FIRST AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT to Loan and Security Agreement (this "Amendment")
is entered into this 6th day of March, 2006, by and between SILICON VALLEY BANK,
a California corporation ("Bank") and SPECIALIZED HEALTH PRODUCTS INTERNATIONAL,
INC., a Delaware corporation, SPECIALIZED HEALTH PRODUCTS, INC., a Utah
corporation, and SAFETY SYRINGE CORPORATION, a Utah corporation (collectively,
"Borrower") whose addresses are 000 Xxxx 000 Xxxxx, Xxxxxxxxx, XX 00000.
RECITALS
A. Bank and Borrower have entered into that certain Loan and Security
Agreement with an Effective Date of February 22, 2006 (as the same may from time
to time be further amended, modified, supplemented or restated, the "Loan
Agreement").
B. Bank has extended credit to Borrower for the purposes permitted in
the Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to make
certain revisions to the Loan Agreement as more fully set forth herein.
D. Bank has agreed to so amend certain provisions of the Loan
Agreement, but only to the extent, in accordance with the terms, subject to the
conditions and in reliance upon the representations and warranties set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 Section 6.2(b). Section 6.2(b) is amended by deleting the
existing paragraph and replacing it with the following:
"(b) Within twenty (20) days after the last day of each month,
deliver to Bank a duly completed Borrowing Base Certificate signed by a
Responsible Officer, with aged listings of accounts receivable and
accounts payable (by invoice date)."
2.2 Section 6.2(d). Section 6.2(d) is amended by deleting the
existing paragraph and replacing it with the following:
"(d) Allow Bank to audit Borrower's Collateral at Borrower's
expense; provided however, that the initial Collateral audit will be
required only if (i) the total outstanding balance due under the
Revolving Line, including any Advance being requested by Borrower,
exceeds $250,000.00 or (ii) Borrower fails to comply with any term or
condition of this Agreement. Such audits shall be conducted no more
often than once every twelve (12) months unless a Default or an Event
of Default has occurred and is continuing."
2.3 Section 6.7 (Financial Covenants). Section 6.7 is amended
by deleting the existing section and replacing it with the following:
"Borrower shall maintain as of the last day of each month,
unless otherwise noted, on a consolidated basis with respect to every
Borrower:
(a) Liquidity Coverage. A ratio of unrestricted cash and Cash
Equivalents plus the Availability Amount to Obligations owed to Bank of
not less than 2.0 to 1.0.
(b) Tangible Net Worth. A Tangible Net Worth of at least
negative $250,000.00, plus 50% of all equity or capital contributed to
Borrower after the Effective Date, including Subordinated Debt, and 50%
of all positive quarterly Net Income from and after the Effective Date.
2.4 Section 13 (Definitions). Section 13 is amended by adding
the following definition:
""Availability Amount" is (a) the lesser of (i) the Revolving
Line or (ii) the Borrowing Base, and minus (b) the outstanding
principal balance of any Advances."
2.5 Exhibit E (Compliance Certificate). The Compliance
Certificate attached as Exhibit E to the Loan Agreement is hereby deleted and
replaced by the Compliance Certificate attached hereto.
3. Limitation of Amendments.
3.1 The amendments set forth in Section 2, above, are
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or (b)
otherwise prejudice any right or remedy which Bank may now have or may have in
the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and
as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
4. Representations and Warranties. To induce Bank to enter into this
Amendment, Borrower hereby represents and warrants to Bank as follows:
4.1 Immediately after giving effect to this Amendment (a) the
representations and warranties contained in the Loan Documents are true,
accurate and complete in all material respects as of the date hereof (except to
the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of
Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and
deliver this Amendment and to perform its obligations under the Loan Agreement,
as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Bank
on the Effective Date remain true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in full force and
effect;
4.4 The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations under the Loan Agreement, as
amended by this Amendment, have been duly authorized;
4.5 The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations under the Loan Agreement, as
amended by this Amendment, do not and will not contravene (a) any law or
regulation binding on or affecting Borrower, (b) any contractual restriction
with a Person binding on Borrower, (c) any order, judgment or decree of any
court or other governmental or public body or authority, or subdivision thereof,
binding on Borrower, or (d) the organizational documents of Borrower;
4.6 The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations under the Loan Agreement, as
amended by this Amendment, do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on either Borrower, except as already has been obtained or
made; and
4.7 This Amendment has been duly executed and delivered by
Borrower and is the binding obligation of Borrower, enforceable against Borrower
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. Counterparts. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
6. Effectiveness. This Amendment shall be deemed effective upon (a) the
due execution and delivery to Bank of this Amendment by each party hereto, and
(b) Borrower's payment of Bank's out-of-pocket expenses.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
BANK: BORROWER:
SILICON VALLEY BANK SPECIALIZED HEALTH PRODUCTS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Senior Relationship Manager By /s/ Xxxxxxx X. Xxxxxxx
Name Xxxxxxx X. Xxxxxxx
Title President & CEO
SPECIALIZED HEALTH PRODUCTS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
Name Xxxxxxx X. Xxxxxxx
Title President
SAFETY SYRINGE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
Name Xxxxxxx X. Xxxxxxx
Title President
