EXHIBIT 10.44
THIRD AMENDED AND RESTATED TERM NOTE
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$10,000,000.00
PHOENIX, ARIZONA FEBRUARY 24, 1998
FOR VALUE RECEIVED, each of the undersigned, INFOCURE CORPORATION, a
Delaware corporation, PACE FINANCIAL CORPORATION, an Ohio corporation,
ORTHODONTIC PRACTICE MANAGEMENT SYSTEM, INC., a Georgia corporation, MD
ACQUISITION, INC., a Connecticut corporation, POLCI ACQUISITION, INC., a
Michigan corporation, ROVAK, INC., a Minnesota corporation, CCI ACQUISITION,
INC., a Florida corporation, KCOMP MANAGEMENT SYSTEMS, INC., a California
corporation, SOFTEASY SOFTWARE, INC., a Pennsylvania corporation, and HEALTH
CARE DIVISION, INC., XXXXXXX-XXXXX, INC., DR SOFTWARE, INC. and INTERNATIONAL
COMPUTER SOLUTIONS, INC., each a Georgia corporation (individually a "Maker" and
collectively the "Makers"), hereby jointly and severally promises to pay to the
order of FINOVA CAPITAL CORPORATION, a Delaware corporation ("FINOVA"), the
principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), or, if less,
the aggregate unpaid amount of the Term Loan made by FINOVA pursuant to and in
accordance with the applicable provisions of that certain Second Amended and
Restated Loan Agreement dated as of February 24, 1998 (as the same may be
amended, modified, supplemented or restated from time to time, the "Loan
Agreement") among Makers and FINOVA, at the office of FINOVA at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or at such other place as the holder
hereof may appoint, plus interest thereon as set forth below.
This Third Amended and Restated Term Note (this "Note") (i) is in partial
substitution of that certain Second Amended and Restated Term Note dated as of
February 6, 1998 (the "Term Note") made by Makers (other than MD Acquisition,
Inc.) payable to the order of FINOVA in the original principal amount of
$2,200,000, (ii) is in partial substitution of that certain Second Amended and
Restated Acquisition Loan Note dated as of February 6, 1998 (the "Acquisition
Note" and, together with the Term Note, the "Original Notes") made by Makers
(other than MD Acquisition, Inc.) payable to the order of FINOVA in the original
principal amount of $7,800,000 and (iii) shall not constitute a novation of the
Indebtedness for Borrowed Money evidenced by the Original Notes or any of
Borrowers' Obligations.
This is delivered by Makers to FINOVA pursuant to and in accordance with
the applicable provisions of the Loan Agreement. All capitalized terms used but
not elsewhere defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
The Principal Balance of this Note from time to time outstanding shall bear
interest at the per annum rate of interest set forth in subsection 2.3.1 of the
Loan Agreement.
Accrued and unpaid interest and the Principal Balance of this Note shall be
paid in the manner set forth in Section 2.3 and 2.4, respectively, of the Loan
Agreement.
Interest shall be: (i) computed on the basis of a year consisting of 360
days and (ii) charged for the actual number of days during the period for which
interest is being charged.
During a Default Rate Period, the Principal Balance of this Note shall bear
interest at the Default Rate, which interest at such Default Rate shall be paid
by Makers to FINOVA immediately upon demand. In addition, if a payment of
principal or interest to be made pursuant to this Note becomes past due for a
period in excess of five (5) days, Makers shall pay on demand to FINOVA a late
charge of 5.0% of the amount of such overdue payment.
Subject to the provisions of Section 8.2 of the Loan Agreement, at the
election of the holder hereof, upon the occurrence of any Event of Default,
without further notice or demand, the Principal Balance of this Note, and all
accrued and unpaid interest thereon, shall be and become immediately due and
payable in full. Failure to exercise this option by FINOVA shall not constitute
a waiver of the right to exercise the same in the event of any subsequent Event
of Default, and such failure shall not be deemed to establish a custom or course
of dealing or performance among Makers and FINOVA.
This Note shall or may be prepaid, in whole or in part, at the times and in
accordance with Section 2.6 of the Loan Agreement.
All funds received by FINOVA during the existence of an Event of Default
shall be applied in the manner set forth in Section 8.4 of the Loan Agreement.
All payments to be made by Makers pursuant to this Note shall be made in
accordance with the instructions therefor set forth in the Loan Agreement.
Payment shall not be deemed to have been received by FINOVA until FINOVA is in
receipt of Good Funds.
Notwithstanding any provision to the contrary contained herein or in any
other Loan Instrument, FINOVA shall not collect a rate of interest on any
obligation or liability due and owing by Makers to FINOVA in excess of the
maximum contract rate of interest permitted by applicable law ("Excess
Interest"). FINOVA and Makers agree that the interest laws of the State of
Arizona shall govern the relationship among them, but in the event of a final
adjudication to the contrary, Makers shall be obligated to pay, nunc pro tunc,
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to FINOVA only such interest as then shall be permitted by the laws of the state
found to govern the contract relationship among FINOVA and Makers. If any Excess
Interest is provided for or determined by a court of competent jurisdiction to
have been provided for in this Note, the Loan Agreement or any other Loan
Instrument, then in such event (i) no Maker shall be obligated to pay such
Excess Interest, (ii) any Excess Interest collected by FINOVA shall be, at
FINOVA's option, (A) applied to the Principal Balance or to accrued and unpaid
interest not in excess of the maximum rate permitted
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by applicable law (the "Maximum Rate") or (B) refunded to the payor thereof,
(iii) the interest rates provided for herein (the "Stated Rate") shall be
automatically reduced to the Maximum Rate and this Note, the Loan Agreement and
the other Loan Instruments, as applicable, shall be deemed to have been, and
shall be, modified to reflect such reduction, and (iv) no Maker shall have any
action against FINOVA for any damages arising out of the payment or collection
of such Excess Interest; provided, however, that if at any time thereafter the
Stated Rate is less than the Maximum Rate, Makers shall, to the extent permitted
by law, continue to pay interest at the Maximum Rate until such time as the
total interest received by FINOVA is equal to the total interest which FINOVA
would have received had the Stated Rate been (but for the operation of this
provision) the interest rate payable. Thereafter, the interest rate payable
shall be the Stated Rate unless and until the Stated Rate again exceeds the
Maximum Rate, in which event the provisions contained in this paragraph again
shall apply.
If any suit or action is instituted or attorneys are employed to collect
this Note or any part thereof, each Maker jointly and severally promises and
agrees to pay all costs of collection, including all court costs and reasonable
attorneys' fees.
Each Maker hereby waives presentment for payment, protest and demand and
notice of protest, demand, dishonor and nonpayment of this Note, and expressly
agrees that this Note, or any payment hereunder, may be extended from time to
time before, at or after maturity, without in any way affecting the liability of
Makers hereunder or any guarantor hereof.
EACH MAKER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY SUCH
MAKER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS NOTE OR ANY OR ALL OF THE
OTHER LOAN INSTRUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT OF ARIZONA,
MARICOPA COUNTY DIVISION, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF ARIZONA, OR, IF FINOVA INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING
COURTS, ANY COURT IN WHICH FINOVA SHALL INITIATE OR TO WHICH FINOVA SHALL REMOVE
SUCH ACTION, TO THE EXTENT SUCH COURT OTHERWISE HAS JURISDICTION. EACH MAKER
HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN OR REMOVED BY FINOVA TO ANY OF SUCH COURTS,
AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND
COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH MAKER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT
TO SECTION 11.1 OF THE LOAN AGREEMENT. EACH MAKER WAIVES ANY CLAIM THAT PHOENIX,
ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM
BASED ON LACK OF VENUE. SHOULD ANY MAKER, AFTER BEING SO SERVED, FAIL TO APPEAR
OR
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ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE PERIOD
OF TIME PRESCRIBED BY LAW AFTER THE MAILING THEREOF, SUCH MAKER SHALL BE DEEMED
IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY FINOVA AGAINST SUCH
MAKER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS.
THE EXCLUSIVE CHOICE OF FORUM FOR MAKERS SET FORTH IN THIS PARAGRAPH SHALL NOT
BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY FINOVA, OF ANY JUDGMENT OBTAINED IN
ANY OTHER FORUM OR THE TAKING, BY FINOVA, OF ANY ACTION TO ENFORCE THE SAME IN
ANY OTHER APPROPRIATE JURISDICTION, AND EACH MAKER HEREBY WAIVES THE RIGHT TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
AND DECISIONS OF THE STATE OF ARIZONA. ALL FUNDS DISBURSED TO OR FOR THE BENEFIT
OF MAKERS WILL BE DEEMED TO HAVE BEEN DISBURSED IN PHOENIX, ARIZONA.
EACH MAKER ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS NOTE WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE,
SUCH MAKER AGREES THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY
WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
This Note may not be changed or amended orally, but only by an instrument
in writing signed by the party against whom enforcement of the change or Loan
Agreement is sought.
This Note shall be binding upon each Maker and upon such Maker's successors
and assigns, and shall inure to the benefit of the successors and permitted
assigns of FINOVA.
In the event that any provision hereof shall be deemed to be invalid by
reason of the operation of any law, or by reason of the interpretation placed
thereon by any court or any Governmental Body, this Note shall be construed as
not containing such provision and the invalidity of such provision shall not
affect the validity of any other provisions hereof, and any and all other
provisions hereof which otherwise are lawful and valid shall remain in full
force and effect.
Time for the performance of Makers' obligations under this Note is of the
essence.
This Note is entitled to the benefit of certain collateral security, all as
more fully set forth in the Loan Agreement.
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IN WITNESS WHEREOF, this Note has been executed and delivered by each Maker
by such Maker's duly authorized officer on the date first set forth above.
INFOCURE CORPORATION, a Delaware corporation, PACE
FINANCIAL CORPORATION, an Ohio corporation, MD
ACQUISITION, INC., a Connecticut corporation,
ORTHODONTIC PRACTICE MANAGEMENT SYSTEM, INC., a Georgia
corporation, POLCI ACQUISITION, INC., a Michigan
corporation, ROVAK, INC. a Minnesota corporation, CCI
ACQUISITION, INC., a Florida corporation, KCOMP
MANAGEMENT SYSTEMS, INC., a California corporation,
SOFTEASY SOFTWARE, INC., a Pennsylvania corporation, and
HEALTH CARE DIVISION, INC., XXXXXXX-XXXXX, INC., DR
SOFTWARE, INC. and INTERNATIONAL COMPUTER SOLUTIONS,
INC., each a Georgia corporation
By: /s/ Xxxxx X. Xxxxx
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Secretary
A duly authorized officer of each Maker
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