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EXHIBIT 4.7(d)
SECOND AMENDMENT TO REVOLVING CREDIT AND LOAN AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AND LOAN AGREEMENT (this
"Second Amendment to Loan Agreement" or this "Second Amendment") is entered into
on November 30, 1997 between NBD Bank ("NBD" or "Bank"), as lender, with offices
at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; Universal Standard Healthcare,
Inc., formerly known as Universal Standard Medical Laboratories, Inc., a
Michigan corporation ("USML"); Universal Standard Healthcare of Michigan, Inc.,
formerly known as Universal Standard Managed Care of Michigan, Inc., a Michigan
corporation ("Michigan Managed Care"); Universal Standard Healthcare of Ohio,
Inc., formerly known as Universal Standard Managed Care of Ohio, Inc., an Ohio
corporation ("Ohio Managed Care"); Universal Standard Healthcare of Delaware,
Inc., formerly known as Universal Standard Managed Care, Inc., a Delaware
corporation ("Delaware Managed Care"); T.P.A., Inc., a Michigan corporation
("Processing"); and A/R Credit, Inc., a Michigan corporation ("AR Credit"), all
of whose addresses are 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
RECITALS
This Second Amendment to Loan Agreement is based on the following recitals
("Recitals"), which are incorporated into and made a part of this Second
Amendment:
1. USML, Delaware Managed Care, Ohio Managed Care, Michigan
Managed Care, Processing, AR Credit (each, an "Obligor" and
collectively, the "Obligors"), and NBD are parties to a Revolving
Credit and Loan Agreement dated April 30, 1997, as amended by a First
Amendment to Revolving Credit and Loan Agreement dated September 26,
1997 (as amended, and as may be further amended or restated from time
to time, the "Loan Agreement"). In addition to the Loan Agreement, Bank
and Obligors are parties to various other loan and security documents
and guaranties more particularly described in or executed in connection
with the Loan Agreement (which are defined as the "Loan Documents" in
the Loan Agreement). Capitalized terms used but not defined in this
Second Amendment have the same meanings given to those terms in the
Loan Documents.
2. Obligors have requested that NBD enter into an approximate
$541,000 lease transaction with Delaware Managed Care and that NBD
purchase a lease contract entered into between USML and National
Computer Resources, Inc. ("National Computer") in the approximate
amount of $41,000 (collectively, the "Lease Transactions").
3. Obligors have requested and, subject to the terms hereof,
Bank has agreed to amend the Loan Agreement as set forth in this Second
Amendment.
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AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
representations, warranties, acknowledgments and agreements of the parties, as
the case may be) and for other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged by the parties hereto, Obligors and
Bank agree as follows:
A. To evidence the Lease Transactions, Delaware Managed Care
must execute and deliver to NBD the lease documents attached to this
Second Amendment as Exhibit A and such related agreements as NBD may
require and USML must execute and deliver to NBD the lease documents
attached to this Second Amendment as Exhibit B and such related
agreements as NBD may require (collectively, each, a "Lease Document"
and together, the "Lease Documents").
B. The last sentence of the definition of "Advance" in Section
1.1 of the Loan Agreement is amended to read as follows: "Loans and
advances made under Section 2.3 and the Lease Transactions are not
Advances."
C. The definition of "Loan Documents" in Section 1.1 of the
Loan Agreement is amended in its entirety to read as follows:
"Loan Documents" means this Agreement, the Notes, the Lease
Documents, the documents and agreements delivered to the Bank
in accordance with the Articles II and III of this Agreement,
and all other agreements and documents or instruments now or
hereafter executed by or on behalf of any one or more of the
Obligors and delivered to Bank."
D. The definition of "Obligations" in Section 1.1 of the Loan
Agreement is amended to provide that in addition to the obligations
described therein, the term "Obligations" also includes all present and
future obligations arising under or in connection with the Lease
Transactions and the Lease Documents.
E. Any Event of Default under the Loan Documents is also a
default under each of the Lease Documents.
F. Prior to or simultaneously with execution and delivery of
this Second Amendment, Obligors must cause to be executed and delivered
to Bank such financing statements, resolutions and other agreements
that Bank may require to effectuate the transactions contemplated by
this Second Amendment. Obligors must pay all costs and expenses
(including attorneys' fees) incurred by Bank in connection with this
Second Amendment.
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G. Obligors expressly acknowledge and agree that all
collateral security and security interests, liens, pledges, guaranties,
and mortgages heretofore or hereafter granted Bank including, without
limitation, such collateral, security interests, liens, pledges, and
mortgages granted under the Loan Documents, extend to and cover all of
each Obligor's Obligations to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with this
Second Amendment (including the Lease Transactions and the Lease
Documents) and under all guaranty agreements now or in the future given
by one or more of the Obligors in Bank's favor, upon the terms set
forth in such agreements, all of which security interests, liens,
pledges, and mortgages are ratified, reaffirmed, confirmed and
approved.
H. From and after the date of this Second Amendment,
references in the Loan Documents to the Loan Agreement are to be
treated as referring to the Loan Agreement as amended by this Second
Amendment.
I. Obligors represent and warrant to the NBD that:
(1) (a) The execution, delivery and performance
of this Second Amendment by the Obligors and all agreements
and documents delivered by Obligors in connection with this
Second Amendment have been duly authorized by all necessary
corporate or other organizational action and does not and
will not require any consent or approval of its
stockholders or members, violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having
applicability to it or of its articles of incorporation,
articles of organization, or bylaws, or result in a breach of
or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to
which any Obligor is a party or by which it or its properties
may be bound or affected.
(b) No authorization, consent, approval,
license, exemption of or filing a registration with any court
or governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, is or will be
necessary to the valid execution, delivery or performance by
Obligors of this Second Amendment and all agreements and
documents delivered in connection with this Second Amendment.
(c) This Second Amendment and all agreements
and documents delivered by Obligors in connection with this
Second Amendment are the legal, valid and binding obligations
of Obligors enforceable against each of them in accordance
with the terms thereof.
(2) After giving effect to the amendments contained
in this Second Amendment, all of the representations and
warranties contained in the Loan
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Documents are true and correct on and as of the date hereof
with the same force and effect as if made on and as of the
date hereof.
(3) Obligors's financial statements furnished to the
NBD, fairly present Obligors's financial condition as at such
dates and the results of Obligors's operations for the periods
indicated, all in accordance with generally accepted
accounting principles applied on a consistent basis, and since
the date of the last such financial statement there has been
no material adverse change in such financial condition.
(4) No Default or Event of Default has occurred and
is continuing or will exist on the date of this Second
Amendment under the Loan Agreement or any of the other Loan
Documents.
J. The terms and provisions of this Second Amendment amend,
add to and constitute a part of the Loan Agreement. Except as expressly
modified and amended by the terms of this Second Amendment, all of the
other terms and conditions of the Loan Agreement and the other Loan
Documents (including all guaranties, which, without limitation, extend
to and cover the Obligations arising in connection with the Lease
Transactions and the Lease Documents) remain in full force and effect
and are hereby ratified, reaffirmed, confirmed, and approved.
K. If there is an express conflict between the terms of this
Second Amendment to Loan Agreement and the terms of the Loan Agreement
or the other Loan Documents, the terms of this Second Amendment govern
and control.
L. This Second Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the
same document. All counterparts must be construed together to
constitute one instrument.
M. WAIVER OF JURY TRIAL AND ACKNOWLEDGMENT. THE PARTIES HERETO
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT,
BUT THAT THIS RIGHT MAY BE WAIVED. NBD AND OBLIGORS EACH HEREBY
KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A
TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENTS BETWEEN ANY OF
THE PARTIES. NO PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT
OF THIS WAIVER OF
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JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT SIGNED
BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED.
NBD BANK
By:/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxxx
First Vice President
UNIVERSAL STANDARD
HEALTHCARE, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx
Vice President Finance and Treasurer
UNIVERSAL STANDARD HEALTHCARE
OF MICHIGAN, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
UNIVERSAL STANDARD HEALTHCARE
OF OHIO, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
UNIVERSAL STANDARD HEALTHCARE
OF DELAWARE, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
[Signatures continued on following page]
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[Signature continued from preceding page]
A/R CREDIT, INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
T.P.A., INC.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
Exhibit A - Lease Documents
B - National Computer Lease Documents
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