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EXHIBIT 10.55
CONSENT AND WAIVER AGREEMENT
This Consent and Waiver Agreement is made as of this 7th day of May,
1999 by and between BANKBOSTON, N.A., a national banking association
(hereinafter, the "Bank") and POLYMEDICA CORPORATION, a Massachusetts
corporation, LIBERTY MEDICAL SUPPLY, INC., a Florida corporation, POLYMEDICA
HEALTHCARE, INC., a Delaware corporation and POLYMEDICA SECURITIES, INC., a
Massachusetts corporation (hereinafter, jointly and severally, individually and
collectively, the "Borrower"), in consideration of the mutual covenants
contained herein and the benefits to be derived herefrom. Unless otherwise
specified herein, all capitalized terms shall have the same meaning as set forth
in the Loan Agreement (as defined hereinbelow).
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank entered into a certain Agented Loan
and Security Agreement dated April 30, 1998 (hereinabove and hereinafter, as
amended, the "Loan Agreement") pursuant to which, among other things, the Bank
established in favor of the Borrower a Revolving Credit in the maximum principal
amount of $7,500,000.00, as amended and increased to $10,000,000.00 pursuant to
certain Amendments dated November 30, 1998 and March 12, 1999; and
WHEREAS, PolyMedica Corporation has advised the Bank of its intentions
to enter into a certain mortgage loan arrangement with NationsBank, N.A.
(hereinafter, the "Mortgage Loan") in the original principal amount of
$1,425,000.00 evidenced by a certain Promissory Note dated on or about the date
hereof in the form of Exhibit "A" attached hereto and specifically incorporated
by reference herein, which Mortgage Loan is to be secured by a certain Real
Estate Mortgage, Assignment, and Security Agreement dated on or about the date
hereof in the form of Exhibit "B" attached hereto and specifically incorporated
by reference herein encumbering certain premises located at 00000 Xxxxx X.X.
Xxxxxxx 0, Xxxx Xx. Xxxxx, Xxxxxxx (hereinafter , the "Premises"); and
WHEREAS, Liberty Medical Supply, Inc. has advised the Bank of its
intentions to provide Nations Bank, N.A. with an unsecured guaranty of the
Mortgage Loan pursuant to a certain Guaranty Agreement dated on or about the
date hereof in the form of Exhibit "C" attached hereto and specifically
incorporated by reference herein; and
WHEREAS, the Bank has indicated its willingness to consent to the
Mortgage Loan contemplated above, BUT ONLY on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Bank hereby consents to PolyMedica Corporation's entering
into the Mortgage Loan by the execution of the Promissory Note and Real Estate
Mortgage, Assignment, and Security Agreement referenced above and the execution
of the Guaranty Agreement referenced above by Liberty Medical Supply, Inc. and
the Indebtedness and Encumbrances incurred and granted in connection with the
Mortgage Loan are hereby permitted under the Loan Agreement. Exhibit 6-5 of the
Loan Agreement is hereby amended by adding the Premises thereto.
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2. The Borrower acknowledges and agrees that the consent to the
Mortgage Loan set forth herein shall not operate as a waiver of any restrictions
or other provisions under the Loan Agreement nor a waiver of any defaults under
the Loan Agreement, if any, now existing or hereafter arising.
3. The Borrower specifically acknowledges and agrees that any
default by the Borrower under the Mortgage Loan or any document executed in
connection therewith which is not waived or cured shall constitute an Event of
Default under the Loan Agreement and the Borrower shall immediately notify the
Bank of any such default upon becoming aware of same. In addition, the Borrower
specifically acknowledges and agrees that it will not amend the Mortgage Loan or
any document executed in connection therewith without the prior written consent
of the Bank, which consent shall not be unreasonably withheld or delayed.
4. The Borrower hereby represents, warrants and agrees that the
\Borrower has no offsets, defenses, or counterclaims against the Bank and to the
extent that the Borrower may claim that any such offsets, defenses, or
counterclaims exist, the Borrower hereby WAIVES and RELEASES the Bank from same.
5. The Borrower shall pay all expenses of the Bank in connection
with the agreement contemplated hereby and the preparation, execution, and
delivery of this Agreement and of all other documents, instruments and
agreements executed in connection therewith including, without limitation, all
attorneys' reasonable fees and disbursements of counsel and all reasonable fees
and expenses of counsel which the Bank may hereinafter incur in protecting or
enforcing any of the Bank's rights against the Borrower or any guarantor,
including, without limitation, all costs of collection.
6. This Agreement and all other instruments executed in
connection herewith incorporate all discussions and negotiations between the
Borrower and the Bank, either express or implied, concerning the matters
included herein, any statute, custom, or usage to the contrary notwithstanding.
No such discussions or negotiations shall limit, modify or otherwise affect the
provisions hereof. No modification, amendment, or waiver of any provision of
this Agreement or the Loan Agreement or any provisions under any other
agreement, document, or instrument between the Borrower and the Bank shall be
effective unless executed in writing by the party to be charged with such
modification, amendment, or waiver, and if such party be the Bank, then by a
duly authorized officer thereof.
7. Except as specifically modified herein, the Loan Agreement and
all documents executed in connection therewith shall remain in full force and
effect as originally written, and the Borrower hereby specifically ratifies and
confirms all terms and conditions contained in the Loan Agreement and in each
document, instrument and agreement executed in connection therewith.
8. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and shall take
effect as a sealed instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of this 7th day of May, 1999.
"Borrower"
POLYMEDICA CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Title: Chief Financial Officer
LIBERTY MEDICAL SUPPLY, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Title: President
POLYMEDICA HEALTHCARE, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Treasurer
POLYMEDICA SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: Treasurer
"Bank"
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
