Exhibit 10.1
E XECUTION V ERSION
F OURTH A MENDMENT TO
A MENDED AND R ESTATED C REDIT A GREEMENT
T HIS F OURTH A MENDMENT TO A
MENDED AND R ESTATED C REDIT A GREEMENT (this “Amendment” ) is
entered into as of June 30, 2009, between N
ATUS M EDICAL I NCORPORATED , a Delaware corporation (
“Borrower” ), and W ELLS F ARGO B ANK ,
N ATIONAL A SSOCIATION ( “Bank” ).
R ECITALS
W HEREAS Borrower is currently indebted to Bank pursuant
to the terms and conditions of the Amended and Restated Credit
Agreement, dated as of November 28, 2007 (as amended, modified
or supplemented prior to the date hereof, the “Credit
Agreement” ), between Borrower and Bank; and
W HEREAS Borrower has informed Bank that, for the fiscal
quarter ending June 30, 2009, it will be unable to comply with
the financial condition covenant set forth in Section 6.9(a)
of the Credit Agreement; and
W HEREAS 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 such changes;
N OW ,
THEREFORE , for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Bank and Borrower
hereby agree that the Credit Agreement shall be amended as follows;
provided that nothing contained herein shall terminate any
security interests, guaranties, subordinations or other documents
in favor of Bank, all of which shall remain in full force and
effect unless expressly amended hereby:
Section 1. Definitions .
Each capitalized term used but not otherwise defined herein has the
meaning assigned to it in the Credit Agreement.
Section 2. Amendments to
Credit Agreement . Subject to Section 3 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 6.9(a) of the
Credit Agreement is amended and restated in its entirety to read as
follows:
(a) As of each fiscal quarter end of
Borrower, Consolidated EBITDA not less than the amount set forth
below:
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For each quarterly period ending as of each
fiscal quarter end of Borrower ending on or before
September 30, 2008:
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$
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5,000,000
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For the four consecutive fiscal quarters ending
as of each fiscal quarter end of Borrower ending on
December 31, 2008, March 31, 2009 and
September 30, 2009:
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$
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35,000,000
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For the four consecutive fiscal quarters ending
as of the fiscal quarter end of Borrower ending on June 30,
2009:
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$
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32,000,000
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Section 3. Conditions
Precedent . This Amendment, including, without limitation the
amendments to the Credit Agreement contained herein, shall become
effective as of the date first set forth above (the “
Effective Date ”) upon satisfaction of all of the
conditions set forth in this Section 3 to the satisfaction of
Bank; provided that, in the event such conditions are not so
satisfied, then this Amendment shall be of no further force and
effect:
(a) Bank shall have received each of
the following, duly executed and delivered by each of the
applicable parties thereto:
(i) this Amendment together with the
Consent and Reaffirmation attached hereto; and
(ii) such other documents as Bank
may require under any other Section of this Amendment;
and
(b) No Event of Default or event
which, with the giving of notice, the lapse of time or both would
constitute an Event of Default, shall have occurred and be
continuing.
Section 4.
Interpretation . Except as specifically provided herein, all
terms and conditions
