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EXHIBIT 10.61
THIRD AMENDMENT TO AGENTED LOAN AND SECURITY AGREEMENT
DATED APRIL 30, 1998 BETWEEN
POLYMEDICA CORPORATION,
LIBERTY MEDICAL SUPPLY, INC.,
POLYMEDICA HEALTHCARE, INC.,
POLYMEDICA SECURITIES, INC.
AND
BANKBOSTON, N.A.
This Third Amendment to Agented Loan and Security Agreement
(hereinafter, the "Amendment") is made as of June 29, 1999 by and among
POLYMEDICA CORPORATION, LIBERTY MEDICAL SUPPLY, INC., POLYMEDICA HEALTHCARE,
INC., and POLYMEDICA SECURITIES, INC., (hereinafter, individually and
collectively, the "Principal Borrowers") and BANKBOSTON, N.A., a national
banking association with its principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (hereinafter, the "Lender"), in consideration of the
mutual covenants contained herein and the benefits to be derived herefrom.
Unless otherwise specified herein, all capitalized terms shall have the same
meaning as set forth in the Loan Agreement (as defined hereinbelow).
W I T N E S S E T H:
WHEREAS, the Principal Borrowers executed and delivered to the Lender a
certain Agented Loan and Security Agreement dated April 30, 1998, as amended by
a certain Waiver of Default and Amendment dated as of November 30, 1998, and a
certain Second Amendment to Agented Loan and Security Agreement dated March 12,
1999, (hereinbefore and hereinafter, as amended, the "Loan Agreement") pursuant
to which, among other things, the Lender extended in favor of the Principal
Borrowers a Revolving Credit in the current maximum principal amount of
$10,000,000.00; and
WHEREAS, the Principal Borrowers have requested that the Lender amend
the Loan Agreement to revise Section 1 of Exhibit 9-8; and
WHEREAS, the Lender has indicated its willingness to do so, BUT ONLY on
the terms and conditions contained in this Amendment; and
WHEREAS, the Principal Borrowers have determined that this Amendment is
in each of the Principal Borrower's best interest.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Principal Borrowers hereby certify to the Lender that, to the
best of each of the Principal Borrower's knowledge and belief
after due inquiry, the representations and warranties contained in
the Loan Agreement, as modified by this Amendment, are true as of
the date hereof (except those of which relate to a specific date,
or to the
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extent such have become inaccurate due to transactions permitted
under the Loan Agreement) and that no Event of Default under the
Loan Agreement or any document executed in connection therewith
has occurred and is continuing.
2. The Principal Borrowers acknowledge and agree that the none of the
Principal Borrowers have any offsets, defenses, claims or
counterclaims against the Lender with respect to the Loan
Agreement, this Amendment or any other document, instrument or
agreement executed and delivered by the Principal Borrowers to the
Lender in connection therewith and, to the extent that any of the
Principal Borrowers have any such offsets, defenses, claims or
counterclaims, the Principal Borrowers hereby affirmatively WAIVE
any such offsets, defenses, claims or counterclaims and
specifically RELEASE the Lender for any such liability on account
thereof.
3. Exhibit 9-8 of the Loan Agreement is hereby amended by deleting
Section 1 thereof in its entirety and substituting the following
therefor:
"1. (a) The Principal Borrowers, in the aggregate, shall at all
times maintain net income (as defined in accordance with
GAAP) of $1.00 per fiscal quarter commencing as of the
fiscal quarter ending June 30, 1999.
(b) Liberty and Securities, singly, shall each at all times
maintain net income (as defined in accordance with GAAP)
of $1.00 per fiscal quarter commencing as of the fiscal
quarter ending June 30, 1999.
(c) Healthcare shall at no time suffer a net loss (as
defined in accordance with GAAP) in excess of
$250,000.00 per fiscal quarter commencing as of the
fiscal quarter ending June 30, 1999."
4. This Amendment and all other documents, instruments or agreements
executed in connection herewith incorporate all discussions and
negotiations between the Principal Borrowers and the Lender,
either expressed or implied, concerning the matters included
herein, any statute, custom, or usage to the contrary
notwithstanding. No such discussions or negotiations shall limit,
modify or otherwise affect the provisions hereof. No modification,
amendment, or waiver of any provision of this Amendment or the
Loan Agreement or any provision under any other agreement,
document or instrument between the Principal Borrowers and the
Lender shall be effective unless executed in writing by the party
to be charged with such modification, amendment or waiver, and if
such party be the Lender, then by a duly authorized officer
thereof.
5. Except as specifically modified herein, the Loan Agreement shall
remain in full force and effect as originally written and the
Principal Borrowers hereby ratify and confirm all terms and
conditions contained therein and further ratify and reaffirm all
representations and warranties made therein as of the date hereof.
6. This Amendment shall be construed in accordance with and governed
by the laws of the Commonwealth of Massachusetts and shall take
effect as a sealed instrument.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the date first written above.
POLYMEDICA CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Title: CFO and Treasurer
LIBERTY MEDICAL SUPPLY, INC.
By: /s/ Xxxxxx X. Xxx
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Title: Treasurer
POLYMEDICA HEALTHCARE, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Treasurer and Secretary
POLYMEDICA SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Treasurer and Clerk
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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