[ COMMERZBANK "LETTERHEAD" ]
April 28, 1995
SL/mm
Cobe Laboratories, Inc.
1185 Oak Street
Lakewood, CO 80215
Attention: Mr. Sandy Lawson
Vice President/Treasurer
U.S. $ Revolving Credit Facility
Dear Mr. Lawson:
We, Commerzbank Aktiengesellschaft (the "Bank"), acting through our respective
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Lending Offices (this term and certain other capitalized terms used herein
are defined on Attachment 2), are pleased to confirm that, on the terms and
conditions set forth herein, we hold available to you, Cobe Laboratories,
Inc., a Colorado corporation (the "Borrower"), a committed revolving credit
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facility (the "Facility") in the aggregate amount of
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USD 5,000,000.00
(USD FIVE MILLION)
until April 26, 1996 (the "Maturity Date"), subject to the following terms and
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conditions.
1. The Facility: Options. Subject to the terms and conditions herein, we will
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make advances (the "Advances") available to you under any of the Options
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listed below from the date of your acceptance of this Letter Agreement to the
Maturity Date in an amount not to exceed USD 5,000,000.00 at any one time
outstanding (such amount, unless reduced pursuant to Paragraph 5 or otherwise
terminated in accordance with the terms hereof, constituting our "Commitment").
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Within the limits of the Commitment, you may borrow, prepay in accordance with
Paragraph 6 and reborrow, provided that each Advance shall be repaid in full
not later than the Maturity Date.
The availability of any credit hereunder to the Borrower shall be subject to,
among other conditions, the receipt by the Bank, and the continued
effectiveness at all times hereunder, of a letter of comfort (the "Letter of
Comfort") executed by Gambro AB, a company organized under the law of
Sweden, in favor of the Bank in form and substance satisfactory to the Bank.
[ COMMERZBANK "LETTERHEAD" ]
page 2 of letter dd. April 28, 1995 to Cobe Laboratories, Inc.
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Options
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Eurodollar Rate Option: Eurodollar Rate Loans under the Facility may be made at
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the Eurodollar Lending Office in minimum principal amounts of USD 500,000.00
and in integral multiples of USD 100,000.00 for fixed Interest Periods
selected by the Borrower and agreed to by the Bank. The principal amount of
each Eurodollar Rate Loan shall be repaid on the last day of the Interest
Period therefor with accrued interest. The interest rate per annum for each
Eurodollar Rate Loan will be negotiated not later than two Business Days
prior to the requested drawdown and will equal the Eurodollar Rate plus 1/4
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of 1% per annum. Interest for any Interest Period longer than three months
shall also be payable on the last day of each calendar quarter after such
loan is made.
Prime Rate Option: Prime Rate Loans under the Facility may be made at the
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Domestic Lending Office either for an agreed-upon period or without a fixed
maturity date (in each case not beyond the Maturity Date), as the parties may
agree, at an interest rate per annum equal to our fluctuating Prime Rate.
The principal amount of any Prime Rate Loan shall be repaid on the earlier
of any agreed-upon maturity date or the Maturity Date and may be repaid, in
whole or in part, on any earlier date selected by the Borrower, in each case
with accrued interest on the principal amount repaid. Interest shall also
be payable on the last day of each calendar quarter on any Prime Rate Loan
then outstanding.
2. Note. Your indebtedness under the Facility shall be evidenced by the Note
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in the principal amount of USD 5,000,000.00.
3. Borrowing Procedure. Advances will be made at your request upon notice to
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us made by telephone, telex or letter, and we shall be entitled to rely upon
any such request which we believe in good faith has been made by an officer
or other person authorized to borrow on the Borrower's behalf. We will
confirm each Advance by sending you a confirmation containing the relevant
terms and conditions, which confirmation shall constitute a supplement to
and part of this Letter Agreement. You agree to confirm the terms of each
Advance by returning to the Bank a signed copy of the respective
confirmation, but notwithstanding such confirmation, you shall be deemed
to have incurred indebtedness from the Bank on terms and conditions set forth
herein in the principal amount of any credit made to your current account
with us or, if you have no account with us, equal to any amount transferred
by us on your behalf.
Each confirmation or other document or instrument executed in connection
with this Letter Agreement shall be signed on your behalf by individuals duly
authorized for such purposes by your borrowing resolution most recently
delivered to us.
Our obligation to make Advances hereunder is subject to the condition
precedent that the corresponding funding in the relevant market and amount,
and for the relevant period, is
[ COMMERZBANK "LETTERHEAD" ]
page 3 of letter dd. April 28, 1995 to Cobe Laboratories, Inc.
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available to the respective Lending Office.
4. Interest. Interest shall be calculated on the exact number of days elapsed
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based on a year of 360 days. Any amount of principal or, to the extent
permitted by law, interest on any Advance hereunder which is not paid when
due shall bear interest until paid in full at a rate per annum equal to 2
above the Prime Rate.
5. Facility Fee. You agree to pay us a facility fee of 1/8 of 1% per annum
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on the total amount of this line of credit, payable in arrears on the last
day of each March, June, September and December, with the first such
payment to be made on June 30, 1995.
6. Prepayment. On at least two Business Days' notice you may, or if it
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becomes unlawful for us to continue to fund or maintain outstanding any
extension of credit or to perform our obligations hereunder then upon our
demand you shall (and upon such demand our Commitment shall terminate),
prepay each Advance with accrued interest to the date of prepayment on the
amount prepaid, provided that if due to any such prepayment, or any other
prepayment made by you hereunder (including without limitation prepayment
made under Paragraph 8 or 13), we receive payment of principal of any such
credit other than on the last day of the Interest Period (if any) therefor,
you agree to compensate us upon our demand for any applicable Prepayment
Costs.
7. Payments and Notices. All payments of principal, interest and commitment
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fee hereunder shall be made in immediately available funds to the Federal
Reserve Bank of New York, for the account of Commerzbank Aktiengesellschaft,
New York Branch, ABA no. 026-008-044, reference Cobe Laboratories, Inc.,
Account No. 123/1004704, for the account of the respective Lending Office.
If any payment becomes due hereunder or under the Note, or any Interest
Period for an Advance would otherwise end, on a day which is not a Business
Day, then such payment shall be made, and such Interest Period shall end,
on the next succeeding Business Day and such extension of time shall be
included in the computation of interest due, but if, in the case of a
Eurodollar Rate Loan, such payment or termination would occur in a new
calendar month then the same shall occur instead on the next preceding
Business Day.
All notices and other communications hereunder shall be sent to you at your
above address, or by telefax to (303) 231-4957, or by telephone to (303)
239-2169, in each case Attention: Sandy Lawson/Denise Martinez and to the
Bank (subject to Paragraph 3 above) at 660 S. Figueroa Street, Suite 1450,
Los Angeles, CA 90017, or by telex to 678338 CZKLA or by telephone to
213-623-8223, in each case Attention: Corporate Banking I.
8. Increased Costs. If we shall determine that (a) due to any Legal Event,
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there shall be any
[ COMMERZBANK "LETTERHEAD" ]
page 4 of letter dd. April 28, 1995 to Cobe Laboratories, Inc.
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increase in our cost of funding, making or maintaining any Advance, or (b)
due to any Legal Event regarding capital adequacy, the rate of return on our
Bank's capital shall be reduced, as a consequence of any extension of
credit hereunder, to a level below that which we could have achieved but for
such Legal Event, then and in any such event you shall have the option of
either (i) paying to us an amount necessary to compensate us for such
increased cost and/or reduction or (ii) prepaying the principal amount of
the relevant Advance plus accrued interest to the date of prepayment,
together with any applicable Prepayment Costs.
9. Closing Conditions. Each Advance will be made available to you upon your
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fulfillment of the applicable conditions precedent set forth on Attachment 3
hereto.
10. Representations and Warranties. The Borrower hereby represents and
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warrants as follows:
(a) It is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Colorado.
(b) The execution, delivery and performance by it of this Letter
Agreement and the Note are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene its
charter or by-laws or any law or contractual restriction binding on or
affecting it.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery or performance by it of this
Letter Agreement or the Note.
(d) This Letter Agreement is, and the Note when delivered hereunder
will be, its legal, valid and binding obligations enforceable against it
in accordance with their respective terms.
(e) The consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1993, and the related consolidated statements
of income and retained earnings for the fiscal year then ended, copies of
which have been furnished to us, fairly present the consolidated financial
condition of it and its Subsidiaries as at such date and the respective
consolidated results of operations for the period ended on such date, all
in accordance with generally accepted accounting principles consistently
applied, and since June 30, 1994 there has been no material adverse change
in such condition or operations.
(f) There is no pending or threatened action or proceeding affecting
it or any of its Subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the financial condition
or operations of such entity.
(g) No proceeds of any Advance will be used to acquire any security in any
transaction
[ COMMERZBANK "LETTERHEAD" ]
page 5 of letter dd. April 28, 1995 to Cobe Laboratories, Inc.
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which is subject to Sections 13 and 14 of the Securities Exchange Act of
1934, and no proceeds of any Advance will be used to purchase or carry any
margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
11. Financial Statements. Applicable banking regulations and our own internal
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policies require us to maintain on file credit information sufficient for an
adequate appraisal of our assets. Accordingly, it is hereby agreed that you
will provide to us, as soon as they become available, your audited annual
and semi annual consolidated financial statements including, without limitation,
consolidated balance sheets and statements of income and changes in
financial position.
12. Covenants. So long as any of the Advances or other extensions of credit
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shall remain outstanding, the Borrower will ensure that at all times its
obligations under this Letter Agreement constitute its unconditional
general obligations ranking at least pari passu with all its other
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obligations for money borrowed (or contingent obligations in respect
thereof). Likewise, so long as any of the Advances or other extensions of
credit made by any creditor other than the Bank is guaranteed, supported or
in any way secured by whatever means other than by means of the guarantees
of the Parent, the Borrower shall at its expense also secure or cause to be
ratably guaranteed, supported or secured, as the case may be, any
indebtedness under this Note by such means, causing it to be ranked at
least pari passu with all other debt thereby guaranteed, supported or secured;
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13. Events of Default. Upon the occurrence of any of the events listed on
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Attachment 4 as "Events of Default", our Commitment shall automatically
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terminate and the Bank may declare the Note and all Advances, interest
thereon and all other amounts then outstanding hereunder to be, and in the
case of an Event of Default specified in Paragraph 6 of said Attachment the
same shall automatically be, immediately due and payable, without
presentment, demand, protest or further notice of any kind, the same being
hereby expressly waived by you, whereupon all such Advances, interest and
amounts shall be immediately due and payable.
14. Costs and Expenses. The Borrower agrees to pay on demand all losses,
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costs and expenses, if any, of the Bank in connection with the enforcement
of this Letter Agreement and the Note including, without limitation, the
reasonable fees and out-of-pocket expenses of legal counsel for the Bank.
15. Binding Effect and Severability. This Letter Agreement and the Note
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shall be binding upon and inure to the benefit of both parties hereto and
their respective successors and assigns, provided that the Borrower shall
not have the right to transfer any of its rights or obligations hereunder
without the Bank's prior written consent. If any provision of this Letter
Agreement or the Note shall be held to be invalid or unenforceable, in
whole or in part, neither the validity nor the enforceability of the
remainder hereof or thereof shall in any way be affected. Nothing
[ COMMERZBANK "LETTERHEAD" ]
page 6 of letter dd. April 28, 1995 to Cobe Laboratories, Inc.
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herein shall prohibit the Bank from pledging or assigning the Note to any
Federal Reserve Bank in accordance with applicable law.
16. Governing Law and Jurisdiction. This Letter Agreement and the Note shall be
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governed by and construed in accordance with the law of the State of New York.
Place of jurisdiction for both parties shall be the State and Federal courts
sitting in New York City, New York, to the jurisdiction of which you hereby
irrevocably submit.
Kindly express your agreement to the foregoing terms by returning to us the
attached copy of this Letter Agreement, duly signed.
We appreciate this opportunity to be of service to your fine company and
look forward to a long and mutually beneficial relationship.
Very truly yours,
C O M M E R Z B A N K
Aktiengesellschaft
Los Angeles Branch
/s/ Christian Jagenberg /s/ Steven F. Larsen
Christian Jagenberg Steven F. Larsen
SVP and Manager Vice President
AGREED AND ACCEPTED:
COBE LABORATORIES, INC.
By: /s/ George L. Garcia
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Name: George L. Garcia
Title: Corporate Controller
By: /s/ Herbert S. Lawson
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Name: Herbert S. Lawson
Title: Vice Pres., CFO
Date: 5/12/95 , 1995
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