CONSENT TO THIRD ADDENDUM TO CREDIT AGREEMENT,
RATIFICATION OF GUARANTY AND WAIVER OF CLAIMS
THIS CONSENT TO THIRD ADDENDUM TO CREDIT AGREEMENT, RATIFICATION OF GUARANTY AND
WAIVER OF CLAIMS ("Consent and Ratification") is made by Xxxx Xxxxxxxxx
("Personal Guarantor") and delivered to Xxxxx Fargo Bank, National Association
("Bank") effective as of December 28, 2005.
RECITALS:
A. American CareSource Holdings, Inc. ("Borrower) and the Bank entered into a
Credit Agreement, dated as of December 1, 2004, as amended from time to
time ("Credit Agreement") pursuant to which the Bank has made the Line
available to the Borrower. The Borrower has requested that the Bank
increase the Line and extend the Line Availability Period, as evidenced
by a promissory note, dated December 28, 2005, in the original principal
amount of Five Million Dollars ($5,000,000.00) ("New Revolving Note"). In
conjunction with the New Revolving Note, the Borrower and Bank entered
into a Third Addendum to Credit Agreement, dated as of December 28,2005
(the "Third Addendum").
B. At the Borrowers request, the Personal Guarantor has agreed to (i)
unconditionally guaranty the repayment of the New Revolving Note pursuant
to a written guaranty, dated December 28, 2005, a copy of which is
attached hereto as Exhibit "A" (the "Guaranty") and (ii) authorize the
Bank to make, upon the occurrence of an Event of Default, an advance under
the Personal Guarantor's personal line of credit at the Bank and use the
proceeds of such advance to reduce the Borrower's obligations under the
New Revolving Note.
C. The Bank has agreed to increase the credit amount of the Line and extend
the Line Availability Period in accordance with the terms of the Third
Addendum, provided that all of the conditions precedent set out in the
Third Addendum are satisfied in full, including, without limitation, the
execution and delivery to the Bank of (i) the Guaranty and (ii) this
Consent and Ratification by the Personal Guarantor.
NOW THEREFORE, the Personal Guarantor agrees:
1. The Recital Paragraphs are incorporated in this Consent and Ratification
as though fUlly set forth herein. The Personal Guarantor has been provided
with a copy of the New Revolving Note and Third Addendum and acknowledges
receipt of the same.
2. The Personal Guarantor hereby consents to the Third Addendum and the New
Revolving Note.
3. The Guarantor hereby acknowledges that the Guaranty secures the New
Revolving Note, including all extensions, renewals, replacements or
refinancings thereof, which may be owed by the Borrower to the Bank now or
in the future.
4. The Guarantor hereby acknowledges and agrees that his personal line of
credit with the Bank that is evidenced by a promissory note, dated August
9, 2005, in the initial principal amount of $15,000,000.00 (and any
extensions, renewals, replacements or refinancings thereof) ("Guarantor
Line of Credit") will be reduced by Three Million Nine Hundred Twenty-Five
Thousand Dollars ($3925,000.00) to effect the Guarantor's support of the
New Revolving Note and all extensions, renewals, replacements or
refinancings thereof. The Guarantor further agrees that upon (i) a default
by the Borrower under the terms of the Credit Agreement and/or the New
Revolving Note or (ii) the maturity date of the New Revolving Note, the
Bank is hereby authorized to make an advance under the Guarantor Line of
Credit and apply the proceeds of such advance to the New Revolving Note.
The Guarantor further agrees that in the event the Guarantor Line of
Credit is not renewed or extended upon its expiration or is otherwise
terminated, the Guarantor shall provide to the Bank a standby letter of
credit, or some other form of collateral that would be acceptable to the
Bank in its sole discretion in support of the obligations owed by the
Borrower under the New Revolving Note, issued by a banking institution
acceptable to the Bank in an amount not less than Three Million Nine
Hundred Twenty-Five Thousand Dollars ($3,925,000.00), naming the Bank as
the beneficiary thereunder.
5. The Guarantor shall, within 150 days of each calendar year end, provide
his current personal financial statement certified as correct and promptly
provide upon filing, a copy of his most recent annual federal income tax
return and all schedules attached to it.
6. Except for "Core Proceedings" under the United States Bankruptcy Code, the
Bank and the Guarantor agree to submit to binding arbitration all claims,
disputes and controversies between or among them, whether in tort,
contract or otherwise (and their respective employees, officers,
directors, attorneys, and other agents) arising out of or relating to in
any way the Guaranty, this Consent and Ratification, the Credit Agreement,
and/or other documents and agreements executed in conjunction therewith
and their negotiation, execution, collateralization, administration,
repayment, modification, extension, substitution, formation, inducement,
enforcement, default or termination. Any arbitration proceeding will (i)
proceed in Des Moines, Iowa; (ii) be governed by the Federal Arbitration
Act (Title 9 of the United States Code); and (iii) be conducted in
accordance with the Commercial Arbitration rules of the American
Arbitration Association ("AAA").
This arbitration requirement does not limit the right of either party to
(i) foreclose against collateral; (ii) exercise self-help remedies
relating to collateral or proceeds of collateral such as setoff or
repossession; or (iii) obtain provisional ancillary remedies
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such as replevin, injunctive relief, attachment or the appointment of a
receiver before, during or after the pendency or any arbitration
proceeding. This exclusion does not constitute a waiver of the right or
obligation of either party to submit any dispute to arbitration, including
those arising from the exercise of the actions detailed in sections (i),
(ii) and (iii) of this Section.
Any arbitration proceeding will be before a single arbitrator selected
according to the Commercial Arbitration Rules of the AAA. The arbitrator
will be a neutral attorney who has practiced in the area of commercial law
for a minimum of ten years. The arbitrator will determine whether or not
an issue is arbitratable and will give effect to the statutes of
limitation in determining any claim. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
In any arbitration proceeding the arbitrator will decide (by documents
only or with a hearing at the arbitrators discretion) any pre-hearing
motions which are similar to motions to dismiss for failure to state a
claim or motions for summary adjudication.
In any arbitration proceeding, discovery will be permitted and will be
governed by the Iowa Rules of Civil Procedure. All, discovery must be
completed no later than 20 days before the hearing date and within 180
days of the commencement of arbitration proceedings. Any requests for an
extension of the discovery periods, or any discovery disputes, will be
subject to final determination by the arbitrator upon a showing that the
request for discovery is essential for the party's presentation and that
no alternative means for obtaining information is available.
The arbitrator shall award costs, and expenses of the arbitration
proceeding in accordance with the provisions of the New Revolving Note.
This Section shall survive the payment of all obligations to the Bank.
7. The Guarantor does hereby release and forever discharge the Bank, 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 Guarantor now has
or may ever have had against them, if the circumstances giving rise to
such causes of action, suits, claims and demands (a) are related in any
manner whatsoever to the transactions which are the subject of this
Consent and Ratification and (b) arose prior to the date of this Consent
and Ratification.
8. This Consent and Ratification shall be binding upon and inure to the
benefit of the Guarantor and the Sank and their respective successors and
assigns.
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9. This Consent and Ratification shall be construed in accordance with the
laws of Iowa applicable to contracts performed entirely within the State.
Any action to enforce the provisions of this Consent and Ratification
or arising from the actions of any party in connection therewith, shall be
brought in the United States District Court for the Southern District of
Iowa or in the Iowa District Court in Polk County, Iowa, except such
action as may be necessary by the Bank to protect, preserve and realize
its security interest in collateral located in another jurisdiction.
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, this Consent and Ratification was executed effective as of
the day and year first above written.
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
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