EXTENSION AND MODIFICATION AGREEMENT
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This Extension and Modification Agreement ("Agreement") is made as of March
7, 2005, by and among U.S. Bank National Association, successor in interest to
Santa Xxxxxx Bank ("Bank"); Physiologic Reps, a California corporation
("Borrower"); PRI Medical Technologies, Inc. formerly known as Medical Resources
Management, Inc., a Nevada corporation ("PRIMT"); Medical Resources Management
Financial, Inc., a California corporation ("MRM Financial"); and Emergent Group,
Inc., a Nevada corporation ("Emergent").
RECITALS
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This Agreement is made and entered into in reliance on the accuracy of the
following recitals, which are acknowledged by Bank, Borrower, PRIMT, MRM
Financial and Emergent to be true and accurate:
1. Borrower's Obligations to Bank.
A. Line of Credit Note and Loan Agreement.
Borrower is liable to Bank pursuant to that certain Promissory Note dated
March 30, 1999, in the original principal amount of $2,000,000.00, with an
original maturity date of May 2, 2000, and an initial interest rate of 8.750%,
which Promissory Note was modified by Change in Terms Agreements dated April 26,
2000; August 4, 2000; September 28, 2000; October 19, 2000; December 12, 2000;
April 2, 2001; June 5, 2001; August 2, 2001; and October 22, 2001.
The Promissory Note evidences a revolving line of credit, and is governed
by that Loan Agreement dated as of March 30, 1999, in an original maximum amount
outstanding at any time of no more than the lesser of $2,000,000.00 or 80.000%
of Eligible Accounts (as defined in said Loan Agreement), which Loan Agreement
was modified by that Modification of Loan Agreement dated July 22, 1999, and by
that Second Amendment to Loan Agreement dated as of August 2, 2001.
Both the above-referenced Promissory Note and the above-referenced Loan
Agreement were modified by Amendments to Loan Agreement and Note (and any
addenda to such Amendments to Loan Agreement and Note) dated March 15, 2002;
April 2, 2002; July 23, 2002; October 10, 2002; April 22, 2003; and March 26,
2004; and by Extension and Modification Agreements entered into by and between
Bank, Borrower, PRIMT, MRM Financial and Emergent and dated as of October 31,
2003 (the "October 2003 Extension Agreement") and November 15, 2004 (the
"November 2004 Extension Agreement").
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The above-referenced Promissory Note, as modified, is referred to herein as
the "Line of Credit Note". The above-referenced Loan Agreement, as modified, is
referred to herein as the "Loan Agreement".
Borrower was required to reduce the outstanding principal balance under the
Line of Credit Note to no more than $500,000.00 by October 1, 2004, and to pay
all obligations under the Line of Credit Note, in full, no later than January
31, 2005. Borrower is required to provide Bank with a Borrower's Certificate
within twenty (20) days after the end of each month. Each Borrower's Certificate
is required to be in a form acceptable to Bank, duly executed by Borrower and
detailing the status of the line of credit governed by the Loan Agreement as of
the date on said Certificate.
As of March 2, 2005, the outstanding principal balance under the Line of
Credit Note was $650,000.00, together with accrued and unpaid interest (the
"Line of Credit Note Accrued Interest") in the amount of $4,053.47, together
with all accruing interest, fees, costs, and expenses provided in the Loan
Documents (as defined below), including, without limitation, attorneys' fees,
costs and title fees.
B. Term Note.
Borrower is further liable to Bank pursuant to that certain Promissory Note
dated March 30, 1999, in the original principal amount of $2,000,000.00, with an
original maturity date of April 2, 2004, a current maturity date of January 31,
2005, and an initial interest rate of 9.000%, which Promissory Note was modified
by that Change in Terms Agreement dated August 2, 2001; and by Amendments to
Loan Agreement and Note dated March 15, 2002; July 23, 2002; October 10, 2002;
and April 22, 2003; and by: the October 2003 Extension Agreement, an Amendment
to Note dated March 25, 2004, and the November 2004 Extension Agreement.
The above-referenced Promissory Note, as modified, is referred to herein as the
"Term Note". As of March 2, 2005, the outstanding principal balance under the
Term Note was $150,774.93, together with all accruing interest, fees, costs, and
expenses provided in the Loan Documents (as defined below), including, without
limitation, attorneys' fees, costs and title fees.
2. Security for Borrower's Obligations. A.
Borrower's Collateral.
To secure Borrower's obligations to Bank under the Term Note, Borrower has
granted to Bank a security interest in certain of its assets, pursuant to that
certain Commercial Security Agreement dated March 30, 1999, which assets
include, but are not
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limited to, all inventory, chattel paper, accounts, equipment and general
intangibles of Borrower.
To secure Borrower's obligations to Bank under the Line of Credit Note,
Borrower has granted to Bank a security interest in certain of its assets,
pursuant to that certain Commercial Security Agreement dated March 30, 1999,
which assets include, but are not limited to, all inventory, chattel paper,
accounts, equipment and general intangibles of Borrower.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "Borrower Security Agreements"; and the assets of Borrower
in which Borrower granted the above-referenced security interests are referred
to, collectively, as the "Borrower Collateral".
B. Medical Resources Management, Inc.'s Collateral.
To secure Borrower's obligations to Bank under the Term Note, PRIMT has
granted to Bank a security interest in certain of its assets, pursuant to that
certain Commercial Security Agreement dated March 30, 1999, which assets
include, but are not limited to, all inventory, chattel paper, accounts,
equipment and general intangibles of PRIMT.
To secure Borrower's obligations to Bank under the Line of Credit Note,
PRIMT has granted to Bank a security interest in certain of its assets, pursuant
to that certain Commercial Security Agreement dated March 30, 1999, which assets
include, but are not limited to, all inventory, chattel paper, accounts,
equipment and general intangibles of PRIMT.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "PRIMT Security Agreements"; and the assets of PRIMT in
which PRIMT granted the above-referenced security interests are referred to,
collectively, as the "PRIMT Collateral".
C. Med Surg Specialties, Inc.'s Collateral.
To secure Borrower's obligations to Bank under the Term Note, Med Surg
Specialties, Inc., a California corporation, now known as Medical Resources
Management Financial, Inc. ("MRM Financial"), has granted to Bank a security
interest in certain of its assets, pursuant to that certain Commercial Security
Agreement dated March 30, 1999, which assets include, but are not limited to,
all inventory, chattel paper, accounts, equipment and general intangibles of MRM
Financial.
To secure Borrower's obligations to Bank under the Line of Credit Note, MRM
Financial has granted to Bank a security interest in certain of its assets,
pursuant to that certain Commercial Security Agreement dated March 30, 1999,
which assets include, but
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are not limited to, all inventory, chattel paper, accounts, equipment and
general intangibles of Borrower.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "MRM Financial Security Agreements"; and the assets of MRM
Financial in which MRM Financial granted the above-referenced security interests
are referred to, collectively, as the "MRM Financial Collateral".
D. Texas Oxygen Medical Equipment Company's Collateral.
To secure Borrower's obligations to Bank under the Term Note, Texas Oxygen
Medical Equipment Company, a Texas corporation ("Texas Oxygen") has granted to
Bank a security interest in certain of its assets, pursuant to that certain
Commercial Security Agreement dated March 30, 1999, which assets include, but
are not limited to, all inventory, chattel paper, accounts, equipment and
general intangibles of Texas Oxygen.
To secure Borrower's obligations to Bank under the Line of Credit Note,
Texas Oxygen has granted to Bank a security interest in certain of its assets,
pursuant to that certain Commercial Security Agreement dated March 30, 1999,
which assets include, but are not limited to, all inventory, chattel paper,
accounts, equipment and general intangibles of Texas Oxygen.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "Texas Oxygen Security Agreements"; and the assets of Texas
Oxygen in which Texas Oxygen granted the above-referenced security interests are
referred to, collectively, as the "Texas Oxygen Collateral".
E. Laser Medical, Inc.'s Collateral.
To secure Borrower's obligations to Bank under the Term Note, Laser
Medical, Inc., a Utah corporation ("Laser Medical") has granted to Bank a
security interest in certain of its assets, pursuant to that certain Commercial
Security Agreement dated March 30, 1999, which assets include, but are not
limited to, all inventory, chattel paper, accounts, equipment and general
intangibles of Laser Medical.
To secure Borrower's obligations to Bank under the Line of Credit Note,
Laser Medical has granted to Bank a security interest in certain of its assets,
pursuant to that certain Commercial Security Agreement dated March 30, 1999,
which assets include, but are not limited to, all inventory, chattel paper,
accounts, equipment and general intangibles of Laser Medical.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "Laser Medical Security Agreements"; and the assets of
Laser
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Medical in which Laser Medical granted the above-referenced security interests
are referred to, collectively, as the "Laser Medical Collateral".
F. Pulse Medical Products, Inc.'s Collateral.
To secure Borrower's obligations to Bank under the Term Note, Pulse Medical
Products, Inc., an Idaho corporation ("Pulse Medical"), has granted to Bank a
security interest in certain of its assets, pursuant to that certain Commercial
Security Agreement dated March 30, 1999, which assets include, but are not
limited to, all inventory, chattel paper, accounts, equipment and general
intangibles of Pulse Medical.
To secure Borrower's obligations to Bank under the Line of Credit Note,
Pulse Medical has granted to Bank a security interest in certain of its assets,
pursuant to that certain Commercial Security Agreement dated March 30, 1999,
which assets include, but are not limited to, all inventory, chattel paper,
accounts, equipment and general intangibles of Pulse Medical.
The above-referenced Commercial Security Agreements are referred to,
collectively, as the "Pulse Medical Security Agreements"; and the assets of
Pulse Medical in which Pulse Medical granted the above-referenced security
interests are referred to, collectively, as the "Pulse Medical Collateral".
G. Inter-Creditor Agreements.
On or about July 7, 1999, Bank and General Electric Company, a New York
corporation ("G.E."), entered into Inter-Creditor Agreements with respect to the
priority of Bank's and G.E.'s respective security interests in certain assets of
Borrower, PRIMT, MRM Financial, Texas Oxygen, Laser Medical and Pulse Medical.
Said Inter-Creditor Agreements are referred to, collectively, as the
"Inter-Creditor Agreements"; and, when reference is made to a specific
Inter-Creditor Agreement, are referred to by the name of the debtor referred to
(e.g., "Borrower Inter-Creditor Agreement" or "PRIMT Inter-Creditor Agreement").
H. Collective Reference.
The above-referenced Security Agreements, as modified by the Inter-Creditor
Agreements, are referred to collectively as the "Security Agreements"; and the
above-referenced Collateral, in which security interests have been granted
pursuant to the Security Agreements, is referred to collectively as the
"Collateral".
3. Guaranties of Borrower's Indebtedness. A.
PRIMT Guaranty.
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On or about March 30, 1999, PRIMT executed, in favor of Bank, a Commercial
Guaranty (the "PRIMT Guaranty"), whereby PRIMT guaranteed and promised to pay
all of Borrower's "Indebtedness" (as defined therein) to Bank.
B. MRM Financial Guaranty.
On or about March 30, 1999, MRM Financial executed, in favor of Bank, a
Commercial Guaranty (the "MRM Financial Guaranty"), whereby MRM Financial
guaranteed and promised to pay all of Borrower's "Indebtedness" (as defined
therein) to Bank.
C. Texas Oxygen Guaranty.
On or about March 30, 1999, Texas Oxygen executed, in favor of Bank, a
Commercial Guaranty (the "Texas Oxygen Guaranty"), whereby Texas Oxygen
guaranteed and promised to pay all of Borrower's "Indebtedness" (as defined
therein) to Bank.
D. Laser Medical Guaranty.
On or about March 30, 1999, Laser Medical executed, in favor of Bank, a
Commercial Guaranty (the "Laser Medical Guaranty"), whereby Laser Medical
guaranteed and promised to pay all of Borrower's "Indebtedness" (as defined
therein) to Bank.
E. Pulse Medical Guaranty.
On or about March 30, 1999, Pulse Medical executed, in favor of Bank, a
Commercial Guaranty (the "Pulse Medical Guaranty"), whereby Pulse Medical
guaranteed and promised to pay all of Borrower's "Indebtedness" (as defined
therein) to Bank.
X. Xxxxxxxxxx Guaranty.
On or about March 30, 1999, Xxxxx Xxxxxxxxxx, an individual ("Xxxxxxxxxx"),
executed, in favor of Bank, a Commercial Guaranty (the "Xxxxxxxxxx Guaranty"),
whereby Xxxxxxxxxx guaranteed and promised to pay all of Borrower's
"Indebtedness" (as defined therein) to Bank.
G. Emergent Guaranty.
Emergent executed in favor of Bank, a Commercial Guaranty (the "Emergent
Guaranty"), whereby Emergent guaranteed and promised to pay all of Borrower's
"Indebtedness" (as defined therein) to Bank.
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H. Collective Reference.
The above-referenced guaranties are referred to, collectively, as the
"Guaranties"; and the above-referenced guarantors are referred to, collectively,
as the "Guarantors".
4. Loan Documents.
The following documents evidence Borrower's and Guarantors' obligations to
and relationship with Bank: this Agreement, the October 2003 Extension
Agreement, the Loan Agreement, the Line of Credit Note, the Term Note, the
Security Agreements and the Guaranties. The documents referenced in the
preceding sentence, together with any other documents executed by or among the
parties in connection with the Loan Agreement, the Line of Credit Note or the
Term Note, and any and all amendments and modifications thereto, are referred to
collectively in this Agreement as "Loan Documents." There are no written or oral
agreements between Bank, Borrower, and Guarantors, or any of them, evidencing or
arising out of the transactions evidenced by the Loan Documents, other than the
agreements stated in the Loan Documents.
5. Relationships Between Borrower, PRIMT, MRM Financial and Emergent.
Borrower is a wholly-owned subsidiary of PRIMT. PRIMT is a wholly-owned
subsidiary of Emergent.
Recital "E" of the October 2003 Extension Agreement provided, in part, as
follows:
On or before December 31, 2003, Borrower and PRIMT will merge.
PRIMT will be the surviving entity, and Borrower will cease to exist
as a legal entity. When the merger takes effect, then, automatically
and without the necessity of execution by any party of any further
document or instrument except as expressly provided herein, PRIMT will
become the "Borrower" under the other Loan Documents and will be
obligated under and bound by them in the same manner and to the same
extent that Borrower itself is bound by such other Loan Documents.
The merger described in the preceding paragraph has not occurred as of the
date of this Agreement. Instead, as of the date of this Agreement, and as stated
in the first paragraph of this Recital E, Borrower is a wholly-owned subsidiary
of PRIMT, and PRIMT is a wholly-owned subsidiary of Emergent.
On or before May 31, 2005, Borrower and PRIMT will merge. PRIMT will be the
surviving entity, and Borrower will cease to exist as a legal entity. When the
merger takes effect, then, automatically and without the necessity of execution
by any party of any further document or instrument except as expressly provided
herein, PRIMT xxxx
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become the "Borrower" under the other Loan Documents and will be obligated under
and bound by them in the same manner and to the same extent that Borrower itself
is bound by such other Loan Documents.
6. Default.
Borrower is in default under the November 2004 Extension Agreement, in that
Borrower failed to merge with PRIMT on or before December 31, 2004; failed to
pay off the outstanding balance of the Line of Credit Note as and when required,
and is in default of certain of the covenants contained in the Loan Agreement;
and is in default under certain of the terms of the Term Note as a result of the
defaults under the Line of Credit Note (the failure to repay and the defaults
with respect to financial covenants are collectively referred to herein as the
"Designated Defaults").
Borrower acknowledges it has received adequate and reasonable notice of the
Designated Defaults from Bank.
7. Bank's Default Rights.
Because of the existence of the Designated Defaults, Bank has the current
right to exercise any and all of its rights and remedies against Borrower or
otherwise under applicable law and the Loan Documents. Such remedies include,
without limitation, the right to foreclose upon the Collateral and the right to
exercise all remedies pursuant to the Guaranties.
8. Extension and Modification.
At Borrower's request, Bank is willing to forbear from exercising default
remedies as set forth herein, and to extend and modify the terms of the Line of
Credit Note and the Term Note and the other Loan Documents as provided for
herein, provided that the conditions set forth herein are satisfied within the
time periods required under this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Bank, Borrower, PRIMT, MRM Financial and Emergent hereby agree as follows:
1. Incorporation of Recitals; Loan Documents Remain Unchanged.
Each of the above recitals is incorporated herein and deemed to be the
agreement of Bank, Borrower, PRIMT, MRM Financial and Emergent, and is relied
upon by each
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party to this Agreement in agreeing to the terms of this Agreement. Except as
modified herein, all of the terms of the other Loan Documents remain unchanged
and in full force and effect.
2. Confirmation of Collateral.
A. Borrower hereby grants to Bank, and confirms that the Term Note and the
Line of Credit Note are secured by, a perfected security interest in the
Borrower Collateral.
B. PRIMT hereby grants to Bank, and confirms that the Term Note and the
Line of Credit Note are secured by, a perfected security interest in the PRIMT
Collateral.
C. MRM Financial hereby grants to Bank, and confirms that the Term Note and
the Line of Credit Note are secured by, a perfected security interest in the MRM
Financial Collateral.
3. Conditions Precedent.
Borrower, PRIMT, MRM Financial and Emergent understand and agree that this
Agreement shall not be effective, and Bank shall have no obligation to forbear
or to amend the terms of the Loan Documents as provided herein, unless and until
each of the following conditions precedent has been satisfied not later than the
respective date set forth below, or waived by Bank (in Bank's sole discretion),
for whose sole benefit such conditions exist, with Bank's determination as to
whether they have been timely satisfied being conclusive absent manifest error:
A. On or before March 7, 2005, Borrower, PRIMT, MRM Financial and Emergent
shall have executed and delivered to Bank this Agreement originally signed by
them.
B. On or before such time as Bank may require, Borrower, PRIMT, MRM
Financial and Emergent shall have taken any and all actions, and executed and
delivered to Bank any and all documents, required by this Agreement to be taken
or executed and delivered, as the case may be, or necessary or appropriate in
Bank's sole discretion to effectuate this Agreement.
C. On or before March 7, 2005, Borrower shall have paid to Bank the
following:
(1) an extension fee in the amount of $1,000.00;
(2) an amount equal to the Bank's attorneys' fees incurred in the
negotiation and preparation of this Agreement in the sum of $4,462.80;
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(3) the sum of $4,053.47, representing the Line of Credit Note Accrued
Interest; and
(4) reimbursement to the Bank of any other fees or expenses incurred by the
Bank in connection with the negotiation and preparation of this Agreement.
4. Representations and Warranties.
To induce Bank to enter into this Agreement, Borrower, PRIMT, MRM Financial
and Emergent hereby represent and warrant to Bank as follows:
A. Representations and Warranties True and Correct; Survival.
All representations and warranties contained in this Agreement and in any
and all of the other Loan Documents are true and correct as of the date of this
Agreement, except that, to the extent that a representation or warranty in this
Agreement conflicts with a representation or warranty in another Loan Document,
the representation or warranty in this Agreement is true and correct; and all
such representations and warranties shall survive the execution of this
Agreement.
B. No Breach.
With the exception of the Designated Defaults, no event has occurred or
failed to occur that is or, with notice or lapse of time or both would
constitute, a default, an event of default, or a breach or failure of any
condition under any Loan Document.
C. Unconditional Obligation; No Defenses.
Each of the Term Note and the Line of Credit Note represents an
unconditional, absolute, valid and enforceable obligation against Borrower.
Neither Borrower, PRIMT, MRM Financial, Emergent, nor any of them, has any
claims or defenses against Bank or any other person or entity which would or
might affect (a) the enforceability of any provisions of the Loan Documents or
(b) the collectibility of sums advanced by Bank in connection with the Term Note
or the Line of Credit Note. Borrower acknowledges that the statements of
balances as reflected in Recital "A" are true and correct. Borrower understands
and acknowledges that the Bank is entering into this Agreement in reliance upon
and in partial consideration for this acknowledgment and representation, and
agrees that such reliance is reasonable and appropriate.
5. Cooperation of Borrower and Guarantors.
Borrower, PRIMT, MRM Financial and Emergent shall take any and all actions
of any kind or nature whatsoever, either directly or indirectly, that are
necessary to prevent Bank from suffering a loss with respect to the Term Note or
the Line of Credit Note, or being deprived of any of the Collateral or of any
rights or remedies of Bank with respect
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to any Loan Document in the event of a default by Borrower under this Agreement
or any other Loan Document.
6. Modification of Loan Documents.
To induce Bank to enter into this Agreement, Borrower agrees that the Loan
Documents are hereby restated, supplemented and modified as follows, which
modifications shall supersede and prevail over any conflicting provisions of the
Loan Documents:
A. The Term Note is modified as follows:
(1) Upon the effective date of the merger between PRIMT and Borrower,
described in Recital "5" of this Agreement, PRIMT shall become the "Borrower"
under the Loan Documents, including the Term Note.
(2) From and after February 1, 2005, the interest rate shall be the
Bank's Prime Rate plus 2.50 percentage points (P + 2.50%).
(3) The repayment provisions of the Term Note shall be changed from
those provided in the November 2004 Extension Agreement which provided, among
other things, that the final maturity date of the Term Note was July 1, 2006;
the Term shall now be repayable in monthly installments equal to the amount of
accrued interest, with all outstanding principal, interest and other sums due
under the Term Note due and payable no later than May 31, 2005 ("the Final
Maturity Date").
B. The Revolving Credit Note and the Loan Agreement are modified as
follows:
(1) Upon the effective date of the merger between PRIMT and Borrower,
PRIMT shall become the "Borrower" under the Loan Documents, including the
Revolving Credit Note and the Loan Agreement.
(2) The entire outstanding balance of the Revolving Credit Note will
be due and payable in full at the earliest of (x) the time that Borrower's new
lender ("New Lender") demands the termination of the Bank's security interest in
Borrower's accounts and inventory or (y) May 31, 2005. Notwithstanding the
foregoing, Borrower will make its best effort to partially pay off the
outstanding balance of the Revolving Credit Note from collection of accounts
receivables once Borrower has closed its transaction with the New Lender to
provide financing secured by the Borrower's accounts receivables and inventory.
(3) Borrower will continue to make monthly payments of all accrued
interest until the Final Maturity Date.
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(4) Notwithstanding any provisions contained in the Revolving Credit
Note and the Loan Agreement to the contrary, the revolving feature of the
Revolving Credit Note is eliminated. Borrower will no longer be permitted to
request advances and Bank will not be required to honor any such request for an
advance under the Revolving Credit Note. Borrower will not be permitted to
re-borrow funds once any portion of the Revolving Credit Note has been repaid.
7. Covenants and Agreements of Borrower and Guarantors.
Unless Bank otherwise consents in writing during the extended term as
provided herein, each of Borrower, PRIMT, MRM Financial and Emergent covenants
and agrees as follows:
A. Each will comply with all requirements of this Agreement and with all
requirements of all other Loan Documents to the extent not inconsistent with
this Agreement;
B. Except for Permitted Liens, as defined in the Loan Agreement, neither
Borrower, PRIMT, MRM Financial, Emergent, nor any of them, shall further
encumber any of its assets;
C. Neither Borrower, PRIMT, MRM Financial, Emergent, nor any of them, shall
increase the salary of any of its officers, nor pay any bonus to any officer or
shareholder, without the written approval of Bank. Notwithstanding the
foregoing, the Bank shall be deemed to have given its approval so long as the
aggregate amount of any such increase or bonus to be given or paid to an officer
and/or shareholder does not exceed 15% of the previous compensation payable to
such officer and/or shareholder;
D. Neither Borrower, PRIMT, MRM Financial, Emergent, nor any of them, shall
make any distributions, payments or other transfers (other than budgeted
salaries), whether in cash or in kind, whether from capital, income or otherwise
to the shareholders, officers and directors of Borrower, PRIMT, MRM Financial,
Emergent, or any of them;
E. Neither Borrower, PRIMT, MRM Financial, Emergent, nor any of them, shall
draw or present checks or other items which will, if paid, overdraw any of their
deposit accounts with Bank, and each of them acknowledges and agrees that if
checks or other items are presented to Bank which, if paid, would have the
effect of overdrawing any of their deposit accounts, then Bank shall be under no
obligation to contact the entity so affected, and Bank shall have the right to
return such checks or other items;
F. Except for the contemplated merger between Borrower and PRIMT, with
PRIMT as the surviving entity, Borrower, PRIMT, MRM Financial, Emergent, and
each of them, will at all times maintain their separate legal existence and
further will maintain
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separate books and accounting records all of which will be maintained in
accordance with generally accepted accounting principles consistently applied;
G. Unless Bank has already been paid off in full on both the Term Note and
the Revolving Credit Note, on or before the date that the merger of Borrower and
PRIMT, described in Recital "5" of this Agreement takes effect PRIMT will sign
and deliver to Bank a Commercial Security Agreement, in form satisfactory to
Bank, granting to Bank a security interest in the PRIMT Collateral and in all of
PRIMT's right, title and interest in and to all property which, prior to such
date, is Borrower's Collateral, in order to secure PRIMT's "Indebtedness" (as
defined in the Borrower Security Agreements) in PRIMT's capacity, upon the
effect of such merger, as the "Borrower" under the Loan Documents.
8. Covenants of Bank.
A. In consideration of all of the herein agreements, and so long as there
is no additional event of default, Bank agrees to the modification of the Loan
Documents as provided herein.
B. Bank agrees to waive the Designated Defaults through the Final Maturity
Date, May 31, 2005.
C. Upon final satisfaction of the entire outstanding balance of the
Revolving Credit Note, the Bank will release from its collateral all of
Borrower's accounts receivable and inventory and will cause amendments to its
various UCC-1 financing statements to reflect only the such release of
Borrower's accounts receivable and inventory.
9. Additional Events of Default.
In addition to the events of default set forth in the Loan Documents, the
occurrence of any of the following events of default other than a Designated
Default shall be an event of default and, at Bank's option may make all
obligations of Borrower, PRIMT, MRM Financial and Emergent (collectively,
individually, or in any combination) immediately due and payable, all without
demand, presentment or notice, all of which requirements Borrower, PRIMT, MRM
Financial and Emergent hereby waive:
A. Failure to Perform.
Failure to perform any of the obligations set forth in this Agreement or in
any other Loan Documents (as the same may be affected by this Agreement);
B. Representations and Warranties.
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Any representation or warranty of Borrower or PRIMT or MRM Financial or
Emergent herein or in any other Loan Document shall be false, misleading, or
incorrect;
C. Material Adverse Changes.
If there is any further impairment of the Borrower's or PRIMT's or MRM
Financial's or Emergent's ability to satisfy its obligations to Bank.
10. Remedies.
Upon the occurrence of an event of default and at all times thereafter,
Bank, without the necessity of obtaining court approval, shall be entitled to
exercise, in respect of all of the Collateral it may hold, all rights and
remedies of a secured creditor available to it under applicable laws. Bank shall
also be entitled to exercise all rights and remedies available to Bank as a
creditor generally, including, without limitation, all remedies available to
Bank under the Loan Documents, as well as rights and remedies available to Bank
at law or in equity. All such rights and remedies shall be cumulative. No
failure or delay on the part of Bank in exercising any power, right, or remedy
under any of the Loan Documents shall operate as a waiver thereof, and no single
or partial exercise of any such power, right, or remedy shall preclude any
further exercise thereof or the exercise of any other power, right, or remedy.
11. Confirmation of Guaranty; Unconditional Obligations; Waiver.
Each of PRIMT and MRM Financial reaffirms its obligations under,
respectively, the PRIMT Guaranty and the MRM Financial Guaranty, and reaffirms
and restates each and every term, condition, and provision thereof. In addition,
each of PRIMT and MRM Financial and Emergent hereby agrees that its obligations
under its guaranty are and shall be unconditional, irrespective of (i) the
absence of any attempt to collect the Loan from Borrower or any other guarantor
or other action to enforce the same, (ii) the waiver or consent by Bank with
respect to any provision of any instrument evidencing the Loan, or any part
thereof, or any other agreement now or hereafter executed by Borrower and
delivered to Bank, (iii) Bank's election, in any proceeding instituted under
Chapter 11 of title 11 of the United States Code (11 U.S.C. ss.101 et seq.) (the
"Bankruptcy Code"), of the application of Section 111 l(b)(2) of the Bankruptcy
Code, (iv) any borrowing or grant of a security interest by Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, or (v) the
disallowance under Section 502 of the Bankruptcy Code of all or any portion of
Bank's claim(s) for repayment of the Loan. Each of PRIMT and MRM Financial and
Emergent further reaffirms that its obligations under its guaranty are and shall
be primary and are and shall be separate and distinct from Borrower's
obligations, and each further represents and warrants that it has no defenses or
claims against Bank that would or might affect the enforceability of its
guaranty and that its guaranty remains in full force and effect, and each
irrevocably and permanently (even if it pays said obligations in full) waives
any and all rights of subrogation, reimbursement,
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indemnity, contribution or any other claim arising from the existence or
performance of the guaranty which it may now or hereafter have against Borrower
or any other entity (or their respective properties) directly or contingently
liable for said obligations.
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12. Release.
Borrower, PRIMT, MRM Financial and Emergent, and each of them, hereby, for
themselves, their successors, heirs, executors, administrators and assigns,
release, acquit and forever discharge Bank, its directors, officers, employees,
agents, affiliates, successors, administrators and assigns ("Released Parties")
of and from any and all claims, actions, causes of action, demands, rights,
damages, costs, loss of service, expenses, and compensation whatsoever which
Borrower, PRIMT, MRM Financial and Emergent, or any of them, might have because
of anything done, omitted to be done, or allowed to be done by any of Released
Parties and in any way connected with the Loan, this Agreement or the other Loan
Documents, as of the date of execution of this Agreement, WHETHER KNOWN OR
UNKNOWN, FORESEEN OR UNFORESEEN, including, without limitation, any settlement
negotiations and also including, without limitation, any damages and the
consequences thereof resulting or to result from the events described, referred
to, or implied hereinabove ("Released Matters"). Borrower, PRIMT, MRM Financial
and Emergent, and each of them, further agree never to commence, aid, or
participate in (except to the extent required by order or legal process issued
by a court or governmental agency of competent jurisdiction) any legal action or
other proceeding based in whole or in part upon the foregoing. In furtherance of
this general release, Borrower, PRIMT, MRM Financial and Emergent, and each of
them, acknowledge and waive the benefits of California Civil Code section 1542,
which provides:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Borrower, PRIMT, MRM Financial and Emergent, and each of them, agree that
this waiver and release is an essential and material term of this Agreement and
that the agreements in this paragraph are intended to be in full satisfaction of
any alleged injuries or damages in connection with the Released Matters.
Borrower, PRIMT, MRM Financial and Emergent, and each of them, also understand
that this release shall apply to all unknown or unanticipated results of the
transactions and occurrences described above, as well as those known and
anticipated. Borrower, PRIMT, MRM Financial and Emergent, and each of them, have
consulted with legal counsel prior to signing this release, or had an
opportunity to obtain such counsel and knowingly chose not to do so, and execute
such release voluntarily with the intention of fully and finally extinguishing
all Released Matters.
13. Miscellaneous.
A. Agreement to Cooperate.
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All the parties hereto agree to and will cooperate fully with each other in
the performance of this Agreement and the Loan Documents, including, without
limitation, executing any additional documents reasonably necessary to the full
performance of this Agreement.
B. Benefit of Agreement.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto, their respective successors and assigns. No
other person or entity shall be entitled to claim any right or benefit
hereunder, including, without limitation, the status of a third party
beneficiary hereunder.
C. Effect of Agreement.
Bank, Borrower, PRIMT, MRM Financial and Emergent agree that, except as
expressly provided herein, the Loan Documents shall remain in full force and
effect in accordance with their respective terms, and this Agreement shall not
be construed to:
(1) Impair the validity, perfection, or priority of any lien or
security interest securing Borrower's, PRIMT's, MRM Financial's or Emergent's
obligations to Bank;
(2) Waive or impair any rights, powers, or remedies of Bank under the
Loan Documents;
(3) Constitute an agreement by Bank or require Bank to grant
forbearance periods or extend the term of the Term Note or the Line of Credit
Note or the time for payment of any of Borrower's, PRIMT's, MRM Financial's or
Emergent's obligations to Bank except as expressly provided herein, none of
which Bank agrees or has agreed to do, and all of which matters are in Bank's
sole and absolute discretion.
In the event of any inconsistency between the terms of this Agreement and
any other Loan Document, this Agreement shall govern. This Agreement shall be
construed without regard to any presumption or rule requiring that it be
construed against the party causing this Agreement or any part hereof to be
drafted. The headings used in this Agreement are for convenience only and shall
be disregarded in interpreting the substantive provisions of this Agreement.
D. Integration.
This Agreement and the other Loan Documents are intended by the parties as
the final expression of their agreement and therefore incorporate all
negotiations of the parties hereto and are the entire agreement of the parties
hereto. Borrower, PRIMT, MRM Financial and Emergent, and each of them,
acknowledge that they are not relying on any written or oral agreement,
representation, warranty, or understanding of any kind
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made by Bank or by any employee or agent of Bank except for the agreements of
Bank set forth herein or in the other Loan Documents. Except as expressly set
forth in this Agreement, the other Loan Documents remain unchanged and in full
force and effect.
E. Severability.
In case any provision in this Agreement shall be invalid, illegal, or
unenforceable, such provision shall be severable from the remainder of this
Agreement and the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
F. Reversal of Payments.
If Bank receives any payments or proceeds of any Collateral which are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
or required to be paid to a trustee, debtor-in-possession, receiver, or any
other party under any bankruptcy law, common law, equitable cause, or otherwise,
then, to such extent, the obligations or part thereof intended to be satisfied
by such payments or proceeds shall be reserved and continue as if such payments
or proceeds had not been received by Bank.
G. Modification.
This Agreement may not be amended, waived, or modified in any manner
without the prior written consent of the party against whom the amendment,
waiver or modification is sought to be enforced.
H. Attorneys' Fees.
Borrower shall reimburse Bank promptly upon demand for all costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, expended or incurred by Bank in any arbitration, judicial reference,
legal action, or otherwise in connection with (i) the amendment and enforcement
of this Agreement and the other Loan Documents, including, without limitation,
during any workout, attempted workout, and/or in connection with the rendering
of legal advice as to Bank's rights, remedies, and obligations under this
Agreement and the other Loan Documents, whether or not any form of legal
proceeding is recommended, (ii) collecting any sum which becomes due Bank under
this Agreement or any of the other Loan Documents, (iii) any proceeding for
declaratory relief, any counterclaim to any proceeding, or any appeal, (iv) the
protection, preservation, or enforcement of any rights or remedies of Bank or
any of the Collateral, whether or not any form of legal proceedings is
commenced, or (v) any action necessary to defend, protect, assert, or preserve
any of Bank's rights or remedies as a result of or related to any case or
proceeding under title 11 of the United States Code, as amended, or any similar
law of any jurisdiction. All of such costs and expenses shall bear interest from
the time of demand at the rate then in effect under the Note.
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I. Applicable Law.
Except as otherwise provided herein, this Agreement and all other Loan
Documents and the rights and obligations of the parties hereto shall be governed
by the laws of the State of California, exclusive of the choice of law
provisions thereof.
J. Counterparts.
This Agreement may be executed in any number of counterparts which, when
taken together, shall constitute but one agreement.
K. Survival.
All representations, warranties, covenants, agreements, waivers, and
releases of Borrower, PRIMT, MRM Financial and Emergent, and each of them,
contained herein shall survive the payment in full of Borrower's, PRIMT's, MRM
Financial's or Emergent's obligations to Bank.
L. Notices.
Any notices required or contemplated under this Agreement or any other Loan
Document shall be in writing and shall be personally delivered; or sent by
United States mail, postage prepaid; or sent by facsimile transmission, and
shall be addressed as follows:
"Borrower"
Physiologic Reps 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx, 00000 Attn: Xxxxxxx XxXxx, CFO Fax No.:
(000)000-0000
"PRIMT"
PRI Medical Technologies, Inc. 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx, 00000 Attn: Xxxxxxx XxXxx, CFO Fax No.: (000)000-0000
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"MRM Financial"
Medical Resources Management Financial, Inc. 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxx, 00000 Attn: Xxxxxxx XxXxx, CFO Fax No.: (000)000-0000
"Emergent"
Emergent Group, Inc. 000 Xxxxxxxx Xx. #000X Xxx Xxxxxxxx, Xxx Xxxx
00000 Attn: Xxxxx X. Xxxxx, CEO Fax No.: (000) 000-0000
"Bank"
U.S. Bank National Association
Attn: Xxxxx Xxxxxxxxxx, Vice President
Special Assets Group, P-5
000 X.X. Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Fax No.: (000)000-0000
Notice shall be deemed complete three days after the mailing of notice by
U.S. Mail, or upon the date of personal delivery, or upon the date of successful
completion of facsimile transmission. Any party may change the address to which
notices, requests and other communications are to be sent by giving written
notice of such change to each other party, which shall be effective upon receipt
of such written notice.
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IN WITNESS WHEREOF, Bank, Borrower, PRIMT, MRM Financial and Emergent have
executed this Agreement as of the date and year first set forth above.
Physiologic Reps, a California corporation
By: __________________________
Xxxxx X. Xxxxx Its: Chief Executive Officer
PRI Medical Technologies, Inc., formerly known as Medical Resources Management,
Inc., a Nevada corporation
By: __________________________
Xxxxx X. Xxxxx Its: Chief Executive Officer
Medical Resources Management Financial, Inc., a California corporation
By: __________________________
Xxxxx X. Xxxxx Its: Chief Executive Officer
Emergent Group, Inc., a Nevada corporation
By: __________________________
Xxxxx X. Xxxxx Its: Chief Executive Officer
U.S. Bank National Association
By: ___________________________________________________
Xxxxx Xxxxxxxxxx Its: Vice President
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