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EXHIBIT 10.18
CREDIT AGREEMENT
THIS AGREEMENT, dated effective April 1, 1996, between X. X. XXXXX,
M.D., a sole proprietor (the "Borrower"), and DOCTORS PRACTICE MANAGEMENT
INC., a Texas corporation (the "Lender"), and the parties agree as follows:
ARTICLE 1
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 1.1 Advances. From time to time during the term of this
Agreement, Lender may, in its sole discretion and subject to the terms and
conditions hereinafter set forth, make advances (the "Advances") to the
Borrower from time to time on any Business Day (as hereinafter defined) during
the period from the date hereof until March 31, 2011 (the "term of this
Agreement") in an aggregate amount not to exceed at any time outstanding One
Hundred Thousand Dollars ($100,000).Each Advance shall be in an amount not
less than Ten Thousand Dollars ($ 10,000.) or an integral multiple of $1,000 in
excess thereof, Borrower may borrow, prepay pursuant to Section 1.4 and
re-borrow under this Section 1.1, subject to Lender's right of absolute
discretion in making any Advance. Without in any way limiting Lender's
absolute discretion in making any Advance, in no event may the outstanding
principal balance of the Advances (including any new Advances requested by
Borrower) exceed an amount equal to Borrower's Eligible Accounts (which, for
purposes hereof, means those accounts receivable of Borrower (i) on which
Lender has a first and prior perfected security interest, (ii) which are not
more than 120 days past due, and (iii) which are otherwise satisfactory to
Lender in its sole and absolute discretion).
SECTION 1.2 Making the Advances. Advances shall be made on a Business Day.
Each Advance shall be made on written notice, signed by the President of the
Borrower and delivered to Lender not later than 5:00 p.m. (Houston time) at
least two Business Days before the day on which the Advance is to be made.
Each notice from the Borrower to the Lender requesting an Advance shall be
irrevocable and binding on the Borrower.
SECTION 1.3 Interest and Repayment. All outstanding principal on all Advances
made by Lender to Borrower hereunder shall bear interest at Eight Percent
(8.0%) per annum. The principal portion of the initial Advance shall be
payable in equal monthly installments, commencing on or before the 15th day of
the month following the date of this Agreement and continuing monthly
thereafter until paid in full. The principal portion of all other Advances
shall be payable in full on or before the such termination of the
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FULL SERVICE MANAGEMENT AGREEMENT entered into effective April 1, 1996 between
both parties and thereafter ON DEMAND by the Lender. On the date of this
Agreement, the Borrower shall execute and deliver to the Lender a Revolving
Credit Note in the form of Exhibit A hereto (the "Note"), evidencing the
indebtedness resulting from such Advances and delivered to the Lender pursuant
to Article II.
SECTION 1.4 Optional Prepayments. The Borrower may, upon at least two
Business Days, notice to the Lender stating the proposed date and principal
amount of the prepayment, without penalty or premium, prepay the outstanding
principal amounts of the Advances in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid.
SECTION 1.5 Payments and Computations. The Borrower shall make each
payment hereunder and under the Note on the date when due in U.S. dollars to
the Lender at its address referred to in Section 6.2 in same day funds. The
Borrower hereby authorizes the Lender, if and to the extent payment is not made
when due hereunder or under the Note, to charge from time to time against any
or all of the Borrower's accounts maintained by the Lender on Borrower's behalf
any amount so due. All computations of interest shall be made by the Lender on
the basis of a year of 365 or 366 days, as the
Case may be, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
is payable.
SECTION 1.6 Payment on Non-Business Days. Whenever any payment hereunder or
under the Note shall be stated to be due on a day other than a day of the year
on which banks are not required or authorized to close in Houston, Texas (any
such other day being a "Business Day"), such payment shall be Made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest.
SECTION 1.7 Maximum Rate. This Agreement and all of the Loan Documents (as
hereafter defined) are intended to be performed in accordance with, and only to
the extent permitted, by all applicable law governing the maximum rate or
amount of interest payable on or in connection with the Note and the
indebtedness evidenced thereby of Any jurisdiction and law of which is found by
a court of competent jurisdiction to be applicable to the Loan Documents
notwithstanding the jurisdiction chosen by the parties ("Applicable Law"). It
is expressly stipulated and agreed to be the intent of Borrower and Lender at
all
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times to comply with the Applicable Law governing the maximum rate or amount of
interest payable on or in connection with the Loan Documents (or applicable
United States federal law to the extent that it permits the Lender to contract
for, charge, take, reserve or receive a greater amount of interest than under
applicable Law). If the Applicable Law is ever judicially interpreted to as to
render usurious any amount called for under the Loan Documents or contracted
for, charged, taken, reserved, or received with respect to the indebtedness
under the Loan Documents, or if the acceleration of the maturity of the
indebtedness under the Loan Documents or any prepayment by the Borrower results
in the Borrower having paid any interest in excess of that permitted by
Applicable Law, then it is the Borrower's and the Lender's express intent that
all excess amounts therefore collected by the Lender be credited on the
principal balance of the Note (or, if the Note and all other indebtedness have
been or would thereby be paid in full, refunded to the Borrower), and the
provisions of the Loan Documents immediately be deemed reformed and the amount
thereafter collectible thereunder reduced, without the necessity of the
execution of any new documents, So as to comply with the Applicable Law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
and thereunder. The right to accelerate the maturity of the indebtedness under
the Loan Documents does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and the Lender does
not intend to collect any unearned interest in the event of acceleration. All,
sums paid or agreed to be paid to the Lender for the use, forbearance or
detention of the indebtedness under the Loan Documents shall, 'to the extent
permitted by Applicable Law, be amortized, prorated:, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed any
applicable usury ceiling. "Maximum Rate" means the maximum non-usurious rate
of interest which may be lawfully contracted for, charged, taken, reserved or
received by the Lender from the Borrower in connection with the indebtedness
under Applicable Law (or applicable United States federal law to the extent
that it permits the Lender to contract for, charge, take, reserve or receive a
greater amount of interest than under Applicable Law.)
ARTICLE 2 CONDITIONS OF LENDING
SECTION 2.1 Condition Precedent to Initial Advance. The obligation of the
Lender to make its initial Advance is subject to the conditions precedent that
Lender shall have received on or before the day of such Advance the following,
each dated such date, in form and substance satisfactory to the Lender:
(I) The Note; and
(ii) A Security Agreement, duly executed by the Borrower, in the form
of Exhibit B (the "Security
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Agreement").
This Agreement, the Note, the Security Agreement and all financing statements
and other documents and instruments executed or delivered pursuant hereto or
thereto are herein collectively referred to as the "Loan Documents."
SECTION 2.2 Conditions Precedent to All Advances. The obligation of the Lender
to make each Advance (including the initial Advance) shall be subject to the
further conditions precedent that on the date of such Advance (a) the following
statements shall be true (and each of the giving of the applicable notice
requesting such Advance and the acceptance by the Borrower of the proceeds of
such Advance shall constitute a representation and warranty by the Borrower
that on the date of such Advance such statements are true):
(i) The representations and warranties contained in Section 3.1 of
this Agreement, and as set forth in the Security Agreement are correct and
complete on and as of the date of such Advance, before and after giving effect
to such Advance and to the application of the proceeds therefrom, as though
made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such Advance or from the application of the proceeds therefrom, which
constitutes an Event of Default (as defined in Section 5.1 hereof) or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both; and
(b) The Lender shall have received such other approvals, opinions
or documents as the Lender may reasonably request.
(c) SECTION 2.3 Lender's Absolute Discretion. The existence or
satisfaction of any or all of the conditions set forth in
Sections 2.1 or 2.2 above shall in no way impair or modify the
Lender's right of absolute discretion in deciding to make or
not make any Advance, or to determine the amount of any
Advance which the Lender is willing to make.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Lender as follows:
(a) The Borrower is a sole proprietor, duly formed, validly
existing and in good standing under the laws of Texas.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party are within the Borrower's sole proprietor
powers, have been duly authorized by all necessary action on its part and do
not contravene (i) any law or contractual restriction binding on or affecting
the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Borrower of the Loan Documents.
(d) This Agreement and the other Loan Documents to which the
Borrower is a party are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, subject to the limitations of bankruptcy and general
principles of equity, provided that the unavailability of remedies due
to Equitable limitations will not substantially impair the rights of
Lender under any of the Loan Documents.
(e) There is no pending or, to the best of the Borrower's
knowledge, threatened, action - or proceeding affecting the Borrower
before any court, governmental agency or arbitrator, which may
materially adversely affect the financial condition or business of the
Borrower or which purports to affect the legality, validity or
enforceability of any of the Loan Documents.
(f) The Borrower is not engaged in the business of extending
credit for the purpose of buying or carrying margin stock (within the meaning
of Regulation G issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to buy or carry any margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
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ARTICLE 4
COVENANTS OF THE BORROWER
SECTION 4.1. Affirmative Covenants. So long as the Note shall remain
unpaid or otherwise during the term of this Agreement, the Borrower will,
unless the Lender shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, paying before the same become delinquent all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith.
(b) Maintenance. Maintain its existence as a professional
association, not institute any proceedings for the dissolution, liquidation or
winding up of Borrower, and maintain, and cause each of its employees (where
applicable) to maintain, all professional licenses and permits in good standing
to the extent necessary for Borrower to operate in the ordinary course of
business.
SECTION 4.2 Negative Covenants. So long as the Note shall remain
unpaid or otherwise during the term of this Agreement, the Borrower will not,
without the written consent of the Lender:
(a) Liens, Etc. Except as permitted by the Loan Documents, create
or suffer to exist, any lien, security interest or other charge or encumbrance,
or any other type of preferential arrangement, upon or with respect to any of
its properties, whether now owned or hereafter acquired, or assign any right to
receive income, in each case to secure or provide for the payment of any person
or, entity, other than (i) purchase money liens or purchase money security
interests upon or in any property acquired or held by the Borrower or any
subsidiary in the ordinary course of business to secure the purchase price of
such property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, and (ii) liens on assets not
constituting part of the Collateral (as defined in the Security Agreement)
(b) Mergers Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or
hereafter acquired) to, or acquire all or substantially all of
the assets of, any person or entity.
ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES; SPECIAL REMEDY
SECTION 5.1 Events of Default and Remedies. If any of the following events:
("Events of Default") shall occur and be continuing:
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(a) The Borrower shall fail to pay any principal of, or interest
on, the Note when the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower under or
in connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or
(c) The Borrower shall fail to perform observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed and such failure shall remain unremedied for 10 days
after written notice thereof shall have been given to the Borrower by the
Lender; or
(d) The Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any substantial
part of its property) shall occur and shall not be stayed pending timely appeal
(provided that the lifting of such stay shall constitute an Event of Default);
or the partner shall take any corporate or partnership action to authorize any
of the actions set forth above in this subsection (d); or
(e) Any final judgment or order for the payment of money in excess
of $100,000, or any two or more final judgments or orders for the payment of
money in excess of $250,000 in the aggregate, shall be rendered against the
Borrower or any of its subsidiaries and the same shall not be discharged within
a period of 30 days after such judgment becomes final and non-appealable; or
(f) The termination, cancellation, expiration without renewal or
replacement, or material breach by Borrower of the Management Agreement of even
date herewith between Borrower and Lender (the "Management Agreement"), or
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(g) X.X. Xxxxx M.D. ceases at any time to devote his full-time
and energies or
(h) Any material breach by X.X. Xxxxx of the Non-Competition
Agreement of even date herewith between Xx. Xxxxx and Lender;
then, and in any such event, the Lender may, by notice to the Borrower, declare
the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief under the Federal
Bankruptcy Code with respect to the Borrower the Note, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 5.2 Offset. In addition to any other remedies available at law
or in equity, upon the occurrence or continuance of any Event of Default the
Lender shall have the right to offset against any assets (including sums in bank
accounts) then in Lender's possession or control, in payment and satisfaction of
obligations then due.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 Amendment, Etc. No amendment or waiver of any provision
of any Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 6.2 Notice, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at 0000 Xxxxx X,
Xxxxxxxx, Xxxxx 00000, Attention: X.X. Xxxxx, M.D.; and if to the Lender, at
its address at 0000 X Xxxxx Xxxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxx,
President; or, as to each party, at such other address as shall be designated
by such party in a written notice to the other party. All such notices and -
communications
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shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answer back or delivered to the cable company, respectively
except that notices to the Lender pursuant to the provisions of Article 1 shall
not be effective until received by the Lender.
SECTION 6.3 No Waiver; Remedies. No failure on the part of the Lender
to exercise, and no delay in exercising, any right under the Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 6.4 Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, filing, recording, administration, modification and amendment of the
Loan Documents and the other documents to be delivered, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Lender with respect thereto and with respect to advising the Lender as to its
rights and responsibilities under the Loan Documents. The Borrower further
agrees to pay on demand all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan Documents and the
other documents to be delivered under the Loan Documents, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 6.5. In addition the Borrower shall pay
any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of the Loan Documents, and agrees to
save the Lender harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes
SECTION 6.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender.
SECTION 6.6 Certain Potential Conflicts. The Borrower acknowledges
that it has had full opportunity to consult with an attorney of its own choice
regarding the nature, obligations and consequences of this Agreement and that
it is not relying on counsel for the Lender in that regard. The
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parties have also entered into the Management Agreement and certain other
arrangements relating to the management and control of the Borrower. The
existence of such other relationships may be deemed to be, or give rise to,
certain conflicts of interest. The Borrower, recognizing. such conflicts of
interest, hereby irrevocably, knowingly and willingly waives all such
conflicts.
SECTION 6.7 GOVERNING LAW. THIS AGREEMENT AND THE NOTE,AND, UNLESS OTHERWISE
THEREIN PROVIDED, EACH OTHER LOAN DOCUMENT,SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF TEXAS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER: LENDER:
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X. X. XXXXX,. M.D. DOCTORS PRACTICE MANAGEMENT, INC.
By: /S/ X. X. XXXXX, M.D. By: /S/ XXXX XXXX
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XXXX XXXX, PRESIDENT
