Exhibit 10.22
EXECUTION COPY
SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT (this "Agreement") is entered into
as of March 23, 2004 among TEAM HEALTH, INC., a Tennessee corporation (the
"Borrower"), the Subsidiaries of the Borrower listed on the signature pages
hereto and any future Subsidiary that becomes a party hereto (the "Subsidiary
Guarantors"; together with the Borrower, individually an "Obligor", and
collectively the "Obligors") and BANK OF AMERICA, N.A., in its capacity as
administrative agent (together with any successor appointed pursuant to Section
10.09 of the Credit Agreement described below, in such capacity, the
"Administrative Agent") for the lenders (the "Lenders") from time to time party
to the Credit Agreement described below.
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof (as amended, modified, extended, renewed or replaced from time to time,
the "Credit Agreement") among the Borrower, the Guarantors party thereto, the
Lenders and the Administrative Agent, the Lenders have agreed to make Loans and
issue Letters of Credit upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Loans and
to issue (or participate in) Letters of Credit under the Credit Agreement that
the Obligors shall have executed and delivered this Agreement to the
Administrative Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the jurisdiction applicable to the
affected Collateral (as hereinafter defined) (the "UCC") on the date
hereof are used herein as so defined: Accession, Account, As-Extracted
Collateral, Chattel Paper, Commercial Tort Claims, Commingled Goods,
Consumer Goods, Deposit Account, Documents Electronic Chattel Paper,
Equipment, Farm Products, Fixtures, General Intangible, Goods,
Instrument, Inventory, Investment Property, Letter-of-Credit Right,
Manufactured Home, Proceeds, Securities Entitlement, Securities
Account, Software, Standing Timber, Supporting Obligation and Tangible
Chattel Paper. For purposes of this Agreement, the term "Lender" shall
include any Affiliate of any Lender which has entered into a Swap
Contract permitted by Section 8.02(c)(v) of the Credit Agreement and/or
a Treasury Management Agreement with any Loan Party.
(b) In addition, the following terms shall have the
following meanings:
"Collateral": As defined in Section 2 hereof.
"Copyrights": The collective reference to (i) all copyrights
arising under the laws of the United States, any other country or any
political subdivision thereof, whether registered or unregistered and
whether published or unpublished (including, without limitation, those
listed in Schedule 6.24 to the Credit Agreement, all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right
to obtain all renewals thereof.
"Copyright Licenses": Any written agreement naming any Obligor
as licensor or licensee (including, without limitation, those listed in
Schedule 6.24 to the Credit Agreement, granting any right under any
Copyright, including, without limitation, the grant of rights to
manufacture, distribute, exploit and sell materials derived from any
Copyright.
"Excluded Property": As defined in Section 2 hereof.
"Intellectual Property": The collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Patents": The collective reference to (i) all letter patents
of the United States, any other country or any political subdivision
thereof, all reissues and extensions thereof and all goodwill
associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6.24 to the Credit Agreement, (ii)
all applications for letter patents of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof, including, without limitation, any of the foregoing referred
to in Schedule 6.24 to the Credit Agreement, and (iii) all rights to
obtain any reissues or extensions of the foregoing.
"Patent License": All agreements, whether written or oral,
providing for the grant by or to any Obligor of any right to
manufacture, use or sell any invention covered in whole or in part by a
Patent, including, without limitation, any of the foregoing referred to
in Schedule 6.24 to the Credit Agreement.
"Secured Obligations": The collective reference to all of the
Obligations, now existing or hereafter arising pursuant to the Loan
Documents and owing from any Loan Party to any Lender or the
Administrative Agent, whether primary, secondary, direct, contingent,
or joint and several, including, without limitation, all liabilities
arising under
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Swap Contracts permitted by Section 8.02(c)(v) of the Credit Agreement
and/or Treasury Management Agreements between any Loan Party and any
Lender or any Affiliate of a Lender and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing.
"Subsidiary Equity": With respect to each Obligor (i) 100% of
the issued and outstanding Capital Stock of each direct Domestic
Subsidiary and (ii) 65% (or such greater percentage that, (a) due to a
change in an applicable Law after the date hereof, could not reasonably
be expected to cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes
to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent or (b) could not reasonably be expected to cause any
material adverse tax consequences) of the issued and outstanding
Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital
Stock not entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) in each direct Foreign Subsidiary, including the
respective percentages of the Capital Stock of such Subsidiaries set
forth on Schedule 1(b)(ii) hereto and any other shares of Capital Stock
hereafter required to be pledged and delivered to the Administrative
Agent pursuant to Section 7.14 of the Credit Agreement, in each case
together with the certificates (or other agreements or instruments), if
any, representing such shares, and all options and other rights,
contractual or otherwise, with respect thereto, including, but not
limited to, the following:
(1) all shares or securities representing a
dividend thereon, or representing a distribution or return of
capital upon or in respect thereof, or resulting from a stock
split, revision, reclassification or other exchange therefore,
and any subscriptions, warrants, rights or options issued to
the holder thereof, or otherwise in respect thereof; and
(2) in the event of any consolidation or merger
involving the issuer thereof and in which such issuer is not
the surviving Person, all shares of each class of the Capital
Stock of the successor Person formed by or resulting from such
consolidation or merger.
"Trademarks": The collective reference to (i) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other source or
business identifiers, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith,
whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any
other country or any political subdivision thereof, or otherwise, and
all common-law rights related thereto, including, without limitation,
any of the foregoing referred to in permitted by Section 6.24 of the
Credit Agreement, and (ii) the right to obtain all renewals thereof.
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"Trademark License": Any agreement, whether written or oral,
providing for the grant by or to any Obligor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in permitted by Section 6.24 of the Credit Agreement.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Secured Obligations,
each Obligor hereby grants to the Administrative Agent, for the benefit of the
Lenders, a continuing security interest in, and a right to set off against, any
and all right, title and interest of such Obligor in and to the following
personal property of the Obligors (to the extent not constituting Excluded
Property (as defined herein)), whether now owned or existing or owned, acquired,
or arising hereafter (collectively, the "Collateral"):
(a) all Accounts;
(b) all cash and Cash Equivalents;
(c) all Chattel Paper;
(d) those certain Commercial Tort Claims of the Obligors
set forth on Schedule 2(d) attached hereto;
(e) all Deposit Accounts;
(f) all Documents;
(g) all Equipment;
(h) all Fixtures;
(i) all General Intangibles (including Intellectual
Property);
(j) all Instruments, including without limitation the
Instruments evidencing the Indebtedness described on
Schedule 2(j) and owing to such Obligor by the
issuers named therein, and all interest, cash,
Instruments and other property from time to time
received, receivable or otherwise distributed in
respect of or in exchange for any or all of the
Instruments evidencing the Indebtedness;
(k) all Inventory;
(l) all Investment Property;
(m) all Letter-of-Credit Rights;
(n) all Software;
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(o) all Subsidiary Equity;
(p) all Supporting Obligations;
(q) all Accessions; and
(r) Proceeds of any and all of the foregoing;
provided, however, the foregoing grant of a security interest shall be deemed
not to grant a security interest in any of the property described below (such
property being hereinafter referred to as "Excluded Property"):
(i) any Equipment, General Intangibles or
contracts related thereto, but only to the extent that, under
applicable Laws, the applicable Obligor is expressly
prohibited from granting a security interest therein or
applicable Laws provide for the involuntary forfeiture of the
property in the event a security interest is granted therein
without the consent of the appropriate Governmental Authority,
or at all; provided, however, that if such prohibition or the
condition requiring such consent relates only to the
foreclosure of a security interest or the exercise of other
rights and remedies upon a default but not to the granting of
a security interest therein, then a security interest in such
property shall be deemed to be granted by this Agreement
subject to the condition that the consent of such Governmental
Authority is obtained by the Administrative Agent prior to
foreclosure or exercising its other rights or remedies
hereunder as to which such consent is required;
(ii) any Equipment, General Intangibles or
contracts related thereto, but only to the extent that the
terms and provisions of a written agreement, document or
instrument in effect on the date hereof creating or evidencing
such property or any rights relating thereto expressly
prohibit the granting of a security interest therein or
condition the granting of a security interest therein on the
consent of a third party whose consent has not been obtained
or would cause, or allow a third party to cause, the
forfeiture of such property upon the granting of a security
interest therein (other than to the extent that any such
requirement or restriction would be rendered ineffective
pursuant to the UCC or other applicable Law (including Debtor
Relief Laws)), provided, however, that if such prohibition or
the condition requiring such consent relates only to the
foreclosure of a security interest or the exercise of other
rights or remedies upon a default, then a security interest in
such property shall be deemed to be granted by this Agreement
subject to the condition that the consent of such third party
is obtained by the Administrative Agent prior to foreclosure
or exercising of its other rights or remedies hereunder as to
which such consent is required; and
(iii) any Capital Stock of Foreign Subsidiaries
that does not constitute Subsidiary Equity.
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In the event of the termination or elimination of any prohibition or
the requirement for any consent contained in any applicable law, rule,
regulation, agreement, document or instrument to the extent sufficient to permit
any Excluded Property to become Collateral hereunder, or upon the granting of
any such consent, or waiving or terminating any requirement for such consent, a
security interest in such Excluded Property shall be automatically and
simultaneously granted hereunder in such Excluded Property, and the Excluded
Property automatically and simultaneously shall be deemed to be pledged to the
Administrative Agent and shall be included as Collateral hereunder.
The Obligors and the Administrative Agent, on behalf of the Lenders,
hereby acknowledge and agree that the security interest created hereby in the
Collateral (i) constitutes continuing collateral security for all of the Secured
Obligations, whether now existing or hereafter arising and (ii) is not to be
construed as an assignment of any Intellectual Property.
3. Representations and Warranties. Each Obligor hereby represents
and warrants to the Administrative Agent, for the benefit of the Lenders, that
until such time as the Secured Obligations (other than contingent
indemnification obligations) have been paid in full and the Commitments have
expired or been terminated:
(a) Ownership. Each Obligor has the right to pledge,
sell, assign or transfer the Collateral in which it has an interest.
There exists no "adverse claim" within the meaning of Section 8-102 of
the UCC as of the date hereof with respect to the Subsidiary Equity of
such Obligor.
(b) Security Interest/Priority. This Agreement, when
executed and delivered and upon making of the initial Credit
Extensions, creates a valid security interest in favor of the
Administrative Agent, for the benefit of the Lenders, in the Collateral
of such Obligor, and, when properly perfected by filing, shall
constitute a valid perfected security interest in such Collateral
(including all uncertificated Subsidiary Equity consisting of
partnership or limited liability company interests that do not
constitute a security pursuant to Section 8-103(c) of the UCC), to the
extent such security can be perfected by filing under the UCC, free and
clear of all Liens except for Permitted Liens. The taking possession by
the Administrative Agent of the certificates (if any) representing the
Subsidiary Equity and all other Instruments constituting Collateral
will perfect and establish the first priority of the Administrative
Agent's security interest in all certificated Subsidiary Equity and
such Instruments.
(c) Types of Collateral. None of the Collateral consists
of, or is the Proceeds of, (i) As-Extracted Collateral, (ii) Consumer
Goods, (iii) Farm Products, (iv) Manufactured Homes or (v) Standing
Timber.
(d) Accounts. (i) Each Account of the Obligors and the
papers and documents relating thereto are genuine, (ii) each Account
arises out of (A) a bona fide sale of goods sold and delivered by such
Obligor (or in the process of being delivered) or (B) services
theretofore actually rendered by such Obligor to, the account debtor
named therein, (iii) no Account of an Obligor with a principal balance
equal to or greater than Twenty-Five
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Thousand Dollars ($25,000) is evidenced by any Instrument or Chattel
Paper unless such Instrument or Chattel Paper has been theretofore
endorsed over and delivered to, or submitted to the control of, the
Administrative Agent and (iv) no surety bond was required or given in
connection with any Account of an Obligor or the contracts or purchase
orders out of which they arose.
(e) Equipment and Inventory. With respect to any material
Equipment and/or Inventory of an Obligor, each such Obligor has
exclusive possession and control of such Equipment and Inventory of
such Obligor except for (i) Equipment leased by such Obligor as a
lessee, (ii) Equipment or Inventory in transit with common or other
carriers, or (iii) Equipment or Inventory that is out for repair. No
material Inventory is held by an Obligor pursuant to consignment, sale
or return, sale on approval or similar arrangement.
(f) Authorization of Subsidiary Equity. All Subsidiary
Equity is duly authorized and validly issued, is fully paid and
nonassessable and is not subject to the preemptive rights of any
Person.
(g) Exercising of Rights. The exercise by the
Administrative Agent of its rights and remedies hereunder will not
violate any Law or governmental regulation or any material contractual
restriction binding on or affecting an Obligor or any of its Property.
(h) [Reserved]
(i) No Other Shares. As of the Closing Date, no Obligor
owns any Subsidiary Equity required to be pledged pursuant to Section
7.14 of the Credit Agreement other than as set forth on Schedule
1(b)(ii) attached hereto.
(j) Partnership and Limited Liability Company Interests.
Except as previously disclosed to the Administrative Agent, none of the
Subsidiary Equity consisting of partnership or limited liability
company interests (i) is dealt in or traded on a securities exchange or
in a securities market, (ii) by its terms expressly provides that it is
a security governed by Article 8 of the UCC, (iii) is an investment
company security, (iv) is held in a securities account or (v)
constitutes a "security" or a "financial asset" as such terms are
defined in Article 8 of the UCC.
4. Covenants. Each Obligor covenants that until such time as the
Secured Obligations (other than contingent indemnification obligations) have
been paid in full and the Commitments have expired or been terminated, such
Obligor shall:
(a) Instruments/Chattel Paper/Subsidiary Equity. (i) If
any amount with a principal balance equal to or greater than One
Hundred Thousand Dollars ($100,000) and payable under or in connection
with any of the Collateral shall be or become evidenced by any
Instrument or Tangible Chattel Paper, or if any property constituting
Collateral with a value equal to or greater than One Hundred Thousand
Dollars ($100,000) shall be stored or shipped subject to a Document,
ensure that such Instrument, Tangible Chattel Paper or
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Document is either in the possession of such Obligor at all times or,
if reasonably requested by the Administrative Agent to perfect its
security interest in such Collateral, is delivered to the
Administrative Agent duly indorsed in a manner reasonably satisfactory
to the Administrative Agent. Such Obligor shall ensure that any
Collateral consisting of Tangible Chattel Paper is marked with a legend
reasonably acceptable to the Administrative Agent indicating the
Administrative Agent's security interest in such Tangible Chattel
Paper.
(ii) Deliver to the Administrative Agent promptly upon the
receipt thereof by or on behalf of an Obligor as required by Section
7.14 of the Credit Agreement, all other certificates and instruments
constituting Subsidiary Equity of an Obligor. Prior to delivery to the
Administrative Agent, all such certificates and instruments
constituting Subsidiary Equity of an Obligor shall be held in trust by
such Obligor for the benefit of the Administrative Agent pursuant
hereto. All such certificates representing Subsidiary Equity shall be
delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, substantially in the form provided in Schedule 4(a)(ii) attached
hereto.
(b) Change in Corporate Structure or Location. Not,
without providing 30 days prior written notice to the Administrative
Agent, change its registered legal name, change its corporate structure
or change its jurisdiction of organization, except to the extent such
change in corporate structure or jurisdiction will not have a
materially adverse impact on the perfection or priority of the
Administrative Agent's security interest in the Collateral.
(c) Filing of Financing Statements, Notices, etc. Each
Obligor hereby authorizes the Administrative Agent to prepare and file
such financing statements (including renewal statements) or amendments
thereof or supplements thereto or other instruments as the
Administrative Agent may from time to time reasonably deem necessary in
order to perfect and maintain the security interests granted hereunder
in accordance with the UCC (including authorization to describe the
Collateral as "all personal property" or "all assets."). Each Obligor
shall also execute and deliver to the Administrative Agent such
agreements, assignments or instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing documents,
as the Administrative Agent may reasonably request) and do all such
other things as the Administrative Agent may reasonably deem necessary
(i) to assure to the Administrative Agent its security interests
hereunder, including (A) such instruments as the Administrative Agent
may from time to time reasonably request in order to perfect and
maintain the security interests granted hereunder in accordance with
the UCC, (B) with regard to copyrights and copyright applications, a
Notice of Grant of Security Interest in Copyrights in the form of
Schedule 4(c)(i)(B), (C) with regard to patents and patent
applications, a Notice of Grant of Security Interest in Patents for
filing with the United States Patent and Trademark Office in the form
of Schedule 4(c)(i)(C) attached hereto and (D) with regard to
trademarks and trademark applications, a Notice of Grant of Security
Interest in Trademarks for filing with the United States Patent and
Trademark Office in the form of Schedule 4(c)(i)(D) attached hereto,
(ii) to consummate the transactions contemplated hereby and (iii) to
otherwise protect and assure the Administrative Agent of its rights and
interests hereunder.
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(d) Control. Each Obligor shall execute and deliver all
agreements, assignments, instruments or other documents as reasonably
requested by the Administrative Agent for the purpose of obtaining and
maintaining control with respect to any Collateral consisting of (i)
Deposit Accounts, (ii) Investment Property, (iii) Letter-of-Credit
Rights and (iv) Electronic Chattel Paper.
(e) Collateral Held by Warehouseman, Bailee, etc. If any
Collateral with a value equal to or greater than One Million Dollars
($1,000,000) is at any time in the possession or control of a
warehouseman, bailee or any agent or processor of such Obligor and the
Administrative Agent so requests (i) notify such Person in writing of
the Administrative Agent's security interest therein, (ii) instruct
such Person to hold all such Collateral for the Administrative Agent's
account and subject to the Administrative Agent's instructions and
(iii) use reasonable efforts to obtain a written acknowledgment from
such Person that it is holding such Collateral for the benefit of the
Administrative Agent.
(f) Treatment of Accounts. Not grant or extend the time
for payment of any Account, or compromise or settle any Account for
less than the full amount thereof, or release any person or property,
in whole or in part, from payment thereof, or allow any credit or
discount thereon, other than as normal and customary in the ordinary
course of an Obligor's business.
(g) Commercial Tort Claims; Notice of Litigation. (i)
Promptly forward to the Administrative Agent written notification of
any and all Commercial Tort Claims claiming as damages an amount in
excess of One Hundred Thousand Dollars ($100,000), including, but not
limited to, any and all such actions, suits, and proceedings before any
court or Governmental Authority by or affecting such Obligor or any of
its Subsidiaries and (ii) execute and deliver such statements,
documents and notices and do and cause to be done all such things as
may be reasonably required by the Administrative Agent, or required by
law, including all things which may from time to time be necessary
under the UCC to fully create, preserve, perfect and protect the
priority of the Administrative Agent's security interest in any
Commercial Tort Claims.
(h) Books and Records. Mark its books and records (and
shall cause the issuer of the Subsidiary Equity of such Obligor to mark
its books and records) to reflect the security interest granted to the
Administrative Agent, for the benefit of the Lenders, pursuant to this
Agreement.
(i) Nature of Collateral. At all times maintain the
Collateral as personal property and not affix any of the Collateral to
any real property in a manner which would change its nature from
personal property to real property or a Fixture to real property,
unless the Administrative Agent shall have a perfected Lien on such
Fixture or real property.
(j) Issuance or Acquisition of Capital Stock. Not without
executing and delivering, or causing to be executed and delivered, to
the Administrative Agent such agreements, documents and instruments as
the Administrative Agent may reasonably
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require, issue or acquire any Capital Stock consisting of an interest
in a partnership or a limited liability company that (i) is dealt in or
traded on a securities exchange or in a securities market, (ii) by its
terms expressly provides that it is a security governed by Article 8 of
the UCC, (iii) is an investment company security, (iv) is held in a
securities account or (v) constitutes a "security" or a "financial
asset" as such terms are defined in Article 8 of the UCC.
(k) Intellectual Property.
(i) Such Obligor (either itself or through
licensees) will (A) continue to use each material Trademark on
each and every trademark class of goods applicable to its
current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full
force free from any claim of abandonment for non-use unless in
the good faith judgment of such Obligor the use of such
Trademark is no longer commercially reasonable, (B) maintain
as in the past the quality of products and services offered
under such Trademark except to the extent, in the good faith
judgment of such Obligor, any change in quality is
commercially reasonable, (C) use such Trademark with the
appropriate notice of registration and all other notices and
legends required by applicable Laws, (D) not adopt or use any
mark which is confusingly similar or a colorable imitation of
such Trademark unless the Administrative Agent, for the
ratable benefit of the Lenders, shall obtain a perfected
security interest in such mark pursuant to this Agreement, and
(E) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such
Trademark may become invalidated or impaired in any way except
to the extent Obligor, in its good faith judgment, deems the
same to be commercially reasonable.
(ii) Such Obligor (either itself or through
licensees) will not do any act, or omit to do any act, whereby
any material Patent may become forfeited, abandoned or
dedicated to the public unless in the good faith judgment of
such Obligor the use of such Patent is no longer commercially
reasonable.
(iii) Unless in the good faith judgment of such
Obligor, the use of a particular Copyright is no longer
necessary to its business, such Obligor (either itself or
through licensees) (A) will employ each material Copyright and
(B) will not (and will not permit any licensee or sublicensee
thereof to) do any act or knowingly omit to do any act whereby
any material portion of the Copyrights may become invalidated
or otherwise impaired. Such Obligor will not (either itself or
through licensees) do any act whereby any material portion of
the Copyrights may fall into the public domain unless in the
good faith judgment of such Obligor the use of such Copyright
is no longer necessary.
(iv) Such Obligor (either itself or through
licensees) will not do any act that knowingly uses any
material Intellectual Property to infringe the intellectual
property rights of any other Person.
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(v) Such Obligor will notify the Administrative
Agent within fifty (50) days after the end of each fiscal
quarter if it learned during the quarter then ended that any
application or registration relating to any material
Intellectual Property may become forfeited, abandoned or
dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution
of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court or tribunal in
any country) regarding such Obligor's ownership of, or the
validity of, any material Intellectual Property or such
Obligor's right to register the same or to own and maintain
the same.
(vi) Whenever such Obligor, either by itself or
through any agent, employee, licensee or designee, shall file
an application for the registration of any Intellectual
Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or
agency in any other country or any political subdivision
thereof, such Obligor shall report such filing to the
Administrative Agent within fifty (50) days after the end of
each fiscal quarter in which such filing occurs. Upon request
of the Administrative Agent, such Obligor shall execute and
deliver, and have recorded, any and all agreements,
instruments, documents, and papers as the Administrative Agent
may reasonably request to evidence the Administrative Agent's
and the Lenders' security interest in any Copyright, Patent or
Trademark and the goodwill and general intangibles of such
Obligor relating thereto or represented thereby.
(vii) Such Obligor will take all reasonable and
necessary steps, including, without limitation, in any
proceeding before the United States Patent and Trademark
Office, the United States Copyright Office or any similar
office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each
registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability except to
the extent such Obligor in good faith deems the same to be no
longer necessary for its business.
(viii) In the event that any material Intellectual
Property is infringed, misappropriated or diluted by a third
party, such Obligor shall, to the extent it has knowledge of
such infringement, misappropriation or dilution (A) take such
actions as such Obligor shall in good faith deem appropriate
under the circumstances to protect such Intellectual Property
and (B) if such Intellectual Property is of material economic
value, promptly notify the Administrative Agent after it
learns thereof and, to the extent such Obligor in good faith
deems it commercially reasonable to do so, sue for
infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages
for such infringement, misappropriation or dilution.
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(l) Insurance. Insure, repair and replace the Collateral
of such Obligor as set forth in the Credit Agreement. All insurance
proceeds paid in connection with any insurance providing coverage with
respect to any Collateral shall be subject to the security interest of
the Administrative Agent hereunder.
5. Advances. (i) Upon the occurrence of and during the existence
of an Event of Default or (ii) upon the failure of any Obligor to perform any of
the covenants and agreements contained herein and upon prior written notice to
the Obligors if, with respect to this clause (ii), the Administrative Agent
reasonably determines that the taking of a particular action is required prior
to the expiration of any applicable cure period(s) in order to prevent an
impairment of its rights in and to any Collateral, then, in either case, the
Administrative Agent may, at its sole option and in its sole discretion, perform
the same and in so doing may expend such sums as the Administrative Agent
reasonably may deem advisable in the performance thereof, including, without
limitation, the payment of insurance premiums, the payment of taxes, a payment
to obtain a release of a Lien or potential Lien, expenditures made in defending
against adverse claims and other expenditures which the Administrative Agent or
the Lenders may reasonably make for the protection of the security hereof or
which may be compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Obligors on a joint and several basis
promptly upon timely notice thereof and demand therefore, and shall constitute
additional Secured Obligations. No such performance of any covenant or agreement
by the Administrative Agent or the Lenders on behalf of any Obligor, and no such
advance or expenditure therefore, shall relieve the Obligors of any Default or
Event of Default. The Administrative Agent or the Lenders may make any payment
hereby authorized in accordance with any bill, statement or estimate procured
from the appropriate public office or holder of the claim to be discharged
without inquiry into the accuracy of such bill, statement or estimate or into
the validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by an Obligor
in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
6. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during the continuation thereof, the Administrative Agent
or the Lenders shall have, in addition to the rights and remedies
provided herein, in the Loan Documents, in the Swap Contracts and/or
Treasury Management Agreements between any Obligor and any Lender, or
under applicable Laws (including, but not limited to, levy of
attachment, garnishment and the rights and remedies set forth in the
UCC), the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where the
rights and remedies are asserted and regardless of whether the UCC
applies to the affected Collateral), and further, the Administrative
Agent may, with or without judicial process or the aid and assistance
of others, (i) enter on any premises on which any of the Collateral may
be located and, without resistance or interference by the Obligors,
take possession of the Collateral, (ii) dispose of any Collateral on
any such premises, (iii) require the Obligors to assemble and make
available to the Administrative Agent at the expense of the Obligors
any Collateral at any place and time designated by the Administrative
Agent which is reasonably convenient to both parties, (iv) remove any
Collateral from any such premises for the
12
purpose of effecting sale or other disposition thereof, and/or (v)
without demand and without advertisement, notice, hearing or process of
law, all of which each of the Obligors hereby waives to the fullest
extent permitted by law, at any place and time or times, sell and
deliver any or all Collateral held by or for it at public or private
sale (which in the case of a private sale of Subsidiary Equity, shall
be to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire such securities for their own account,
for investment and not with a view to the distribution or resale
thereof), at any exchange or broker's board or elsewhere, by one or
more contracts, in one or more parcels, for cash, upon credit or
otherwise, at such prices and upon such terms as the Administrative
Agent deems advisable, in its sole discretion (subject to any and all
mandatory legal requirements). Each Obligor acknowledges that any such
private sale may be at prices and on terms less favorable to the seller
than the prices and other terms which might have been obtained at a
public sale and, notwithstanding the foregoing, agrees that such
private sale shall be deemed to have been made in a commercially
reasonable manner and, in the case of a sale of Subsidiary Equity, that
the Administrative Agent shall have no obligation to delay sale of any
such securities for the period of time necessary to permit the issuer
of such securities to register such securities for public sale under
the Securities Act of 1933. To the extent the rights of notice cannot
be legally waived hereunder, each Obligor agrees that any requirement
of reasonable notice shall be met if such notice is personally served
on or mailed, postage prepaid, to the Borrower in accordance with the
notice provisions of Section 11.02 of the Credit Agreement at least 10
Business Days before the time of sale or other event giving rise to the
requirement of such notice. Each Obligor further acknowledges and
agrees that any offer to sell any Subsidiary Equity which has been (i)
publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New
York, New York (to the extent that such offer may be advertised without
prior registration under the Securities Act of 1933), or (ii) made
privately in the manner described above shall be deemed to involve a
"public sale" under the UCC, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act of 1933, and
the Administrative Agent may, in such event, bid for the purchase of
such securities. The Administrative Agent and the Lenders shall not be
obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. To the extent permitted by law,
any Lender may be a purchaser at any such sale. To the extent permitted
by applicable law, each of the Obligors hereby waives all of its rights
of redemption with respect to any such sale. Subject to the provisions
of applicable law, the Administrative Agent and the Lenders may
postpone or cause the postponement of the sale of all or any portion of
the Collateral by announcement at the time and place of such sale, and
such sale may, without further notice, to the extent permitted by law,
be made at the time and place to which the sale was postponed, or the
Administrative Agent and the Lenders may further postpone such sale by
announcement made at such time and place.
(b) Remedies relating to Accounts. During the
continuation of an Event of Default, whether or not the Administrative
Agent has exercised any or all of its rights and remedies hereunder,
the Administrative Agent shall have the right to enforce any Obligor's
rights against any account debtors and obligors on such Obligor's
Accounts. Each Obligor acknowledges and agrees that the Proceeds of its
Accounts remitted to or on behalf of the
13
Administrative Agent in accordance with the provisions hereof shall be
solely for the Administrative Agent's own convenience and that such
Obligor shall not have any right, title or interest in such Accounts or
in any such other amounts except as expressly provided herein. The
Administrative Agent and the Lenders shall have no liability or
responsibility to any Obligor for acceptance of a check, draft or other
order for payment of money bearing the legend "payment in full" or
words of similar import or any other restrictive legend or endorsement
or be responsible for determining the correctness of any remittance.
Furthermore, during the continuation of an Event of Default, (i) the
Administrative Agent shall have the right, but not the obligation, to
make test verifications of the Accounts in any manner and through any
medium that it reasonably considers advisable, and the Obligors shall
furnish all such assistance and information as the Administrative Agent
may require in connection with such test verifications, (ii) upon the
Administrative Agent's request and at the expense of the Obligors, the
Obligors shall cause independent public accountants or others
satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts and (iii) the
Administrative Agent in its own name or in the name of others may
communicate with account debtors on the Accounts to verify with them to
the Administrative Agent's satisfaction the existence, amount and terms
of any Accounts.
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the
continuance thereof, the Administrative Agent shall have the right to
enter and remain upon the various premises of the Obligors without cost
or charge to the Administrative Agent, and use the same, together with
materials, supplies, books and records of the Obligors for the purpose
of collecting and liquidating the Collateral, or for preparing for sale
and conducting the sale of the Collateral, whether by foreclosure,
auction or otherwise. In addition, the Administrative Agent may remove
Collateral, or any part thereof, from such premises and/or any records
with respect thereto, in order to effectively collect or liquidate such
Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the
Administrative Agent or the Lenders to exercise any right, remedy or
option under this Agreement, any other Loan Document, any Swap Contract
and/or Treasury Management Agreement between any Obligor and any
Lender, or as provided by law, or any delay by the Administrative Agent
or the Lenders in exercising the same, shall not operate as a waiver of
any such right, remedy or option. No waiver hereunder shall be
effective unless it is in writing, signed by the party against whom
such waiver is sought to be enforced and then only to the extent
specifically stated, which in the case of the Administrative Agent or
the Lenders shall only be granted as provided herein. To the extent
permitted by law, neither the Administrative Agent, the Lenders, nor
any party acting as attorney for the Administrative Agent or the
Lenders, shall be liable hereunder for any acts or omissions or for any
error of judgment or mistake of fact or law other than their gross
negligence or willful misconduct hereunder. The rights and remedies of
the Administrative Agents and the Lenders under this Agreement shall be
cumulative and not exclusive of any other right or remedy which the
Administrative Agent or the Lenders may have.
14
(e) Retention of Collateral. The Administrative Agent
may, in compliance with Sections 9-620 and 9-621 of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, accept or retain the Collateral in satisfaction
of the Secured Obligations. Unless and until the Administrative Agent
shall have provided such notices, however, the Administrative Agent
shall not be deemed to have retained any Collateral in satisfaction of
any Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Administrative Agent or the Lenders are legally entitled, the
Obligors shall be jointly and severally liable for the deficiency,
together with interest thereon at the Default Rate, together with the
costs of collection and the reasonable fees of any attorneys employed
by the Administrative Agent to collect such deficiency. Any surplus
remaining after the full payment and satisfaction of the Secured
Obligations (other than contingent indemnification obligations) shall
be returned to the Obligors or to whomsoever a court of competent
jurisdiction shall determine to be entitled thereto.
7. Rights of the Administrative Agent.
(a) Power of Attorney. Each Obligor hereby designates and
appoints the Administrative Agent, on behalf of the Lenders, and each
of its designees or agents, as attorney-in-fact of such Obligor,
irrevocably and with power of substitution, with authority upon the
occurrence and during the continuance of an Event of Default to take
any or all of the following actions:
(i) to demand, collect, settle, compromise,
adjust, give discharges and releases, all as the
Administrative Agent may reasonably determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any Collateral and
enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Administrative Agent may deem reasonably
appropriate;
(iv) receive, open and dispose of mail addressed
to an Obligor and endorse checks, notes, drafts, acceptances,
money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or
storage of the goods giving rise to the Collateral of such
Obligor on behalf of and in the name of such Obligor, or
securing, or relating to such Collateral;
(v) sell, assign, transfer, make any agreement
in respect of, or otherwise deal with or exercise rights in
respect of, any Collateral or the
15
goods or services which have given rise thereto, as fully and
completely as though the Administrative Agent were the
absolute owner thereof for all purposes;
(vi) adjust and settle claims under any insurance
policy relating thereto;
(vii) execute and deliver all assignments,
conveyances, statements, security agreements, affidavits,
notices and other agreements, instruments and documents that
the Administrative Agent may determine necessary in order to
perfect and maintain the security interests and liens granted
in this Agreement and in order to fully consummate all of the
transactions contemplated therein;
(viii) institute any foreclosure proceedings that
the Administrative Agent may deem appropriate; and
(ix) do and perform all such other acts and
things as the Administrative Agent may reasonably deem to be
necessary, proper or convenient in connection with the
Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable until such time as the Secured Obligations (other than
contingent indemnification obligations) have been paid in full and the
Commitments have expired or been terminated. The Administrative Agent
shall be under no duty to exercise or withhold the exercise of any of
the rights, powers, privileges and options expressly or implicitly
granted to the Administrative Agent in this Agreement, and shall not be
liable for any failure to do so or any delay in doing so. The
Administrative Agent shall not be liable for any act or omission or for
any error of judgment or any mistake of fact or law in its individual
capacity or its capacity as attorney-in-fact except acts or omissions
resulting from its gross negligence, bad faith or willful misconduct.
This power of attorney is conferred on the Administrative Agent solely
to protect, preserve and realize upon its security interest in the
Collateral.
(b) Assignment by the Administrative Agent. The
Administrative Agent may from time to time assign the Secured
Obligations to a successor Administrative Agent appointed pursuant to
Section 10.09 of the Credit Agreement, and such successor shall be
entitled to all of the rights and remedies of the Administrative Agent
under this Agreement in relation thereto.
(c) The Administrative Agent's Duty of Care. Other than
the exercise of reasonable care to assure the safe custody of the
Collateral while being held by the Administrative Agent hereunder and
the accounting for moneys actually received by the Administrative Agent
hereunder, the Administrative Agent shall have no duty or liability to
preserve rights pertaining thereto, it being understood and agreed that
the Obligors shall be responsible for preservation of all rights in the
Collateral, and the Administrative Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering the
16
surrender of it to the Obligors. The Administrative Agent shall accord
the Collateral treatment substantially equal to that which the
Administrative Agent accords its own property and other similar
property in its possession, which shall be no less than the treatment
employed by a reasonable and prudent agent in the industry, it being
understood that the Administrative Agent shall not have responsibility
for taking any necessary steps to preserve rights against any parties
with respect to any of the Collateral. In the event of a public or
private sale of Collateral pursuant to Section 6 hereof, the
Administrative Agent shall have no obligation to clean-up, repair or
otherwise prepare the Collateral for sale.
(d) Liability with Respect to Accounts. The
Administrative Agent shall not have any obligation or liability under
any Account (or any agreement giving rise thereto) by reason of or
arising out of this Agreement or the receipt by the Administrative
Agent of any payment relating to such Account pursuant hereto, nor
shall the Administrative Agent be obligated in any manner to perform
any of the obligations of an Obligor under or pursuant to any Account
(or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received
by it or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto), to present or file
any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
(e) Voting and Payment Rights in Respect of the
Subsidiary Equity.
(i) So long as no Event of Default shall exist,
each Obligor may (A) exercise any and all voting and other
consensual rights pertaining to the Subsidiary Equity of such
Obligor or any part thereof for any purpose not inconsistent
with the terms of this Agreement or the Credit Agreement and
(B) receive and retain any and all dividends (other than stock
dividends and other dividends constituting Collateral which
are addressed hereinabove), principal or interest paid in
respect of the Subsidiary Equity to the extent they are
allowed under the Credit Agreement;
(ii) During the continuance of an Event of
Default, (A) all rights of an Obligor to exercise the voting
and other consensual rights which it would otherwise be
entitled to exercise pursuant to clause (i)(A) above shall
cease and all such rights shall thereupon become vested in the
Administrative Agent which shall then have the sole right to
exercise such voting and other consensual rights, (B) all
rights of an Obligor to receive the dividends, principal and
interest payments which it would otherwise be authorized to
receive and retain pursuant to clause (i)(B) above shall cease
and all such rights shall thereupon be vested in the
Administrative Agent which shall then have the sole right to
receive and hold as Collateral such dividends, principal and
interest payments, and (C) all dividends, principal and
interest payments which are received by an Obligor contrary to
the provisions of clause (ii)(B) above shall be received in
trust for the benefit of the Administrative Agent, shall be
segregated from other property or funds of such Obligor, and
shall be forthwith paid over to the Administrative Agent as
17
Collateral in the exact form received, to be held by the
Administrative Agent as Collateral and as further collateral
security for the Secured Obligations; and
(iii) After any and all Events of Default have
been cured, terminated or waived in accordance with the Credit
Agreement (i) such Obligor shall have the right to exercise
the voting, managerial and other consensual rights and powers
that it would otherwise be entitled pursuant to subsection
7(e)(i) above, (ii) such Obligor shall have the right to
receive and retain cash dividends and other distributions that
it would otherwise be entitled pursuant to subsection 7(e)(ii)
above, and (iii) within five (5) Business Days after such
cure, termination or waiver, the Administrative Agent shall
repay and deliver to such Obligor all cash and monies that
such Obligor is entitled to retain pursuant to subsection
7(e)(ii) above.
8. Application of Proceeds. Upon the acceleration of the Secured
Obligations pursuant to Section 9.02 of the Credit Agreement, any payments in
respect of the Secured Obligations and any proceeds of the Collateral, when
received by the Administrative Agent or any of the Lenders in cash or its
equivalent, will be applied in reduction of the Secured Obligations in the order
set forth in Section 9.03 of the Credit Agreement.
9. Continuing Agreement.
(a) This Agreement shall remain in full force and effect
until such time as the Secured Obligations (other than contingent
indemnification obligations) have been paid in full and the Commitments
have expired or been terminated, at which time (i) this Agreement shall
be automatically terminated, (ii) the Administrative Agent shall, upon
the request and at the expense of the Obligors, forthwith release all
of its liens and security interests hereunder and shall execute and
deliver all UCC termination statements and/or other documents
reasonably requested by the Obligors evidencing such termination, and
(ii) the Administrative Agent shall deliver to the Borrower an
authorization to file all such UCC and other termination statements and
related filings as may be necessary to effectuate the release of the
liens and security interests created hereunder.
(b) This Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment,
in whole or in part, of any of the Secured Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or
any Lender as a preference, fraudulent conveyance or otherwise under
any bankruptcy, insolvency or similar law, all as though such payment
had not been made; provided that in the event payment of all or any
part of the Secured Obligations is rescinded or must be restored or
returned, all reasonable costs and expenses (including without
limitation any reasonable legal fees and disbursements) incurred by the
Administrative Agent or any Lender in defending and enforcing such
reinstatement shall be deemed to be included as a part of the Secured
Obligations.
18
10. Amendments; Waivers; Modifications, etc. This Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except as set forth in Section 11.01 of the Credit Agreement.
11. Successors in Interest. This Agreement shall be binding upon
each Obligor, its successors and assigns and shall inure, together with the
rights and remedies of the Administrative Agent and the Lenders hereunder, to
the benefit of the Administrative Agent and the Lenders and their successors and
permitted assigns.
12. Notices. All notices required or permitted to be given under
this Agreement shall be in conformance with Section 11.02 of the Credit
Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
14. Headings. The headings of the sections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
15. Governing Law; Submission to Jurisdiction; Venue; WAIVER OF
JURY TRIAL. The terms of Sections 11.17 and 11.18 of the Credit Agreement with
respect to governing law, submission to jurisdiction, venue and waiver of jury
trial are incorporated herein by reference, mutatis mutandis, and the parties
hereto agree to such terms.
16. Severability. If any provision of any of the Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
17. Entirety. This Agreement, the other Loan Documents and the
Swap Contracts and/or Treasury Management Agreements between any Obligor and any
Lender represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Loan
Documents, the Swap Contracts and/or Treasury Management Agreements between any
Obligor and any Lender or the transactions contemplated herein and therein.
18. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the Collateral
(including, without limitation, real property and securities owned by an
Obligor), or by a guarantee, endorsement or property of any other Person, then
the Administrative Agent and the Lenders shall have the right to proceed against
such other property, guarantee or endorsement upon the occurrence of any Event
of Default, and the Administrative Agent and the Lenders have the right, in
their sole discretion, to determine which rights, security, liens, security
interests or remedies the Administrative Agent and the Lenders shall at any time
pursue, relinquish, subordinate, modify or take with respect thereto, without in
any way modifying or affecting any of them or any of the Administrative Agent's
and the Lenders' rights or
19
the Secured Obligations under this Agreement, under any other of the Loan
Documents or under any Swap Contract and/or Treasury Management Agreement
between any Obligor and any Lender.
[remainder of page intentionally left blank]
20
Each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
OBLIGORS: TEAM HEALTH, INC.
By: /s/ Robert Abramowski
-------------------------------------------
Name: Robert Abramowski
Title: Executive Vice President
ACCESS NURSE PM, INC.
AFTER HOURS PEDIATRICS, INC.
AMERICAN CLINICAL RESOURCES, INC.
CHARLES L. SPRINGFIELD, INC.
CLINIC MANAGEMENT SERVICES, INC.
CORRECTIONAL HEALTHCARE ADVANTAGE, INC.
CULLMAN EMERGENCY PHYSICIANS, INC.
DANIEL & YEAGER, INC.
DRS. SHEER, AHEARN & ASSOCIATES, INC.
EMERGENCY COVERAGE CORPORATION
EMERGENCY PHYSICIAN ASSOCIATES, INC.
ERIE SHORES EMERGENCY PHYSICIANS, INC.
GREENBRIER EMERGENCY PHYSICIANS, INC.
EMERGENCY PROFESSIONAL SERVICES, INC.
HEALTH CARE ALLIANCE, INC.
HERSCHEL FISCHER, INC.
IMBS, INC.
INPHYNET CONTRACTING SERVICES, INC.
INPHYNET HOSPITAL SERVICES, INC.
INPHYNET SOUTH BROWARD, INC.
KARL G. MANGOLD, INC.
KELLY MEDICAL SERVICES CORPORATION
MED: ASSURE SYSTEMS, INC.
MEDICAL MANAGEMENT RESOURCES, INC.
MEDICAL SERVICES, INC.
METROAMERICAN RADIOLOGY, INC.
NORTHWEST EMERGENCY PHYSICIANS,
INCORPORATED
PARAGON CONTRACTING SERVICES, INC.
By: /s/ Robert Abramowski
-----------------------------------------------
Name: Robert Abramowski
Title: Vice President
SIGNATURE PAGE TO
SECURITY AND PLEDGE AGREEMENT
TEAM HEALTH, INC.
MARCH 2004
OBLIGORS (CONTINUED):.
PHYSICIAN INTEGRATION CONSULTING
SERVICES, INC.
QUANTUM PLUS, INC.
REICH, SEIDELMANN & JANICKI CO.
ROSENDORF MARGULIES BORUSHOK &
SCHOENBAUM RADIOLOGY ASSOCIATES OF
HOLLYWOOD, INC.
SOUTHEASTERN EMERGENCY PHYSICIANS OF
MEMPHIS, INC.
SOUTHEASTERN EMERGENCY PHYSICIANS, INC.
SPECTRUM CRUISE CARE, INC.
SPECTRUM HEALTHCARE RESOURCES OF
DELAWARE, INC.
SPECTRUM HEALTHCARE RESOURCES, INC.
SPECTRUM HEALTHCARE SERVICES, INC.
SPECTRUM HEALTHCARE, INC.
SPECTRUM PRIMARY CARE OF DELAWARE,
INC.
SPECTRUM PRIMARY CARE, INC.
TEAM ANESTHESIA, INC.
TEAM HEALTH ANESTHESIA MANAGEMENT
SERVICES, INC.
TEAM HEALTH FINANCIAL SERVICES, INC.
TEAM RADIOLOGY, INC.
TH CONTRACTING MIDWEST, LLC
THE EMERGENCY ASSOCIATES FOR MEDICINE,
INC.
By: /s/ Robert Abramowski
----------------------------------
Name: Robert Abramowski
Title: Vice President
SIGNATURE PAGE TO
SECURITY AND PLEDGE AGREEMENT
TEAM HEALTH, INC.
MARCH 2004
OBLIGORS (CONTINUED):
FISCHERMANGOLD, A CALIFORNIA GENERAL
PARTNERSHIP
By: Herschel Fischer, Inc., General Partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
By: Karl G. Mangold, Inc., General Partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
MT. DIABLO EMERGENCY PHYSICIANS, A
CALIFORNIA GENERAL PARTNERSHIP
By: Herschel Fischer, Inc., General Partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
By: Karl G. Mangold, Inc., General Partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
SIGNATURE PAGE TO
SECURITY AND PLEDGE AGREEMENT
TEAM HEALTH, INC.
MARCH 2004
OBLIGORS (CONTINUED):
PARAGON HEALTHCARE LIMITED
PARTNERSHIP
By: Inphynet Hospital Services, Inc., its general partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
TEAM HEALTH SOUTHWEST, L.P.
By: Team Radiology, Inc., its general partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
TEAM HEALTH BILLING SERVICES, L.P.
By: Team Health, Inc., its general partner
By: /s/ Robert Abramowski
---------------------------------
Name: Robert Abramowski
Title: Vice President
SIGNATURE PAGE TO
SECURITY AND PLEDGE AGREEMENT
TEAM HEALTH, INC.
MARCH 2004
Accepted and agreed to as of the date first above written.
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Aamir Saleem
----------------
Name: Aamir Saleem
Title: Vice President
SIGNATURE PAGE TO
SECURITY AND PLEDGE AGREEMENT
TEAM HEALTH, INC.
MARCH 2004
SCHEDULE 1(b)(ii)
SUBSIDIARY EQUITY
SCHEDULE 2(d)
COMMERCIAL TORT CLAIMS
SCHEDULE 2(j)
PLEDGED INSTRUMENTS
SCHEDULE 4(a)(ii)
IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
to the following shares of Capital Stock of _____________________, a __________
corporation:
No. of Shares Certificate No.
and irrevocably appoints __________________________________ its agent and
attorney-in-fact to transfer all or any part of such Capital Stock and to take
all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.
The effectiveness of a transfer pursuant to this stock power shall be subject to
any and all transfer restrictions referenced on the face of the certificates
evidencing such interest or in the certificate of incorporation or bylaws of the
subject corporation, to the extent they may from time to time exist.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
SCHEDULE 4(c)(i)(B)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
March_____ , 2004 (as the same may be amended, modified, extended or restated
from time to time, the "Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and Bank of America, N.A.,
as administrative agent (the "Administrative Agent") for the Lenders referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the copyrights and copyright
applications shown below to the Administrative Agent for the ratable benefit of
the Lenders:
COPYRIGHTS
Date of
Copyright No. Description of Copyright Copyright
COPYRIGHT APPLICATIONS
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
The Obligors and the Administrative Agent, on behalf of the Lenders,
hereby acknowledge and agree that the security interest in the foregoing
copyrights and copyright applications (i) may only be terminated in accordance
with the terms of the Agreement and (ii) is not to be construed as an assignment
of any copyright or copyright application.
Very truly yours,
____________________________________
[Obligor]
By: ________________________________
Name: ______________________________
Title: _____________________________
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
SCHEDULE 4(c)(i)(C)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
March _______, 2004 (the "Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and Bank of America, N.A.,
as administrative agent (the "Administrative Agent") for the Lenders referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the patents and patent
applications shown below to the Administrative Agent for the ratable benefit of
the Lenders:
PATENTS
Description of Patent Date of
Patent No. Item Patent
PATENT APPLICATIONS
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
The Obligors and the Administrative Agent, on behalf of the Lenders,
hereby acknowledge and agree that the security interest in the foregoing patents
and patent applications (i) may only be terminated in accordance with the terms
of the Agreement and (ii) is not to be construed as an assignment of any patent
or patent application.
Very truly yours,
____________________________________
[Obligor]
By: ________________________________
Name: ______________________________
Title: _____________________________
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
SCHEDULE 4(c)(i)(D)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
July 25, 2003 (the "Agreement") by and among the Obligors party thereto (each an
"Obligor" and collectively, the "Obligors") and Bank of America, N.A., as
Administrative Agent (the "Administrative Agent") for the Lenders referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the trademarks and trademark
applications shown below to the Administrative Agent for the ratable benefit of
the Lenders:
TRADEMARKS
Description of Trademark Date of
Trademark No. Item Trademark
TRADEMARK APPLICATIONS
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
The Obligors and the Administrative Agent, on behalf of the Lenders,
hereby acknowledge and agree that the security interest in the foregoing
trademarks and trademark applications (i) may only be terminated in accordance
with the terms of the Agreement and (ii) is not to be construed as an assignment
of any trademark or trademark application.
Very truly yours,
____________________________________
[Obligor]
By: ________________________________
Name: ______________________________
Title: _____________________________
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________