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EXHIBIT 10.51
AMENDMENT
TO
LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT ("Amendment") dated as of the _25th day
of April, 2001 (the "Effective Date"), is made by and among Bank of America,
N.A., a national banking association, and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as lenders (individually and collectively
"Lenders"), BANK OF AMERICA, N.A. as agent for Lenders ("Agent"), and SPACELABS
MEDICAL, INC., a California corporation, as borrower ("Borrower").
RECITALS
A. Lenders and Borrower are parties to that certain Amended and
Restated Loan Agreement dated as of August 11, 2000, and promissory notes
described therein as amended from time to time by written agreement or other
amendments from time to time executed by Lenders and Borrower (collectively the
"Loan Agreement"). Capitalized terms not otherwise defined herein have the
meaning given in the Loan Agreement.
B. Borrower agrees to pay Lenders an additional loan fee and agrees to
reset the interest rates applicable to the Loans on the terms and conditions set
forth in this Amendment.
C. Borrower has requested that Lenders amend the Loan Agreement and
modify certain terms and conditions contained in the Loan Agreement and related
Loan Documents. Lenders are willing to modify the Loan Agreement on the terms
herein.
NOW, THEREFORE, in consideration of the mutually agreed terms and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. RATIFICATION AND INCORPORATION OF LOAN AGREEMENT. Except as
expressly waived or modified under this Amendment, the parties hereto
acknowledge, confirm and ratify all of the terms and conditions of the Loan
Agreement, the Notes and other Loan Documents.
2. AMENDMENTS TO LOAN AGREEMENT.
2.1 SECTION 2.2(a). Section 2.2(a) of the Loan Agreement is amended to
provide that the maximum principal amount of the Revolving Loans
shall not exceed the amount of $32,500,000 at the Effective Date.
2.2 SECTION 5.15. New Section 5.15 is added to the Loan Agreement to
read as follows:
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SECTION 5.15 REFINANCING EFFORTS. If, on or
before July 31, 2001, Borrower shall fail to
provide Agent with executed commitment letters
upon the terms and conditions listed below,
then Borrower shall pay Lenders an additional
loan fee, as liquidated damages for loss of a
bargain and not as a penalty, equal to
one-quarter of one percent (0.25%) of the
aggregate of all outstanding commitments of
Lenders under (i) the Xxxxxxx commitment, (ii)
Total Revolving Commitment, and (iii) the
outstanding balance of the Term Loan, as of
July 31, 2001, which fee shall be due and
payable on or before August 6, 2001. The
commitment letters shall: (i) provide for
aggregate financing to Borrower in amounts
sufficient to satisfy and pay in full
Borrower's obligations on the Term Note, the
Xxxxxxx Notes and the Revolving Notes, and all
of Borrower's other obligations under the Loan
Documents; (ii) be binding commitments by the
financing sources subject only to customary
closing conditions reasonably satisfactory to
Lenders; (iii) provide for a closing date on
or before September 1, 2001; (iv) be with
reputable financing sources with a recognized
capacity to fund the commitments; and (v) be
in form and substance satisfactory to Lenders.
3. FINANCIAL COVENANT WAIVERS. Borrower's compliance with the
financial covenants set forth in Section 5.11 and 5.12 of the Loan Agreement is
waived for the fiscal quarter ending March 31, 2001 only. Notwithstanding the
foregoing, Borrower agrees that it will be in compliance with Sections 5.11
through 5.14 of the Loan Agreement at the fiscal quarter ending June 30, 2001.
Borrower's failure to comply with any of Sections 5.11 through 5.14 as of June
30, 2001 shall constitute an Event of Default hereunder; provided, however, that
Lenders agree that in such event Lenders shall forbear in exercising remedies
under the Loan Documents on account of such Event of Default until on or after
September 2, 2001, and provided further that no other Event of Default under the
Loan Agreement shall occur and be continuing after any applicable cure period.
4. PREPAYMENT OF LOAN OBLIGATIONS. Notwithstanding any conflicting
terms and conditions of the Loan Agreement, Notes or other Loan Documents,
Borrower hereby undertakes and agrees to use good faith efforts to close the
financing referenced in Section 2.2 of this Amendment on or before September 1,
2001. In the event Borrower fails to close on the refinancing set forth in
Section 2.2 of this Amendment by September 1, 2001, the Lenders shall reset the
interest rate. In such case, effective September 2, 2001 (the "Reset Date") and
notwithstanding any other interest rate otherwise applicable under the Loan
Agreement, the Applicable Term Interest Rate, the Applicable Xxxxxxx Interest
Rate, and the Applicable Revolving Interest Rate shall each be changed to the
Reset Rate. For purposes hereof, the "Reset Rate" shall equal the Prime Rate
plus two percent (2%) per annum, changing as the Prime Rate changes. Effective
on the Reset Date, Section 2.8(d) of the Loan Agreement shall be of no further
force or effect.
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5. RELEASE OF LENDERS. Borrower and Guarantor hereby waive, release,
acquit and forever discharge Agent, Lenders, and each of their parents,
subsidiaries, and affiliates, and their officers, directors, agents,
representatives, and employees, and their successors, heirs, and assigns, and
each of them of and from any and all claims, demands, actions, rights, damages,
costs, expenses, and causes of action whatsoever, of every kind and nature,
whether presently known or unknown, contingent or noncontingent, arising or
alleged to have arisen to date in connection with the Loan Agreement, Notes and
other Loan Documents.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Amendment, together with the Loan
Agreement and the other Loan Documents is the entire agreement between Lenders
and Borrower with respect to the subject matter hereof. This Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof. Except as otherwise
expressly modified, the Loan Documents remain in full force and effect.
6.2 COUNTERPARTS. This Amendment may be executed in one or more
identical counterparts, each of which shall be an original, but all of which
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart.
6.3 HEADINGS. Section headings used herein are for convenience of
reference only, are not part of this Amendment, and are not to be taken into
consideration in interpreting this Amendment.
6.4 RECITALS. The recitals set forth at the beginning of this
Amendment are true and correct, and such recitals are incorporated into and are
made a part of this Amendment.
6.5 GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Washington
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
6.6 CONFLICTING TERMS. In the event of any inconsistency between
the provisions of this Amendment and any provision of the Loan Agreement or any
other Loan Document, the terms of this Amendment shall govern and control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower has caused this Amendment to Loan Agreement
to be duly executed by its duly authorized signatory as of the date first
written above.
BORROWER: SPACELABS MEDICAL, INC., a Delaware
corporation
By
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Its
----------------------------------------
Address:
00000 X.X. 00xx Xxxxxx
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxx
Vice President & Corporate Controller
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, Lender has caused this Amendment to Loan Agreement to
be duly executed by its duly authorized signatory as of the date first written
above.
LENDER: BANK OF AMERICA, N.A., a national
banking association
By
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Its:
-----------------------------------
Address:
000 Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxxx
Senior Vice President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, Lender has caused this Amendment to Loan Agreement to
be duly executed by its duly authorized signatory as of the date first written
above.
LENDER: U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By
------------------------------------
Its:
-----------------------------------
Address:
000 X.X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxxxx
Vice President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, Agent has caused this Amendment to Loan Agreement to
be duly executed by its duly authorized signatory as of the date first written
above.
AGENT: BANK OF AMERICA, N.A., a national
banking association
By
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Its:
-----------------------------------
Address:
000 Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Vice President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
X-0
0
XXXXXXXXX XXXXXXXXXXXXXX
The undersigned ("Guarantor") hereby affirms that the Amended and Restated
Guaranty Agreement dated August 11, 2000 ("Guaranty"), executed and delivered to
Lenders, is in full force and effect, and the Obligations (as defined in the
Guaranty) shall include, but not be limited to, the payment and performance of
the Borrower's obligations under the Loan Agreement as amended by the forgoing
Amendment, and Guarantor further represents and agrees that the Guaranty is an
unconditional unlimited continuing guaranty of payment enforceable by its terms,
without defense or counterclaim thereto. Guarantor hereby consents to the terms
of this Amendment.
GUARANTOR: SPACELABS MEDICAL, INC.
By
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Name:
----------------------------------
Title:
---------------------------------
Address:
00000 X.X. 00xx Xxxxxx
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxxxx
Vice President & Corporate
Controller
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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