Unassociated Document


Exhibit 10.1


 



AMENDMENT NO. 1


 


AMENDMENT NO. 1, dated as of August 21, 2012 (this “Amendment”), by and among IMMUCOR, INC., a Georgia corporation (the “Borrower”), IVD INTERMEDIATE HOLDINGS B INC., a Delaware corporation (“Holdings”), the Subsidiary Guarantor, CITIGROUP GLOBAL MARKETS INC., J.P. MORGAN SECURITIES LLC, AND UBS SECURITIES LLC (collectively, the “Lead Arrangers”), and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”) under the Credit Agreement, dated as of August 19, 2011 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among the Borrower, Holdings, CITIBANK, N.A., as administrative agent and as collateral agent under the Loan Documents, Swing Line Lender and L/C Issuer, and each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”).  Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.


 


WHEREAS, Section 10.01 of the Credit Agreement permits amendment of the Credit Agreement with consent of the Administrative Agent, the Borrower and the Lenders providing the relevant replacement term loan tranche to permit the refinancing of all outstanding Term Loans of any Class with a replacement term loan tranche thereunder;


 


WHEREAS, pursuant to the second paragraph of Section 10.01 of the Credit Agreement, the Borrower desires to create a new Class of Term B-1 Loans under the Credit Agreement having identical terms with, having the same rights and obligations under the Loan Documents as and in the same aggregate principal amount as the Term B Loans, as set forth in the Credit Agreement and Loan Documents, except as such terms are amended hereby;


 


WHEREAS, each Term Lender that executes and delivers a consent to this Amendment substantially in the form of Exhibit A hereto (a “Consent”) shall be deemed, upon effectiveness of this Amendment, to have exchanged all (or such lesser amount allocated to it by the Lead Arrangers) of its Term B Loans for Term B-1 Loans, and such Lender shall thereafter become a Term B-1 Lender;


 


WHEREAS, pursuant to Section 10.01(c) of the Credit Agreement, the Borrower desires to amend the Credit Agreement to decrease the rate of interest applicable to the Revolving Credit Loans and each Revolving Credit Lender directly affected thereby has delivered a consent hereto;


 


WHEREAS, each Person that executes and delivers a joinder to this Amendment substantially in the form of Exhibit B hereto (a “Joinder”) as an Additional Term B-1 Lender will make Additional Term B-1 Loans in the amount set forth on the signature page of such Person’s Joinder on the effective date of this Amendment to the Borrower, the proceeds of which will be used by the Borrower to repay in full the outstanding principal amount of Non-Exchanged Term B Loans;


 




  





 











  






 


WHEREAS, the Borrower shall pay to each Term Lender substantially concurrently with the effectiveness of this Amendment all accrued and unpaid interest on its Term B Loans to, but not including, the date of effectiveness of this Amendment;


 


WHEREAS, the Loan Parties and Required Lenders wish to make certain other amendments set forth in Section 2 below pursuant to amendments authorized by Section 10.01 of the Credit Agreement;


 


NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:


 


Section 1.            Amendments Relating to Term B-1 Loans and Revolving Credit Commitments.


 


Effective as of the Amendment No. 1 Effective Date, the Credit Agreement is hereby amended as follows:


 


(a)           The following defined terms shall be added to Section 1.01 of the Credit Agreement in alphabetical order:


 


“Additional Term B-1 Commitment” means, with respect to an Additional Term B-1 Lender, the commitment of such Additional Term B-1 Lender to make an Additional Term B-1 Loan on the Amendment No. 1 Effective Date, in the amount set forth on the joinder agreement of such Additional Term B-1 Lender to Amendment No. 1.  The aggregate amount of the Additional Term B-1 Commitments of all Additional Term B-1 Lenders on the Amendment No. 1 Effective Date shall equal the outstanding aggregate principal amount of Non-Exchanged Term B Loans.


 


“Additional Term B-1 Lender” means a Person with an Additional Term B-1 Commitment to make Additional Term B-1 Loans to the Borrower on the Amendment No. 1 Effective Date, which for the avoidance of doubt may be an existing Term Lender.


 


“Additional Term B-1 Loan” means a Loan that is made pursuant to Section 2.01(c)(ii) of the Credit Agreement on the Amendment No. 1 Effective Date.


 


“Amendment No. 1” means Amendment No. 1 to this Agreement dated as of August 21, 2012.


 


“Amendment No. 1 Effective Date” means August 21, 2012, the date on which all conditions precedent set forth in Section 4 of Amendment No. 1 are satisfied.


 




  





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“Exchanged Term B Loan” means each Term B Loan (or portion thereof) as to which the Lender thereof has consented to exchange into an Exchange Term B-1 Loan and the Lead Arrangers have allocated into an Exchange Term B-1 Loan.


 


“Exchange Term B-1 Commitment” means, with respect to a Term Lender, the agreement of such Term Lender to exchange the entire principal amount of its Term B Loans (or such lesser amount allocated to it by the Lead Arrangers) for an equal principal amount of Exchange Term B-1 Loans on the Amendment No. 1 Effective Date.


 


“Exchange Term B-1 Lender” means a Person with an Exchange Term B-1 Commitment to exchange Term B Loans into Exchange Term B-1 Loans of the Borrower on the Amendment No. 1 Effective Date, which for the avoidance of doubt may be an existing Term Lender.


 


“Exchange Term B-1 Loan” means a Loan that is deemed made pursuant to Section 2.01(c)(i).


 


“Non-Exchanged Term B Loan” means each Term B Loan (or portion thereof) other than an Exchanged Term B Loan.


 


“Term B-1 Loan” means any Exchange Term B-1 Loan or Additional Term B-1 Loan.


 


“Term B-1 Commitment” means any Exchange Term B-1 Commitment or Additional Term B-1 Commitment, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such Term Lender pursuant to an Assignment and Assumption.


 


(b)           All references to “Term B Loan” and “Term B Commitment” in the Credit Agreement and the Loan Documents (other than in Sections 1 and 2 of this Amendment) shall be deemed to be references to “Term B-1 Loan” and “Term B-1 Commitment,” respectively (other than any such references contained in (i) the introductory paragraphs to the Credit Agreement, (ii) the definition of “Transactions”, (iii) the definition of “Term B Commitment”, (iv) the definition of “Term Commitment”, (v) Section 2.01(a) and (vi) Section 2.06(b)).


 


(c)           Clause (b) of the definition of “Adjusted Eurodollar Rate” in Section 1.01 of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:


 


“(b) solely with respect to Term B-1 Loans, 1.25% per annum.”


 


(d)           Clause (a) of the definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:


 




  





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“(a)           with respect to Term B-1 Loans, (i) 4.50% for Eurodollar Rate Loans, and (ii) 3.50% for Base Rate Loans, and”


 


(e)             Clause (b) of the definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is hereby amended by deleting such clause in its entirety and replacing it with the following:


 


“(b)           (i) until delivery of financial statements for the first full fiscal quarter ending after the Amendment No.1 Effective Date pursuant to Section 6.01, (A) for Eurodollar Rate Loans that are Revolving Credit Loans, 4.50%, (B) for Base Rate Loans that are Dollar Revolving Credit Loans, 3.50%, (C) for Letter of Credit fees, 4.50%  and (D) for commitment fees, 0.50%, and (ii) thereafter, the following percentages per annum, based upon the Senior Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):


 



	  Applicable Rate
	
Pricing Level

	
Senior Secured Net Leverage Ratio

	
Eurodollar


Rate for Revolving Credit Loans and Letter of Credit Fees

	
Base Rate for Revolving Credit Loans

	
Commitment Fee Rate


	
1

	
> 3.00 to 1.0

	
4.50%

	
3.50%

	
0.50%


	
2

	
< 3.00 to 1.0

	
4.25%

	
3.25%

	
0.25%







 


Any increase or decrease in the Applicable Rate resulting from a change in the Senior Secured Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.”


 


(f)           The definition of “Loan Documents” in Section 1.01 of the Credit Agreement is hereby amended by deleting the word “and” prior to clause (f) thereof and replacing it with a comma and adding immediately prior to the period therein “and (g) amendments and joinders to this Agreement”.


 


(g)           The definition of “Maturity Date” in Section 1.01 of the Credit Agreement is hereby amended by deleting clause (i) thereof in its entirety and replacing it with the following:


 




  





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“(i) with respect to each of the Revolving Credit Facilities, the sixth anniversary of the Closing Date,”


 


(h)           Section 2.01 of the Credit Agreement is hereby amended by adding the following paragraph (c) to such Section:


 


“(c)           (i) Subject to the terms and conditions set forth herein and set forth in Amendment No. 1, each Term Lender severally agrees to exchange its Exchanged Term B Loans for a like principal amount of Exchange Term B-1 Loans denominated in Dollars on the Amendment No. 1 Effective Date. Amounts borrowed under this Section 2.01(c)(i) and repaid or prepaid may not be reborrowed. Exchange Term B-1 Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


 


(ii)  Subject to the terms and conditions set forth herein and set forth in Amendment No. 1, each Additional Term B-1 Lender severally agrees to make an Additional Term B-1 Loan denominated in Dollars to the Borrower on the Amendment No. 1 Effective Date in the principal amount equal to its Additional Term B-1 Commitment on the Amendment No. 1 Effective Date.  The Borrower shall prepay the Non-Exchanged Term B Loans with a like amount of the gross proceeds of the Additional Term B-1 Loans, concurrently with the receipt thereof. Amounts borrowed under this Section 2.01(c)(ii) and repaid or prepaid may not be reborrowed. Additional Term B-1 Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


 


(iii)  The Borrower shall pay to the Term Lenders substantially concurrently with the effectiveness of Amendment No. 1, all accrued and unpaid interest on the Term Loans to, but not including, the Amendment No. 1 Effective Date on such Amendment No. 1 Effective Date.


 


(iv)  The Term B-1 Loans shall have the same terms as the Term B Loans as set forth in the Credit Agreement and Loan Documents before giving effect to Amendment No. 1, except as modified by Amendment No. 1; it being understood that the Term B-1 Loans (and all principal, interest and other amounts in respect thereof) will constitute “Obligations” under the Credit Agreement and the other Loan Documents and shall have the same rights and obligations under the Credit Agreement and Loan Documents as the Term B Loans prior to the Amendment No. 1 Effective Date.”


 


(i)           Section 2.06(b) of the Credit Agreement is hereby amended by adding the following sentences to the end of such Section:


 




  





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“The Exchange Term B-1 Commitment of each Exchange Term B-1 Lender shall be automatically and permanently reduced to $0 upon the exchange of the Exchanged Term B Loans held by such Exchange Term B-1 Lender into Exchange Term B-1 Loans pursuant to Section 2.01(c)(i). The Additional Term B-1 Commitment of each Additional Term B-1 Lender shall be automatically and permanently reduced to $0 upon the making of such Additional Term B-1 Loan pursuant to Section 2.01(c)(ii).”


 


(j)           Section 2.07(a) of the Credit Agreement is hereby amended by deleting such Section in its entirety and replacing it with the following:


 


“(a) Term Loans.  The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (i) on the last Business Day of each March, June, September and December commencing with last Business Day of September 2012, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Term B-1 Loans outstanding on the Amendment No. 1 Effective Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (ii) on the Maturity Date for the Term B-1 Loans, the aggregate principal amount of all Term B-1 Loans outstanding on such date.”


 


(k)           Section 7.10 of the Credit Agreement is hereby amended by deleting such Section in its entirety and replacing it with the following:


 


“Section 7.10.  Use of Proceeds.  Use the proceeds (a) of any Borrowing on the Closing Date, whether directly or indirectly, in a manner inconsistent with the uses set forth in the preliminary statements to this Agreement and after the Closing Date use the proceeds of any Borrowing for any purpose other than general corporate purposes and working capital needs, and (b) with respect to Term B-1 Loans, for any purpose other than to refinance the Term B Loans and to pay fees and expenses in connection thereto.


 


Section 2.            Other Amendments to Credit Agreement.


 


Effective as of the Amendment No. 1 Effective Date, the Required Lenders after giving effect to the exchange of Term B Loans into Term B-1 Loans and the borrowing of the Additional Term B-1 Loans hereby agree as follows:


 


(a)           The definition of “All-In Yield” in Section 1.01 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:


 




  





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“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, a Eurodollar Rate or Base Rate floor greater than 1.25% or 2.25%, respectively, or otherwise, in each case incurred or payable by the Borrowers generally to the Lenders; provided that OID and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness); and provided, further, that “All-In Yield” shall not include arrangement fees, structuring fees, commitment fees and underwriting fees (in each case, regardless of whether paid in whole or in part to any or all Lenders) or other fees not paid to all Lenders of such Indebtedness.


 


(b)           The definition of “Permitted Ratio Debt” in Section 1.01 of the Credit Agreement is hereby amended by adding the following at the end thereof:


 


“; and, provided, further, that “Permitted Ratio Debt” may be incurred in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term indebtedness, in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, clauses (b), (c) and (e) of this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.”


 


(c)           The definition of “Permitted Refinancing” in Section 1.01 of the Credit Agreement is hereby amended by adding the following at the end thereof:


 


“; and, further provided, that with respect to Sections 7.03(g), (r), (s), (u) and (w), a “Permitted Refinancing” may be incurred in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term indebtedness, in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, clauses (b) and (d)(ii) of this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.”


 


(d)           Section 2.05(a) of the Credit Agreement is hereby amended by deleting subclause (v) thereof in its entirety and replacing it with the following:


 


“(v) Notwithstanding the foregoing, in the event that, on or prior to the first anniversary after the Amendment No. 1 Effective Date, the Borrower (x) prepays, refinances, substitutes or replaces any Term B-1 Loans in connection with a Repricing Transaction (including, for avoidance of doubt, any prepayment made pursuant to Section 2.05(b)(iii) that constitutes a Repricing Transaction), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Term Lenders, (I) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Term B-1 Loans so prepaid, refinanced, substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Term B-1 Loans outstanding immediately prior to such amendment.  Such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.”


 




  





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(e)           Section 2.14(f) of the Credit Agreement is hereby amended by deleting subclause (i) thereof in its entirety and replacing it with the following:


 


(i)       the Weighted Average Life to Maturity of all New Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence);


 


(f)           Section 2.14(f) of the Credit Agreement is hereby amended by deleting the words “made within 18 months of the Closing Date” appearing on the fourth line of subclause (vi) thereof in their entirety and replacing such words with the following:


 


“made anytime on or after the Closing Date”


 


(g)           The references to “3.75 to 1.00” in Sections 2.14(a)(y), 7.01(p)(y)(1) and 7.03(r)(A)(i)(y) of the Credit Agreement are hereby replaced with “4.00 to 1.00”.


 


(h)           The references to “6.50 to 1.00” in Sections 7.02(i)(D), 7.02(n)(ii) and 7.03(g)(A)(y) of the Credit Agreement are hereby replaced with “6.75 to 1.00”.


 


(i)           Section 7.03(g)(A) of the Credit Agreement is hereby amended by adding the following at the end thereof:


 


“; and, provided, further, that any such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term indebtedness, in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, the preceding clauses (i) and (ii) of this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.”


 


(j)           Section 7.03(r)(A)(vii) of the Credit Agreement is hereby amended by adding the following at the end thereof:


 


“; and, provided, that Incremental Equivalent Debt may be incurred in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term indebtedness, in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, this subclause (vii) shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.”


 




  





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(k)           Section 7.13 of the Credit Agreement is hereby amended by deleting Section 7.13 in its entirety and replacing it with the following:


 


SECTION 7.13.              Financial Covenant.


 


Permit the Senior Secured Net Leverage Ratio as of the last day of such Test Period to be greater than the ratio set forth below opposite the last fiscal quarter of such Test Period (such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent pursuant to Section 6.01(a) and Section 6.01(b) for such Test Period):


 



	
Fiscal Year

	
First


Quarter

	
Second


Quarter

	
Third


Quarter

	
Fourth


Quarter


	
2012

	
n/a

	
n/a

	
5.25 to 1.00

	
5.25 to 1.00


	
2013 and thereafter

	
5.25 to 1.00

	
5.25 to 1.00

	
5.25 to 1.00

	
5.25 to 1.00












 


(l)           Section 10.01 of the Credit Agreement is hereby amended by (x) deleting the comma prior to clause (a) thereof and replacing it with a period and (y) adding immediately prior to clause (a) “Notwithstanding the foregoing,”.


 


(m)           Section 10.01 of the Credit Agreement is hereby amended by adding the following sentence at the end of the second paragraph thereof:


 


“Each amendment to this Agreement providing for Replacement Term Loans may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and the Borrower to effect the provisions of this paragraph, and for the avoidance of doubt, this paragraph shall supersede any other provisions in Section 10.01 to the contrary.”


 


Section 3.            Representations and Warranties.


 


Each Loan Party represents and warrants to the Lenders as of the date hereof and the Amendment No. 1 Effective Date that:


 


(a)           Before and after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Amendment No.1 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective date.


 




  





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(b)           At the time of and after giving effect to this Amendment, no Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.


 


Section 4.            Conditions to Effectiveness.


 


This Amendment (other than Sections 1(e) and 1(g) hereof) shall become effective on the date on which each of the following conditions is satisfied:


 


(a)           The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified:


 


(1)           counterparts of this Amendment executed by (A) each Loan Party and (B) the Administrative Agent;


 


(2)           Consents to this Amendment executed by the Required Lenders; and


 


(3)           a Note executed by the Borrower in favor of each Lender requesting a Note at least two (2) Business Days prior to the Amendment No. 1 Effective Date, if any.


 


(b)           The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles or electronic copies (followed promptly by originals) unless otherwise specified;


 


(1)           an opinion of (i) Ropes & Gray LLP, New York counsel to the Loan Parties and (ii) Bryan Cave LLP, Georgia counsel to the Loan Parties, each dated the Amendment No. 1 Effective Date and addressed to the Administrative Agent and the Lenders, in a form reasonably satisfactory to the Administrative Agent;


 


(2)           (A) certificates of good standing (to the extent such concept exists in such Loan Party’s state of organization) from the applicable secretary of state of the state of organization of each Loan Party, and (B) a certificate of a Responsible Officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying (I) to the effect that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization such Loan Party certified as of a recent date by the secretary of state of the state of its organization, or in the alternative, certifying that such certificate or articles of incorporation or organization have not been amended since the Closing Date, and that such certificate or articles are in full force and effect, (x) attached thereto is a true and complete copy of the by-laws or operating agreements of each Loan Party as in effect on the Amendment No. 1 Effective Date, or in the alternative, certifying that such by-laws or operating agreements have not been amended since the Closing Date and (y) attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of each Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (II) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of any Loan Party and signed by another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (B); and


 




  





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(3)           a certificate signed by a Responsible Officer of the Borrower certifying that (x) before and after giving effect to this Amendment, the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Amendment No.1 Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective date and (y) at the time of and after giving effect to this Amendment, no Default shall exist, or would result from the Amendment and related Credit Extension or from the application of the proceeds therefrom.


 


(c)           Receipt of consents to this Amendment from Term Lenders and receipt of a Joinder Agreement executed by one or more Additional Term B-1 Lenders such that the aggregate principal amount of the Exchanged Term B Loans plus the aggregate principal amount of the Additional Term B-1 Commitments shall equal the aggregate principal amount of the outstanding Term B Loans immediately prior to the effectiveness of this Amendment.


 


(d)           The Borrower shall have paid to the Administrative Agent, for the ratable account of the Term Lenders immediately prior to the Amendment No. 1 Effective Date, all accrued and unpaid interest on the Term B Loans to, but not including, the Amendment No. 1 Effective Date on the Amendment No. 1 Effective Date.


 


(e)           All fees and expenses due to the Administrative Agent, the Lead Arrangers and the Lenders (including, without limitation, pursuant to Section 6 hereof) required to be paid on the Amendment No. 1 Effective Date and invoiced at least two (2) Business Days prior to the Amendment No. 1 Effective Date shall have been paid.


 


(f)           To the extent reasonably requested by an Additional Term B-1 Lender in writing not less than five (5) Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Borrower required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.


 




  





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(g)           The Administrative Agent shall have received a Request for Credit Extension not later than 1:00 p.m. on the Business Day prior to the date of the proposed Credit Extension.


 


With respect to the Amendments in Sections 1(e) and 1(g) only, in addition to subsections (a) through (g) above, the effectiveness of the provisions set forth in Sections 1(e) and 1(g) shall be conditioned upon the delivery by each Revolving Credit Lender to the Administrative Agent of a Consent to this Amendment.


 


The Administrative Agent shall notify the Borrower and the Lenders of the Amendment No. 1 Effective Date and such notice shall be conclusive and binding.


 


Section 5.            Waivers.


 


The Required Lenders and Administrative Agent agree that the Borrower may deliver a Request for Credit Extension pursuant to Section 4.02 of the Credit Agreement not later than 1:00 p.m. on the Business Day prior to the date of the proposed Credit Extension (in lieu of three Business Days).  The Required Lenders and Administrative Agent waive the requirement for delivery of a prepayment notice pursuant to Section 2.05 of the Credit Agreement.  The Lenders party hereto waive the payment of any breakage loss or expense under Section 3.05 of the Credit Agreement in connection with the exchange of Term B Loans into Exchange Term B-1 Loans.


 


Section 6.            Expenses.


 


The Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses incurred by it in connection with this Amendment, including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel llp, counsel for the Administrative Agent.


 


Section 7.            Counterparts.


 


This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.


 




  





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Section 8.            Governing Law and Waiver of Right to Trial by Jury.


 


THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.  The jurisdiction and waiver of right to trial by jury provisions in Section 10.15 and 10.16 of the Credit Agreement are incorporated herein by reference mutatis mutandis.


 


Section 9.            Headings.


 


The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.


 


Section 10.          Reaffirmation.


 


Each Loan Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby and (ii) its guarantee of the Obligations (including, without limitation, in respect of the Term B-1 Loans) under the Guaranty, as applicable, and its grant of Liens on the Collateral to secure the Obligations (including, without limitation, in respect of the Term B-1 Loans) pursuant to the Collateral Documents.


 



Section 11.         Effect of Amendment; References to the Credit Agreement.




 


Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.  All references to the Credit Agreement in any document, instrument, agreement, or writing shall from and after the Amendment No.1 Effective Date be deemed to refer to the Credit Agreement as amended hereby, and, as used in the Credit Agreement, the terms “Agreement,” “herein,” “hereafter,” “hereunder,” “hereto” and words of similar import shall mean, from and after the Amendment No.1 Effective Date, the Credit Agreement as amended hereby.


 







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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.


 


 




 




	 	IVD INTERMEDIATE HOLDINGS B INC., 
 
as Holdings




	 	 
	 	 
	 	
By:         /s/ William A. Hawkins 


	 	
Name:  William A. Hawkins


Title:    President and CEO


	 	 
	 	 
	 	IMMUCOR, INC., 
 
as the Borrower




	 	 
	 	 
	 	By:         /s/ William A. Hawkins 
	 	
Name:  William A. Hawkins


Title:    President and CEO


	 	 
	 	 
	 	BIOARRAY SOLUTIONS LTD., 
as a Subsidiary Guarantor


	 	 
	 	 
	 	By:           /s/ William A. Hawkins
	 	
Name:  William A. Hawkins


Title:    President and CEO







 




[SIGNATURE PAGE TO AMENDMENT NO.1]


  





  











  






 



	 	
CITIBANK, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer


	 	 
	 	 
	 	By:         /s/ Christopher Abbate
	 	
Name:  Christopher Abbate


Title:    Vice President


	 	 
	 	 
	 	CITIGROUP GLOBAL MARKETS INC., as Lead Arranger,
	 	 
	 	 
	 	By:         /s/ Christopher Abbate
	 	
Name:  Christopher Abbate


Title:    Managing Director


	 	 
	 	 
	 	J.P. MORGAN SECURITIES LLC, as Lead Arranger,
	 	 
	 	 
	 	By:         /s/ Uri Birkenfeld   
	 	
Name:  Uri Birkenfeld


Title:    Vice President


	 	 
	 	 
	 	UBS SECURITIES LLC, as Lead Arranger,
	 	 
	 	 
	 	By:         /s/ Mary E. Evans
	 	
Name:  Mary E. Evans


Title:    Attorney in Fact


	 	 
	 	 
	 	By:         /s/ David Urban
	 	
Name:  David Urban


Title:    Attorney in Fact









 




[SIGNATURE PAGE TO AMENDMENT NO.1]


  





  











  






 


EXHIBIT A


 


 


CONSENT TO AMENDMENT NO. 1


 


CONSENT TO AMENDMENT NO. 1 (this “Consent”) to Amendment No. 1 (“Amendment”), dated as of August 21, 2012 (this “Amendment”), by and among IMMUCOR, INC., a Georgia corporation (the “Borrower”), IVD INTERMEDIATE HOLDINGS B INC., a Delaware corporation (“Holdings”), the Subsidiary Guarantor, CITIGROUP GLOBAL MARKETS INC., J.P. MORGAN SECURITIES LLC, AND UBS SECURITIES LLC (collectively, the “Lead Arrangers”), and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”) under the Credit Agreement, dated as of August 19, 2011 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among the Borrower, Holdings, CITIBANK, N.A., as administrative agent and as collateral agent under the Loan Documents, Swing Line Lender and L/C Issuer, and each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”).  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Amendment.


 


Existing Term Lenders


 


The undersigned Term Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows (check ONE option):


 


Cashless Settlement Option


 



	
  

	o	
to convert 100% of the outstanding principal amount of the Term B Loan held by such Lender (or such lesser amount allocated to such Lender by the Lead Arrangers) into a Term B-1 Loan in a like principal amount.







 


Cash Settlement Option


 



	
  

	o	
to have 100% of the outstanding principal amount of the Term B Loan held by such Lender prepaid on the Amendment No. 1 Effective Date.







 


Both Cashless Settlement Option and Cash Settlement Option


 



	 	
o

	
to convert $____________ (the “Cashless Settlement Amount”) of the outstanding principal amount of the Term B Loan held by such Lender (or such lesser amount allocated to such Lender by the Lead Arrangers) into a Term B-1 Loan in a like principal amount, and to have any remaining principal amount of the Term B Loan held by such Lender prepaid on the Amendment No. 1 Effective Date.







 


Revolving Credit Lenders


 



	 	
o

	
The undersigned Revolving Credit Lender hereby irrevocably and unconditionally consents to the Amendment.







 


IN WITNESS WHEREOF, the undersigned has caused this Consent to be executed and delivered by a duly authorized officer.


 


 




	 	Date:  August __, 2012	 
	 	 	 
	 	________________________________________,	 
	 	as a Lender (type name of the legal entity)	 
	 	 	 
	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	If a second signature is necessary:	 
	 	 	 	 
	 	 	 	 
	 	By:  	 	 
	 	 	Name:	 
	 	 	Title:	 







 




  





  











  






 


EXHIBIT B


 


 


JOINDER AGREEMENT


 


JOINDER AGREEMENT, dated as of August 21, 2012 (this “Agreement”), by and among [ADDITIONAL TERM B-1 LENDER] (each, an “Additional Term B-1 Lender” and, collectively, the “Additional Term B-1 Lenders”), Immucor, Inc. (the “Borrower”), and CITIBANK, N.A. (the “Administrative Agent”).


 


RECITALS:


 


WHEREAS, reference is hereby made to the Credit Agreement, dated as of August 19, 2011 and as amended by Amendment No.1 dated as of August 21, 2012  (“Amendment No.1”) (as further as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among the Borrower, IVD Intermediate Holdings B Inc., a Delaware corporation (“Holdings”), Citigroup Global Markets Inc., J.P. Morgan Securities LLC, and UBS Securities LLC (collectively, the “Lead Arrangers”), Citibank, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer, and each lender from time to time party thereto (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement);


 


WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may establish Additional Term B-1 Commitments (the “Additional Term B-1 Commitments”) with Additional Term B-1 Lenders (which, for the avoidance of doubt, may be existing Term Lenders); and


 


WHEREAS, subject to the terms and conditions of the Credit Agreement, Additional Term B-1 Lenders shall become Lenders pursuant to one or more joinder agreements;


 


NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:


 


Each Additional Term B-1 Lender hereby agrees to provide the Additional Term B-1 Commitment set forth on its signature page hereto pursuant to and in accordance with Section 2.01(c) of the Credit Agreement.  The Additional Term B-1 Commitments provided pursuant to this Agreement shall be subject to all of the terms in the Credit Agreement and to the conditions set forth in the Credit Agreement, and shall be entitled to all the benefits afforded by the Credit Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents.  For the avoidance of doubt, each Additional Term B-1 Lender hereby consents to Amendment No.1 to the Credit Agreement.


 




  





  











  






 


Each Additional Term B-1 Lender, the Borrower and the Administrative Agent acknowledge and agree that the Additional Term B-1 Commitments provided pursuant to this Agreement shall constitute Term B-1 Commitments for all purposes of the Credit Agreement and the other applicable Loan Documents.  Each Additional Term B-1 Lender hereby agrees to make an Additional Term B-1 Loan to the Borrower in an amount equal to its Additional Term B-1 Commitment on the Amendment No. 1 Effective Date in accordance with Section 2.01(c) of the Credit Agreement.


 


Each Additional Term B-1 Lender (i) confirms that it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01(a) and (b) thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers or any other Additional Term B-1 Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.


 


Upon (i) the execution of a counterpart of this Agreement by each Additional Term B-1 Lender, the Administrative Agent and the Borrower and (ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of telecopy or other electronic transmission) hereof, each of the undersigned Additional Term B-1 Lenders shall become Lenders under the Credit Agreement and shall have the respective Additional Term B-1 Commitment set forth on its signature page hereto, effective as of the Amendment No. 1 Effective Date.


 


For each Additional Term B-1 Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Additional Term B-1 Lender may be required to deliver to the Administrative Agent pursuant to Section 3.01 of the Credit Agreement.


 


This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.


 


This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.


 


THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.


 


This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.


 




  





B-2











  






 


IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of August 21, 2012.


 



 




	 	[NAME OF ADDITIONAL TERM B-1 LENDER]	 
	 	 	 
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	If a second signature is necessary:	 
	 	 	 	 
	 	 	 	 
	 	By:  	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	Additional Term B-1 Commitments:	 
	 	 	 	 
	 	 	 	 
	 	$_________________________________	 
	 	 	 	 
	 	 	 	 
	 	IMMUCOR, INC.	 
	 	 	 	 
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 







 




 


Accepted:


 


CITIBANK, N.A.,


 


as Administrative Agent


 




 



	By:	 	 
	 	Name:	 
	 	Title:	 





 


 


B-3