WAIVER, JOINDER AND FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.1
WAIVER, JOINDER AND FIRST AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS WAIVER, JOINDER AND FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this
“Amendment”) is made and entered into as of February 11, 2011, by and between each of ZYNEX, INC.,
a Nevada corporation, and ZYNEX MEDICAL, INC., a Colorado corporation (individually and
collectively, “Original Borrower”), and ZYNEX MONITORING SOLUTIONS INC., a Colorado corporation and
ZYNEX NEURODIAGNOSTIC INC., a Colorado corporation (individually and collectively, “New Borrower,”
and collectively with Original Borrower, the “Borrower”), and CAPITALSOURCE BANK, a California
industrial bank (the “Lender”).
RECITALS
A. Pursuant to that certain Revolving Credit and Security Agreement dated March 19, 2010, by
and among the Original Borrower and Lender (as amended hereby and as amended, supplemented,
modified and restated from time to time, collectively, the “Loan Agreement”), the Lender agreed to
make available to the Original Borrower the Revolving Facility.
B. Section 8.14 of the Loan Agreement restricts Original Borrower from forming or
acquiring any new Subsidiary unless such new Subsidiary becomes a co-Borrower under the Loan
Agreement.
C. Original Borrower has requested that Lender (a) make the proceeds of the Revolving Facility
available to New Borrower, (b) waive certain defaults as more particularly described herein, and
(c) consent to (i) the creation of New Borrower, (ii) the making of certain other amendments to the
Loan Agreement as described herein, and (iii) the amendment of Schedules to the Loan Agreement to
reflect the joinder of the New Borrower to the Loan Agreement (collectively, the “Transactions”),
and Lender has agreed to do so upon the terms and subject to the conditions set forth herein and in
the Loan Agreement provided (among other things) that the parties hereto execute and deliver this
Amendment and otherwise comply with the agreements set forth herein and in the Loan Agreement.
D. In furtherance of the foregoing, the parties hereto desire to enter into this Amendment to
amend the Loan Agreement in certain respects as provided herein.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions, premises and
other mutual covenants set forth in this Amendment, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions. Unless otherwise defined herein, all capitalized terms used
and not defined herein shall have the meanings assigned to such terms in the Loan Agreement.
Section 2. Waiver. Certain Events of Default have occurred and are continuing under
the Loan Agreement as a result of the failure of Original Borrower to satisfy (a) the Minimum
EBITDA covenant set forth in Section 1 of Annex I of the Loan Agreement for the
calendar months ending March 31, 2010, April 30, 2010, May 31, 2010, June 30, 2010, July 31, 2010,
October 31, 2010 and November 30, 2010, in violation of Section 9.1 of the Loan Agreement,
(b) the Minimum Fixed Charge Coverage Ratio set forth in Section 2 of Annex I of
the Loan Agreement for the calendar month ending April 30, 2010, in violation of Section
9.1 of the Loan Agreement, and (c) the Minimum Cash Velocity covenant set forth in Section
3 of Annex I of the Loan Agreement for the calendar months ending March 31, 2010, May
31, 2010, June 30, 2010, September 30, 2010, October 31, 2010 and November 30, 2010, in
violation
of Section 9.1 of the Loan Agreement (collectively, the “Existing Events of Default”).
Subject to the conditions precedent or concurrent, representations and warranties, covenants and other
agreements set forth in this Amendment, Lender hereby waives the Existing Events of Default.
Except as provided in the immediately preceding sentence, such waiver shall not constitute (i) a
modification or alteration of the terms, conditions or covenants of the Loan Agreement or any
document entered into in connection therewith, (ii) a waiver, release or limitation upon the
exercise by Lender of any of its rights, legal or equitable, hereunder or under the Loan Agreement
or any Loan Document other than with respect to the Existing Events of Default or (iii) a waiver of
any future breach or default by any Borrower of any provision of the Loan Agreement or any other
Loan Document. Except as set forth above, Lender reserves any and all rights and remedies that it
has had, has or may have under the Loan Agreement and each Loan Document.
Section 3. Addition and Joinder of New Borrower. Original Borrower, New Borrower and
Lender agree that, by execution and delivery of this Amendment and satisfaction of the other
conditions set forth herein, New Borrower shall constitute and be deemed a Borrower under and for
purposes of the Loan Agreement and all other Loan Documents. Accordingly, by its execution hereof,
New Borrower hereby agrees as of the Effective Date (as defined below) (i) to be a party to the
Loan Agreement as a Borrower thereunder, (ii) that each will be deemed to have made all of the
representations and warranties of a Borrower under the Loan Agreement and to have and be bound,
jointly and severally with Original Borrower, by all of the conditions, obligations, appointments,
covenants, representations, warranties and other agreements of a Borrower under and as set forth in
the Loan Agreement, the Loan Documents and this Amendment, (iii) that it grants and confirms the
grant of a security interest in its Collateral under and pursuant to Section 4.1 of the
Loan Agreement and that it shall execute and deliver all Loan Documents and shall perform all steps
required by the Lender to perfect the Lender’s Liens on the Collateral, and (iv) to promptly
execute all further documentation, amendments, supplements, schedules, agreements and/or financing
statements required by Lender consistent and in connection with the Loan Agreement and this
Amendment, including, without limitation, the New Borrower Loan Documents (as defined below). In
addition, Original Borrower hereby reaffirms and agrees to be bound, jointly and severally with New
Borrower, by all of the conditions, obligations, appointments, covenants, representations,
warranties and other agreements of a Borrower under and as set forth in the Loan Agreement, Loan
Documents and this Amendment, and hereby agrees to promptly execute all further documentation,
amendments, supplements, schedules, agreements and/or financing statements required by Lender
consistent and in connection with the Loan Agreement and this Amendment, including, without
limitation, the New Borrower Loan Documents, as applicable. Notwithstanding anything to the
contrary contained in this Amendment and the inclusion of each New Borrower as a Borrower for
purposes of the Loan Agreement and all other Loan Documents as of the Effective Date, no New
Borrower shall be included for the purpose of determining the Borrowing Base except in accordance
with the provisions of Section 14 of this Amendment.
Section 4. Grant of Security Interest; Collateral.
(a) To secure the payment and performance in full of the Obligations, each New Borrower hereby
grants to Lender a continuing security interest in and Lien upon, and pledges to Lender, all of its
right, title and interest in and to all of the Collateral, which security interest is intended to
be a first priority security interest.
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(b) Notwithstanding the foregoing provisions of this Section 4, such grant of a
security interest shall not extend to, and the term “Collateral” shall not include, any General
Intangibles of New Borrower, to the extent that (i) such General Intangibles are not assignable or
capable of being encumbered as a matter of law or under the terms of any government document
applicable thereto (but solely to the extent that any such restriction shall be enforceable under
applicable law) without the consent of the licensor thereof or other applicable party thereto, and
(ii) such consent has not been
obtained; provided, however, that the foregoing grant of a security interest
shall extend to, and the term “Collateral” shall include, each of the following: (a) any General
Intangible which is in the nature of an Account or a right to the payment of money or a proceed of,
or otherwise related to the enforcement or collection of, any Account or right to the payment of
money, or goods which are the subject of any Account or right to the payment of money, (b) any and
all proceeds of any General Intangible to the extent that the proceeds are not themselves General
Intangibles subject to this Section 4.1(b), and (c) upon obtaining the consent of any such
licensor or other applicable party with respect to any such otherwise excluded General Intangible,
such General Intangible as well as any and all proceeds thereof that might theretofore have been
excluded from such grant of a security interest and from the term “Collateral.”
(c) Each New Borrower hereby grants, and ratifies any prior, authorization for Lender to have
filed in any UCC jurisdiction any initial financing statements or amendments thereto indicating
“all assets of the debtor” or similar language as the collateral description.
(d) If any New Borrower shall at any time hold or acquire a Commercial Tort Claim, such New
Borrower shall immediately notify Lender in a writing signed by such New Borrower of the
particulars thereof and grant to Lender in such a writing a security interest therein and in the
proceeds thereof, all upon the terms of this Amendment, with such writing to be in form and
substance satisfactory to Lender.
(e) Upon the execution and delivery of this Amendment, and upon the proper filing of the
necessary financing statements, without any further action, each New Borrower represents and
warrants that (i) Lender will have a good, valid and perfected first priority Lien and security
interest in the Collateral, subject to no transfer or other restrictions or Liens of any kind in
favor of any other Person except for Permitted Liens and (ii) no financing statement relating to
any of the Collateral is on file in any public office except those (i) on behalf of Lender and (ii)
in connection with Permitted Liens.
Section 5. Amendment to Loan Agreement.
(a) The definition of “Change of Control” set forth in Section 1.2 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
“Change of Control” shall mean, with respect to any Borrower, the occurrence of
any of the following: (i) a merger, consolidation, reorganization, recapitalization or
share or interest exchange, sale or transfer or any other transaction or series of
transactions in which its stockholders, managers, partners or interest holders immediately
prior to such transaction or series of transactions receive, in exchange for the stock or
interests owned by them, cash, property or securities of the resulting or surviving entity
or any Affiliate thereof, and, as a result thereof, Persons who, individually or in the
aggregate, were holders of twenty-five percent or more of its voting stock, securities or
equity, partnership or ownership interests immediately prior to such transaction or series
of transactions hold less than twenty-five percent of the voting stock, securities or other
equity, partnership or ownership interests of the resulting or surviving entity or such
Affiliate thereof, calculated on a fully diluted basis, (ii) a direct or indirect sale,
transfer or other conveyance or disposition, in any single transaction or series of
transactions, of all or substantially all of its assets, (iii) the initial public offering
of its securities (other than Zynex, Inc.), (iv) any “change in/of control” or “sale” or
“disposition” or similar event as defined in any document governing indebtedness of such
Person which gives the holder of such indebtedness the right to accelerate or otherwise
require payment of such indebtedness prior to the maturity date thereof, or (v) the
replacement of a majority of the board of directors of any Borrower over a one-year period
from the directors who constituted the board of directors of such Borrower at the
beginning of such period and such replacement shall not have been approved by a vote of
at least a majority of the board of directors of such Borrower then still in office who
either are members of such board of directors at the beginning of such period or whose
election as a member of such board of directors was previously so approved.
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(b) Section 1 of Annex I of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
1) Minimum EBITDA
For each Test Period, measured as of the last day of each calendar month ending after
the Closing Date, EBITDA shall not be less than the amount set forth opposite such date:
| Date | EBITDA | |||
March 31, 2010 |
$ | 750,000 | ||
April 30, 2010 |
$ | 850,000 | ||
May 31, 2010 |
$ | 850,000 | ||
June 30, 2010 |
$ | 850,000 | ||
July 31, 2010 |
$ | 1,000,000 | ||
August 31, 2010 |
$ | 1,000,000 | ||
September 30, 2010 |
$ | 1,000,000 | ||
October 31, 2010 |
$ | 1,000,000 | ||
November 30, 2010 |
$ | 1,000,000 | ||
December 31, 2010 |
$ | 700,000 | ||
January 31, 2011 |
$ | 425,000 | ||
February 28, 2011 |
$ | 425,000 | ||
March 31, 2011 |
$ | 425,000 | ||
April 30, 2011 |
$ | 475,000 | ||
May 31, 2011 |
$ | 475,000 | ||
June 30, 2011 |
$ | 475,000 | ||
July 31, 2011 |
$ | 600,000 | ||
August 31, 2011 |
$ | 600,000 | ||
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| Date | EBITDA | |||
September 30, 2011 |
$ | 600,000 | ||
October 31, 2011 |
$ | 700,000 | ||
November 30, 2011 |
$ | 700,000 | ||
December 31, 2011 |
$ | 700,000 | ||
January 31, 2012 |
$ | 515,000 | ||
February 29, 2012 |
$ | 515,000 | ||
March 31, 2012 |
$ | 515,000 | ||
April 30, 2012 |
$ | 575,000 | ||
May 31, 2012 |
$ | 575,000 | ||
June 30, 2012 |
$ | 575,000 | ||
July 31, 2012 |
$ | 725,000 | ||
August 31, 2012 |
$ | 725,000 | ||
September 30, 2012 |
$ | 725,000 | ||
October 31, 2012 |
$ | 850,000 | ||
November 30, 2012 |
$ | 850,000 | ||
December 31, 2012 |
$ | 850,000 | ||
January 31, 2013 and the last day of each
calendar month thereafter |
$ | 625,000 | ||
(c) Section 3 of Annex I of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
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3) Minimum Cash Velocity
For each Test Period, measured as of the last day of each calendar month ending
after the Closing Date, Collections of Accounts of Borrowers collectively shall not
be less than the greater of (a) 95% of Borrowers’ net revenue for the Revenue Period
and (b) the amount set forth opposite such date:
| Date | Collections | |||
March 31, 2010 |
$ | 3,500,000 | ||
April 30, 2010 |
$ | 4,000,000 | ||
May 31, 2010 |
$ | 4,250,000 | ||
June 30, 2010 |
$ | 4,750,000 | ||
July 31, 2010 |
$ | 5,250,000 | ||
August 31, 2010 |
$ | 5,750,000 | ||
September 30, 2010 |
$ | 6,250,000 | ||
October 31, 2010 |
$ | 6,750,000 | ||
November 30, 2010 |
$ | 7,250,000 | ||
; provided, however, that for each Test Period, measured as of the
last day of each calendar month ending after November 30, 2010, collections of
Accounts of Borrowers collectively shall not be less than 90% of Borrowers’ net
revenue for the Revenue Period, provided that, upon any violation of or
failure to comply with this covenant, Lender shall have the right, in its sole
discretion, to consider for all purposes under the Agreement as though Borrower
actually collected Accounts equal to such minimum required amount.
(d) The Schedules to the Loan Agreement are hereby amended and restated as set forth on
Exhibit 1 hereto, which Exhibit 1 is incorporated herein and made a part
hereof and of the Loan Agreement.
Section 6. Representations and Warranties.
(a) Notwithstanding any other provision of this Amendment, each Borrower hereby (i) confirms
and makes all of the representations and warranties set forth in the Loan Agreement and other Loan
Documents with respect to such Borrower, this Amendment and the New Borrower Loan Documents as of
the date hereof and as of the Effective Date and confirms that they are true and correct, (ii)
represents and warrants that they are Affiliates of each other, and (iii) specifically represents
and warrants to Lender that it has good and marketable title to all of its respective Collateral,
free and clear of any Lien or security interest in favor of any other Person (other than Permitted
Liens).
(b) Each Borrower hereby represents and warrants as of the date of this Amendment and as of
the Effective Date as follows: (i) it is duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation; (ii) the execution, delivery and performance
by it of this Amendment and the New Borrower Loan Documents, as applicable, are within its powers,
have been duly authorized, and do not contravene (A) its articles of incorporation, bylaws, or
other organizational documents, or (B) any applicable law; (iii) no consent, license, permit,
approval or authorization of, or registration, filing or declaration with any Governmental
Authority or other Person, is required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment or the New Borrower Loan Documents, as applicable, by
or against it; (iv) this Amendment and the New Borrower Loan Documents, as applicable, have been
duly executed and delivered by it; (v) this Amendment and the New Borrower Loan Documents, as
applicable, constitute its legal, valid and binding obligations enforceable against it in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally or by general principles of equity; and
(vi) it is not in default under the Loan Agreement and no Default or Event of Default exists, has
occurred or is continuing.
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Section 7. Expenses. Borrower shall pay all costs and expenses incurred by Lender or
any of its Affiliates, including, without limitation, documentation and diligence fees and
expenses, all search, audit, appraisal, recording, professional and filing fees and expenses and
all other out-of-pocket charges and expenses (including, without limitation, UCC and judgment and
tax lien searches and UCC filings and fees for post-Closing UCC and judgment and tax lien searches)
and reasonable attorneys’ fees and expenses, in connection with entering into, negotiating,
preparing, reviewing and executing this Amendment and the New Borrower Loan Documents contemplated
hereby and all related agreements, documents and instruments, including, without limitation, the
UCC Financing Statements and searches required hereunder and under the Loan Agreement, and all of
the same may be charged to Borrower’s account and shall be part of the Obligations. If Lender or
any of its Affiliates uses in-house counsel for any of the purposes set forth above Borrower
expressly agrees that its Obligations include reasonable charges for such work commensurate with
the fees that would otherwise be charged by outside legal counsel selected by Lender or such
Affiliate in its sole discretion for the work performed. In addition and without limiting the
foregoing, Borrower shall pay all taxes (other than taxes based upon or measured by Lender’s income
or revenues or any personal property tax), if any, in connection with the filing of the financing
statements therefor pursuant to the Loan Documents.
Section 8. References Within Other Documents. (i) Each reference in the Loan
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall
mean and be a reference to the Loan Agreement, taken together with this Amendment, (ii) each
reference in any other Loan Document to the “Loan Agreement” shall mean and be a reference to the
Loan Agreement, taken together with this Amendment, and (iii) each reference herein to the Loan
Agreements shall be deemed to include this Amendment. Except as specifically amended hereby, the
Loan Agreement and all other Loan Documents shall remain in full force and effect and the terms
thereof are expressly incorporated herein and are ratified and confirmed in all respects. This
Amendment is not intended to be or to create, nor shall it be construed as or constitute, a
novation or an accord and satisfaction but shall constitute an amendment of the Loan Agreement.
The parties hereto agree to be bound by the terms and conditions of the Loan Agreement as amended
by this Amendment as though such terms and conditions were set forth herein in full. The
execution, delivery and effectiveness of this Amendment shall not, except as expressly provided in
this Amendment, operate as a waiver of any right, power or remedy of Lender, nor constitute a
waiver of any provision of the Loan Agreement or any other Loan Document or any other documents,
instruments and agreements executed or delivered in connection therewith or of any Default or Event
of Default under any of the foregoing whether arising before or after the Effective Date or as a
result of performance hereunder.
Section 9. Governing Law and Jury Trial. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND SHALL BE SUBJECT
TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE LOAN AGREEMENT.
Section 10. Headings and Counterparts. The captions in this Amendment are intended
for convenience and reference only and do not constitute and shall not be interpreted as part of
this Amendment and shall not affect the meaning or interpretation of this Amendment. This
Amendment may be executed in one or more counterparts, all of which taken together shall constitute
but one and the same instrument. This Amendment may be executed by facsimile transmission, which
facsimile signatures shall be considered original executed counterparts for all purposes, and each
party to this Amendment
agrees that it will be bound by its own facsimile signature and that it accepts the facsimile
signature of each other party to this Amendment.
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Section 11. Amendments. This Amendment may not be changed, modified, amended,
restated, waived, supplemented, discharged, canceled or terminated orally or by any course of
dealing or in any other manner other than by the written agreement of Lender and Borrower. This
Amendment shall be considered part of the Loan Agreement for all purposes under the Loan Agreement.
The New Borrower Loan Documents shall be considered Loan Documents for all purposes under the Loan
Agreement and other Loan Documents.
Section 12. Entire Agreement. This Amendment, the Loan Agreement other Loan Documents
and New Borrower Loan Documents constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersedes all prior agreements and understandings, if
any, relating to the subject matter hereof and thereof and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties. There are no unwritten
oral agreements between the parties.
Section 13. Miscellaneous. Whenever the context and construction so require, all
words used in the singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the neuter shall include
the masculine and feminine. This Amendment shall inure to the benefit of Lender, all future
holders of any note, any of the Obligations or any of the Collateral and all Transferees, and each
of their respective successors and permitted assigns. Borrower may not assign, delegate or
transfer this Amendment or any of its rights or obligations under this Amendment without the prior
written consent of Lender. No rights are intended to be created under this Amendment for the
benefit of any third party, creditor or incidental beneficiary of Borrower. Nothing contained in
this Amendment shall be construed as a delegation to Lender of Borrower’s duty of performance,
including, without limitation, any duties under any account or contract in which Lender has a
security interest or Lien. This Amendment shall be binding upon each Borrower and their
respective successors and assigns.
Section 14. Effectiveness. This Amendment shall be effective as of the date first set
forth above on the date (the “Effective Date”) upon which the following conditions precedent are
satisfied:
(a) each New Borrower shall have delivered to Lender (i) the Organizational and Good Standing
Documents of such New Borrower (including resolutions of the board of directors or managers (or
other applicable governing body) and, if required, stockholders, members or other equity owners
authorizing the execution, delivery and performance of this Amendment and the transactions
contemplated hereby), all satisfactory in form and substance to Lender, (ii) a certificate of the
secretary as to the incumbency and signature of the Persons executing the Loan Documents, in form
and substance acceptable to Lender, and (iii) the written legal opinion of counsel for New
Borrowers, satisfactory in form and substance to Lender and its legal counsel;
(b) each Borrower shall have delivered to Lender an executed counterpart of this Amendment
duly executed by an authorized officer of each such Borrower and each other document, agreement or
instrument reasonably requested by Lender in connection with this Amendment, each satisfactory in
form and substance to Lender;
(c) no Default or Event of Default shall have occurred and be continuing, unless such Default
or Event of Default has been otherwise specifically waived in writing by Lender;
(d) the representations and warranties contained in this Amendment and in
the Agreement and the other Loan Documents shall be true and correct in all material respects;
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(e) receipt by Lender of a Solvency Certificate, in each case duly executed by New Borrowers;
(f) receipt by Lender of an Officer’s Certificate, in each case duly executed by New Borrower;
(g) execution and delivery of a Pledge Agreement by Zynex, Inc. reflecting its ownership of
100% of the capital stock of each New Borrower, satisfactory in form and substance to Lender and
its legal counsel;
(h) review and approval by Lender of an updated Borrowing Certificate which includes
calculations of the Borrowing Base with respect to New Borrowers in addition to Existing Borrowers;
(i) Lender shall have received such consents, approvals and agreements, including, without
limitation, any applicable Landlord Waivers and Consents with respect to any and all leases set
forth on Schedule 7.4A of the Agreement, from such third parties as Lender and its legal
counsel shall determine are necessary or desirable with respect to (i) the Loan Documents and/or
the transactions contemplated thereby, and/or (ii) claims against New Borrowers or any New
Borrower’s Collateral, each satisfactory in form and substance to Lender and its legal counsel;
(j) Borrowers shall be in compliance with Section 8.5 of the Agreement, and Lender
shall have received copies of all insurance policies or binders, original certificates of all
insurance policies of Borrowers, including New Borrowers, confirming that they are in effect and
that the premiums due and owing with respect thereto have been paid in full and naming Lender as
loss payee or additional insured, as appropriate;
(k) the receipt by Lender of a report of the Uniform Commercial Code financing statement, tax
and judgment lien searches performed with respect to each New Borrower in each jurisdiction
determined by Lender in its sole discretion, and such report shall show no liens on the Collateral
(other than Permitted Liens);
(l) each document (including without limitation, any UCC financing statement) required by any
Loan Document or under law or requested by Lender to be filed or recorded in order to create, in
favor of Lender, a perfected first priority security interest in or lien upon such Collateral owned
by New Borrower and evidence of each such filing, registration or recordation and of the payment by
Borrower of any necessary fee, tax or expense relating thereto;
(m) the receipt by Lender of all licenses and permits required for each New Borrower to
conduct its business;
(n) each New Borrower shall have executed an IRS Form 8821 with the appropriate office of the
Internal Revenue Service; and
(o) receipt by Lender of all fees, charges and expense payable to Lender on or prior to the
Effective Date pursuant to this Amendment and the Loan Documents including a fully earned and
non-refundable amendment fee in the amount of $25,000, and each Borrower hereby authorizes Lender
to charge such amounts as an Advance under the Revolving Facility.
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Section 15. Release by Borrower. By execution of this Amendment, each Borrower
acknowledges and confirms that Borrower does not have any offsets, defenses or claims against
Lender, or any of their present or former subsidiaries, affiliates, officers, directors,
shareholders, employees, agents, representatives, attorneys, predecessors, successors or assigns
whether asserted or unasserted as of the Effective Date. To the extent that any Borrower may have
such offsets, defenses or claims, such Borrower and each of its successors, assigns, parents,
subsidiaries, affiliates, predecessors, employees, agents, heirs, executors, as applicable, jointly
and severally, knowingly, voluntarily and intentionally waive, release and forever discharge
Lender, and its subsidiaries, affiliates, officers, directors, shareholders, employees, agents,
attorneys, predecessors, successors and assigns, both present and former (collectively the
“Lender Affiliates”) of and from any and all actual or potential claims, demands, damages,
actions, requests for sanctions and causes of action, torts, obligations, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever, all other liabilities
whether known or unknown, matured or unmatured, contingent or absolute, of any kind or description
whatsoever, either in law or in equity, asserted or unasserted in which against Lender and/or
Lender Affiliates it ever had, now have, claim to have or may later have originating in whole or in
part on or before the Effective Date, or which any of any Borrower’s successors, assigns, parents,
subsidiaries, affiliates, predecessors, employees, agents, heirs, executors, as applicable, both
present and former ever had, now has, claim to have or may later have, upon or by reason of any
manner, cause, causes or thing whatsoever originating in whole or in part on or before the
Effective Date, including, without limitation, any presently existing claim or defense whether or
not presently suspected, contemplated or anticipated, and each Borrower hereby agrees that such
Borrower is collaterally estopped from asserting any claims against Lender or any of the Lender
Affiliates relating to the foregoing.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Waiver, Joinder and First Amendment to
Revolving Credit and Security Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
| LENDER: | CAPITALSOURCE BANK | |||||
| By: | /s/ J. Xxxxxxx Xxxxx
|
|||||
| Its: Bank Officer | ||||||
| ORIGINAL BORROWER: | ZYNEX, INC. | |||||
| /s/ Xxxxxx Xxxxxxxxx | ||||||
| Name: Xxxxxx Xxxxxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| ZYNEX MEDICAL, INC. | ||||||
| /s/ Xxxxxx Xxxxxxxxx | ||||||
| Name: Xxxxxx Xxxxxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| NEW BORROWER: | ZYNEX MONITORING SOLUTIONS INC. | |||||
| /s/ Xxxxxx Xxxxxxxxx | ||||||
| Name: Xxxxxx Xxxxxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| ZYNEX NEURODIAGNOSTIC INC. | ||||||
| /s/ Xxxxxx Xxxxxxxxx | ||||||
| Name: Xxxxxx Xxxxxxxxx | ||||||
| Title: President and Chief Executive Officer | ||||||
| Address for Notices for New Borrower: | ||||||
| 0000 Xxxx Xxxxxxx Xxxxx Xxxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxxx, CFO Telephone: 000-000-0000 Facsimile: E-mail: |
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