zynex10q33109x101_51309.htm


     

    Exhibit
10.1

    
 

    

     

    
 

     

    AMENDMENT
NO. 1 TO LOAN AND SECURITY AGREEMENT

     

    


    
 

    
      This
Amendment No. 1 to Loan and Security Agreement (“Amendment No. 1”) is executed
by and between Marquette Business Credit, Inc., d/b/a/ Marquette Healthcare
Finance, Standard Insurance Center, 900 SW Fifth Avenue, Suite 1920, Portland,
Oregon 97204, (“Lender”)
and Zynex, Inc. and Zynex Medical, Inc., f/d/b/a Stroke Recovery Systems, 8022
Southpark Circle, Suite 100, Littleton, Colorado
80120   (collectively, “Borrower”), as of December 1,
2008, regardless of the date of signing.  Lender and Borrower wish to
amend certain terms in the Loan and Security Agreement dated September 22, 2008
and Amendment No. 1 to Loan and Security Agreement dated December 1, 2008 as
follows:

    

    


    
      	
              Section
      1.  

            	
              Section 1.1 of
      the Agreement is amended as
follows:

            


    

     

    
      
        A.  The
existing definition of “Base Rate” is deleted and replaced it in its entirely as
follows:

      

      


          “Base Rate”
means, for any day, a rate per annum equal to the higher of (i) the Prime Rate
in effect on such day, or (ii) the LIBOR Rate plus two percent (2.00%), which
LIBOR Rate shall be determined by Lender on a daily basis (or, if such day is
not a Business Day, on the preceding Business Day).  Any change in the
Base Rate resulting from a change in either the Prime Rate or the LIBOR Rate
shall become effective on the day such change occurs.

      


      
        B.  The
following terms are added as defined terms to the Agreement as
follows:

      

      


          “Business Day” means a day on which
(a) Lender is open for business and (b) commercial banks are open with respect
to the transaction of international commercial banking business (including
dealings in Dollar deposits) in London, England.

      


          “LIBOR Rate” means, on any date of
determination, the British Bankers’ Association LIBOR Rate, as published by
Reuters (or any other commercially available, generally recognized financial
information source providing quotations of British Bankers’ Association LIBOR
Rate as determined by Lender from time to time) at approximately 11:00 a.m.,
London time, on such day (or, if such day is not a Business Day, on the
preceding Business Day) for dollar deposits in the amount of $1,000,000 with a
maturity of one month.

      


          “Prime Rate” means the rate per annum
published from time to time in the “Money Rates” table of The Wall Street Journal (or such other
presentation within The Wall Street
Journal as may be adopted hereafter for such information) as the base or
prime rate for corporate loans at the nation’s largest commercial banks (or if
more than one such rate is published, the higher or highest of the rates so
published).  If such rate is no longer published by The Wall Street Journal, then Lender shall, in
its sole and absolute discretion, substitute the base or prime rate for
corporate loans at a large commercial bank for the base rate published in The Wall Street Journal.  Such rate
may not necessarily be the lowest or best rate actually charged to any customer
of such commercial bank.


    

    


    
      
        
          
             

          

           


        

        
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                  Section
      2.  

                	
                  Any
      Default that would otherwise arise under the Agreement without this
      Amendment No. 1 for Borrower’s failure to meet Minimum EBITDA for the
      quarter ending September 30, 2008 is waived by
  Lender.

                


        

         



      
        	
                Section
      3.  

              	
                Existing
      Schedule A is deleted and replaced in its entirety with the attached
      Schedule A, which is expressly incorporated into the
      Agreement.

              


      

       

    

     

    
      	
              Section
      4.  

            	
              Except as expressly amended by
      this Amendment, all other terms of the Agreement are unamended and in full
      force and effect.

            


    

     

    


    


    ZYNEX,
INC.

    


    


    By:       /s/
Thomas
Sandgaard                                                         

    Name:  Thomas
Sandgaard

    Title:  Chief
Executive Officer and President

    


    


    ZYNEX
MEDICAL, INC., f/d/b/a Stroke Recovery 

    Systems

    


    


    By:       /s/
Thomas
Sandgaard                                                         

    Name:  Thomas
Sandgaard

    Title:  President

    


    


    MARQUETTE
BUSINESS CREDIT, INC., d/b/a 

    MARQUETTE
HEALTHCARE FINANCE

    


    


    By:       /s/
Jennifer
Sheasgreen                                                         

    Name:  Jennifer
Sheasgreen

    Title:  Senior
Vice President

    


    


    


    
      
        
          
             

          

           


        

        
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    Schedule
A

    (Revised
by Amendment No. 1)

    Supplemental
Terms and Conditions

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	
                                                  Facility
      Limit:

                                                	 	
                                                  $3,000,000

                                                   

                                                
	
                                                  Margin:

                                                	 	
                                                  2.5%

                                                   

                                                
	
                                                  Default
      Rate:

                                                	 	
                                                  3.0%
      above the Interest Rate (i.e., Base Rate plus Margin).

                                                   

                                                
	
                                                  Concentration
      Limit*:

                                                	 	
                                                  N/A

                                                   

                                                
	
                                                  Advance
      Rate on Eligible Accounts*:

                                                   

                                                   

                                                	 	
                                                  85%
      of Eligible Accounts less than 120 days from the invoice
date;

                                                  Account
      debtors with 50% or more of their total Account balance aged beyond 120
      days are ineligible, except for Medicare and Anthem Blue
      Cross.

                                                   

                                                
	 	 	 
	
                                                  NCV
      (by Account Debtor type)*

                                                	 	 
      
	
                                                  Medicare

                                                	 	
                                                  26%

                                                   

                                                
	
                                                  Commercial

                                                	 	
                                                  36%

                                                   

                                                
	
                                                  Unlitigated
      Workers Compensation

                                                	 	
                                                  36%

                                                   

                                                
	
                                                  Self-pay

                                                	 	
                                                  0%

                                                   

                                                
	
                                                  Reserve
      (initial amount)*:

                                                	 	
                                                  $0.00

                                                   

                                                
	
                                                  Origination
      Fee:

                                                	 	
                                                  1.5%
      of the Facility Limit ($45,000) (already paid on the date of execution of
      the Loan and Security Agreement).

                                                   

                                                
	
                                                  Termination
      Date:

                                                	 	
                                                  3
      years from the Closing Date

                                                   

                                                
	
                                                  Minimum
      Facility Availability as of the Closing Date after giving effect to the
      first Advance of the Loan and the Reserve established by
      Lender:

                                                	 	
                                                  $150,000

                                                   

                                                   

                                                
	
                                                  Minimum
      EBITDA

                                                	 	
                                                  Borrower’s
      Minimum EBITDA (on a trailing twelve-month basis) as of each quarterly
      reporting period shall be as set forth below:

                                                  9/30/08:    Default
      Waived by Lender

                                                  12/31/08:  $6,500,000

                                                  3/31/09:    $7,500,000

                                                  6/30/09:    $8,200,000

                                                  9/30/09:    $11,500,000

                                                  12/31/09
      and Thereafter:
      $13,000,000

                                                   

                                                


                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
          
             

          

           


        

        
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      Schedule
A (continued)

      Supplemental
Terms and Conditions


    

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      Minimum
      Debt Service Coverage Ratio

                                    	 	
                                      From
      9/30/08 and thereafter, Borrower’s Minimum Debt Service Coverage Ratio
      shall be at least 3.0 to 1.0, measured on a quarterly basis.

                                       

                                    
	
                                      Minimum
      Current Ratio

                                    	 	
                                      From
      9/30/08 and thereafter, Borrower’s Minimum Current Ratio shall be at least
      1.5 to 1.0, measured on a quarterly basis.

                                       

                                    
	
                                      Capital
      Expenditures:

                                       

                                    	 	
                                      Borrower
      shall not, directly or indirectly, make or incur (i) unfinanced Capital
      Expenditures which exceed, in the aggregate, $600,000 in any fiscal year,
      or (ii) financed Capital Expenditures which exceed, in the aggregate,
      $800,000 in any fiscal year, exclusive of amounts Borrower expends for
      rental units that are rented to patients by Borrower.

                                       

                                    
	
                                      Maximum
      outstanding principal purchase money Indebtedness to finance, or provide
      the funds for, the acquisition of assets (used for the calculation of
      Permitted Indebtedness):

                                    	 	
                                      Total
      purchase money Indebtedness is limited in all respects in accordance with
      the provisions of the Agreement related to Capital
      Expenditures.  Purchase money Indebtedness other than Capital
      Expenditures without the prior consent of Lender is
      prohibited.

                                       

                                    
	
                                      Threshold
      for notice for amounts in dispute as set forth in Section 6.3(a).

                                    	 	
                                      $5,000

                                       

                                    
	
                                      Threshold
      for notice with respect to returns and credits as set forth in Section 6.3(b).

                                    	 	
                                      $25,000

                                       

                                    
	
                                      Account
      reduction limit as set forth in Section
      6.3(c).

                                    	 	
                                      $5,000
      with respect to a single account

                                      $25,000
      in the aggregate in any fiscal year

                                       

                                    
	
                                      Cut-Off
      Date:

                                    	 	
                                      120
      days after the date of invoice.

                                       

                                    
	
                                      Cross-Age
      Percentage*:

                                    	 	
                                      50%
      of total balance due from any insurance company that is aged beyond 120
      days with the exception of Medicare and Anthem Blue Cross.

                                       

                                    
	
                                      Annual
      Facility Fee:

                                    	 	
                                      None

                                       

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
          
             

          

           


        

        
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    Schedule
A (continued)

    Supplemental
Terms and Conditions

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                          Early
      Termination Fee:

                                        	 	
                                          3%
      of the Facility Limit prior to the first annual anniversary of the Closing
      Date; 2% of the Facility Limit at anytime from the first anniversary to
      the second annual anniversary of the Closing Date: and 1% at anytime from
      the second anniversary to the day prior to the Termination Date of the
      Loan.

                                           

                                        
	
                                          Unused
      Line Fee:

                                        	 	
                                          0.5%
      per annum payable monthly in arrears on the first day of each month,
      calculated on the difference between the average daily balance and the
      total Facility Limit

                                           

                                        
	
                                          Collateral
      Monitoring Fee:

                                        	 	
                                          $1,500
      per month, payable monthly in arrears on the first day of each
      month.

                                           

                                        
	
                                          Collection
      Clearance Days:

                                        	 	
                                          3
      business days clearance on all items deposited into all Lockbox
      Accounts.

                                           

                                        
	
                                          Over
      Advance Fee:

                                        	 	
                                          TBD

                                           

                                        
	
                                          Irregular
      Advance Request Fee:

                                        	 	
                                          1%
      of the amount of Borrower’s Advance Request not submitted in conformance
      with the requirements of this Agreement.

                                           

                                        
	
                                          Closing
      and legal fees:

                                        	 	
                                          All
      closing and legal fees incurred by Lender in connection with the Loan and
      the Agreement.

                                           

                                        
	
                                          Audit
      Fee:

                                        	 	
                                          In
      the event third-party auditors conduct the audit: actual audit fees
      incurred plus all out of pocket expenses.

                                           

                                          In
      the event Lender’s auditors conduct the audit: $1,000 per day, per
      auditor, plus all out of pocket expenses.

                                           

                                        
	
                                          Mailing
      Charges:

                                        	 	
                                          All
      costs and expenses of Lender.

                                           

                                        
	
                                          Wire
      Transfer Fees:

                                        	 	
                                          $20.00
      per wire

                                           

                                        
	
                                          Waiver
      Fee:

                                        	 	
                                          TBD

                                           

                                        
	
                                          Termination
      Reserve

                                        	 	
                                          $10,000

                                           

                                        


                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    * Subject
to change from time to time in Lender’s sole discretion.

    


    
      
        
          
             

          

           


        

        
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