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EXHIBIT 4.2
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CREDIT AGREEMENT
DATED AS OF JANUARY 14, 1998,
BY AND BETWEEN
MEDICAL MANAGER CORPORATION, A DELAWARE CORPORATION
AS BORROWER,
AND
XXXXXXX BANK, N.A., A NATIONAL BANKING ASSOCIATION,
AND ITS SUCCESSORS AND ASSIGNS
AS LENDER
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TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS 1
SECTION 1.1. Definitions....................................... 1
SECTION 1.2. General........................................... 11
SECTION 1.3. Other Definitions and Provisions.................. 11
ARTICLE II - CREDIT FACILITY......................................... 11
SECTION 2.1. Loans............................................. 11
SECTION 2.2. Procedure for Advances of Loans................... 11
SECTION 2.3. Repayment of Loan................................. 12
SECTION 2.4. Commercial Revolving Line of Credit Note.......... 13
SECTION 2.5. Optional Permanent Reduction of the Commitment.... 13
SECTION 2.6. Termination of Credit Facility.................... 13
SECTION 2.7. Use of Proceeds................................... 13
ARTICLE III - GENERAL LOAN PROVISIONS................................ 14
SECTION 3.1. Interest.......................................... 14
SECTION 3.2. Notice and Manner of Conversion or Continuation of
Loans............................................. 16
SECTION 3.3. Fees.............................................. 17
SECTION 3.4. Manner of Payment................................. 17
SECTION 3.5. Crediting of Payments and Proceeds................ 17
SECTION 3.6. Changed Circumstances............................. 18
SECTION 3.7. Indemnity......................................... 19
SECTION 3.8. Capital Requirements.............................. 20
SECTION 3.9. Taxes............................................. 20
ARTICLE IV - CLOSING; CONDITIONS OF CLOSING AND BORROWING............ 21
SECTION 4.1. Closing........................................... 21
SECTION 4.2. Conditions to Closing and Initial Loans........... 21
SECTION 4.3. Conditions to All Loans........................... 25
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF BORROWER............... 25
SECTION 5.1. Representations and Warranties.................... 26
SECTION 5.2. Survival of Representations and Warranties, etc. . 31
ARTICLE VI - FINANCIAL INFORMATION AND NOTICES....................... 31
SECTION 6.1. Financial Statements and Projections.............. 31
SECTION 6.2. Officer's Compliance Certificate.................. 32
SECTION 6.3. Notice of Litigation and Other Matters............ 32
ARTICLE VII - AFFIRMATIVE COVENANTS.................................. 33
SECTION 7.1. Preservation of Existence and Related Matters..... 33
SECTION 7.2. Maintenance of Property........................... 33
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SECTION 7.3. Insurance........................................ 33
SECTION 7.4. Accounting Methods and Financial Records......... 34
SECTION 7.5. Payment and Performance of Obligations........... 34
SECTION 7.6. Compliance With Laws and Approvals............... 34
SECTION 7.7. Environmental Management......................... 34
SECTION 7.8. Compliance with ERISA............................ 34
SECTION 7.9. Compliance with Agreements....................... 35
SECTION 7.10. Conduct of Business.............................. 35
SECTION 7.11. Visits and Inspections........................... 35
SECTION 7.12. New Subsidiaries................................. 35
SECTION 7.13. Dividends........................................ 35
SECTION 7.14. Banking Relationship............................. 35
SECTION 7.15. Chief Executive Officer.......................... 35
SECTION 7.16. Further Assurances............................... 35
ARTICLE VIII - FINANCIAL COVENANTS................................... 36
SECTION 8.1. Leverage Ratio................................... 36
SECTION 8.2. Minimum Tangible Net Worth....................... 36
SECTION 8.3. Capital Expenditures............................. 36
ARTICLE IX - NEGATIVE COVENANTS...................................... 36
SECTION 9.1. Limitations on Debt.............................. 36
SECTION 9.2. Limitations on Guarantees........................ 37
SECTION 9.3. Limitations on Liens............................. 37
SECTION 9.4. Limitations on Loans, Advances, Investments and
Acquisitions..................................... 38
SECTION 9.5. Limitations on Mergers and Liquidation........... 39
SECTION 9.6. Restrictions on Sale of Assets, etc.............. 39
SECTION 9.7. Limitations on Dividends and Distributions....... 40
SECTION 9.8. Limitations on Exchange and Issuance of Capital
Stock............................................ 40
SECTION 9.9. Transactions with Affiliates..................... 40
SECTION 9.10. Certain Accounting Changes....................... 40
SECTION 9.11. Restrictive Agreements........................... 40
ARTICLE X - DEFAULT AND REMEDIES..................................... 41
SECTION 10.1. Events of Default................................ 41
SECTION 10.2. Remedies......................................... 43
SECTION 10.3. Rights and Remedies Cumulative; Non-Waiver; etc.. 43
ARTICLE XI - MISCELLANEOUS........................................... 44
SECTION 11.1. Notices......................................... 44
SECTION 11.2. Expenses; Indemnity............................. 45
SECTION 11.3. Stamp and Other Taxes........................... 45
SECTION 11.4. Set-off......................................... 46
SECTION 11.5. Governing Law................................... 46
SECTION 11.6. Consent to Jurisdiction......................... 46
SECTION 11.7. Waiver of Jury Trial............................ 46
SECTION 11.8. Reversal of Payments............................ 46
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SECTION 11.9. Injunctive Relief; Consequential Damages........ 47
SECTION 11.10. Accounting Matters.............................. 47
SECTION 11.11. Successors and Assigns; Participations.......... 47
SECTION 11.12. Amendments, Waivers and Consents................ 48
SECTION 11.13. Performance of Duties........................... 49
SECTION 11.14. All Powers Coupled with Interest................ 49
SECTION 11.15. Survival of Indemnities......................... 49
SECTION 11.16. Titles and Captions............................. 49
SECTION 11.17. Severability of Provisions...................... 49
SECTION 11.18. Counterparts.................................... 49
SECTION 11.19. Term of Agreement; Independent Effect........... 49
EXHIBITS
Exhibit A - Form of Commercial Revolving Line of Credit Note
Exhibit B - Form of Notice of Conversion/Continuation
Exhibit C - Form of Officer's Compliance Certificate
Exhibit D - Form of Notice of Prospective Acquisitions
Exhibit E - Form of Subsidiary Guaranty Agreement
SCHEDULES
Schedule 5.1(a) - Jurisdictions of Organization and
Qualification
Schedule 5.1(b) - Subsidiaries and Capitalization
Schedule 5.1(c) - ERISA Plans
Schedule 5.1(d) - Labor and Collective Bargaining Agreements
Schedule 5.1(e) - Liens
Schedule 5.1(f) - Litigation
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, is made as of the 14th day of January, 1998, by
and between MEDICAL MANAGER CORPORATION, a corporation organized under the laws
of Delaware (the "Borrower"), and XXXXXXX BANK, N.A., a national banking
association and its successors and assigns (the "Lender").
STATEMENT OF PURPOSE
Borrower and Credit Parties have requested, and Lender has agreed, to
extend certain credit facilities to Borrower pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, Borrower
and Lender hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Affiliate" means, with respect to a Person, any other Person which
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term
"control" means (a) with respect to an Affiliate of Borrower or any Subsidiary
thereof, the power to vote ten percent (10%) or more of the securities or other
equity interests of Borrower or a Subsidiary, (b) with respect to an Affiliate
of Lender, the power to vote twenty percent (20%) or more of the securities or
other equity interests of Lender, or (c) with respect to any other Person, the
power, directly or indirectly, to direct the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, as amended or supplemented
from time to time.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
3.1(c).
"Xxxxxxx Bank" means Xxxxxxx Bank, N.A., a national banking
association, and its successors and assigns.
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"Borrower" means Medical Manager Corporation, a corporation organized
under the laws of Delaware.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which commercial banks in Jacksonville, Florida are closed for business, and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any day that is a
Business Day described in clause (a) and that is also a London Banking Day.
"Capital Assets" means, with respect to a Person and its subsidiaries,
any asset that would, in accordance with GAAP, be required to be classified or
accounted for as a capital asset on a Consolidated balance sheet of such
Person.
"Capital Expenditures" means, with respect to a Person and its
Subsidiaries for any period, the aggregate cost of replacement or acquisition
of all Capital Assets of such Person and its Subsidiaries during such period,
determined on a Consolidated basis in accordance with GAAP.
"Capital Lease" means any lease of any property by a Person or any
Subsidiary thereof at any time as lessee that would, in accordance with GAAP,
be required to be classified or accounted for as a capital lease on a
Consolidated balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital Lease,
the amount of the obligation of a Person or any of Subsidiary thereof that
would, in accordance with GAAP, appear on a Consolidated balance sheet of such
Person as a liability in respect of such Capital Lease.
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Article IV shall be satisfied or
waived in all respects in a manner acceptable to Lender.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Commitment" means the obligation of Lender to make the Loan to
Borrower hereunder in an aggregate principal or face amount at any time
outstanding not to exceed Ten Million and 00/100 Dollars ($10,000,000.00), as
the same may be reduced or modified at any time or from time to time pursuant
to the terms hereof.
"Consolidated" means, when used with reference to financial statements
or financial statement items of a Person and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
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"Credit Facility" means the credit facility established pursuant to
Article II hereof.
"Credit Parties" means Borrower and the Subsidiary Guarantors, now or
hereafter existing or acquired, jointly and severally.
"Debt" means, with respect to any Person, all liabilities, obligations
and indebtedness (including subordinated indebtedness) of such Person for
borrowed money, whether now or hereafter owing or arising and whether primary,
secondary, direct, contingent, fixed or otherwise and whether matured or
unmatured, including without limitation: (a) all notes payable and drafts
accepted representing extensions of credit and all obligations evidenced by
bonds, debentures, notes or other similar instruments; (b) all obligations,
contingent, short term, long term, or otherwise, relative to the face amount of
all notes, letters of credit, whether or not drawn, and banker's acceptances
issued for the account of such Person; (c) all Capital Lease obligations; (d)
all obligations to pay the deferred purchase price of property or services, and
all indebtedness secured by a Lien on property owned by such Person whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse; and (e) all net obligations under any Hedging Agreement.
"Default" means any of the events specified in Section 10.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Earnings Multiple" means, as of any date of determination, Pro Forma
EBITDA, excluding income from investments and deposits, times two (2.00).
"EBITDA" means, for any period, Net Income of Borrower and its
Subsidiaries for such period plus the sum of the following for such period to
the extent deducted in determining such Net Income: (a) Interest Expense, (b)
all federal, state, local and foreign income and gross receipt tax expense and
(c) depreciation, amortization and depletion expense; less Interest Income; in
each case determined on a consolidated book basis in accordance with GAAP.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of any
Credit Party or any ERISA Affiliate or (b) has at any time within the preceding
six years been maintained for the employees of any Credit Party or any current
or former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental
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Authorities, relating to the protection of the environment, including, but not
limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who is a member of a group which is
under common control with any Credit Party, who together with any Credit Party
is treated as a single employer within the meaning of Section 414(b) and (c) of
the Code.
"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 applicable to Lender.
"Event of Default" means any of the events specified in Section 10.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Fiscal Year" means the fiscal year of Borrower and its Subsidiaries
ending on December 31.
"Funded Debt" shall mean, at any date of determination thereof, the
aggregate amount of Debt (exclusive of interest) of Borrower and its
Subsidiaries which by its terms matures or is otherwise payable more than one
year from such date, including any rights of extension or renewal and current
maturities of any such Funded Debt.
"GAAP" means generally accepted accounting principles, as recognized
by the American Institute of certified Public Accountants and the Financial
Accounting Standards Board, applied and maintained on a consistent basis for
any applicable Person and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of such Person and its
Subsidiaries.
"Governmental Approvals" means all authorizations, consents,
approvals, permits, licenses and exemptions of, registrations and filings with,
and reports to, all Governmental Authorities.
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"Governmental Authority" means any nation, province, state or other
political subdivision thereof, and any government or any Person exercising
executive, legislative, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantee" means, with respect to a Person, without duplication, any
obligation, contingent or otherwise, of any such Person pursuant to which such
Person has directly or indirectly guaranteed any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such Person (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement condition or
otherwise) or (b) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, mutagenic or
otherwise hazardous and are or become regulated by any Governmental Authority,
(c) the presence of which require investigation or remediation under any
Environmental Law or common law, (d) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of Borrower under this Agreement, and
any confirming letter executed pursuant to such hedging agreement, all as
amended or modified.
"Interest Expense" means, for any period, total interest expense of
Borrower and its Subsidiaries (including without limitation, interest expense
attributable to Capital Leases) determined on a Consolidated basis in
accordance with GAAP.
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"Interest Income" means, for any period, total interest income of
Borrower and its Subsidiaries determined on a Consolidated basis in accordance
with GAAP.
"Interest Period" means each one (1), two (2), three (3)or six (6)
month period commencing on each Interest Rate Adjustment Date and ending on the
next Interest Rate Adjustment Date.
"Interest Rate Adjustment Date" shall mean the first day of February,
1998, and the first day of every applicable Interest Period of one (1), two
(2), three (3), or six (6) months thereafter.
"Lender" means Xxxxxxx Bank, N.A., a national banking association.
"Lender's Office" means Lender's office at 000 Xxxx Xxxxxxx Xxxx.,
Xxxxx, Xxxxxxx 00000.
"Leverage Ratio" means as of any fiscal quarter end of Borrower, the
ratio of (a) Consolidated Funded Debt as of such fiscal quarter end to (b) Pro
Forma EBITDA as of such fiscal quarter end.
"LIBOR" shall mean the offered rate for deposits in Dollars in the
London Interbank market for the applicable Interest Period which appears on the
LIBOR Rate Reference Page as of 11:00 A.M. (London time) on the day that is two
(2) London Banking Days preceding the first Business Day of the applicable
Interest Period. If at least two (2) such offered rates appear on the LIBOR
Rate Reference Page, the LIBOR Rate shall be the arithmetic mean of such
offered rates. Notwithstanding anything in this Agreement to the contrary,
Lender may, in Lender's sole and absolute discretion, use interest rate
quotations for daily or annual periods in lieu of quotations for substantially
equivalent monthly periods.
"LIBOR Rate" means a rate per annum (rounded upwards to the nearest
1/100 of 1%) determined by Lender pursuant to the following formula: (a) LIBOR
divided by (b) one (1) minus the Eurodollar Reserve Percentage (i.e., LIBOR )
(1 minus Eurodollar Reserve Percentage)).
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 3.1(a).
"LIBOR Rate Reference Page" means either (a) the Reuters Screen LIBO
Page, (b) the Dow Xxxxx Telerate Page 3750, or (c) such other nationally
recognized source, as either may from time to time be used by Lender in its
sole and absolute discretion as a reference in determining any applicable LIBOR
Rate.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in
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respect of such asset. For the purposes of this Agreement, Borrower or any
Subsidiary thereof shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Note, the
Subsidiary Guaranty Agreement, any Hedging Agreement and each other document,
instrument and agreement executed and delivered by any Credit Party in
connection with this Agreement, all as amended, modified or supplemented from
time to time.
"Loans" means any revolving loan made to Borrower pursuant to Section
2.1, all of which Loans shall be evidenced by the Note.
"London Banking Day" shall mean each day other than a Saturday, a
Sunday or any holiday on which commercial banks in London, England are closed
for business.
"Material Adverse Effect" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance, or other
properties of the Credit Parties taken as a whole or (b) the ability of any
Credit Party to perform its obligations under any Loan Document; as determined
by Lender in its sole discretion.
"Maturity Date" means May 31, 1999.
"Maximum Rate" shall have the meaning assigned thereto in Section
3.1(f).
"Medical Manager" means the software program with such name, including
any modifications or updates thereof, sold to physicians and related businesses
to assist in the administration and management of physician and medical
practices.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Credit Party or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions within the
preceding six (6) years.
"Net Income" means, for any period, the net income (or loss) of
Borrower and its Subsidiaries determined on a Consolidated basis for such
period in accordance with GAAP; provided, that there shall be excluded from
such net income (a) the net income of any Person not a Wholly-Owned Subsidiary
of Borrower, and the net income of any Person accounted for by the equity
method, except in each case to the extent received by Borrower or a
Wholly-Owned Subsidiary in a cash distribution and (b) any cash or non-cash
gain or loss of an extraordinary nature.
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"Note" means the Commercial Revolving Line of Credit Note made by
Borrower payable to the order of Lender, substantially in the form of EXHIBIT A
hereto, evidencing the Credit Facility, and any amendments and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals
or extension thereof, in whole or in part.
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 3.2.
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of the Loans, (b) the interest on
(including interest accruing after the filing of any bankruptcy or similar
petition) the Loans, (c) all other payments and other amounts due to Lender
under the Loan Documents including without limitation all amounts due by
Borrower to Lender under any Hedging Agreement, and (d) all other fees
(including reasonable attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by any Credit Party to a lender, of every kind, nature and description, direct
or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
and whether or not for the payment of money, in each case under or in respect
of this Agreement, the Note or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Other Taxes" shall have the meaning assigned thereto in Section
3.9(b).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of any of the
Credit Parties or any ERISA Affiliates or (b) has at any time within the
preceding six years been maintained for the employees of any of the Credit
Parties or any of their current or former ERISA Affiliates.
"Permitted Acquisition" means an acquisition permitted pursuant to
section 9.4(a).
"Person" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate,
sole proprietorship, unincorporated organization, Governmental Authority or any
other form of entity or group thereof.
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"Prime Rate" means, at any time, the rate of interest publicly
announced from time to time by Xxxxxxx Bank, N.A. or its successors or assigns
as its prime rate. Each change in the Prime Rate shall be effective as of the
opening of business on the day such change in the Prime Rate occurs. The
parties hereto acknowledge that the rate announced publicly by Xxxxxxx Bank,
N.A. or its successors or assigns as its Prime Rate is an index or base rate
and shall not necessarily be its lowest rate charged to its customers.
"Prime Rate Loan" means any Loan bearing interest based upon the Prime
Rate as provided in Section 3.1(a).
"Pro Forma EBITDA" means, as of any date of determination, EBITDA for
the period of four consecutive fiscal quarters ending on, or immediately prior
to, such date of determination, as set forth on the applicable Officer's
Compliance Certificate and financial statements attached thereto, including on
a pro forma basis EBITDA for such period attributable to any Permitted
Acquisition: provided that EBITDA attributable to any Permitted Acquisition (a)
for the calendar month during which such Permitted Acquisition is consummated
shall be included in Pro Forma EBITDA on an actual or pro forma basis as
determined in accordance with GAAP; and (b) for any calendar month following
such Permitted Acquisition which is part of the same fiscal quarter during
which such Permitted Acquisition is consummated shall be included in Pro Forma
EBITDA on an actual basis.
"Security Documents" means the reference to the Subsidiary Guaranty
Agreement and any other agreement or writing hereafter executed and delivered
to Lender pursuant to which any Credit Party pledges or grants a security
interest in the collateral of a Credit Party to secure the Obligations or such
Person guaranties the payment and/or performance of the Obligations.
"Solvent" means, as to any Person on a particular date, that such
Person (a) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and is able to pay
its debts as they mature, (b) does not reasonably believe that it will incur
debts or liabilities beyond its ability to pay such debts or liabilities as
they mature and (c) is not insolvent within the meaning of the federal
bankruptcy laws, Title 11, U.S.C. Section 101(32)
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which more than fifty percent (50%) of the
outstanding capital stock, partnership interest or other equity interests is at
the time, directly or indirectly, owned by such Person. Unless otherwise
specified, references herein to any Subsidiary shall mean a Subsidiary of
Borrower.
"Subsidiary Guarantors" means each Subsidiary of Borrower who executed
a Subsidiary Guaranty Agreement: (a) on the Closing Date, including, without
limitation, Medical Manager Research &
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Development, Inc., a Florida corporation, f/k/a Personalized Programming, Inc.
("MMR&D"), Medical Manager Sales & Marketing, Inc., a California corporation,
f/k/a Systems Plus, Inc., Medical Manager Southeast, Inc., a Florida
corporation, f/k/a National Medical Systems, Inc., Medical Manager Northeast,
Inc., a New York corporation, f/k/a RTI Business Systems, Inc., Medical Manager
Mid-West, Inc., an Indiana corporation f/k/a Systems Management, Inc., Medical
Manager Southwest, Inc., a Texas corporation, f/k/a Xxxxxxxx Xxxxxx, Inc.,
d/b/a Advanced Medical Management, Medical Manager West, Inc., a Delaware
corporation, f/k/a Specialized Systems, Inc., and Medical Manager Northwest,
Inc., a Washington corporation, f/k/a Adaptive Health Systems of Washington,
Inc.; or (b) after such date in accordance with Section 7.12.
"Subsidiary Guaranty Agreement" means the collective reference to each
unconditional guaranty agreement executed by the Subsidiary Guarantor party
thereto in favor of Lender, substantially in the form of EXHIBIT E hereto, as
amended, modified or supplemented from time to time.
"Tangible Net Worth" means the gross book value amount of all of the
assets of Borrower as disclosed on its financial statements less the following:
(i) intangible assets, such as (without limitation)
goodwill (whether representing the excess of cost
over book value of assets acquired or otherwise),
capitalized expenses, leasehold improvements,
patents, trademarks, trade names, copyrights,
franchises, licenses, and deferred charges (including
deferred initial costs), such as (without limitation)
unamortized costs and costs of research and
development;
(ii) treasury stock but only if such treasury stock is
presented as an asset;
(iii) all reserves, including without limitation, reserves
for depreciation, depletion, obsolescence,
amortization, deferred income taxes, insurance,
Inventory valuation and all other reserves or
appropriations of retained earnings not taken into
account in determining the depreciated book value of
Borrower's assets;
(iv) loans to officers and directors;
(v) operating lease fees; and
(vi) total liabilities, as determined in accordance with
GAAP less all nonrecourse Debt.
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"United States" means the United States of America.
"Wholly-Owned Subsidiary" means a Subsidiary all of the shares of the
capital stock or other ownership matters of which are, directly or indirectly,
owned or controlled by a Credit Party and/or one or more of its Wholly-Owned
Subsidiaries.
SECTION 1.2. General. Unless otherwise specified, a reference in
this Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either
the singular or plural shall include the singular and plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter. Any reference herein to "Tampa time" shall refer
to the applicable time of day in Tampa, Florida.
SECTION 1.3. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise
defined therein, all terms defined in this Agreement shall have the defined
meanings when used in the Note and the other Loan Documents or any certificate,
report or other document made or delivered pursuant to this Agreement.
(b) Miscellaneous. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Loans. Subject to the terms and conditions of this
Agreement, Lender agrees to make the Loan to Borrower from time to time from
the Closing Date through the Maturity Date as requested by Borrower in
accordance with the terms of Section 2.2; provided, that the aggregate
principal amount of all outstanding Loans (after giving effect to any amount
requested) shall not exceed the lesser of (i) the Commitment or (ii) the
Earnings Multiple. Subject to the terms and conditions hereof, Borrower may
borrow, repay and reborrow Loans hereunder until the Maturity Date.
SECTION 2.2. Procedure for Advances of Loans.
(a) Request for Borrowing - Prime Rate Loan. For
each Prime Rate Loan, Borrower shall give Lender prior written notice not later
than 2:00 p.m. (EST) on the requested borrowing date specifying (i) the date of
such borrowing, which shall be a Business Day, and (ii) the amount of such
borrowing.
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(b) Requests for Borrowing - LIBOR Rate Loan.
For each LIBOR Rate Loan, Borrower shall give Lender irrevocable prior written
notice not later than 11:00 a.m. (EST) at least two (2) Business Days before
each requested borrowing date specifying (i) the date of such borrowing, which
shall be a Business Day, (ii) the amount of such borrowing, which shall be an
aggregate principal amount of $500,000.00 or any integral multiple of
$100,000.00 in excess thereof and (iii) the requested duration of any Interest
Period applicable thereto. Notices received after 11:00 a.m. (EST) for a LIBOR
Rate Loan shall be deemed received on the next Business Day.
(c) Disbursement of Loans. Borrower hereby
irrevocably authorizes Lender to disburse the proceeds of each borrowing
requested pursuant to this Section 2.2 in immediately available funds by
crediting such proceeds to a deposit account of Borrower maintained with
Lender.
SECTION 2.3. Repayment of Loan.
(a) Repayment on Maturity Date. Borrower shall
repay the outstanding principal amount of the Loan in full, together with all
accrued but unpaid interest thereon and any other outstanding Obligations, on
the Maturity Date.
(b) Mandatory Repayment Loans. If at any time
the outstanding principal amount of the Loan exceeds the lesser of the
Commitment or the Earnings Multiple, Borrower shall repay immediately upon
notice from Lender, the Loan in an amount equal to such excess. Each such
repayment shall be accompanied by accrued interest on the amount repaid and any
amount required to be paid pursuant to Section 3.7.
(c) Optional Repayments. Borrower may at any
time and from time to time repay the Loans, in whole or in part, upon
irrevocable notice to Lender (which in the case of a LIBOR Rate Loan must be
received by Lender at least two (2) Business Days prior to the repayment date)
specifying the date and amount of repayment and whether the repayment is of
LIBOR Rate Loans, Prime Rate Loans, or a combination thereof, and, if of a
combination thereof, the amount allocable to each. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
set forth in such notice. Partial repayments of LIBOR Rate Loans shall be in
an aggregate amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each such repayment shall be accompanied by any amount required to be
paid pursuant to Section 3.7.
(d) Limitation on Repayment of LIBOR Rate Loans.
Notwithstanding the provisions of Section 2.3(c), Borrower may not repay any
LIBOR Rate Loan on any day other than on the last day of the Interest Period
applicable thereto unless such repayment is
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accompanied by any amount required to be paid pursuant to Section 3.7.
(e) Mandatory Interest Payments. On the first
day of each quarter of Borrower's Fiscal Year all accrued but unpaid interest
on the Prime Rate Loans shall be due and payable. All accrued but unpaid
interest on each LIBOR Loan shall be due and payable in full on the last day of
the LIBOR Rate Loan.
SECTION 2.4. Commercial Revolving Line of Credit Note. Each of
Lender's Loans and the Obligation of Borrower to repay such Loans shall be
evidenced by the Note executed by Borrower payable to the order of Lender
representing Borrower's Obligation to pay Lender's Commitment or, if less, the
aggregate unpaid principal amount of all Loans made and to be made by such
Lender to Borrower hereunder, plus interest and all other fees, charges and
other amounts due thereon. The Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 3.1.
SECTION 2.5. Optional Permanent Reduction of the Commitment.
Borrower shall have the right at any time and from time to time, upon at least
five (5) Business Days prior written notice to Lender, to permanently reduce,
in whole at any time or in part from time to time, without premium or penalty,
the Commitment in an aggregate principal amount not less than $1,000,000 or any
whole multiple of $500,000 in excess thereof; provided, that each such
permanent reduction shall be accompanied by a prepayment of principal
sufficient to reduce the aggregate outstanding Loans of Lender after such
reduction to the lesser of the Commitment as so reduced and the Earnings
Multiple, by accrued interest on the amount so paid and by any payment required
under Section 3.7 hereof. Any reduction of the Commitment to zero shall be
accompanied by payment of all outstanding Obligations and termination of the
Credit Facility. If the reduction of the Commitment requires the repayment of
any LIBOR Rate Loan, such reduction may be made only on the last day of the
then current Interest Period applicable thereto unless such repayment is
accompanied by any amount required to be paid pursuant to Section 3.7 hereof.
SECTION 2.6. Termination of Credit Facility. The Credit Facility
shall terminate and all outstanding Obligations shall be paid in full on the
earliest of (a) the Maturity Date, (b) the date of termination by Borrower
pursuant to Section 2.5, and (c) the date of termination by Lender pursuant to
Section 10.2(a).
SECTION 2.7. Use of Proceeds. Borrower shall use the proceeds of
the Loans for working capital and other general corporate purposes.
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ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1. Interest.
(a) Interest Rate Options. Subject to the
provisions of this Section 3.1, at the election of Borrower , the aggregate
principal balance of the Note or any portion thereof shall bear interest at the
Prime Rate or the LIBOR Rate plus, in each case, the Applicable Margin as set
forth below. Borrower shall select the rate of interest and Interest Period,
if any, applicable to any Loan at the time a Notice of Borrowing is given
pursuant to Section 2.2 or at the time a Notice of Conversion/ Continuation is
given pursuant to Section 3.2. Each Loan or portion thereof bearing interest
based on the Prime Rate shall be a "Prime Rate Loan", each Loan or portion
thereof bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan".
Any Loan or any portion thereof as to which Borrower has not duly specified an
interest rate as provided herein shall be deemed a Prime Rate Loan.
(b) Interest Periods. In connection with each
LIBOR Rate Loan, Borrower, by giving notice at the times described in Section
3.1(a), shall elect an Interest Period to be applicable to each LIBOR Rate
Loan; provided that:
(i) The LIBOR Rate shall be adjusted on
each Interest Rate Adjustment Date so that interest shall accrue on each LIBOR
Rate Loan at the LIBOR Rate for the applicable Interest Period commencing on
the Interest Rate Adjustment Date for such Interest Period;
(ii) 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 Rate 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;
(iii) any Interest Period with
respect to a LIBOR Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no 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;
(iv) no Interest Period shall be
selected as to extend beyond the Maturity Date; and
(v) there shall be no more than
eight (8) Interest Periods outstanding at any time.
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(c) Applicable Margin. The Applicable Margin
provided for in Section 3.1(a) with respect to the Loans (the "Applicable
Margin") shall: (i) on the Closing Date equal the percentages set forth in the
certificate delivered pursuant to Section 4.2(e)(ii); and (ii) for each fiscal
quarter thereafter be determined by reference to the Leverage Ratio as of the
end of the fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate as follows:
Leverage Ratio Applicable Margin Non-Usage Fee
Per Annum
LIBOR Rate +
-------------------------------------------------------------------------------
Less than or equal .75% .25%
to 1.0 to 1.0
Greater than 1.25% .375%
1.0 to 1.0 but less
than 2.0 to 1.0
Greater than or 1.75% .375%
equal to 2.0 to 1.0
Adjustments, if any, in the Applicable Margin shall be made by Lender on the
tenth (10th) Business Day after receipt by Lender of quarterly financial
statements for Borrower and its Subsidiaries and the accompanying Officer's
Compliance Certificate setting forth the Leverage Ratio of Borrower and its
Subsidiaries as of the most recent fiscal quarter end. Subject to Section
3.1(d), in the event Borrower fails to deliver such financial statements and
certificate within the time required by Section 6.2 hereof, the Applicable
Margin shall be the highest Applicable Margin set forth above until the
delivery of such financial statements and certificate.
(d) Default Rate. Upon the occurrence and during
the continuance of an Event of Default, (i) Borrower shall no longer have the
option to request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall
bear interest at a rate per annum five percent (5%) in excess of the rate then
applicable to LIBOR Rate Loans, as applicable, until the end of the applicable
Interest Period and thereafter at a rate equal to five percent (5%) in excess
of the rate then applicable to Prime Rate Loans, and (iii) all outstanding
Prime Rate Loans shall bear interest at a rate per annum equal to five percent
(5%) in excess of the rate then applicable to Prime Rate Loans. Interest shall
continue to accrue on the Note after the filing by or against Borrower of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
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(e) Interest Payments; Interest and Fee
Computation. Interest on each Prime Rate Loan shall be payable in arrears on
the last Business Day of each fiscal quarter commencing March 31, 1998, and
interest on each LIBOR Rate Loan shall be payable on the last day of each
Interest Period applicable thereto. All interest rates, fees and other
commissions provided hereunder shall be computed on the basis of a 360-day year
and assessed for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event
whatsoever shall the aggregate of all amounts deemed interest hereunder or
under the Note charged or collected pursuant to the terms of this Agreement or
pursuant to the Note exceed the highest rate permissible under any Applicable
Law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that such a court determines that Lender
has charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and Lender shall at Lender's option
promptly refund to Borrower any interest received by Lender in excess of the
maximum lawful rate or shall apply such excess to the principal balance of the
Obligations. It is the intent hereof that Borrower not pay or contract to pay,
and that neither Lender receive or contract to receive, directly or indirectly
in any manner whatsoever, interest in excess of that which may be paid by
Borrower under Applicable Law.
SECTION 3.2. Notice and Manner of Conversion or Continuation of
Loans. Provided that no Event of Default has occurred and is then continuing,
Borrower shall have the option to (a) convert at any time all or any portion of
its outstanding Prime Rate Loans in a principal amount equal to $500,000 or any
whole multiple of $100,000 in excess thereof into one or more LIBOR Rate Loans,
(b) upon the expiration of any Interest Period, convert all or any part of its
outstanding LIBOR Rate Loans in a principal amount equal to $500,000 or a whole
multiple of $100,000 in excess thereof into Prime Rate Loans or (c) continue
such LIBOR Rate Loans as LIBOR Rate Loans. Whenever Borrower desires to
convert or continue Loans as provided above, Borrower shall give Lender
irrevocable prior written notice in the form attached or to be attached as
EXHIBIT B (a "Notice of Conversion/Continuation") not later than 11:00 a.m.
(EST) two (2) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying: (A) the Loans to be
converted or continued, and, in the case of any LIBOR Rate Loan to be converted
or continued, the last day of the Interest Period therefor; (B) the effective
date of such conversion or continuation (which shall be a Business Day); (C)
the principal amount of such Loans to be converted or continued; and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate
Loan.
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SECTION 3.3. Fees.
(a) Non-Usage Fee. Commencing on the Closing
Date, a nonrefundable non-usage fee shall accrue at a rate per annum provided
in Section 3.1(c) depending on the applicable Leverage Ratio on the average
daily unused portion of the Commitment. Such non-usage fee shall be payable by
Borrower to Lender, for the account of Lender, in arrears on the last Business
Day of each fiscal quarter during the period from the date hereof through and
including the Maturity Date with the first such payment due on March 31, 1998.
(b) Initial Fee. Borrower shall have paid Lender
a non-refundable fee of $15,000.00 within ten (10) days of the completion of
Borrower's initial public common stock offering (the "Initial Fee"). The
Initial Fee shall be retained by Lender whether or not the Credit Facility is
utilized by Borrower.
(c) Line of Credit Fee. Upon the execution of
this Agreement, Borrower shall pay Lender a non-refundable fee in the amount of
$10,000.00 for establishing the Commitment, which fee shall be retained by
Lender whether or not the Commitment is utilized by Borrower.
SECTION 3.4. Manner of Payment. Each payment by Borrower on
account of the principal of or interest on the Loans or of any fee, commission
or other amounts payable to Lender under this Agreement or the Note shall be
made not later than 2:00 p.m. (EST) on the date specified for payment under
this Agreement to Lender at Lender's Office, in Dollars, in immediately
available funds and shall be made without any set-off, counterclaim or
deduction whatsoever. Any payment received after 2:00 p.m. (EST) shall be
deemed to have been made on the next succeeding Business Day for all purposes.
Subject to Section 3.1(b)(ii), if any payment under this Agreement or the Note
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension
of time shall in such case be included in computing any interest if payable
along with such payment.
SECTION 3.5. Crediting of Payments and Proceeds. In the event
that Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 10.2, all payments
received by Lender pursuant to the Note and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by Borrower hereunder, then to all indemnity
Obligations then due and payable by Borrower hereunder, then to all Lender's
fees then due and payable, then to all Commitment and other fees then due and
payable, then to accrued and unpaid interest on the Note and any termination
payments due in respect of a Hedging Agreement with Lender, then to the
principal amount of the Note, in that order.
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SECTION 3.6. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate
Availability. If with respect to any Interest Period Lender shall determine
that, by reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars, in the applicable amounts are not
being quoted via the LIBOR Rate Reference Page or offered to Lender for such
Interest Period, then Lender shall give notice thereof to Borrower.
Thereafter, until Lender notifies Borrower that such circumstances no longer
exist, the Obligation of Lender to make LIBOR Rate Loans and the right of
Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan shall
be suspended, and Borrower shall repay in full (or cause to be repaid in full)
the then outstanding principal amount of each such LIBOR Rate Loans together
with accrued interest thereon, on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan or convert the then outstanding
principal amount of each such LIBOR Rate Loan to a Prime Rate Loan as of the
last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If,
after the date hereof, the introduction of, or any change in, any Applicable
Law or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Lender with any
request or directive (whether or not having the force of law) of any such
Authority, central bank or comparable agency, shall make it unlawful or
impossible for Lender to honor its Obligations hereunder to make or maintain
any LIBOR Rate Loan, Lender shall promptly give notice thereof to Borrower.
Thereafter, until Lender notifies Borrower that such circumstances no longer
exist, (i) the Obligations of Lender to make LIBOR Rate Loans and the right of
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter Borrower may select only Prime Rate Loans hereunder,
and (ii) if Lender may not lawfully continue to maintain a LIBOR Rate Loan to
the end of the then current Interest Period applicable thereto as a LIBOR Rate
Loan, the applicable LIBOR Rate Loan shall immediately be converted to a Prime
Rate Loan for the remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof,
the introduction of, or any change in, any Applicable Law, or in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Lender with any request or directive (whether or not
having the force of law) of such Authority, central bank or comparable agency:
(i) shall subject Lender to any
tax, duty or other charge with respect to the Note or shall change the basis of
taxation of payments to Lender of the principal of or interest on the Note or
any other amounts due under this Agreement in respect thereof (except for
changes in the rate of tax on the overall net
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income of Lender imposed by the jurisdiction in which Lender is organized); or
(ii) shall impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, insurance or
capital or similar requirement against assets of, deposits with or for the
account of, or credit extended by Lender or shall impose on Lender or the
foreign exchange and interbank markets any other condition affecting any Note;
and the net result of any of the foregoing is to increase the costs to Lender
of maintaining any LIBOR Rate Loan or to reduce the yield or amount of any sum
received or receivable by Lender under this Agreement or under the Note in
respect of a LIBOR Rate Loan, then Lender shall promptly notify Borrower of
such fact and demand compensation therefor and, within five (5) days after such
notice by Lender, Borrower shall pay to Lender such additional amount or
amounts as will compensate Lender for such increased cost or reduction. Lender
will promptly notify Borrower of any event of which it has knowledge which will
entitle Lender to compensation pursuant to this Section 3.7(c); provided, that
Lender shall incur no liability whatsoever to Borrower in the event it fails to
do so. The amount of such compensation shall be determined, in Lender's sole
discretion, based upon the assumption that Lender funded its LIBOR Rate Loans
in the London interbank market and using any reasonable attribution or
averaging methods which Lender deems appropriate and practical. A certificate
of Lender setting forth the basis for determining such amount or amounts
necessary to compensate Lender shall be forwarded to Borrower and shall be
conclusively presumed to be correct save for manifest error.
SECTION 3.7. Indemnity. Borrower hereby indemnifies Lender
against any loss or expense which may arise or be attributable to Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any portion of the Loans (a) as a consequence of any failure
by Borrower to make any payment when due of any amount due hereunder in
connection with a LIBOR Rate Loan, (b) due to any failure of Borrower to borrow
on a date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in Lender's
sole discretion, based upon the assumption that Lender funded the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which Lender deems appropriate and practical. A certificate
of Lender setting forth the basis for determining such amount or amounts
necessary to compensate Lender (the "Expense Certificate") shall be forwarded
to Borrower through Lender and shall be conclusively deemed to be correct,
unless Borrower shall provide Lender with written notice of any objection to
the Expense Certificate within five (5) Business Days of its receipt of the
Expense Certificate describing its specific objections to the Expense
Certificate and Lender agrees
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with such objection, which agreement shall not be unreasonably withheld.
SECTION 3.8. 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 issued after the date hereof 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, Lender as a consequence of, or with
reference to the Commitment below the rate which Lender could have achieved but
for such introduction, change or compliance, then within five (5) Business Days
after written demand by Lender, Borrower shall pay to such Lender from time to
time as specified by Lender additional amounts sufficient to compensate Lender
for such reduction. A certificate as to such amounts submitted to Borrower by
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 3.9. Taxes.
(a) Payments Free and Clear. Any and all
payments by Borrower hereunder or under the Note shall be made free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of Lender, income and franchise taxes
imposed by the State of Florida or the State of Georgia or any political
subdivision thereof, and (ii) income and franchise taxes imposed by the United
States (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under the Note to Lender, then in that event the
following shall apply: (A) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.11) Lender receives
an amount equal to the amount such party would have received had no such
deductions been made; (B) Borrower shall make such deductions; (C) Borrower
shall pay the full amount deducted to the relevant taxing authority or other
authority in accordance with Applicable Law; and (D) Borrower shall deliver to
Lender evidence of such payment to the relevant taxing authority or other
authority in the manner provided in Section 3.9(d).
(b) Stamp and Other Taxes. In addition, Borrower
shall pay any present or future stamp, registration, recordation or documentary
taxes or any other similar fees or charges or excise or property taxes (other
than excise and property taxes to which Lender would have been subject in the
absence of this Agreement), levies of the United States or any state or
political subdivision thereof or
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any applicable foreign jurisdiction which arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the Loans, the other Loan Documents, or the perfection of
any rights or security interest in respect thereto (such taxes are hereinafter
referred to as "Other Taxes").
(c) Indemnity. Borrower shall indemnify Lender
for the full amount of Taxes and Other Taxes paid by Lender and any liability
(including, to the extent resulting from late payment by Borrower or any
Subsidiary thereof, penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date Lender makes written demand therefor. Notwithstanding the
foregoing, Lender agrees to notify Borrower at least five (5) days before
payment of any such Taxes or Other Taxes and further agrees to cooperate in
good faith with Borrower in any attempt by Borrower to seek any refund of Taxes
or Other Taxes paid by Lender.
(d) Evidence of Payment. Within thirty (30) days
after the date of any payment of Taxes or Other Taxes, Borrower shall furnish
to Lender, at its address referred to in Section 11.1, the original or a
certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to Lender.
(e) Survival. Without prejudice to the survival
of any other agreement of Borrower hereunder, the agreements and Obligations of
Borrower contained in this Section 3.11 shall survive the payment in full of
the Obligations and the termination of the Credit Facility.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1. Closing. The closing shall take place at a location
mutually agreed to by Borrower and Lender outside of the State of Florida on or
before January 15, 1998, or on such other date as the parties hereto shall
mutually agree.
SECTION 4.2. Conditions to Closing and Initial Loans. The
Obligation of Lender to close this Agreement and to make the initial Loan is
subject to the satisfaction of each of the following conditions:
(a) Securities Offering. Borrower shall have
consummated its initial public offering of common stock and have received
opening paid-in capital of no less than Twenty One Million Six Hundred Seventy
Six Thousand and 00/100 Dollars ($21,676,000.00) on or before the Closing Date.
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(b) Executed Loan Documents. The following Loan
Documents, in form and substance reasonably satisfactory to Lender:
(i) this Agreement;
(ii) the Note;
(iii) the Subsidiary Guaranty Agreement
executed by the Subsidiary
Guarantors; and
(iv) the Tax Indemnity Agreement executed
by the Subsidiary Guarantors;
shall have been duly authorized, executed and delivered by the applicable
Credit Parties, shall be in full force and effect and no Default or Event of
Default shall exist thereunder, and such Credit Parties shall have delivered
original counterparts thereof to Lender.
(c) Liens; Insurance.
(i) UCC-11 Searches. The Credit Parties
shall have delivered the results of UCC-11 searches of all filings made against
such Credit Parties under the Uniform Commercial Code as in effect in any state
in which any of their offices or assets are located, indicating among other
things that their assets are free and clear of any Lien, except for the Liens
permitted by Section 9.3.
(ii) Insurance. Lender shall have
received certificates of insurance and certified copies of insurance policies
in the form required under Section 7.3 and otherwise in form and substance
reasonably satisfactory to Lender.
(d) Closing Certificates and Opinions; etc.
(i) Certificate of Borrower. Lender shall
have received a certificate dated as of the Closing Date from the Credit
Parties, satisfactory to Lender, certifying that all representations and
warranties of the Credit Parties contained in this Agreement and the other Loan
Documents are true and correct in all material respects; that no Credit Party is
in violation of any of the covenants contained in this Agreement and the other
Loan Documents that apply to such Credit Party; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that the Credit Parties have satisfied each of
the closing conditions to be satisfied hereby which have not waived by Lender.
(ii) Certificate of Secretary of each
Credit Party. Lender shall have received a certificate of the secretary or
assistant secretary of each Credit Party certifying on behalf of such Credit
Party, as applicable, that attached thereto is a true
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and complete copy of the articles of incorporation of such Credit Party and all
amendments thereto; that attached thereto is a true and complete copy of the
bylaws of such Credit Party; that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors of such Credit Party,
authorizing, in the case of Borrower, the borrowings contemplated hereunder and,
in the case of each of the Credit Parties, the execution, delivery and
performance of this Agreement and the other Loan Documents; and as to the
incumbency and genuineness of the signature of each officer of such Credit Party
executing Loan Documents to which such Credit Party is a party.
(iii) Certificates of Good
Standing. Lender shall have received certificates of good standing from the
jurisdiction of incorporation of each Credit Party and, to the extent requested
by Lender, certificates of authority to do business from each jurisdiction
where any Credit Party is authorized to do business.
(iv) Opinions of Counsel. Lender
shall have received favorable opinions of counsel to the Credit Parties, dated
as of the Closing Date and addressed to Lender, in form and substance
satisfactory to Lender.
(e) Consents; Defaults.
(i) Governmental and Third Party
Approvals. All necessary approvals, authorizations and consents, if required,
of any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this Agreement
and the other Loan Documents shall have been obtained.
(ii) Permits and Licenses. All
permits and licenses, including permits and licenses required under Applicable
Laws, necessary to the conduct of business by the Credit Parties shall have
been obtained and remain in full force and effect.
(iii) No Injunction, Etc. No
action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any Governmental Authority to enjoin,
restrain, or prohibit, or to obtain substantial damages in respect of, or which
is related to or arises out of this Agreement or the other Loan Documents or
the consummation of the transactions contemplated hereby or thereby, or which,
in Lender's discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan Documents.
(iv) No Material Adverse Change.
There shall not have occurred any material change in the assets, business,
properties, business prospects, financial condition or results of operations of
the Credit Parties, or in any event, condition or state
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of facts that could reasonably be expected to have a Material Adverse Effect.
(v) No Event of Default. No
Default or Event of Default shall have occurred and be continuing.
(f) Financial Matters.
(i) Financial Statements.
Lender shall have received (A) audited Consolidated financial statements for
the Fiscal Year of Borrower ended December 31, 1996, (B) if available,
unaudited Consolidated financial statements of Borrower and its Subsidiaries
for the fiscal quarter period ending September 30, 1997, and (C) such other
financial information as may be reasonably requested by Lender.
(ii) Financial Condition
Certificate. Borrower shall have delivered to Lender a certificate on behalf of
itself and the Credit Parties, in form and substance satisfactory to Lender,
and certified as accurate in all material respects by the chief executive
officer or chief financial officer (or other officer acceptable to Lender) of
Borrower that: (A) each Subsidiary's payables are current and not past due more
than ninety (90) days (except for those being contested in good faith by a
Subsidiary) and each Credit Party is Solvent; (B) other than as may result from
any acquisitions consummated by a Credit Party between September 30, 1997 and
the date hereof (collectively, the "Intervening Acquisitions"), which
Intervening Acquisitions do not have a Material Adverse Effect upon Borrower's
liquidity position, Borrower's and each Subsidiary's liquidity position as of
the date of such certificate is not materially and adversely different from the
September 30, 1997 financial statements previously furnished to Lender; (C) the
financial projections previously delivered to Lender represent the good faith
opinion of Borrower and senior management thereof as to the projected results
contained therein; and (D) attached thereto is a calculation of the Applicable
Margin as of the Closing Date in accordance with Section 3.1(c).
(iii) Payment at Closing; Fee
Letters. There shall have been paid by the Credit Parties to Lender the fees
set forth or referenced in Section 3.3 and any other accrued and unpaid fees
due hereunder (including, without limitation, legal fees and expenses), and to
any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges
in connection with the execution, delivery, recording, filing or registration
of any of the Loan Documents.
(g) Miscellaneous.
(i) Notice of Borrowing;
Disbursement Instructions. Lender shall have received written instructions
from
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Borrower to Lender directing the payment of any proceeds of Loans made under
this Agreement that are to be paid on the Closing Date.
(ii) Proceedings and Documents.
All opinions, certificates and other instruments and all proceedings in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Lender. Lender shall have received
copies of all other instruments and other evidence as Lender may reasonably
request, in form and substance satisfactory to Lender, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.
(iii) Other Documents. The Credit
Parties shall have delivered to Lender such other documents, certificates and
opinions as Lender may reasonably request.
SECTION 4.3. Conditions to All Loans. The Obligations of Lender
to make any Loan is subject to the satisfaction of the following conditions
precedent on the relevant borrowing date:
(a) Continuation of Representations and
Warranties. The representations and warranties made by the Credit Parties
contained in Article V and in the other Loan Documents shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such borrowing date, taking into account any revised
Schedules forwarded by the Credit Parties to Lender after the Closing Date;
provided that (i) the Obligation to update Schedules shall be subject to
Section 6.3(f) and the representations and warranties relating to such
Schedules shall not be deemed to be inaccurate prior to updating such Schedules
pursuant to Section 6.3(f) and (ii) subsequent disclosures shall not constitute
a cure or waiver of any Default or Event of Default resulting from the matters
disclosed.
(b) No Existing Default. Borrower shall be in
compliance with Sections 2.1 and 2.3(b) and no other Default or Event of
Default shall have occurred and be continuing hereunder on the borrowing date
with respect to such Loan or after giving effect to the Loans to be made on
such borrowing date.
(c) Officer's Compliance Certificate; Additional
Documents. Lender shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by Lender.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 5.1. Representations and Warranties. To induce Lender to
enter into this Agreement and Lender to make the Loans, Borrower hereby
represents and warrants to Lender that:
(a) Existence; Power; Qualification. Each Credit
Party is a duly formed, validly existing corporation organized under the laws
of the state of its incorporation and is in good standing under the laws of
such state, has the corporate power and authority to own its properties and to
carry on its business as now being and hereafter proposed to be conducted and
is duly qualified (or otherwise licensed) and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization except where the failure
to so qualify could not have a Material Adverse Effect. The jurisdictions in
which the Credit Parties are organized and qualified to do business are
described on SCHEDULE 5.1(A).
(b) Ownership. Each Credit Party is listed on
SCHEDULE 5.1(B). All outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable. Borrower owns one hundred percent
(100%) of all classes of the outstanding capital stock of each Subsidiary
Guarantor. There are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature
whatsoever, which are convertible into, exchangeable for or otherwise provide
for or permit the issuance of capital stock of any of Credit Parties, except as
described on SCHEDULE 5.1(B).
(c) Authorization of Agreement, Loan Documents
and Borrowings. Each Credit Party has the corporate right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of each of the Loan Documents to which it
is a party in accordance with their respective terms. Each of the Loan
Documents has been duly executed and delivered by the duly authorized officers
of the Credit Parties party thereto, and constitutes the legal, valid and
binding Obligation of each such Credit Party enforceable in accordance with its
respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws, the enforcement
of creditors, rights in general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and
Borrowing with Laws, Etc. The execution, delivery and performance by each
Credit Party of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will
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not, by the passage of time, the giving of notice or otherwise, (i) require any
Governmental Approval not previously obtained or violate any Applicable Law
relating to the Credit Parties, (ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation, by-laws or any other
contract or agreement to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
or (iii) result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by such Person
other than Liens permitted pursuant to Section 9.3.
(e) Compliance with Law; Governmental Approvals.
Each Credit Party (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business (except where the failure to have any such
approval could not reasonably be expected to have a Material Adverse Effect),
each of which is in full force and effect, is final and not subject to review
on appeal and is not the subject of any pending or, to the best of its
knowledge, threatened attack by direct or collateral proceeding, and (ii) is in
compliance with each Governmental Approval applicable to it and in all material
respects with all other Applicable Laws relating to it or any of its respective
properties, except where the failure to so comply could not have a Material
Adverse Effect.
(f) Tax Returns and Payments. Each Credit Party
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable. No Governmental
Authority has asserted any Lien or other claim against any Credit Party with
respect to unpaid taxes which has not been discharged or resolved. The
charges, accruals and reserves on the books of each Credit Party in respect of
federal, state, local and other taxes for all fiscal years and portions thereof
since the formation of such Credit Party are in the judgment of such Credit
Party adequate, and the Credit Parties do not anticipate any additional taxes
or assessments for any of such years.
(g) Franchises, Intellectual Property and
Computer Equipment.
(i) Each Credit Party owns or
possesses rights to use all franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights, copyrights and
rights with respect to the foregoing which are required to conduct its business
as now and presently planned to be conducted without any conflict with the
rights of others. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
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rights, and the Credit Parties are not liable to any Person for infringement
under Applicable Law with respect to any such rights as a result of their
business operations.
(ii) Each Credit Party has such
title to and the right to use all computer software programs as are necessary
to permit the Credit Parties to conduct their operations as currently
conducted, without any known conflict with the rights of others or any known
use by others which conflicts with the rights of the Credit Parties.
(h) Environmental Matters. The Credit Parties
and their properties and operations are not in violation in any material
respect of any Environmental Law, or subject to any existing, pending or
threatened investigation, inquiry or proceeding by any Governmental Authority
or to any remedial Obligations under any Environmental Law; and all material
notices, permits, licenses or similar authorizations, if any, required to be
obtained or filed by the Credit Parties relating to Hazardous Materials,
including, without limitation, past or present treatment, storage, disposal or
release of any Hazardous Materials or solid waste by the Credit Parties into
the environment, have been obtained or applications for such permits and
licenses have been filed and the Credit Parties are in full compliance in all
material respects with the requirements of such permits, licenses or
authorizations.
(i) ERISA. Except as set forth on SCHEDULE
5.1(C), the Credit Parties and each ERISA Affiliate are in compliance in all
material respects with applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of the Code
has been determined by the Internal Revenue Service to be so qualified, and
each trust related to such plan has been determined to be exempt under Section
501(a) of the Code. No material liability has been incurred by any Credit
Party or any ERISA Affiliate which remains unsatisfied with respect to any
Employee Benefit Plan or any Multiemployer Plan.
(j) Margin Stock. None of the Credit Parties are
engaged principally or as one of their activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as
each such term is defined or used in Regulations G and U of the Board of
Governors of the Federal Reserve System). No part of the proceeds of any of the
Loans will be used for purchasing or carrying margin stock or for any purpose
which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors. If requested by Lender,
Borrower will
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furnish to Lender a statement or statements in conformity with the requirements
of said Regulation G, T, U or X to the foregoing effect.
(k) Government Regulation. No Credit Party is an
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined in the Investment Company Act of 1940, as amended)
and no Credit Party is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Public Utility Holding Company Act of 1935
or the Interstate Commerce Act, each as amended, or any other Applicable Law
which limits its ability to incur or consummate the transactions contemplated
hereby.
(l) Employee Relations. Each Credit Party has a
stable work force in place and is not, except as set forth on SCHEDULE 5.1(D),
party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees. The Credit Parties know of
no pending, threatened or contemplated strikes, work stoppage or other
collective labor disputes involving its employees.
(m) Financial Statements. The Consolidated
balance sheet of Borrower and its Subsidiaries as of September 30, 1997, and
the related statements of income and retained earnings and cash flows for the
periods then ended, copies of which have been furnished to Lender, when read
together with the other financial information pertaining to the Credit Parties
which has heretofore been furnished in writing to Lender, fairly present the
assets, liabilities and financial position of the Credit Parties as at such
dates, and the results of the operations and changes of financial position for
the periods then ended, except that such financial statements do not account
for the Intervening Acquisitions; provided, however, the Intervening
Acquisitions do not result in a violation of any of the financial covenants
herein contained, including without limitation, Article VIII. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved except as indicated in the notes thereto. The Credit Parties
have no material Debt, Obligation or other unusual forward or long-term
commitment which is not fairly reflected in the foregoing financial statements
or in the notes thereto (except for such items as are incurred in connection
with Permitted Acquisitions or as are incurred in the ordinary course of
business in each case after the date thereof), all as required by GAAP.
(n) No Material Adverse Change. There has been
no material adverse change in the properties, businesses, results of
operations, or financial or other condition of the Credit Parties taken as a
whole, including, but not limited to, any material adverse change resulting
from any fire, explosion, accident, drought, storm, hail, earthquake, embargo,
act of God, or of the public enemy or other casualty (whether or not covered by
insurance).
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(o) Solvency. As of the Closing Date and after
giving effect to each Loan made on the Closing Date, Borrower will be Solvent.
(p) Titles to Properties. Each Credit Party has
such title to the real property owned in fee or leased by it as is appropriate
to the conduct of its business, and valid and legal title to all of its
personal property and assets, including, but not limited to, those reflected on
the Consolidated balance sheets of Borrower and its Subsidiaries delivered
pursuant to Section 5.1(n), except those which have been disposed of by the
Credit Parties subsequent to such date which dispositions have been in the
ordinary course of business.
(q) Liens. Except as described on Schedule
5.1(e), none of the properties and assets owned by the Credit Parties is
subject to any Lien, except Liens permitted pursuant to Section 9.3. No
financing statement under the Uniform Commercial Code of any state which names
the Credit Parties as debtor and which has not been terminated, has been filed
in any state or other jurisdiction and none of the Credit Parties has signed
any such financing statement or any security agreement authorizing any secured
party thereunder to file any such financing statement, except to perfect those
Liens listed on Schedule 5.1(e), if any.
(r) Litigation. Except as set forth on SCHEDULE
5.1(F), there are no actions, suits or proceedings pending nor, to the
knowledge of any Credit Party, threatened against or in any other way relating
adversely to or affecting any Credit Party or any of their respective
properties in any court or before any arbitrator of any kind or before or by
any Governmental Authority which could reasonably be expected to be adversely
determined and have a Material Adverse Effect on Borrower. There are no
material outstanding or unpaid judgments against any Credit Parties.
(s) Absence of Defaults. (i) No event has
occurred or is continuing which constitutes a Default or an Event of Default
and (ii) no event has occurred and is continuing which constitutes, or which
with the passage of time or giving of notice or both would constitute, a
default or event of default by any Credit Party under any or judgment, decree
or order to which any Credit Party is a party or by which any Credit Party or
any of their respective properties may be bound or which would require any
Credit Party to make any payment thereunder prior to the scheduled maturity
date therefor, any of which events referred to in this clause (ii) could
reasonably be expected to have a Material Adverse Effect.
(t) Accuracy and Completeness of Information.
All written information, reports and other papers and data produced by or on
behalf of the Credit Parties and furnished to Lender were, at
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the time the same were so furnished, complete and correct in all respects to
the extent necessary to give the recipient a true and accurate knowledge of the
subject matter. No document furnished or written statement made to Lender or
Lender by the Credit Parties in connection with the negotiation, preparation or
execution of this Agreement or any of the Loan Documents contains or will
contain any untrue statement of a fact material to the creditworthiness of the
Credit Parties or omits or will omit to state a fact necessary in order to make
the statements contained therein not misleading. The Credit Parties are not
aware of any facts which it has not disclosed in writing to Lender which could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.2. Survival of Representations and Warranties, etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement or any borrowing
hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Credit Facility terminated, unless consent has been
obtained in the manner set forth in Section 11.12 hereof, Borrower will furnish
or cause to be furnished to Lender at Lender's Office set forth in Section 11.1
hereof or such other office as may be designated by Lender from time to time,
the following:
SECTION 6.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as
practicable but in no event later than fifty (50) days after the end of each
fiscal quarter, an unaudited Consolidated balance sheet of Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
statements of income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by Borrower in accordance with GAAP applied
on a basis consistent with that of the preceding period, and certified by the
chief financial officer of Borrower to present fairly in all material respects
the financial condition of Borrower and its Subsidiaries as of their respective
dates and the results of operations of Borrower and its Subsidiaries for the
respective
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periods then ended, subject to normal year-end adjustments. Borrower's
quarterly report submitted pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 prepared in accordance with Form 10-Q of the Securities
and Exchange Commission shall satisfy Borrower's obligations pursuant to this
Section 6.1(a) provided it is timely submitted to Lender as herein required.
(b) Annual Financial Statements. As soon as
practicable but in no event later than ninety-five (95) days after the end of
each Fiscal Year, an audited Consolidated balance sheet of Borrower and its
Subsidiaries as of the close of such Fiscal Year, together with audited
Consolidated statements of income, retained earnings and cash flows for the
Fiscal Year then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the preceding
Fiscal Year and prepared by an independent certified public accounting firm
acceptable to Lender in accordance with GAAP, applied on a basis consistent
with that of the preceding year and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by Borrower or with respect to accounting principles
followed by Borrower not in accordance with GAAP, together with accompanying
management letters received by Borrower. Borrower's annual report submitted
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 prepared
in accordance with Form 10-K of the Securities and Exchange Commission shall
satisfy its obligations of this Section 6.1(b) provided it is timely submitted
to Lender as herein required.
(c) Annual Projections. As soon as practicable
but in no event later than one hundred eight (180) days after the end of each
Fiscal Year, annual projections for Borrower and its Subsidiaries for the
following Fiscal Year indicating projected earnings and such other information
reasonably requested by Lender for such Fiscal Year.
(d) Other Financial Information. Such other
information regarding the operations, business affairs and financial condition
of the Credit Parties and any Subsidiary thereof as Lender may reasonably
request.
SECTION 6.2. Officer's Compliance Certificate. At each time
financial statements are delivered pursuant to Sections 6.1(a) or (b) and at
such other times as Lender shall reasonably request, a certificate of the chief
executive officer or chief financial officer (or other officer thereof
acceptable to Lender) of Borrower in the form of EXHIBIT C attached hereto (an
"Officers Compliance Certificate").
SECTION 6.3. Notice of Litigation and Other Matters. Prompt (but
in no event later than ten (10) Business Days after any Credit Party obtains
knowledge thereof) telephonic and written notice of:
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(a) the commencement of any significant
proceedings and investigations by or before any Governmental Authority and all
actions and proceedings in any court or before any arbitrator against or
involving any Credit Party or any of their properties, assets or businesses,
any of which could reasonably be expected to have a Material Adverse Effect;
(b) any labor controversy that has resulted in,
or threatens to result in, a strike or other work action against any Credit
Party which could reasonably be expected to have a Material Adverse Effect;
(c) any attachment, judgment, lien, levy or order
that may be assessed against or threatened against any Credit Party which could
reasonably be expected to have a Material Adverse Effect;
(d) any Default or Event of Default;
(e) any violation of ERISA or any liability
incurred under any Employee Benefit Plan or Multiemployer Plan which could
reasonably be expected to have a Material Adverse Effect;
(f) any event which makes any of the
representations set forth in Section 5.1 inaccurate in any material respect
(provided that all Schedules must be updated by the Credit Parties only at each
fiscal quarter end by forwarding any such updates to Lender with the applicable
officer's Compliance Certificate).
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Credit Facility terminated, unless consent has
been obtained in the manner provided for in Section 11.12, Borrower will, and
will cause each of its Subsidiaries to:
SECTION 7.1. Preservation of Existence and Related Matters.
Preserve and maintain its separate existence and all material rights,
franchises, licenses and privileges necessary to the conduct of its business;
and qualify and remain qualified and authorized to do business in each
jurisdiction in which the failure to so qualify could have a Material Adverse
Effect.
SECTION 7.2. Maintenance of Property. In addition to the
requirements of any of the Security Documents, protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition, other than ordinary wear and tear excepted all buildings, equipment
and other tangible real and personal property, and from time to time make or
cause to be made
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all renewals, replacements and additions to such property reasonably necessary
for the conduct of its business.
SECTION 7.3. Insurance. Maintain insurance with responsible
insurance companies against such risks and in such amounts as are customarily
maintained by similar businesses or as may be required by Applicable Law, and
on the Closing Date and from time to time thereafter deliver to Lender upon its
request (a) a detailed list of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates
of the expiration thereof and the properties and risks covered thereby, and (b)
a certified copy of the policies of insurance.
SECTION 7.4. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP consistently applied and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its properties.
SECTION 7.5. Payment and Performance of Obligations. Pay and
perform (a) all Obligations, (b) all taxes, assessments and other governmental
charges that may be levied or assessed upon it or its property (other than
those being contested in good faith by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP) and (c) all other
indebtedness, Obligations and liabilities in accordance with customary trade
practices the failure to make payment of which could reasonably be expected to
have a Material Adverse Effect.
SECTION 7.6. Compliance With Laws and Approvals. Observe and
remain in compliance in all material respects with all Applicable Laws and
maintain in full force and effect all Governmental Approvals, in each case
applicable or necessary to the conduct of its business including, without
limitation, all Environmental Laws and all Governmental Approvals required
thereunder.
SECTION 7.7. Environmental Management. In addition to and without
limiting the generality of Section 7.6, maintain its business premises (whether
leased or owned in fee) free of any Hazardous materials the removal of which is
required under Environmental Laws; and adopt and maintain prudent management,
disposal, clean-up and other practices as may be required by Environmental Laws
for all other Hazardous Materials located on its business premises.
SECTION 7.8. Compliance with ERISA. In addition to and without
limiting the generality of Section 7.6, make timely payment of contributions
required to meet the minimum funding standards set forth in ERISA with respect
to any Employee Benefit Plan; not take any action or fail to take action the
result of which could be a material liability to the PBGC or to a Multiemployer
Plan; not
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participate in any prohibited transaction that could result in any material
civil penalty under ERISA or material tax under the Code; furnish to Lender
upon Lender's request such information about any Employee Benefit Plan as may
be reasonably requested by Lender; and operate each Employee Benefit Plan in
such a manner that will not incur any material tax liability under Section
4980B of the Code or any material liability to any qualified beneficiary as
defined in Section 4980B of the Code.
SECTION 7.9. Compliance with Agreements. Comply with each
material term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business.
SECTION 7.10. Conduct of Business. Remain engaged primarily in the
business of (a) distribution, marketing and sales of Medical Manager and any
other business reasonably related thereto and (b) other lines of business
approved in connection with a Permitted Acquisition.
SECTION 7.11. Visits and Inspections. At Lender's sole cost and
expense, permit representatives of Lender, upon reasonable notice to Borrower,
from time to time during normal business hours, as often as may be reasonably
requested, to visit and inspect its properties; inspect, audit and make
extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business prospects.
SECTION 7.12. New Subsidiaries. Prior to such time as a Subsidiary
of Borrower owns assets in excess of $10,000 or conducts business or
consummates any Permitted Acquisition, cause to be executed and delivered to
Lender (i) a Subsidiary Guaranty Agreement substantially in the form of the
EXHIBIT E, executed by such new Subsidiary and (ii) corresponding closing
documents and legal opinions referred to in Section 4.2 with respect to such
new Subsidiary and such other documents reasonably requested by Lender
consistent with the terms of this Agreement, in order that such Subsidiary
shall become bound by all of the terms, covenants and agreements contained in
the Loan Documents.
SECTION 7.13. Dividends. To the extent necessary in order that
Borrower be able to make any payment required hereunder, cause its Subsidiaries
to pay dividends or make other cash distributions to Borrower.
SECTION 7.14. Banking Relationship. Maintain their bank accounts
with Lender other than such accounts that are necessary for the operation of
their business that are located outside of Florida.
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SECTION 7.15. Chief Executive Officer. Maintain Xxxxxxx X. Xxxxxx
as Borrower's chief executive officer until his death or disability.
SECTION 7.16. Further Assurances. Make, execute and deliver all
such additional and further acts, things, deeds and instruments as Lender may
reasonably require to document and consummate the transactions contemplated
hereby and to vest completely in and insure Lender its rights under this
Agreement, the Note and the other Loan Documents.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Credit Facility terminated, unless consent has
been obtained in the manner set forth in Section 11.12 hereof, Borrower and its
Subsidiaries on a Consolidated basis will not:
SECTION 8.1. Leverage Ratio. As of the end of any fiscal quarter
of Borrower during the term of the Credit Facility, permit the Leverage Ratio
to exceed 2.50 to 1.00.
SECTION 8.2. Minimum Tangible Net Worth. Borrower shall
demonstrate that it had a minimum Tangible Net Worth of Eight Million and
no/100ths Dollars ($8,000,000.00) as of December 31, 1997. In addition,
Borrower shall have a minimum Tangible Net Worth of Fourteen Million and
no/100ths Dollars ($14,000,000.00) as of December 31, 1998.
SECTION 8.3. Capital Expenditures. Make Capital Expenditures in
an aggregate amount in excess of Two Million and 00/100 Dollars ($2,000,000.00)
in any Fiscal Year.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Credit Facility terminated, unless consent has
been obtained in the manner set forth in Section 11.12 hereof, Borrower will
not and will not permit any of its Subsidiaries to:
SECTION 9.1. Limitations on Debt. Create, incur, assume or suffer
to exist any Debt, other than: (a) the Obligations; (b) letters of credit
issued by Lender (with respect to which Borrower is the account party) in
connection with Permitted Acquisitions or otherwise in the ordinary cause of
business of Borrower and its Subsidiaries, not to exceed an aggregate amount of
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$500,000.00 outstanding at any time; (c) Debt under any Hedging Agreement
reasonably acceptable to Lender; (d) Debt of Borrower incurred by reason of
merger or otherwise assumed in connection with any Permitted Acquisition in an
aggregate principal amount not to exceed Three Million Dollars ($3,000,000.00)
during the term of this Agreement, the terms and conditions of which (including
without limitation any collateral security therefor) shall be acceptable to
Lender and approved by Lender in writing and (e) those certain Notes payable to
Xxxxxxx X. Xxxxxx by MMR&D as described in Note 3 of Borrower's Form 10-Q for
the quarterly period ended June 30, 1997 with an approximate balance on the
date hereof of Six Hundred Ninety-Three Thousand and 00/100 Dollars
($693,000.00) which shall be satisfied in full by MMR&D on or before December
31, 1998; provided, that, none of the Debt permitted to be incurred by this
Section shall restrict, limit or otherwise encumber (by covenant or otherwise)
the ability of any Subsidiary of Borrower to make any payment to Borrower or
any of its Subsidiaries (in the form of dividends, intercompany advances or
otherwise) for the purposes of enabling Borrower to pay the Obligations.
SECTION 9.2. Limitations on Guarantees. Other than Guarantees
created by the Loan Documents, create, incur, assume or suffer to exist any
Guarantee.
SECTION 9.3. Limitations on Liens. Create, incur, assume or
suffer to exist any Lien on or with respect to any of its owned assets and
property, real or personal (including without limitation capital stock or other
ownership interests), whether now owned or hereafter acquired, except:
(a) 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 or as to which the
period of grace (not to exceed thirty (30) days), if any, related thereto has
not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(b) The claims of materialmen, mechanics,
carriers, warehousemen, processors or landlords for labor, materials, supplies
or rentals incurred in the ordinary course of business (i) which are not
overdue for a period of more than thirty (30) days or (ii) which are being
contested in good faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made
in the ordinary course of business in connection with, or to secure payment of,
Obligations under workers, compensation, unemployment insurance or similar
claims or to secure the performance of tenders, bids, contracts, statutory
Obligations and other similar Obligations;
(d) Liens constituting encumbrances in the nature
of zoning restrictions, easements, and rights or restrictions of
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record on the use of real property, which in the aggregate are not substantial
in amount and which do not, in any case, materially detract from the value of
such property or impair the use thereof in the ordinary conduct of business;
(e) Liens in favor of Lender, if any;
(f) Liens permitted in accordance with Section
9.1(d) existing on any property or asset prior to the acquisition thereof by
Borrower or any Subsidiary securing Debt permitted by such Section; provided
that (i) such Lien is not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any other property or assets
of Borrower or any Subsidiary; and
(g) extensions, renewals or replacements of any
Lien referred to in clauses (a) through (f) above provided that such extension,
renewal or replacement is limited to the property originally encumbered
thereby.
SECTION 9.4. Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, partnership or joint venture (including without
limitation the creation or capitalization of any Subsidiary) interests,
evidence of Debt or other Obligation or security, substantially all or a
material portion of the assets of any other Person or any other investment or
interest whatsoever in any other Person; or make or permit to exist any loans,
advances or extensions of credit to, or any accounts or notes receivable from,
or any investment in cash or by delivery of property in, any Person; or enter
into any commitment or option in respect of the foregoing, except:
(a) investments by Borrower in the form of
acquisitions of all or substantially all of the business or a line of business
of any other Person by the acquisition of all of the capital stock or other
equity ownership interests, or acquisition of the assets which are consummated
in accordance with the following requirements of this Section (a "Permitted
Acquisition"): (i) the acquired Person shall be engaged primarily, and
substantially all of the acquired assets shall be utilized, in the distribution
of Medical Manager, unless otherwise approved in writing by Lender; (ii) no
Default or Event of Default shall have occurred and be continuing or be created
by the relevant Permitted Acquisition as evidenced by a certificate of Borrower
delivered on the closing date thereof to Lender in form and substance
satisfactory to Lender demonstrating pro forma compliance, before and after the
Permitted Acquisition, with the financial covenants set forth in Article VIII
and the other terms of the Loan Documents; and (iii) Borrower must provide
Lender the information described on EXHIBIT D attached hereto regarding each
Permitted Acquisition in reasonable detail and the corresponding documentation
no later than (10) Business Days prior to the closing
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date thereof (to be followed by any changed pages to which the ten (10)
Business Day period shall not apply and fully executed copies promptly after
the creation thereof) and obtain Lender's approval that the acquisition meets
the requirements of clauses (i) and (ii) above, which approval shall not be
unreasonably withheld or delayed; provided, however, that clause (iii) of this
Section set forth above shall not be applied to any single Permitted
Acquisition, the aggregate cash or any other consideration for which is less
than Five Million Five Hundred Thousand and 00/100 Dollars ($5,500,000.00);
(b) investments in treasury bills, certificates
of deposits and bankers acceptances of banks with capital and surplus in excess
of $500,000,000, open market commercial paper maturing within ninety (90) days
and having the highest or second highest rating of either Xxxxx'x Investors
Service, Inc. or Standard & Poor's Ratings Group, a Division of XxXxxx-Xxxx
Corporation, (provided that the fair market value of any investment in such
commercial paper having the second highest rating of Xxxxx'x Investor Service
or of Standard & Poor's Ratings Group, a Division of XxXxxx-Xxxx Corporation
shall not exceed ten percent (10%) of the fair market value of all commercial
paper investments permitted by this paragraph (b), commercial paper and
governmental securities repurchase Obligations issued by banks with capital and
surplus in excess of $500,000,000 and money market mutual funds and accounts
containing solely the investments permitted under this clause (b);
(c) investments in Subsidiary Guarantors;
(d) trade accounts created in the ordinary
course of business;
(e) deposits for utilities under security
deposits, leases and similar prepaid expenses incurred in the ordinary course
of business;
(f) loans and advances to employees (i) in
connection with reasonable travel and business expenses in the ordinary course
of business in an aggregate amount not in excess of $200,000 outstanding at any
time or (ii) as permitted by Section 9.9; and
(g) other investments not to exceed $1,000,000 in
any year.
SECTION 9.5. Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself or suffer any liquidation or dissolution
except: (a) any Wholly-Owned Subsidiary of Borrower may merge into Borrower or
with any other Wholly-Owned Subsidiary thereof (provided that a Credit Party is
the surviving entity); and (b) any Wholly-owned Subsidiary may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in
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connection with an acquisition permitted by Section 9.4 (provided that a Credit
Party is the surviving entity).
SECTION 9.6. Restrictions on Sale of Assets, etc. Sell, lease,
transfer, assign, exchange or otherwise dispose of any of its assets
(including, without limitation, accounts receivable and any transaction the
primary purpose of which is to accomplish the sale-leaseback of any asset) or
liquidate, dissolve or enter into any transaction for the purpose of winding up
its business affairs other than: (a) the sale of assets in the ordinary course
of business of Borrower or applicable Subsidiary (including sales of assets in
connection with office consolidations consummated in the ordinary course of
business); (b) the sale of obsolete assets no longer used in the business of
Borrower or applicable Subsidiary; and (c) any conveyance in connection with a
merger permitted by Section 9.5.
SECTION 9.7. Limitations on Dividends and Distributions. Declare
or pay any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares
of its capital stock; or make any change in its capital structure that could
reasonably be expected to have a Material Adverse Effect; provided that any
Subsidiary of Borrower may pay cash dividends or make any other cash
distribution to Borrower.
SECTION 9.8. Limitations on Exchange and Issuance of Capital
Stock. Issue, sell or otherwise dispose of any class or series of capital
stock that, by its terms or by the terms of any security into which it is
convertible or exchangeable, is, or upon the happening of an event or passage
of time, would be: (a) convertible or exchangeable into Debt; or (b) required
to be redeemed or repurchased, including at the option of the holder, in whole
or in part, or has, or upon the happening of an event or passage of time would
have, a redemption or similar payment due.
SECTION 9.9. Transactions with Affiliates. Directly or
indirectly, (a) make any loan or advance to, or purchase, assume or guarantee
any note or other Obligation to or from, any of its officers, partners or other
Affiliates, or to or from any member of the immediate family of any of its
officers, partners or other Affiliates, or subcontract any operations to any of
its Affiliates, or (b) enter into, or be a party to, any transaction with any
of its Affiliates.
SECTION 9.10. Certain Accounting Changes. Change its Fiscal Year
end, or make any change in its accounting treatment and reporting practices for
the purposes of compliance with the Loan Documents, subject to the provisions
of Section 11.10.
SECTION 9.11. Restrictive Agreements. Enter into any agreement
which contains any covenants materially more restrictive than the
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provisions of Articles VII, VIII and IX hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties.
ARTICLE X
DEFAULT AND REMEDIES
SECTION 10.1. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans.
Borrower shall default in any payment of principal of, or interest on, any Loan
or the Note when and as due (whether at maturity, by reason of acceleration or
otherwise).
(b) Other Payment Default. Borrower shall
default in the payment when and as due of any other Obligation and such default
shall continue unremedied for five (5) Business Days after its receipt of
written notice thereof.
(c) Misrepresentation. Any representation or
warranty made or deemed to be made by any Credit Party under this Agreement,
any Loan Document or Security Document, or any amendment supplement or other
modification hereto or thereto, shall at any time prove to have been incorrect
or misleading in any material respect when made.
(d) Default in Performance of Certain Covenants.
Any Credit Party shall default in the performance or observance of any covenant
or agreement contained in Articles VIII or IX, as applicable, of this
Agreement.
(e) Default in Performance of Other Covenants and
Conditions. Any Credit Party shall default in the performance or observance of
any term, covenant, condition or agreement contained in this Agreement (other
than as specifically provided for otherwise in this Section 10.1) or any other
Loan Document and such default shall continue for a period of thirty (30) days
after written notice thereof has been given to Borrower by Lender.
(f) Debt Cross-Default. Any Credit Party shall
(i) default in the payment of any Debt (other than the Note) the aggregate
outstanding amount of which is in excess of $100,000 beyond the period of grace
(not to exceed 30 days), if any, provided in the instrument or agreement under
which such Debt was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any Debt (other than the Note)
the aggregate
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outstanding amount of which is in excess of $100,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Debt
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Debt to become due prior to its stated
maturity (any applicable grace period having expired).
(g) Change of Control. (i) Borrower shall cease
to own and control 100% of the issued and outstanding common stock of each
Subsidiary free and clear of any Liens or 100% of the voting power of
Subsidiary entitled to vote in the election of members of the board of
directors of Subsidiary or (ii) any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
shall obtain ownership or control in one or more series of transactions of more
than thirty percent (30%) of the voting power of Borrower entitled to vote in
the election of members of the board of directors of Borrower or more than such
percentage of the issued and outstanding common stock of Borrower.
(h) Voluntary Bankruptcy Proceeding. Any Credit
Party shall (i) commence a voluntary case under the federal bankruptcy laws (as
now or hereafter in effect); (ii) file a petition seeking to take advantage of
any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts; (iii)
consent to or fail to contest in a timely and appropriate manner any petition
filed against it in an involuntary case under such bankruptcy laws or other
laws; (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability to pay
its debts as they become due; (vi) make a general assignment for the benefit of
creditors; or (vii) take any corporate action for the purpose of authorizing
any of the foregoing.
(i) Involuntary Bankruptcy Proceeding. A case or
other proceeding shall be commenced against any Credit Party in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for any such Person or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall
continue undismissed or unstayed for a period of sixty (60) consecutive
calendar days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
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(j) Failure of Agreements. Any material
provision of this Agreement or of any other Loan Document shall for any reason
cease to be valid and binding on any Credit Party, or any Credit Party shall so
state in writing.
(k) Judgement or Attachment. Any final judgments
or orders for the payment of money which exceed Two Hundred Fifty Thousand and
no/100ths Dollars ($250,000.00) in an amount individually or in the aggregate
shall be entered against any Credit Party by any court or warrants or writs of
attachment or execution or similar processes shall be issued against any
property of the any Credit Party which exceeds Two Hundred Fifty Thousand and
no/100ths Dollars ($250,000.00) in value individually or in the aggregate and
such judgments, order, warrants or processes as applicable, shall continue
undischarged or unstayed for a period of forty-five (45) days.
SECTION 10.2. Remedies. Upon the occurrence of an Event of
Default, with the consent of Lender, Lender may, by notice to Borrower:
(a) Acceleration; Termination of Facilities.
Declare the principal of and interest on the Loans and the Note at the time
outstanding, and all other amounts owed to Lender and to Lender under this
Agreement or any of the other Loan Documents and all other Obligations, to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all
of which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit Facility
and any right of Borrower to request borrowings thereunder; provided, that upon
the occurrence of an Event of Default specified in Section 10.1(i) or (j), the
Credit Facility shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Rights of Collection. Exercise on behalf of
Lender all of its other rights and remedies under this Agreement, the other
Loan Documents and Applicable Law, in order to satisfy all of the Obligations.
SECTION 10.3. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of Lender set forth in this Agreement is
not intended to be exhaustive and the exercise by Lender of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of Lender in exercising any right, power or privilege shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude other or further exercise thereof or the exercise of
any other right, power
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or privilege or shall be construed to be a waiver of any Event of Default. No
course of dealing between Borrower, Lender or its respective agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a waiver of any
Event of Default.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices.
(a) Method of Communication. Except as otherwise
provided in this Agreement, all notices and communications hereunder shall be
in writing, or by telephone subsequently confirmed in writing. Any notice
shall be effective if delivered by hand delivery or sent via telecopy,
recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto: (i) on the
date of delivery if delivered by hand or sent by telecopy (which telecopy is
contemporaneously transmitted by another method of communication permitted by
this Section); (ii) on the next Business Day if sent by recognized overnight
courier service; and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to Lender as
understood by Lender will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party
shall be sent to it at the following addresses, or any other address as to
which all the other parties are notified in writing.
If to Borrower: Medical Manager Corporation
0000 Xxxxx Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxx
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
With a copy to: Xxxx Xxxx, Esquire
Medical Manager Research/Development
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
If to Lender: Xxxxxxx Bank, N.A.
000 X. Xxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
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Attention: Xxxxxxxx X. Xxxxx
Telephone No. 000-000-0000
Telecopy No. 000-000-0000
With a copy to: ANNIS, MITCHELL, XXXXXX,
XXXXXXX & XXXXX, P.A.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
(c) Lender's Office. Lender hereby designates
its office located at the address set forth above, or any subsequent office
which shall have been specified for such purpose by written notice to Borrower,
as Lender's Office referred to herein, to which payments due are to be made and
at which Loans will be disbursed.
SECTION 11.2. Expenses; Indemnity. Borrower will pay all
reasonable out-of-pocket expenses of Lender in connection with: (a) the
preparation, execution and delivery of this Agreement or any of the other Loan
Documents, and the administration, interpretation or amendment of any Loan
Document, including fees and disbursements of counsel for Lender, search fees,
recording fees, and taxes imposed in connection therewith and (b) upon the
occurrence and continuance of an Event of Default, consulting with one or more
Persons, including appraisers, accountants and attorneys, concerning or related
to the nature, scope or value of any right or remedy of Lender hereunder or
under any of the other Loan Documents or any factual matters in connection
therewith, which expenses shall include the reasonable fees and disbursements
of such Persons, and (c) prosecuting or defending any claim in any way arising
out of, related to, connected with, or enforcing any provision of, this
Agreement or any of the other Loan Documents, which expenses shall include the
fees and disbursements of counsel and of experts and other consultants retained
by Lender. Borrower shall defend, indemnify and hold harmless Lender, and its
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any losses, penalties, fines, liabilities,
settlements, damages, costs and expenses, suffered by any such Person in
connection with any claim, investigation, litigation or other proceeding
(whether or not Lender is a party thereto) and the prosecution and defense
thereof, arising out of or in any way connected with the Agreement, any of the
other Loan Documents or the Loans, including without limitation reasonable
attorney's and consultant's fees, except to the extent that any of the
foregoing directly result from the gross negligence or willful misconduct of
the party seeking indemnification therefor.
SECTION 11.3. Stamp and Other Taxes. Borrower will pay any and all
stamp, registration, recordation and similar taxes, fees or
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charges and shall indemnify Lender against any and all liabilities with respect
to or resulting from any delay in the payment or omission to pay any such
taxes, fees or charges which may be payable or determined to be payable in
connection with the execution, delivery, performance or enforcement of this
Agreement and any of the other Loan Documents or the perfection of any rights
thereunder.
SECTION 11.4. Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the
continuance thereof, Lender is hereby authorized by Borrower at any time or
from time to time, without prior notice to Borrower or to any other Person, any
such prior notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, time or demand,
including, but not limited to, indebtedness evidenced by certificates of
deposit), whether matured or unmatured and any other indebtedness at any time
held or owing by Lender to or for the credit or the account of Borrower against
and on account of the Obligations irrespective of whether or not (a) Lender
shall have made any demand under this Agreement or any of the other Loan
Documents or (b) Lender shall have declared any or all of the Obligations to be
due and payable as permitted by Section 10.2 and although such Obligations
shall be contingent or unmatured.
SECTION 11.5. Governing Law. This Agreement, the Note and the
other Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the State of
Florida, without reference to the conflicts or choice of law principles
thereof.
SECTION 11.6. Consent to Jurisdiction. Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located
in Hillsborough County, Florida, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Note and the
other Loan Documents, any rights or Obligations hereunder or thereunder, or the
performance of such rights and Obligations. Nothing in this Section 11.6 shall
affect the right of Lender to serve legal process in any other manner permitted
by Applicable Law or affect the right of Lender to bring any action or
proceeding against Borrower or its properties in the courts of any other
jurisdictions.
SECTION 11.7. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
LAW, LENDER AND BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTE OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
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SECTION 11.8. Reversal of Payments. To the extent Borrower makes a
payment or payments to Lender or Lender receives any payment or proceeds of any
collateral security for Borrower's benefit which payments or proceeds or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
Obligations or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment or proceeds had not been
received by Lender.
SECTION 11.9. Injunctive Relief; Consequential Damages.
(a) Borrower recognizes that, in the event
Borrower fails to perform, observe or discharge any of their respective
Obligations or liabilities under this Agreement, any remedy of law may prove to
be inadequate relief to Lender. Therefore, Borrower agrees that Lender, at
Lender's option, shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
(b) Lender and Borrower (on behalf of itself and
its Subsidiaries) hereby agree that no such Person shall have a remedy of
punitive or exemplary damages against any other party to a Loan Document and
each such Person hereby waives any right or claim to punitive or exemplary
damages that they may now have or may arise in the future in connection with
any Dispute, whether such Dispute is resolved through arbitration or
judicially.
SECTION 11.10. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by
Borrower or any Subsidiary thereof to determine whether it is in compliance
with any covenant contained herein, shall, except as otherwise expressly
contemplated hereby or unless there is an express written direction by Lender
to the contrary agreed to by Borrower, be performed in accordance with GAAP as
in effect on the Closing Date. In the event that changes in GAAP shall be
mandated by the Financial Accounting Standards Board, or any similar accounting
body of comparable standing, or shall be recommended by Borrower's Certified
public accountants, to the extent that such changes would modify such
accounting terms or the interpretation or computation thereof, such changes
shall be followed in defining such accounting terms only from and after the
date Borrower and Lender shall have amended this Agreement to the extent
necessary to reflect any such changes in the financial covenants and other
terms and conditions of this Agreement.
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SECTION 11.11. Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall
be binding upon and inure to the benefit of Borrower and Lender, all future
holders of the Note, and their respective successors and assigns, except that
Borrower shall not assign or transfer any of its rights or Obligations under
this Agreement without the prior written consent of Lender.
(b) Participations. Lender may sell
participations to one or more banks or other entities in all or a portion of
its rights and Obligations under this Agreement provided that:
(i) each such participation shall be in
an amount not less than $5,000,000 unless such participation is to an Affiliate
in which case no minimum amount shall be required;
(ii) Lender's Obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged;
(iii) Lender shall remain the holder of the
Note for all purposes of this Agreement;
(iv) Lender shall not permit such
participant the right to approve any waivers, amendments or other modifications
to this Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan, extend the term or increase the amount of the Commitment, reduce the
amount of any fees to which such participant is entitled, extend any scheduled
payment date for principal of any Loan or, except as expressly contemplated
hereby or thereby, release substantially all of any collateral securing the
Obligations; and
(v) any such disposition shall not, without
the consent of Borrower, require Borrower to file a registration statement with
the Securities and Exchange Commission to apply to qualify the Loans or the
Note under the blue sky law of any state.
(c) Disclosure of Information; Confidentiality.
Lender shall hold all non-public information with respect to Borrower obtained
pursuant to the Loan Documents in accordance with their customary procedures
for handling confidential information. Lender may, in connection with any
assignment, proposed assignment, participation or proposed participation
pursuant to this Section 11.11, disclose to the assignee, participant, proposed
assignee or proposed participant, any information relating to Borrower
furnished to Lender by or on behalf of Borrower; provided, that prior to any
such disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with Lender to preserve the
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confidentiality of any confidential information relating to Borrower received
from Lender.
(d) Certain Pledges or Assignments. Nothing
herein shall prohibit Lender from pledging or assigning any Note to any Federal
Reserve Bank in accordance with Applicable Law.
SECTION 11.12. Amendments, Waivers and Consents. Except as set
forth below, any term, covenant, agreement or condition of this Agreement or
any of the other Loan Documents may be amended or waived by Lender, and any
consent given by Lender, if, but only if, such amendment, waiver or consent is
in writing signed by Lender and Borrower.
SECTION 11.13. Performance of Duties. The Credit Parties'
Obligations under this Agreement and each of the Loan Documents shall be
performed by the Credit Parties at their sole cost and expense.
SECTION 11.14. All Powers Coupled with Interest. All powers of
attorney and other authorizations granted to Lender and any Persons designated
by Lender pursuant to any provisions of this Agreement or any of the other Loan
Documents shall be deemed coupled with an interest and shall be irrevocable so
long as any of the Obligations remain unpaid or unsatisfied or the Credit
Facility has not been terminated.
SECTION 11.15. Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which Lender is entitled
under the provisions of this Article XI and any other provision of this
Agreement and the Loan Documents shall continue in full force and effect and
shall protect Lender against events arising after such termination as well as
before.
SECTION 11.16. Titles and Captions. Titles and captions of
Articles, Sections and subsections in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement.
SECTION 11.17. Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 11.18. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
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SECTION 11.19. Term of Agreement; Independent Effect.
(a) This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and Obligations of the
parties hereto arising prior to such termination.
(b) The Credit Parties expressly acknowledge and
agree that each covenant contained in Articles VII, VIII and IX hereof shall be
given independent effect. Accordingly, no Credit Party shall engage in any
transaction or other act otherwise permitted under any covenant contained in
any such Article if, before or after giving effect thereto, such Credit Party
shall or would be in breach of any other covenant contained in any such
Article.
IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement to
be duly executed and delivered effective as of the day and year first above
written.
Witnesses: MEDICAL MANAGER CORPORATION,
a Delaware corporation
/s/ F. B. Karl By: /s/ Xxx X. Xxxxxxx
---------------------------------- ---------------------------------
Print Name: Xxxxxxxxx X. Xxxx, Xx. Xxx X. Xxxxxxx
Chief Financial Officer
/s/ Xxxxxxxx X. Xxxxx
----------------------------------
Print Name: Xxxxxxxx X. Xxxxx "BORROWER"
Witnesses: XXXXXXX BANK, N.A.,
a national banking association
/s/ F. B. Karl By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------- ---------------------------------
Print Name: Xxxxxxxxx X. Xxxx, Xx. Xxxxxxxx X. Xxxxx
Vice President
/s/ Xxxxxxxx X. Xxxxx "LENDER"
----------------------------------
Print Name: Xxxxxxxx X. Xxxxx
STATE OF GEORGIA
COUNTY OF XXXXXXX
The foregoing instrument was acknowledged before me this 14th day of
January, 1998, by Xxx X. Xxxxxxx, as Chief Executive Officer
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of Medical Manager Corporation, a Delaware corporation, on behalf of the
corporation. He is personally known to me or has produced a driver's license
as identification.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
NOTARY PUBLIC
Name: Xxxxxxxx X. Xxxxx
Serial #:____________________
My Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires September 2, 0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXX
The foregoing instrument was acknowledged before me this 14th day of
January, 1998, by Xxxxxxxx X. Xxxxx, as Vice President of Xxxxxxx Bank, N.A., a
national banking association. She is personally known to me or has produced a
driver's license as identification.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
NOTARY PUBLIC
Name: Xxxxxxxx X. Xxxxx
Serial #:____________________
My Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires September 2, 2001
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