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SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of July 6, 2000, by and among MEDICAL
TECHNOLOGY SYSTEMS, INC., a Delaware corporation ("MTS"), the following
subsidiaries of MTS: CLEARWATER MEDICAL SERVICES, INC., a Florida corporation
("Clearwater Medical"), MEDICAL TECHNOLOGY LABORATORIES, INC., a Florida
corporation ("MTS Labs"), MTS PACKAGING SYSTEMS, INC., a Florida corporation
("MTS Packaging"), PERFORMANCE PHARMACY SYSTEMS, INC., a Florida corporation
("Performance Pharmacy"), VANGARD LABS, INC., a Kentucky corporation ("Vangard
Labs"), and VANGARD PHARMACEUTICAL PACKAGING, INC., a Florida corporation
("Vangard Pharmaceutical"), CART-WARE, INC., a Florida corporation
("Cart-Ware"), MEDICATION MANAGEMENT SYSTEMS, INC., a Florida corporation
("MMS"), MEDICATION MANAGEMENT TECHNOLOGIES, INC., a Florida corporation
("MMT"), MTS SALES & MARKETING, INC., a Florida corporation ("MTS Sales"),
SYSTEMS PROFESSIONALS, INC., a Florida corporation ("Systems Professionals"),
and LIFESERV TECHNOLOGIES, INC., a Florida corporation ("LifeServ")
(collectively referred to herein as the "MTS Subsidiaries" and, together with
MTS, as the "Borrowers"), TODD E. SIEGEL ("Siegel" or the "Guarantor"), and
SOUTHTRUST BANK, formerly "SouthTrust Bank of Alabama, National Association"
(the "Lender" or "SouthTrust"):
R E C I T A L S:
WHEREAS, the parties hereto, other than LifeServ, have heretofore executed
and delivered that certain Second Amended and Restated Loan and Security
Agreement, dated as of September 5, 1996 (as amended by the Amendment to Second
Amended and Restated Loan and Security Agreement (the "First Amendment") among
the parties hereto dated as of April 16, 1998, the "Loan Agreement"), and the
various security documents and instruments described therein (together with the
Plan Notes, as defined in the Loan Agreement, the "Loan Documents"); and
WHEREAS, pursuant to the First Amendment, among other things, LifeServ
assumed joint and several liability for all of the Obligations under the Plan
Notes and the other Loan Documents and granted security interests in
substantially all of its assets to SouthTrust as security for the Obligations;
WHEREAS, with the consent of SouthTrust all of the assets of LifeServ were
sold on and as of May 25, 1999; and
WHEREAS, certain defaults have occurred under the Loan Agreement and the
Borrowers and Siegel requested that SouthTrust (i) waive the occurrence of these
defaults and, (ii) agree to amend further the Loan Agreement in certain
respects, and SouthTrust agreed to do so pursuant to and on the terms and
conditions set forth in a letter agreement among the Borrowers, Siegel and
SouthTrust dated July 15, 1999 (the "Letter Agreement"); and
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WHEREAS, prior to the execution and delivery of the amendment contemplated
by the Letter Agreement, MTS Labs sold certain of its assets (the "MTS Labs
Sale"), with the consent of SouthTrust, in which consent SouthTrust reserved all
of its rights and remedies arising from any and all defaults then existing under
the Loan Agreement; and
WHEREAS, subsequent to the consummation of the MTS Labs Sale, the Borrowers
and Siegel have requested that SouthTrust agree to amend further the Loan
Agreement to, among other things, modify the requirement for the periodic
payment of a portion of the Borrowers' excess cash flow, and SouthTrust is
willing to do so, but only on the terms and conditions set forth in this
Amendment; and
WHEREAS, the parties hereto desire to amend the Loan Agreement in the
manner set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Definitions. (a) Except as otherwise defined herein, capitalized terms
used in this ----------- Amendment shall have the meanings ascribed to such
terms in the Loan Agreement.
(b) The Loan Agreement is hereby amended, effective on and as of July
1, 1999, by adding the following definition to Section 1.1 thereof:
""Consolidated Net Income From Continuing Operations" means net
income, determined in accordance with GAAP, of the Borrowers from
all operations other than those which have been discontinued, as
that term is used under GAAP, determined on a Consolidated
basis."
(c) The Loan Agreement is hereby amended, effective on and as of the
date hereof, by adding the following definition, to Section 1.1 thereof:
""Second Amendment" means the Second Amendment to Second Amended
and Restated Loan and Security Agreement, dated as of July 6,
2000, among each of the Borrowers, Siegel and SouthTrust."
""True Excess Cash Flow" means, for each fiscal quarter of the
Borrowers, Consolidated Excess Cash Flow for such quarter,
(i) minus the sum of the following: any increase in Accounts
Receivable, any increase in Inventory, and any decrease in
Accounts Payable, in each case as compared to the preceding
quarter;
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(ii) plus the sum of the following: any decrease in Accounts
Receivable, any decrease in Inventory, and any increase in
Accounts Payable, in each case as compared to the preceding
quarter."
(d) Section 1.1 of the Loan Agreement is hereby amended further,
effective on and as of July 1, 1999, by amending the following definitions
contained therein to read, in their entirety, as follows:
""Consolidated Excess Cash Flow" means, for each fiscal quarter
of the Borrowers, Consolidated Net Income From Continuing
Operations, after taxes, minus principal payments and capital
expenditures which are expressly permitted under Section 6.2(L)
of the Loan Agreement, plus, to the extent deducted in
determining such Consolidated Net Income From Continuing
Operations, (i) amortization of intangible assets and (ii)
depreciation and depletion, all as shown by the income statements
of the Borrowers for the relevant time period, calculated in
accordance with GAAP."
""Fixed Charge Coverage" means the quotient which is obtained by
dividing (i) the sum of the Consolidated Net Income From
Continuing Operations (after provision for federal and state
income taxes) for the 12-month period preceding the applicable
date plus the interest, lease and rental expenses of the
Borrowers for the same period plus the sum of non-cash expenses
or allowances for such period (including, without limitation,
amortization or write-down of intangible assets, depreciation,
depletion and deferred taxes and expenses) by (ii) the sum of the
current portion of the Long-Term Liabilities of the Borrowers,
plus all interest, lease and rental expenses of the Borrowers, as
of the applicable date."
2. Modification of Payment Terms.
(a) Modification of Payment Terms of Amortization Principal Amount. It
is the intention of the parties to this Amendment to amend Section 2.4(A)
of the Loan Agreement, effective on and as of July 1, 1999, to increase the
principal portion of each monthly installment of the Amortization Principal
Amount due on October 1, 1999, November 1, 1999, and December 1, 1999, by
$5,000.00, $10,000.00 and $15,000.00, respectively, and to increase the
principal portion of each monthly installment of the Amortization Principal
Amount due on January 1, 2000 and thereafter by $20,000.00. Accordingly,
Section 2.4(A)(iv) of the Loan Agreement is hereby amended to read in its
entirety as follows:
"(iv)For all monthly installment payments through the installment due
on September 1, 1999, the monthly installments of the
Amortization Principal Amount and interest thereon under Plan
Note I shall be calculated based on the Amortization Principal
Amount being amortized in level monthly payments at an assumed
interest rate equal to the Pay Rate over an assumed period of
twenty (20) years. Monthly installment payments of the
Amortization Principal Amount commencing on October 1, 1999 and
thereafter shall be in the principal amounts set forth in the
schedule attached to the Second Amendment as Exhibit A and
incorporated herein by this reference, together with accrued
interest calculated as set forth on said Exhibit A; provided,
that on September 1, 2006, the then remaining unpaid balance of
the Amortization Principal Amount shall be due and payable,
together with accrued and unpaid interest thereon."
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(b) Amendment of Quarterly Excess Cash Flow Payment Provisions.
Effective on and as of the date hereof, the Loan Agreement is hereby
amended by amending Section 2.4(B)(iv) thereof to read in its entirety as
follows:
"(iv)In addition to the foregoing, commencing with the fiscal quarter
of the Borrowers ending June 30, 2000, and for each fiscal
quarter thereafter until (a) all Obligations have been paid in
full or (b) payments made pursuant to this Section 2.4(B)(iv)
(including all amounts actually paid prior to the date of this
Second Amendment) aggregate $2,500,000.00, whichever first
occurs, a sum equal to the greater of (1) 25% of Consolidated
Excess Cash Flow for such fiscal quarter or (2) the percentage of
True Excess Cash Flow specified below for such fiscal quarter (in
either case, the "Quarterly Excess Cash Flow Payment") shall be
due and payable as set forth below. For purposes of the formula
set forth above, the relevant percentage of True Excess Cash Flow
is (A) 80% until all payments made pursuant to this Section
2.4(B)(iv) aggregate $1,000,000.00, (B) 70% until all payments
made pursuant to this Section 2.4(B)(iv) aggregate $1,750,000.00,
and (C) 60% until all payments made pursuant to this Section
2.4(B)(iv) aggregate $2,500,000.00. The Quarterly Excess Cash
Flow Payment for each fiscal quarter of the Borrowers shall be
due and payable, in arrears, in three equal monthly installments
on the twentieth (20th) day (without grace) of each month
following the relevant fiscal quarter;"
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(c) Past-Due Excess Cash Flow Payments. The Borrowers and Siegel
acknowledge that the Borrowers have failed to comply with the provisions of
Section 2.4(B)(iv) of the Loan Agreement with respect to payments due
thereunder with respect to the fiscal quarters ended September 30, 1999,
December 31, 1999 and March 31, 2000 (the "Cash Flow Payments"). The
parties acknowledge that the aggregate amount of the Cash Flow Payments,
without interest, is $230,000.00. SouthTrust hereby agrees that the
Borrowers may cure the Default resulting from the failure to make the Cash
Flow Payments in a timely manner by paying the Cash Flow Payments, with
interest on the amount thereof from their respective due dates until paid
at the Pay Rate, in six (6) equal monthly installments commencing on July
6, 2000; provided, that SouthTrust hereby agrees to accept the sum of
$200,000.00, if paid on or prior to July 6, 2000, in full satisfaction of
the Cash Flow Payments.
3. Amendments to the Borrowers' Covenants.
(a) Section 6.2(K)of the Loan Agreement is hereby amended, effective
on and as of July 1, 1999, to read in its entirety as follows:
"(K) None of the Borrowers will make any loan or advance to any
officer, shareholder, director or employee of any of the
Borrowers, except for business travel and similar temporary
advances in the ordinary course of business, nor pay salary
or other cash compensation to those officers of the
Borrowers who constitute their respective chief executive
officers, chief financial officers and chief operating
officers in amounts aggregating on an annual basis more than
(i) $400,000.00, on a Consolidated basis (including salary
and other cash compensation to the Borrowers' chief
executive officers and chief financial officers of not more
than $350,000.00), or (ii) so long as no Event of Default
shall have occurred and be continuing, twelve and one-half
percent (12.5%) of the Borrowers' annual Consolidated
earnings before interest, depreciation and amortization,
whichever is greater. In addition to the foregoing, the
Borrowers shall be permitted to pay additional compensation
to such officers in each fiscal quarter aggregating five
percent (5%) of the Borrowers' Consolidated Excess Cash Flow
for such quarter, so long as all payments due under Section
2.4(B)(iv) hereof for such fiscal quarter and the prior
fiscal quarters have been paid in full and in a timely
manner."
(b) Section 6.2(L) of the Loan Agreement is hereby amended, effective
on and as of July 1, 1999, to read in its entirety as follows:
"(L) None of the Borrowers will make payments on account of the
purchase or lease of Fixed Assets or otherwise make capital
expenditures that, in the aggregate, in any fiscal year:
(i) commencing on April 1, 1999, will exceed $600,000.00,
on a consolidated basis;
(ii) commencing on April 1, 2000, will exceed $736,000.00,
on a consolidated basis; and
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(iii)commencing on or after April 1, 2001, will exceed
$600,000.00, on a consolidated basis;
as used in this paragraph, the term "lease" means a lease
reflected on a balance sheet of any of the Borrowers or a
lease that should be so reflected under Generally Accepted
Accounting Principles."
(c) Section 6.2(M) of the Loan Agreement is hereby amended, effective
on and as of July 1, 1999, by deleting the figure, "$700,000.00" appearing
therein and inserting in lieu thereof the figure, "$375,000.00."
(d) The Loan Agreement is hereby amended, effective on and as of the
date hereof, by adding a new subsection (X) to Section 6.2 thereof, to read
in its entirety as follows:
"(X) None of the Borrowers will enter into any line of business other
than the manufacture and sale of disposable medication, vitamin
and dietary and/or nutritional supplement punch cards, packaging
equipment and allied ancillary products (including proprietary
medication dispensing systems)(the "Core Business"), unless (a)
Borrowers' existing technologies, equipment and processes can be
used for the manufacture and sale of products with similar
applications and such manufacture and sale is not reasonably
anticipated by the Borrowers to impair the operation or financial
condition of the Core Business; or (b) the prior written consent
of SouthTrust is obtained, which consent shall not be
unreasonably withheld."
(e) Section 6.3 of the Loan Agreement is hereby amended, effective on
and as of July 1, 1999, to read in its entirety as follows:
"6.3 Financial Covenants. The Borrowers will maintain at all times:
(A) Consolidated Net Working Capital in the following minimum
amounts:
From July 1, 1999 through March 31, 2000...... $1,400,000
From April 1, 2000 and thereafter............. $1,500,000
(B) Consolidated negative Net Worth not to exceed $10,500,000.
(C) A ratio of Consolidated Current Assets to Consolidated Current
Liabilities of not less than 1.5 to 1.0; and
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(D) Fixed Charge Coverage of not less than (i) 1.2 to 1.0 from July
1, 1999 through March 31, 2000, and (ii) 1.35 to 1.0 thereafter."
4. Representations and Warranties of Borrowers and Guarantor. In order to
induce SouthTrust to enter into the transactions contemplated by this Amendment,
each of the Borrowers and the Guarantor hereby, jointly and severally,
represents and warrants to SouthTrust as follows:
(a) As of the date hereof, other than the Existing Defaults (as
defined in Section 10 hereof), no Event of Default, and no event or
condition which, with the passage of time, notice or both, would constitute
an Event of Default, exists under the Loan Agreement or the other Loan
Documents;
(b) Each of the representations and warranties of Borrowers and
Guarantor contained in the Loan Agreement and the other Loan Documents were
true, correct and complete in all respects when made and, except as
expressly disclosed on Exhibit B attached to this Amendment and
incorporated herein by reference, each of such representations and
warranties continues to be true, correct and complete in all respects on
the date hereof as if each of such representations and warranties were
originally made as of the date hereof;
(c) MTS has obtained fully executed Subordination Agreements in favor
of SouthTrust from each of the lenders under the Labs Bridge Loans (as
defined in the Letter Agreement), other than the Joan Fitterling Trust
(true and correct copies of which have been provided to SouthTrust); none
of such Subordination Agreements has been amended, modified or otherwise
terminated as of the date hereof; each of such Subordination Agreements
remains in full force and effect in accordance with its terms; and none of
the Borrowers has made any payment in violation of any such Subordination
Agreement or otherwise in violation of the provisions of the Loan Agreement
applicable to the Subordinated Indebtedness referred to in such
Subordination Agreements;
(d) The execution, delivery and performance by Borrowers and Guarantor
of this Amendment and the consummation of the transactions contemplated
hereby (i) are within the corporate power of each of the Borrowers, and
have been duly authorized by all necessary corporate action on the part of
each of the Borrowers (true, correct and complete copies of the
documentation thereof, certified as such by the appropriate officers of the
Borrowers, being attached hereto as Exhibit C), (ii) do not require any
approval or consent, or filing with, any governmental agency or authority,
(iii) do not violate any provisions of any law, rule or regulation or any
provision of any order, writ, judgment, injunction, decree, determination
or award presently in effect in which any Borrower or Guarantor is named or
any provision of the organizational documents of any of the Borrowers, and
(iv) do not and will not result in a breach of or constitute a default
under any agreement or instrument to which any Borrower or any Guarantor is
a party or by which it or any of its or their properties are bound;
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(e) This Amendment constitutes the legal, valid and binding obligation
of Borrowers and Guarantor, enforceable against each of them in accordance
with its terms;
(f) Attached hereto as Exhibit D is a true, correct and complete copy
of the Consent and Re-affirmation of Guaranty, which has been duly executed
and delivered by Siegel in favor of SouthTrust in connection with the
transactions contemplated in this Amendment.
(g) The Borrowers and the Guarantor entered into the Letter Agreement,
and are entering into this Amendment, freely and voluntarily with the
advice of legal counsel of their own choosing; and
(h) On or prior to the date hereof, in accordance with the provisions
of Section 8.5 of the Loan Agreement, the Borrowers have reimbursed
SouthTrust for all of SouthTrust's costs and expenses for which invoices
have been delivered to the Borrowers, including, without limitation, all
such costs and expenses incurred in connection with the preparation,
negotiation and implementation of this Amendment.
5. Certain Acknowledgments by Borrowers and Guarantor. Each Borrower and
the Guarantor hereby acknowledges, stipulates and agrees that: (a) all of the
obligations of Borrowers under the Loan Agreement are absolutely due and owing
by Borrowers to SouthTrust without any defense, deduction, offset or
counterclaim (and, to the extent Borrowers or Guarantor had any defense,
deduction, offset or counterclaim on the date hereof, the same is hereby
waived); (b) the Loan Agreement and all other documents and instruments executed
in connection therewith or in connection with any predecessor agreement are
legal, valid and binding obligations of Borrowers and Guarantor, enforceable
against Borrowers and Guarantor in accordance with their respective terms; (c)
each of Borrowers and the Guarantor has consented to, and hereby ratifies any
and all prior consents given by them (or any of them) with respect to the Loan
Documents, including, without limitation, the First Amendment and this
Amendment, all transactions contemplated thereby and all documents and
instruments executed in connection herewith and therewith; and (d) prior to
executing this Amendment, Borrowers and Guarantor consulted with and had the
benefit of advice of legal counsel of their own selection and each has relied
upon the advice of such counsel, and in no part upon any representation of
SouthTrust concerning the legal effects of this Amendment, any of the Loan
Documents, or any provision hereof or thereof.
6. Ratification and Reaffirmation of Releases and Waivers.
(a) Each of the Borrowers and the Guarantor hereby ratifies, confirms
and re-affirms as of the date hereof each of the releases, waivers and
undertakings set forth in the Loan Agreement and the Loan Documents,
including, without limitation, each of the foregoing contained in the First
Amendment, each of which is hereby incorporated herein by this reference,
including, without limitation, those contained in the following Sections of
the Loan Agreement: Section 7.5 "Waiver of Right To Stay Foreclosure Upon
Occurrence of Major Default," Section 7.6 "Relief from Automatic Stay,"
Section 8.3 "Indemnity," Section 8.7 "Waiver by the Borrowers," Section
8.10 "Submission to Jurisdiction; Waivers," and Section 8.11 "Release."
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(b) Each of the Borrowers and the Guarantor hereby acknowledges that
the provisions contained in this Section 6, and in the Sections of the Loan
Agreement referred to in subsection (a) hereof, were bargained for by the
Lender, and are being relied upon by the Lender in connection with its
agreement to enter into the transactions contemplated by the Loan Agreement
and this Amendment.
7. Ratification of Loan Agreement and Other Loan Documents. Each of the
Borrowers and the Guarantor hereby ratifies and re-affirms the Loan Agreement,
each of the other Loan Documents and all of its or their obligations and
liabilities thereunder. Guarantor hereby ratifies and reaffirms the validity,
legality and enforceability of the Guaranty Agreement and agrees that the
Guaranty Agreement is and shall remain in full force and in effect until all the
Obligations of Borrowers under the Loan Agreement, as amended by this Amendment,
and as the same may hereafter be amended or modified, and all other Guaranteed
Obligations (as defined in the Guaranty Agreement) have been indefeasibly paid
and satisfied in full.
8. Debtor-Creditor Relationship. Nothing in this Amendment shall be
construed to alter the existing debtor-creditor relationship between Borrowers
and Lender, nor is this Amendment or any Loan Document intended to change or
affect in any way the relationship between Lender and the Guarantor to one other
than a debtor-creditor relationship. This Amendment, together with the other
Loan Documents, is not intended, nor shall any of them be construed to create, a
partnership or joint venture relationship between or among any of the parties
hereto. No person other than a party hereto is intended to be a beneficiary
hereof and no person other than a party hereto shall be authorized to rely upon
the contents of this Amendment.
9. Entire Agreement. This Amendment supersedes paragraph 2 of the Letter
Agreement; however, the remainder of the Letter Agreement remains in full force
and effect. Accordingly, this Amendment, the Loan Agreement as amended hereby,
the Letter Agreement (to the extent not superseded as provided above) and the
other Loan Documents, together constitute the entire understanding of the
parties with respect to the subject matter hereof and thereof. The Loan
Agreement, as amended hereby, may not be modified, altered or amended except by
an agreement in writing signed by all the parties hereto.
10. Waiver of Existing Defaults; No Additional Waiver.
(a) By its execution and delivery of this Amendment, SouthTrust hereby
waives the occurrence of (i) the Events of Default identified in paragraph
1 of the Letter Agreement, and (ii) each other Event of Default (A) which
has occurred prior to the date of this Amendment and (B) with respect to
which either (1) the Borrowers have notified SouthTrust in writing prior to
the date hereof or (2) SouthTrust has otherwise obtained knowledge prior to
the date hereof (collectively, the "Existing Defaults"). Notwithstanding
the foregoing, each of the Borrowers and the Guarantor hereby acknowledge
and agree that, if the Borrowers have not cured the Default resulting from
their failure to make the Cash Flow Payments in a timely manner by paying
SouthTrust the sum of $200,000.00 on or prior to July 6, 2000, as permitted
in Section 2(c) hereof, then any failure by the Borrowers to pay any
installment payment described in such Section 2(c) on the date such payment
becomes due will constitute a Major Default.
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(b) No delay or failure on the part of Lender in the exercise of any
right, power or privilege granted under the Loan Agreement, as amended by
this Amendment, or any of the other Loan Documents, or available at law or
in equity, shall impair any such right, power or privilege or be construed
as a waiver of any Event of Default thereunder or any acquiescence therein.
No single or partial exercise of any such right, power or privilege shall
preclude the further exercise of such right, power or privilege. No waiver
shall be valid against Lender unless made in writing and signed by Lender,
and then only to the extent expressly specified therein. In furtherance,
and not in limitation, of the foregoing, each of the Borrowers and the
Guarantor hereby acknowledges that, except as expressly provided herein
with respect to the Existing Defaults, SouthTrust has not waived any Event
of Default which may exist or which may have occurred, nor has SouthTrust
made any commitment of any kind to grant any waiver with respect thereto in
the future, and SouthTrust reserves all of its rights and remedies arising
as a result of any such Event of Default, under the Loan Agreement, as
amended hereby, or otherwise arising at law or in equity.
11. No Novation, Etc.. This Amendment is not intended to be, nor shall it
be construed to create, a novation or accord and satisfaction, and, except as
otherwise expressly modified herein, the Loan Agreement and the other Loan
Documents shall remain in full force and effect.
12. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto, each of which when so executed
shall constitute an original, but all of which taken together shall be one and
the same instrument. In proving this Amendment or any of the Loan Documents, it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Any signature delivered
by a party telecopy or facsimile transmission shall be deemed an original
signature hereto. Notice of Lender's acceptance hereof is hereby waived.
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13. Release. To induce the Lender to enter into this Amendment, each of the
Borrowers and the Guarantor, for themselves and their respective legal
representatives, successors, predecessors, heirs and assigns, and their
respective officers, directors, stockholders, agents, servants and employees,
hereby release, acquit and forever discharge the Lender, its Participants and
any of the Participants' general partners, limited partners and
sub-participants, and the officers, directors, stockholders, general partners,
limited partners, members, agents, servants, employees, legal representatives,
successors and assigns of any of the foregoing (collectively, "Released
Parties"), of and from any and all claims, demands, debts, actions and causes of
action of any kind, whether absolute or contingent, due or to become due,
disputed or undisputed, liquidated or unliquidated, at law or in equity, or
known or unknown, which they or any of them now have or might hereafter have
against any one or more of the Released Parties, by reason of any act, matter,
contract, agreement or thing whatsoever up to the date of this Amendment,
including, without limitation, any claim, counterclaim, demand, debt, action or
cause of action of any kind, and whether arising, directly or indirectly, under
or in connection with the Loan Agreement, the Loan Documents, the Original
SouthTrust Loan Documents or the Original SouthTrust Indebtedness.
14. Governing Law. This Amendment is being delivered to the
Lender, and is performable, in Jefferson County, Alabama, and the substantive
Laws of the United States and the State of Alabama, without giving effect to its
principles of conflict of laws, shall govern the construction of this Amendment
and the documents executed and delivered pursuant hereto, and the rights and
remedies of the parties hereto and thereto, except to the extent that the
location of any Collateral in a state or jurisdiction other than Alabama
requires that the perfection of the Lender's security interest hereunder, and
the enforcement of certain of the Lender's remedies with respect to the
Collateral, be governed by the laws of such other state or jurisdiction.
15. Survival. All representations and warranties contained in this
Amendment, the Loan Agreement or made or furnished on behalf of any Borrower or
Guarantor in connection herewith or therewith shall survive the execution and
delivery of this Amendment, and shall survive until the Obligations are
indefeasibly paid in full, and thereafter as and to the extent provided in the
Loan Agreement.
IN WITNESS WHEREOF, each of the undersigned parties has executed this
Amendment, or has caused the same to be executed on its behalf by its duly
authorized officer and agent, on and as of the date first above written.
MEDICAL TECHNOLOGY SYSTEMS, INC.
By:______________________________________
Its:_____________________________________
CLEARWATER MEDICAL SERVICES, INC.
By:______________________________________
Its:_____________________________________
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MEDICAL TECHNOLOGY LABORATORIES,INC.
By:______________________________________
Its:_____________________________________
MTS PACKAGING SYSTEMS, INC.
By:______________________________________
Its:_____________________________________
VANGARD LABS, INC.
By:______________________________________
Its:_____________________________________
VANGARD PHARMACEUTICAL PACKAGING, INC.
By:______________________________________
Its:_____________________________________
PERFORMANCE PHARMACY SYSTEMS, INC.
By:______________________________________
Its:_____________________________________
CART-WARE, INC.
By:______________________________________
Its:_____________________________________
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MEDICATION MANAGEMENT SYSTEMS, INC.
By:______________________________________
Its:_____________________________________
MEDICATION MANAGEMENT TECHNOLOGIES, INC.
By:______________________________________
Its:_____________________________________
MTS SALES & MARKETING, INC.
By:______________________________________
Its:_____________________________________
SYSTEMS PROFESSIONALS, INC.
By:______________________________________
Its:_____________________________________
LIFESERV TECHNOLOGIES, INC.
By:______________________________________
Its:_____________________________________
_________________________________________
Todd E. Siegel
WITNESS:
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SOUTHTRUST BANK
By:______________________________________
Its:_____________________________________
<PAGE>
EXHIBIT A
Amortization Schedule
See amortization schedule attached.
<PAGE>
EXHIBIT B
Exceptions to Representations and Warranties
Representations and warranties with respect to operational matters for
Borrowers whose assets and business have been sold.
<PAGE>
EXHIBIT C
Certified Resolutions of Borrowers
See attached pages
<PAGE>
EXHIBIT D
Consent and Re-affirmation
See pages attached.
