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AMENDMENT NO. 1
TO
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of June
25, 1997, by and among XXXXXX-FIELD HEALTH PRODUCTS, INC., a corporation
organized under the laws of the State of Delaware ("Holdings"), XXXXXX-FIELD,
INC., a corporation organized under the laws of the State of New York ("Field"),
XXXXXX-FIELD EXPRESS, INC., a corporation organized under the laws of the State
of Delaware ("Express"), XXXXXX-FIELD TEMCO, INC., a corporation organized under
the laws of the State of New Jersey ("Temco"), XXXXXX-FIELD DISTRIBUTION, INC.,
a corporation organized under the laws of the State of Missouri
("Distribution"), XXXXXX-FIELD BANDAGE, INC., a corporation organized under the
laws of the State of Rhode Island ("Bandage"), XXXXXX-FIELD EXPRESS (PUERTO
RICO), INC., a corporation organized under the laws of the State of Delaware
("GFPR") and EVEREST & XXXXXXXX, INC., a corporation organized under the laws of
the State of California ("E & J"), (Holdings, Field, Express, Temco,
Distribution, Bandage, GFPR and E & J, each a "Borrower" and collectively
"Borrowers"), the financial institutions which are now or which hereafter become
a party to (collectively, the "Lenders" and individually a "Lender") the Loan
Agreement (as defined below) and IBJ XXXXXXXX BANK & TRUST COMPANY, a New York
banking corporation ("IBJS"), as agent for Lenders (IBJS, in such capacity, the
"Agent").
BACKGROUND
Borrowers, Lenders and Agent are parties to a Revolving Credit
and Security Agreement dated as of December 10, 1996 (as amended, supplemented
or otherwise modified from time to time, the "Loan Agreement") pursuant to which
Lenders provide Borrowers with certain financial accommodations.
Borrowers have requested that Lenders and Agent amend the Loan
Agreement by adding a $2,000,000 term loan and Agent and Lenders are willing to
do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or
grant of credit heretofore or hereafter made to or for the account of Borrowers
by Agent and/or Lenders, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
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2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) The following definitions are added to Section 1.2 of the
Loan Agreement in their appropriate alphabetical order to provide as follows:
"Amendment No. 1 Effective Date" shall mean June 25,
1997.
"Term Loan" shall have the meaning set forth in
Section 17 hereof.
"Term Loan Rate" shall have the meaning set forth in
Section 17 hereof.
"Term Note" shall have the meaning set forth in
Section 17 hereof.
(b) The definition of "Collateral" is amended in its entirety
to provide as follows:
"Collateral" shall mean and include:
(a) all Receivables;
(b) all General Intangibles;
(c) all Inventory;
(d) all Equipment;
(e) all of each Borrower's right, title and
interest in and to (i) its respective goods and other property including, but
not limited to, all merchandise returned or rejected by Customers, relating to
or securing any of the Receivables; (ii) all of each Borrower's rights as a
consignor, a consignee, an unpaid vendor, mechanic, artisan, or other lienor,
including stoppage in transit, setoff, detinue, replevin, reclamation and
repurchase; (iii) all additional amounts due to any Borrower from any Customer
relating to the Receivables; (iv) other property, including warranty claims,
relating to any goods securing this Agreement; (v) all of each Borrower's
contract rights, rights of payment which have been earned under a contract
right, instruments, documents, chattel paper, warehouse receipts, deposit
accounts, money and securities; (vi) if and when obtained by any Borrower, all
real and personal property of third parties in which such Borrower has been
granted a lien or security interest as security for the payment or enforcement
of Receivables; and (vii) any other goods, personal property or real property
now owned or hereafter acquired in which any Borrower has expressly granted a
security interest or may in the future grant a security interest to Agent
hereunder, or in any amendment or supplement hereto or thereto, or under any
other agreement between Agent and any Borrower entered into in connection
herewith or therewith;
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(f) all of each Borrower's ledger sheets,
ledger cards, files, correspondence, records, books of account, business papers,
computers, computer software (owned by any Borrower or in which it has an
interest), computer programs, tapes, disks and documents relating to (a), (b),
(c), (d) or (e) of this Paragraph; and
(g) all proceeds and products of (a), (b),
(c), (d), (e) and (f) in whatever form, including, but not limited to: cash,
deposit accounts (whether or not comprised solely of proceeds), certificates of
deposit, insurance proceeds (including hazard, flood and credit insurance),
negotiable instruments and other instruments for the payment of money, chattel
paper, security agreements, documents, eminent domain proceeds, condemnation
proceeds and tort claim proceeds.
(c) The following sentence is added at the end of
Section 16.3(c):
"Without in any manner limiting the foregoing, Borrowers and
each Lender specifically consent to the sale, assignment
and/or transfer by IBJS to IBJ Xxxxxxxx Business Credit
Corporation of all or any part of its rights under this
Agreement and the Other Documents in its capacity as Agent and
as Lender."
(d) A new Article XVII is added to the Loan Agreement
which provides as follows:
"XVII. Term Loan.
17. Term Loan.
(a) On the Amendment No. 1 Effective Date, Agent will make a
Term Loan to Holdings in the amount of $2,000,000 (the "Term Loan") payable in
full on July 16, 1997. No other Lender shall have any obligation to join the
funding of the Term Loan. Interest on the Term Loan shall be payable in arrears
on July 1, 1997 with a final payment of interest due upon the repayment of the
Term Loan. Interest on the outstanding principal balance of the Term Loan shall
be payable at a rate per annum equal to the Alternate Base Rate plus one-half of
one percent (.50%) (the "Term Loan Rate"). Whenever, subsequent to the date of
this Agreement, the Alternate Base Rate is increased or decreased, such interest
rate shall be similarly changed without notice or demand of any kind by an
amount equal to the amount of such change in the Alternate Base Rate during the
time such change or changes remain in effect. Upon the occurrence of an Event of
Default, and during the continuation thereof, the Term Loan shall bear interest
at the Term Loan Rate plus two (2%) percent per annum. Only Agent shall be
entitled to earn interest on the Term Loan and such interest shall only be for
Agent's account. The Term Loan shall be evidenced by a secured promissory note
in substantially the form attached hereto as Exhibit 17.
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(b) Notwithstanding any of the provisions of this Agreement to
the contrary, any amounts received by Agent to be applied to the outstanding
Obligations, other than amounts specifically designated to repay the Term Loan
in connection with any refinancing thereof, shall be applied first to the
Obligations other than the Term Loan in such order as Agent in its sole
discretion may determine or as set forth in Sections 2.13 and 11.1 (as
applicable) and, second, to the Term Loan.
(c) Exhibit 17 to this Amendment is added as Exhibit 17 to the
Loan Agreement."
3. Acknowledgment. The Term Loan, constituting Indebtedness of
Borrowers to Agent, is included within the definition of "Obligations".
4. Conditions of Effectiveness. This Amendment shall become
effective upon satisfaction of the following conditions precedent: Agent shall
have received (i) eight (8) copies of this Amendment executed by Borrowers and
consented and agreed to by Guarantor, (ii) the Term Note, (iii) resolutions
authorizing Borrowers to enter into this Amendment and the transactions
contemplated hereby and (iv) such other certificates, instruments, documents,
agreements and opinions of counsel as may be required by Agent, Lenders or their
counsel, each of which shall be in form and substance satisfactory to Agent,
Lenders and their counsel.
5. Representations and Warranties. Each Borrower
hereby represents and warrants as follows:
(a) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of
Borrowers and are enforceable against Borrowers in accordance
with their respective terms.
(b) Upon the effectiveness of this Amendment, each
Borrower hereby reaffirms all covenants, representations and
warranties made in the Loan Agreement to the extent the same
are not amended hereby and agree that all such covenants,
representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and
is continuing or would exist after giving effect to this
Amendment.
(d) Borrowers have no defense, counterclaim or
offset with respect to the Loan Agreement.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
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(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Lender,
nor constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
7. Governing Law. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall be governed by and construed in accordance with the laws of
the State of New York.
8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
9. Counterparts. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first written above.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Chief Executive Officer
ATTEST:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Secretary
of the foregoing corporation
XXXXXX-FIELD, INC.
XXXXXX-FIELD EXPRESS, INC.
XXXXXX-FIELD TEMCO, INC.
XXXXXX-FIELD DISTRIBUTION, INC.
XXXXXX-FIELD BANDAGE, INC.
XXXXXX-FIELD EXPRESS (PUERTO RICO), INC.
EVEREST & XXXXXXXX, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Vice President of
Finance of each of the foregoing
corporations
ATTEST:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Secretary
of each of the foregoing
corporations
IBJ XXXXXXXX BANK & TRUST COMPANY, as
Lender and as Agent
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Commitment Percentage: 31.81819%
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NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Commitment Percentage: 22.72727%
BTM CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Senior Vice President
000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Commitment Percentage: 22.72727%
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DEUTSCHE FINANCIAL SERVICES CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
----------------------------------
Commitment Percentage: 22.72727%
CONSENTED AND AGREED TO:
EVEREST & XXXXXXXX CANADIAN LIMITED
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President of Finance
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