LIMITED WAIVER AND EIGHTh AMENDMENT TO amended and restated business loan agreement
SMRH 11/10/21
LIMITED WAIVER AND EIGHTh AMENDMENT TO amended
and restated business loan agreement
This LIMITED WAIVER AND EIGHTH AMENDMENT TO AMENDED AND RESTATED BUSINESS LOAN AGREEMENT (this “Amendment”), dated November 4, 2021 (the “Amendment Effective Date”), is made and entered into by and among Zions Bancorporation, N.A. dba Amegy Bank (together with its successors and assigns, “Lender”), Fuse Medical, Inc. (“Fuse”) and CPM Medical Consultants, LLC (“CPM”, together with Fuse, collectively, the “Borrowers” and each a “Borrower”).
RECITALS
A.Lender and Borrowers are parties to that certain Amended and Restated Business Loan Agreement dated as of December 31, 2017 (as amended by that certain Limited Wavier and First Amendment to Amended and Restated Business Loan Agreement, dated as of September 21, 2018, as amended by that certain Limited Waiver and Second Amendment to Amended and Restated Business Loan Agreement, dated as of November 19, 2018, as amended by that certain Limited Waiver and Third Amendment to Amended and Restated Business Loan Agreement dated as of May 9, 2019, as amended by that certain Limited Waiver and Fourth Amendment to Amended and Restated Business Loan Agreement dated December 18, 2019, as amended by that certain Limited Waiver and Fifth Amendment to Amended and Restated Business Loan Agreement dated May 21, 2020, as amended by that certain Sixth Amendment to Amended and Restated Business Loan Agreement dated November 12, 2020, as amended by that certain Seventh Amendment to Amended and Restated Business Loan Agreement dated May 4, 2021, and as may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”).
B.An Event of Default has occurred under Section 10.1(b) of the Loan Agreement as a result of Borrowers’ failure to maintain a Minimum EBITDA greater than or equal to $600,000 for the trailing twelve (12) month period ended September 30, 2021 as required by Section 9.1(b)(ii) of the Loan Agreement (the “Specified Default”).
C.Lender is willing to amend the Loan Agreement on the terms and subject to the conditions set forth below.
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 hereby agree as follows:
Article I
Definitions
Section 1.1Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same definitions assigned to such terms in the Loan Agreement, as amended hereby.
Article II
Limited Waiver
Section 2.1Limited Waiver. Borrowers represent and warrant that the Specified Default is the only Default or Event of Default that exists, or is anticipated to occur, under the Loan Agreement and the other Loan Documents as of the Amendment Effective Date. Subject to the satisfaction of the conditions precedent set forth in Section 4.1 hereof, Lender hereby waives the Specified Default. In no event shall
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such waiver be deemed to constitute a waiver of (a) any Default or Event of Default other than the Specified Default or (b) Borrowers’ obligation to comply with all of the terms and conditions of the Loan Agreement and the other Loan Documents from and after the Amendment Effective Date. Notwithstanding any prior, temporary mutual disregard of the terms of any contracts between the parties, Borrowers hereby agree that they shall be required strictly to comply with all of the terms of the Loan Documents on and after the Amendment Effective Date.
Article III
Amendments to the Loan Agreement
In reliance upon the representations and warranties of the Lender and Borrowers set forth in the Loan Documents and in this Amendment, the Loan Agreement is hereby amended, effective as of the Amendment Effective Date, as follows:
Section 3.1Amendments to Defined Terms. The following defined terms are hereby amended and restated in their entirety or added to Section 1.1, as applicable, to read, in each case, as follows:
“Prime” means the prime rate as announced from time to time by the Lender (determined on a daily basis for the actual number of days elapsed based on a 360 day year). Without notice to the Borrowers or any other person, Prime shall change automatically from time to time as and in the amount by which such rate shall fluctuate, with each such change to be effective as of the date of each change in such rate. Prime is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer of Lender. The Lender may make commercial loans or other loans at rates of interest at, above or below Prime.
“Revolving Facility Limit” means $2,550,000.
“Termination Date” means February 4, 2021.
Section 3.2Amendment to Section 3.1(b). Section 3.1(b) of the Loan Agreement is hereby amended and restated in its entirety as follows:
(a)Rate. Subject to the provisions of Section 3.1(b), the Loans shall bear interest at Prime plus one percent (1.00%) per annum. All interest due hereunder shall be payable monthly in arrears on the first day of each calendar month and on the Termination Date.
Article IV
Conditions Precedent
Section 4.1Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by Lender:
(a)Lender shall have received a counterpart of this Amendment duly executed by Borrowers and the Consent and Reaffirmation duly executed by Guarantors;
(b)the representations and warranties contained herein and in all other Loan Documents shall be true and correct as of the Amendment Effective Date as if made on the Amendment Effective Date;
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(c)no Default or Event of Default shall have occurred and be continuing other than the Specified Default;
(d)Borrowers shall have paid 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, including, without limitation, the costs and fees of Lender’s legal counsel and such counsel’s outstanding invoices related to the preparation of the Loan Documents and amendments thereto;
Article V
Ratifications, Representations, Warranties, Acknowledgments and Covenants
Section 5.1Ratifications by Borrowers. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Loan Agreement and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Loan Agreement are ratified and confirmed and shall continue in full force and effect. The Loan Agreement as amended by this Amendment shall continue to be legal, valid, binding and enforceable in accordance with its terms.
Section 5.2Renewal and Extension of Security Interests and Liens. Each Borrower hereby (a) renews and affirms the Liens created and granted in the Loan Documents, and (b) agrees that this Amendment shall in no manner affect or impair the Liens securing the Obligations, and that such Liens shall not in any manner be waived, the purposes of this Amendment being to modify the Loan Agreement as herein provided, and to carry forward all Liens securing the same, which are acknowledged by such Borrower to be valid and subsisting.
Section 5.3Representations and Warranties. Each Borrower represents and warrants to Lender that (a) the execution, delivery and performance of this Amendment and any and all Loan Documents executed and/or delivered in connection herewith have been authorized by all requisite entity action on the part of such Borrower and will not violate the organizational documents of such Borrower or any agreement to which such Borrower is a party, (b) the representations and warranties contained in the Loan Agreement and in each of the other Loan Documents are true and correct on and as of the Amendment Effective Date as though made on the Amendment Effective Date, (c) no Default or Event of Default under the Loan Agreement has occurred and is continuing other than the Specified Default, and (d) such Borrower is in full compliance with all covenants and agreements contained in the Loan Agreement, as amended hereby.
Article VI
Miscellaneous
Section 6.1Survival of Representations and Warranties. All representations and warranties made in the Loan Agreement or any other Loan Document, including without limitation, 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 such representations and warranties or the right of Lender to rely thereon.
Section 6.2Reference to Loan Agreement. Each of the Loan Documents 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 Loan Agreement as amended hereby, are hereby amended so that any reference in such Loan Documents to the Loan Agreement shall mean a reference to the Loan Agreement as amended hereby.
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Section 6.3Expenses of Lender. Borrowers agree to pay on demand all reasonable costs and expenses incurred by Lender directly in connection with any and all amendments, modifications, and supplements to this Amendment and the other Loan Documents executed pursuant hereto, including, without limitation, the 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 Loan Agreement, as amended hereby, or any other Loan Document, including, without limitation, the reasonable costs and fees of Lender’s legal counsel.
Section 6.4Severability. 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 6.5APPLICABLE LAW. THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS NOT INCLUDING CONFLICTS OF LAW RULES.
Section 6.6Waiver of Jury Trial. To the fullest extent permitted by applicable law, the parties hereto each hereby waives the right to trial by jury in any action, suit, counterclaim, or proceeding arising out of or related to this Amendment.
Section 6.7RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS AMENDMENT, EACH BORROWER, AND BY GUARANTORS’ SIGNATURES TO THE CONSENT AND REAFFIRMATION, EACH GUARANTOR VOLUNTARILY, KNOWINGLY AND UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES LENDER AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”), FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, DAMAGES, EXPENSES, ACTIONS, OR CAUSES OF ACTION OF ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT SUCH BORROWER NOW HAS OR EVER HAD AGAINST ANY OF THE RELEASED PARTIES ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY SUCH LIABILITIES, CLAIMS, DEMANDS, DAMAGES, EXPENSES, ACTIONS, OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO A CLAIM OF BREACH OF CONTRACT, FRAUD, LENDER LIABILITY OR MISCONDUCT, BREACH OF FIDUCIARY DUTY, USURY, UNFAIR BARGAINING POSITION, UNCONSCIONABILITY, VIOLATION OF LAW, NEGLIGENCE, ERROR OR OMISSION IN ACCOUNTING OR CALCULATIONS, MISAPPROPRIATION OF FUNDS, TORTIOUS CONDUCT OR RECKLESS OR WILLFUL MISCONDUCT. EACH BORROWER AND EACH GUARANTOR REPRESENTS AND WARRANTS TO LENDER THAT IT HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT IT HAS EVER HAD OR CLAIMED TO HAVE AGAINST ANY RELEASED PARTY.
Section 6.8Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the parties hereto and their respective successors, assigns, heirs, executors, and legal representatives, except that none of the parties hereto other than Lender may assign or transfer any of its rights or obligations hereunder without the prior written consent of Lender.
Section 6.9Counterparts. 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
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shall constitute one and the same instrument. Any signature delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto.
Section 6.10Effect 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 any Borrower, shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty.
Section 6.11Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
Section 6.12Conflicting Provision. If any provision of the Loan Agreement as amended hereby conflicts with any provision of any other Loan Document, the provision in the Loan Agreement shall control.
Section 6.13ENTIRE AGREEMENT. THIS AMENDMENT, THE LOAN AGREEMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION WITH AND PURSUANT TO THIS AMENDMENT AND THE LOAN AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
BORROWER:
FUSE MEDICAL, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Executive Officer
BORROWER:
CPM MEDICAL CONSULTANTS, LLC
By: /s/ Xxxxxxxxxxx X. Xxxx
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Executive Officer
Signature Page to Limited Waiver and Eighth Amendment to A&R Business Loan Agreement
LENDER:
ZIONS BANCORPORATION, N.A. dba AMEGY BANK
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Executive Vice President
Signature Page to Limited Waiver and Eighth Amendment to A&R Business Loan Agreement
CONSENT AND REAFFIRMATION
Each of the undersigned guarantors acknowledges that Zions Bancorporation, N.A. dba Amegy Bank) (“Lender”) has no obligation to provide it with notice of, or to obtain its consent to, the terms of the foregoing Limited Waiver and Eighth Amendment to the Amended and Restated Business Loan Agreement (the “Amendment”). Nevertheless, each of the undersigned consents to the Amendment and other Loan Documents effected thereby, agrees to be bound thereby and confirms and agrees that, notwithstanding the effectiveness of the Amendment, each Loan Document to which the undersigned is a party is, and the obligations thereunder to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as amended by the Amendment.
GUARANTORS:
NC 143 Family Holdings LP
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NC 143 Family Holdings GP LLC, General Partner of NC 143 Family Holdings LP |
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NC 143 Family Trust, Dated October 1, 2014, as last amended, Manager of NC 143 Family Holdings GP LLC |
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Trustee of NC 143 Family Trust
By:/s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee of NC 143 Family Trust
XXXX X. XXXXXX
By:/s/ Xxxx X. Xxxxxx
Signature Page to Limited Waiver and Eighth Amendment to A&R Business Loan Agreement
