AMENDMENT TO
CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT, dated as of the day of February,
1996, by and among BANK OF AMERICA ILLINOIS, an Illinois banking corporation
("Bank"); XXXXXXX MEDICAL CORP., a New Jersey Corporation ("Borrower"); and
XXXXXXX XXXXX ("Guarantor").
Preliminary Statements
A. Bank, Borrower and Frost-Nevada, Limited Partnership, entered into that
certain Credit Agreement dated December 20, 1994 by which Bank agreed,
subject to the terms of the Credit Agreement, to make a Term Loan to the
Borrower in the principal amount of $6,000,000.00 and to establish a
Revolving Loan for the Borrower in the principal amount of $2,500,000.00.
B. Bank, Borrower and Guarantor desire to amend certain provisions of the
Credit Agreement.
IN CONSIDERATION OF the Preliminary Statements and the mutual covenants
hereinafter set forth, the parties agree that:
1. All of the Preliminary Statements are true and correct and, by this
reference, republished and confirmed. All of the terms of the Credit
Agreement are incorporated in this Amendment as if fully set forth herein.
Terms defined in the Credit Agreement and not otherwise defined herein
shall be used in this Amendment as defined in the Credit Agreement.
2. The Credit Agreement is amended as follows:
2.1 Section 1.1 of the Agreement.
The definition of "Guarantor" in Section 1.1 of the Credit Agreement is
hereby deleted and the following substituted in place thereof:
"Guarantor" shall mean XXXXXXX XXXXX.
The definition of "Transaction Documents" in Section 1.1 of the Credit
Agreement is hereby deleted and the following substituted in place thereof:
"Transaction Documents" shall mean the Credit Agreement, the Amendment
to Credit Agreement the Guarantee of Xxxxxxx Xxxxx, the Term Note, the
Revolver Note and any and all amendments to or any assignments of any of
the aforesaid.
2.2 Exhibit A to the Credit Agreement. Exhibit A to the Credit
Agreement is hereby amended as of the date hereof to be in the form set
forth as Exhibit A to this Amendment.
2.3 Section 2.1(v) of the Credit Agreement is hereby deleted and the
following substituted in place thereof:
(v) Repayment. Borrower agrees to pay the principal indebtedness
evidenced by the Term Note on or before April 14, 1999.
2.4 Exhibit B to the Credit Agreement. Exhibit B to the Credit Agreement
is hereby amended as of the date hereof to be in the form set forth as
Exhibit B to this Amendment.
2.5 Section 2.1 b. (iii) is amended by changing the date "April 14, 1996"
to "October 15, 1997."
2.6 Section 2.1 b. (v) of the Credit Agreement is hereby deleted and the
following substituted in place thereof:
(v) Repayment. Borrower agrees to pay the principal indebtedness
evidenced by the Revolving Note in full on or before October 15, 1997.
2.7 Section 2.4 of the Credit Agreement is hereby deleted and the
following substituted in place thereof:
Guarantor. The repayment of the indebtedness evidenced by the Term
Note and the Revolving Note shall be irrevocably and unconditionally
guaranteed by Xxxxxxx Xxxxx. The Guarantee of Frost-Nevada, Limited
Partnership heretofore delivered to the Bank is hereby released.
2.8 Section 6.1 a. of the Credit Agreement is hereby deleted and the
following substituted in place thereof:
a. Quarterly, a financial statement in substantially the format of
statements previously delivered by Borrower, to the Bank with specific
details as to cash flow and such other matters as are required by Bank.
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower and the Guarantors warrant that:
3.1 No Conflicts. The execution and delivery of this Amendment and the
Replacement Notes (hereinafter defined) and the performance by Borrower of
its obligations under the Agreement, as amended hereby, and the Replacement
Notes, do not and will not conflict with any provision of law or of any
agreement binding upon Borrower.
3.2 Corporate Status. Borrower is a corporation duly formed, validly
existing and in good standing (or its equivalent) under the laws of the State
of New Jersey.
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3.3 Validity and Binding Effect. The Credit Agreement, as amended hereby,
is, and the Replacement Notes when duly executed and delivered will be,
legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general principles
of equity limiting the availability of equitable remedies.
3.4 No Default. As of the closing date hereof, no Event of default shall
have occurred and be continuing.
3.5 Warranties. As of the closing date hereof, the warranties in Section 5
of the Credit Agreement and in Section 3 of this Amendment shall be true and
correct as though made on such date, except for such changes as are
specifically permitted under the Credit Agreement and except for litigation
existing against Borrower's wholly owned subsidiary, Ultrasound Technical
Services, Inc. as disclosed to the Bank.
3.6 No Material Change. As of the Closing Date, the Borrower represents
and warrants that there has been no material adverse change in the assets or
the financial condition of Borrower since the financial statements, dated
March 31, 1995.
4. CONDITIONS PRECEDENT TO AMENDMENT. The amendments contemplated by
Section 2. thereof are subject to the satisfaction of each of the following
conditions precedent:
4.1 Documentation. Borrower shall have delivered to Bank all of the
following, each duly executed and dated as of the closing date, in form and
substance satisfactory to Bank:
(a) This Amendment duly signed by Borrower and the Guarantor.
(b) Replacement Notes. Promissory notes of Borrower (the "Replacement
Notes") substantially in the forms set forth as Exhibit A and Exhibit B to
this Amendment. Upon receipt of the Replacement Notes, Bank will: (i)
record the aggregate unpaid principal amount of the Term Note, dated
December 20, 1994 and the Revolving Note, dated December 20, 1994 (the
"Original Notes") issued under the Credit Agreement in its records or, at
its option, on the schedule attached to the applicable Replacement Notes
as the aggregate unpaid principal amount evidenced by each such
Replacement Note; (ii) xxxx the Original Notes as replaced by the
applicable Replacement Notes; and (iii) return the Original Notes to the
Borrower. Thereafter, all references in the Credit Agreement and any and
all instruments or documents provided for therein or delivered
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or to be delivered thereunder or in connection therewith referring to the
Original Notes shall be deemed references to the Replacement Notes. The
replacement of the Original Notes with the Replacement Notes shall not be
construed (i) to deem paid or forgiven the unpaid principal amount of, or
unpaid accrued interest on, the Original Notes outstanding at the time of
replacement, or (ii) to release, cancel, terminate or otherwise adversely
affect all or any part of any lien, mortgage, deed of trust, assignment,
pledge, security interest or other encumbrance, if any, heretofore granted
to or for the benefit of the payee of the Original Notes which has not
otherwise been expressly released.
(c) Guarantee. The Guarantee signed by Xxxxxxx Xxxxx.
(d) Other. Such other documents as Bank may reasonably request.
5. GENERAL.
5.1 Expenses. Borrower agrees to pay the Bank upon demand for all
reasonable expenses, including reasonable attorneys' and legal assistants'
fees not to exceed $3,500.00 (which attorneys and legal assistants may be
employees of the Bank), incurred by the Bank in connection with the
preparation, negotiation and execution of this Amendment, the Replacement
Notes and any document required to be furnished therewith.
5.2 Law. THIS AMENDMENT AND THE REPLACEMENT NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE LAWS OF THE STATE OF ILLINOIS.
5.3 Successors. This Amendment shall be binding upon and inure to the
benefit of Borrower and the Guarantors and their heirs, personal
representatives, successors and permitted assigns, as appropriate, and of
Bank and their successors and assigns.
5.4 Confirmation of the Credit Agreement. Except as amended hereby, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects; provided, however, in the event of any
conflict, inconsistency or incongruity between the terms of the Credit
Agreement and the terms of this Amendment, the terms of this Amendment shall
govern and control.
5.5 References to the Credit Agreement. Each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," or words of like
import, and each reference to the Credit Agreement in any and all instruments
or documents provided for the
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Credit Agreement or delivered or to be delivered thereunder or in connection
therewith, shall, except where the context otherwise requires, be deemed a
reference to the Credit Agreement as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BANK:
BANK OF AMERICA ILLINOIS
By:
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Title:
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BORROWER:
XXXXXXX MEDICAL CORP.
By: /s/ Xxxxx X. Xxxxx
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Title: President
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GUARANTOR:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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