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EXHIBIT 4.20
VISION TWENTY-ONE, INC.
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This Fifth Amendment and Waiver to Credit Agreement (herein, the
"Amendment") is entered into as of November 24, 1999, among Vision Twenty-One,
Inc., a Florida corporation (the "Borrower"), the Banks party hereto, and Bank
of Montreal as Agent for the Banks.
PRELIMINARY STATEMENTS
A. The Borrower, the Banks, and the Agent are parties to an Amended
and Restated Credit Agreement, dated as of July 1, 1998, as amended (herein,
the "Credit Agreement"). All capitalized terms used herein without definition
shall have the same meanings herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Bank of Montreal ("BOM") extend
the final maturity of the temporary bridge loan facility and the effectiveness
of certain waivers granted to the Borrower under the Credit Agreement, and BOM
and the other Banks are willing to do so on the terms and conditions as
provided for in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Credit Agreement shall be and hereby is amended as
follows:
1.1. The first three sentences of Section 1.14(a) of the
Credit Agreement shall be amended and restated to read as follows:
Subject to all of the terms and conditions hereof, during the
period from and including November 12, 1999, to but not
including December 10, 1999 (the "Bridge Loan Period"), Bank
of Montreal ("BOM") agrees to make loans (the "Bridge Loans",
the Bridge Loans to constitute Loans for all purposes of the
Loan Documents except that such Loans shall only be made by
BOM and no other Bank shall have any obligation to fund any
part thereof or purchase a participation therein) to the
Borrower under a short-term bridge loan facility in an
aggregate amount at any one time outstanding not to exceed
$3,000,000 (the "Bridge Loan Commitment"); provided, however,
that Bridge Loans shall be available to the Borrower only if
and so long as the Revolving Credit Commitments of the Banks
are fully utilized and the maximum amount of Loans thereunder
are outstanding. Bridge Loans may be availed of by the
Borrower from time to time during the Bridge Loan Period and
borrowings thereunder may be repaid and used
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again through but not including the last day of the Bridge
Loan Period, at which time the Bridge Loan Commitment shall
expire. The Borrower hereby promises to pay all Bridge Loans
(both for principal and interest) on the last day of the
Bridge Loan Period, the final maturity thereof.
1.2. The date "November 24, 1999" appearing in the first
sentence of Section 8.36 shall be deleted and the date "November 29,
1999" shall be inserted in lieu thereof.
1.3. Section 8 of the Credit Agreement shall be amended by
adding at the end thereof a new Section 8.37 which shall read as
follows:
Section 8.37. Bridge Loan Period Expenditures. The
Borrower hereby agrees that neither the Borrower nor any
Subsidiary shall enter into new leases (whether for personal
property or real property and whether characterized as a
Capital Lease, operating lease, or otherwise) or otherwise
incur any Capital Expenditures from November 24, 1999,
through the last day of the Bridge Loan Period.
1.4. Exhibit J to the Credit Agreement is hereby amended and
restated to read as set forth in the form attached to this Amendment
as Annex A attached hereto.
SECTION 2. WAIVERS.
The Borrower has requested that the Banks temporarily waive effective
September 30, 1999, the Borrower's non-compliance with the following covenants
contained in the Credit Agreement: (i) Section 1.8(b) which required payment of
the September 30, 1999, principal installment of $388,040.80 due with respect
to the Term A Loans, (ii) Section 1.4 which required timely payment of interest
when due in the amount of $409,411.96 which payment was received on October 6
and 7, 1999, which was after the applicable grace period, (iii) Section 8.5(a)
which required the furnishing of the July 1999, August 1999, and September 1999
monthly financial statements to the Banks, (iv) Section 4.2 which required
putting in place blocked account arrangements, (v) Section 8.5(h) which
required providing the Banks with written notice of default, and (vi) Section
8.34 which will require repayment of the Loans by $2,000,000 out of the
proceeds of repayment of advances made by the Borrower to the practice groups.
In order to accommodate the Borrowers request, the Banks hereby agree
to temporarily waive the Borrower's non-compliance with the above-referenced
covenants through the period ending December 10, 1999. This waiver is
conditioned upon the satisfaction of the conditions precedent set forth in
Section 3 below. The Banks expect and require that the Borrower comply with the
covenants referred to in clauses (i)-(vi) above on or before December 10, 1999.
If the Borrower is not in compliance with covenants listed in clauses (i)-(vi)
above as of December 10, 1999, the waiver set forth herein shall no longer be
in effect and the Banks shall be entitled to enforce the covenants referenced
above as Events of Default pursuant to Section 9 of the
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Credit Agreement and any and all of the Banks' rights and remedies under the
Loan Documents as a result thereof.
Except as specifically waived hereby, all of the terms and conditions
of the Credit Agreement shall stand and remain unchanged and in full force and
effect. This waiver does not extend to or cover any other Events of Default
which may now or hereafter exist under the Credit Agreement, this waiver being
expressly limited to the covenants referred to in clauses (i)-(vi) above.
SECTION 3. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
3.1. The Borrower, the Agent, and the Banks shall have
executed and delivered this Amendment.
3.2. Each Material Subsidiary shall have executed its
acknowledgement and consent to this Amendment in the space provided
for that purpose below.
3.3. The Agent shall have received the weekly cash budgets
prepared as of November 12, 1999, and November 19, 1999, in form and
substance reasonably satisfactory to the Agent.
3.4. Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to the Agent and its counsel.
SECTION 4. RELEASE OF CLAIMS.
TO INDUCE THE BANKS AND THE AGENT TO ENTER INTO THIS AMENDMENT, THE
BORROWER AND, BY SIGNING THE ACKNOWLEDGEMENT AND CONSENT REFERRED TO BELOW,
EACH OF ITS SUBSIDIARIES HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE THE
BANKS AND THE AGENT AND EACH OF THEIR AFFILIATES (INCLUDING, WITHOUT
LIMITATION, XXXXXXX XXXXX SECURITIES, INC. AND XXXXXX TRUST AND SAVINGS BANK),
AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS, FROM
ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION OF ANY KIND (IF
ANY THERE BE), WHETHER ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED
OR UNDISPUTED, AT LAW OR IN EQUITY, THAT THEY NOW HAVE OR EVER HAD AGAINST THE
BANKS AND THE AGENT AND THEIR AFFILIATES, OR ANY ONE OR MORE OF THEM
INDIVIDUALLY, UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR ANY OTHER CREDIT, DEPOSIT OR OTHER FINANCIAL
ACCOMMODATION MADE AVAILABLE TO THE BORROWER OR ANY ONE OR MORE OF ITS
SUBSIDIARIES.
SECTION 5. MISCELLANEOUS.
5.1. The Borrower has heretofore executed and delivered to the Agent
and the Banks certain of the Collateral Documents. The Borrower hereby
acknowledges and agrees that,
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notwithstanding the execution and delivery of this Amendment, the Collateral
Documents remain in full force and effect and the rights and remedies of the
Agent and the Banks thereunder, the obligations of the Borrower thereunder, and
the liens and security interests created and provided for thereunder remain in
full force and effect and shall not be affected, impaired, or discharged
hereby. The Borrower hereby acknowledges and agrees that the Bridge Loans
constitute Obligations secured by each of the Collateral Documents. Nothing
herein contained shall in any manner affect or impair the priority of the liens
and security interests created and provided for by the Collateral Documents as
to the indebtedness which would be secured thereby prior to giving effect to
this Amendment.
5.2. Except as specifically amended herein, the Credit Agreement
shall continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection
therewith, or in any certificate, letter or communication issued or made
pursuant to or with respect to the Credit Agreement, any reference in any of
such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
5.3. The Borrower agrees to pay on demand all costs and expenses of
or incurred by the Agent in connection with the negotiation, preparation,
execution, and delivery of this Amendment and the other instruments and
documents to be executed and delivered in connection herewith, including the
fees and expenses of counsel for the Agent.
5.4. This Amendment may be executed in any number of counterparts,
and by the different parties on different counterpart signature pages, all of
which taken together shall constitute one and the same agreement. Any of the
parties hereto may execute this Amendment by signing any such counterpart and
each of such counterparts shall for all purposes be deemed to be an original.
This Amendment shall be governed by the internal laws of the State of Illinois.
5.5. This Amendment together with the other Loan Documents represent
the entire agreement of the Borrower, its Subsidiaries, the Banks and the Agent
with respect to the subject matter hereof and thereof, and there are no
promises or undertakings by the Banks or the Agent relative to the subject
matter hereof or thereof not expressly set forth therein. While the Agent and
the Banks intend to review and discuss with the Borrower the situation arising
as a result of the existing Events of Default and the Borrower's current
financial condition and business prospects, no such discussions shall be
binding upon the Agent or the Banks or otherwise create any additional
obligations unless agrees to in writing by the parties hereto. The Agent and
the Banks make no representations as to what actions, if any, the Agent and the
Banks will take after the expiration of the waiver period set forth in Section
2 above with respect to the Events of Default referred to therein if uncured at
that time or with respect to any other Event of Default not subject to the
limited waiver of Section 2 above, and the Agent and the Banks must and do
specifically reserve any and all rights and remedies they have (after giving
effect to this Amendment) with respect to any such Event of Default.
[SIGNATURE PAGES TO FOLLOW]
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This Fifth Amendment to Amended and Restated Credit Agreement is dated
as of the date and year first above written.
VISION TWENTY-ONE, INC.
By /s/ Xxxxxxx X. Xxxxx
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Name Xxxxxxx X. Xxxxx
Title Chief Financial Officer
Accepted and agreed to as of the day and year last above written.
BANK OF MONTREAL, in its individual PILGRIM PRIME RATE TRUST
Capacity as a Bank and as a Agent By: Pilgrim Investments, Inc., as its
Investment Manager
By /s/ Xxxxxxx X. Turf By /s/ Xxxxxxx X. XxXxxxx
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Name Xxxxxxx X. Turf Name Xxxxxxx X. XxXxxxx
Title Director Title Assistant Vice President
BANK ONE TEXAS, N.A. PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD.
By: Pilgrim Investments, Inc., as its
Investment Manager
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. XxXxxxx
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Name Xxxxx X. Xxxxxxxx Name Xxxxxxx X. XxXxxxx
Title Officer Title Assistant Vice President
PACIFICA PARTNERS I, X.X. XXXXXXX XXXXX BUSINESS FINANCIAL
By: Imperial Credit Asset SERVICES, INC.
Management, as its
Investment Manager
By /s/ Xxxx X. Xxxxx By /s/ Xxxxxx X. Xxxxx
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Name Xxxx X. Xxxxx Name Xxxxxx X. Xxxxx
Title Vice President Title Assistant Vice President
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ACKNOWLEDGEMENT AND CONSENT
The undersigned, being all of the Material Subsidiaries of Vision
Twenty-One, Inc., have heretofore executed and delivered to the Agent and the
Banks one or more Guaranties and Collateral Documents. Each of the undersigned
hereby consents to the Fifth Amendment to Credit Agreement as set forth above
and confirms that its Guaranty and Collateral Documents, and all of its
obligations thereunder, remain in full force and effect and, without limiting
the foregoing, acknowledges and agrees that the Bridge Loans constitute
Obligations guaranteed by, or otherwise secured by, the Loan Documents executed
by it. Each of the undersigned further agrees that the consent of the
undersigned to any further amendments to the Credit Agreement shall not be
required as a result of this consent having been obtained, except to the
extent, if any, required by the Loan Documents referred to above.
"GUARANTORS"
VISION 21 PHYSICIAN PRACTICE MANAGEMENT COMPANY
VISION 21 OF SOUTHERN ARIZONA, INC.
VISION 21 OF SIERRA VISTA, INC.
VISION 21 MANAGEMENT SERVICES, INC.
VISION 21 MANAGED EYE CARE OF TAMPA BAY, INC.
VISION TWENTY-ONE MANAGED EYE CARE IPA, INC.
BBG-COA, INC.
BLOCK VISION, INC.
UVC INDEPENDENT PRACTICE ASSOCIATION, INC.
MEC HEALTH CARE, INC.
LSI ACQUISITION, INC.
VISION TWENTY-ONE EYE SURGERY CENTERS, INC.
EYE SURGERY CENTER MANAGEMENT, INC.
VISION TWENTY-ONE REFRACTIVE CENTER, INC.
VISION TWENTY-ONE OF WISCONSIN, INC.
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, an authorized
signatory for each of the
above-referenced entities
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ANNEX A TO FIFTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT J
BRIDGE LOAN NOTE
U.S. $3,000,000 ____________, 1999
FOR VALUE RECEIVED, the undersigned, VISION TWENTY-ONE, INC., a
Florida corporation (the "Borrower"), promises to pay to the order of Bank of
Montreal (the "Bank") on the last day of the Bridge Loan Period at the
principal office of the Agent in Chicago, Illinois, in immediately available
funds, the principal sum of Three Million Dollars ($3,000,000) or, if less, the
aggregate unpaid principal amount of all Bridge Loans made by the Bank to the
Borrower pursuant to the Credit Agreement and with each such Bridge Loan to
mature and become payable as provided in the Credit Agreement, together with
interest on the principal amount of each such Bridge Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Note, each Bridge Loan made by it together with all payments
of principal and interest and the principal balances from time to time
outstanding hereon, and the interest rate applicable thereto, provided that
prior to the transfer of this Note all such amounts shall be recorded on a
schedule attached to this Note. The record thereof, whether shown on such books
or records or on the schedule to this Note, shall be prima facie evidence of
the same, provided, however, that the failure of the Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Bridge Loans made to it under the
Credit Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Amended and Restated
Credit Agreement dated as of July 1, 1998, among the Borrower, the Banks party
thereto, and Bank of Montreal as Agent for the Banks (such Amended and Restated
Credit Agreement as the same may from time to time be amended being referred to
as the "Credit Agreement") and payment hereof is secured by the Loan Documents,
and this Note and the holder hereof are entitled to all the benefits provided
for thereby or referred to therein, to which Credit Agreement and Loan
Documents reference is hereby made for a statement thereof. All defined terms
used in this Note, except terms otherwise defined herein, shall have the same
meaning as in the Credit Agreement. This Note shall be governed by and
construed in accordance with the laws of the State of Illinois.
Prepayments may be made hereon, certain prepayments are required to be
made hereon and this Note may be declared due prior to the expressed maturity
hereof, all in the events, on the terms and in the manner as provided for in
the Credit Agreement.
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The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
VISION TWENTY-ONE, INC.
By
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Name
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Title
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