Exhibit 10.2
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (this "Modification Agreement") is made
and entered into as of the 4th day of March, 2002 (the "Effective Date") by and
among HEARTGEN CENTERS, INC. (the "Company") RLA 1993 TRUST ("RLA"), XXXXXXX
XXXXXXXX ("Xxxxxxxx") and VASOMEDICAL, INC., a Delaware corporation ("Vaso").
Recitals
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1. The Company, RLA, and Xxxxxxxx are parties to a certain Credit Agreement
dated as of January 11, 2002, as amended by the First Amendment to Credit
Agreement dated February 22, 2002 (the "Agreement").
2. This Modification Agreement is being executed to evidence the assignment
and transfer by RLA to Vaso of a portion of RLA's commitment to make Center
Financing Advances and its corresponding rights, title and interest in and to
the Agreement, and Vaso's assumption of such commitment, and to effect certain
amendments of the terms of the Agreement, the Loan Documents and other
agreements between RLA and the Company.
Agreement
---------
NOW THEREFORE, the Company, RLA, Xxxxxxxx, and Vaso agree as follows:
1. DEFINITIONS. Terms used in this Modification Agreement with their
initial letters capitalized and which are not defined herein shall have the
meanings ascribed to them in the Agreement, as amended by this Modification
Agreement.
2. ASSIGNMENT AND TRANSFER BY RLA.
a. Effective as of Xxxxx 0, 0000, XXX rescinds the notice given prior to
that date, of RLA's termination of its commitment to make the Center Financing
Advances in the principal sum of $500,000.00 that are to be made by Lender
pursuant to Section 2.02(c) of the Agreement during the second calendar quarter
of 2002, and hereby reaffirms said commitment, and agrees that on the Effective
Date and at the time of execution of this Agreement (but before giving effect to
Section 2.b. below) such commitment is binding upon RLA as though no notice of
termination had been given.
b. Effective as of the Effective Date, RLA irrevocably transfers and
assigns to Vaso, without recourse to RLA, all of RLA's rights, interests and
obligations under the Agreement in respect of the Center Financing Advances in
the principal sum of $500,000.00 that are to be made by Lender pursuant to
Section 2.02(c) of the Agreement during the second calendar quarter of 2002 (the
"Assigned Interest"), and Vaso irrevocably accepts and assumes the Assigned
Interest from RLA, without recourse to RLA, and agrees to perform the
obligations of RLA in respect of such Center Financing Advances. RLA represents
and warrants to Vaso that RLA is the legal and beneficial owner of the Assigned
Interest and that such interest is free and clear of any lien or adverse claim.
RLA makes no representation or warranty and assumes no responsibility with
respect to the enforceability, sufficiency or value of the Agreement, any
Collateral thereunder or any of the Loan Documents furnished pursuant thereto,
or the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Agreement or any of the Loan
Documents.
c. From and after the Effective Date, (i) Vaso shall be a party to the
Agreement as amended by this Modification Agreement and shall have the rights
and obligations of a Lender thereunder in respect of the Assigned Interest, and
(ii) RLA shall relinquish its rights and be released from its obligations under
the Agreement in respect of and only to the extent of the Assigned Interest.
3. AMENDMENT OF AGREEMENT. Effective as of the Effective Date, the
Agreement is amended as follows:
a. The following new definitions are added to Section 1.02 of the Agreement
"Unsecured Center Financing Advances" has the meaning ascribed to that term
in Section 2.02(c) of this Agreement.
"Unsecured Obligations" means the Unsecured Center Financing Advances and
all renewals and extensions thereof, all interest accruing on the Unsecured
Center Financing Advances, and all costs, expenses and reasonable
attorneys' fees incurred by Lender in the enforcement or collection
thereof.
"Vaso" means Vasomedical, Inc., a Delaware corporation.
b. The definition of the term "Majority Lender" in Section 1.02 of the
Agreement is hereby amended and restated to read as follows: "Majority Lender"
means the Initial Lender.
c. The definition of the term "Revolving Loan Borrowing Base" in Section
1.02 of the Agreement is hereby amended and restated to read as follows:
"Revolving Loan Borrowing Base" means, at any date a determination thereof
is made, an amount equal to: (a) from the Initial Funding Date to and
including September 30, 2002, eighty percent (80%) of the Eligible Accounts
as determined by the most recent Borrowing Base Certificate delivered to
the Lender, minus the aggregate unpaid balance of principal and interest of
the Center Financing Advances (excluding the Unsecured Center Financing
Advances and all accrued unpaid interest thereon); and (b) from and after
October 1, 2002, seventy percent (70%) of the Eligible Accounts as
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determined by the most recent Borrowing Base Certificate delivered to the
Lender, minus the aggregate unpaid balance of principal and interest of the
Center Financing Advances (excluding the Unsecured Center Financing
Advances and all accrued unpaid interest thereon).
d. Section 2.02(c) of the Agreement is amended and restated to read as
follows:
(c) Disbursement of Proceeds. Each Center Financing Advance to be made by
the Initial Lender shall be in the principal sum of not less than
$225,000.00 or more than $300,000.00. Such Center Financing Advances shall
be disbursed to the Company as follows: (i) the sum of $450,000.00 on the
Initial Funding Date; (ii) the sum of $250,000.00 during the third calendar
quarter of 2002; (iii) the sum of $250,000.00 during the fourth calendar
quarter of 2002; (iv) the sum of $250,000.00 during the first calendar
quarter of 2003; and (v) the sum of $250,000.00 during the second calendar
quarter of 2003; provided that, any of the Center Financing Advances
scheduled to be made after June 30, 2002, may be increased, at the request
of the Company, by up to $50,000.00, so long as the aggregate amount of all
such increases does not exceed $50,000.00, and so long as the aggregate
amount of all Center Financing Advances made by the Initial Lender and by
Vaso does not exceed $2,000,000.00. Each such Center Financing Advance
shall be disbursed by the Initial Lender not later than the third business
day following the date in the relevant calendar quarter on which the
Company delivers to Lender the first Financial Statements required under
Section 5.02(b)(2) to be delivered in such calendar quarter, together with
an Officer's Certificate setting forth the Company's EBITDA for the
preceding calendar quarter. The Initial Lender shall not be obligated to
make any Center Financing Advance after April 1, 2002, if at the time such
disbursement is scheduled to be made, the Revolving Loan Increase
Conditions or the Center Financing Conditions are not satisfied; and the
Initial Lender shall not be obligated to make any Center Financing Advance
on or after the Initial Funding Date, if after the making of such
disbursement, the outstanding principal balance of the Center Financing
Loan (exclusive of the Unsecured Center Financing Advances) would exceed
the Center Financing Borrowing Base. If at any date a Center Financing
Advance is scheduled to be made, the Initial Lender is not obligated to
make a Center Financing Advance due to a failure by the Company to satisfy
any of the conditions stated in the preceding sentence, the Company, at its
option, may elect to take and if so elected the Initial Lender shall make
such Center Financing Advance on the first day of the next or any
subsequent calendar month; provided that (i) the aggregate amount of all
Center Financing Advances made as of the end of any calendar month shall
not exceed the aggregate sum permitted to have been disbursed by the Lender
at such time pursuant to this Section 2.02(c); (ii) as of such date, the
Company has satisfied the applicable conditions stated in the preceding
sentence, and (iii) the Initial Lender shall not be obligated to make any
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Center Financing Advance after June 30, 2003. Notwithstanding the
foregoing, if EBITDA of the Company for any fiscal quarter ending after
June 30, 2002, is less than zero, the Initial Lender shall have no
obligation to make any Center Financing Advance scheduled to be disbursed
thereafter.
Vaso shall make Center Financing Advances to the Company in the sum of
$500,000.00 (the "Unsecured Center Financing Advances"), in two equal
disbursements of $250,000.00 on or about March 5, 2002, and March 15, 2002.
The Company, upon written notice to the Initial Lender given not fewer
than sixty (60) days prior to the date such disbursement is to be made, may
elect not to draw down one or both of the final two (2) disbursements of
the Center Financing Loan scheduled for calendar year 2003.
e. Section 2.02(d) is amended and restated to read as follows:
(d) Interest on the Center Financing Loan. The unpaid principal balance of
each Center Financing Advance and the Center Financing Note which evidences
such Center Financing Advance outstanding from time to time shall bear
interest at the rate of eighteen percent (18%) per annum. Interest accruing
on each Center Financing Advance shall not be compounded, but shall be paid
in accordance with Section 2.02(e) of this Agreement.
f. Section 4.01 of the Agreement is amended and restated to read as
follows:
Section 4.01. Collateral for the Obligations. Until paid in full, the
Obligations, other than the Unsecured Obligations, shall be secured by a
valid and enforceable first priority security interest and Lien in and to
all Accounts of the Company now owned and existing or hereafter acquired or
arising, and all proceeds thereof, excluding, all Excluded Accounts, and in
all deposit accounts (as defined in the UCC) of the Company (collectively,
the "Collateral"), subject only to Liens and security interests described
in the exceptions enumerated in subsections 5.02(a)(1) through (6) of this
Agreement. The security interest in the Collateral shall be granted to the
Lender under the Security Agreement.
g. Section 6.03 of the Agreement is amended and restated to read as
follows:
Section 6.03. Condition Subsequent. The Lender shall have no obligation to
make any Advance, or to make any Center Financing Advance that is scheduled
to be made after the Initial Funding Date, unless and until the Company has
fully performed its obligations under and is in compliance with Sections 6
and 7 of the Security Agreement.
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h. Section 7.02 of the Agreement is amended and restated in its entirety to
read as follows:
Section 7.02. Effect of Event of Default. If any Event of Default described
in Section 7.01(b) of this Agreement shall occur, maturity of each of the
Loans shall immediately be accelerated and each of the Notes and the Loans
evidenced thereby, and all other indebtedness and any other payment
Obligations of the Company to the Lender shall become immediately due and
payable, and the obligation of the Lender to make any Advance or Center
Financing Advance shall immediately terminate, all without notice of any
kind. If any Event of Default described in Section 7.01(a) shall occur in
respect of the Unsecured Center Financing Advances, Vaso may accelerate
payment of the Unsecured Center Financing Advances and declare the Notes
evidencing the Unsecured Center Financing Advances and all other Unsecured
Obligations for payment due and payable, whereupon the maturity of such
Unsecured Center Financing Advances shall be accelerated and each of said
Notes and the Unsecured Center Financing Advances evidenced thereby, and
all other Unsecured Obligations for payment shall become immediately due
and payable and the obligation of Vaso to make any Unsecured Center
Financing Advances shall immediately terminate, all without notice of any
kind. When any Event of Default has occurred and is continuing, the
Majority Lender may accelerate payment of the Loans and declare the Notes
and all other payment Obligations due and payable, whereupon maturity of
each of the Loans shall be accelerated and each of the Notes and the Loans
evidenced thereby, and all other payment Obligations shall become
immediately due and payable and the obligation of the Lender to make any
Advance or Center Financing Advance shall immediately terminate, all
without notice of any kind. The Lender or such other holder shall promptly
advise the Company of any such declaration, but failure to do so shall not
impair the effect of such declaration. Each Lender shall be entitled to
enforce only the Notes and other Obligations that are owed to such Lender.
Notwithstanding the provisions of Article II, the Initial Lender (which is
also the Secured Party under the Security Agreement) shall be entitled to
apply all collections of Collateral so as to satisfy first all Obligations
hereunder other than Unsecured Obligations before any such collections are
used to satisfy any Unsecured Obligations. The remedies of the Lender
specified in this Agreement or in any other Loan Document shall not be
exclusive, and the Lender may avail itself of any other remedies provided
by law as well as any equitable remedies available to the Lender.
i. The second sentence of Section 8.01 of the Agreement is amended and
restated to read as follows:
No amendment, modification or waiver of, or consent with respect to any of
the provisions of this Agreement or the other Loan Documents or otherwise
of the Obligations shall be effective unless such amendment, modification,
waiver or consent is in writing and signed by the Majority Lender; except
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that Vaso may waive any Event of Default described in Section 7.01(a) of
this Agreement in respect of the Unsecured Center Financing Advances, and
such waiver shall be effective if it is in writing and signed by Vaso, and
shall be binding upon the Majority Lender regardless of whether the
Majority Lender has consented thereto or signed such waiver.
j. Section 8.02 of the Agreement is amended and restated to read as
follows:
Section 8.02. Notices. Any notice given under or with respect to this
Agreement to the Company or the Lender shall be in writing and, if
delivered by hand or sent by overnight courier service, shall be deemed to
have been given when delivered, and if mailed, shall be deemed to have been
given five (5) days after the date when sent by registered or certified
mail, postage prepaid, and addressed to the Company or the Lender at its
address shown below, and if given by telecopy, when sent by telecopy to the
number shown below, or at such other address or number as any such party
may, by written notice to the other party to this Agreement, have
designated as its address for such purpose. The addresses referred to are
as follows:
The Company: HeartGen Centers, Inc.
00000 Xxxxx Xxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to: XXXXX & XXXXXXX
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
The Initial Lender
and Xxxxxxxx: Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxx
c/o Kingsport Capital Partners
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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And with a copy to: XXXX, XXXXXX & XXXXXXXXX
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000
To Vaso: Vasomedical, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxx, CFO
Facsimile:_(000) 000-0000
k. Schedule 2.03 to the Agreement is deleted and replaced with Schedule
2.03 attached to this Modification Agreement.
4. MODIFICATION OF OTHER LOAN DOCUMENTS.
a. It is the intent of the parties that the Unsecured Center Financing
Advances to be made by Vaso pursuant to the Agreement, as amended by this
Modification Agreement, and the other Unsecured Obligations, shall not be
secured by the security interests granted to RLA under the Security Agreement.
Therefore, (i) clause (1) of the definition of the term "Indebtedness" in the
Security Agreement is amended to read as follows: "all Obligations of Debtor
under the Credit Agreement or any of the Loan Documents, excluding the Unsecured
Obligations; and"; and (ii) notwithstanding the provisions of section 13 of the
Security Agreement, the Secured Party shall not hold the security interests
granted thereunder as agent for or on behalf of Vaso.
b. The second sentence of Section 7 of the Security Agreement is amended by
replacing the phrase "sixty (60) days following the Initial Funding Date" with
the phrase "ninety (90) days following the Initial Funding Date."
c. The execution and delivery by the Company and First Union National Bank
of control agreements covering the Deposit Accounts held by that bank in form
and substance as Exhibit "C" attached hereto shall constitute compliance by the
Company with Section 7 of the Security Agreement insofar as it pertains to the
Deposit Accounts held by First Union National Bank, and the notice in the form
attached thereto to as Exhibit A shall constitute a "Notice of Exclusive
Control" as such term is used in the Security Agreement.
d. Schedule I to the Security Agreement is deleted and replaced with
Schedule I attached to this Modification Agreement. RLA hereby waives any Event
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of Default or Unmatured Event of Default that may have occurred by reason the
failure to list on Schedule I to the Security Agreement, as of the Closing Date,
the Deposit Accounts held by First Union National Bank.
e. All references to the Agreement in the other Loan Documents shall mean
the Agreement, as modified and amended by this Modification Agreement and as it
may be further amended, modified, extended, renewed, supplemented and/or
restated from time to time and at any time. The other Loan Documents are hereby
modified and amended to the extent necessary to conform them to, or to cause
them to accurately reflect, the terms of the Agreement, as modified by this
Modification Agreement.
5. WARRANTS AND SUBORDINATED SECURITY INTERESTS.
a. The Company previously has issued to RLA a warrant to purchase 289,429
shares of the common stock of the Company (the "RLA Warrant"). To correct a
scrivener's error in the RLA Warrant, effective as of January 11, 2002, the RLA
Warrant is amended by changing phrase "RSA 1993 Trust" to "RLA 1993 Trust" each
time it appears therein.
b. In connection with the RLA Warrant, the Company has executed and
delivered to RLA a Subordinated Security Agreement dated as of January 11, 2002
(the "RLA Security Agreement") to secure certain of the Company's obligations
thereunder. Effective as of the Effective Date, the RLA Security Agreement is
amended as follows:
i. The second sentence of the third paragraph is amended to read as
follows: "As used herein, the term 'Obligations' shall mean the
Debtor's obligations to repurchase the Warrant pursuant to the term of
Section 8 thereof; provided that the Obligations secured hereby shall
not in any event exceed the sum of $1,375,000.00."
ii. Section 7 is amended and restated in its entirety to read as follows:
Section 7. Control Agreements. Pursuant to the Primary Security
Agreement, Debtor and the Initial Lender have entered and will enter
into certain control agreements with the financial institutions
holding the Deposit Accounts in order to perfect the security
interests in the Deposit Accounts created under the Primary Security
Agreement. Upon satisfaction and payment in full of the obligations
and indebtedness secured by the Primary Security Agreement, and
provided that the Obligations under this Security Agreement remain
outstanding, Debtor, Secured Party (or a collateral agent acting for
the benefit of Secured Party and all other secured parties holding
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security interests that are of equal rank and priority with the
security interest granted hereunder; herein, a "Collateral Agent") and
the appropriate financial institution(s) shall enter into control
agreements (a) substantially in the form of Exhibit A attached to the
Primary Security Agreement with respect to each Deposit Account that
is intended to receive deposits of payments of Restricted Accounts;
and (b) substantially in the same forms as those entered into pursuant
to the Primary Security Agreement, with respect to each Deposit
Account that is intended to receive deposits of payments of Accounts
other than Restricted Accounts. Secured Party agrees that Secured
Party will not give (and will not direct any Collateral Agent to give)
Account Directions (as defined in such control agreements) except
after giving a Notice of Exclusive Control pursuant to Section 10 of
this Security Agreement. Secured Party agrees that if at the time the
Obligations are fully paid and satisfied, the Collateral Agent is
acting only as agent for Secured Party, Secured Party will direct the
Collateral Agent to terminate the control agreements.
iii. The second sentence of Section 10 is amended to read as follows: "In
addition, upon the occurrence of any Event of Default and at any time
thereafter (such Event of Default having not previously been cured),
Secured Party shall have all the remedies of a secured party under the
UCC and as otherwise provided by applicable law, and shall have the
right to give (or to direct its Collateral Agent to give ) to the
Account Holder (as defined in Exhibits A and B attached to the Primary
Security Agreement) a Notice of Exclusive Control (as such term is
used in the Primary Security Agreement).
iv. Schedule I to the RLA Security Agreement is deleted and replaced with
Schedule I attached to this Modification Agreement.
c. On the Effective Date, the Company shall issue to Vaso a warrant to
purchase 52,620 shares of the common stock of the Company in form and substance
as Exhibit "A" to this Modification Agreement, and shall execute and deliver to
Vaso a Subordinated Security Agreement in form and substance as Exhibit "B" (the
"Vaso Security Agreement").
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d. RLA and Vaso hereby agree that notwithstanding the order of creation,
attachment or perfection of the security interests granted to each of them,
respectively, under the RLA Security Agreement and the Vaso Security Agreement,
the method of perfection thereof, or the time or order of filing of financing
statements with respect thereto, such security interests shall be pari passu and
of equal rank and priority.
6. PRIOR AGREEMENTS. The Agreement, as amended by this Modification
Agreement, supersedes all previous agreements and commitments made or issued by
the Lender with respect to the Loans and all other subjects of the Agreement, as
amended by this Modification Agreement, including, without limitation, any oral
or written proposals or commitments which may have been made or issued by the
Lender.
7. BINDING ON SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Modification Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective successors, assigns and legal representatives.
Whenever in this Modification Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party.
8. REAFFIRMATION. Except as expressly amended by or pursuant to this
Modification Agreement, all of the terms and conditions of the Agreement, each
of the other Loan Documents, the RLA Warrant, and the RLA Security Agreement and
remain unmodified and in full force and effect.
9. CAPTIONS/COUNTERPARTS. Section captions used in this Modification
Agreement are for convenience only and shall not affect the construction of this
Modification Agreement. This Modification Agreement may be executed by original
or facsimile signatures (which shall be binding and enforceable the same as if
original), in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
agreement. No party shall be bound by this Modification Agreement until all
parties have so signed.
10. GOVERNING LAW. This Modification Agreement is made under and will be
governed in all cases by the substantive laws of the State of Indiana,
notwithstanding the fact that Indiana conflicts of laws, rules or principles
might otherwise require the substantive rules of law of another jurisdiction to
apply.
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IN WITNESS WHEREOF, RLA, Vaso, and the Company, each by its duly authorized
officer, and Xxxxxxxx have executed and delivered this Agreement as of the 4th
day of March, 2002.
HEARTGEN CENTERS, INC.
By:__________________________________
Printed:_____________________________
Title:_______________________________
("Company")
RLA 1993 TRUST
By:__________________________________
Xxxxxxx Xxxxxxxx, Trustee
("RLA")
VASOMEDICAL, INC.
By:__________________________________
J. Xxxxxxx Xxxxxxx, President and CEO
("Vaso")
_____________________________________
Xxxxxxx Xxxxxxxx
Schedule I
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Deposit Accounts
Xxxxxxx Bank
0000 X. Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Acc. # 0000000000 checking
Acc. # 3052925068 money market
Acc. #6207024090
Union Federal Bank
XX Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Acc. # 590160168 deposit
Acc. # 590178997 xxxxx cash
Community Bank of Nevada
0000 X. Xxxxxxx
Xxx Xxxxx, XX 00000
Acc. # 0102024464 deposit
Acc. # 0102024456 xxxxx cash
First Union National Bank
---------------------
Atlanta, Georgia ________
Acc. #2000010495852 deposit
Acc. #2000010495865 xxxxx cash
First Union National Bank
---------------------
Tampa, Florida ________
Acc. #2000011016023 deposit
Acc. #2000011016036 xxxxx cash
Xxxxxx Bank Elk Grove NA
000 X. Xxxxx Xxxxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Acc. # 0600136530 deposit
Acc. # 0600136522 xxxxx cash
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Schedule 2.03
Lender's Account Designations
Payments to the Initial Lender:
LaSalle Bank, N.A.
Chicago, Illinois
ABA #071 000 505
Credit: Xxxxxxx and Xxxxxx Xxxxxxxx
Account # 530072028
Payments to Vaso:
Fleet Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
ABA #000000000
Credit: Vasomedical, Inc.
Account #00000000
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