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EXECUTION COPY
FIFTH AMENDMENT TO
AMENDED AND RESTATED SECURED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This Agreement, dated as of March 31, 1997 (this "Amendment"), is entered
into by and among HEALTHDYNE TECHNOLOGIES, INC., a Georgia corporation (the
"Company"), the financial institutions party to the Credit Agreement referred
to below (collectively, the "Banks"; individually, a "Bank") and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the
"Agent").
RECITALS
The Company, the Agent and the Banks are parties to an Amended and
Restated Secured Revolving Credit and Term Loan Agreement dated as of December
29, 1994 (as heretofore amended, supplemented or otherwise modified, the
"Credit Agreement"). Capitalized terms used and not otherwise defined or
amended in this Amendment shall have the respective meanings assigned to them
in the Credit Agreement.
The Company has requested that the Banks amend the Credit Agreement to
extend the final maturity date of the Term Loans to June 30, 1999, and the
Banks are willing to make such amendment on the terms and conditions set forth
herein.
AGREEMENT
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereto mutually agree as follows:
A. AMENDMENTS
1. Amendment of Section 2.6 (Notes Evidencing Term Loans). Section 2.6 of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and substituting therefor the following:
"2.6 Notes Evidencing Term Loans. The Term Loans made by
each Bank shall be evidenced by the Term Notes, payable to the
order of that Bank in an amount equal to its Pro Rata Share of the
Term Commitment and shall mature on June 30, 1999 (the 'Term Loan
Maturity Date')."
2. Amendment of Exhibit B (Term Note). Exhibit B to the Credit Agreement
is hereby amended by deleting such Exhibit in its entirety and substituting
therefor a new Exhibit B in the form of Schedule I attached hereto.
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B. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Agent and Banks that:
1. No Event of Default or Unmatured Event of Default has occurred and is
continuing, and neither the Company nor any of its Subsidiaries is in material
violation of any law or governmental regulation or court order or decree;
2. The representations and warranties of the Company pursuant to Article 7
of the Credit Agreement are true and correct with the same effect as if made on
the date hereof (unless stated to relate solely to an earlier date in which
case such representations and warranties shall be true and correct as of such
earlier date);
3. The execution and delivery by the Company of this Amendment and the
performance by the Company of the Credit Agreement, as amended hereby, have
been duly authorized by all necessary corporate action; and
4. No consent, approval, authorization, permit or license from any federal
or state regulatory authority is required in connection with the making or
performance of the Credit Agreement, as amended hereby.
C. CONDITIONS PRECEDENT
This Amendment will become effective as of the date first written above
when the Agent has received, in form and substance satisfactory to the Agent
and the Banks, all of the following:
1. Counterparts of this Amendment, duly executed by the Company and each
Bank, and duly acknowledged by the Agent.
2. A duly executed Term Note payable to the order of each Bank in the form
attached hereto as Schedule I (collectively, the "Amended Term Notes").
3. A copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company as being in
full force and effect on the date hereof, authorizing the execution and
delivery of this Amendment and the Amended Term Notes and the performance of
the Credit Agreement, as amended hereby, and the Amended Term Notes.
4. A certificate of incumbency from the Secretary or an Assistant
Secretary of the Company, dated the date hereof, certifying the names of the
officers of the Company authorized to
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sign this Amendment and the Amended Term Notes, together with the true
signatures of such officers.
5. A Consent of each Material Subsidiary in the form attached hereto as
Exhibit A.
6. A non-refundable amendment fee in the amount of $18,750, to be
distributed to the Banks ratably in accordance with their respective Pro Rata
Shares of the Term Commitment.
D. MISCELLANEOUS
1. This Amendment shall be deemed to be an amendment to the Credit
Agreement, and the Credit Agreement, as amended hereby, shall remain in full
force and effect and is hereby ratified, approved and confirmed in each and
every respect. After the effectiveness of this Amendment in accordance with
its terms, all references to the Credit Agreement in the Loan Documents or in
any other document, instrument, agreement or writing shall be deemed to refer
to the Credit Agreement as amended hereby.
2. Any provision of this Amendment which is prohibited or unenforceable in
any jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment or affecting the
validity or enforceability of such provision in any other jurisdiction.
3. The various headings of this Amendment are inserted for convenience
only and shall not affect the meaning or interpretation of this Amendment or
any provision hereof.
4. This Amendment may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
HEALTHDYNE TECHNOLOGIES, INC.
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice Pesident & CFO
--------------------------
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
--------------------------
FIRST UNION NATIONAL BANK OF
GEORGIA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Vice President
--------------------------
Acknowledged:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
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SCHEDULE I
TO AMENDMENT
EXHIBIT B
TERM NOTE
$____________.00 Dated: March 31, 1997
Due: June 30, 1999
FOR VALUE RECEIVED, the undersigned, HEALTHDYNE TECHNOLOGIES, INC. (the
"Company"), promises to pay to the order of _____________________ (the "Bank"),
the principal sum of ________________ AND 00/100 DOLLARS ($________.00) on June
30, 1999.
The Company further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date of the Original Note (as defined below) until paid in full at the
rates per annum which shall be determined in accordance with the provisions of
the Credit Agreement hereinafter referred to. Accrued interest shall be
payable on the dates specified in the Credit Agreement.
Each denomination of the Term Loan made pursuant to the Credit Agreement
as an Alternate Reference Rate Term Loan or a Eurodollar Term Loan (as such
terms are defined in the Credit Agreement) and all payments of principal shall
be recorded by the holder in its records or, at its option, on the schedule (or
any continuation thereof) attached to this Note.
All payments of principal and interest under this Note shall be made in
immediately available funds at the office of Bank of America National Trust and
Savings Association (the "Agent") at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated by
the Agent to the Company in writing.
This Note is one of the Term Notes referred to in, and evidences
indebtedness incurred under, the Amended and Restated Secured Revolving Credit
and Term Loan Agreement dated as of December 29, 1994 (as the same may be
amended, modified or supplemented from time to time, herein called the "Credit
Agreement") among the Company, certain Banks (including the Bank) and the
Agent, to which Credit Agreement reference is made for a statement of the terms
and provisions thereof, including those under which the Company is permitted
and required to make prepayments and repayments of principal of such under
which such indebtedness may be declared to be immediately due and payable.
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This Note is secured pursuant to certain Security Documents (as such term
is defined in the Credit Agreement), to which reference is made for a
description of the collateral provided thereby and the rights of the Bank and
the Company in respect of such collateral.
This Note is issued as a replacement and substitution for the Term Note,
dated June 28, 1996, in the original principal amount of $____________,
executed by the Company and payable to the order of the Bank (the "Original
Note"). Nothing contained herein shall be construed to (i) deem paid any
amount of principal or interest on the Original Note, or (ii) release, cancel,
terminate or otherwise impair all of any part of any lien or security interest
granted for the benefit of the Bank as collateral security for the obligations
of the Company under the Original Note.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
This Note is made under and governed by the internal laws of the State of
Illinois.
HEALTHDYNE TECHNOLOGIES, INC.
By:
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Title:
------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Schedule attached to Term Note dated March 31, 1997 of Healthdyne Technologies,
Inc., payable to the order of .
----------------------
DENOMINATIONS OF TERM LOAN AND PRINCIPAL PAYMENTS
Type of
Amount Term Loan Interest Amount of Unpaid
of Term & Applicable Period (if Principal Principal Notation
Date Loan Interest Rate Applicable) Repaid Balance Made By
------------------------------------------------------------------------
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
The aggregate unpaid principal amount shown on this schedule shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on
this Note. The failure to record the date and amount of any Term Loan on this
schedule shall not, however, limit or otherwise affect the Company's
obligations under the Credit Agreement or this Note to repay the principal
amount of the Term Loan together with all interest accruing thereon.
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EXHIBIT A
CONSENT
The undersigned hereby agrees and consents to the terms and provisions of
the foregoing Fifth Amendment to Amended and Restated Secured Revolving Credit
and Term Loan Agreement (the "Amendment"), and agrees that the Subsidiary
Guaranty and Loan Documents executed by the undersigned shall remain in full
force and effect notwithstanding the provisions of the Amendment.
Dated: As of March 31, 1997
HEALTHSCAN PRODUCTS, INC.
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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TERM NOTE
$9,000,000.00 Dated: March 31, 1997
Due: June 30, 1999
FOR VALUE RECEIVED, the undersigned, HEALTHDYNE TECHNOLOGIES, INC. (the
"Company"), promises to pay to the order of BANK OF AMERICA ILLINOIS (the
"Bank"), the principal sum of NINE MILLION AND 00/100 DOLLARS ($9,000,000.00)
on June 30, 1999.
The Company further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date of the Original Note (as defined below) until paid in full at the
rates per annum which shall be determined in accordance with the provisions of
the Credit Agreement hereinafter referred to. Accrued interest shall be
payable on the dates specified in the Credit Agreement.
Each denomination of the Term Loan made pursuant to the Credit Agreement
as an Alternate Reference Rate Term Loan or a Eurodollar Term Loan (as such
terms are defined in the Credit Agreement) and all payments of principal shall
be recorded by the holder in its records or, at its option, on the schedule (or
any continuation thereof) attached to this Note.
All payments of principal and interest under this Note shall be made in
immediately available funds at the office of Bank of America National Trust and
Savings Association (the "Agent") at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated by
the Agent to the Company in writing.
This Note is one of the Term Notes referred to in, and evidences
indebtedness incurred under, the Amended and Restated Secured Revolving Credit
and Term Loan Agreement dated as of December 29, 1994 (as the same may be
amended, modified or supplemented from time to time, herein called the "Credit
Agreement") among the Company, certain Banks (including the Bank) and the
Agent, to which Credit Agreement reference is made for a statement of the terms
and provisions thereof, including those under which the Company is permitted
and required to make prepayments and repayments of principal of such
indebtedness and under which such indebtedness may be declared to be
immediately due and payable.
This Note is secured pursuant to certain Security Documents (as such term
is defined in the Credit Agreement) to which reference is made for a
description of the collateral provided thereby and the rights of the Bank and
the Company in respect of such collateral.
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This Note is issued as a replacement and substitution for the Term Note,
dated June 28, 1996, in the original principal amount of $9,000,000.00,
executed by the Company and payable to the order of the Bank (the "Original
Note"). Nothing contained herein shall be construed to (i) deem paid any
amount of principal or interest on the Original Note, or (ii) release, cancel,
terminate or otherwise impair all of any part of any lien or security interest
granted for the benefit of the Bank as collateral security for the obligations
of the Company under the Original Note.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
This Note is made under and governed by the internal laws of the State of
Illinois.
HEALTHDYNE TECHNOLOGIES, INC.
By:/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President and CFO
-----------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Schedule attached to Term Note dated March 31, 1997 of Healthdyne Technologies,
Inc., payable to the order of Bank of America Illinois.
DENOMINATIONS OF TERM LOAN AND PRINCIPAL PAYMENTS
Type of
Amount Term Loan Interest Amount of Unpaid
of Term & Applicable Period (if Principal Principal Notation
Date Loan Interest Rate Applicable) Repaid Balance Made By
----------------------------------------------------------------------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The aggregate unpaid principal amount shown on this schedule shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on
this Note. The failure to record the date and amount of any Term Loan on this
schedule shall not, however, limit or otherwise affect the Company's
obligations under the Credit Agreement or this Note to repay the principal
amount of the Term Loan together with all interest accruing thereon.
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TERM NOTE
$6,000,000.00 Dated: March 31, 1997
Due: June 30, 1999
FOR VALUE RECEIVED, the undersigned, HEALTHDYNE TECHNOLOGIES, INC. (the
"Company"), promises to pay to the order of FIRST UNION NATIONAL BANK OF
GEORGIA (the "Bank"), the principal sum of SIX MILLION AND 00/100 DOLLARS
($6,000,000.00) on June 30, 1999.
The Company further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date of the Original Note (as defined below) until paid in full at the
rates per annum which shall be determined in accordance with the provisions of
the Credit Agreement hereinafter referred to. Accrued interest shall be
payable on the dates specified in the Credit Agreement.
Each denomination of the Term Loan made pursuant to the Credit Agreement
as an Alternate Reference Rate Term Loan or a Eurodollar Term Loan (as such
terms are defined in the Credit Agreement) and all payments of principal shall
be recorded by the holder in its records or, at its option, on the schedule (or
any continuation thereof) attached to this Note.
All payments of principal and interest under this Note shall be made in
immediately available funds at the office of Bank of America National Trust and
Savings Association (the "Agent") at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated by
the Agent to the Company in writing.
This Note is one of the Term Notes referred to in, and evidences
indebtedness incurred under, the Amended and Restated Secured Revolving Credit
and Term Loan Agreement dated as of December 29, 1994 (as the same may be
amended, modified or supplemented from time to time, herein called the "Credit
Agreement") among the Company, certain Banks (including the Bank) and the
Agent, to which Credit Agreement reference is made for a statement of the terms
and provisions thereof, including those under which the Company is permitted
and required to make prepayments and repayments of principal of such
indebtedness and under which such indebtedness may be declared to be
immediately due and payable.
This Note is secured pursuant to certain Security Documents (as such term
is defined in the Credit Agreement), to which reference is made for a
description of the collateral provided thereby and the rights of the Bank and
the Company in respect of such collateral.
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This Note is issued as a replacement and substitution for the Term Note,
dated June 28, 1996, in the original principal amount of $6,000,000.00,
executed by the Company and payable to the order of the Bank (the "Original
Note"). Nothing contained herein shall be construed to (i) deem paid any
amount of principal or interest on the Original Note, or (ii) release, cancel,
terminate or otherwise impair all of any part of any lien or security interest
granted for the benefit of the Bank as collateral security for the obligations
of the Company under the Original Note.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
This Note is made under and governed by the internal laws of the State of
Illinois.
HEALTHDYNE TECHNOLOGIES, INC.
By:/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President and CFO
-----------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Schedule attached to Term Note dated March 31, 1997 of Healthdyne Technologies,
Inc., payable to the order of First Union National Bank of Georgia.
DENOMINATIONS OF TERM LOAN AND PRINCIPAL PAYMENTS
Type of
Amount Term Loan Interest Amount of Unpaid
of Term & Applicable Period (if Principal Principal Notation
Date Loan Interest Rate Applicable) Repaid Balance Made By
----------------------------------------------------------------------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The aggregate unpaid principal amount shown on this schedule shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on
this Note. The failure to record the date and amount of any Term Loan on this
schedule shall not, however, limit or otherwise affect the Company's
obligations under the Credit Agreement or this Note to repay the principal
amount of the Term Loan together with all interest accruing thereon.