AMENDMENT TO LOAN DOCUMENTS
Exhibit
10.1
AMENDMENT
TO LOAN DOCUMENTS
THIS
AMENDMENT TO LOAN DOCUMENTS (the “Amendment”), dated as of August 29, 2007, is
among XXXXXXXXX’X PHARMACY, INC., a Texas corporation, ALVIN MEDICINE MAN, LP, a
Texas limited partnership, ANGLETON MEDICINE MAN, LP, a Texas limited
partnership, and SANTA FE MEDICINE MAN, LP, a Texas limited partnership (each
individually, a “Borrower,” and collectively, “Borrowers”), and AMEGY
BANK NATIONAL ASSOCIATION, a national banking association
(“Lender”).
RECITALS:
X.
Xxxxxxxxx and Xxxxxx have entered
into that certain Loan Agreement (the “Agreement”) dated as of February 20,
2007.
B.
Pursuant to the Agreement, Ascendant Solutions, Inc., a Delaware corporation,
Xxxxxxxxx’x Holdings, Inc., a Texas corporation, Medicine Man, LP, a Texas
limited partnership, Xxxxxxxxx’x XX Holdings, Inc., a Nevada corporation,
Medicine Man GP, LLC, a Texas limited liability company, Alvin Medicine Man
GP,
LLC, a Texas limited liability company, Angleton Medicine Man GP, LLC, a Texas
limited liability company, and Santa Fe Medicine Man GP, LLC, a Texas
limited liability company (each, a “Guarantor”) each executed a Guaranty
Agreement (each, a “Guaranty”) of even date with the Agreement, which guaranteed
to Lender the payment and performance of the Obligations (as defined in the
Agreement).
X.
Xxxxxxxxx and Lender now desire to (i) increase the amount of the Revolving
Loan
(as defined in the Agreement, (ii) modify the Loan Documents (as defined in
the
Agreement) to provide for a new advance loan, and (iii) modify certain of the
other terms and provisions of the Loan Documents, all as more particularly
set
forth herein.
NOW,
THEREFORE, in consideration of the premises herein contained and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE
I
Definitions
Section 1.01.
Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE
II
Amendments
Section 2.01.
Amendment to Definitions. Effective as of the date hereof, the
following defined terms in Section 1.01 of the Agreement shall be amended to
read as follows:
“Advance
Loans” means an advance of funds by Lender to Borrower pursuant to Articles
II, III or IIIA.
“Loans”
means, collectively, the Revolving Loan, the Term Loan, and the Advance
Loan.
“Notes”
means, collectively, the Revolving Note, the Term Note, and the Advance
Note.
“Pharmaceutical
Cap” means $1,500,000.00 at all times.
“Revolving
Credit Commitment” means the obligation of Xxxxxx to make Advances hereunder
in an aggregate principal amount at any one time outstanding up to but not
exceeding Two Million Two Hundred Fifty Thousand and No/100 Dollars
($2,250,000.00), as such amount may be reduced pursuant to Section 2.09 or
otherwise.
“Revolving
Note” means the
promissory note of Borrower payable to the order of Lender evidencing the
Revolving Loan, in form and substance acceptable to Lender, and all extensions,
renewals, and modifications thereof.
“Term
Note” means the promissory
note of Borrowers payable to the order of Lender evidencing the Term Loan,
in
form and substance acceptable to Lender, and all extensions, renewals, and
modifications thereof.
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Section 2.02.
Addition of Definitions. Effective as of the date
hereof, the following defined terms shall be added to Section 1.01 of the
Agreement in alphabetical order:
“Advance
Loan” means the loan in the original principal amount equal to Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00) made or to be made by Lender
pursuant to Section 3A.01; provided, that each Advance under the Advance Loan
shall be limited to eighty percent (80%) of the cost of the capital expenditures
acquired with the proceeds of such Advance.
“Advance
Note” means the promissory note of Borrower payable to the order of Lender
evidencing the Advance Loan, in form and substance acceptable to Lender, and
all
extensions, renewals, and modifications thereof.
Section 2.03. Advance
Loan. Effective as of the date hereof, a new Article IIIA shall
be added to the Agreement to read as follows:
“ARTICLE
IIIA
Advance
Loan
Section
3A.01. Advance Loan. Subject to the terms and
conditions of this Agreement, Xxxxxx agrees to make the Advance Loan to
Borrowers in a one or more advances from August 29, 2007 to August 29,
2008.
Section
3A.02. The
Advance Note. The obligation of Borrowers to repay the
Advance Loan shall be evidenced by the Advance Note executed by Xxxxxxxxx,
payable to the order of Lender, in the principal amount of the Advance Loan
and
dated the date hereof.
Section
3A.03. Repayment
of Advance Loan. Borrowers shall repay the unpaid principal
amount of the Advance Loan in accordance with the terms and provisions of the
Advance Note. Any amounts repaid under the Advance Note may
not be reborrowed.
Section
3A.04. Interest. The
unpaid principal amount of the Advance Loan shall bear interest prior to
maturity at the rate or rates set forth in the Advance Note. Accrued
and unpaid interest on the Advance Loan shall be payable in accordance with
the
terms and provisions of the Advance Note. During the continuance of
an Event of Default, all principal and interest under the Advance Loan shall
bear interest at the Default Rate.
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Section
3A.05. Use
of Proceeds. The proceeds of the Advance Loan shall be used by
Borrowers to make capital expenditures.
Section
3A.06. Facility
Fee. Borrowers shall pay to Lender a non-refundable facility fee
(the “Advance Facility Fee”) of $1,250.00 (representing one-half of one
percent (.5%) of the principal amount of the Advance Loan) on the date of the
Advance Note. The Facility Fee shall be deemed fully earned on the
date of the Advance Note and is non-refundable.”
Section 2.04. Amendment
to Reporting requirements. Effective as of the date hereof, existing
Section 8.02(d) of the Agreement shall be redesignated as Section 8.02(e),
and a
new Section 8.02(d) shall be added to the Agreement to read as
follows:
“(d) Tax
Returns. Copies of income tax returns (federal and
state, if any) of Xxxxxxxxx’x Pharmacy and the Medicine Man Entities within 30
days after the applicable filing date for the tax reporting period
thereof.”
Section 2.05. Amendment
to Financial Covenant. Effective as of the date hereof, Section 10.02
of the Agreement is amended to read as follows:
Section
10.02. Funded
Debt to Adjusted EBITDA Ratio. Borrowers will at all times
maintain a ratio of Funded Debt to Adjusted EBITDA of not greater than 2.75
to
1.00. The Funded Debt to Adjusted EBITDA Ratio shall be computed for
the Borrowers on a consolidated basis and shall be tested monthly on a rolling
twelve month basis.”
ARTICLE
III
Conditions
Precedent
Section 3.01. Conditions. The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent:
(a) Lender
shall have received all of the following, each dated (unless otherwise
indicated) the date of this Amendment, in form and substance satisfactory to
Lender:
(1) Loan
Documents. Each Borrower shall have executed and delivered (A) a
Revolving Note evidencing the Revolving Loan as increased hereby, and (B) an
Advance Note evidencing the Advance Loan;
(2) Guarantors. Each
Guarantor shall have executed the Guarantor Ratification attached
hereto;
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(3) Resolutions. Certified
resolutions of behalf of each Borrower which authorize the execution,
delivery, and performance by each Borrower of this Amendment and the other
Loan
Documents to which such Borrower is or is to be a party hereunder;
(4) Additional
Information. Lender shall have received such additional
documents, instruments and information as Lender or its legal counsel may
request; and
(b) The
representations and warranties contained herein and in all other Loan Documents,
as amended hereby, shall be true and correct as of the date hereof as if made
on
the date hereof;
(c) No
Event of Default shall have occurred and be continuing and no event or condition
shall have occurred that with the giving of notice or lapse of time or both
would be an Event of Default; and
(d) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments, and other legal matters incident
thereto shall be satisfactory to Lender and its legal counsel.
ARTICLE
IV
Ratifications
Representations and
Warranties
Section 4.01. Ratifications. The
terms and provisions set forth in this Amendment shall modify and supersede
all
inconsistent terms and provisions set forth in the Agreement and except as
expressly modified and superseded by this Amendment, the terms and provisions
of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrowers and Lender agree that
the Agreement as amended hereby shall continue to be legal, valid, binding
and
enforceable in accordance with its terms. Without limiting the
foregoing, each Borrower ratifies the terms and conditions of the Security
Agreement executed by such Xxxxxxxx and hereby agrees that the “Collateral”
described in each such Security Agreement shall secure all of the Obligations,
including without limitation, all of the obligations and indebtedness of
Borrowers under the Advance Loan and Advance Note.
Section 4.02. Representations
and Warranties. Each Borrower hereby represents and warrants to
Lender that (i) the execution, delivery and performance of this Amendment and
any and all other Loan Documents executed and/or delivered in connection
herewith have been authorized by all requisite action on the part of such
Borrower and will not violate the organizational documents of such Borrower,
(ii) the representations and warranties contained in the Agreement, as amended
hereby, and any other Loan Document are true and correct on and as of the date
hereof as though made on and as of the date hereof, (iii) no Event of Default
has occurred and is continuing and no event or condition has occurred that
with
the giving of notice or lapse of time or both would be an Event of Default,
and
(iv) such Borrower is in full compliance with all covenants and agreements
contained in the Agreement as amended hereby.
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ARTICLE
V
Miscellaneous
Section 5.01. Survival
of Representations and Warranties. All representations and
warranties made in this Amendment or any other Loan Document including any
Loan
Document furnished in connection with this Amendment shall survive the execution
and delivery of this Amendment and the other Loan Documents, and no
investigation by Lender or any closing shall affect the representations and
warranties or the right of Lender to rely upon them.
Section 5.02. Reference
to Agreement. Each of the Loan Documents, including the Agreement
and any and all other agreements, documents, or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms
of
the Agreement as amended hereby, are hereby amended so that any reference in
such Loan Documents to the Agreement shall mean a reference to the Agreement
as
amended hereby.
Section 5.03. Expenses
of Lender. As provided in the Agreement, Borrowers jointly and
severally agrees to pay on demand all reasonable costs and expenses incurred
by
Lender in connection with the preparation, negotiation, and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any and
all
amendments, modifications, and supplements thereto, including without limitation
the reasonable costs and fees of Lender’s legal counsel, and all costs and
expenses incurred by Lender in connection with the enforcement or preservation
of any rights under the Agreement, as amended hereby, or any other Loan
Document, including without limitation the costs and fees of Xxxxxx’s legal
counsel.
Section 5.04. Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held
to
be invalid or unenforceable.
Section 5.05. Applicable
Law. This Amendment and all other Loan Documents executed
pursuant hereto shall be deemed to have been made and to be performable in
Dallas County, Texas and shall be governed by and construed in accordance with
the laws of the State of Texas.
Section 5.06. Successors
and Assigns. This Amendment is binding upon and shall inure to
the benefit of Xxxxxx and Xxxxxxxxx and their respective successors and assigns,
except Borrowers may not assign or transfer any of their respective rights
or
obligations hereunder without the prior written consent of Xxxxxx.
Section 5.07. Counterparts. This
Amendment may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
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Section 5.08. Effect
of Waiver. No consent or waiver, express or implied, by Lender to
or for any breach of or deviation from any covenant, condition or duty by
Borrowers or Guarantors shall be deemed a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty.
Section 5.09. Headings. The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
Section 5.11. ENTIRE
AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS
AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY
THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND
ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG
THE PARTIES HERETO.
Executed
as of the date first written above.
|
BORROWERS:
|
XXXXXXXXX’X
PHARMACY, INC.,
a
Texas corporation
By:
/s/ Xxxxx X. Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
ALVIN
MEDICINE MAN, LP,
a
Texas limited partnership
By: Alvin
Medicine Man GP, LLC,
a
Texas limited liability
company,
its
General Partner
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and
Chief Executive Officer
(Signatures
continue on the following page)
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ANGLETON
MEDICINE MAN, LP,
a
Texas limited partnership
By: Angleton
Medicine Man GP, LLC,
a
Texas limited liability
company,
its
General Partner
By:/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
SANTA
FE MEDICINE MAN, LP,
a
Texas limited partnership
By: Santa
Fe Medicine Man GP, LLC,
a
Texas limited liability
company,
its
General Partner
By:/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
|
LENDER:
|
AMEGY
BANK NATIONAL ASSOCIATION,
a
national banking association
By:/s/
Xxxx Xxxxxxxxx
Name: Xxxx
Xxxxxxxxx
Title: Senior
Commercial Banker
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Guarantor
Ratification
By
executing this Agreement, each of
the undersigned, as a Guarantor of the Obligations as set forth in a Guaranty
Agreement (the “Guaranty”) dated February 20, 2007, hereby expressly
agrees (a) to all of the terms and provisions of this Amendment, (b) that the
Guaranty shall guarantee all of the Obligations including, but not limited
to,
all of the obligations and indebtedness of Borrowers under the Advance Loan
and
the Advance Note, (c) to the continuing validity of the Guaranty and
all duties and obligations thereunder, (d) that its liability under the Guaranty
shall not be reduced, altered, limited, lessened or in any way affected by
the
execution and delivery of this Amendment by the parties hereto, and (e) that
the
Guaranty shall remain in full force and effect and enforceable in accordance
with its terms.
ASCENDANT
SOLUTIONS,
INC.,
a
Delaware corporation
By:
/s/ Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
XXXXXXXXX’X
HOLDINGS, INC.,
a
Texas corporation
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
XXXXXXXXX’X
XX HOLDINGS,
INC.,
a
Nevada corporation
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
(Signatures
continue on the following page)
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MEDICINE
MAN GP, LLC,
a
Texas limited liability
company
By:
/s/ Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
MEDICINE
MAN, LP,
a
Texas limited
partnership
By: Medicine
Man GP, LLC,
a
Texas limited liability
company,
its
General Partner
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
ALVIN
MEDICINE MAN GP,
LLC,
a
Texas limited liability
company
By:
/s/ Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
ANGLETON
MEDICINE MAN GP,
LLC,
a
Texas limited liability
company
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
(Signatures
continue on the following page)
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SANTA
FE MEDICINE MAN GP,
LLC,
a
Texas limited liability
company
By:
/s/
Xxxxx X.
Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and Chief Executive Officer
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