Exhibit 10.4.1
FIRST AMENDMENT
TO
FINANCING AGREEMENT
FIRST AMENDMENT, dated as of August 30, 2001 (this "AMENDMENT"), to the
Financing Agreement, dated as of September 19, 2000 (the "FINANCING AGREEMENT"),
by and among INNOVATIVE CLINICAL SOLUTIONS, LTD., a Delaware corporation (THE
"PARENT"), CLINICAL STUDIES, LTD., a Delaware corporation ( the "BORROWER"), the
subsidiaries of the Parent (other than the Borrower) party thereto and
identified on the signature pages thereto as "Guarantors " (each a "LOAN PARTY"
and collectively, the "LOAN PARTIES"), and ABLECO FINANCE LLC, a Delaware
limited liability company (as lender and as agent for itself and each person or
entity that purchases any portion of Ableco Finance LLC's rights and obligations
pursuant to Section 10.07 of the Financing Agreement, collectively, the
"LENDER").
WHEREAS, the Loan Parties and the Lender have entered into the Waiver,
Consent and Acknowledgment dated as of August 30, 2001 (the "WAIVER"), pursuant
to which the Lender has consented to the proposed sale of certain assets by the
Borrower, and granted certain other waivers, in each case subject to the terms
and conditions set forth therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Waiver
that the Loan Parties and the Lender shall have entered into an amendment to the
Financing Agreement to (i) amend the definitions of "Borrowing Base" and
"Commitment" set forth in the Financing Agreement and (ii) include additional
direct and indirect subsidiaries of the Parent within the term "Permitted
Subsidiaries" as defined in the Financing Agreement;
NOW THEREFORE, the Loan Parties and the Lender hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise defined
herein are used herein as defined in the Financing Agreement.
2. AMENDMENTS. The Financing Agreement is hereby amended as follows:
(a) The definition of "Borrowing Base" set forth in Section 1.01 of the
Financing Agreement is amended in its entirety to read as follows:
"BORROWING BASE" means, at any date, (a) the LESSER of (i) the sum of
(A) the product of eighty-five percent (85%) TIMES the Net Amount of
Eligible Accounts Receivable of the Borrower as of such date PLUS (B) the
product of fifty percent (50%) TIMES the Allocation For New Sales of the
Borrower as of such date, PLUS (c) $3,500,000, and (ii) the aggregate
amount of actual Collections by the Borrower from Accounts Receivable of
the Borrower for the immediately preceding 120 day period to the extent
such Collections are received in the ordinary course of business of the
Borrower, MINUS (b) such reserves as the Lender may deem appropriate in the
exercise of its reasonable business judgment based upon the lending
practices of the Lender consistent with the practices customary in the
commercial finance industry.
(b) The definition of "Commitment" set forth in Section 1.01 of the
Financing Agreement is amended in its entirety to read as follows:
"COMMITMENT" means the commitment of the Lender to make Loans to the
Borrower in an aggregate principal amount at any time outstanding not to
exceed $8,500,000.00, as such amount may be terminated or reduced from time
to time in accordance with the terms of this Agreement.
(c) Schedule 5.01(f)(i) to the Financing Agreement is hereby replaced
with new Schedule 5.01(f)(i), attached hereto as EXHIBIT A.
(d) Schedule 5.01(f)(ii) to the Financing Agreement is hereby replaced
with new Schedule 5.01(f)(ii), attached hereto as EXHIBIT B.
3. CONDITIONS TO EFFECTIVENESS. (a) Except as set forth in subsection (b)
below, this Amendment shall become effective only upon satisfaction in full of
the following conditions precedent unless waived in writing by the Lender (the
first date upon which all such conditions have been satisfied or waived by the
Lender being herein called the "AMENDMENT EFFECTIVE DATE"):
(i) The representations and warranties contained in this Amendment
and in the Loan Documents shall be correct on and as of the Amendment Effective
Date as though made on and as of such date (provided that, upon giving effect to
this Amendment (A) the Persons listed in SCHEDULE I hereto shall no longer be
deemed to be Subsidiaries of the Parent, Guarantors or Loan Parties and (B) the
Persons listed in SCHEDULE II hereto shall be deemed Permitted Subsidiaries);
and no Default or Event of Default shall have occurred and be continuing on the
Amendment Effective Date or result from this Amendment becoming effective in
accordance with its terms.
(ii) The Lender shall have executed this Amendment and received
counterparts to this Amendment which bear the signatures of the Loan Parties.
(iii) Each of the conditions to effectiveness of the Waiver set forth
in clauses (a), (e) and (g) of Section 4 thereof (other than the effectiveness
of this Amendment) shall have been satisfied.
(iv) All legal matters incident to this Amendment shall be
satisfactory to the Lender and its counsel.
(b) The amendments set forth in Sections 2(a) and 2(b) hereof shall
become effective concurrently with the closing of the Sale (as such term is
defined in the Waiver).
4. COVENANT. Each of the Loan Parties covenants and agrees that, not later
than September 20, 2001, it will deliver to the Lender stock certificates
evidencing all of the issued and outstanding shares of each Subsidiary of the
Parent named in SCHEDULE II hereto,
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together with stock powers, undated and endorsed in blank by the parent company
of each such Subsidiary.
5. REPRESENTATIONS AND WARRANTIES. Each of the Loan Parties represents and
warrants to the Lenders as follows:
(a) Each Loan Party (i) is a corporation, limited liability company or
limited partnership duly organized, validly existing and in good standing under
the laws of the state of its organization and (ii) has all requisite power,
authority and legal right to execute and deliver this Amendment and to perform
the Financing Agreement, as amended hereby.
(b) The execution, delivery and performance by each Loan Party of this
Amendment and the performance by each Loan Party of the Financing Agreement as
amended hereby (i) have been duly authorized by all necessary action, (ii) do
not and will not violate or create a default under such Loan Party's
organizational documents, any applicable law or any contractual restriction
binding on or otherwise affecting such Loan Party or any of such Loan Party's
properties, and (iii) except as provided in the Loan Documents, do not and will
not result in or require the creation of any lien, security interest or other
charge or encumbrance upon or with respect to such Loan Party 's property.
(c) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or other regulatory body is required in
connection with the due execution and delivery by any of the Loan Parties of
this Amendment and the performance by the Loan Parties of the Financing
Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Loan Parties,
enforceable against each such Loan Party in accordance with their terms.
(e) The representations and warranties contained in the Loan Documents
are correct on and as of the Amendment Effective Date as though made on and as
of such date (provided that, upon giving effect to this Amendment (i) the
Persons listed in SCHEDULE I hereto shall no longer be deemed to be Subsidiaries
of the Parent, Guarantors or Loan Parties and (ii) the Persons listed in
SCHEDULE II hereto shall be deemed Permitted Subsidiaries); and no Default or
Event of Default has occurred and is continuing on and as of the Amendment
Effective Date.
6. RESERVATION OF RIGHTS. No action or acquiescence by the Lender,
including, without limitation, this Amendment of, or the acceptance of any
payments under, the Financing Agreement, shall constitute a waiver of any
Default or Event of Default which may exist as of the Amendment Effective Date.
Accordingly, the Lender reserves all of its rights under the Financing
Agreement, under the Loan Documents, at law and otherwise regarding any such
Default or Event of Default.
7. CONTINUED EFFECTIVENESS OF LOAN DOCUMENTS. Each of the Loan Parties
hereby (i) confirms and agrees that each Loan Document to which it is a party
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except
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that on and after the Amendment Effective Date, all references in any such Loan
Document to "the Financing Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment and (ii) confirms and agrees
that to the extent that any such Loan Document purports to assign or pledge to
the Lender or to grant to the Lender a security interest in or lien on, any
collateral as security for the Obligations of the Loan Parties from time to time
existing in respect of the Financing Agreement and the Loan Documents, such
pledge, assignment and/or grant of the security interest or lien is hereby
ratified and confirmed in all respects.
8. AMENDMENT AS LOAN DOCUMENT. The Loan Parties hereby acknowledge and
agree that this Amendment constitutes a "Loan Document" under the Financing
Agreement. Accordingly, it shall be an Event of Default under the Financing
Agreement if (i) any representation or warranty made by the Loan Parties under
or in connection with this Amendment shall have been untrue, false or misleading
in any material respect when made, or (ii) the Loan Parties shall fail to
perform or observe any term, covenant or agreement contained in this Amendment.
9. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which shall be deemed
to be an original, but all of which taken together shall constitute one and the
same agreement.
(b) Section and paragraph headings herein are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
(c) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
(d) THE LOAN PARTIES AND THE LENDER EACH HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR
THE ACTIONS OF THE LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
(e) The Borrower will pay on demand all fees, costs and expenses of the
Lender in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees, disbursements and
other charges of counsel to the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PARENT:
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INNOVATIVE CLINICAL SOLUTIONS, LTD.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and
Chief Executive Officer
BORROWER:
--------
CLINICAL STUDIES, LTD.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and
Chief Executive Officer
GUARANTORS:
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BABRAD, INC.
Breathco Incorporated
CCC-Indiana Lithotripsy, Inc.
CCC Lithotripsy, Inc.
CCC National Lithotripsy, Inc.
Clinical Marketing, Ltd.
College Park Radiation Care, Inc.
Dasco Development West, Inc.
DDC Real Estate Corp.
Deer Co., Inc.
DeKalb Endoscopy Center, Inc.
Diagnostic Imaging of Biltmore, Inc.
First Choice Health Care Services of
Ft. Lauderdale, Inc.
Lithotripsy America, Inc.
Xxxxxxxxxx Radiation Care at
Baptist, Inc.
Nashville Radiation Care, Inc.
Oncology Therapies of America, Inc.
Oncology Therapies, Inc.
PhyMatrix Diagnostic Imaging, Inc.
PhyMatrix Management Company, Inc.
PhyMatrix Network Management IPA I,
Inc.
PhyMatrix Network Management IPA II,
Inc.
PhyMatrix Network Management, Inc.
PhyMatrix Northeast, Inc.
PhyMatrix of Atlanta, Inc.
PhyMatrix of Central Georgia, Inc.
PhyMatrix of Manatee County, Inc.
PhyMatrix Physician Management, Inc.
PhyMatrix Pulmonary Network, Inc.
PhyMatrix Urology Network, Inc.
Physician Consultant & Management
Co. of NC, Inc.
Physician Consultant & Management
Co. of NY, Inc.
Physicians Consultant and Management
Corporation
Pinnacle Associates, Inc.
Urology Consultant of South Florida,
Inc.
By: /s/ XXXX X. XXXXXXXXXX
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Xxxx X. Xxxxxxxxxx, as Chief
Financial Officer of each of
the foregoing companies
LENDER:
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ABLECO FINANCE LLC
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: SVP -Chief Credit Officer
SCHEDULE I
PERSONS NO LONGER DEEMED TO BE SUBSIDIARIES
SCHEDULE II
NEW PERMITTED SUBSIDIARIES
EXHIBIT A
NEW SCHEDULE 5.01(F)(I)
EXHIBIT B
NEW SCHEDULE 5.01(F)(II)
