CONSENT AND AMENDMENT NO. 10 TO LOAN AND SECURITY AGREEMENT
May 24, 1999
Health Fitness Corporation
3500 West 80th Street, Suite 130
Bloomington, Minnesota 55431
Re: Sale of Assets of Health Fitness Corporation
Ladies and Gentlemen:
Ableco Finance LLC, The Long Horizons Overseas Fund, Ltd., Styx
Partners, L.P. and Styx International, Ltd., as direct or indirect assignees of
Madeleine L.L.C. (individually and collectively, "Lender") and Health Fitness
Corporation ("Borrower") have entered into certain financing arrangements as set
forth in the Loan and Security Agreement, dated February 17, 1998 by and among
Lender, Borrower and Health Fitness Rehab, Inc., The Preferred Companies, Inc.,
Health Fitness Rehab of Iowa, Inc., Duffy & Associates Physical Therapy Services
Corp., Medlink Corporation, Medlink Services, Inc., Fitness Centers of America
and Sports & Orthopedic Physical Therapy, Inc., Midlands Physical Therapy, Inc.
and International Fitness Club Network, Inc. (collectively, "Guarantors"), as
amended pursuant to Amendment No. 1 to Loan and Security Agreement, dated
February 28, 1999, by and among Lender, Borrower and Guarantors, Amendment No. 2
to Loan and Security Agreement, dated June 4, 1998, by and among Lender,
Borrower and Guarantors, Amendment No. 3 to Loan and Security Agreement, dated
June 26, 1998, by and among Lender, Borrower and Guarantors, Amendment No. 4 to
Loan and Security Agreement, dated September 10, 1998, by and among Lender,
Borrower and Guarantors, Amendment No. 5 to Loan and Security Agreement, dated
November 2, 1998, by and among Lender, Borrower and Guarantors, Amendment No. 6
to Loan and Security Agreement, dated January 8, 1999, by and among Lender,
Borrower and Guarantors ("Amendment No. 6"), Amendment No. 7 to Loan and
Security Agreement, dated February 26, 1999, by and among Lender, Borrower and
Guarantors, Amendment No. 8 to Loan and Security Agreement, dated as of March
12, 1999 and Consent and Amendment No. 9 to Loan and Security Agreement, dated
as of May 10, 1999 (and together with all supplements thereto and as the same
may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including this letter agreement (all of
the foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements").
Borrower and Farhat Fitness Services, Inc. ("Purchaser") have entered
into an agreement pursuant to which Borrower is selling substantially all of
Borrower's assets used specifically and directly by or in Borrower's ProSource
division located at 5614 - 36th Street West, St. Louis Park, Minnesota 55416
(collectively, the "Sale Assets") as set forth in the Asset Purchase Agreement,
dated as of May 21, 1999 among Borrower and Purchaser (the "Sale Contract").
Borrower and Guarantors have requested that Lender consent to such sale
and amend the Financing Agreements in certain respects and Lender is willing to
consent to such sale and make such amendments, subject to the terms and
conditions set forth herein.
In consideration of the foregoing, and other good and valuable
consideration, the parties hereto agree as follows:
1. Definitions. For purposes of this Consent and Amendment, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. Consent. Subject to the terms and conditions contained herein,
Lender hereby consents to the sale by Borrower of the Sale Assets in accordance
with the terms of the Sale Contract as in effect on the date hereof.
3. Amendments.
(a) Section 1.8(a)(i) of the Loan Agreement and Section 3(a)
of Amendment No. 6 are each hereby amended by (i) deleting each reference
therein to "$4,950,000" and in each case substituting therefor "$4,850,000" and
(ii) adding at the end of each such section the following:
"and as reduced on the twenty-first of each month, commencing
on June 21, 1999, by an amount equal to twenty-five (25%)
percent of the amounts received by Borrower or any Guarantor
during the four week period immediately preceding such date in
payment or otherwise in respect of Accounts of Borrower
arising out of or resulting from the "ProSource" division of
Borrower (sold to Farhat Fitness Services, Inc. pursuant to
the Asset Purchase Agreement dated as of May 21, 1999 between
Borrower and Farhat Fitness Services, Inc.)."
(b) Exhibit A to the Collateral Assignment of Notes, dated
February 17, 1998, between Borrower and Lender is hereby amended to include the
two (2) promissory notes of Purchaser payable to the order of Borrower, each in
the principal amount of $40,000, issued pursuant to the Sale Contract, which
promissory notes shall be included in the Collateral.
4. Conditions Precedent. The effectiveness of the consent of Lender
contained in Section 2 hereof is subject to the satisfaction of each of the
following conditions precedent in a manner satisfactory to Lender:
(a) all representations, warranties and covenants contained
herein shall be true and correct;
(b) Lender shall have received from Borrower, in cash or other
immediately available funds, on the date hereof not less than $175,000 as total
proceeds from the sale of the Sale Assets pursuant to the Sale Contract (as in
effect on the date hereof) payable in cash or other immediately available funds
on the date hereof, $100,000 of which shall be applied to the permanent
reduction of the Obligations in such order and manner as Lender shall determine;
(c) Lender shall have received from Borrower the original
promissory notes issued by Purchaser pursuant to the terms of the Sale Contract,
duly indorsed in favor of Lender;
(d) the sale by Borrower of the Sale Assets to Purchaser
pursuant to the Sale Contract shall have occurred by no later than May 25, 1999;
(e) Lender shall have received an original of this Consent and
Amendment, duly authorized, executed and delivered by Borrower and Guarantors;
and
(f) as of the date hereof and after giving effect to the
transactions contemplated by the Sale Contract, no Event of Default, or event,
act or condition which with notice or passage of time or both would constitute
an Event of Default, shall exist or have occurred.
5. Additional Representations, Warranties and Covenants. Borrower and
Guarantors, each hereby jointly and severally represents, warrants and covenants
to Lender as follows, which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof, and the truth
and accuracy of, or compliance with each, together with the representations,
warranties and covenants in the other Financing Agreements, being a continuing
condition of the making of loans and providing other financial accommodations by
Lender to Borrower:
(a) On or about the date hereof, Borrower has sold to
Purchaser all of the Sale Assets pursuant to the Sale Contract (as in effect on
the date hereof).
(b) A true, correct and complete copy of the Sale Contract,
together with all exhibits and schedules thereto, as executed by the parties
thereto is annexed hereto as Exhibit A.
(c) The security interests in and liens of Lender upon the
Collateral (as such term is defined in the Loan Agreement), other than the Sale
Assets, are and shall continue to be in full force and effect, including, but
not limited to, all amounts at any time payable to Borrower, any Guarantor or
any of their respective affiliates pursuant to the Sale Contract (and all
related agreements, documents and instruments), and all rights, benefits and
remedies of Borrower, any Guarantor or any of their respective affiliates
pursuant to the Sale Contract (and all related agreements, documents and
instruments).
(d) Borrower and Guarantors shall cause all amounts at any
time payable to Borrower, any Guarantor or any of their respective affiliates
pursuant to the Sale Contract or any related agreements, documents and
instruments to be paid by Purchaser directly to Lender for application to the
Obligations (as such term is defined in the Loan Agreement) in such order and
manner as Lender shall determine. The net amount payable by Purchaser to
Borrower in cash or other immediately available funds pursuant to the Sale
Contract shall be not less than $255,000, $175,000 of which shall be payable in
cash or other immediately available funds on the date hereof, $40,000 of which
shall be payable in cash or other immediately available funds on the first
anniversary of the date hereof (subject to the terms of the Sale Contract as in
effect on the date hereof) and $40,000 of which shall be payable in cash or
other immediately available funds on the second anniversary of the date hereof.
(e) In the event Borrower, Guarantors or any of their
respective affiliates receives any amounts at any time payable to Borrower, any
Guarantor or any of their respective affiliates pursuant to the Sale Contract or
any related agreement, document or instrument, such amounts shall be collected
by Borrower, such Guarantor or such affiliate, as the case may be, as the
property of Lender and held by it or them in trust for Lender and shall on the
date received be remitted to Lender in the form received, with any necessary
assignments or endorsements, for application to the Obligations in such order
and manner as Lender shall determine.
6. Effect of this Consent and Amendment. Except for the consent and
amendments expressly provided herein, no other changes or modifications to the
Financing Agreements are intended or implied and in all other respects the
Financing Agreements are hereby specifically ratified, restated and confirmed by
all parties hereto as of the date hereof. To the extent of conflict between the
terms of this Consent and Amendment and the other Financing Agreements, the
terms of this Consent and Amendment shall control. Any acknowledgment or consent
contained herein shall not be construed to constitute a consent to any other or
further action by Borrower or any Guarantor or to entitle Borrower or any
Guarantor to any other consent.
7. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
proper to effectuate the provisions and purposes of this Consent and Amendment.
8. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of law or choice of law).
9. Counterparts. This Consent and Amendment may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one and the same agreement. In making proof of this Consent and Amendment,
it shall not be necessary to produce or account for more than one counterpart
hereof signed by each of the parties hereto.
Very truly yours,
ABLECO FINANCE, for itself
and as agent
By:
Title:
AGREED:
HEALTH FITNESS CORPORATION
HEALTH FITNESS REHAB, INC.
DUFFY & ASSOCIATES PHYSICAL
THERAPY SERVICES CORP.
THE PREFERRED COMPANIES, INC.
MEDLINK CORPORATION
HEALTH FITNESS REHAB OF IOWA, INC.
MEDLINK SERVICES, INC.
FITNESS CENTERS OF AMERICA
SPORTS & ORTHOPEDIC PHYSICAL THERAPY, INC.
INTERNATIONAL FITNESS CLUB NETWORK, INC.
MIDLANDS PHYSICAL THERAPY, INC.
By:
Title:
EXHIBIT A
TO
CONSENT AND AMENDMENT NO. 10 TO LOAN AND SECURITY AGREEMENT
AMONG
HEALTH FITNESS CORPORATION
HEALTH FITNESS REHAB, INC.
DUFFY & ASSOCIATES PHYSICAL
THERAPY SERVICES CORP.
THE PREFERRED COMPANIES, INC.
MEDLINK CORPORATION
HEALTH FITNESS REHAB OF IOWA, INC.
MEDLINK SERVICES, INC.
FITNESS CENTERS OF AMERICA
SPORTS & ORTHOPEDIC PHYSICAL THERAPY, INC.
INTERNATIONAL FITNESS CLUB NETWORK, INC.
MIDLANDS PHYSICAL THERAPY, INC.
AND
ABLECO FINANCE, FOR ITSELF AND AS AGENT
DATED: May 24, 1999
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