AMENDMENT TO PURCHASE AGREEMENT
Effective as of January 30, 2004, Derma Sciences, Inc., a Pennsylvania
corporation ("Buyer") and Xxxxxxxx-Xxxxx Corporation, a Delaware corporation
("Seller") hereby agree to amend their Purchase Agreement dated January 9, 2004
(the "Agreement"), as follows:
WHEREAS, in connection with the Agreement, Buyer delivered to Seller a
promissory note in favor of Seller in the original principal amount of One
Million Five Hundred Sixty-Six Thousand Dollars ($1,566,000) (the "Promissory
Note"), and
WHEREAS, Buyer has requested that Seller modify the terms of the Promissory
Note, and Seller is willing to do so only upon the terms and conditions of this
Amendment,
NOW, THEREFORE, the parties agree as follows:
1. This Amendment shall not be effective as against Seller unless and until
each of the following conditions shall have been satisfied:
(a) Buyer shall have executed and delivered to Seller the Amended and
Restated Note in the form attached hereto as Exhibit A.
(b) Buyer shall have delivered to Seller a letter of credit issued by
Xxxxxxx Xxxxx Bank USA, naming Seller as beneficiary, in the form
attached hereto in Exhibit B.
2. The Promissory Note is amended and restated in the form of Exhibit A
attached hereto.
3. Section 4 of the Agreement shall be deleted in its entity.
4. Except as expressly modified by this Agreement, the Agreement remains in
full force and effect and no other provisions of the Agreement have been
superceded, modified or waived.
5. Notwithstanding any course of dealing between the parties, no amendment,
modification, rescission, waiver or release of any provision of this Amendment
shall be effective unless the same shall be in writing and signed by the parties
hereto.
6. This Amendment constitutes the entire agreement and understanding
between the parties relating to the subject matter hereof and therefore,
supercedes all prior proposals, negotiations, agreements and understandings
relating to the subject matter.
7. This Amendment may be executed in any number of counterparts and by
different parties to this Agreement on separate counterparts, each of which,
when executed, shall be deemed an original, but all such counterparts shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
XXXXXXXX-XXXXX CORPORATION
By: ________________________________
DERMA SCIENCES, INC.
By: ________________________________
EXHIBIT A
AMENDED AND RESTATED PROMISSORY NOTE
$1,566,000 January 9, 2004
----------
FOR VALUE RECEIVED, the undersigned ("Maker") hereby promises to pay to
the order of Xxxxxxxx-Xxxxx Corporation ("Payee") at the principal office of
Payee in Roswell, Georgia or such place as the holder may from time to time
designate, the principal sum of One Million Five Hundred Sixty Six Thousand
Dollars ($1,566,000), payable in full on or before December 31, 2004.
The unpaid principal balance hereof shall bear no interest prior to
maturity. Notwithstanding the foregoing, principal amounts unpaid at the
maturity thereof (whether by fixed maturity or acceleration) shall bear interest
from and after maturity until paid, payable on demand, computed at a rate equal
to 10.5% per annum. Principal of and interest on this Note shall be payable in
lawful money of the United States of America.
This Note may be prepaid in full or in part at any time without premium
or penalty, provided however that any partial payment shall be in the minimum
amount of $250,000.
Maker grants to Payee a security interest and lien in any credit
balance or other money now or hereafter owed Maker by Payee, and agrees that
Payee may, at any time and without notice or demand, set off against any such
credit balance or other money any amount unpaid under this Note, whether or not
due.
Without affecting the liability of any maker, indorser, surety or
guarantor, the holder may, from time to time and without notice, renew or extend
the time for payment, accept partial payments, release or impair any collateral
security for payment of this Note, or agree not to xxx any party liable on it.
If any payment is not made when due or if there is any default under
any letter of credit or security agreement which secures this Note, the unpaid
balance of this Note shall, at the option of the holder and without notice or
demand, mature and become immediately payable. The unpaid balance shall
automatically mature and become immediately payable in the event any maker,
surety, indorser or guarantor becomes the subject of bankruptcy or other
insolvency proceedings. Payee's receipt of any payment after the occurrence of
an event of default shall not constitute a waiver of such default or of any of
Payee's rights and remedies.
The Maker and any indorsers, sureties or guarantors waive presentment,
demand, notice of dishonor and protest, and agree to pay all costs of
collection, before and after judgment, including reasonable attorneys' fees and
legal expenses.
The Amended and Restated Promissory Note amends and replaces the
Promissory Note dated January 9, 2004, executed and delivered by Maker to Payee
in the original principal amount of $1,566,000.
This Amended and Restated Note is governed by the internal laws of the
State of Delaware, except to the extent superseded by federal law.
DERMA SCIENCES, INC.
By: ________________________________________
Title: President and Chief Executive Officer
Attest: ____________________________________
Title: _____________________________________
"Exhibit B"
DATE:
BENEFICIARY APPLICANT
Xxxxxxxx-Xxxxx Derma Sciences, Inc.
Corporation 000 Xxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx
Xxxxxx, XX 00000 100 Xxxxxxxxx, XX 00000
AMOUNT: $1,566,000.00
EXPIRY DATE: January 31,2005
At Xxxxxxx Xxxxx Bank USA
Letter of Credit Dept.
00 X. Xxxxx Xxxxxx, Xxx. 000
Xxxx Xxxx Xxxx, Xxxx 00000
XXXXXXX XXXXX BANK USA IRREVOCABLE STANDBY LETTER OF CREDIT NO:
We, Xxxxxxx Xxxxx Bank USA, hereby issue our Irrevocable Standby Letter of
Credit No. __________ in your favor, for the account of Derma Sciences,
Inc. in the amount of One Million Five Hundred Sixty Six Thousand and No/100
United States Dollars ($1,566,000.00).
Funds under this Letter of Credit are available by payment against presentation
of your sight draft, drawn on us, marked "Drawn under Xxxxxxx Xxxxx Bank USA
Letter of Credit No. __________ "when accompanied by this original Letter of
Credit (and any amendments) and your signed statement reading as follows with
all blanks filled in:
"We certify that Derma Sciences, Inc. has failed to make payment of $__________
on or before December 31,2004 pursuant to the Amended & Restated Promissory Note
dated January 9, 2004 made by Derma Sciences, Inc. in favor of Xxxxxxxx- Xxxxx
Corporation (the "Note") [or is in default under the terms of the Note]."
Partial drawings are permitted and multiple drawings are prohibited.
All documents that are required for presentation under this Letter of Credit
must reference Letter of Credit No. __________
Any and all banking charges are for the account of the applicant.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
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We hereby agree with you that drawings made under and in compliance with the
terms and conditions of this Letter of Credit will be duly honored if presented
to us at our office as stated above, in person or by overnight courier, not
later than 4:00 p.m. MST on or before the above stated expiration date.
XXXXXXX XXXXX BANK USA
By:__________________________
Title:_______________________
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