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As Of Filer Filing For·On·As Docs:Size Issuer Agent 5/23/13 Mimedx Group, Inc. 8-K:1,2,8,9 5/17/13 3:326K Summit Fin’l Printing |
Document/Exhibit Description Pages Size 1: 8-K Mimedx Group Inc 8-K 5-17-2013 HTML 23K 2: EX-10.1 Material Contract HTML 164K 3: EX-99.1 Miscellaneous Exhibit HTML 9K
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(a)
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During the availability period described below, the Bank will provide a line of credit to the Borrower, The amount of the line of credit (the "Facility No 1 Commitment") is Three Million and 00/100 Dollars ($3,000,000.00).
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(b)
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This is a revolving line of credit During the availability period, the Borrower may repay principal amounts and reborrow them.
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(c)
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The Borrower agrees not to permit the principal balance outstanding to exceed the Facility No. 1 Commitment If the Borrower exceeds this limit, the Borrower will immediately pay the excess to the Bank upon the Bank's demand.
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(a)
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The Borrower will pay interest on June 1, 2013, and then on the same day of each month thereafter until payment in full of any principal outstanding under this facility,
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(b)
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The Borrower will repay in full any principal, interest or other charges outstanding under this facility no later than the Facility No. 1 Expiration Date, Any interest period for an optional interest rate (as described below) shall expire no later than the Facility No. 1 Expiration Date,
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(a)
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The interest rate is a rate per annum equal to the LIBOR Daily Floating Rate plus 2 percentage point(s),
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(b)
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The LIBOR Daily Floating Rate is a fluctuating rate of interest which can change on each banking day. The rate will be adjusted on each banking day to equal the British Bankers Association LIBOR Rate (or any successor thereto approved by the Bank if the British Bankers Association is no longer making a LIBOR rate available) for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date. The Bank will use the LIBOR Rate as published by Reuters (or other commercially available source providing quotations of such rate as selected by the Bank from time to time) as determined at approximately 11:00 a.m. London time two (2) London Banking Days prior to the date in question, as adjusted from time to time in the Bank's sole discretion for reserve requirements, deposit insurance assessment rates and other regulatory costs If such rate is not available at such time for any reason, then the rate will be
determined by such alternate method as reasonably selected by the Bank A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars,
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(i)
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standby letters of credit with a maximum maturity of three hundred sixty-five (365) and may extend more than three hundred sixty-five (365) days beyond the Facility No. 1 Expiration Date.
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(b)
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The amount of the letters of credit outstanding at any one time (including the drawn and unreimbursed amounts of the letters of credit) may not exceed One Million and 00/100 Dollars ($1,000,000.00).
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(c)
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In calculating the principal amount outstanding under the Facility No. 1 Commitment, the calculation shall include the amount of any letters of credit outstanding, including amounts drawn on any letters of credit and not yet reimbursed.
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(i)
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Any sum drawn under a letter of credit may, at the option of the Bank, be added to the principal amount outstanding under this Agreement. The amount will bear interest and be due as described elsewhere in this Agreement,
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(ii)
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If there is an event of default that has occurred and is continuing under Section 10 of this Agreement, to immediately prepay and make the Bank whole for any outstanding letters of credit,
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(iii)
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The issuance of any letter of credit and any amendment to a letter of credit is subject to the Bank's written approval and must be in form and content satisfactory to the Bank and in favor of a beneficiary acceptable to the Bank,
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(iv)
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To sign the Bank's form Application and Agreement for Commercial Letter of Credit or Application and Agreement for Standby Letter of Credit, as applicable,
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(v)
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To pay any issuance and/or other fees that the Bank notifies the Borrower will be charged for issuing and processing letters of credit for the Borrower,
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(vi)
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To allow the Bank to automatically charge its checking account for applicable fees, discounts, and other charges,
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(a)
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The interest period during which the LIBOR Rate will be in effect will be one month, two months, three months or six months. The first day of the interest period must be a day other than a Saturday or a Sunday on which banks are open for business in New York and London and dealing in offshore dollars (a "LIBOR Banking Day"). The last day of the interest period and the actual number of days during the interest period will be determined by the Bank using the practices of the London inter-bank market,
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(b)
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Each LIBOR Rate portion will be for an amount not less than One Hundred Thousand and 00/100 Dollars ($100,000.00).
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(c)
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The "LIBOR Rate" means the interest rate determined by the following formula. (All amounts in the calculation will be determined by the Bank as of the first day of the interest period ),
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| LIBOR Rate = | London Inter-Bank Offered Rate | |
| (1.00 - Reserve Percentage) |
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(i)
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"London Inter-Bank Offered Rate" means, for any applicable interest period, the rate per annum equal to the British Bankers Association LIBOR Rate (or any successor thereto approved by the Bank if the British Bankers Association is no longer making a LIBOR rate available), as published by Reuters (or other commercially available source providing quotations of such rate as selected by the Bank from time to time) at approximately 11:00 a.m. London time two (2) London Banking Days before the commencement of the interest period, for U.S. Dollar deposits (for delivery on the first day of such interest period) with a term equivalent to such interest period, If such rate is not available at such time for any reason, then the rate for that interest period will be determined by such alternate method as reasonably selected by the Bank A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore
dollars.
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(ii)
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"Reserve Percentage" means the total of the maximum reserve percentages for determining the reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D, rounded upward to the nearest 1/100 of one percent. The percentage will be expressed as a decimal, and will include, but not be limited to, marginal, emergency, supplemental, special, and other reserve percentages.
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(d)
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The Borrower shall irrevocably request a LIBOR Rate Portion no later than 12:00 noon Eastern time on the LIBOR Banking Day preceding the day on which the London Inter-Bank Offered Rate will be set, as specified above. For example, if there are no intervening holidays or weekend days in any of the relevant locations, the request must be made at least three days before the LIBOR Rate takes effect.
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(e)
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The Bank will have no obligation to accept an election for a LIBOR Rate Portion if any of the following described events has occurred and is continuing:
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(i)
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Dollar deposits in the principal amount, and for periods equal to the interest period, of a LIBOR Rate Portion are not available in the London inter-bank market, or:
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(f)
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Each prepayment of a LIBOR Rate Portion, whether voluntary, by reason of acceleration or otherwise, will be accompanied by the amount of accrued interest on the amount prepaid and a prepayment fee as described below. A "prepayment" is a payment of an amount on a date earlier than the scheduled payment date for such amount as required by this Agreement.
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(g)
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The prepayment fee is intended to compensate the Bank for the funding costs of the prepaid credit, if any, The prepayment fee will be determined by calculating the funding costs incurred by the Bank, based on the cost of funds at the time the interest rate was fixed, and subtracting the interest income which can be earned by the Bank by reinvesting the prepaid funds at the Reinvestment Rate. The calculation is defined more fully below.
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(h)
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The "Fixed Interest Rate Period" is the period during which the interest rate in effect at the time of the prepayment does not change. If the Fixed Interest Rate Period does not extend for the entire remaining life of the credit, then the following rules will apply.
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(i)
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For any portion of the prepaid principal for which the scheduled payment date is after the end of the Fixed Interest Rate Period, the prepayment fee for that portion shall be calculated based only on the period through the end of the Fixed Interest Rate Period, as described below,
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(ii)
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If a prepayment is made on a date on which the interest rate resets, then there will be no prepayment fee.
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(i)
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The prepayment fee calculation is made separately for each Prepaid Installment. A "Prepaid Installment" is the amount of the prepaid principal that would have been due on a particular scheduled payment date (the "Scheduled Payment Date"). However, as explained in the preceding paragraph, all amounts of the credit which would have been paid after the end of the Fixed Interest Rate Period shall be considered a single Prepaid Installment with a Scheduled Payment Date (for the purposes of this calculation) equal to the last day of the Fixed Interest Rate Period,
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(i)
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Calculate the monthly interest payments that would have accrued on the Prepaid Installment through the applicable Scheduled Payment Date, if the prepayment had not been made. The interest payments will be calculated using the Original Cost of Funds Rate.
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(ii)
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Next, calculate the monthly interest income which could be earned on the Prepaid Installment if it were reinvested by the Bank at the Reinvestment Rate through the Scheduled Payment Date.
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(iii)
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Calculate the monthly differences of the amounts calculated in (i) minus the amounts calculated in (ii),
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(v)
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If the remaining term of the Fixed Interest Rate Period is greater than one year, calculate the present value of the amounts calculated in (iii), using the Reinvestment Rate. The result of the present value calculation is the prepayment fee for the Prepaid Installment,
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(k)
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Finally, the prepayment fees for all of the Prepaid Installments are added together. The sum, if greater than zero, is the total prepayment fee due to the Bank,
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(i)
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"Original Cost of Funds Rate" means the fixed interest rate per annum, determined solely by the Bank, at which the Bank would be able to borrow funds in the Bank Funding Markets for the duration of the Fixed Interest Rate Period in the amount of the prepaid principal and with a term, interest payment frequency, and principal repayment schedule matching the prepaid principal.
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(ii)
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"Bank Funding Markets" means one or more wholesale funding markets available to the Bank, including the LIBOR, Eurodollar, and SWAP markets as applicable and available, or such other appropriate money market as determined by the Bank in its sole discretion,
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(iii)
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"Reinvestment Rate" means the fixed rate per annum, determined solely by the Bank, as the rate at which the Bank would be able to reinvest funds in the amount of the Prepaid Installment in the Bank Funding Markets on the date of prepayment for a period of time approximating the period starting on the date of prepayment and ending on the Scheduled Payment Date.
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(m)
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The Original Cost of Funds Rate and the Reinvestment Rate are the Bank's estimates only and the Bank is under no obligation to actually purchase or match funds for any transaction or reinvest any prepayment. The Bank may adjust the Original Cost of Funds Rate and the Reinvestment Rate to reflect the compounding, accrual basis, or other costs of the prepaid amount. The rates shall include adjustments for reserve requirements, federal deposit insurance and any other similar adjustment which the Bank deems appropriate. These rates are not fixed by or related in any way to any rate the Bank quotes or pays for deposits accepted through its branch system.
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(a)
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Inventory owned by the Borrower, other than Inventory of the Borrower that is, or is contracted to be, in the possession of another person on a consignment arrangement,
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(a)
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Loan Fee. The Borrower agrees to pay a loan fee in the amount of Twenty-Five Thousand and 00/100 Dollars ($25,000.00). This fee is due on the date of this Agreement.
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(b)
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Unused Commitment Fee. The Borrower agrees to pay a fee on any difference between the Facility No. 1 Commitment and the amount of credit it actually uses, determined by the daily amount of credit outstanding during the specified period, The fee will be calculated at 0.75% per year.
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(c)
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Waiver Fee. If the Bank, at its discretion, agrees to waive or amend any terms of this Agreement, the Borrower will, at the Bank's option, pay the Bank a fee for each waiver or amendment in an amount advised by the Bank at the time the Borrower requests the waiver or amendment, Nothing in this paragraph shall imply that the Bank is obligated to agree to any waiver or amendment requested by the Borrower. The Bank may impose reasonable and customary additional requirements as a condition to any waiver or amendment.
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(d)
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Late Fee. To the extent permitted by law, the Borrower agrees to pay a late fee in an amount not to exceed two percent (2%) of any payment that is more than fifteen (15) days late. The imposition and payment of a late fee shall not constitute a waiver of the Bank's rights with respect to the default.
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(a)
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The Borrower agrees to reimburse the Bank for any reasonable expenses it actually incurs in the preparation of this Agreement and any agreement or instrument required by this Agreement, Expenses include, but are not limited to, reasonable attorneys' fees actually incurred, including any allocated costs of the Bank's in-house counsel to the extent permitted by applicable law.
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(b)
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The Borrower agrees to reimburse the Bank for the reasonable cost of periodic appraisals of the collateral, at such intervals as the Bank may reasonably require provided that so long as there is no event of default set forth in Section 10 of this Agreement that has occurred and is continuing, the Borrower will only be required to reimburse the Bank for one appraisal per calendar year. The actions described in this paragraph may be performed by employees of the Bank or by independent appraisers.
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(a)
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Each payment by the Borrower will be made in U.S. Dollars and immediately available funds, without setoff or counterclaim Payments will be made by debit to a deposit account, if direct debit is provided for in this Agreement or is otherwise authorized by the Borrower. For payments not made by direct debit, payments will be made by mail to the address shown on the Borrower's statement, or by such other method as may be permitted by the Bank.
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(b)
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For any payment under this Agreement made by debit to a deposit account, the Borrower will maintain sufficient immediately available funds in the deposit account to cover each debit, If there are insufficient immediately available funds in the deposit account on the date the Bank enters such debit authorized by this Agreement, the Bank may reverse the debit,
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(c)
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Each disbursement by the Bank and each payment by the Borrower will be evidenced by records kept by the Bank In addition, the Bank may, at its discretion, require the Borrower to sign one or more promissory notes.
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(d)
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Prior to the date each payment of principal and interest and any fees from the Borrower becomes due (the "Due Date"), the Bank will send to the Borrower a statement of the amounts that will be due on that Due Date (the "Billed Amount"). The calculations in the bill will be made on the assumption that no new extensions of credit or payments will be made between the date of the billing statement and the Due Date, and that there will be no changes in the applicable interest rate, If the Billed Amount differs from the actual amount due on the Due Date (the "Accrued Amount"), the discrepancy will be treated as follows,
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(i)
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If the Billed Amount is less than the Accrued Amount, the Billed Amount for the following Due Date will be increased by the amount of the discrepancy. The Borrower will not be in default by reason of any such discrepancy.
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(ii)
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If the Billed Amount is more than the Accrued Amount, the Billed Amount for the following Due Date will be decreased by the amount of the discrepancy.
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(a)
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The Bank may honor instructions for advances or repayments given by the Borrower (if an individual), or by any one of the individuals authorized to sign loan agreements on behalf of the Borrower, or any other individual designated by any one of such authorized signers (each an "Authorized Individual"). Any Authorized Individual may also provide instructions to the Bank for the designation of optional interest rates and/or the issuance of letters of credit, if such features are provided under this Agreement. The Bank may honor any such instructions made by any one of the Authorized Individuals, whether such instructions are given in writing or by telephone, telefax or Internet and intranet websites designated by the Bank with respect to separate products or services offered by the Bank. The Bank's obligation to act on such instructions
is subject to the terms, conditions and procedures stated elsewhere in this Agreement.
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(b)
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Except as specified elsewhere in this Agreement, in following instructions from an Authorized Individual for advances or repayments, the Bank shall have the right, but not the obligation, to require that any advances be deposited in and repayments be withdrawn from a deposit account owned by the Borrower and held at the Bank. The Bank may require additional written authorization from the Borrower before processing advances or repayments except as provided in this subparagraph,
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(c)
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The Borrower will indemnify and hold the Bank harmless from all liability, loss, and reasonable costs actually incurred in connection with any act resulting from instructions the Bank reasonably believes are made by any Authorized Individual, whether such instructions are given in writing or by telephone, telefax or electronic communications (including e-mail, Internet and intranet websites), except to the extent that such liability, loss or costs result from the gross negligence or willful misconduct by the Bank, its officers, employees or agents as determined by a final non-appealable judgment or a court of competent jurisdiction. This paragraph will survive this Agreement's termination, and will benefit the Bank and its officers, employees, and agents.
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(a)
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The Borrower agrees that on the Due Date the Bank will debit the Billed Amount from deposit account number GA-334025804410 owned by the Borrower or such other of the Borrower's accounts with the Bank as designated in writing by the Borrower (the "Designated Account"),
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(b)
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The Borrower may terminate this direct debit arrangement at any time by sending written notice to the Bank at the address specified at the end of this Agreement,
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(a)
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any reserve or deposit requirements (excluding any reserve requirement already reflected in the calculation of the interest rate in this Agreement), and
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(a)
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Each Plan (other than a multiemployer plan) is in compliance in all material respects with ERISA, the Code and other federal or state law, including all applicable minimum funding standards and there have been no prohibited transactions with respect to any Plan (other than a multiemployer plan), which has resulted or could reasonably be expected to result in a material adverse effect,
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(ii)
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No action by the Borrower or any ERISA Affiliate to terminate or withdraw from any Plan has been taken and no notice of intent to terminate a Plan has been filed under Section 4041 or 4042 of ERISA.
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(iii)
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"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code,
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(iv)
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"Plan" means a plan within the meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, including any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA,
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(a)
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To use the proceeds of Facility No. 1 only for working capital, general corporate purposes and Permitted Acquisitions (as defined in Section 8.13 (b)),
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(a)
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Copies of the Form 10-K Annual Report for the Borrower within 90 days after the date of filing with the Securities and Exchange Commission. The statements shall be prepared on a consolidated basis.
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(b)
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Copies of the Form 10-Q Quarterly Report for the Borrower within 45 days after the date of filing with the Securities and Exchange Commission. The statements shall be prepared on a consolidated basis.
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(c)
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Within 45 days of the end of each quarter, on a consolidated basis, a compliance certificate of the Borrower signed by an authorized financial officer, and setting forth whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any default under this Agreement applicable to the party submitting the information and, if any such default exists, specifying the nature thereof and the action the party is taking and proposes to take with respect thereto.
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| Period | Ratios |
| From the date of this Agreement through December 30, 2013 | 1.5 : 1.0 |
| From December 31, 2013 and thereafter | 1 : 1.0 |
| Period | Ratios |
| From the date of this Agreement through December 30, 2013 | 1.25 : 1. 0 |
| From December 31, 2013 and thereafter | 1.5 : 1.0 |
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(d)
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Liabilities, lines of credit and leases in existence on the date of this Agreement disclosed in writing to the Bank.
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(e)
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Additional debts and lease obligations for the acquisition of fixed assets, to the extent permitted elsewhere in this Agreement.
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(b)
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Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings,
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(d)
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Additional purchase money security interests in assets acquired after the date of this Agreement.
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(e)
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Liens in respect of claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which secure obligations of not more than (30) days past due.
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(f)
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Liens in respect of judgments for the payment of money not constituting an event of default under Section 10.8 of this Agreement,
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(a)
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Not to sell, assign, lease, transfer or otherwise dispose of any part of the Borrower's business or the Borrower's assets except in the ordinary course of the Borrower's business and except for dispositions of assets which are obsolete, worn-out, or no longer used or useful in the Borrower's business.
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(b)
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Not to sell, assign, lease, transfer or otherwise dispose of any assets for less than fair market value, or enter into any agreement to do so.
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(d)
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To maintain and preserve all rights, privileges, and franchises that are material to the Borrower's business.
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(e)
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To make any repairs, renewals, or replacements to keep the Borrower's properties, which are material to its business, in good working condition.
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(iii)
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readily marketable securities (including commercial paper, but excluding restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission).
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(c)
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Extensions of credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or services in the ordinary course of business to non-affiliated entities.
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(a)
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Enter into any consolidation, merger, or other combination thereof, or become a member of a joint venture.
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(a)
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the Borrower has provided to the Bank pro forma financial statements and the Bank has in its sole discretion, approved of the form of the pro forma financial statement and determined from them that the acquisition or purchase will not violate or result in a violation of any of the covenants of this Agreement,
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(b)
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the Target (i) has a business that is similar and related to the Borrower's existing business and the assets to be purchased are useful and to be used in the Borrower's existing business, and (ii) shall have earnings before interest, taxes, depreciation and amortization for the four (4) fiscal quarter period prior to the acquisition date in an amount greater than $0, and;
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(c)
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such acquisition shall not be a "hostile" Acquisition and shall have been approved by the board of directors (or equivalent) and/or shareholders (or equivalent) of the applicable Loan Party and the Target, and
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(d)
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the cost of such acquisition paid by the Borrower and its subsidiaries (i) in connection with any single Acquisition shall not exceed $2,000,000 and (ii) for all Acquisitions made during the term of this Agreement shall not exceed $2,000,000.00.
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(a)
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Any lawsuit over Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) against the Borrower or any Obligor.
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(c)
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Any event of default under Section 10 of this Agreement, or any event which, with notice or lapse of time or both, would constitute an event of default under Section 10 of this Agreement.
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(d)
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Any material adverse change in the Borrower's or any Obligor's business condition (financial or otherwise), operations, properties, or ability to repay the credit.
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(e)
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Any change in the Borrower's or any Obligor's name, legal structure, principal residence (for an individual), state of registration (for a registered entity), place of business, or chief executive office if the Borrower or any Obligor has more than one place of business.
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(a)
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General Business Insurance. To maintain insurance reasonably satisfactory to the Bank as to amount and nature, in each case which are customary for companies of a similar size and nature to Borrower, and carrier covering property damage (including loss of use and occupancy) to any of the Borrower's properties, business interruption insurance, public liability insurance including coverage for contractual liability, product liability and workers' compensation, and any other insurance which is usual for the Borrower's business Each policy shall provide for at least 30 days prior notice to the Bank of any cancellation thereof.
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(b)
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Insurance Covering Collateral. To maintain all risk property damage insurance policies (including without limitation windstorm coverage, and hurricane coverage as applicable) covering the tangible property comprising the collateral. Each insurance policy must be for the full replacement cost of the collateral and include a replacement cost endorsement. The insurance must be issued by an insurance company acceptable to the Bank and must include a lender's loss payable endorsement in favor of the Bank in a form acceptable to the Bank.
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(c)
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Evidence of Insurance. Upon the request of the Bank, to deliver to the Bank a copy of each insurance policy, or, if permitted by the Bank, a certificate of insurance listing all insurance in force.
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(b)
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Any Plan termination (or commencement of proceedings to terminate a Plan) or the full or partial withdrawal from a Plan under Section 4041 or 4042 of ERISA.
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(a)
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This Dispute Resolution Provision concerns the resolution of any controversies or claims between the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to (i) this agreement (including any renewals, extensions or modifications), or (ii) any document related to this agreement (collectively a "Claim"). For the purposes of this Dispute Resolution Provision only, the term "parties" shall include any parent corporation, subsidiary or affiliate of the Bank involved in the servicing, management or administration of any obligation described or evidenced by this agreement.
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(b)
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At the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state.
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(c)
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Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof ("AAA"), and the terms of this Dispute Resolution Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall control If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration.
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(d)
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The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of this agreement. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons
for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
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(e)
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The arbitrator(s) will give effect to statutes of limitation in determining any Claim and shall dismiss the arbitration if the Claim is barred under the applicable statutes of limitation. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrators), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this agreement.
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(f)
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This paragraph does not limit the right of any party to (i) exercise self-help remedies, such as but not limited to, setoff, (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral, (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
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(g)
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The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
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(h)
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Any arbitration or court trial (whether before a judge or jury) of any Claim will take place on an individual basis without resort to any form of class or representative action (the "Class Action Waiver"). The Class Action Waiver precludes any party from participating in or being represented in any class or representative action regarding a Claim. Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties' agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the
limitation or invalidation of the Class Action Waiver. The Parties acknowledge and agree that under no circumstances will a class action be arbitrated.
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(i)
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By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury as permitted by law in respect of any Claim. Furthermore, without intending in any way to limit this Dispute Resolution Provision, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury to the extent permitted by law in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
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(a)
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In addition to any rights and remedies of the Bank provided by law, upon the occurrence and during the continuance of any event of default under Section 10 of this Agreement the Bank is authorized, at any time, to set off and apply any and all Deposits of the Borrower or any Obligor held by the Bank or its affiliates against any and all Obligations owing to the Bank. The set-off may be made irrespective of whether or not the Bank shall have made demand under this Agreement or any guaranty, and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable. Deposits and without regard for the availability or adequacy of other collateral. Any Deposits may be converted, sold or otherwise liquidated at prevailing market prices in order to effect such set-off.
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(b)
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The set-off may be made without prior notice to the Borrower or any other party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Obligor) to the fullest extent permitted by law. The Bank agrees promptly to notify the Borrower after any such set-off and application, provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.
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(c)
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For the purposes of this paragraph, "Deposits" means any deposits (general or special, time or demand, provisional or final, individual or joint) as well as any money, instruments, securities, credits, claims, demands, income or other property, rights or interests owned by the Borrower or any Obligor which come into the possession or custody or under the control of the Bank or Its affiliates. "Obligations" means all obligations, now or hereafter existing, of the Borrower to the Bank under this Agreement and under any other agreement or instrument executed in connection with this Agreement, and the obligations to the Bank of any Obligor.
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(a)
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represent the sum of the understandings and agreements between the Bank and the Borrower concerning this credit;
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(b)
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replace any prior oral or written agreements between the Bank and the Borrower concerning this credit, and
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(c)
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are intended by the Bank and the Borrower as the final, complete and exclusive statement of the terms agreed to by them,
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| Bank of America, N A. | ||
| By: | Joel Collins, Officer | |
| Authorized Signer, Officer | ||
| Joel Collins, Officer | ||
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MIMEDX GROUP, INC.
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||
| By: | Michael J. Senken | (Seal) |
| Michael J. Senken, Chief Financial Officer | ||
| Address where notices to MiMedx Group, Inc, are to be sent: | Address where notices to the Bank are to be sent: |
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60 Chastain Center Boulevard, Suite 60
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Doc Retention - GCF
M01-800-08-11
800 Market Street, 8th Floor
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| Telephone: | Facsimile: | (866) 255-9922 | ||
| Facsimile | ||||
| This ‘8-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 5/1/14 | ||||
| 12/31/13 | 10-K, 10-K/A | |||
| 12/30/13 | ||||
| 8/1/13 | ||||
| 6/1/13 | ||||
| Filed on: | 5/23/13 | |||
| For Period End: | 5/17/13 | |||
| List all Filings | ||||