EXHIBIT 10.2
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of January 9, 2001 (this "Credit
Agreement"), is by and among Mediconsult.com, Inc., a Delaware corporation
("Mediconsult"), Physicians' Online, Inc., a Delaware corporation and wholly
owned subsidiary of Mediconsult ("Physicians' Online"), and Cybear Inc., a
Delaware corporation ("Cybear") and subsidiary of Andrx Corporation, a Delaware
corporation ("Andrx"). Cybear, Mediconsult and Physicians' Online are
individually referred to as a "Party" and collectively referred to herein as the
"Parties." Terms not defined herein are as defined in the Merger Agreement (as
hereinafter defined).
RECITALS
A. Andrx, Mediconsult Acquisition Corp., a Delaware corporation
and wholly owned subsidiary of Andrx ("Merger Sub"), and Mediconsult, entered
into an Agreement and Plan of Merger dated the date hereof (the "Merger
Agreement"), pursuant to which, among other things, upon the terms and subject
to the conditions thereof, Merger Sub will be merged with and into Mediconsult
with Mediconsult continuing as the surviving corporation (the "Merger");
B. Pursuant to the Merger Agreement, Andrx has agreed to cause to
be provided to Mediconsult and Physicians' Online interim financing (the "Loan")
in the maximum aggregate principal amount of $2,000,000 (the "Maximum Principal
Amount") to enable Mediconsult and Physicians' Online to fund their operating
activities in the Ordinary Course of Business;
C. The Loan is evidenced by that certain Line of Credit
Convertible Note dated of even date herewith (the "Note") made by Mediconsult
and Physicians' Online payable to the order of Cybear; and secured as set forth
herein; and
D. Cybear is willing to make the commitment to Mediconsult and
Physicians' Online to make the Loan on the terms and subject to the conditions
hereinafter set forth.
Now, therefore, in consideration of the premises and the mutual
promises herein made and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows:
1. Line of Credit; Security; Warrant.
(a) Line of Credit Commitment. Cybear hereby agrees, pursuant to the
terms and subject to the conditions of this Credit Agreement, to make the Loan
to Mediconsult and Physicians' Online for a period beginning on the date hereof
and terminating on July 15, 2001 (the "Maturity Date"), at such times and,
subject to Section 1(b) below, in such amounts as Mediconsult or Physicians'
Online may request up to but not exceeding in the aggregate the Maximum
Principal Amount. No payments under the Note shall be due and payable until the
Maturity Date unless there shall have been an Event of Default.
(b) Notice and Manner of Borrowing.
(i) Mediconsult and Physicians' Online shall give written
notice (in the manner set forth in Section 6(a)) to Cybear prior to 10:00 a.m.,
Eastern Time, at least two business days prior to the proposed borrowing date in
substantially the form attached hereto as Exhibit A (the "Notice of Borrowing").
The Notice of Borrowing shall be signed by Mediconsult's Chief Executive Officer
or Chief Financial Officer and countersigned by an authorized representative of
Cybear designated in writing to Mediconsult by Cybear. Each borrowing hereunder
shall be an integral multiple of $50,000. In no event shall the aggregate
borrowings exceed the Maximum Principal Amount. Neither Mediconsult nor
Physicians' Online shall give a Notice of Borrowing more frequently than
biweekly.
(ii) Each borrowing under this Section 1 shall be made at
the principal business office of Cybear, at its address set forth herein, by
crediting Mediconsult's or Physicians' Online's account designated in the Notice
of Borrowing in the amount thereof. If each of the conditions set forth in
Section 1(d) have been satisfied, the proceeds of the borrowing shall be
available to Mediconsult and Physicians' Online prior to 2:00 p.m., Eastern
Time, on such borrowing date.
(iii) Mediconsult and Physicians' Online shall have the
right, at any time and from time to time, to prepay the Loan, in whole or in
part, without penalty or premium, upon not less than three business days' notice
to Cybear, provided, however, that, upon each prepayment, Mediconsult and
Physicians' Online shall pay accrued interest on the principal amount so repaid
to the date of prepayment.
(c) Note. The Loan made by Cybear under this Section shall be evidenced
by, and repaid with interest in accordance with, the Note. The Note shall be
enforceable, with respect to Mediconsult's and Physicians' Online's obligation
to pay the principal amount thereof, only to the extent of the unpaid principal
amount of the Loan at the time evidenced thereby. Interest on the Note shall be
payable on, and only for the period during which, the principal amount of the
Loan evidenced thereby is outstanding.
(d) Conditions to Loan. The obligation of Cybear to make the Loan is
subject to the following conditions precedent, each of which shall have been met
or performed by the borrowing date with respect to such Loan:
(i) Notice of Borrowing. Mediconsult and Physicians'
Online shall have delivered to Cybear the Notice of Borrowing.
(ii) No Default. No default or Event of Default (as
defined in Section 5 herein) shall have occurred and be continuing or will occur
upon the making of the Loan on such borrowing date, and the representations and
warranties in Section 2 of this Credit Agreement shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of such borrowing date.
(e) Security. The Note shall be secured by (A) a pledge of all of the
issued and outstanding common stock of Physicians' Online (the "POL Stock")
pursuant to a Stock Pledge Agreement, in substantially the form attached hereto
as Exhibit B (the "Pledge Agreement"); and
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(B) a security interest in all the assets of Physicians' Online pursuant to a
Security Agreement, in substantially the form attached hereto as Exhibit C (the
"Security Agreement").
(f) Warrant. Simultaneously with the execution of this Credit
Agreement, Mediconsult shall issue to Cybear a warrant, in substantially the
form attached hereto as Exhibit D (the "Warrant"), to purchase 8,926,502 shares
of common stock, $.001 par value per share, of Mediconsult (the "Mediconsult
Common Stock").
(g) Financial Condition Certificate. Simultaneously with the execution
of this Credit Agreement, Mediconsult shall deliver to Cybear a certificate
executed by the Chief Financial Officer of Mediconsult regarding the
consolidated financial condition of Mediconsult, in substance reasonably
satisfactory to Cybear.
2. Representations And Warranties. In order to induce Cybear to enter into
this Credit Agreement and to make the Loan, Mediconsult represents and warrants
to Cybear that the statements contained in this Section 2 are correct and
complete as of the date of this Credit Agreement and will be correct and
complete as of each borrowing date, except as set forth in the Disclosure
Schedules to the Merger Agreement.
(a) Organization, Qualification, and Corporate Power. Each of
Mediconsult and its Subsidiaries is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each of Mediconsult and its Subsidiaries is duly authorized to
conduct business and is in good standing under the laws of each jurisdiction
where such qualification is required, except where the lack of such
qualification would not have a material adverse effect on the business,
operations, results of operations, assets, liabilities or financial condition of
Mediconsult or Physicians' Online, or on the ability of the Parties to
consummate the transactions contemplated by the Merger Agreement (a "Mediconsult
Material Adverse Effect"); it being understood, however, that Mediconsult's
continuing to incur losses in the Ordinary Course of Business, shall not, alone,
be deemed to be a Mediconsult Material Adverse Effect. Each of Mediconsult and
its Subsidiaries have full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it. Mediconsult is the owner of the POL Stock, and all such shares are
duly authorized, validly issued, fully paid and nonassessable. The POL Stock is
owned by Mediconsult, free and clear of all Security Interests or rights of
others.
(b) Authorization of Transaction. Mediconsult and Physicians' Online
each has full power and authority (including full corporate power and authority)
to execute and deliver the Note, Credit Agreement, Pledge Agreement, Security
Agreement and Warrant, as the case may be, and to perform its obligations
hereunder. The Note, Credit Agreement, Pledge Agreement, Security Agreement and
Warrant constitute the valid and legally binding obligation of Mediconsult and
Physicians' Online, as the case may be, enforceable against Mediconsult or
Physicians' Online, as the case may be, in accordance with their terms except as
such enforcement may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, receivership, conservatorship, arrangement, moratorium or other
laws affecting or relating to the rights of creditors generally, or (ii) the
rules governing the availability of specific performance, injunctive relief or
other equitable remedies and general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
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(c) Noncontravention. Neither the execution and the delivery of the
Note, Credit Agreement, Pledge Agreement, Security Agreement or Warrant, nor the
consummation of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, Governmental Permit or other restriction of any Governmental
Entity, or court to which any of Mediconsult and its Subsidiaries is subject;
(ii) violate any provision of the charter or bylaws of any of Mediconsult and
its Subsidiaries or (iii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument or other arrangement to which
any of Mediconsult and its Subsidiaries is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets), except, in the cases of (i) and (iii), where
the violation, conflict, breach, default, acceleration, termination,
modification, cancellation, or failure to give notice would not have a
Mediconsult Material Adverse Effect. None of Mediconsult and its Subsidiaries
are required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or Governmental Entity in
order for the Parties to consummate the transactions contemplated by this Credit
Agreement.
(d) Financial Statements. The Mediconsult Financial Statements were
complete and correct in all material respects as of their respective dates,
comply in all material respects with the Securities Exchange Act and the rules
and regulations of the SEC promulgated thereunder and have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby (except as may be indicated in the notes thereto or, in the case
of unaudited financial statements, as may be permitted by the SEC on Form 10-Q
under the Securities Exchange Act), present fairly the financial condition of
Mediconsult and its Subsidiaries as of the indicated dates and the results of
operations of Mediconsult and its Subsidiaries for the indicated periods, are
correct and complete in all material respects as of their respective dates, and
are consistent with the books and records of Mediconsult and its Subsidiaries,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not, or are not expected to
be, material in amount.
(e) Events Subsequent to Most Recent Mediconsult Fiscal Period End.
Since the Most Recent Mediconsult Fiscal Period End, Mediconsult has conducted
its business in the Ordinary Course of Business and there has not occurred, (i)
any change, event or condition (whether or not covered by insurance) that has
resulted in, or would result in, a Mediconsult Material Adverse Effect;
provided, however, that for purposes of this Section 2(e), the occurrence of any
of the following events or circumstances, in and of themselves and in
combination with any of the others, shall not constitute a Mediconsult Material
Adverse Effect: (A) circumstances, changes in, or effects on Mediconsult or its
business caused by (x) changes in its business plan or methods of operations
made at the request of Andrx or Cybear or (y) actions taken or decisions made by
Andrx or Cybear, (B) any adverse change, event or effect that is caused
primarily by conditions generally affecting the United States economy, (C) any
adverse change, event or effect that is caused primarily by conditions generally
affecting the healthcare, technology, Internet or service industries; or (D) any
adverse change that is demonstrated to be attributable primarily to the
announcement or discovery of this Credit Agreement and the transactions
contemplated hereby (including employee attrition or any loss of business
relationships), unless such change resulted from a breach by Mediconsult or its
obligations under this Credit
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Agreement; (ii) any acquisition, sale or transfer of any asset material to the
ongoing business of Mediconsult or any of its Subsidiaries other than in the
Ordinary Course of Business; (iii) any change in accounting methods or practices
(including any change in depreciation or amortization policies or rates) by
Mediconsult, except as required by concurrent changes in GAAP or any revaluation
by Mediconsult of any of its or any of its Subsidiaries' assets, except as
required by GAAP; (iv) any declaration, setting aside, or payment of a dividend
or other distribution with respect to the Mediconsult Capital Stock, or any
direct or indirect redemption, purchase or other acquisition by Mediconsult of
any of its shares of the Mediconsult Capital Stock; (v) any contract entered
into by Mediconsult or any of its Subsidiaries, other than in the Ordinary
Course of Business, or any amendment or termination of, or default under, any
contract to which Mediconsult or any of its Subsidiaries is a party or by which
it is bound; (vi) any amendment or change to the Mediconsult Certificate of
Incorporation or bylaws of Mediconsult; (vii) any increase in or modification
(other than a decrease in compensation or other benefits) of the compensation or
benefits payable or to become payable by Mediconsult to any of its directors,
officers or employees (except in the case of employees (other than officers)
increases (x) in the Ordinary Course of Business or (y) as required by any
relevant employee agreement or option agreement); (viii) any change in the
interest rate risk management and hedging policies, procedures or practices of
Mediconsult or any of its Subsidiaries, or any failure to comply with such
policies, procedures and practices; or (ix) any negotiation or agreement by
Mediconsult or any of its Subsidiaries to do any of the things described in the
preceding clauses (i) through (viii) (other than negotiations with Andrx or
Cybear and its representatives regarding the transactions contemplated by the
Merger Agreement or this Credit Agreement).
(f) Undisclosed Liabilities. Neither Mediconsult nor any of its
Subsidiaries has any obligations or liabilities (contingent or otherwise) except
obligations and liabilities (i) that are fully accrued or provided for in all
material respects in the Mediconsult Balance Sheet in accordance with GAAP, or
disclosed in the notes therein in accordance with GAAP or (ii) that were
incurred after the Most Recent Mediconsult Fiscal Period End in the Ordinary
Course of Business (none of which results from, arises out of, relates to, is in
the nature of, or was caused by any breach of contract, breach of warranty,
tort, infringement, or violation of law). All material agreements currently in
effect, including all material agreements, arrangements or understandings with
directors and officers of Mediconsult, are filed as exhibits to Mediconsult
Public Reports.
(g) Litigation. Neither Mediconsult nor any of its Subsidiaries is (i)
subject to any outstanding injunction, judgment, order, decree, ruling, or
charge, which would have a Mediconsult Material Adverse Effect, or (ii) a party
to or, to Mediconsult's Knowledge, threatened to be made a party to, any action,
suit, proceeding, hearing, or investigation of, in, or before any Governmental
Entity or before any arbitrator which would have a Mediconsult Material Adverse
Effect.
(h) Restrictions on Business Activities. There is no agreement,
judgment, injunction, order or decree binding upon Mediconsult or any of its
Subsidiaries which has had or would have the effect of prohibiting or impairing
any current business practice of Mediconsult or any of its Subsidiaries, any
acquisition of property by Mediconsult or any of its Subsidiaries or the conduct
of business by Mediconsult or any of its Subsidiaries as currently conducted by
Mediconsult or any of its Subsidiaries.
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(i) Compliance With Laws. Each of Mediconsult and its Subsidiaries has
complied in all respects with all applicable federal, state, local,
self-regulatory and foreign laws, statutes, ordinances, rules and regulations,
and is not in violation in any respect of, and has not received any notices of
violation with respect to, its respective certificate or articles of
incorporation or bylaws or other charter or organizational documents, each as
amended, or any federal, state, local, self-regulatory or foreign statute, law,
ordinance, rule or regulation applicable to the conduct of its business or the
ownership or operation of its business, except where such noncompliance or
violation would not have a Mediconsult Material Adverse Effect.
(j) Representations Complete. None of the representations or warranties
made by Mediconsult herein or in any schedule hereto, or certificate furnished
by Mediconsult pursuant to this Credit Agreement, when all such documents are
read together in their entirety, contains or will contain on the date hereof or
on a borrowing date any untrue statement of a material fact, or omits or will
omit on the date hereof or on a borrowing date to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading.
3. Affirmative Covenants. Mediconsult and Physicians' Online covenant and
agree with Cybear that, from the date hereof and so long as this Credit
Agreement remains in effect, or any obligations under the Loan or the Note
remain outstanding and unpaid, unless Andrx or Cybear shall otherwise consent in
writing, Mediconsult and Physicians' Online will:
(a) Corporate Existence. Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect the corporate existence of
Mediconsult and, except as requested or permitted by Cybear, its Subsidiaries,
and all rights, licenses, permits and franchises required as of the date hereof,
or which may be required in the future, for the conduct of Mediconsult's
business and comply with all applicable laws and regulations that materially
affect Mediconsult and its Subsidiaries and maintain, preserve and protect all
franchises, trade names and all property used or required in the conduct of
Mediconsult's business, except to the extent failure to do any of the foregoing
would not have a Mediconsult Material Adverse Effect.
(b) Insurance. Keep the insurable properties used in Mediconsult's and
Physicians' Online's business insured in accordance and consistent with past
practice.
(c) Obligations and Taxes. Promptly pay and discharge, or cause to be
paid and discharged, all Taxes imposed upon Mediconsult and its Subsidiaries and
their respective properties, and all lawful claims of labor, materials and
supplies or otherwise that, if unpaid, might become a Security Interest upon
such properties (other than Permitted Liens as defined in Section 4(c) herein);
provided, however, that Mediconsult shall not be required to pay and discharge,
or cause to be paid and discharged, any such Tax so long as the validity thereof
shall be contested in good faith by appropriate proceedings.
(d) Books and Records. Keep and maintain full and accurate accounts and
records of Mediconsult's operations according to GAAP consistently applied on a
basis consistent with past practices, and permit Cybear reasonable access
thereto.
(e) Notice of Default. Upon the occurrence of any default under this
Credit Agreement or Event of Default (as defined in Section 5 herein) or any
event which, with the lapse of time or the giving of notice, or both, would
constitute an Event of Default, under this Credit Agreement
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or the Note, furnish, within two business days after each such occurrence,
written notice thereof to Cybear specifying the nature and period of existence
thereof and the action that Mediconsult or Physicians' Online is taking or
proposes to take with respect thereto.
(f) Interim Financial Statements; Collateral Reports.
(i) Within 10 business days after the close of each
calendar month, furnish Cybear with unaudited monthly and year-to-date financial
statements of Mediconsult, consisting of consolidated balance sheets and
operating statements and a listing of all contingent liabilities of Mediconsult
for the periods involved and such other statements as Cybear may request,
prepared in accordance with GAAP applied on a basis consistent with the
Mediconsult Financial Statements, taken from the books and records of
Mediconsult, and certified as correct by the Chief Financial Officer of
Mediconsult.
(ii) Within 20 business days after the close of each
calendar month, furnish Cybear with such financial reports as of the middle of
the current month that are mutually and reasonably acceptable in form to both
Mediconsult and Cybear, taken from the books and records of Mediconsult and
certified as correct by the Chief Financial Officer of Mediconsult.
(iii) At the time of furnishing each of such financial
statements or reports, Mediconsult shall furnish Cybear with a certificate from
the President or Chief Financial Officer of Mediconsult stating that he has
reviewed this Credit Agreement and the affairs of Mediconsult and that to the
best of his knowledge and belief he is unaware of the occurrence of an event
which constitutes an Event of Default hereunder or which would constitute such
an Event of Default with the giving of notice or the lapse of time or both, and
if so, stating the facts with respect thereto.
(g) Compliance with Laws. Comply in all respects with all federal,
state, local, self-regulatory and foreign laws, statutes, ordinances, rules and
regulations, except as would not have a Mediconsult Material Adverse Effect.
(h) Full Access. Mediconsult will (and will cause each of its
Subsidiaries to) permit representatives of Cybear to have reasonable full access
during normal business hours, upon reasonable notice, to all premises,
properties, personnel, books, records (including Tax records), contracts, and
documents of or pertaining to each of Mediconsult and its Subsidiaries during
the period prior to the Maturity Date; provided that Cybear and its
representatives will conduct any such review in a manner that does not interfere
with the normal business operations of Mediconsult. Cybear will (and will cause
each of its employees, agents or other representatives to) treat and hold as
such any Confidential Information it receives from any of Mediconsult and its
Subsidiaries in the course of the reviews contemplated by this Section 3(h),
will not use any of the Confidential Information except in connection with the
Merger Agreement or this Credit Agreement, and, if the Merger Agreement and this
Credit Agreement are terminated for any reason whatsoever, agrees to return to
Mediconsult all tangible embodiments (and all copies) thereof which are in its
possession. The provisions of this Section 3(h) relating to the Confidential
Information will survive any termination of this Credit Agreement.
(i) Maintenance of Properties. Keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and from time to
time make all needed and proper repairs, renewals, replacements, additions, and
improvements thereto and comply (other than as
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agreed between Mediconsult and its landlords) with the provisions of all leases
to which it is a party or under which it occupies property so as to prevent any
loss or forfeiture thereof or thereunder.
(j) Additional Documents. Join Cybear in executing any security
agreements, assignments, consents, financing statements or other instruments, in
form reasonably satisfactory to Cybear, as Cybear may from time to time request.
(k) Notice to Cybear. Within two business days after its occurrence,
notify Cybear (i) of any event causing a material loss or depreciation in value
of any collateral and the amount of such loss or depreciation, or (ii) of any
lawsuit involving Mediconsult.
(l) Use of Loan Proceeds. Except as contemplated by the Merger
Agreement, use the proceeds of the Loan only to fund the operating activities of
Mediconsult or Physicians' Online in the Ordinary Course of Business.
4. Negative Covenants. Mediconsult and Physicians'
Online covenant and agree with Cybear that, from the date hereof and so long as
this Credit Agreement remains in effect, or any obligations under the Loan or
the Note remain outstanding and unpaid, unless Andrx or Cybear shall otherwise
consent in writing, Mediconsult and Physicians' Online will not:
(a) Ordinary Course of Business. Except as contemplated by the Merger
Agreement, make any payments to (i) satisfy any closing conditions set forth in
Section 7 of the Merger Agreement, (ii) pay any severance obligations which are
not being paid as of the date hereof, or (iii) pay any extraordinary expenses
outside the Ordinary Course of Business.
(b) Indebtedness. Issue any note, bond, or other debt security or
create, incur, assume, or guarantee any indebtedness for borrowed money or
capitalized lease obligation outside the Ordinary Course of Business, except (i)
any loan arrangements between Mediconsult and Andrx or any of its Subsidiaries
or Affiliates, (ii) in connection with the financing of working capital in the
Ordinary Course of Business, (iii) the incurrence of long-term indebtedness in
connection with the refinancing of existing indebtedness either at its stated
maturity or at a lower cost of funds in the Ordinary Course of Business (iv) the
incurrence of short-term indebtedness in the Ordinary Course of Business, (v)
indebtedness incurred to finance activities permitted by Section 4(d)(iv) and
(d)(vi), or (vi) as otherwise permitted by the Merger Agreement.
(c) Security Interests. Create, incur, assume, or suffer to exist any
Security Interest, or charge of any kind (including charges on property
purchased under conditional sales or other title retention agreements) on any of
its property or assets, now owned or hereafter acquired, except for the
following (all of which are referred to herein as "Permitted Liens"):
(i) Security Interests for taxes, assessments, or similar
charges, incurred in the Ordinary Course of Business that are not yet due and
payable (excluding any Security Interests imposed pursuant to any of the
provisions of ERISA);
(ii) Other Security Interests incurred in the Ordinary
Course of Business and created by operation of law;
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(iii) Good faith pledges or deposits made in the Ordinary
Course of Business to secure performance of bids, tenders, contracts (other than
for the repayment of borrowed money), or leases (other than leases intended as
security for indebtedness), or to secure statutory obligations, or surety,
appeal, indemnity, performance or other similar bonds (not intended as security
for indebtedness for money borrowed) required in the Ordinary Course of
Business;
(iv) Purchase money Security Interests and encumbrances
created to secure the indebtedness permitted by Section 4(b) hereof; and
(v) Security Interests in favor of Cybear.
(d) Operation of Business. Except as permitted by the Merger Agreement,
engage in any practice, take any action, or enter into any transaction outside
the Ordinary Course of Business. Without limiting the generality of the
foregoing:
(i) none of Mediconsult and its Subsidiaries will
authorize or effect any change in its charter or bylaws;
(ii) except as set forth on Disclosure Schedule 6(d) of
the Merger Agreement, none of Mediconsult and its Subsidiaries will grant any
options, warrants, or other rights to purchase or obtain any of its capital
stock or issue, sell, or otherwise dispose of any of its capital stock (except
upon the conversion or exercise of options, warrants, and other rights currently
outstanding);
(iii) none of Mediconsult and its Subsidiaries will
declare, set aside, or pay any dividend or distribution with respect to the
Mediconsult Capital Stock (whether in cash or in kind), or split, combine,
reclassify, redeem, repurchase, or otherwise acquire, directly or indirectly,
Mediconsult Capital Stock;
(iv) none of Mediconsult and its Subsidiaries will make
any capital investment in, make any loan to, or acquire the securities or assets
of any other Person outside the Ordinary Course of Business;
(v) none of Mediconsult and its Subsidiaries will make
any capital expenditures outside the Ordinary Course of Business;
(vi) except as set forth on Disclosure Schedule 6(d) of
the Merger Agreement, none of Mediconsult and its Subsidiaries will make any
change in employment terms for any of its directors or executive officers, or
enter into any other arrangement or agreement with directors or executive
officers, and none of Mediconsult and its Subsidiaries will make any change in
employment terms for any of its employees outside the Ordinary Course of
Business;
(vii) except as set forth on Disclosure Schedule 6(d) of
the Merger Agreement, none of Mediconsult and its Subsidiaries will sell or
transfer to any Person any material rights to Mediconsult's Intellectual
Property, purchase any material right to Intellectual Property or enter into any
material license agreement with any Person with respect to Mediconsult's
Intellectual Property outside the Ordinary Course of Business; and
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(viii) none of Mediconsult and its Subsidiaries will commit
to any of the foregoing.
(e) Financing Statements. Except as set forth on Schedule 4(e) to this
Credit Agreement, permit any financing statement (except Cybear's financing
statements and those with respect to the Permitted Liens) to be on file with
respect to the collateral.
(f) Location of Collateral. Except as agreed by Mediconsult and Cybear,
change the locations at which the collateral is maintained; change the name,
identity, or corporate structure of Mediconsult; adopt or make use of any
fictitious or trade name not disclosed elsewhere in this Credit Agreement; or
change the location of its chief executive office.
(g) Destruction of Collateral. Waste or destroy the collateral or use
it in violation of any law, statute or ordinance.
(h) Agreements. Enter into any agreement involving (i) the payment by
Mediconsult to a third party of more than $10,000 or (ii) the receipt by
Mediconsult from a third party of more than $25,000.
(i) Adverse Transactions. Enter into any transaction, or permit any
Subsidiary to enter into any transaction, permit or agree to any extension,
compromise or settlement, or make any change or modification of any kind or
nature with respect to any account, including any of the terms relating thereto,
other than discounts and allowances in the Ordinary Course of Business, in any
such case which materially and adversely affects or would reasonably be expected
to materially and adversely affect the collateral or Mediconsult's ability to
repay the obligations.
5. Events of Default. If any one of the following "Events of Default"
shall occur:
(a) Mediconsult or Physicians' Online shall fail to pay, when due, any
principal of or interest on the Loan, or to pay when due (whether by
acceleration, maturity or otherwise) any other sum payable under this Credit
Agreement;
(b) Mediconsult shall fail to cure any of the following within ten
business days after written notice thereof from Cybear:
(i) Any representation or warranty made by Mediconsult
herein or in any certificate or report furnished by Mediconsult or Physicians'
Online hereunder shall prove to have been incorrect in any material respect;
(ii) Mediconsult or Physicians' Online shall breach any
agreement, covenant or obligation contained herein;
(iii) Mediconsult shall breach any provision of the Note,
the Pledge Agreement or the Merger Agreement;
(iv) Physicians' Online shall breach any provision of the
Note or Security Agreement;
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(c) The Merger Agreement is terminated pursuant to Section 8 thereof,
other than pursuant to Section 8(a)(ii)(B) or 8(a)(iii);
(d) Mediconsult or Physicians' Online shall: (i) voluntarily terminate
operations or apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of Mediconsult or
Physicians' Online or of all or a substantial part of the assets of Mediconsult
or Physicians' Online, (ii) admit in writing its inability, or be generally
unable, to pay its debts as the debts become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary
proceeding under the United States Bankruptcy Code (as now or hereafter in
effect), (v) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, (vi) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary
proceeding under the Bankruptcy Code, or (vii) take any corporate action for the
purpose of effecting any of the foregoing; or
(e) Without Mediconsult's or Physicians' Online's application, approval
or consent, a proceeding shall be commenced, in any court of competent
jurisdiction, seeking in respect of Mediconsult or Physicians' Online: the
liquidation, reorganization, dissolution, winding-up, or composition or
readjustment of debt, the appointment of a trustee, receiver, liquidator or the
like of Mediconsult or Physicians' Online, or of all or any substantial part of
the assets of Mediconsult or Physicians' Online, or other like relief in respect
of Mediconsult or Physicians' Online, under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
unless such proceeding is contested in good faith by Mediconsult or Physicians'
Online; and, if the proceeding is being contested in good faith by Mediconsult
or Physicians' Online, the same shall continue undismissed, or unstayed and in
effect, for any period of 60 consecutive calendar days, or an order for relief
against Mediconsult or Physicians' Online shall be entered in any involuntary
proceeding under the United States Bankruptcy Code.
THEREUPON, in the case of any such event other than an event described
in Section 5(d) or 5(e), Cybear may, by written notice to Mediconsult or
Physicians' Online: (i) immediately terminate the Loan hereunder, and/or (ii)
immediately declare the principal of, and interest accrued on, the Loan
forthwith due and payable, whereupon the same shall become immediately due and
payable; and, in the case of any event described in Section 5(d) or 5(e), the
Loan hereunder shall automatically terminate, without any action on the part of
Cybear, and the principal of, and accrued interest on, the Loan shall become
immediately due and payable, both as to principal and interest, without
presentment, demand, protest, or other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Note to the
contrary notwithstanding.
Upon the happening and continuance of any Event of Default specified in
this Credit Agreement, Cybear may proceed to protect and enforce its rights
under this Credit Agreement by such suits, actions or special proceedings in
equity or at law, either for specific performance of any covenant or agreement
contained herein or in aid of execution of any power herein or therein granted
or for the enforcement of any proper legal or equitable remedy, as Cybear shall
deem most effectual to protect and enforce such rights.
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In the enforcement of any remedy described above, Cybear shall be
entitled to sue for, enforce payment of and receive any and all amounts then or
during any Event of Default becoming or remaining due from Mediconsult and
Physicians' Online for principal, interest or otherwise under any of the
provisions of this Credit Agreement or the Note, together with interest on
overdue payments at a rate equal to 2% higher than the rate otherwise applicable
(the "Default Rate") and all costs and expenses of collection and of all
proceedings hereunder.
Any monies received by Cybear by exercise of its rights and remedies
provided for in this Section 5 or otherwise, shall be applied by Cybear as
follows: first, to the payment of the costs and expenses (including reasonable
attorneys' fees) incurred by Cybear in connection with the exercise of such
rights and remedies; second, any surplus to the pro rata payment of the
indebtedness of Mediconsult and Physicians' Online to Cybear in accordance with
the provisions of this Credit Agreement and in such order as to principal,
interest and other sums as Cybear may determine; and third, any surplus to
Mediconsult and Physicians' Online.
6. Miscellaneous.
(a) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Mediconsult or Physicians' Online:
----------------------------------------
Ian Sutcliffe
560 White Plains Road, 4th Floor
Tarrytown, New York 10591
Telephone: (914) 332-6100
Facsimile: (914) 332-6445
Copy to:
--------
E. Michael Ingram
560 White Plains Road, 4th floor
Tarrytown, New York 10591
Telephone: (914) 332-6100
Facsimile: (413) 826-4026
and
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Scott F. Smith, Esq.
Covington & Burlington
1330 Avenue of the Americas
New York, New York 10019
Telephone: (212) 841-1000
Facsimile: (212) 841-1010
If to Cybear:
-------------
Scott Lodin, Esq.
Andrx Corporation
4955 Orange Drive
Davie, FL 33314
Telephone: (954) 584-0300
Facsimile: (954) 792-1034
Copy to:
--------
Dale S. Bergman, Esq.
Broad and Cassel
Suite 3000
201 South Biscayne Blvd.
Miami, FL 33131
Telephone: (305) 373-9400
Facsimile: (305) 373-9493
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(b) 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 the Note is
outstanding and unpaid and the Loan shall have not been terminated in full.
(c) Governing Law. This Credit Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(d) Headings The section headings contained in this Credit Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Credit Agreement.
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(e) Amendments, Waivers and Remedies Cumulative. The Parties may
mutually amend any provision of this Credit Agreement at any time prior to the
Maturity Date. No amendment of any provision of this Credit Agreement shall be
valid unless the same shall be in writing and signed by all of the Parties. No
waiver by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence. The remedies herein provided and in the
Note are cumulative and are not exclusive of any remedies provided by law. To
the extent that there is any conflict between the provisions of this Credit
Agreement and the Note, the provisions of this Credit Agreement shall prevail.
(f) Severability Any term or provision of this Credit Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. The Parties further agree to replace
such invalid or unenforceable provision of this Credit Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable
provision.
(g) Expenses. Except as otherwise provided in this Credit Agreement,
all costs and expenses in connection with this Credit Agreement and the
transactions contemplated hereby (including, without limitation, the fees and
expenses of its advisors, brokers, finders, agents, accountants and legal
counsel) shall be paid by the Party incurring such expense. Mediconsult shall
pay any stamp and other taxes payable in connection with the execution and
delivery of this Credit Agreement and the Note.
(h) Construction. The Parties have participated jointly in the
negotiation and drafting of this Credit Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Credit Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship
of any of the provisions of this Credit Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context otherwise
requires. The word "including" shall mean including without limitation.
(i) Successors and Assigns. This Credit Agreement shall be binding upon
and shall inure to the benefit of the Parties, and their respective successors
and assigns; provided, however, that Mediconsult or Physicians' Online may not
assign any of its rights hereunder without the prior written consent of Cybear.
Cybear may, without the consent of Mediconsult or Physicians' Online, assign,
negotiate, hypothecate, or grant participations in this Credit Agreement or in
any of its rights under this Credit Agreement. Cybear shall promptly notify
Mediconsult of any such assignment, negotiation, hypothecation or participation.
Mediconsult and Physicians' Online shall accord full recognition to any such
assignment, and all rights and remedies of Cybear in connection with the
interest so assigned shall be as fully enforceable by such assignee as they were
by Cybear before such assignment.
(j) Limit on Interest. Anything herein or in the Note to the contrary
notwithstanding, the obligations of Mediconsult under this Credit Agreement and
the Note shall be subject to the
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limitation that payments of interest shall not be required to the extent that
receipt of any such payment by Cybear would be contrary to provisions of law
applicable to Cybear (if any) that limit the maximum rate of interest that may
be charged or collected by such Lender. In the event that Mediconsult makes any
payment of interest, fees or other charges, however denominated, pursuant to
this Credit Agreement or the Note, which payment results in the interest paid by
Mediconsult to Cybear to exceed the maximum rate of interest permitted by
applicable law, any excess over such maximum shall be applied in reduction of
the principal balance owed to Cybear as of the date of such payment, or if such
excess exceeds the amount of principal owed to Cybear as of the date of such
payment, the difference shall be returned to Mediconsult.
(k) Counterparts. This Credit Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(l) Integration. This Credit Agreement, together with the Note,
constitutes the complete and integrated agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, on the subject matter hereof.
(m) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS CREDIT
AGREEMENT OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
MEDICONSULT ENTERING INTO THIS CREDIT AGREEMENT AND CYBEAR MAKING ANY LOAN,
ADVANCE OR OTHER EXTENSION OF CREDIT TO MEDICONSULT
(n) Consent to Jurisdiction. Each of the Parties hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of Delaware and
the United States District Court for the State of Delaware, for the purpose of
any action or proceeding arising out of or relating to this Credit Agreement and
each of the Parties hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined exclusively in any Delaware
state or federal court. Each of the Parties agrees that a final judgment in any
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment in any other matter provided by law.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed as of the date first above written.
CYBEAR INC., a Delaware corporation
By: /s/ Timothy Nolan
-------------------------------------
Timothy Nolan, President and COO
MEDICONSULT.COM, a Delaware corporation
By: /s/ Ian D. Sutcliffe
-------------------------------------
Ian D. Sutcliffe, Chief Executive
Officer
PHYSICIANS' ONLINE, INC., a Delaware
corporation
By: /s/ E. Michael Ingram
-------------------------------------
Name: E. Michael Ingram
------------------------------------
Title: Secretary
-----------------------------------
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