THIRD FORBEARANCE AND AMENDMENT AGREEMENT
Among
PHYSICIAN COMPUTER NETWORK, INC.,
THE SUBSIDIARIES PARTY HERETO,
FLEET BANK, N.A., AS ADMINISTRATIVE AGENT,
and
THE LENDERS PARTY HERETO
Dated as of April 23, 1999
THIRD FORBEARANCE AND AMENDMENT AGREEMENT
THIRD FORBEARANCE AND AMENDMENT AGREEMENT, dated as of April 1, 1999,
(this "Agreement" or the "Third Forbearance Agreement") among PHYSICIAN COMPUTER
NETWORK, INC., a New Jersey corporation (the "Borrower"), the several
subsidiaries of the Borrower which are parties hereto (the "Subsidiaries"), the
several banks and other financial institutions or entities which are parties
hereto (the "Lenders"), and FLEET BANK, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent").
R E C I T A L S:
I. The Administrative Agent, ▇▇▇▇▇▇ Brothers Commercial Paper, Inc., as
arranger and as a Lender, the Lenders and the Borrower entered into a Credit
Agreement, dated as of September 10, 1997 (the "Credit Agreement").
II. The Administrative Agent, the Lenders, the Borrower and certain
Subsidiaries of the Borrower (the "Guarantors") also entered into a Guarantee
and Collateral Agreement, dated as of September 10, 1997 (the "Guarantee and
Collateral Agreement").
III. On March 3, 1998, the Borrower issued a Securities and Exchange
Commission Form 8-K and a press release pursuant to which the Borrower disclosed
the existence of certain accounting matters.
IV. On April 2, 1998, the Borrower issued another press release
disclosing, among other things, additional accounting matters and announcing
that the Borrower's auditors had withdrawn their opinion with respect to the
Borrower's 1996 financial statements. A description of the nature of the
disclosures, facts and events described in Recitals III and IV was set forth as
Exhibit A annexed to a First Forbearance Agreement (hereinafter defined) and the
disclosures, facts and events described in Exhibit A are collectively referred
to herein as the "Accounting Matters."
V. The Accounting Matters have resulted in one or more Events of
Default under the Credit Agreement (the "Specified Events of Default").
VI. As a result of the occurrence of the Specified Events of Default,
the Borrower and the Guarantors requested that the Administrative Agent and the
other Lenders agree to forbear from pursuing their remedies under, and to amend
certain sections of, the Credit Agreement.
VII. The Administrative Agent, the Required Lenders, the Borrower and
the Guarantors entered into a Forbearance and Amendment Agreement, dated as of
April 22, 1998, pursuant to and subject to the terms and conditions of which the
Administrative Agent and the Required Lenders agreed to forbear from pursuing
their remedies until September 30, 1998 (the "First Forbearance Agreement").
VIII. Under the terms of the Credit Agreement and First Forbearance
Agreement, the Loans matured on September 30, 1998.
IX. The Administrative Agent, the Lenders, the Borrowers and the
Guarantors then entered into a Second Forbearance and Amendment Agreement, dated
as of September 30, 1998, pursuant to which, among other things, the Borrower
agreed to deliver to the Administrative Agent and the Lenders (a) by March 31,
1999, audited financial statements of the Borrower and its Subsidiaries for the
fiscal years ending December 31, 1996, 1997 and 1998 and (b) by April 30, 1999,
an Acceptable Loan Commitment or an Acceptable Purchase Agreement (as defined
therein) (the "Second Forbearance Agreement").
X. The Borrower is in default under the Second Forbearance Agreement as
a result of its failure to deliver the audited financial statements on or before
March 31, 1999.
XI. The Borrower and its subsidiary, Versyss, Incorporated have entered
into negotiations to sell the Commercial Business to ▇▇▇▇▇▇▇▇ Systems, Inc. (the
"Commercial Business Purchaser") for a purchase price of approximately
$3,600,000 minus deductions for closing costs, legal fees, accounting fees and
stay bonuses of approximately $600,000 and minus payments not to exceed $640,000
to Mission Vacaville Limited Partnership which claims a prior security interest
in certain of the assets of the Commercial Business (the "Commercial Business
Proceeds").
XII. The Borrower and the Guarantors have now requested that the
Administrative Agent and the Lenders (a) agree to extend to April 30, 1999 the
date by which PCN must deliver the audited financial statements, (b) release
their security interests in the Commercial Business, (c) agree to a sharing of
the Commercial Business Proceeds, (d) agree, conditionally, to a limited
reinstatement of the Commitment, and (e) agree to extend the Maturity Date and
to forbear from pursuing their remedies for a period to and including August 15,
1999.
XIII. The Administrative Agent and the Lenders have advised the
Borrower and Guarantors that they are willing to agree to the requests of the
Borrower and Guarantors on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS AND REFERENCES.
1.1 Other Definitions:
Any capitalized terms used herein that are not defined herein shall
have the meanings ascribed to them in the Credit Agreement, the First
Forbearance Agreement and the Second Forbearance Agreement.
1.2 Amendments of Definitions.
The following defined terms in the Credit Agreement, the First
Forbearance
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Agreement and the Second Forbearance Agreement are hereby amended in their
entirety as follows:
"Acceptable Loan Commitment" means a definitive written commitment
which, in the sole judgment of all of the Lenders, is from a financially
responsible lending institution to provide to the Borrower a loan or loans in
amounts sufficient to enable the Borrower to pay all of its obligations to the
Lenders (including principal, interest, fees, including the Extension Fee, and
expenses) in full on or before August 15, 1999, which, in the reasonable
judgment of all of the Lenders, shall be unconditional except with respect to
(a) matters that are not within the direct control of the applicable lending
institution and (b) the execution and delivery of closing documentation
contemplated by the commitment and necessary for the consummation of a loan
transaction, which are within the power and control of the respective parties to
execute and deliver without further approvals and consents.
"Acceptable Purchase Agreement" means a definitive written agreement
which, in the sole judgment of all of the Lenders, is from a financially
responsible purchaser to purchase assets or stock of the Borrower for a price
that will yield to the Borrower sufficient net, available proceeds to enable the
Borrower to pay all of its obligations to the Lenders (including principal,
interest, fees, including the Extension Fee, and expenses) in full on or before
August 15, 1999, which, in the reasonable judgment of all of the Lenders, shall
be unconditional except with respect to (a) matters that are not within the
direct control of the applicable purchaser and (b) the execution and delivery of
closing documentation contemplated by the agreement and necessary for the
consummation of an asset or stock purchase and sale transaction, which are
within the power and control of the respective parties to execute and deliver
without further approvals and consents.
"Additional Loan Documents" means all of the documents executed and
delivered to the Administrative Agent pursuant to the First Forbearance
Agreement, the Second Forbearance Agreement and pursuant to Section 4 of the
Third Forbearance Agreement.
"Maturity Date" means August 15, 1999.
1.3 Additional Definitions
The following defined terms shall have the following meanings in the
Credit Agreement and this Agreement:
"Third Forbearance Effective Date" means the date on which the Third
Forbearance Agreement is executed by all parties and all of the payments and
documents listed in Section 4 of the Third Forbearance Agreement have been
received by the Administrative Agent.
"Securities Litigation" means the class action lawsuit entitled "In Re
Physician Computer Network, Inc. Securities Litigation" pending in the United
States District Court, District of New Jersey.
1.4 References to Credit Agreement and Certain Defined Terms.
From and after the Third Forbearance Effective Date (a) all references
herein and in
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any other Loan Document to the "Credit Agreement" shall be deemed to be a
reference to the Credit Agreement as amended pursuant to the First Forbearance
Agreement, the Second Forbearance and this Agreement, (b) all references in the
Credit Agreement, the Loan Documents or the Additional Loan Documents to the
term "Revolving Credit Termination Date" shall be deemed to be a reference to
the term "Maturity Date", and (c) all references to the term "Notes" in this
Agreement, the Credit Agreement, the Loan Documents and the Additional Loan
Documents shall be deemed to be a reference to the amended and restated notes
delivered to the Lenders pursuant to the First Forbearance Agreement, as amended
pursuant to the Second Forbearance Agreement and this Agreement.
SECTION 2. ACKNOWLEDGMENTS.
2.1 Acknowledgment of Debt
(a) The Borrower hereby acknowledges, confirms and declares that, as of
the date hereof, the outstanding principal balance of the Loans is
$15,398,115.89 and that the Extension Fee which Borrower agreed to pay and
agreed was earned on the Second Forbearance Date is $1,000,000 and such
principal amount, such Extension Fee and all other amounts due to the Lenders
under the Credit Agreement are unconditionally owed to the Lenders without any
setoff, recoupment, deduction, counterclaim, or defense of any kind or nature to
the payment thereof.
(b) Each of the Guarantors hereby acknowledges, confirms and declares
that the amounts owed by the Borrower to the Lenders and described in Section
2.1(a) hereof are owed by each of the Guarantors to the Lenders in accordance
with the terms of the Guarantee and Collateral Agreement without any setoff,
recoupment, deduction, counterclaim or defense of any kind or nature to the
payment thereof.
(c) The Borrower and the Guarantors hereby acknowledge, confirm and
declare that all of their obligations to the Administrative Agent and the
Lenders, including, without limitation, the obligations described in Section 2.1
hereof and any additional loans that may be made pursuant to Section 3 hereof
are and shall continue to be secured by the security interests granted pursuant
to the Guarantee and Collateral Agreement.
2.2 Acknowledgment of Recitals and Defaults.
(a) The Borrower and each of the Guarantors acknowledges that the
Recitals are true and correct in all material respects.
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(b) The Borrower and each of the Guarantors acknowledge (i) the
Specified Events of Default and the results and the effects thereof constitute
and, notwithstanding the execution of this Agreement, will continue to
constitute one or more Events of Default under the Credit Agreement, (ii) the
failure of the Borrower and the Guarantors to pay the Loans on September 30,
1998 constituted an Event of Default (the "Maturity Default") and (iii) the
failure of the Borrower to deliver the Financial Statements by March 31, 1999
constituted a Default and Termination Event (the "Financial Statements Default")
(the Specified Events of Defaults, the Maturity Default and the Financial
Statements Default are collectively referred to as the "Existing Defaults").
2.3 Acknowledgment of Termination of Commitments.
(a) The Borrower acknowledges and agrees that, as a result of and as of
the occurrence of the Specified Events of Default, the Revolving Credit
Commitments contained in Section 2.1 of the Credit Agreement and the L/C
Commitment contained in Section 3.1 of the Credit Agreement were and, except as
set forth in Section 3 hereof remain, irrevocably terminated.
(b) The Borrower acknowledges and agrees that (i) except as provided in
Section 3 hereof, upon the Lenders' receipt of any payment of principal from and
after the date hereof, the Revolving Credit Commitments shall be further reduced
and irrevocably terminated by the amount of principal repaid and (ii) the
Borrower shall not have any right to borrow and the Lenders shall not have any
obligation to re-lend any amount repaid.
2.4 Acknowledgment of Reservation of Rights.
The Borrower and the Guarantors acknowledge and agree that nothing
contained in this Agreement is or shall be deemed to be (i) a waiver by the
Administrative Agent or any of the Lenders of any of the Existing Defaults (ii)
a waiver of any of the Lenders' rights and remedies arising from the occurrence
of the Existing Defaults, or (iii) a release or waiver by the Administrative
Agent or any of the Lenders of any claim, right, or cause of action arising out
of, relating to or in connection with the Accounting Matters or the Existing
Defaults, all of which are hereby reserved by the Administrative Agent and the
Lenders.
2.5 Application of Cash Collateral Deposit from HealthMatics Proceeds.
The Borrower and Guarantors acknowledge that the Lenders have applied
to the repayment of the Loans the Cash Collateral Deposit of $1,000,000, which
was received by the Borrower and its Subsidiary from the sale of the
HealthMatics Partnership Interest and which was proceeds of the Lenders'
Collateral.
2.6 Acknowledgment of Advice of Counsel and Other Matters.
The Borrower and the Guarantors hereby acknowledge that:
(a) they have been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Additional Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship
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with or duty to the Borrower or the Guarantors arising out of or in connection
with this Agreement or any of the Additional Loan Documents, and the
relationship between the Administrative Agent and Lenders, on the one hand, and
the Borrower and its Subsidiaries, on the other hand, in connection herewith or
therewith is solely that of creditor and debtor; and
(c) no joint venture is created by this Agreement, the First
Forbearance Agreement, the Second Forbearance Agreement, the Credit Agreement or
by the Additional Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Borrower and its
Subsidiaries and the Lenders.
SECTION 3. CONDITIONAL AND LIMITED REINSTATEMENT OF COMMITMENTS.
3.1 Limited Reinstatement of Commitment.
Each Lender severally agrees, subject to the conditions set forth in
Section 3.2 hereof, to reinstate its Commitment and to make additional loans to
the Borrower in an amount not to exceed each Lender's (1) pro rata share of the
Cash Collateral Deposit and (2) share of the Commercial Business Proceeds
actually received by such Lender.
3.2 Conditions Precedent to Limited Reinstatement.
Each Lender's conditional agreement to reinstate its pro rata share of
the Commitment to the limited extent set forth in Section 3.1 is subject to the
conditions that:
(a) the Borrower shall have satisfied and complied with the covenants
in Sections 6.18, 6.19 and 6.20 of the Credit Agreement on or before the dates
specified therein or after the expiration of the five day grace period;
(b) each Lender shall have approved, in its sole discretion, either an
Acceptable Loan Commitment or an Acceptable Purchase Agreement;
(c) no Event of Default (other than the Existing Defaults) or
Termination Event shall have occurred under the Credit Agreement, the First
Forbearance Agreement, the Second Forbearance Agreement or this Agreement;
(d) each Lender shall have received from the Borrower (i) a
satisfactory cash flow projection for the period from the date of the delivery
of the Acceptable Loan Commitment or the Acceptable Purchase Agreement to the
anticipated closing date thereunder which demonstrates that the Borrower will
have sufficient available cash (including the proceeds of the additional loans
to be made pursuant to and subject to the terms of this Agreement) to pay the
anticipated and projected expenses of the Borrower through such anticipated
closing date, and (ii) if such cash flow projection should indicate that the
Borrower does not or will not have sufficient cash to pay such anticipated and
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projected expenses, commitments or other assurances from a financially
responsible person or entity to provide the funds necessary to cover the
projected deficiency between projected cash and anticipated and projected
expenses; and
(e) each of the Lenders shall have received satisfactory confirmation
either that: (i) the proceeds to be received by the Borrower from the Acceptable
Loan Commitment or the Acceptable Purchase Agreement will be sufficient to
enable the Borrower to consummate a settlement of the Securities Litigation and
to pay other obligations of the Borrower that must be paid to consummate a
closing under the Acceptable Loan Commitment or the Acceptable Purchase
Agreement or (ii) Picower and JA Special Limited Partnership have consented to,
and the lead plaintiff and its counsel in the Securities Litigation have
consented to or have recommended that the class of plaintiffs in the Securities
Litigation consent to, the closing of the Acceptable Loan Commitment and
Acceptable Purchase Agreement and to the immediate payment of all obligations of
the Borrower to the Lenders from the proceeds thereof.
3.3 Repayment of Loans.
The Borrower shall repay all Loans, including any additional Loans made
pursuant to this Agreement, on the Maturity Date.
3.4 Terms of Loans.
Each Loan made by a Lender pursuant to this Agreement shall be (a) a
Base Rate Loan, (b) evidenced by the Amended and Restated Notes delivered
pursuant to the First Forbearance Agreement (c) advanced and be payable in
accordance with the provisions of Sections 2.9 through 2.16 (inclusive) of the
Credit Agreement and (d) shall have the benefit of all Guarantees of the Loans
and of all Collateral securing the Loans and the Guarantees.
3.5 Reborrowing.
The Borrower agrees that in the event any Loans are made by the Lenders
pursuant to this Agreement and such Loans are repaid, any amounts repaid shall
not be available for re-borrowing.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this
Agreement, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender that:
4.1 Corporate Existence; Compliance with Law.
Each of the Borrower and its Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
4.2 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal
right, to make, deliver and perform this Agreement and the Additional Loan
Documents. Each Loan Party
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has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement and the Additional Loan Documents. No consent
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with
the execution, delivery, performance, validity or enforceability of this
Agreement and the Additional Loan Documents. This Agreement and the Additional
Loan Documents have been duly executed and delivered on behalf of each Loan
Party thereto. This Agreement and the Additional Loan Documents constitute, and
each other Additional Loan Document upon execution will constitute, a legal,
valid and binding obligation of each Loan Party thereto, enforceable against
each such Loan Party 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 by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.3 No Legal Bar.
The execution, delivery and performance of this Agreement and the
Additional Loan Documents, will not violate any Requirement of Law or any
Contractual Obligation of the Borrower or any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
4.4 Accuracy of Information, etc.
No statement or information contained in this Agreement or other
document, certificate or statement furnished to the Administrative Agent or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement, contained as of the date
any such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
4.5 Encumbered Assets
Neither the Borrower nor any Subsidiary owns or has rights in or to any
Property (a) that is not subject to the security interests granted to the
Administrative Agent and the Lenders or (b) that is in Canada, the United
Kingdom or any country other than the United States.
4.6 Software Protection
The Borrower and its Subsidiaries have (a) obtained or, where
appropriate, continued copyright registrations under applicable law for any and
all intellectual property owned by the Borrower and its Subsidiaries that is
subject to registration and (b) assigned to the Administrative Agent and granted
to the Administrative Agent a security interest in all of such copyright
registrations.
4.7 Credit Agreement, First Forbearance Agreement and Second
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Forbearance Agreement Representations.
The representations and warranties contained in Sections 4.8, 4.9,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.19, 4.20 and 4.21 of the Credit
Agreement, in Section 3.4, 3.6, 3.7 and 3.8 of the First Forbearance Agreement,
in Sections 3.5, 3.6 and 3.7 of the Second Forbearance Agreement and in Section
4 of the Guarantee and Collateral Agreement are true and correct in all material
respects as of the date of this Agreement, except that with respect to the
representations and warranties in (a) Section 4.8 of the Credit Agreement and
Section 4.2 of the Guarantee and Collateral Agreement, the Borrower and
Subsidiaries have granted security interests to ▇▇▇▇▇▇▇ & Marsal, Inc., subject
to and in accordance with the A&M Intercreditor Agreement and to International
Business Machines pursuant to the First Forbearance Agreement and (b) Section
4.15 of the Credit Agreement and Section 3.7 of the First Forbearance Agreement,
Solion Corp. and Medical Network Systems, Corp., are, as of the date hereof,
also each a Subsidiary of the Borrower, and V Holding Corp. has been merged into
Versyss Incorporated.
4.8 Commercial Business Relationship.
(a) Neither the Borrower nor any of its subsidiaries has any
relationships with Commercial Business Purchaser or any of its affiliates, and
(b) Neither Commercial Business Purchaser nor any of its affiliates owe
any monies to the Borrower or any of its Subsidiaries.
SECTION 5. CLOSING CONDITIONS
This Agreement shall become effective and binding upon the Lenders upon
the Administrative Agent's receipt of the following (which, in the case of
documents, agreements, certificates and opinions, must be satisfactory in form
and substance to the Administrative Agent and its counsel):
(a) Legal Opinions. Legal opinions of
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇,
counsel to the Borrower and its Subsidiaries.
(ii) local counsel in New Jersey to the Borrower.
(b) Secretary's Certificate. A certificate of the Secretary of the
Borrower and its Subsidiaries certifying (i) that attached thereto are true and
complete copies of the resolutions, adopted by the Board of Directors of the
Borrower and its Subsidiaries and all other necessary corporate action
evidencing approval of the transactions contemplated by this Agreement and (ii)
as to the incumbency and specimen signature of each officer of the Borrower and
its Subsidiaries executing the Agreement.
(c) Financial Statements. A report from the Auditors with respect to
the status of the financial statements of the Borrower.
(d) Securities Litigations. A report from the Borrower's attorneys with
respect to the status of the settlement of the Securities Litigation.
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(e) Litigation. A schedule of any pleadings filed in any legal actions
commenced against the Borrower and any of its Subsidiaries since September 30,
1998, and a copy of any such pleadings requested by the Administrative Agent.
(f) Reaffirmations. An agreement from Picower unconditionally
reaffirming his obligations under the Picower Guarantee and an agreement from
Picower and JA Special Limited Partnership reaffirming their obligations under
the Picower Agreement.
(g) Second Amendment to Guarantee and Collateral Agreement. A Second
Amendment to Guarantee and Collateral Agreement in form and substance
satisfactory to the Administrative Agent and its counsel.
(h) Professional Fees. Payment of the fees and expenses of ▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP and Ernst & Young, LLP, the fees and expenses of counsel of
the Lenders and the allocated costs of in-house counsel of the Administrative
Agent and the Lenders.
SECTION 6. AMENDMENTS OF THE CREDIT AGREEMENT
6.1 Amendments - Existing Sections
The Credit Agreement is amended by deleting the text of Sections 6.18
and 6.19 and by substituting therefor the following:
"6.18 Delivery of Audited Financial Statements. Deliver to the
Administrative Agent and each of the Lenders on or before April 30, 1999 the
audited financial statements of the Borrower and its Subsidiaries for the years
ended December 31, 1996, December 31, 1997, and December 31, 1998."
"6.19 Delivery of an Acceptable Loan Commitment or Acceptable
Purchase Agreement. Deliver to Administrative Agent and each of the Lenders on
or before May 31, 1999 either an Acceptable Loan Commitment or an Acceptable
Purchase Agreement."
6.2 Amendments - Additional Covenants.
The Credit Agreement is amended by adding the following Sections 6.20
and 6.21:
"6.20 Bids. Deliver to the Administrative Agent and each Lender on or
before April 26, 1999 a list of all parties that have submitted bids to purchase
the assets of the Borrower and the terms of such bids, including, without
limitation, the purchase price, the closing date and conditions, if any, to
closing.
"6.21 Use of Proceeds of Commercial Business. The Borrower will use (a)
50% of the Commercial Business Proceeds to reduce the principal balance of the
Loans, and (b) 50% of the Commercial Business Proceeds exclusively for working
capital and general corporate purposes of the Borrower and its Subsidiaries and
not for any purpose that would violate the Credit Agreement.
SECTION 7. FORBEARANCE
The Administrative Agent and the Lenders hereby agree, from and after
the date
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hereof to and including the earlier of the Maturity Date or the occurrence of a
Termination Event, that the Lenders shall forbear from directing the
Administrative Agent to:
(a) declare the Loans to be due and payable as a result of the
occurrence of (i) the Existing Default or (ii) any existing or future violations
of the covenants contained in Section 7.1 of the Credit Agreement,
(b) institute any judicial or non-judicial action or proceeding to
enforce or obtain payment of the Loans or to enforce the Lenders' security
interests as a result of (i) the Existing Events of Default or (ii) any existing
or future violation of the covenants contained in Section 7.1 of the Credit
Agreement.
SECTION 8. TERMINATION EVENTS
Each of the following shall constitute a "Termination Event" under this
Agreement:
(a) a Termination Event as defined in the First Forbearance Agreement
and the Second Forbearance Agreement, other than events of the kind described in
Sections 7(i) and 7(j) of the First Forbearance Agreement.
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any Additional Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such Additional Loan
Document shall prove to have been inaccurate in any material respect on or as of
the date made or deemed made.
(c) the Borrower shall fail to comply with the covenants contained in
Section 6.18, Section 6.19 or Section 6.20 of the Credit Agreement by the dates
specified therein and such default shall continue uncured for a period of 5
days, with time being of the essence at the expiration of any such five (5) day
period.
(d) the Borrower shall fail to comply with the covenant contained in
Section 6.21 of the Credit Agreement.
(e) the occurrence of an Event of Default specified in Sections 8(e)
through (l) of the Credit Agreement.
SECTION 9. REMEDIES; CONSENT TO RELIEF FROM STAY AND OTHER REMEDIES.
9.1 Remedies.
Upon one (1) business day's written notice of the occurrence of a
Termination Event of the kind described in Section 7(e) of the First Forbearance
Agreement (which notice shall describe in reasonable detail the events and
circumstances resulting in a Revised Material Adverse Effect) and immediately
upon the occurrence of any other Termination Event, with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall:
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(a) terminate the forbearance agreements contained in Section 7
hereof.
(b) declare all amounts due under the Credit Agreement, this Agreement,
under the other Loan Documents and under the Additional Loan Documents, under
the Guarantee and Collateral Agreement, and under the Picower Guarantee to be
due and payable forthwith, whereupon the same shall be immediately due and
payable.
(c) take any action which the Administrative Agent and the Required
Lenders deem necessary or appropriate to collect the Loans and to enforce the
rights and remedies under this Agreement, the Credit Agreement, the Guarantee
and the Collateral Agreement, the Picower Guarantee, the other Loan Documents,
the Additional Loan Documents and under applicable law.
9.2 Consent to Relief from Stay and Other Remedies
(a) AS MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS AGREEMENT BY
THE ADMINISTRATIVE AGENT AND THE LENDERS AND FOR OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,
(WITHOUT SUCH MATERIAL CONSIDERATION THE ADMINISTRATIVE AGENT AND THE LENDERS
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT), THE BORROWER AND ITS SUBSIDIARIES
HEREBY AGREE THAT IN THE EVENT THAT THE BORROWER AND/OR ITS SUBSIDIARIES SHALL
(i) FILE WITH ANY BANKRUPTCY COURT OR BE THE SUBJECT OF ANY PETITION UNDER TITLE
11 OF THE U.S. CODE, AS IT MAY BE AMENDED FROM TIME TO TIME ("CODE"), (ii) BE
THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER SUCH TITLE 11 OF THE CODE, AS
IT MAY BE AMENDED FROM TIME TO TIME, (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, (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, WHETHER VOLUNTARY OR INVOLUNTARY,
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL THEREUPON BE ENTITLED TO
IMMEDIATE RELIEF FROM ANY AUTOMATIC STAY IMPOSED BY SECTION 362 OF TITLE 11 OF
THE CODE, AS MAY BE AMENDED FROM TIME TO TIME, OR IMPOSED BY ANY SUCH OTHER
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY,
INSOLVENCY, OR RELIEF FOR DEBTORS, ON OR AGAINST THE EXERCISE OF THE RIGHTS AND
REMEDIES OTHERWISE AVAILABLE TO
13
ADMINISTRATIVE AGENT AND THE LENDERS AS PROVIDED IN THE CREDIT AGREEMENT, THIS
AGREEMENT, THE SECURITY DOCUMENTS OR AS OTHERWISE PROVIDED BY LAW.
(b) THE BORROWERS AND EACH OF THE SUBSIDIARIES FURTHER AGREE THAT UPON
THE OCCURRENCE OF ANY TERMINATION EVENT AND WHETHER OR NOT ANY OF THE EVENTS SET
FORTH ABOVE IN SECTION 8.2(A) HAVE OCCURRED, THE BORROWER AND SUBSIDIARIES SHALL
TAKE, OR CAUSE TO BE TAKEN, ANY AND ALL ACTIONS NECESSARY: (I) TO PERMIT THE
ADMINISTRATIVE AGENT AND THE LENDERS TO PROCEED WITH ANY AND ALL ENFORCEMENT
ACTIONS UNDER THIS AGREEMENT, THE CREDIT AGREEMENT, SECURITY DOCUMENTS AND THE
ADDITIONAL LOAN DOCUMENTS; AND (II) TO PERMIT THE ADMINISTRATIVE AGENT AND THE
LENDERS TO INITIATE AND/OR PROCEED WITH ANY AND ALL FORECLOSURES ON (WHETHER
JUDICIAL OR NON-JUDICIAL), AND REALIZATION OF, ANY AND ALL PROPERTY HELD AS
SECURITY FOR THE LOANS.
SECTION 10. RELEASES
AS MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS AGREEMENT BY THE
ADMINISTRATIVE AGENT AND THE LENDERS AND FOR OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,
(WITHOUT SUCH MATERIAL CONSIDERATION ADMINISTRATIVE AGENT WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT), BORROWER AND EACH SUBSIDIARY, AND ON BEHALF OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS
AND ASSIGNS (COLLECTIVELY, THE "RELEASORS") HEREBY FOREVER WAIVES, RELEASES,
REMISES, ACQUITS AND DISCHARGES THE ADMINISTRATIVE AGENT AND EACH LENDER, AND
ANY OF ADMINISTRATIVE AGENT'S OR LENDER'S RESPECTIVE PARENTS, AFFILIATES,
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, SHAREHOLDERS,
SUBSIDIARIES AND AFFILIATE CORPORATIONS, CONSTITUENT PARTNERS, ATTORNEYS,
ACCOUNTANTS, CONSULTANTS, ADVISORS, SUCCESSORS, HEIRS, ASSIGNS AND
BENEFICIARIES, AND EACH OF THEM (COLLECTIVELY, THE "RELEASEES"), OF AND FROM ANY
AND ALL CONTROVERSIES, PROMISES, DAMAGES, COSTS, LOSSES, EXPENSES, OBLIGATIONS,
INDEBTEDNESS, DEBTS, SUMS OF MONEY, ACCOUNTS, COMPENSATIONS, CONTRACTS,
LIABILITIES, BREACHES OF CONTRACTS, BREACHES OF DUTY OF ANY RELATIONSHIP, ACTS,
OMISSIONS, MISFEASANCE, MALFEASANCE, RIGHTS, CAUSES OF ACTION, SUITS, JUDGMENTS,
CLAIMS, RECOUPMENTS, COUNTERCLAIMS OR DEMANDS, OF EVERY TYPE, KIND, NATURE,
DESCRIPTION OR CHARACTER, AND IRRESPECTIVE OF HOW, WHY, OR BY REASON OF WHAT
FACTS, WHETHER NOW EXISTING OR THAT COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF
WHATEVER KIND OR NAME, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED,
LIQUIDATED OR UNLIQUIDATED, FIXED OR
14
CONTINGENT, FORESEEABLE OR UNFORESEEABLE, EACH AS THOUGH FULLY SET FORTH HEREIN
AT LENGTH, IN LAW, ADMIRALTY OR EQUITY (ANY OF THE FOREGOING, A "CLAIM"), WHICH
ANY OF THE RELEASORS PREVIOUSLY HAD FROM THE BEGINNING OF THE WORLD OR NOW HAVE
AGAINST ANY OF THE RELEASEES THROUGH THE DATE HEREOF, RELATED TO OR CONNECTED
WITH (A) THIS AGREEMENT, THE ADDITIONAL LOAN DOCUMENTS, THE CREDIT AGREEMENT,
THE LOANS OR ANY OF THEM OR THE TRANSACTIONS CONTEMPLATED BY ANY OF THE
FOREGOING, OR (B) ANY DISCUSSIONS OR ALLEGED ORAL AGREEMENTS AMONG THE RELEASEES
AND THE RELEASORS, OR ANY OF THEM, RELATING TO THE LOANS OR ANY OTHER MATTER,
WHICH DISCUSSIONS OR ORAL AGREEMENTS ARE NOT EMBODIED IN A WRITTEN AGREEMENT
EXECUTED BY A PARTIES INTENDED TO BE BOUND BY SUCH AGREEMENT AND EXPRESSLY
STATED TO BE AN AGREEMENT AMONG ALL OF SUCH PARTIES. THE BORROWER, THE
SUBSIDIARIES, THE ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS INTEND THAT THIS
WAIVER, RELEASE AND DISCHARGE APPLIES TO ALL SUCH CLAIMS THAT ARE BASED ON FACTS
OR CIRCUMSTANCES THAT EXISTED PRIOR TO, OR CAME INTO EXISTENCE CONCURRENTLY
WITH, OR THAT COME INTO EXISTENCE PRIOR, THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BUT WHICH DO NOT RIPEN INTO A RIGHT, CAUSE OF ACTION, CLAIM OR DEMAND
UNTIL AFTER THE EXECUTION AND DELIVERY OF THIS AGREEMENT. BORROWER AND EACH OF
THE SUBSIDIARIES HEREBY AGREES AND ACKNOWLEDGES THAT FACTS OR CIRCUMSTANCES NOW
UNKNOWN TO THE BORROWER AND THE SUBSIDIARIES, AS THE CASE MAY BE, THAT EXISTED
PRIOR TO, OR CAME INTO EXISTENCE CONCURRENTLY WITH, THE EXECUTION AND DELIVERY
OF THIS AGREEMENT MAY HAVE GIVEN RISE TO CLAIMS THAT ARE PRESENTLY UNKNOWN,
UNANTICIPATED AND UNSUSPECTED, AND THE BORROWER AND EACH SUBSIDIARY FURTHER
AGREES THAT THIS SECTION 10 HAS BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT
ACKNOWLEDGMENT AND THAT THE BORROWER AND EACH SUBSIDIARY, AS THE CASE MAY BE,
NEVERTHELESS HEREBY INTENDS IRREVOCABLY TO WAIVE, RELEASE, REMISE, ACQUIT AND
DISCHARGE THE RELEASEES OF AND FROM ANY SUCH UNKNOWN CLAIMS AS AFORESAID,
RELATED TO ANY OF THE TRANSACTIONS OR CIRCUMSTANCES DESCRIBED IN THIS SECTION.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers.
None of the terms as provisions of this Agreement may be waived,
amended, supplemented or otherwise modified, except in accordance with Section
10.1 of the Credit Agreement.
11.2 Agreements and Acknowledgments of the Administrative Agent and
Lenders.
The Administrative Agent and the Lenders:
15
(a) (i) acknowledge that the Borrower has not delivered the audited
financial statements required under Section 6.1(a) (for the fiscal year ending
December 31, 1997) and under Section 6.1(b) (for fiscal year ending December 31,
1998) of the Credit Agreement and (ii) agree that the Borrower's failure to
deliver such audited financial statements does not and will not constitute a
Termination Event, provided the Borrower delivers such financial statements and
the other financial statements required under Section 6.18 of the Credit
Agreement to the Administrative Agent and the other Lenders on or before the
earlier of (i) five (5) days after such audited financial statements are issued
and (ii) April 30, 1999.
(b) (i) acknowledge that certain of the reports required under Sections
6.2(c) and (d) of the Credit Agreement may be included in the reports required
under Section 6.10 of the Credit Agreement and (ii) agree that the Borrower
shall not be obligated to provide duplicative reports to the Administrative
Agent, provided however, in the event of any conflicts or inconsistencies
between the requirements of Section 6.2 and Section 6.10, the requirements of
Section 6.10 shall control.
(c) agree, subject to the satisfaction of the conditions set forth in
Section 5 hereof and of Section 6.21 of the Credit Agreement, to release their
security interests in the assets of the Commercial Business.
(d) the definitions of Acceptable Loan Commitment and Acceptable
Purchase Agreement can be amended or modified, and the provisions of Sections
3.2 (b), (d) and (e) hereof can be amended, modified or waived, only with
consent and approval of all of the Lenders.
11.3 Further Assurances.
At any time and from time to time, promptly after any request by the
Administrative Agent, the Borrower and the Subsidiaries will make, execute and
deliver, or cause to be made, executed and delivered, and, where appropriate,
cause to be recorded and/or filed and from time to time thereafter to be
re-recorded and/or refiled at such time and in such offices and places as the
Administrative Agent shall deem necessary any and all such other and further
financing statements, continuation statements, certificates, documents,
instruments, documents to correct any technical or inadvertent errors or
omissions in legal descriptions, and other items as the Administrative Agent,
may deem necessary or desirable in order to effectuate and to implement this
Agreement and to effectuate, complete or perfect, or to continue and preserve
the Liens and security interests granted or intended to be granted under this
Agreement, the Credit Agreement, the Security Documents and the Additional Loan
Documents.
11.4 Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered in accordance with Section 10.4 of the First Forbearance
Agreement.
11.5 No Waiver; Cumulative Remedies.
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No failure to exercise and no delay in exercising, on the part of
either the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents 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, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.6 Survival of Representations and Warranties.
All representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement.
11.7 Payment of Expenses.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all of its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, this Agreement
and any amendment, supplement or modification to, this Agreement and the other
Additional Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
fees and disbursements of counsel and other advisors to the Administrative
Agent, and to each of the Lenders (including the allocated fees and expenses of
in-house counsel) (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold the Administrative Agent and each Lender harmless from, any
and all recording and filing fees or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the
Additional Loan Documents and any such other documents, and (d) to pay,
indemnify, and hold the Administrative Agent and each Lender and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an "indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Additional Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans and the Third Party Contribution or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower any of its Subsidiaries or any of the Properties (all
the foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrower shall have no obligation hereunder to any indemnitee
with respect to indemnified liabilities to the extent such indemnified
liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such indemnitee. The agreements in this Section 11.7 shall survive
repayment of the Loans
17
and all other amounts payable hereunder.
11.8 Integration.
This Agreement and the other Additional Loan Documents represent the
entire agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
Additional Loan Documents.
11.9 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OR CONFLICTS
OF LAW.
11.10 SUBMISSION TO JURISDICTION; WAIVERS.
THE BORROWER AND EACH OF THE SUBSIDIARIES HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT
IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS SET FORTH IN SECTION 10.4 OF THE FIRST FORBEARANCE
AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE
BEEN NOTIFIED PURSUANT THERETO;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED
18
BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(E) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED
TO IN THIS SECTION 11.10 ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
11.11 WAIVERS OF JURY TRIAL.
THE BORROWER, THE SUBSIDIARIES, THE ADMINISTRATIVE AGENT AND THE OTHER
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER ADDITIONAL DOCUMENT
AND FOR ANY COUNTERCLAIM OR THIRD PARTY CLAIM THEREIN.
11.12 Credit Agreement.
Except as amended or modified by this Agreement, the First Forbearance
Agreement, and the Second Forbearance Agreement, the Credit Agreement shall
remain in full force and effect in accordance with its original terms, provided,
however, in the event that there is any inconsistency between this Agreement and
any of the Additional Loan Documents and the Credit Agreement, the provisions of
this Agreement and the Additional Loan Documents shall control.
19
11.13 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
11.14 Enforceability; Usury.
In no event shall any provision of this Agreement, the Credit
Agreement, the Notes, or any other instrument evidencing or securing the
indebtedness of the Borrower hereunder ever obligate the Borrower to pay or
allow any Lender to collect interest on the Notes or any other indebtedness of
the Borrower hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest Lawful Rate"),
or obligate the Borrower to pay any taxes, assessments, charges, insurance
premiums or other amounts to the extent that such payments, when added to the
interest payable on the Notes, would be held to constitute the payment by the
Borrower of interest at a rate greater than the Highest Lawful Rate; and this
provision shall control over any provision to the contrary.
Without limiting the generality of the foregoing, in the event the maturity of
all or any part of the principal amount of the indebtedness of the Borrower
hereunder shall be accelerated for any reason, then such principal amount so
accelerated shall be credited with any interest theretofore paid thereon in
advance and remaining unearned at the time of such acceleration. If, pursuant to
the terms of this Agreement, the Credit Agreement or the Notes, any funds are
applied to the payment of any part of the principal amount of the indebtedness
of the Borrower hereunder prior to the maturity thereof, then (a) any interest
which would otherwise thereafter accrue on the principal amount so paid by such
application shall be canceled, and (b) the indebtedness of the Borrower
hereunder remaining unpaid after such application shall be credited with the
amount of all interest, if any, theretofore collected on the principal amount so
paid by such application and remaining unearned at the date of said application;
and if the funds so applied shall be sufficient to pay in full all the
indebtedness of the Borrower hereunder, then the Lenders shall refund to the
Borrower all interest theretofore paid thereon in advance and remaining unearned
at the time of such acceleration. Regardless of any other provision in this
Agreement, the Credit Agreement or in any of the written evidences of the
indebtedness of the Borrower hereunder, the Borrower shall never be required to
pay any unearned interest on such indebtedness or any portion thereof, and shall
never be required to pay interest thereon at a rate in excess of the Highest
Lawful Rate construed by courts having competent jurisdiction thereof.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
20
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date and year first above written.
PHYSICIAN COMPUTER
NETWORK, INC.
By: ________________________________
Name: ___________________________
Title: ____________________________
VERSYSS INCORPORATED
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SOLION CORPORATION
By: _______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
By: _______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
INTEGRATED HEALTH SYSTEMS, INC.
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PCN HP VENTURE CORP.
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PCN SERVICES CORP.
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MEDICAL NETWORK SYSTEMS, CORP.
By: ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
FLEET BANK, N.A., as Administrative
Agent and as a Lender
By: ________________________________
Name: ___________________________
Title: ____________________________
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.,
By: ________________________________
Name: ___________________________
Title: ____________________________
BANK OF MONTREAL
By: ________________________________
Name: ___________________________
Title: ____________________________
SKANDINAVISKA ENSKILDA ▇▇▇▇▇▇ ▇▇
(PUBLIC) NEW YORK BRANCH
By: ________________________________
Name: ___________________________
Title: ____________________________
By: ________________________________
Name: ___________________________
Title: ____________________________
FIRST UNION NATIONAL BANK
By: ________________________________
Name: ___________________________
Title: ____________________________
IMPERIAL BANK, A CALIFORNIA
BANKING CORPORATION
By: ________________________________
Name: ___________________________
Title: ____________________________
SOCIETE GENERALE
By: ________________________________
Name: ___________________________
Title: ____________________________
SUMMIT BANK
By: ________________________________
Name: ___________________________
Title: ____________________________
HCM OFFSHORE TRUST
By: ________________________________
Name: ___________________________
Title: ____________________________