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EXHIBIT 10.55
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of June 30, 1999 (this "Amendment
Agreement"), among SAFESKIN REAL ESTATE INCORPORATED, a Delaware corporation
(the "Lessee"); UNION BANK OF CALIFORNIA, N.A., a national banking association,
not in its individual capacity, but solely as Trustee (the "Trustee" or the
"Lessor"); UNION BANK OF CALIFORNIA, N.A., a national banking association, as
agent (in such capacity, the "Agent") for the Lenders; BANKERS COMMERCIAL
CORPORATION, a California corporation, as investor (the "Investor"); and each of
the financial institutions listed on the signature pages hereof (each, a
"Lender"; collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Lessee, the Lessor, the Investor, the Lenders and
the Agent are parties to the Participation Agreement dated as of March 5, 1999,
as amended by First Amendment dated as of March 31, 1999 (as amended, the
"Participation Agreement"), and the Lessor, the Lenders and the Agent are
parties to the Credit Agreement dated as of March 5, 1999 (the "Credit
Agreement");
WHEREAS, the Lessee (i) has requested that certain amendments be
made to the Participation Agreement, the Credit Agreement and certain of the
other Operative Agreements (as defined in Annex A to the Participation
Agreement) and (ii) desires to exercise the Maturity Date Purchase Option (as
defined in Annex A to the Participation Agreement).
WHEREAS, the parties hereto are willing to amend the
Participation Agreement, the Credit Agreement and such other Operative
Agreements, upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms which are defined in Annex A to the Participation Agreement,
as amended hereby, are used herein as therein defined.
2. Amendments. (a) The Participation Agreement is hereby
amended as follows:
(i) Annex A (Rules of Usage and Definitions). The
Rules of Usage and Definitions set forth in Annex A are hereby amended
by deleting the definitions of the defined terms "Applicable Commitment
Fee Rate", "Applicable Eurodollar Rate Margin", "Investor Commitment"
and "Maturity Date" in their entirety and substituting in their place
the following definitions:
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"Applicable Commitment Fee Rate" shall mean, for each Pricing
Period, the rate set forth below (expressed in basis points per annum)
opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Commitment Fee
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I 57.5
II 62.5
III 62.5
IV 75.0
V 75.0
; provided, however, that upon the Agent's receipt of a Compliance
Certificate from the Company evidencing the Company's compliance as of
any compliance testing date with each of the financial covenants set
forth in Section 6.12 through 6.24 of the Corporate Credit Agreement, as
such covenants were in effect under the Corporate Credit Agreement as of
March 5, 1999, the Applicable Commitment Fee Rate shall be as set forth
below:
Applicable
Pricing Level Commitment Fee
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I 32.5
II 37.5
III 37.5
IV 50
V 50
Upon such reversion, the parties shall promptly execute an
amendment which evidences that such covenants have been restored to the
levels set forth above."
"Applicable Eurodollar Rate Margin" shall mean, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that Pricing
Period:
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Applicable
Pricing Level Margin
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I 187.5
II 200.0
III 212.5
IV 225.0
V 237.5
; provided, however, that upon the Agent's receipt of a Compliance
Certificate from the Company evidencing the Company's compliance as of
any compliance testing date with each of the financial covenants set
forth in Sections 6.12 through 6.24 of the Corporate Credit Agreement,
as such covenants were in effect under the Corporate Credit Agreement as
of March 5, 1999, the Applicable Eurodollar Rate Margin shall be as set
forth below:
Applicable
Pricing Level Margin
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I 125
II 137.5
III 150
IV 162.5
V 175
Upon such reversion, the parties shall promptly execute an
amendment which evidences that such covenants have been restored to the
levels set forth above."
"Investor Commitment" shall mean $525,000.
"Maturity Date" shall mean March 31, 2000.
(ii) Section 5.2. Section 5.2 is hereby amended by
deleting the following provision from the end of said Section:
"Notwithstanding any provision in this Agreement or the Credit
Agreement to the contrary, unless the Company shall be in
compliance as of September 30,
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1999 with each of the financial covenants set forth in the
Corporate Credit Agreement and incorporated by reference in the
Guarantee, neither the Lenders nor the Investor shall have any
obligation to make Advances to the Lessor if after giving effect
to any such Advance, the aggregate outstanding principal amount
of the Loans and Investor Contribution would exceed
$16,084,477.09 plus Advances which may be made to pay interest
on the Loans and Investor Yield."
(b) The Credit Agreement is hereby amended by
deleting the contents of Schedule 1.1 attached to the Credit Agreement
in their entirety and substituting therefor the contents of Schedule 1.1
attached to this Amendment Agreement.
(c) To the extent that the amount "$58,200,000"
appears in any of the Operative Agreements, such amount is hereby
deleted and the amount "$16,975,000" is substituted in its place.
3. Exercise of Purchase Option. In accordance with Section
20.2 of the Lease, the Lessee is hereby giving notice to the Lessor and the
Agent that the Lessee is irrevocably electing to exercise the Maturity Date
Purchase Option.
4. Direction to Trust Company. By its execution hereof, the
Investor hereby authorizes and directs Union Bank of California, N.A., not in
its individual capacity but solely as Trustee, to execute this Amendment
Agreement.
5. Representations and Warranties. The Lessee hereby
confirms, reaffirms and restates the representations and warranties set forth in
the Participation Agreement. The Lessee represents and warrants that no Default
or Event of Default has occurred and is continuing.
6. Conditions to Effectiveness. The amendments provided for
herein shall become effective on the date of satisfaction of the following
conditions precedent:
(a) The Agent shall have received counterparts of
this Amendment Agreement duly executed and
delivered by the Lessee, the Lessor, the
Investor, the Required Lenders and the
Guarantors; and
(b) The Agent shall have received, for the account
of each Lender which consents to the amendments
contained herein, the amendment fee referred to
in Section 8.
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7. Payment of Expenses. The Lessee agrees to pay or
reimburse the Agent for all of its out-of-pocket costs and expenses incurred in
connection with this Amendment Agreement, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the fees and disbursements of counsel to the Agent.
8. Affirmation of Guarantee. Each of the Guarantors hereby
consents to the execution and delivery of this Amendment Agreement; agrees that
all references in the Guarantee to any Operative Agreement shall be a reference
to such agreement as amended from time to time; reaffirms its obligations under
the Guarantee; and represents and warrants that there exist no offsets,
counterclaims or defenses to its obligations under the Guarantee.
9. Reference to and Effect on the Operative Agreements;
Limited Effect. The execution, delivery and effectiveness of this Amendment
Agreement shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lessor, the Investor, any Lender or the Agent
under any of the Operative Agreements, nor constitute a waiver of any provisions
of any of the Operative Agreements. Except as expressly amended herein, all of
the provisions and covenants of the Participation Agreement, the Credit
Agreement and the other Operative Agreements are and shall continue to remain in
full force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
10. Counterparts. This Amendment Agreement may be executed
by one or more of the parties hereto in any number of separate counterparts
(which may include counterparts delivered by facsimile transmission) and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective as for all purposes hereof.
11. GOVERNING LAW. THIS AMENDMENT AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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COMERICA BANK, as a Lender
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
SANWA BANK CALIFORNIA, as a Lender
By: /s/ Xxxx Lenhot
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Name: Xxxxx X. Lenhot
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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Name and Address of Lender Amount of Commitment
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COMERICA BANK $2,575,221.25
Irvine Loan Production Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO $4,077,433.50
Mail Suite 4001
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SANWA BANK CALIFORNIA $2,575,221.25
0000 0XX Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A. $5,171,902.75
San Diego Commercial Banking Office
000 "X" Xxxxxx, 0xx Xxxxx, X-000
San Diego, California 92101-4407
Attn: Xxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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U.S. BANK, NATIONAL ASSOCIATION $2,575,221.25
National Corporate Banking Division PL-4
000 X.X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
TOTAL $16,975,000
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
SAFESKIN REAL ESTATE INCORPORATED
By: /s/ Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. XxXxx
Title: Vice President, Treasurer
UNION BANK OF CALIFORNIA, N.A., not in its
individual capacity, but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANKERS COMMERCIAL CORPORATION, as Investor
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
UNION BANK OF CALIFORNIA, N.A., as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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GUARANTORS
SAFESKIN CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice-President,
Chief Financial Officer
SAFESKIN SCIENTIFIC CORPORATION
By: /s/ Xxxxxxx X. XxXxx
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Name: Xxxxxxx X. XxXxx
Title: Vice President, Treasurer
