Exhibit 10.71
THIRD ADDENDUM
TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS THIRD ADDENDUM to Second Amended and Restated Credit Agreement ("Third
Addendum") is made as of the 31st day of December, 2003 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, and a
(ii) Second Addendum to Second Amended and Restated Credit Agreement
entered into by the Bank and Borrower on March 28, 2003, pursuant to which
the Bank made available to the Borrower a $3,000,000 revolving line of
credit. Borrowings under the Line are currently evidenced by a
$3,000,000.00 promissory note, dated June 28, 2002 ("Existing Revolving
Note").
B. As of December 31, 2003 there is owed on the Existing Revolving Note the
principal amount of $3,000,000.00 and accrued, unpaid interest in the
amount of $2,879.45.
C. The Borrower has requested that the Bank extend the Line Availability
Period to July 31, 2005.
D. The Bank and the Borrower wish to amend the Credit Agreement pursuant to
the terms of this Third Addendum.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained
herein it is agreed:
1. All terms not otherwise defined in this Third 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 Third 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 Third
Addendum becoming effective shall be subject to the timely satisfaction of
the following conditions precedent:
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 Third Addendum by the Borrower's secretary of
(i) the resolutions of Borrower's board of directors authorizing the
execution and delivery of this Third Addendum and the Documents
required by this Third 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 Third 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 this Third Addendum 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.
f) The Bank shall have received amendments to each Standby L/C described
below, in substantially the form of the attached Exhibit "A" which
extends the expiration date of each Standby L/C to August 31, 2005:
i) Issued by West Des Moines State Bank on account of Xxxx Xxxxxxxxx in
the amount of $750,000; ii) Issued by Manufacturers and Traders Trust
Company on account of Xxxxxx X. Xxxxxxxx in the amount of $1,250,000;
g) The Bank shall have received from Xxxx Xxxxxxxxx the Consent to Third
Addendum of Second Amended and Restated Credit Agreement, Ratification
of Guaranty and Waiver of Claims attached hereto as Exhibit "B".
h) The Borrower shall have delivered the Modification Agreement which
shall be in a form and content satisfactory to the Bank, executed by
the parties specified therein.
i) The Borrower shall have reimbursed the Bank for all expenses incurred
by it in connection with this Third Addendum, including but not
limited to, attorney's fees.
3. Section 1.2 (Line Availability Period) of the Credit Agreement is hereby
deleted and the following new Section 1.2 is substituted in lieu thereof:
1.2 Line Availability Period. The "Line Availability Period" will mean
the period of time from the Effective Date or the date on which all
conditions precedent described in this Agreement have been met,
whichever is earlier, through and including July 31, 2005 (the "Line
Expiration Date").
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
Third Addendum.
5. Except as modified by this Third 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 supercedes 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 Third Addendum as of the day
and year first above written.
PATIENT INFOSYSTEMS, INC. XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By /s/Xxxx X. Xxxxxx By /s/ Xxxxxxxxx X. Xxxx
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Xxxxxxxxx X. Xxxx,
Its Vice President Assistant Vice President
