EXHIBIT 10.13(b)
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated
effective as of March 15, 1996 (the "Effective Date"), is by and between MEDICAL
INNOVATIONS, INC., a Delaware corporation, MEDICAL INNOVATIONS, INC. OF NEW
JERSEY, a Delaware corporation, MEDICAL INNOVATIONS (TEXAS), INC., a Texas
corporation, THE GREAT EASTERN NURSING CORP., a Texas corporation, NURSES PRN OF
VIRGINIA, INC., a Texas corporation, NURSING INNOVATIONS, INC. a Texas
corporation, MEDICAL INNOVATIONS OF VIRGINIA, INC, a Texas corporation and
PHYSICIAN'S VISITING NURSE SERVICE, INC., a Texas corporation (singly, a
"Borrower" and collectively, "Borrowers"), and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association whose principal office is located in
Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrower have entered into a Credit Agreement (with
Borrowing Base) dated as of March 23, 1994 as amended by that certain First
Amendment to Credit Agreement (with Borrowing Base) dated as of June 30, 1994,
by that certain Second Amendment to Credit Agreement (with Borrowing Base) dated
as of August 31, 1994 and as amended by that certain Third Amendment to Credit
Agreement (with Borrowing Base) dated as of December 22, 1994 (the "Credit
Agreement"). The "Agreement", as used in the Credit Agreement, shall also refer
to the Credit Agreement as amended by this Amendment. All capitalized terms
defined in the Credit Agreement and not otherwise defined herein shall have the
same meanings herein as in the Credit Agreement. The Bank and the Borrowers have
agreed to amend the Credit Agreement to the extent set forth herein, and in
order to, among other things, renew, modify and extend the Commitment and to
delete the Borrowing Base provisions from the Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Bank and the Borrower hereby agree as
follows:
I. REVOLVING CREDIT NOTE. Section 1.1 of the Credit Agreement is
amended by substituting the following for the Section 1.1 of the Credit
Agreement:
"Subject to the terms and conditions hereof, the Bank agrees to make
loans ("Loan" or "Loans") to any Borrower from time to time before the
Termination Date, not to exceed at any one time outstanding for all
Borrowers $600,000.00 (the "Commitment"), each Borrower having the
right to borrow, repay and reborrow. Each Loan shall be in an amount
not less than $10,000.00 or the balance of the Commitment, whichever is
less and each repayment shall be in an amount of not less than
$10,000.00 or the principal balance of the Note, whichever is less. The
Bank and the Borrowers agree that Chapter 15 of the Texas Credit Code
shall not apply to this Agreement, the Note or any Loan. The Loans
shall be evidenced by and shall bear interest and be payable as
provided in the promissory note of Borrowers dated the Effective Date
(together with any and all renewals, extensions, modifications,
replacements, and rearrangements thereof and substitutions therefor,
the "Note") which is given in renewal, modification and extension of
that certain promissory note dated December 22, 1994 in the original
principal amount of $600,000.00 (including all prior notes of which
said note represents a renewal, extension, modification, increase,
substitution, rearrangement or replacement thereof, the "Renewed
Note"). The parties hereto agree that there is as of the Effective Date
an outstanding principal balance of $400,000.00 under the Note leaving
a balance as of the Effective Date of $200,000.00 under the Commitment
available for Loans subject to the terms and conditions of this
Agreement. The "Note" as used in the Credit Agreement shall also refer
to the "Note" as used in this Amendment. The purpose of the Loans is to
support working capital for the Borrowers."
II. The Credit Agreement is amended by deleting therefrom Sections 1.2,
1.3, 1.4 and 1.5 in their entirety.
III. Sections 1.6 through 1.9 of the Agreement are amended by
redesignating the same as Sections 1.3, 1.4, 1.5, 1.6 and 1.7, respectively.
IV. Section 1.7 of the Credit Agreement is amended by substituting the
following for the Section 1.7 of the Credit Agreement.
"CONFIRMATION AND AMENDMENT OF SECURITY INTERESTS SECTION 1.7. Each
Borrower confirms and ratifies each of the liens, security interests
and other interests granted in each and all security agreements
executed in connection with, related to, or securing the Renewed Note
as extending to and securing the Loans and the Notes including but not
limited to each of those interests and liens described in the following
listed Security Agreements. Each Borrower further agrees and
acknowledges that the terms "secured indebtedness" and "indebtedness
secured hereby" as used in any security agreement including any
supplemental security agreements executed in connection with or related
to, or securing the Renewed Note, or any other indebtedness of Borrower
to Bank, including but not limited to the following security agreements
executed by Borrower and delivered to Bank: Security Agreement -
Accounts and General Intangibles executed by Medical Innovations of
Virginia, Inc. dated March 28, 1994; Security Agreement
Page 1 of 4 Pages
- Accounts and General Intangibles executed by Medical Innovations
(Texas), Inc. dated March 28, 1994; Security Agreement - Accounts and
General Intangibles executed by Nursing Innovations, Inc. dated March
28, 1994; Security Agreement - Accounts and General Intangibles
executed by The Great Eastern Nursing Corp. dated March 28, 1994;
Security Agreement - Accounts and General Intangibles executed by
Medical Innovations, Inc. of New jersey dated March 28, 1994; Security
Agreement - Accounts and General Intangibles executed by Nurses PRN of
Virginia, Inc. dated March 28, 1994; Security Agreement - Accounts and
General Intangibles executed by Physician's Visiting Nurse Service,
Inc. dated March 28, 1994; and Security Agreement executed by Medical
Innovations, Inc., including any Supplemental Security Agreements
supplementing any of the foregoing, and any other security agreements
previously executed by Borrower and delivered to Bank and not released
by Bank and all security agreements executed as of the Effective Date
(each and all "Security Agreements") include, but are not limited to,
each and all indebtedness of all character and kind related to or
evidenced by the Renewed Note, the Note and related to the Loan
Documents. The parties hereto agree to amend the Security Agreements as
follows: (1) representation and warranty (a) on page 1 of the Security
Agreements is deleted therefrom in its entirety; (2) ss.4.1(g) of the
Security Agreements is amended by adding the following to the end of
ss.4.1(g): "except for in the normal course of business;" (3) ss.4.1(l)
of the Security Agreements is amended by adding the following to the
end of ss.4.1(l): "except for in the normal course of business;" and
(4) ss.4.1(n) of the Security Agreements is amended by deleting
therefrom the words: "and its proceeds." The Note is further secured by
each of the Continuing Guaranties dated December 22, 1994 executed by
each of Xxxxxx X. Xxxxx, and Xxxx X. Xxxxxx and delivered to Bank."
V. Section 2.1 of the Credit Agreement is amended by substituting the
following for Section 2.1 of the Credit Agreement:
"ALL LOANS 2.1 Bank is not obligated to make any Loan unless: (a) Bank
has received the following, duly executed and in Proper Form: (1) a
Request for Loan, substantially in the form of EXHIBIT A, not later
than one (1) Business Day before the date (which shall also be a
Business Day) of the proposed Loan; provided however, Bank may accept
and act upon verbal advance requests received from Borrower's
representative reasonably believed by Bank to be authorized to make
such requests; and (2) such other documents as Bank reasonably may
require; (b) no Event of Default exists; and (c) the making of the Loan
is not prohibited by, or subjects Bank to any penalty or onerous
condition under any Legal Requirement."
VI. Section 4.3 of the Credit Agreement is amended by substituting the
following for the Section 4.3 of the Credit Agreement.
"FINANCIAL INFORMATION: Furnish to the Bank one copy of each of the
following: (i) for Medical Innovations, Inc.: (a) as soon as available and in
any event within 90 days after the end of each fiscal year of Medical
Innovations, Inc., Medical Innovations, Inc.'s annual financial statements,
prepared in conformity with GAAP and accompanied by a report and opinion of
independent certified public accountants satisfactory to the Bank; (b) as soon
as available and in any event within 45 days after the end of each month, the
consolidated financial statements of Medical Innovations, Inc. for such period,
and for the year to date, prepared in conformity with GAAP accompanied by
computations and workpapers to establish compliance or noncompliance with the
financial covenants set forth on Annex III; (c) copies of special audits,
studies, reports and analysis prepared for the management of any Borrower by
outside parties; and (d) promptly after such request is submitted to the
appropriate Governmental Authority, any request for waiver of funding standards
or extensions of amortization periods with respect to any employee benefit plan;
(ii) for guarantors, no later than 15 days after request therefor by the Bank,
and no later than April 30 of each year, the personal financial statement of
such guarantor, in form and containing such information and detail as is
satisfactory to the Bank; and (iii) for all Borrowers or guarantors, such
information relating to the financial condition and affairs of the Borrowers or
guarantors and their Subsidiaries as from time to time may be requested by the
Bank in its discretion."
VII. Section 8. Definitions. Subsection (a) of the definition of
Termination Date in the Credit Agreement is hereby amended by replacing "(a)
March 31, 1996; or" with "(a) April 15, 1997; or."
VIII. EXHIBIT A of the Credit Agreement is hereby amended by replacing
prior EXHIBIT A with the EXHIBIT A attached hereto and hereby incorporated into
this Amendment and the Credit Agreement for all purposes.
IX. The Credit Agreement is hereby amended by deleting therefrom EXHIBIT
B in its entirety.
X. ANNEX I of the Credit Agreement is hereby amended by replacing prior
ANNEX I with the ANNEX I attached hereto and hereby incorporated into this
Amendment and the Credit Agreement for all purposes.
XI. The Borrowers hereby represent and warrant to the Bank that after
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of the
date hereof.
Page 2 of 4 Pages
XII. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
XIII. The Borrowers further acknowledge that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
XIV. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
XV. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
XVI. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF THE UNITED
STATES OF AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE TEXAS BUSINESS & COMMERCE CODE,
AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
effective as of the Effective Date.
BORROWER: MEDICAL INNOVATIONS, INC.
By: /S/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: MEDICAL INNOVATIONS, INC. OF NEW JERSEY
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: MEDICAL INNOVATIONS (TEXAS), INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: MEDICAL INNOVATIONS OF VIRGINIA, INC.
Page 3 of 4 Pages
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: THE GREAT EASTERN NURSING CORP.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: NURSES PRN OF VIRGINIA, INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: NURSING INNOVATIONS, INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxx Xxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000
BORROWER: PHYSICIAN'S VISITING NURSE SERVICE, INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxxx, Xxxxxxxx, Xxxxx 00000
BANK: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: VP
Address:
Page 4 of 4 Pages
EXHIBIT A
REQUEST FOR LOAN
LETTERHEAD OF BORROWER
Texas Commerce Bank National Association
[branch address]
Re: Request for Loan under Agreement
Attention: XXXX XXXXX
Gentlemen:
This letter confirms our oral or telephonic request of , 19 , for a Loan in
accordance with that certain Credit Agreement (as amended, restated and
supplemented from time to time, the "Agreement") dated as of March 23, 1994
between you and us. Any term defined in the Agreement and used in this letter
has the same meaning as in the Agreement.
The proposed Loan is to be in the amount of $ and is to be made on , 19 ,
which is a Business Day at least one (1) Business Day after the date of this
letter. The proceeds of the proposed Loan should be (check one:) [ ] deposited
into account number with the Bank; or [ ]_____________________________________.
The undersigned hereby certifies that:
(1) The representations and warranties made by the Borrower or by any
other Person in the Agreement and the other Loan Documents are
true and correct on and as of this date as though made on this
date.
(2) The proposed Loan complies with all applicable provisions of the
Agreement.
(3) No Event of Default has occurred and is continuing.
Sincerely,
BORROWER:
By:
Name:
Title:
EXHIBIT A Page 1 of 1
ANNEX I
LOAN DOCUMENTS
"Loan Documents" includes, but is not limited to, the following:
1. Agreement
2. Note
3. [ ] Assignment covering:
[ ] Life insurance
[ ] Deposit account
[ ] Other (specify)
4. Compliance Certificate
5. |X| Security Agreements, in Proper Form, covering:
|X| Accounts and general intangibles
[ ] Equipment
[ ] Inventory
[ ] Securities
[ ] Secured note
[ ] Certificate of deposit or deposit account
[ ] Partnership interest
[ ] Rights under contract
[ ] Other (specify)
6. [ ] Deed of Trust covering the real property described on the Real
Property Addendum, attached hereto.
7. [ ] Title Insurance Policy
8. |X| Financing Statements
9. |X| Guaranty by each of: XXXXXX X. XXXXX, XX.; XXXX X. XXXXXX
10. |X| Certificate of Account Status
11. [ ] Opinion of Borrower' Counsel
12. |X| Certified Copies of Organizational and Authority Documents
13. [ ] Insurance policies and certificates
14. [ ] Subordination Agreement covering: [ ] debt to:
[ ] lien of:
15. |X| Financial Statements of: BORROWER; XXXXXX X. XXXXX, XX.; XXXX X.
XXXXXX
16. |X| UCC search
17. [ ] Regulation U Purpose Statement (U-1)
Loan Documents -- ANNEX I Page 1 of 1
