Exhibit 10.45
VISTA INFORMATION SOLUTIONS, INC.
VISTA DMS, INC.
SECURED WORKING CAPITAL TERM NOTE
No. 1 December 17, 1999
$7,500,000 Chicago, Illinois
FOR VALUE RECEIVED, each of the undersigned, VISTA Information
Solutions, Inc., a Delaware corporation (the "Parent"), and VISTA DMS, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Parent (the
"Purchaser", and together with the Parent, collectively the "Makers" and
individually a "Maker"), hereby jointly and severally promises to pay to the
order of Xxxxx North America, Inc., a Delaware corporation (together with its
successors and assigns, the "Holder"), the principal sum of SEVEN MILLION FIVE
HUNDRED THOUSAND Dollars ($7,500,000), or if less the Aggregate Borrowing from
time to time outstanding hereunder, together with all other amounts due and
owing under paragraphs 2, 3.1, 3.3 or other provisions hereof to the Holder in
respect of this Secured Working Capital Term Note (as amended, modified or
supplemented from time to time, this "Working Capital Note") and to pay interest
(computed on the basis of actual days elapsed and a year of 360 days) on the
unpaid principal balance hereof outstanding from time to time at the rate per
annum equal to the Prime Rate plus one percent (1%) per annum (the "Regular
Rate"). Accrued and unpaid interest shall be payable monthly in arrears on the
first business day of each month commencing with the first business day of
February, 2000 and at the Maturity Date (hereinafter defined). The entire unpaid
principal amount outstanding hereunder, all accrued and unpaid interest thereon
and any other amounts payable to the Holder in respect of this Working Capital
Note not theretofore paid shall be paid on the earlier of (i) April 17, 2000
(the "Stated Maturity Date") and (ii) acceleration of the maturity of this
Working Capital Note following the occurrence of an Event of Default (defined
below) (the earlier of such dates, the "Maturity Date").
1. DEFINITIONS.
All capitalized terms used herein without definition shall have the
meanings set forth in the Purchase Agreement (hereinafter defined). In addition,
as used herein, the following terms have the meanings set forth below:
"Aggregate Borrowings" shall mean, at any time, the aggregate
principal amount of all borrowings made by the Makers which then remain
outstanding.
"Aggregate Collections" shall mean, at any time, the aggregate
amount of collections in respect of the Retained Receivables received
after the date hereof by the Holder, but in no event shall such amount
exceed $7,500,000.
"Available Amount" shall mean, at any time, the lesser of (i)
$7,500,000 and (ii) the Aggregate Collections at such time.
"Canadian Collateral Documents" means, collectively, a
guarantee and indemnity, a general security agreement, a hypothec on
the universality of movable property and a charge/mortgage of land over
the property situated at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx,
Xxxxxx, each granted by VISTAinfo Canada, Inc. in favor of Xxxxx
Corporation Limited and Xxxxx North America, Inc. as of even date
herewith, as amended, modified or supplemented from time to time.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "Controlling" and
"Controlled" (and the lower-case versions of the same) shall have
meanings correlative thereto.
"Default" shall mean any event or circumstance which, but for
the giving of notice or lapse of time or both, would constitute an
Event of Default.
"Indebtedness" means at any time for any person (a) all lease
liabilities of such person arising pursuant to leases which in
accordance with generally accepted accounting principal would be
capitalized on the balance sheet of such person, (b) all debt, secured
or unsecured, created, issued, incurred or assumed by such person for
money borrowed or for the deferred purchase price of any fixed or
capital asset, (c) debt secured by any mortgage, pledge, lien or
security interest existing on property owned by such person whether or
not the indebtedness secured thereby has been assumed, (d) all
obligations of such person with respect to letters of credit,
acceptances or similar instruments, and (e) liabilities (including
without limitation guaranties) of third parties similar in character to
those described in clauses (a) through (d) of this definition for which
such person is contingently liable (as determined in accordance with
generally accepted accounting principles).
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company,
partnership, other business entity or government, or any agency or
political subdivision thereof.
"Prime Rate" means the prime commercial lending rate from time
to time as published in The Wall Street Journal (United States
edition). Each change in any interest rate provided for herein based
upon the Prime Rate resulting from a change in the Prime Rate shall
take effect on the beginning of the day of such change in the Prime
Rate.
"Purchase Agreement" shall mean the Agreement for Purchase and
Sale of Assets, dated July 28, 1999, by and among the Makers and the
Holder, as amended, modified or supplemented from time to time.
"Retained Receivables" shall mean all lease and accounts
receivable from obligors located in the United States, retained by
Holder pursuant to the Purchase Agreement.
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"Security Documents" shall mean, collectively, (a) the
Security Agreement by and among the Parent, the Subsidiaries and the
Holder, (b) the Pledge Agreement by and between the Parent, certain
Subsidiaries and the Holder and (c) the Canadian Collateral Documents,
in each case dated the date hereof, and the other documents and
instruments to be executed by either Maker or any Subsidiary pursuant
to the foregoing.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association
or other business entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, owned,
Controlled or held, or (b) that is, at the time any determination is
made, otherwise Controlled by the Parent or one or more subsidiaries of
the Parent or by the Parent and one or more Subsidiaries.
"Subsidiary" shall mean any subsidiary of the Parent.
"Transaction Documents" shall mean, collectively, the Purchase
Agreement, the Registration Rights Agreement, this Working Capital
Note, the Convertible Note, the Security Documents and the other
documents and agreements to be executed by the Purchaser, the Parent or
any Subsidiary pursuant to or in connection with the Purchase
Agreement.
"wholly-owned subsidiary" of any person shall mean a
subsidiary of such person of which securities (except for directors'
qualifying shares) or other ownership interests representing 100% of
the equity or 100% of the ordinary voting power or 100% of the general
partnership interests are, at the time any determination is being made,
owned, Controlled or held by such person or one or more wholly-owned
subsidiaries of such person or by such person and one or more
wholly-owned subsidiaries of such person.
"Working Capital Notes" shall mean this Secured Working
Capital Term Note and any other Secured Working Capital Term Notes
issued pursuant to the terms and provisions hereof.
2. BORROWING MECHANICS; PREPAYMENTS; DEFAULT INTEREST.
(a) The Purchaser may borrow funds from the Holder in an aggregate
principal amount outstanding at any time not to exceed the Available Amount then
in effect. The Purchaser shall be deemed to have requested on each business day
borrowings from Holder in an amount equal to the amount of proceeds actually
received by Holder in immediately available funds on such business day from
Retained Receivables. The Holder shall make available to the Purchaser the
amount of such proceeds, PROVIDED that the Holder shall have no obligation to
fund borrowings hereunder if:
(i) after giving effect to such borrowing, the Aggregate
Borrowings then outstanding would be greater than the Available Amount
then in effect,
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(ii) any Default or Event of Default has occurred and is
continuing,
(iii) the representations contained in the Security Documents
shall fail to be true and correct in all material respects,
(iv) there shall have occurred, since September 30, 1999, any
event which has, or could reasonably be expected to have, a material
adverse effect on the business, financial condition, assets,
properties, operations or prospects of the Parent or the Purchaser,
either individually or taken as whole,
(v) this Working Capital Note shall have been paid in full
because of an optional prepayment,
(vi) the New Financing has occurred, or
(vii) the Convertible Note shall have been paid in full or
otherwise terminated or cancelled.
(b) This Working Capital Note may be prepaid at the option of Makers in
whole or in part at any time without penalty. Amounts which are optionally
prepaid cannot be reborrowed. The Makers shall make mandatory principal
prepayments (accompanied in each case by the accrued and unpaid interest on the
principal amount being repaid):
(i) on the last business day of each calendar month
(commencing with the last business day of January, 2000) to the extent
necessary so that after giving effect thereto the Aggregate Borrowings
then in effect shall not exceed the Available Amount at such date;
(ii) in connection with any working capital facility for the
Purchaser or the Parent (which shall in any event be in an amount
sufficient to pay in full all amounts then outstanding under this
Working Capital Note); and
(iii) in the event the Convertible Note shall be paid in full
or for any other reason shall be terminated or cancelled.
(c) Payments, including optional and mandatory prepayments, made
hereunder shall be applied first to the payment of amounts other than interest
and principal payable in respect of this Working Capital Note, then to the
payment of interest hereon and then to the payment of the principal hereof.
(d) Upon the occurrence and during the continuance of any Default or
Event of Default, the outstanding principal amount hereunder shall bear interest
at a per annum rate equal to the Regular Rate from time to time in effect plus
5% (the "Default Rate"), but in no event shall such Default Rate be lower than
the Regular Rate plus 5% as of the first date in the period commencing upon the
occurrence of such Default or Event of Default.
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(e) In the event that either the Regular Rate or the Default Rate, as
applied to unpaid amounts hereunder, shall exceed the highest rate then
permitted by applicable law to be charged as interest hereunder, the Regular
Rate or the Default Rate, as the case may be, shall reduced to a rate equal to
such highest rate.
2A. COVENANTS.
2A.1 WORKING CAPITAL UNDERTAKING. Parent shall use its best efforts to
promptly obtain working capital financing (the "New Financing") in order to
replace this Working Capital Note; PROVIDED that the outstanding principal
amount of all indebtedness under the New Financing shall in no event exceed
$10,000,000 and any proceeds of borrowings under the New Financing shall only be
used for working capital purposes after payment in full of all obligations under
this Working Capital Note. The New Financing may be secured by a Lien on all
inventory and accounts receivable of the Parent and the Subsidiaries in which
case the Secured Party shall subordinate its Lien on the inventory and accounts
receivable of the Parent and the Subsidiaries to the rights of the lender of the
New Financing on terms reasonably satisfactory to the Secured Party. Anything
herein to the contrary notwithstanding, all proceeds from the initial borrowing
to be made at the closing of the New Financing shall be in an amount sufficient,
and shall be used to repay all amounts outstanding under this Secured Working
Capital Note.
2A.2 LOCKBOXES. So long as this Working Capital Note shall remain
outstanding the U.S. Purchaser shall not instruct its account debtors to remit
their payments on Accounts to any address other than the lockboxes described on
SCHEDULE I to this Working Capital Note (collectively, the "Lockboxes").
Remittances which are sent directly to the U.S. Purchaser or otherwise received
by the U.S. Purchaser directly from an account debtor shall be forwarded to one
of the Lockboxes on the day received
3. EVENTS OF DEFAULT.
3.1 If any one or more of the following events (herein called
"Events of Default") shall have occurred:
(a) all or any part of the principal of, or interest on, this
Working Capital Note or the Convertible Note is not paid when and as
the same shall become due and payable, whether at the maturity thereof,
by acceleration, by notice of prepayment, or otherwise, or any other
amount payable hereunder and thereunder is not paid other than due to a
right of set-off properly asserted by the Parent under Section 12.3(k)
of the Purchase Agreement;
(b) default shall occur in the observance or performance in
any of the other covenants or agreements of either Maker or any of the
Subsidiaries contained herein or in the Convertible Note (including,
without limitation paragraph 2A.1 through 2A.5 thereof), in the
Security Documents or in the Registration Rights Agreement and shall
continue for three (3) business days after written notice thereof from
the Holder;
(c) a receiver, conservator, custodian, liquidator or trustee
of either Maker or any of the Subsidiaries or of all or any of the
assets of either Maker or any of the Subsidiaries
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is appointed by court order; or an order for relief is entered under
the federal bankruptcy laws with respect to either Maker or any of the
Subsidiaries; or any of the assets of either Maker or any of the
Subsidiaries is sequestered by court order; or a petition is filed
against either Maker or any of the Subsidiaries under the bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect;
(d) either Maker or any of the Subsidiaries files a petition
in voluntary bankruptcy or seeking relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction, whether now
or hereafter in effect, or consents to the filing of any petition
against it under any such law;
(e) either Maker or any of the Subsidiaries makes a general
assignment for the benefit of its creditors, or admits in writing its
inability to pay, or in fact does not pay, its debts generally as they
become due, or consents to the appointment of a receiver, conservator,
custodian, liquidator or trustee of either Maker or any of the
Subsidiaries, or of all or any part of the assets of either Maker or
any of the Subsidiaries;
(f) final judgment for the payment of money in excess of
$100,000 shall be rendered by a court of record against either Maker or
any of the Subsidiaries, and the Maker or any of the Subsidiaries do
not (i) discharge the same or provide for its discharge in accordance
with its terms or (ii) procure a stay of execution thereof, within
twenty-five (25) days from the date of entry thereof and within said
period of twenty-five (25) days, or such longer period during which
execution of such judgment shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal including,
but not limited to, by providing adequate bond for such judgment;
(g) any representation, warranty or certification made by
either Maker or any of the Subsidiaries or any of either Maker's or a
Subsidiary's respective officers herein or made by either Maker or any
of the Subsidiaries in this Working Capital Note, the Convertible Note,
any Security Document or any certificate, report or other instrument or
agreement delivered under or pursuant to any provision hereof or
thereof shall prove to have been false or incorrect in any material
respect on the date or dates as of which made and shall remain false or
incorrect in any material respect for 3 days following notice thereof
by the Holder;
(h) either Maker or any of the Subsidiaries shall assert that
any of the Transaction Documents is invalid or unenforceable, in whole
or in part or, except as otherwise provided in paragraph 2A.2, the
Holder shall cease to have (i) a perfected first priority security
interest in any of the collateral owned of record or beneficially by
either Maker or any of the Subsidiaries or in the stock of the
Purchaser or any other Subsidiary pledged by the Parent or Purchaser
under the respective Security Documents;
(i) (A) the Parent shall cease to own 100% of the issued and
outstanding capital stock of the Purchaser or the Purchaser shall cease
to own 100% of the issued and outstanding capital stock of VISTA
Canada, (B) any person or group of persons acting in
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concert (other than the Holder and its affiliates) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 20% or more of the outstanding shares of the voting stock of
the Parent; or (C) the Parent shall be a party to a merger or
consolidation, except a merger or consolidation where the stockholders
of the Parent prior to such event control a majority of the voting
stock of the surviving entity after such event, or (D) as of any date a
majority of the Board of Directors of the Parent consists of
individuals who were not any one of the following (1) directors of the
Parent as of the corresponding date of the previous year, (2) selected
or nominated to become directors by the Board of Directors of the
Parent of which a majority consisted of individuals described in clause
(1), or (3) selected or nominated to become directors by the Board of
Directors of the Parent of which a majority consisted of individuals
described in clause (1) and individuals described in clause (2); or
(j) any default shall occur in any payment of principal or
interest for any other Indebtedness of the Borrower or any of its
Subsidiaries having an aggregate principal amount in excess of $250,000
(whether or not the amount in default is in excess of $250,000) beyond
any grace period provided with respect thereto or in the performance of
any other term, condition or covenant contained in any agreement under
which any such Indebtedness is created, the effect of which default is
to cause or permit the holder of such Indebtedness to cause such
Indebtedness to become due prior to its stated maturity.
then, when any Event of Default described in clause (a), (b), (f), (g),
(h), (i) or (j) above has occurred and shall be continuing, the principal of
this Working Capital Note and the interest accrued hereon will, upon written
notice from the Holder (provided no further notice shall be required for clauses
(b) and (g)), forthwith become and be due and payable, if not already due and
payable. When any Event of Default described in clause (c), (d) or (e) above has
occurred, then the principal of this Working Capital Note and the interest
accrued hereon will immediately become due and payable, upon the occurrence
thereof, without presentment, demand, or notice of any kind. If payment of this
Working Capital Note is accelerated, then the outstanding principal balance
thereof shall bear interest at the Default Rate from and after the Event of
Default. The Makers jointly and severally agree to pay to the Holder all
reasonable out-of-pocket costs and expenses incurred by the Holder in any effort
to collect this Working Capital Note, including the reasonable fees of the
Holder's attorneys for services rendered in connection therewith, and pay
interest at the Default Rate on such costs and expenses to the extent not paid
when demanded.
3.2 If any Event of Default specified in paragraph 3.1 above has
occurred and is continuing, the Holder may proceed to protect and enforce the
Holder's rights either by suit in equity or by action at law, or both, whether
for the specific performance of any covenant or agreement contained in this
Working Capital Note or the Security Documents, or in aid of the exercise of any
power granted in this Working Capital Note or the Security Documents, or to
enforce any other legal or equitable right or remedy of such holder.
3.3 Without limiting their obligations under the Security Documents,
the Maker agrees to indemnify, defend and hold the Holder, its officers,
directors, agents and affiliates (and
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their officers and directors) (each an "indemnified person") harmless from,
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "claims"), that such
indemnified person incurs or suffers, which arise, result from, or relate to any
breach of, or failure by either Maker or any of the Subsidiaries to perform any
of its representations, warranties, covenants or agreements in this Working
Capital Note or the Security Documents or in any schedule, certificate, exhibit
or other instrument furnished or to be furnished by either Maker or any of the
Subsidiaries hereunder or thereunder.
3.4 No failure to exercise or delay in the exercise of any right, power
or remedy accruing to the Holder, upon any breach or default of either Maker or
any of the Subsidiaries under this Working Capital Note, the Purchase Agreement
or the Transaction Documents will impair any such right, power or remedy of the
Holder nor will it be construed to be a waiver of (i) any such breach or
default, or an acquiescence therein, or (ii) any similar breach or default
thereafter occurring; nor will any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring.
3.5 All remedies under this Working Capital Note, the Purchase
Agreement or the other Transaction Documents, by law, at equity or otherwise
afforded to the Holder, will be cumulative and not alternative.
4. PARTIAL EXERCISE AND PARTIAL ASSIGNMENT. If this Working Capital
Note is partially assigned, this Working Capital Note shall be surrendered at
the principal office of the Parent, and thereupon a new Working Capital Note
shall be issued by the Maker to the Holder covering the principal amount not
assigned. The assignee of such partial assignment of this Working Capital Note
shall also be entitled to receive a new Working Capital Note covering the
principal and interest so assigned.
5. LOST, STOLEN, DESTROYED OR MUTILATED WORKING CAPITAL NOTES. In case
any Working Capital Note shall be mutilated, lost, stolen or destroyed, the
Maker shall issue a new Working Capital Note of like date, tenor and
denomination and deliver the same in exchange and substitution for and upon
surrender and cancellation of any mutilated Working Capital Note, or in lieu of
any Working Capital Note lost, stolen or destroyed, upon receipt of evidence
satisfactory to the Maker of the loss, theft or destruction of such Working
Capital Note, and upon receipt of indemnity reasonably satisfactory to the
Makers (PROVIDED that in the case of an institutional investor or bank lender,
its own agreement shall be deemed satisfactory to the Makers).
6. GENERAL.
(a) This Working Capital Note is one of the Working Capital Notes
referred to in the Purchase Agreement and is subject to all of the terms and
conditions expressly made applicable to it or to Loan Documents generally in the
Purchase Agreement which, among other things, contains waivers of certain rights
and indemnification obligations of the Makers in respect of this Working Capital
Note.
(b) All payments on account of principal, interest or other amounts
shall be made in such coin and currency of the United States of America as at
the time of payment is legal tender for
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the payment of public and private debts by check drawn on a United States
domiciled bank mailed and addressed to the Holder at the address shown in the
register maintained by the Maker for such purpose, or, at the option of the
Holder, in such manner and at such other place in the United States of America
as the Holder shall have designated to the Maker in writing.
(c) Each of the Makers hereby waives diligence, presentment, demand,
protest and notice of every kind whatsoever. The failure of the Holder to
exercise any of its rights hereunder in any particular instance shall not
constitute a waiver of the same or of any other right in that or any subsequent
instance.
(d) This Working Capital Note is secured by liens on the assets of the
Makers and the Subsidiaries pursuant to the Security Documents.
(e) The Makers shall not assign any of their respective rights or
obligations in respect of this Working Capital Note without the prior written
consent of the Holder. This Working Capital Note shall be the binding obligation
of each of the Makers and their respective successors and assigns.
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This Working Capital Note is a contract made under and governed by, and
shall be construed and enforced in accordance with, the laws of the State of
Illinois applicable to contracts made and to be performed in that state.
VISTA Information Solutions, Inc.
By:
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Its:
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VISTA DMS, Inc.
By:
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Its:
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SCHEDULE I
LOCKBOXES
As provided in Lockbox Servicing Agreement
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