Exhibit 10.2
THIS NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT QUALIFIED UNDER APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
OR BLUE SKY LAWS.
PROMISSORY NOTE
$3,400,000.00 Dallas, Texas September 30, 2003
FOR VALUE RECEIVED, the undersigned, HEALTHAXIS INC., a Pennsylvania
corporation ("Maker"), hereby promises to pay to the order of UICI, a Delaware
corporation ("Payee"), at its offices at 9151 Grapevine Highway, North Richland
Hills, TX 76180, in lawful money of the United States of America, the principal
sum of Three Million Four Hundred Thousand and No/100 Dollars ($3,400,000.00),
together with interest on the outstanding principal balance from day to day
remaining as herein specified, in installments as follows:
1. Beginning on November 1, 2003, and continuing on the 1st day of each
month thereafter through and including September 1, 2006, a monthly installment
equal to the Monthly Payment Amount (as hereinafter defined) shall be due and
payable, which shall be applied first to all accrued but unpaid interest on this
Promissory Note, and the remainder will be applied to the outstanding principal
amount then due; and
2. A final installment in the amount of all outstanding principal, plus
accrued and unpaid interest, shall be due and payable on September 30, 2006 (the
"Maturity Date").
The "Monthly Payment Amount" shall be an amount equal to the greater of
(i) one-half of the invoice amount attributable to data capture services (before
any credit or deduction for repayment of this Note as provided below) for the
prior month for all data capture services rendered from time to time by
Healthaxis Imaging Services, LLC ("HAIS"), a subsidiary of Maker, to The Mega
Life & Health Insurance Company ("MEGA") (including any and all affiliates,
divisions or units thereof), a subsidiary of Payee, pursuant to the terms of
that certain services agreement, effective May 1, 1999, between MEGA and
Mid-West National Life Insurance Company of Tennessee and HAIS, as amended by
that certain First Amendment to Agreement effective January 1, 2000, Second
Amendment to Agreement effective January 1, 2001, Third Amendment to Agreement
effective January 1, 2002 and Fourth Amendment effective January 1, 2003 (as
amended, the "Services Agreement"), or (ii) Sixty-five Thousand and No/100
Dollars ($65,000.00). In accordance with that certain Repurchase Agreement,
dated of even date herewith between Maker and Payee, Payee has agreed that its
Insurance Center unit will use HAIS as its sole supplier under the terms of the
Services Agreement (as it may be subsequently renewed and extended as required
in the Repurchase Agreement) for all of its imaging, data capture and related
services needs if and only for so long as (x) any portion of this Promissory
Note remains outstanding and is not in default, (y) HAIS meets or exceeds its
contractual commitments for quality and turn around time as contained in the
Services Agreement, and (z) HAIS is not otherwise in default under the terms of
the Services Agreement; provided, however, in no event shall UICI's Insurance
Center unit be required to use HAIS as its sole supplier for all of its imaging,
data capture and related services needs after September 30, 2006. In lieu of
cash payment of the Monthly Payment Amount, Maker and Payee hereby agree that,
on each installment due date, HAIS will issue a credit memo to MEGA in the
amount of said Monthly Payment Amount, and UICI will simultaneously credit the
same amount toward repayment of this Promissory Note as herein provided. In the
event the aggregate amount of credits issued to MEGA and outstanding at any time
ever exceeds the total amount then due to HAIS, then Maker will pay the
difference in cash on the installment due date. In addition, in the event HAIS
or its successor ceases to provide data capture services to MEGA, then each
monthly installment will be payable by Maker solely in cash on or before the
installment due date.
This Promissory Note may not be self-amortizing, and Maker hereby
acknowledges that on the Maturity Date stated above, a substantial payment of
principal and interest may become due and payable.
The outstanding principal balance hereof shall bear interest prior to
maturity at the rate of six percent (6.0%) per annum, and shall be computed on
the bases of a 360-day year. All past due principal and interest shall bear
interest at the rate of ten percent (10.0%) per annum.
Maker shall have the right to prepay, at any time and from time to time
without premium or penalty, the entire unpaid principal balance of this Note or
any portion thereof, any such prepayments to be made together with payment of
interest accrued on the amount of principal being prepaid through the date of
such prepayment, and any such partial prepayments to be applied in inverse order
of maturity to the last maturing installment(s) of principal.
Notwithstanding anything to the contrary contained herein, no
provisions of this Promissory Note shall require the payment or permit the
collection of interest in excess of the Maximum Rate (hereinafter defined). If
any excess of interest in such respect is herein provided for, or shall be
adjudicated to be so provided, in this Promissory Note or otherwise in
connection with this loan transaction, the provisions of this paragraph shall
govern and prevail, and neither Maker nor the sureties, guarantors, successors
or assigns of Maker shall be obligated to pay the excess amount of such
interest, or any other excess sum paid for the use, forbearance or detention of
sums loaned pursuant hereto. If for any reason interest in excess of the Maximum
Rate shall be deemed charged, required or permitted by any court of competent
jurisdiction, any such excess shall be applied as a payment and reduction of the
principal of indebtedness evidenced by this Promissory Note, and if the
principal amount hereof has been paid in full, any remaining excess shall
forthwith be paid to Maker. In determining whether or not the interest paid or
payable exceeds the Maximum Rate, Maker and Payee shall, to the extent permitted
by applicable law, (i) characterize any non-principal payment as an expense,
fee, or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the entire contemplated
term of the indebtedness evidenced by this Promissory Note so that the interest
for the entire term does not exceed the Maximum Rate.
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As used herein, "Maximum Rate" means the maximum nonusurious rate of
interest permitted to be charged by the holder hereof under applicable federal
or Texas laws. For purposes of determining the Maximum Rate under Texas law, the
applicable rate ceiling shall be the applicable weekly ceiling described in, and
computed in accordance with, Chapter 303 of the Texas Finance Code.
Maker shall be in default hereunder upon the happening of any of the
following events or conditions (each such event or condition hereinafter
referred to as an "Event of Default"):
1. Maker shall fail to pay when due any principal of or accrued and
unpaid interest on this Promissory Note.
2. Any representation, warranty, or statement made or deemed made by
Maker to Payee shall be false, misleading, or erroneous in any material respect
when made or deemed to have been made.
3. Maker shall default in the timely performance of any obligation,
covenant or agreement made or owed by Maker to Payee under this Promissory Note,
or any other agreement or document executed in connection therewith.
4. Maker shall commence a voluntary proceeding seeking liquidation,
reorganization, or other relief with respect to itself or its debts under any
bankruptcy, insolvency, or other similar law now or hereafter in effect, or
seeking the appointment of a trustee, receiver, liquidator, custodian, or other
similar official for it or a substantial part of its property or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it or
shall make a general assignment for the benefit of creditors or shall generally
fail to pay its debts as they become due.
5. Any involuntary proceeding shall be commenced against Maker seeking
liquidation, reorganization, or other relief with respect to it or its debts
under any bankruptcy, insolvency, or other similar law now or hereafter in
effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official for it or a substantial part of its
property, and such involuntary proceeding shall remain undismissed and unstayed
for a period of sixty (60) days.
6. Maker or any guarantor, surety, or other person ever liable for the
payment of this Note shall liquidate, dissolve, die or become incompetent.
7. Maker shall fail to discharge within a period of thirty (30) days
after the commencement thereof any unstayed attachment, sequestration,
forfeiture, or similar proceeding or proceedings involving an aggregate amount
in excess of $25,000 against any of its properties.
8. A final judgment or judgments for the payment of money in excess of
$100,000 in the aggregate shall be rendered by a court or courts against Maker
and the same shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within thirty
(30) days from the date of entry thereof and Maker shall not, within said period
of thirty (30) days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal.
9. Maker shall fail to pay when due any principal of or interest on any
indebtedness (other than the indebtedness represented hereby) in excess of
$25,000, or the maturity of any such indebtedness shall have been accelerated,
or any such indebtedness shall have been required to be prepaid in full prior to
the stated maturity thereof, or any event shall have occurred that permits (or,
with the giving of notice or lapse of time or both, would permit) any holder or
holders of such indebtedness or any person acting on behalf of such holder or
holders to accelerate the maturity thereof or require any such prepayment.
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Upon the occurrence of any Event of Default, the holder hereof may, at
its option, declare the entire unpaid principal of and accrued interest on this
Promissory Note immediately due and payable without notice, demand or
presentment, all of which are hereby waived, and upon such declaration, the same
shall become and shall be immediately due and payable, and the holder hereof
shall have the right to foreclose and offset against this Promissory Note any
sum or sums owed by the holder hereof to Maker. Failure of the holder hereof to
exercise this option shall not constitute a waiver of the right to exercise the
same upon the occurrence of a subsequent Event of Default. Notwithstanding the
foregoing, upon the occurrence of an Event of Default under paragraphs 4 or 5
above, the outstanding principal of and accrued and unpaid interest on the Note
and all other amounts payable by Maker hereunder shall thereupon become
immediately due and payable without notice, demand, presentment, notice of
dishonor, notice of acceleration, notice of intent to accelerate, protest, or
other formalities of any kind, all of which are hereby expressly waived by
Maker.
If the holder hereof expends any effort in any attempt to enforce
payment of all or any part or installment of any sum due the holder hereunder,
or if this Promissory Note is placed in the hands of an attorney for collection,
or if it is collected through any legal proceedings, Maker agrees to pay all
collection costs and fees incurred by the holder, including reasonable
attorneys' fees.
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of Texas and the applicable laws of the United States
of America. This Promissory Note is performable in Dallas County, Texas. Any
action or proceeding under or in connection with this Promissory Note against
Maker or any other party ever liable for payment of any sums of money payable on
this Promissory Note may be brought in any state or federal court in Dallas
County, Texas. Maker and each such other party hereby irrevocably (i) submits to
the nonexclusive jurisdiction of such courts, and (ii) waives any objection it
may now or hereafter have as to the venue of any such action or proceeding
brought in such court or that such court is an inconvenient forum. Any action or
proceeding by Maker or any other party liable hereunder against Payee shall be
brought only in a court located in Dallas County, Texas.
Maker and each surety, guarantor, endorser, and other party ever liable
for payment of any sums of money payable on this Promissory Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace, and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
all without prejudice to the holder. The holder shall similarly have the right
to deal in any way, at any time, with one or more of the foregoing parties
without notice to any other party, and to grant any such party any extensions of
time for payment of any said indebtedness, or to grant any other indulgences or
forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
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THIS PROMISSORY NOTE AND ALL OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED BY MAKER IN CONNECTION WITH THE INDEBTEDNESS
EVIDENCED BY THIS NOTE REPRESENT THE FINAL, ENTIRE AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES.
MAKER:
HEALTHAXIS INC.
By: /s/ James W. McLane
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Name: James W. McLane
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Title: Chairman and CEO
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