EXHIBIT 10.9
EXECUTION COPY
FIRST AMENDMENT TO THE AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
FIRST AMENDMENT, dated as of August 31, 2001 (this "Amendment"), to the
Amended and Restated Loan and Security Agreement, dated as of March 2, 2001 (as
amended, supplemented, or otherwise modified from time to time, the "Credit
Agreement"), among PRIMESOURCE HEALTHCARE, INC., f/k/a LUXTEC CORPORATION, a
Massachusetts corporation (the "Borrower"), the guarantors party thereto (the
"Guarantors"), and ARK CLO 2000-1, LIMITED, a Cayman Islands exempted company
(the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower, Guarantors and Lender are parties to the Credit
Agreement;
WHEREAS, pursuant to a waiver letter dated June 28, 2001 (the "Waiver
Letter"), the Lender waived certain Acknowledged Events of Default (as that term
is defined in the Waiver Letter) under the Credit Agreement which have occurred
during the period from March 2, 2001 through June 30, 2001;
WHEREAS, the Borrower and Guarantors have requested that the Lender amend
the Credit Agreement as set forth herein;
WHEREAS, the Lender is willing to agree to such amendment to the Credit
Agreement, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings given to them in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended
as follows:
(a) AMENDMENT OF SECTION 1.01.
(i) The definition of "CURRENT LIABILITIES" contained in Section
1.01 of the Credit Agreement is hereby replaced with the following:
"CURRENT LIABILITIES": means all accounts payable and all
accruals of the Borrower and the Guarantors, on a consolidated
basis.
(ii) The definition of "NET WORTH" contained in Section 1.01 of
the Credit Agreement is hereby replaced with the following:
"Net Worth": means $2,000,000 plus the cumulative consolidated
net income or net loss of the Borrower and the Guarantors from
March 1, 2001 to the date of determination plus the net amount of
the proceeds from the issuance of any new capital stock of
Borrower, which proceeds are received by the Borrower and are not
contributed or otherwise distributed, disposed of or transferred
to another Person.
(b) AMENDMENT OF SECTION 6.01. Section 6.01 of the Credit Agreement is
hereby amended as follows:
(i) Section 6.01(f) of the Credit Agreement is amended by
deleting it in its entirety and substituting therefor the following:
(f) The ratio of (a) the Borrower's Total Liabilities to (b) Net
Worth shall, for the three month period ending on the last day of
each quarter indicated below, be equal to or less than the ratio
indicated:
Three Month Period Ending
on the Following Quarter Ends Ratio
----------------------------- -----
September 30, 2001 2.50 to 1
December 31, 2001 2.25 to 1
Each quarter end thereafter 2.00 to 1
(i) Section 6.01(i) of the Credit Agreement is amended by
deleting it in its entirety and substituting therefor the following:
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(i) The ratio of the Borrower's Current Assets to Current
Liabilities shall, for the three month period ending on the last
day of each quarter indicated below, be equal to or exceed the
ratio indicated:
Three Month Period Ending
on the Following Quarter Ends Ratio
----------------------------- -----
September 30, 2001 0.90
December 31, 2001 0.95
Each quarter end thereafter 1.00
(a) AMENDMENT OF SECTION 6.02. Section 6.02 of the Credit Agreement is
hereby amended by adding the following new subsections (u) after subsection
(t) therein to read as follows:
(u) Neither the Borrower nor any Guarantor shall make any
contributions, including but not limited to contributions of any
proceeds from the sale or issuance of new capital stock of
Borrower or Guarantor, to any Subsidiary or other Affiliate of
Borrower or any Guarantor without the prior written consent of
the Lender, the granting of which consent shall be in the
Lender's sole discretion.
2. Effectiveness. This Amendment shall become effective as of the date of
receipt by the Lender of (a) counterparts of this Amendment executed by the
Borrower and Guarantors, (b) payment of an amendment fee in the amount of $5,000
and (c) payment of all fees and expenses (including attorneys' fees) and
out-of-pocket expenses of the Lender that are due and payable from the Borrower
to the Lender in accordance with Section 10.04 of the Credit Agreement,
including but not limited to all such amounts incurred in connection with this
Amendment.
3. Representations and Warranties. The Borrower and each Guarantor hereby
confirms, reaffirms and restates the representations and warranties set forth in
Section 5 of the Credit Agreement, as amended by this Amendment. To induce the
Lender to enter into this Amendment, the Borrower and each Guarantor
individually and collectively represents and warrants that:
(a) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
(b) The total amount of all fees paid by Borrower, Guarantors,
Subsidiaries or their Affiliates, including but not limited to PrimeSource
Surgical Inc., to Citizens Bank of Massachusetts ("CITIZENS") in connection
with a certain waiver and amendment letter from Citizens, dated June 28,
2001 (the "CITIZENS WAIVER"), regarding certain Events of Default under the
Amended and Restated Credit Agreement dated June 14, 1999 by and among
PrimeSource Surgical, Inc., Bimeco, Inc., Medial Companies Alliance, Inc.,
Xxxxxxx Medical Inc. and State Street Bank and Trust Company, as amended,
does not exceed $10,000 and Borrower, Guarantors, Subsidiaries or their
Affiliates will not make any additional payments on account of the Citizens
Waiver.
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(c) An Alternative Equity Financing (as defined in the Borrower's
Certificate of Designation of Series D Exchangeable Preferred Stock) took
place on June 29, 2001 pursuant to which Borrower issued Series E Preferred
Stock which has a conversion price of $1.00 per share.
(d) Except for Permitted Liens, Lender has valid, continuing and duly
perfected first and prior liens on and first priority security interest in
the Collateral.
4. Continuing Effect of the Credit Agreement. This Amendment shall not
constitute an amendment or any provision of the Credit Agreement not expressly
referred to herein and shall not be construed as a waiver or consent to any
further or future action on the part of the Borrower that would require a waiver
or consent of the Lender. Except as expressly amended hereby, all the terms,
provisions and conditions of the Credit Agreement are and shall remain unchanged
and shall continue in full force and effect.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an executed original shall
be delivered.
6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Each of the parties hereto has caused a counterpart of this Amendment to be
duly executed and delivered as of the date first above written.
BORROWER: PRIMESOURCE HEALTHCARE, INC.,
-------- f/k/a LUXTEC CORPORATION
a Massachusetts corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS: FIBER IMAGING TECHNOLOGIES, INC.,
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a Massachusetts corporation
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Vice President and
General Manager
CATHTEC INCORPORATED,
a Massachusetts corporation
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Vice President and
General Manager
CARDIODYNE, INC.,
a Massachusetts corporation
By: /s/ Xxx Xxxxx
-------------------------------------------
Name: Xxx Xxxxx
Title: Vice President and
General Manager
LENDER: ARK CLO 2000-1, LIMITED
------
By: Patriarch Partners, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Manager
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