FIFTH ADDENDUM TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.86
FIFTH ADDENDUM
TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIFTH ADDENDUM to Second Amended and Restated Credit Agreement (“Fifth Addendum”) is made as of the 2nd day of February, 2005 by Xxxxx Fargo Bank, National Association, successor-in-interest to Xxxxx Fargo Bank Iowa, National Association (the “Bank”) and Patient Infosystems, Inc. (the “Borrower”).
Recitals:
|
A. |
The Bank and the Borrower entered into a Second Amended and Restated Credit Agreement, with an Effective Date of March 28, 2002 (“Credit Agreement”), as amended by a (i) First Addendum to Second Amended and Restated Credit Agreement entered into by the Bank and the Borrower on June 28, 2002, (ii) Second Addendum to Second Amended and Restated Credit Agreement entered into by the Bank and Borrower on Xxxxx 00, 0000, (xxx) Third Addendum to Second Amended and Restated Credit Agreement entered into by the Bank and Borrower on December 31, 2003, and (iv) Fourth Addendum to Second Amended and Restated Credit Agreement entered into by the Bank and Borrower on September 21, 2004, pursuant to which the Bank made available to the Borrower a $7,000,000 revolving line of credit. Borrowings under the Line are currently evidenced by a $7,000,000 promissory note, dated September 21, 2004 (“Existing Revolving Note”). |
|
B. |
As of January 31, 2005 there is owed on the Existing Revolving Note the principal amount of $7,000,000.00 and accrued, unpaid interest in the amount of $54,680.55. |
|
C. |
The Borrower has requested that the Bank decrease the Line to Six Million Dollars ($6,000,000.00). |
|
D. |
The Bank and the Borrower wish to amend the Credit Agreement pursuant to the terms of this Fifth Addendum. |
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein it is agreed:
|
1. |
All terms not otherwise defined in this Fifth Addendum shall have the meaning given to such term in the Credit Agreement. The recital paragraphs are hereby incorporated as though fully set forth in this Fifth Addendum. |
|
2. |
Notwithstanding the execution of the Credit Agreement or any addendum thereto, or the delivery of all documents in furtherance thereof, the obligation of the Bank to make any advance on the Line and this Fifth Addendum becoming effective shall be subject to the timely satisfaction of the following conditions precedent: |
1
Exhibit 10.86
|
a) |
No event of default or event which will mature into an event of default, shall have occurred and be continuing. |
|
b) |
The representations and warranties of the Borrower contained in the Documents shall be true and correct as of the date of any advance on the Line. |
|
c) |
The Borrower shall have delivered to the Bank copies, duly certified as of the date of this Fifth Addendum by the Borrower’s secretary of (i) the resolutions of Borrower’s board of directors authorizing the execution and delivery of this Fifth Addendum and the Documents required by this Fifth Addendum, (ii) all documents evidencing other necessary Borrower action, and (iii) all approvals or consents required, if any, with respect to the Documents. |
|
d) |
The Borrower shall have delivered to the Bank a certificate of its secretary certifying the name(s) of the person(s) authorized to sign this Fifth Addendum and the Documents, and all other documents and certificates of the Borrower to be delivered hereunder, together with the true signatures of such person(s). |
|
e) |
The Borrower shall have delivered the Documents and the agreements listed below, each of which shall be in a form and content satisfactory to the Bank, executed by the parties specified therein, and all other documents, certificates, opinions and statements requested by the Bank: |
|
i) |
This Fifth Addendum. |
|
ii) |
The revolving note attached hereto as Exhibit "A" (“New Revolving Note”) which shall evidence the Borrower’s obligation to repay advances made under the Line (as defined below). Upon this Fifth Addendum becoming effective, the New Revolving Note will replace, but not be deemed to satisfy, the Existing Revolving Note. |
|
f) |
The Bank shall have received an amendment to the Standby L/C described below, in substantially the form of attached Exhibit “B”, which reduces the previously issued L/C from $500,000 to $250,000: |
|
i) |
Issued by Manufacturers and Traders Trust Company on account of Xxxxxx X. Xxxxxxxx in the amount of $250,000. |
|
g) |
The Bank shall have received from Xxxx Xxxxxxxxx the Consent to Fifth Addendum of Second Amended and Restated Credit Agreement, Ratification of Guaranty and Waiver of Claims attached hereto as Exhibit “C”. |
|
h) |
The Bank shall have received from Xxxxxx Xxxxxxx the Consent to Fifth Addendum of Second Amended and Restated Credit Agreement and Waiver of Claims attached hereto as Exhibit “D”. |
2
Exhibit 10.86
|
i) |
The Borrower shall have reimbursed the Bank for all expenses incurred by it in |
connection with this Fifth Addendum, including but not limited to, attorney’s fees.
|
3. |
Section 1.1 (Line Credit Amount) of the Credit Agreement is hereby deleted and the following new Section 1.1 is substituted in lieu thereof: |
|
1.1 |
Line Credit Amount. During the Line Availability Period defined |
below, the Bank agrees to provide a revolving line of credit (the “Line”) to the Borrower. Outstanding amounts under the Line will not, at any one time, exceed SIX MILLION DOLLARS AND 00/100 DOLLARS ($6,000,000.00).
|
4. |
The Borrower does hereby release and forever discharge the Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank Iowa, National Association, Xxxxx Fargo & Company, and their respective affiliates and their officers, directors, attorneys, agents, employees, successors and assigns from all causes of action, suits, claims and demands of every kind and character, liquidated or unliquidated, fixed, contingent, direct or indirect without limit, including any action in law or equity, which the Borrower now has or may ever have had against them, if the circumstances giving rise to such causes of action, suits, claims and demands arose prior to the date of this Fifth Addendum. |
|
5. |
Except as modified by this Fifth Addendum, all the terms and conditions of the Credit Agreement, as amended, shall remain in full force and effect. |
|
6. |
The Credit Agreement, as amended, embodies the entire agreement and understanding between the Borrower and the Bank with respect to the subject matter thereof and supersedes all prior agreements and understandings among such parties with respect to the subject matters thereof. |
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS (EXCEPT CONSUMER LOANS OR OTHER EXEMPT TRANSACTIONS) NOW IN EFFECT BETWEEN YOU AND THIS LENDER.
IN WITNESS WHEREOF, the parties have executed this Fifth Addendum as of the day and year first above written.
3
Exhibit 10.86
PATIENT INFOSYSTEMS, INC.
|
By /s/Xxxx X. Xxxxxx |
|
|
Its Sr. Vice President | |
XXXXX FARGO BANK, NATIONAL ASSOCIATION
|
By /s/ Xxxxxxx X. Xxxxxxxx |
| |
|
|
Xxxxxxx X. Xxxxxxxx, Vice President | |
4
