Exhibit 99(a)
LOAN AGREEMENT
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THIS LOAN AGREEMENT is made and entered into as of June 6, 1997, by and
between MEDCROSS, INC., a Florida corporation (the "Borrower"), and WINTER
HARBOR, L.L.C., a Delaware limited partnership (the "Lender").
RECITALS:
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Borrower desires to borrow from Lender up to $2,000,000 on a term loan
basis, the proceeds of which will be used for capital expenditures and working
capital purposes in the operations of I-Link Communications, Inc., a wholly
owned subsidiary of Borrower.
AGREEMENTS:
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IN CONSIDERATION of the mutual promises and agreements herein contained,
Lender and Borrower agree as follows:
ARTICLE I. AMOUNT AND TERMS OF THE LOAN
Section 1.1 The Loan. Lender agrees, upon the terms and conditions
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hereinafter set forth, to make a loan or loans to Borrower in an aggregate
principal amount not to exceed at any one time outstanding $2,000,000 (the
"Loan").
Section 1.2 The Note. The outstanding principal amount of the Loan
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shall be evidenced by and subject to the terms of a promissory note, dated the
date of the first borrowing hereunder, substantially in the form set forth as
Exhibit 1 hereto (as amended, renewed, restated, increased, consolidated or
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substituted from time to time, the "Note"), payable to the order of Lender.
Section 1.3 Interest. The Loan shall bear interest on the unpaid
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principal amount thereof at a rate per annum at all times equal to the sum of
the rate of interest announced in the Wall Street Journal (Eastern Edition) as
the prime rate from time to time (the "Prime Rate") plus 2% per annum. The
prime rate functions as a reference rate index. The Prime Rate will
automatically change as and when such prime rate changes. Interest shall be
calculated on the basis of a year of 365 days and the actual number of days
elapsed during the period for which such interest is payable. Interest shall
begin to accrue on the outstanding principal amount of the Loan on the date of
disbursement of all or a portion of the Loan. Accrued interest shall be paid
quarterly on the last business day of each calendar quarter until all principal
and interest hereunder is paid in full at the repayment or maturity of the Loan.
Upon the occurrence of any Event of Default (as that term is defined in Section
7.1), the entire outstanding principal amount of the Loan and (to the extent
permitted by law)
unpaid interest thereon and all other amounts due hereunder shall bear interest,
from the date of occurrence of such Event of Default until the earlier of the
date the Loan is paid in full and the date on which such Event of Default is
cured or waived in writing, at an interest rate equal to the sum of the Prime
Rate plus 5% per annum, which shall be payable upon demand.
Section 1.4 Principal Repayment. The outstanding principal balance of
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the Loan plus any accrued and unpaid interest thereon shall be due and payable
on October 15, 1998 (the "Maturity Date"). If Lender makes an Investment (as
that term is defined in Section 1.6(b)(iii)) in Borrower, Lender may at its
option convert the outstanding principal balance of the Loan into capital stock
of Borrower or into any debt security, in either case issued to Lender pursuant
to such Investment.
Section 1.5 Use of Proceeds and Advancement of Funds.
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(a) Each borrowing hereunder shall be made by Lender in such amount as
Borrower shall request in writing three business days prior to the date of the
requested borrowing, provided that each borrowing shall be in an amount which is
a minimum of $500,000, and integral multiples of $100,000 in excess thereof.
Borrower shall not be permitted to make more than four borrowings hereunder.
The obligation of Lender to make any portion of the Loan is conditioned upon the
fact that (x) no Event of Default and no event which with the lapse of any
applicable grace period or the giving of notice or both would constitute an
Event of Default (a "Potential Default") shall then exist or immediately after
the Loan would exist; (y) all of the Loan Documents (as that term is defined in
Section 4.2) shall still be in full force and effect; and (z) the
representations and warranties contained herein and in the Loan Documents shall
be true and correct in all material respects as if made on and as of the date of
such borrowing, except to the extent that any thereof expressly relate to an
earlier date.
(b) Borrower shall use the proceeds of the Loan only to fund capital
expenditures by I-Link Communications, Inc., a Utah corporation that is wholly
owned by Borrower ("I-Link"), and for working capital purposes in the operations
of I-Link.
Section 1.6 Prepayments.
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(a) Voluntary Prepayments. By written notice to Lender no later than
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12:00 noon, Delaware time on the business day prior to such prepayment, Borrower
may, at its option, prepay the Loan in whole at any time or in part from time to
time without penalty or premium; provided, however, that each partial prepayment
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shall be in the aggregate
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principal amount of not less than $100,000 or an integral multiple of $50,000 in
excess thereof.
(b) Mandatory Prepayments.
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(i) Prooceeds of Asset Sales. Borrower shall make a mandatory
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prepayment of the Loan in an amount equal to the cash proceeds of any sale by it
or any of its subsidiaries of any material assets, net of any reasonable costs
directly incurred in connection with such sale and any taxes payable in
connection with such sale. Together with any prepayment required by this
Section, Borrower shall deliver to Lender a certificate executed by Borrower's
chief financial officer setting forth the calculation of the net cash proceeds
of such sale, including a calculation of the taxes payable in respect of such
sale. Such prepayment shall be made simultaneously with the consummation of such
sale.
(ii) Net Equity and Debt Proceeds. If Borrower issues or sells
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any shares of its capital stock or other equity interests or securities
convertible into or exercisable for any shares of its capital stock or other
equity interests or incurs any indebtedness for borrowed money, it shall, within
five days of such sale, issuance or incurrence, make a mandatory prepayment of
the Loan in an amount equal to 100% of the cash proceeds thereof, net of any
reasonable costs directly incurred in connection with such sale, issuance or
incurrence; provided, however, that no such prepayment shall be required in
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connection with any such issuance or sale (a) in connection with an acquisition
(including by way of merger or consolidation or share exchange) by Borrower,
which acquisition is approved by Lender, of the stock or assets of another
person in a transaction pursuant to which the purchase price is paid in whole or
in part by the delivery of capital stock of Borrower to the seller or (b) to
employees of Borrower or any of its subsidiaries pursuant to stock option or
other employee benefit plans approved by Lender.
(iii) Failure to enter into Equity Documents. The parties
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acknowledge that Lender desires to make an equity or other investment (the
"Investment") in Borrower, or in one of its subsidiaries, or in an operating
venture to be owned by Borrower or one of its subsidiaries and Lender. Borrower
agrees to negotiate in good faith the terms of such Investment. If Borrower
fails to so negotiate in good faith and, as a consequence thereof, the parties
have not entered into a letter of intent summarizing the principal terms of the
Investment by September 1, 1997, or the parties have not entered into definitive
agreements in respect of the Investment by October 15, 1997, then in either such
case, Borrower shall make a mandatory prepayment of the Loan in an amount equal
to the entire outstanding principal balance of the Loan, plus all accrued
interest, within three days of such date.
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(c) Application of Prepayments. All voluntary and mandatory
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prepayments of the Loan shall be applied first to accrued interest and then to
the principal outstanding under the Loan. No amount so prepaid may be
reborrowed.
Section 1.7 Payment on Non-Business Days. Whenever any payment to be
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made hereunder or under the Note shall be due on a Saturday, Sunday or public
holiday, such payment may be made on the next succeeding business day, and such
extension of time in such case shall be included in the computation of interest
hereunder and under the Note.
Section 1.8 Taxes. All sums payable by Borrower hereunder or under the
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Note, whether of principal, interest, fees, expenses or otherwise, shall be paid
in full, free of any deductions or withholdings for any and all present and
future taxes, levies, imposts, stamps, duties, fees, assessments, deductions,
withholdings, and other governmental charges and all liabilities with respect
thereto. If Borrower is prohibited by law from making payments hereunder or
under the Note free of such deductions or withholdings, then Borrower shall pay
such additional amount as may be necessary in order that the actual amount
received by Lender after such deduction or withholding shall equal the full
amount stated to be payable hereunder or under the Note.
Section 1.9 Warrants. As further consideration for Lender's commitment
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to make the Loan, Borrower has granted to Lender warrants to purchase, for an
aggregate value of $50,000, up to 500,000 shares of Borrower's common stock at a
purchase price of $4.97 per share, pursuant to the terms of a Warrant Agreement
of even date herewith (the "Warrant Agreement"). The balance of the $2,000,000
consideration paid by Lender for the Note and the Warrant Agreement, $1,950,000,
based on the respective fair market values of the Note and the Warrant
Agreement, shall be allocated to the Note.
ARTICLE II. CLOSING
Section 2.1 Closing and Closing Date. The making of the first
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disbursement of the Loan and the other transactions contemplated hereby shall
take place on a date set forth in a notice delivered by Borrower to Lender at
least five days before such date or at such other date and at such place as to
which the parties may agree (the "Closing" and the "Closing Date"). Subject to
the terms and conditions hereof, upon the fulfillment or waiver in writing of
all the conditions precedent set out in Article IV below, Lender shall disburse
such portion of the Loan to Borrower as Borrower may request.
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ARTICLE III. SECURITY
Section 3.1 Guaranty. As partial security for the Loan, Borrower shall
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cause each of I-Link and Family Telecommunications, Incorporated, a Utah
corporation that is wholly owned by Borrower ("FTI"), to execute and deliver to
Lender, on or before the Closing Date, a guaranty (the "Guaranty"), in form and
substance satisfactory to Lender, pursuant to which I-Link and FTI shall
guarantee the obligations of Borrower to Lender hereunder and under the Note.
Section 3.2 Security Interest. As further security for the Loan,
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Borrower shall cause I-Link and FTI to execute and deliver to Lender, on or
before the Closing Date, a security agreement in form and substance satisfactory
to Lender (the "Security Agreement"), pursuant to which I-Link and FTI grant to
Lender a security interest in substantially all of their personal property
(other than equipment leased to I-Link or FTI and any leases which by their
terms prohibit the grant of security interests in, or assignments of, I-Link's
or FTI's leasehold interest therein) as collateral security for their
obligations under the Guaranty and for Borrower's obligations hereunder and
under the Note. In addition, Borrower shall cause I-Link to execute and deliver
to Lender, on or before the Closing Date, a patent assignment in form and
substance satisfactory to Lender (the "Patent Assignment"), pursuant to which I-
Link collaterally assigns to Lender as security for I-Link's obligations under
the Guaranty and Borrower's obligations hereunder and under the Note its
interest in all patent applications it has filed with the United States Patent
and Trademark Office, including without limitation Patent Application No.
08/599,238 filed February 9, 1996 and entitled "Voice Internet Transmission
System" and Patent Application No. 08/585,628 filed January 16, 1996, and
entitle "Facsimile Internet Transmission System."
Section 3.3 Pledge Agreement. As further security for the Loan, on or
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before the Closing Date, Borrower shall execute and deliver to Lender a pledge
agreement in form and substance satisfactory to Lender (the "Pledge Agreement"),
pursuant to which Borrower grants to Lender a security interest in all of the
issued and outstanding capital stock of I-Link and FTI as collateral security
for Borrower's obligations hereunder and under the Note.
ARTICLE IV. CONDITIONS OF LENDING
Section 4.1 Conditions Precedent to Loan. The obligation of Lender to
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disburse from time to time any portion of the Loan hereunder is subject to the
following conditions precedent:
(a) Lender shall have received all of the following, on or before the
Closing Date, in form and substance satisfactory to Lender:
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(i) The Note, duly executed and delivered by Borrower;
(ii) The Guaranty, duly executed and delivered by I-Link
and FTI;
(iii) The Security Agreement, together with appropriate UCC-1
financing statements duly executed and delivered by I-Link and FTI;
(iv) The Pledge Agreement, duly executed and delivered by
Borrower, together with stock certificates and blank stock powers;
(v) Certified copies of the resolutions of the Board of
Directors of each of Borrower, I-Link and FTI evidencing approval of the
execution, delivery and performance of this Agreement, the Note, the Guaranty,
the Security Agreement, the Pledge Agreement and other matters contemplated
hereby;
(vi) Certificates of Good Standing for each of Borrower,
I-Link and FTI from the state of its incorporation and from each other state in
which it is authorized to conduct business issued no more than ten days prior to
the Closing Date;
(vii) Copies of UCC, judgment and tax lien searches in each
jurisdiction in which collateral covered by the Security Agreement is located,
naming I-Link and FTI as debtors;
(viii) Copies of the certificates evidencing the insurance
required to be maintained by Borrower pursuant to Section 6.1(e); and
(ix) Such other agreements, certificates, opinions of
counsel and documents as Lender may reasonably require.
Section 4.2 Compliance. All of the representations and warranties of
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Borrower, I-Link and FTI in this Agreement, the Guaranty, the Security
Agreement, the Pledge Agreement, the Warrant Agreement and in each other
agreement, document, or instrument executed or delivered pursuant hereto or
thereto (collectively, the "Loan Documents") shall be true and accurate in all
material respects on and as of the Closing Date and the date of any subsequent
disbursement of any portion of the Loan, as if made on and as of such date and
time. Borrower shall be in compliance with all of the applicable terms and
provisions of this Agreement and no Event of Default or Potential Default shall
have occurred and be continuing. Borrower shall have performed all obligations
and taken all actions to be performed or taken by it hereunder on or prior to
such date. On the date of each borrowing,
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Borrower shall deliver to Lender a certificate, dated as of such date and signed
by an executive officer of Borrower, certifying compliance with the conditions
of this Section 4.2. Each disbursement of all or a portion of the Loan to
Borrower shall in and of itself, constitute a representation and warranty that
Borrower as of the date of such Loan, is in compliance with this Section, and if
Borrower is not in compliance with this Section, Lender shall not be required to
disburse such Loan to Borrower.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Agreement and make the Loan,
Borrower represents and warrants as follows:
Section 5.1 Existence and Standing.
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(a) Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Florida, is qualified to do
business and in good standing under the laws of each other jurisdiction in which
it conducts its business, and has all requisite power and authority, corporate
or otherwise, to conduct its business, to own its properties and to execute and
deliver, and to perform all of its obligations under, this Agreement, the Note,
the Pledge Agreement, the Warrant Agreement and all other Loan Documents.
(b) Each of I-Link and FTI is a corporation duly incorporated, validly
existing and in good standing under the laws of its state of incorporation, is
qualified to do business and in good standing under the laws of each other
jurisdiction in which it conducts its business, and has all requisite power and
authority, corporate or otherwise, to conduct its business, to own its
properties and to execute and deliver, and to perform all of its obligations
under, each Loan Document to which it is a party.
Section 5.2 Authorizations, Compliance with Laws. The execution,
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delivery and performance by each of Borrower, I-Link and FTI of each Loan
Document to which it is a party, and of each other document required to be
executed and delivered by it pursuant to this Agreement or any other Loan
Document, have been duly authorized by all necessary corporate action and do not
and will not (i) violate (A) any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to Borrower, I-Link or FTI or (B) any provision of the
Certificate of Incorporation or By-laws of Borrower, I-Link or FTI; or (ii)
result in a breach of or constitute a default under any agreement or instrument
to which Borrower, I-Link or FTI is a party or by which any of their properties
may be affected; or (iii) result in the creation of a
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lien, charge or encumbrance of any nature upon Borrower's, I-Link's or FTI's
properties or assets other than as contemplated by this Agreement.
Section 5.3 Financial Statements. Borrower has delivered to Lender true
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and complete copies of (a) the audited consolidated financial statements of
Borrower for the fiscal years ended December 31, 1996, and December 31, 1995,
and (b) the unaudited consolidated financial statements of Borrower as of March
31, 1997, and for the three month period then ended (the "Financial
Statements"). The Financial Statements are true and complete in all material
respects (including, without limitation, a disclosure of all material contingent
liabilities) and present fairly the financial condition and results of
operations of Borrower and its subsidiaries, as of the dates and for the periods
indicated and have been prepared in accordance with generally accepted
accounting principles, consistently applied, subject in the case of statements
for interim periods to normal year-end adjustments and the absence of footnotes.
Section 5.4 Capitalization. All of the issued and outstanding capital
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stock of Borrower has been duly and validly issued, and is fully paid and
nonassessable. All of the issued and outstanding capital stock of each of I-
Link and FTI has been duly and validly issued, and is fully paid and
nonassessable and is free and clear of any liens, security interests or other
claims or encumbrances, except those granted to Lender pursuant to the terms of
this Agreement and the other Loan Documents. Except as set forth on Schedule
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5.4 attached hereto, neither Borrower nor any other person has any commitment or
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obligation, either firm or conditional, to issue, deliver, purchase or sell,
under any offer, option agreement, bonus agreement, purchase plan, incentive
plan, compensation plan, warrant, conversion rights, contingent share agreement,
stockholders agreement, partnership agreement or otherwise, any capital stock or
other equity securities or securities convertible into shares of capital stock
or other equity securities.
Section 5.5 No Consent. No authorization, consent, approval, license,
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exemption of or filing or registration with any court or governmental department
or agency or any other person is or will be necessary for the valid execution,
delivery and performance by Borrower, I-Link and FTI of this Agreement, the
Note, the Pledge Agreement, the Guaranty, the Security Agreement, the Warrant
Agreement or any other document required to be executed and delivered by
Borrower, I-Link or FTI pursuant to this Agreement.
Section 5.6 Binding Obligations. This Agreement, the Note, the Pledge
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Agreement, the Guaranty, the Security Agreement, the Warrant Agreement and all
other documents required to be executed and delivered by Borrower, I-Link and
FTI pursuant to this Agreement have been executed and delivered by a duly
authorized officer of Borrower,
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I-Link or FTI and constitute legal, valid and binding obligations of Borrower,
I-Link and FTI, enforceable in accordance with their respective terms.
Section 5.7 Litigation. There are no actions, suits or proceedings
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pending, or, to the knowledge of Borrower, threatened against or affecting
Borrower, I-Link or FTI or any of their properties before any court or
governmental department or agency which materially adversely affects the
transactions contemplated by this Agreement or which could have a material
adverse effect on the business, properties, prospects, operation or condition
(financial or otherwise) of Borrower, I-Link or FTI.
Section 5.8 No Default. Neither Borrower nor I-Link nor FTI is in
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material default in the performance, observance or fulfillment of any of the
obligations or conditions contained in any material agreement or instrument to
which it is a party, nor with respect to any order, judgment, writ, injunction
or decree of any court, governmental authority or arbitration board.
Section 5.9 Compliance with Laws. Each of Borrower, I-Link and FTI has
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complied and is in compliance in all material respects with all applicable
federal, state and local laws. Each of Borrower, I-Link and FTI has obtained
all necessary licenses and permits required for the conduct of its business and
operations or such licenses and permits have been applied for and are now being
diligently pursued.
Section 5.10 Taxes. Except as set forth on Schedule 5.10 attached
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hereto, each of Borrower, I-Link and FTI has filed all tax returns and reports
(federal, state and local) required to be filed by it, and has paid all taxes
shown thereon, including interest and penalties, and all assessments received by
it (except to the extent that the same are being contested in good faith by
appropriate proceedings diligently prosecuted and as to which adequate reserves
have been set aside on the books of Borrower, I-Link or FTI, as appropriate, in
conformity with generally accepted accounting principles).
Section 5.11 Title to Properties. Each of Borrower, I-Link and FTI has
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good and marketable title to all of its property and assets and valid and
enforceable leasehold interests in the property which it holds under lease, all
such property, assets and leasehold interests being free and clear of any and
all mortgages, deeds of trust, assignments, liens, security interests, charges,
encumbrances or adverse claims of any nature whatsoever, and no mortgages, deeds
of trust, financing statements or other evidences of security interests covering
all or any of the aforesaid property are on file among the records of any public
office. Each of Borrower, I-Link and FTI owns or possesses the valid right to
use all the patents, patent applications, patent and know-how licenses,
inventions, technology, permits, trademark registrations and applications,
trademarks, service marks, trade names, copyrights,
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product designs, applications, formulae, processes, circulation, and other
subscriber lists, industrial property rights and licenses and rights in respect
of the foregoing used or necessary for the conduct of its business
(collectively, "proprietary rights"). Borrower is not aware of any existing or
threatened infringement or misappropriation of (a) any such proprietary rights
of others by Borrower or any of its subsidiaries or (b) any proprietary rights
of Borrower or any of its subsidiaries by others.
Section 5.12 Absence of Undisclosed Liabilities. Except for (i)
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obligations under the Loan Documents, and (ii) liabilities incurred in the
ordinary course of business (other than for borrowed money), neither Borrower,
nor I-Link nor FTI has any material liabilities or obligations of any nature,
whether accrued, absolute, contingent or otherwise.
Section 5.13 Solvency. Each of Borrower, I-Link and FTI has received, or
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has the right to receive, consideration which is the reasonable equivalent value
of the obligations and liabilities that it has incurred to Lender. Neither
Borrower, nor I-Link nor FTI is insolvent as defined in Section 101 of Title 11
of the United States Code or any applicable state insolvency statute, nor, after
giving effect to the consummation of the transactions contemplated herein, will
Borrower, I-Link or FTI be rendered insolvent by the execution and delivery of
this Agreement, the Note or the other Loan Documents to Lender. Neither
Borrower, nor I-Link nor FTI is engaged, and is not about to engage, in any
business or transaction for which the assets retained by it shall be an
unreasonably small capital, taking into consideration the obligations to Lender
incurred hereunder and under the Loan Documents. Neither Borrower, nor I-Link
nor FTI intends to, nor believes that it will, incur debts beyond its ability to
pay them as they mature.
Section 5.14 Material Misstatement. No statement made herein or in any
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other Loan Document or information, exhibit or report furnished by Borrower, I-
Link or FTI to Lender in connection with this Agreement or its negotiation,
contains any material misstatement of fact or omits to state a material fact or
any fact necessary to make the foregoing not misleading.
ARTICLE VI. COVENANTS OF BORROWER
Section 6.1 Affirmative Covenants. So long as the Note shall remain
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unpaid and this Agreement shall not have been terminated, Borrower hereby agrees
that it will, and that it will cause each of its subsidiaries to, unless Lender
shall otherwise consent in writing:
(a) Payment of Obligations. Pay punctually and discharge when due:
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(i) all indebtedness heretofore or hereafter incurred; (ii) all taxes,
assessments and governmental charges or levies imposed upon it or its income or
profits, or upon any
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properties belonging to it; (iii) all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like persons which, if
unpaid might become a lien or charge upon the property of Borrower or such
subsidiary; provided that this covenant shall not require the payment of any of
the matters set forth in (i), (ii) and (iii) above if the same shall be
contested in good faith and by proper proceedings diligently pursued and as to
which adequate reserves have been set aside on the books of Borrower or such
subsidiary in accordance with generally accepted accounting principles.
(b) Preservation of Existence. Preserve and maintain its respective
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corporate existence, and all material rights, franchises, licenses and
privileges used or useful in the operation of its business.
(c) Maintenance of Properties. Maintain and preserve all of its
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properties necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(d) Compliance with Laws. Comply in all material respects with the
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requirements of all applicable laws, rules, regulations and orders of any
governmental authority.
(e) Maintenance of Insurance. Maintain with responsible and reputable
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insurance companies insurance policies on all of its properties and covering
such risks, including public liability and workers' compensation, in such
amounts as are usually carried by companies engaged in similar businesses and
owning similar properties as Borrower or its subsidiaries, and promptly upon
execution thereof provide to Lender copies of all such policies and any riders
or amendments thereto; the policies of insurance required hereunder shall name
Lender as an additional loss payee or additional insured, as applicable, and
shall provide that Lender shall receive at least thirty days written notice
prior to the cancellation, termination or alteration of any such policy.
(f) Operations in Ordinary Course. Continue to operate its business
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in the ordinary course.
(g) Perfection of Liens. Do all things requested by Lender to
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preserve and perfect as first liens and security interests the liens and
security interests of Lender arising pursuant to the Security Agreement, the
Pledge Agreement or any other agreement required hereunder.
(h) Governmental Approval. If counsel to Lender reasonably determines
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that the consent of the Federal Communications Commission or any other federal,
state or
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local governmental or licensing authority is required in connection with the
execution, delivery and performance of this Agreement, the Note, the Pledge
Agreement, the Guaranty, the Security Agreement, the Warrant Agreement or any
other document delivered to Lender in connection herewith or therewith or as a
result of any action which may be taken pursuant hereto or thereto, then
Borrower, at its sole cost and expense, agrees to use its best efforts to secure
such consent and to cooperate with Lender in any action commenced by Lender to
secure such consent.
(i) Agreements. Comply with its obligations under the Loan Documents.
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(j) Information and Inspection. Furnish to Lender from time to time,
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upon request, full information pertaining to any covenant, provision or
condition hereof, or to any matter connected with its books, records,
operations, financial condition, properties, activities or business. At all
reasonable times, Borrower shall permit any authorized representatives
designated by Lender to visit and inspect any of the properties of Borrower or
any of its subsidiaries and its books and records, and to take extracts
therefrom and make copies thereof, and to discuss Borrower's and its
subsidiaries' affairs, finances and accounts with the management and independent
accountants of Borrower.
Section 6.2 Negative Covenants. So long as the Note shall remain unpaid
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and this Agreement shall not have been terminated, Borrower hereby agrees that
it will not, and that it will not permit any of its subsidiaries to, without
Lender's prior written approval:
(a) Indebtedness. Create or incur, assume or suffer to exist any
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indebtedness, obligation or liability (or guaranty the indebtedness, obligation
or liability of any other person), whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, except for: (i)
indebtedness evidenced by the Note; (ii) indebtedness (other than for borrowed
money) incurred in the ordinary course of business, and (iii) obligations or
liabilities arising under the Loan Documents.
(b) Liens. Create, assume or suffer to exist, directly or indirectly,
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any security interest, mortgage, deed of trust, pledge, lien, charge or other
encumbrance, of any nature whatsoever upon any of its properties or assets, now
owned or hereafter acquired, excluding, however, from the operation of this
covenant:
(i) any security interest or lien created pursuant to or in
connection with this Agreement or securing the Loan;
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(ii) liens for taxes or assessments either not delinquent or
the validity of which are being contested in good faith by appropriate legal or
administrative proceedings and as to which adequate reserves shall have been set
aside on its books, in conformity with generally accepted accounting principles;
(iii) materialmen's, mechanics', carriers', workmen's,
repairmen's, warehousemen's or other like statutory liens arising in the
ordinary course of business and either not yet due and payable or being
contested in good faith by appropriate legal proceedings and as to which
adequate reserves shall have been set aside on its books, in conformity with
generally accepted accounting principles;
(iv) deposits or pledges to secure payment of workers'
compensation, unemployment insurance or other social security benefits or
obligations; or
(v) any judgment lien, singly or aggregated with other
judgment liens, in an amount less than $25,000, unless the judgment it secures
shall not, within thirty days after the entry thereof, have been discharged,
vacated, reversed, or execution thereof stayed pending appeal, or shall not have
been discharged, vacated or reversed within thirty days after the expiration of
any such stay.
(c) Disposition of Assets. Sell, transfer, lease or otherwise dispose
---------------------
of any of its assets or properties (including without limitation the sale or
other disposition of the capital stock or other equity interests in any
subsidiary) other than sales of assets in the ordinary course of business and
the disposition of obsolete or other assets which the board of directors of
Borrower determines in good faith are no longer useful in the operations of
Borrower's or any of its subsidiaries' business.
(d) Merger; Acquisition; Joint Ventures; Liquidation. Enter into any
------------------------------------------------
consolidation or merger with, or into any acquisition of all or substantially
all of the properties or assets of any person or entity; or enter into any
partnership or joint venture with any other person; or dissolve or liquidate.
(e) Transfer or Issuance of Shares. Issue or permit the transfer of
------------------------------
any shares of the capital stock or other equity interests of Borrower or any
subsidiary, or any options, warrants, convertible securities or other rights to
purchase Borrower's or any subsidiary's stock or other equity interests except
pursuant to the Loan Documents, other than grants of employee stock options
covering less than 50,000 shares per grant and 1,000,000 shares in the aggregate
pursuant to stock option or other employee benefit arrangements acceptable to
Lender.
- 13 -
(f) Change of Business. Change, in any material respect, the nature
------------------
or character of its business as currently conducted, or engage in any activity
not reasonably related to such business.
(g) Remove Assets. Permit I-Link or FTI to remove any of its assets
-------------
to a jurisdiction in which no financing statement on Form UCC-1 has been filed
by Lender with respect to such assets.
(h) Distributions or Dividends. Declare or make, directly or
--------------------------
indirectly, any payment or distribution to any of the shareholders of Borrower,
or incur any liability for the purchase, acquisition, redemption or retirement
of any capital stock of Borrower or as a dividend, return of capital or other
payment or distribution of any kind to any shareholder of Borrower or any other
affiliate of Borrower (other than any stock dividend or stock split or similar
distribution payable only in capital stock of Borrower) in respect of Borrower's
capital stock.
(i) Transactions with Affiliates. Enter into any transaction or
----------------------------
agreement, other than the Loan Documents, with any affiliate of Borrower or any
affiliate of any shareholder of Borrower unless the terms of such transaction or
agreement are fair and reasonable and no more onerous to Borrower or such
subsidiary than could be obtained from an independent third party in an arms-
length transaction.
(j) Contracts. Enter into any contract or commitment except for
---------
contracts involving aggregate payments of less than $50,000 individually or
$250,000 in the aggregate and contracts which can be terminated without penalty
on thirty days notice or less, or amend or terminate any material contract (or
waive any substantial right thereunder), or incur any obligation (including
obligations relating to the borrowing of money or guarantee of indebtedness).
(k) Adverse Change. Suffer any material adverse change in the
--------------
business, assets, properties, prospects or condition (financial or otherwise) of
Borrower or any subsidiary, or any damage, destruction or loss affecting any
assets used or useful in the conduct of the business of Borrower or any
subsidiary.
(l) Employee Compensation. Suffer any material increase in excess of
---------------------
the reasonable range in the telecommunications industry for similarly situated
companies in the same or similar markets in compensation payable or to become
payable to any employees, or any bonus payment made or promised to any employee,
or any material change in personnel policies, insurance benefits or other
compensation arrangements affecting any employees,
- 14 -
provided that nothing in this clause shall be construed to limit or restrict the
commission compensation of employees who may be participating in I-Link's multi-
level marketing program.
(m) Cancellation of Debts. Cancel any material debts owed to or
---------------------
claims held by Borrower or any subsidiary.
(n) Investments. Purchase or otherwise acquire, hold or invest in any
-----------
stock or other securities or evidences of indebtedness of, or any interest or
investment in, or make or permit to exist any loans or advances to, any other
person, except:
(i) direct obligations of the United States Government
maturing within one year;
(ii) certificates of deposit of a member bank of the Federal
Reserve System having capital, surplus and undivided profits in excess of
$2,000,000,000;
(iii) any investment in commercial paper which at the time
of such investment is assigned the highest quality rating in accordance with the
rating systems employed by either Moody's Investors Service, Inc. or Standard &
Poor's Corporation;
(iv) money market funds; and
(v) investments in its existing subsidiaries.
(o) Write-Down. Suffer any significant write-down of the value of any
----------
assets or any significant write-off as uncollectible of any accounts receivable
without the prior written consent of Lender except and as required by generally
accepted accounting principles as required to present accurate financial
information on Borrower and its subsidiaries.
(p) Rights. Transfer or grant any right under, or enter into any
------
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, service mark, trade name, franchise, or similar right, or
modify any existing right relating to Borrower or any of its subsidiaries.
(q) Agreements. Terminate, amend or commit any material breach or
----------
default under the Loan Documents.
- 15 -
(r) Subsidiaries. Create or acquire any subsidiary unless Lender
------------
shall have approved such action in advance and Borrower shall have taken all
actions required by Lender to grant Lender a first priority security interest in
all of the issued and outstanding stock or other equity interests of such
subsidiary and caused such subsidiary to execute and deliver to Lender a
guaranty and security agreement in substantially the form of the Guaranty and
Security Agreement. Borrower acknowledges and agrees that until such time as
such security interest is granted and perfected, Lender shall have an equitable
lien in the stock of any subsidiary created or acquired by Borrower.
Section 6.3 Reporting Requirements. So long as the Note shall remain
----------------------
unpaid and this Agreement shall not have been terminated, Borrower shall, unless
Lender shall otherwise consent in writing, furnish to Lender:
(a) Default Certificate. As soon as possible and in any event within
-------------------
five business days after the occurrence of each Event of Default (as defined in
Section 7.1) of which Borrower has knowledge, the statement of the President of
Borrower setting forth details of such Event of Default and the action which
Borrower proposes to take with respect thereto.
(b) Financial Statements. Monthly unaudited, unconsolidated financial
--------------------
statements for the Borrower, I-Link and FTI within thirty days after the end of
each month and quarterly unaudited consolidated and consolidating financial
statements of the Borrower within forty-five days after the end of each fiscal
quarter (or such longer period, not to exceed five calendar days, as shall be
permitted by the U.S. Securities and Exchange Commission ("SEC") for the timely
filing of the quarterly report on Form 10-Q pursuant to Rule 12b-25 of the SEC),
each such monthly and quarterly financial statement to be certified by the chief
financial officer of Borrower; within ninety days after the end of each fiscal
year of Borrower (or such longer period, not to exceed fifteen calendar days, as
shall be permitted by the SEC for the timely filing of the quarterly report on
Form 10-K pursuant to Rule 12b-25 of the SEC), a copy of the audited
consolidated financial statements for such year for Borrower and its
subsidiaries, including therein a consolidated balance sheet as of the end of
such fiscal year, consolidated statements of income and expense of Borrower for
such fiscal year, and a consolidated statement of cash flow of Borrower and its
subsidiaries for such fiscal year, in each case prepared by an independent
public accountant of recognized standing acceptable to Lender. Borrower shall
deliver to Lender with each set of monthly financial statements a calculation of
Adjusted Cash Flow (as that term is defined in Section 6.4(a) below) for such
month.
(c) Securities Filings. Copies of all reports and filings made by
------------------
Borrower or any of its subsidiaries with the Securities and Exchange Commission
or any securities
- 16 -
exchange on which any of Borrower's or such subsidiary's securities are listed
or traded and of all mailing or distributions to Borrower's shareholders.
(d) Notice of Litigation. Promptly give written notice of all
--------------------
actions, suits and proceedings before any court or governmental agency, domestic
or foreign, which may be commenced or threatened against Borrower or any of its
subsidiaries in which the claim involved is $5,000 or more and of any other
matter of the type described in Section 5.7.
(e) Budget. An annual budget within thirty days before the beginning
------
of each fiscal year of Borrower. Such budget shall be satisfactory in form and
substance to Lender.
(f) Other Information. Such other information respecting the
-----------------
business, properties, operations or the condition, financial or otherwise, of
Borrower or any of its subsidiaries as Lender may from time to time reasonably
request.
Section 6.4 Financial Covenants.
-------------------
(a) Adjusted Cash Flow. Borrower shall not permit Adjusted Cash Flow,
------------------
as defined below, for any period listed in Column A below to be less than the
amount listed across from such period in Column B below:
Column A Column B
- -------- -------------
June 1, 1997, through June 30, 1997 ($1,500,000)
July 1, 1997, through July 31, 1997 ($1,000,000)
August 1, 1997, through August 31, 1997 ($900,000)
September 1, 1997, through September 30, ($500,000)
1997
October 1, 1997, though December 31, $ 0
1997
January 1, 1998, through March 31, 1998 $1,000,000
April 1, 1998, through June 30, 1998 $1,000,000
- 17 -
Column A Column B
- -------- -------------
July 1, 1998, through September 31, 1998 $1,000,000
"Adjusted Cash Flow", for purposes of this Section 6.4(a), means for any period
total consolidated revenues of Borrower and its subsidiaries for such period
minus the sum of (i) all operating expenses (excluding depreciation and
amortization) incurred in such period, (ii) all capital expenditures made in
such period, (iii) all payments of principal made on any indebtedness (including
capital leases and financing leases) in such period, (iv) all cash interest
expense paid in such period and (v) all taxes paid or accrued in such period, in
each case as determined by generally accepted accounting principles,
consistently applied.
(b) Working Capital. Borrower shall not permit its consolidated
---------------
current liabilities (not including the liability arising hereunder and evidenced
by the Note) at any time to exceed its consolidated current assets by an amount
in excess of $1,000,000, in each case as determined by generally accepted
accounting principles, consistently applied.
ARTICLE VII. EVENTS OF DEFAULT
Section 7.1 Events of Default. Under this Agreement, an Event of
-----------------
Default shall be any of the following:
(a) Borrower shall fail to pay any installment of principal or
interest on the Note, or any other obligation to Lender when due whether at the
due date thereof or by acceleration or otherwise, and, in the case of any
installment of interest, such default shall remain unremedied for a period of
three days; or
(b) The security interest or lien of Lender in any material portion of
the collateral covered by the Security Agreement or Pledge Agreement or any
other Loan Document shall at any time cease to be a first priority, perfected
security interest or lien or shall not constitute a legal, valid and enforceable
security interest or lien; or
(c) Any representation or warranty made by Borrower, I-Link or FTI (or
any of their officers) herein, in the Pledge Agreement, the Warrant Agreement,
the Guaranty, the Security Agreement or any other Loan Document or in any
certificate, agreement, instrument or statement contemplated by or made or
delivered pursuant to or in connection with this Agreement or any other Loan
Document shall prove to have been incorrect in any material respect when made or
deemed made; or
(d) Borrower, I-Link or FTI shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement, the Note, the Guaranty,
the Security Agreement, the Pledge Agreement, the Warrant Agreement or any other
Loan
- 18 -
Document, and any such failure remains unremedied for thirty days after the
occurrence of such failure; or Borrower shall fail to amend its Articles of
Incorporation by no later than July 31, 1997, to increase its authorized capital
to cover the number of shares issuable upon the exercise of the warrants granted
pursuant to the Warrant Agreement or, shall fail to reserve the appropriate
number of shares of such capital stock for issuance upon exercise of such
warrants; or
(e) Borrower, I-Link or FTI shall fail to pay any indebtedness for
borrowed money owing by Borrower, I-Link or FTI or any interest or premium
thereon, when due, whether such indebtedness shall become due by scheduled
maturity, by required prepayment, by acceleration, by demand or otherwise, or
Borrower, I-Link or FTI shall fail to perform any term, covenant or agreement
under any agreement or instrument evidencing or securing or relating to any such
indebtedness owing by Borrower, I-Link or FTI if the effect of such failure is
to accelerate, or to permit the holder of such indebtedness to accelerate, the
maturity of such indebtedness; or
(f) Either (i) Borrower, I-Link or FTI shall fail to pay its debts as
they mature in the ordinary course of business; or (ii) Borrower, I-Link or FTI
shall file a petition commencing a voluntary case concerning it under any
Chapter of Title 11 of the United States Code entitled "Bankruptcy"; or (iii)
Borrower, I-Link or FTI shall apply for or consent to the appointment of any
receiver, trustee, custodian or similar officer for it or for all or any
substantial part of its property; or (iv) such receiver, trustee, custodian or
similar officer shall be appointed without the application or consent of
Borrower, I-Link or FTI and such appointment shall continue undischarged for a
period of thirty days; or (v) an involuntary case is commenced against Borrower,
I-Link or FTI under any Chapter of the aforementioned Title 11 and an order for
relief under such Title 11 is entered or the petition commencing the case is
controverted but is not dismissed within thirty days after the commencement of
the case; or (vi) Borrower, I-Link or FTI shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any jurisdiction; or (vii)
any such proceeding shall be instituted against Borrower, I-Link or FTI and
shall remain undismissed for a period of thirty days; or (viii) Borrower, I-Link
or FTI shall take any action for the purpose of effectuating any of the
foregoing; or
(g) Any court, government, or government agency shall condemn, seize
or otherwise appropriate or take custody or control of all or a substantial
portion of the property or assets of Borrower, I-Link or FTI; or
- 19 -
(h) Any money judgment, writ or warrant of attachment, or similar
process involving, either individually or in the aggregate, an amount in excess
of $25,000, and in either case not adequately covered by insurance as to which
the insurance company has acknowledged coverage, shall be entered or filed
against Borrower or any of its subsidiaries or its assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty days or in
any event later than five days prior to the date of any proposed sale
thereunder; or
(i) Any person (or group of persons) is or becomes the "beneficial
owner" (within the meaning of Rules 13d-3 and 13d-5 under the federal Securities
Exchange Act of 1934, as amended), directly or indirectly, of a percentage of
the common voting stock of Borrower greater than 25%; or (ii) Borrower shall
cease or fail to own, directly or indirectly, beneficial and legal title to all
of the issued and outstanding capital stock of each of I-Link and FTI; or (iii)
John W. Edwards shall cease for any reason to be the President and Chief
Executive Officer of Borrower; or
(j) Any material adverse effect upon or change in (i) the properties,
assets, business, operations, financial condition, prospects, liabilities or
capitalization of Borrower or any of its subsidiaries or on the ability of
Borrower or any of its subsidiaries to conduct its business, (ii) the ability of
Borrower, I-Link, FTI or any other party to a Loan Document (other than Lender)
to perform its obligations hereunder or under any other Loan Document to which
it is a party, (iii) the validity or enforceability of this Agreement, the Note
or any other Loan Document, (iv) the rights or remedies of Lender under this
Agreement, the Note, any other Loan Document or at law or in equity or (v) the
value of any material collateral granted to Lender pursuant to any Loan Document
shall occur.
Section 7.2 Effect of Event of Default. Should any Event of Default
--------------------------
occur, Lender may at its option by written notice to Borrower declare the entire
unpaid principal amount of the Note, together with all unpaid interest and all
other amounts payable under this Agreement and every other obligation of
Borrower to Lender, immediately due and payable, whereupon the Note and all such
obligations shall become and be forthwith due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by Borrower, anything contained herein or in the Note or in such other
note or evidence of indebtedness to the contrary notwithstanding; provided,
--------
however, that in case of an Event of Default under Section 7.1(f), all the
- -------
obligations of Borrower under this Agreement and the Note shall become
immediately due and payable as of the date of any such Event of Default
regardless of the cause of such Event of Default and without any notice to
Borrower required from Lender. Lender shall have, in addition to all other
rights and remedies allowed by law, the rights and remedies of a secured party
under the Uniform Commercial Code and, without limiting the generality of the
foregoing, the rights and
- 20 -
remedies provided for in the Guaranty, the Security Agreement, the Pledge
Agreement and any other Loan Document, which provisions are hereby incorporated
by reference.
ARTICLE VIII. MISCELLANEOUS
Section 8.1 No Waiver; Cumulative Remedies. No failure or delay on the
------------------------------
part of Lender in exercising any right, power or remedy hereunder shall operate
as a waiver, nor shall any single or partial exercise of any such right, power
or remedy hereunder operate as a waiver. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 8.2 Amendments. No amendment, modification, termination or
----------
waiver of any provision of this Agreement, the Note or any other Loan Document,
nor consent to any departure by Borrower, I-Link or FTI therefrom, shall in any
event be effective unless in writing, signed by Lender and then only in the
specific instance and for the specific purpose for which given. No notice to or
demand on Borrower, I-Link or FTI in any case shall entitle it to any other or
further notice or demand in similar or other circumstances except as expressly
provided herein or in another Loan Document.
Section 8.3 Address for Notices. All notices and other communications
-------------------
under this Agreement shall be in writing and shall be delivered in person or by
mailing a copy thereof by registered or certified U.S. mail, return receipt
requested, to the applicable party at the addresses indicated below:
If to Borrower: Medcross, Inc.
13751 South Wadsworth Park Drive
Suite 200
Draper, Utah 84020
Attention: John W. Edwards, President
If to Lender: Winter Harbor, L.L.C.
11400 Skipwith Lane
Potomac, Maryland 20854
Attention: Ralph W. Hardy, Jr.
or at such other address as may be designated by either party in a written
notice to the other complying as to delivery with the terms of this Section.
All such notices and other communications shall be effective when deposited in
the mails.
- 21 -
Section 8.4 Expenses. Borrower agrees to pay on demand all costs and
--------
expenses incurred by Lender directly in the enforcement of this Agreement, the
Note, the Guaranty, the Security Agreement, the Pledge Agreement and other
instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of any attorney to whom the Note is
referred for collection (whether or not litigation is commenced) or for
representation out of court, in trial, on appeal or in proceedings under any
bankruptcy or insolvency law or otherwise. In addition, Borrower shall pay any
and all taxes and fees payable or determined to be payable in connection with
the execution, delivery or recordation of any instruments and documents to be
delivered hereunder. In addition, Borrower agrees to pay (i) all the costs and
expenses of Lender in connection with the negotiation, preparation and execution
of the Loan Documents and all the costs of furnishing all opinions by counsel
for Borrower, and of Borrower's performance of and compliance with all
agreements and conditions contained herein and in the other Loan Documents on
its part to be performed or complied with, including, without limitation,
confirming compliance with environmental and insurance requirements; (ii) the
fees, expenses and disbursements of counsel to Lender in connection with the
negotiation, preparation, execution and administration of the Loan Documents and
the Loan and any consents, amendments, waivers or other modifications hereto or
thereto; and (iii) all the costs and expenses of creating and perfecting liens
in favor of Lender pursuant to any Loan Document.
Section 8.5 Binding Effect; Assignment. This Agreement shall become
--------------------------
effective when executed and thereafter shall be binding upon and inure to the
benefit of Borrower, Lender and their respective successors and assigns, except
that Borrower shall not have the right to assign any rights or obligations
hereunder without the prior written consent of Lender. Lender shall be
permitted to assign, without Borrower's consent, all or any portion of Lender's
rights and interests hereunder and under each other document executed in
connection with this Agreement.
Section 8.6 Governing Law. This Agreement, the Note, the Pledge
-------------
Agreement, the Guaranty, the Security Agreement and related documents shall be
governed by, and construed in accordance with, the laws of the State of Delaware
with the exception of its conflicts of laws provisions; provided that the effect
of any recordation shall be determined by the State thereof.
Section 8.7 Severability of Provisions. Any provision of this
--------------------------
Agreement, the Note, the Pledge Agreement, the Guaranty or the Security
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions or affecting the
validity or enforceability of any provisions in any other jurisdiction.
- 22 -
Section 8.8 Headings. Article and Section headings in this Agreement
--------
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
Section 8.9 Rights Affected by Extensions. The rights of Lender and its
-----------------------------
assigns shall not be impaired by any indulgence, release, renewal, extension or
modification which Lender may grant with respect to the indebtedness or any part
thereof, or with respect to the collateral or with respect to any endorser,
guarantor, or surety without notice or consent of Borrower or any endorser,
guarantee or surety.
Section 8.10 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made in this Agreement and in any agreements,
documents or certificates delivered pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the Note and the making of the Loan
hereunder and continue in full force and effect, as of the respective dates as
of which they were made, until all of the obligations of Borrower to Lender
hereunder have been paid in full.
Section 8.11 Further Assurances. From time to time, Borrower shall
------------------
execute and deliver, or cause to be executed and delivered, to Lender such
additional documents as Lender may reasonably require to carry out the purposes
of this Agreement or any of the documents entered into in connection herewith,
or to preserve and protect the rights of Lender hereunder or thereunder.
Section 8.12 Indemnification. Borrower hereby indemnifies and holds
---------------
harmless Lender and its partners, directors, officers, shareholders, employees,
agents, counsel, subsidiaries and affiliates (the "Indemnified Persons") from
and against any and all losses, liabilities, obligations, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against any
Indemnified Person in any way relating to or arising out of this Agreement, the
other Loan Documents, the documents entered into in connection herewith or
therewith, or any of them or any of the transactions contemplated hereby or
thereby, the making of the Loan, the use of the proceeds of the Loan or the
ownership or operation of the business or assets of Borrower or any of its
subsidiaries; provided, however, that Borrower shall not be liable to any
-------- -------
Indemnified Person, if there is a judicial determination that such losses,
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of such Indemnified Person.
Section 8.13 Jury Trial Waiver. EACH OF LENDER AND BORROWER HEREBY
-----------------
AGREES TO WAIVE ITS RESPECTIVE RIGHT TO A JURY TRIAL OF ANY
- 23 -
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE
LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION AND THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, REPLACEMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, THE LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THE LOAN.
Section 8.14 Maximum Interest. Lender and Borrower intend that this
----------------
Agreement and the other Loan Documents conform to all applicable usury laws.
Accordingly, no provisions of the Loan Documents shall require the payment or
permit the collection of interest in excess of the maximum rate permitted by
applicable law ("Maximum Rate"), or obligate Borrower to pay any taxes,
assessments, charges, insurance premiums or other amounts which are held to
constitute interest to the extent that such payments, when added to the other
obligations under the Loan Documents, would be held to constitute contracting
for, or the payment by Borrower of, interest at a rate greater than the Maximum
Rate. Lender and Borrower further agree that:
(i) if any excess of interest in such respect is herein
or in any such other instrument provided for, or shall be adjudicated to be so
provided for herein or in any such instrument, the provisions of this subsection
8.14 shall govern, and neither Borrower nor its successors or assigns shall be
obligated to pay the amount of such interest to the extent it is in excess of
the Maximum Rate;
(ii) if at any time the amount of interest under any of
the Loan Documents for a calendar year exceeds the Maximum Rate had the Maximum
Rate at all times been in effect, the interest chargeable under any such Loan
Document shall be limited to the amount of interest that could have been charged
if the Maximum Rate had at all times been in effect, but any subsequent
reductions in the interest due shall not reduce the rate of interest chargeable
under any such Loan Document below the Maximum Rate until the total amount of
interest accrued under any such Loan Document equals the amount of interest that
would have accrued if the interest provided for in any such Loan Document had at
all times been in effect and collectible;
(iii) if the maturity of any Loan Document is accelerated
for any reason, or in the event of any prepayment by Borrower, or in any other
event, earned interest may never include more than the Maximum Rate, computed
from the date of disbursement of the funds evidenced by such Loan Document until
payment, and any interest
- 24 -
otherwise payable under such Loan Document that is in excess of the Maximum Rate
shall be canceled automatically as of such acceleration or such other event and
(if theretofore paid) shall be credited against principal;
(iv) if it should be held that any interest payable or
chargeable under any Loan Document is in excess of the Maximum Rate, the
interest payable or chargeable under such Loan Document shall be reduced to the
maximum amount permitted by applicable federal or state law, whichever shall
permit the higher lawful interest, as construed by courts having jurisdiction
thereof; and
(v) the spreading, prorating and amortizing of interest
over the Maturity Date of the Loan Documents shall be allowed to the fullest
extent permitted by applicable law.
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be executed by their respective duly authorized officers as of the date first
above written.
MEDCROSS, INC.
By: /s/ John Edwards
----------------------------------
Name: John Edwards
--------------------------------
Title: President
-------------------------------
WINTER HARBOR, L.L.C.
By: First Media, L.P., its member
By: First Media Corporation, its
sole general partner
By: /s/ Ralph W. Hardy, Jr.
----------------------------------
Name: Ralph W. Hardy, Jr.
--------------------------------
Title: Secretary
-------------------------------
EXHIBIT 1
FORM OF NOTE
PROMISSORY NOTE
---------------
$2,000,000 June , 1997
--
FOR VALUE RECEIVED, the undersigned, MEDCROSS, INC., a Florida corporation
(the "Maker"), promises to pay to the order of WINTER HARBOR, L.L.C., a Delaware
limited partnership (the "Payee"), on or before October 15, 1998 (the "Maturity
Date"), the principal sum of $2,000,000, together with interest thereon as
provided herein. All capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Loan Agreement, as that term is
defined below.
ARTICLE IX. Interest. The unpaid principal balance of this Note shall bear
interest at the rates determined in accordance with the provisions of that
certain Loan Agreement dated as of June __, 1997, between the Maker and the
Payee (as the same may be amended, modified, extended or restated, the "Loan
Agreement"). Interest accrued hereunder shall be paid quarterly on the last
business day of each calendar quarter until all principal and interest hereunder
is paid in full at the repayment or maturity of the Loan.
ARTICLE X. Principal Repayment. The aggregate principal balance of this Note
shall be due and payable as provided in Section 1.4 of the Loan Agreement.
ARTICLE XI. Prepayments. This Note may be voluntarily prepaid in whole or in
part without premium or penalty at any time and from time to time; provided,
however, that each partial prepayment shall be in the aggregate principal amount
of not less than $100,000 or an integral multiple of $50,000 in excess thereof.
In making a prepayment in whole, the Maker shall pay all accrued interest
through the date of such prepayment. The Maker shall make a mandatory
prepayment of the outstanding principal amount of the Note together with all
accrued interest on and subject to the terms and conditions of the Loan
Agreement.
ARTICLE XII. Payment on Business Days. If any payment of principal or
interest on this Note shall become due on a Saturday, Sunday or public holiday,
such payment may be made on the next succeeding business day, and such extension
of time in such case shall be included in the computation of interest in
connection with such payment.
ARTICLE XIII. Form of Payment. All payments made pursuant to the terms of
this Note shall be made in lawful money of the United States of America and
shall be payable to the Payee at its
- 27 -
principal office located at 11400 Skipwith Lane, Potomac, Maryland 20854 or at
such other place as the Payee shall have designated to the Maker in writing.
ARTICLE XIV. Choice of Law. This Note shall be governed by and construed in
accordance with the laws of the State of Delaware with the exception of its
conflicts of laws provisions thereof.
ARTICLE XV. Events of Default. Upon the occurrence of any Event of Default,
Lender may at its option by written notice to Borrower declare the entire unpaid
principal amount of the Note, together with all unpaid interest and all other
amounts payable hereunder, immediately due and payable.
ARTICLE XVI. Collection Expenses. If at any time the indebtedness evidenced
by this Note is collected through legal proceedings or this Note is placed in
the hands of attorneys for collection, the Maker and each endorser of this Note
hereby jointly and severally agree to pay all costs and expenses (including
reasonable attorneys' fees) incurred by the holder of this Note in collecting or
attempting to collect such indebtedness.
ARTICLE XVII. Waivers. To the extent permitted by law, except as otherwise
provided herein or in the Loan Agreement, the Maker and each endorser of this
Note, and their respective heirs, successors, legal representatives and assigns,
hereby severally waive presentment; protest and demand; notice of protest,
demand, dishonor and nonpayment; diligence in collection, and any relief
whatever from the valuation or appraisement laws of any state.
IN WITNESS WHEREOF, the Maker has executed this Note as of the date and
year first above written.
MEDCROSS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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SCHEDULE 5.4
MEDCROSS, INC. CAPITALIZATION
Outstanding Shares & Unaffiliated Warrants/Options:
- --------------------------------------------------
Common Shares Outstanding 11,607,609
Conversion of Class C Preferred 6,046,800
Wilkes & Radulovic Options (I-Link Acquisition) 2,000,000
Commonwealth Warrants 750,000
JW Charles Warrants 331,126
Warrants to Settle JW Charles Action 175,000
Conversion of Class B Preferred 183,542
Cook Option 100,000
E&M RP Trust Warrants 80,000
Mandarino Warrants 40,000
Edwards Warrants (from loan) 25,000
Flury Warrants (from loan) 5,000
----------
21,344,007
Management/Employee/Director Options:
- ------------------------------------
1996 John Edwards Options (Exec Mgmnt) 1,250,000
1996 Ryser, Hardy, Flury Options (Exec Mgmnt) 750,000
1996 I-Link Employee Options 408,000
1997 I-Link Exec Mgmnt & Employee Options 2,350,000
Campbell, Little, McKillip Options (MLM Mgmnt) 350,000
1997 Director Options 120,000
Medcross 1995 Director Plan Options 190,000
Medcross 1995 ESOP 75,000
Medcross 1995 Employee Stock Purchase Plan 7,711
Joseph Cohen (Director) 64,000
----------
5,564,711
Acquisition:
- -----------
Family Telecommunications, Inc. 400,000
----------
400,000
TOTAL 27,308,718
==========
SCHEDULE 5.10
TAXES
Tax returns (federal, state and local) not filed, and taxes not paid, including
interest and penalties include the following:
1. Sales taxes relating to long distance services provided from
inception of Family Telecommunications, Inc. to current date:
approximately $100,000;
2. Federal and state income tax returns for Medcross, Inc. for the year
ended December 31, 1996 (properly extended): no tax due.