[LOGO]
Union Bank of Switzerland
New York Branch
January 14, 1991
COBE Laboratories, Inc.
Corporate Headquarters
1185 Oak Street
Lakewood, Colorado 80215-4407
Attention: Mr. James C. Brod, Corporate Controller
Re: Uncommitted Line of Credit
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Gentlemen:
Union Bank of Switzerland New York Branch (the "Bank") is pleased to
inform you that it has established an uncommitted line of credit in favor of
COBE Laboratories, Inc. (the "Company") pursuant to which the Bank is prepared
to consider making, in its discretion, loans to the Company (each a "Loan"),
upon the terms and conditions contained herein in such amounts, to a maximum
aggregate amount at any one time outstanding not to exceed $ 10,000,000.00 as
may be agreed between the Company and the Bank at the time of the making
thereof.
1. The Company's obligation to repay Loans shall be evidenced by its
promissory grid note (the "Note") in substantially the form of Exhibit A hereto,
dated the date hereof. The principal amount of each Loan and each payment of
principal shall be endorsed by the Bank on the schedule attached to the Note,
and such notations shall be presumptive as to the subject thereof, provided,
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however, that any failure to make any such notations shall not affect the
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obligations of the Company hereunder or under the Note.
2. The Company may utilize the above line of credit in either of the
following ways:
A. Domestic dollar loans, payable on demand, bearing a per annum
interest rate equal to the higher of the Bank's floating prime
lending rate as announced from time to time or b) .3% in excess
of the cost to the Bank of maintaining such loans, or
299 Park Avenue (212) 715-3000
New York, N.Y. 10171 Cable Address: UNIONBANK, New York
B. Eurodollar loans, with maturities of one, two, three, six, nine
or twelve months, bearing a per annum interest rate equal to .3%
over the interbank offered rate ("IBOR"), as quoted by the Bank
for periods and in amounts corresponding to the terms of such
loans.
Each Loan will bear interest from its date until maturity at the rate per annum
(calculated on the basis of a 360-day year for the actual number of days
involved) agreed between the Company and the Bank immediately prior to the
making of such Loan, payable at the maturity thereof, and if such maturity is
longer than three months, at each three month anniversary of the making of such
Loan. After maturity of a Loan, whether by acceleration or otherwise, interest
will be payable on demand at a rate equal to 3% per annum in excess of the cost
to the Bank of maintaining the Loan. The Bank's determination of such cost
shall be conclusive and binding on the Company.
3. All payments made by the Company under this agreement (the
"Letter Agreement") or the Note will be made to the Bank at 299 Park Avenue, New
York, New York or such other branch or offices as the Bank may designate.
All payments under this Letter Agreement and under the Note (including, without
limitation, payments of interest and principal) will be payable to the Bank free
and clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges other than those
imposed on the overall net income of the Bank ("Taxes"). If any Taxes are
required to be withheld or deducted from any amount payable under this Letter
Agreement or the Note, then the amount payable under this Letter Agreement or
the Note will be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or deducted therefrom,
will yield to the Bank the amount stated to be payable under this Letter
Agreement or the Note. The Company will execute and deliver to the Bank at its
request such further instruments as may be necessary or desirable to give full
force and effect to any such increase, including, but not limited to, a new Note
of the Company to be issued in exchange for any Note theretofore issued. If any
of the Taxes specified in this paragraph are paid by the Bank, the Company will,
upon demand of the Bank, reimburse the Bank for such payments, together with any
interest and penalties which may be imposed by the governmental agency, but
without any interest imposed by the Bank.
In the event that after the date hereof the implementation of or any change in
any law or regulation or any guideline or directive (whether or not having the
force of law) or the interpretation or administration thereof imposes or
modifies any capital adequacy or similar requirement and, as a result thereof,
in the opinion of the Bank, the rate of return on the Bank's capital as a
consequence of its obligations hereunder is reduced to a level below that which
it could have achieved but for such circumstances, then upon demand from time to
time the Company shall pay to the Bank such additional amounts as shall
compensate the Bank for such reduction in rate of return. In determining such
additional amount the Bank may use any reasonable averaging and attribution
methods.
4. In the event that the Company makes a repayment to the Bank of
any Loan prior to the scheduled maturity date thereof for any reason, including
without limitation, due to acceleration following the occurrence of an Event of
Default, the Company will pay to the Bank, on demand, an amount which will
compensate the Bank for any loss or premium or penalty incurred in respect of
funds obtained for the purposes of making or maintaining such loan. The Bank's
determination of such amount shall be conclusive and binding on the Company,
absent manifest error. In the event the Company is required to pay to the Bank
additional amounts in connection with loans pursuant to paragraph 3., it may, or
not less than five Business Days' written or telexed notice to the Bank prepay
the loans in whole (but not in part), without premium or penalty, but with
accrued interest on the principal being prepaid to the date of prepayment and
such amount as may be required to compensate the Bank for any loss incurred in
connection therewith (including, without limitation, any loss arising in respect
of the redeployment of funds, but excluding any consequential or indirect
damages). The Bank's determination of such amount shall be conclusive and
binding on the Company, absent manifest error.
5. The Company represents and warrants to the Bank that:
(a) The Company has full power and authority to enter into this
Letter Agreement, to make the borrowings, to execute and deliver the Note and to
incur the obligations provided for herein and therein, all of which have been
duly authorized by all proper and necessary corporate action. No consent or
approval of stockholders or any governmental authority is required as a
condition to the validity of this Letter Agreement or the Note.
(b) This Letter Agreement constitutes, and the Note, when issued
and delivered pursuant hereto for value received, will constitute, the valid and
legally binding obligations of the Company in accordance with their terms. The
Loans will rank pari passu with all other senior unsecured indebtedness of the
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Company.
(c) The unaudited consolidated balance sheet of the Company and
its subsidiaries as of September 28, 1990, for the first three quarters of its
fiscal year ending December 31, 1990, a copy of which has heretofore been
delivered to the Bank, fairly present the financial condition of the Company and
its subsidiaries and the results of its operations, as of the date and for the
period referred to and have been prepared in accordance with generally accepted
accounting principles consistently maintained throughout the period involved.
There has been no material adverse change in the business, properties, condition
(financial or other) or operations, present or prospective, of the Company or
any of its subsidiaries since September 28, 1990.
6. The Company shall request each Loan hereunder in writing (or
telephonically, to be confirmed immediately in writing) not later than by 11:00
a.m. on the day for which such Loan is requested, specifying the requested
amount and maturity date therefor. The Bank will promptly advise the Company by
telephone of the interest rate to be applicable thereto. The Company shall
accept or reject the Loan at the quoted rate at the time such notice is given by
the Bank.
The making of any Loan hereunder shall be subject to the condition
precedent that prior thereto the Bank shall have received, in form and substance
satisfactory to the Bank, a duly executed copy of the Note, accompanied by
copies of all corporate action taken to authorize this Letter Agreement, the
Note and the Loans. In addition, on the date of any Loan (i)
the Company shall have complied and be in compliance with all the terms,
covenants and conditions of this Letter Agreement which are binding upon it,
(ii) there shall have occurred no Event of Default (as defined in paragraph 9)
and no event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, and (iii) the representations and warranties
contained in paragraph 5 hereof shall be true and correct as of such date and
shall be true with the same effect as though made on and as of such date, and
the Company's request for any Loan shall be deemed to be confirmation of the
foregoing.
7. Until repayment in full of the Loans and the performance of all
other obligations of the Company hereunder, the Company will:
(a) Furnish to the Bank (i) as soon as available but in no event
more than 120 days after the close of each of the Company's fiscal years audited
consolidated balance sheets of the Company and its subsidiaries together with
audited consolidated statements of income and expense, retained earnings, paid-
in capital and surplus and changes in financial position for such fiscal year,
prepared in accordance with generally accepted accounting principles and (ii)
such additional information, reports or statements as the Bank may from time to
time reasonably request.
(b) Maintain its corporate existence, and qualify and remain
qualified to do business as a foreign corporation in each jurisdiction in which
the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary and cause each of
its subsidiaries so to do.
(c) Not create, incur, assume or suffer to exist, or permit any
subsidiary to create, incur, assume or suffer to exist any mortgage, pledge,
lien or other encumbrance of any kind (including the charge upon property
purchased under conditional sale or other title retention agreements) upon, or
any security interest in, any of this property, assets or investments, whether
now owned or hereafter acquired, except (i) liens for taxes not delinquent or
being contested in good faith and by appropriate proceedings; (ii) deposits or
pledges to secure bids, tenders, contracts (other than contracts for the payment
of money), leases, statutory obligations, surety and appeal bonds and other
obligation's of like nature arising in the ordinary course of business; (iii)
mechanics, workmen's, materialmen's or other like liens arising in the
ordinary course of business with respect to obligations which are not due or
which are being contested in good faith; (iv) any mortgage, encumbrance or other
lien upon, or security interest in, any property hereafter acquired by the
Company or any subsidiary, created contemporaneously with such acquisition to
secure or provide for the payment or financing of any part of the purchase price
thereof, or the assumption of any mortgage, encumbrance or lien upon, or
security interest in, any such property hereafter acquired existing at the time
of such acquisition, or the acquisition of any such property subject to any
mortgage, encumbrance or other lien or security interest without the assumption
thereof, provided that each such mortgage, encumbrance, lien or security
interest shall attach only to the property so acquired and fixed improvements
thereon; (v) liens and mortgages existing on the date of this Agreement as
disclosed by the Company to the Bank; (vi) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business and encumbrances consistent zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title thereto
which, in the aggregate, are not material
in amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its subsidiaries; and (vii) any extension, renewal or
replacement of the foregoing, provided that the liens and encumbrances permitted
hereunder shall not be spread to cover any additional debt or property (other
than a substitution of like property); and (viii) liens securing obligations
incurred in the ordinary course of business of the Company's subsidiary, COBE
Leasing Incorporated.
(d) Maintain a Consolidated Equity of at least $130,000,000 and
cause the ratio of Total Bank Debt to Total Consolidated Equity not to exceed
2 : 1 during fiscal year 1991 and each of the Company's fiscal years thereafter.
"Consolidated Equity" is defined as the amount by which the total consolidated
assets of the Company and its subsidiaries exceeds the total consolidated
liabilities. Total consolidated assets and total consolidated liabilities are
to be determined as to both classification of items and amount in accordance
with generally accepted accounting principles consistently maintained by the
Company. "Bank Debt" means any obligation to repay money, any indebtedness
evidenced by notes, bonds, debentures or similar obligations toward banks, and
reimbursement obligations to banks in respect of Letters of Credit.
8. If one or more of the following events (each an "Event of
Default") shall occur:
(a) Default shall be made in the payment of principal of or
interest on any Loan when due and payable or in the payment of any other amount
payable hereunder when due and payable; or
(b) Default shall be made in the due performance or observance
of any covenant contained in paragraph 7; or
(c) Default shall be made in the due observance or performance
of any other term, covenant or agreement contained in this Letter Agreement, and
such default shall have continued unremedied for a period of 30 days after any
officer of the Company becomes aware of such default; or
(d) Any representation or warranty made by the Company herein or
any statement or representation made in any certificate, report or opinion
delivered in connection herewith shall prove to have been misleading in any
material respect when made; or
(e) There shall have occurred, in the reasonable judgment of the
Bank, a material adverse change in the business, properties, condition
(financial or other) or operations, present or prospective, of the Company or
any of its subsidiaries since the date of the most recent Loan to the Company
hereunder; or
(f) Any obligation of the Company (other than its obligations
hereunder) or of any subsidiary for the payment of borrowed money is not paid
when due or becomes or is declared to be due and payable prior to the expressed
maturity thereof, or there shall have occurred an event which, with the giving
of notice or lapse of time, or both, would cause any such obligation to become,
or allow any such obligation to be declared to be, due and payable; or
(g) The Company or any subsidiary makes an assignment for the
benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent
or bankrupt, petitions or applies to any tribunal for any receiver of or any
trustee for the Company or any subsidiary or any substantial part of its
property, commences any proceeding relating to the Company or any subsidiary
under any reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, or if there is commenced against the Company or any subsidiary any such
proceeding which remains undismissed for a period of 30 days, or the Company or
any subsidiary by any act indicates its consent to, approval of or acquiescence
in any such proceeding or the appointment of any receiver of or any trustee for
the Company or any subsidiary or any substantial part of its property, or
suffers any such receivership or trusteeship to continue undischarged for a
period of 30 days; or
(h) One or more judgments against the Company or any subsidiary
or attachments against its property, which in the aggregate exceed
$ 10,000,000.00, or the operation or result of which could be to interfere
materially and adversely with the conduct of the business of the Company or any
subsidiary, remain unpaid, unstayed on appeal, undischarged, unbonded, or
undismissed for a period of 30 days; or
(i) Gambro AB, Sweden ceases at any time to directly or
indirectly own 100% of the Company's issued and outstanding stock;
then upon the happening of any of the foregoing Events of Default which shall be
continuing, the Note shall become and be immediately due and payable upon
declaration to that effect delivered by the Bank to the Company; provided, that
upon the happening of any event specified in subsection (g) of this paragraph 8,
the Note shall be immediately due and payable without declaration or other
notice to the Company. The Company expressly waives any presentment, demand,
protest or other notice of any kind.
9. This Letter Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of America. If
any suit is instituted by the Bank to enforce this Letter Agreement and/or the
Note, the Company hereby submits to jurisdiction and to the laying of venue in
the County of New York, State of New York.
10. The Company agrees to pay all reasonable out-of-pocket expenses
of the Bank (including the reasonable fees of its counsel) in connection with
the enforcement of any provision of this Letter Agreement or any amendment or
supplement and the collection of the Note.
11. Any communication, demand or notice to be given hereunder or with
respect to the Loans and the Note will be duly given when delivered in writing
or sent by telex or authenticated cable to a party at its address as indicated
below.
A communication, demand or notice given pursuant to this paragraph 11 shall be
addressed:
If to the Company, at
COBE Laboratories, Inc.
Corporate Headquarters
1185 Oak Street
Lakewood, Colorado 80215-4407
Attention: Mr. James C. Brod
Corporate Controller
If to the Bank, at
Union Bank of Switzerland
c/o New York Branch
299 Park Avenue
New York, New York 10171
Attention: Mr. Andreas Knoepfel
Assistant Vice President
12. This Letter Agreement shall be binding upon and inure to the
benefit of the Company and the Bank and their respective successors and assigns.
Please indicate your acceptance of the foregoing terms and conditions
by signing and returning to us a counterpart of this letter.
Very truly yours,
UNION BANK OF SWITZERLAND
NEW YORK BRANCH
Andreas Knoepfel Walter Graf
Assistant Vice President Assistant Treasurer
Accepted and agreed to:
COBE Laboratories, Inc.
By ________________________________ By ____________________________
Title: Title:
Date: Date:
[LOGO]
Union Bank of Switzerland
New York Branch
September 25, 1992
Cobe Laboratories, Inc.
1185 Oak Street
Lakewood, Colorado 80215
Attention: Mr. Herbert S. Lawson
Treasurer
RE: Amendment No. 1 to Letter Agreement dated January 14, 1991
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Dear Sirs:
We refer to that certain Letter Agreement (the "Agreement") dated as of
January 14, 1991 between Cobe Laboratories, Inc. (the "Company") and Union
Bank of Switzerland, New York Branch (the "Bank") extending an uncommitted
line of credit in the amount of $ 10,000,000.
This is to confirm that we have increased the uncommitted line of credit by
$5,000,000 to the new amount of $15,000,000. Furthermore, we confirm that
paragraph 2 of the Agreement is herewith amended as reads now as follows:
"2. The Company may utilize the above line of credit in either of the
following ways:
A. Domestic dollar Loans, payable on demand, in minimum amounts of
$1,000,000, bearing a per annum interest rate (calculated on the
basis of a 360 day year for the actual number of days elapsed)
equal to the higher of a) the Bank's floating prime lending rate as
announced from time to time or b) .375% in excess of the cost to
the Bank of Maintaining such Loans, or
B. Eurodollar Loans, with maturities of one, two, three, six, nine or
twelve months, in minimum amounts of $1,000,000 bearing a per annum
interest rate (calculated on the basis of a 360 day year for the
actual number of days elapsed) as agreed between the Company and
the Bank at the time of making such Loans.
Interest on each Loan will accrue from the date of the Loan until
maturity and is due and payable at the maturity thereof. After maturity
of a Loan, whether by acceleration or otherwise, interest will be
payable on demand at a rate equal to 2% per annum above the Bank's
floating prime lending rate."
In all other respects the Agreement remains in full force and effect.
299 Park Avenue (212) 715-3000
New York, N.Y. 10171-0026 Cable Address: UNIONBANK, New York
-2-
Cobe Laboratories
If you agree to the foregoing please sign and return to as the enclosed copy
of this letter and the new promissory note. Upon such execution and delivery,
the promissory note previously delivered to us under the Agreement shall be
null and void.
Sincerely,
UNION BANK OF SWITZERLAND
New York Branch
/s/ Andreas Knoepfel /s/ Walter Graf
Andreas Knoepfel Walter Graf
Assistant Vice President Assistant Vice President
Accepted and agreed to:
Cobe Laboratories, Inc.
By /s/ Herbert S. Lawson By ____________________________
Title:Vice President Title: Controller
Date: 1/28/92 Date: