Exhibit 10.5
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FIRST AMENDMENT TO THE LOAN AND SECURITY AGREEMENT DATED AS
OF OCTOBER 3, 1997
AMONG X. X. XXXXX DRUG COMPANY, GENERAL DRUG COMPANY,
SBS PHARMACEUTICALS, INC., XXXXX XXXXXXXX COMPANY, INC.,
LASALLE BUSINESS CREDIT, INC., AS A LENDER AND AS AGENT FOR THE
LENDERS, XXXXXX FINANCIAL, INC., AS A LENDER, AMERICAN
NATIONAL BANK & TRUST COMPANY OF CHICAGO, AS A
LENDER, AND CERTAIN OTHER FINANCIAL
INSTITUTIONS SIGNATORIES THERETO
THIS FIRST AMENDMENT is made as of the 24th day of December, 1997 to the
Loan and Security Agreement dated October 3, 1997 ("Loan Agreement;" unless
otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Loan Agreement) among X. X. Xxxxx Drug Company, General
Drug Company, SBS Pharmaceuticals, Inc., Xxxxx Xxxxxxxx Company, Inc.
(collectively, "Borrowers"), Xxxxxx Financial, Inc., as a Lender, American
National Bank & Trust Company of Chicago, as a Lender, certain financial
institutions signatories thereto from time to time (collectively, "Lenders"),
and LaSalle Business Credit, Inc. (individually as a Lender and, in its capacity
as agent for Lenders, "Agent").
WHEREAS, Borrowers have requested that Agent and Lenders amend the Loan
Agreement in certain respects, and Agent and Lenders have agreed to do so
subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
herein contained, and such other consideration as the parties mutually agree,
the parties hereto agree as follows:
1. Amendment. Borrowers, Agent and Lenders agree to amend the Loan
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Agreement as follows:
(a) Section 1 of EXHIBIT A-SPECIAL PROVISIONS of the Loan Agreement is
hereby amended to (i) delete the reference to "Ninety Million Dollars
($90,000,000)" contained in the proviso and to replace it therein with a
reference to "Ninety-Five Million Dollars ($95,000,000) from December 24, 1997
through and including December 30, 1997; and Ninety Million Dollars
($90,000,000) at all times on and after December 31, 1997"; and (ii) delete the
reference to "Ninety-Two Million Nine-Hundred Sixty-Four Thousand Four Hundred
Sixty-Six and 61/100 Dollars ($92,964,466.61)" contained in the proviso and to
replace it therein with a reference to "Ninety-Seven Million Nine-Hundred Sixty-
Four Thousand Four Hundred Sixty-Six and 61/100 Dollars ($97,964,466.61) from
December 24, 1997 through and including December 30, 1997; and Ninety-Two
Million Nine-Hundred Sixty-Four Thousand Four Hundred Sixty-Six and 61/100
Dollars ($92,964,466.61) at all times on and after December 31, 1997".
2. Representations and Warranties of Borrowers. Each Borrower represents
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and warrants that, as of the date hereof, after giving effect to the
consummation of
the transactions contemplated hereby and the other agreements executed in
connection herewith:
(a) Such Borrower has the right and power and is duly authorized to enter
into this Agreement and all other agreements executed in connection herewith;
(b) No Event of Default or an event or condition which upon notice, lapse
of time or both will constitute an Event of Default has occurred and is
continuing;
(c) The execution, delivery and performance by such Borrower of this
Agreement and the other agreements to which such Borrower is a party (i) have
been duly authorized by all necessary action on its part; (ii) do not and will
not, by the lapse of time, giving of notice or otherwise, violate the provisions
of the terms of its Articles of Certificate of Incorporation or By-Laws, or of
any mortgage, indenture, security agreement, contract, undertaking or other
agreement to which such Borrower is a party, or which purports to be binding on
such Borrower or any of its properties; (iii) do not and will not, by lapse of
time, the giving of notice or otherwise, contravene any governmental restriction
to which such Borrower or any of its properties may be subject, and (iv) do not
and will not, except as contemplated in the Loan Agreement, result in the
imposition of any lien, charge, security interest or encumbrance upon any of
such Borrower's properties under any indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which such Borrower is a
party or which purports to be binding on such Borrower or any of its properties;
(d) No consent, license, registration or approval of any governmental
authority, bureau or agency is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement and the
other agreements executed by any Borrower in connection herewith;
(e) This Agreement and the other agreements executed by any Borrower in
connection herewith have been duly executed and delivered by such Borrower and
are enforceable against such Borrower in accordance with their terms; and
(f) All information, reports and other papers and data heretofore furnished
to Agent by each Borrower in connection with this Agreement, the Loan Agreement
and Other Agreements are accurate and correct in all material respects and
complete insofar as may be necessary to give Agent true and accurate knowledge
of the subject matter thereof. Each Borrower has disclosed to Agent every fact
of which it is aware which would reasonably be expected to materially and
adversely affect the business, operations or financial condition of such
Borrower or the ability of such Borrower to perform its obligations under this
Agreement, the Loan Agreement or under any of the Other Agreements. None of the
information furnished to Agent by or on behalf of any Borrower contained any
material misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained herein or therein not materially
misleading.
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3. Conditions Precedent. The amendments to the Loan Agreement set forth
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in this Agreement shall become effective as of the date of this Agreement upon
the satisfaction of the following conditions precedent in form and substance
satisfactory to Agent:
(a) Agent shall have received the reaffirmation of each of the Guarantees
executed by H.S.S. Consulting Services Incorporated and C.D.S. Transportation,
Inc., respectively, both dated as of October 3, 1997.
(b) No Event of Default or event which, with the giving of notice or the
passage of time, or both, would become an Event of Default, shall have occurred
and be continuing, and, after giving effect to the amendments contained herein,
no Event of Default or event which, with the giving of notice or the passage of
time, or both, would become an Event of Default, shall have occurred and be
continuing.
(c) Borrowers shall have executed and delivered all such other documents,
instruments and agreements as Agent shall require.
4. Fees and Expenses. Borrowers agree to pay all legal fees and other
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expenses, whether for in-house or outside counsel, incurred by Agent and Lenders
in connection with this Agreement and the transactions contemplated hereby.
5. Loan Agreement Remains in Force. Except as specifically amended
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hereby, all of the terms and conditions of the Loan Agreement shall remain in
full force and effect and this Agreement shall not be a waiver of any rights or
remedies which Agent or Lenders have provided for in the Loan Agreement and all
such terms and conditions are herewith ratified, adopted, approved and accepted.
6. No Novation. This Agreement and all other agreements executed by any
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Borrower on the date hereof are not intended to nor shall be construed to create
a novation or accord and satisfaction, and shall only be a modification and
extension of the existing Obligations of such Borrower to Lenders.
7. Security Interest Extended. It is the express intent of Lenders and
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Borrowers that the security interests granted to Agent, for the benefit of Agent
and Lenders, in the Collateral pursuant to the Loan Agreement extend to and
secure (among other things) the repayment of all amounts advanced to Borrowers
hereunder and all other obligations.
8. Additional Documents. Upon the request of Agent, Borrowers will cause
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to be done, executed, acknowledged and delivered all such further acts,
conveyances and assurances as Agent from time to time may reasonably request of
Borrowers for accomplishing the transaction referred to herein.
9. Entire Agreement. This Amendment and the other documents it refers to
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comprise the entire agreement relating to the subject matter they cover and
supersede any and all prior written or oral agreements among Agent, Lenders and
Borrowers relating thereto.
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10. Severability. Any provision of this Agreement that is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
11. Maximum Loan Amount. The Maximum Loan Amount of each Lender shall be
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as follows: (a) LaSalle Business Credit, Inc.: $34,737,466.61 from December 24,
1997 through and including December 30, 1997; and $32,964,466.61 at all times on
and after December 31, 1997; (b) Xxxxxx Financial, Inc.: $31,613,500 from
December 24, 1997 through and including December 30, 1997; and $30,000,000 at
all times on and after December 31, 1997; (c) American National Bank & Trust
Company of Chicago: $31,613,500 from December 24, 1997 through and including
December 30, 1997; and $30,000,000 at all times on and after December 31, 1997.
Except as expressly provided for herein, the terms and conditions of the
Loan Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, Borrowers and Lenders have caused this Agreement to be
duly executed in their proper duly authorized officers as of the day and year
first set forth above.
X. X. XXXXX DRUG COMPANY LASALLE BUSINESS CREDIT, INC., AS
AGENT AND LENDER
By /s/ Xxxxxx Xxxxxxxxx By /s/ Xxxxxxxxx Xxxxxxx
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Its CFO Its Vice President
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SBS PHARMACEUTICALS, INC. AMERICAN NATIONAL BANK & TRUST
COMPANY OF CHICAGO
By /s/ Xxxxxx Xxxxxxxxx By /s/ M. Xxxxxx Xxxxxx
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Its Treasurer Its Vice-President
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GENERAL DRUG COMPANY XXXXXX FINANCIAL, INC., AS A
LENDER
By /s/ Xxxxxx Xxxxxxxxx By /s/ Xxxxxxxxx Xxxxxxxxxxx
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Its Treasurer Its Vice President
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XXXXX XXXXXXXX COMPANY, INC.
By /s/ Xxxxxx Xxxxxxxxx
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Its Treasurer
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