Amended and Restated Loan Agreement dated as of September 28, 2001
between INTEGRAMED AMERICA, INC., a Delaware corporation with its chief place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the
"Borrower") and FLEET NATIONAL BANK (successor-by-merger to Fleet Bank, N.A.), a
national banking association, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Bank").
RECITALS:
(1) The Borrower and the Bank are parties to the Loan
Agreement, dated as of September 11, 1998 (as heretofore amended, modified and
supplemented (the "Original Agreement").
(2) The Borrower and the Bank wish to amend the Original
Agreement to make certain changes in the terms of the Original Agreement, and to
restate the Original Agreement as amended by such amendments for their
convenience.
(3) Following such restatement, except where otherwise
indicated or otherwise referred to in this Agreement, this Agreement will set
forth the definitive terms and conditions of the agreement of the Borrower and
the Bank regarding the matters covered by this Agreement as of and after the
date the Original Agreement is restated, and the Original Agreement will
continue to govern such terms prior to such date.
NOW, THEREFORE, in consideration for the foregoing agreements and for
other good and valuable consideration whose receipt and sufficiency are
acknowledged, the Borrower and the Bank agree to the following terms.
The parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1 Defined Terms. As used herein the following terms shall have the
following meanings:
"Accounts" shall mean those accounts arising out of the sale or lease
of goods or the rendition of services by the Borrower.
"Account Debtor" shall mean the person who is obligated on or under an
Account.
"Adjusted Net Income" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, the net income (or loss) of
the Borrower and its Subsidiaries on a consolidated basis for such period,
excluding extraordinary items, as determined in accordance with GAAP.
1
"Affiliate" as applied to any Person shall mean any other Person
directly or indirectly through one or more intermediaries controlling,
controlled by, or under common control with, that Person. For the purposes of
this definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise.
"Agreement" shall mean this Loan Agreement, as the same from time to
time may be amended, supplemented or modified.
"Applicable Margin" shall apply to both Revolving Credit Loans and the
Term Loan and means at any time and from time to time the rate per annum above
the Prime Rate, or LIBOR, as the case may be, at all times during which the
applicable Pricing Level set forth below is in effect, the percentage set forth
below next to such Pricing Level and under the applicable column:
Fluctuating Rate Loans LIBOR Loans
---------------------- -----------
Pricing Level I 0.00% 2.75%
Pricing Level II 0.00% 2.50%
Pricing Level III 0.00% 2.25%
In each of the above cases, changes in the Applicable Margin resulting from a
change in a Pricing Level shall be based upon the financial
statements/certificate most recently delivered pursuant to Sections 5.2(a)(i)
and 5.2(b) and shall become effective on the date such financial statements or
certificate, as applicable, are delivered to the Bank in the format required by
this Agreement. Notwithstanding anything to the contrary contained in this
definition, (i) if, at any time and from time to time, the Borrower shall be in
Default of its obligations under Section 5.2, Pricing Level I (as increased
pursuant to Section 2.11(c)) shall apply until such Default is cured, and (ii)
Pricing Level III shall apply during the period commencing on the date of this
Agreement and ending on the date of delivery thereafter of the financial
statements/certificate covering the fiscal period of the Borrower ending on
September 30, 2001.
"Borrowing Base" shall mean at any time 50% of the Borrower's Eligible
Accounts Receivable at such time minus $1,000,000.
"Borrowing Base Certificate" shall mean a certificate substantially in
the form of Exhibit D hereto.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York are authorized or
required to close under the laws of the State of New York and, if the applicable
day relates to a LIBOR Loan or an Interest Period for a LIBOR Loan, "Business
Day" means the day on which dealings in Dollar deposits are also carried in the
London interbank market and banks are open for business in London and to the
extent "Business Day" is used in the context of any other specific city it shall
mean any date on which commercial banks are open for business in that city.
2
"Capital Expenditures" shall mean for any period, the additions to
property, plant and equipment and other capital expenditures of such Person for
such period as the same are or would be set forth in a consolidated statement of
cash flows of such Person for such period (or the notes thereto) prepared in
accordance with generally accepted accounting principles.
"Capitalized Lease" shall mean any lease the obligations to pay rent or
other amounts under which constitute Capitalized Lease Obligations.
"Capitalized Lease Obligations" shall mean as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be capitalized under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Capital Stock" shall mean as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit or
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any commercial bank having capital in
excess of $200,000,000, (c) repurchase obligations of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term not
more than seven days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a domestic
issuer rated at least A-1 or the equivalent thereof by Standard & Poor's Ratings
Group ("S&P") or P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Services,
Inc. ("Moody's") and in either case maturing within one year from the date of
acquisition, (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's, (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
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"Change in Control" shall mean that after the date of this Agreement
the ownership of the Borrower's outstanding Capital Stock shall change such that
any one Person or any one group of Affiliated Persons owns directly or
beneficially more than 50% of the issued and outstanding Capital Stock of the
Borrower.
"Cleanup Laws" shall mean any federal, state or local statute or
regulation relating to hazardous or toxic wastes or substances or the removal
thereof.
"Collateral" shall mean the collateral described in Section 9 of this
Agreement.
"Commitment" shall mean the obligation of the Bank to make Revolving
Credit Loans and to issue SBLCs for the account of the Borrower during the
Commitment Period pursuant to the terms hereof as such Commitment is described
in Section 2.1(a) hereof and as subject to reduction in accordance with the
terms hereof.
"Commitment Letter" shall mean the letter agreement between the
Borrower and the Bank dated August 10, 2001.
"Commitment Period" shall mean the period from and including the date
hereof to and including the Termination Date or such earlier date as the
Commitment shall terminate as provided herein.
"Consolidated" or "consolidated" shall mean the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Debt Service" shall mean for any period, the sum of (i)
Consolidated Interest Expense for such period and (ii) all scheduled payments of
principal on Consolidated Funded Debt during such period, including payments
made on account of Capitalized Leases.
"Consolidated EBITDA" shall mean, with respect to the Borrower and its
Subsidiaries for any period, the sum of (i) Adjusted Net Income, (ii) Interest
Expense, (iii) depreciation, amortization and other non-cash charges and (iv)
provision for Federal, state and local income taxes, in each case of the
Borrower and its Subsidiaries on a consolidated basis for such period, computed
in accordance with GAAP.
"Consolidated Effective Net Worth" shall mean at any date of
determination, the sum of capital surplus, earned surplus (or accumulated
deficit), the par value of each class of capital stock multiplied by the number
of outstanding shares of such class of capital stock, additional paid-in capital
and Subordinated Debt of the Borrower and its Subsidiaries on a Consolidated
basis.
"Consolidated Funded Debt" shall mean at any date of determination, the
aggregate funded indebtedness (as determined in accordance with GAAP) of the
Borrower and its Subsidiaries, determined on a Consolidated basis in accordance
with GAAP, on such date.
4
"Consolidated Interest Expense" shall mean, with respect to the
Borrower and its Subsidiaries for the applicable period of determination
thereof, the interest expense of the Borrower and its Subsidiaries during such
period determined on a Consolidated basis in accordance with GAAP.
"Consolidated Senior Funded Debt" shall mean at any date of
determination, the aggregate funded indebtedness of the Borrower that does not
constitute Subordinated Debt, determined on a Consolidated basis in accordance
with GAAP, on such date.
"Consolidated Tangible Net Worth" shall mean the sum of capital
surplus, earned surplus and capital stock minus deferred charges, intangibles
and treasury stock, all determined on a Consolidated basis in accordance with
GAAP.
"Consolidating" or "consolidating" shall mean the Borrower and its
Subsidiaries each taken separately.
"Continuation/Conversion Notice" is defined in Section 2.9.
"Contractual Obligations" shall mean as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Controlled" and "Control" shall mean any partnership, corporation or
other entity of which the Borrower, alone, or the Borrower and/or one or more of
its Subsidiaries, either has the power to direct the management or the power to
direct at least a majority of the voting interests.
"Default" shall mean any of the events specified in this Agreement
under "Events of Default", whether or not any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Eligible Accounts Receivable shall mean those Accounts (i) which do
not remain unpaid for more than 90 days from the original date of invoice, and
(ii) have been validly assigned to the Bank and, are subject to a first priority
Lien in favor of the Bank and comply with all of the terms, conditions,
warranties and representations made to the Bank under this Agreement and the
other Loan Documents; but Eligible Accounts Receivable shall not include the
following: (a) Accounts with respect to which the Account Debtor is an officer,
director, employee, or agent of the Borrower or an Affiliate; (b) Accounts
arising from a sale of goods which are placed on consignment, or subject to
5
guaranteed sale, ▇▇▇▇-and-hold, repurchase or return, or other terms by reason
of which the payment of the Account Debtor may be conditional; (c) Accounts
arising from invoices for deposits, and rebills of amounts previously credited
to the extent of credits issued more than fifteen (15) days prior to such
rebill; (d) Accounts with respect to which the Account Debtor is not domiciled
in the United States of America unless such Account is fully secured by an
irrevocable letter of credit acceptable to the Bank and in favor of or assigned
to the Bank; (e) Accounts with respect to which the sale is on an installment
sale, lease or other extended payment basis; (f) Accounts with respect to which
the Account Debtor is a federal, state, local or foreign governmental authority
unless such governmental authority is the United States of America or any
department, agency or instrumentality of the Untied States, and the Borrower
complies with the Assignment of Claims Act of 1940, as amended (31 U.S.C.
Section 203 et seq.; (g) Accounts with respect to which the Account Debtor is a
Subsidiary of, Affiliate of, or has common officers or directors with the
Borrower; (h) Accounts with respect to which the Bank does not for any reason
have a perfected first priority Lien; (i) Accounts with respect to which the
Borrower is or may become liable to the Account Debtor for goods sold or
services rendered by the Account Debtor to the Borrower, to the extent of the
Borrower's existing or potential liability to such Account Debtor; (j) Accounts
with respect to which the Account Debtor has disputed any liability, or the
Account is otherwise subject to any right of setoff, deduction, breach of
warranty or other defense, dispute or counterclaim by the Account Debtor but
such Account shall be ineligible only to the extent of the disputed or otherwise
disallowed amount; (k) that portion of any Accounts representing late fees,
service charges or interest, but only to the extent of such portion; (l)
Accounts of an Account Debtor where the Account Debtor is located in New Jersey
or Minnesota unless the Borrower (1) with respect to such state, has received a
Certificate of Authority to do business and is in good standing in such state,
or (2) has filed a Notice of Business Activities Report with the New Jersey
Division of Taxation or the Minnesota Department of Revenue, as applicable, for
the then current year; (m) Accounts owed by any Account Debtor which is
insolvent or is the subject of an insolvency proceeding; (n) that portion or any
Accounts represented by an instrument, or chattel paper; and (o) any and all
Accounts of an Account Debtor whose creditworthiness is not satisfactory to the
Bank in its reasonable credit judgment based on information available to the
Bank. References to percentages of all Accounts are based on dollar amount of
Accounts, and not number of Accounts.
"Environmental Laws" shall mean any federal, state or local statute or
regulation relating to hazardous or toxic wastes or substances or the removal
thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Event of Default" shall mean any of the events specified in this
Agreement under "Events of Default", provided that any requirement for the
giving of notice, the lapse of time, or both, or any other condition, has been
satisfied.
"Fixed Charge Coverage Ratio" shall be determined on a rolling
four-quarter basis and shall mean, for any such four-quarter period, the ratio
of (A) Consolidated EBITDA for such period minus the sum of Capital Expenditures
during such period that have not been financed, and cash dividends paid during
such period and income taxes paid during such period to (B) Consolidated Debt
Service for such period.
"Fluctuating Rate Loans" shall mean Loans hereunder that bear interest
at a rate of interest based upon the Prime Rate plus the Applicable Margin, if
any.
6
"GAAP" shall mean generally accepted accounting principles applied in a
manner consistent with that employed in the preparation of the financial
statements described in Section 3.1.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled (through
stock or capital ownership or otherwise) by any of the foregoing.
"Guarantees" shall mean the guarantees to be executed by the Guarantors
substantially in the form of Exhibit C hereto or, at the discretion of the Bank,
such other form as shall be reasonably acceptable to the Borrower and the Bank.
"Guarantors" shall mean each and every present and future Subsidiary of
the Borrower that the Bank in its reasonable discretion deems to be a "material"
Subsidiary of the Borrower.
"Indebtedness" shall mean (without duplication), with respect to any
Person, (a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (c) all obligations of
such Person for the deferred purchase price of property or services, except
accrued expenses arising in the ordinary course of business, current accounts
payable arising in the ordinary course of business and not overdue beyond such
period as is commercially reasonable for such Person's business, amounts due to
medical providers and patient deposits (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person, (e) all payment obligations of such Person with
respect to interest rate or currency protection agreements , (f) all obligations
of such Person as an account party under any letter of credit or in respect of
bankers' acceptances, (g) all obligations of any third party secured by property
or assets of such Person (regardless of whether or not such Person is liable for
repayment of such obligations), (h) all guarantees of such Person, (i) all
Capitalized Lease Obligations of such Person and (j) the redemption price of all
redeemable preferred stock of such Person (but not accrued dividends on any
preferred stock), but only to the extent that such stock is redeemable at the
option of the holder or requires sinking fund or similar payments at any time
prior to the Termination Date.
"Installment Payment Date" shall mean any date on which all or any
portion of the principal amount of the Term Loan is due and payable.
"Interest Period" shall mean any period during which a Loan bears
interest at a fixed rate as elected by the Borrower in accordance with the terms
of this Agreement.
(a) If any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless such Interest Period is with respect to a LIBOR
Loan and the result of such extension would be to extend such Interest Period
into another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day.
7
(b) No Interest Period shall extend beyond a stated Maturity
Date.
(c) No portion of the Term Loan shall be continued as or
converted into a LIBOR Loan with an Interest Period which extends beyond an
Installment Payment Date if, after giving effect to the continuation or
conversion of such LIBOR Loan, the amount payable on any Installment Payment
Date would exceed the sum of (i) the aggregate principal amount of the
outstanding portion of the Term Loan constituting LIBOR Loans with Interest
Periods ending prior to such Installment Payment Date and (ii) the aggregate
outstanding portion of the Term Loan constituting Fluctuating Rate Loans.
(c) If such Interest Period commences on a day for which there
exists no numerically corresponding day in the final month of such Interest
Period, such Interest Period shall end on the last Business Day of such month.
"Leverage Ratio" shall mean at any date of determination, the ratio of
(i) Consolidated Senior Funded Debt as of such date to (ii) Consolidated EBITDA
for the four fiscal quarter period ending on such date or, if such date is not
the last day of a fiscal quarter, for the immediately preceding four fiscal
quarter period.
"LIBOR" shall mean, as applicable to any LIBOR Loan, the rate per annum
as determined on the basis of the offered rates for deposits in U.S. dollars,
for a period of time comparable to such LIBOR Loan which appears on the Telerate
page 3750 as of 11:00 a.m. London time on the day that is two London Business
Days preceding the first day of such LIBOR Loan; provided, however, if the rate
described above does not appear on the Telerate System on any applicable
interest determination date, LIBOR shall be the rate (rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point),
determined on the basis of the offered rates for deposits in dollars for a
period substantially equal to the Interest Period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m.(London Time), on the day that is two
(2) London Business Days prior to the beginning of such Interest Period. If both
the Telerate and Reuters system are unavailable, then the rate for that date
will be determined on the basis of the offered rates for deposits in U.S.
dollars for a period of time comparable to such LIBOR Loan which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Business Days preceding the first
day of such LIBOR Loan as selected by the Bank. The principal London office of
each of the four major London banks will be requested to provide a quotation of
its U.S. dollar deposit offered rate. If at least two such quotations are
provided, the rate for the date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for that date
will be determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time comparable to such LIBOR Loan
offered by major banks in New York City at approximately 11:00 a.m. New York
8
City time, on the day that is two London Business Days preceding the first day
of such LIBOR Loan. In the event that the Bank is unable to obtain any such
quotation as provided above, it will be deemed that LIBOR pursuant to a LIBOR
Loan cannot be determined. In the event that the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of the Bank, then for any period during which such Reserve Percentage
shall apply, LIBOR shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage. "Reserve Percentage" shall mean
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed on member banks of the Federal
Reserve System against "Euro-currency Liabilities" as defined in Regulation D.
"LIBOR Loans" shall mean Loans hereunder that bear interest for the
Interest Period applicable thereto at a rate of interest based upon LIBOR plus
the Applicable Margin.
"Lien" shall mean any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever which has the practical effect of creating a security interest
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction).
"Loan" or "Loans" shall mean any loan made by the Bank to the Borrower
hereunder whether Revolving Credit Loan or the Term Loan.
"Loan Documents" shall mean this Agreement, each Note, each Security
Agreement, each financing statement, each Guarantee, each Continuing Agreement
for Letters of Credit and each document, agreement and instrument executed in
connection herewith or pursuant hereto together with each document, agreement
and instrument made by the Borrower or any Guarantor with or in favor of or
owing to the Bank.
"Management Agreement" shall mean an agreement entered into between the
Borrower and a Practice Group pursuant to which the Borrower provides management
and administrative services to such Practice Group and furnishes such Practice
Group with facilities, equipment, personnel and supplies.
"Maturity Date" shall mean the date that all or a portion of the
outstanding principal balance of a Loan is due and payable pursuant to the terms
hereof which shall include without limitation (i) with respect to Revolving
Credit Loans, the applicable Termination Date, and (ii) with respect to the Term
Loan, each Installment Payment Date and the final Maturity Date of the Term
Loan.
"Network Site" means each location with respect to which a Practice
Group has entered into a single Management Agreement with the Borrower.
"Notes" shall mean collectively the Revolving Credit Note referred to
in Section 2.2(a) hereof and the Term Note referred to in Section 2.8 hereof.
"Notice of Borrowing" is defined in Section 2.3.
9
"Obligations" shall mean any and all sums owing under the Loan
Documents and all other obligations, direct or contingent, joint, several or
independent, of the Borrower now or hereafter existing due or to become due to,
or held or to be held by the Bank pursuant to the Loan Documents, whether
created directly or acquired by assignment or otherwise.
"Original Agreement" shall have the meaning set forth in the Recitals
hereto.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization or any
other juridical entity, or a government or state or any agency or political
subdivision thereof.
"Plan" shall mean any plan of a type described in Section 4021(a) of
ERISA in respect of which the Borrower is an "employer" as defined in Section
3(5) of ERISA.
"Practice Group" means one or more physicians or a professional
corporation or professional association owned by physicians or a hospital or
medical center.
"Post-Default Rate" shall mean at any time a rate of interest equal to
4% per annum in excess of the rate that would then be applicable to Fluctuating
Rate Loans based upon the Pricing Level therefor.
"Pricing Level" shall mean Pricing Level I, Pricing Level II or Pricing
Level III, as applicable.
"Pricing Level I" shall mean the applicable Pricing Level at any time
when the Leverage Ratio is greater than 1.50:1.00.
"Pricing Level II" shall mean the applicable Pricing Level at any time
when the Leverage Ratio is greater than 1.00:1.00 but less than or equal to
1.50:1.00.
"Pricing Level III" shall mean the applicable Pricing Level at any time
when the Leverage Ratio is less than or equal to 1.00:1.00.
"Prime Rate" shall mean the variable per annum rate of interest so
designated from time to time by the Bank as its prime rate. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer. Interest based on the Prime Rate shall be payable
monthly in arrears. Changes in the rate of interest resulting from changes in
the Prime Rate shall take effect immediately without notice or demand of any
kind.
"Property" shall mean all types of real, personal, tangible, intangible
or mixed property.
"Real Property" shall mean any real property owned or leased by the
Borrower or any of its Subsidiaries or any Guarantor or any of its Subsidiaries.
10
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Reproductive Science Center" shall mean those places of business of
the Borrower designated as a "Reproductive Science Center" in the Borrower's
December 31, 2000 financial statements.
"Requirements of Law" shall mean as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Revolving Credit Loan" shall mean any Loan made pursuant to Section
2.1 hereof.
"Revolving Credit Note" shall mean the Revolving Credit Note referred
to in Section 2.2. hereof.
"Security Agreement" shall mean collectively that certain Continuing
General Security Agreement delivered in connection with the Original Agreement,
as amended, supplemented, modified or replaced from time to time, and that
certain Security Agreement delivered in connection with this Amended and
Restated Loan Agreement (substantially in the form of Exhibit B hereto).
"Specified Person" shall mean either the Borrower or any of its
Subsidiaries or any Guarantor or any of its Subsidiaries.
"SBLC" or "SBLCs" shall mean standby letters of credit which shall be
issued by the Bank for the account of the Borrower, none of which SBLCs shall
expire later than the Termination Date.
"Subordinated Debt" shall mean all Indebtedness owing by the Borrower
to any Person that is completely subordinated to all of the Borrower's
Obligations to the Bank pursuant to a subordination agreement in form and
substance satisfactory to the Bank.
"Subsidiary" or "Subsidiaries" of any Person shall mean any corporation
or corporations of which the Person alone, or the Person and/or one or more of
its Subsidiaries, owns, directly or indirectly, at least a majority of the
securities having ordinary voting power for the election of directors.
"Term Loan" shall mean the Term Loan made pursuant to Section 2.8
hereof.
"Term Note" shall mean the Term Note referred to in Section 2.8 hereof.
11
"Termination Date" shall mean September 30, 2004 or, if such date is
not a Business Day, the Business Day next succeeding such date.
"Type" refers to whether a Loan is a Fluctuating Rate Loan or a LIBOR
Loan.
1.2 Accounting Terms. As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not specifically defined
herein shall have the respective meanings given to them under generally accepted
accounting principles.
2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENT AND TERM NOTE.
-------------------------------------------------------------
2.1 Revolving Credit Commitments.
----------------------------
(a) Subject to the terms and conditions hereof, the Bank
agrees to make revolving credit loans to the Borrower (the "Revolving Credit
Loans") and issue SBLCs for the account of the Borrower from time to time during
the Commitment Period of which the aggregate principal amount of (i) Revolving
Credit Loans and SBLCs at any one time outstanding shall not exceed the lesser
of (x) $7,000,000 or (y) the Borrowing Base and (ii) SBLCs at any one time
outstanding shall not exceed One Hundred Thousand and 00/100 Dollars
($100,000.00), as such amounts may be reduced as provided in this Agreement (the
"Commitment"). During the Commitment Period the Borrower may use the Commitment
(i) for obtaining Revolving Credit Loans by borrowing, prepaying in whole or in
part and reborrowing on a revolving basis, all in accordance with the terms and
conditions hereof and (ii) for the issuance of SBLCs by the issuance, repayment
and/or termination in whole or in part and reissuance on a revolving basis, all
in accordance with the terms and conditions hereof.
2.2 Revolving Credit Note.
---------------------
The Revolving Credit Loans made by the Bank to the Borrower
pursuant to Section 2.1(a) hereof shall be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit A hereto with appropriate
insertions (the "Revolving Credit Note"), payable to the order of the Bank and
representing the obligation of the Borrower to pay the lesser of (a) the amount
of the Commitment or, (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Bank to the Borrower, with interest thereon as
hereinafter prescribed. The Revolving Credit Note shall (i) be dated the date
hereof, (ii) be stated to mature on the Termination Date and (iii) bear interest
with respect to the unpaid principal balance thereof from time to time
outstanding at a rate per annum to be elected by the Borrower in accordance with
the notice provisions set forth in Section 2.3 hereof, and in the case of LIBOR
Loans for the Interest Period therein specified, equal to either (1) LIBOR plus
the Applicable Margin, or (2) the Prime Rate plus the Applicable Margin (which
interest rate will change when and as the Prime Rate changes). In all cases
interest shall be computed on the basis of a 360-day year for actual days
elapsed and shall be payable as provided in this Agreement. After any stated or
accelerated maturity, the Revolving Credit Note shall bear interest at the rate
set forth in this Agreement.
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2.3 Procedure for Borrowings. The Borrower may borrow under the applicable
Commitment during the applicable Commitment Period on any Business Day by giving
the Bank irrevocable notice (each a "Notice of Borrowing") of a request for a
Revolving Credit Loan hereunder (a) in the case of LIBOR Loans three Business
Days before a proposed borrowing or continuation or conversion and (b) in the
case of all other Loans not less than one nor more than five Business Days
before a proposed borrowing or continuation or conversion, setting forth (i) the
amount of the Loan requested, which shall not be less than $100,000, (ii) the
requested borrowing date or Interest Period commencement date, as the case may
be, (iii) whether the Loan shall be a LIBOR Loan, Fluctuating Rate Loan or a
combination thereof, and (iv) if entirely or partially a LIBOR Loan, the length
of the Interest Period therefor, which shall be one, two, three or six months,
as the Borrower shall elect. As used in this Section 2.3, "conversion" shall
mean the conversion of a Loan from one Type to another Type as more fully
described in this Agreement. Such notice shall be written (including, without
limitation, via facsimile transmission) and shall be sufficient if received by l
p.m. on the date on which such notice is to be given. If any such request is
sent by facsimile it shall be confirmed in writing sent by the Borrower to the
Bank within two Business Days thereafter. Unless notification is otherwise
furnished by the Borrower to the Bank (in a manner consistent with the
requirements of this Section), Loans will be made by credits to the Borrower's
demand deposit account maintained with the Bank. If the Borrower furnishes such
notice but no election is made as to the Type of Loan or the Interest Period to
be applicable thereto, the Loan will automatically then be made as a Fluctuating
Rate Loan until such required information is furnished pursuant to the terms
hereof.
2.4 SBLCs. Subject to the limitations of Section 2.1 hereof and as herein
provided, the Borrower may from time to time during the Commitment Period, upon
one day's prior written notice, request that the Bank issue SBLCs for the
account of the Borrower. No SBLC shall expire after the Termination Date.
(a) SBLCs Fees. The Borrower agrees to pay for the issuance of each SBLCs (A) a
fee equal to 1.0% per annum of the face amount of each SBLC, payable on the
issuance thereof and (B) any other standard fees and commissions routinely
charged in connection therewith.
(b) Reimbursement. In the event the Bank makes payment to the beneficiary of any
SBLC in accordance with the terms thereof, the Borrower agrees to reimburse the
Bank therefor on the same day such payment is made, all as more fully set forth
in, and subject to the terms and conditions of, any applicable Continuing
Agreement for Letters of Credit, each of which Continuing Agreements for Letters
of Credit is fully incorporated herein by reference thereto.
2.5 Commitment and Facility Fees.
----------------------------
(a) As additional compensation for the Commitment on the
revolving basis provided for herein, the Borrower agrees to pay the Bank a
commitment fee for the Commitment Period at the rate of .25% per annum on the
average daily unused portion of the Commitment hereunder. Such commitment fee
shall be payable quarterly, on the last day of each March, June September and
13
December during the Commitment Period, commencing December 31, 2001, and on the
Termination Date. If the Borrower fails to pay any such amount to the Bank when
due the amount of such defaulted payment shall bear interest from the date when
due until (but excluding) the date when paid at the Post-Default Rate. The
obligation so to pay interest shall not be construed so as to waive the
requirement to pay the commitment fees as hereinabove set forth.
(b) As additional compensation for the Commitment, the
Borrower agrees to pay the Bank a facility fee in the amount of $50,000. Such
facility fee shall be payable upon the Borrower's execution hereof. The Bank
hereby acknowledges the Borrower's payment of $10,000 toward such facility fee.
2.6 Regulatory Changes in Capital Requirements. If as a result of a change in
any existing, or the imposition of any future, law, regulation or guideline or
the interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law) of any
such authority, imposes, modifies, deems applicable or results in the
application of, any capital maintenance, capital ratio or similar requirement
against loan commitments made by the Bank (or participations therein) or the
Bank in anticipation of the effectiveness of any capital maintenance, capital
ratio or similar requirement takes reasonable action to enable itself to comply
therewith, and the result thereof is to impose upon the Bank or increase any
capital requirement applicable as a result of the making or maintenance of
either or both Commitments or participations therein (which imposition of or
increase in capital requirements may be determined by the Bank's reasonable
allocation of the aggregate of such capital impositions or increases) then, upon
demand by the Bank, the Borrower shall immediately pay to the Bank from time to
time as specified by the Bank such additional amount as shall be sufficient to
compensate the Bank for such impositions of or increases in capital
requirements. Any such amount not paid within one Business Day after demand
being made by the Bank shall be paid together with interest at the Post-Default
Rate from the date demanded until payment in full thereof. A certificate setting
forth in reasonable detail the amounts necessary to compensate the Bank as a
result of an imposition of or increase in capital requirements submitted by the
Bank to the Borrower shall be conclusive, absent manifest error or bad faith, as
to the amount thereof. For purposes of this Section, all references to the
"Bank" shall be deemed to include any corporation controlling the Bank. The Bank
will promptly notify the Borrower of any event of which it has knowledge
occurring after the date hereof which will entitle it to compensation pursuant
to this Section and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, any such
additional amounts which may thereafter accrue and would not, in the judgment of
the Bank, be otherwise disadvantageous to the Bank.
2.7 Termination or Reduction of Commitment. The Borrower shall have the right,
upon not less than three Business Days' irrevocable written notice, to terminate
either Commitment or, from time to time, to reduce the amount of such
Commitment, provided that (a) any such reduction (i) shall be in the minimum
amount of $500,000 or an integral multiple of $100,000 in excess thereof, (ii)
shall reduce permanently the amount of such Commitment then in effect, and (iii)
shall be accompanied by prepayment of the applicable Revolving Credit Loans
outstanding to the extent, if any, that the Loans then outstanding exceed the
14
amount of such Commitment as then reduced, together with accrued interest on the
amount so prepaid to and including the dates of each such prepayment and any
amounts payable pursuant to Section 2.14 in connection therewith and the payment
of any unpaid commitment fee applicable to such commitment then accrued
hereunder, and (b) any such termination of such Commitment shall be accompanied
by prepayment in full of the applicable Revolving Credit Loans and all
obligations in respect of SBLCs together with accrued interest thereon to and
including the date of prepayment and any amounts payable pursuant to Section
2.14 in connection therewith and the payment of any unpaid commitment fee
applicable to such commitment then accrued hereunder.
2.8 Term Loan. Pursuant to the terms of the Original Agreement, the Bank
extended to the Borrower a sixty-six (66) month term loan in the original
principal amount of $4,000,000 (the "Term Loan"). The Term Loan was evidenced
by, among other things, a certain term note, dated the date of the Original
Agreement, (the "Term Note") and provided for sixteen (16) consecutive quarterly
principal installments each in an amount equal to Two Hundred Fifty Thousand
Dollars and 00/100 ($250,000.00), payable on the first day of each January,
March, June and September commencing June 1, 2000 until the entire unpaid
principal balance of the Term Note shall have been paid in full. As of September
15, 2001, the outstanding principal amount of the Term Loan was $2,500,000 and
the principal thereof shall continue to be repaid in accordance with the
amortization schedule provided above. The Term Note shall bear interest on the
unpaid principal amount thereof from time to time outstanding at a rate per
annum, to be elected pursuant to the provisions of this Agreement equal to
either (i) LIBOR plus the Applicable Margin, or (ii) the Prime Rate plus the
Applicable Margin (which interest rate shall change when and as the Prime Rate
changes). In all cases interest shall be computed on the basis of a 360-day year
for actual days elapsed and shall be payable as provided in this Agreement.
After any stated or accelerated maturity thereof, the Term Note shall bear
interest at the increased rate set forth in this Agreement.
2.9 Continuation and Conversion of Loans. The Borrower shall have the right at
any time on prior irrevocable written or telex notice to the Bank as specified
in this Agreement (i) to continue any LIBOR Loan as a LIBOR Loan for the same or
a different Interest Period (specifying the Interest Period to be applicable
thereto), (ii) to convert any LIBOR Loan into a Fluctuating Rate Loan and (iii)
to convert any Fluctuating Rate Loan into a LIBOR Loan (specifying the Interest
Period to be applicable thereto) (each such notice, a "Continuation/Conversion
Notice"), subject to the following:
(a) in the case of a conversion of less than all of the
outstanding Loans, the aggregate principal amount of Loans converted shall not
be less than $100,000 and shall be an integral multiple thereof;
(b) no LIBOR Loan shall be converted at any time other than at
the end of an Interest Period applicable thereto; and
(c) any portion of a Loan maturing or required to be prepaid
in less than one month may not be converted into or continued as a LIBOR Loan.
15
In the event that the Borrower shall not give notice to continue any LIBOR Loan
into a subsequent Interest Period or convert any such Loan into a Loan of
another type, on the last day of the Interest Period thereof, such Loan (unless
prepaid) shall automatically be converted into a Fluctuating Rate Loan. The
Interest Period applicable to any LIBOR Loan resulting from a conversion or
continuation shall be specified by the Borrower in the irrevocable notice
delivered by the Borrower pursuant to this Agreement; provided, however, that,
if such notice does not specify either the type of Loan or the Interest Period
to be applicable thereto, the Loan shall automatically be converted into, or
continued as, as the case may be, a Fluctuating Rate Loan until such required
information is furnished pursuant to the terms hereof. Notwithstanding anything
to the contrary contained above, if an Event of Default shall have occurred and
is continuing, no LIBOR Loan may be continued into a subsequent Interest Period
and no Fluctuating Rate Loan may be converted into a LIBOR Loan.
2.10 Prepayment.
----------
(a) Voluntary. The Borrower may prepay any Fluctuating Rate
Loan in whole or in part without premium or penalty; provided, however, that
each partial prepayment on account of any Fluctuating Rate Loan shall be in an
amount not less than $100,000 or an integral multiple of $100,000 in excess
thereof. Except as provided otherwise in this Agreement, the Borrower may prepay
a LIBOR Loan only upon at least three (3) Business Days prior written notice to
the Bank (which notice shall be irrevocable) and any such prepayment shall occur
only on the last day of the Interest Period for such LIBOR Loan. Any amount
prepaid on account of a Revolving Credit Loan may be reborrowed in accordance
with the provisions of Section 2.1 hereof. Any partial prepayment of the Term
Loan shall be applied to the last maturing installments thereof in inverse order
of their respective maturities.
(b) Mandatory. If, at any time, the aggregate outstanding
principal balance of Revolving Credit Loans and SBLCs exceed the Borrowing Base,
within five days of the first day there exists such excess, the Borrower shall
make payment to the Bank in an amount equal to such excess together with any
amounts payable pursuant to Section 2.14 in connection therewith. Such payment
shall be applied to reduce the aggregate unpaid principal balance of Revolving
Credit Loans then outstanding by first applying such payment to reduce
Fluctuating Rate Loans and then to reduce LIBOR Loans. Notwithstanding the
foregoing, the Borrower may direct by written notice to the Bank that any
prepayment or repayment be applied first, to the principal amount of LIBOR Loans
if such prepayment or repayment is made on the last day of the Interest Period
applicable thereto.
Each prepayment shall be made together with payment of accrued interest on the
amount prepaid to and including the date of prepayment.
2.11 Interest Payments; Manner of Payments; Rate After Default; Schedule to
Note.
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(a) Interest accrued on each Loan shall be payable, without
duplication, on:
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(i) the Maturity Date of such Loan (excluding any
Installment Payment Date unless interest would otherwise be payable on such
Installment Payment Date pursuant to subsections (ii) - (v) below);
(ii) with respect to any portion of any Loan repaid
or prepaid pursuant to this Agreement, the date of such repayment or prepayment,
as the case may be;
(iii) with respect to that portion of the outstanding
principal amount of all Loans maintained as Fluctuating Rate Loans, the first
day of each month commencing with the first such date following the date of the
making of such Loans;
(iv) with respect to that portion of the outstanding
principal amount maintained as LIBOR Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months, on the
last day of each three-month period occurring during such Interest Period), but
in no event more frequently than monthly;
(v) with respect to that portion of the outstanding
principal amount converted into Fluctuating Rate Loans or LIBOR Loans on a day
when interest would not otherwise have been payable pursuant to Subsections
(a)(iii) or (a)(iv), the date of such conversion.
(b) All payments (including prepayments) to be made
by the Borrower on account of principal or interest with respect to any Loan or
on account of fees or any other obligations of the Borrower to the Bank
hereunder shall be made to the Bank at the office of the Bank set forth in
Section 10.1 hereof or at such other place as the Bank may from time to time
designate in writing in lawful money of the United States of America in
immediately available funds, without counterclaim or setoff and free and clear
of, and without any deduction or withholding for, any taxes or other payments.
If the entire amount of any required principal and/or interest is not paid in
full within ten (10) days after the same is due, the Borrower shall pay to the
Bank a late fee equal to five percent (5%) of the required payment. The Borrower
hereby authorizes and directs the Bank to charge any account of the Borrower
maintained at any office of the Bank for any such payments. Subject to the
provisions of subparagraph (a) in the definition of Interest Period set forth in
Section 1.1 hereof, if any payment to be so made hereunder, or under any Note,
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day and, to the extent permitted by
applicable law, interest thereon shall be payable at the then applicable rate
during such extension. All payments shall be applied first to the payment of all
fees, expenses and other amounts due to the Bank (excluding principal and
interest), then to accrued interest, then on account of outstanding principal
and the balance, if any, applied as cash collateral for any contingent
obligations that the Borrower may have owing to the Bank; provided, however,
that after the occurrence of an Event of Default, payments will be applied to
the obligations of the Borrower to the Bank as the Bank determines in its sole
discretion.
(c) Upon and following an Event of Default, all
Loans, and any and all accrued and unpaid interest, fees or amounts due
hereunder, to the extent permitted by applicable law, shall bear interest
(payable on demand, and in any event on the last day of each month, and computed
17
daily on the basis of a 360-day year for actual days elapsed) (i) in all cases
other than LIBOR Loans at the Post-Default Rate until paid and (ii) in the case
of LIBOR Loans at a rate which shall be the greater of the Post-Default Rate or
4% per annum in excess of the rate applicable to such LIBOR Loan (based upon the
Pricing Level therefor) until the expiration of the Interest Period applicable
to such Loan, at which time the Loan will automatically be converted into a
Fluctuating Rate Loan and until paid shall bear interest at the Post-Default
Rate. In no event, however, shall interest payable hereunder be in excess of the
maximum rate of interest permitted under applicable law. The obligation so to
pay interest upon any obligation of the Borrower to the Bank shall not be
construed so as to waive the requirement for payment on the date that payment is
due to the Bank as set forth in this Agreement.
(d) The Borrower hereby expressly authorizes the Bank
to record on the schedule attached to each Revolving Credit Note the amount and
date of each Revolving Credit Loan, the rate of interest thereon, the date and
amount of each payment of principal and the unpaid principal balance; provided,
however, that the failure of the Bank to make any such notation shall not in any
manner affect the obligation of the Borrower to repay any Loan in accordance
with the terms hereof. All such notations shall be presumed to be correct.
2.12 Use of Proceeds.
---------------
The proceeds of Revolving Credit Loans shall be used to
finance working capital requirements of the Borrower.
2.13 Increased Costs. If the Bank determines that the effect of any applicable
law or government regulation, guideline or order or the interpretation thereof
by any Governmental Authority charged with the administration thereof (such as,
for example, a change in official reserve requirements which the Bank is
required to maintain in respect of loans or deposits or other funds procured for
funding such loans) is to increase the cost to the Bank of making or continuing
LIBOR Loans hereunder or to reduce the amount of any payment of principal or
interest receivable by the Bank thereon, then the Borrower will pay to the Bank
on demand such additional amounts as the Bank may determine to be required to
compensate the Bank for such additional costs or reduction. Any additional
payment under this section will be computed from the effective date at which
such additional costs have to be borne by the Bank. A certificate as to any
additional amounts payable pursuant to this Section setting forth the basis and
method of determining such amounts shall be conclusive, absent manifest error,
as to the determination by the Bank set forth therein if made reasonably and in
good faith. The Borrower shall pay any amounts so certified to it by the Bank
within 10 days of receipt of any such certificate. The Bank will promptly notify
the Borrower of any event of which it has knowledge occurring after the date
hereof which will entitle it to compensation pursuant to this Section and will
designate a different lending office if such designation will avoid the need
for, or reduce the amount of, any such additional amounts which may thereafter
accrue and would not, in the judgment of the Bank, be otherwise disadvantageous
to the Bank. For purposes of this Section, all references to the "Bank" shall be
deemed to include any participant in any Commitment and/or Loans.
18
2.14 Yield Maintenance. The Borrower shall pay to the Bank, upon request of the
Bank, such amount or amounts as shall be sufficient (in the reasonable opinion
of the Bank) to compensate it for any loss, cost, or expense incurred as a
result of: (i) any payment of a LIBOR Loan on a date other than the last day of
the Interest Period for such Loan; (ii) any failure by Borrower to borrow a
LIBOR Loan on the date specified by Borrower's written notice; (iii) any failure
of Borrower to pay a LIBOR Loan on the date for payment specified in Borrower's
written notice. Without limiting the foregoing, Borrower shall pay to Bank a
"yield maintenance fee" in an amount computed as follows: The current rate for
United States Treasury securities (bills on a discounted basis shall be
converted to a bond equivalent) with a maturity date closest to the term chosen
pursuant to the Fixed Rate Election as to which the prepayment is made, shall be
subtracted from LIBOR in effect at the time of prepayment. If the result is zero
or a negative number, there shall be no yield maintenance fee. If the result is
a positive number, then the resulting percentage shall be multiplied by the
amount of the principal balance being prepaid. The resulting amount shall be
divided by 360 and multiplied by the number of days remaining in the term chosen
pursuant to the Fixed Rate Election as to which the prepayment is made. Said
amount shall be reduced to present value calculated by using the above
referenced United States Treasury securities rate and the number of days
remaining in the term chosen pursuant to the Fixed Rate Election as to which
prepayment is made. The resulting amount shall be the yield maintenance fee due
to Bank upon the payment of a LIBOR Loan. Each reference in this paragraph to
"Fixed Rate Election" shall mean the election by Borrower of Loan to bear
interest based on LIBOR. If by reason of an Event of Default, the Bank elects to
declare the Loans and/or any Note to be immediately due and payable, then any
yield maintenance fee with respect to a LIBOR Loan shall become due and payable
in the same manner as though the Borrower has exercised such right of
prepayment.
A certificate as to any additional amounts payable pursuant to this Section
setting forth the basis and method of determining such amounts shall be
conclusive, absent manifest error, as to the determination by the Bank set forth
therein if made reasonably and in good faith. The Borrower shall pay any amounts
so certified to it by the Bank within 10 days of receipt of any such
certificate. For purposes of this Section, all references to the "Bank" shall be
deemed to include any participant in any Commitment and/or Loans.
2.15 Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a
LIBOR Loan, the Bank shall have determined (i) that dollar deposits in the
amount of the requested principal amount of such LIBOR Loan are not generally
available in the London Interbank Market, (ii) that the rate at which such
dollar deposits are being offered will not adequately and fairly reflect the
cost to the Bank of making or maintaining such LIBOR Loan during such Interest
Period, or (iii) that reasonable means do not exist for ascertaining the LIBOR,
the Bank shall, as soon as practicable thereafter, give written or telex notice
of such determination to the Borrower. In the event of any such determination,
until the circumstances giving rise to such notice no longer exist, (i) no LIBOR
Loans will be made hereunder (ii) each outstanding LIBOR Loan shall be converted
into a Fluctuating Rate Loan on the last day of the then current Interest Period
applicable thereto and (iii) unless the Borrower notifies the Bank at least two
Business Days prior to the date of any proposed borrowing of a LIBOR Loan for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Loan shall instead be made as a Fluctuating Rate Loan.
19
Promptly upon becoming aware that the circumstances giving rise to such notice
no longer exist, the Bank shall use its best efforts to notify the Borrower that
its obligation to make LIBOR Loans and convert Loans into LIBOR Loans has been
reinstated, but its failure to do so shall impose no liability on the Bank. Each
determination by the Bank hereunder shall be conclusive absent manifest error.
2.16 Change in Legality.
------------------
(a) Notwithstanding anything to the contrary herein contained,
if any change in any law or regulation or in the interpretation thereof by any
governmental authority charged with the administration or interpretation thereof
shall make it unlawful for the Bank to make or maintain any LIBOR Loan, then, by
written notice to the Borrower, the Bank may:
(i) declare that LIBOR Loans will not thereafter be
made by the Bank hereunder, whereupon the Borrower shall be prohibited from
requesting LIBOR Loans from the Bank hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made by
it be converted to Fluctuating Rate Loans, in which event (x) all such LIBOR
Loans shall be automatically converted to Fluctuating Rate Loans as of the
effective date of such notice as provided in paragraph (b) below and (y) all
payments and prepayments of principal which would otherwise have been applied to
repay the converted LIBOR Loans shall instead be applied to repay the
Fluctuating Rate Loans resulting from the conversion of such LIBOR Loans.
(b) For purposes of this Section, a notice to the Borrower by
the Bank pursuant to paragraph (a) above shall be effective with respect to each
LIBOR Loan, if lawful, on the last day of the then current Interest Period for
such LIBOR Loan; in all other cases, such notice shall be effective on the day
of receipt by the Borrower and (ii) all references to the "Bank" shall be deemed
to include any participant in any Commitment and/or the Loans.
Promptly upon becoming aware that the circumstances giving rise to such notice
no longer exist, the Bank shall use its best efforts to notify the borrower that
its obligation to make LIBOR Loans and convert Loans into LIBOR Loans has been
reinstated, but its failure to do so shall impose no liability on the Bank.
3. REPRESENTATIONS AND WARRANTIES.
------------------------------
In order to induce the Bank to enter into this Agreement and to make
the financial accommodations herein provided for, the Borrower hereby covenants,
represents and warrants to the Bank that:
20
3.1 Financial Condition. The consolidated balance sheet of the Borrower and the
Guarantors as at December 31, 2000, and the related consolidated statements of
operations and retained earnings and cash flows for the fiscal year ended on
such date, certified by Price WaterhouseCoopers LLP copies of which certified
statements have heretofore been furnished to the Bank, are complete and correct
and present fairly the financial condition of the Borrower and each such
Guarantor as at such date, and the results of its operations and changes in
financial position for the fiscal year then ended. Such certified financial
statements, including schedules and notes thereto, have been prepared in
accordance with generally accepted accounting principles. Neither the Borrower
nor any Guarantor has any material contingent obligations, contingent
liabilities or liabilities for taxes, long-term leases or unusual forward or
long-term commitments, which are not reflected in the foregoing certified
statements or in the notes thereto. Except as set forth in the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and June
30, 2001, respectively, since the date of the aforementioned financial
statements, there has been no material adverse change in the business
operations, assets or financial or other condition of the Borrower or any
Guarantor.
3.2 Corporate Existence; Compliance with Law. The Borrower, each Guarantor and
each of their Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority and the legal right to own and operate its
property, and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership or operation of property or the conduct of
its business require such qualification, and (d) is in compliance with all
Requirements of Law; except to the extent that the failure to so qualify as a
foreign corporation as required by clause (c) of this Section or to comply with
all Requirements of Law as required by clause (d) of this Section could not, in
the aggregate, have a material adverse effect on the business, operations,
property or financial or other condition of any such Person, and could not
materially adversely affect the ability of (i) the Borrower to perform its
obligations under this Agreement, the Notes and its Security Agreement or (ii)
any Guarantor to perform its obligations under its Guarantee and Security
Agreement, if any.
3.3 Corporate Power; Authorization; Enforceable Obligations. The Borrower has
the corporate power and authority and the legal right to make, execute, deliver
and perform its obligations under this Agreement, its Security Agreement and the
Notes, and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement, its
Security Agreement and the Notes and to authorize the execution, delivery and
performance of this Agreement, its Security Agreement and the Notes. No consent
or authorization of, filing with, or other act by or in respect of any other
Person (including stockholders and creditors of such Borrower) or any
Governmental Authority, is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of this
Agreement, its Security Agreement or the Notes, except for the filing of
financing statements required to perfect the security interest intended to be
granted by the Security Agreement. This Agreement, its Security Agreement and
the Notes will be duly executed and delivered on behalf of the Borrower and this
Agreement, its Security Agreement and the Notes, when executed and delivered,
will each constitute a legal, valid and binding obligation of the Borrower
21
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and equitable principles of general applicability,
regardless of whether enforcement is sought in an action at law or a proceeding
in equity.
3.4 Power, Authorization, Enforceable Obligations of Guarantors. Each Guarantor
has the power and authority and the legal right to make, deliver and perform its
Guarantee and Security Agreement and the transactions contemplated thereby and
has taken all necessary corporate action to authorize the execution, delivery
and performance of its Guarantee and Security Agreement. No consent or
authorization of, filing with, or other act by or in respect of any other Person
(including stockholders and creditors of the Guarantors) or any Governmental
Authority is required in connection with the execution, delivery, performance,
validity or enforceability of such Guarantee or Security Agreement, except for
the filing of financing statements required to perfect the security interest
intended to be granted by the Security Agreement. Each individual and corporate
Guarantee and each Security Agreement have been duly executed and delivered by
the respective parties thereto, and each such document constitutes a legal,
valid and binding obligation of the respective Guarantor enforceable against
such Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally and
equitable principles of general applicability, regardless of whether enforcement
is sought in an action at law or a proceeding in equity.
3.5 No Legal Bar. The execution, delivery and performance of this Agreement, the
Security Agreement and the Notes and the borrowings hereunder and the use of the
proceeds thereof by the Borrower and the execution, delivery and performance of
the Guarantees by the Guarantors, will not violate any Requirement of Law or any
Contractual Obligation of the Borrower or the Guarantors, and will not result
in, or require, the creation or imposition of any Lien on any of its properties
or revenues pursuant to any Requirement of Law or Contractual Obligation except
those in favor of the Bank provided herein.
3.6 No Material Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending by or against any
Specified Person or against any of their properties or revenues (a) with respect
to this Agreement, the Security Agreement, Notes, or the Guarantees or any of
the transactions contemplated hereby or thereby, or (b) except as set forth in
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001,
which if adversely determined, would have a material adverse effect on the
business, operations, property or financial or other condition of the Borrower
and its Subsidiaries or of the Guarantors.
3.7 No Default. No Specified Person is in default under or with respect to any
Contractual Obligation in any respect which could be materially adverse to the
business, operations, property or financial or other condition of the Borrower
or any of its Subsidiaries or of the Guarantors, or which could materially and
adversely affect the ability of (i) the Borrower to perform its obligations
under this Agreement, its Security Agreement, the Notes or any Loan Document to
which it is a party, or (ii) the Guarantors to perform their obligations under
the Guarantees. No Default or Event of Default has occurred and is continuing.
22
3.8 No Burdensome Restrictions. No Contractual Obligation of any Specified
Person and no Requirement of Law materially adversely affects, or insofar as the
Borrower may reasonably foresee may so affect, the business, operations,
property or financial or other condition of any such Specified Person.
3.9 Taxes. The Borrower and the Guarantors have filed or caused to be filed all
tax returns which to the knowledge of the Borrower are required to be filed, and
have paid all taxes shown to be due and payable on said returns or on any
assessments made against them or any of their property.
3.10 Federal Regulations. The Borrower is not engaged nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. No part of the proceeds of any Loans hereunder will be used
for "purchasing" or "carrying" "margin stock" as so defined or for any purpose
which violates, or which would be inconsistent with, the provisions of the
Regulations of such Board of Governors.
3.11 Environmental Matters.
---------------------
(a) None of the Real Property contains, or to the best
knowledge of the Borrower has previously contained, (i) any hazardous or toxic
waste or substances in amounts or concentrations which (A) constitute or
constituted a violation of or (B) could reasonably be expected to give rise to
liability under any applicable environmental law, except in either case insofar
as such violation or liability could not reasonably be expected to have a
material adverse effect on the business, operations or financial condition of
the Borrower and the Guarantors or (ii) any underground storage tanks, except
such as have been removed or remediated in accordance with all applicable
environmental laws.
(b) The Real Property is in compliance in all material
respects with all applicable federal, state and local environmental standards
and requirements affecting such Real Property, and there are no environmental
conditions of which Borrower has knowledge which could interfere in any material
respects with the continued use of the Real Property.
(c) Neither the Borrower nor any of its Subsidiaries nor any
Guarantor has received any notices of violations or advisory action by
regulatory agencies regarding environmental control matters or environmental
permit compliance.
(d) Hazardous waste has not been transferred from any of the
Real Property to any other locations except in compliance in all material
respects with all applicable environmental laws, regulations or permit
requirements.
(e) With respect to the Real Property, there are no
proceedings, governmental administrative actions or judicial proceedings pending
or, to the best knowledge of the Borrower, contemplated under any federal, state
or local law regulating the discharge of hazardous or toxic materials or
substances into the environment, to which the Borrower or any of its
Subsidiaries is named as a party.
23
4. CONDITIONS PRECEDENT.
--------------------
4.1 Conditions to Initial Extensions of Credit. The conditions precedent
fulfilled in connection with the obligation of the Bank to make the initial
Loans under this Agreement are set forth in Section 4.1 of the Original
Agreement, and the Borrower and the Bank each has copies of the documents
referred to in such Section 4.1.
4.2 Conditions to Effectiveness of Amended and Restated Loan Agreement. The
obligation of the Bank to make the initial extension of credit to the Borrower
hereunder is subject to the satisfaction of the following conditions precedent:
(a) Notes and Agreements. The Bank shall have received the Revolving Credit Note
and Continuing Letter or Credit Application and Agreement conforming to the
requirements hereof and duly executed by the Borrower.
(b) Guarantees. The Bank shall have received the Guarantees.
(c) Security Agreements. The Bank shall have received a
Security Agreement from the Borrower and each Guarantor, together with UCC-1
financing statements executed by each such entity in favor of the Bank.
(d) Borrower Pledge Agreement. The Bank shall have received a
Borrower Pledge Agreement from the Borrower substantially in the form of Exhibit
H to the Original Agreement duly executed by the Borrower.
(e) Borrowing Base Certificate. The Bank shall have received
and satisfactorily reviewed a Borrowing Base Certificate as set forth in Section
5.2(c) hereof.
(f) Origination Fees; Other Fees and Expenses. The Bank shall
have been paid the $40,000 unpaid portion of the $50,000 facility fee as set
forth in Section 2.5(b) hereof and the Borrower shall have paid to the Bank all
of its other out of pocket costs and expenses, including without limitation
examination fees, search fees, filing fees and legal fees and expenses.
(g) Certificates and Resolutions. The Bank shall have received
(i) copies of the resolutions of the board of directors of the Borrower
authorizing the execution, delivery and performance of this Agreement and the
Loan Documents certified by the Secretary or an Assistant Secretary of such
corporation and like resolutions of each Guarantor authorizing the execution,
delivery and performance of its respective Guarantee and Security Agreement, if
any, certified respectively by the Secretary or an Assistant Secretary of each
such corporation; (ii) a certificate of the Secretary or an Assistant Secretary
of the Borrower and each Guarantor certifying the names and true signatures of
24
the officers of each such corporation authorized to sign any and all documents
to be delivered by each such corporation or as required or contemplated
hereunder; and (iii) good standing certificates issued by the applicable
Governmental Authority.
(h) Lien Searches. The Bank shall have received the results of
searches of Uniform Commercial Code and other Lien filings with respect to the
Borrower in each state where it conducts business and such searches shall
disclose no Liens on any assets encumbered, except for Liens permitted under
Section 7.4, or if unpermitted Liens are disclosed, the Bank shall have received
satisfactory evidence of release of such Liens.
(i) Commitment Letter. The Borrower shall have satisfied all
the terms and conditions of the Commitment Letter.
(j) Legal Structure. The Bank shall be satisfied with the
corporate and legal structure and capitalization of the Company, including,
without limitation, the charter and bylaws of the Company and each agreement or
instrument relating thereto.
(k) Examination. The Bank shall have conducted an examination
of the Company's books and records and the books and records of the Network
Sites (subject to applicable laws and regulations relating to patient
confidentiality), at the Company's expense, by an examiner satisfactory to the
Bank and such examination shall be in form and substance satisfactory to the
Bank.
(l) Financial Statements. The Bank shall have received the
Borrower's financial statements for the fiscal period ending June 30, 2001 and
the Bank shall be satisfied with the form and substance thereof (in its sole
discretion).
(m) Consents. All governmental and third-party consents and
approvals necessary in connection with each aspect of the transactions
contemplated by this Agreement shall have been obtained (without the imposition
of any conditions that are not acceptable to the Bank) and shall remain in
effect; all applicable waiting periods shall have expired or been terminated or
waived without any adverse action being taken by any authority having
jurisdiction; and no law or regulation shall be applicable in the judgment of
the Bank that restrains, prevents or imposes material adverse conditions upon
any aspect of the transactions contemplated by this Agreement.
(n) Compliance. The intended use of the proceeds of the Loans
shall be in full compliance with all applicable laws, including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System.
(o) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Bank and its counsel.
25
4.3 Conditions to All Extensions of Credit. The obligation of the Bank to
make any Loan (including the initial Loans) or issue any SBLC to be made by it
hereunder is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties made by the Borrower herein or which are contained in any
certificate, document or financial or other written statement furnished at any
time under or in connection herewith, shall be correct on and as of the
borrowing date for such extension of credit as if made on and as of such date
except to the extent any such representation or warranty expressly speaks as of
a specific date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on the date an extension of credit
is to be made or after giving effect to the extension of credit to be made on
such date.
(c) Compliance with Borrowing Base. As to Revolving Credit
Loans and SBLCs only, after taking into account the Revolving Credit Loan and/or
SBLC to be made, all outstanding Revolving Credit Loans and SBLCs together with
the requested Revolving Credit Loan and/or SBLC, as the case may be, shall not
exceed the Borrowing Base.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of each such
borrowing that the conditions in clauses (a), (b), and (c) of this Section have
been satisfied.
5. AFFIRMATIVE COVENANTS.
---------------------
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Note or any SBLC remains outstanding and unpaid, or any other amount
is owing to the Bank hereunder, the Borrower will and will cause each Specified
Person as applicable to:
5.1 Corporate Existence and Qualification. Take the necessary steps to preserve
its corporate existence and its right to conduct business in all states in which
the nature of its business requires qualification to do business, except where
the failure so to qualify could not reasonably by expected to have a material
adverse effect on the business, operations or financial condition of the
Borrower or the Guarantors.
5.2 Financial Information and Compliance Certificates.
-------------------------------------------------
(a) Keep its books of account in accordance with good
accounting practices and furnish to the Bank within 90 days after the last day
of each of its fiscal years, (i) the consolidated balance sheets of the Borrower
and its Subsidiaries as at such last day of the fiscal year and statements of
income and retained earnings and cash flows for such fiscal year each prepared
in accordance with GAAP consistently applied and certified without qualification
by a firm of independent certified public accountants reasonably satisfactory to
the Bank; and within (ii) 30 days after the close of each fiscal month
consolidated balance sheets, statements of income and retained earnings and cash
flows of the Borrower and its Subsidiaries as of the last day of and for such
26
month and for the period of the fiscal year ended as of the close of the
particular month, all such monthly statements to be in reasonable detail, and
certified by the chief financial or accounting officer of the Borrower as having
been prepared in accordance with GAAP (exclusive of footnotes and subject to
year-end adjustments). The Borrower will also, with reasonable promptness,
furnish such other data as may be reasonably requested by the Bank and will at
all times and from time to time permit the Bank by or through any of its
officers, agents, employees, attorneys or accountants to inspect and make
extracts from such Borrower's books and records at each Network Site (subject to
applicable laws and regulations relating to patient confidentiality).
(b) Within 45 days after the close of each fiscal quarter,
deliver a certificate of the president and the chief financial or accounting
officer of the Borrower evidencing a computation of compliance with the
provisions of Section 6 hereof and a computation of the Leverage Ratio (each
including supporting detail of each applicable calculation) and stating that in
each case except as disclosed in such certificate, the person making such
certificate has no knowledge of any Default or Event of Default.
(c) Within 30 days after the last day of each month, deliver
to the Bank an accounts receivable agings report accompanied by a Borrowing Base
Certificate indicating a computation of the Borrowing Base and executed by the
chief financial or accounting officer of the Borrower, covering the period
ending the last day of the immediately preceding month.
(d) Promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
promptly after the same are filed, copies of all financial statements and
reports which the Borrower may make to, or file with, any Governmental
Authority, agency, commission, board or bureau.
(e) Within five days of any officer of the Borrower obtaining
knowledge of any Default, if such Default is then continuing, Borrower shall
furnish to the Bank a certificate of the chief financial or accounting officer
of the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto.
5.3 Insurance. Maintain insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower operates and naming the Bank as
an additional insured or loss payee (as appropriate) thereon as its interest may
appear.
5.4 Preservation of Properties; Compliance with Law. Maintain and preserve
all of its properties which are used or which are useful in the conduct of its
business in good working order and condition, ordinary wear and tear excepted
and comply in all material respects with all Requirements of Law .
5.5 Taxes. Duly pay and discharge all taxes or other claims which might
become a lien upon any of its property except to the extent that any thereof are
being in good faith appropriately contested with adequate reserves provided
therefor.
27
5.6 Maintain Operating Accounts. Maintain all of its primary operating
accounts with the Bank, unless the Borrower shall have provided evidence
reasonably satisfactory to the Bank that for geographical purposes or in order
to comply with applicable Requirements of Law such accounts are required to be
maintained elsewhere.
5.7 Notice of Litigation. Promptly notify the Bank in writing of any
litigation, legal proceeding or dispute, other than disputes in the ordinary
course of business or, whether or not in the ordinary course of business,
involving amounts in excess of (i) $50,000, affecting the Borrower or any
Subsidiary if not fully covered by insurance, or (ii) $500,000, affecting the
Borrower or any Subsidiary if fully covered by insurance, and in each case
regardless of the subject matter thereof (excluding, however, any actions
relating to workers' compensation claims or negligence claims relating to use of
motor vehicles, if fully covered by insurance, subject to deductibles).
5.8 Indemnity (Environmental Matters). Indemnify the Bank against any
liability, loss, cost, damage, or expense (including, without limitation,
reasonable attorneys' fees) arising from (i) the imposition or recording of a
lien by any local, state, or federal government or governmental agency or
authority pursuant to any Cleanup Laws; (ii) claims of any private parties
regarding violations of Cleanup Laws; and (iii) costs and expenses (including,
without limitation, reasonable attorneys' fees and fees incidental to the
securing of repayment of such costs and expenses) incurred by any Specified
Person or the Bank in connection with compliance by any Specified Person or the
Bank with any statute, regulation or order issued pursuant to any Cleanup Laws
by any local, state or federal government or governmental agency or authority.
5.9 Reserved.
--------
5.10 Material Subsidiaries. Cause each direct and indirect Subsidiary
of the Borrower to become a Guarantor (unless the Bank has provided written
notice to the Borrower that such Subsidiary is not, in the Bank's reasonable
judgment, a "material" Subsidiary of the Borrower) and take any action as shall
be necessary to grant the Bank a first priority perfected security interest
(subject to liens permitted by Section 7.4) in all the issued and outstanding
Capital Stock and all the personal property and fixtures of each such
Subsidiary.
5.11 Reserved.
--------
5.12 Reserved.
--------
6. FINANCIAL COVENANTS.
-------------------
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Note or SBLC remains outstanding and unpaid, or any other amount is
owing to the Bank hereunder, the Borrower and its Subsidiaries on a consolidated
basis shall maintain as at the last day of each fiscal quarter (with
Consolidated EBITDA, as applicable, being calculated on a rolling four quarter
basis):
28
(a) Minimum Effective Net Worth: Consolidated Effective Net Worth in an amount
equal to $22,474,000, which minimum amount shall increase on a cumulative basis
on the last day of each fiscal quarter, beginning with the fiscal quarter ending
September 30, 2001, by the sum of (i) 50% of cumulative net income (without any
deduction for loss) for such fiscal quarter, and (ii) 80% of the net proceeds
from any issuance of Capital Stock by the Borrower or any of its Subsidiaries
during such fiscal quarter.
(b) Minimum Consolidated EBITDA: Consolidated EBITDA of not less than
$4,000,000.
(c) Leverage Ratio: A Leverage Ratio in a proportion not greater than 2.00 to
1.00.
(d) Balance Sheet Leverage Ratio: A ratio of (a) Consolidated total liabilities
(total liabilities to be determined in accordance with GAAP) to (b) Consolidated
Tangible Net Worth in a proportion not greater than 2.75 to 1.00.
(e) Fixed Charge Coverage Ratio: A Fixed Charge Coverage Ratio in a proportion
not less than 1.25 to 1.00.
7. NEGATIVE COVENANTS.
------------------
The Borrower hereby agrees that, so long as any Commitment remains in
effect, any Note or SBLC remains outstanding and unpaid, or any other amount is
owing to the Bank hereunder it will not, nor will it permit any of its
Subsidiaries or any Guarantor or any of its Subsidiaries to:
7.1 Indebtedness for Borrowed Money. Incur, or permit to exist, any Indebtedness
for borrowed money except (i) Indebtedness incurred pursuant to borrowings
hereunder and under any other loans made by the Bank in its discretion to the
Borrower or any Subsidiary, (ii) Indebtedness existing on the date hereof and
reflected in the financial statements referred to in Section 3.1 hereof, and
(iii) Indebtedness incurred after the date of this Agreement in an aggregate
amount not in excess of $1,000,000 in any fiscal year and not in excess of
$2,500,000 in the aggregate at any time outstanding; provided, that, same is
incurred in connection with the acquisition of fixed assets within the
limitations of Section 7.8 hereof.
7.2 Mergers, Acquisitions and Sales of Assets. Enter into any merger or
consolidation or liquidate, windup or dissolve itself or sell, transfer or lease
or otherwise dispose of all or any substantial part of its assets (other than
sales of inventory and obsolescent equipment in the ordinary course of business)
or acquire by purchase or otherwise the business or assets of, or stock of,
another business entity; except that any Subsidiary may merge into or
consolidate with any other Subsidiary which is wholly-owned by the Borrower and
any Subsidiary which is wholly-owned by the Borrower may merge with or
consolidate into the Borrower provided that the Borrower is the surviving
corporation.
29
7.3 Lending, Advances and Investments. Lend or advance money, credit or property
to or invest in (by capital contribution, loan, purchase or otherwise) any firm,
corporation, or other Person except (i) investments in Cash Equivalents, (ii)
accounts receivable arising out of sales of inventory or the rendering of
services in the ordinary course of business (iii) loans or advances not in
excess of $1,500,000 in the aggregate at any one time outstanding to Practice
Groups who have executed a Management Agreement with the Borrower, (iv)
purchases of accounts receivable pursuant to Management Agreements to which the
Borrower or any Subsidiary is party; provided same is existing as of the date
hereof, (v) loans to officers, directors and employees in an aggregate amount at
any one time outstanding not to exceed $500,000, and (vi) payroll advances to
employees which are to be repaid through payroll deduction.
7.4 Liens. Create, assume or permit to exist, any Lien on any of its property or
assets now owned or hereafter acquired except (i) Liens in favor of the Bank;
(ii) other Liens incidental to the conduct of its business or the ownership of
its property and assets which were not incurred in connection with the borrowing
of money or the obtaining of advances or credit and which do not materially
impair the use thereof in the operation of its business; (iii) Liens for taxes
or other governmental charges which are not delinquent or which are being
contested in good faith and for which a reserve shall have been established in
accordance with generally accepted accounting principles; (iv) purchase money
Liens granted to secure the unpaid purchase price of any fixed assets purchased
within the limitations of Section 7.8 hereof; (v) judgment Liens in existence
less than 30 days after the entry thereof or with respect to which execution has
been stayed; (vi) any interest or title of a lessor secured by a lessor's
interest under any lease permitted by this Agreement; and (vii) leases or
subleases granted to others not interfering in any material respect with the
business of such Person..
7.5 Contingent Liabilities. Assume, endorse, be or become liable for or
guarantee the obligations of any Person excluding however (i) the endorsement of
negotiable instruments for deposit or collection in the ordinary course of
business and (ii) the Guarantees.
7.6 Dividends. (a) Declare or pay any dividends on its Capital Stock, except (i)
dividends payable solely in shares of its own common stock, (ii) as long as no
Default or Event of Default has occurred and is continuing, dividends in
connection with the Borrower's outstanding preferred stock in an aggregate
amount not in excess of $133,000 in any fiscal year and (iii) any Subsidiary
wholly owned by the Borrower may declare and pay dividends to the Borrower, or
(b) purchase, redeem, retire or otherwise acquire any of its Capital Stock at
any time outstanding, except (i) that the Borrower may repurchase its Common
Stock as long as the total consideration paid by the Borrower for all such
purchases in the aggregate does not exceed $902,000 and (ii) in connection with
the surrender of shares of the Borrower's Series A Cumulative Convertible
Preferred Stock upon its conversion into shares of the Borrower's Common Stock.
7.7 Sales of Receivables; Sale - Leasebacks. Sell, discount or otherwise dispose
of notes, accounts receivable or other obligations owing to the Borrower, with
or without recourse, except for the purpose of collection in the ordinary course
of business; or sell any asset pursuant to an arrangement to thereafter lease
such asset from the purchaser thereof.
30
7.8 Capital Expenditures; Capitalized Leases. Expend or agree to expend in the
aggregate for the Borrower and all Subsidiaries in excess of $1,000,000 in any
fiscal year for Capital Expenditures including assets acquired under Capitalized
Leases, excluding amounts paid in connection with the build out of any new
embryology laboratories.
7.9 Lease Payments. Expend in the aggregate for the Borrower and all
Subsidiaries in excess of $2,000,000 in any fiscal year for the lease, rental or
hire of real or personal property pursuant to any rental agreement therefor,
whether an operating lease, capitalized lease or otherwise.
7.10 Nature of Business. Materially alter the nature of its business.
------------------
7.11 Stock of Subsidiaries. Sell or otherwise dispose of any Subsidiary (except
in connection with a merger or consolidation of a Subsidiary into the Borrower
or another Subsidiary) or permit a Subsidiary to issue any additional shares of
its capital stock except pro rata to its stockholders.
7.12 ERISA. (i) Terminate any Plan so as to result in any material liability to
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA (the "PBGC"), (ii) engage in or permit any person under its
control to engage in any "prohibited transaction" (as defined in Section 406 of
ERISA or Section 4975 of the Internal Revenue Code of 1954, as amended)
involving any Plan which would subject a Borrower to any material tax, penalty
or other liability, (iii) incur or suffer to exist any material "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or not waived,
involving any Plan, or (iv) allow or suffer to exist any event or condition,
which presents a material risk of incurring a material liability to the PBGC by
reason of termination of any Plan.
7.13 Accounting Changes. Make, or permit any Subsidiary to make any change in
its accounting treatment or financial reporting practices except as required or
permitted by GAAP in effect from time to time.
7.14 Transactions with Affiliates. Except for the Management Agreements and as
otherwise specifically set forth in this Agreement, directly or indirectly
purchase, acquire or lease any property from, or sell, transfer or lease any
property to, or enter into any other transaction, with any Affiliate except in
the ordinary course of business and at prices and on terms not less favorable to
it than those which would have been obtained in an arm's-length transaction with
a non-affiliated third party.
8. EVENTS OF DEFAULT.
-----------------
Upon the occurrence and during the continuance of any of the following
events (each an Event of Default):
31
(a) Borrower shall fail to pay principal of any of the Notes
when due or shall fail to pay amounts necessary to reimburse the Bank for a draw
under a SBLC, or shall fail to pay any interest, or other amount payable
hereunder within two Business Days after the same becomes due; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or which is contained in any certificate, document or financial
or other written statement furnished at any time under or in connection with
this Agreement shall prove to have been false in any material respect on or as
of the date made or deemed made; or
(c) Borrower shall default in the observance or performance of
any covenant or provision contained in Section 6 or 7 hereof; or
(d) Borrower shall default in the observance or performance of
any other provision contained in this Agreement or any other Loan Document and
such default shall continue unremedied with respect to other provisions of this
Agreement for a period of 10 days after written notice thereof is given to the
Borrower by the Bank and with respect to other Loan Documents after the
expiration of any applicable grace or cure periods; or
(e) Any Specified Person shall (i) default in any payment in
excess of $10,000 in the aggregate with respect to any Indebtedness for borrowed
money (other than the Notes) in excess of $50,000 beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of any other agreement
or condition relating to any such indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, in each case the effect of which default or other
event or condition is to cause or permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause such Indebtedness to become due prior to its stated maturity; or
(f) (i) Any Specified Person shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or any Specified Person
shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Specified Person any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Specified Person any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
32
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall have not been
vacated, discharged, or stayed or bonded pending appeal within 30 days from the
entry thereof; or (iv) any Specified Person shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) of this Section 8(f); or (v) any
Specified Person shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) any Specified Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, (iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Plan, which Reportable Event or institution of
proceedings is, in the reasonable opinion of the Bank, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, and, in the case of
a Reportable Event, the continuance of such Reportable Event unremedied for ten
days after notice of such Reportable Event pursuant to Section 4043(a), (c) or
(d) of ERISA is given or the continuance of such proceedings for ten days after
commencement thereof, as the case may be, (iv) any Plan shall terminate for
purposes of Title IV of ERISA, and in each case in clauses (i) through (iv)
above, such event or condition could subject the Borrower to any tax, penalty or
other liabilities in the aggregate material in relation to the business,
operations or property of the Borrower; or
(h) the rendition by any court of a final judgment against any
Specified Person in excess of $50,000 (to the extent not covered by insurance as
to which the insurer has acknowledged liability) which shall not be
satisfactorily stayed, discharged, vacated or set aside within 60 days of the
making thereof; or the attachment of any property of any Specified Person which
has not been released or provided for to the reasonable satisfaction of the Bank
within 60 days after the making thereof; or
(i) any Guarantee of any Guarantor shall cease to be in full
force and effect (other than by reason of a transaction permitted by Section
7.2(a) of this Agreement); or
(j) any of the Liens created and granted pursuant to the
Security Agreement(s) shall fail to be valid, first, perfected Liens subject to
no prior or equal Lien except as permitted by this Agreement; or
(k) a Change of Control shall occur; or
(l) the sale and/or closing of any Reproductive Science
Center; or
(m) the Bank shall have determined in its reasonable
discretion that there has occurred a material adverse change in the business,
properties or financial condition of the Borrower;
33
then, in any such event, any or all of the following actions may be taken: (i)
the Bank may, at its option, declare either or all Commitments to be terminated
forthwith, whereupon such Commitment(s) and all obligations of the Bank to make
Revolving Credit Loans and issue any SBLCs shall immediately terminate; (ii) the
Bank may, at its option, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes and all
reimbursement obligations with respect to SBLCs to be due and payable and the
same, and all interest accrued thereon, shall forthwith become due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, anything contained herein or in any instrument evidencing the
Loans and/or SBLCs to the contrary notwithstanding. With respect to all SBLCs
which shall not have matured or with respect to which presentment for honor
shall not have occurred, the Borrower shall deposit in a cash collateral account
maintained with the Bank an amount equal to the aggregate undrawn amount of
SBLCs, and the unused portion thereof, if any, shall be returned to the Borrower
after the respective expiry dates of the SBLCs and after all obligations of the
Borrower hereunder and under the Loan Documents are paid in full.
9. COLLATERAL SECURITY.
-------------------
9.1 General Loan and Collateral Agreement. As collateral security for the
payment of each Note and of all other notes and/or obligations or Obligations of
the Borrower, now of hereafter owned or held by the Bank, the Borrower and the
Guarantor hereby grant to the Bank, a continuing lien, security interest and
right of setoff as security for all Obligations owing to the Bank, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Bank or any entity under the control of
FleetBoston Financial Corporation and its successors or assigns, or in transit
to any of them. At any time, without demand or notice (any such notice being
expressly waived by the Borrower), the Bank may setoff same, or any part thereof
and apply the same to any of the Obligations of the Borrower or the Guarantor
even though unmatured and regardless of the adequacy of any other collateral
securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR THE GUARANTOR ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. The Bank at any time, before or
after an Event or Default, may but shall not be obligated to, transfer into or
out of its own name or that of its nominee all or any of the collateral
security, including stocks, bonds, and other securities, and the Bank or its
nominee may demand, ▇▇▇ for, collect, receive and hold as like collateral
security any or all interest, dividends and income thereon and if the securities
are held in the name of the Bank or its nominee, the Bank may, after an Event of
Default, exercise all voting and other rights pertaining thereto as if the Bank
were the absolute owner thereof; but the Bank shall not be obligated to demand
payment of, protest, or take any steps necessary to preserve any rights in the
collateral against prior parties, or to take any action whatsoever in regard to
the collateral security or any part thereof, all of which the Borrower assumes
and agrees to do. Without limiting the generality of the foregoing, the Bank
shall not be obligated to take any action in connection with any conversion,
call, redemption, retirement or any other event relating to any of the
collateral security, unless the Borrower gives written notice to the Bank that
such action shall be taken not more than thirty (30) days prior to the time such
action may first be taken and not less than ten (10) days prior to the
expiration of the time during which such action may be taken.
34
9.2 Additional Collateral Security. In addition to the collateral described in
Section 9.1 hereof, payment of the Obligations is also secured by a first
priority (subject to Liens permitted by this Agreement) security interest in (i)
all assets and personal property and fixtures of the Borrower and each
Guarantor, (ii) assignments of all financing statements in favor of the Borrower
and/or the Guarantors in connection with its (their) purchase of accounts
receivable, (iii) all the issued and outstanding Capital Stock of each
Subsidiary that is or becomes a Guarantor, and (iv) all proceeds and products of
the forgoing, whether now owned or hereafter acquired, as provided in a Security
Agreement executed or to be executed and delivered by the Borrower and each
Guarantor to the Bank.
10. MISCELLANEOUS.
-------------
10.1 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing unless otherwise expressly
provided herein and shall be deemed to have been duly given or made when
delivered by hand or by nationally recognized overnight courier service, or by
telegram or telecopy, or when deposited in the mail addressed as follows, or to
such address as may be hereafter notified in writing by the respective parties
hereto and any future holders of any Note:
The Borrower: IntegraMed America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Att: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Senior Vice President and
Chief Financial Officer
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Telecopy No.: 212-953-7201
The Bank: Fleet National Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Telecopy No.: 212 - 819-6166
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
35
10.2 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Bank, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right.
10.3 Survival of Representations and Warranties
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes.
10.4 Payment of Expenses. (a) The Borrower agrees to pay or reimburse the Bank
for all its costs and expenses (including, without limitation, the reasonable
fees and expenses of attorneys for the Bank) incurred in connection with the
preparation, administration, default, collection, waiver or amendment of any of
the Loan Documents, or in connection with Bank's exercise, preservation or
enforcement of any of its rights, remedies or options hereunder, including,
without limitation in connection with (i) the enforcement or preservation of any
rights under this Agreement or the Notes or any other Loan Document or any other
instrument or agreement entered into in connection herewith or therewith
including, without limitation, the reasonable fees and disbursements of
attorneys for the Bank; (ii) any claim or action threatened, made or brought
against the Bank arising out of or relating to any extent to this Agreement, the
Security Agreement, the Notes or Loan Documents or any instrument or agreement
entered into in connection with the transactions contemplated hereby or thereby;
(iii) the perfection of any security interest in the Collateral or in the
maintenance of the Collateral; (iv) any amendment or modification of any Loan
Document; (v) the payment of any tax, assessment, recording fee or similar
charge; (vi) any waiver of any right of the Bank under any Loan Document and
(vii) the reasonable fees and disbursements of any outside counsel to the Bank
and/or the allocated costs of in-house legal counsel incurred from time to time
in connection with the transactions contemplated by this Agreement, accounting,
consulting, brokerage or other similar professional fees or expenses, and any
fees or expenses associated with travel or other costs relating to any
appraisals or examinations conducted in connection with the Obligations or any
Collateral therefor. All such fees and expenses shall be Obligations secured by
the Collateral and, commencing ten days after demand therefore, shall, until
paid, bear interest at the Post Default Rate.
(b) The obligations set forth in this Section 10.4 shall be in addition
to any other obligations or liabilities of the Borrower to the Bank hereunder or
at common law or otherwise. The provisions of this Section 10.4 shall survive
the payment of the Notes and the termination of this Agreement.
36
10.5 WAIVER OF JURY TRIAL, SET-OFF AND COUNTERCLAIM
THE BORROWER AND THE BANK (BY ACCEPTANCE OF THE NOTES) MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY, AND
THE BORROWER WAIVES THE RIGHT TO INTERPOSE ANY SET-OFF OR COUNTERCLAIM, IN EACH
CASE IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE AND/OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF THE BANK RELATING TO THE ADMINISTRATION OF THE LOANS OR
ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREE THAT NEITHER PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ENTER INTO
THIS AGREEMENT, ACCEPT THE NOTES AND MAKE THE LOANS.
10.6 WAIVER OF AUTOMATIC STAY. THE BORROWER AGREES THAT, IN THE EVENT THAT THE
BORROWER, ANY GUARANTOR OR ANY OF THE PERSONS OR PARTIES CONSTITUTING THE
BORROWER OR ANY GUARANTOR SHALL (i) FILE WITH ANY BANKRUPTCY COURT OF COMPETENT
JURISDICTION OR BE THE SUBJECT OF ANY PETITION UNDER TITLE 11 OF THE U.S. CODE,
AS AMENDED ("BANKRUPTCY CODE"), (ii) BE THE SUBJECT OF ANY ORDER FOR RELIEF
ISSUED UNDER THE BANKRUPTCY CODE, (iii) FILE OR BE THE SUBJECT OF ANY PETITION
SEEKING ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION,
DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT
OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR DEBTORS, (iv)
HAVE SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, OR LIQUIDATOR, OR (v) BE THE SUBJECT OF ANY ORDER,
JUDGMENT, OR DECREE ENTERED BY ANY COURT OF COMPETENT JURISDICTION APPROVING A
PETITION FILED AGAINST SUCH PARTY FOR ANY REORGANIZATION, ARRANGEMENT,
COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY,
INSOLVENCY, OR RELIEF FOR DEBTORS, THE BANK SHALL THEREUPON BE ENTITLED AND THE
BORROWER IRREVOCABLY CONSENTS TO IMMEDIATE AND UNCONDITIONAL RELIEF FROM ANY
AUTOMATIC STAY IMPOSED BY SECTION 362 OF THE BANKRUPTCY CODE, OR OTHERWISE, ON
OR AGAINST THE EXERCISE OF THE RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO THE
BANK AS PROVIDED FOR HEREIN, IN ANY NOTE, OTHER LOAN DOCUMENTS DELIVERED IN
CONNECTION HEREWITH AND AS OTHERWISE PROVIDED BY LAW, AND THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY RIGHT TO OBJECT TO SUCH RELIEF AND WILL NOT CONTEST ANY
MOTION BY THE BANK SEEKING RELIEF FROM THE AUTOMATIC STAY AND THE BORROWER WILL
COOPERATE WITH THE BANK, IN ANY MANNER REQUESTED BY THE BANK, IN ITS EFFORTS TO
OBTAIN RELIEF FROM ANY SUCH STAY OR OTHER PROHIBITION.
37
10.7 LIMITATION OF LIABILITY. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT
THIS AGREEMENT, ANY NOTE, THE OTHER LOAN DOCUMENTS AND TO EXTEND CREDIT TO THE
BORROWER.
10.8 Modification and Waiver
No modification or waiver of, or with respect to any provision of this
Agreement or any document or instrument delivered in connection therewith shall
be effective unless and until it shall be in writing and signed by the Bank, and
then such modification or waiver shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on the
Borrower in any case shall, of itself, entitle it to any other or further notice
or demand in similar or other circumstances.
10.9 Successors and Assigns; Participations
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Bank, all future holders of a Note and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights under this Agreement without the prior written consent of the Bank. The
term "Bank" as used herein shall be deemed to include the Bank and its
successors, endorsees and assigns.
The Bank shall have the unrestricted right at any time or from time to
time, and without Borrower's or any Guarantor's consent, to assign any portion
(equivalent to the initial Commitment and/or Loans of not less than $1,000,000
in principal amount) of its rights and obligations hereunder to one or more
banks or other financial institutions (each, an "Assignee"), and the Borrower
and each Guarantor agree that it shall execute, or cause to be executed, such
documents, including without limitation, amendments to this Agreement and to any
other documents, instruments and agreements executed in connection herewith as
the Bank shall deem necessary to effect the foregoing. In addition, at the
request of the Bank and any such Assignee, the Borrower shall issue one or more
new promissory notes, as applicable, to any such Assignee and, if the Bank has
retained any of its rights and obligations hereunder following such assignment,
to the Bank, which new promissory notes shall be issued in replacement of, but
not in discharge of, the liability evidenced by the promissory note held by the
Bank prior to such assignment and shall reflect the amount of the respective
commitments and loans held by such Assignee and the Bank after giving effect to
such assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by the Bank in
connection with such assignment, and the payment by Assignee of the purchase
price agreed to by the Bank, and such Assignee, such Assignee shall be a party
to this Agreement and shall have all of the rights and obligations of the Bank
hereunder (and under any and all other guaranties, documents, instruments and
agreements executed in connection herewith) to the extent that such rights and
obligations have been assigned by the Bank pursuant to the assignment
38
documentation between the Bank and such Assignee, and the Bank shall be released
from its obligations hereunder and thereunder to a corresponding extent.
Notwithstanding the foregoing, no Assignee or other transferee of any rights of
the Bank shall be entitled to receive any greater payment under Section 2.6 or
2.13 than the Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer was made at a time when the
circumstance giving rise to such greater payment did not exist.
The Bank shall have the unrestricted right at any time and from time to
time, and without the consent of or notice to the Borrower or any Guarantor, to
grant to one or more banks or other financial institutions (each, a
"Participant") participating interests in the Bank's obligation to lend
hereunder and/or any or all of the Loans held by the Bank hereunder. In the
event of any such grant by the Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower, the Bank shall remain
responsible for the performance of its obligations hereunder and the Borrower
shall continue to deal solely and directly with the Bank in connection with the
Bank's rights and obligations hereunder. The Bank may furnish any information
concerning the Borrower in its possession from time to time to prospective
Assignees and Participants, provided that the Bank shall require any such
prospective Assignee or Participant to agree in writing to maintain the
confidentiality of such information. Notwithstanding the foregoing, the Bank and
any Participants shall not be entitled to receive any greater payment under
Section 2.6 or 2.13 than the Bank would have been entitled to receive had no
participating interests been granted.
10.10 Governing Law; Consent to Jurisdiction
THIS AGREEMENT, THE NOTES AND ANY DOCUMENTS AND INSTRUMENTS DELIVERED
IN CONNECTION HEREWITH AND THEREWITH AND THE RIGHTS AND DUTIES OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SET FORTH
IN THIS AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT FORUM.
39
10.11 Entire Agreement
This Agreement and the other Loan Documents are intended by
the parties as the final, complete and exclusive statement of the transactions
evidenced thereby. All prior or contemporaneous promises, agreements and
understandings, whether oral or written, are deemed to be superceded by this
Agreement and such other Loan Documents, and no party is relying on any promise,
agreement or understanding not set forth in this Agreement or such other Loan
Documents. Neither this Agreement nor any of such other Loan Documents may be
amended or modified except by a written instrument describing such amendment or
modification executed by the Borrower and the Bank.
10.12 Interest Adjustment.
-------------------
All agreements between the Borrower (and each Guarantor and
each other party obligated for payment on a Note) and the Bank are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness evidenced by a Note or
otherwise, shall the amount paid or agreed to be paid to the Bank for the use or
the forbearance of the indebtedness evidenced hereby exceed the maximum
permissible under applicable law. As used herein, the term "applicable law"
shall mean the law in effect as of the date hereof provided, however, that in
the event there is a change in the law which results in a higher permissible
rate of interest, then this Agreement, the Notes and the other Loan Documents
shall be governed by such new law as of its effective date. In this regard, it
is expressly agreed that it is the intent of the Borrower and the Bank in the
execution, delivery and acceptance of this Agreement, the Notes and the other
Loan Documents to contract in strict compliance with the laws of the State of
New York from time to time in effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof or of any of the other Loan
Documents at the time of performance of such provision shall be due, shall
involve transcending the limit of such validity prescribed by applicable law,
then the obligation to be fulfilled shall automatically be reduced to the limits
of such validity, and if under or from circumstances whatsoever the Bank should
ever receive as interest an amount which would exceed the highest lawful rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal balance evidenced by the Note(s) and not to the payment of
interest. This provision shall control every other provision of all agreements
between the Borrower, each Guarantor, each other party obligated on a Note and
the Bank.
10.13 Pledge to Federal Reserve
The Bank may at any time pledge all or any portion of its rights under
the loan documents including any portion of the promissory note to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall
release Bank from its obligations under any of the loan documents.
40
10.14 Lost Notes
Upon receipt of an affidavit of an officer of the Bank as to the loss,
theft, destruction or mutilation of any Note or any other security document
which is not of public record, and, in the case of any such loss, theft,
destruction or mutilation, upon surrender and cancellation of such Note or other
security document, the Borrower will issue, in lieu thereof, a replacement Note
or other security document in the same principal amount thereof and otherwise of
like tenor.
10.15 Effective Date
This Agreement shall be effective on the date (the "Effective
Date") as of which (a) this Agreement shall be executed by all the parties
hereto and delivered to the Bank and (b) all the conditions precedent required
to have been satisfied on or before the first extension of credit hereunder
pursuant to Section 4.2 hereof shall have been satisfied or waived (whether
temporarily or otherwise) in writing by the Bank. The Bank shall notify the
Borrower of the Effective Date if other than the date of the execution of this
Agreement; provided, however, that, the failure to give such notice shall not
alter the Effective Date or any of the Bank's rights under this Agreement or the
other Loan Documents.
10.16 No Waiver Action
Any waiver or consent respecting any representation, warranty, covenant
or other term or provision of this Agreement or any other Loan Document shall be
effective only in the specific instance and for the specific purpose for which
given and shall not be deemed, regardless of frequency given, to be a further or
continuing waiver or consent. The failure or delay of a party at any time or
times to require performance or, or to exercise its rights with respect to, any
representation, warranty, covenant or other term or provision of this Agreement
or other Loan Document in no manner (except as otherwise expressly provided
herein) shall affect its right at a later time to enforce any such provision. No
notice to or demand on a party in any case shall entitle such party to any other
or further notice or demand in the same, similar or other circumstances. The
acceptance by the Bank of (a) any partial or late payment shall not constitute a
satisfaction or waiver of the full amount then due or the resulting Event of
Default or (b) any payment during the continuance of an Event of Default shall
not constitute a waiver or cure thereof; and the Bank may accept or reject any
such payment without affecting any of its rights, powers, privileges, remedies
and other interests under this Agreement, the other Loan Documents and
applicable law. All rights, powers, privileges, remedies and other interests of
the parties hereunder are cumulative and not alternatives, and they are in
addition to and shall not limit (except as otherwise expressly provided in this
Agreement) any other right, power, privilege, remedy or other interest of the
parties under this Agreement, any other Loan Document or applicable law.
41
10.17 Severability
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
10.18 Amendment and Restatement
Commencing with the Effective Date, but not prior to the Effective
Date, this Agreement shall amend, restate, replace and supersede the Original
Agreement (within the limitations of Recital (3) to this Agreement)); provided,
however, that the execution and delivery of this Agreement shall not in any
circumstance be deemed to have terminated, extinguished or discharged the
Borrower's Obligations under such Original Agreement, all of which Obligations
shall continue under and be governed by this Agreement and the other Loan
Documents. This Agreement is a replacement, consolidation, amendment and
restatement of the Original Agreement and IS NOT A NOVATION. The Borrower shall
also pay any and all unpaid interest on all Loans made by the Bank to the
Borrower pursuant to Original Agreement, and at the interest rate specified
therein.
10.19 Counterparts. This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officer as of the day and year first above written.
INTEGRAMED AMERICA, INC.
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Financial Officer
FLEET NATIONAL BANK
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
$7,000,000.00 White Plains, New York
As of September 28, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a Delaware corporation (the "Borrower"), for
value received, hereby promises to pay to the order of FLEET NATIONAL BANK (the
"Bank") on September 30, 2004, at the office of the Bank specified in Section
10.1 of the Loan Agreement dated as of September 28, 2001, between the Borrower
and the Bank, as amended from time to time (as so amended the "Agreement"; terms
defined in the Agreement shall have their defined meanings when used in this
Note), in lawful money of the United States of America and in immediately
available funds the principal amount of SEVEN MILLION and 00/100 DOLLARS
($7,000,000.00) or, if less than such principal amount, the aggregate unpaid
principal amount of all Loans made by the Bank to the Borrower pursuant to
Section 2.1(a) of the Agreement. The Borrower further promises to pay interest
in like money on the unpaid principal balance of this Note from time to time
outstanding at an annual rate as selected by the Borrower pursuant to the terms
of Section 2.2 of the Agreement. Interest shall be computed on the basis of a
360-day year for actual days elapsed and shall be payable as provided in the
Agreement. All Loans made by the Bank pursuant to subsection 2.1(a) of the
Agreement and all payments of the principal thereon may be endorsed by the
holder of this Note on the schedule annexed hereto, to which the holder may add
additional pages. The aggregate net unpaid amount of Loans set forth in such
schedule shall be presumed to be the principal balance hereof. After the stated
or any accelerated maturity hereof, this Note shall bear interest at an
increased rate as set forth in the Agreement, payable on demand, but in no event
in excess of the maximum rate of interest permitted under applicable law.
This Note is the Revolving Credit Note referred to in the Agreement,
and is entitled to the benefits thereof and may be prepaid, and is required to
be prepaid, in whole or in part (subject to the indemnity provided in the
Agreement) as provided therein. Upon the occurrence of any one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note may be declared to be immediately due and payable as provided in
the Agreement. This Note is secured by the collateral described in each Security
Agreement.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
INTEGRAMED AMERICA, INC.
By:/s/▇▇▇▇ ▇. Hlwyak, Jr.
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▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Senior Vice President and
Chief Financial Officer
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO REVOLVING CREDIT NOTE DATED AS OF SEPTEMBER 28, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
TO
FLEET NATIONAL BANK
Last Day Balance
Amount of Interest Interest Principal Remaining Notation
Date of Loan Period Period Paid Unpaid Made By
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EXHIBIT B
FORM OF SECURITY AGREEMENT
EXHIBIT C
FORM OF GUARANTEE
EXHIBIT D
FORM OF BORROWING BASE CERTIFICATE