Ex-10.33 Loan Restructuring Agreement HTML
RESTRUCTURING AND RESTATEMENT AGREEMENT
THIS LOAN RESTRUCTURING AND
RESTATEMENT AGREEMENT (Agreement) dated this 19th day of
November 2000, is made by and between eBANKER USA.COM, INC., a Colorado
corporation (eBanker or Lender) having an address of
1700 Lincoln Street, 31st Floor, Denver, Colorado 80203 and GLOBAL MED
TECHNOLOGIES, INC., a Colorado corporation (Global or
Borrower) having an address of 12600 West Colfax Avenue, Suite C420,
Lakewood, Colorado 80215:
NOW, THEREFORE, in
consideration of the promises, covenants and the mutual agreements contained in
this Agreement and other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, Lender and Borrower
hereby covenant and agree as follows:
Reference is hereby made to
the following existing Loan Balances ("Existing Balances"):
1. $1,650,000: In October
1998, and later amended, eBanker accepted assignment of this Global Med
promissory note from Fronteer Capital ($1.65M Note)
2. $1,000,000: In October
1998, and later amended, eBanker purchased notes receivable from Global Med to
Online Credit Limited ($1M Note).
3. $750,000: In March 1999,
and later amended, eBanker entered in a bridge loan agreement with Global Med
($750k Bridge Loan).
4. $2,000,000: In October
1999, and later amended, eBanker entered into a bridge loan agreement with
Global Med ($2M Bridge Loan).
1.1 Reduction of Certain
Debt; Conversion of Warrants.
eBanker agrees to exercise
existing warrants to purchase eight million (8,000,000) shares of common stock
of Global Med for two million dollars ($2,000,000) at $0.25 per share. Global
Med agrees to accept two million dollars ($2,000,000) in exchange for the $1M
Note and one million dollars ($1,000,000) of the $1.65M Note which, under the
terms of the Notes, are due January 9, 2001.
MERGER OF LOANS AND PROMISSORY NOTE
2.1 Agreement to
Subject to all of the
terms, provisions, conditions, covenants and agreements contained in this
Agreement, eBanker will extend and merge the balances and existing interest on
the Existing Balances (minus $2.0 M forgiven in Article I above)(New
Loan). The amount of the new principal is $3,828,700.00 (New
Principal). Interest accrues at 12% (twelve percent) per annum payable
semi-annually. The principal and interest shall be due and payable in full on
July 1, 2001. There are no prepayment penalties. All payments to the loan will
apply to accrued interest prior to reducing principal.
2.2. Loan Fee.
In order to induce Lender
to enter into this Agreement, upon execution of this Agreement Global Med
will pay eBanker a commitment fee of 5% (five percent) of the New Principal,
which eBanker agrees to take in the form of 197,600 shares of Global Med
restricted common stock at the prevailing market price as of the date of this
Until the automatic
extension date of July 1, 2001 (as described in Section 2.4), the New Loan will
be convertible, in full or in part, into common stock of Global Med at $1.00 per
2.4 Automatic Extension.
On July 1, 2001, if the
principal and interest outstanding of the New Loan is not repaid in full, the
remaining New Principal will automatically be extended until July 1, 2003, the
$1.00 per share conversion feature of the New Loan will be terminated, and
eBanker will be awarded up to 10,186,430 warrants to purchase shares of the
Company at $0.50, expiring July 1, 2011. The number of warrants is the amount of
warrants that eBanker would have been entitled to, under eBanker and Global
Meds loan agreements that included a automatic extension clause, on the
respective maturity dates of the loan agreements. If Global Med pays down the
New Principal, in part or in full, Global Med can reduce the warrants owed to
eBanker on July 1, 2001 at the same rate that it has paid down the New
Principal. In other words, the warrants can be reduced, on July 1, 2001,
pursuant to this formula:
Remaining unpaid New
Principal of New Loan
Upon a default of this
Agreement or a Security Agreement, among other remedies eBanker may have,
eBanker may elect to convert the outstanding principal and interest into shares
of the Global common stock at $1.00 per share. As consideration for this
increase from the default conversation rates from the Existing Loans, eBanker
will be issued 500,000 restricted shares of Global Med common stock.
Global Med will secure the
New Loan with its assets including its shares in PeopleMed.Com, Inc., and the
assets of PeopleMed.Com, Inc. and Global Med, including intellectual property.
The Parties agree to execute a Security Agreement and agree to incorporate that
Security Agreement herein.
Global Med will register
and maintain the registration for all present and future shares, including
shares underlying derivatives, belonging to eBanker. As soon as practicably
possible, Global Med will hold a special shareholders meeting to authorize an
increase in authorized common share capital to, at least, allow for the terms of
2.8 Global Med Optional
In addition, upon Global
Med and the American Red Crosss agreement to provide Global Med products
and services advancing out of a pilot program into the initiation of a
nationwide roll out of SafeTrace Tx, Global Med, at its discretion, will be able
to put up to $1.5 million worth of common shares to eBanker at $0.50 per share
in exchange for existing debt, on, or prior to, July 1, 2003, limited to the
total debt remaining at that time.
2.9 Use of Proceeds.
The Borrower represents,
warrants, covenants, acknowledges and agrees to and with Lender that the
proceeds of the Loan shall be used by Borrower solely for business or investment
purposes and shall not be used for personal, family, household or agricultural
2.10 Relationship of
The relationship between
Borrower and Lender is that of a borrower and a lender only and neither of the
parties is, nor shall hold themselves out to be, the agent, employee, joint
venturer or partner of the other party.
2.11 Ruxin Guaranty.
The Personal Guaranty of
Dr. Michael I. Ruxin, as dated August 12, 1998, and assigned to eBanker, is
reduced from $1.5 million to $650,000 plus pro rata interest. This Personal
Guaranty and its terms are hereby incorporated by reference. eBanker and Michael
I. Ruxin, M.D. agree that they will meet in the next thirty days to discuss and
reconsider the Ruxin Personal Guaranty.
MANAGEMENT OF BORROWER
3.1 Borrower's Board of
In accordance with the
terms of the prior Loan Documents, Borrower and its Board of Directors have
taken the following actions:
Increased the number of members to the Borrower's Board of Directors to
Appointed five members selected by Lender and/or a company affiliated with the
Lender, to the Borrower's Board of Directors.
For so long as any amounts
remain due hereunder or under any other Loan Documents, including the Notes,
Borrower and its Board of Directors shall support in any election of directors
by the shareholders of Borrower, those members appointed to the Board of
Directors that were selected by Lender and/or its affiliates. Further, Lender
and/or its affiliates shall have the right to select a replacement director for
any member of the Borrowers Board of Directors that was selected by either
Lender or its affiliates who resigns or otherwise fails to serve as a director.
3.2 Resignation Letters of
the Members of the Board of Directors.
The resignation letters of
the Members of the Board of Directors received under prior agreements, whose
letters of resignation have been and shall continue to be held in escrow by
Lender, shall be preserved subject to all of the terms and conditions of this
BORROWER'S REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties.
Borrower hereby represents
and warrants to Lender as follows:
Borrower is duty incorporated and is validly existing and in good standing under
the laws of the State of Colorado and Borrower has all requisite power and
authority to conduct its business, to own its properties and to execute, deliver
and perform all of its obligations under this Agreement;
the execution, delivery and performance of the Agreement by the Borrower have
been authorized by all necessary corporate actions and does not and will not
contravene any legal or contractual restriction binding, on the Borrower or any
of the property and assets thereof;
the Agreement constitutes, and any other agreement required hereby will
constitute, when executed and delivered by Borrower to Lender, legal, valid and
binding obligations of Borrower, enforceable in accordance with their terms and
the execution and delivery by Borrower of the Agreement and consummation of all
the transactions contemplated thereby, do not and will not conflict with, or be
in contravention of, any law, order, rule or regulation applicable to Borrower
or any agreement or instrument to which Borrower is a party;
there is no legal action, suit, proceeding or investigation by or before any
governmental instrumentality or other agency now pending, threatened against or
affecting the Borrower, which would bring into question the validity of the
other than any pro forma financial reports, all balance sheets, income
statements, financial statements, operating statements and other financial data
pertaining to Borrower that are publicly on file or have been delivered (or will
be delivered ) to Lender by or on behalf of Borrower are or will be accurate and
complete in all material respects and accurately present or will present the
financial condition of the Borrower as of their respective dates and there has
been no material change with respect thereto, to the best of Borrower's
5.1 Covenants of
So long as the Loans shall
remain unpaid, Borrower covenants and agrees as follows:
Borrower shall not increase the number of members to serve on the Borrower's
Board of Directors above nine without the written permission of Lender;
Upon the request of Lender, Borrower shall use its best efforts to obtain a
letter of resignation from each member of the Board of Directors who was elected
or appointed to replace any member of the Board of Directors of Borrower who had
previously executed and delivered to Lender a letter of resignation in
accordance with Article 3 this Agreement and deliver such letter of resignation
to Lender to be held in escrow in accordance with Article 3 this
Without the express written consent of Lender, which consent may not be
unreasonably withheld, Borrower shall not enter into any contracts, agreements,
leases, instruments or other documents of any kind or nature, with any third
party, other than such contracts, agreements, leases, instruments or other such
documents entered into in the normal course of Borrower's business and which do
not, in the aggregate, exceed a monetary obligation on behalf of the Borrower in
excess of $250,000.
Without Lender's prior written consent, Borrower shall not authorize or
otherwise permit any stock splits, reverse stock splits; stock dividends;
mergers or consolidations; recapitalization of Borrower; or the sale of any
assets of Borrower other than sales of assets in the normal course of Borrower's
Borrower shall not, without the prior written consent of Lender, grant or permit
any security interest in any of the assets of Borrower to anyone, including, but
not limited to, purchase money security interests to trade creditors.
Borrower will, at its expense, furnish to Lender promptly and upon request such
instruments including, without limitation, other instruments in addition to
those specifically provided for herein, and take all further actions as Lender
may reasonably require from time to time in order to fully comply with the terms
of this Agreement.
Borrower will maintain and preserve its corporate existence, as applicable,
under the laws of every jurisdiction, in which it does business.
Financial statements of Borrower which have been audited by a certified public
accountant, and income tax returns for the Borrower are to be provided to Lender
as soon as reasonably possible after the end of each fiscal year of Borrower
during the term of the Loans.
Borrower will immediately notify Lender of any event or circumstance, which
reasonably could be deemed to have a materially adverse effect on Borrower's
financial condition or Borrower's ability to perform its agreements and
obligations under the Agreement.
Borrower shall notify Lender in writing prior to the time there is any change of
name, identity or business structure of Borrower, including the addition of any
DEFAULT AND REMEDIES
6.1 Events of Default.
The occurrence of any one
or more of the following, events or the existence, of one or more of the
following conditions shall constitute an event of default under this Agreement:
Nonpayment. Borrower shall fail to pay any installment of principal or interest
due under this Agreement, whether due on the date provided for therein or by
acceleration or otherwise.
Other Defaults. The occurrence of any of the following events:
any representation or warranty made to Lender by Borrower in this Agreement or
Security Agreement, or otherwise in connection with the making of the Loan shall
prove at any time to have been incorrect in any material respect when made; or
the breach, default or violation by Borrower of any obligation, agreement or
covenant contained in the Agreement, or Security Agreement, executed by
any material provision of any of the Agreement, or Security Agreement, shall at
any time for any reason cease to be in full force and effect or shall be
declared to be null and void; or
any litigation or proceeding is pending which, in Lender's discretion, may
materially adversely affect the ability of Borrower to perform its obligations
under the Agreement; or
Borrowers failure to comply with any other covenants or agreements
contained in any of the Agreement and not herein specifically referenced, unless
the same is cured within any applicable grace periods.
A default under the
Security Agreement shall constitute a default under this Agreement, and any
default under this agreement shall constitute a default under the Security
Agreement, and shall entitle Lender to pursue any and all remedies under each or
any of the Agreement.
Upon the occurrence of any event of default hereunder as above provided, and at
any time thereafter, all principal, interest and other amounts payable under the
Loan Documents shall, at the option of Lender, become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by Borrower. Lender may proceed with every remedy
available at law or in equity or provided for in the Loan Documents or in any
other document executed in connection with the Loan, in such order or sequence
as Lender may determine in its sole discretion, including concurrently,
independently, or successively, and all expenses incurred by Lender in
connection with any remedy shall be deemed indebtedness of Borrower to Lender
including, but not limited to, reasonable attorney's fees incurred by
In addition to any other right or remedy Lender may have hereunder or under any
of the Notes or other Loan Documents, Lender may pursue any or all of the
following additional remedies, to wit:
Demand the resignation of any or all of the members of the Board of Directors of
Borrower, and if such members refuse to resign, deliver to the Borrower the
letters of resignation held by Lender in escrow in accordance with Article 3 of
this Agreement, and thereafter Lender shall have the right to appoint such
resigned or terminated members replacement to the Board of
All notices, communications
and materials to be given or delivered pursuant to the Agreement shall, except
in those, cases where giving notice by telephone is expressly permitted, be
given or delivered in writing to the address of the appropriate party set forth
in the header hereof or at such other address as shall be changed in accordance
with notice provisions of this Section 6.1.
No provision or term of the
Agreement may be amended, modified, revoked, supplemented, waived or otherwise
changed except by a written instrument duly executed by Borrower and Lender and
designated as such.
Whenever possible, each
provision of the Agreement shall be interpreted so as to be effective and valid
under Colorado law. Should any provision, covenant or agreement contained herein
be deemed in valid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be impaired thereby, nor shall the validity, legality or enforceability of
any such defective provision be in any way affected or impaired in any other
7.4 Successors and
Assigns Bound; Assignment.
The covenants and
agreements contained here in shall bind Borrower, its successors and assigns.
Borrower may not assign this Agreement without the prior written consent of
Lender. Subject to the foregoing restriction, this Agreement shall inure to the
benefit of Lender, its successors and assigns.
7.5 No Third Party
This Agreement is made for
the sole benefit of Borrower and Lender and their respective successors and
assigns, and no other person or persons shall have any rights or remedies under
or by reason of this Agreement.
The captions and headings
of the paragraphs in the Agreement are for convenience only and are not used to
interpret or define the provisions of this Agreement.
7.7 Governing Law.
The Agreement and any other
documents executed in connection with the Loan shall be governed by and
interpreted in accordance with the laws of the State of Colorado.
Should any provision of any
other Loan Document conflict with any provision of this Agreement, the provision
selected by Lender, in its sole discretion, shall govern and shall be
LENDER SHALL NOT HAVE ANY
LIABILITY WITH RESPECT TO, AND THE BORROWER HEREBY WAIVES, RELEASES AND AGREES
NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY THE
BORROWER IN CONNECTION WITH ANY LOAN DOCUMENTS OR CLAIM RELATED THERETO.
This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto were upon the same instrument.
7.11 Payment. Any
and all monies received by Lender from Borrower, whether prior or subsequent to
or as a result of a default under the Agreement, shall be applied by Lender
first to any interest due under the Agreement, but thereafter may be applied by
Lender to any of the amounts due under the Agreement.
7.12 Clerical Error.
Borrower hereby irrevocably
authorizes Lender to correct without notice any clerical errors or omissions
that may be present in the Agreement executed in connection with the Loan.
Borrower further understands that such corrections shall not result in any
increase in the amount of the Loan that it must repay to Lender, or any change
of essential terms of repayment of the Loan, Borrower further consents in
advance to the correction of any errors or omissions as outlined herein and
acknowledges that it understands such correction procedure and agrees to such
correction procedure, without prior notice and without the necessity of written
authorization or approval.
IN WITNESS WHEREOF, this
Loan Restructuring And Restatement Agreement has been duly executed and
delivered by the Parties hereto as of the date first written.
Global Med Technologies, Inc. eBanker USA.com, Inc.
/s/ Michael I. Ruxin /s/ Robert H. Trapp