Exhibit 10.1
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
among
PROXYMED, INC.,
PROXYMED LAB SERVICES, LLC
PROXYMED TRANSACTION SERVICES, INC.
PLANVISTA CORPORATION
PLANVISTA SOLUTIONS, INC. AND
NATIONAL NETWORK SERVICES, LLC
each a "Borrower" and collectively, the "Borrowers"
and
WACHOVIA BANK, NATIONAL ASSOCIATION
"Bank"
Dated: April 18, 2005
TABLE OF CONTENTS
Page
Page i
1. Definitions............................................................................... 2
1.1 Defined Terms:............................................................................ 2
1.2 Financial Terms........................................................................... 13
2. The Credit Facility; Letters of Credit; Interest and Fees................................. 13
2.1 The Credit Facility....................................................................... 13
2.2 Collections Account....................................................................... 13
2.3 Interest.................................................................................. 14
2.4 Interest Rate Adjustments................................................................. 15
2.5 Notice and Manner of Borrowing and Rate Conversion........................................ 15
2.6 Repayment of Loans........................................................................ 17
2.7 Additional Payment Provisions............................................................. 17
2.8 Default Rate.............................................................................. 18
2.9 Calculation of Interest................................................................... 18
2.10 Reserved.................................................................................. 18
2.11 Letters of Credit........................................................................ 18
2.12 Fees..................................................................................... 19
2.13 Statement of Account..................................................................... 19
2.14 Termination.............................................................................. 19
2.15 USA Patriot Act Notice.................................................................... 20
2.16 Borrowers' Representative................................................................. 20
2.17 Nature and Extent of Each Borrower's Liability............................................ 20
3. Conditions Precedent to Extensions of Credit.............................................. 21
3.1 Conditions Precedent to Initial Loan...................................................... 22
3.2 Conditions Precedent to Each Revolver Loan................................................ 23
4. Representations and Warranties............................................................ 24
4.1 Valid Existence and Power................................................................. 24
4.2 Authority................................................................................. 24
4.3 Financial Condition....................................................................... 24
4.4 Litigation................................................................................ 25
4.5 Agreements, Etc........................................................................... 25
4.6 Authorizations............................................................................ 25
4.7 Title..................................................................................... 25
4.8 Collateral................................................................................ 25
4.9 Jurisdiction of Organization; Location.................................................... 25
4.10 Taxes..................................................................................... 26
4.11 Labor Law Matters......................................................................... 26
4.12 Accounts.................................................................................. 26
4.13 Judgment Liens............................................................................ 26
4.14 Corporate Structure....................................................................... 26
4.15 Deposit Accounts.......................................................................... 27
4.16 Environmental............................................................................. 27
4.17 ERISA..................................................................................... 27
4.18 Investment Company Act.................................................................... 27
4.19 Insider................................................................................... 27
4.20 Sanctioned Persons; Sanctioned Countries.................................................. 27
4.21 Compliance with Covenants; No Default..................................................... 27
4.22 Full Disclosure........................................................................... 28
4.23 Borrower Information Certificate.......................................................... 28
4.24 Designated Senior Debt.................................................................... 28
5. Affirmative Covenants of Borrowers........................................................ 28
5.1 Use of Revolver Loan Proceeds............................................................. 28
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5.2 Maintenance of Business and Properties.................................................... 28
5.3 Insurance................................................................................. 28
5.4 Notice of Default......................................................................... 28
5.5 Inspections of Books and Records and Field Examinations................................... 29
5.6 Financial Information..................................................................... 29
5.7 Maintenance of Existence and Rights....................................................... 31
5.8 Payment of Taxes, Etc..................................................................... 31
5.9 Subordination............................................................................. 31
5.10 Compliance; Hazardous Materials........................................................... 31
5.11 Further Assurances........................................................................ 31
5.12 Covenants Regarding Collateral............................................................ 31
6. Negative Covenants of Borrowers........................................................... 32
6.1 Debt...................................................................................... 32
6.2 Liens..................................................................................... 33
6.3 Restricted Payments....................................................................... 34
6.4 Loans and Other Investments............................................................... 34
6.5 Change in Business........................................................................ 34
6.6 Accounts.................................................................................. 34
6.7 Transactions with Affiliates.............................................................. 34
6.8 No Change in Name, Offices or Jurisdiction of Organization; Removal of Collateral......... 35
6.9 No Sale, Leaseback........................................................................ 35
6.10 Margin Stock.............................................................................. 35
6.11 Tangible Collateral....................................................................... 35
6.12 Subsidiaries.............................................................................. 35
6.13 Liquidation, Mergers, Consolidations and Dispositions of Substantial Assets, Name and Good
Standing................................................................................ 35
6.14 Change of Fiscal Year or Accounting Methods............................................... 35
6.15 Deposit Accounts.......................................................................... 35
7. Other Covenants of Borrowers.............................................................. 36
8. Default................................................................................... 37
8.1 Events of Default......................................................................... 37
8.2 Remedies.................................................................................. 38
8.3 Receiver.................................................................................. 39
8.4 Deposits; Insurance....................................................................... 39
9. Security Agreement........................................................................ 39
9.1 Security Interest......................................................................... 39
9.2 Financing Statements; Power of Attorney................................................... 40
9.3 Entry..................................................................................... 40
9.4 Other Rights.............................................................................. 40
9.5 Accounts.................................................................................. 40
9.6 Waiver of Marshaling...................................................................... 41
9.7 Control................................................................................... 41
10. Miscellaneous............................................................................. 41
10.1 No Waiver, Remedies Cumulative............................................................ 41
10.2 Survival of Representations............................................................... 41
10.3 Indemnity By Borrower; Expenses........................................................... 41
10.4 Notices................................................................................... 42
10.5 Governing Law............................................................................. 42
10.6 Successors and Assigns.................................................................... 42
10.7 Counterparts; Telecopied Signatures....................................................... 42
10.8 No Usury.................................................................................. 43
10.9 Powers.................................................................................... 43
10.10 Approvals; Amendments..................................................................... 43
10.11 Participations and Assignments............................................................ 43
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10.12 Additional Provisions..................................................................... 43
10.13 Integration; Final Agreement.............................................................. 43
10.14 LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES....................................... 43
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (the "Agreement"),
dated as of April 18, 2005 among PROXYMED, INC., a Florida corporation
("ProxyMed" individually and, in its capacity as the representative of the other
Borrowers pursuant to Section 2.16 hereof, "Borrowers' Representative"),
PROXYMED LAB SERVICES, LLC, a Delaware limited liability company ("PLS"),
PROXYMED TRANSACTION SERVICES, INC., a Delaware corporation ("PTS" and together
with ProxyMed and PLS, collectively the "Original Borrowers" and each
individually, an "Original Borrower"), PLANVISTA CORPORATION, a Delaware
corporation ("PlanVista"), PLANVISTA SOLUTIONS, INC., a New York corporation
("PlanVista Solutions"), and NATIONAL NETWORK SERVICES, LLC, a Delaware limited
liability company ("NNS"; and together with the Original Borrowers, PlanVista
and PlanVista Solutions, collectively the "Borrowers" and each individually, a
"Borrower"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association (together with its successors and assigns, "Bank");
W I T N E S S E T H :
Original Borrowers and Bank are parties to that certain Loan and Security
Agreement, dated December 4, 2003 (as from time to time amended, modified or
supplemented, the "Prior Loan Agreement"). Proxymed has acquired 100% of the
issued and outstanding capital stock of PlanVista and has requested that Bank
amend the Prior Loan Agreement to, among other things, (i) permit PlanVista,
PlanVista Solutions and NNS each to borrow from Bank, and (ii) increase the
amount of the credit facility provided thereunder. Bank has agreed to such
amendments, subject to all of the terms, conditions and provisions hereof.
Borrowers' business is a mutual and collective enterprise, and Borrowers
believe that the consolidation of all loans and other financial accommodations
under this Agreement will enhance the aggregate borrowing powers of Borrowers
and ease the administration of their loan relationship with Bank, all to the
mutual advantage of Borrowers. In order to utilize the financial powers of
Borrowers in the most efficient and economical manner, and in order to
facilitate the financing of each Borrower's needs, Bank will, at the request of
Borrowers' Representative (as hereinafter defined), extend financial
accommodations to all Borrowers on a combined basis in accordance with the
provisions set forth in this Agreement. Bank's willingness to extend credit to
the Borrowers and to administer each Borrower's collateral security therefor on
a combined basis as more fully set forth in this Agreement is done solely as an
accommodation to Borrowers and at Borrowers' request and in furtherance of
Borrowers' mutual and collective enterprise.
Effective on the Closing Date (as hereinafter defined), this Agreement
shall amend and restate in its entirety the Prior Loan Agreement, and shall
represent the entire agreement among Borrowers and Bank with respect to the
terms and conditions upon which Bank is to extend credit to Borrowers from and
after the Closing Date. Amounts in respect of interest, fees, and other amounts
payable to or for the account of Bank shall be calculated (i) in accordance with
the provisions of the Prior Loan Agreement with respect to any period (or a
portion of any period) ending prior to the Closing Date, and (ii) in accordance
with the provisions of this Agreement with respect to any period (or a portion
of any period) commencing on or after the Closing Date.
In consideration of the premises and of the mutual covenants herein
contained and to induce Bank to extend credit to Borrowers, the parties agree as
follows:
1. DEFINITIONS. Capitalized terms that are not otherwise defined herein
shall have the meanings set forth in this Section 1.
1.1 DEFINED TERMS: "Accession" has the meaning set forth in the
Code.
"Account" has the meaning set forth in the Code, together with any
guaranties, letters of credit, Letter-of-Credit Rights, and other security
therefor, including Supporting Obligations.
"Accounts Availability" means, on any date of determination by Bank,
the sum of clauses (i) and (ii) of the definition of Borrowing Base on such date
minus clause (iv) of the definition of Borrowing Base on such date.
"Account Debtor" means a Person who is obligated under any Account,
Chattel Paper, General Intangible or Instrument.
"Accounts Receivable Report" has the meaning set forth in Section
5.6(a).
"Additional Availability" means the sum of $2,000,000.
"Affiliate" of a Person means (a) any Person directly or indirectly
owning 10% or more of the voting stock or equity interests of such named Person
or of which the named Person owns 10% or more of such voting stock or equity
interests; (b) any Person controlling, controlled by or under common control
with such named Person; (c) any officer, director or employee of such named
Person or any Affiliate of the named Person; and (d) any family member of the
named Person or any Affiliate of such named Person.
"Applicable Margin" means (a) on any date that the Revolver Balance
on such date is less than the Accounts Availability on such date, 0% for any
Base Rate Loan and 2.25% for any LMIR Loan or LIBOR Loan and (b) on any date
that the Revolver Balance on such date is greater than or equal to the Accounts
Availability on such date, 0.25% for any Base Rate Loan and 2.75% for any LMIR
Loan or LIBOR Loan.
"Arbitration Rules" has the meaning set forth in Section 10.16.
"Base Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the greater
of (i) the Federal Funds Rate in effect on such day plus -1/2 of 1% or (ii) the
Prime Rate in effect on such day. If for any reason Bank shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any reason,
including the inability or failure of Bank to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (i) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means a Loan, or portion thereof, during any period
in which it bears interest at a rate based upon the Base Rate.
"Blocked Account" means a Deposit Account of a Borrower which is
subject to a Lockbox Account Agreement.
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"Borrower Information Certificate" means the certificate submitted
by Borrowers' Representative to Bank on or before the Closing Date pursuant to
Section 3.1 hereto concerning certain factual information about the Borrowers,
to be substantially in the form of Exhibit 3.1.2 hereto.
"Borrowing Base" means, on any date of determination thereof, an
amount equal to:
(i) up to 85% (or such lesser percentage as Bank may
determine from time to time in its sole and absolute discretion) of
the total amount of Eligible Accounts of Original Borrowers, plus
(ii) up to 80% (or such lesser percentage as Bank may
determine from time to time in its sole and absolute discretion) of
the aggregate amount of Eligible PlanVista Accounts collected in
cash and applied to Eligible PlanVista Accounts during the most
recently ended 12 week period, plus
(iii) the Additional Availability, minus
(iv) any Reserves.
"Borrowing Base Certificate" has the meaning set forth in Section
5.6(a).
"Business Day" means a weekday on which Bank is open for business in
Charlotte, North Carolina and Atlanta, Georgia.
"Change of Control" means the occurrence of any of the following:
(a) with respect to any Borrower, less than a majority of the
members of such Borrower's Board of Directors shall be persons who either (i)
were serving as directors on the Closing Date or (ii) were nominated as
directors by a majority of the directors who are either directors referred to in
clause (i) above or directors nominated and approved pursuant to this clause
(ii); or
(b) with respect to any Borrower, the stockholders of such
Borrower shall approve any plan or proposal for the liquidation or dissolution
of the Borrower; or
(c) a Person or group of Persons acting in concert (i) shall, as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, have become the direct or indirect beneficial
owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended from time to time) of Equity Interests of ProxyMed aggregating
more than forty-nine percent (49%) of the combined voting power of the
outstanding Equity Interests in ProxyMed entitled to vote for the election of
directors, or (ii) with respect to any Borrower, shall have the right to elect a
majority of the Board of Directors of such Borrower.
"Chattel Paper" has the meaning set forth in the Code, including
Electronic Chattel Paper and Tangible Chattel Paper, together with any
guaranties, letters of credit, Letter-of-Credit Rights, and other security
therefore, including Supporting Obligations.
"Clearing Bank" means any banking institution with which a Blocked
Account has been established pursuant to a Lockbox Account Agreement.
"Closing Date" means the date on which all of the conditions
precedent in Section 3 of this Agreement are satisfied and the initial Loans are
made under this Agreement.
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"Code" means the Uniform Commercial Code (or any successor statute),
as adopted and in force in the Jurisdiction or, when the laws of any other state
govern the method or manner of the perfection or enforcement of any security
interest in any of the Collateral, the Uniform Commercial Code (or any successor
statute) of such state. Any term used in this Agreement and in any financing
statement filed in connection herewith which is defined in the Code and not
otherwise defined in this Agreement or in any other Loan Document has the
meaning given to the term in the Code.
"Collateral" means all property of a Borrower, wherever located and
whether now owned by such Borrower or hereafter acquired, including but not
limited to: (a) all Inventory; (b) all General Intangibles; (c) all Accounts;
(d) all Chattel Paper; (e) all Instruments and Documents and any other
instrument or intangible representing payment for goods or services; (f) all
Equipment; (g) all Investment Property; (h) all Commercial Tort Claims; (i) all
Letter-of-Credit Rights; (j) all Deposit Accounts and funds on deposit therein,
including but not limited to any Disbursements Account, Collections Account or
funds otherwise on deposit with or under the control of Bank or its agents or
correspondents; (k) all Fixtures; and (l) all parts, replacements,
substitutions, profits, products, Accessions and cash and non-cash Proceeds and
Supporting Obligations of any of the foregoing (including, but not limited to,
insurance proceeds) in any form and wherever located. Collateral shall include
all written or electronically recorded books and records relating to any such
Collateral and other rights relating thereto.
"Collateral Location" means any location where Collateral is
located, as identified and certified by Borrowers' Representative on the
Borrower Information Certificate.
"Collections Account" means any Deposit Account maintained by a
Borrower at Bank to which collections, deposits and other payments on or with
respect to Collateral may be made pursuant to the terms hereof, to which only
Bank shall have access to withdraw or otherwise direct the disposition of funds
on deposit therein.
"Commercial Tort Claim" has the meaning set forth in the Code.
"Debt" means all liabilities of a Person as determined under GAAP
and all obligations which such Person has guaranteed or endorsed or is otherwise
secondarily or jointly liable for, and shall include, without limitation (a) all
obligations for borrowed money or purchased assets, (b) obligations secured by
assets of such Person whether or not any personal liability exists, (c) the
capitalized amount of any capital or finance lease obligations, (d) the unfunded
portion of pension or benefit plans or other similar liabilities, (e)
obligations as a general partner, (f) contingent obligations pursuant to
guaranties, endorsements, letters of credit and other secondary liabilities, (g)
obligations for deposits, and (h) obligations under Swap Agreements.
Notwithstanding the foregoing to the contrary, the "Debt" of any Borrower shall
not include any product warranties extended by such Borrower in the ordinary
course of its business not already accrued or reflected on such Borrower's
balance sheet.
"Default" has the meaning set forth in the definition of Event of
Default.
"Default Rate", on any date, means a rate per annum that is equal to
(i) in the case of each Loan outstanding on such date, 2.0% in excess of the
rate otherwise applicable to such Loan on such date, and (ii) in the case of any
other Obligations outstanding on such date, 2.0% in excess of the Prime Rate in
effect on such date, provided that Obligations under Swap Agreements shall bear
interest at the Default Rate determined in accordance with the terms of said
Swap Agreements.
"Deposit Account" has the meaning set forth in the Code.
"Disbursements Account" means any Deposit Account maintained by a
Borrower with Bank for the purpose of depositing the proceeds of Loans made
pursuant hereto.
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"Distribution" means, in respect of any entity, (i) any payment of
any dividends or other distributions on Equity Interests of the entity (except
distributions in such Equity Interests) and (ii) any purchase, redemption or
other acquisition or retirement for value of any Equity Interests of the entity
or any Affiliate of the entity unless made contemporaneously from the net
proceeds of the sale of Equity Interests.
"Document" has the meaning set forth in the Code.
"Electronic Chattel Paper" has the meaning set forth in the Code.
"Eligible Accounts" means all Accounts in U.S. dollars evidenced by
a paper invoice or electronic equivalent (valued at the face amount of such
invoice, less maximum applicable discounts, credits and allowances which may be
taken by Account Debtors on such Accounts, and net of any sales tax, finance
charges or late payment charges included in the invoiced amount) created or
acquired by a Borrower arising from the sale of Inventory and/or the provision
of certain services in a Borrower's ordinary course of business in which Bank
has a first (and only) priority, perfected security interest, but excluding,
without duplication,
(a) Accounts owing from customers other than NDC, and Accounts
owing from NDC when NDC is not extending 90 day payment terms to Borrowers, in
either case that are outstanding for longer than ninety (90) days from original
invoice date;
(b) Accounts owing from NDC when NDC is extending 90 day payment
terms to Borrowers that are outstanding for longer than 120 days from original
invoice date;
(c) all Accounts owed by an Account Debtor if more than
twenty-five percent (25%) of the Accounts owed by such Account Debtor to
Borrower are deemed ineligible hereunder pursuant to either clause (a) or (b);
(d) Accounts owing from any Affiliate of a Borrower;
(e) Accounts owed by a creditor of a Borrower to the extent of the
amount of the Debt of such Borrower to such creditor;
(f) Accounts which are in dispute or subject to any counterclaim,
contra-account, volume rebate, cooperative advertising accrual, deposit or
offset, to the extent thereof;
(g) Accounts owing by any Account Debtor which is not Solvent;
(h) Accounts arising from a sale on a guaranteed sale,
sale-or-return, sale-on-approval, consignment or similar basis or which is
subject to repurchase, return, rejection, repossession, loss or damage;
(i) Accounts arising from bill-and-hold and deferred revenue sales
to the extent of 75% of the face amount of such Accounts;
(j) Accounts owed by an Account Debtor that (1) is a Sanctioned
Person or (2) is located outside of the United States of America, unless in its
sole and absolute discretion Bank agrees to allow such Account to be an Eligible
Account and such Account is supported by a letter of credit or credit insurance
assigned to Bank and which is issued by a financial institution and in an amount
and on terms which are acceptable to Bank in its sole and absolute discretion;
5
(k) Accounts owed by the United States of America or other
governmental or quasi-governmental unit, agency or subdivision, unless Borrower
to whom such Account is owing shall have complied with all applicable federal
and state assignment of claims laws, and any Accounts owing from Medicare and
which consist of Medicare payments to a Borrower;
(l) Accounts as to which the goods giving rise to the Account have
not been delivered to and accepted by the Account Debtor or the service giving
rise to the Account has not been completely performed or which do not represent
a final sale;
(m) Accounts evidenced by a note or other Instrument or Chattel
Paper or reduced to judgment;
(n) Accounts for which the total of all Accounts from an Account
Debtor (together with the Affiliates of the Account Debtor) exceed fifteen
percent (15%) of the total Accounts of Borrowers (to the extent of such excess);
(o) Accounts which, by contract, subrogation, mechanics' lien laws
or otherwise, are subject to claims by a Borrower's creditors or other third
parties (other than Bank) or which are owed by Account Debtors as to whom any
creditor of a Borrower (including any bonding company but excluding Bank) has
lien or retainage rights;
(p) Any and all Accounts the validity, collectibility, or amount of
which is determined in good faith by a Borrower or Bank to be doubtful;
(q) Accounts owed by an Account Debtor which is located in a
jurisdiction where a Borrower is required to qualify to transact business or to
file reports, unless such Borrower has so qualified or filed;
(r) Accounts owed by an Account Debtor who disputes the liability
therefor;
(s) Accounts owed by an Account Debtor that shall be the subject of
any proceeding of the type described in Section 8.1(g) or (h);
(t) Aged credit balances outstanding for longer than ninety (90)
days from original invoice date; and
(u) Any other Account which Bank otherwise in its sole and absolute
discretion deems to be ineligible following not less than five (5) days prior
written notice to Borrowers' Representative of such ineligibility.
No Account shall be an Eligible Account if any representation,
warranty or covenant herein relating thereto shall be untrue, misleading or in
default. For the avoidance of doubt, Eligible Accounts shall not include
unapplied cash.
"Eligible PlanVista Accounts" means Accounts of Plan Vista that are
Eligible Accounts, provided no such Accounts will be excluded from Eligible
Accounts pursuant to clauses (a), (b), (c) or (t) of the definition thereof.
"Environmental Laws" means, collectively the following acts
and laws, as amended: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980; the Superfund Amendments and Reauthorization Act of 1986;
the Resource Conservation and Recovery Act; the Toxic Substances Act; the Clean
Water Act; the Clean Air Act; the Oil Pollution and Hazardous Substances Control
Act of 1978; and any other "Superfund" or "Superlien" law or any other federal,
state or local
6
statute, law, ordinance, code, rule, regulation, order or decree relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect.
"Equipment" has the meaning set forth in the Code.
"Equity Interest" means the interest of (i) a shareholder in a
corporation, (ii) a partner (whether general or limited) in a partnership
(whether general, limited or limited liability), (iii) a member in a limited
liability company, or (iv) any other Person having any other form of equity
security or ownership interest.
"ERISA" has the meaning set forth in Section 4.17.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any event specified as such in Section 8.1
hereof ("Events of Default"), provided that there shall have been satisfied any
requirement in connection with such event for the giving of notice or the lapse
of time, or both; "Default" or "default" means any of such events, whether or
not any such requirement for the giving of notice or the lapse of time or the
happening of any further condition, event or act shall have been satisfied.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal, for each day during such period, to the weighted average
of the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by Bank from three Federal Funds brokers of recognized
standing selected by it.
"Fixtures" has the meaning set forth in the Code.
"GAAP" means generally accepted accounting principles as in effect
in the United States from time to time.
"General Intangibles" has the meaning set forth in the Code, and
includes, without limitation, general intangibles of a Borrower, whether now
owned or hereafter created or acquired by a Borrower, including all choses in
action, causes of action, company or other business records, inventions,
blueprints, designs, patents, patent applications, trademarks, trademark
applications, trade names, trade secrets, service marks, goodwill, brand names,
copyrights, registrations, licenses, franchises, customer lists, permits, tax
refund claims, computer programs, operational manuals, internet addresses and
domain names, insurance refunds and premium rebates, all claims under
guaranties, security interests or other security held by or granted to a
Borrower to secure payment of any of any of such Borrower's Accounts by an
Account Debtor, all rights to indemnification and all other intangible property
of a Borrower of every kind and nature (other than Accounts).
"Guarantor" means any Person now or hereafter guaranteeing,
endorsing or otherwise becoming liable for any Obligations.
7
"Guaranty Agreement" means any guaranty of all or any Obligations
now or hereafter executed and delivered by any Guarantor to Bank, as it may be
modified.
"Indenture" has the meaning ascribed to such term in Section 4.24 of
this Agreement.
"Indenture Debt" means Debt incurred by ProxyMed under the
Indenture.
"Instrument" has the meaning set forth in the Code.
"Interest Period" means, in respect of each LIBOR Loan, a period as
selected by Borrowers' Representative of one, two or three months with respect
to such LIBOR Loan; provided that:
(a) the Interest Period shall commence on the date of advance of or
conversion to an LIBOR Loan and, in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the date on which the
next preceding Interest Period expires;
(b) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, that if any Interest Period with respect to a LIBOR Loan
would otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(c) any Interest Period with respect to a LIBOR Loan that begins on
the last Business Day of a calendar month (or on a day for which there is not
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the relevant calendar month at the
end of such Interest Period;
(d) no Interest Period shall extend beyond the Termination Date.
"Inventory" has the meaning set forth in the Code.
"Investment Property" has the meaning set forth in the Code.
"Item" means any "item" as defined in Section 4-104 of the Code, and
shall also mean and include checks, drafts, money orders or other media of
payment.
"Jurisdiction" means the State of Georgia.
"Letter of Credit" means a letter of credit issued by Bank for the
account of a Borrower as provided in Section 2.1.1 and 2.11 hereof.
"Letter of Credit Obligations" means all obligations of each
Borrower to Bank, including but not limited to reimbursement obligations,
commissions and fees, incurred by each Borrower in connection with Bank's
issuance, amendment, renewal or extension of Letters of Credit hereunder.
"Letter-of-Credit Right" has the meaning set forth in the Code.
"Lien" means any mortgage, deed of trust, deed to secure debt,
pledge, statutory lien or other lien arising by operation of law, security
interest, trust arrangement, security deed, financing lease, collateral
assignment or other encumbrance, conditional sale or title retention agreement,
or any other interest in property designed to secure the repayment of
Obligations, whether arising by agreement or under any statute or law or
otherwise.
8
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in U.S. dollars in minimum amounts of at least
$5,000,000 for a period equal to the applicable Interest Period which appears on
Telerate page 3750 at approximately 11:00 a.m. (London time) two (2) LIBOR
Business Days prior to the first day of the applicable Interest Period (rounded
upward, if necessary, to the nearest one-sixteenth of one percent (1/16%)). If,
for any reason, such rate does not appear on Telerate page 3750, then "LIBOR"
shall be determined by Bank to be the arithmetic average of the rate per annum
at which deposits in U.S. dollars in minimum amounts of at least $5,000,000
would be offered by first class banks in the London interbank market to Bank at
approximately 11:00 a.m. (London time) two (2) LIBOR Business Days prior to the
first day of the applicable Interest Period for a period equal to such Interest
Period. Each calculation by Bank of LIBOR shall be conclusive and binding for
all purposes, absent manifest error.
"LIBOR Business Day" means with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Loan, any day that is a Business Day and that is also a day for
trading by and between banks in Dollar deposits in the London interbank market.
"LIBOR Loan" means a Loan during any period in which it bears
interest at a rate based upon the LIBOR Rate.
"LIBOR Market Index Rate", for any day, means the LIBOR Rate where
LIBOR is defined as the rate for 1 month U.S. dollar deposits as reported on
Telerate page 3750 as of 11:00 a.m., London time, on such day, or if such day is
not a London business day, then the immediately preceding London business day
(or if not so reported, then as determined by Bank from another recognized
source or interbank quotation).
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary,
to the next higher 1/100th of 1%) determined by Bank pursuant to the following
formula:
LIBOR
LIBOR Rate = -----------------------------------------
1.00 - Eurodollar Reserve Percentage
"LMIR Loan" means a Loan during any period in which it bears
interest at a rate based upon the LIBOR Market Index Rate.
"Loans" means the Revolver Loans.
"Loan Documents" means this Agreement, each other Security
Agreement, the Notes, each Guaranty Agreement, the Notice of Borrowings, the
Borrower Information Certificate, Borrowing Base Certificates, UCC-1 financing
statements, Lockbox Account Agreements and all other documents and instruments
now or hereafter evidencing, describing, guaranteeing or securing the
Obligations contemplated hereby or delivered in connection herewith, as they may
be modified, amended, extended, renewed or substituted from time to time, but
does not include Swap Agreements.
"Lockbox Account Agreement" means an agreement among a Borrower,
Bank and a Clearing Bank, concerning the collection, treatment and remission of
payments or other deposits which represent the proceeds of Collateral.
"Material Adverse Effect" means any (i) material adverse effect upon
the validity, performance or enforceability of any of the Loan Documents or any
of the transactions contemplated hereby or thereby, (ii) material adverse effect
upon the properties, business, prospects or condition (financial or otherwise)
of any Borrowers and/or any other Person obligated under any of the Loan
9
Documents, (iii) material adverse effect upon the ability of any Borrower or any
other Person to fulfill any obligation under any of the Loan Documents, or (iv)
material adverse effect on the Collateral.
"Material Agreement" means an agreement to which any Borrower or
Guarantor is a party (other than the Loan Documents) (i) which is deemed to be a
material contract as provided in Regulation S-K promulgated by the Securities
and Exchange Commission under the Securities Act of 1933 or (ii) for which
breach, termination, cancellation, nonperformance or failure to renew could
reasonably be expected to have a Material Adverse Effect.
"Net Proceeds" means, with respect to a disposition of any
Collateral, proceeds (including cash receivable (when received) by way of
deferred payment) received by any Borrower in cash from the sale, lease,
transfer or other disposition of such Collateral, including insurance proceeds
and awards of compensation received with respect to the destruction or
condemnation of all or part of such Collateral, net of: (i) the reasonable and
customary costs and expenses of such sale, lease, transfer or other disposition
(including legal fees and sales commissions); (ii) amounts applied to repayment
of Debt for borrowed money (other than the Obligations) secured by a Permitted
Lien on such Collateral disposed of that is senior to Bank's Liens; and (iii) in
connection with any sale of Collateral, a reasonable reserve (not to exceed 5%
of the total purchase price) for post-closing adjustments to the purchase price,
provided that upon the expiration of not more than ninety (90) days after the
sale, any remaining reserve balance is remitted to Bank for application to the
Obligations.
"Notes" shall mean the Revolver Note and any other promissory note
now or hereafter evidencing any Obligations, and all modifications, extensions
and renewals thereof.
"Notice of Borrowing" with respect to Revolver Loans means the
written request for a Revolver Loan as identified in Section 2.5.2 hereof.
"OFAC" means the United States Department of the Treasury's Office
of Foreign Assets Control or any successor thereto.
"Obligations" means all obligations now or hereafter owed to Bank or
any Affiliate of Bank by each Borrower, whether related or unrelated to the
Loans, this Agreement or the Loan Documents, including, without limitation,
amounts owed or to be owed under the terms of the Loan Documents, or arising out
of the transactions described therein, including, without limitation, the Loans,
any Debt arising out of or relating to any Deposit Accounts of Borrower at Bank
or any Affiliate of Bank or any cash management services or other products or
services, including merchant card and ACH transfer services, Letter of Credit
Obligations for outstanding Letters of Credit, obligations for banker's
acceptances issued for the account of any Borrower or its Subsidiaries, amounts
paid by Bank under Letters of Credit or drafts accepted by Bank for the account
of any Borrower or its Subsidiaries, together with all interest accruing
thereon, including any interest on pre-petition Debt accruing after bankruptcy,
all existing and future obligations under any Swap Agreements between Bank or
any Affiliate of Bank and any Borrower whenever executed (including obligations
under Swap Agreements entered into prior to any transfer or sale of Bank's
interests hereunder if Bank ceases to be a party hereto) , all fees, all costs
of collection, attorneys' fees and expenses of or advances by Bank which Bank
pays or incurs in discharge of obligations of any Borrower or to inspect,
repossess, protect, preserve, store or dispose of any Collateral, whether such
amounts are now due or hereafter become due, direct or indirect and whether such
amounts due are from time to time reduced or entirely extinguished and
thereafter re-incurred.
"Original Closing Date" means December 4, 2003.
"Permitted Debt" has the meaning set forth in Section 6.1 hereof.
"Permitted Liens" has the meaning set forth in Section 6.2 hereof.
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"Person" means any natural person, corporation, unincorporated
organization, trust, joint-stock company, joint venture, association, company,
limited or general partnership, limited liability company, any government or any
agency or political subdivision of any government, or any other entity or
organization.
"Prime Rate" means that rate announced by Bank from time to time as
its prime rate and is one of several interest rate bases used by Bank. Bank
lends at rates both above and below Bank's Prime Rate, and each Borrower
acknowledges that Bank's Prime Rate is not represented or intended to be the
lowest or most favorable rate of interest offered by Bank.
"Proceeds" has the meaning set forth in the Code.
"Properly Contested" means, in the case of any Debt of any Borrower
or Guarantor (including any taxes) that is not paid as and when due or payable
by reason of such Borrower's or such Guarantor's bona fide dispute concerning
its liability to pay same or concerning the amount thereof, (i) such Debt is
being properly contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; (ii) such Borrower or Guarantor has
established appropriate reserves as shall be required in conformity with GAAP;
(iii) the non-payment of such Debt will not have a Material Adverse Effect and
will not result in a forfeiture or sale of any assets of such Borrower or
Guarantor; (iv) no Lien is imposed upon any of such Borrower's or Guarantor's
assets with respect to such Debt unless such Lien is at all times junior and
subordinate in priority to the Liens in favor of Bank (except only with respect
to property taxes that have priority as a matter of applicable state law) and
enforcement of such Lien is stayed during the period prior to the final
resolution or disposition of such dispute; (v) if the Debt results from, or is
determined by the entry, rendition or issuance against such Borrower or
Guarantor or any of its assets of a judgment, writ, order or decree, enforcement
of such judgment, writ, order or decree is stayed pending a timely appeal or
other judicial review; and (vi) if such contest is abandoned, settled or
determined adversely (in whole or in part) to such Borrower or Guarantor, such
Borrower or Guarantor forthwith pays such Debt and all penalties, interest and
other amounts due in connection therewith.
"Purchase Money Debt" means and includes (i) Debt (other than the
Obligations) for the payment of all or any part of the purchase price of an
Equipment or other fixed assets of a Borrower, (ii) any Debt (other than the
Obligations) incurred at the time of or within ten (10) days prior to or after
the acquisition of any Equipment or other fixed assets of a Borrower for the
purpose of financing all or any part of the purchase price thereof, and (iii)
any renewals, extensions or refinancings, but not any increases in the principal
amounts thereof outstanding at the time.
"Regulated Materials" means any hazardous, toxic or dangerous waste,
substance or material, the generation, handling, storage, disposal, treatment or
emission of which is subject to any Environmental Law.
"Reserves" means such amounts, including but not limited to reserves
for Swap Agreement Obligations, as may be required by Bank at any time and from
time to time in Bank's sole and absolute discretion.
"Revolver Balance" means, on any date of determination, the sum of
the unpaid balance of the Loans and Letter of Credit Obligations on such date.
"Revolver Commitment" means the commitment of Bank, subject to the
terms and conditions herein, to make Revolver Loans and issue Letters of Credit
in accordance with the provisions of Section 2 hereof in an aggregate amount not
to exceed $15,000,000 at any one time from and after the Closing Date through
and including June 29, 2006, and $12,500,000 at any one time from and after June
30, 2006 through and including the Termination Date.
"Revolver Loan" means a loan made by Bank as provided in Section
2.1.1 hereof.
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"Revolver Note" has the meaning set forth in Section 2.1.2 hereof.
"Sanctioned Country" means a country subject to the sanctions
program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html or as otherwise
published from time to time.
"Sanctioned Person" means (i) a Person named on the list of
Specially Designated Nationals or Blocked Persons maintained by OFAC available
at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html or as otherwise
published from time to time, or (ii) (A) an agency of the government of a
Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or
(C) a Person resident in a Sanctioned Country, to the extent subject to a
sanctions program administered by OFAC.
"Security Agreement" means this Agreement as it relates to a
security interest in the Collateral, and any other mortgage instrument, security
agreement or similar instrument now or hereafter executed by any Borrower or
other Person granting Bank a security interest in any Collateral to secure the
Obligations.
"Senior Officer" means the chairman of the board of directors, the
president or the chief financial officer of, or in-house legal counsel to,
Borrowers' Representative.
"Solvent" means, as to any Person, that such Person has capital
sufficient to carry on its business and transactions in which it is currently
engaged and all business and transactions in which it is about to engage, is
able to pay its debts as they mature, and has assets having a fair value greater
than its liabilities, at fair valuation.
"Subordinated Debt" means unsecured Debt, including the Indenture
Debt, incurred by a Borrower that is expressly subordinated and made junior to
the payment and performance in full of the Obligations and contains terms and
conditions (including terms relating to interest, fees, repayment and
subordination) satisfactory to Bank.
"Subsidiary" means any corporation, partnership or other entity in
which any Borrower, directly or indirectly, owns more than fifty percent (50%)
of the stock, capital or income interests, or other beneficial interests, or
which is effectively controlled by such Person.
"Supporting Obligation" has the meaning set forth in the Code.
"Swap Agreement" has the meaning for swap agreement as defined in 11
U.S.C. Section 101, as in effect from time to time, or any successor statute,
and includes, without limitation, any rate swap agreement, forward rate
agreement, commodity swap, commodity option, interest rate option, forward
foreign exchange agreement, spot foreign exchange agreement, rate cap agreement,
rate floor agreement, rate collar agreement, currency swap agreement,
cross-currency rate swap agreement, currency option and any other similar
agreement.
"Tangible Chattel Paper" has the meaning set forth in the Code.
"Taxes" means any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including income, receipts, excise, property, sales, transfer, license, payroll,
withholding, social security and franchise taxes now or hereafter imposed or
levied by the United States, or any other governmental authority and all
interest, penalties, additions to tax and similar liabilities with respect
thereto.
12
"Term" means the period from and including the Closing Date to but
not including the Termination Date.
"Termination Date" means the earliest of (i) April 30, 2008, (ii)
the date on which Borrowers terminate this Agreement and the credit facilities
provided hereunder pursuant to Section 2.14 hereof, and (iii) the date on which
Bank terminates its obligation to make Loans and other extensions of credit to
Borrowers pursuant to Section 8.2(a) hereof.
"Third Party Waiver" means a waiver or subordination of Liens
satisfactory to Bank from any lessors, mortgages, warehouse operators,
processors or other third parties that might have lienholders' enforcement
rights against any Collateral, waiving or subordinating those rights in favor of
Bank and assuring Bank's access to the Collateral in exercise of Bank's rights
hereunder.
"Upstream Payment" means a payment or distribution of cash or other
Property by a Subsidiary to a Borrower, whether in repayment of Debt owed by
such Subsidiary to such Borrower, as a dividend or distribution on account of
such Borrower's ownership of Equity Interests, or otherwise.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT) Act of 2001, as amended.
1.2 FINANCIAL TERMS. All financial terms used herein shall have the
meanings assigned to them under GAAP unless another meaning shall be specified.
2. THE CREDIT FACILITY; LETTERS OF CREDIT; INTEREST AND FEES.
2.1 THE CREDIT FACILITY
2.1.1 Revolver Commitment. Bank agrees, on the terms and
conditions set forth in this Agreement, to make Revolver Loans to Borrowers and
to issue Letters of Credit on behalf of Borrowers from time to time during the
Term in amounts such that the aggregate principal amount of Revolver Loans and
the face amount of any Letters of Credit at any one time outstanding will not
exceed the lesser of (i) the Revolver Commitment and (ii) the Borrowing Base.
Revolver Loans may be Base Rate Loans, LMIR Loans or LIBOR Loans. Within the
foregoing limit, Borrowers may borrow, prepay and reborrow Revolver Loans at any
time during the Term. The proceeds of the Revolver Loans shall be used solely by
Borrowers for the following purposes: to refinance existing Debt and to finance
the working capital and other general corporate needs of Borrowers.
2.1.2 Revolver Note. Borrowers shall execute and deliver to
Bank, on the Closing Date, a promissory note in the form of Exhibit A-1 attached
hereto and made a part hereof (the "Revolver Note"), which Revolver Note, in
addition to the records of Bank, shall evidence the Revolver Loans and interest
accruing thereon. All outstanding principal amounts and accrued interest under
the Revolver Note shall be due and payable in accordance with the terms of the
Revolver Note and this Agreement.
2.2 COLLECTIONS ACCOUNT.
2.2.1 Collections Account; Blocked Accounts; Lockbox Account
Agreements. Borrowers shall instruct all Account Debtors to forward
payments on the Accounts to one or more lockboxes under the control of Bank for
deposit into the Collections Account or the Blocked Accounts. All payments on
Accounts and other Collateral received by Borrowers and in the Blocked Accounts
shall be forwarded by Borrowers to the Collections Account. Borrowers shall pay
all of Bank's or such Clearing Bank' standard fees and charges in connection
with such lockbox arrangement (if any), Collections Account and Blocked Accounts
as such fees and charges may change from time to time. In the event Bank
requires a lockbox arrangement hereunder, each affected Borrower shall notify
13
Account Debtors on its Accounts to forward payments on such Accounts to the
lockbox; provided, however, that after an Event of Default Bank shall have the
right directly to contact such Account Debtors at any time to ensure that
payments on the Accounts are directed to the lockbox. All payment items received
by any Borrower on Accounts and sale of Inventory and other Collateral shall be
held by such Borrower in trust for Bank and not commingled with such Borrower's
funds and shall be deposited promptly by such Borrower to the Collections
Account or the Blocked Accounts. All such items shall be the exclusive property
of Bank upon the earlier of the receipt thereof by Bank or by any Borrower. Each
Borrower hereby grants to Bank a security interest in and lien upon all items
and balances held in any lockbox, the Disbursements Account, the Collections
Account and the Blocked Accounts as Collateral for the Obligations, in addition
to and cumulative with the general security interest in all assets of each
Borrower (including all Deposit Accounts) contained in Section 9.1 hereof. Each
Lockbox Account Agreement shall be in a form reasonably acceptable to Bank and
shall provide for, among other things, (A) that the receipts and any and all
other funds on deposit in the Blocked Account subject to such Lockbox Account
Agreement are the collateral of Bank and that Bank has "control" over such
Blocked Account pursuant to Article 9 of the Code, (B) that such bank has no
lien upon, or right to setoff against, the Blocked Account subject to such
Lockbox Account Agreement, the receipts, or any other funds from time to time on
deposit therein, other than for its service fees and other charges relating to
such account and for returned checks or other items of payment, and (C) that
such bank will wire, or otherwise transfer, in available funds on a daily basis,
all receipts and other funds on deposit in such accounts into the Collections
Account for application on account of the Loans.
2.2.2 Power of Attorney. Each Borrower hereby irrevocably
appoints Bank (and any duly authorized Person designated by Bank) as such
Borrower's attorney-in-fact to endorse such Borrower's name on any checks,
drafts, money orders or other media of payment which come into Bank's possession
or control; this power being coupled with an interest is irrevocable so long as
any of the Obligations remain outstanding. Such endorsement by Bank under power
of attorney shall, for all purposes, be deemed to have been made by such
Borrower (prior to any subsequent endorsement by Bank) in negotiation of the
item.
2.2.3 Application of Payments. Payment items received into the
Collections Account shall be applied by Bank on account of the Revolver Loans on
the Business Day after deposit by Borrower, subject to chargebacks for
uncollected payment items. Available funds received into the Collections Account
from a Clearing Bank pursuant to a Lockbox Account Agreement shall be applied by
Bank on account of the Revolver Loans on the Business Day such available funds
are received by Bank, subject to chargebacks for uncollected payment items. If
no Event of Default exists and no Revolver Loans are then outstanding or have
been repaid, Bank shall pay over such of the proceeds of such payments to a
Deposit Account maintained by Borrower at Bank and designated in writing by
Borrowers' Representative. No payment item received by Bank shall constitute
payment to Bank until such item is actually collected by Bank and credited to
the Collections Account; provided, however, that Bank shall have the right to
charge back to the Collections Account (or any other account of any Borrower
maintained at Bank) an item which is returned for inability to collect, plus
accrued interest during the period of Bank's provisional credit for such item
prior to receiving notice of dishonor.
2.3 INTEREST. Each Borrower agrees to pay interest in respect of
all unpaid principal amounts of the Loans from the respective dates such
principal amounts are advanced until paid (whether at stated maturity, on
acceleration or otherwise) at a rate per annum equal to the applicable rate
indicated below.
2.3.1 LMIR/LIBOR Election. Borrowers' Representative may elect
to have all Loans bear interest at a rate based upon the LIBOR Market Index
Rate, or Borrowers' Representative may elect to have all Loans bear interest at
a rate based upon the LIBOR Rate. Borrowers' Representative may elect to have
all Loans bear interest at a rate based upon the LIBOR Market Index Rate only at
a time when no LIBOR Loans are outstanding. Subject to the immediately preceding
sentence, any request for, or rate conversion to, an LMIR Loan pursuant to
Section 2.5.1 shall
14
constitute Borrowers' Representative's election to have all Loans bear interest
at a rate based upon the LIBOR Market Index Rate. Any request for, or rate
conversion to, a LIBOR Loan pursuant to Section 2.5.1 shall constitute
Borrowers' Representative's election to have all Loans bear interest at a rate
based upon the LIBOR Rate.
2.3.2 LMIR Loans. If Borrowers' Representative has elected to
have all Loans bear interest at a rate based on the LIBOR Market Index Rate,
then except as set forth in Section 2.3.3, all Loans shall constitute LMIR Loans
and shall bear interest at the Applicable Margin in effect from time to time for
such LMIR Loans plus the LIBOR Market Index Rate in effect from time to time.
2.3.3 Base Rate Loans. Notwithstanding anything to the
contrary in this Agreement, if Borrowers' Representative has elected to have all
Loans bear interest at a rate based on the LIBOR Market Index Rate and (a)
Borrowers' Representative should request or (b) Bank should at any time
determine that (i) it is not possible to determine the LIBOR Market Index Rate
or (ii) that the LIBOR Market Index Rate is no longer available or (iii) a
Default or Event of Default exists, then all Loans shall constitute Base Rate
Loans and shall bear interest at the Applicable Margin in effect from time to
time for such Base Rate Loans plus the Base Rate in effect from time to time.
2.3.4 LIBOR Loans. If Borrowers' Representative has elected to
have all Loans bear interest at a rate based on the LIBOR Rate, for Loans made
or outstanding as LIBOR Loans, such LIBOR Loans shall bear interest at the
Applicable Margin in effect from time to time for such LIBOR Loans plus the
LIBOR Rate.
2.3.5 Indemnification. Each Borrower shall indemnify Bank
against Bank's loss or expense as a consequence of (a) any Borrower's failure to
make any payment when due on a LIBOR Loan, (b) any payment, prepayment or
conversion of any LIBOR Loan on a day other than the last day of the Interest
Period, or (c) any failure to make a borrowing or conversion of a LIBOR Loan
after giving notice thereof, in each case whether voluntarily, by reason of
acceleration or otherwise ("Indemnified Loss or Expense"). The amount of such
Indemnified Loss or Expense shall be determined by Bank based upon the
assumption that Bank funded 100% of the applicable LIBOR Loan in the London
interbank market.
The LIBOR Market Index Rate on the date hereof is 2.99% per annum and,
therefore, the rate of interest in effect hereunder on the date hereof,
expressed in simple interest terms, is 5.74% per annum with respect to any
portion of the Revolver Loans bearing interest as a LMIR Loan.
2.4 INTEREST RATE ADJUSTMENTS.
2.4.1 Base Rate Loan. When a Base Rate Loan is selected, the
interest rate shall be adjusted from time to time, effective as of the date of
each change in the Base Rate, and the Base Rate shall continue to apply until
another interest rate option is selected by Borrowers' Representative for that
Loan.
2.4.2 LMIR Loan. When a LMIR Loan is selected, the interest
rate shall be adjusted daily as applicable to reflect LIBOR Market Index Rate
then in effect and the LIBOR Market Index-based Rate shall continue to apply
until another interest rate option is selected by Borrowers' Representative for
that Loan.
2.4.3 LIBOR Loan. When a LIBOR Loan is selected, such interest
rate shall be fixed for each Interest Period for which it is determined and
shall apply for that Loan until another interest rate option is selected by
Borrowers' Representative for that Loan.
2.5 NOTICE AND MANNER OF BORROWING AND RATE CONVERSION.
15
2.5.1 Revolver Loans. Borrowers' Representative shall give
Bank irrevocable telephonic notice of each proposed Revolver Loan or permitted
rate conversion not later than 11:00 a.m. (local time in Atlanta, Georgia) (a)
on the same business day as each proposed Loan or rate conversion to a Base Rate
Loan or a LMIR Loan and (b) at least 2 LIBOR Business Days before each proposed
Loan as, or rate conversion to, a LIBOR Loan. Such notice shall specify (i) the
date of such Loan or rate conversion, which shall be a Business Day or in the
case of a LIBOR Loan, a LIBOR Business Day and, in the case of a conversion from
a LIBOR Loan, shall be the last day of an Interest Period, (ii) the amount of
each Loan or the amount to be converted, (iii) the interest rate selected by
Borrowers' Representative from the interest rate options set forth in this
Agreement, and (iv) except for a Base Rate Loan or a LMIR Loan, the Interest
Period applicable thereto, which period must correspond to one of the interest
rate options set forth in the definition of LIBOR Rate. Notices received after
11:00 a.m. (local time in Atlanta, Georgia) shall be deemed received on the next
Business Day. Bank's acceptance of such a request shall be indicated by its
making the Loan requested. Such a Loan shall be made available to Borrowers'
Representative in immediately available funds by deposit into the Disbursement
Account. Borrowers' Representative may not request any LIBOR Loans if a Default
or Event of Default exists. In no event may the number of LIBOR Loans
outstanding at any time exceed 4. Each LIBOR Loan requested shall be in a
minimum amount of $500,000 and integral multiples of $100,000 in excess of that
amount.
2.5.2 Additional Provisions for Requests for Revolver Loans.
Bank, in its discretion, may require from Borrowers' Representative a signed
written request for a Revolver Loan in form of a Notice of Borrowing
satisfactory to Bank, which request shall be irrevocable and shall be delivered
to Bank no later than 11:00 a.m. (local time in Atlanta, Georgia) on the date
determined in accordance with Section 2.5.1, and shall set forth the calculation
of the Borrowing Base and a reconciliation to the previous request or Borrowing
Base Certificate, specify the information required by Section 2.5.1 for the
proposed Revolver Loan and provide such other information as Bank may require.
(a) Subject to subsection 2.5.2(c) below, unless payment is
otherwise timely made by any Borrower, the becoming due of any amount required
to be paid with respect to any of the Obligations (whether as principal, accrued
interest, fees or other charges owed to Bank or any Affiliate of Bank) shall be
deemed irrevocably to be a request (without the requirement for the submission
of a Notice of Borrowing) for Revolver Loans on the due date of, and in an
aggregate amount required to pay, such Obligations, and Bank may disburse the
proceeds of such Revolver Loans by way of direct payment of the relevant
Obligations, and such Revolver Loans shall bear interest at the rate base then
in effect.
(b) Subject to subsection 2.5.2(c) below, the presentation
for payment of any check or other item of payment drawn on the Disbursement
Account at a time when there are insufficient funds in such account to cover
such item shall be deemed irrevocably to be a request (without any requirement
for the submission of a Notice of Borrowing) for Revolver Loans on the date of
such presentation in an amount equal to the aggregate amount of the items
presented for payment, and Bank may disburse the proceeds of such Revolver Loans
to the Disbursement Account and such Revolver Loans shall bear interest at the
rate base then in effect.
(c) Bank shall have no obligation to any Borrower to honor
any deemed request for a Revolver Loan under Section 2.5.2(a) or Section
2.5.2(b) above after the Termination Date or when the principal amount of such
Revolver Loan, when added to the aggregate outstanding principal amount of all
Revolver Loans and the Letter of Credit Obligations would exceed the lesser of
the Revolver Commitment and the Borrowing Base at such time or when any
condition precedent in Section 3.2 hereof is not satisfied, but may do so in its
sole and absolute discretion and without regard to the existence of, and without
being deemed to have waived, any Default or Event of Default.
16
2.5.3 Excess Outstandings. Notwithstanding the foregoing, Bank
may, in its sole and absolute discretion, make or permit to remain outstanding
Revolver Loans which, when added to the principal amount of all other Revolver
Loans and Letter of Credit Obligations, exceed the Revolver Commitment or the
Borrowing Base, and all such amounts shall (i) be part of the Obligations
evidenced by the Revolver Note, (ii) bear interest as provided herein, (iii) be
payable upon demand by Bank, and (iv) be secured by the Collateral and be
entitled to all rights and security as provided under the Loan Documents.
2.6 REPAYMENT OF LOANS.
2.6.1 Repayment of Revolver Loans.
(a) The outstanding principal amount of the Revolver Loans
shall be repaid as follows: Any portion of the Revolver Loans shall be paid by
Borrowers to Bank immediately upon each receipt by Bank or any Borrower of any
proceeds of any Accounts or Inventory, to the extent of such proceeds. Bank may
apply all proceeds of Accounts or other Collateral received by Bank and all
other payments in respect of the Obligations to the Revolver Loans whether or
not then due or to any other Obligations then due, in whatever order or manner
Bank shall determine. In any event, the outstanding principal amount of Revolver
Loans shall be due and payable on the Termination Date. Unless otherwise
specified by Borrowers' Representative, all principal repayment of Revolver
Loans shall be applied by Bank first to outstanding Base Rate Loans, and then to
outstanding LMIR Loans and then to any outstanding LIBOR Loans.
(b) Interest accrued on the Revolver Loans shall be due and
payable on (i) the first day of each month for the immediately preceding month,
computed through the last calendar day of the preceding month whether a Base
Rate Loan, a LMIR Loan or a LIBOR Loan; and (ii) on the Termination Date.
2.7 ADDITIONAL PAYMENT PROVISIONS.
2.7.1 Payment of Other Obligations. The balance of the
Obligations under the Loan Documents requiring the payment of money shall be
repaid by Borrowers to Bank as and when provided in the relevant Loan Documents,
or, if no date of payment is otherwise specified in the Loan Documents, ON
DEMAND.
2.7.2 Authorization to Debit. Bank may debit the Disbursement
Account, the Collections Account and any account subject to Bank's control (as
such term is used in Article 9 of the Code) and/or make Revolver Loans to
Borrowers (whether or not in excess of the lesser of the Revolver Commitment and
the Borrowing Base) and apply such amounts to the payment of interest, fees,
expenses and other amounts to which Bank may be entitled from time to time and
Bank is hereby irrevocably authorized to do so without the consent of Borrowers.
Bank shall endeavor to provide Borrowers' Representative with timely notice of
any such debit and/or Revolver Loan, but Bank's failure to provide such notice
shall not result in a default by Bank hereunder or affect Bank's rights and
remedies under this Loan Agreement in any way. Notwithstanding the foregoing,
Bank shall not debit any Deposit Account of any Borrower into which Medicare
directly deposits Medicare payments due to any Borrower and shall not exercise
its right of set-off against any such Deposit Account.
2.7.3 Time and Location of Payment. Borrowers shall make each
payment of principal of and interest on the Loans and fees hereunder not later
than 12:00 noon (local time Atlanta, Georgia) on the date when due, without set
off, counterclaim or other deduction, in immediately available funds to Bank at
its address referred to in Section 10.4. Whenever any payment of principal of,
or interest on, the Loans or of fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. If the date for any
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payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
2.7.4 Excess Over Borrowing Base. To the extent that the
aggregate amount of all Revolver Loans and the Letter of Credit Obligations
exceeds the Borrowing Base at any time, the amount of such excess will be paid
immediately to Bank.
2.7.5 Swaps Are Independent. Any prepayment of any Loans shall
not affect any Borrower's obligation to continue making payments under any Swap
Agreement, which shall remain in full force and effect notwithstanding such
prepayment, subject to the terms of such Swap Agreement.
2.7.6 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any applicable law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other governmental authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by Bank or any corporation controlling Bank as a consequence of, or with
reference to, the Revolver Commitment and other commitments of this type, below
the rate which Bank or such other corporation could have achieved by for such
introduction, change or compliance, then within five (5) Business Days after
written demand by Bank, Borrowers shall pay to Bank from time to time as
specified by Bank additional amounts sufficient to compensate Bank or such other
corporation for such reduction. A certificate as to such amounts submitted to
Borrowers' Representative by Bank shall, in the absence of manifest error, be
presumed to be correct and binding for all purposes.
2.8 DEFAULT RATE. In addition to all other rights contained in the
Loan Documents, if an Event of Default occurs, the principal amount of all
outstanding Obligations, other than Obligations under any Swap Agreements
between any Borrower and Bank or its affiliates, may, at Bank's option, bear
interest at the Default Rate. The Default Rate shall apply from acceleration
until such Obligations or any judgment thereon is paid in full.
2.9 CALCULATION OF INTEREST. All fees and other charges provided for
in this Agreement that are calculated as a per annum percentage of any amount
and all interest shall be calculated daily and shall be computed on the actual
number of days elapsed over a year of 360 days. For purposes of computing
interest and other charges hereunder, all payment items and other forms of
payment received by Bank shall be deemed applied by Bank on account of the
Obligations (subject to final payment of such items) on the first Business Day
after Bank receives such items in immediately available funds in the Collections
Account. Each determination by Bank of interest and fees hereunder shall be
presumptive evidence of the correctness of such interest and fees.
2.10 RESERVED.
2.11 LETTERS OF CREDIT.
2.11.1 Issuance of Letters of Credit. Bank shall from time to
time issue, upon five (5) Business Days prior written notice, extend or renew
Letters of Credit for the account of any Borrower or its Subsidiaries; provided
that (i) the aggregate face amount of Letters of Credit issued by Bank which are
outstanding at any one time shall not exceed $5,000,000, (ii) Bank shall have no
obligation to issue any Letter of Credit if, after giving effect thereto, the
principal amount of all Revolver Loans and all Letter of Credit Obligations
would exceed the lesser of the Borrowing Base and the Revolver Commitment, and
(iii) all other conditions precedent to the issuance of each such Letter or
Credit as set forth herein are satisfied or waived in writing by Bank. All
payments made by Bank under any such Letters of Credit (whether or not a
Borrower is the account party) and all fees, commissions, discounts and other
amounts owed or to be owed to Bank in connection therewith, shall be paid on
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demand, unless Borrowers' Representative instructs Bank to make a Revolver Loan
to pay such amount, Bank agrees to do so, and the necessary amount remains
available to be drawn as a Revolver Loan hereunder. All Letter of Credit
Obligations shall be secured by the Collateral. Each Borrower shall complete and
sign such applications and supplemental agreements and provide such other
documentation as Bank may require in respect to the issuance and administration
of the Letters of Credit. The form and substance of all Letters of Credit,
including expiration dates, shall be subject to Bank's approval, and Bank shall
have no obligation to issue any Letter of Credit or accept which has a maturity
date later than the Termination Date. Bank may charge certain fees or
commissions for the issuance, handling, renewal or extension of a Letter of
Credit. Borrowers unconditionally, jointly and severally guaranty all
obligations of any Subsidiary with respect to Letters of Credit issued by Bank
for the account of such Subsidiary. Upon a Default, Borrowers shall, on demand,
deliver to Bank good funds equal to 105% of Bank's maximum liability under all
outstanding Letters of Credit, to be held as cash Collateral for Borrowers'
reimbursement obligations and other Obligations.
2.11.2 Law Governing Letter of Credit. Any Letter of Credit
issued hereunder shall be governed, as applicable, by the Uniform Customs and
Practice for Documentary Credits International Chamber of Commerce ("ICC")
Publication 500 or any subsequent revision or restatement thereof adopted by the
ICC and in use by Bank or the International Standby Practices, ICC Publication
No. 590 or any subsequent revision or restatement thereof adopted by the ICC and
in use by Bank, except to the extent that the terms of such publication would
limit or diminish rights granted to Bank hereunder or in any other Loan
Document.
2.12 FEES.
2.12.1 Closing Fee. Borrowers shall pay to Bank a
non-refundable, fully earned closing fee in the amount of $50,000, payable on
the Closing Date.
2.12.2 Unused Line Fee. Borrowers shall pay to Bank an unused
line fee with respect to the Revolver Commitment for each day equal to the
product of (i) 25 basis points per annum multiplied by (ii) the difference
between (A) the Revolver Commitment and (B) the aggregate outstanding amount of
the Revolver Loans and Letter of Credit Obligations on such day, payable
quarterly on the first day of each calendar quarter with respect to the
immediately preceding quarter.
2.12.3 Letter of Credit Fees. Borrowers shall pay to Bank, at
such times as Bank shall require, Bank's standard fees in connection with
Letters of Credit, as in effect from time to time, and with respect to standby
and commercial Letters of Credit, at the time of issuance of each Letter of
Credit, a fee equal to the Applicable Margin at such time on LMIR Loans and
LIBOR Loans per annum on the face amount of the Letter of Credit for the period
of time the Letter of Credit will be outstanding.
2.13 STATEMENT OF ACCOUNT. If Bank provides Borrowers'
Representative with a statement of account on a periodic basis, such statement
will be presumed complete and accurate and will be definitive and binding on
Borrowers, unless objected to with specificity by Borrowers' Representative in
writing within forty-five (45) days after receipt.
2.14 TERMINATION. Upon at least five (5) days prior written notice
to Bank, Borrowers may, at their option, terminate this Agreement and the
Revolver Commitment in its entirety but not partially; provided however, no such
termination by Borrowers shall be effective until the full, final and
indefeasible payment of the Obligations in cash or immediately available funds
and in the case of any Obligations consisting of contingent obligations, Bank's
receipt of either cash or a direct pay letter of credit naming Bank as
beneficiary and in form and substance and from an issuing bank acceptable to
Bank, in each case in an amount not less than 105% of the aggregate amount of
all such contingent obligations. Any notice of termination given by Borrowers
shall be irrevocable unless Bank otherwise agrees in writing. Bank may terminate
this Agreement and the Revolver Commitment at any time, without notice, upon or
after the occurrence of a Default or Event of Default.
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2.15 USA PATRIOT ACT NOTICE. To help fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions
to obtain, verify, and record information that identifies each Person who opens
an account. For purposes of this section, account shall be understood to include
loan accounts.
2.16 BORROWERS' REPRESENTATIVE. Each Borrower hereby irrevocably
appoints ProxyMed as, and ProxyMed shall act under this Agreement as, the agent
and representative of itself and each other Borrower for all purposes under this
Agreement, including requesting Loans, selecting whether any Loan or portion
thereof is to bear interest as a Base Rate Loan, a LMIR Loan or a LIBOR Loan,
submitting Borrowing Base Certificates and receiving account statements and
other notices and communications to Borrowers (or any of them) from Bank. Bank
may rely, and shall be fully protected in relying, on any Notice of Borrowing,
notice of conversion or continuation, disbursement instructions, reports,
information or any other notice or communication made or given by ProxyMed,
whether in its own name, on behalf of any Borrower or on behalf of "the
Borrowers," and Bank shall have no obligation to make any inquiry or request any
confirmation from or on behalf of any other Borrower as to the binding effect on
such Borrower of any such request, instruction, report, information, notice or
communication, nor shall the joint and several character of Borrowers' liability
for the Obligations be affected, provided that the provisions of this Section
4.3 shall not be construed so as to preclude any Borrower from directly
requesting Loans or taking other actions permitted to be taken by "a Borrower"
hereunder. Bank may maintain a single loan account in the name of "ProxyMed"
hereunder, and each Borrower expressly agrees to such arrangement and confirms
that such arrangement shall have no effect on the joint and several character of
such Borrower's liability for the Obligations.
2.17 NATURE AND EXTENT OF EACH BORROWER'S LIABILITY.
2.17.1 Joint and Several Liability. Each Borrower shall be
liable for, on a joint and several basis, and hereby guarantees the timely
payment by all other Borrowers of, all of the Loans and other Obligations,
regardless of which Borrower actually may have received the proceeds of any
Loans or other extensions of credit hereunder or the amount of such Loans
received or the manner in which Bank accounts for such Loans or other extensions
of credit on its books and records, it being acknowledged and agreed that Loans
to any Borrower inure to the mutual benefit of all Borrowers and that Bank is
relying on the joint and several liability of Borrowers in extending the Loans
and other financial accommodations hereunder. Each Borrower hereby
unconditionally and irrevocably agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any principal of,
or interest owed on, any of the Loans or other Obligations, such Borrower shall
forthwith pay the same, without notice or demand.
2.17.2 Unconditional Nature of Liability. Each Borrower's
joint and several liability hereunder with respect to, and guaranty of, the
Loans and other Obligations shall, to the fullest extent permitted by applicable
law, be unconditional irrespective of (i) the validity, enforceability,
avoidance or subordination of any of the Obligations or of any promissory note
or other document evidencing all or any part of the Obligations, (ii) the
absence of any attempt to collect any of the Obligations from any other Borrower
or Guarantor or any Collateral or other security therefor, or the absence of any
other action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by Bank with respect to any of the
Obligations or any Instrument or agreement evidencing or securing the payment of
any of the Obligations, or any other agreement now or hereafter executed by any
other Borrower and delivered to Bank, (iv) the failure by Bank to take any steps
to perfect or maintain the perfected status of its security interest in or Lien
upon, or to preserve its rights to, any of the Collateral or other security for
the payment or performance of any of the Obligations, or Bank's release of any
Collateral or of its Liens upon any Collateral, (v) Bank's election, in any
proceeding instituted under Title 11 of the United States Code (the "Bankruptcy
Code"), for the application of Section 1111(b)(2) of the Bankruptcy Code, (vi)
any borrowing or grant of a security interest by any other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the release
or compromise, in whole or in part, of the liability of any Borrower or
Guarantor for the payment of any of the
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Obligations, (viii) any amendment or modification of any of the Loan Documents
or waiver of any Default or Event of Default thereunder, (ix) any increase in
the amount of the Obligations beyond any limits imposed herein or in the amount
of any interest, fees or other charges payable in connection therewith, or any
decrease in the same, (x) the disallowance of all or any portion of Bank's
claims for the repayment of any of the Obligations under Section 502 of the
Bankruptcy Code, or (xi) any other circumstance that might constitute a legal or
equitable discharge or defense of any Borrower or Guarantor. At any time an
Event of Default exists, Bank may proceed directly and at once, without notice
to any Borrower or Guarantor, against any or all Borrowers or Guarantors to
collect and recover all or any part of the Obligations, without first proceeding
against any other Borrower or Guarantor or against any Collateral or other
security for the payment or performance of any of the Obligations, and each
Borrower waives any provision that might otherwise require Bank under applicable
law to pursue or exhaust its remedies against any Collateral, Borrower or
Guarantor before pursuing such Borrower or another Borrower or Guarantor. Each
Borrower consents and agrees that Bank shall be under no obligation to marshal
any assets in favor of any Borrower or Guarantor or against or in payment of any
or all of the Obligations.
2.17.3 No Reduction in Liability for Obligations. No payment
or payments made by a Borrower or Guarantor or received or collected by Bank
from a Borrower or any other Person by virtue of any action or proceeding or any
setoff or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Borrower under this Agreement
(except to the extent of such reduction of the Obligations), each of which shall
remain jointly and severally liable for the payment and performance of all Loans
and other Obligations until the Obligations are paid in full and the Agreement
is terminated.
2.17.4 Contribution. Each Borrower is unconditionally
obligated to repay the Obligations as a joint and several obligor under this
Agreement. If, as of any date, the aggregate amount of payments made by a
Borrower on account of the Obligations and proceeds of such Borrower's
Collateral that are applied to the Obligations exceed the aggregate amount of
Loan proceeds actually used by such Borrower in its business (such excess amount
being referred to as an "Accommodation Payment"), then each of the other
Borrowers shall be obligated to make contribution to such Borrower (the "Paying
Borrower") in an amount equal to (A) the product derived by multiplying the sum
of each Accommodation Payment of each Borrower by the Allocable Percentage of
the Borrowers from whom contribution is sought less (B) the amount, if any, of
the then outstanding Accommodation Payment of such Contributing Borrower (such
last mentioned amount which is to be subtracted from the aforesaid product to be
increased by any amounts theretofore paid by such Contributing Borrower by way
of contribution hereunder, and to be decreased by any amounts theretofore
received by such Contributing Borrower by way of contribution hereunder);
provided, however, that a Paying Borrower's recovery of contribution hereunder
from the other Borrowers shall be limited to that amount paid by the Paying
Borrower in excess of its Allocable Percentage of all Accommodation Payments
then outstanding of all Borrowers. As used herein, the term "Allocable
Percentage" shall mean, on any date of determinations thereof, a fraction the
denominator of which shall be equal to the number of Borrowers who are parties
to this Agreement on such date and the numerator of which shall be 1; provided,
however, that such percentages shall be modified in the event that contribution
from a Borrower is not possible by reason of insolvency, bankruptcy or otherwise
by reducing such Borrower's Allocable Percentage equitably and by adjusting the
Allocable Percentage of the other Borrowers proportionately so that the
Allocable Percentages of all Borrowers at all times equals 100%.
2.17.5 Subordination. Each Borrower hereby subordinates any
claims, including any right of payment, subrogation, contribution and indemnity,
that it may have from or against any other Borrower or Guarantor, and any
successor or assign of any other Borrower or Guarantor, including any trustee,
receiver or debtor-in-possession, howsoever arising, due or owing or whether
heretofore, now or hereafter existing, to the payment in full of all of the
Obligations.
3. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT.
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3.1 CONDITIONS PRECEDENT TO INITIAL LOAN. In addition to any other
requirement set forth in this Agreement, Bank shall not be required to fund any
Loan or make any other extension of credit hereunder unless and until the
following conditions shall have been satisfied, in the sole opinion of Bank and
its counsel:
3.1.1 Loan Documents. Borrowers and each other party to any
Loan Document, as applicable, shall have executed and delivered this Agreement,
the Note, and other required Loan Documents, all in form and substance
satisfactory to Bank.
3.1.2 Supporting Documents and Other Conditions. Borrowers
shall cause to be delivered to Bank the following documents and shall satisfy
the following conditions:
(a) A copy of the governing instruments and good standing
certificates of each Borrower, certified by the appropriate official of their
respective states of incorporation and each state in which such Borrower is
qualified to do business;
(b) Incumbency certificate and certified resolutions of the
board of directors (or other appropriate governing body) of each Borrower and
each other Person executing any Loan Documents, signed by the Secretary or
another authorized officer of such Borrower or such other Person, authorizing
the execution, delivery and performance of the Loan Documents;
(c) The legal opinion of each Borrower's and any Guarantor's
legal counsel addressed to Bank regarding such matters as Bank and its counsel
may request;
(d) A satisfactory Borrowing Base Certificate duly completed
by Borrowers' Representative, together with all supporting statements, schedules
and reconciliations as required by Bank;
(e) UCC-11 searches and other Lien searches showing no
existing security interests in or Liens on the Collateral other than Permitted
Liens;
(f) A satisfactory Borrower Information Certificate duly
completed by Borrowers' Representative;
(g) Satisfactory evidence and receipt by Bank of insurance
meeting the requirements of Section 5.3.
(h) UCC-1 financing statements and, if applicable,
certificates of title covering the Collateral shall duly have been recorded or
filed in the manner and places required by law to establish, preserve, protect
and perfect the interests and rights created or intended to be created by the
Security Agreement; and all taxes, fees and other charges in connection with the
execution, delivery and filing of the Security Agreement and the financing
statements shall duly have been paid;
(i) Subordinations satisfactory to Bank from all Guarantors
and Affiliates as required by Section 5.9.
(k) Third Party Waivers as required by Section 5.12 (c).
(l) All required takedown field exams shall have been
completed to Bank's satisfaction;
(m) Control agreements with respect to each Borrower's Deposit
Accounts other than the Blocked Accounts (but excluding payroll and benefits
Deposit Accounts) in form
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and content satisfactory to Bank, duly executed by the bank at which such
Deposit Accounts are maintained;
(n) A complete and final payoff letter from PVC Partners and
any lender whose outstanding Debt is to be satisfied by remittance of proceeds
of the initial Loan, and, if applicable, such disbursement letter as shall be
required to direct the payment of loan proceeds;
(o) Copies of the notes executed by any Borrower to evidence
the Debt owing by such Borrower to Quovadx Corporation and NDC Health
Corporation;
(p) All additional opinions, documents, certificates and other
assurances that Bank or its counsel may require;
(q) Satisfactory evidence of payment of all fees due and
reimbursement of all costs incurred by Bank, and evidence of payment to other
parties of all fees or costs which Borrowers are required under the Loan
Documents to pay by the date of the initial Loan;
(r) There shall be no litigation in which any Borrower or
Guarantor or Subsidiary is a party defendant, which Bank determines may have a
Material Adverse Effect;
(s) Bank shall have received Proxymed's consolidated and
consolidating financial statements for its most recently concluded fiscal year
and each fiscal month thereafter through February 28, 2005, and such other
financial reports and information concerning Borrowers as Bank shall request,
and Bank shall be satisfied therewith;
(t) Borrowers shall have deposited not less than $5,000,000 in
a Deposit Account at Bank; and
(u) Bank shall have determined that after the making of the
initial Loans to be made on the Closing Date, the issuance of any Letters of
Credit to be issued on the Closing Date and the payment of all fees and closing
costs incurred on or prior to the Closing Date, Excess Availability is not less
than $7,000,000. For purposes hereof, "Excess Availability" means, on any date,
the amount that Borrower is entitled to borrow as Revolver Loans on such date,
such amount being the difference derived when the sum of the principal amount of
Revolver Loans and Letter of Credit Obligations then outstanding (including any
amounts that Bank may have paid for the account of Borrower pursuant to any of
the Loan Documents and that have not been reimbursed by Borrower) is subtracted
from the lesser of the Revolver Commitment and the Borrowing Base on such date.
3.2 CONDITIONS PRECEDENT TO EACH REVOLVER LOAN. In addition to any
other requirements set forth in this Agreement, Bank shall not be required to
fund any Loan or issue any Letter of Credit unless and until the following
conditions shall have been satisfied, in the sole opinion of Bank and its
counsel, and each Notice of Borrowing (whether or not a written Notice of
Borrowing is required) shall be deemed to be a representation that all such
conditions have been satisfied:
3.2.1 Notice of Borrowing. Borrowers' Representative shall
have delivered to Bank a Notice of Borrowing and such other information, as Bank
may request.
3.2.2 No Default. No Default shall have occurred and be
continuing or could occur upon the making of the Revolver Loan or the issuance
of any Letter of Credit in question, and Borrowers' Representative shall have
delivered to Bank an officer's certificate to such effect, which may be
incorporated in the Notice of Borrowing.
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3.2.3 Correctness of Representations. All representations and
warranties made by any Borrower and any Guarantor herein or otherwise in writing
in connection herewith shall be true and correct in all material respects with
the same effect as though the representations and warranties had been made on
and as of date of the proposed Revolver Loan or Letter of Credit, and Borrowers'
Representative shall have delivered to Bank an officer's certificate to such
effect, which may be incorporated in the Notice of Borrowing.
3.2.4 No Adverse Change. There shall have been no change which
could have a Material Adverse Effect on any Borrower, Subsidiary or Guarantor
since the date of the most recent financial statements of such Person delivered
to Bank from time to time.
3.2.5 Limitations Not Exceeded. Any proposed Revolver Loan or
Letter of Credit shall not cause the aggregate outstanding principal balance of
the Revolver Loans plus Letter of Credit Obligations to exceed the lesser of the
Revolver Commitment and the Borrowing Base.
3.2.6 No Termination. Bank shall (i) have timely received all
financial information from all Guarantors as required under the Loan Documents,
and (ii) not have received notice from any Guarantor or any surety terminating
or repudiating such Person's guaranty of the Obligations incurred by Borrower.
3.2.7 Further Assurances. Borrower shall have delivered such
further documentation or assurances as Bank may reasonably require.
4. REPRESENTATIONS AND WARRANTIES. In order to induce Bank to enter
into this Agreement and to make the Loans or extend credit as provided for
herein, each Borrower makes the following representations and warranties, all of
which shall survive the execution and delivery of the Loan Documents. Unless
otherwise specified, such representations and warranties shall be deemed made as
of the date hereof and as of the date of each request for a Loan or extension of
credit hereunder :
4.1 VALID EXISTENCE AND POWER. Each Borrower and each Subsidiary is
a corporation or limited liability company duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and is
duly qualified or licensed to transact business in all places where the failure
to be so qualified would have a Material Adverse Effect. Each Borrower and each
other Person which is a party to any Loan Document (other than Bank) has the
power to make and perform the Loan Documents executed by it and all such
instruments will constitute the legal, valid and binding obligations of such
Person, enforceable in accordance with their respective terms, subject only to
bankruptcy and similar laws affecting creditors' rights generally. No Borrower
has changed the jurisdiction of its organization within the five years preceding
the date hereof except as previously reported to Bank in writing.
4.2 AUTHORITY. The execution, delivery and performance thereof by
each Borrower and each other Person (other than Bank) executing any Loan
Document have been duly authorized by all necessary actions of such Person, and
do not and will not violate any provision of law or regulation, or any writ,
order or decree of any court or governmental or regulatory authority or agency
or any provision of the governing instruments of such Person, and do not and
will not, with the passage of time or the giving of notice, result in a breach
of, or constitute a default or require any consent under, or result in the
creation of any Lien upon any property or assets of such Person pursuant to, any
law, regulation, instrument or agreement to which any such Person is a party or
by which any such Person or its respective properties may be subject, bound or
affected.
4.3 FINANCIAL CONDITION. Other than as disclosed in financial
statements delivered on or prior to the date hereof to Bank, no Borrower,
Subsidiary or (to the knowledge of Borrower) any Guarantor has any direct or
contingent obligations or liabilities (including any guarantees or leases) or
any material unrealized or anticipated losses from any commitments of such
Person except as described
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on Exhibit 4.3. All such financial statements have been prepared in accordance
with GAAP and fairly present the financial condition of each Borrower,
Subsidiary or Guarantor, as the case may be, as of the date thereof. No Borrower
is aware of any material adverse fact (other than facts which are generally
available to the public and not particular to a Borrower, such as general
economic trends) concerning the condition (financial or otherwise) or future
prospects of any Borrower, Subsidiary or Guarantor which has not been fully
disclosed to Bank, including any adverse change in the operations or financial
condition of such Person since the date of the most recent financial statements
delivered to Bank. Each Borrower is Solvent, and after consummation of the
transactions set forth in this Agreement and the other Loan Documents, each
Borrower will be Solvent.
4.4 LITIGATION. Except as disclosed on Exhibit 4.4, there are no
suits or proceedings pending, or to the knowledge of any Borrower threatened,
before any court or by or before any governmental or regulatory authority,
commission, bureau or agency or public regulatory body against or affecting any
Borrower, Subsidiary or (to Borrower's knowledge) any Guarantor, or their
assets, which if adversely determined would have a Material Adverse Effect on
the financial condition or business of any Borrower, Subsidiary or Guarantor.
4.5 AGREEMENTS, ETC. No Borrower or Subsidiary is a party to any
agreement or instrument or subject to any court order, governmental decree or
any charter or other corporate restriction which has or could be reasonably
expected to have a Material Adverse Effect, nor is any such Person in default in
the performance, observance or fulfillment of any of the material obligations,
covenants or conditions contained in any agreement or instrument to which it is
a party, or any law, regulation, decree, order or the like.
4.6 AUTHORIZATIONS. All authorizations, consents, approvals and
licenses required under applicable law or regulation for the ownership or
operation of the property owned or operated by any Borrower or any Subsidiary or
for the conduct of any business in which it is engaged have been duly issued and
are in full force and effect, and it is not in default, nor has any event
occurred which with the passage of time or the giving of notice, or both, would
constitute a default, under any of the terms or provisions of any part thereof,
or under any order, decree, ruling, regulation, closing agreement or other
decision or instrument of any governmental commission, bureau or other
administrative agency or public regulatory body having jurisdiction over such
Person, which default would have a Material Adverse Effect on such Person.
Except as noted herein, no approval, consent or authorization of, or filing or
registration with, any governmental commission, bureau or other regulatory
authority or agency is required with respect to the execution, delivery or
performance of any Loan Document.
4.7 TITLE. Each of Borrower and each Subsidiary has good title to
all of its assets shown in its financial statements, and full ownership rights
in its Collateral, free and clear of all Liens, except Permitted Liens.
4.8 COLLATERAL. The security interests granted to Bank herein and
pursuant to any other Security Agreement (a) constitute and, as to subsequently
acquired property included in the Collateral covered by the Security Agreement,
will constitute, security interests under the Code entitled to all of the
rights, benefits and priorities provided by the Code and (b) are, and as to such
subsequently acquired Collateral will be, fully perfected, superior and prior to
the rights of all third persons, now existing or hereafter arising, subject only
to those Permitted Liens which are expressly permitted by the terms of this
Agreement to have priority over the Liens of Bank. All of the Collateral is
intended for use solely in Borrower's business.
4.9 JURISDICTION OF ORGANIZATION; LOCATION. The jurisdiction in
which each Borrower and each Subsidiary is organized, existing and in good
standing, the chief executive office of each Borrower and each Subsidiary, the
office where each Borrower's and each Subsidiary's business records are located,
all of each Borrower's and each Subsidiary's other places of business and any
other places where any Collateral is kept, are all correctly and completely
indicated on the Borrower Information
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Certificate. The Collateral is located and shall at all times be kept and
maintained only at each Borrower's location or locations as described on the
Borrower Information Certificate. No such Collateral is attached or affixed to
any real property so as to be classified as a fixture unless Bank has otherwise
agreed in writing. No Borrower has changed it legal status or the jurisdiction
in which it is organized or moved its chief executive office within the five (5)
years preceding the date hereof except as previously disclosed to Bank.
4.10 TAXES. Each Borrower and each Subsidiary have filed all federal
and state income and other tax returns which are required to be filed, and have
paid all taxes as shown on said returns and all taxes, including withholding,
FICA and ad valorem taxes, shown on all assessments received by it to the extent
that such taxes have become due, except to the extent being Properly Contested.
No Borrower or Subsidiary is subject to any federal, state or local tax Liens
nor has any such Person received any notice of deficiency or other official
notice to pay any taxes. Each Borrower and Subsidiary have paid all sales and
excise taxes payable by it, except to the extend being Properly Contested.
4.11 LABOR LAW MATTERS. No goods or services have been or will be
produced by any Borrower or Subsidiary in violation of any applicable labor laws
or regulations or any collective bargaining agreement or other labor agreements
or in violation of any minimum wage, wage-and-hour or other similar laws or
regulations.
4.12 ACCOUNTS. Each Account, Instrument, Chattel Paper and other
writing constituting any portion of the Collateral (a) is genuine and
enforceable in accordance with its terms except for such limits thereon arising
from bankruptcy and similar laws relating to creditors' rights; (b) is not
subject to any deduction or discount (other than as stated in the invoice and
disclosed to Bank in writing), defense, set off, claim or counterclaim of a
material nature against any Borrower except as to which a Borrower has notified
Bank in writing, except for disputes resulting in returned goods where the
amount in controversy is deemed by Bank to be immaterial; (c) to the best of
each Borrower's knowledge, is not subject to any other circumstances that would
impair the validity, enforceability or amount of such Collateral except as to
which a Borrower has notified Bank in writing; (d) arises from a bona fide sale
of goods or delivery of services in the ordinary course and in accordance with
the terms and conditions of any applicable purchase order, contract or
agreement; (e) is free of all Liens; and (f) is for a liquidated amount maturing
as stated in the invoice therefor. To the best of each Borrower's knowledge,
each Account included in any Notice of Borrowing, Borrowing Base Certificate,
report or other document as an Eligible Account or Eligible PlanVista Account
meets all the requirements of an Eligible Account or an Eligible PlaVista
Account, respectively, set forth herein.
4.13 JUDGMENT LIENS. No Borrower or Subsidiary, nor any of their
assets, are subject to any unpaid judgments (whether or not stayed) or any
judgment liens in any jurisdiction.
4.14 CORPORATE STRUCTURE. As of the date hereof, Exhibit 4.14 hereto
sets forth (i) the correct name of each Subsidiary, its jurisdiction of
organization and the percentage of its equity interests having voting powers
owned by each Person, (ii) the name of each Borrower's corporate or joint
venture Affiliates and the nature of the affiliation, (iii) the number, nature
and holder of all outstanding equity interests of each Borrower and each of its
Subsidiaries and (iv) the number of authorized and issued equity interests (and
treasury shares) of each Borrower and Subsidiary. Each Borrower has good title
to all of the shares it purports to own of the equity interests of each of its
Subsidiaries, free and clear in each case of any Lien other than Permitted
Liens. All such equity interests have been duly issued and are fully paid and
non-assessable. Since the date of the last audited financial statements of
Proxymed and its Subsidiaries delivered to Bank, no Borrower has made, or
obligated itself to make, any dividends (other than stock dividends) or other
distribution on or with respect to, or any purchase, redemption, retirement or
other acquisition of, any equity interests of such Borrower, except as otherwise
permitted hereunder. Except as set forth on Exhibit 4.14 hereto, there are no
outstanding options to purchase, or any rights or warrants to subscribe for, or
any commitments or agreements to issue or sell, or any equity interests or
26
obligations convertible into, or any powers of attorney relating to, equity
interests of any Borrower or any Subsidiaries. Except as set forth on Exhibit
4.14 hereto, there are no outstanding agreements or instruments binding upon the
holders of any Borrower's or Subsidiary's equity interests relating to the
ownership of its equity interests.
4.15 DEPOSIT ACCOUNTS. Each Borrower and its Subsidiaries have no
Deposit Accounts other than (a) on the Closing Date, those listed in the
Borrower Information Certificate and (b) after the Closing Date, those otherwise
permitted by Section 6.15.
4.16 ENVIRONMENTAL. Except as disclosed on Exhibit 4.16, neither a
Borrower, nor any Subsidiary, nor to any Borrower's knowledge any other previous
owner or operator of any real property currently owned or operated by any
Borrower, has generated, stored or disposed of any Regulated Material on any
portion of such property, or transferred any Regulated Material from such
property to any other location in violation of any applicable Environmental
Laws. Except as disclosed on Exhibit 4.16, no Regulated Material has been
generated, stored or disposed by any Borrower, or to any Borrower's knowledge by
any other Person, of on any portion of the real property currently owned or
operated by any Borrower or Subsidiary by any other Person, or is now located on
such property. Except as disclosed on Exhibit 4.16, each Borrower and Subsidiary
is in full compliance with all applicable Environmental Laws and no Borrower or
Subsidiary has been notified of any action, suit, proceeding or investigation
which calls into question compliance by any Borrower with any Environmental Laws
or which seeks to suspend, revoke or terminate any license, permit or approval
necessary for the generation, handling, storage, treatment or disposal of any
Regulated Material.
4.17 ERISA. If requested by Bank, Borrowers have furnished to Bank
true and complete copies of the latest annual report required to be filed
pursuant to Section 104 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), with respect to each employee benefit plan or other plan
maintained for employees of any Borrower or Subsidiary and covered by Title IV
of ERISA (a "Plan"), and no Termination Event (as hereinafter defined) with
respect to any Plan has occurred and is continuing. For the purposes of this
Agreement, a "Termination Event" shall mean a "reportable event" as defined in
Section 4043(b) of ERISA, or the filing of a notice of intent to terminate under
Section 4041 of ERISA. No Borrower or Subsidiary has any unfunded liability with
respect to any such Plan.
4.18 INVESTMENT COMPANY ACT. No Borrower or Subsidiary is an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
4.19 INSIDER. No Borrower is, and no Person having "control" (as
that term is defined in 12 U.S.C. Section 375(b)(5) or in regulations
promulgated pursuant thereto) of a Borrower is, an "executive officer,"
"director," or "principal shareholder" (as those terms are defined in 12 U.S.C.
? 375(b) or in regulations promulgated pursuant thereto) of Bank, of a bank
holding company of which Bank is a subsidiary, or of any subsidiary of a bank
holding company of which Bank is a subsidiary.
4.20 SANCTIONED PERSONS; SANCTIONED COUNTRIES. No Borrower,
Subsidiaries, Affiliates of any Borrower or Subsidiary, or any Guarantor (i) is
a Sanctioned Person or (ii) does business in a Sanctioned Country or with a
Sanctioned Person in violation of the economic sanctions of the United States
administered by OFAC. The proceeds of any Loan will not be used to fund any
operation in, finance any investments or activities in or make any payments to,
a Sanctioned Person or a Sanctioned Country.
4.21 COMPLIANCE WITH COVENANTS; NO DEFAULT. Each Borrower is, and
upon funding of the initial Loans on the Closing Date will be, in compliance
with all of the covenants hereof. No Default has occurred, and the execution,
delivery and performance of the Loan Documents and the funding of the initial
Loans on the Closing Date will not cause a Default.
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4.22 FULL DISCLOSURE. There is no material fact which is known or
which should be known by any Borrower that Borrowers have not disclosed to Bank
which could have a Material Adverse Effect. No Loan Document, nor any agreement,
document, certificate or statement delivered by any Borrower to Bank, contains
any untrue statement of a material fact or omits to state any material fact
which is known or which should be known by such Borrower necessary to keep the
other statements from being misleading.
4.23 BORROWER INFORMATION CERTIFICATE. All representations,
warranties and statements made by Borrowers' Representative in the Borrower
Information Certificate executed and delivered by Borrowers' Representative to
Bank in connection with the Loan are true and correct as of the date hereof.
4.24 DESIGNATED SENIOR DEBT. The Loan and all other Obligations of
Borrowers hereunder shall be deemed "Designated Senior Debt" under that certain
Indenture between ProxyMed and LaSalle Bank, N.A., as trustee dated December 31,
2002 (the "Indenture").
5. AFFIRMATIVE COVENANTS OF BORROWERS. Each Borrower covenants and agrees
that from the date hereof and until payment in full of the Obligations and the
formal termination of this Agreement, each Borrower and Subsidiary:
5.1 USE OF REVOLVER LOAN PROCEEDS. Shall use the proceeds of
Revolver Loans only for working capital to be used in the operation of
Borrowers' business, including retiring certain debt obligations of PlanVista,
and furnish Bank all evidence that it may require with respect to such use.
5.2 MAINTENANCE OF BUSINESS AND PROPERTIES. Shall at all times
maintain, preserve and protect all Collateral (except for sales of Inventory in
the ordinary course of business) and all the remainder of its property used or
useful in the conduct of its business, and keep the same in good repair, working
order and condition, and from time to time make, or cause to be made, all
material needful and proper repairs, renewals, replacements, betterments and
improvements thereto so that the business carried on in connection therewith may
be conducted properly and in accordance with standards generally accepted in
businesses of a similar type and size at all times, and maintain and keep in
full force and effect all licenses and permits necessary to the proper conduct
of its business.
5.3 INSURANCE. Shall maintain such liability insurance, workers'
compensation insurance, business interruption insurance and casualty insurance
in amounts as may be required by law, if applicable, or as are customary and
usual for prudent businesses in its industry and any other insurance that may be
reasonably required by Bank and shall insure and keep insured all Collateral and
other properties with insurance companies satisfactory to Bank. All hazard
insurance covering Collateral shall be in amounts acceptable to Bank, shall name
and directly insure Bank as secured party and loss payee under a long-form loss
payee clause acceptable to Bank, or its equivalent, and shall not be terminable
except upon 30 days' written notice to Bank. Borrowers shall furnish to Bank
copies of all such policies and shall provide evidence of insurance on an annual
basis or such more frequent basis as may be requested by Bank from time to time.
5.4 NOTICE OF DEFAULT. Shall provide to Bank immediate notice of (a)
the occurrence of a Default and what action (if any) each Borrower is taking to
correct the same, (b) any litigation which if determined adversely, could
reasonably be expected to have a Material Adverse Effect, (c) any material
changes in existing litigation or any judgment against it or its assets in
excess of $1,000,000 in the case of Insurdata Marketing Services' suit against
Healthplan Services, Inc., a former subsidiary of PlanVista, or in excess of
$500,000 in any other case, (c) any damage or loss to property in excess of
$500,000, (d) any notice from taxing authorities as to claimed deficiencies or
any tax lien or any notice relating to alleged ERISA violations, (e) any
Reportable Event, as defined in ERISA, (f) any rejection, return, offset,
dispute, loss or other circumstance in an amount in excess of $300,000 or
otherwise having a Material Adverse Effect on any Collateral, (g) the
cancellation or termination of, or any default under, any Material
28
Agreement to which a Borrower is a party or by which any of its properties are
bound, or any acceleration of the maturity of any Debt of a Borrower; and (h)
any loss or threatened loss of material licenses or permits.
5.5 INSPECTIONS OF BOOKS AND RECORDS AND FIELD EXAMINATIONS. Shall
permit inspections of the Collateral and the records of such Person pertaining
thereto and verification of the Accounts, at such times and in such manner as
may be reasonably requested by Bank and shall further permit such inspections,
reviews and field examinations of its other books and records and properties
(with such frequency and at such times as Bank may reasonably request) by Bank
as Bank may deem reasonably necessary or desirable from time to time, but in any
event only during normal business hours and (except when a Default or Event of
Default exists) upon three (3) days prior notice to Borrowers' Representative.
The cost of such field examinations, reviews, verifications and inspections
shall be borne by Borrowers, provided that the cost of field examinations shall
not exceed $850 per examiner per day, plus Bank's reasonable out-of-pocket
expenses.
5.6 FINANCIAL INFORMATION. Shall maintain books and records in
accordance with GAAP and shall cause Borrowers' Representative to furnish to
Bank the following periodic financial information:
(a) Periodic Borrowing Base Information. On Tuesday of each week,
a completed Borrowing Base Certificate in the form attached hereto as Exhibit
5.6(a) (a "Borrowing Base Certificate"). The Borrowing Base Certificate
furnished each week will contain updated information described therein for
PlanVista as of the last Business Day of the previous week and will be
accompanied by a Trailing 13 Week Cash Receipts Summary and a Consolidated Daily
Cash Position Report for the week then ended in a form satisfactory to Lender.
The Borrowing Base Certificate furnished on the fourth (4th) Tuesday of each
month will contain, in addition to the information regarding PlanVista described
in the immediately preceding sentence, updated information described therein for
Original Borrowers as of the last Business Day of the previous month and will be
accompanied by:
(i) a report listing all Accounts of each Borrower as of the
last Business Day of the previous month (an " Accounts Receivable Report")
which shall include the amount and age of each such Account on an original
invoice date aging basis, the name (with mailing address available upon
request) of each Account Debtor, a detailing of all such Accounts which do
not constitute Eligible Accounts, and such other information as Bank may
reasonably require in order to verify the Eligible Accounts, all in
reasonable detail and in form acceptable to Bank,
(ii) a Summary of Cash Collected by Bucket report for
PlanVista in a form satisfactory to Lender, PlanVista's Accounts
Receivable Report and PlanVista's Accounts Receivable Rollforward Report,
(iii) reconciliations of the Accounts Receivable Reports of
each Borrower to the financial statement Accounts balance of each
Borrower, and a reconciliation of PlanVista's Trailing 13 Week Cash
Receipts Summary to the monthly cash collections reports it submits to
Bank, and
(iv) any other report as Bank may from time to time reasonably
require in its sole discretion, each prepared with respect to such periods
and with respect to such information and reporting as Bank may require.
Each Borrowing Base Certificate and each report furnished by Borrowers'
Representative therewith delivered shall be certified by the chief
financial officer or president of Borrowers' Representative to be accurate
and complete and in compliance with the terms of the Loan Documents.
(b) Interim Statements. Within thirty (30) days after the end of
each fiscal month of ProxyMed and its Subsidiaries, (i) a consolidated and
consolidating balance sheet of ProxyMed
29
and its Subsidiaries at the end of that period and a consolidated and
consolidating income statement and statement of cash flows for that period (and
for the portion of the fiscal year of ProxyMed and its Subsidiaries ending with
such period), together with all supporting schedules, setting forth in
comparative form the figures for the same period of the preceding fiscal year
and (ii) a report reconciling (x) the Accounts of each Borrower as set forth on
the Accounts Receivable Reports attached to the Borrowing Base Certificates to
(y) the aggregate Accounts set forth in the financial statements delivered to
Bank pursuant hereto (which shall be based upon Borrowers' general ledger). The
foregoing statements and report shall be certified by the chief financial
officer of ProxyMed as true and correct and fairly representing the financial
condition of ProxyMed and its Subsidiaries and that such statements are prepared
in accordance with GAAP, except without footnotes and subject to normal year-end
audit adjustments.
(c) Annual Statements. Within ninety (90) days after the end of
each fiscal year of Proxymed and its Subsidiaries, a detailed audited financial
report of ProxyMed and its Subsidiaries containing a consolidated and
consolidating balance sheet at the end of that period and a consolidated and
consolidating income statement and statement of cash flows for that period,
setting forth in comparative form the figures for the preceding fiscal year,
together with all supporting schedules and footnotes, and containing an
unqualified audit opinion of independent certified public accountants acceptable
to Bank that the financial statements were prepared in accordance with GAAP.
ProxyMed shall obtain such written acknowledgments from ProxyMed's independent
certified public accountants as Bank may reasonably require permitting Bank to
rely on such annual financial statements.
(d) Compliance and No Default Certificates. Together with each
report required by Subsections (b) and (c), a compliance certificate in the form
annexed hereto as Exhibit 5.6(d) and a certificate of its president or chief
financial officer of Borrowers' Representative certifying that no Default then
exists or if a Default exists, the nature and duration thereof and Borrowers'
Representative's intention with respect thereto, and in addition, with respect
to each report required by clause (c) of this section 5.6, shall cause
ProxyMed's independent auditors (if applicable) to submit to Bank, together with
its audit report, a statement that, in the course of such audit, it discovered
no circumstances which it believes would result in a Default or if it discovered
any such circumstances, the nature and duration thereof.
(e) Auditor's Management Letters. Promptly upon receipt thereof,
copies of each report submitted to ProxyMed by independent public accountants in
connection with any annual, interim or special audit made by them of the books
of ProxyMed and its Subsidiaries including, without limitation, each report
submitted to ProxyMed concerning its and its Subsidiaries' accounting practices
and systems and any final comment letter submitted by such accountants to
management in connection with the annual audit of ProxyMed and its Subsidiaries.
(f) Payables Report. Within twenty (20) days after the end of each
fiscal month of ProxyMed and its Subsidiaries (or more frequently if required by
Bank), a schedule of all accounts payable of each Borrower setting forth for
each such account the number of days which have elapsed since the original date
of invoice and containing the name and address of each vendor and such other
detail requested by Bank.
(g) SEC Reporting. Promptly after the sending or filing thereof,
as the case may be, copies of any proxy statements, financial statements or
reports which any Borrower has made available to its shareholders and copies of
any regular, periodic and special reports or registration statements which any
Borrower files with the Securities and Exchange Commission or any governmental
authority which may be substituted therefor, or any national securities
exchange;
(h) Other Information. Such other information reasonably requested
by Bank from time to time concerning the business, properties or financial
condition of each Borrower, Guarantor and their respective Subsidiaries.
30
(i) Projections. Not later than the thirtieth (30th) day
following the commencement of each fiscal year of ProxyMed and its Subsidiaries,
deliver Projections (as hereinafter defined) to Bank for ProxyMed and its
Subsidiaries for such fiscal year. "Projections" means ProxyMed's and its
Subsidiaries' forecasted consolidated and consolidating (i) balance sheets, (ii)
profit and loss statements, (iii) cash flow statements and (iv) capital
expenditure budgets, all prepared on a month by month basis and on a consistent
basis with ProxyMed's and its Subsidiaries' historical financial statements,
together with appropriate supporting details and a statement of underlying
assumptions.
5.7 MAINTENANCE OF EXISTENCE AND RIGHTS. Shall preserve and maintain
its corporate existence, authorities to transact business, rights and
franchises, trade names, patents, trademarks and permits necessary to the
conduct of its business.
5.8 PAYMENT OF TAXES, ETC. Shall pay before delinquent all of its
Debts and taxes, except and to the extent only that such taxes are being
Properly Contested.
5.9 SUBORDINATION. Shall cause all Debts and other obligations now
or hereafter owed to any Guarantor or Affiliate to be subordinated in right of
payment and security to the Obligations in accordance with subordination
agreements satisfactory to Bank.
5.10 COMPLIANCE; HAZARDOUS MATERIALS. Shall strictly comply with all
laws, regulations, ordinances and other legal requirements, specifically
including, without limitation, ERISA, all securities laws and all laws relating
to hazardous materials and the environment. Unless approved in writing by Bank,
neither Borrower nor any Subsidiary shall engage in the storage, manufacture,
disposition, processing, handling, use or transportation of any hazardous or
toxic materials, whether or not in compliance with applicable laws and
regulations. Borrower shall promptly report to Bank any notices of any
violations of such laws or regulations received from any regulatory or
governmental body, along with Borrower's proposed corrective action as to such
violation.
5.11 FURTHER ASSURANCES. Shall take such further action and provide
to Bank such further assurances as may be reasonably requested to ensure
compliance with the intent of this Agreement and the other Loan Documents.
5.12 COVENANTS REGARDING COLLATERAL. Each Borrower makes the
following covenants with Bank regarding the Collateral for itself and each
Subsidiary. Each Borrower and Subsidiary:
(a) will use the Collateral only in the ordinary course of
its business and will not permit the Collateral to be used in violation of any
applicable law or policy of insurance;
(b) will defend the Collateral against all claims and
demands of all Persons, except for Permitted Liens;
(c) will, at Bank's request, use its best efforts to obtain
and deliver to Bank such Third Party Waivers as Bank may require;
(d) will promptly deliver to Bank all promissory notes,
drafts, trade acceptances, chattel paper, Instruments or documents of title
which are Collateral in tangible form, appropriately endorsed to Bank's order,
and no Borrower will create or permit any Subsidiary to create any Electronic
Chattel Paper without taking all steps deemed necessary by Bank to confer
control of the Electronic Chattel Paper upon Bank in accordance with the Code;
(e) except for sales of Inventory in the ordinary course of
business and the voluntary termination of Swap Agreements to which a Borrower or
Subsidiary is a party, will not sell,
31
assign, lease, transfer, pledge, hypothecate or otherwise dispose of or encumber
any Collateral or any interest therein;
(f) shall promptly notify Bank of any Federally registered
future patents, trademarks or copyrights owned by any Borrower or Subsidiary and
any material license agreements entered into by any Borrower or Subsidiary
authorizing said Person to use any Federally registered patents, trademarks or
copyrights owned by third parties; and
(g) shall give Bank at least thirty (30) days prior written
notice of any new trade or fictitious name. Each Borrower's and Subsidiary's use
of any trade or fictitious name shall be in compliance with all laws regarding
the use of such names.
5.13 MINIMUM DEPOSIT BALANCE. Borrowers agree to maintain at all
times at least $5,000,000 in cash balances in a Deposit Account at Bank (in
addition to any balances in the Collections Accounts).
6. Negative Covenants of Borrowers. Each Borrower covenants and agrees
that from the date hereof and until payment in full of the Obligations and the
formal termination of this Agreement, each Borrower and Subsidiary:
6.1 DEBT. Shall not create or permit to exist any Debt, including
any guaranties or other contingent obligations, except the following ("Permitted
Debt"):
(a) The Obligations;
(b) Endorsement of checks for collection in the ordinary
course of business;
(c) Debt payable to suppliers and other trade creditors in
the ordinary course of business on ordinary and customary trade terms and which
is unpaid not more than 90 days after billing date nor more than 60 days after
due date;
(d) Purchase Money Debt not exceeding $3,000,000 in
aggregate principal amount at any time outstanding for Borrower and all
Subsidiaries incurred to purchase Equipment, provided that the amount of such
Debt shall not at any time exceed the purchase price of the Equipment purchased;
(e) Subordinated Debt;
(f) Debt existing on the Closing Date and not otherwise
permitted under this Section 6.1, as set forth on Exhibit 6.1 hereto, and the
renewal and refinancing (but not the increase in the aggregate principal amount)
thereof;
(g) Debt of any Subsidiary to any Borrower or another
Subsidiary;
(h) Any Debt incurred under any Swap Agreements with Bank
(or with any of its Affiliates);
(i) Debt for accrued payroll and related taxes incurred in
the ordinary course of business of such Borrower or such Subsidiary, including
obligations under cash management agreements, in each case so long as payment
thereof is not past due and payable unless, in the case of Taxes, such Taxes are
being Properly Contested;
32
(j) Debt not included in the preceding paragraphs of this
Section 6.1 which is not secured by a Lien (unless such Lien is a Permitted
Lien) and does not exceed at any time, in the aggregate, the sum of $250,000 as
to Borrowers and all of their Subsidiaries; and
(k) Contingent obligations with respect to customary
indemnification obligations in favor of purchasers in connection with
dispositions of Equipment otherwise permitted under this Agreement and other
contingent obligations not to exceed $300,000 in the aggregate at any time as to
Borrowers and all of their Subsidiaries.
6.2 LIENS. Shall not create or permit any Liens on any of its
property except the following ("Permitted Liens"):
(a) Liens securing the Obligations;
(b) Liens for taxes, assessments and other governmental
charges or levies (excluding any Lien imposed pursuant to any of the provisions
of ERISA or Environmental Laws) not yet due and payable or which are being
Properly Contested;
(c) The claims of materialmen, mechanics, carriers,
warehousemen, processor or landlords arising out of operation of law so long as
the obligations secured thereby are not past due or are being Properly
Contested;
(d) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance, social security and similar laws;
(e) Judgment and other similar non-tax Liens arising in
connection with court proceedings but only if and for so long as (a) the
execution or enforcement of such Liens is and continues to be effectively stayed
and bonded on appeal, (b) the validity and/or amount of the claims secured
thereby are being Properly Contested and (c) such Liens do not, in the
aggregate, materially detract from the value of the assets of the Person whose
assets are subject to such Lien or materially impair the use thereof in the
operation of such Person's business;
(f) Liens securing Purchase Money Debt, provided that such
Lien does not secure more than the purchase price of such Equipment and does not
encumber property other than the purchased property;
(g) statutory Liens (excluding any Lien imposed pursuant to
any of the provisions of ERISA) arising in the ordinary course of business of a
Borrower or a Subsidiary, but only if and for so long as (x) payment in respect
of any such Lien is not at the time required or the Debt secured by any such
Liens is being Properly Contested and (y) such Liens do not materially detract
from the value of the Property of such Borrower or such Subsidiary and do not
materially impair the use thereof in the operation of such Borrower's or such
Subsidiary's business;
(h) easements, rights-of-way, restrictions, covenants or
other agreements of record or other similar charges or encumbrances on real
property of a Borrower or a Subsidiary that do not secure any monetary
obligation and do not interfere with the ordinary conduct of the business of
such Borrower or such Subsidiary;
(i) normal and customary rights of setoff upon deposits of
cash in favor of banks and other depository institutions and Liens of a
collection bank arising under the UCC on payment items in the course of
collection; and
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(j) Liens not otherwise permitted by this Section 6.2, in
existence on the Closing Date and described on Exhibit 6.2.
6.3 RESTRICTED PAYMENTS.
(a) Shall not make any Distributions, except for Upstream
Distributions; and
(b) Shall not make any payment of all or any part of any
Subordinated Debt or take any other action or omit to take any other action in
respect of any Subordinated Debt, except in accordance with the subordination
agreement relating thereto; or amend or modify the terms of any agreement
applicable to any Subordinated Debt, other than to extend the time of payment
thereof or to reduce the rate of interest payable in connection therewith. To
the extent that any payment is permitted to be made with respect to any
Subordinated Debt pursuant to the provisions of the subordination agreement
relating thereto, as a condition precedent to Borrowers' authorization to make
any such payment, Borrowers shall provide to Bank, not less than 5 Business Days
prior to the scheduled payment, a certificate from a Senior Officer of
Borrowers' Representative stating that no Default or Event of Default is in
existence as of the date of the certificate or will be in existence as of the
date of such payment (both with and without giving effect to the making of such
payment), and specifying the amount of principal and interest to be paid.
6.4 LOANS AND OTHER INVESTMENTS. Shall not make or permit to exist
any advances or loans to, or guarantee or become contingently liable, directly
or indirectly, in connection with the obligations, leases, stock or dividends
of, or own, purchase or make any commitment to purchase any stock, bonds, notes,
debentures or other securities of, or any interest in, or make any capital
contributions to any Person, except for (a) purchases of direct obligations of
the federal government, (b) deposits in commercial banks, (c) commercial paper
of any U.S. corporation having the highest ratings then given by the Moody's
Investors Services, Inc. or Standard & Poor's Corporation, (d) existing
investments in Subsidiaries, (e) endorsement of negotiable instruments for
collection in the ordinary course of business, (f) advances to employees for
business travel and other expenses incurred in the ordinary course of business
which do not at any time exceed $10,000.00 in the aggregate, (g) any Swap
Agreements with Bank (or with any of its Affiliates), and (h) permitted
contingent obligations described in Sections 6.1(b) and (k).
6.5 CHANGE IN BUSINESS. Shall not enter into any business which is
substantially different from the business in which it is engaged on the Closing
Date.
6.6 ACCOUNTS. (a) Shall not sell, assign or discount any of its
Accounts, Chattel Paper or any promissory notes held by it other than the
discount of such notes and routine collection action pursuant to a Borrower's
accounts receivable policy in the ordinary course of business for collection;
(b) shall not create or accept any Account, Instrument, Chattel Paper or other
obligation of any kind due from or owed by as Sanctioned Person or enter into
any lease that secures the Obligations where the lessee is a Sanctioned Person;
and (c) shall notify Bank promptly in writing of any discount, offset or other
deductions not shown on the face of an Account invoice (but only if such
discount, offset or other deduction exceeds $200,000) and any dispute over an
Account (but only if such dispute exceeds $200,000), and any information
relating to a material adverse change in any Account Debtor's financial
condition or ability to pay its obligations or if it learns that any Account
Debtor is a Sanctioned Person.
6.7 TRANSACTIONS WITH AFFILIATES. Shall not directly or indirectly
purchase, acquire or lease any property from, or sell, transfer or lease any
property to, pay any management fees to or otherwise deal with, in the ordinary
course of business or otherwise, any Affiliate (other than a Subsidiary);
provided, however, that any acts or transactions prohibited by this Section may
be performed or engaged in after written notice to Bank if upon terms not less
favorable to Borrower or such Subsidiary than if no such relationship existed.
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6.8 NO CHANGE IN NAME, OFFICES OR JURISDICTION OF ORGANIZATION;
REMOVAL OF COLLATERAL. Shall not change its name or the jurisdiction in which
such Borrower or Subsidiary is organized or, unless it shall have given 60 days'
advance written notice thereof to Bank, change the location of its chief
executive office or other office where books or records are kept, or permit any
Inventory or other tangible Collateral to be located at any location other than
as specified in the Borrower Information Certificate.
6.9 NO SALE, LEASEBACK. Shall not enter into any sale-and-leaseback
or similar transaction.
6.10 MARGIN STOCK. Shall not use any proceeds of the Loan to
purchase or carry any margin stock (within the meaning of Regulation U of the
Board of Governors of Federal Reserve System) or extend credit to others for the
purpose of purchasing or carrying any margin stock.
6.11 TANGIBLE COLLATERAL. Shall not, except as otherwise provided
herein, allow any Inventory or other tangible Collateral to be commingled with,
or become an accession to or part of, any property of any other Person so long
as such property is Collateral; nor allow any tangible Collateral to become a
fixture unless Bank shall have given its prior written authorization.
6.12 SUBSIDIARIES. Shall not acquire, form or dispose of any
Subsidiaries unless such Subsidiary immediately upon formation enters into a
joinder agreement in respect of this Agreement which is in form and substance
satisfactory to Bank in its sole discretion and such other documents and
agreements as Bank may reasonably require, or permit any Subsidiary to issue
capital stock except to its parent.
6.13 LIQUIDATION, MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF
SUBSTANTIAL ASSETS, NAME AND GOOD STANDING. Shall not merge, reorganize,
consolidate or amalgamate with any Person, liquidate, wind up its affairs or
dissolve itself, acquire by purchase, lease or otherwise any of the assets of
any Person, or sell, transfer, lease or otherwise dispose of any of its property
or assets, except for the sale of Inventory in the ordinary course of business
and the voluntary termination of Swap Agreements to which such Borrower or
Subsidiary is a party, or sell or dispose of any equity ownership interests in
any Subsidiary, in each case whether in a single transaction or in a series of
related transactions; or change its name or jurisdiction of organization or
conduct business under any new fictitious name; change its Federal Employer
Identification Number; or fail to remain in good standing and qualified to
transact business as a foreign entity in any state or other jurisdiction in
which it is required to be qualified to transact business as a foreign entity
and in which the failure to be so qualified could reasonably be expected to have
a Material Adverse Effect.
6.14 CHANGE OF FISCAL YEAR OR ACCOUNTING METHODS. Shall not change
its fiscal year or its accounting methods except as may be required by GAAP.
ProxyMed's and its Subsidiaries' fiscal year end is December 31 as of the
Closing Date.
6.15 DEPOSIT ACCOUNTS. Borrower shall not open or maintain any
Deposit Accounts except for (i) Deposit Accounts opened or maintained at Bank,
(ii) those listed on the Borrower Information Certificate, (iii) Deposit
Accounts which are not opened or maintained at Bank but which are subject to
Bank's "control" (as such term is used in Article 9 of the Code) on terms
reasonably satisfactory to Bank, and (iv) such other Deposit Accounts as shall
be necessary for payroll, petty cash, local trade payables, and other occasional
needs of Borrower. All Deposit Accounts maintained at Bank shall be deemed to be
under Bank's "control" as such term is used in Article 9 of the Code.
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7. OTHER COVENANTS OF BORROWERS. Each Borrower covenants and agrees that
from the date hereof and until payment in full of the Obligations and the
termination of this Agreement, Borrowers shall comply with the following
additional covenants:
7.1.1 Consolidated EBITDA. Borrowers shall maintain
Consolidated EBITDA of not less than $6,500,000 for the 12-month period ending
on the last day of each of the months of April, 2005 through August, 2005.
As used herein, "Consolidated EBITDA" means, for any period, an
amount equal to the sum for such period, on a consolidated basis, of (i)
Adjusted Net Earnings, plus (ii) provision for Taxes based on income that are
actually deducted in calculating Adjusted Net Earnings, plus (iii) Interest
Expense that is actually deducted in calculating Adjusted Net Earnings, plus
(iv) depreciation and amortization expense on a consolidated basis of Borrowers
and their Subsidiaries that is actually deducted in calculating Adjusted Net
Earnings. As used herein, "Adjusted Net Earnings" means, with respect to any
fiscal period of Borrowers, the net earnings (or loss) for such fiscal period,
all as reflected on the financial statement of Borrowers supplied to Bank
pursuant to Sections 5.6(b) and 5.6(c), but excluding: (i) any gain arising from
the sale of capital assets; (ii) any gain arising from any write-up of assets
during such period; (iii) earnings of any Subsidiary accrued prior to the date
it became a Subsidiary; (iv) earnings of any Person, substantially all the
assets of which have been acquired in any manner by a Borrower, realized by such
Person prior to the date of such acquisition; (v) net earnings of any entity
(other than a Subsidiary of a Borrower) in which any Borrower has an ownership
interest unless such net earnings have actually been received by such Borrower
in the form of cash Distributions; (vi) any portion of the net earnings of any
Subsidiary which for any reason is unavailable for payment of Distributions to a
Borrower; (vii) the earnings of any Person to which any assets of a Borrower
shall have been sold, transferred or disposed of, or into which a Borrower shall
have merged, or been a party to any consolidation or other form of
reorganization, prior to the date of such transaction; (viii) any gain arising
from the acquisition of any securities by a Borrower; (ix) any gain arising from
extraordinary or non-recurring items; and (x) any write-off or write-down of
intangible assets required under GAAP, all as determined in accordance with
GAAP. As used herein, the term "Interest Expense" means, for any fiscal period
of a Person, total interest expense of such Person during such period,
(including that portion attributable to capitalized leases and capitalized
interest) with respect to all outstanding Debts of such Person, including all
commissions, discounts and other fees and charges owed with respect to Letters
of Credit and net cost under Interest Rate Contracts, as determined on a
consolidated basis in accordance with GAAP. As used herein, the term "Interest
Rate Contract" means any interest rate agreement, interest rate collar
agreement, interest rate swap agreement, or other agreement or arrangement at
any time entered into by a Borrower with Bank that is designed to protect
against fluctuations in interest rates.
7.1.2 Fixed Charge Coverage Ratio. Borrowers shall achieve a
Fixed Charge Coverage Ratio of not less than 1.05 to 1.0 on the last day of
September, 2005 and the last day of each month thereafter.
As used herein, "Fixed Charge Coverage Ratio" means, for any period
of a Person, the ratio of such Person's (i) Consolidated EBITDA minus cash
income taxes paid minus Capital Expenditures (other than Financed Capital
Expenditures) minus cash Distributions permitted under this Agreement and paid,
all calculated for the 12-month period ending on the date referred to in the
first sentence of this Section, to (ii) Fixed Charges for such period. As used
herein, "Capital Expenditures" means, with respect to any Person, expenditures
made or liabilities incurred by such Person for capitalized software or for the
acquisition or leasing pursuant to a capital lease of any fixed or capital
assets or improvements, replacements, substitutions or additions thereto, to the
extent that the same are properly treated as capital expenditures under GAAP on
a balance sheet of such Person, including the total principal portion of
Capitalized Lease Obligations. As used herein, "Capitalized Lease Obligation"
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means any Debt represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP. As used
herein, "Financed Capital Expenditures" means Capital Expenditures that are
financed by a Borrower with Debt other than Revolver Loans. As used herein,
"Fixed Charges" means, for any fiscal period of a Person, the sum of such
Person's (i) cash interest paid in respect of its Debt for the 12-month period
ending on the date referred to in the first sentence of this Section, plus (ii)
the current portion of Debt scheduled on the last day of such period to become
due and payable during the immediately succeeding 12-month period (other than
the Revolver Loans in the 12 months prior to the Termination Date), plus (iii)
without duplication, cash payments of principal and interest on Subordinated
Debt made during such period.
8. DEFAULT.
8.1 EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default:
(a) There shall occur any default by a Borrower in the
payment, when due, of any principal of or interest on the Note or any fee due,
any other amounts due hereunder or any other Loan Document, or any other
Obligations; or
(b) There shall occur any default by any Borrower in the
performance of any agreement, covenant or obligation contained in Section 5.1,
5.4, 5.5, 5.6, 5.9, 5.12, 5.13, Section 6 or Section 7 of this Agreement; or
(c) There shall occur any default by any Borrower or any
other party to any Loan Document (other than Bank) in the performance of any
other agreement, covenant or obligation contained in this Agreement or such Loan
Document not provided for elsewhere in this Section 8 and the breach of such
other agreement, covenant or obligation is not cured to Bank's satisfaction
within 20 days after the sooner to occur of any Senior Officer's receipt of
notice of such breach from Bank or the date on which such failure or neglect
first becomes known to any Senior Officer; provided, however, that such notice
and opportunity to cure shall not apply in the case of any failure to perform,
keep or observe any covenant which is not capable of being cured at all or
within such 20-day period or which is a willful and knowing breach by a Borrower
or such other party; or
(d) Any representation or warranty made by a Borrower or any
other party to any Loan Document (other than Bank) herein or therein or in any
certificate or report furnished in connection herewith or therewith shall prove
to have been untrue or incorrect in any material respect when made; or
(e) Any other obligation now or hereafter owed by any
Borrower, Subsidiary or Guarantor to Bank or any Affiliate of Bank shall be in
default and not cured within the grace period, if any, provided therein; or
(f) Any Borrower, Subsidiary or Guarantor shall fail to make
any payment in respect of outstanding Debt (other than the Obligations) in an
aggregate principal amount of $50,000 or more when due after the expiration of
any applicable grace period, or any event or condition shall occur which results
in the acceleration of the maturity of such Debt (including, without limitation,
any required mandatory prepayment or "put" of such Debt to any such Person) or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holders of such Debt or a commitment related to such Debt (or any Person
acting on such holders' behalf) to accelerate the maturity thereof or terminate
any such commitment prior to its normal expiration (including, without
limitation, any required mandatory prepayment or "put" of such Debt to such
Person); or
(g) Any Borrower, Subsidiary or Guarantor shall (A)
voluntarily dissolve, liquidate or terminate operations or apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of such Person or of all or of a substantial part of its
assets,
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(B) admit in writing its inability, or be generally unable, to pay its debts as
the debts become due, (C) make a general assignment for the benefit of its
creditors, (D) commence a voluntary case under the federal Bankruptcy Code (as
now or hereafter in effect), (E) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, or (F) take any corporate action for the
purpose of effecting any of the foregoing; or
(h) An involuntary petition or complaint shall be filed
against any Borrower, Subsidiary or Guarantor seeking bankruptcy relief or
reorganization or the appointment of a receiver, custodian, trustee, intervenor
or liquidator of such Borrower, Subsidiary or Guarantor, of all or substantially
all of its assets, and such petition or complaint shall not have been dismissed
within sixty (60) days of the filing thereof; or an order, order for relief,
judgment or decree shall be entered by any court of competent jurisdiction or
other competent authority approving or ordering any of the foregoing actions; or
(i) A judgment in excess of $1,000,000 in the case of
Insurdata Marketing Services' suit against Healthplan Services, Inc., a former
subsidiary of PlanVista, or in excess of $500,000 in any other case, shall be
rendered against any Borrower, Subsidiary or any Guarantor and shall remain
undischarged, undismissed and unstayed for more than twenty days (except
judgments validly covered by insurance with a deductible of not more than
$500,000) or there shall occur any levy upon, or attachment, garnishment or
other seizure of, any portion of the Collateral or other assets of any Borrower,
Subsidiary or Guarantor in excess of $250,000 by reason of the issuance of any
tax levy, judicial attachment or garnishment or levy of execution; or
(j) Any Guarantor shall repudiate or revoke any Guaranty
Agreement; or
(k) Loss, theft, damage or destruction of any material portion
of the tangible Collateral for which the amount not covered by insurance exceeds
$250,000 (not including any applicable deductible); or
(m) A Change of Control shall have occurred.
8.2 REMEDIES. If any Default shall occur, Bank may, without notice
to any Borrower, at its option, withhold further Loans or other extensions of
credit to Borrowers. If an Event of Default shall have occurred and be
continuing, Bank may at its option take any or all of the following actions:
(a) Bank may declare any or all Obligations (other than
Obligations under any Swap Agreements, between a Borrower and Bank or any
Affiliate of Bank, which shall be due in accordance with and governed by the
provisions of said Swap Agreements) to be immediately due and payable (if not
earlier demanded) (provided, that, upon the occurrence of any Event of Default
described in Sections 8.1(g) or 8.1(h), all Obligations shall automatically
become immediately due and payable), terminate its obligation to make Loans and
other extensions of credit to Borrowers, bring suit against Borrowers to collect
the Obligations, exercise any remedy available to Bank hereunder or at law and
take any action or exercise any remedy provided herein or in any other Loan
Document or under applicable law. No remedy shall be exclusive of other remedies
or impair the right of Bank to exercise any other remedies.
(b) Without waiving any of its other rights hereunder or under
any other Loan Document, Bank shall have all rights and remedies of a secured
party under the Code (and the Uniform Commercial Code of any other applicable
jurisdiction) and such other rights and remedies as may be available hereunder,
under other applicable law or pursuant to contract. If requested by Bank,
Borrowers will promptly assemble the Collateral and make it available to Bank at
a place to be designated by Bank. Borrowers agree that any notice by Bank of the
sale or disposition of the Collateral or any other intended action hereunder,
whether required by the Code or otherwise, shall constitute reasonable notice to
Borrowers if the notice is mailed to Borrowers' Representative by regular or
certified mail, postage
38
prepaid, at least five days before the action to be taken. Borrowers shall be
jointly and severally liable for any deficiencies in the event the proceeds of
the disposition of the Collateral do not satisfy the Obligations in full.
(c) Bank may demand, collect and sue for all amounts owed
pursuant to Accounts, General Intangibles, Chattel Paper, Instruments, Documents
or for proceeds of any Collateral (either in a Borrower's name or Bank's name at
the latter's option), with the right to enforce, compromise, settle or discharge
any such amounts.
(d) Notwithstanding the foregoing, Bank shall not debit any
Deposit Account of a Borrower into which Medicare directly deposits Medicare
payments due to such Borrower and shall not exercise its right of set-off
against any such Deposit Account.
8.3 RECEIVER. In addition to any other remedy available to it,
Bank shall have the absolute right, upon the occurrence of an Event of Default,
to seek and obtain the appointment of a receiver to take possession of and
operate and/or dispose of the business and assets of any Borrower and any costs
and expenses incurred by Bank in connection with such receivership shall bear
interest at the Default Rate, at Bank's option, and shall be secured by all
Collateral.
8.4 DEPOSITS; INSURANCE. After the occurrence of an Event of
Default, each Borrower authorizes Bank to collect and apply against the
Obligations when due any cash or Deposit Accounts in its possession, and any
refund of insurance premiums or any insurance proceeds payable on account of the
loss or damage to any of the Collateral and irrevocably appoints Bank as its
attorney-in-fact to endorse any check or draft or take other action necessary to
obtain such funds.
9. Security Agreement.
9.1 SECURITY INTEREST.
(a) As security for the payment and performance of any and all
Obligations and the performance of all obligations and covenants of each
Borrower to Bank and its Affiliates, whether hereunder and under the other Loan
Documents, Swap Agreements between Bank or any Affiliate of Bank and any
Borrower or otherwise, certain or contingent, now existing or hereafter arising,
which are now, or may at any time or times hereafter be owing by each Borrower
to Bank or any of Bank's Affiliates, each Borrower hereby grants to Bank (for
itself and its Affiliates) a continuing security interest in and general lien
upon and right of set-off against, all right, title and interest of each
Borrower in and to the Collateral, whether now owned or hereafter acquired by
such Borrower.
(b) Except as herein or by applicable law otherwise expressly
provided, Bank shall not be obligated to exercise any degree of care in
connection with any Collateral in its possession, to take any steps necessary to
preserve any rights in any of the Collateral or to preserve any rights therein
against prior parties, and each Borrower agrees to take such steps. In any case
Bank shall be deemed to have exercised reasonable care if it shall have taken
such steps for the care and preservation of the Collateral or rights therein as
a Borrower may have reasonably requested Bank to take, and Bank's omission to
take any action not requested by a Borrower shall not be deemed a failure to
exercise reasonable care. No segregation or specific allocation by Bank of
specified items of Collateral against any liability of a Borrower shall waive or
affect any security interest in or Lien against other items of Collateral or any
of Bank's options, powers or rights under this Agreement or otherwise arising.
(c) Bank may at any time and from time to time, with or
without notice to any Borrower, (i) transfer into the name of Bank or the name
of Bank's nominee any of the Collateral, (ii) notify any Account Debtor or other
obligor of any Collateral to make payment thereon direct to Bank of any amounts
due or to become due thereon and (iii) receive and direct the disposition of any
proceeds of any Collateral.
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(d) Notwithstanding the foregoing, (i) no Account, Instrument,
Chattel Paper or other obligation or property of any kind due from, owed by or
belonging to, a Sanctioned Person or (ii) any lease in which the lessee is a
Sanctioned Person shall be Collateral or shall be credited toward the payment of
the Obligations.
9.2 FINANCING STATEMENTS; POWER OF ATTORNEY. Each Borrower
authorizes Bank at Borrowers' expense to file any financing statements and/or
amendments thereto relating to the Collateral (without such Borrower's signature
thereon) which Bank deems appropriate that (a) indicate the Collateral (i) as
"all assets" of such Borrower or words of similar effect, if appropriate,
regardless of whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Code, or (ii) by specific Collateral
category, and (b) provide any other information required by part 5 of Article 9
of the Code for the sufficiency or filing office acceptance of any financing
statement or amendment. Each Borrower irrevocably appoints Bank as its
attorney-in-fact to execute any such financing statements and/or control
agreements in such Borrower's name and to perform all other acts, at Borrowers'
expense, which Bank deems appropriate to perfect and to continue perfection of
the security interest of Bank. Each Borrower hereby appoints Bank as such
Borrower's attorney-in-fact to endorse, present and collect on behalf of such
Borrower and in such Borrower's name any draft, checks or other documents
necessary or desirable to collect any amounts which such Borrower may be owed.
Bank is hereby granted a license or other right to use, without charge, each
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks and advertising matter, or any Property of a
similar nature, as it pertains to the Collateral, in advertising for sale and
selling any Collateral, and each Borrower's rights under all licenses and all
franchise agreements shall inure to Bank's benefit. The proceeds realized from
the sale or other disposition of any Collateral may be applied, after allowing
two (2) Business Days for collection, first to the reasonable costs, expenses
and attorneys' fees and expenses incurred by Bank for collection and for
acquisition, completion, protection, removal, storage, sale and delivering of
the Collateral; secondly, to interest due upon any of the Obligations; and
thirdly, to the principal amount of the Obligations and to any other Obligations
then outstanding. If any deficiency shall arise, each Borrower and Guarantor
shall remain jointly and severally liable to Bank therefor.
9.3 ENTRY. Each Borrower hereby irrevocably consents to any act by
Bank or its agents in entering upon any premises for the purposes of either (i)
inspecting the Collateral or (ii) taking possession of the Collateral, and each
Borrower hereby waives its right to assert against Bank or its agents any claim
based upon trespass or any similar cause of action for entering upon any
premises where the Collateral may be located.
9.4 OTHER RIGHTS. Each Borrower authorizes Bank without affecting
any Borrower's obligations hereunder or under any other Loan Document from time
to time (i) to take from any party and hold additional Collateral or guaranties
for the payment of the Obligations or any part thereof, and to exchange, enforce
or release such collateral or guaranty of payment of the Obligations or any part
thereof and to release or substitute any endorser or guarantor or any party who
has given any security interest in any collateral as security for the payment of
the Obligations or any part thereof or any party in any way obligated to pay the
Obligations or any part thereof; and (ii) upon the occurrence of any Event of
Default to direct the manner of the disposition of the Collateral and the
enforcement of any endorsements, guaranties, letters of credit or other security
relating to the Obligations or any part thereof as Bank in its sole discretion
may determine.
9.5 ACCOUNTS. Before or after any Event of Default, Bank may
notify any Account Debtor of Bank's security interest and may direct such
Account Debtor to make payment directly to Bank for application against the
Obligations. Any such payments received by or on behalf of any Borrower at any
time, whether before or after default, shall be the property of Bank, shall be
held in trust for Bank and not commingled with any other assets of any Person
(except to the extent they may be commingled with other assets of such Borrower
in an account with Bank) and shall be immediately delivered to Bank in the
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form received. Bank shall have the right to apply any proceeds of Collateral to
such of the Obligations as it may determine.
9.6 WAIVER OF MARSHALING. Each Borrower hereby waives any right it
may have to require marshaling of its assets.
9.7 CONTROL. Each Borrower will cooperate with Bank in obtaining
control of, or control agreements with respect to, Collateral for which control
or a control agreement is required for perfection of the Bank's security
interest under the Code.
10. Miscellaneous.
10.1 NO WAIVER, REMEDIES CUMULATIVE. No failure on the part of Bank
to exercise, and no delay in exercising, any right hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and are in addition to any other remedies provided by law, any Loan Document or
otherwise.
10.2 SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein shall survive the making of the Loan hereunder and the
delivery of the Note, and shall continue in full force and effect so long as any
Obligations is outstanding, there exists any commitment by Bank to any Borrower,
and until this Agreement is formally terminated in writing.
10.3 INDEMNITY BY BORROWER; EXPENSES. In addition to all other
Obligations, each Borrower agrees to defend, protect, indemnify and hold
harmless Bank and its Affiliates and all of their respective officers,
directors, employees, attorneys, consultants and agents from and against any and
all losses, damages, liabilities, obligations, penalties, fines, fees, costs and
expenses (including, without limitation, attorneys' and paralegals' fees, costs
and expenses, and fees, costs and expenses for investigations and experts)
incurred by such indemnitees, whether prior to or from and after the date
hereof, as a result of or arising from or relating to (i) the due diligence
effort (including, without limitation, public record search, recording fees,
examinations and investigations of the properties of each Borrower and each
Borrower's operations), negotiation, preparation, execution and/or performance
of any of the Loan Documents or of any document executed in connection with the
transactions contemplated thereby and the perfection of Bank's Liens in the
Collateral, maintenance of the Loan by Bank, and any and all amendments,
modifications, and supplements of any of the Loan Documents or restructuring of
the Obligations, (ii) any suit, investigation, action or proceeding by any
Person (other than a Borrower), whether threatened or initiated, asserting a
claim for any legal or equitable remedy against any Person under any statute,
regulation or common law principle, arising from or in connection with Bank's
furnishing of funds to a Borrower under this Agreement, (iii) Bank's
preservation, administration and enforcement of its rights under the Loan
Documents and applicable law, including actual reasonable attorneys fees and
costs of collection incurred by Bank in connection therewith, whether suit be
brought or not and whether incurred at trial or on appeal, and all costs of
repossession, storage, disposition, protection and collection of Collateral,
(iv) periodic field exams, audits and appraisals performed by Bank pursuant to
Section 5.5 hereof;(v) any civil penalty or fine assessed by OFAC against Bank
or any Affiliate of Bank and all reasonable costs and expense (including counsel
fees and disbursements) incurred in connection with defense thereof by Bank or
such Affiliate, as a result of the funding of Loans or the extension of credit,
the acceptance of payments due under the Loan Documents or any Swap Agreement or
acceptance of Collateral, and/or (vi) any matter relating to the financing
transactions contemplated by the Loan Documents or by any document executed in
connection with the transactions contemplated thereby, other than for such loss,
damage, liability, obligation, penalty, fee, cost or expense arising from such
indemnitee's gross negligence or willful misconduct. If any Borrower should fail
to pay any tax or other amount required by this Agreement to be paid or which
may be reasonably necessary to protect or preserve any Collateral or a
Borrower's or Bank's interests therein, Bank may make such payment and the
amount thereof shall be payable on demand, may at Bank's option be debited
against any Deposit
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Account of a Borrower at Bank or converted to a Loan hereunder, shall bear
interest at the Default Rate from the date of demand until paid and shall be
deemed to be Obligations entitled to the benefit and security of the Loan
Documents. In addition, each Borrower agrees to pay and save Bank harmless
against any liability for payment of any state documentary stamp taxes,
intangible taxes or similar taxes (including interest or penalties, if any)
which may now or hereafter be determined to be payable in respect to the
execution, delivery or recording of any Loan Document or the making of any Loan,
whether originally thought to be due or not, and regardless of any mistake of
fact or law on the part of Bank or any Borrower with respect to the
applicability of such tax. Each Borrower's obligation for indemnification for
all of the foregoing losses, damages, liabilities, obligations, penalties, fees,
costs and expenses of Bank shall be part of the Obligations, secured by the
Collateral, chargeable against Borrowers' loan account, and shall survive
termination of this Agreement.
10.4 NOTICES. Any notice or other communication hereunder or under
the Note to any party hereto or thereto shall be by hand delivery, overnight
delivery via nationally recognized overnight delivery service, facsimile with
receipt confirmed, telegram, telex or registered or certified United States mail
with return receipt and unless otherwise provided herein shall be deemed to have
been given or made when delivered, telegraphed, telexed, faxed or, if sent via
United States mail, when receipt signed by the receiver, postage prepaid,
addressed to the party at its address specified below (or at any other address
that the party may hereafter specify to the other parties in writing):
Bank: Wachovia Bank, National Association
Wachovia Capital Finance
191 Peachtree St., N.E.
Mail Code 8056
Atlanta, Georgia 30303
Attn: Linda M. Harris
Fax No.: 404-332-6930
Borrowers': ProxyMed, Inc.
Representative: 1854 Shackelford Court
Suite 200
Norcross, Georgia 30093
Attn: President
Fax No.: 954-473-0620
10.5 GOVERNING LAW. This Agreement and the Loan Documents shall be
deemed contracts made under the laws of the Jurisdiction and shall be governed
by and construed in accordance with the laws of the Jurisdiction (excluding its
conflict of laws provisions if such provisions would require application of the
laws of another jurisdiction) except insofar as the laws of another jurisdiction
may, by reason of mandatory provisions of law, govern the perfection, priority
and enforcement of security interests in the Collateral.
10.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of each Borrower and Bank, and their respective
successors and assigns; provided, that no Borrower may assign any of its rights
hereunder without the prior written consent of Bank, and any such assignment
made without such consent will be void.
10.7 COUNTERPARTS; TELECOPIED SIGNATURES. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which when taken together shall constitute but one
and the same instrument. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
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10.8 NO USURY. Regardless of any other provision of this Agreement,
the Note or in any other Loan Document, if for any reason the effective interest
should exceed the maximum lawful interest, the effective interest shall be
deemed reduced to, and shall be, such maximum lawful interest, and (i) the
amount which would be excessive interest shall be deemed applied to the
reduction of the principal balance of the Note and not to the payment of
interest, and (ii) if the loan evidenced by the Note has been or is thereby paid
in full, the excess shall be returned to the party paying same, such application
to the principal balance of the Note or the refunding of excess to be a complete
settlement and acquittance thereof.
10.9 POWERS. All powers of attorney granted to Bank are coupled
with an interest and are irrevocable.
10.10 APPROVALS; AMENDMENTS. If this Agreement calls for the
approval or consent of Bank, such approval or consent may be given or withheld
in the discretion of Bank unless otherwise specified herein. This Agreement and
the other Loan Documents may not be modified, altered or amended, except by an
agreement in writing signed by Borrowers and Bank and may not be modified in any
manner adverse to a provider under any secured or guarantied Swap Agreement
without that provider's prior written consent.
10.11 PARTICIPATIONS AND ASSIGNMENTS. Bank shall have the right to
enter into one or more participation with other lenders with respect to the
Obligations and to assign to one or more assignees all or a portion of its
interest, rights and obligations under the Loan Documents. Upon prior notice to
Borrowers of such participation or assignment, Borrowers shall thereafter
furnish to such participant or assignee any information furnished by Borrowers
to Bank pursuant to the terms of the Loan Documents. Nothing in this Agreement
or any other Loan Document shall prohibit Bank from pledging or assigning this
Agreement and Bank's rights under any of the other Loan Documents, including
collateral therefor, to any Federal Reserve Bank in accordance with applicable
law.
10.12 ADDITIONAL PROVISIONS. Time is of the essencfe of this
Agreement and the other Loan Documents. This Agreement and the other Loan
Documents, together with all other instruments, agreements and certificates
executed by the parties in connection therewith or with reference thereto,
embody the entire understanding and agreement between the parties hereto and
thereto with respect to the subject matter hereof and thereof and supersede all
prior agreements, understandings and inducements, whether express or implied,
oral or written. No provision of this Agreement or any of the other Loan
Documents shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured, drafted or dictated
such provision.
10.13 INTEGRATION; FINAL AGREEMENT
.. This Agreement and the other loan documents represent the final 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 between the parties.
10.14 LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF
THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY
JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY
BETWEEN OR AMONG THEM (A "DISPUTE") THAT MAY ARISE OUT OF OR BE IN ANY WAY
CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR
DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED
HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER
FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY
DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO
PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE
43
FUTURE IN CONNECTION WITH ANY DISPUTE, WHETHER THE DISPUTE IS RESOLVED BY
ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE.
10.16. BINDING ARBITRATION; PRESERVATION OF REMEDIES.(a) Binding
Arbitration. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy between parties
hereto arising out of or relating to this Agreement or any other Loan Documents
shall be resolved by binding arbitration conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, a dispute
as to whether a matter is subject to arbitration, claims brought as class
actions, or claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or
related to Swap Agreements.
(b) Special Rules. All arbitration hearings shall be conducted
in the city named in the address of Bank first stated above. A hearing shall
begin within 90 days of demand for arbitration and all hearings shall conclude
within 120 days of demand for arbitration. These time limitations may not be
extended unless a party shows cause for extension and then for no more than a
total of 60 days. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00.
Arbitrators shall be licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable
Federal or state substantive law except as provided herein.
(c) Preservation and Limitation of Remedies. Notwithstanding
the preceding binding arbitration provisions, the parties agree to preserve,
without diminution, certain remedies that any party may exercise before or after
an arbitration proceeding is brought. The parties shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights to foreclose
against any real or personal property or other security by exercising a power of
sale or under applicable law by judicial foreclosure including a proceeding to
confirm the sale; (ii) all rights of self-help including peaceful occupation of
real property and collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment. Any claim or controversy with
regard to any party's entitlement to such remedies is a Dispute.
(d) Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY
AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY
HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.]
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal as of the day and year first above written.
PROXYMED, INC.
By /s/ Gregory J. Eisenhauer
--------------------------------------
Name: Gregory J. Eisenhauer
-----------------------------------
Title: Executive Vice President and CFO
----------------------------------
PROXYMED LAB SERVICES, LLC
BY: PROXYMED TRANSACTION SERVICES, INC.,
ITS SOLE MANAGER
By /s/ David Edward Oles
-----------------------------------
Name: David Edward Oles
-----------------------------------
Title: Secretary
----------------------------------
PROXYMED TRANSACTION SERVICES, INC.
By /s/ David Edward Oles
-----------------------------------
Name: David Edward Oles
-----------------------------------
Title: Secretary
----------------------------------
PLANVISTA CORPORATION
By /s/ Gregory J. Eisenhauer
-----------------------------------
Name: Gregory J. Eisenhauer
-----------------------------------
Title: Executive Vice President and CFO
----------------------------------
PLANVISTA SOLUTIONS, INC.
By /s/ Gregory J. Eisenhauer
-----------------------------------
Name: Gregory J. Eisenhauer
-----------------------------------
Title: Executive Vice President and CFO
----------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
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NATIONAL NETWORK SERVICES, LLC
BY: PLANVISTA SOLUTIONS, INC.,
ITS SOLE MANAGER
By /s/ Gregory J. Eisenhauer
-----------------------------------
Name: Gregory J. Eisenhauer
-----------------------------------
Title: Executive Vice President and CFO
----------------------------------
ACCEPTED IN ATLANTA, GEORGIA:
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Linda M. Harris
-----------------------------------
Name: Linda M. Harris
-----------------------------------
Title: Managing Director
----------------------------------
2