Exhibit 10.1
MAKEWELL AGREEMENT
THIS MAKEWELL AGREEMENT (this "AGREEMENT") dated as of August 31, 2004,
among MedCap Partners L.P., a Delaware limited partnership ("MEDCAP"), Crdentia
Corp., a Delaware corporation ("Crdentia"), Bridge Opportunity Finance, LLC, a
Delaware limited liability company ("TERM LENDER"), and Bridge Healthcare
Finance, LLC, a Delaware limited liability company ("REVOLVER LENDER"; and
collectively with the Term Lender, the "LENDERS").
W I T N E S S E T H:
WHEREAS, MedCap owns in excess of twenty percent (20%) of the voting
stock of Crdentia (including the Series C Preferred Stock acquired concurrently
herewith) and as such MedCap will derive substantial direct and indirect
economic benefit from the Lenders' providing loans and other financial
accommodations under the Loan Agreements described below;
WHEREAS, Crdentia, Baker Anderson Christie, Inc. ("BAKER"), Nurses
Network, Inc. ("NURSES NETWORK"), New Age Staffing, Inc. ("NEW AGE"), PSR
Nurses, Ltd. ("PSR LTD."), PSR Nurse Recruiting, Inc. ("PSR RECRUITING"), PSR
Nurses Holdings Corp. ("PSR HOLDING"), CRDE Corp. ("ACQUISITION SUBSIDIARY"),
CPS Acquisition Corporation ("CPS"), and AHHC Acquisition Corporation ("AHHC")
(Crdentia, together with Baker, Nurses Network, New Age, PSR Ltd, PSR
Recruiting, PSR Holding, Acquisition Subsidiary, CPS and AHHC, each individually
and collectively, "BORROWER") have entered into (i) that certain Loan and
Security Agreement dated as of June 16, 2004 with the Revolver Lender (as
amended, restated, supplemented or otherwise modified from time to time, the
"REVOLVING LOAN AGREEMENT"), and (ii) that certain Loan and Security Agreement
dated as of August 31, 2004 with the Term Lender and certain other parties (as
amended, restated, supplemented or otherwise modified from time to time, the
"TERM LOAN AGREEMENT"; and collectively with the Revolving Loan Agreement, the
"LOAN AGREEMENTS");
WHEREAS, in order to induce the Lenders to enter into, and/or perform
their obligations under, the Loan Agreements and extend Borrower the financial
accommodations contemplated thereby, MedCap has agreed, under certain specific
circumstances described herein, to make additional equity investments in
Crdentia; and
WHEREAS, MedCap desires to provide certain assurances to Lenders with
respect to the loans as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to such terms in the Loan Agreements. In
addition, the following terms shall have the definitions ascribed to them in
this SECTION 1:
(a) "EBITDA SHORTFALL means, with respect to any month, the amount
of EBITDA, as reported in the compliance certificate (the "Compliance
Certificate") delivered to the Lenders on or before the fifteenth day (15th) day
of the immediately following month pursuant to Section 9(c) of the Loan
Agreements and , which is less than $0.00 and reported as such negative amount
on such Compliance Certificate. For purposes of clarification, such EBITDA
Shortfall amount shall be equal to the difference between such negative EBITDA
amount, as reported by the Borrower on the Compliance Certificate, and $0.00.
2. MAKEWELL OBLIGATIONS.
(a) If Borrower's EBITDA for any month is less than $0.00, then
MedCap shall make payment to Crdentia in the amount of the EBITDA Shortfall, by
purchase from Crdentia additional shares (to the nearest share) of Crdentia's
Series C Preferred Stock at $60.00 per share (as adjusted proportionately for
stock splits, stock dividends, recapitalizations and the like of the Series C
Preferred Stock) for an aggregate purchase price equal to such EBITDA Shortfall
(the "MAKEWELL PAYMENT") (on the same terms and conditions (including the
issuance of warrants) as the Series C Preferred Stock being sold to MedCap
concurrently herewith; provided that, the terms of the newly acquired Series C
Preferred Stock shall be adjusted to reflect any events affecting the terms of
the Series C Preferred Stock sold concurrently herewith) within ten (10) days of
the Lenders' receipt of the applicable Compliance Certificate reporting the
EBITDA Shortfall amount. If Crdentia is unable to sell Series C Preferred Stock
to MedCap, it shall sell a series of its preferred stock containing the same
terms as the Series C Preferred Stock would be required to contain.
(b) MedCap hereby agrees that it shall make any such Makewell
Payment via federal wire transfer or ACH to the Crdentia Collection Lockbox
Account maintained at LaSalle Bank, N.A. (the "CRDENTIA COLLECTIONS ACCOUNT").
The amount of such Makewell Payment to the Crdentia Collections Account shall be
swept to the Revolver Lender Concentration Account (such Concentration Account
as defined in the Revolving Loan Agreement) and applied to the outstanding
Revolving Loans of the Revolver Lender, in accordance with the terms of the
Revolving Loan Agreement. MedCap shall make the Makewell Payment as provided
herein without any notice or request from the Lenders.
(c) Each Makewell Payment shall be deemed to cure any applicable
Minimum EBITDA violation for the applicable month in respect of which the
Makewell Payment causes Borrower to be in pro forma compliance with the Minimum
EBITDA financial covenant for such month as determined in accordance with
Section 14(c) of the Loan Agreements.
3. WAIVER. No course of dealing between Lenders and Borrower, and no
act, delay or omission by any Lender in exercising any right or remedy
hereunder, shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. If any provision
of this Agreement is unenforceable in whole or in part for any reason, the
remaining provisions shall continue to be effective.
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4. REPRESENTATIONS AND WARRANTIES; COVENANTS. (i) The execution,
delivery and performance by MedCap of this Agreement is within its limited
partnership powers and has been duly authorized by all necessary limited
partnership action on the part of MedCap, (ii) this Agreement is the legal,
valid and binding obligation of MedCap enforceable against MedCap in accordance
with its terms (except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally) and (iii) neither the execution,
delivery nor performance by MedCap of this Agreement (1) violates any law or
regulation, or any order or decree of any governmental body other than any laws
relating to the issuance of securities, (2) conflicts with or results in the
breach or termination of, constitutes a default under or accelerates any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which MedCap is a party or by which MedCap or
any of its property is bound, (3) violates or conflicts with the limited
partnership agreement or other organizational documents of MedCap, or (4)
requires the consent, approval or authorization of, or declaration or filing
with, any Person, except for those already duly obtained.
5. MODIFICATION, AMENDMENT, DURATION OF OBLIGATION AND ASSIGNMENT. This
Agreement may be modified, or amended only by the written agreement of the
parties. The obligation of MedCap and Crdentia under this Agreement shall
continue until the earlier of (i) the termination of the Loan Agreements and the
payment in full in cash of all Obligations (other than contingent
indemnification obligations), (ii) the date on which an aggregate of $1,000,000
in Makewell Payments have been made under this Agreement, and (iii) January 25,
2005. MedCap may assign its rights and obligations under this Agreement in whole
or in part to a third party "accredited investor" (as defined in Rule 501 of
Regulation D promulgated under the Securities Act) reasonably approved by
Crdentia and the Lender, PROVIDED THAT all proceeds to Crdentia of any such
investors are paid to Crdentia in accordance with Section 2(b) hereof. For the
avoidance of doubt this Agreement is independent of, and is a separate and
distinct obligation from, any guaranty or similar agreements among the parties.
6. PAYMENT OF COSTS AND EXPENSES. Crdentia hereby agrees to pay on
demand all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and costs, incurred by the Lenders in enforcing this
Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party, or the
non-dismissing party in the even of a voluntary dismissal by the party
initiating the action, shall be entitled to receive reasonable attorney's fees,
costs and necessary disbursements.
7. LOAN DOCUMENT. This Agreement shall be deemed to be a Loan Document
and Other Agreement for all purposes.
8. OBLIGATION OF CRDENTIA. Crdentia agrees to notify MedCap on or prior
to the same Business Day that it sends a Compliance Certificate to the Lenders
of any EBITDA Shortfall with regard to such Compliance Certificate. Crdentia
hereby agrees to timely sell to MedCap or such other person as provided herein
the Series C Preferred Stock (or such other series of the Company's Preferred
Stock) that MedCap is required to acquire under Section 2 on such terms as
provided for in Section 2. Such sale shall be pursuant to a subscription
agreement with essentially the same terms as the subscription agreement entered
into by MedCap and Crdentia in connection with the Series C Preferred Stock
being sold concurrently herewith. Crdentia represents and warrants that the sale
of any Series C Preferred Stock pursuant to the terms of this Agreement has been
duly and validly authorized by all necessary corporate action and that Crdentia
has reserved for issuance all of the shares of Series C Preferred Stock as
necessary in connection with any such sale. Crdentia represents to MedCap that
the EBITDA calculations contained in any Compliance Certificate is accurate.
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9. COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. MEDCAP HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF COOK,
STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDERS' ELECTION, ALL
ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
LITIGATED IN SUCH COURTS. MEDCAP EXPRESSLY SUBMITS AND CONSENTS TO THE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS. MEDCAP HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON MEDCAP BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO MEDCAP IN ACCORDANCE
WITH THE NOTICE PROVISIONS HEREOF AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5)
DAYS AFTER THE SAME HAS BEEN POSTED.
11. WAIVER OF JURY TRIAL. MEDCAP AND LENDERS EACH HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO MAKEWELL AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers thereunder duly authorized
as of the day and year first above written.
MEDCAP PARTNERS L.P.
By: /s/ C. FRED TONEY
------------------------------------
Name: C. FRED TONEY
Title: Managing Member of MedCap
Management & Research LLC, the
General Partner of MedCap
Partners L.P.
Address for Notice:
________________________________________
________________________________________
________________________________________
Attn:
Telephone:
Facsimile:
BRIDGE OPPORTUNITY FINANCE, LLC, as
Term Lender
By: /s/ RANDY ABRAHAMS
------------------------------------
Name: RANDY ABRAHAMS
Title: President and Chief Executive
Officer
Address for Notice:
233 South Wacker Drive
Suite 5350
Chicago, Illinois 60606
Attn: Chief Credit Officer
Telephone: (312) ________
Facsimile: (312) 334-4450
SIGNATURE PAGE TO MAKEWELL AGREEMENT
BRIDGE HEALTHCARE FINANCE, LLC, as
Revolver Lender
By: /s/ KIM GORDON
------------------------------------
Name: KIM GORDON
Title: Executive Vice President
Address for Notice:
233 South Wacker Drive
Suite 5350
Chicago, Illinois 60606
Attn: Chief Credit Officer
Telephone: (312) ________
Facsimile: (312) 334-4450
SIGNATURE PAGE TO MAKEWELL AGREEMENT
CRDENTIA CORP.
By: /s/ JAMES D. DURHAM
------------------------------------
Name: JAMES D. DURHAM
Title: Chairman and Chief Executive
Officer
Address for Notice:
14114 Dallas Parkway
Dallas, Texas 75254
Attn: ____________________
Telephone: (___) ___________
Facsimile: (___) ____________