FOURTH AMENDMENT TO LOAN AGREEMENT
EXHIBIT
10.5
FOURTH AMENDMENT TO LOAN
AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT
(the "Amendment") is entered into effective as of the 1st day of
August, 2008, by and among FIFTH THIRD BANK, a Michigan
banking corporation with its office and principal place of business at 000 Xxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (the "Bank"); MEDPRO SAFETY PROJECTS, INC.,
a Nevada corporation successor by merger to MEDPRO SAFETY PRODUCTS, INC.,
a Delaware corporation successor by merger to VACUMATE, LLC, a Kentucky
limited liability company with its principal place of business at 000 Xxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Guarantor"). (Borrower and Guarantor are herein sometimes referred
to collectively as "Obligors").
RECITALS:
WHEREAS, the Borrower, Guarantor and
the Bank are parties to that certain Loan Agreement dated as of August 7, 2006,
as amended by the First Amendment thereto dated effective as of March 19, 2007,
as further amended by the First Amendment thereto dated effective as of March
19, 2007, as further amended by the Second Amendment thereto dated effective as
of June 11, 2007 and as further amended by the Third Amendment thereto dated
effective as of September 1, 2007 (as amended, the "Loan
Agreement");
WHEREAS, pursuant to the Loan Agreement
and the other Loan Documents (as such term is defined in the Loan Agreement),
the Borrower is currently indebted to the Bank for, among other things, a
revolving loan as evidenced by (a) that certain Third Amended and Restated
Revolving Promissory Note, dated September 1, 2007, in the face principal amount
of One Million Five Hundred Thousand and No/100 dollars ($1,500,000.00) (the
"Third Amended and Restated Revolving Note") and (b) that certain Amended and
Restated Term Promissory Note, dated September 1, 2007, in the original
principal amount of Five Million and No/100 Dollars ($5,000,000.00) (the
"Amended and Restated Term Note"); and
WHEREAS, the Borrower has requested and
Bank has agreed to amend the Notes and certain other Loan Documents to reflect
that the Borrower has assumed all obligation of MedPro Safety Products, Inc. a
Delaware corporation under the Loan Documents;
WHEREAS, to induce Bank to enter into
this Amendment, without which inducement Bank would be unwilling to undertake
the same, Guarantor has agreed to enter into this Amendment;
AND, WHEREAS, the Borrower, Guarantor
and Bank desire to amend the Loan Agreement and various Loan Documents, as
defined in the Loan Agreement, and to enter into additional Loan Documents, to
reflect the same and other amendments, as hereinafter provided.
NOW, THEREFORE, in consideration of the
premises and mutual covenants and agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
FOURTH AMENDED
AND RESTATED REVOLVING NOTE. Simultaneously with the execution
of this Amendment, Borrower has executed and delivered to Bank its Fourth
Amended and restated Revolving Promissory Note dated effective as of the date
hereof in the face principal amount of One Million Five Hundred Thousand and
No/100 Dollars ($1,500,000.00) (the "Fourth Amended and Restated Revolving
Note"). Borrower shall repay the Fourth amended and Restated
Revolving Note in accordance with the terms and conditions set forth therein as
the same may be supplemented, amended and/or modified from time to time, with
interest thereon at a rate set forth therein. The Fourth Amended and
Restated Revolving Note is an amendment and restatement of the existing Third
amended and Restated Revolving Note and is not a novation
thereof. The Loan agreement and all other existing Loan Documents are
hereby amended by substituting the term "Fourth Amended and Restated Revolving
Note" for "Third Amended and Restated Revolving Note."
2.
SECOND AMENDED AND
RESTATED TERM NOTE. Simultaneously with the execution of this
Amendment, borrower has executed and delivered to Bank its Second Amended and
Restated Term Promissory Note dated effective as of the date hereof in principal
amount for Four Million Five Hundred eighty-three Thousand Three Hundred
Thirty-three and 33/100 Dollars ($4,583,333.33) (the "Second Amended and
Restated Term Note"). Borrower shall repay the Second Amended and
Restated Term Note in accordance with the terms and conditions set forth therein
as the same may be supplemented, amended and/or modified from time to time, with
interest thereon at a rate set forth therein. The Second Amended and
Restated Term Note is an amendment and restatement of the existing Amended and
Restated Term Note and is not a novation thereof. The Loan Agreement
and all other existing Loan Documents are hereby amended by substituting the
term "Second Amended and Restated term Note" for "Amended and Restated Term
Note".
3.
SECOND AMENDED AND
RESTATED SECURITY AGREEMENT. Simultaneously with the execution
of this Amendment, Borrower shall execute a Second Amended and Restated Security
agreement in favor of the Bank pursuant to which the Borrower continues to grant
the Bank a security interest in all of its assets to secure all of its
obligations to the Bank under the Loan Documents pursuant to the terms of the
Security Agreement (the "Second A&R Security Agreement").
4. AMENDED AND RESTATED
GUARANTY BY GUARANTOR. Simultaneously with the execution of
this Amendment, Guarantor shall execute a guaranty in which he shall guarantee
payment to Bank of all obligations of borrower under the Loan Agreement, as
amended hereby, the Fourth amended and Restated Revolving Note and the Amended
and Restated Term Note pursuant to the terms of the guaranty (the "Fourth
A&R Guaranty").
5.
FINANCIAL
COVENANTS. The financial covenants set forth in Section
5.01(m) of the Loan agreement is hereby deleted.
6. RELATED AMENDMENTS TO LOAN
AGREEMENT AND LOAN DOCUMENTS. The Loan Agreement and the
existing Loan Documents and the definitions contained therein are hereby further
amended as follows:
a) The
term "Guaranty" shall mean the Fourth A&R guaranty executed by the Guarantor
pursuant to the Loan Agreement, as amended hereby;
b) The
terms "Indebtedness" and "Obligations" in the Loan Agreement shall include the
Borrower's Fourth Amended and Restated Revolving Note and Second Amended and
Restated Term Note, and any amendments or modifications thereof and
substitutions and replacements therefore;
c) All
references to "Loan Documents" shall mean all Loan Documents existing as of this
date, plus Fourth Amended and Restated Revolving Note, the Second Amended and
Restated term Note, the Fourth A&R Guaranty, the Second A&R Security
Agreement and this Fourth Amendment to the Loan Agreement;
d) The
term "Loans" shall mean, in the aggregate, the two (2) loans from Bank to
Borrower as evidenced by the Fourth Amended and Restated Revolving Note and
Second Amended and Restated Term Note; and
e) All
references to "Notes" are amended to mean collectively, the Borrower's Fourth
Amended and Restated Revolving Note and Second Amended and Restated Term Note,
and any amendments or modifications thereof and substitutions and replacements
therefore; and
f) All
references to "Security Documents" are amended to include the Second A&R
Security Agreement.
7.
SECURITY FOR
INDEBTEDNESS. The Indebtedness evidenced by the Notes shall be
secured by the Security Documents and the Collateral, as defined in the Loan
Agreement, as hereby amended.
8. DOCUMENTS REQUIRED AS A
CONDITION PRECEDENT TO BANK'S OBLIGATIONS. Bank shall have no
obligation under this Amendment or to advance funds under the Fourth Amended and
Restated Revolving Note or the Second Amended and Restated Term Note unless and
until Bank has received all of the following documents, duly executed and inform
satisfactory to Bank:
a) This
Fourth Amendment to Loan Agreement;
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b) The
Fourth Amended and Restated Revolving Note;
c) The
Second Amended and Restated Term Note;
d) The
Fourth A&R Guaranty;
e) The
Second A&R Security agreement;
f) Copies,
certified as of the date hereof, of resolutions of the Directors of the Borrower
authorizing the execution, delivery, and performance of this Fourth Amendment to
Loan Agreement, the Notes, the Second A&R Security Agreement and the other
Loan Documents and each other document to be delivered pursuant hereto;
and
g) The
amendments to such other Loan Documents and such other documents or instruments
s the Bank may reasonably require.
9.
REPRESENTATIONS AND
WARRANTIES. Borrower and Guarantor reiterate as of this date
all representations and warranties contained in the Loan Agreement, each of
which shall be deemed to be continuing warranties and representations until such
time s all Debt evidenced by the Loan Agreement and other Loan Documents, as
hereby amended, shall have been paid in full and Borrower and Guarantor have no
further liability to Bank.
10. COVENANTS. Borrower
and Guarantor agree that all covenants contained in the Loan Agreement and other
Loan Documents, as hereby amended, are and hereafter shall be binding upon
Borrower and Guarantor until payment in full of all obligations to Bank under
the Loan Documents, unless otherwise consented to in writing by
Bank.
11. NO DEFENSES OR SETOFFS;
RELEASE. There are no defenses, credits, or setoffs to the
payment of the Debt evidenced by the Notes or the other Loan Documents or the
enforceability of the Notes or the other Loan Documents against the Bank
relating to the transactions evidenced by the Notes, the Loan Agreement, this
Amendment, the other Loan Documents or the transactions relating
thereto. The obligations described herein, in the Notes and in the
other Loan Documents are absolute and non-contingent. Each Obligor
acknowledges and agrees that: (a) such Obligor has no claim or cause
of action against the Bank or any Affiliate of Fifth Third Bancorp (or any of
their directors, officers, employees, or agents) (collectively, the "Bank
Released Parties"); and (b) each Bank Released Party has heretofore property
performed and satisfied in a timely manner all of such party's obligations to
Obligors. Bank wishes, and each Obligor agrees, to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances, or
matters would impair or otherwise adversely affect Bank's rights, interests,
collateral security, or remedies. Therefore, each Obligor, on behalf
of itself and all of its successors and assigns and any and all other entities
and persons claiming rights through such Obligor, unconditionally releases,
acquits, and forever discharges each Bank Released Party and their successors
and assigns (collectively, the "Dischargees") from (i) any and all liabilities,
obligations, duties, or indebtedness of any of the Dischargees to any Obligor,
whether known or unknown, arising prior to the date hereof, and (ii) any and all
claims, offsets, causes of action, suits, or defenses, whether know or unknown,
which any Obligor might otherwise have against any of the Dischargees on account
of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance, or matter of any
kind which existed, arose or occurred at any time prior to the date
hereof. This release shall survive any termination of this
Amendment.
12. GOVERNING
LAW. This Amendment shall be governed by and construed and
enforced in accordance with the substantive law of the Commonwealth of
Kentucky.
13. COUNTERPART
EXECUTION. This Amendment may be signed by each party upon a
separate copy, and in such case one counterpart of this Amendment shall consist
of enough of such copies to reflect the signature of each party. This
amendment may be executed in two or more counterparts, each of which shall be
deemed an original.
14. FUTURE
NEGOTIATIONS. The Borrower and Guarantor acknowledge and agree
that (i) the Bank has no obligation whatsoever to discuss, negotiate or to agree
to any restructuring of the Notes or any modification, amendment, restructuring
or reinstatement of the other Loan Documents; (ii) that if there are any future
discussions among the Bank and the Borrower or Guarantor concerning any such
restructuring, modification, amendment or reinstatement, then no restructuring,
modification, amendment, reinstatement, compromise, settlement, agreement or
understanding with respect to the Notes, the other Loan Documents, the
collateral or any aspect thereof, shall constitute a legally binding agreement
or contract or have any force or effect whatsoever unless and until reduced in
writing and signed by authorized representatives of the parties to be bound, and
that none of the parties hereto shall assert or claim in any legal proceedings
or otherwise that any such agreement exists except in accordance with the terms
of this Section.
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15. FEES AND EXPENSES OF
BANK. Simultaneous with the execution of this Amendment, the
Borrower shall pay the Bank all out-of-pocket expenses incurred by
the Bank in connection with the transactions contemplated hereunder, including,
but not limited to, the fees and expenses of the Bank and its counsel incurred
in preparing the revising this Fourth Amendment to Loan Agreement, the other
Loan Documents and all related documents.
16. LIMITED EFFECT OF
AMENDMENT. Except as specifically amended herein or in the
other documents executed in connection with this Amendment, the terms and
conditions of the Loan Agreement, the Loan Documents, and all other existing
agreements between the parties are unaffected by this Amendment and shall
continue to be binding upon Borrower, Guarantor and Bank.
(Signature
Page Follows)
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IN WITNESS WHEREOF, the parties have
executed this Amendment to Loan Agreement as of the day, month and year first
above written.
FIFTH
THIRD BANK,
a
Michigan banking corporation
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By:
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/s/ Xxxxx
Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx
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Title:
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AVP
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a Nevada
corporation
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By:
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/s/ W. Xxxxx
Xxxxxx
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Name:
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Xxxxxxx Xxxxx Xxxxxx
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Title:
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CEO
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/s/ W. Xxxxx
Xxxxxx
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XXXXXXX
XXXXX XXXXXX
STATE OF
KENTUCKY
)
)
COUNTY OF JEFFERSON )
COUNTY OF JEFFERSON )
The foregoing instrument was
acknowledged before me this 3rd
day of February, 2009 by
Xxxxxxx Xxxxx Xxxxxx, as Guarantor.
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/s/ Xxxx X. Xxxxxxx
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NOTARY
PUBLIC
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My
commission expires: 8/30/09
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SEAL
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