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EXHIBIT 10.105
$10,000,000.00
LOAN AND SECURITY AGREEMENT
by and between
DRKOOP LIFECARE, INC.
("Borrower")
and
▇▇▇▇▇▇ HEALTHCARE FINANCE, INC.
("Lender")
August 20, 2001
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LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (the "Agreement") is made as of August
20, 2001 by and between DRKOOP LIFECARE, INC., a Delaware corporation
("Borrower"), and ▇▇▇▇▇▇ HEALTHCARE FINANCE, INC., a Delaware corporation
("Lender").
RECITALS
WHEREAS, Borrower desires to establish certain financing arrangements
with and borrow funds from Lender, and Lender is willing to establish such
arrangements for and make loans and extensions of credit to Borrower, on the
terms and conditions set forth below.
WHEREAS, the parties desire to define the terms and conditions of their
relationship and to reduce their agreements to writing.
NOW, THEREFORE, in consideration of the promises and covenants contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties covenant and agree
as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, unless otherwise specified, all references to
"Sections" shall be deemed to refer to Sections of this Agreement, and the
following terms shall have the meanings set forth below:
SECTION 1.1. ACCOUNT. "Account" means any right to payment of a monetary
obligation, whether or not earned by performance, including, but not limited to,
the right to payment of management fees. Without limiting the generality of the
foregoing, the term "Account" shall further include any "account" (as that term
is defined in the Uniform Commercial Code now or hereafter in effect), any
accounts receivable, any "health-care-insurance receivables" (as that term is
defined in the Uniform Commercial Code now or hereafter in effect), any "payment
intangibles" (as that term is defined in the Uniform Commercial Code now or
hereafter in effect) and all other rights to payment of every kind and
description, whether or not earned by performance.
SECTION 1.2. ACCOUNT DEBTOR. "Account Debtor" means any Person obligated
on any Account of Borrower, including without limitation, any Insurer and any
Medicaid/Medicare Account Debtor.
SECTION 1.3. AFFILIATE. "Affiliate" means, with respect to a specified
Person, any Person directly or indirectly controlling, controlled by, or under
common control with the specified Person, including without limitation their
stockholders and any Affiliates thereof. A Person shall be deemed to control a
corporation or other entity if the Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and business of the
corporation or other entity, whether through the ownership of voting securities,
by contract, or otherwise.
SECTION 1.4. AFFILIATED LOAN DOCUMENTS. "Affiliated Loan Documents"
shall mean any and all documents evidencing, securing and/or governing any
financing provided by Lender or Lender's Affiliates to Borrower, Guarantor or
any Affiliate of Borrower or Guarantor, as the same may be amended, modified,
increased, renewed or restated from time to time.
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SECTION 1.5. AGREEMENT. "Agreement" means this Loan and Security
Agreement, as it may be amended or supplemented from time to time, together with
all attachments, exhibits, schedules, riders and addenda, all of which are
incorporated herein by this reference and made a part hereof.
SECTION 1.6. BASE RATE. "Base Rate" means a rate of interest equal to
one and three quarters percent (1.75 %) per annum above the "Prime Rate of
Interest".
SECTION 1.7. BORROWED MONEY. "Borrowed Money" means, with respect to any
Person, without duplication (a) all indebtedness for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) that
portion of obligations with respect to capital leases that is properly
classified as a liability on a balance sheet in conformity with GAAP, (d) any
obligations of such Person issued or assumed as the deferred purchase price of
property or services purchased by such Person if the purchase price is due more
than six (6) months from the date the obligation is incurred (other than trade
debt incurred in the ordinary course of business and due within six (6) months
of the incurrence thereof) or is evidenced by a note or other instrument, (e)
all Borrowed Money of others secured by (or for which the holder of such
Borrowed Money has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, any property or
asset owned, held or acquired by such Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
non-recourse to the credit of that Person, (f) all guaranty obligations of such
Person in respect of any Borrowed Money of any other person, (g) the maximum
amount of all standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (h) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product plus any
accrued interest thereon, and (i) the Borrowed Money of any partnership or
unincorporated joint venture in which such Person is a general partner or joint
venturer.
SECTION 1.8. BORROWER. "Borrower" has the meaning set forth in the
Preamble.
SECTION 1.9. BORROWING BASE. "Borrowing Base" has the meaning set forth
in Section 2.1(d).
SECTION 1.10. BUSINESS DAY. "Business Day" means any day on which
financial institutions are open for business in the State of Maryland, excluding
Saturdays and Sundays.
SECTION 1.11 INTENTIONALLY LEFT BLANK.
SECTION 1.12. CLOSING; CLOSING DATE. "Closing" and "Closing Date" have
the meanings set forth in Section 5.3.
SECTION 1.13. COLLATERAL. "Collateral" has the meaning set forth in
Section 3.1.
SECTION 1.14. COMMITMENT FEE. "Commitment Fee" has the meaning set forth
in Section 2.4(a).
SECTION 1.15. CONCENTRATION ACCOUNT. "Concentration Account" has the
meaning set forth in Section 2.3.
SECTION 1.16. CONTROLLED GROUP. "Controlled Group" means all businesses
that would be treated as a single employer under Section 401(b) of ERISA.
SECTION 1.17. DEFAULT RATE. "Default Rate" means a rate per annum equal
to five percent (5%) per annum above the then applicable Base Rate.
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SECTION 1.18. ERISA. "ERISA" has the meaning set forth in Section 4.12.
SECTION 1.19. EVENT OF DEFAULT. "Event of Default" and "Events of
Default" have the meanings set forth in Section 8.1.
SECTION 1.20. INTENTIONALLY LEFT BLANK.
SECTION 1.21. GAAP. "GAAP" means generally accepted accounting
principles applied in a consistent manner.
SECTION 1.22. GOVERNMENTAL AUTHORITY. "Governmental Authority" means and
includes any federal, state, District of Columbia, county, municipal, or other
government and any department, commission, board, bureau, agency or
instrumentality thereof, whether domestic or foreign.
SECTION 1.23. GUARANTOR. "Guarantor" means any Person who may from time
to time guaranty, pledge assets as security for or otherwise become obligated in
respect of the obligations of Borrower under the Loan Documents.
SECTION 1.24. GUARANTY. "Guaranty" means any guaranty of the obligations
of Borrower under the Loan Documents from time to time outstanding, as the same
may be amended, modified, or supplemented from time to time.
SECTION 1.25. HAZARDOUS MATERIAL. "Hazardous Material" means any
substances defined or designated as hazardous or toxic waste, hazardous or toxic
material, hazardous or toxic substance, or similar term, by any environmental
statute, rule or regulation or any Governmental Authority applicable to Borrower
or its business, operations or assets.
SECTION 1.26. HIGHEST LAWFUL RATE. "Highest Lawful Rate" means the
maximum lawful rate of interest referred to in Section 2.7 that may accrue
pursuant to this Agreement.
SECTION 1.27. HIPAA. "HIPAA" means the Health Insurance Portability and
Accountability Act of 1996, as the same may be amended, modified or supplemented
from time to time, and any successor statute thereto, and any and all rules or
regulations promulgated from time to time thereunder.
SECTION 1.28. INSURER. "Insurer" means a Person that insures any Person
against certain of the costs incurred in the receipt by such Person of goods or
services, or that has an agreement with Borrower to compensate Borrower for
providing goods or services to a Person.
SECTION 1.29. LENDER. "Lender" has the meaning set forth in the
Preamble.
SECTION 1.30. LIEN. "Lien" shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge or other security interest or any preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement and any capital lease having substantially the same
practical effect as any of the foregoing).
SECTION 1.31. LOAN. "Loan" has the meaning set forth in Section 2.1(a).
SECTION 1.32. LOAN DOCUMENTS. "Loan Documents" means and includes this
Agreement, the Note, the Certificate of Validity, any Guaranty and each and
every other document now or hereafter delivered by Borrower or
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any Guarantor in connection with this Agreement, as any of them may be amended,
modified, increased, renewed or restated from time to time.
SECTION 1.33. LOAN MANAGEMENT FEE. "Loan Management Fee" has the meaning
set forth in Section 2.4(c).
SECTION 1.34. LOCKBOX. "Lockbox" has the meaning set forth in Section
2.3.
SECTION 1.35. LOCKBOX ACCOUNT. "Lockbox Account" means an account or
accounts maintained at the Lockbox Bank into which all collections of Accounts
are paid directly.
SECTION 1.36. LOCKBOX BANK. "Lockbox Bank" has the meaning set forth in
Section 2.3.
SECTION 1.37. MAXIMUM LOAN AMOUNT. "Maximum Loan Amount" has the meaning
set forth in Section 2.1(a).
SECTION 1.38. MEDICAID/MEDICARE ACCOUNT DEBTOR. "Medicaid/ Medicare
Account Debtor" means any Account Debtor which is (a) the United States of
America acting under the Medicaid/Medicare program established pursuant to the
Social Security Act, (b) any state or the District of Columbia acting pursuant
to a health plan adopted pursuant to Title XIX of the Social Security Act or (c)
any agent, carrier, administrator or intermediary for any of the foregoing.
SECTION 1.39. INTENTIONALLY LEFT BLANK.
SECTION 1.40. INTENTIONALLY LEFT BLANK.
SECTION 1.41. MINIMUM NET WORTH. "Minimum Net Worth" shall mean tangible
net worth of $1,000,000.00. "Tangible net worth" means assets (excluding
intangible assets) less liabilities. "Intangible assets" means all intangible
assets (determined in conformity with GAAP) including, without limitation,
goodwill, intellectual property, licenses, organizational costs, deferred
amounts, covenants not to compete, unearned income and restricted funds.
SECTION 1.42. NOTE. "Note" has the meaning set forth in Section 2.1(c).
SECTION 1.43. OBLIGATIONS. "Obligations" has the meaning set forth in
Section 3.1.
SECTION 1.44. INTENTIONALLY LEFT BLANK.
SECTION 1.45. PERMITTED LIENS. "Permitted Liens" means: (a) deposits or
pledges to secure obligations under workmen's compensation, social security or
similar laws, or under unemployment insurance; (b) deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations of
like nature arising in the ordinary course of business; (c) mechanic's,
workmen's, materialmen's or other like Liens arising in the ordinary course of
business with respect to obligations which are not due, or which are being
contested in good faith by appropriate proceedings which suspend the collection
thereof and in respect of which adequate reserves have been made (provided that
such proceedings do not, in Lender's sole discretion, involve any substantial
risk of the sale, loss or forfeiture of such property or assets or any interest
therein); (d) Liens and encumbrances in favor of Lender; (e) Liens set forth on
Schedule 1.45, (f) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the applicable grace period (not to exceed
sixty (60) days) has not expired or which are being contested in good faith by
appropriate proceedings and in respect of which adequate reserves have been
made; and (g) Liens placed upon assets
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to secure the purchase price thereof, provided that the aggregate amount of
indebtedness or outstanding amounts secured by such Liens shall not at any one
time outstanding exceed $1,000,000.00.
SECTION 1.46. PERSON. "Person" means an individual, partnership,
corporation, trust, joint venture, joint stock company, limited liability
company, association, unincorporated organization, Governmental Authority, or
any other entity.
SECTION 1.47. PLAN. "Plan" has the meaning set forth in Section 4.12.
SECTION 1.48. PREMISES. "Premises" has the meaning set forth in Section
4.14.
SECTION 1.49. PRIME RATE OF INTEREST. "Prime Rate of Interest" means
that rate of interest designated as such by Citibank, N.A., or any successor
thereto, as the same may from time to time fluctuate.
SECTION 1.50. PROHIBITED TRANSACTION. "Prohibited Transaction" means a
"prohibited transaction" within the meaning of Section 406 of ERISA or Section
4975(c)(1) of the Internal Revenue Code that is not exempt under Section 407 or
Section 408 of ERISA or Section 4975(c)(2) or (d) of the Internal Revenue Code
or under a class exemption granted by the U.S. Department of Labor.
SECTION 1.51. QUALIFIED ACCOUNT. "Qualified Account" means an Account of
Borrower generated in the ordinary course of Borrower's business from the sale
of goods or rendition of services which Lender, in its sole credit judgment,
deems to be a Qualified Account. Without limiting the generality of the
foregoing, no Account shall be a Qualified Account if: (a) the Account or any
portion of the Account is payable by an individual beneficiary, recipient or
subscriber individually and not directly to Borrower by a Medicaid/Medicare
Account Debtor or commercial medical insurance carrier acceptable to Lender in
its sole discretion; (b) the Account remains unpaid more than one hundred eighty
(180) days past the claim or invoice date (but in no event more than one hundred
ninety-five (195) days after the applicable goods have been sold or services
have been rendered); provided that, until such time as Borrower has received the
applicable Medicaid and/or Medicare provider number and associated provider
account agreement, with respect to any Account payable by any Medicaid/Medicare
Account Debtor or any Account Debtor that is Blue Cross/Blue Shield to the
extent Borrower requires Medicaid and/or Medicare provider numbers to invoice
such Blue Cross/Blue Shield Account (any such Account, individually, during such
time an "Unbilled Account"), such Account shall not be a Qualified Account if
the Account remains unpaid more than one hundred twenty (120) days past the
claim or invoice date (but in no event more than one hundred thirty-five (135)
days after the applicable goods have been sold or services have been rendered);
(c) the Account is subject to any defense, set-off, counterclaim, deduction,
discount, credit, chargeback, freight claim, allowance, or adjustment of any
kind; (d) any part of any goods the sale of which has given rise to the Account
has been returned, rejected, lost, or damaged; (e) if the Account arises from
the sale of goods by Borrower, the sale was not an absolute sale, or the sale
was made on consignment or on approval or on a sale-or-return basis, or the sale
was made subject to any other repurchase or return agreement, or the goods have
not been shipped to the Account Debtor or its designee; (f) if the Account
arises from the performance of services, the services have not been actually
been performed or the services were undertaken in violation of any law; (g) the
Account is subject to a Lien other than a Permitted Lien; (h) Borrower knows or
should have known based on information to which participants in the industry can
reasonably be expected to have access of the bankruptcy, receivership,
reorganization, or insolvency of the Account Debtor; (i) the Account is
evidenced by chattel paper or an instrument of any kind, or has been reduced to
judgment; (j) the Account is an Account of an Account Debtor having its
principal place of business or executive office outside the United States; (k)
the Account Debtor is an Affiliate or subsidiary of Borrower; (l) except as
expressly approved in writing by Lender, more than ten percent (10%) of the
aggregate balance of all Accounts owing from the Account Debtor obligated on the
Account are outstanding more than two hundred ten (210) days past their invoice
date; (m) except with respect to such Account Debtors expressly approved by
Lender in writing, Accounts due from an Account Debtor with respect to which
fifty percent (50%) or more of the aggregate unpaid Accounts from such Account
Debtor are not deemed Qualified Accounts under this Agreement; (n) Accounts due
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from a single Account Debtor with respect to which the total unpaid Accounts of
such Account Debtor, except for a Medicaid/Medicare Account Debtor and any
Account Debtor that is Blue Cross/Blue Shield, exceed twenty percent (20%) of
the net amount of all Qualified Accounts (including Medicaid/Medicare Account
Debtors); provided that, in such event, only that portion of total unpaid
Accounts of such Account Debtor in excess of twenty percent (20%) of the net
amount of all Qualified Accounts (including Medicaid/Medicare Account Debtors)
shall be deemed not to be Qualified Accounts; (o) the total Accounts of Borrower
that remain unpaid between one hundred fifty (150) and one hundred eighty (180)
days past their invoice date exceed fifteen percent (15%) of the net amount of
all Accounts that remain unpaid up to one hundred eighty (180) days past their
invoice date; provided that, in such event, only that portion of such total
Accounts in excess of fifteen percent (15%) of such net amount of Accounts that
remain unpaid up to one hundred eighty (180) days past their invoice date shall
be deemed not to be Qualified Accounts; (p) any covenant, representation or
warranty contained in the Loan Documents with respect to such Account has been
breached; or (q) the Account fails to meet such other specifications and
requirements which may from time to time be established by Lender in its
reasonable credit judgment.
SECTION 1.52. REPORTABLE EVENT. "Reportable Event" means a "reportable
event" as defined in Section 4043(c) of ERISA for which the notice requirements
of Section 4043(a) of ERISA are not waived.
SECTION 1.53. REVOLVING CREDIT LOAN. "Revolving Credit Loan" has the
meaning set forth in Section 2.1(b).
SECTION 1.54. INTENTIONALLY LEFT BLANK.
SECTION 1.55. TERM. "Term" has the meaning set forth in Section 2.8.
SECTION 1.56. TERMINATION FEE. "Termination Fee " shall mean a fee
payable upon termination of the Agreement, as yield maintenance for the loss of
bargain and not as a penalty, equal to the greater of (a) two percent (2%) of
the Maximum Loan Amount and (b) the Yield Maintenance Amount; provided that, in
any event, the Termination Fee shall not in any event exceed five percent (5%)
of the Maximum Loan Amount.
SECTION 1.57. YIELD MAINTENANCE AMOUNT. "Yield Maintenance Amount" shall
mean the product obtained by multiplying (a) the difference between (i) the all
in effective yield (measured as a percentage per annum) earned by Lender under
this Agreement during the three (3) full calendar months immediately preceding
the Termination Date minus (ii) ▇▇▇▇▇▇ Financial Inc.'s weighted average cost of
capital (measured as a percentage per annum) for the most recent publicly
disclosed quarterly financial period; times (b) the average principal amount of
outstanding Revolving Credit Loans for the three (3) calendar months immediately
preceding the Termination Date; times (c) the quotient of (i) the number of
months (full or partial) then-remaining in the Term, divided by (ii) twelve
(12).
ARTICLE II
LOAN
SECTION 2.1. TERMS.
(a) The maximum aggregate principal amount of credit extended by
Lender to Borrower under this Agreement (the "Loan") that will be outstanding at
any time is Ten Million and No/100 Dollars ($10,000,000.00) (the "Maximum Loan
Amount").
(b) The Loan shall be in the nature of a revolving line of
credit, and shall include sums advanced and other credit extended by Lender to
or for the benefit of Borrower from time to time under this Article II (each a
"Revolving Credit Loan") up to the Maximum Loan Amount depending upon the
availability in the
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Borrowing Base, the requests of Borrower pursuant to the terms and conditions of
Section 2.2, and on such other basis as Lender may reasonably determine. The
outstanding principal balance of the Loan may fluctuate from time to time, be
reduced by repayments made by Borrower (which may be made without penalty or
premium) and be increased by future Revolving Credit Loans, advances and other
extensions of credit to or for the benefit of Borrower, and shall be due and
payable in full upon the expiration of the Term. For purposes of this Agreement,
any determination as to whether there is availability within the Borrowing Base
for advances or extensions of credit shall be made by Lender in its sole
discretion and is final and binding upon Borrower.
(c) At Closing, Borrower shall execute and deliver to Lender a
promissory note evidencing Borrower's unconditional obligation to repay Lender
for Revolving Credit Loans, advances, and other extensions of credit made under
the Loan, in the form of Exhibit A to this Agreement (as amended, modified,
increased, restated or replaced from time to time, the "Note"), dated the date
of this Agreement, payable to the order of Lender in accordance with the terms
thereof. The Note shall bear interest on the outstanding principal balance of
the Note from the date of the Note until repaid, with interest payable monthly
in arrears on the first Business Day of each month, at a rate per annum (on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
Base Rate, provided that after the occurrence and during the continuance of an
Event of Default such rate shall be equal to the Default Rate. Each Revolving
Credit Loan, advance and other extension of credit shall be deemed evidenced by
the Note, which is deemed incorporated into and made a part of this Agreement by
this reference.
(d) Subject to the terms and conditions of this Agreement,
advances under the Loan shall be made against a borrowing base equal to
eighty-five percent (85%) of Qualified Accounts due and owing from any
Medicaid/Medicare Account Debtor, Insurer or other Account Debtor (the
"Borrowing Base"). Lender, in its sole credit judgment, may further adjust the
Borrowing Base by applying percentages (known as "liquidity factors") to
Qualified Accounts by payor class based upon Borrower's actual recent collection
history for each such payor class (i.e., Medicare, Medicaid, commercial
insurance, etc.) in a manner consistent with Lender's underwriting practices and
procedures; provided that, (i) at Closing the initial liquidity factor to be
applied to the Borrowing Base shall be seventy percent (70%) and (ii) Lender
agrees to perform an audit within three (3) months of the initial Closing
hereunder, at which time such liquidity factor may be adjusted, in Lender's sole
discretion, based on the results of such audit; and provided further that Lender
shall apply a second liquidity factor to the Unbilled Accounts equal to
seventy-five percent (75%). Such liquidity factors may be adjusted by Lender
throughout the Term as warranted by Lender's underwriting practices and
procedures and using its sole credit judgment.
SECTION 2.2. LOAN ADMINISTRATION. Borrowings under the Loan shall be as
follows:
(a) A request for a Revolving Credit Loan shall be made, or
shall be deemed to be made, in the following manner: (i) Borrower may give
Lender notice of its intention to borrow, in which notice Borrower shall specify
the amount of the proposed borrowing and the proposed borrowing date, not later
than noon Eastern time on the proposed borrowing date by telephone (which
telephonic notice shall be promptly confirmed by Borrower in writing); provided,
however, that no such request may be made at a time when there exists an Event
of Default; and (ii) the becoming due of any amount required to be paid under
this Agreement, whether as interest or for any other Obligation, shall be deemed
irrevocably to be a request for a Revolving Credit Loan on the day following the
due date in the amount required to pay such interest or other Obligation if such
was not paid by Borrower on the due date.
(b) Borrower hereby irrevocably authorizes Lender to disburse
the proceeds of each Revolving Credit Loan requested, or deemed to be requested,
as follows: (i) the proceeds of each Revolving Credit Loan requested under
subsection 2.2(a)(i) shall be disbursed by Lender by wire transfer to such bank
account as may be agreed upon by Borrower and Lender from time to time or
elsewhere if pursuant to written direction from Borrower; and (ii) the proceeds
of each Revolving Credit Loan deemed to be requested under subsection 2.2(a)(ii)
shall be disbursed by Lender by way of direct payment of the relevant interest
or other Obligation.
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(c) All Revolving Credit Loans, advances and other extensions of
credit to or for the benefit of Borrower shall constitute one general Obligation
of Borrower, and shall be secured by Lender's Lien upon all of the Collateral.
(d) Lender shall enter all Revolving Credit Loans as debits to a
loan account in the name of Borrower and shall also record in said loan account
all payments made by Borrower on any Obligations and all proceeds of Collateral
which are indefeasibly paid to Lender, and may record therein, in accordance
with customary accounting practice, other debits and credits, including interest
and all charges and expenses properly chargeable to Borrower. All collections
into the Concentration Account pursuant to Section 2.3 shall be applied first to
fees, costs and expenses due and owing under the Loan Documents, then to
interest due and owing under the Loan Documents, and then to principal
outstanding with respect to Revolving Credit Loans.
(e) Lender will account to Borrower monthly with a statement of
Revolving Credit Loans, charges and payments made pursuant to this Agreement,
and such accounting rendered by Lender shall be deemed final, binding and
conclusive upon Borrower, absent manifest error, unless Lender is notified by
Borrower in writing to the contrary within thirty (30) days of the date each
accounting is mailed to Borrower. Such notice shall be deemed an objection to
those items specifically objected to in the notice.
SECTION 2.3. COLLECTIONS, DISBURSEMENTS, BORROWING AVAILABILITY, AND
LOCKBOX ACCOUNT.
(a) Borrower shall establish and maintain a lockbox (the
"Lockbox") and a lockbox account (the "Lockbox Account") with National City
Bank, MI/IL (the "Lockbox Bank"), subject to the provisions of this Agreement,
and shall execute with the Lockbox Bank a lockbox agreement in the form attached
as Exhibit B-1, and such other agreements related to such lockbox agreement as
Lender may reasonably require. Borrower shall ensure that all collections of
Accounts from Medicaid/Medicare Account Debtors only are paid directly by such
Medicaid/Medicare Account Debtors into such Lockbox established pursuant to this
subsection (a) for deposit into the Lockbox Account established pursuant to this
subsection (a), and that all funds deposited into such Lockbox Account are
immediately transferred into a depository account maintained by Lender at Bank
One, N.A., or such other financial institution as determined by Lender in its
sole discretion, by written notice to Borrower and the Lockbox Bank (the
"Concentration Account").
(b) Borrower shall establish and maintain a second lockbox (also
referred to herein as the "Lockbox") with the Lockbox Bank in Borrower's name,
subject to the provisions of this Agreement. Lender shall establish and maintain
a second lockbox account with the Lockbox Bank (also referred to herein as the
"Lockbox Account"), and Borrower shall execute with the Lockbox Bank a second
lockbox agreement in the form attached as Exhibit B-2, and such other agreements
related to such lockbox agreement as Lender may reasonably require.
Notwithstanding the provisions of Section 2.3(a), Borrower shall ensure that all
collections of Accounts due from Account Debtors other than Medicaid/Medicare
Account Debtors are paid directly by such Account Debtors into such Lockbox
established pursuant to this subsection (b) for deposit into the Lockbox Account
established pursuant to this subsection (b), and that all funds deposited into
such Lockbox Account are immediately transferred into the Concentration Account.
(c) Notwithstanding anything in any lockbox agreement to the
contrary, Borrower agrees that it shall be liable for any fees and charges in
effect from time to time and charged by the Lockbox Bank in connection with the
Lockbox and the Lockbox Account, and that Lender shall have no liability
therefor. Borrower further acknowledges and agrees that, to the extent such fees
and charges are not paid by Borrower directly but are satisfied using
collections in the Lockbox Account, such fees and charges shall be deemed to be
Revolving Credit Loans made by Lender hereunder and, to the extent that the
payment of such fees or charges by Borrower as provided herein results in any
overadvance under this Agreement, Borrower agrees to immediately (upon notice)
repay to Lender the amount of such overadvance. Lender acknowledges that
Borrower is entitled to all interest accrued on amounts in the Lockbox Account.
Borrower agrees to indemnify and hold Lender harmless from any
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and all liabilities, claims, losses and demands whatsoever, including reasonable
attorney's fees and expenses, arising from or relating to actions of Lender or
the Lockbox Bank pursuant to this Section 2.3 or any lockbox agreement.
(d) Lender shall apply, on a daily basis, all funds transferred
into the Concentration Account pursuant to this Section 2.3 to reduce the
outstanding indebtedness under the Loan (in accordance with Section 2.2(d)), and
all future Revolving Credit Loans, advances and other extensions of credit to be
made by Lender under the conditions set forth in this Article II. To the extent
that any collections of Accounts or proceeds of other Collateral are not sent
directly to the Lockbox as required by this Section 2.3 but are received by
Borrower, such collections shall be held in trust for the benefit of Lender and
immediately remitted, in the form received, to the Lockbox Bank for transfer to
the Concentration Account immediately upon receipt by Borrower.
(e) Borrower acknowledges and agrees that its compliance with
the terms of this Section 2.3 is essential, and that Lender will suffer
immediate and irreparable injury and have no adequate remedy at law, if
Borrower, through its acts or omissions, causes or permits Account Debtors to
send payments other than to the Lockbox, or if Borrower fails to immediately
deposit collections of Accounts or proceeds of other Collateral in the Lockbox
Account as herein required. Upon Borrower's failure to comply with the terms of
this Section 2.3, Lender will be entitled, in addition to exercising any other
rights and remedies available to it, to assess a non-compliance fee which shall
operate to increase the Base Rate by two percent (2%) per annum during any
period of non-compliance; provided, that such non-compliance fee shall not be
charged with respect to any non-compliance by Borrower hereunder that
constitutes an Event of Default for which Lender has exercised its right to
charge the Default Rate.
(f) All funds transferred from the Concentration Account for
application to Borrower's indebtedness to Lender shall be applied to reduce the
Loan balance, but for purposes of calculating interest shall be subject to a
four (4) Business Day clearance period. If as the result of collections of
Accounts pursuant to the terms and conditions of this Section 2.3 a credit
balance exists with respect to the Concentration Account, such credit balance
shall not accrue interest in favor of Borrower, but shall be available to
Borrower at any time or times for so long as no Event of Default, and no fact,
event or circumstance that, with notice or the passage of time (or both), would
constitute an Event of Default, exists.
SECTION 2.4. FEES.
(a) By executing this Agreement, Borrower agrees unconditionally
to pay to Lender a commitment fee equal to one percent (1 %) of the Maximum Loan
Amount (the "Commitment Fee").
(b) For so long as the Loan is available to Borrower, Borrower
unconditionally shall pay to Lender a monthly usage fee (the "Usage Fee") equal
to 0.0425% of the average amount by which the Maximum Loan Amount exceeds the
average amount of the outstanding principal balance of the Revolving Credit
Loans during the preceding month. The Usage Fee shall be payable monthly in
arrears on the first Business Day of each successive calendar month.
(c) For so long as the Loan is available to Borrower, Borrower
unconditionally shall pay to Lender a monthly loan management fee (the "Loan
Management Fee") equal to one twelfth of one percent (0.083%) of the average
amount of the outstanding principal balance of the Revolving Credit Loans during
the preceding month. The Loan Management Fee shall be payable monthly in arrears
on the first Business Day of each successive calendar month.
(d) Subject to the provisions of this Section 2.4(d), Borrower
shall pay to or reimburse Lender for, as the case may be, any and all
out-of-pocket fees incurred by Lender in connection with up to one (1) audit per
calendar quarter of Borrower's books and records; provided, that for purposes
hereof, "audit" shall not include any reconciliation or other activities
performed by Lender pursuant to the Intercreditor Agreement (as defined). All
amounts to be paid or reimbursed by Borrower hereunder shall be due and payable
on the first
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Business Day of the month following the date of issuance by Lender of a request
for payment or reimbursement thereof to Borrower; provided, however, that on the
occurrence and during the continuance of any Event of Default under this
Agreement or any of the other Loan Documents, the foregoing limitation on the
number of audits to be paid for or reimbursed by Borrower shall not apply, and
(i) Borrower shall be required to pay or reimburse Lender for any and all fees
described in this Section 2.4(d) that are incurred by Lender in connection with
any audits conducted by Lender during such period, without regard to the
foregoing cap on such fees, and (ii) any audits conducted Lender during such
period shall not be applied towards the number of audits for which Borrower is
required to pay or reimburse Lender as provided herein. Notwithstanding anything
in this Section 2.4(d) to the contrary, Lender shall not be limited in the
number of any audits or other similar actions conducted or permitted to be
conducted by it under this Agreement.
(e) Borrower shall pay to Lender, on demand, any and all
customary fees, costs or expenses which Lender or any participant pays to a bank
or other similar institution (including, without limitation, any fees paid by
Lender to any participant) arising out of or in connection with (i) the
forwarding to Borrower or any other Person on behalf of Borrower, by Lender, of
proceeds of Revolving Credit Loans made by Lender to Borrower pursuant to this
Agreement, and (ii) the depositing for collection, by Lender or any participant,
of any check or item of payment received or delivered to Lender or any
participant on account of Obligations.
SECTION 2.5. PAYMENTS. Principal payable on account of Revolving Credit
Loans shall be payable by Borrower to Lender immediately upon the earliest of
(a) the receipt by Borrower or Lender of any payments on or proceeds from any of
the Collateral, to the extent of such proceeds, (b) the occurrence of an Event
of Default if the Loan and the maturity of the payment of the Obligations are
accelerated, or (c) the termination of this Agreement pursuant to Section 2.8 of
this Agreement; provided, however, that if the outstanding principal balance of
the Revolving Credit Loans is at any time in excess of the Borrowing Base,
Borrower shall, immediately upon demand, repay such excess. Interest accrued on
the Revolving Credit Loans shall be due on the earliest of (x) the first
Business Day of each month (for the immediately preceding month), computed on
the last calendar day of the preceding month, (y) the occurrence of an Event of
Default if the Loan and the maturity of the payment of the Obligations are
accelerated, or (z) the termination of this Agreement pursuant to Section 2.8.
Except to the extent otherwise set forth in this Agreement, all payments of
principal and of interest on the Loan, all other charges and any other
obligations of Borrower under this Agreement, shall be made to Lender to the
Concentration Account, in immediately available funds. All payments shall be
made without deduction for any set-off, recoupment, counterclaim or defense that
Borrower now has or may have in the future.
SECTION 2.6. USE OF PROCEEDS. The proceeds of Lender's advances under
the Loan shall be used solely for working capital and for other costs of
Borrower arising in the ordinary course of Borrower's business.
SECTION 2.7. INTEREST RATE LIMITATION. The parties intend to conform
strictly to the applicable usury laws in effect from time to time during the
term of the Loan. Accordingly, if any transaction contemplated by this Agreement
would be usurious under such laws, then notwithstanding any other provision of
this Agreement: (a) the aggregate of all interest that is contracted for,
charged, or received under this Agreement or under any other Loan Document shall
not exceed the maximum amount of interest allowed by applicable law (the
"Highest Lawful Rate"), and any excess shall be promptly credited to Borrower by
Lender (or, to the extent that such consideration shall have been paid, such
excess shall be promptly refunded to Borrower by Lender); (b) neither Borrower
nor any other Person now or hereafter liable under this Agreement shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the Highest Lawful Rate; and (c) the effective rate of interest shall be
reduced to the Highest Lawful Rate. All sums paid, or agreed to be paid, to
Lender for the use, forbearance, and detention of the debt of Borrower to Lender
shall, to the extent permitted by applicable law, be allocated throughout the
full term of the Note until payment is made in full so that the actual rate of
interest does not exceed the Highest Lawful Rate in effect at any particular
time during the full term thereof. If at any time the rate of interest under the
Note exceeds the Highest Lawful Rate, the rate of interest to accrue pursuant to
this Agreement shall be limited, notwithstanding anything to the contrary in
this Agreement, to the Highest Lawful Rate, but any subsequent reductions in the
Base
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Rate shall not reduce the interest to accrue pursuant to this Agreement below
the Highest Lawful Rate until the total amount of interest accrued equals the
amount of interest that would have accrued if a varying rate per annum equal to
the interest rate under the Note had at all times been in effect.
SECTION 2.8. TERM.
(a) Subject to Lender's right to cease making Revolving Credit
Loans to Borrower upon or after any Event of Default, this Agreement shall be in
effect for a period of two (2) years from the Closing Date, unless terminated as
provided in this Section 2.8 (the "Term"), and this Agreement shall be renewed
for one (1) year periods thereafter upon the mutual written agreement of the
parties.
(b) Notwithstanding anything in this Agreement to the contrary,
Lender may terminate this Agreement without notice upon or after the occurrence
of an Event of Default.
(c) Upon at least thirty (30) days prior written notice to
Lender (the "Termination Notice Period"), Borrower may terminate this Agreement
prior to the expiration of the Term (as provided in Section 2.8(a)).
(d) All of the Obligations shall be immediately due and payable
upon the termination date stated in any notice of termination of this Agreement
delivered pursuant to Section 2.8(c) (the "Termination Date"); provided that,
notwithstanding anything in Section 2.8(c) to the contrary, the Termination Date
shall be effective no earlier than the first Business Day of the month following
the expiration of the Termination Notice Period. All undertakings, agreements,
covenants, warranties, and representations of Borrower contained in the Loan
Documents shall survive any such termination and Lender shall retain its Liens
in the Collateral and all of its rights and remedies under the Loan Documents
notwithstanding such termination until Borrower has paid the Obligations to
Lender, in full, in immediately available funds. At the effective date of any
termination of this Agreement other than upon expiration of the Term (whether by
voluntary termination by Borrower or by termination by Lender following the
occurrence of an Event of Default), Borrower shall pay to Lender (in addition to
the then outstanding principal, accrued interest and other Obligations owing
under the terms of this Agreement and any other Loan Documents) as yield
maintenance for the loss of bargain and not as a penalty, an amount equal to the
applicable Termination Fee.
(e) Notwithstanding any provision of this Agreement which makes
reference to the continuance of an Event of Default, nothing in this Agreement
shall be construed to permit Borrower to cure an Event of Default following the
lapse of the applicable cure period, and Borrower shall have no such right in
any instance unless specifically granted in writing by Lender.
SECTION 2.9. INTENTIONALLY LEFT BLANK.
ARTICLE III
COLLATERAL
SECTION 3.1. GENERALLY. As security for the payment of all liabilities
of Borrower to Lender, including without limitation: (x) indebtedness evidenced
under the Note, repayment of Revolving Credit Loans, advances and other
extensions of credit, all fees and charges owing by Borrower (including without
limitation the Termination Fee) and all other liabilities and obligations of
every kind or nature whatsoever of Borrower to Lender under the Loan Documents,
whether now existing or hereafter incurred, joint or several, matured or
unmatured, direct or indirect, primary or secondary, related or unrelated, due
or to become due, including but not limited to any extensions, modifications,
substitutions, increases and renewals thereof, (y) the payment of all amounts
advanced by Lender to preserve, protect, defend, and enforce its rights under
this Agreement and in the following property in accordance with the terms of
this Agreement, and (z) the payment of all expenses incurred by Lender in
connection
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therewith ((x), (y) and (z) collectively, the "Obligations"), and as further
security for the payment and performance by Borrower, Guarantor and their
respective Affiliates of their respective obligations under the Affiliated Loan
Documents to the extent such payment and performance are expressly secured by,
among other things, the Collateral pledged hereunder, Borrower hereby assigns
and grants to Lender a continuing first priority Lien (subject to any Permitted
Lien described in Section 1.45 that may, by operation of law, have priority over
Lender's first priority Lien hereunder) on and security interest in, upon, and
to the following property whether now owned or hereafter acquired or arising
(the "Collateral"; unless otherwise defined in this Agreement, all terms used in
the following subparagraphs shall have the meanings given them in the Uniform
Commercial Code as now or hereafter in effect):
(a) all of Borrower's Accounts, and all of Borrower's money,
contract rights, chattel paper, documents, deposit accounts, securities,
investment property and instruments with respect thereto, and all of Borrower's
rights, remedies, security, Liens and supporting obligations, in, to and in
respect of the foregoing, including, without limitation, rights of stoppage in
transit, replevin, repossession and reclamation and other rights and remedies of
an unpaid vendor, lienor or secured party, guaranties or other contracts of
suretyship with respect to the Accounts, deposits or other security for the
obligation of any Account Debtor, and credit and other insurance;
(b) to the extent not listed above, all of Borrower's money,
securities, investment property, deposit accounts, instruments and other
property and the proceeds thereof that are now or hereafter held or received by,
in transit to, in possession of, or under the control of Lender or a bailee or
Affiliate of Lender, whether for safekeeping, pledge, custody, transmission,
collection or otherwise;
(c) to the extent not listed above, all of Borrower's now owned
or hereafter acquired deposit accounts into which Accounts or the proceeds of
Accounts are deposited, including the Lockbox Account;
(d) all of Borrower's right, title and interest in, to and in
respect of all goods relating to, or which by sale have resulted in, Accounts,
including, without limitation, all goods described in invoices or other
documents or instruments with respect to, or otherwise representing or
evidencing, any Account, and all returned, reclaimed or repossessed goods;
(e) all of Borrower's general intangibles (including, but not
limited to, payment intangibles) and other property of every kind and
description with respect to, evidencing or relating to its Accounts, including,
but not limited to, all existing and future customer lists, choses in action,
claims, books, records, ledger cards, contracts, licenses, formulae, tax and
other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies, and computer programs, information, software,
records, and data, as the same relates to the Accounts;
(f) all of Borrower's other money, securities, investment
property, deposit accounts, instruments, documents, supporting obligations and
chattel paper;
(g) all of Borrower's letter-of-credit rights and commercial
tort claims;
(h) all of Borrower's other general intangibles (including,
without limitation, any proceeds from insurance policies after payment of prior
interests), patents, unpatented inventions, trade secrets, copyrights, contract
rights, goodwill, literary rights, rights to performance, rights under licenses,
choses-in-action, claims, information contained in computer media (such as data
bases, source and object codes, and information therein), things in action,
trademarks and trademarks applied for (together with the goodwill associated
therewith) and derivatives thereof, trade names, including the right to make,
use, and vend goods utilizing any of the foregoing, and permits, licenses,
certifications, authorizations and approvals, and the rights of Borrower
thereunder, issued by any governmental, regulatory, or private authority,
agency, or entity whether now owned or hereafter acquired, together with all
cash and non-cash proceeds and products thereof;
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(i) all of Borrower's now owned or hereafter acquired inventory
of every description which is held by Borrower for sale or lease or is furnished
by Borrower under any contract of service or is held by Borrower as raw
materials, work in process or materials used or consumed in a business, wherever
located, and as the same may now and hereafter from time to time be constituted,
together with all cash and non-cash proceeds and products thereof;
(j) all of Borrower's now owned or hereafter acquired machinery,
equipment, computer equipment, tools, tooling, furniture, fixtures, goods,
supplies, materials, work in process, whether now owned or hereafter acquired,
together with all additions, parts, fittings, accessories, special tools,
attachments, and accessions now and hereafter affixed thereto and/or used in
connection therewith, all replacements thereof and substitutions therefor, and
all cash and non-cash proceeds and products thereof; and
(k) to the extent not listed above as original collateral, the
proceeds (including, without limitation, insurance proceeds) and products of all
of the foregoing.
SECTION 3.2. LIEN DOCUMENTS. At Closing and thereafter as Lender deems
necessary in its sole discretion, Borrower shall execute and deliver to Lender,
or have executed and delivered (all in form and substance satisfactory to Lender
in its sole discretion) any agreements, documents, instruments, and writings
deemed necessary by Lender or as Lender may otherwise request from time to time
in its sole discretion to evidence, perfect, or protect Lender's Lien and
security interest in the Collateral required under this Agreement. Borrower
hereby authorizes Lender to file one or more financing statements and amendments
thereto describing the Collateral and describing any agricultural liens or other
statutory liens held by Lender.
SECTION 3.3. COLLATERAL ADMINISTRATION.
(a) All Collateral (except deposit accounts) shall at all times
be kept by Borrower at its principal office(s) as set forth on Schedule 4.15 and
shall not be moved from such locations without (i) providing prior written
notice to Lender in accordance with Section 6.15, and (ii) obtaining the prior
written consent of Lender, which consent shall not be unreasonably withheld.
(b) Borrower shall keep accurate and complete records of its
Accounts and all payments and collections thereon and shall submit to Lender on
such periodic basis as Lender shall request a sales and collections report for
the preceding period, in form satisfactory to Lender. In addition, if Accounts
in an aggregate face amount in excess of $50,000.00 become ineligible because
they fall within one of the specified categories of ineligibility set forth in
the definition of Qualified Accounts or otherwise, Borrower shall notify Lender
of such occurrence within five (5) Business Days following such occurrence and
the Borrowing Base shall thereupon be adjusted to reflect such occurrence. If
requested by Lender, Borrower shall execute and deliver to Lender formal written
assignments of all of its Accounts weekly or daily, which shall include all
Accounts that have been created since the date of the last assignment, together
with copies of claims, invoices or other information related thereto.
(c) Whether or not an Event of Default has occurred, any of
Lender's officers, employees or agents shall have the right, at any time or
times hereafter, in the name of Lender or any designee of Lender or Borrower, to
verify the validity, amount or any other matter relating to any Accounts by
mail, telephone, telegraph or otherwise. Borrower shall cooperate fully with
Lender in an effort to facilitate and promptly conclude such verification
process.
(d) To expedite collection, Borrower shall endeavor in the first
instance to make collection of its Accounts for Lender. Lender shall have the
right at any time to notify Account Debtors (subject to applicable law regarding
Medicaid/Medicare Account Debtors) that Accounts have been assigned to Lender.
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(e) As between Borrower and Lender, Borrower shall bear the risk
of loss on all Collateral, regardless of whether such Collateral is in the
possession or control of Borrower, Lender, a bailee or any other Person,
provided that Lender agrees to treat any Collateral in its possession in a
commercially reasonable manner.
SECTION 3.4. OTHER ACTIONS. In addition to the foregoing, Borrower:
(a) shall provide prompt written notice to each private
indemnity, managed care or other Insurer who either is currently an Account
Debtor or becomes an Account Debtor at any time following the date of this
Agreement that Lender has been granted a first priority Lien and security
interest in, upon and to all Accounts applicable to such Insurer and directs
each Account Debtor to make payments into the Lockbox, and hereby authorizes
Lender, upon Borrower's failure to send such notices within ten (10) days after
the date of this Agreement (or ten (10) days after the Insurer becomes an
Account Debtor), to send any and all similar notices to such Insurers;
(b) shall do and hereby authorizes Lender to do anything further
that may be lawfully required by Lender to secure Lender and effectuate the
intentions and objects of this Agreement, including but not limited to the
execution and delivery of lockbox agreements, continuation statements,
amendments to financing statements, and any other documents required under this
Agreement;
(c) at Lender's request, shall immediately deliver to Lender all
items for which Lender must receive possession to obtain a perfected security
interest;
(d) shall, on Lender's demand, deliver to Lender all notes,
certificates, and documents of title, chattel paper, warehouse receipts,
instruments, and any other similar instruments constituting Collateral;
(e) shall, where Collateral is in the possession of a third
party, join with Lender in notifying the third party of Lender's security
interests and obtaining an acknowledgement from the third party that it is
holding the Collateral for the benefit of Lender;
(f) shall cooperate with Lender in obtaining control with
respect to Collateral consisting of deposit accounts, investment property,
letter of credit rights, electronic chattel paper and any other portion of the
Collateral for which control is required in order to perfect a security
interest; and
(g) shall not create any chattel paper without placing a legend
on the chattel paper acceptable to Lender indicating that Lender has a security
interest in the chattel paper.
SECTION 3.5. SEARCHES. Before Closing, and thereafter (as and when
determined by Lender in its sole discretion), Lender will perform the searches
described in clauses (a), (b) and (c) below against Borrower (the results of
which are to be consistent with Borrower's representations and warranties under
this Agreement), all at Borrower's expense:
(a) Uniform Commercial Code searches with the Secretary of State
and local filing offices of each jurisdiction where Borrower maintains its
executive offices, a place of business, or assets and the jurisdiction in which
the Borrower is organized;
(b) judgment, federal tax lien and corporate and partnership tax
lien searches, in each jurisdiction searched under clause (a) above; and
(c) searches of applicable corporate, limited liability company,
partnership and related records to confirm the continued existence, organization
and good standing of Borrower and the exact legal name under which Borrower is
organized.
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SECTION 3.6. POWER OF ATTORNEY. Each of the officers of Lender is hereby
irrevocably made, constituted and appointed the true and lawful attorney for
Borrower (without requiring any of them to act as such) with full power of
substitution to do the following: (a) endorse the name of Borrower upon any and
all checks, drafts, money orders, and other instruments for the payment of money
that are payable to Borrower and constitute collections on Borrower's Accounts;
(b) execute in the name of Borrower any financing statements, schedules,
assignments, instruments, documents, and statements that Borrower is obligated
to give Lender under this Agreement; (c) take any action Borrower is required to
take under Section 3.4 above; and (d) do such other and further acts and deeds
in the name of Borrower that Lender may deem necessary or desirable to enforce
any Account or other Collateral or perfect Lender's security interest or Lien in
any Collateral. In addition, if Borrower breaches its obligation to direct
payments of the proceeds of the Collateral to the Lockbox Account, Lender, as
the irrevocably made, constituted and appointed true and lawful attorney for
Borrower pursuant to this paragraph, may, by the signature or other act of any
of Lender's officers (without requiring any of them to do so), direct any
federal, state or private payor or fiscal intermediary to pay proceeds of the
Collateral to Borrower by directing payment to the Lockbox Account.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender, and shall be deemed to
represent and warrant on each day on which any Obligations shall be outstanding
under this Agreement, that:
SECTION 4.1. SUBSIDIARIES. Except as set forth in Schedule 4.1, Borrower
has no subsidiaries.
SECTION 4.2. ORGANIZATION AND GOOD STANDING. Borrower is a corporation,
limited liability company or limited liability partnership, as the case may be,
duly organized, validly existing, and in good standing under the laws of its
state of formation, is in good standing as a foreign corporation, limited
liability company or limited liability partnership, as the case may be, in each
jurisdiction in which the character of the properties owned or leased by it
therein or the nature of its business makes such qualification necessary, has
the corporate, limited liability company or limited liability partnership power
and authority, as the case may be, to own its assets and transact the business
in which it is engaged, and has obtained all certificates, licenses and
qualifications required under all laws, regulations, ordinances, or orders of
public authorities necessary for the ownership and operation of all of its
properties and transaction of all of its business, all of which are in the name
of Borrower. Borrower's state of organization is listed on Schedule 4.2 and its
exact legal name is as set forth in the first paragraph of this Agreement.
SECTION 4.3. AUTHORITY. Borrower has full corporate, limited liability
company or limited liability partnership power and authority, as the case may
be, to enter into, execute, and deliver this Agreement and to perform its
obligations under this Agreement, to borrow the Loan, to execute and deliver the
Note, and to incur and perform the obligations provided for in the Loan
Documents, all of which have been duly authorized by all necessary corporate,
limited liability company or limited liability partnership action, as the case
may be. No consent or approval of shareholders, members or partners of, or
lenders to, Borrower and no consent, approval, filing or registration with any
Governmental Authority is required as a condition to the validity of the Loan
Documents or the performance by Borrower of its obligations under the Loan
Documents.
SECTION 4.4. BINDING AGREEMENT. This Agreement and all other Loan
Documents constitute, and the Note, when issued and delivered pursuant to this
Agreement for value received, will constitute, the valid and legally binding
obligations of Borrower, enforceable against Borrower in accordance with their
respective terms.
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SECTION 4.5. LITIGATION. Except as disclosed in Schedule 4.5, there are
no actions, suits, proceedings or investigations pending or, to Borrower's
knowledge, threatened against Borrower before any court or arbitrator or before
or by any Governmental Authority which, in any one case or in the aggregate, if
determined adversely to the interests of Borrower, could have a material adverse
effect on the business, properties, condition (financial or otherwise) or
operations, current or prospective, of Borrower, or upon its ability to perform
its obligations under the Loan Documents. Borrower is not in default with
respect to any order of any court, arbitrator, or Governmental Authority
applicable to Borrower or its properties.
SECTION 4.6. NO CONFLICTS. The execution and delivery by Borrower of
this Agreement and the other Loan Documents do not, and the performance of its
obligations under the Loan Documents will not, violate, conflict with,
constitute a default under, or result in the creation of a Lien or encumbrance
upon the property of Borrower (other than for the benefit of Lender) under: (a)
any provision of Borrower's articles of incorporation or bylaws, certificate of
formation or operating agreement, or certificate of limited liability
partnership or agreement of limited liability partnership, as the case may be,
(b) any provision of any law, rule, or regulation applicable to Borrower, (c)
any indenture or other agreement or instrument to which Borrower is a party or
by which Borrower or its property is bound, or (d) any judgment, order or decree
of any court, arbitration tribunal, or Governmental Authority having
jurisdiction over Borrower which is applicable to Borrower.
SECTION 4.7. FINANCIAL CONDITION. The financial statements of Borrower
which have been delivered to Lender fairly present the financial condition of
Borrower and the results of its operations and changes in financial condition as
of the dates and for the periods referred to, and have been prepared in
accordance with GAAP. There are no material unrealized or anticipated
liabilities, direct or indirect, fixed or contingent, of Borrower as of the
dates of such financial statements which are not reflected in such financial
statements or in the notes to such financial statements. There has been no
adverse change in the business, properties, condition (financial or otherwise)
or operations (current or prospective) of Borrower since the date of the last
financial statement delivered to Lender. The federal tax identification number
and fiscal year of Borrower is as described on Schedule 4.7.
SECTION 4.8. NO DEFAULT. Borrower is not in default under or with
respect to any obligation in any respect which could be materially adverse to
its business, operations, property or financial condition, or which could
materially adversely affect the ability of Borrower to perform its obligations
under the Loan Documents. No Event of Default or event that, with the giving of
notice or lapse of time, or both, could become an Event of Default, has occurred
and is continuing.
SECTION 4.9. TITLE TO PROPERTIES. Borrower has good, marketable and
indefeasible title to, rights in and the power to transfer its properties and
assets, including the Collateral and the properties and assets reflected in the
financial statements described in Section 4.7, subject to no Lien, mortgage,
pledge, encumbrance or charge of any kind, other than Permitted Liens. Borrower
has not agreed or consented to cause any of its properties or assets whether
owned now or hereafter acquired to be subject in the future (upon the happening
of a contingency or otherwise) to any Lien, mortgage, pledge, encumbrance or
charge of any kind other than Permitted Liens. All of the Collateral, and all
other property and assets of Borrower that are necessary to the conduct of
Borrower's business, is owned by Borrower or the rights to same are held by
Borrower in its name, and none of the Collateral, or any such property or assets
are owned or the rights thereto held in the name of any other entity.
SECTION 4.10. TAXES. Borrower has filed, or has obtained extensions for
the filing of, all federal, state and other tax returns which are required to be
filed, and has paid all taxes shown as due on those returns and all assessments,
fees and other amounts due as of the date of this Agreement. All tax liabilities
of Borrower are adequately provided for on Borrower's books. No tax liability
has been asserted by the Internal Revenue Service or other taxing authority
against Borrower for taxes in excess of those already paid, except for such
liabilities as are being contested by Borrower in good faith by appropriate
proceedings and in respect of which adequate reserves have been made.
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SECTION 4.11. SECURITIES AND BANKING LAWS AND REGULATIONS.
(a) The use of the proceeds of the Loan and Borrower's issuance
of the Note will not directly or indirectly violate or result in a violation of
the Securities Act of 1933 or the Securities Exchange Act of 1934, as amended,
or any regulations issued pursuant thereto, including without limitation
Regulations U, T or X of the Board of Governors of the Federal Reserve System.
Borrower is not engaged in the business of extending credit for the purpose of
the purchasing or carrying "margin stock" within the meaning of those
regulations. No part of the proceeds of the Loan under this Agreement will be
used to purchase or carry any margin stock or to extend credit to others for
such purpose.
(b) Borrower is not an investment company within the meaning of
the Investment Company Act of 1940, as amended, nor is it, directly or
indirectly, controlled by or acting on behalf of any Person which is an
investment company within the meaning of that Act.
SECTION 4.12. ERISA. No employee benefit plan (a "Plan") subject to the
Employee Retirement Income Security Act of 1974 ("ERISA") and regulations issued
pursuant to ERISA that is maintained by Borrower or under which Borrower could
have any material liability under ERISA (i) has failed to meet minimum funding
standards established in Section 302 of ERISA, (ii) has failed to substantially
comply with all applicable requirements of ERISA and of the Internal Revenue
Code, including all applicable rulings and regulations thereunder, or (iii) has
engaged in or been involved in a prohibited transaction (as defined in ERISA)
under ERISA or under the Internal Revenue Code. Neither Borrower nor any member
of a Controlled Group that includes Borrower has assumed, or received notice of
a claim asserted against Borrower or another member of the Controlled Group for,
withdrawal liability (as defined in the Multi-Employer Pension Plan Amendments
Act of 1980, as amended) with respect to any multi-employer pension plan.
Borrower has timely made when due all contributions with respect to any
multi-employer pension plan in which it participates and no event has occurred
triggering a material claim against Borrower for withdrawal liability with
respect to any multi-employer pension plan in which Borrower participates.
SECTION 4.13. COMPLIANCE WITH LAWS. Except as described in Schedule
4.13, Borrower is not in violation of any statute, rule or regulation of any
Governmental Authority (including, without limitation, any statute, rule or
regulation relating to employment practices or to environmental, occupational
and health standards and controls). Borrower has obtained all licenses, permits,
franchises, and other governmental authorizations necessary for the ownership of
its properties and the conduct of its business. Borrower is current with all
reports and documents required to be filed with any state or federal securities
commission or similar Governmental Authority and is in full compliance with all
applicable rules and regulations of such commissions.
SECTION 4.14. ENVIRONMENTAL MATTERS. Other than in the ordinary course
of business and in compliance with all applicable laws, rules and regulations
governing same, no use, exposure, release, generation, manufacture, storage,
treatment, transportation or disposal of Hazardous Material has occurred or is
occurring on or from any real property on which the Collateral is located or
which is owned, leased or otherwise occupied by Borrower (the "Premises"), or
off the Premises as a result of any action of Borrower, except as described in
Schedule 4.14. All Hazardous Material used, treated, stored, transported to or
from, generated or handled on the Premises, or off the Premises by Borrower, has
been disposed of on or off the Premises by or on behalf of Borrower in a lawful
manner. There are no underground storage tanks present on or under the Premises
owned or, to Borrower's knowledge after due inquiry, leased by Borrower. No
other environmental, public health or safety hazards exist with respect to the
Premises.
SECTION 4.15. PLACES OF BUSINESS. As of the Closing Date, the only
places of business of Borrower, and the places where it keeps and intends to
keep the Collateral and records concerning the Collateral, are at the addresses
set forth in Schedule 4.15. Schedule 4.15 also lists the owner of record of each
such property. Borrower's Chief Executive Office is located in the state and at
the address shown in Schedule 4.15.
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SECTION 4.16. INTELLECTUAL PROPERTY. Borrower exclusively owns or
possesses all the patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, franchises, licenses, and
rights with respect to the foregoing necessary for the current and planned
future conduct of its business, without any conflict with the rights of others.
A list of all such intellectual property (indicating the nature of Borrower's
interest), as well as all outstanding franchises and licenses given by or held
by Borrower, is attached as Schedule 4.16. Borrower is not in default of any
obligation or undertaking with respect to such intellectual property or rights.
Except as otherwise disclosed on Schedule 4.16, Borrower is not infringing on
any patents, patent applications, trademarks, trademark applications, service
marks, trade names, copyrights, franchises, licenses, any rights with respect to
the foregoing, or any other intellectual property rights of others and the
Borrower is not aware of any infringement by others of any such rights owned by
Borrower.
SECTION 4.17. CAPITALIZATION. The authorized equity securities (whether
capital stock, partnership or membership interests or otherwise) of each entity
comprising Borrower are as set forth in Schedule 4.17. All issued and
outstanding equity securities of the Borrower are duly authorized and validly
issued, fully paid, nonassessable, free and clear of all Liens or pledges other
than those in favor of Lender or for the benefit of Lender, and such equity
securities were issued in compliance with all applicable state, federal and
foreign laws concerning the issuance of securities. The identity of all holders
of Borrower's outstanding equity securities and the percentage of such holder's
fully diluted ownership of such equity securities are set forth on Schedule
4.17. No shares of the equity securities of Borrower, other than those described
above, are issued and outstanding. Except as provided in Schedule 4.17, there
are no preemptive or other outstanding rights, options, warrants, conversion
rights or similar agreements or understandings for the purchase or acquisition
from Borrower of any equity securities of Borrower.
SECTION 4.18. MATERIAL FACTS. Neither this Agreement nor any other Loan
Document nor any other agreement, document, certificate, or statement furnished
to Lender by or on behalf of Borrower in connection with the transactions
contemplated by this Agreement contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements contained in
this Agreement or other Loan Document not misleading. There is no fact known to
Borrower that adversely affects or in the future may materially adversely affect
the business, operations, affairs or financial condition of Borrower, or any of
its properties or assets.
SECTION 4.19. INVESTMENTS, GUARANTEES, AND CERTAIN CONTRACTS. Borrower
does not own or hold any equity or long-term debt investments in, have any
outstanding advances to, have any outstanding guarantees for the obligations of,
or have any outstanding borrowings from, any Person, except as described on
Schedule 4.19. Borrower is not a party to any contract or agreement, or subject
to any corporate restriction, which adversely affects its business.
SECTION 4.20. BUSINESS INTERRUPTIONS. Within five years before the date
of this Agreement, neither the business, property or assets, or operations of
Borrower has been adversely affected in any way by any casualty, strike,
lockout, combination of workers, or order of the United States of America or
other Governmental Authority, directed against Borrower. There are no pending
or, to Borrower's knowledge, threatened labor disputes, strikes, lockouts, or
similar occurrences or grievances against Borrower or its business.
SECTION 4.21. NAMES. Within five years before the date of this
Agreement, Borrower has not conducted business under or used any other name
(whether corporate, partnership or assumed) other than as shown on Schedule
4.21. Borrower is the sole owner of all names listed on that Schedule and any
and all business done and invoices issued in such names are Borrower's sales,
business, and invoices. Each trade name of Borrower represents a division or
trading style of Borrower and not a separate Person or independent Affiliate.
SECTION 4.22 JOINT VENTURES. Borrower is not engaged in any joint
venture or partnership with any other Person, except as set forth on Schedule
4.22.
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SECTION 4.23 ACCOUNTS. Lender may rely, in determining which Accounts
are Qualified Accounts, on all statements and representations made by Borrower
with respect to any Account or Accounts. Unless otherwise indicated in writing
to Lender, with respect to each Qualified Account, Borrower represents that:
(a) the Account is genuine and in all respects what it purports
to be, and is not evidenced by a judgment;
(b) the Account arises out of a completed, bona fide sale and
delivery of goods or rendition of services by Borrower in the ordinary course of
its business and in accordance with the terms and conditions of all purchase
orders, contracts, certification, participation, certificate of need, or other
documents relating thereto and forming a part of the contract between Borrower
and the Account Debtor;
(c) the Account is for a liquidated amount maturing as stated in
a duplicate claim or invoice covering such sale of goods or rendition of
services, a copy of which has been furnished or is available to Lender;
(d) the Account, and Lender's security interest in such Account,
is not, and will not (by voluntary act or omission by Borrower), be in the
future, subject to any offset, Lien, deduction, defense, dispute, counterclaim
or any other adverse condition, and each such Account is absolutely owing to
Borrower and is not contingent in any respect or for any reason;
(e) there are no facts, events or occurrences which in any way
impair the validity or enforceability of any Accounts or tend to reduce the
amount payable thereunder from the face amount of the claim or invoice and
statements delivered to Lender with respect thereto;
(f) to the best of Borrower's knowledge, (i) the Account Debtor
under the Account had the capacity to contract at the time any contract or other
document giving rise to the Account was executed and (ii) such Account Debtor is
solvent;
(g) to the best of Borrower's knowledge, there are no
proceedings or actions which are threatened or pending against any Account
Debtor under the Account which might result in any material adverse change in
such Account Debtor's financial condition or the collectibility of such Account;
(h) the Account has been billed and forwarded to the Account
Debtor for payment in accordance with applicable laws and compliance and
conformance with any and requisite procedures, requirements and regulations
governing payment by such Account Debtor with respect to such Account, and such
Account if due from a Medicaid/Medicare Account Debtor is properly payable
directly to Borrower; and
(i) except with respect to obtaining Medicaid and Medicare
provider numbers, which Borrower shall in any event obtain within one hundred
twenty (120) days from the date of the initial Closing hereunder, Borrower has
obtained and currently has all certificates of need, Medicaid and Medicare
provider numbers, licenses, permits and authorizations that are necessary in the
generation of such Accounts.
SECTION 4.24. SOLVENCY. Both before and after giving effect to the
transactions contemplated by the terms and provisions of this Agreement,
Borrower (taken as a whole) (a) owns property whose fair saleable value is
greater than the amount required to pay all of Borrower's Indebtedness
(including contingent debts), (b) was and is able to pay all of its Indebtedness
as such Indebtedness matures, and (c) had and has capital sufficient to carry on
its business and transactions and all business and transactions in which it
about to engage. For purposes of this Agreement, the term "Indebtedness" means,
without duplication (x) all items which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Borrower as of the date on which Indebtedness is to be
determined, (y) all obligations of any other person or entity which such
Borrower has guaranteed, and (z) the Obligations.
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SECTION 4.25. RECOUPMENTS. On each Borrowing Base certificate given to
Lender in connection with a request for a Revolving Credit Loan, Borrower has
disclosed to Lender the amount of any Medicare or Medicaid recoupments or
recoupments of any third-party payor being sought, requested or claimed, or, to
Borrower's knowledge, threatened against the Borrower, or any of its Affiliates.
SECTION 4.26. REPORTS. Borrower has timely filed or caused to be timely
filed, all cost reports and other reports of every kind whatsoever required by
law or by written or oral contracts or otherwise to have been filed or made by
Borrower. There are no claims, actions or appeals pending (and Borrower has not
filed any claims or reports which should result in any such claims, actions or
appeals) before any commission, board or agency including without limitation any
intermediary or carrier, the Provider Reimbursement Review Board or the
Administrator of the Health Care Financing Administration, with respect to any
state or federal Medicare or Medicaid cost reports or claims filed by Borrower,
or any disallowance by any commission, board or agency in connection with any
audit of such cost reports. No validation review or program integrity review
related to Borrower, or the consummation of the transactions contemplated
herein, or related to the Collateral, have been conducted by any commission,
board or agency in connection with the Medicare or Medicaid programs, and to the
knowledge of Borrower, no such reviews are scheduled, pending or threatened
against or affecting any of the providers, or the Collateral, or the
consummation of the transactions contemplated hereby.
SECTION 4.27. COMPLIANCE WITH HEALTH CARE LAWS. Without limiting the
generality of Section 4.13 or any other representation or warranty made herein,
Borrower is in compliance with all applicable statutes, laws, ordinances, rules
and regulations of any governmental authority with respect to regulatory matters
primarily relating to patient healthcare (including without limitation Section
1128B(b) of the Social Security Act, as amended, 42 U.S.C. Section 1320a-7(b)
(Criminal Penalties Involving Medicare or State Health Care Programs), commonly
referred to as the "Federal Anti-Kickback Statute," and the Social Security Act,
as amended, Section 1877, 42 U.S.C Section 1395nn (Prohibition Against Certain
Referrals), commonly referred to as "▇▇▇▇▇ Statute" (collectively, "Healthcare
Laws")). Borrower has maintained in all material respects all records required
to be maintained by the Joint Commission on Accreditation of Healthcare
Organizations, the Food and Drug Administration, Drug Enforcement Agency and
State Boards of Pharmacy and the federal and state Medicare and Medicaid
programs as required by the Healthcare Laws and, to the knowledge of Borrower,
there are no presently existing circumstances which would result or likely would
result in material violations of the Healthcare Laws. Borrower and its
Affiliates and the owners of the facilities and other businesses managed by the
Borrower or its Affiliates have such permits, licenses, franchises, certificates
and other approvals or authorizations of governmental or regulatory authorities
as are necessary under applicable law to own their respective properties and to
conduct their respective business (including without limitation such permits as
are required under such federal, state and other health care laws, and under
such HMO or similar licensure laws and such insurance laws and regulations, as
are applicable thereto), and with respect to those facilities and other
businesses that participate in Medicare and/or Medicaid, to receive
reimbursement under Medicare and Medicaid. To Borrower's knowledge, there
currently exist no restrictions, deficiencies, required plans of correction
actions or other such remedial measures with respect to federal and state
Medicare and Medicaid certifications or licensure.
SECTION 4.28. INTENTIONALLY LEFT BLANK.
SECTION 4.29. PARTICIPATION AGREEMENTS. Schedule 4.29 hereto sets forth
an accurate, complete and current list of all participation agreements of
Borrower with health maintenance organizations, insurance programs, third party
payors and preferred provider organizations.
SECTION 4.30. HIPAA COMPLIANCE. To the extent that and for so long as
Borrower is a "covered entity" within the meaning of HIPAA, Borrower (i) has
undertaken or will promptly undertake all necessary surveys, audits,
inventories, reviews, analyses and/or assessments (including any necessary risk
assessments) of all areas of its business and operations required by HIPAA
and/or that could be adversely affected by the failure of
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Borrower to be HIPAA Compliant (as defined below); (ii) has developed or will
promptly develop a detailed plan and time line for becoming HIPAA Compliant (a
"HIPAA Compliance Plan"); and (iii) has implemented or will implement those
provisions of such HIPAA Compliance Plan in all material respects necessary to
ensure that Borrower is or becomes HIPAA Compliant. For purposes hereof, "HIPAA
Compliant" shall mean that Borrower (x) is or will be in compliance with each of
the applicable requirements of the so-called "Administrative Simplification"
provisions of HIPAA on and as of each date that any part thereof, or any final
rule or regulation thereunder, becomes effective in accordance with its or their
terms, as the case may be (each such date, a "HIPAA Compliance Date") and (y) is
not and could not reasonably be expected to become, as of any date following any
such HIPAA Compliance Date, the subject of any civil or criminal penalty,
process, claim, action or proceeding, or any administrative or other regulatory
review, survey, process or proceeding (other than routine surveys or reviews
conducted by any government health plan or other accreditation entity) that
could result in any of the foregoing or that could reasonably be expected to
adversely affect Borrower's business, operations, assets, properties or
condition (financial or otherwise), in connection with any actual or potential
violation by Borrower of the then effective provisions of HIPAA.
ARTICLE V
CLOSING AND CONDITIONS OF LENDING
SECTION 5.1. CONDITIONS PRECEDENT TO AGREEMENT. The obligation of Lender
to enter into and perform this Agreement and to make Revolving Credit Loans is
subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this
Agreement, the Certificate of Validity, any Guaranty and all other Loan
Documents required to be executed and delivered at or before Closing (other than
the Note, as to which Lender shall receive only one (1) original), executed by
Borrower and any other required Persons, as applicable;
(b) Lender shall have received all searches required by Section
3.5;
(c) Borrower and any Guarantor shall have complied and shall
then be in compliance with all the terms, covenants and conditions of the Loan
Documents;
(d) there shall have occurred and be continuing no Event of
Default and no event that, with the giving of notice or the lapse of time, or
both, could constitute such an Event of Default;
(e) the representations and warranties contained in Article IV
shall be true and correct in all material respects;
(f) Lender shall have received two (2) duly executed copies of a
certificate of the Secretary of Borrower substantially in the form previously
provided to Borrower, together with all attachments thereto which attachments
shall include, at a minimum, (i) copies, certified as true, correct and complete
by the secretary of state of the state of incorporation of Borrower, of the
certificate of incorporation of Borrower, together with any and all amendments
thereto, (ii) copies, certified by the Secretary of Borrower of the Bylaws of
Borrower, together with any and all amendments thereto, (iii) the names and
signatures of the officers of the Borrower authorized to execute documents on
its behalf in connection with this Agreement and the Loan, including but not
limited to any Borrowing Base certificates submitted to Lender by Borrower, and
(iv) copies of all board of directors resolutions of Borrower and any other
action taken by or on behalf of Borrower to authorize the execution, delivery
and performance of the Loan Documents and the borrowing of the Loan under the
Loan Documents;
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(g) Lender shall have received certificates of good standing for
Borrower by the state of incorporation of Borrower and by each state in which
Borrower is doing and intends as of the date hereof to do business for which
qualification is required;
(h) Lender shall have received a written opinion of counsel for
Borrower and any Guarantor, dated the date of this Agreement, substantially in
the form of Exhibit C;
(i) Lender shall have received such financial statements,
reports, certifications, and other operational information required to be
delivered under this Agreement, including without limitation an initial
borrowing base certificate calculating the Borrowing Base;
(j) Lender shall have received the Commitment Fee;
(k) the Lockbox, Lockbox Account and the Concentration Account
shall have been established and all of the Lockbox Agreements shall have been
executed by each of Borrower and the Lockbox Bank and delivered to Lender;
(l) the transactions described in that certain Asset Purchase
Agreement dated April 13, 2001 by and among IVonyx Group Services, Inc.
("IVonyx"), IVonyx, Inc. ("IVonyx Sub" and, together with IVonyx, the "IVonyx
Parties"), ▇▇▇▇▇▇.▇▇▇, Inc. ("Parent") and Infusion Acquisition Sub, Inc.
("Acquisition Sub"), as amended by that certain Amendment No. 1 to Asset
Purchase Agreement dated as of July 30, 2001 and that certain Amendment No. 2 to
Asset Purchase Agreement dated as of August 8, 2001 (as amended, the "Asset
Purchase Agreement") shall have been consummated;
(m) Borrower shall have provided Lender with evidence
establishing to Lender's sole satisfaction that the Assets (as defined in the
Asset Purchase Agreement) have been sold, transferred or assigned to Borrower;
(n) Borrower shall have provided Lender with evidence
establishing to Lender's sole satisfaction that Borrower has, following the
consummation of the Asset Purchase Agreement, received a minimum of One Million
and No/100 Dollars ($1,000,000) in capital contributions from ▇▇▇▇▇▇.▇▇▇, Inc.;
(o) Lender shall have received a mutually acceptable
Intercreditor Agreement duly executed by each of Borrower, the IVonyx Parties
and DVI Business Credit Corporation, a Delaware corporation (the "Intercreditor
Agreement"); and
(p) Lender shall have received a certificate of Borrower's chief
financial officer, dated the Closing Date, certifying that all of the conditions
specified in this Section have been fulfilled.
SECTION 5.2. CONDITIONS PRECEDENT TO ADVANCES. Notwithstanding any other
provision of this Agreement, no Loan proceeds, Revolving Credit Loans, advances
or other extensions of credit under the Loan shall be disbursed under this
Agreement unless the following conditions have been satisfied or waived
immediately before such disbursement:
(a) the representations and warranties on the part of Borrower
contained in Article IV of this Agreement shall be true and correct in all
material respects at and as of the date of disbursement or advance, as though
made on and as of such date (except to the extent that such representations and
warranties expressly relate solely to an earlier date and except that the
references in Section 4.7 to financial statements shall be deemed to be a
reference to the then most recent annual and interim financial statements of
Borrower furnished to Lender pursuant to Section 6.1);
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(b) no Event of Default or event that, with the giving of notice
or the lapse of time, or both, could become an Event of Default shall have
occurred and be continuing or would result from the making of the disbursement
or advance; and
(c) no adverse change in the condition (financial or otherwise),
properties, business, or operations of Borrower shall have occurred and be
continuing with respect to Borrower or any Guarantor since the date of this
Agreement.
In addition to and not in limitation of the foregoing, and
notwithstanding anything in this Agreement to the contrary, as of the date that
is one hundred twenty (120) days after the initial Closing Date (as defined
below), Lender shall not be obligated to continue to make any Loans, Revolving
Credit Loans, advances or other extensions of credit under the Loan available to
Borrower with respect to any Accounts in the Borrowing Base that constitute
Unbilled Accounts unless and until Borrower shall have received the applicable
Medicare and/or Medicaid provider numbers and provider account agreements, and
provided Lender with copies of same.
SECTION 5.3. CLOSING. Subject to the conditions of this Article V, the
Loan shall be made available on the date as is mutually agreed by the parties
(the "Closing Date") at such time as may be mutually agreeable to the parties
upon the execution of this Agreement (the "Closing") at such place as may be
requested by Lender.
SECTION 5.4. WAIVER OF RIGHTS. By completing the Closing under this
Agreement, or by making advances under the Loan, Lender does not waive a breach
of any representation or warranty of Borrower under this Agreement or under any
other Loan Document, and all of Lender's claims and rights resulting from any
breach or misrepresentation by Borrower are specifically reserved by Lender.
ARTICLE VI
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that for so long as Borrower may borrow
under this Agreement and until payment in full of the Note and performance of
all other obligations of Borrower under the Loan Documents:
SECTION 6.1. FINANCIAL STATEMENTS AND COLLATERAL REPORTS. Borrower will
furnish to Lender (a) a sales and collections report and accounts receivable
aging schedule on a form acceptable to Lender within fifteen (15) days after the
end of each calendar month, which shall include, but not be limited to, a report
of sales, credits issued, and collections received; (b) payables aging schedules
within fifteen (15) days after the end of each calendar month; (c) internally
prepared monthly financial statements for Borrower, certified by the chief
financial officer of Borrower, within forty-five (45) days of the end of each
calendar month, accompanied by management analysis and actual vs. budget
variance reports; (d) to the extent prepared by Borrower, annual projections,
profit and loss statements, balance sheets, and cash flow reports (prepared on a
monthly basis) for the succeeding fiscal year within thirty (30) days before the
end of each of Borrower's fiscal years; (e) internally prepared annual financial
statements for Borrower within sixty (60) days after the end of each of
Borrower's fiscal years; (f) annual audited financial statements for Borrower
prepared by a firm of independent public accountants satisfactory to Lender,
within ninety (90) days after the end of each of Borrower's fiscal years; (g)
promptly upon receipt thereof, copies of any reports submitted to Borrower by
the independent accountants in connection with any interim audit of the books of
Borrower and copies of each management control letter provided to Borrower by
independent accountants; (h) as soon as available, copies of all financial
statements and notices provided by Borrower to all of its stockholders; (i) on
the last business day of every month, evidence satisfactory to Lender that all
federal and state taxes, including, without limitation payroll taxes, that are
due have been paid in full; and (j) such additional information, reports or
statements as Lender may from time to time request. Annual financial statements
shall set forth in comparative form
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figures for the corresponding periods in the prior fiscal year. All financial
statements shall include a balance sheet and statement of earnings and shall be
prepared in accordance with GAAP.
SECTION 6.2. PAYMENTS UNDER THIS AGREEMENT. Borrower will make all
payments of principal, interest, fees, and all other payments required under
this Agreement and under the Loan, and under any other agreements with Lender to
which Borrower is a party, as and when due.
SECTION 6.3. EXISTENCE, GOOD STANDING, AND COMPLIANCE WITH LAWS.
Borrower will do or cause to be done all things necessary (a) to obtain and keep
in full force and effect all corporate, limited liability company or limited
liability partnership existence, rights, licenses, permits, certificates of
needs, regulatory approvals, privileges, and franchises (collectively,
"Permits") of Borrower necessary to the ownership of its property or the conduct
of its business, and comply with all applicable current and future laws,
ordinances, rules, regulations, orders and decrees of any Governmental Authority
having or claiming jurisdiction over Borrower; (b) to maintain and protect the
properties used or useful in the conduct of the operations of Borrower, in a
prudent manner, including without limitation the maintenance at all times of
such insurance upon its insurable property and operations as required by law or
by Section 6.7; and (c) to maintain all Permits free from restrictions or known
conflicts which could materially impair their use or operation or cause the
Permits to be provisional, probationary or restricted in any way.
SECTION 6.4. LEGALITY. The making of the Loan and each disbursement or
advance under the Loan shall not be subject to any penalty or special tax, shall
not be prohibited by any governmental order or regulation applicable to
Borrower, and shall not violate any rule or regulation of any Governmental
Authority, and necessary consents, approvals and authorizations of any
Governmental Authority to or of any such disbursement or advance shall have been
obtained.
SECTION 6.5. LENDER'S SATISFACTION. All instruments and legal documents
and proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to Lender and its counsel,
and Lender shall have received all documents, including records of corporate
proceedings and opinions of counsel, which Lender may have requested in
connection therewith.
SECTION 6.6. TAXES AND CHARGES. Borrower will timely file all tax
reports and pay and discharge all taxes, assessments and governmental charges or
levies imposed upon Borrower, or its income or profits or upon its properties or
any part thereof, before the same shall be in default and before the date on
which penalties attach thereto, as well as all lawful claims for labor,
material, supplies or otherwise which, if unpaid, might become a Lien or charge
upon the properties or any part thereof of Borrower; provided, however, that
Borrower shall not be required to pay and discharge or cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith and by appropriate
proceedings by Borrower, and Borrower shall have set aside on their books
adequate reserve therefor; and provided further, that such deferment of payment
is permissible only so long as Borrower's title to, and its right to use, the
Collateral is not adversely affected thereby and Lender's Lien and priority on
the Collateral are not adversely affected, altered or impaired thereby.
SECTION 6.7. INSURANCE. Borrower will carry adequate public liability
and professional liability insurance with responsible companies reasonably
satisfactory to Lender in such amounts and against such risks as is customarily
maintained by similar businesses and by owners of similar property in the same
general area.
SECTION 6.8. INFORMATION; VISITS AND INSPECTIONS. Borrower shall furnish
to Lender such information as Lender may, from time to time, request with
respect to the business or financial affairs of Borrower. Borrower shall also
permit any officer, employee, agent or representative of Lender to visit and
inspect any of the properties of Borrower, to inspect, audit and make copies of
or prepare extracts from Borrower's minute books, books of account and other
records, including management letters prepared by Borrower's auditors, of
Borrower, and make copies thereof or extracts therefrom, and to discuss the
business affairs, finances and accounts of Borrower with, and be
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advised as to the same by, the officers, employees and independent accountants
Borrower, all at such times and as often as Lender may reasonably require.
SECTION 6.9. MAINTENANCE OF PROPERTY. Borrower will maintain, keep and
preserve all of its properties in good repair, working order and condition and
from time to time make all necessary repairs, renewals, replacements,
betterments and improvements thereto, so that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 6.10. NOTIFICATION OF EVENTS OF DEFAULT AND ADVERSE
DEVELOPMENTS. Borrower promptly will notify Lender upon the occurrence of: (a)
any Event of Default; (b) any event that, with the giving of notice or lapse of
time, or both, could constitute an Event of Default; (c) any event, development
or circumstance whereby the financial statements previously furnished to Lender
fail in any material respect to present fairly, in accordance with GAAP, the
financial condition and operational results of Borrower; (d) any judicial,
administrative or arbitration proceeding pending against Borrower, and any
judicial or administrative proceeding known by Borrower to be threatened against
it which, if adversely decided, could adversely affect its condition (financial
or otherwise) or operations (current or prospective) or which may expose
Borrower to uninsured liability of $25,000.00 or more (not including any
applicable deductibles); (e) any default claimed by any other creditor for
Borrowed Money of Borrower other than Lender; and (f) any other development in
the business or affairs of Borrower which may be materially adverse; in each
case describing the nature of the event or development. In the case of
notification under clauses (a) and (b)), Borrower should set forth the action
Borrower proposes to take with respect to such event.
SECTION 6.11. EMPLOYEE BENEFIT PLANS. Borrower will (a) comply with the
funding requirements of ERISA with respect to the Plans for its employees, or
will promptly satisfy any accumulated funding deficiency that arises under
Section 302 of ERISA; (b) furnish Lender, promptly after filing the same, with
copies of all reports or other statements filed with the United States
Department of Labor, the Pension Benefit Guaranty Corporation, or the Internal
Revenue Service with respect to all Plans, or which Borrower, or any member of a
Controlled Group, may receive from such Governmental Authority with respect to
any such Plans, and (c) promptly advise Lender of the occurrence of any
Reportable Event or Prohibited Transaction with respect to any such Plan and the
action which Borrower proposes to take with respect thereto. Borrower will make
all contributions when due with respect to any multi-employer pension plan in
which it participates and will promptly advise Lender: (x) upon its receipt of
notice of the assertion against Borrower of a claim for withdrawal liability;
(y) upon the occurrence of any event that could trigger the assertion of a claim
for withdrawal liability against Borrower; and (z) upon the occurrence of any
event that would place Borrower in a Controlled Group as a result of which any
member (including Borrower) thereof may be subject to a claim for withdrawal
liability, whether liquidated or contingent.
SECTION 6.12. FINANCING STATEMENTS. Borrower shall provide to Lender
evidence satisfactory to Lender as to the due recording of termination
statements, releases of collateral, and Forms UCC-3, and shall cause to be
recorded financing statements on Form UCC-1, in all places necessary to release
all existing security interests and other Liens in the Collateral (other than as
permitted by this Agreement) and to perfect and protect Lender's first priority
Lien and security interest in the Collateral, as Lender may request.
SECTION 6.13. FINANCIAL RECORDS. Borrower shall keep current and
accurate books of records and accounts in which full and correct entries will be
made of all of its business transactions, and will reflect in its financial
statements adequate accruals and appropriations to reserves, all in accordance
with GAAP.
SECTION 6.14. COLLECTION OF ACCOUNTS. Borrower shall continue to collect
its Accounts in the ordinary course of business.
SECTION 6.15. PLACES OF BUSINESS. Borrower shall give thirty (30) days'
prior written notice to Lender of any change in the location of any of its
places of business, of the places where its records concerning its Accounts
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are kept, of the places where the Collateral is kept, or of the establishment of
any new, or the discontinuance of any existing, places of business.
SECTION 6.16. BUSINESS CONDUCTED. Borrower shall continue in the
business currently conducted by it using its best efforts to maintain its
customers and goodwill. Borrower shall not engage, directly or indirectly, in
any line of business substantially different from the business conducted by it
immediately before the Closing Date, or engage in business or lines of business
which are not reasonably related thereto.
SECTION 6.17. LITIGATION AND OTHER PROCEEDINGS. Borrower shall give
prompt notice to Lender of any litigation, arbitration, or other proceeding
before any Governmental Authority against or affecting Borrower if the amount
claimed is more than $25,000.00.
SECTION 6.18. BANK ACCOUNTS. Borrower shall assign to Lender all of its
depository and disbursement accounts into which collections of Accounts are
deposited.
SECTION 6.19. SUBMISSION OF COLLATERAL DOCUMENTS. Borrower will, on
demand of Lender, make available to Lender copies of shipping and delivery
receipts evidencing the shipment of goods that gave rise to an Account, medical
records, insurance verification forms, assignment of benefits, in-take forms or
other proof of the satisfactory performance of services that gave rise to an
Account, a copy of the claim or invoice for each Account and copies of any
written contract or order from which the Account arose. Borrower shall promptly
notify Lender if an Account becomes evidenced or secured by an instrument or
chattel paper and upon request of Lender, will promptly deliver any such
instrument or chattel paper to Lender.
SECTION 6.20. LICENSURE; MEDICAID/MEDICARE COST REPORTS. Borrower will
maintain all certificates of need, provider numbers and licenses necessary to
conduct its business as currently conducted, and take any steps required to
comply with any such new or additional requirements that may be imposed on
providers of medical products and services. If required, all Medicaid/Medicare
cost reports will be properly filed.
SECTION 6.21. OFFICER'S CERTIFICATES. Together with the monthly
financial statements delivered pursuant to clause (c) of Section 6.1, and
together with the audited annual financial statements delivered pursuant to
clause (f) of that Section, Borrower shall deliver to Lender a certificate of
its chief financial officer, in form and substance satisfactory to Lender:
(a) setting forth the information (including detailed
calculations) required to establish whether Borrower is in compliance with the
requirements of Articles VI and VII as of the end of the period covered by the
financial statements then being furnished; and
(b) stating that such officer has reviewed the relevant terms of
this Agreement, and has made (or caused to be made under such officer's
supervision) a review of the transactions and conditions of Borrower from the
beginning of the accounting period covered by the income statements being
delivered to the date of the certificate, and that such review has not disclosed
the existence during such period of any fact, event or circumstance that
constitutes an Event of Default or that is then, or with the passage of time or
giving of notice or both, could become an Event of Default, and if any such
condition or event existed during such period or now exists, specifying the
nature and period of existence thereof and what action Borrower has taken or
proposes to take with respect thereto.
SECTION 6.22. NET WORTH. Borrower will not at any time allow its
tangible net worth, as computed in accordance with GAAP, to fall below the
Minimum Net Worth.
SECTION 6.23. INTENTIONALLY LEFT BLANK.
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SECTION 6.24. POST-CLOSING OBLIGATIONS. Borrower shall cause to be
performed and completed, to Lender's satisfaction, all of the obligations set
forth on Schedule 6.24 hereto within the time periods set forth on Schedule
6.24.
SECTION 6.25. INTENTIONALLY LEFT BLANK.
SECTION 6.26. CAPITAL ADEQUACY AND OTHER ADJUSTMENTS. In the event that
Lender shall have determined that the adoption after the date hereof of any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy, reserve requirements or similar requirements
or compliance by Lender or any corporation controlling Lender with any request
or directive regarding capital adequacy, reserve requirements or similar
requirements (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) from any central bank or governmental
agency or body having jurisdiction does or shall have the effect of increasing
the amount of capital, reserves or other funds required to be maintained by
Lender or any corporation controlling Lender and thereby reducing the rate of
return on Lender's or such corporation's capital as a consequence of its
obligations hereunder, then Borrower shall from time to time within fifteen (15)
days after notice and demand from Lender pay to Lender additional amounts
sufficient to compensate Lender for such reduction. A certificate as to the
amount of such cost and showing the basis of the computation of such cost
submitted by such Lender to Borrower shall, absent manifest error, be final,
conclusive and binding for all purposes.
SECTION 6.27. TAXES.
(a) No Deductions. Any and all payments or reimbursements made
under the Loan Documents shall be made free and clear of and without deduction
for any and all taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto of any nature whatsoever imposed by any
taxing authority, excluding such taxes to the extent imposed on Lender's net
income by the jurisdiction in which Lender is organized. If Borrower shall be
required by law to deduct any such amounts from or in respect of any sum payable
hereunder to Lender, then the sum payable hereunder shall be increased as may be
necessary so that, after making all required deductions, Lender receives an
amount equal to the sum it would have received had no such deductions been made.
(b) Changes in Tax Laws. In the event that, subsequent to the
initial advance under the Loan, (1) any changes in any existing law, regulation,
treaty or directive or in the interpretation or application thereof, (2) any new
law, regulation, treaty or directive enacted or any interpretation or
application thereof, or (3) compliance by Lender with any request or directive
(whether or not having the force of law) from any governmental authority, agency
or instrumentality:
(A) does or shall subject Lender to any tax of any kind
whatsoever with respect to this Agreement or the other Loan Documents, or change
the basis of taxation of payments to Lender of principal, fees, interest or any
other amount payable hereunder (except for net income taxes, or franchise taxes
imposed in lieu of net income taxes, imposed generally by federal, state or
local taxing authorities with respect to interest or commitment fees or other
fees payable hereunder or changes in the rate of tax on the overall net income
of Lender); or
(B) does or shall impose on Lender any other condition
or increased cost in connection with the transactions contemplated hereby or
participations herein;
and the result of any of the foregoing is to increase the cost to Lender of
making or continuing the Loan hereunder, as the case may be, or to reduce any
amount receivable hereunder, then, in any such case, Borrower shall promptly pay
to Lender, upon its demand, any additional amounts necessary to compensate
Lender, on an after-tax basis, for such additional cost or reduced amount
receivable, as determined by Lender with respect to this Agreement or the
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other Loan Documents. If Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify Borrower of the event by
reason of which Lender has become so entitled. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by
Lender to Borrower shall, absent manifest error, be final, conclusive and
binding for all purposes.
SECTION 6.28. FURTHER DOCUMENTATION. In the event any further
documentation or information is (a) required by Lender or any prospective
transferee in connection with selling, transferring, delivering, assigning,
securitizing or granting a participation in the Loan (or transferring the
servicing of the Loan), or (b) deemed necessary or appropriate by Lender in the
exercise of its rights under the Loan Documents or to correct patent mistakes in
the Loan Documents, materials relating to mortgagee's land title insurance or
the funding of the Loan, Borrower shall provide, or cause to be provided to
Lender, at Borrower's cost and expense, such documentation or information.
Borrower shall execute and deliver to Lender and/or the prospective transferee
or servicer such documentation, including but not limited to, any amendments,
corrections, deletions or additions to the Loan Documents as is required by
Lender and/or the prospective transferee; provided, however, that Borrower shall
not be required to do anything that has the effect of changing the essential
economic terms of the Loan set forth in the Loan Documents.
SECTION 6.29. COMPLIANCE WITH REQUIREMENTS OF PROSPECTIVE TRANSFEREE.
Borrower shall do anything necessary to comply with the requirements of any
prospective transferee or servicer of the Loan, in order to enable Lender or
such transferee to sell, transfer, deliver, assign, securitize or grant a
participation in the Loan; provided, however, that Borrower shall not be
required to do anything that has the effect of changing the essential economic
terms of this Agreement.
SECTION 6.30. TERMINATION/DEFAULT OF CONTRACTS. Borrower shall notify
Lender of any (a) default or event of default under, (b) termination of, or (c)
failure of any party to renew, any of Borrower's contracts (unless the default
or event of default under, termination of or failure to renew such contract, as
the case may be, could not reasonably be expected to have a material adverse
effect on Borrower, including without limitation, on Borrower's business, the
Collateral or the Loan hereunder) as soon as reasonably possible (other than
with respect to any notice of default, termination or failure to renew that
originates with Borrower, which notice shall be sent concurrently to Lender).
Notwithstanding anything in this Section 6.30 to the contrary, no provision in
this Section 6.30 shall modify, reduce or otherwise affect Lender's rights
hereunder or under any other Loan Document.
ARTICLE VII
NEGATIVE COVENANTS
Borrower covenants and agrees that so long as Borrower may borrow under
this Agreement and until payment in full of the Note and performance of all
other obligations of Borrower under the Loan Documents:
SECTION 7.1. BORROWING. Borrower will not create, incur, assume or
suffer to exist any liability for Borrowed Money except: (a) indebtedness to
Lender; (b) accounts payable to trade creditors and current operating expenses
(other than for borrowed money) which are not aged more than one hundred twenty
(120) days from the billing date or more than thirty (30) days from the due
date, in each case incurred in the ordinary course of business and paid within
such time period, unless the same are being contested in good faith and by
appropriate and lawful proceedings, and Borrower shall have set aside such
reserves, if any, with respect thereto as are required by GAAP and deemed
adequate by Borrower and its independent accountants; (c) borrowings incurred in
the ordinary course of its business and not exceeding $25,000.00 in the
aggregate outstanding at any one time; and (d) indebtedness secured by Permitted
Liens. Borrower will not make prepayments on any existing or future indebtedness
for
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Borrowed Money to any Person (other than Lender, to the extent permitted by this
Agreement or any subsequent agreement between Borrower and Lender).
SECTION 7.2. JOINT VENTURES. Borrower will not invest directly or
indirectly in any joint venture for any purpose without the prior written notice
to, and the prior written consent of, Lender, which consent shall not be
unreasonably withheld.
SECTION 7.3. NO LIENS AND ENCUMBRANCES; NO DISPOSITION OF THE
COLLATERAL. Lender does not authorize, and Borrower agrees not to: (a) create,
incur, assume or suffer to exist any mortgage, pledge, Lien or other encumbrance
of any kind (including the charge upon property purchased under a conditional
sale or other title retention agreement) upon, or any security interest in, any
of its Collateral, whether now owned or hereafter acquired, except for Permitted
Liens; (b) make any sale or leases of any of the Collateral other than any sale
of inventory in the ordinary course of business and, to the extent no Event of
Default has occurred or is continuing hereunder in which case Lender's prior
written approval shall be required, any sale in the ordinary course of business
of equipment, parts or machinery that is obsolete or no longer used or useful in
the conduct of the business of Borrower as determined by Borrower in its
reasonable discretion; or (c) license any of the Collateral.
SECTION 7.4. RESTRICTION ON FUNDAMENTAL CHANGES. Borrower will not: (a)
enter into any transaction of merger or consolidation; (b) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell,
lease, sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, any of its assets, or the capital stock of any
subsidiary of Borrower, whether now owned or hereafter acquired; or (d) acquire
by purchase or otherwise all or any substantial part of the business or assets
of, or stock or other evidence of beneficial ownership of, any Person. Borrower
agrees that compliance with this Section 7.4 is a material inducement to
Lender's advancing credit under this Agreement and Borrower further agrees that
any breach of the terms of this Section 7.4 shall constitute fraud. Borrower
further agrees that in addition to all other remedies available to Lender,
Lender shall be entitled to specific enforcement of the covenants in this
Section 7.4, including injunctive relief.
SECTION 7.5. SALE AND LEASEBACK. Borrower will not, directly or
indirectly, enter into any arrangement whereby Borrower sells or transfers all
or any part of its assets and thereupon and within one year thereafter rents or
leases the assets so sold or transferred without prior written notice to and the
prior written consent of Lender, which consent shall not be unreasonably
withheld.
SECTION 7.6. DISTRIBUTIONS AND MANAGEMENT FEES. Borrower shall not make
any "Distributions" (as defined below) to any of its Affiliates or to any
shareholder, member, partner or other person holding an equity interest in
Borrower or to any other Person related to or affiliated with any of the
foregoing (each, a "Related Party"). "Distributions" shall mean management fees,
salaries or other fees or compensation, lease or rental payments, repayments of
or debt service on loans or other indebtedness, dividends or other distributions
with respect to any of its stock, partnership or membership interests (as the
case may be) now or hereafter outstanding, the purchase, redemption or other
acquisition for value of any of its stock, partnership or membership interests
(as the case may be) now or hereafter outstanding, or the return of any capital
of its stockholders, partners or members. Notwithstanding the foregoing, so long
as no Event of Default has occurred and is continuing, Borrower may pay salaries
to the Related Party(ies) identified in Schedule 7.6 in the amount(s) described
in Schedule 7.6.
SECTION 7.7. LOANS. Borrower will not make loans or advances to any
Person, other than (a) trade credit extended in the ordinary course of its
business, and (b) advances for business travel and similar temporary advances
made in the ordinary course of business to officers, stockholders, directors,
and employees.
SECTION 7.8. CONTINGENT LIABILITIES. Borrower will not assume,
guarantee, endorse, contingently agree to purchase or otherwise become liable
upon the obligation of any Person, except by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business.
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SECTION 7.9. SUBSIDIARIES. Borrower will not form any subsidiary, or
make any investment in or any loan in the nature of an investment to, any other
Person.
SECTION 7.10. COMPLIANCE WITH ERISA. Borrower will not permit with
respect to any Plan covered by Title IV of ERISA any Prohibited Transaction or
any Reportable Event.
SECTION 7.11. CERTIFICATES OF NEED. Borrower will not amend, alter or
suspend or terminate or make provisional in any material way, any certificate of
need or provider number without the prior written consent of Lender, which
consent shall not be unreasonably withheld.
SECTION 7.12. TRANSACTIONS WITH AFFILIATES. Borrower will not enter into
any transaction, including without limitation the purchase, sale, or exchange of
property, or the loaning or giving of funds to any Affiliate or subsidiary,
except in the ordinary course of business and pursuant to the reasonable
requirements of Borrower's business and upon terms substantially the same and no
less favorable to Borrower as it would obtain in a comparable arm's length
transaction with any Person not an Affiliate or subsidiary, and so long as the
transaction is not otherwise prohibited under this Agreement. For purposes of
the foregoing, Lender consents to the transactions described on Schedule 7.12.
SECTION 7.13. USE OF LENDER'S NAME. Borrower will not use Lender's name
(or the name of any of Lender's affiliates) in connection with any of its
business operations. Borrower may disclose to third parties that Borrower has a
borrowing relationship with Lender. Nothing contained in this Agreement is
intended to permit or authorize Borrower to make any contract on behalf of
Lender.
SECTION 7.14. CHANGE IN CAPITAL STRUCTURE. Without Lender's prior
written consent, (a) there shall occur no change in the legal or beneficial
ownership of the capital stock, or in the capital structure, of Borrower or any
Guarantor, from that set forth on Schedule 4.17, (b) there shall occur no
pledge, assignment or hypothecation of or Lien or encumbrance on any of the
legal or beneficial equity interests in the Borrower or any Guarantor, and (c)
Borrower shall not consent to or acknowledge any of the transactions described
in the foregoing subparts (a) and (b) of this sentence.
SECTION 7.15. CONTRACTS AND AGREEMENTS. Borrower will not become or be a
party to any contract or agreement which would breach this Agreement, or breach
any other instrument, agreement, or document to which Borrower is a party or by
which it is or may be bound.
SECTION 7.16. MARGIN STOCK. Borrower will not carry or purchase any
"margin security" within the meaning of Regulations U, T or X of the Board of
Governors of the Federal Reserve System.
SECTION 7.17. TRUTH OF STATEMENTS AND CERTIFICATES. Borrower will not
furnish to Lender any certificate or other document that contains any untrue
statement of a material fact or that omits to state a material fact necessary to
make it not misleading in light of the circumstances under which it was
furnished.
SECTION 7.18. CONFIDENTIALITY. Borrower will not disclose the contents
of this Loan Agreement and the other Loan Documents to any third party
(including, without limitation, any financial institution or intermediary)
without Lender's prior written consent, other than to Borrower's officers and
advisors on a need-to-know basis. Borrower agrees to inform all such persons who
receive information concerning this Agreement that such information is
confidential and may not be disclosed to any other person. Lender reserves the
right to review and approve all materials that Borrower prepares that contain
Lender's name or describe this Agreement.
SECTION 7.19. CERTAIN FUNDAMENTAL CHANGES. Borrower will not, without
providing Lender with thirty (30) days' prior written notice, change the state
of its formation or change its legal name.
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SECTION 7.20. EARNOUT PAYMENT UNDER THE ASSET PURCHASE AGREEMENT. During
the Term hereof, Borrower shall not be permitted to make any "Earnout Payment"
(as defined in the Asset Purchase Agreement) to Ivonyx and agrees that, as
between Borrower and Parent, Parent shall make any and all Earnout Payments
(including the cash portion of such payments) required to be made under the
Asset Purchase Agreement in full unless and until (a) the cash portion of the
Earnout Payment exceeds Parent's aggregate cash and cash equivalents at the time
such Earnout Payment is required to be made, (b) Lender shall have been provided
with notice of and consented in writing to Borrower's proposal to pay to Ivonyx
directly the cash portion of the Earnout Payment that Parent is unable to pay as
provided in subsection (a) above and (c) no Event of Default or event which,
with the giving of notice or passage of time or both could constitute an Event
of Default, is occurring or continuing at the time such payment is required to
be made.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. Each of the following (individually, an
"Event of Default" and collectively, the "Events of Default") shall constitute
an event of default under this Agreement:
(a) a default in the payment of any principal of, or interest
upon, the Note when due and payable, whether at maturity or otherwise, or any
breach of Section 2.3, which default or breach, as applicable, shall have
continued unremedied for a period of five (5) days after written notice of the
default or breach from Lender to Borrower;
(b) a default in the payment of any other charges, fees, or
other monetary obligations owing to Lender arising out of or incurred in
connection with this Agreement when such payment is due and payable, which
default shall have continued unremedied for a period of five (5) days after
written notice of the default from Lender to Borrower;
(c) a default in the due observance or performance by Borrower
or any guarantor of the Obligations of any other term, covenant or agreement
contained in any of the Loan Documents, which default shall have continued
unremedied for a period of ten (10) days after written notice of the default
from Lender to Borrower;
(d) any representation or warranty made by Borrower in this
Agreement or in any of the other Loan Documents, any financial statement, or any
statement or representation made in any other certificate, report or opinion
delivered in connection with this Agreement or the other Loan Documents proves
to have been incorrect or misleading in any material respect when made;
(e) any obligation of Borrower (other than its Obligations under
this Agreement) for the payment of Borrowed Money having an aggregate principal
amount in excess of $50,000 is not paid when due or within any applicable grace
period, or such obligation becomes or is declared to be due and payable before
the expressed maturity of the obligation, or there shall have occurred an event
that, with the giving of notice or lapse of time, or both, would cause any such
obligation to become, or allow any such obligation to be declared to be, due and
payable;
(f) Borrower makes an assignment for the benefit of creditors,
offers a composition or extension to creditors, or makes or sends notice of an
intended bulk sale of any business or assets now or hereafter conducted by
Borrower;
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(g) Borrower or any Guarantor (i) files a petition in bankruptcy,
(ii) is adjudicated insolvent or bankrupt, petitions or applies to any tribunal
for any receiver of or any trustee for itself or any substantial part of its
property, (iii) commences any proceeding relating to itself under any
reorganization, arrangement, readjustment or debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect, or any
such proceeding is commenced against Borrower or any Guarantor and such
proceeding remains undismissed for a period of sixty (60) days, (iv) by any act
indicates its consent to, approval of, or acquiescence in, any such proceeding
or the appointment of any receiver of or any trustee for a Borrower or Guarantor
or any substantial part of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of sixty (60) days, or (v)
admits in writing its inability to pay its debts as they become due;
(h) one or more (i) final judgments against Borrower or
attachments against its property shall be rendered by a court, arbitrator,
arbitration panel, mediator or any individual(s) or entity with the authority to
issue binding judgments against Borrower or (ii) final settlements by or on
behalf of Borrower of any pending litigation, arbitration or other claim or
otherwise disputed matter, in any event not fully and unconditionally covered by
insurance, shall remain unpaid, unstayed on appeal, undischarged, unbonded and
undismissed for a period of ten (10) days;
(i) a Reportable Event that might constitute grounds for
termination of any Plan covered by Title IV of ERISA or for the appointment by
the appropriate United States District Court of a trustee to administer any such
Plan or for the entry of a Lien or encumbrance to secure any deficiency, has
occurred and is continuing thirty (30) days after its occurrence, or any such
Plan is terminated, or a trustee is appointed by an appropriate United States
District Court to administer any such Plan, or the Pension Benefit Guaranty
Corporation institutes proceedings to terminate any such Plan or to appoint a
trustee to administer any such Plan, or a Lien or encumbrance is entered to
secure any deficiency or claim;
(j) any outstanding equity interest in Borrower is sold or
otherwise transferred by the Person owning such equity interest on the date of
this Agreement;
(k) there shall occur any uninsured damage to or loss, theft or
destruction of any portion of the Collateral that exceeds $25,000 in the
aggregate (not including any applicable deductibles);
(l) INTENTIONALLY LEFT BLANK;
(m) upon the issuance of any execution or distraint process
against Borrower or any of its property or assets in excess of $25,000
individually or in the aggregate;
(n) Borrower ceases any material portion of its business
operations as currently conducted;
(o) any indication or evidence is received by Lender that
Borrower may have directly or indirectly been engaged in any type of activity
which, in Lender's discretion, may result in the forfeiture of any property of
Borrower to any Governmental Authority, which default shall have continued
unremedied for a period of ten (10) days after written notice from Lender;
(p) Borrower or any Affiliate of Borrower, shall challenge or
contest, in any action, suit or proceeding, the validity or enforceability of
this Agreement, or any of the other Loan Documents, the legality or the
enforceability of any of the Obligations or the perfection or priority of any
Lien granted to Lender;
(q) Borrower shall be criminally indicted or convicted under any
law that could lead to a forfeiture of any Collateral;
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(r) there shall occur a material adverse change in the financial
condition or business prospects of Borrower, or if Lender in good ▇▇▇▇▇ ▇▇▇▇▇
itself insecure as a result of acts or events bearing upon the financial
condition of Borrower or the repayment of the Note, which default shall have
continued unremedied for a period of ten (10) days after written notice from
Lender; or
(s) a default or event of default occurs under any of the
Affiliated Loan Documents;
(t) an Event of Default occurs under any Guaranty.
Notwithstanding the foregoing, Borrower's failure to comply with any
same provision of this Agreement two (2) times in any twelve (12) month period
shall effect an immediate Event of Default (without the expiration of any
applicable cure period) with respect to all subsequent failures by Borrower to
comply with such provision of this Agreement, and Lender thereupon may exercise
any remedy set forth in this Article VIII without affording Borrower any
opportunity to cure such Event of Default.
SECTION 8.2. ACCELERATION. Upon the occurrence of any of the foregoing
Events of Default, the Obligations under the Note shall become and be
immediately due and payable upon declaration to that effect delivered by Lender
to Borrower; provided that, upon the happening of any event specified in Section
8.1(g), all Obligations including, without limitation the Termination Fee, shall
be immediately due and payable without declaration or other notice to Borrower.
SECTION 8.3. REMEDIES.
(a) Upon the occurrence of and during the continuance of an
Event of Default under this Agreement or the other Loan Documents, Lender, in
addition to all other rights, options, and remedies granted to Lender under this
Agreement or at law or in equity, may take any of the following steps (which
list is given by way of example and is not intended to be an exhaustive list of
all such rights and remedies):
(i) terminate the Loan, whereupon all outstanding
Obligations (including without limitation the Termination Fee) shall be
immediately due and payable;
(ii) exercise all other rights granted to it under this
Agreement and all rights under the UCC in effect in the applicable
jurisdiction(s) and under any other applicable law; and
(iii) exercise all rights and remedies under all Loan
Documents now or hereafter in effect, including but not limited to:
(A) the right to take possession of, send
notices regarding, and collect directly the Collateral, with or without judicial
process;
(B) the right to (by its own means or with
judicial assistance) enter any of Borrower's premises and take possession of the
Collateral, or render it unusable, or dispose of the Collateral on such premises
in compliance with subsection (C) below, without any liability for rent,
storage, utilities, or other sums, and Borrower shall not resist or interfere
with such action;
(C) the right to require Borrower at Borrower's
expense to assemble all or any part of the Collateral and make it available to
Lender at any place designated by Lender;
(D) the right to reduce the Maximum Loan Amount
or to use the Collateral and/or funds in the Concentration Account in amounts up
to the Maximum Loan Amount for any reason; and
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(E) the right to enforce Borrower's rights
against Account Debtors and other obligors, including, but not limited to, the
right to collect Accounts directly in Lender's own name and to charge the
collection costs and expenses, including attorneys' fees, to Borrower.
(b) Borrower agrees that a notice received by it at least five
(5) days before the time of any intended public sale, or the time after which
any private sale or other disposition of the Collateral is to be made, shall be
deemed to be reasonable notice of such sale or other disposition. If permitted
by applicable law, any perishable Collateral which threatens to speedily decline
in value or which is sold on a recognized market may be sold immediately by
Lender without prior notice to Borrower. At any sale or disposition of
Collateral, Lender may (to the extent permitted by applicable law) purchase all
or any part of the Collateral, free from any right of redemption by Borrower,
which right is hereby waived and released. Borrower covenants and agrees not to
interfere with or impose any obstacle to Lender's exercise of its rights and
remedies with respect to the Collateral. Lender shall have no obligation to
clean-up or otherwise prepare the Collateral for sale. Lender may comply with
any applicable state or federal law requirements in connection with a
disposition of the Collateral and compliance will not be considered to adversely
affect the commercial reasonableness of any sale of the Collateral. Lender may
sell the Collateral without giving any warranties as to the Collateral. Lender
may specifically disclaim any warranties of title or the like. This procedure
will not be considered to adversely affect the commercial reasonableness of any
sale of the Collateral. If Lender sells any of the Collateral upon credit,
Borrower will be credited only with payments actually made by the purchaser,
received by Lender and applied to the indebtedness of the purchaser. In the
event the purchaser fails to pay for the Collateral, Lender may resell the
Collateral and Borrower shall be credited with the proceeds of the sale.
(c) Lender shall have no obligation to marshal any assets in
favor of Borrower, or against or in payment of the Note, any of the other
Obligations or any other obligation owed to Lender by Borrower or any other
person.
SECTION 8.4. NATURE OF REMEDIES. Lender shall have the right to proceed
against all or any portion of the Collateral to satisfy in any order (a) the
liabilities and Obligations of Borrower or any of its subsidiaries or Affiliates
to Lender or any Affiliate of Lender under this Agreement or any other loan
documents evidencing financings provided to Borrower or (b) the liabilities and
obligations of Borrower, Guarantor and their respective Affiliates to Lender
under the Affiliated Loan Documents. All rights and remedies granted Lender
under this Agreement and under any agreement referred to in this Agreement, or
otherwise available at law or in equity, shall be deemed concurrent and
cumulative, and not alternative remedies, and Lender may proceed with any number
of remedies at the same time until the Loan, and all other existing and future
liabilities and obligations of Borrower to Lender, are satisfied in full. The
exercise of any one right or remedy shall not be deemed a waiver or release of
any other right or remedy, and Lender, upon the occurrence of an Event of
Default, may proceed against Borrower, and/or the Collateral, at any time, under
any agreement, with any available remedy and in any order. All sums received
from Borrower and/or the Collateral in respect of the Loan may be applied by
Lender to the any other liabilities and obligations of Borrower under the Loan
Documents and the Affiliated Loan Documents in such order of application and in
such amounts as Lender shall deem appropriate in its sole and absolute
discretion. Borrower waives any right it may have to require Lender to pursue
any Person for any of the Obligations.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. EXPENSES AND TAXES.
(a) Borrower agrees to pay, whether or not the Closing occurs, a
reasonable documentation preparation fee, together with reasonable legal, audit
and appraisal fees and all other reasonable charges and
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expenses (including actual out-of-pocket expenses) incurred by Lender in
connection with the negotiation, preparation, legal review and execution of each
of the Loan Documents, including but not limited to UCC and judgment lien
searches and UCC filings and fees for post-Closing UCC and judgment lien
searches. In addition, Borrower shall pay all such fees associated with any
amendments, modifications and terminations to the Loan Documents following
Closing, except those amendments necessitated by the syndication, participation
or other transfer of the Loan by Lender. If Lender uses in-house counsel for any
of these purposes, Borrower further agrees that its Obligations under the Loan
Documents include reasonable charges for such work commensurate with the fees
that would otherwise be charged by outside legal counsel selected by Lender for
the work performed.
(b) Borrower also agrees to pay all out-of-pocket charges and
expenses incurred by Lender (including the fees and expenses of Lender's
counsel) in connection with the enforcement, protection or preservation of any
right or claim of Lender, the termination of this Agreement, the termination of
any Liens of Lender on the Collateral, or the collection of any amounts due
under the Loan Documents. If Lender uses in-house counsel for any of these
purposes (i.e., for any task in connection with the enforcement, protection or
preservation of any right or claim of Lender and the collection of any amounts
due under its Loan Documents), Borrower further agrees that its Obligations
under the Loan Documents include reasonable charges for such work commensurate
with the fees that would otherwise be charged by outside legal counsel selected
by Lender for the work performed.
(c) Borrower shall pay all taxes (other than taxes based upon or
measured by Lender's income or revenues or any personal property tax), if any,
in connection with the issuance of the Note and the recording of the security
documents therefor. The obligations of Borrower under this clause (c) shall
survive the payment of Borrower's indebtedness under this Agreement and the
termination of this Agreement.
SECTION 9.2. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
Loan Documents constitute the full and entire understanding and agreement among
the parties with regard to their subject matter and supersede all prior written
or oral agreements, understandings, representations and warranties made with
respect thereto. No amendment, supplement or modification of this Agreement nor
any waiver of any provision thereof shall be made except in writing executed by
the party against whom enforcement is sought.
SECTION 9.3. NO WAIVER; CUMULATIVE RIGHTS. No waiver by any party to
this Agreement of any one or more defaults by the other party in the performance
of any of the provisions of this Agreement shall operate or be construed as a
waiver of any future default or defaults, whether of a like or different nature.
No failure or delay on the part of any party in exercising any right, power or
remedy under this Agreement, nor acceptance of partial performance or partial
payment, shall operate as a waiver of such right, power or remedy nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise of such right, power or remedy or the exercise of any other
right, power or remedy. The remedies provided for in this Agreement are
cumulative and are not exclusive of any remedies that may be available to any
party to this Agreement at law, in equity or otherwise.
SECTION 9.4. NOTICES. Any notice or other communication required or
permitted under this Agreement shall be in writing and personally delivered,
mailed by registered or certified mail (return receipt requested and postage
prepaid), sent by telecopier (with a confirming copy sent by regular mail), or
sent by prepaid overnight courier service, and addressed to the relevant party
at its address set forth below, or at such other address as such party may, by
written notice, designate as its address for purposes of notice under this
Agreement:
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(a) If to Lender, at:
▇▇▇▇▇▇ Healthcare Finance, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., Chief Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Borrower, at:
drkoop LifeCare, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇ ▇▇▇▇▇▇, President & CEO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If mailed, notice shall be deemed to be given five (5) days after being sent,
and if sent by personal delivery, telecopier or prepaid courier, notice shall be
deemed to be given when delivered.
SECTION 9.5. SEVERABILITY. If any term, covenant or condition of this
Agreement, or the application of such term, covenant or condition to any party
or circumstance shall be found by a court of competent jurisdiction to be, to
any extent, invalid or unenforceable, the remainder of this Agreement and the
application of such term, covenant, or condition to parties or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant or condition shall be valid and
enforced to the fullest extent permitted by law. Upon determination that any
such term is invalid, illegal or unenforceable, Lender may, but is not obligated
to, advance funds to Borrower under this Agreement until the parties to this
Agreement amend this Agreement so as to effect the original intent of the
parties as closely as possible in a valid and enforceable manner.
SECTION 9.6. SUCCESSORS AND ASSIGNS. This Agreement, the Note, and the
other Loan Documents shall be binding upon and inure to the benefit of Borrower
and Lender and their respective successors and assigns and shall bind all
Persons who become bound as a debtor to this Agreement. Notwithstanding the
foregoing, Borrower may not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of Lender,
which may be withheld in its sole discretion. Lender may sell, assign, transfer,
or participate any or all of its rights or obligations under this Agreement
without notice to or consent of Borrower.
SECTION 9.7. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one instrument.
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SECTION 9.8. INTERPRETATION. No provision of this Agreement or any other
Loan Document shall be interpreted or construed against any party because that
party or its legal representative drafted that provision. The titles of the
paragraphs of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement. Any pronoun used in this
Agreement shall be deemed to include singular and plural and masculine, feminine
and neuter gender as the case may be. The words "herein," "hereof," and
"hereunder" shall be deemed to refer to this entire Agreement, except as the
context otherwise requires.
SECTION 9.9. SURVIVAL OF TERMS. All covenants, agreements,
representations and warranties made in this Agreement, any other Loan Document,
and in any certificates and other instruments delivered in connection with this
Agreement shall be considered to have been relied upon by Lender and shall
survive the making by Lender of the Loans contemplated by this Agreement and the
execution and delivery to Lender of the Note, and shall continue in full force
and effect until all liabilities and obligations of Borrower to Lender are
satisfied in full.
SECTION 9.10. RELEASE OF LENDER. For and in consideration of the Loan
and each advance or other financial accommodation hereunder, each Borrower,
voluntarily, knowingly, unconditionally, and irrevocably, with specific and
express intent, for and on behalf of itself and its agents, attorneys, heirs,
successors, and assigns (collectively the "Releasing Parties") does hereby fully
and completely release, acquit and forever discharge Lender, and its successors,
assigns, heirs, affiliates, subsidiaries, parent companies, principals,
directors, officers, employees, shareholders and agents (hereinafter called the
"Lender Parties"), and any other person, firm, business, corporation, insurer,
or association which may be responsible or liable for the acts or omissions of
the Lender Parties, or who may be liable for the injury or damage resulting
therefrom (collectively the "Released Parties"), of and from any and all
actions, causes of action, suits, debts, disputes, damages, claims, obligations,
liabilities, costs, expenses and demands of any kind whatsoever, at law or in
equity, whether matured or unmatured, liquidated or unliquidated, vested or
contingent, ▇▇▇▇▇▇ or inchoate, known or unknown that the Releasing Parties (or
any of them) have or may have, against the Released Parties or any of them
(whether directly or indirectly), other than any such acts or omissions arising
from the gross negligence or willful misconduct of any Lender Party. Borrower
acknowledges that the foregoing release is a material inducement to Lender's
decision to extend to Borrower the financial accommodations hereunder and has
been relied upon by Lender in agreeing to make the Loan and in making each
advance of Loan proceeds hereunder.
SECTION 9.11. TIME. Whenever Borrower is required to make any payment or
perform any act on a Saturday, Sunday, or a legal holiday under the laws of the
State of Maryland (or other jurisdiction where Borrower is required to make the
payment or perform the act), the payment may be made or the act performed on the
next Business Day. Time is of the essence in Borrower's performance under this
Agreement and all other Loan Documents.
SECTION 9.12. COMMISSIONS. The transaction contemplated by this
Agreement was brought about by Lender and Borrower acting as principals and
without any brokers, agents, or finders being the effective procuring cause
other than Commonwealth Associates. Borrower represents that all fees and other
amounts payable to Commonwealth Associates in connection with the transaction
contemplated by this Agreement shall be borne by Parent, and that neither Lender
nor Borrower shall have any liability therefor. Borrower represents that it has
not committed Lender to the payment of any brokerage fee, commission, or charge
in connection with this transaction. If any such claim is made on Lender by any
broker, finder, or agent or other person, Borrower will indemnify, defend, and
hold Lender harmless from and against the claim and will defend any action to
recover on that claim, at Borrower's cost and expense, including Lender's
counsel fees. Borrower further agrees that until any such claim or demand is
adjudicated in Lender's favor, the amount demanded will be deemed a liability of
Borrower under this Agreement, secured by the Collateral.
SECTION 9.13. THIRD PARTIES. No rights are intended to be created under
this Agreement or under any other Loan Document for the benefit of any third
party donee, creditor, or incidental beneficiary of Borrower.
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Nothing contained in this Agreement shall be construed as a delegation to Lender
of Borrower's duty of performance, including without limitation Borrower's
duties under any account or contract in which Lender has a security interest.
SECTION 9.14. DISCHARGE OF BORROWER'S OBLIGATIONS. Lender, in its sole
discretion, shall have the right at any time, and from time to time, without
prior notice to Borrower if Borrower fails to do so, to: (a) obtain insurance
covering any of the Collateral as required under this Agreement; (b) pay for the
performance of any of Borrower's obligations under this Agreement; (c) discharge
taxes, Liens, security interests, or other encumbrances at any time levied or
placed on any of the Collateral in violation of this Agreement unless Borrower
is in good faith with due diligence by appropriate proceedings contesting those
items; and (d) pay for the maintenance and preservation of any of the
Collateral. Expenses and advances shall be added to the Loan, until reimbursed
to Lender and shall be secured by the Collateral. Any such payments and advances
by Lender shall not be construed as a waiver by Lender of an Event of Default.
SECTION 9.15. INFORMATION TO PARTICIPANTS. Lender may divulge to any
participant it may obtain in the Loan, or any portion of the Loan, all
information, and furnish to such participant copies of reports, financial
statements, certificates, and documents obtained under any provision of this
Agreement or any other Loan Document; provided that Lender shall require that
any such participant execute a confidentiality agreement with respect to such
information.
SECTION 9.16. INDEMNITY. Borrower hereby indemnifies and agrees to
defend (with counsel acceptable to Lender) and hold harmless Lender, its
partners, officers, agents and employees (collectively, "Indemnitee") from and
against any liability, loss, cost, expense (including reasonable attorneys' fees
and expenses for both in-house and outside counsel), claim, damage, suit, action
or proceeding ever suffered or incurred by Lender or in which Lender may ever be
or become involved (whether as a party, witness or otherwise) (a) arising from
Borrower's failure to observe, perform or discharge any of its covenants,
obligations, agreements or duties under this Agreement, (b) arising from the
breach of any of the representations or warranties contained in Article IV of
this Agreement, (c) by reason of this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby, or (d) relating to claims of any
Person with respect to the Collateral other than, in each case, to the extent
arising from the gross negligence or willful misconduct of Indemnitee.
Notwithstanding any contrary provision in this Agreement, the obligation of
Borrower under this Section 9.16 shall survive the payment in full of the
Obligations and the termination of this Agreement.
SECTION 9.17. INTENTIONALLY LEFT BLANK.
SECTION 9.18. LENDER APPROVALS. Unless expressly provided herein to the
contrary, any approval, consent, waiver or satisfaction of Lender with respect
to any matter that is the subject of this Agreement or the other Loan Documents
may be granted or withheld by Lender in its sole and absolute discretion.
SECTION 9.18A. FURTHER ASSURANCES. Borrower hereby agrees that at any
time and from time to time, at the expense of Borrower, Borrower will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or that Lender may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby, or to enable Lender or any of its agents to exercise and enforce its
rights and remedies under this Agreement with respect to any portion of such
collateral.
SECTION 9.19. CHOICE OF LAW; CONSENT TO JURISDICTION. EXCEPT TO THE
EXTENT THAT THE UCC PROVIDES FOR THE APPLICATION OF THE LAW OF THE BORROWER'S
STATE OF ORGANIZATION, THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS. IF ANY ACTION
ARISING OUT OF THIS AGREEMENT OR THE NOTE IS COMMENCED BY LENDER IN
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▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ IN THE U.S. DISTRICT COURT FOR THE
DISTRICT OF MARYLAND, BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH ACTION AND TO THE LAYING OF VENUE IN THE STATE OF MARYLAND.
ANY PROCESS IN ANY SUCH ACTION SHALL BE DULY SERVED IF MAILED BY REGISTERED
MAIL, POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS DESCRIBED IN SECTION 9.4. OR
IF SERVED BY ANY OTHER MEANS PERMITTED BY APPLICABLE LAW.
SECTION 9.20. COOPERATION IN DISCOVERY AND LITIGATION. IN ANY
LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ALL DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES SHALL BE DEEMED TO BE
EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF ALL APPLICABLE LAW OR
COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY
(WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). BORROWER AGREES THAT LENDER'S
COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY OF THESE
INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF
ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN EVIDENCE DEPOSITION.
BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN
ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED
BY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER
FORM) OR OTHER THINGS UNDER BORROWER'S CONTROL AND RELATING TO THE DISPUTE IN
ANY JURISDICTION THAT RECOGNIZES THAT (OR ANY SIMILAR) DISTINCTION.
SECTION 9.21. WAIVER OF TRIAL BY JURY. BORROWER HEREBY (A) COVENANTS AND
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND
(B) WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT
SHALL NOW OR HEREAFTER EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY BORROWER, AND THIS WAIVER IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED AND
REQUESTED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER AND THE PARTIES TO THIS AGREEMENT, SO AS TO SERVE AS CONCLUSIVE
EVIDENCE OF BORROWER'S WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, BORROWER
HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF LENDER (INCLUDING LENDER'S
COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO BORROWER THAT LENDER WILL
NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
SECTION 9.22. CONFESSION OF JUDGMENT. BORROWER AUTHORIZES ANY ATTORNEY
ADMITTED TO PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR THE
CLERK OF SUCH COURT TO APPEAR ON BEHALF OF BORROWER IN ANY COURT IN ONE OR MORE
PROCEEDINGS, OR BEFORE ANY CLERK THEREOF OR PROTHONOTARY OR OTHER COURT
OFFICIAL, AND TO CONFESS JUDGMENT AGAINST BORROWER IN FAVOR OF LENDER IN THE
FULL AMOUNT DUE ON THIS AGREEMENT (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY
AND ALL CHARGES, FEES AND COSTS) PLUS ATTORNEYS' FEES EQUAL TO FIFTEEN PERCENT
(15%) OF THE AMOUNT DUE, PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR
OPPORTUNITY OF BORROWER FOR PRIOR HEARING; PROVIDED THAT BORROWER ACKNOWLEDGES
THAT ATTORNEYS' FEES ARE STATED TO BE FIFTEEN PERCENT (15%) SOLELY FOR PURPOSES
OF FIXING A SUM CERTAIN FOR WHICH JUDGMENT CAN BE ENTERED BY CONFESSION AND
AGREES THAT IN ENFORCING ANY SUCH JUDGMENT, LENDER SHALL NOT DEMAND, SOLELY WITH
RESPECT TO ATTORNEYS' FEES INCURRED BY LENDER IN CONNECTION WITH SUCH
INDEBTEDNESS AFTER SUCH JUDGMENT IS RENDERED, ANY AMOUNTS IN EXCESS OF THE
ACTUAL AMOUNT OF REASONABLE ATTORNEYS' FEES CHARGED BY OR BILLED TO LENDER FOR
ITS IN-HOUSE OR OUTSIDE COUNSEL (WHICH ATTORNEYS' FEES SHALL IN ANY EVENT BE
CHARGED BY OR BILLED TO LENDER AT
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COMMERCIAL HOURLY RATES FOR MATTERS OF SUCH TYPE). BORROWER AGREES AND CONSENTS
THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT COURT OF ANY COUNTY
OF THE STATE OF MARYLAND OR OF BALTIMORE CITY, MARYLAND, OR IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MARYLAND. BORROWER WAIVES THE BENEFIT OF ANY
AND EVERY STATUTE, ORDINANCE, OR RULE OF COURT WHICH MAY BE LAWFULLY WAIVED
CONFERRING UPON BORROWER ANY RIGHT OR PRIVILEGE OF EXEMPTION, HOMESTEAD RIGHTS,
STAY OF EXECUTION, OR SUPPLEMENTARY PROCEEDINGS, OR OTHER RELIEF FROM THE
ENFORCEMENT OR IMMEDIATE ENFORCEMENT OF A JUDGMENT OR RELATED PROCEEDINGS ON A
JUDGMENT. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST
BORROWER SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, OR BY ANY
IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT
ENTERED PURSUANT THERETO; SUCH AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR
MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS
OFTEN AS LENDER SHALL DEEM NECESSARY, CONVENIENT, OR PROPER.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Loan and Security Agreement constitutes an instrument executed under seal,
the parties have caused this Loan and Security Agreement to be executed under
seal as of the date first written above.
LENDER:
▇▇▇▇▇▇ HEALTHCARE FINANCE, INC.,
a Delaware corporation
By: (SEAL)
--------------------------------------
Name:
Title:
BORROWER:
DRKOOP LIFECARE, INC.,
a Delaware corporation
By: (SEAL)
--------------------------------------
Name:
Title:
ACKNOWLEDGEMENT:
▇▇▇▇▇▇.▇▇▇, INC. HEREBY ACKNOWLEDGES AND
AGREES TO BE BOUND BY THOSE PROVISIONS OF
SECTION 7.6 AND SECTION 7.20 OF THIS
LOAN AND SECURITY AGREEMENT:
▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation
By: (SEAL)
--------------------------------------
Name:
Title:
41
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LIST OF EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Lockbox Agreement
Exhibit C - Form of Legal Opinion
Exhibit D - Form of Estoppel Certificate
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EXHIBIT A
REVOLVING CREDIT NOTE
$10,000,000.00 AUGUST 20, 2001
FOR VALUE RECEIVED, the undersigned, DRKOOP LIFECARE, INC., a Delaware
corporation ("Borrower"), promises to pay, in lawful money of the United States,
to the order of ▇▇▇▇▇▇ HEALTHCARE FINANCE, INC., a Delaware corporation
(together with its successors and assigns, "Lender"), the principal sum of Ten
Million and No/100 Dollars ($10,000,000.00), or so much of such principal sum as
shall be advanced or readvanced and shall remain unpaid under the Loan
established pursuant to that certain Loan and Security Agreement of even date
herewith by and between the undersigned and Lender (as amended, modified,
restated or replaced from time to time, the "Loan Agreement"), plus interest on
the unpaid balance thereof, computed on a 360-day basis, at the rate per annum
that is set forth in the Loan Agreement.
1. All capitalized terms used and not otherwise specifically defined in
this Revolving Credit Note (as amended, modified, restated or replaced from time
to time, the "Note") shall have the meanings given to them in the Loan
Agreement.
2. This Note shall evidence the undersigned's obligation to repay all
sums advanced by Lender from time to time under the Loan Agreement and as part
of the Loan. The actual amount due and owing from time to time under this Note
shall be evidenced by Lender's records of receipts and disbursements with
respect to the Loan, which shall be conclusive evidence of that amount, absent
manifest error.
3. Interest due pursuant to this Note shall be payable monthly, in
arrears, on the first Business Day of each month after the date of this Note
(for the previous month). For purposes of this Note, a "Business Day" shall mean
any day on which banks are open for business in Maryland, excluding Saturdays
and Sundays.
4. This Note shall become due and payable upon the earlier to occur of
(a) the expiration of the Term, or (b) the occurrence of any Event of Default
under the Loan Agreement if the Loan and the maturity of the payment of the
Obligations are accelerated, or any other event under any other Loan Documents
which would result in this Note becoming due and payable. At such time, the
entire principal balance of this Note and all other fees, costs and expenses, if
any, shall be due and payable in full. Lender shall then have the option at any
time and from time to time to exercise all of the rights and remedies set forth
in this Note and in the other Loan Documents, as well as all rights and remedies
otherwise available to Lender at law or in equity, to collect the unpaid
indebtedness under this Note and the other Loan Documents. This Note is secured
by the Collateral, as defined in and described in the Loan Agreement.
5. Whenever any principal and/or interest and/or fee under this Note
shall not be paid when due, whether at the stated maturity or by acceleration,
interest on such unpaid amounts shall thereafter be payable at a rate per annum
equal to five (5) percentage points above the stated rate of interest on this
Note until such amounts shall be paid.
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6. The undersigned and Lender intend to conform strictly to the
applicable usury laws in effect from time to time during the term of the Loan.
Accordingly, if any transaction contemplated by the Loan Agreement or this Note
would be usurious under such laws, then notwithstanding any other provision
hereof: (a) the aggregate of all interest that is contracted for, charged, or
received under this Note or under any other Loan Document shall not exceed the
maximum amount of interest allowed by applicable law, and any excess shall be
promptly credited to the undersigned by Lender (or, to the extent that such
consideration shall have been paid, such excess shall be promptly refunded to
the undersigned by Lender); (b) neither the undersigned nor any other Person (as
defined in the Loan Agreement) now or hereafter liable hereunder shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum interest permitted by applicable law; and (c) the effective rate
of interest shall be reduced to the Highest Lawful Rate (as defined in the Loan
Agreement). All sums paid, or agreed to be paid, to Lender for the use,
forbearance, and detention of the debt of Borrower to Lender shall, to the
extent permitted by applicable law, be allocated throughout the full term of
this Note until payment is made in full so that the actual rate of interest does
not exceed the Highest Lawful Rate in effect at any particular time during the
full term thereof. If at any time the rate of interest under this Note exceeds
the Highest Lawful Rate, the rate of interest to accrue pursuant to this Note
shall be limited, notwithstanding anything to the contrary in this Note, to the
Highest Lawful Rate, but any subsequent reductions in the Base Rate shall not
reduce the interest to accrue pursuant to this Note below the Highest Lawful
Rate until the total amount of interest accrued equals the amount of interest
that would have accrued if a varying rate per annum equal to the interest rate
under the Note had at all times been in effect.
7. This Note is the "Note" referred to in the Loan Agreement, and is
issued pursuant to the Loan Agreement. Reference is made to the Loan Agreement
for a statement of the additional rights and obligations of the undersigned and
Lender. In the event of any conflict between the terms of this Note and the
terms of the Loan Agreement, the terms of the Loan Agreement shall prevail. All
of the terms, covenants, provisions, conditions, stipulations, promises and
agreements contained in the Loan Documents to be kept, observed and/or performed
by the undersigned are made a part of this Note and are incorporated into this
Note by this reference to the same extent and with the same force and effect as
if they were fully set forth in this Note; the undersigned promises and agrees
to keep, observe and perform them or cause them to be kept, observed and
performed, strictly in accordance with the terms and provisions thereof.
8. Each party liable on this Note in any capacity, whether as maker,
endorser, surety, guarantor or otherwise, (a) waives presentment for payment,
demand, protest and notice of presentment, notice of protest, notice of
non-payment and notice of dishonor of this debt and each and every other notice
of any kind respecting this Note and all lack of diligence or delays in
collection or enforcement hereof; (b) agrees that Lender at any time or times,
without notice to the undersigned or its consent, may grant extensions of time,
without limit as to the number of the aggregate period of such extensions, for
the payment of any principal, interest or other sums due hereunder; (c) to the
extent permitted by law, waives all exemptions under the laws of the
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46
State of Maryland and/or any state or territory of the United States; (d) to the
extent permitted by law, waives the benefit of any law or rule of law intended
for its advantage or protection as an obligor under this Note or providing for
its release or discharge from liability on this Note, in whole or in part, on
account of any facts or circumstances other than full and complete payment of
all amounts due under this Note; and (e) agrees to pay, in addition to all other
sums of money due, all cost of collection and reasonable attorney's fees,
whether suit be brought or not, if this Note is not paid in full when due,
whether at the stated maturity or by acceleration.
9. No waiver by Lender of any one or more defaults by the undersigned in
the performance of any of its obligations under this Note shall operate or be
construed as a waiver of any future default or defaults, whether of a like or
different nature. No failure or delay on the part of Lender in exercising any
right, power or remedy under this Note (including, without limitation, the right
to declare this Note due and payable) shall operate as a waiver of such right,
power or remedy nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise of such right, power or
remedy or the exercise of any other right, power or remedy.
10. If any term, provision, covenant or condition of this Note or the
application of any term, provision, covenant or condition of this Note to any
party or circumstance shall be found by a court of competent jurisdiction to be,
to any extent, invalid or unenforceable, then the remainder of this Note and the
application of such term, provision, covenant, or condition to parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, provision, covenant or condition
shall be valid and enforced to the fullest extent permitted by law. Upon
determination that any such term, provision, covenant or condition is invalid,
illegal or unenforceable, Lender may, but is not obligated to, advance funds to
Borrower under this Note until Borrower and Lender amend this Note so as to
effect the original intent of the parties as closely as possible in a valid and
enforceable manner.
11. No amendment, supplement or modification of this Note nor any waiver
of any provision of this Note shall be made except in writing executed by the
party against whom enforcement is sought.
12. This Note shall be binding upon the undersigned and its successors
and assigns. Notwithstanding the foregoing, the undersigned may not assign any
of its rights or delegate any of its obligations under this Note without the
prior written consent of Lender, which may be withheld in its sole discretion.
13. THIS NOTE IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MARYLAND WITHOUT RESPECT TO ANY OTHERWISE APPLICABLE
CONFLICTS-OF-LAWS PRINCIPLES, BOTH AS TO INTERPRETATION AND PERFORMANCE, AND THE
PARTIES EXPRESSLY CONSENT AND AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF MARYLAND AND THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND AND TO
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47
THE LAYING OF VENUE IN THE STATE OF MARYLAND, WAIVING ALL CLAIMS OR DEFENSES
BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INCONVENIENT FORUM OR
THE LIKE. BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY MAILING A COPY OF
THE SUMMONS TO BORROWER, BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO
BORROWER'S ADDRESS SET FORTH IN SECTION 9.4 OF THE LOAN AGREEMENT. BORROWER
FURTHER WAIVES ANY CLAIM FOR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY ACTION
TAKEN OR OMITTED TO BE TAKEN BY LENDER IN GOOD FAITH.
14. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ALL
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF BORROWER OR OF ITS AFFILIATES SHALL
BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF BORROWER FOR PURPOSES OF ALL
APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE
FOR TESTIMONY (WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE). BORROWER AGREES
THAT LENDER'S COUNSEL IN ANY SUCH DISPUTE RESOLUTION PROCEEDING MAY EXAMINE ANY
OF THESE INDIVIDUALS AS IF UNDER CROSS-EXAMINATION AND THAT ANY DISCOVERY
DEPOSITION OF ANY OF THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN
EVIDENCE DEPOSITION. BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE
EFFORTS TO PRODUCE IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN
THE MANNER REQUESTED BY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE,
ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER BORROWER'S CONTROL AND RELATING
TO THE DISPUTE IN ANY JURISDICTION THAT RECOGNIZES THAT (OR ANY SIMILAR)
DISTINCTION.
15. THE UNDERSIGNED HEREBY (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (B) WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY
BY THE UNDERSIGNED, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE
ACCRUE. LENDER IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS NOTE TO ANY
COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS
TO SERVE AS CONCLUSIVE EVIDENCE OF THE UNDERSIGNED'S WAIVER OF THE RIGHT TO JURY
TRIAL. FURTHER, THE UNDERSIGNED HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF LENDER (INCLUDING LENDER'S COUNSEL) HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
TO ANY BORROWER THAT LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION.
16. THE UNDERSIGNED HEREBY AUTHORIZES ANY ATTORNEY ADMITTED TO PRACTICE
BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR THE CLERK OF SUCH COURT TO
APPEAR ON BEHALF OF THE
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UNDERSIGNED IN ANY COURT IN ONE OR MORE PROCEEDINGS, OR BEFORE ANY CLERK THEREOF
OF PROTHONOTARY OR OTHER COURT OFFICIAL, AND TO CONFESS JUDGMENT AGAINST THE
UNDERSIGNED IN FAVOR OF LENDER IN THE FULL AMOUNT DUE ON THIS NOTE (INCLUDING
PRINCIPAL, ACCRUED INTEREST AND ANY AND ALL CHARGES, FEES AND COSTS) PLUS
ATTORNEYS' FEES EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT DUE, PLUS COURT
COSTS, ALL WITHOUT PRIOR NOTICE OR OPPORTUNITY OF BORROWER FOR PRIOR HEARING;
PROVIDED THAT THE UNDERSIGNED ACKNOWLEDGES THAT ATTORNEYS' FEES ARE STATED TO BE
FIFTEEN PERCENT (15%) SOLELY FOR PURPOSES OF FIXING A SUM CERTAIN FOR WHICH
JUDGMENT CAN BE ENTERED BY CONFESSION AND AGREES THAT IN ENFORCING ANY SUCH
JUDGMENT, LENDER SHALL NOT DEMAND, SOLELY WITH RESPECT TO ATTORNEYS' FEES
INCURRED BY LENDER IN CONNECTION WITH SUCH INDEBTEDNESS AFTER SUCH JUDGMENT IS
RENDERED, ANY AMOUNTS IN EXCESS OF THE ACTUAL AMOUNT OF REASONABLE ATTORNEYS'
FEES CHARGED BY OR BILLED TO LENDER FOR ITS IN-HOUSE OR OUTSIDE COUNSEL (WHICH
ATTORNEYS' FEES SHALL IN ANY EVENT BE CHARGED BY OR BILLED TO LENDER AT
COMMERCIAL HOURLY RATES FOR MATTERS OF SUCH TYPE). THE UNDERSIGNED AGREES AND
CONSENTS THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT COURT OF ANY
COUNTY OF THE STATE OF MARYLAND OR OF BALTIMORE CITY, MARYLAND, OR IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND. THE UNDERSIGNED WAIVES THE
BENEFIT OF ANY AND EVERY STATUTE, ORDINANCE, OR RULE OF COURT WHICH MAY BE
LAWFULLY WAIVED CONFERRING UPON BORROWER ANY RIGHT OR PRIVILEGE OF EXEMPTION,
HOMESTEAD RIGHTS, STAY OF EXECUTION, OR SUPPLEMENTARY PROCEEDINGS, OR OTHER
RELIEF FROM THE ENFORCEMENT OR IMMEDIATE ENFORCEMENT OF A JUDGMENT OR RELATED
PROCEEDINGS ON A JUDGMENT. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER
JUDGMENT AGAINST THE UNDERSIGNED SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES
THEREOF, OR BY ANY IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY
ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH AUTHORITY AND POWER MAY BE EXERCISED
ON ONE OR MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR DIFFERENT
JURISDICTIONS, AS OFTEN AS LENDER SHALL DEEM NECESSARY, CONVENIENT, OR PROPER.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, intending to be legally bound, and intending that
this Revolving Credit Note constitutes an instrument executed under seal, the
Borrower has caused this Revolving Credit Note to be executed under seal as of
the date first written above.
BORROWER:
DRKOOP LIFECARE, INC.,
a Delaware corporation
By:___________________________(SEAL)
Name:
Title:
6