exv10w9



 



Exhibit 10.9


AMENDMENT NO. 3

TO

CREDIT AGREEMENT

AND WAIVER



     This Amendment No. 3 to Credit Agreement and Waiver, dated as of June 30,
2003 (the “Amendment”), between Compex Technologies, Inc., a Minnesota
corporation f/k/a Rehabilicare Inc. (the “Borrower”) and U.S. Bank National
Association (the “Bank”).


RECITALS:


     A. The Borrower and the Bank are the parties to that certain Credit
Agreement dated as of July 14, 1999, as amended by an Amendment No. 1 to Credit
Agreement and Waiver dated as of March 31, 2001, and an Amendment No. 2 to
Credit Agreement dated as of June 30, 2002 (as so amended, the “Original
Agreement”).


     B. The Borrower has requested that the Bank amend certain Sections of the
Original Agreement and waive certain Defaults or Events of Default.


     C. Subject to the terms and conditions of this Amendment, the Bank will
agree to the foregoing requests of the Borrower.


     NOW, THEREFORE, the parties agree as follows:


     1. Defined Terms. All capitalized terms used in this Amendment shall,
except where the context otherwise requires, have the meanings set forth in the
Original Agreement as amended hereby.


     2. Amendments. The definition of “Revolving Credit Termination Date”
appearing in Section 1.1 of the Original Agreement is amended by extending the
date “July 1, 2003” appearing therein to the date “July 1, 2004.”


     3. Conditions to Effectiveness. This Amendment shall become effective on
the date (the “Effective Date”) when, and only when, the Bank shall have
received:



		
	 	     (a) Counterparts of this Amendment executed by the Borrower;




		
	 	     (b) A certified copy of the resolutions of the Board of Directors of
the Borrower authorizing or ratifying the transactions contemplated
hereby, designating the officers authorized to execute and/or deliver
this Amendment and any other documents to be executed and/or delivered by
the Borrower in connection herewith;




		
	 	     (c) An Incumbency Certificate signed by the Secretary of the
Borrower setting forth names of each officer of the Borrower designated
to execute and/or deliver this Amendment and any other documents to be
executed and/or delivered by the Borrower in connection herewith and an
original sample of the signature thereof;




		
	 	     (d) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (i) that there have been no changes to the articles
of incorporation or bylaws of the Borrower previously delivered to the
Bank; or if (i) is not correct, (ii) that the Articles and/or By-Laws
delivered to the Bank in
connection with this Amendment are true and correct copies of the
Articles of Incorporation and/or By-Laws of the Borrower currently in
full force and effect;



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	 	     (e) A Certificate (or other evidence) of Good Standing for the
Borrower issued by the Secretary of State of the State of Minnesota; and




		
	 	     (f) Such other documents or other items as the Bank may reasonably
request.



     4. Representations and Warranties. To induce the Bank to enter into this
Amendment, the Borrower represents and warrants to the Bank as follows:



		
	 	     (a) The execution, delivery and performance by the Borrower of this
Amendment and any other documents to be executed and/or delivered by the
Borrower in connection herewith have been duly authorized by all
necessary corporate action, do not require any approval or consent of, or
any registration, qualification or filing with, any government agency or
authority or any approval or consent of any other person (including,
without limitation, any stockholder), do not and will not conflict with,
result in any violation of or constitute any default under, any provision
of the Borrower’s articles of incorporation or bylaws, any agreement
binding on or applicable to the Borrower or any of its property, or any
law or governmental regulation or court decree or order, binding upon or
applicable to the Borrower or of any of its property and will not result
in the creation or imposition of any security interest or other lien or
encumbrance in or on any of its property pursuant to the provisions of
any agreement applicable to the Borrower or any of its property except
pursuant to the Loan Documents to which the Borrower is a party;




		
	 	     (b) The representations and warranties contained in ARTICLE VII of
the Original Agreement are true and correct as of the date hereof as
though made on that date except to the extent that such representations
and warranties relate solely to an earlier date;




		
	 	     (c) No events have taken place and no circumstances exist at the
date hereof which would give the Borrower the right to assert a defense,
offset or counterclaim to any claim by the Bank for payment of the
Obligations;




		
	 	     (d) The Original Agreement, as amended by this Amendment and the
other Loan Documents to which the Borrower is a party remain in full
force and effect and are the legal, valid and binding obligations of the
Borrower and are enforceable in accordance with their respective terms,
subject to limitations as to enforceability which might result from
bankruptcy, insolvency, moratorium and other similar laws affecting
creditors’ rights generally and subject to limitations on the
availability of equitable remedies; and




		
	 	     (e) After giving effect to this Amendment, no Adverse Event, Default
or Event of Default has occurred and is continuing as of the date hereof.



     5. Reference to and Effect on the Loan Documents.



		
	 	     (a) From and after the date of this Amendment, each reference in the
Original Agreement to “this Agreement,” “hereunder,” “hereof,” “herein”
or words of like import referring to the Original Agreement, and each
reference to the “Agreement,” “thereunder,” “thereof,” “therein” or words
of like import referring to the Original Agreement in any other Loan
Document shall mean and be a reference to the Original Agreement as
amended hereby; and




		
	 	     (b) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Bank under the Original Agreement or
any other Loan Document, nor constitute a waiver of any provision of the
Original Agreement or any such other Loan Document.



     6. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all
costs and expenses of the Bank in connection with the preparation,
reproduction, execution and delivery of this Amendment and the other documents
to be delivered hereunder or thereunder, including their reasonable attorneys’
fees and legal expenses. In


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addition, the Borrower shall pay any and all stamp
and other taxes and fees payable or determined to be payable in connection with
the execution and delivery, filing or recording of this Amendment and the other
instruments and documents to be delivered hereunder, and agrees to save the
Bank harmless from and against any and all liabilities with respect to, or
resulting from, any delay in the Borrower’s paying or omission to pay, such
taxes or fees.


     7. Governing Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT GIVING EFFECT
TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.


     8. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.


     9. Counterparts. This Amendment may be executed in separate counterparts
and by separate parties in separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
Amendment.


     10. Recitals. The Recitals hereto are incorporated herein by reference.


     11. Waiver. On the Effective Date, the Bank waives any Adverse Event,
Default or Event of Default arising under the Original Agreement because of the
Borrower’s failure to comply with Section 9.9(k) of the Original Agreement
during the Borrower’s 2003 fiscal year by:



		
	 	     (a) acquiring more than $5,000,000.00 in business line assets in
connection with the following Investments;




		
	 	     (i) the February 2003 acquisition of certain inventory of
Bio-Medical Research, Ltd. (“BMR”) relating to the U. S. inventory
of BMR’s Slendertone FLEX Abs Belt products and related U. S.
licensing rights for a total purchase price of approximately
$2,700,000;




		
	 	     (ii) the April 2003 agreement to purchase the European
inventory of BMR’s Slendertone FLEX Abs Belt and GymBody Abs Belts,
as well as other products and related European licensing rights,
for approximately $1,500,000; provided, however, that the Borrower
and the Bank agree that the cash payment of the purchase price of
such inventory to be made by the Borrower in July 2004 shall be
included in the aggregate purchase price for the Borrower’s fiscal
year 2003’s acquisitions subject to Section 9.9(k) ; and




		
	 	     (iii) the May 2003 acquisition of substantially all of the
assets of BMR Neurotech, Inc., the U.S. medical division of BMR for
approximately $3,300,000; and




		
	 	     (b) failing to give the Bank at least 15 Business Days’ prior
written notice of the April 2003 acquisition described above.



The Bank’s waiver is limited to the specific transactions described above and
is not intended, and shall not be construed, to be a general waiver of any
other term or provision of the Original Agreement or a waiver of any other
existing or future Adverse Event, Default or Event of Default.


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.



	 	 	 	 	 	 
	 	 	Compex Technologies, Inc.	 
	 	 	 	 	 	 
	 	 	
By:	/s/ SCOTT P. YOUNGSTROM	 
	 	 	 	
	 
	 	 	
Title:	 Chief Financial Officer	 
	 	 	 	
	 
	 	 	 	 	 	 
	 	 	U.S. Bank National Association	 
	 	 	 	 	 	 
	 	 	
By:	/s/ MICHAEL J. STALOCH	 
	 	 	 	
	 
	 	 	
Title:	 Senior Vice President	 
	 	 	 	
	 



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