1
EXHIBIT 10.16
CREDIT AGREEMENT
THIS AGREEMENT, dated effective May 1, 1996, between JCW MEDICAL
ASSOCIATES, P.A., a Texas professional association (the "Borrower"), and
DOCTORS PRACTICE MANAGEMENT INC., a Texas corporation (the "Lender"), and the
parties agree as follows:
ARTICLE 1
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 1.1 Advances. From time to time during the term of this
Agreement, Lender may, in its sole discretion and subject to the terms and
conditions hereinafter set forth, make advances (the "Advances") to the
Borrower from time to time on any Business Day (as hereinafter defined) during
the period from the date hereof until April 30, 2011 (the "term of this
Agreement") in an aggregate amount not to exceed at any time outstanding Six
Hundred Seventy Five Thousand Dollars ($675,000).Each Advance shall be in an
amount not less than Ten Thousand Dollars ($ 10,000.) or an integral multiple
of $1,000 in excess thereof, Borrower may borrow, prepay pursuant to Section
1.4 and re-borrow under this Section 1.1, subject to Lender's right of absolute
discretion in making any Advance. Without in any way limiting Lender's
absolute discretion in making any Advance, in no event may the outstanding
principal balance of the Advances (including any new Advances requested by
Borrower) exceed an amount equal to Borrower's Eligible Accounts (which, for
purposes hereof, means those accounts receivable of Borrower (i) on which
Lender has a first and prior perfected security interest, (ii) which are not
more than 120 days past due, and (iii) which are otherwise satisfactory to
Lender in its sole and absolute discretion). The amount of the initial Advance
shall be Six Hundred Sixty Six Thousand Dollars ($666,000) and shall be
funded on the date of this Agreement.
SECTION 1.2 Making the Advances. Advances shall be made on a Business
Day. Each Advance shall be made on written notice, signed by the President of
the Borrower and delivered to Lender not later than 5:00 p.m. (Houston time) at
least two Business Days before the day on which the Advance is to be made.
Each notice from the Borrower to the Lender requesting an Advance shall be
irrevocable and binding on the Borrower.
SECTION 1.3 Interest and Repayment. All outstanding principal on all
Advances made by
1
2
Lender to Borrower hereunder shall bear interest at Eight Percent (8.0%) per
annum. The principal portion of the initial Advance shall be payable in equal
monthly installments, commencing on or before the 15th day of the month
following the date of this Agreement and continuing monthly thereafter until
paid in full. The principal portion of all other Advances shall be payable in
full on or before the such termination of the FULL SERVICE MANAGEMENT
AGREEMENT entered into effective July 1, 1996 between both parties and
thereafter ON DEMAND by the Lender. On the date of this Agreement, the Borrower
shall execute and deliver to the Lender a Revolving Credit Note in the form of
Exhibit A hereto (the "Note"), evidencing the indebtedness resulting from such
Advances and delivered to the Lender pursuant to Article II.
SECTION 1.4 Optional Prepayments. The Borrower may, upon at least two
Business Days, notice to the Lender stating the proposed date and principal
amount of the prepayment, without penalty or premium, prepay the outstanding
principal amounts of the Advances in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid.
SECTION 1.5 Payments and Computations. The Borrower shall make each
payment hereunder and under the Note on the date when due in U.S. dollars to
the Lender at its address referred to in Section 6.2 in same day funds. The
Borrower hereby authorizes the Lender, if and to the extent payment is not made
when due hereunder or under the Note, to charge from time to time against any
or all of the Borrower's accounts maintained by the Lender on Borrower's behalf
any amount so due. All computations of interest shall be made by the Lender on
the basis of a year of 365 or 366 days, as the Case may be, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
SECTION 1.6 Payment on Non-Business Days. Whenever any payment
hereunder or under the Note shall be stated to be due on a day other than a day
of the year on which banks are not required or authorized to close in Houston,
Texas (any such other day being a "Business Day"), such payment shall be Made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest.
SECTION 1.7 Maximum Rate. This Agreement and all of the Loan
Documents (as hereafter defined) are intended to be performed in accordance
with, and only to the extent permitted, by all
2
3
applicable law governing the maximum rate or amount of interest payable on or
in connection with the Note and the indebtedness evidenced thereby of Any
jurisdiction and law of which is found by a court of competent jurisdiction to
be applicable to the Loan Documents notwithstanding the jurisdiction chosen by
the parties ("Applicable Law"). It is expressly stipulated and agreed to be
the intent of Borrower and Lender at all times to comply with the Applicable
Law governing the maximum rate or amount of interest payable on or in
connection with the Loan Documents (or applicable United States federal law to
the extent that it permits the Lender to contract for, charge, take, reserve or
receive a greater amount of interest than under applicable Law). If the
Applicable Law is ever judicially interpreted to as to render usurious any
amount called for under the Loan Documents or contracted for, charged,taken,
reserved, or received with respect to the indebtedness under the Loan
Documents, or if the acceleration of the maturity of the indebtedness under the
Loan Documents or any prepayment by the Borrower results in the Borrower having
paid any interest in excess of that permitted by Applicable Law, then it is the
Borrower's and the Lender's express intent that all excess amounts therefore
collected by the Lender be credited on the principal balance of the Note (or,
if the Note and all other indebtedness have been or would thereby be paid in
full, refunded to the Borrower), and the provisions of the Loan Documents
immediately be deemed reformed and the amount thereafter collectible thereunder
reduced, without the necessity of the execution of any new documents, So as to
comply with the Applicable Law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder. The right to accelerate
the maturity of the indebtedness under the Loan Documents does not include the
right to accelerate any interest which has not otherwise accrued on the date of
such acceleration, and the Lender does not intend to collect any unearned
interest in the event of acceleration. All, sums paid or agreed to be paid to
the Lender for the use, forbearance or detention of the indebtedness under the
Loan Documents shall, 'to the extent permitted by Applicable Law, be amortized,
prorated:, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed any applicable usury ceiling. "Maximum Rate"
means the maximum non-usurious rate of interest which may be lawfully
contracted for, charged, taken, reserved or received by the Lender from the
Borrower in connection with the indebtedness under Applicable Law (or
applicable United States federal law to the extent that it permits the Lender
to contract for, charge, take, reserve or receive a greater amount of interest
than under Applicable Law.)
3
4
ARTICLE 2 CONDITIONS OF LENDING
SECTION 2.1 Condition Precedent to Initial Advance. The obligation of
the Lender to make its initial Advance is subject to the conditions precedent
that Lender shall have received on or before the day of such Advance the
following, each dated such date, in form and substance satisfactory to the
Lender:
(I) The Note; and
(ii) A Security Agreement, duly executed by the Borrower, in the form of
Exhibit B (the "Security Agreement").
This Agreement, the Note, the Security Agreement and all financing statements
and other documents and instruments executed or delivered pursuant hereto or
thereto are herein collectively referred to as the "Loan Documents."
SECTION 2.2 Conditions Precedent to All Advances. The obligation of
the Lender to make each Advance (including the initial Advance) shall be
subject to the further conditions precedent that on the date of such Advance
(a) the following statements shall be true (and each of the giving of the
applicable notice requesting such Advance and the acceptance by the Borrower of
the proceeds of such Advance shall constitute a representation and warranty by
the Borrower that on the date of such Advance such statements are true):
(i) The representations and warranties contained in Section 3.1 of
this Agreement, and as set forth in the Security Agreement are correct and
complete on and as of the date of such Advance, before and after giving effect
to such Advance and to the application of the proceeds therefrom, as though
made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such Advance or from the application of the proceeds therefrom, which
constitutes an Event of Default (as defined in Section 5.1 hereof) or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both; and
(b) The Lender shall have received such other approvals, opinions
or documents as the Lender may reasonably request.
(c) SECTION 2.3 Lender's Absolute Discretion. The existence or
satisfaction of any or all of the conditions set forth in Sections 2.1 or 2.2
above shall in no way impair or modify the
4
5
Lender's right of absolute discretion in deciding to make or not make any
Advance, or to determine the amount of any Advance which the Lender is willing
to make.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Lender as follows:
(a) The Borrower is a professional association, duly formed,
validly existing and in good standing under the laws of Texas.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party are within the Borrower's corporate
powers, have been duly authorized by all necessary action on its part and do not
contravene (i) the Articles of Association or Bylaws of Borrower or (ii) any law
or contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of the Loan
Documents.
(d) This Agreement and the other Loan Documents to which the
Borrower is a party are legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms,
subject to the limitations of bankruptcy and general principles of equity,
provided that the unavailability of remedies due to Equitable limitations will
not substantially impair the rights of Lender under any of the Loan Documents.
(e) There is no pending or, to the best of the Borrower's
knowledge, threatened, action - or proceeding affecting the Borrower before any
court, governmental agency or arbitrator, which may materially adversely affect
the financial condition or business of the Borrower or which purports to affect
the legality, validity or enforceability of any of the Loan Documents.
(f) The Borrower is not engaged in the business of extending credit
for the purpose of buying or carrying margin stock (within the meaning of
Regulation G issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to buy or carry any margin Stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock.
5
6
ARTICLE 4
COVENANTS OF THE BORROWER
SECTION 4.1 Affirmative Covenants. So long as the Note shall remain
unpaid or- otherwise during the term of this Agreement, the Borrower will,
unless the Lender shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith.
(b) Maintenance. Maintain its existence as a professional
association, not institute any proceedings for the dissolution, liquidation or
winding up of Borrower, and maintain, and cause each of its employees (where
applicable) to maintain, all professional licenses and permits in good standing
to the extent necessary for Borrower to operate in the ordinary course of
business.
SECTION 4.2 Negative Covenants. So long as the Note shall remain
unpaid or otherwise during the term of this Agreement, the Borrower will not,
without the written consent of the Lender:
(a) Liens, Etc. Except as permitted by the Loan Documents, create
or suffer to exist, any lien, security interest or other charge or encumbrance,
or any other type of preferential arrangement, upon or with respect to any of
its properties, whether now owned or hereafter acquired, or assign any right to
receive income, in each case to secure or provide for the payment of any person
or, entity, other than (i) purchase money liens or purchase money security
interests upon or in any property acquired or held by the Borrower or any
subsidiary in the ordinary course of business to secure the purchase price of
such property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, and (ii) liens on assets not
constituting part of the Collateral (as defined in the Security Agreement).
(b) Mergers Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any person or entity.
6
7
ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES; SPECIAL REMEDY
SECTION 5.1 Events of Default and Remedies. If any of the following events:
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of, or interest
on, the Note when the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower under or
in connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or
(c) The Borrower shall fail to perform observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed and such failure shall remain unremedied for 10 days after
written notice thereof shall have been given to the Borrower by the Lender; or
(d) The Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any substantial
part of its property) shall occur and shall not be stayed pending timely appeal
(provided that the lifting of such stay shall constitute an Event of Default);
or the partner shall take any corporate or partnership action to authorize any
of the actions set forth above in this subsection (d); or
(e) Any final judgment or order for the payment of money in excess
of $100,000, or any two or more final judgments or orders for the payment of
money in excess of $250,000 in the aggregate, shall be rendered against the
Borrower or any of its subsidiaries and the same shall not be
7
8
discharged within a period of 30 days after such judgment becomes final and
non-appealable; or
(f) The termination, cancellation, expiration without renewal or
replacement, or material breach by Borrower of the Management Agreement of even
date herewith between Borrower and Lender (the "Management Agreement"), or
(g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, D.O. ceases at any time (i) to be a
full-time employee of Borrower or (ii) to own at least 50% of the outstanding
voting securities of Borrower; or
(h) Any material breach by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, D.O.. of the
Non-Competition Agreement of even date herewith between ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ and
Lender;
then, and in any such event, the Lender may, by notice to the Borrower, declare
the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief under the Federal
Bankruptcy Code with respect to the Borrower the Note, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 5.2 Offset. In addition to any other remedies available at law
or in equity, upon the occurrence or continuance of any Event of Default the
Lender shall have the right to offset against any assets (including sums in bank
accounts) then in Lender's possession or control, in payment and satisfaction of
obligations then due.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Amendment, Etc. No amendment or waiver of any provision
of any Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective
8
9
unless the same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 6.2 Notice, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, D.O.; and if to the
Lender, at its address at ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, -Attention: ▇▇▇▇
▇▇▇▇, President; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and - communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively except that notices to the Lender pursuant
to the provisions of Article 1 shall not be effective until received by the
Lender.
SECTION 6.3 No Waiver; Remedies. No failure on the part of the Lender
to exercise, and no delay in exercising, any right under the Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 6.4 Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, filing, recording, administration, modification and amendment of the
Loan Documents and the other documents to be delivered, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Lender with respect thereto and with respect to advising the Lender as to its
rights and responsibilities under the Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of the Loan Documents and
the other documents to be delivered under the Loan Documents, including,
without limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 6.5. In addition the Borrower shall
pay any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of the Loan Documents, and agrees to
save the Lender
9
10
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
SECTION 6.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender.
SECTION 6.6 Certain Potential Conflicts. The Borrower acknowledges
that it has had full opportunity to consult with an attorney of its own choice
regarding the nature, obligations and consequences of this Agreement and that
it is not relying on counsel for the Lender in that regard. The parties have
also entered into the Management Agreement and certain other arrangements
relating to the management and control of the Borrower. The existence of such
other relationships may be deemed to be, or give rise to, certain conflicts of
interest. The Borrower, recognizing. such conflicts of interest, hereby
irrevocably, knowingly and willingly waives all such conflicts.
SECTION 6.7 GOVERNING LAW. THIS AGREEMENT AND THE NOTE, AND, UNLESS
OTHERWISE THEREIN PROVIDED, EACH OTHER LOAN DOCUMENT, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF TEXAS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER: LENDER:
--------- -------
JCW MEDICAL ASSOCIATES, P.A. DOCTORS PRACTICE MANAGEMENT,INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, D.O. ▇▇▇▇ ▇▇▇▇
PRESIDENT PRESIDENT
10
