EXHIBIT 10.41
FOURTH AMENDMENT TO LOAN AGREEMENTS
This Amendment to certain Business Loan Agreements is executed this
14th day of November, 1996 by and among MDC Investment Holdings, Inc. ("MDC"),
The Med-Design Corporation ("Med-Design") and MDC Research Ltd. ("Research" -
collectively, MDC, Med-Design and Research are herein called the "Borrowers")
and CoreStates Bank, N.A., successor by merger to Meridian Bank ("Bank").
BACKGROUND
A. On July 26, 1995, MDC executed and delivered to the Bank a Business
Loan Agreement (as amended from time to time the "MDC Loan Agreement"), pursuant
to which the Bank established a credit facility for MDC (the "MDC Loan") in the
amount of up to $3,000,000. This credit facility was evidenced by a Promissory
Note, dated July 26, 1995, in that amount (the "MDC Note"), was secured by MDC's
grant to the Bank of a security interest in its accounts, inventory, equipment
and general intangibles ("General Collateral"), and by a pledge of certain
securities held at Delaware Trust Capital Management, Inc. ("Pledged
Securities") and a certain Promissory Note in the amount of the MDC Loan from
Med-Design to MDC ("Related Party Note") and by a Surety Agreement executed by
Med-Design dated July 26, 1995 (the "Med-Design Surety Agreement"), which
Surety Agreement was secured by Med-Design's grant to the Bank of a security
interest in its accounts, inventory, equipment and general intangibles (the
"Med-Design Collateral") The General Collateral, Pledged Securities and Related
Party Note are hereinafter collectively referred to as the "MDC Collateral".
EXHIBIT 10.41
B. On December 29, 1995, the Bank entered into Business Loan Agreements
with (i) MDC (the "MDC Equipment Loan Agreement"), and (ii) Research (the
"Research Equipment Loan Agreement"), pursuant to which the Bank agreed to make
equipment loans to such entities (the "Equipment Loans"), in an aggregate amount
not exceeding $750,000 (as amended from time to time, collectively, the
"Equipment Loan Agreements"). Advances under the Equipment Loan Agreements were
evidenced by promissory notes, dated December 29, 1995, in the amount of $30,500
(with respect to MDC) (the "MDC Equipment Note") and $141,000 (with respect to
Research) (collectively, the "Equipment Notes"). The indebtedness to be created
under the Equipment Loan Agreements was secured by the MDC Collateral, by the
Med-Design Collateral and by Research's grant to the Bank of a security interest
in its accounts, inventory, equipment and general intangibles (the "Research
Collateral"). In addition, MDC and Med-Design executed Surety Agreements with
respect to the obligations of Research to the Bank. The Surety Agreements and
the Promissory Notes executed by MDC, Med-Design and Research each contain
provisions entitling the Bank to enter a judgment against MDC, Med-Design or
Research upon the occurrence of an Event of Default or Default under such
documents. MDC, Med-Design and Research each executed Acknowledgments of
Confession of Judgment, relating to these provisions.
C. On February 16, 1996 Bank and Borrowers entered into an Amendment to
Loan Agreements (the "First Amendment") wherein Bank and Borrowers agreed to (1)
amend the MDC Loan Agreement by increasing the amount of the credit facility
thereunder to $3,500,000, which obligations were evidenced by a Promissory Note
dated February 16, 1996 in the amount of $3,500,000 (the "Second MDC Note")
which re-evidenced and replaced the indebtedness evidenced by the MDC Note, and
(2) amend the Equipment Loan Agreements by reducing the aggregate amount of the
loans available thereunder to $250,000.
D. On April 4, 1996 Bank and Borrowers entered into a Second Amendment
to Loan Agreements (the "Second Amendment") wherein Bank and Borrowers agreed
inter alia to (1) amend the MDC Loan Agreement by increasing the amount of the
credit facility thereunder to $4,700,000, which obligations were evidenced by a
Promissory Note dated April 4, 1996 in the amount of $4,700,000 (the "Third MDC
Note") which re-evidenced and replaced the indebtedness evidenced by the Second
MDC Note, and (2) amend the Equipment Loan Agreements by increasing the
aggregate amount of the loans available thereunder to $600,000.
E. On July 11, 1996 Bank and Borrower entered into a Third Amendment to
Loan Agreements (the "Third Amendment") wherein Bank and Borrowers agreed, inter
alia, to (1) amend the MDC Loan Agreement by increasing the maximum amount of
the credit facility thereunder to $6,000,000, which obligations were evidenced
by a Promissory Note dated July 11, 1996 in the amount of $6,000,000 (the
"Fourth MDC Note") which re-evidenced and replaced the indebtedness evidenced by
the Third MDC Note and (2) the Equipment Loan Agreements by adding Med-Design as
a co-borrower thereunder, which was evidenced by a Promissory Note dated July
11, 1996 in the amount of $30,500 which re-evidenced and replaced the
indebtedness evidenced by the MDC Equipment Note (the "Second MDC Equipment
Note").
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EXHIBIT 10.41
F. The MDC Collateral, the Med-Design Collateral and the Research
Collateral is herein collectively referred to as the "Collateral". The MDC Loan
Agreements, the Equipment Loan Agreements (collectively the "Loan Agreements"),
all promissory notes executed by the Borrowers, or any of them, all Surety
Agreements executed by the Borrowers, or any of them, all Security Agreements,
Pledge Agreements, Assignment Agreements or notification letters executed by the
Borrowers, or any of them, and all other documents, instruments or agreements
executed in connection with the Loan Agreements are herein collectively referred
to as the "Loan Documents".
G. The Borrowers have requested that the Bank modify the terms of the
Loan Agreements to (1) increase the maximum amount available under the MDC Loan
Agreement to $6,750,000 and (2) modify the lending formula and extend the date
to which advances may be made under the Loan Agreements. Bank is willing to
amend the Loan Agreements as described above, all on the terms and subject to
the conditions, set forth herein.
AGREEMENTS
The parties hereto, intending to be legally bound, hereby agree:
1. The MDC Loan Agreement shall be amended as follows:
(a) The reference to the sum $6,000,000 set forth therein shall be
deleted, and the sum $6,750,000 shall be substituted in its place, subject to
the provisions of Section 15 of the MDC Loan Agreement. In connection with such
increased availability under the MDC Loan Agreement, MDC shall execute and
deliver to the Bank a Commercial Promissory Note, in the form of Exhibit "A".
All references to the note or to the promissory note in the MDC Loan Agreement,
or in any other Loan Documents, shall be deemed to be references to such new
note. The indebtedness evidenced by the Third MDC Note remains outstanding as of
the date hereof, and continues to be secured by the Collateral. All Loan
Documents shall, to the extent necessary, be amended and modified to provide
that the amount of the indebtedness owing under the Business Loan Agreement
shall be $6,750,0000, so that any reference to the sum $6,000,000 shall, from
and after the date hereof, be deemed a reference to the sum $6,750,000. The
parties hereto expressly acknowledge and agree that the replacement MDC Note
merely re-evidences the indebtedness evidenced by the Third MDC Note, while
increasing the principal amount thereof, and is given in substitution of, and
not as payment of, the Third MDC Note.
(b) Section 15 of the MDC Loan Agreement is amended by amending and
restating subsections (ii) and (iii) as follows:
(ii) Lending Formula. All advances under the MDC Loan will be
limited to 95% of the fair market value as determined by Bank from time to time
of short term, high grade, interest bearing securities issued by the United
States government, any agency thereof, or domestic corporations, acceptable to
Bank and pledged to Bank pursuant to the Pledge Agreement (the "Qualified
Securities") less a reserve of Qualified Securities with a Pledge Value (as
defined below) and
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EXHIBIT 10.41
determined by Bank at the time of such advance equal to the aggregate amount
then outstanding under the Equipment Loans. The value of the Qualified
Securities determined in accordance with the preceding sentence is hereinafter
referred to as the "Pledge Value."
(iii) Final Advance Date. Bank shall not make advances under the MDC
Loan after June 30, 1997 unless such date is extended by Bank in its sole and
absolute discretion.
2. The Equipment Loan Agreements each shall be amended as follows:
(a) Section 15 of each of the Equipment Loan Agreements is amended
amending and restating subsections (ii) and (iii) thereof as follows:
(ii) Lending Formula. All advances under the Equipment Loan shall
be limited to 80% of the new equipment purchase price and will be further
limited to 95% of the fair market value as determined by Bank from time to time
of short term, high grade, interest bearing securities issued by the United
States government, any agency thereof, or domestic corporations, acceptable to
Bank and pledged to Bank pursuant to the Pledge Agreement (the "Qualified
Securities") less a reserve of Qualified Securities with a Pledge Value (as
defined below) and determined by the Bank at the time of such advance equal to
the aggregate amount then outstanding under the MDC Loan. The sum of the value
of the Qualified Securities determined in accordance with the preceding sentence
is hereinafter referred to as the "Pledge Value." Advances under the Equipment
Loans to MDC and Research will be aggregated for the purpose of this advance
formula and in no event shall the aggregate of such advances exceed $600,000.
(iii) Final Advance Date. Bank shall not make advances on the
Equipment Loans after June 30, 1997, unless such date is extended by Bank in its
sole and absolute discretion.
3. The Borrowers hereby:
(a) ratify and confirm all the representations, warranties and
covenants contained in each of the Loan Agreements;
(b) ratify, confirm and acknowledge that, as amended hereby, the
Loan Agreements and the Loan Documents continue to be valid, binding and in full
force and effect;
(c) confirm and acknowledge that the credit facility established
under the MDC Loan Agreement, as increased and amended hereby, and that the
credit facilities established under the Equipment Loan Agreements, as amended
hereby, (collectively, the "Loans") are secured by all of the Collateral
described in any of the Loan Documents
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EXHIBIT 10.41
(d) confirm and agree that all Surety Agreements previously executed
by any of the Borrowers securing the Loans or the obligations of each other
Borrower shall continue to secure the Loans, and the obligations of each other
Borrower, as modified herein;
(e) covenant and agree to perform all of their respective
obligations under each of the Loan Agreements and the Loan Documents, as amended
hereby;
(f) acknowledge and agree that they have no defense, set-off,
counterclaim or challenge against the payment of any sums owing under any of the
Loan Agreements or the Loan Documents, or the enforcement of any of the terms of
the Loan Agreements or the Loan Documents, as amended hereby;
(g) acknowledge and agree that all of their representations,
warranties and covenants contained in the Loan Agreements and/or the Loan
Documents, as amended hereby, are true, accurate and correct on and as of the
date hereof as if made on and as of the date hereof;
(h) represent and covenant that the Acknowledgments of Confession of
Judgment, executed by each of the Borrowers, was voluntarily and intentionally
executed, consented to, and agreed to by such Borrower, and that those
Acknowledgments remain in full force and effect, as if set forth in full herein;
(i) consent and re-affirm the confession of judgment clauses
contained in the Loan Documents, or any of them, and acknowledge that the Bank
is relying on this representation, and each other representation contained
herein, in connection with executing this Amendment to Loan Agreements, and in
continuing the credit facilities established for the Borrowers; and
(j) represent and warrant that no Default, as defined in the
Business Loan Agreements or any of the promissory notes or the surety
agreements, now exist, or will exist upon the delivery of notice, passage of
time or both, and all information described in the Background to this Agreement
is true, accurate and complete.
4. As a condition to the execution and delivery of this Amendment to
Loan Agreements, the Borrower shall deliver to the Bank, in form and content
satisfactory to the Bank and its counsel, a certified copy of resolutions
adopted by the Board of Directors of each of the Borrowers authorizing the
execution, delivery and performance of this Amendment to Loan Agreements, and
all of the documents and instruments required by the Bank for the implementation
of this Agreement.
5. The Borrowers will pay to Bank (a) a commitment fee of $1,000 in
connection with the modification of the MDC Loan Agreement and (b) all of Bank's
out-of-pocket costs and expenses incurred in connection with the review,
preparation, negotiation, documentation and closing of this Amendment to Loan
Agreements, and the consummation of transactions contemplated hereunder,
including, but without limitation, all fees, expenses and disbursements
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EXHIBIT 10.41
of counsel retained by Bank and all fees relating to filings, recording of
documents and searches, and appraisal costs, whether or not the transaction is
consummated hereunder. In addition, the Borrower shall pay all Bank's costs and
expenses incurred in connection with the enforcement of the Loan Agreements and
the Loan Documents, including, but not limited to, those incurred in connection
with (a) the protection, exercise or enforcement of the Bank's rights with
respect to the Collateral, including, without limitation, the Bank's rights to
(i) collect or take possession of the Collateral and the proceeds thereof, (ii)
hold the Collateral, (iii) prepare the Collateral for sale or other disposition,
and (iv) sell or otherwise dispose of the Collateral, and (b) the assertion,
protection or exercise or enforcement of the Bank's rights in any proceeding
under the United States Bankruptcy Code, including (without limitation) the
preparation, filing and prosecution of (i) proofs of claim, (ii) motions for
relief from the automatic stay, (iii) motions for adequate protection, and (iv)
complaints, answers and other pleadings in adversary proceedings by or against
the Bank or relating in any way to any of the Collateral, all of which
obligations shall be secured by the Collateral.
6. To the extent of any inconsistency between the terms of this
Amendment to Loan Agreements and the terms of any of the Loan Agreements or the
other Loan Documents, the terms and conditions of this Amendment shall prevail.
All terms and conditions of the Loan Agreements and the Loan Documents not
inconsistent herewith shall remain in full force and effect and are hereby
ratified and confirmed by each of the Borrowers.
7. Any capitalized term used in this Amendment to Loan Agreements not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreements. This Amendment to Loan Agreements shall be binding upon and inure to
the benefit of the parties hereto and each of their respective successors and
assigns.
8. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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EXHIBIT 10.41
IN WITNESS WHEREOF, the Borrowers and the Bank have caused this
Amendment to Loan Agreements to be executed by their respective authorized
officers as of the day and year first above written.
ATTEST: MDC INVESTMENT HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx
Treasurer
ATTEST: MDC RESEARCH LTD.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President-
Finance
ATTEST: THE MED-DESIGN CORPORATION
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President-
Finance
CORESTATES BANK, N.A.
By: /s/ Xxxx X. Xxx Xxxxx
-------------------------------
Vice President
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