EXHIBIT 10.13(c)
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated
effective as of March 15, 1996 (the "Effective Date"), is by and between
PHYSICIAN'S VISITING NURSE SERVICE, INC., a Texas corporation (the "Borrower"),
and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association
whose principal office is located in Houston, Texas (the "Bank").
PRELIMINARY STATEMENT
The Bank and the Borrower have entered into a Credit Agreement (with
Borrowing Base) dated as of March 23, 1994, as amended by that certain First
Amendment to Credit Agreement (with Borrowing Base) dated as of June 30, 1994,
by that certain Second Amendment to Credit Agreement (with Borrowing Base) dated
as of August 31, 1994 and as amended by that certain Third Amendment to Credit
Agreement (with Borrowing Base) dated as of December 22, 1994 (the "Credit
Agreement"). The "Agreement", as used in the Credit Agreement, shall also refer
to the Credit Agreement as amended by this Amendment. All capitalized terms
defined in the Credit Agreement and not otherwise defined herein shall have the
same meanings herein as in the Credit Agreement. The Bank and the Borrower have
agreed to amend the Credit Agreement to the extent set forth herein, and in
order to, among other things, renew, extend, modify, and consolidate the
Commitment with two other revolving loans to Borrower and to delete the
Borrowing Base provisions from the Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Bank and the Borrower hereby agree as
follows:
1. REVOLVING CREDIT NOTE. Section 1.1 of the Credit Agreement is
amended by substituting the following for the Section 1.1 of the Credit
Agreement:
"Subject to the terms and conditions hereof, the Bank agrees to make
loans ("Loan" or "Loans") to Borrower from time to time before the
Termination Date, not to exceed at any one time outstanding
$3,950,000.00 (the "Commitment"), Borrower having the right to borrow,
repay and reborrow. Each Loan shall be in an amount not less than
$10,000.00 or the balance of the Commitment, whichever is less and each
repayment shall be in an amount of not less than $10,000.00 or the
principal balance of the Note, whichever is less. The Bank and the
Borrower agree that Chapter 15 of the Texas Credit Code shall not apply
to this Agreement, the Note or any Loan. The Loans shall be evidenced
by and shall bear interest and be payable as provided in the promissory
note of Borrower dated the Effective Date (together with any and all
renewals, extensions, modifications, replacements, and rearrangements
thereof and substitutions therefor, the "Note") which is given in
renewal, modification, extension, and consolidation of that certain
promissory note dated December 22, 1994 in the original principal
amount of $1,950,000.00, that certain promissory note dated November 1,
1995 in the original principal amount of $1,000,000.00, and that
certain promissory note dated January 31, 1996 in the original
principal amount of $1,000,000.00, (including all prior notes of which
said notes represent a renewal, extension, modification, increase,
substitution, rearrangement or replacement thereof, the "Renewed
Note"). The parties hereto agree that there is as of the Effective Date
an outstanding principal balance of $2,450,000.00 under the Note
leaving a balance as of the Effective Date of $1,500,000 under the
Commitment available for Loans subject to the terms and conditions of
this Agreement. The "Note" as used in the Credit Agreement shall also
refer to the "Note" as used in this Amendment. The purpose of the Loans
is to support Borrower's working capital."
2. The Credit Agreement is amended by deleting therefrom Sections 1.2,
1.3 and 1.4 in their entirety.
3. Sections 1.5 through 1.8 of the Agreement are amended by
redesignating the same as Sections 1.3, 1.4, 1.5, and 1.6, respectively.
4. Section 1.6 of the Credit Agreement is amended by substituting the
following for Section 1.6 of the Credit Agreement:
"CONFIRMATION AND AMENDMENT OF SECURITY INTERESTS SECTION 1.6. Borrower
confirms and ratifies each of the liens, security interests and other
interests granted in each and all security agreements executed in
connection with, related to, or securing the Renewed Note as extending
to and securing the Loans and the Note including but not limited to
each of those interests and liens described in the following listed
Security Agreements. Borrower further agrees and acknowledges that the
terms "secured indebtedness" and "indebtedness secured hereby" as used
in any security agreement including any supplemental security
agreements executed in connection with or related to, or securing the
Renewed Note, or any other indebtedness of Borrower to Bank, including
but not limited to the following security agreements executed by or for
the benefit of Borrower and delivered to Bank: Security Agreement -
Accounts and General Intangibles executed by Physician's Visiting Nurse
Service, Inc. dated June 17, 1994; Security Agreement - Accounts and
General Intangibles executed by Medical Innovations of Virginia, Inc.
dated June 17, 1994; Security Agreement - Accounts and General
Intangibles executed by Medical Innovations (Texas), Inc. dated June
17, 1994; Security Agreement - Accounts and General Intangibles
executed by The Great Eastern Nursing Corp. dated June 17, 1994;
Security Agreement - Accounts and General Intangibles executed by
Medical Innovations, Inc. dated June 17, 1994; Security Agreement -
Accounts and General Intangibles executed by Medical Innovations, Inc.
of New Jersey dated June 17, 1994; Security Agreement - Accounts and
General Intangibles executed by Nurses PRN of Virginia, Inc. dated June
17, 1994; and Security Agreement executed by Nursing Innovations, Inc.,
including any Supplemental Security Agreements supplementing any of the
foregoing, and any other security agreements previously executed by or
for the benefit of Borrower and delivered to Bank and not released by
Bank and all security agreements executed as of the Effective Date
(each and all "Security Agreements") include, but are not limited to,
each and all indebtedness of all character and kind related to or
evidenced by the Renewed Note, the Note and related to the Loan
Documents. The parties hereto agree to amend the Security Agreements as
follows: (1) representation and warranty (a) on page 1 of the Security
Agreements is deleted therefrom in its entirety; (2) ss.4.1(g) of the
Security Agreements is amended by adding the following to the end of
ss.4.1(g): "except for in the normal course of business;" (3) ss.4.1(l)
of the Security Agreements is amended by adding the following to the
end of ss.4.1(l): "except for in the normal course of business;" and
(4) ss.4.1(n) of the Security Agreements is amended by deleting
therefrom the words: "and its proceeds." The Note is further secured by
each of the Continuing Guaranties of even date herewith executed by
each of Xxxxxx X. Xxxxx, and Xxxx X. Xxxxxx and delivered to Bank."
5. Section 2.1 of the Credit Agreement is amended by substituting the
following for Section 2.1 of the Credit Agreement:
"ALL LOANS 2.1 Bank is not obligated to make any Loan unless: (a) Bank
has received the following, duly executed and in Proper Form: (1) a
Request for Loan, substantially in the form of EXHIBIT A, not later
than one (1) Business Day before the date (which shall also be a
Business Day) of the proposed Loan; provided however, Bank may accept
and act upon verbal advance requests received from Borrower's
representative reasonably believed by Bank to be authorized to make
such requests; and (2) such other documents as Bank reasonably may
require; (b) no Event of Default exists; and (c) the making of the Loan
is not prohibited by, or subjects Bank to any penalty or onerous
condition under any Legal Requirement."
6. Section 4.3 of the Credit Agreement is amended by substituting the
following for Section 4.3 of the Credit Agreement:
"FINANCIAL INFORMATION 4.3 Furnish to the Bank one copy of each of the
following: (i) for Medical Innovations, Inc.: (a) as soon as available and in
any event within 90 days after the end of each fiscal year of Medical
Innovations, Inc., Medical Innovations, Inc.'s annual financial statements,
prepared in conformity with GAAP and accompanied by a report and opinion of
independent certified public accountants satisfactory to the Bank; (b) as soon
as available and in any event within 45 days after the end of each month, the
consolidated financial statements of Medical Innovations, Inc. for such period,
and for the year to date, prepared in conformity with GAAP accompanied by
computations and workpapers to establish compliance or noncompliance with the
financial covenants set forth on Annex III; (c) copies of special audits,
studies, reports and analysis prepared for the management of any Borrower by
outside parties; and (d) promptly after such request is submitted to the
appropriate Governmental Authority, any request for waiver of funding standards
or extensions of amortization periods with respect to any employee benefit plan;
(ii) for guarantors, no later than 15 days after request therefor by the Bank,
and no later than April 30 of each year, the personal financial statement of
such guarantor, in form and containing such information and detail as is
satisfactory to the Bank; and (iii) for all Borrowers or guarantors, such
information relating to the financial condition and affairs of the Borrowers or
guarantors and their Subsidiaries as from time to time may be requested by the
Bank in its discretion."
7. The Credit Agreement is amended by deleting therefrom Section 4.8 in
its entirety.
8. Section 8. Definitions. Subsection (1) of the definition of
Termination Date in the Credit Agreement is hereby amended by replacing "(a)
March 31, 1996; or" with "(a) April 15, 1997; or."
9. EXHIBIT A of the Credit Agreement is hereby amended by replacing
prior EXHIBIT A with the Exhibit A attached hereto and hereby incorporated into
this Amendment and the Credit Agreement for all purposes.
10. The Credit Agreement is hereby amended by deleting therefrom
EXHIBIT B in its entirety.
11. ANNEX I of the Credit Agreement is hereby amended by replacing
prior ANNEX I with the ANNEX I attached hereto and hereby incorporated into this
Amendment and the Credit Agreement for all purposes.
12. The Borrower hereby represents and warrants to the Bank that after
giving effect to the execution and delivery of this Amendment: (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) except
as previously disclosed to Bank in writing, no Event of Default, or event which
with passage of time, the giving of notice or both would become an Event of
Default, has occurred and is continuing as of the date hereof.
13. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below, and the "Agreement" as used in the Credit Agreement shall also refer to
the Credit Agreement as amended by this Amendment.
14. The Borrower further acknowledges that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
Page 2 of 3 Pages
15. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
16. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
17. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF THE UNITED
STATES OF AMERICA.
18. WAIVER AGREEMENT. Pursuant to Section 4.8 of the Agreement,
Borrower agreed to make a principal prepayment on the Renewed Note in an amount
sufficient to bring the outstanding principal balance on the Renewed Note to not
more than Six Hundred Twenty Five Thousand Dollars ($625,000.00) for a period of
thirty (30) consecutive days at least one time prior to the maturity of this
Note. Borrower has informed Bank that Borrower is out of compliance with this
covenant. Although Borrower is in default under the Credit Agreement because of
the failure to comply with the above-referenced covenant as required, Bank is
electing to waive this specific default. This waiver does not constitute a
waiver of any other defaults that may currently exist or that may hereafter
occur, including but not limited to the above cited Section of the Agreement.
Bank's delay in exercising any of its rights under the Credit Agreement does not
constitute a waiver of any rights or interests of Bank except as specifically
agreed to in writing by Bank. This Section is not a general waiver of the
above-referenced covenant or any other requirements contained in the Agreement
or any other Loan Document. In the past Bank may have made advances under the
Commitment at times when Borrower did not satisfy all of the conditions
precedent to advances and/or because Borrower was in default under the Credit
Agreement. Bank has the right to refuse to fund an advance at any time that
Borrower is not in compliance with the terms of the Agreement. If Bank elects to
make any advance to Borrower while Borrower is out of compliance with the
Agreement, the making of such advances shall not constitute a waiver of any
defaults then existing or thereafter arising under the Agreement, and will not
constitute the agreement of Bank to make further advances in similar
circumstances. This Section constitutes the only evidence of Bank's waiver of
compliance with the above cited Section of the Credit Agreement.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE TEXAS BUSINESS & COMMERCE CODE,
AND REPRESENTS 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWER: PHYSICIAN'S VISITING NURSE SERVICE, INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxxx
Xxxxxxxx, Xxxxx 00000
BANK: TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: VP
Page 3 of 3 Pages
EXHIBIT A
REQUEST FOR LOAN
LETTERHEAD OF BORROWER
Texas Commerce Bank National Association
[branch address]
Re: Request for Loan under Agreement
Attention: XXXX XXXXX
Gentlemen:
This letter confirms our oral or telephonic request of , 19 , for a Loan in
accordance with that certain Credit Agreement (as amended, restated and
supplemented from time to time, the "Agreement") dated as of March 23, 1994
between you and us. Any term defined in the Agreement and used in this letter
has the same meaning as in the Agreement.
The proposed Loan is to be in the amount of $ and is to be made on , 19 ,
which is a Business Day at least one (1) Business Day after the date of this
letter. The proceeds of the proposed Loan should be (check one:) [ ] deposited
into account number with the Bank; or [ ]_____________________________________.
The undersigned hereby certifies that:
(1) The representations and warranties made by the Borrower or by any
other Person in the Agreement and the other Loan Documents are
true and correct on and as of this date as though made on this
date.
(2) The proposed Loan complies with all applicable provisions of the
Agreement.
(3) No Event of Default has occurred and is continuing.
Sincerely,
PHYSICIAN'S VISITING NURSE SERVICE, INC.
By:
Name:
Title:
EXHIBIT A Page 1 of 1
ANNEX I
LOAN DOCUMENTS
"Loan Documents" includes, but is not limited to, the following:
1. Agreement
2. Note
3. [ ] Assignment covering:
[ ] Life insurance
[ ] Deposit account
[ ] Other (specify)
4. Compliance Certificate
5 |X| Security Agreements, in Proper Form, covering:
|X| Accounts and general intangibles
[ ] Equipment
[ ] Inventory
[ ] Securities
[ ] Secured note
[ ] Certificate of deposit or deposit account
[ ] Partnership interest
[ ] Rights under contract
[ ] Other (specify)
6. [ ] Deed of Trust covering the real property described on the Real
Property Addendum, attached hereto.
7. [ ] Title Insurance Policy
8. |X| Financing Statements
9. |X| Guaranty by each of: XXXXXX X. XXXXX, XX.; XXXX X. XXXXXX
10. |X| Certificate of Account Status
11. [ ] Opinion of Borrower' Counsel
12. |X| Certified Copies of Organizational and Authority Documents
13. [ ] Insurance policies and certificates
14. [ ] Subordination Agreement covering: [ ] debt to:
[ ] lien of:
15. |X| Financial Statements of: BORROWER; XXXXXX X. XXXXX, XX.;
XXXX X. XXXXXX
16. |X| UCC search
17. [ ] Regulation U Purpose Statement (U-1)
Loan Documents -- ANNEX I Page 1 of 1
