Exhibit 10.33
 | Wells Fargo Bank, National Association | Second Amendment to Credit Agreement |
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is effective as of August 12, 2015, by and between AMERICAN CARESOURCE HOLDINGS, INC., a Delaware corporation (“Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”).
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms and conditions of that certain Credit Agreement between Borrower and Bank dated as of December 4, 2014, as amended from time to time (“Credit Agreement”).
WHEREAS, Bank and Borrower have agreed to certain changes in the terms and conditions set forth in the Credit Agreement and have agreed to amend the Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Credit Agreement shall be amended as follows:
1. Section 1.1(a) is hereby amended (a) by deleting “June 1, 2016” as the last day on which Bank will make advances under the Line of Credit, and by substituting for said date “October 1, 2016,” and (b) by deleting “Six Million Dollars ($6,000,000.00)” as the maximum principal amount available under the Line of Credit Note, and by substituting for said amount “Seven Million Dollars ($7,000,000.00),” with such changes to be effective upon the execution and delivery to Bank of a promissory note dated as of August 12, 2015 (which promissory note shall replace and be deemed the Line of Credit Note defined in and made pursuant to the Credit Agreement) and all other contracts, instruments and documents required by Bank to evidence such change.
2. Section 1.4 is hereby deleted in its entirety, and the following substituted therefor:
“GUARANTIES. The payment and performance of all indebtedness and other obligations of Borrower to Bank shall be guaranteed jointly and severally by John Pappajohn in the principal amount of Three Million Five Hundred Thousand Dollars ($3,500,000.00), Mark C. Oman in the principal amount of Two Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($2,333,333.00), and Bruce Rastetter in the principal amount of One Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Seven Dollars ($1,166,667.00), as evidenced by and subject to the terms of guaranties in form and substance satisfactory to Bank (which guaranties shall replace the guaranties dated December 4, 2014, and be deemed the guaranties made pursuant to the Credit Agreement).”
3. Notwithstanding the execution of the Credit Agreement or any addendum thereto, or the delivery of all documents in furtherance thereof, the obligation of the Bank to make any advance on the Line of Credit and this Amendment becoming effective is subject to the fulfillment to Bank’s satisfaction of all of the following conditions:
| a) | No event of default or event which will mature into an event of default, shall have occurred and be continuing. |
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| b) | The representations and warranties of the Borrower contained in the Loan Documents shall be true and correct as of the date of any advance on the Line of Credit. |
| c) | The Bank shall have received, in form and substance satisfactory to Bank, each of the following, duly executed: |
| (i) | This Amendment. |
| (ii) | Revolving Line of Credit Note ($7,000,000.00). |
| (iii) | Certificate of Existence/Good Standing for Borrower recently certified by the Delaware Secretary of State. |
| (iv) | Corporate Resolution: Borrowing for Borrower. |
| (v) | Certificate of Incumbency for Borrower. |
| (vi) | Continuing Guaranty of Bruce Rastetter. |
| (vii) | Continuing Guaranty of Mark C. Oman. |
| (viii) | Continuing Guaranty of John Pappajohn. |
| (ix) | Such other documents as Bank may require under any other Section of this Amendment. |
4. The Bank shall deliver the canceled Line of Credit Note in the principal sum of Six Million Dollars ($6,000,000.00) dated December 4, 2014, to Borrower as soon as possible following the effective date hereof, but in no event later than sixty (60) days after the date hereof.
5. Except as specifically provided herein, all terms and conditions of the Credit Agreement remain in full force and effect, without waiver or modification. All terms defined in the Credit Agreement shall have the same meaning when used in this Amendment. This Amendment and the Credit Agreement shall be read together, as one document.
6. Borrower hereby remakes all representations and warranties contained in the Credit Agreement and reaffirms all covenants set forth therein. Borrower further certifies that as of the date of this Amendment there exists no Event of Default as defined in the Credit Agreement, nor any condition, act or event which with the giving of notice or the passage of time or both would constitute any such Event of Default.
7. General Release. In consideration of the benefits provided to Borrower under the terms and provisions hereof, Borrower and each guarantor hereunder hereby agree as follows (“General Release”):
(a) Borrower and each guarantor hereunder, for itself and on behalf of its respective successors and assigns, do hereby release, acquit and forever discharge Bank, all of Bank’s predecessors in interest, and all of Bank’s past and present officers, directors, attorneys, affiliates, employees and agents, of and from any and all claims, demands, obligations, liabilities, indebtedness, breaches of contract, breaches of duty or of any relationship, acts, omissions, misfeasance, malfeasance, causes of action, defenses, offsets, debts, sums of money, accounts, compensation, contracts, controversies, promises, damages, costs, losses and expenses, of every type, kind, nature, description or character, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully set forth herein at length (each, a “Released Claim” and collectively, the “Released Claims”), that Borrower or any guarantor hereunder now has or may acquire as of the later of: (i) the date this Amendment becomes effective through the satisfaction (or waiver by Bank) of all conditions hereto; or (ii) the date that Borrower and each guarantor hereunder have executed and delivered this Amendment to Bank (hereafter, the “Release Date”), including without limitation, those Released Claims in any way arising out of, connected with or related to any and all prior credit accommodations, if any, provided by Bank, or any of Bank’s predecessors in interest, to Borrower or any guarantor hereunder, and any agreements, notes or documents of any kind related thereto or the transactions contemplated thereby or hereby, or any other agreement or document referred to herein or therein.
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(b) Borrower and each guarantor hereunder hereby acknowledge, representandwarrant toBank that they agree to assume the risk of any and all unknown, unanticipated or misunderstood defenses and Released Claims which are released by the provisions of this General Release in favor of Bank, and Borrower and each such guarantor hereby waive and release all rights and benefits which they might otherwise have under any state or local laws or statutes with regard to the release of such unknown, unanticipated or misunderstood defenses and Released Claims.
(c) Each person signing below on behalf of Borrower or any guarantor hereunderacknowledges that he or she has read each of the provisions of this General Release. Each such person fully understands that this General Release has important legal consequences, and each such person realizes that they are releasing any and all Released Claims that Borrower or any such guarantor may have as of the Release Date. Borrower and each guarantor hereunder hereby acknowledge that each of them has had an opportunity to obtain a lawyer’s advice concerning the legal consequences of each of the provisions of this GeneralRelease.
(d) Borrower and each guarantor hereunder herebyspecifically acknowledgeand agree that:(i) none of the provisions of this General Release shall be construed as or constitute an admission of any liability on the part of Bank; (ii) the provisions of this General Release shall constitute an absolute bar to any Released Claim of any kind, whether any such Released Claim is based on contract, tort, warranty, mistake or any other theory, whether legal, statutory or equitable; and (iii) any attempt to assert a Released Claim barred by the provisions of this General Release shall subject Borrower and each guarantor hereunder to the provisions of applicable law setting forth the remedies for the bringing of groundless, frivolous or baseless claims or causes of action.
8. Borroweracknowledges receipt of a copy ofthis Amendment signedby the partieshereto.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN YOU AND THIS LENDER.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the dates below.
| AMERICAN CARESOURCE HOLDINGS, INC. | Dated: August 12, 2015 | ||
| By: | /s/ Norman Winland | ||
| Norman Winland, President and Chief Operating Officer | (SEAL) | ||
| By: | /s/ Adam Winger | ||
| Adam Winger, Vice President ofAcquisitions | |||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | Dated:August12,2015 | ||
| By: | /s/ Rebecca Gibson | ||
| Rebecca Gibson, Vice President | |||
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GUARANTORS’ CONSENT, REAFFIRMATION AND GENERAL RELEASE
Each of the undersigned guarantors of all indebtedness of AMERICAN CARESOURCE HOLDINGS, INC. to WELLS FARGO BANK, NATIONAL ASSOCIATION hereby: (i) consents to the foregoing Amendment; (ii) reaffirms its obligations under its respective Continuing Guaranty; (iii) reaffirms its waivers of each and every one of the defenses to such obligations as set forth in its respective Continuing Guaranty; (iv) reaffirms that its obligations under its respective Continuing Guaranty are separate and distinct from the obligations of any other party under said Credit Agreement, as amended, and the other Loan Documents described therein; and (v) agrees to join in and be bound by all of the terms and provisions of the General Release contained in Section 6 herein.
GUARANTORS:
| /s/ John Pappajohn | Dated:August 13, 2015 | |
| John Pappajohn | ||
| /s/Mark C. Oman | Dated:August12, 2015 | |
| Mark C. Oman | ||
| /s/Bruce Rastetter | Dated:August17, 2015 | |
| Bruce Rastetter |
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