borrower"), and BANK OF AMERICA, N.A., a national banking association which is
the successor by merger to NationsBank, N.A., formerly known as NationsBank,
N.A. (South), formerly known as Bank South, formerly known as Bank South, N.A.
("Lender").
Statement of Facts
Borrower and Lender are parties to that certain Third Amended and Restated
Loan Agreement, dated as of August 30, 1996, as amended by First Modification of
Third Amended and Restated Loan Agreement, dated as of April 14, 1997, as
further amended by Second Modification of Third Amended and Restated Loan
Agreement, dated as of December 16, 1997, and as further amended by Third
Modification of Third Amended and Restated Loan Agreement, dated as of June 12,
1998 (the "Loan Agreement").
Pursuant to the Loan Agreement, the Borrower has issued in favor of the
Lender a $2,000,000 Revolving Note, dated June 12, 1998 (the "Revolving Note").
Borrower and Lender desire to further amend the Loan Agreement and to amend
the Revolving Note as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements, warranties and representations herein made, as well as $10.00 in
hand paid by each party hereto to the other, and other good and valuable
consideration, the receipt and sufficiency which are hereby acknowledged,
Borrower and Lender agree that all capitalized terms used herein (and not
otherwise defined herein) shall have the meanings given them in the Loan
Agreement as herein amended and Borrower and Lender further agree as follows:
Statement of Terms
1. Section 101 of the Loan Agreement is hereby amended effective as of the
date hereof as follows:
(a) the date "December 31, 1999" in the definition of the term "Credit
Expiration Date" is hereby deleted, and the date "December 31, 2001" is
substituted in lieu thereof; and
(b) the date "December 31, 2004" in the definition of the term "Final
Maturity Date" is hereby deleted, and the date "December 31, 2001" is
substituted in lieu thereof.
2. Section 403 of the Loan Agreement is hereby amended effective as of the
date hereof by deleting from subpart (2) thereof the phrase "Not later than 30
days after and as of the end of each month (other than the final month of each
fiscal year)" and inserting in lieu thereof the following:
"Not later than 45 days after and as of the end of each quarter (other than
the final quarter of each fiscal year)"
3. Section 507 of the Loan Agreement is hereby amended effective as of the
date hereof by deleting subpart (b) thereof in its entirety and by substituting
in lieu thereof the following:
"Borrower shall not make Capital Expenditures in any fiscal year, with the
exception of fiscal year 2000, which exceeds $5,000,000.00 in total amount
for such year."
4. Section 507 of the Loan Agreement is hereby amended effective as of the
date hereof by deleting subpart (e) thereof in its entirety and by substituting
in lieu thereof the following:
"Borrower shall not permit its Net Worth at any time after the date hereof
to be less than $80,000,000 plus (i) 80% of the positive amount of net
income of Borrower for each fiscal quarter ending after such date and (ii)
the amount of any increase in Net Worth resulting from the issuance of
stock, corporate reorganizations, recapitalizations or any similar event."
5. The Revolving Note is hereby amended by deleting in its entirety
paragraph (b) on page 3 thereof and by substituting in lieu thereof the
following new paragraph (b):
"(b) The principal balance of this Note shall be repayable in full on the
Final Maturity Date (as defined in the Loan Agreement referred to below)."
6. The effectiveness of this Modification is subject to:
(a) the prior or concurrent receipt by Lender of this Modification, duly
executed by Borrower;
(b) any and all guarantors of the Loans shall have consented to the
execution, delivery and performance of this Modification and all of the
transactions contemplated hereby by signing one or more counterparts of
this Modification in the appropriate space indicated below and returning
same to Lender;
(c) the prior or concurrent receipt by Lender of a certificate of Borrower
in the form of Exhibit A attached hereto;
(d) the payment of all fees and expenses due from Borrower hereunder as set
forth in Section 9 below; and
(e) the truth and accuracy in all material respects of Borrower's
representations and warranties in Section 8 below.
7. Except as expressly modified herein, each of the Loan Agreement and the
Revolving Note shall remain in full force and effect. Nothing contained herein
shall be deemed to be or operate as a novation or an accord and satisfaction of
either the Loan Agreement or the Revolving Note or of any indebtedness arising
thereunder.
8. Borrower hereby represents and warrants to Lender that (a) this
Modification and the supplemental Financing Documents executed in connection
herewith have been duly authorized, executed and delivered by Borrower, (b)
after giving effect to this Modification, no Default or Event of Default has
occurred and is continuing as of this date and (c) all of the representations
and warranties made by Borrower in the Loan Agreement are true and correct in
all material respects on and as of the date of this Modification (except to the
extent that any such representations or warranties expressly referred to a
specific prior date). Any breach by Borrower of its representations and
warranties contained in this Section shall be an Event of Default for all
purposes of the Loan Agreement.
9. Borrower further agrees to reimburse Lender for all reasonable expenses
(including without limitation attorney's fees) incurred by Lender in the
negotiation, documentation or consummation of this Modification and the
transactions contemplated hereby.
10. This Modification shall be governed and construed in accordance with
the laws of the State of Georgia and this Modification shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and permitted assigns.
11. This 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.
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IN WITNESS WHEREOF, Lender has executed this Modification, and Borrower has
executed this Modification and placed its seal hereon, all as of the day and
year first above set forth.
LENDER:
BANK OF AMERICA, N.A.,
By:_____________________________________
Vice President
BORROWER:
CRYOLIFE, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
CONSENT OF GUARANTOR
All capitalized terms used herein and not otherwise defined herein shall
have the meanings given such terms in the Third Amended and Restated Loan
Agreement, dated as of August 30, 1996, between CryoLife, Inc. ("Borrower") and
Bank of America, N.A., successor by merger to NationsBank, N.A., formerly known
as NationsBank, N.A. (South) ("Lender"), as amended (the "Loan Agreement").
The undersigned acknowledges that it is indebted to Lender under the terms
of the Guaranty Agreement, dated as of August 30, 1996, executed by the
undersigned in favor of Lender (the "Guaranty"), and that the Guaranty is in
full force and effect as of the date hereof, has not been amended, rescinded,
revoked or terminated by such party through the date hereof, and continues to
constitute the legal, valid and binding obligation of the undersigned
enforceable against the undersigned in accordance with its terms. The
undersigned hereby confirms and reaffirms all of its obligations and liabilities
to Lender under the Guaranty and further confirms and agrees that pursuant to
the Guaranty, the undersigned has guaranteed the payment and performance of the
Revolving Note, the Additional Term Note and each Hedge Agreement now or
hereafter in effect, and all obligations, liabilities and indebtedness of
Borrower arising thereunder or evidenced thereby.
The undersigned also consents to and approves the execution, delivery and
performance of the Fourth Modification of Third Amended and Restated Loan
Agreement and First Modification of Revolving Note, dated as of the date hereof,
between Lender and Borrower (the "Fourth Modification") and all the transactions
contemplated thereby. The undersigned also agrees that all indebtedness,
obligations and liabilities of Borrower to Lender which may now or hereafter
arise under or by reason of the Loan Agreement, including without limitation
Borrower's obligations in respect of Loans advanced pursuant to the Loan
Agreement, and all obligations arising under any Hedge Agreement, constitute
part of the obligations of Borrower to Lender which are guaranteed by the
undersigned under the terms and conditions of the Guaranty.
SIGNED, SEALED AND DELIVERED as of the 31st day of December, 1999.
CRYOLIFE INTERNATIONAL, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
CONSENT OF GUARANTOR
All capitalized terms used herein and not otherwise defined herein shall
have the meanings given such terms in the Third Amended and Restated Loan
Agreement, dated as of August 30, 1996, between CryoLife, Inc. ("Borrower") and
Bank of America, N.A., successor by merger to NationsBank, N.A., formerly known
as NationsBank, N.A. (South) ("Lender"), as amended (the "Loan Agreement").
The undersigned acknowledges that it is indebted to Lender under the terms
of the Guaranty Agreement, dated as of April 14, 1997, executed by the
undersigned in favor of Lender (the "Guaranty"), and that the Guaranty is in
full force and effect as of the date hereof, has not been amended, rescinded,
revoked or terminated by such party through the date hereof, and continues to
constitute the legal, valid and binding obligation of the undersigned
enforceable against the undersigned in accordance with its terms. The
undersigned hereby confirms and reaffirms all of its obligations and liabilities
to Lender under the Guaranty and further confirms and agrees that pursuant to
the Guaranty, the undersigned has guaranteed the payment and performance of the
Revolving Note, the Additional Term Note and each Hedge Agreement now or
hereafter in effect, and all obligations, liabilities and indebtedness of
Borrower arising thereunder or evidenced thereby.
The undersigned also consents to and approves the execution, delivery and
performance of the Fourth Modification of Third Amended and Restated Loan
Agreement and First Modification of Revolving Note, dated as of the date hereof,
between Lender and Borrower (the "Fourth Modification") and all the transactions
contemplated thereby. The undersigned also agrees that all indebtedness,
obligations and liabilities of Borrower to Lender which may now or hereafter
arise under or by reason of the Loan Agreement, including without limitation
Borrower's obligations in respect of Loans advanced pursuant to the Loan
Agreement, and all obligations arising under any Hedge Agreement, constitute
part of the obligations of Borrower to Lender which are guaranteed by the
undersigned under the terms and conditions of the Guaranty.
SIGNED, SEALED AND DELIVERED as of the 31st day of December, 1999.
IDEAS FOR MEDICINE, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
Exhibit A
CERTIFICATE OF CRYOLIFE, INC.
The undersigned officers of CRYOLIFE, INC. (the "Borrower"), a Florida
corporation, hereby certify and covenant in their representative capacities on
behalf of the Borrower as follows:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, with all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business, and is duly qualified to do business in every
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary.
2. The resolutions of the Directors of the Borrower adopted as of August
28, 1996, March 27, 1997, December 19, 1997 and July 24, 1998, which resolutions
were previously certified by officers of the Borrower as being true and correct
(the "Resolutions"), are in full force and effect and have not been amended,
altered or repealed as of the date hereof. Signed originals of the Resolutions
appear in the minute book of the Borrower. The Resolutions were adopted in
accordance with law and in accordance with the By-Laws of the Borrower. A true
and correct copy of the Borrower's Articles of Incorporation, as in effect on
the date hereof, is attached hereto as Exhibit 1. A true and correct copy of the
Borrower's By-Laws, as in effect on the date hereof, is attached hereto as
Exhibit 2.
3. The Borrower has duly authorized, executed and delivered, and approved
by all necessary corporate action, the Fourth Modification of Third Amended and
Restated Loan Agreement and First Modification of Note, dated as of December 31,
1999, by an between the Borrower and Bank of America, N.A. (the "Fourth
Modification"), pursuant to, and in full compliance with, authority granted by
the Directors of the Borrower in the Resolutions. The Borrower hereby
acknowledges receipt of an executed counterpart or photocopy (as executed) of
the Fourth Modification.
4. The persons named below are on the date hereof the duly elected and
qualified incumbents of the offices of the Borrower set forth below next to
their respective names, and the signatures appearing at the right of their
respective names below are the genuine signatures of such officers:
Name and Title Signature
Steven G. Anderson, President and Chief Executive _________________________
Officer
Edwin B. Cordell, Jr., Vice President and Chief _________________________
Financial Officer
5. The Borrower has the corporate power to execute the Fourth Modification
and to perform the obligations required to be performed by the Borrower under
the terms of the Fourth Modification.
6. As of the date hereof, and after giving effect to the execution and
delivery of the Fourth Modification, each of the representations and warranties
of the Borrower in the Fourth Modification is true and correct in all material
respects and no Default or Event of Default (as such terms are defined in the
Fourth Modification or the Loan Agreement referred to therein) has occurred and
is continuing.
7. The seal affixed to this certificate and the Fourth Modification is the
legally adopted, proper and only official corporate seal of the Borrower.
8. The Borrower's chief executive office and principal place of business
(within the meaning of Official Code of Georgia Annotated Section
11-9-401(1)(b)) is located in Cobb County, Georgia and its principal executive
office (within the meaning of Section 6323(f) of the Internal Revenue Code of
1986, as amended) is located in Cobb County, Georgia.
9. The Borrower's federal taxpayer identification number is 59-2417093.
IN WITNESS WHEREOF, the undersigned have hereunto set their signatures and
the seal of the Borrower as of the 31st day of December, 1999.
____________________________________________________
Steven G. Anderson, President and Chief Executive
Officer of CryoLife, Inc.
(CORPORATE SEAL)
____________________________________________________
Edwin B. Cordell, Jr., Vice President and Chief
Financial Officer of CryoLife, Inc.
EXHIBIT 1
See attached Articles of Incorporation
EXHIBIT 2
See attached By-Laws