Exhibit 10.26
LOAN NUMBER LOAN NAME ACCT. NUMBER AGREEMENT DATE
1542182 American Physicians 04/15/04
Services Group, Inc.
NOTE AMOUNT INDEX (w/Margin) RATE MATURITY DATE
$3,000,000.00 Wall Street Journal 4.25% 04/15/05
INITIALS LOAN PURPOSE
JDL Commercial
COMMERCIAL LOAN AGREEMENT
Revolving Draw Loan
DATE AND PARTIES. The date of this Commercial Loan Agreement (Agreement) is
April 15, 2004. The parties and their addresses are as follows:
LENDER:
PLAINSCAPITAL BANK
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BORROWER:
AMERICAN PHYSICIANS SERVICES GROUP, INC.
a Texas Corporation
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1. DEFINITIONS. For the purposes of this Agreement, the following terms have the
following meanings.
A. Accounting Terms. In this Agreement, any accounting terms that are not
specifically defined will have their customary meanings under generally accepted
accounting principles.
B. Insiders. Insiders include those defined as insiders by the United States
Bankruptcy Code, as amended; or to the extent left undefined, include without
limitation any officer, employee, stockholder or member, director, partner, or
any immediate family member of any of the foregoing, or any person or entity
which, directly or indirectly, controls, is controlled by or is under common
control with me.
C. Loan. The Loan refers to this transaction generally, including obligations
and duties arising from the terms of all documents prepared or submitted for
this transaction.
D. Pronouns. The pronouns "I", "me" and "my" refer to every Borrower signing
this Agreement, individually or together, and their heirs, successors and
assigns. "You" and "your" refers to the Loan's lender, any participants or
syndicators, or any person or company that acquires an interest in the Loan and
their successors and assigns.
E. Property. Property is any property, real, personal or intangible, that
secures my performance of the obligations of this Loan.
2. ADVANCES. Advances under this Agreement are made according to the following
terms and conditions.
A. Multiple Advances - Revolving. In accordance with the terms of this Agreement
and other Loan documents, you will provide me with a revolving draw note and the
maximum outstanding principal balance will not exceed $3,000,000.00 (Principal).
B. Requests for Advances. My requests are a warranty that I am in compliance
with all the Loan documents. When required by you for a particular method of
advance, my requests for an advance must specify the requested amount and the
date and be accompanied with any agreements, documents, and instruments that you
require for the Loan. Any payment by you of any check, share draft or other
charge may, at your option, constitute an advance on the Loan to me. All
advances will be made in United States dollars. I will indemnify you and hold
you harmless for your reliance on any request for advances that you reasonably
believe to be genuine. To the extent permitted by law, I will indemnify you and
hold you harmless when the person making any request represents that I
authorized this person to request an advance even when this person is
unauthorized or this person's signature is not genuine.
I or anyone I authorize to act on my behalf may request advances by the
following methods.
(1) I make a request in person.
(2)1 make a request by phone.
(3) Online Banking
(4) Cash Management
C. Advance Limitations. In addition to any other Loan conditions, requests for,
and access to, advances are subject to the following limitations.
(1) Obligatory Advances. You will make all Loan advances subject to this
Agreement's terms and conditions.
(2) Advance Amount. Subject to the terms and conditions contained in this
Agreement, advances will be made in exactly the amount I request.
(3) Cut-Off Time. Requests for an advance received before 04:00 PM will be made
on any day that you are open for business, on the day for which the advance is
requested.
(4) Disbursement of Advances. On my fulfillment of this Agreement's terms and
conditions, you will disburse the advance in any manner as you and I agree.
(5) Credit Limit. I understand that you will not ordinarily grant a request for
an advance that would cause the unpaid principal of my Loan to be greater than
the Principal limit. You may, at your option, grant such a request without
obligating yourselves to do so in the future.
(6) Records. Your records will be conclusive evidence as to the amount of
advances, the Loan's unpaid principal balances and the accrued interest.
D. Conditions. I will satisfy all of the following conditions before you either
issue any promissory notes or make any advances under this Agreement.
American Physicians Services Group, inc. Initials /s/WHH
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(1) No Default. There has not been a default under this Agreement or other Loan
documents nor would a default result from making the Loan or any advance.
(2) Information. You have received all documents, information, certifications
and warranties as you may require, all properly executed, if appropriate, on
forms acceptable to you. This includes, but is not limited to, the documents and
other items listed in the Loan Checklist Report which is hereby incorporated by
reference into this Agreement.
(3) Inspections. You have made all inspections that you consider necessary and
are satisfied with this inspection.
(4) Conditions and Covenants. I will have performed and complied with all
conditions required for an advance and all covenants in this Agreement and any
other Loan documents.
(5) Warranties and Representations. The warranties and representations contained
in this Agreement are true and correct at the time of making the requested
advance.
(6) Financial Statements. My most recent financial statements and other
financial reports, delivered to you, are current, complete, true and accurate in
all material respects and fairly represent my financial condition.
(7) Bankruptcy Proceedings. No proceeding under the United States Bankruptcy
Code has been commenced by or against me or any of my affiliates.
3. DEMAND. I agree to fully repay the Loan on demand, but if no demand is made,
I will repay the Loan by April 15, 2005.
4. WARRANTIES AND REPRESENTATIONS. I make to you the following warranties and
representations which will continue as long as this Loan is in effect, except
when this Agreement provides otherwise.
A. Power. I am duly organized, and validly existing and in good standing in all
jurisdictions in which I operate. I have the power and authority to enter into
this transaction and to carry on my business or activity as it is now being
conducted and, as applicable, am qualified to do so in each jurisdiction in
which I operate.
B. Authority. The execution, delivery and performance of this Loan and the
obligation evidenced by the Note are within my powers, have been duly
authorized, have received all necessary governmental approval, will not violate
any provision of law, or order of court or governmental agency, and will not
violate any agreement to which I am a party or to which I am or any of my
property is subject.
C. Name and Place of Business. Other than previously disclosed in writing to you
I have not changed my name or principal place of business within the last 10
years and have not used any other trade or fictitious name. Without your prior
written consent, I do not and will not use any other name and will preserve my
existing name, trade names and franchises.
D. Loan Purpose. This Loan is for Commercial purposes.
E. No Other Liens. I own or lease all property that I need to conduct my
business and activities. I have good and marketable title to all property that I
own or lease. All of my Property is free and clear of all liens, security
interests, encumbrances and other adverse claims and interests, except those to
you or those you consent to in writing.
F. Compliance With Laws. I am not violating any laws, regulations, rules,
orders, judgments or decrees applicable to me or my property, except for those
which I am challenging in good faith through proper proceedings after providing
adequate reserves to fully pay the claim and its challenge should I lose.
G. Legal Dispute. There are no pending or threatened lawsuits, arbitrations or
other proceedings against me or my property that singly or together may
materially and adversely affect my property, operations, financial condition, or
business.
H. Adverse Agreements. I am not a party to, nor am I bound by, any agreement
that is now or is likely to become materially adverse to my business, Property
or operations.
I. Other Claims. There are no outstanding claims or rights that would conflict
with the execution, delivery or performance by me of the terms and conditions of
this Agreement or the other Loan documents. No outstanding claims or rights
exist that may result in a lien on the Property, the Property's proceeds and the
proceeds of proceeds, except liens that were disclosed to and agreed to by you
in writing.
J. Solvency. I am able to pay my debts as they mature, my assets exceed my
liabilities and I have sufficient capital for my current and planned business
and other activities. I will not become insolvent by the execution or
performance of this Loan.
5. FINANCIAL STATEMENTS. I will prepare and maintain my financial records using
consistently applied generally accepted accounting principles then in effect. I
will provide you with financial information in a form that you accept and under
the following terms.
A. Certification. I represent and warrant that any financial statements that I
provide you fairly represents my financial condition for the stated periods, is
current, complete, true and accurate in all material respects, includes all of
my direct or contingent liabilities and there has been no material adverse
change in my financial condition, operations or business since the date the
financial information was prepared.
B. Frequency. Annually, I will provide to you my financial statements, tax
returns, annual internal audit reports or those prepared by independent
accountants as soon as available or at least within days after the close of each
of my fiscal years. Any annual financial statements that I provide you will be
audited statements.
C. SEC Reports. I will provide you with true and correct copies of all reports,
notices or statements that I provide to the Securities and Exchange Commission,
any securities exchange or my stockholders, owners, or the holders of any
material indebtedness as soon as available or at least within days after
issuance.
D. Requested Information. I will provide you with any other information about my
operations, financial affairs and condition
within days after your request.
E. Additional Financial Statements Term. 1. Borrower will provide 10- within 45
days of quarter-end.
2. Borrower will provide 10-K within 90 days of year-end.
3. Borrower will maintain a minimum of $5,000,000 in unencumbered liquidity.
4. Borrower will maintain a debt to worth ratio not to exceed 2:1.
6. COVENANTS. Until the Loan and all related debts, liabilities and obligations
are paid and discharged, I will comply with the following terms, unless you
waive compliance in writing.
A. Participation. I consent to you participating or syndicating the Loan and
sharing any information that you decide is necessary about me and the Loan with
the other participants or syndicators.
B. Inspection. Upon reasonable notice, I will permit you or your agents to enter
any of my premises and any location where my Property is located during regular
business hours to do the following.
(1) You may inspect, audit, check, review and obtain copies from my books,
records, journals, orders, receipts, and any correspondence and other business
related data.
(2) You may discuss my affairs, finances and business with any one who provides
you with evidence that they are a creditor of mine, the sufficiency of which
will be subject to your sole discretion.
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After prior notice to me, you may discuss my financial condition and business
operations with my independent accountants, if any, or my chief financial:
officer and I may be present during these discussions. As long as the Loan is
outstanding, I will direct all of my accountants and auditors to permit you to
examine my records in their possession and to make copies of these records. You
will use your best efforts to maintain the confidentiality of the information
you or your agents obtain, except you may provide your regulator, if any, with
required information about my financial condition, operation and business or
that of my parent, subsidiaries or affiliates.
C. Business Requirements. I will preserve and maintain my present existence and
good standing in the jurisdiction where I am organized and all of my rights,
privileges and franchises. I will do all that is needed or required to continue
my business or activities as presently conducted, by obtaining licenses, permits
and bonds everywhere I engage in business or activities or own, lease or locate
my property. I will obtain your prior written consent before I cease my business
or before I engage in any new line of business that is materially different from
my present business.
D. Compliance with Laws. I will not violate any laws, regulations, rules,
orders, judgments or decrees applicable to me or my Property, except for those
which I challenge in good faith through proper proceedings after providing
adequate reserves to fully pay the claim and its appeal should I lose. Laws
include without limitation the Federal Fair Labor Standards Act requirements for
producing goods, the federal Employee Retirement Income Security Act of 1974's
requirements for the establishment, funding and management of qualified deferred
compensation plans for employees, health and safety laws, environmental laws,
tax laws, licensing and permit laws. On your request, I will provide you with
written evidence that I have fully and timely paid my taxes, assessments and
other governmental charges levied or imposed on me, my income or profits and my
property. Taxes include without limitation sales taxes, use taxes, personal
property taxes, documentary stamp taxes, recordation taxes, franchise taxes,
income taxes, withholding taxes, FICA taxes and unemployment taxes. I will
adequately provide for the payment of these taxes, assessments and other charges
that have accrued but are not yet due and payable.
E. New Organizations. I will obtain your written consent and any necessary
changes to the Loan documents before I organize or participate in the
organization of any entity, merge into or consolidate with any one, permit any
one else to merge into me, acquire all or substantially all of the assets of any
one else or otherwise materially change my legal structure, management,
ownership or financial condition.
F. Dealings with Insiders. I will not purchase, acquire or lease any property or
services from, or sell, provide or lease any property or services to, or permit
any outstanding loans or credit extensions to, or otherwise deal with, any
Insiders except as required under contracts existing at the time I applied for
the Loan and approved by you or as this Agreement otherwise permits. I will not
change or breach these contracts existing at Loan application so as to cause an
acceleration of or an increase in any payments due.
G. Other Debts. I will pay when due any and all other debts owed or guaranteed
by me and will faithfully perform, or comply with all the conditions and
obligations imposed on me concerning the debt or guaranty.
H. Other Liabilities. I will not incur, assume or permit any debt evidenced by
notes, bonds or similar obligations, except:
debt in existence on the date of this Agreement and fully disclosed to you; debt
subordinated in payment to you on conditions and terms acceptable to you;
accounts payable incurred in the ordinary course of my business and paid under
customary trade terms or contested in good faith with reserves satisfactory to
you.
I. Notice to You. I will promptly notify you of any material change in my
financial condition, of the occurrence of a default under the terms of this
Agreement, or a default by me under any agreement between me and any third party
which materially and adversely affects my property, operations, financial
condition or business.
J. Certification of No Default. On your request, my chief financial officer or
my independent accountant will provide you with a written certification that to
the best of their knowledge no event of default exists under the terms of this
Agreement or the other Loan documents, and that there exists no other action,
condition or event which with the giving of notice or lapse of time or both
would constitute a default. As requested, my chief financial officer or my
independent accountant will also provide you with computations demonstrating
compliance with any financial covenants and ratios contained in this Agreement.
If an action, condition or event of default does exist, the certificate must
accurately and fully disclose the extent and nature of this action, condition or
event and state what must be done to correct it.
K. Use of Loan Proceeds. I will not permit the loan proceeds to be used to
purchase, carry, reduce, or retire any loan originally incurred to purchase or
carry any margin stock or otherwise cause the Loan to violate Federal Reserve
board Regulations G, U, or X, or Section 8 of the Securities and Exchange Act of
1934 and its regulations, as amended.
L. Dispose of No Assets. Without your prior written consent or as the Loan
documents permit, I will not sell, lease, assign, transfer, dispose of or
otherwise distribute all or substantially all of my assets to any person other
than in the ordinary course of business for the assets' depreciated book value
or more.
M. No Other Liens. I will not create, permit or suffer any lien or encumbrance
upon any of my properties for or by anyone, other than you, except for:
nonconsensual liens imposed by law arising out of the ordinary course of
business on obligations that are not overdue or which I am contesting in good
faith after making appropriate reserves; valid purchase money security interests
on personal property; or any other liens specifically agreed to by you in
writing.
N. Guaranties. I will not guaranty or become liable in any way as surety,
endorser (other than as endorser of negotiable instruments in the ordinary
course of business) or accommodation endorser or otherwise for the debt or
obligations of any other person or entity, except to you or as you otherwise
specifically agree in writing.
0. No Default under Other Agreements. I will not allow to occur, or to continue
unremedied, any act, event or condition which constitutes a default , or which,
with the passage of time or giving of notice, or both, would constitute a
default under any agreement, document, instrument or undertaking to which I am a
party or by which I may be bound.
P. Legal Disputes. I will promptly notify you in writing of any threatened or
pending lawsuit, arbitration or other proceeding against me or any of my
property, not identified in my financial statements, or that singly or together
with other proceedings may materially and adversely affect my property,
operations, financial condition or business. I will use my best efforts to bring
about a favorable and speedy result of any of these lawsuits, arbitrations or
other proceedings.
Other Notices. I will immediately provide you with any information that may
materially and adversely affect my ability to perform this Agreement and of its
anticipated effect.
R. No in Capital. I will not release, redeem, retire, purchase or otherwise
acquire, directly or indirectly, any of my stock or other equity security or
partnership interest, or make any change in my capital structure, except to the
required by any agreements signed prior to this Agreement and disclosed to you
or with your prior written consent.
S. Loan Obligations. I will comply with the terms and agreements contained in
this Agreement and in the other Loan documents.
T. Insurance. I will obtain and maintain insurance with insurers, in amounts and
coverages that are acceptable to you and customary with industry practice. This
may include without limitation insurance policies for public liability, fire,
hazard and extended risk, workers compensation, and, at your request, business
interruption and/or rent loss insurance. At your request, I will deliver to you
certified copies of all of these insurance policies, binders or certificates, I
will obtain and
American Physicians Services Group, Inc.
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maintain a mortgagee or loss payee endorsement for you when these endorsements
are available. I will immediately notify you of cancellation or termination of
insurance. I will require all insurance policies to provide you with at least 10
days prior written notice to you of cancellation or modification. I consent to
you using or disclosing information relative to any contract of insurance
required by the Loan for the purpose of replacing this insurance. I also
authorize my insurer and you to exchange all relevant information related to any
contract of insurance required by any document executed as part of this Loan.
U. Reserves. You may set aside and reserve Loan proceeds for Loan interest, fees
and expenses, taxes, and insurance.
No interest will accrue on any reserve Loan proceeds. Disbursement of reserves
is disbursement of the Loan's proceeds. At my request, you will disburse the
reserves for the purpose they were set aside for, as long as I am not in default
under this Agreement. You may directly pay these reserved items, reimburse me
for payments I made, or reduce the reserves and increase the Loan proceeds
available for disbursement.
V. Leverage Ratio. I will maintain at all times a ratio of total liabilities to
tangible net worth, determined under consistently applied generally accepted
accounting principles, of 2:01 or less.
W. Additional Covenants. Bank will not permit change Executive Management of
Borrower without prior written approval of Bank, which shall not be unreasonably
delayed, denied, or witheld. Executive Management shall be defined as ▇▇▇
▇▇▇▇▇▇▇, CEO and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CFO.
7. DEFAULT. I understand that yoL) may demand payment anytime at your
discretion. For example, you may demand payment in full if any of the following
occur:
A. Payments. I fail to make a payment in full when due.
B. Insolvency or Bankruptcy. I make an assignment for the benefit of creditors
or become insolvent, either because my liabilities exceed my assets or I am
unable to pay my debts as they become due; or I petition for protection under
federal, state or local bankruptcy, insolvency or debtor relief laws, or am the
subject of a petition or action under such laws and fail to have the petition or
action dismissed within a reasonable period of time not to exceed 60 days.
C. Business Termination. I merge, dissolve, reorganize, end my business or
existence, or a partner or majority owner dies or is declared legally
incompetent.
D. Failure to Perform. I fail to perform any condition or to keep any promise or
covenant of this Agreement.
E. Other Documents. A default occurs under the terms of any other transaction
document.
F. Other Agreements. I am in default on any other debt or agreement I have with
you.
G. Misrepresentation. I make any verbal or written statement or provide any
financial information that is untrue, inaccurate, or conceals a material fact at
the time it is made or provided.
H. Judgment. I fail to satisfy or appeal any judgment against me.
I. Forfeiture. The Property is used in a manner or for a purpose that threatens
confiscation by a legal authority.
J. Name Change. I change my name or assume an additional name without notifying
you before making such a change.
K. Property Transfer. I transfer all or a substantial part of my money or
property.
L. Property Value. The value of the Property declines or is impaired.
M. Material Change. Without first notifying you, there is a material change in
my business, including ownership, management, and financial conditions.
N. Insecurity. You reasonably believe that you are insecure.
8. REMEDIES. After I default, and after you give any legally required notice and
opportunity to cure the default, you may at your option do any one or more of
the following.
A. Acceleration. You may make all or any part of the amount owing by the terms
of the Loan immediately due.
B. Sources. You may use any and all remedies you have under state or federal law
or in any instrument securing the Loan.
C. Insurance Benefits. You may make a claim for any and all insurance benefits
or refunds that may be available on my default.
D. Payments Made On My Behalf. Amounts advanced on my behalf will be immediately
due and may be added to the balance owing under the terms of the Loan, and
accrue interest at the highest post-maturity interest rate.
E. Termination. You may terminate my right to obtain advances and may refuse to
make any further extensions of credit.
F. Set-Off. You may use the right of set-off, This means you may set-off any
amount due and payable under the terms of the Loan against any right I have to
receive money from you.
My right to receive money from you includes any deposit or share account balance
I have with you; any money owed to me on an item presented to you or in your
possession for collection or exchange; and any repurchase agreement or other
non- deposit obligation. "Any amount due and payable under the terms of the
Loan" means the total amount to which you are entitled to demand payment under
the terms of the Loan at the time you set-off.
Subject to any other written contract, if my right to receive money from you is
also owned by someone who has not agreed to pay the Loan, your right of set-off
will apply to my interest in the obligation and to any other amounts I could
withdraw on my sole request or endorsement.
Your right of set-off does not apply to an account or other obligation where my
rights arise only in a representative capacity. It also does not apply to any
Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor occurs
because you set-off against any of my accounts, I agree to hold you harmless
from any such claims arising as a result of your exercise of your right of
set-off.
G. Waiver. Except as otherwise required by law, by choosing any one or more of
these remedies you do not give up your right to use any other remedy. You do not
waive a default if you choose not to use a remedy. By electing not to use any
remedy, you do not waive your right to later consider the event a default and to
use any remedies if the default continues or occurs again.
9. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent
permitted by law, I agree to pay all expenses of collection, enforcement or
protection of your rights and remedies under this Agreement. Expenses include,
but are not limited to, reasonable attorneys' fees, court costs, and other legal
expenses. These expenses are due and payable immediately. If not paid
immediately, these expenses will bear interest from the date of payment until
paid in full at the highest interest rate in effect as provided for in the terms
of this Loan. All fees and expenses will be secured by the Property I have
granted to you, if any. To the extent permitted by the United States Bankruptcy
Code, I agree to pay the reasonable attorneys' fees you incur to collect this
debt as awarded by any court exercising jurisdiction under the Bankruptcy Code.
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10. APPLICABLE LAW. This Agreement is governed by laws of Texas, the United
States of America and to the extent required, by the laws of the jurisdiction
where the Property is located. In the event of a dispute, the exclusive forum,
venue and place of jurisdiction will be in Texas, unless otherwise required by
law.
11. JOINT AND INDIVIDUAL LIABILITY AND SECCESSORS. My obligation to pay this
Loan is independent of the obligation of any other person who has also agreed to
pay it. You may ▇▇▇ me alone, or anyone else who is obligated on this Loan, or
any number of us together, to collect this Loan. Extending this Loan or new
obligations under this Loan, will not affect my duty under this Loan and I will
still be obligated to pay this Loan. The duties and benefits of this Loan will
bind and benefit the successors and assigns of you and me.
12. AMENDMENT, INTEGRATION AND SEVERABILITY. This Agreement may not be amended
or modified by oral agreement. No amendment or modification of this Agreement is
effective unless made in writing and executed by you and me. This Agreement is
the complete and final expression of the understanding between you and me. If
any provision of this Agreement is unenforceable, then the unenforceable
provision will be severed and the remaining provisions will still be
enforceable.
13. INTERPRETATION. Whenever used, the singular includes the plural and the
plural includes the singular. The section headings are for convenience only and
are not to be used to interpret or define the terms of this Agreement.
14. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
party will be deemed to be notice to all parties. I will inform you in writing
of any change in my name, address or other application information. I will
provide you any financial statement or information you request. All financial
statements and information I give you will be correct and complete. I agree to
sign , deliver, and file any additional documents or certifications that you may
consider necessary to perfect, continue, and preserve my obligations under this
Loan and to confirm your lien status on any Property. Time is of the essence.
15. SIGNATURES. By signing, I agree to the terms contained in this Agreement. I
also acknowledge receipt of a copy of this Agreement.
BORROWER:
American Physicians Services Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board, CEO and President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice-President-Finance, Secretary.
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