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AMENDMENT NO.3
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DATED AS OF SEPTEMBER 16, 1999
TO
SECOND AMENDED AND RESTATED REVOLVING
LOAN AND SECURITY AGREEMENT
DATED AS OF NOVEMBER 21, 1997
AMONG
SPECIALTY CARE NETWORK, INC.
SCN OF PRINCETON, INC.
AND
BANK OF AMERICA, N.A.,
AMSOUTH BANK,
PARIBAS,
KEY CORPORATE CAPITAL, INC.
AND
BANK OF AMERICA, N.A., AS AGENT
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TABLE OF CONTENTS
1. Definitions 1
2. Amendments to Agreement 2
3. Representations and Warranties 4
3.1 Incorporation 4
3.2 Due Authorization, No Conflicts, Etc 5
3.3 Due Execution, Etc 5
4. Conditions Precedent 6
4.1 Conditions Precedent to Effectiveness of Amendment No.3 6
5. Effectiveness of Amendment No.3 8
6. Closing 8
7. Governing Law, Etc 8
8. Section Titles and Table of Contents 8
9. Arbitration 8
10. Counterparts 10
11. Agreement to Remain in Effect 10
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This Amendment No.3 to Second Amended and Restated Revolving Loan and
Security Agreement, made and entered into as of this 16th day of September,
1999, by and among Specialty Care Network, Inc. (the "Borrower"); the
Guarantors, jointly and severally; the various banks and lending institutions on
the signature pages attached hereto together with all assignees of such banks
and lending institutions (each a "Bank" and collectively the "Banks"); and Bank
of America, N.A., successor to NationsBank, N.A., successor to NationsBank of
Tennessee, N.A., as agent (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Banks, the Swingline Bank,
and the Agent entered into a certain Second Amended and Restated Revolving Loan
and Security Agreement dated as of November 21, 1997, as amended by Amendment
No.1 thereto dated March 30, 1998 and Amendment No.2 thereto dated April 1, 1998
(collectively the "Loan Agreement"); and
WHEREAS, the parties to the Loan Agreement desire to amend the existing
Loan Agreement to convert it from a revolving loan facility to a term loan
facility, to eliminate the Swingline Bank and Swingline Loan, to delete the
existing financial ratios, to add Healthcare Report Cards, Inc., as a Guarantor,
to pledge additional collateral, and to modify certain of the negative
covenants, all as hereinafter more specifically set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used in this Amendment No.3 which
are not otherwise defined herein shall have the respective meanings ascribed
thereto in the Agreement.
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2. AMENDMENTS TO AGREEMENT.
2.1 In the Exhibits to the Agreement, EXHIBIT A, being the "Form of
Notes", is hereby amended by replacing the Notes attached thereto with the
modified and renewed Term Loan Notes attached hereto as Replacement EXHIBIT A.
2.2 Section I of the Agreement, DEFINITIONS, is hereby amended by
deleting "NOTICE OF BORROWING", "NOTICE OF CONVERSION", "PERMITTED ACQUISITION",
"PERMITTED ACQUISITION INDEBTEDNESS", "PERMITTED ACQUISITION PRICE", "REVOLVING
LOANS", "SWINGLINE BANK", "SWINGLINE COMMITMENT", "SWINGLINE COMMITTED AMOUNT",
"SWINGLINE LOAN","SWINGLINE NOTE", and "UNUTILIZED LOAN COMMITMENT", and by
adding thereto the following new definitions as follows:
"AMENDMENT NO.3 EFFECTIVE DATE" has the meaning specified in
Section 5 of Amendment No.3.
"TERM LOANS" means those term loans made pursuant to Paragraph
2.1 hereof.
In addition to the foregoing new definitions, the following definitions
are hereby amended:
"COMMITTED AMOUNT" is hereby amended to equal that amount set forth opposite
each Bank's signature hereto, which amount is for a Term Loan only; "GUARANTOR"
is hereby amended to add Healthcare Report Cards, Inc. as a Guarantor;
"COLLATERAL DOCUMENTS" and "PLEDGED INSTRUMENTS" are hereby amended to add the
Pledge Agreement required to be executed by Healthcare Report Cards, Inc.
pursuant to Paragraph 4.1(f) hereof and the stock pledged thereby, respectively,
and "TOTAL COMMITMENTS" is hereby amended to replace Seventy-Five Million and
No/100 Dollars ($75,000,000.00) with the figure of Twelve Million Five Hundred
Thousand and No/100 Dollars ($12,500,000.00).
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2.3 Paragraphs 2.1 through and including 2.11 are hereby deleted in
their entirety.
Remaining Paragraph 2.12 is hereby re-numbered 2.2, and there is hereby inserted
a new Paragraph 2.1 as follows:
"2.1 TERM LOANS. Subject to the terms and conditions of and relying upon
the representations, warranties and covenants contained in this
Agreement, each Bank severally agrees to convert its existing revolving
loans to the Borrower to Term Loans until the Termination Date, said
Term Loans to be evidenced by the Term Loan Notes attached hereto as
Replacement EXHIBIT A. Said Term Loans shall amortize and be payable at
the times and at the rates set forth in said Notes; provided, on or
before December 31, 1999, the Borrower shall also pay to the Banks to be
applied on a prorata basis the greater of: (i) one hundred percent
(100%) of all "true-up" proceeds received from the reconciliation of the
current assets and liabilities of practices disposed of prior to
September 3, 1999, or (ii) Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00). As restructured hereby, there shall be no Swingline Loan
Subfacility nor Letter of Credit Facility, and Borrower hereby certifies
to the Banks that there are no outstanding Letters of Credit issued and
outstanding under the Agreement.
2.4 Paragraphs 3.2 and 3.3 in the Agreement are hereby deleted in their
entirety, and Paragraph 3.4 is hereby re-numbered as Paragraph 3.2.
2.5 Paragraph 6.16 of the Agreement is hereby deleted in its entirety.
2.6 Paragraph 7.5 is hereby amended to delete subparagraph (6) thereof
in its entirety and to re-number subparagraphs (7) and (8) as subparagraphs (6)
and (7).
2.7 Paragraph 7.10 is hereby amended to delete subparagraph (3) thereof
in its entirety and to re-number subparagraph (4) as subparagraph (3).
2.8 Paragraph 7.13 is hereby deleted in its entirety and replaced with
the following subparagraph 7.13:
"7.13 ACQUISITIONS. Neither the Borrower nor any Subsidiary will make
any Acquisition without first obtaining the prior written consent of the
Majority Banks.
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2.9 The Swingline Bank is hereby deleted as a party to the Agreement
(although Bank of America, N. A. remains as a party to the Agreement in its
other capacities), and Healthcare Report Cards, Inc. is hereby added to the
Agreement as a Guarantor thereunder. In addition, all references in this
Agreement to Revolving Loans are hereby replaced with references to Term Loans,
including any references in the title of this Agreement, this Agreement being
hereafter entitled the "Second Amended and Restated Term Loan and Security
Agreement".
3. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the Agent to
enter into this Amendment No. 3, the Borrower and Guarantors jointly and
severally represent and warrant to the Banks and the Agent as follows:
3.1 INCORPORATION. Specialty Care Network, Inc. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; has the corporate power to own its properties and to engage in the
business it conducts, and is duly qualified and in good standing as a foreign
corporation in the jurisdictions wherein the nature of its business or the
ownership of its properties requires it to be so qualified. SCN of Princeton,
Inc. is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; has the corporate power to own its
properties and to engage in the business it conducts, and is duly qualified and
in good standing as a foreign corporation in the jurisdictions wherein the
nature of its business or the ownership of its properties requires it to be so
qualified. Healthcare Report Cards, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
has the corporate power to own its properties and to engage in the business its
conducts, and is duly qualified and in good standing as a foreign corporation in
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the jurisdictions wherein the nature of its business or the ownership of its
properties requires it to be so qualified.
3.2 DUE AUTHORIZATION, NO CONFLICTS, ETC. The execution, delivery and
performance by the Borrower and Guarantors of this Amendment No.3 and any and
all other agreements, instruments and documents to be executed and/or delivered
by the Borrower and Guarantors pursuant hereto or in connection herewith, and
the consummation by the Borrower and Guarantors of the transactions contemplated
hereby or thereby: (a) are within their respective corporate powers; (b) have
been duly authorized by all necessary corporate action, including without
limitation, the consent of stockholders where required; (c) do not and will not
conflict with or result in any breach of, or constitute with the passage of time
or the giving of notice or both, a default under (i) any Requirement of Law or
(ii) any agreement to which Borrower or any Guarantor is a party or by which
they, or any of their respective property, is bound; and (d) do not require the
consent, authorization by, or approval of, or notice to, or filing or
registration with, any governmental authority or any other Person other than
those which have been obtained and copies of which have been delivered to the
Agent pursuant to Subsection 4.1 (a)(ii) hereof, each of which is in full force
and effect.
3.3 DUE EXECUTION, ETC. This Amendment No.3 and each of the other
agreements, instruments and documents to be executed and/or delivered by the
Borrower or any Guarantor pursuant hereto or in connection herewith (a) has been
duly executed and delivered, and (b) constitutes the legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against it in
accordance with its terms, subject however to state and federal bankruptcy,
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insolvency, reorganization and other laws and general principles of equity
affecting enforcement of the rights of creditors generally.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment No.3 is
subject to the fulfillment of the following conditions precedent on or prior to
the Amendment No.3 Effective Date (as hereinafter defined in Section 5 hereof):
4.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT NO.3. The Agent
shall have received, on or prior to the Amendment No.3 Effective Date, the
following, each dated on or prior to the Amendment No.3 Effective Date unless
otherwise indicated, in form and substance satisfactory to the Agent and in
sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the Board of
Directors of the Borrower and each Guarantor approving this Amendment No.3 and
each other agreement, instrument or document to be executed by it pursuant
hereto or as contemplated hereby, and (ii) all documents evidencing other
necessary corporate action and required governmental and third party approvals,
licenses and consents with respect to this Amendment No.3 and the transactions
contemplated hereby.
(b) A certificate of the Secretary or an Assistant Secretary
of Borrower and each Guarantor certifying the names and true signatures of the
officers of Borrower and each Guarantor who have been authorized to execute on
behalf of Borrower and each Guarantor this Amendment No.3 and any other
agreement, instrument or document executed or to be executed by Borrower or any
Guarantor in connection herewith.
(c) A certificate dated the Amendment No.3 Effective Date
signed by the President or any Vice-President of Borrower, to the
following effect:
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(i) The representations and warranties of
the Borrower contained in Sections 3.1, 3.2, and 3.3 of this
Amendment No.3 are true and correct on and as of such date as
though made on and as of such date;
(ii) No Default or Event of Default has
occurred and is continuing, and no Default or Event of Default
would result from the execution and delivery of this Amendment
No. 3 or the other agreements, instruments and documents
contemplated hereby; and
(iii) The Borrower has paid or agreed to pay
all amounts payable by it pursuant to the Agreement as amended
hereby (including, without limitation, all legal fees and
expenses of Banks' counsel incurred in connection herewith) to
the extent then due and payable.
(d) Executed Term Loan Notes in the form attached
hereto as Replacement EXHIBIT A.
(e) Executed Guaranty and Suretyship Agreement of
Healthcare Report Cards, Inc., in substantially the form of
EXHIBIT l hereto.
(f) Executed Pledge Agreement executed by Healthcare
Report Cards, Inc. in favor of the Agent for the benefit of the Banks,
in substantially the form of EXHIBIT 2 hereto.
(g) A favorable opinion of Messrs. Xxxxx Xxxxxxxx
Bearman & Xxxxxxxx, counsel to the Borrower, in substantially the form
of Exhibit 3 hereto, and as to such other matters as any Bank, through
the Agent, may reasonably request.
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5. EFFECTIVENESS OF AMENDMENT NO.3. This Amendment No.3 shall
become effective at such time as (a) each of the conditions precedent set forth
in Section 4.1 hereof shall have been satisfied, and (b) counterparts of this
Amendment No. 3, executed and delivered by the Borrowers, the Guarantors, the
Banks, and the Agent shall have been received by the Agent (or, alternatively,
confirmation of the execution hereof by such parties shall have been received by
the Agent). The date upon which the conditions described in clauses (a) and (b)
of the foregoing sentence shall have been fulfilled is referred to herein as the
"Amendment No.3 Effective Date".
6. CLOSING. The Closing under this Amendment No.3 shall occur
on the Amendment Effective Date at the offices of Boult, Cummings, Xxxxxxx &
Xxxxx, PLC, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or such other location
as the parties may agree.
7. GOVERNING LAW, ETC. This Amendment No.3 shall be governed
by, and construed in accordance with, the laws of the State of Tennessee as
provided in Section 10.9 of the Agreement, which Section is incorporated herein
by reference and made a part hereof as though set forth in full herein.
8. SECTION TITLES AND TABLE OF CONTENTS. The Section Titles
and Table of Contents contained in this Amendment No.3 are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement among the parties hereto.
9. ARBITRATION. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Instrument, Agreement or document or any related instruments, agreements or
documents, including any claim based on or arising from an alleged tort, shall
be determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the Rules of Practice and
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Procedure for the Arbitration of Commercial Disputes of Judicial Arbitration and
Mediation Services, Inc. (J.A.M.S.), and the "Special Rules" set forth below. In
the event of any inconsistency, the Special Rules shall control. Judgment upon
any arbitration award may be entered in any court having jurisdiction. Any party
to this Agreement may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this
agreement applies in any court having jurisdiction over such action.
(a) Special Rules. The arbitration shall be conducted
in the city of the Borrower's domicile at the time of the execution of this
instrument, agreement or document and administered by J.A.M.S. who will appoint
an arbitrator; if J.A.M.S. is unable or legally precluded from administering the
arbitration, then the American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of the demand for
arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days. In any such arbitration, the prevailing party will be awarded attorney's
fees, costs of arbitration and all out-of-pocket expenses against the defaulting
party.
(b) Reservation of Rights. Nothing in this
instrument, agreement or document shall be deemed to (i) limit the applicability
of any otherwise applicable statutes of limitation or repose or any waivers
contained in this Agreement; or (ii) be a waiver by the Agent or Banks of the
protection afforded to them by 12 U.S.C. ss. 91 or any substantially equivalent
state law; or (iii) limit the right of the Agent or Banks hereto (A) to exercise
self help remedies such as (but not limited to) set off, or (B) to foreclose
against any real or personal property collateral, or (C) to obtain from a court
provisional or ancillary remedies such as (but not limited to)
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injunctive relief, writ of possession or the appointment of a receiver. The
Agent or Banks may exercise such self help rights, foreclose upon such property,
or obtain such provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to this instrument,
agreement or document. Neither this exercise of self help remedies nor the
institution or maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
10. COUNTERPARTS. This Amendment No.3 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 all of
which taken together shall constitute one and the same instrument.
11. AGREEMENT TO REMAIN IN EFFECT. Except as expressly
provided herein, the Agreement and each other Collateral Document shall be and
shall continue in full force and effect in accordance with its respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No.3 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWER
SPECIALTY CARE NETWORK, INC.
BY: D. Xxxx Xxxxx
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TITLE: Senior Vice President, Finance
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GUARANTORS AND SUBSIDIARIES
SCN OF PRINCETON, INC.
BY: /s/ XXXXXXX X. XXXXXXX
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TITLE: Executive Vice President
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HEALTHCARE REPORT CARDS, INC.
BY: Xxxxxxx X. Xxxxxxx
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TITLE: Executive Vice President
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BANKS
Committed Amount: BANK OF AMERICA, N.A., successor to NationsBank,
$5,000,000.00 N.A., successor to NationsBank of Tennessee,
N.A., as Agent
BY: Walker Choppin
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TITLE: Senior Vice President
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Committed Amount:
$2,500,000.00 AMSOUTH BANK
BY: Xxxxx Wind
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TITLE: Vice President
---------------------------------
Committed Amount: PARIBAS
$2,500,000.00
BY:
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Xxxxxxx Xxxxxxxxx Xxxxx X. Xxxxxxx
TITLE: Director Director
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Committed Amount: KEY CORPORATE CAPITAL INC.,
$2,500,000.00 A MICHIGAN CORPORATION
BY:
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TITLE:
---------------------------------
AGENT
BANK OF AMERICA, N.A., AS AGENT
BY: Walker Choppin
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TITLE: Senior Vice President
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EXHIBIT
A
TERM LOAN NOTE
(Modification and Renewal)
$2,500,000.00 Nashville, Tennessee
September 16, 1999
FOR VALUE RECEIVED, the undersigned Specialty Care Network, Inc.
promises to pay to the order of Paribas ("Bank") the sum of Two Million Five
Hundred Thousand and No/100 Dollars ($2,500,000.00) with interest at the rate of
three-quarters of one percent (.75%) per annum over the Bank of America Prime
Rate charged by Bank of America, N.A., said interest rate to be adjusted
whenever there is a change in said rate, but in no event shall the interest rate
charged herein exceed the maximum rate of interest permitted to be charged under
the laws in effect from time to time (the "Maximum Rate"). Bank of America Prime
Rate is the fluctuating rate of interest established by the Bank from time to
time as its "Prime Rate," whether or not such rate shall be otherwise published.
Such Prime Rate is established by Bank as an index or base rate and may or may
not at any time be the best or lowest rate charged by Bank on any loan. If at
any time or from time to time the Prime Rate increases or decreases, then the
rate of interest hereunder shall be correspondingly increased or decreased
effective on the day on which any such increase or decrease of the Prime Rate
changes, unless otherwise herein provided. In the event that the Bank, during
the term hereof, shall abolish or abandon the practice of establishing a Prime
Rate, or should the same become unascertainable, the Bank shall designate a
comparable reference rate which shall be deemed to be the Prime Rate for
purposes hereof.
Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Said interest shall be due and payable
monthly on the then outstanding principal balance on the first (1st) day of each
consecutive month, the first such payment being due October 1, 1999. Principal
hereon shall also be due and payable monthly on the first (1st) day of each
consecutive month as follows: Thirty-Three Thousand Three Hundred Thirty-Three
and 34/100 Dollars ($33,333.34) each on October 1, 1999, November 1, 1999 and
December 1, 1999; Forty Thousand NoIl00 Dollars ($40,000.00) each on January 1,
2000, February 1, 2000 and March 1, 2000; Forty-Six Thousand Six Hundred
Sixty-Six and 67/100 Dollars ($46,666.67) each on April 1, 2000, May 1, 2000 and
June 1, 2000; and Fifty-Three Thousand Three Hundred Thirty-Three and 34/100
Dollars ($53,333.34) each on July 1, 2000, August 1, 2000, September 1, 2000 and
October 1, 2000. In addition, on December 31, 1999, the Borrower shall also pay
principal in an amount as required by Paragraph 2.1 of the Loan Agreement, as
hereinafter defined. On the Termination Date, November 21, 2000, the entire
outstanding principal balance, together with all accrued and unpaid interest,
shall be immediately due and payable in full.
This Note is a renewal and modification of that certain Revolving Loan
Note from undersigned to Bank dated November 21, 1997, in the original principal
amount of Fifteen Million
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and No/100 Dollars ($15,000,000.00), the same having been paid down and hereby
converted to a term loan. All terms which are capitalized and used herein (which
are not otherwise specifically defined herein) and which are defined in that
certain Second Amended and Restated Revolving Loan and Security Agreement dated
as of November 21, 1997 as amended by Amendment Nos. 1 through 3 thereto (as the
same may be further amended, modified or restated from time to time, the "Loan
Agreement") shall be used herein as defined in the Loan Agreement.
Notwithstanding the rate of interest set forth hereinabove, if the
balance of all Obligations (as such term is defined in the Loan Agreement) due
from the undersigned is greater than $7,500,000.00 on April 15, 2000, then the
interest rate charged hereon shall be increased on April 15, 2000 and at all
times thereafter from three quarters of one percent (.75%) per annum over the
Bank of America Prime Rate to one and one-half percent (1.5%) per annum over the
Bank of America Prime Rate, said rate to be adjusted whenever there is a change
in said rate, but in no event to exceed the Maximum Rate.
Interest shall continue to accrue when payments are submitted by
instruments representing funds not immediately available and until such funds
are, in fact, collected. Both principal and interest due on this Note are
payable in Nashville, Tennessee, at par in lawful money of the United States of
America, in the Nashville, Tennessee Office of the Agent or at such other place
as the Agent may designate in writing from time to time. Prepayments, if any,
made hereon shall be applied in inverse order of maturity.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any default be made in the payment of any part of interest or
principal in accordance with the terms hereof, or upon failure of the
undersigned to keep and perform all the covenants, promises, agreements,
conditions and provisions of this Note, the Loan Agreement, any Loan Document or
in any other instrument or document now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced hereby, subject to any
applicable grace, notice or cure periods contained therein; then, in any such
case, the entire unpaid principal sum evidenced by this Note, together with all
accrued interest, shall, at the option of any holder, without notice, become due
and payable forthwith, regardless of the stipulated Termination Date. Upon the
occurrence of any default as set forth herein, at the option of holder and
without notice to obligor, all accrued and unpaid interest, if any, shall be
added to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
three percentage points (3 %) in excess of the above-specified interest rate, as
it varies from time to time, or (ii) the Maximum Rate, regardless of whether or
not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default. Failure of the holder to exercise
this right of accelerating the maturity of the debt, or indulgence granted from
time to time, shall in no event be considered as a waiver of said right of
acceleration or stop the holder from exercising said right.
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To the extent permitted by applicable law, obligor shall pay to Bank of
America, N.A. a late charge equal to four percent (4%) of any payment which is
past due for a period of ten (10) or more days, in order to cover the additional
expenses incident to the handling and processing of delinquent payments.
All persons or corporations now or at any time liable, whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives and assigns, waive demand,
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection and all other notices or demands whatsoever with respect
to this Note or the enforcement hereof, and consent that the time of said
payments or any part thereof may be extended by the holder hereof and assent to
any substitution, exchange, or release of collateral permitted by the holder
hereof, all without in any wise modifying, altering, releasing, affecting or
limiting their respective liability. This Note may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
The term obligor, as used in this Note, shall mean all parties, and
each of them, directly or indirectly obligated for the indebtedness that this
Note evidences, whether as principal, maker, endorser, surety, guarantor or
otherwise.
It is expressly understood and agreed by all parties hereto, including
obligors, that if it is necessary to enforce payment of this Note through an
attorney or by suit, undersigned or any obligors shall pay reasonable attorneys'
fees, court costs and all costs of collection.
This obligation is made and intended as a Tennessee contract and is to
be so construed.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS NOTE OR ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS NOTE MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS NOTE APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION XXXX
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SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS ARBITRATION PROVISION; OR
(ii) BE A WAIVER BY THE AGENT OR ANY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF THE AGENT OR ANY BANK HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. THE AGENT OR ANY BANK MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN TERM LOAN NOTE REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned
the day and year first above written.
SPECIALTY CARE NETWORK, INC.,
a Delaware corporation
By: D. Xxxx Xxxxx
------------------------------
Its: Senior Vice President, Finance
------------------------------
PAGE 4 OF A 4 PAGE NOTE
19
TERM LOAN NOTE EXHIBIT
(Modification and Renewal) A
$2,500,000.00 Nashville, Tennessee
September 16, 1999
FOR VALUE RECEIVED, the undersigned Specialty Care Network, Inc.
promises to pay to the order of Amsouth Bank ("Bank") the sum of Two Million
Five Hundred Thousand and No/100 Dollars ($2,500,000.00) with interest at the
rate of three-quarters of one percent (.75%) per annum over the Bank of America
Prime Rate charged by Bank of America, N.A., said interest rate to be adjusted
whenever there is a change in said rate, but in no event shall the interest rate
charged herein exceed the maximum rate of interest permitted to be charged under
the laws in effect from time to time (the "Maximum Rate"). Bank of America Prime
Rate is the fluctuating rate of interest established by the Bank from time to
time as its "Prime Rate," whether or not such rate shall be otherwise published.
Such Prime Rate is established by Bank as an index or base rate and may or may
not at any time be the best or lowest rate charged by Bank on any loan. If at
any time or from time to time the Prime Rate increases or decreases, then the
rate of interest hereunder shall be correspondingly increased or decreased
effective on the day on which any such increase or decrease of the Prime Rate
changes, unless otherwise herein provided. In the event that the Bank, during
the term hereof, shall abolish or abandon the practice of establishing a Prime
Rate, or should the same become unascertainable, the Bank shall designate a
comparable reference rate which shall be deemed to be the Prime Rate for
purposes hereof.
Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Said interest shall be due and payable
monthly on the then outstanding principal balance on the first (1st) day of each
consecutive month, the first such payment being due October 1, 1999. Principal
hereon shall also be due and payable monthly on the first (1st) day of each
consecutive month as follows: Thirty-Three Thousand Three Hundred Thirty-Three
and 34/100 Dollars ($33,333.34) each on October 1, 1999, November 1, 1999 and
December 1, 1999; Forty Thousand No/100 Dollars ($40,000.00) each on January 1,
2000, February 1, 2000 and March 1, 2000; Forty-Six Thousand Six Hundred
Sixty-Six and 67/100 Dollars ($46,666.67) each on April 1, 2000, May 1, 2000 and
June 1, 2000; and Fifty-Three Thousand Three Hundred Thirty-Three and 34/100
Dollars ($53,333.34) each on July 1, 2000, August 1, 2000, September 1, 2000 and
October 1, 2000. In addition, on December 31, 1999, the Borrower shall also pay
principal in an amount as required by Paragraph 2.1 of the Loan Agreement, as
hereinafter defined. On the Termination Date, November 21, 2000, the entire
outstanding principal balance, together with all accrued and unpaid interest,
shall be immediately due and payable in full.
This Note is a renewal and modification of that certain Revolving Loan
Note from undersigned to Bank dated November 21, 1997, in the original principal
amount of Fifteen Million
PAGE 1 OF A 4 PAGE NOTE DPD
---------
(initial)
20
and No/100 Dollars ($15,000,000.00), the same having been paid down and hereby
converted to a term loan. All terms which are capitalized and used herein (which
are not otherwise specifically defined herein) and which are defined in that
certain Second Amended and Restated Revolving Loan and Security Agreement dated
as of November 21, 1997 as amended by Amendment Nos. 1 through 3 thereto (as the
same may be further amended, modified or restated from time to time, the ("Loan
Agreement") shall be used herein as defined in the Loan Agreement.
Notwithstanding the rate of interest set forth hereinabove, if the
balance of all Obligations (as such term is defined in the Loan Agreement) due
from the undersigned is greater than $7,500,000.00 on April 15, 2000, then the
interest rate charged hereon shall be increased on April 15, 2000 and at all
times thereafter from three quarters of one percent (.75%) per annum over the
Bank of America Prime Rate to one and one-half percent (1.5%) per annum over the
Bank of America Prime Rate, said rate to be adjusted whenever there is a change
in said rate, but in no event to exceed the Maximum Rate.
Interest shall continue to accrue when payments are submitted by
instruments representing funds not immediately available and until such funds
are, in fact, collected. Both principal and interest due on this Note are
payable in Nashville, Tennessee, at par in lawful money of the United States of
America, in the Nashville, Tennessee Office of the Agent or at such other place
as the Agent may designate in writing from time to time. Prepayments, if any,
made hereon shall be applied in inverse order of maturity.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any default be made in the payment of any part of interest or
principal in accordance with the terms hereof, or upon failure of the
undersigned to keep and perform all the covenants, promises, agreements,
conditions and provisions of this Note, the Loan Agreement, any Loan Document or
in any other instrument or document now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced hereby, subject to any
applicable grace, notice or cure periods contained therein; then, in any such
case, the entire unpaid principal sum evidenced by this Note, together with all
accrued interest, shall, at the option of any holder, without notice, become due
and payable forthwith, regardless of the stipulated Termination Date. Upon the
occurrence of any default as set forth herein, at the option of holder and
without notice to obligor, all accrued and unpaid interest, if any, shall be
added to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
three percentage points (3%) in excess of the above-specified interest rate, as
it varies from time to time, or (ii) the Maximum Rate, regardless of whether or
not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default. Failure of the holder to exercise
this right of accelerating the maturity of the debt, or indulgence granted from
time to time, shall in no event be considered as a waiver of said right of
acceleration or stop the holder from exercising said right.
PAGE 2 OF A 4 PAGE NOTE DPD
---------
(initial)
21
To the extent permitted by applicable law, obligor shall pay to Bank of
America, N.A. a late charge equal to four percent (4%) of any payment which is
past due for a period of ten (10) or more days, in order to cover the additional
expenses incident to the handling and processing of delinquent payments.
All persons or corporations now or at any time liable, whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives and assigns, waive demand,
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection and all other notices or demands whatsoever with respect
to this Note or the enforcement hereof, and consent that the time of said
payments or any part thereof may be extended by the holder hereof and assent to
any substitution, exchange, or release of collateral permitted by the holder
hereof, all without in any wise modifying, altering, releasing, affecting or
limiting their respective liability. This Note may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
The term obligor, as used in this Note, shall mean all parties, and
each of them, directly or indirectly obligated for the indebtedness that this
Note evidences, whether as principal, maker, endorser, surety, guarantor or
otherwise.
It is expressly understood and agreed by all parties hereto, including
obligors, that if it is necessary to enforce payment of this Note through an
attorney or by suit, undersigned or any obligors shall pay reasonable attorneys'
fees, court costs and all costs of collection.
This obligation is made and intended as a Tennessee contract and is to
be so construed.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS NOTE OR ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS NOTE MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS NOTE APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION XXXX
XXXX 3 OF A 4 PAGE NOTE DPD
---------
(initial)
22
SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS ARBITRATION PROVISION; OR
(ii) BE A WAIVER BY THE AGENT OR ANY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF THE AGENT OR ANY BANK HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. THE AGENT OR ANY BANK MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN TERM LOAN NOTE REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned
the day and year first above written.
SPECIALTY CARE NETWORK, INC.,
a Delaware corporation
By D. Xxxx Xxxxx
----------------------------------
Its: Senior Vice President. Finance
----------------------------------
PAGE 4 OF A 4 PAGE NOTE
23
EXHIBIT
TERM LOAN NOTE A
(Modification and Renewal)
$5,000,000.00 Nashville, Tennessee
September 16, 1999
FOR VALUE RECEIVED, the undersigned Specialty Care Network, Inc.
promises to pay to the order of Bank of America, N.A. ("Bank") the sum of Five
Million and No/100 Dollars ($5,000,000.00) with interest at the rate of
three-quarters of one percent (.75%) per annum over the Bank of America Prime
Rate charged by Bank of America, N.A., said interest rate to be adjusted
whenever there is a change in said rate, but in no event shall the interest rate
charged herein exceed the maximum rate of interest permitted to be charged under
the laws in effect from time to time (the "Maximum Rate"). Bank of America Prime
Rate is the fluctuating rate of interest established by the Bank from time to
time as its "Prime Rate," whether or not such rate shall be otherwise published.
Such Prime Rate is established by Bank as an index or base rate and may or may
not at any time be the best or lowest rate charged by Bank on any loan. If at
any time or from time to time the Prime Rate increases or decreases, then the
rate of interest hereunder shall be correspondingly increased or decreased
effective on the day on which any such increase or decrease of the Prime Rate
changes, unless otherwise herein provided. In the event that the Bank, during
the term hereof, shall abolish or abandon the practice of establishing a Prime
Rate, or should the same become unascertainable, the Bank shall designate a
comparable reference rate which shall be deemed to be the Prime Rate for
purposes hereof.
Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Said interest shall be due and payable
monthly on the then outstanding principal balance on the first (1st) day of each
consecutive month, the first such payment being due October 1, 1999. Principal
hereon shall also be due and payable monthly on the first (1st) day of each
consecutive month as follows: Sixty-Six Thousand Six Hundred Sixty-Six and
67/100 Dollars ($66,666.67) each on October 1, 1999, November 1, 1999 and
December 1, 1999; Eighty Thousand and No/100 Dollars ($80,000.00) each on
January 1, 2000, February 1, 2000 and March 1, 2000; Ninety-Three Thousand Three
Hundred Thirty-Three and 34/100 Dollars ($93,333.34) each on April 1, 2000, May
1, 2000 and June 1, 2000; and One Hundred Six Thousand Six Hundred Sixty-Six and
67/100 Dollars ($106,666.67) each on July 1, 2000, August 1, 2000, September 1,
2000 and October 1, 2000. In addition, on December 31, 1999, the Borrower shall
also pay principal in an amount as required by Paragraph 2.1 of the Loan
Agreement, as hereinafter defined. On the Termination Date, November 21, 2000,
the entire outstanding principal balance, together with all accrued and unpaid
interest, shall be immediately due and payable in full.
This Note is a renewal and modification of that certain Revolving Loan
Note from undersigned to Bank dated November 21, 1997, in the original principal
amount of Thirty Million
PAGE 1 OF A 4 PAGE NOTE DPD
---------
(initial)
24
and No/100 Dollars ($30,000,000.00), the same having been paid down and hereby
converted to a term loan. An terms which are capitalized and used herein (which
are not otherwise specifically defined herein) and which are defined in that
certain Second Amended and Restated Revolving Loan and Security Agreement dated
as of November 21, 1997 as amended by Amendment Nos. 1 through 3 thereto (as the
same may be further amended, modified or restated from time to time, the "Loan
Agreement") shall be used herein as defined in the Loan Agreement.
Notwithstanding the rate of interest set forth hereinabove, if the
balance of all Obligations (as such term is defined in the Loan Agreement) due
from the undersigned is greater than $7,500,000.00 on April 15, 2000, then the
interest rate charged hereon shall be increased on April 15, 2000 and at all
times thereafter from three quarters of one percent (.75%) per annum over the
Bank of America Prime Rate to one and one-half percent (1.5%) per annum over the
Bank of America Prime Rate, said rate to be adjusted whenever there is a change
in said rate, but in no event to exceed the Maximum Rate.
Interest shall continue to accrue when payments are submitted by
instruments representing funds not immediately available and until such funds
are, in fact, collected. Both principal and interest due on this Note are
payable in Nashville, Tennessee, at par in lawful money of the United States of
America, in the Nashville, Tennessee Office of the Agent or at such other place
as the Agent may designate in writing from time to time. Prepayments, if any,
made hereon shall be applied in inverse order of maturity
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any default be made in the payment of any part of interest or
principal in accordance with the terms hereof, or upon failure of the
undersigned to keep and perform all the covenants, promises, agreements,
conditions and provisions of this Note, the Loan Agreement, any Loan Document or
in any other instrument or document now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced hereby, subject to any
applicable grace, notice or cure periods contained therein; then, in any such
case, the entire unpaid principal sum evidenced by this Note, together with all
accrued interest, shall, at the option of any holder, without notice, become due
and payable forthwith, regardless of the stipulated Termination Date. Upon the
occurrence of any default as set forth herein, at the option of holder and
without notice to obligor, all accrued and unpaid interest, if any, shall be
added to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
three percentage points (3 %) in excess of the above-specified interest rate, as
it varies from time to time, or (ii) the Maximum Rate, regardless of whether or
not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default. Failure of the holder to exercise
this right of accelerating the maturity of the debt, or indulgence granted from
time to time, shall in no event be considered as a waiver of said right of
acceleration or stop the holder from exercising said right.
PAGE 2 OF A 4 PAGE NOTE DPD
---------
(initial)
25
To the extent permitted by applicable law, obligor shall pay to Bank of
America, N.A. a late charge equal to four percent (4%) of any payment which is
past due for a period of ten (10) or more days, in order to cover the additional
expenses incident to the handling and processing of delinquent payments.
All persons or corporations now or at any time liable, whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives and assigns, waive demand,
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection and all other notices or demands whatsoever with respect
to this Note or the enforcement hereof, and consent that the time of said
payments or any part thereof may be extended by the holder hereof and assent to
any substitution, exchange, or release of collateral permitted by the holder
hereof, all without in any wise modifying, altering, releasing, affecting or
limiting their respective liability. This Note may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
The term obligor, as used in this Note, shall mean all parties, and
each of them, directly or indirectly obligated for the indebtedness that this
Note evidences, whether as principal, maker, endorser, surety, guarantor or
otherwise.
It is expressly understood and agreed by all parties hereto, including
obligors, that if it is necessary to enforce payment of this Note through an
attorney or by suit, undersigned or any obligors shall pay reasonable attorneys'
fees, court costs and all costs of collection.
This obligation is made and intended as a Tennessee contract and is to
be so construed.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS NOTE OR ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS NOTE MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS NOTE APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION XXXX
XXXX 3 OF A 4 PAGE NOTE DPD
---------
(initial)
26
SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS ARBITRATION PROVISION; OR
(ii) BE A WAIVER BY THE AGENT OR ANY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF THE AGENT OR ANY BANK HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. THE AGENT OR ANY BANK MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN TERM LOAN NOTE REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned
the day and year first above written.
SPECIALTY CARE NETWORK, INC.,
a Delaware corporation
By: D. Xxxx Xxxxx
-------------------------------
Its Senior Vice President. Finance
-------------------------------
PAGE 4 OF A 4 PAGE NOTE
27
EXHIBIT
A
TERM LOAN NOTE
(Modification and Renewal)
$2,500,000.00 Nashville, Tennessee
September 16, 1999
FOR VALUE RECEIVED, the undersigned Specialty Care Network, Inc.
promises to pay to the order of Key Corporate Capital, Inc. ("Bank") the sum of
Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00) with
interest at the rate of three-quarters of one percent (.75%) per annum over the
Bank of America Prime Rate charged by Bank of America, N.A., said interest rate
to be adjusted whenever there is a change in said rate, but in no event shall
the interest rate charged herein exceed the maximum rate of interest permitted
to be charged under the laws in effect from time to time (the "Maximum Rate ").
Bank of America Prime Rate is the fluctuating rate of interest established by
the Bank from time to time as its "Prime Rate," whether or not such rate shall
be otherwise published. Such Prime Rate is established by Bank as an index or
base rate and may or may not at any time be the best or lowest rate charged by
Bank on any loan. If at any time or from time to time the Prime Rate increases
or decreases, then the rate of interest hereunder shall be correspondingly
increased or decreased effective on the day on which any such increase or
decrease of the Prime Rate changes, unless otherwise herein provided. In the
event that the Bank, during the term hereof, shall abolish or abandon the
practice of establishing a Prime Rate, or should the same become
unascertainable, the Bank shall designate a comparable reference rate which
shall be deemed to be the Prime Rate for purposes hereof.
Interest shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days. Said interest shall be due and payable
monthly on the then outstanding principal balance on the first (1st) day of each
consecutive month, the first such payment being due October 1, 1999. Principal
hereon shall also be due and payable monthly on the first (1st) day of each
consecutive month as follows: Thirty-Three Thousand Three Hundred Thirty-Three
and 34/100 Dollars ($33,333.34) each on October 1, 1999, November 1, 1999 and
December 1, 1999; Forty Thousand No/100 Dollars ($40,000.00) each on January 1,
2000, February 1, 2000 and March 1, 2000; Forty-Six Thousand Six Hundred
Sixty-Six and 67/100 Dollars ($46,666.67) each on April 1, 2000, May 1, 2000 and
June 1, 2000; and Fifty-Three Thousand Three Hundred Thirty-Three and 34/100
Dollars ($53,333.34) each on July 1, 2000, August 1, 2000, September 1, 2000 and
October 1, 1999. In addition, on December 31, 1999, the Borrower shall also pay
principal in an amount as required by Paragraph 2.1 of the Loan Agreement, as
hereinafter defined. On the Termination Date, November 21, 2000, the entire
outstanding principal balance, together with all accrued and unpaid interest,
shall be immediately due and payable in full.
This Note is a renewal and modification of that certain Revolving Loan
Note from undersigned to Bank dated November 21, 1997, in the original principal
amount of Fifteen Million
PAGE 1 OF A 4 PAGE NOTE DPD
---------
(initial)
28
and No/100 Dollars ($15,000,000.00), the same having been paid down and hereby
converted to a term loan. All terms which are capitalized and used herein (which
are not otherwise specifically defined herein) and which are defined in that
certain Second Amended and Restated Revolving Loan and Security Agreement dated
as of November 21, 1997 as amended by Amendment Nos. 1 through 3 thereto (as the
same may be further amended, modified or restated from time to time, the "Loan
Agreement") shall be used herein as defined in the Loan Agreement.
Notwithstanding the rate of interest set forth hereinabove, if the
balance of all Obligations (as such term is defined in the Loan Agreement) due
from the undersigned is greater than $7,500,000.00 on April 15, 2000, then the
interest rate charged hereon shall be increased on April 15, 2000 and at all
times thereafter from three quarters of one percent (.75%) per annum over the
Bank of America Prime Rate to one and one-half percent (1.5%) per annum over the
Bank of America Prime Rate, said rate to be adjusted whenever there is a change
in said rate, but in no event to exceed the Maximum Rate.
Interest shall continue to accrue when payments are submitted by
instruments representing funds not immediately available and until such funds
are, in fact, collected. Both principal and interest due on this Note are
payable in Nashville, Tennessee, at par in lawful money of the United States of
America, in the Nashville, Tennessee Office of the Agent or at such other place
as the Agent may designate in writing from time to time. Prepayments, if any,
made hereon shall be applied in inverse order of maturity.
Time is of the essence of this Note. It is hereby expressly agreed that
in the event that any default be made in the payment of any part of interest or
principal in accordance with the terms hereof, or upon failure of the
undersigned to keep and perform all the covenants, promises, agreements,
conditions and provisions of this Note, the Loan Agreement, any Loan Document or
in any other instrument or document now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced hereby, subject to any
applicable grace, notice or cure periods contained therein; then, in any such
case, the entire unpaid principal sum evidenced by this Note, together with all
accrued interest, shall, at the option of any holder, without notice, become due
and payable forthwith, regardless of the stipulated Termination Date. Upon the
occurrence of any default as set forth herein, at the option of holder and
without notice to obligor, all accrued and unpaid interest, if any, shall be
added to the outstanding principal balance hereof, and the entire outstanding
principal balance, as so adjusted, shall bear interest thereafter until paid at
an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is
three percentage points (3 %) in excess of the above-specified interest rate, as
it varies from time to time, or (ii) the Maximum Rate, regardless of whether or
not there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default. Failure of the holder to exercise
this right of accelerating the maturity of the debt, or indulgence granted from
time to time, shall in no event be considered as a waiver of said right of
acceleration or stop the holder from exercising said right.
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To the extent permitted by applicable law, obligor shall pay to Bank of
America, N.A. a late charge equal to four percent (4%) of any payment which is
past due for a period of ten (10) or more days, in order to cover the additional
expenses incident to the handling and processing of delinquent payments.
All persons or corporations now or at any time liable, whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives and assigns, waive demand,
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection and all other notices or demands whatsoever with respect
to this Note or the enforcement hereof, and consent that the time of said
payments or any part thereof may be extended by the holder hereof and assent to
any substitution, exchange, or release of collateral permitted by the holder
hereof, all without in any wise modifying, altering, releasing, affecting or
limiting their respective liability. This Note may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
The term obligor, as used in this Note, shall mean all parties, and
each of them, directly or indirectly obligated for the indebtedness that this
Note evidences, whether as principal, maker, endorser, surety, guarantor or
otherwise.
It is expressly understood and agreed by all parties hereto, including
obligors, that if it is necessary to enforce payment of this Note through an
attorney or by suit, undersigned or any obligors shall pay reasonable attorneys'
fees, court costs and all costs of collection.
This obligation is made and intended as a Tennessee contract and is to
be so construed.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS NOTE OR ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS NOTE MAY BRING AN ACTION, INCLUDING
A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS NOTE APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE UNDERSIGNED'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION XXXX
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SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS ARBITRATION PROVISION; OR
(ii) BE A WAIVER BY THE AGENT OR ANY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF THE AGENT OR ANY BANK HERETO (a) TO EXERCISE SELF HELP REMEDIES SUCH AS
(BUT NOT LIMITED TO) SETOFF, OR (b) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (c) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. THE AGENT OR ANY BANK MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION
FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER
OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN TERM LOAN NOTE REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, this Note has been duly executed by the undersigned
the day and year first above written.
SPECIALTY CARE NETWORK, INC.,
a Delaware corporation
By: D. Xxxx Xxxxx
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Its: Senior Vice President, Finance
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