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EXHIBIT 10.7
SECOND AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
This SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"Second Amendment"), dated as of March 5, 2001, is among INFOCURE CORPORATION, a
Delaware corporation ("InfoCure Corporation"); INFOCURE SYSTEMS, INC., a Georgia
corporation ("InfoCure Systems"); THOROUGHBRED ACQUISITION, INC., a Georgia
corporation ("Thoroughbred") (InfoCure Corporation, InfoCure Systems and
Thoroughbred sometimes hereinafter are referred to individually as a "Borrower"
and collectively as "Borrowers"); THE SUBSIDIARIES OF INFOCURE CORPORATION THAT
ARE NOT BORROWERS AND ARE SIGNATORIES HERETO (each, a "Subsidiary Guarantor" and
collectively, "Subsidiary Guarantors") (Borrowers and Subsidiary Guarantors
sometimes hereinafter are referred to individually as an "Obligor" and
collectively as "Obligors"); and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("FINOVA"). All capitalized terms used but not elsewhere defined
herein shall have the respective meanings ascribed to such terms in Section 1
below.
R E C I T A L S
A. Borrowers and FINOVA entered into that certain Loan Agreement
dated as of August 11, 1999 (the "Original Loan Agreement"), as amended by that
certain First Amendment to Loan Agreement and other Loan Documents dated as of
August 1, 2000 (the "First Amendment") and as the same further may have been
amended, modified or supplemented prior to the date hereof (the Original Loan
Agreement, as amended by the First Amendment and as the same further may have
been so amended, modified or supplemented prior to the date hereof, hereinafter
is referred to as the "Existing Loan Agreement"), pursuant to which FINOVA,
among other things, made certain loans and other financial accommodations to
Borrowers, subject to the terms and conditions therein set forth.
B. Obligors have requested that FINOVA agree to (i) certain
transactions contemplated by certain of the Obligors, including, without
limitation, the "Subsidiary Mergers", the "ISI Merger", the "Contribution", and
the "Distribution" (in each case, as hereinafter defined), and (ii) amend the
Existing Loan Agreement and the other Loan Documents in certain respects.
C. Each of the Subsidiary Guarantors is a Subsidiary of InfoCure
Corporation and an Affiliate and/or a Subsidiary of the other Borrowers and, as
such, have (i) direct and indirect financial, economic and other interests and
incentive to induce FINOVA to continue to make such loans and other financial
accommodations to Borrowers under the Existing Loan Agreement and to agree to
such requests, (ii) guaranteed Borrowers' Obligations under the Loan Documents
and (iii) granted to FINOVA first priority liens on and security interests in
substantially all of their respective properties as collateral security for such
guarantees.
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D. FINOVA agrees to such requests of Obligors, subject to the
terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing and other mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, and subject to the
terms and conditions hereof, Obligors and FINOVA agree as follows:
1. DEFINITIONS. All capitalized terms used but not elsewhere
defined herein shall have the respective meanings ascribed to such terms in the
Existing Loan Agreement, as amended by this Second Amendment.
2. AMENDMENTS TO THE EXISTING LOAN AGREEMENT. The Existing Loan
Agreement hereby is amended as set forth below:
2.1 SECTION 1.1 - ADDITIONAL DEFINITIONS. Section 1.1 of
the Existing Loan Agreement is amended by adding the following
definitions in such Section 1.1 in the appropriate alphabetical order:
Agreement and Plan of Distribution means that certain
Agreement and Plan of Distribution dated as of February 21,
2001 by and between InfoCure Corporation and Practice Works,
as the same from time to time may be amended, modified or
supplemented.
Contribution means, collectively, (i) the
contribution by InfoCure Corporation to PracticeWorks Systems
of the "Included Assets" (as defined in the Agreement and Plan
of Distribution) and the resulting issuance and delivery by
PracticeWorks Systems to InfoCure Corporation of all of the
Subsidiary Equity Interests of PracticeWorks Systems, (ii) the
contribution by InfoCure Corporation to PracticeWorks of all
of the Subsidiary Equity Interests of PracticeWorks Systems
and the resulting issuance and delivery by PracticeWorks to
InfoCure Corporation of all of the Subsidiary Equity Interests
of PracticeWorks, and (iii) the contribution by InfoCure
Corporation to PracticeWorks of the equity interests of CADI
Acquisition Corporation, a Colorado corporation, Swenam
Holdings B.V., a Netherlands corporation, and InfoCure
Australia Pty. Limited, a company organized under the laws of
Australia, in each case pursuant to and in accordance with the
terms of the Agreement and Plan of Distribution.
Distribution means the "Distribution", as defined in
the Agreement and Plan of Distribution, pursuant to which
InfoCure Corporation shall distribute to the holders of its
common stock and certain other of its equityholders all of the
equity interests of PracticeWorks that were the subject of the
Contribution.
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Distribution Transaction Documents means,
collectively, (i) the Agreement and Plan of Distribution, (ii)
the Employee Benefits and Compensation Allocation Agreement
dated as of March 5, 2001 by and between InfoCure Corporation
and PracticeWorks, (iii) the Tax Disaffiliation Agreement
dated as of March 5, 2001 by and between InfoCure Corporation
and PracticeWorks, (iv) the Transition Services Agreement, (v)
the "Registration Statement" and the "Prospectus", in each
case as defined in the Agreement and Plan of Distribution,
(vi) the Software License Agreements, each dated as of March
5, 2001, by and between InfoCure Corporation and PracticeWorks
Systems, (vii) the Assignment of Copyrights, each dated as of
March 5, 2001, by InfoCure Corporation to and for the benefit
of PracticeWorks Systems, (viii) all other "Ancillary
Agreements" and "Intercompany Agreements", in each case as
defined in the Agreement and Plan of Distribution, and (ix)
all agreements, documents and instruments evidencing or
otherwise pertaining to the ISI Merger and/or the Subsidiary
Mergers, including, without limitation, amendments to
constituent documents, certificates of merger and agreements
and plans of merger, in each case as the same from time to
time may be amended, modified or supplemented.
HIPAA means the Health Insurance Portability &
Accountability Act, as amended, any successor statute thereto,
and the rules and regulations promulgated thereunder, as in
effect from time to time.
ISI Merger means the merger of InfoCure Systems with
and into InfoCure Corporation, with InfoCure Corporation being
the surviving entity, pursuant to and in accordance with the
terms of the Agreement and Plan of Distribution and the other
Distribution Transaction Documents.
PracticeWorks means PracticeWorks, Inc., a Delaware
corporation and, prior to the ISI Merger and the Distribution,
a wholly-owned Subsidiary of InfoCure Systems and, after the
ISI Merger but prior to the Distribution, a wholly-owned
Subsidiary of InfoCure Corporation.
PracticeWorks Systems means PracticeWorks Systems,
LLC, a Georgia limited liability company that is (i) prior to
the ISI Merger, a wholly-owned domestic Subsidiary of InfoCure
Systems, and (ii) from and after the ISI Merger and
Contribution, a wholly-owned domestic Subsidiary of
PracticeWorks.
PracticeWorks Facility means the credit facility
provided by Lender to PracticeWorks pursuant to that certain
Loan Agreement dated as of March 5, 2001 between Lender and
PracticeWorks and the other "Loan Documents," as therein
defined.
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Second Amendment means the Second Amendment to Loan
Agreement and other Loan Documents dated as of March 5, 2001
among Borrowers, certain of their respective Subsidiaries and
Lender.
Second Amendment Effective Date means the "Effective
Date," as defined in the Second Amendment, which shall be
deemed to be the date of the Second Amendment unless otherwise
agreed to by Lender and Borrowers in writing (provided, that,
notwithstanding the foregoing, if the Distribution and/or the
Contribution shall not have been consummated on or by such
date, the "Second Amendment Effective Date" shall be such
later date on or by which the Distribution and the
Contribution both shall have been consummated in accordance
with applicable law and the terms of the Distribution
Transaction Documents and all other conditions precedent set
forth in Section 4 hereof shall have been satisfied in
accordance with the provisions thereof.
Subsidiary Mergers means, collectively, the merger of
Applied Professional Systems, Inc., a Delaware corporation,
Technos Corporation, a New Hampshire corporation, and DataTrac
Services Corporation, a Kansas corporation, with and into
InfoCure Systems, with InfoCure Systems being the surviving
entity.
Transition Services Agreement means that certain
Transition Services Agreement dated as of March 5, 2001 by and
between InfoCure Corporation and PracticeWorks, as the same
from time to time may be amended, modified or supplemented.
WebMD means WebMD Corporation, a Delaware
corporation.
2.2 SECTION 1.1 - SUBSTITUTED DEFINITIONS. Section 1.1 of
the Existing Loan Agreement is amended further by deleting the
definitions of the following terms contained in such Section 1.1 and
substituting the following respective definitions in lieu thereof:
Closing Date means August 11, 1999.
Consolidated Net Income means, for any period, the
net income of Borrowers and their Subsidiaries(other than the
Restricted Foreign Subsidiaries) for such period, on a
consolidated basis, computed in accordance with GAAP, less, if
a contract or binding commitment to sell, dispose of or
otherwise transfer a Subsidiary or business division or unit
of any Borrower or any Subsidiary of any Borrower shall have
been entered into, or if any such Subsidiary or business
division or unit was sold, disposed of otherwise transferred,
the net income attributable to such Subsidiary or business
division or unit to the extent otherwise included above in
determining Consolidated Net Income for such period.
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Consolidated Net Worth means, as of any date of
determination, the difference of (i) the sum of (a) the net
worth of Borrowers and their Subsidiaries (other than the
Restricted Foreign Subsidiaries) on such date, on a
consolidated basis, computed in accordance with GAAP, plus (b)
the amount (not to exceed $16,500,000 as of the Second
Amendment Effective Date) recognized by Borrowers in
accordance with GAAP relating to the valuation allowance for
deferred tax assets of Borrowers and their Subsidiaries, as
such allowance is reduced or increased from time to time, less
(ii) if a contract or binding commitment to sell, dispose of
or otherwise transfer a Subsidiary or business division or
unit of any Borrower or any Subsidiary of any Borrower shall
have been entered into, or if any such Subsidiary or business
division or unit was sold, disposed of otherwise transferred,
the net worth attributable to such Subsidiary or business
division or unit to the extent otherwise included above in
determining Consolidated Net Worth.
Default Rate means (i) with respect to the Term Loan
A, a rate equal to the Base Rate then in effect, plus three
and one-half percent (3.50%) per annum, (ii) with respect to
the Revolving Loan (including, without limitation, from and
after the Term Conversion Date, the Term Loan B Portion of the
Revolving Loan), a rate equal to the Base Rate or the LIBOR,
as the case may be, plus the Applicable Margin then in effect,
plus two percent (2.0%) per annum and (iii) with respect to
any other amounts which may be owing by Borrowers to Lender
pursuant to this Loan Agreement, the other Loan Documents or
otherwise, a rate equal to the greater of (i) and (ii) of this
definition.
EBITDA means, for any period, without duplication,
net income (or loss) for the applicable period of measurement
of Borrowers and their Subsidiaries (other than the Restricted
Foreign Subsidiaries) (or such other Persons as the context
may require) on a consolidated basis determined in accordance
with GAAP, plus the sum of the following to the extent
deducted in determining such net income: (i) losses from
sales, transactions, exchanges and other dispositions of
Property and other extraordinary losses not in the ordinary
course of business; (ii) interest, fees and other charges paid
or accrued on Indebtedness for Borrowed Money; (iii)
depreciation and amortization of Property; and (iv) income
taxes which are accrued or paid during such period, less (a)
gains from sales, transactions, exchanges and other
dispositions of Property and other extraordinary gains not in
the ordinary course of business to the extent included in
determining such net income and (b) if a contract or binding
commitment to sell, dispose of or otherwise transfer a
Subsidiary or business division or unit of any Borrower or any
Subsidiary of any Borrower shall have been entered into, or if
any such Subsidiary or business division or unit was sold,
disposed of otherwise transferred, EBITDA attributable to such
Subsidiary or business division or unit to the extent
otherwise included above in determining EBITDA for such
period.
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Loans means, collectively, the Term Loan A and the
Revolving Loan or any portion thereof, and may mean a Base
Rate Loan or a LIBOR Rate Loan. Such term shall include the
Term Loan B Portion upon conversion of the Revolving Loan as
provided in subsection 2.6.2.
Operating Cash Flow means, for any period, EBITDA of
Borrowers and their Subsidiaries (other than the Restricted
Foreign Subsidiaries) for such period, less Capital
Expenditures made or incurred by Borrowers and their
Subsidiaries during such period; provided, that, if any
contract or binding commitment to sell, dispose of or
otherwise transfer a Subsidiary of any Borrower or any other
Subsidiary of any Borrower shall have been entered into, or if
any such Subsidiary was sold, disposed of otherwise
transferred, the foregoing deduction of Capital Expenditures
shall exclude any Capital Expenditures for which such
Subsidiary is solely obligated in determining Operating Cash
Flow for such period.
Permitted Senior Indebtedness means Indebtedness,
other than Borrowers' Obligations, incurred to purchase
tangible personal property or Indebtedness incurred to lease
tangible personal property pursuant to Capitalized Leases,
provided that (i) such aggregate Indebtedness of Borrowers
existing as of the Closing Date shall not exceed $6,300,000 in
the aggregate, (ii) during the second Loan Year and any Loan
Year thereafter, the aggregate amount of such Indebtedness of
Borrowers and their Subsidiaries at any one time outstanding
during any such Loan Year shall not exceed $6,300,000 and
principal payments made with respect to such Indebtedness
during any such Loan Year shall not exceed $1,890,000 in the
aggregate, and (iii) no Event of Default exists at the time or
will be caused as a result of the incurrence of any
Indebtedness described in clause (ii) of this definition.
Related Transactions means the Acquisitions, the Real
Estate Acquisition, the Subsidiary Mergers, the Contribution,
the ISI Merger and the Distribution, and the other
transactions contemplated by the Related Transaction
Documents.
Related Transaction Documents means the Acquisition
Documents, the Real Estate Acquisition Documents, the Common
Stock Purchase Agreement and the Distribution Transaction
Documents.
Restricted Foreign Subsidiaries means, collectively,
InfoCure Australia Pty. Limited, a company organized under the
laws of Australia, Divage Pty Limited, a company organized
under the laws of Australia, InfoCure Orthodontics Pty.
Limited, a company organized under the laws of Australia,
Swenam Holdings B.V., a Netherlands corporation, Practice
Works Limited, a United Kingdom corporation, Scandic Dental
Computer Systems AB, a Sweden corporation, and Medical and
Dental Business Solutions (Sweden) AB, a Sweden corporation;
provided, that, from and after the Second Amendment Effective
Date, such Restricted Foreign
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Subsidiaries shall cease to be Subsidiaries of InfoCure
Corporation and thereafter cease to be Restricted Foreign
Subsidiaries.
Revolving Loan means (i) prior to the Second
Amendment Effective Date, the revolving loan in the maximum
amount of $91,295,000 and (ii) from and after the Second
Amendment Effective Date, the loan in the amount of
$28,469,518.00 (which equals the Principal Balance of the
revolving loan described in the foregoing clause (i) as of the
Second Amendment Effective Date, plus accrued and unpaid
interest thereon through the day immediately preceding the
Second Amendment Effective Date and shall be deemed to be the
Term Loan B Portion) (in each case, subject to reduction in
accordance with the terms of this Loan Agreement), made by
Lender to Borrowers pursuant to subsection 2.1.2.
Term Conversion Date means the Second Amendment
Effective Date.
UCC or Uniform Commercial Code means the Uniform
Commercial Code as in effect from time to time in the State of
Arizona.
Warrants means, collectively, (i) that certain
Warrant Agreement with an original issue date of January 21,
1999 issued by Borrower to and for the benefit of Lender and
(ii) that certain Warrant Agreement with an original issue
date of October 23, 1998 issued by Borrower to and for the
benefit of Lender, in each case together with any warrants
issued in replacement thereof or substitution therefor and as
the same may be amended, modified, supplemented or restated
from time to time.
2.3 SECTION 1.1 - FURTHER AMENDMENT. The definition of
"Applicable Margin" contained in Section 1.1 is amended by adding the
following paragraph to the end of such definition:
Notwithstanding the foregoing provisions of this definition,
from and after the Second Amendment Effective Date, the
Applicable Margin shall mean:
(i) during the period from and after
the Second Amendment Effective Date through and
including June 30, 2001, (a) with respect to LIBOR
Rate Loans, three percent (3.00%), and (b) with
respect to Base Rate Loans, one and one-half percent
(1.50%);
(ii) during the period from and after
July 1, 2001 through and including December 31, 2001,
(a) with respect to LIBOR Rate Loans, three and
one-quarter percent (3.25%), and (b) with respect to
Base Rate Loans, one and three-quarters percent
(1.75%); and
(iii) from and after January 1, 2002, (a)
with respect to LIBOR
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Rate Loans, three and three-quarters percent (3.75%),
and (b) with respect to Base Rate Loans, two and
one-quarter percent (2.25%)."
2.4 SECTION 2.1.2. Section 2.1.2 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.1.2 REVOLVING LOAN. Lender agrees, on the terms
and conditions hereinafter set forth, to make Advances of the
Revolving Loan to Borrowers on any Business Day during the
period from the Closing Date to the day immediately preceding
the Second Amendment Effective Date in an aggregate amount not
to exceed at any time outstanding $91,295,000 prior to the
Second Amendment Effective Date, subject to subsection 2.1.3
and reduction from time to time pursuant to the terms of this
Loan Agreement. Borrowers agree and acknowledge that (a) on
the Closing Date, without giving effect to any other Loans
requested by Borrowers on such date, $12,149,250.00 shall be
deemed outstanding under the Revolving Loan, which amount
shall be deemed to have refinanced the Existing FINOVA
Indebtedness, and (b) on the Second Amendment Effective Date,
$28,469,518.00 is outstanding under the Revolving Loan (which
includes $37,690.00 of accrued and unpaid interest as of the
day immediately preceding the Second Amendment Effective Date,
which hereby is capitalized and made part of the Principal
Balance of the Revolving Loan) (after giving effect to the
prepayment of the Revolving Loan in an amount equal to
$21,637,243.00, plus $22,924.00 of accrued and unpaid interest
as of the day immediately preceding the Second Amendment
Effective Date, with cash proceeds of the PracticeWorks
Facility). Notwithstanding anything contained herein to the
contrary, Lender shall not be required or obligated to make
additional Advances of the Revolving Loan Commitment from and
after the Second Amendment Effective Date. Borrowers hereby
authorize Lender to effectuate the prepayment of the Revolving
Loans and accrued and unpaid interest therein as described
above with the proceeds of the PracticeWorks facility by
internal transfer.
2.5 SECTION 2.2.1. Section 2.2.1 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.2.1 USE OF PROCEEDS. The proceeds of the (i)
Term Loan A shall be used solely to consummate the Real Estate
Acquisition and (ii) Revolving Loan shall be used solely for
consummating Acquisitions to the extent permitted hereunder or
otherwise consented to by Lender (in its sole and absolute
discretion), to pay related transaction costs and for general
working capital purposes.
2.6 SECTION 2.2.3. Section 2.2.3 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
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2.2.3 REBORROWING. Borrowers may not reborrow all
or any portion of the Term Loan A or, from and after the
Second Amendment Effective Date, the Revolving Loan. Subject
to the terms and conditions of this Agreement, Borrowers from
time to time prior to the Second Amendment Effective Date may
reborrow all or any portion of the Revolving Loan which is
repaid or prepaid through the date immediately preceding the
Second Amendment Effective Date.
2.7 SECTION 2.3.1. Section 2.3.1 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.3.1 INTEREST RATES AND PAYMENT. Except as
provided in subsection 2.3.2 and subject to the provision
contained in Section 2.4, (i) the Principal Balance of the
Term Loan A shall bear interest at a per annum rate equal to
the Base Rate, plus one and one-quarter percent (1.25%) and
(ii) the Revolving Loan (including, without limitation, the
Term Loan B Portion thereof) shall bear interest at a per
annum rate equal to the LIBOR or the Base Rate, as the case
may be, plus the Applicable Margin; PROVIDED, THAT,
notwithstanding anything contained in this Loan Agreement or
any other Loan Document to the contrary (including, without
limitation, the provisions of Section 2.5 of the Loan
Agreement), from and after the Second Amendment Effective
Date, Borrowers shall not have the option or right to
maintain, convert or continue, or to request the maintenance,
conversion or continuance of, any LIBOR Rate Loan, and all
Loans thereafter shall be Base Rate Loans (and each LIBOR Rate
Loan that is outstanding on the Second Amendment Effective
Date, if any, shall be converted automatically to a Base Rate
Loan, and Borrowers shall be responsible for any and all
liability in respect of, and required to reimburse Lender for,
any breakage costs or expenses incurred by Lender arising out
of such conversion). Interest shall be payable in arrears on
each Interest Payment Date. Interest also shall be paid on the
date of any payment or prepayment of the Loans pursuant to
Sections 2.6 and 2.8.
2.8 SECTION 2.6.2. Section 2.6.2 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.6.2 REVOLVING LOAN. The Principal Balance of the
Revolving Loan as of the Term Conversion Date shall convert
into a senior amortizing term loan (the Term Loan B Portion of
the Revolving Loan). Such Term Loan B Portion shall be paid in
installments on the dates and in the respective amounts shown
below:
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Amount of Payment (expressed as a
percentage of the Principal Balance of
the Revolving Loan on the
Date of Payment Term Conversion Date)
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October 1, 2001 5.00%
January 1, 2002 5.00%
April 1, 2002 5.00%
July 1, 2002 5.00%
October 1, 2002 5.00%
January 1, 2003 5.00%
April 1, 2003 5.00%
June 30, 2003 65.00%
2.9 SECTION 2.6.3. Section 2.6.3 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.6.3 FINAL PAYMENT. Notwithstanding anything
contained in this Loan Agreement or any other Loan Document to
the contrary, the then remaining Principal Balance of the Term
Loan A and the Term Loan B Portion, and any other sums which
then are due and payable pursuant to the terms of the Loan
Documents or otherwise are outstanding at such time, shall be
due and payable on June 30, 2003.
2.10 SECTION 2.8.1. Clause (c) of Section 2.8.1 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(C) APPLICATION OF VOLUNTARY PREPAYMENTS.
Voluntary partial prepayments of (i) the Term Loan A prior to
the Second Amendment Effective Date shall be applied against
scheduled installments of the Term Loan A in inverse order of
maturity; and (ii) the Loans from and after the Second
Amendment Effective Date shall be applied in the following
order of priority: (a) first, against scheduled installments
of the Term Loan A in inverse order of maturity; and (b) after
the Term Loan A shall have been paid in full, against
scheduled installments of the Term Loan B Portion in inverse
order of maturity. Unless a notice of prepayment indicates
otherwise, amounts voluntarily prepaid shall be applied first
to any Base Rate Loans then outstanding and then to
outstanding LIBOR Rate Loans with the shortest Interest
Periods remaining.
2.11 SECTION 2.8.1. Clause (d) of Section 2.8.1 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(D) INTENTIONALLY OMITTED.
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2.12 SECTION 2.8.2(B). Clause (b) of Section 2.8.2 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(B) DISPOSITIONS. If any Borrower or any
Subsidiary of any Borrower at any time or from time to time
shall make or agree to make a Disposition, then Borrowers
shall promptly notify Lender of such proposed Disposition
(including the amount of the estimated Net Proceeds to be
received by Borrowers and their Subsidiaries in respect
thereof). Borrowers shall deliver, or cause the applicable
Subsidiary of any Borrower to deliver, to Lender, promptly
after receipt, 100% of all Net Proceeds of any Disposition as
a prepayment of the Loans; provided, that, notwithstanding the
foregoing, (i) to the extent the aggregate Net Proceeds of
such Disposition and all other Dispositions occurring during
the then current Fiscal Year of Borrowers and their
Subsidiaries do not exceed $630,000, and Borrowers reasonably
expect such Net Proceeds to be reinvested in productive assets
of a kind then used or useable in the business of Borrowers
and their Subsidiaries within ninety (90) days after receipt
thereof, then Borrowers may use such Net Proceeds for such
purposes; provided, that, if Borrowers do not reasonably
expect such Net Proceeds to be so used or Borrowers fail to so
reinvest such Net Proceeds within such ninety (90) days,
Borrowers shall promptly deliver, or cause the applicable
Subsidiary to deliver, 100% of such Net Proceeds to Lender as
a prepayment of the Loans, and (ii) Borrowers shall be
permitted to receive and retain any Net Proceeds from any
Disposition of their interests in the aircraft in which
InfoCure Corporation owns an interest as of the Second
Amendment Effective Date to the extent the aggregate amount
thereof does not exceed $700,000."
2.13 SECTION 2.8.2(C). Clause (c) of Section 2.8.2 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(C) EQUITY ISSUANCES. If any Borrower or any
Subsidiary of any Borrower shall issue equity securities
(except to the extent an Event of Default would otherwise be
created, the provisions of this subsection (c) shall not apply
to the following: (i) issuances by any Subsidiary of any
Borrower to such Borrower or a wholly-owned Subsidiary of such
Borrower, (ii) issuances of common stock by InfoCure
Corporation to plan participants pursuant to its 401(k) plan
or a comparable Employee Benefits Plan or any employee stock
option plan, (iii) issuances of common stock of InfoCure
Corporation upon the exercise of warrants, (iv) issuances of
common stock by InfoCure Corporation upon conversion or other
retirement of the Indebtedness evidenced by the Thoroughbred
Note, (v) issuances of common stock of InfoCure Corporation to
WebMD in settlement of certain conversion rights of WebMD, if
any, in respect of its $10,000,000 cash investment in InfoCure
Corporation consummated prior to the Second Amendment
Effective Date and (vi) issuances of common stock of InfoCure
Corporation as partial consideration of the acquisition by
PracticeWorks, Inc. of 100% of the equity
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interests of Medical Dynamics, Inc., a Colorado corporation),
Borrowers shall promptly notify Lender of the estimated Net
Issuance Proceeds of such issuance to be received by such
Borrower or such Subsidiary in respect thereof. With respect
to Net Issuance Proceeds from any such issuances by InfoCure
Corporation, if any Event of Default shall exist on the date
of either such issuance or InfoCure Corporation's receipt of
such Net Issuance Proceeds, or if any Event of Default shall
result from the consummation of such issuance, promptly upon
receipt by Borrowers of the Net Issuance Proceeds of such
issuance, Borrowers shall deliver to Lender 100% of such Net
Issuance Proceeds as a prepayment of the Principal Balance.
With respect to Net Issuance Proceeds from any such issuances
by any Borrower (other than InfoCure Corporation, which shall
be subject to the immediately preceding sentence) or any
Subsidiary of any Borrower, promptly upon receipt by Borrowers
or any such Subsidiary of the Net Issuance Proceeds of such
issuance, Borrowers and their Subsidiaries shall deliver to
Lender 100% of such Net Issuance Proceeds as a prepayment of
the Principal Balance. For purposes of this clause (c), Net
Issuance Proceeds shall not include net proceeds from sale or
issuance of equity securities of InfoCure Corporation used to
pay for, or in connection with, Acquisitions permitted
hereunder.
2.14 SECTION 2.8.2(E). Clause (e) of Section 2.8.2 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(E) APPLICATION OF MANDATORY PREPAYMENTS.
Prepayments received by Lender pursuant to this subsection
2.8.2 shall be applied in the following order of priority to
the payment of: (i) any and all sums which are due and payable
pursuant to the terms of the Loan Documents, except the
Principal Balance and accrued and unpaid interest thereon but
specifically including fees payable in accordance with Section
11.4 and subsection 2.8.3; (ii) accrued and unpaid interest on
the portion of the Principal Balance being prepaid; (iii) any
other accrued and unpaid interest which is unpaid; (iv) prior
to the Second Amendment Effective Date , the installments of
the Principal Balance of the Term Loan A in inverse order of
maturity; (v) from and after the Second Amendment Effective
Date, (a) first, the installments of the Principal Balance of
the Term Loan A Portion in inverse order of maturity; and (b)
after the Term Loan A shall have been paid in full, the
installments of the Principal Balance of the Term Loan B in
inverse order maturity. To the extent permitted by the
foregoing sentence, amounts prepaid shall be applied first to
any Base Rate Loans then outstanding and then to outstanding
LIBOR Rate Loan with the shortest Interest Periods remaining.
Together with each prepayment under this subsection 2.8.2,
Borrowers shall pay any amounts required pursuant to
subsection 2.8.3 and Section 11.4."
2.15 SECTION 2.8.3. Section 2.8.3 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
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2.8.3 INTENTIONALLY OMITTED.
2.16 SECTION 2.10. Section 2.10 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.10 UNUSED COMMITMENT FEE. For the period from
and after the Closing Date through and including the day
immediately preceding the Second Amendment Effective Date,
Borrowers shall pay to Lender a fee (the "Unused Commitment
Fee") on the first Business Day of each quarter, commencing
with the first Business Day of October, 1999 and ending on the
first Business Day of April, 2001, in an amount equal to the
product of (i) the amount by which (a) the Revolving Loan
Commitment exceeds (b) the average daily outstanding Principal
Balance of the Revolving Loan during the immediate preceding
quarter (or such other shorter period in respect of the last
payment due on the first Business Day of April, 2001),
multiplied by (ii) one-quarter of one percent (0.25%) per
annum.
2.17 SECTION 2.11. Section 2.11 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
2.11 ANNUAL FEE. Borrowers shall pay to Lender on
the first anniversary of the Closing Date a maintenance and
administration fee equal to the product obtained by
multiplying the amount of the Revolving Loan Commitment in
effect on such date, multiplied by one-quarter of one percent
(0.25%) (the "Annual Fee"), which Annual Fee shall be deemed
fully earned and due and payable on such anniversary.
2.18 SECTION 5.8. Section 5.8 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
5.8 LITIGATION. There is set forth in EXHIBIT
5.8 a description of all actions and suits, arbitration
proceedings and claims pending or, to the best knowledge of
Borrowers, threatened against any Borrower or any Subsidiary
of any Borrower or maintained by any Borrower or any
Subsidiary of any Borrower at law or in equity or before any
Governmental Body. Except as specifically set forth on such
Exhibit 5.8 in respect of any such action, suit, arbitration
proceeding or claim, none of the matters set forth in such
EXHIBIT 5.8, if adversely determined, could have a Material
Adverse Effect.
2.19 SECTION 5.11. Section 5.11 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
5.11 COMPLIANCE WITH APPLICABLE LAWS. Neither any
Borrower nor any Subsidiary of any Borrower is in default in
respect of any judgment, order, writ,
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injunction, decree or decision of any Governmental Body, which
default could have a Material Adverse Effect. Except as
otherwise provided herein, each Borrower and each Subsidiary
of each Borrower is in compliance in all material respects
with all applicable laws, statutes and regulations, including,
without limitation, health-care related laws (including
anti-fee splitting laws, corporate practice of medicine laws,
fraud and abuse laws and HIPAA), all Environmental Laws,
ERISA, ADA and all laws and regulations relating to unfair
labor practices, equal employment opportunity and employee
safety, of all Governmental Bodies (including, without
limitation, the Food and Drug Administration and the United
States Department of Health & Human Services), a violation of
which could have a Material Adverse Effect. No condemnation,
eminent domain or expropriation has been commenced or, to the
best knowledge of Borrowers, threatened against the Property
of any Borrower or any Subsidiary of any Borrower.
2.20 SECTION 5. Section 5 of the Existing Loan Agreement
is amended by adding the following Section 5.25 to such Section 5 in
the appropriate numerical order:
5.25 WARRANTS.
(A) AUTHORITY. InfoCure Corporation has
full corporate power and authority to execute and
deliver the Warrants and to perform all of its
obligations thereunder, and the execution, delivery
and performance thereof have been duly authorized by
all necessary corporate action on its part. Each
Warrant has been duly executed on behalf of InfoCure
Corporation and constitutes the legal, valid and
binding obligation of InfoCure Corporation
enforceable in accordance with its terms.
(B) NO LEGAL BAR. Neither the
execution, delivery or performance of the Warrants
will (a) conflict with or result in a violation of
the articles or certificate of incorporation or
by-laws of InfoCure Corporation, (b) conflict with or
result in a violation of any law, statute,
regulation, order or decree applicable to InfoCure
Corporation or any Affiliate of InfoCure Corporation,
(c) require any consent or authorization or filing
with, or other act by or in respect of, any
Governmental Body, or (d) result in a breach of,
constitute a default under or constitute an event
creating rights of acceleration, termination or
cancellation under any mortgage, lease, contract,
franchise, instrument or other agreement to which
InfoCure Corporation is a party or by which it is
bound.
(C) VALIDITY OF SHARES. When issued
upon the exercise of a Warrant as contemplated
therein, shares of common stock of InfoCure
Corporation will have been validly issued and will be
fully paid and nonassessable. InfoCure Corporation
has reserved for issuance, free of
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preemptive rights, the number of shares of common
stock issuable from time to time upon the exercise of
the Warrants.
2.21 SECTION 7.1. Clause (vi) of Section 7.1 of the
Existing Loan Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
(vi) other unsecured Indebtedness for Borrowed
Money in an aggregate amount not to exceed $1,575,000 at any
one time outstanding (which shall include the Indebtedness
described on EXHIBIT 7.1 hereto); and
2.22 SECTION 7.4. Section 7.4 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.4 CONTINGENT LIABILITIES/OBLIGATIONS. Assume,
guarantee, endorse, contingently agree to purchase, become
liable in respect of any letter of credit, or otherwise become
liable upon the obligation of any Person, except: (i)
liabilities arising from the endorsement of negotiable
instruments for deposit or collection in the ordinary course
of business, (ii) the posting of bonds to secure performance
to the extent necessary in connection with its business and
similar transactions in the ordinary course of business, (iii)
any Borrower may guarantee the Indebtedness of any other
Borrower or any wholly-owned domestic Subsidiary of any
Borrower, and any Subsidiary of any Borrower may guarantee the
Indebtedness of any Borrower or any wholly-owned domestic
Subsidiary of any Borrower to the extent, in each such case,
such underlying Indebtedness so guaranteed is otherwise
permitted under the terms of this Loan Agreement, and (iv)
customary indemnification obligations under Acquisition
Documents and, to the extent entered into in the ordinary
course of business, other contracts and agreements.
2.23 SECTION 7.6. Section 7.6 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.6 CAPITAL EXPENDITURES. Make or incur any
Capital Expenditures (other than (i) Acquisitions permitted
hereunder, (ii) the acquisition on the Closing Date of the
Real Estate that is the subject of the Real Estate Acquisition
Documents and (iii) improvements on such Real Estate to the
extent otherwise permitted hereunder) to the extent the
aggregate amount of all Capital Expenditures of Borrowers and
their Subsidiaries for (a) the twelve-month period ended on
any date occurring on or before July 31, 2000 exceeds (or
would exceed after giving effect to the making thereof)
$8,000,000 and (b) any period set forth below exceeds the
amount set forth below opposite such period:
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Period Maximum Amount
---------------- --------------
Fiscal Year 2001 $4,500,000
Fiscal Year 2002 $4,000,000
Each Fiscal Year Thereafter $4,000,000"
2.24 SECTION 7.14. Section 7.14 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.14 ISSUANCE OF CAPITAL STOCK OR OTHER SIMILAR
INTERESTS. Issue or sell, permit to be issued or sold, or
otherwise consent to the transfer of, any additional capital
stock or equity interests or any interests convertible into or
exercisable for any such capital stock or additional equity
interests, except (i) the issuance of capital stock of
InfoCure Corporation, provided that (a) InfoCure Corporation
shall not be required or permitted to pay cash dividends,
redeem such capital stock or make other distributions with
respect thereto and, without limiting the foregoing, any
preferred stock of InfoCure Corporation so issued shall not
contain, provide for or otherwise have any mandatory
redemption or put rights during the term of this Loan
Agreement or until Borrowers' Obligations shall have been
performed and paid in full and the Commitments shall have
terminated, and (b) Borrowers shall comply with the provisions
of subsection 2.8.2(c), and (ii) the convertible rights
granted pursuant to promissory notes evidencing Subordinated
Indebtedness or other Indebtedness for Borrowed Money
otherwise permitted hereunder.
2.25 SECTION 7.17. Section 7.17 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.17 MINIMUM NET WORTH. Permit Consolidated Net
Worth as of the last day of any quarter set forth below to be
less than the amount set forth below opposite such quarter:
Quarter Ending Minimum Amount
------------------ --------------
September 30, 2000 $76,200,000
December 31, 2000 $69,400,000
March 31, 2001 $31,100,000
June 30, 2001 $27,800,000
September 30, 2001 $24,640,000
December 31, 2001 $21,920,000
March 31, 2002 $19,440,000
June 30, 2002 $17,120,000
September 30, 2002 $15,120,000
December 31, 2002 $23,300,000
March 31, 2003 $25,200,000
June 30, 2003 $27,250,000
The Last Day of each Calendar $27,250,000
Quarter Thereafter
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2.26 SECTION 7.20. Section 7.21 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.20 SUBSIDIARIES. Create or permit to exist any
Subsidiary, except (i) InfoCure Corporation may permit the
existence of InfoCure Systems, Thoroughbred, SDM Acquisition,
Inc., a Michigan corporation, and XxxxxXxxxx.xxx, Inc., a
Delaware corporation, and, prior to the Second Amendment
Effective Date, the Restricted Foreign Subsidiaries and
PracticeWorks and PracticeWorks Systems; and (ii) wholly-owned
domestic Subsidiaries in connection with Acquisitions
permitted hereunder or otherwise consented to by Lender, in
its sole and absolute discretion, provided each such
Subsidiary shall have executed and delivered all agreements,
documents and instruments required under Section 6.15.
2.27 SECTION 7.21. Section 7.21 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.21 ACQUISITIONS. Consummate, or permit any of
its Subsidiaries to consummate, any Acquisitions, or enter
into any letter of intent or other binding agreement or
contract in contemplation thereof, or any other agreement,
contract or written understanding relating thereto that does
not provide for a financing contingency and that the
contemplated acquisition remains subject to Lender's consent
and approval.
2.28 SECTION 7.22. Section 7.22 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.22 MINIMUM CURRENT RATIO. Permit the ratio of
(i) consolidated current assets of Borrowers and their
Subsidiaries (other than the Restricted Foreign Subsidiaries)
as of any date to (ii) consolidated current liabilities of
Borrowers and their Subsidiaries, less, to the extent included
in such consolidated current liabilities, (a) the amount of
so-called deferred revenues and customer deposits of Borrowers
as of such date and (b) current maturities of long term debt
to the extent attributable to or otherwise constituting
Borrowers' Obligations, in each case as accurately reflected
on the financial statements of Borrowers and their
Subsidiaries, determined in accordance with GAAP as of such
date, to be less than 1.00 to 1.00.
2.29 SECTION 7.23. Section 7.23 of the Existing Loan
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
7.23 MINIMUM LIQUIDITY. Permit the sum of (i)
cash and Cash
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Equivalents of Borrowers and their Subsidiaries (other than
Restricted Foreign Subsidiaries) as of the last day of any
quarter set forth below, plus (ii) the lesser of (a) the
aggregate amount of cash proceeds that shall be immediately
available to InfoCure Corporation (or immediately available to
InfoCure Corporation on the next "Settlement Date" (as defined
in the Common Stock Purchase Agreement)) in accordance with
and under the Common Stock Purchase Agreement (subject to no
conditions or consent or approval rights of any Person
thereunder that shall not have actually been satisfied as of
such last day) in the event, or, if not, as if InfoCure
Corporation shall have elected to "Draw Down" (as defined in
the Common Stock Purchase Agreement) on such last day (net of
out-of-pocket costs and expenses paid or incurred in
connection therewith by Borrower) and (b) $2,000,000, to be
less than the amount set forth below opposite such date:
Date Minimum Amount
------------------ --------------
September 30, 2000 $15,800,000
December 31, 2000 $12,300,000
March 31, 2001 $ 2,600,000
June 30, 2001 $ 2,100,000
September 30, 2001 $ 3,200,000
December 31, 2001 $ 2,000,000
March 31, 2002 $ 1,600,000
June 30, 2002 $ 1,800,000
September 30, 2002 $ 2,450,000
December 31, 2002 $ 3,390,000
March 31, 2003 $ 5,380,000
June 30, 2003 $ 8,122,000
and Thereafter
2.30 SECTION 8.1.4. Section 8.1.4 of the Existing Loan
Agreement is amended by deleting the references to "$1,000,000" therein
contained and substituting "$500,000" in lieu thereof.
2.31 SECTION 8.1.6. Section 8.1.6 of the Existing Loan
Agreement is amended by deleting the references to "$750,000" therein
contained and substituting "$500,000" in lieu thereof.
2.32 SECTION 8.1. Section 8.1 of the Existing Loan
Agreement is amended by adding the following Sections 8.1.13, 8.1.14
and 8.1.15 to such Section 8.1 in the appropriate numerical order:
8.1.13 TRANSITION SERVICES AGREEMENT. The
Transition Services Agreement or any of the material terms,
provisions, agreements or covenants set
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forth in the Transition Services Agreement shall, for any
reason at any time, be revoked or invalidated, or otherwise
cease to be in full force and effect, or any Borrower, any
Subsidiary of any Borrower or PracticeWorks shall contest in
any manner the validity or enforceability thereof, or their
obligations or liabilities thereunder, except in connection
with the termination thereof due to reasons other than the
exercise of rights of termination resulting from a party's
failure to comply with the terms thereof and to the extent
such termination could not reasonably be expected to have, and
does not have, a material and adverse effect on the business
of the Borrowers.
and
8.1.14 CERTAIN QUALIFICATIONS. If for any reason at
any time (i) the Contribution, the ISI Merger and/or the
Distribution shall cease or fail to qualify as tax-free
"reorganizations" under Section 368(a)(1)(D) of the Code or
otherwise fail to qualify for non-recognition treatment under
the Code or applicable state law or otherwise; or (ii) the
Distribution shall cease or fail to qualify as a tax-free
transaction described in Section 355 of the Code or applicable
state law or otherwise; or (iii) any Borrower or any
Subsidiary of any Borrower shall incur any material and
adverse tax consequences or liabilities due to deferred
intercompany gains and excess loss accounts, if any, as a
result of the Distribution or the transactions undertaken in
connection therewith or otherwise.
and
8.1.15 COMMON STOCK PURCHASE AGREEMENT. The Common
Stock Purchase Agreement or any of the material terms,
provisions, agreements or covenants set forth in the Common
Stock Purchase Agreement shall, for any reason at any time, be
revoked or invalidated, or otherwise cease to be in full force
and effect, or any Borrower, any Subsidiary of any Borrower or
any other Person party thereto shall contest in any manner the
validity or enforceability thereof, or their obligations and
liabilities thereunder.
2.33 SECTION 12.1. Section 12.1 of the Existing Loan
Agreement is amended by deleting the current address and telecopy
number for Borrowers and substituting the following in lieu thereof:
To Borrowers: c/o InfoCure Corporation
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
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2.34 EXHIBITS TO THE LOAN AGREEMENT. Exhibit 1.1(A),
Exhibit 1.1(D), Exhibit 5.3.1, Exhibit 5.5.1, Exhibit 5.5.2, Exhibit
5.5.3, Exhibit 5.5.4, Exhibit 5.5.5, Exhibit 5.5.6, Exhibit 5.5.8,
Exhibit 5.8, Exhibit 5.12, Exhibit 5.19.1 and Exhibit 7.1 currently
attached to the Loan Agreement are deleted in their entirety and the
counterparts thereof attached to this Second Amendment are substituted
in lieu thereof and, by this reference, are made a part thereof.
3. CONSENT TO CERTAIN TRANSACTIONS. Subject to the terms and
conditions set forth in this Second Amendment, Obligors and FINOVA hereby agree
and acknowledge, and consent to, the following:
3.1 NAME CHANGE. From and after the Effective Date,
FINOVA shall be deemed to have consented to the name change by InfoCure
Corporation to VitalWorks Inc.; provided, that, (i) InfoCure
Corporation shall provide FINOVA with at least ten (10) Business Days'
prior written notice of the consummation of such name change and (ii)
InfoCure Corporation and its Subsidiaries shall at any time and from
time to time take, do, execute, acknowledge and deliver, or cause to be
taken, done, executed, acknowledged and delivered, all such acts,
agreements, documents and instruments as may be required by FINOVA to
effectuate such name change and preserve the priority and perfection of
the Liens granted to FINOVA under the Collateral Documents, including,
without limitation, (i) the execution and delivery of UCC financing
statements and amendments to existing UCC financing statements, (ii)
the delivery to FINOVA of copies of all resolutions and all recorded
agreements, documents and instruments filed with any Governmental Body
(including, without limitation, the Delaware Secretary of State) to
effectuate such name change, certified by a duly authorized officer on
behalf of InfoCure Corporation, and (iii) the delivery to FINOVA of
reissued stock certificates evidencing all of the Subsidiary Equity
Interests and naming InfoCure Corporation (i.e., after the consummation
of such name change) as the holder thereof, together with stock powers
executed in blank and irrevocable proxies coupled with interest. From
and after the effective date of such name change, all reference to
InfoCure Corporation contained in the Loan Agreement or the other Loan
Documents shall be deemed to have been amended to refer to InfoCure
Corporation, after giving effect to such name change, or VitalWorks
Inc., as the context may dictate. The failure of any Obligor to comply
with the terms and conditions of this Section 3.1 shall constitute an
immediate Event of Default, without further action or notice by or on
behalf of FINOVA or any other Person.
3.2 DISTRIBUTION TRANSACTIONS. From and after the
Effective Date, FINOVA shall be deemed to have consented to the
formation of PracticeWorks Systems (a wholly-owned domestic Subsidiary
of InfoCure Systems prior to the Contribution), the Contribution, and
the Distribution and the execution, delivery and performance of the
Distribution Transaction Documents. Upon the consummation of such
transactions, but subject to Section 17 hereof, FINOVA shall (i) be
deemed to have released its Lien on the assets and other Property of
PracticeWorks and its Subsidiaries solely as such Lien secures
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obligations under the Loan Agreement and the other Loan Documents (but
specifically excluding any obligations, liabilities and indebtedness
evidenced or to be evidenced by the PracticeWorks Credit Facility) and
to have released such Persons from the Loan Documents (except to the
extent any such provisions (including, without limitation,
indemnification provisions and representations, warranties and
covenants) expressly survive the termination of such Loan Documents or
the release of such Persons) and (ii) execute and deliver to Borrowers
and their Subsidiaries, upon request and at Borrowers' sole cost and
expense, such agreements, documents and instruments reasonably
necessary to evidence the release of the security interests in and
Liens on the assets and other Property of PracticeWorks under the
credit facilities evidenced by the Loan Agreement.
3.3 ISI MERGER AND SUBSIDIARY MERGERS. From and after the
Effective Date, FINOVA shall be deemed to have consented to the ISI
Merger and the Subsidiary Mergers. InfoCure Corporation, InfoCure
Systems and their respective Subsidiaries shall at any time and from
time to time take, do, execute, acknowledge and deliver, or cause to be
taken, done, executed, acknowledged and delivered, all such acts,
agreements, documents and instruments as may be required by FINOVA to
effectuate the reorganization, the name change and the other related
transactions, and preserve the priority and perfection of the Liens
granted to FINOVA under the Collateral Documents, including, without
limitation, (i) the execution and delivery of UCC financing statements
and amendments to existing UCC financing statements, (ii) the delivery
to FINOVA of copies of all resolutions and all recorded agreements,
documents and instruments filed with any Governmental Body (including,
without limitation, the Georgia Secretary of State or Cooperative
Authority, the New Hampshire Secretary of State and the Kansas
Secretary of State) to effectuate such transactions, certified by a
duly authorized officer on behalf of InfoCure Corporation, and (iii)
the delivery to FINOVA of reissued stock certificates evidencing all of
the Subsidiary Equity Interests of InfoCure Systems and naming InfoCure
Corporation (i.e., after the consummation of such transactions) as the
holder thereof, together with stock powers executed in blank and
irrevocable proxies coupled with interest. From and after the effective
date of such transactions, all references to InfoCure Systems
contained in the Loan Agreement or the other Loan Documents shall be
deemed to have been amended to refer to InfoCure Corporation, after
giving effect to such transactions as the context may dictate. The
failure of any Obligor to comply with the terms and conditions of this
Section 3.3 shall constitute an immediate Event of Default, without
further action or notice by or on behalf of FINOVA or any other Person.
3.4 PRACTICEWORKS CREDIT FACILITY. From and after the
Effective Date, FINOVA shall be deemed to have consented to the
PracticeWorks Credit Facility and the transactions contemplated
thereunder.
3.5 MERGER OF THOROUGHBRED, SDM ACQUISITION, INC. AND
XXXXXXXXXX.XXX, INC. WITH AND INTO INFOCURE CORPORATION. From and after
the Effective Date, FINOVA shall be deemed to have consented to the
merger of Thoroughbred, SDM Acquisition, Inc.
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and XxxxxXxxxx.xxx, Inc. with and into InfoCure Corporation, with
InfoCure Corporation being the surviving entity in each case; provided,
that, (i) InfoCure Corporation shall provide FINOVA with at least ten
(10) Business Days prior written notice of the consummation of any such
merger and (ii) InfoCure Corporation, Thoroughbred, SDM Acquisition,
Inc., XxxxxXxxxx.xxx, Inc. and their respective Subsidiaries shall at
any time and from time to time take, do, execute, acknowledge and
deliver, or cause to be taken, done, executed, acknowledged and
delivered, all such acts, agreements, documents and instruments as may
be required by FINOVA to effectuate such mergers, and preserve the
priority and perfection of the Liens granted to FINOVA under the
Collateral Documents, including, without limitation, (a) the execution
and delivery of UCC financing statements and amendments to existing UCC
financing statements, and (b) the delivery to FINOVA of copies of all
resolutions and all recorded agreements, documents and instruments
filed with any Governmental Body (including, without limitation, the
Georgia Secretary of State or Cooperative Authority) to effectuate such
mergers, certified by a duly authorized officer on behalf of InfoCure
Corporation. From and after the effective date of such mergers, all
references to Thoroughbred, SDM Acquisition, Inc. and XxxxxXxxxx.xxx,
Inc. contained in the Loan Agreement or the other Loan Documents shall
be deemed to have been amended to refer to InfoCure Corporation, after
giving effect to such transactions as the context may dictate. The
failure of any Obligor to comply with the terms and conditions of this
Section 3.5 shall constitute an immediate Event of Default without
further action or notice by or on behalf of FINOVA or any other Person.
3.6 CHANGE IN MANAGEMENT EVENT OF DEFAULT. For purposes
of Section 8.1.11 of the Loan Agreement, FINOVA agrees that (i) Xxxxxx
Xxxxx is an Approved Replacement for Xxxxxxxxx Fine in his capacities
as President, Chief Executive Officer and a member of the Board of
Directors of InfoCure Corporation, (ii) Xxxxxxxxx Fine is an Approved
Replacement for Xxxxxxx X. Xxxxxxx in his capacity as Chairman of the
Board of Directors of InfoCure Corporation and (iii) Xxxxxxx Xxxxx is
an Approved Replacement for Xxxxx X. Xxxxx in his capacities as an
Executive Vice President and a member of the Board of Directors of
InfoCure Corporation.
3.7 CHIEF EXECUTIVE OFFICE. FINOVA hereby waives
application of clause (i) of Section 7.10 of the Loan Agreement in
connection with the change of location of the chief executive offices
of Borrowers and their Subsidiaries to 000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000; provided, that, Borrowers and their
Subsidiaries shall comply with the remaining provisions of such Section
7.10.
4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Second
Amendment shall be subject to the satisfaction of all of the following
conditions in a manner, form and substance satisfactory to FINOVA:
4.1 REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of Borrowers and their respective
Subsidiaries set forth in the Loan Documents, as amended
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hereby, shall be true and correct in all material respects (except to
the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such
earlier date).
4.2 DISTRIBUTION TRANSACTIONS. The transactions
contemplated by the Distribution Transaction Documents to have closed
on or before the Effective Date shall have closed in the manner
contemplated thereby, and such Distribution Transaction Documents shall
otherwise be in form and substance satisfactory to FINOVA. Without
limiting the foregoing, the Distribution and the Contribution shall
have been consummated in accordance with applicable law and the terms
of the Distribution Transaction Documents.
4.3 PRACTICEWORKS CREDIT FACILITY. The transactions
contemplated under the PracticeWorks Credit Facility shall have closed
in the manner contemplated thereby (and all conditions precedent in
respect thereof shall have been satisfied or otherwise effectively
waived thereunder), and PracticeWorks shall have caused a prepayment of
the Loans (plus accrued and unpaid interest through the day immediately
preceding the Second Amendment Effective Date) under the Loan Agreement
in an amount not less than $21,660,167.00.
4.3 DELIVERY OF DOCUMENTS. The following shall have been
delivered to FINOVA, each duly authorized and executed and in form and
substance satisfactory to FINOVA:
(1) (i) this Second Amendment, (ii) any amended
and substituted Notes, as FINOVA may request and (iii)
warrants that amend and restated the Warrants in existence
immediately prior to the Effective Date;
(2) such evidence of the authority of Borrowers
and their Subsidiaries to execute, deliver and perform the
obligations under this Second Amendment and the other
agreements, documents and instruments to be executed and
delivered by Borrowers and their Subsidiaries pursuant to the
terms of this Second Amendment, as FINOVA may require,
including but not limited to certified copies of resolutions
duly adopted by the board of directors of each Borrower and
its Subsidiaries authorizing the execution and delivery of,
and performance of its obligations under, such agreements,
documents and instruments by such Borrower or Subsidiary; and
(3) good standing certificates for each Borrower
and each Subsidiary of each Borrower from each of the states
in which such Person is organized, maintains facilities or
business locations or otherwise conducts material business,
each dated a recent date prior to the Closing Date;
(4) copies of (i) the articles of incorporation
of each Borrower and each Subsidiary of each Borrower,
together with all current and proposed amendments thereto,
certified by the Secretary of State of the state in which each
such Person is
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organized as of a recent date prior to the Closing Date; (ii)
the by-laws of each Borrower and each Subsidiary of each
Borrower, together with all current and proposed amendments
thereto, certified by the corporate secretary of each such
Person, (iii) copies of resolutions adopted by the board of
directors of each Borrower and each Subsidiary of each
Borrower, each authorizing the execution and delivery by each
such Borrower of the Loan Documents and the Related
Transaction Documents to which each such Person is a party and
the consummation of the transactions contemplated thereby,
certified as of the Closing Date by the corporate secretary of
each such Person;
(5) signature and incumbency certificates of the
officers of each Borrower and each Subsidiary of each
Borrower;
(6) a collateral assignment of the Distribution
Transaction Documents;
(7) such amendments or supplements to Mortgages
in favor of FINOVA covering Real Estate owned by Borrowers and
their Subsidiaries and such date-down or similar endorsements
in respect of the related title insurance policies previously
issued to FINOVA;
(8) except to the extent previously delivered to
FINOVA, certified copies or executed originals of each of the
following:
(a) all Leases;
(b) all Licenses;
(c) all material License Agreements;
(d) all material Operating Agreements;
(e) all Distribution Transaction
Documents and all agreements,
documents and instruments
evidencing or otherwise relating to
the ISI Merger and the Subsidiary
Mergers; and
(f) all instruments and documents
evidencing Permitted Senior
Indebtedness existing as of the
Closing Date;
(9) except to the extent previously delivered to
FINOVA, a Landlord Consent from each Landlord under each
Lease;
(10) original stock certificates representing the
Subsidiary Equity Interests as of the date hereof and
assignments separate from certificate executed in blank;
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(11) a perfection certificate or due diligence
request form, in form acceptable to FINOVA, certified on
behalf of Borrowers as being true, correct and complete; and
(12) such other agreements, instruments,
documents, certificates, consents, waivers and opinions as
Lender reasonably may request.
4.4 COMMON STOCK PURCHASE AGREEMENT. FINOVA shall have
received a copy of the Common Stock Purchase Agreement (and any
amendments thereto), certified by a duly authorized officer of the
Borrowers as being true, complete and correct.
4.5 APPROVALS. The approval and/or consent shall have
been obtained from all Persons whose approval or consent is necessary
or required to enable Borrowers and their Subsidiaries to enter into
this Second Amendment, the Distribution Transaction Documents and the
agreements, documents and instruments delivered in connection herewith
and to perform their obligations hereunder.
4.6 MATERIAL ADVERSE CHANGE. No event shall have occurred
since the date on which financial statements shall have been most
recently delivered to FINOVA under the terms of the Existing Loan
Agreement which has had or reasonably could be expected to have a
Material Adverse Effect.
4.7 PERFORMANCE; NO DEFAULT. Borrowers and their
Subsidiaries shall have performed and complied with all agreements,
covenants and conditions contained in the Loan Documents and the
Related Transaction Documents to be performed by or complied with by
Borrowers and their Subsidiaries prior to the date hereof, and no Event
of Default or Incipient Default shall exist.
4.8 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the execution and delivery of this
Second Amendment and the Distribution Transaction Documents by
Borrowers and their Subsidiaries shall be satisfactory to FINOVA, and
FINOVA shall have received all such counterpart originals or certified
or other copies of evidence of such as FINOVA may request.
4.9 PAYMENT OF FEES AND EXPENSES. Borrowers shall have
paid (i) to FINOVA, a non-refundable amendment fee in the amount of
$315,000, which fee shall be deemed fully earned on the date hereof,
and (ii) all other fees and expenses of FINOVA incurred in connection
with this Second Amendment and the Distribution Transaction Documents,
including, without limitation, attorneys' fees, costs and expenses.
4.10 OPINIONS OF COUNSEL. FINOVA shall have received (i)
an opinion dated the Effective Date from Xxxxxx, Xxxxxxx & Xxxxxx,
counsel to Borrowers and their
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Subsidiaries, (ii) an opinion from King & Spalding, and (iii) such
other opinions as Lender may request (including, without limitation, an
opinion issued by Connecticut counsel), in each case in form and
substance and covering such matters as FINOVA and/or its counsel may
request. Further, FINOVA shall have received copies of all solvency
opinions and fairness opinions issued in connection with the
Distribution.
4.11 APPROVAL OF LOAN DOCUMENTS AND SECURITY INTERESTS.
FINOVA shall have received evidence that the approval or consent shall
have been obtained from all Governmental Bodies and all other Persons
whose approval or consent is required to enable Borrowers and their
Subsidiaries to (a) enter into and perform their respective obligations
under the Loan Documents and the Related Transaction Documents to which
each such Person is a party and (b) grant the Security Interests to
FINOVA.
4.12 SECURITY INTERESTS. All filings of Uniform Commercial
Code financing statements, all recordings of Mortgages and all other
filings and actions necessary to perfect and maintain the Security
Interests as first, valid and perfected Liens in the Property covered
thereby, subject only to Permitted Prior Liens, shall have been filed
or taken and FINOVA shall have received such UCC, state and federal tax
Lien, pending suit, judgment and other Lien searches as it deems
necessary to confirm the foregoing.
4.13 LICENSES. FINOVA shall have received evidence that
(a) each Borrower and each Subsidiary of each Borrower is the licensee
of all Licenses necessary for the operation of its business and (b)
such Licenses are in full force and effect as of the Effective Date and
no event has occurred which could result in the termination, revocation
or non-renewal of any such License.
4.13 USE OF ASSETS. FINOVA shall be satisfied that each
Borrower at all times shall be entitled to the use and quiet enjoyment
of all Property necessary for the continued ownership and operation of
the business conducted by such Borrower, including, without limitation,
the use of equipment, fixtures, Licenses, offices and means of ingress
and egress thereto, necessary for the operation of such business.
4.14 BROKER FEES. If the services of a broker or other
agent have been used in connection with the transactions contemplated
hereby, all fees owed to such broker or agent shall have been paid by
Borrowers.
4.15 INSURANCE. Borrowers shall have delivered to FINOVA
evidence satisfactory to Lender (i) of flood insurance with respect to
each parcel of Real Estate other than a parcel as to which Borrowers
have supplied FINOVA evidence that the improvements located on such
parcel are not in a flood hazard area and (ii) that all insurance
coverage required pursuant to Section 6.6 of the Loan Agreement is in
full force and effect and all premiums then due thereon have been paid
in full.
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4.16 DUE DILIGENCE. FINOVA shall have approved the results
of such due diligence review with respect to the Borrowers' assets,
liabilities and business as FINOVA may elect to perform.
4.17 THIRD PARTY CONSENTS. Borrowers shall have obtained
and delivered to FINOVA all consents deemed by FINOVA to be necessary
to permit the secured financing transaction contemplated by this
Amendment to be consummated in accordance herewith and the other Loan
Documents.
4.18 FINANCIAL, TAX AND LITIGATION. FINOVA shall have
received and approved such financial statements and state and federal
tax returns of the Borrowers and their respective Affiliates as FINOVA
shall specify, each certified by the Person to which it pertains as
being complete and accurate in all material respects and not misleading
in any material respect, and tax, lien and litigation searches on
Borrowers and their Affiliates. FINOVA shall have received from each
Borrower and approved a comprehensive disclosure of the nature,
procedural status and projected outcome of each suit, action or other
proceeding or investigation that is pending or threatened by or against
any Borrower or any of their Subsidiaries or against of their
respective assets as of the Effective Date.
4.19 INSOLVENCY. None of the Borrowers shall have (a)
instituted any proceedings under any chapter of the Federal Bankruptcy
Code or under any other law relating to the estates of insolvents, (b)
instituted any action or proceeding for the purpose of determining
obligations to its creditors or procuring a settlement or distribution
of any of its assets to creditors or otherwise, (c) initiated any
proceedings for its liquidation, reorganization or readjustment, (d)
become obligated to do any of the foregoing or involuntarily become the
subject of any of the foregoing actions or proceedings or (e) become
unable to pay its debts as they mature.
4.20 SATISFACTION OF FINOVA'S COUNSEL. All legal matters
incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for FINOVA.
The date on which all of the conditions set forth in this Section 4 shall have
satisfied or waived in writing by FINOVA shall be deemed to be the "Effective
Date" of this Second Amendment. The execution and delivery of this Second
Amendment by Borrowers and their respective Subsidiaries shall constitute a
representation and warranty by such Persons to FINOVA that the conditions set
forth in Sections 4.1, 4.2, 4.3, 4.5, 4.6, 4.7, 4.8, 4.13, 4.14, 4.15 and 4.19
above have been satisfied in all respects.
5. REFERENCES. From and after the Effective Date, all references
in the Existing Loan Agreement and the other Loan Documents to (i) the "Loan
Agreement" or such Loan Document shall be deemed to refer to the Existing Loan
Agreement or such Loan Document, as applicable, as amended hereby, and (ii) a
term defined in the Existing Loan Agreement shall be deemed to refer to such
defined term as amended by this Second Amendment. This Second Amendment shall
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constitute a Loan Document.
6. REPRESENTATIONS AND WARRANTIES. Each Borrower and each
Subsidiary of each Borrower hereby confirms to FINOVA that the representations
and warranties set forth in the Existing Loan Agreement and the other Loan
Documents, as amended by this Second Amendment, are true and correct in all
respects as of the date hereof (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date), and shall be deemed to be remade as of the
date hereof. Each Borrower and each Subsidiary of each Borrower hereby
represents and warrants to FINOVA that (i) such Person has full power and
authority to execute and deliver this Second Amendment and the other agreements,
documents and instruments delivered in connection herewith and to perform its
obligations hereunder and thereunder, (ii) upon the execution and delivery
hereof and thereof, this Second Amendment and such other agreements, documents
and instruments shall be valid, binding and enforceable upon such Person in
accordance with its terms, (iii) the execution and delivery of this Second
Amendment and such other agreements, documents and instruments do not and will
not contravene, conflict with, violate or constitute a default under (A) the
articles or certificate or incorporation or bylaws or other constituent
documents of such Person, (B) any subordination agreement executed in connection
therewith or (C) any applicable law, rule, regulation, judgment, decree or order
or any agreement, indenture or instrument to which such Person is a party or is
bound or which is binding upon or applicable to all or any portion of such
Person's Property, (iv) no Incipient Default or Event of Default exists
(excluding any Incipient Default or Event of Default arising under the Real
Estate/Macon Mortgage and related documents due to the consummation of the ISI
Merger), (v) such Person's Property is free and clear of all Liens other than
Permitted Liens and (vi) no such Person has Indebtedness for Borrowed Money
except as otherwise permitted under the Existing Loan Agreement, as amended
hereby. Each Borrower represents and warrants to FINOVA that (y) the Principal
Balance of the Term Loan A is $7,144,486.12 as of the Second Amendment Effective
Date and (z) the outstanding principal balance of the Thoroughbred Note, plus
accrued and unpaid interest through December 31, 2000, is $935,000.09 (less
potential offsets claimed by Borrowers) as of the Second Amendment Effective
Date. Each Borrower and each Subsidiary of each Borrower hereby represent and
warrant to FINOVA that neither any Borrower nor any Subsidiary of any Borrower
voluntarily or involuntarily is consummating the transactions contemplated
hereunder or any of the Related Transaction Documents, or making any transfer or
incurring any obligation contemplated thereby, with actual intent to hinder,
delay or defraud any entity to which any Borrower or any such Subsidiary was or
became, on or after the Effective Date, indebted.
7. COSTS AND EXPENSES. Each Borrower jointly and severally agrees
to reimburse FINOVA for all fees and expenses incurred in the preparation,
negotiation and execution of this Second Amendment and the consummation of the
transactions contemplated hereby, including, without limitation, the fees and
expenses of counsel for FINOVA.
8. NO FURTHER AMENDMENTS; RATIFICATION OF LIABILITY. Except as
amended hereby, the Existing Loan Agreement and each of the other Loan Documents
shall remain in full force and
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effect in accordance with their respective terms. Each Borrower and each
Subsidiary of each Borrower (other than PracticeWorks and its Subsidiaries after
giving effect to the Distribution) hereby ratifies and confirms its liabilities,
obligations and agreements under the Existing Loan Agreement and the other Loan
Documents, all as amended by this Second Amendment, and the Liens created
thereby and the guarantees made by such Persons, as applicable, and acknowledges
that (i) it has no defenses, claims or set-offs to the enforcement by FINOVA of
such liabilities, obligations and agreements, (ii) FINOVA has fully performed
all obligations to such Persons which FINOVA may have had or has on and as of
the date hereof and (iii) other than as specifically set forth herein, FINOVA
does not waive, diminish or limit any term, condition or covenant contained in
the Existing Loan Agreement, as amended, or any of the other Loan Documents.
FINOVA's agreement to the terms of this Second Amendment shall not be deemed to
establish or create a custom or course of dealing among FINOVA, Borrowers and
their Subsidiaries.
9. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument.
10. FURTHER ASSURANCES. Each Borrower and each Subsidiary of each
Borrower covenants and agrees that it will at any time and from time to time do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts, documents and instruments as
reasonably may be required by FINOVA in order to effectuate fully the intent of
this Second Amendment.
11. SEVERABILITY. If any term or provision of this Second
Amendment or the application thereof to any party or circumstance shall be held
to be invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the validity, legality and enforceability of the remaining terms
and provisions of this Second Amendment shall not in any way be affected or
impaired thereby, and the affected term or provision shall be modified to the
minimum extent permitted by law so as most fully to achieve the intention of
this Second Amendment.
12. CAPTIONS. The captions in this Second Amendment are inserted
for convenience of reference only and in no way define, describe or limit the
scope or intent of this Second Amendment or any of the provisions hereof.
13. INDEMNITY. Each Obligor agrees that its obligation to
indemnify and hold FINOVA harmless as set forth in the Loan Agreement and the
other Loan Documents shall include an obligation to indemnify and hold FINOVA
harmless in respect of any and all liabilities, obligations, losses, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever incurred by FINOVA, whether direct, indirect or consequential,
as a result of or arising from or relating to any proceeding by, or on behalf of
any Person, including, without limitation, officers, directors, agents,
trustees, creditors, partners or shareholders of any of Borrowers or their
Subsidiaries, whether threatened or initiated, asserting any claim for legal or
equitable remedy under any statute, regulation or common law principle arising
from or in connection with the Contribution,
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the ISI Merger, the Distribution and/or the negotiation, preparation, execution,
delivery, performance, administration and enforcement of any agreement, document
or instrument executed in connection therewith, including, without limitation,
this Second Amendment and the Distribution Transaction Documents (including,
without limitation, for any failure of the Distribution to be consummated or
otherwise of full force and effect or of the Contribution, the ISI Merger and/or
the Distribution to qualify as a tax-free reorganization under Section
368(a)(1)(D) of the Code or to otherwise qualify for non-recognition treatment
under the Code and/or the Distribution to qualify as a tax-free transaction
described in Section 355 of the Code). The foregoing indemnity shall survive the
payment in full of Borrowers' Obligations and the termination of the Loan
Agreement.
14. GOVERNING LAW. This Second Amendment shall be governed by and
construed in accordance with the internal laws (without regard to conflict of
laws provisions) and decisions of the State of Arizona.
15. NO NOVATION. Nothing herein is intended or shall be deemed to
constitute a novation of the Loan Agreement or any of the other Loan Documents.
16. ADDITIONAL AGREEMENTS. Reference hereby is made to that
certain Letter Agreement dated as of July 31, 2000 (the "Letter Agreement")
among Borrowers and FINOVA. Borrowers represent and warrant to FINOVA that, as
of the Second Amendment Effective Date, the aggregate outstanding principal
balance of the Notes (as defined in the Letter Agreement ) is $12,175,391.62.
Borrowers agree and acknowledge that (i) Borrowers shall make a mandatory
prepayment of the Loans upon receipt of any amounts due thereunder and, without
limiting the foregoing, on the currently scheduled maturity date of each such
Note in an amount equal to the then outstanding principal balance of such Notes,
plus all accrued and unpaid interest thereon, and (ii) such Letter Agreement
remains in full force and effect, and any default by any Borrower thereunder or
any failure of any Borrower to comply with the terms, conditions, agreements and
covenants therein contained shall constitute an immediate Event of Default,
without notice or other action by or on behalf of FINOVA or any other Person.
Each Borrower represents and warrants that the material economic and other terms
of such Notes are described on Schedule I hereto, which schedule sets forth the
payee and the maker under, and the original principal amount, the current
outstanding principal amount, the interest rate and the maturity date of, such
Notes.
17. UNWIND AGREEMENT. If for any reason at any time the
Distribution shall fail, shall fail to be consummated or shall be unwound,
terminated, repealed or otherwise not of full force and effect, then the
Borrowers agree, and agree to cause their Subsidiaries, to (a) take such action
as FINOVA may require, if any, in its sole and absolute discretion, to unwind or
otherwise amend and modify the transactions contemplated by this Second
Amendment and/or evidenced by the PracticeWorks Credit Facility and (b) execute
and deliver such agreements, documents and instruments, and procure the issuance
of such legal opinions, in each case as FINOVA may require in its sole and
absolute discretion. The Borrowers acknowledge that the agreements and covenants
contained in this Section 17 constitute a material inducement to FINOVA's
agreement to execute and deliver, and consent to the transactions contemplated
by, this Second Amendment. All costs,
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expenses and fees incurred by FINOVA and its representatives under this Section
17 shall be borne solely by the Borrowers, on a joint and several basis, and
shall be due and payable by Borrowers to FINOVA on demand. The failure of any
Borrower or any Subsidiary of any Borrower, or any debtor, guarantor, borrower
or other obligor under the PracticeWorks Credit Facility, to comply with the
terms and conditions of this Section 17 shall constitute an immediate Event of
Default, without further action or notice by or on behalf of FINOVA or any other
Person.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, this Second Amendment has been executed and
delivered by each of the parties hereto by a duly authorized officer of each
such party on the date first set forth above. This Second Amendment shall be
deemed to have been delivered and accepted in the State of Arizona.
INFOCURE CORPORATION;
THOROUGHBRED ACQUISITION, INC.; and
INFOCURE SYSTEMS, INC.
By: /s/ Xxxxxxxxx X. Fine
------------------------------------------
------------------------------------------
A duly authorized officer of each Borrower
SDM ACQUISITION, INC. AND
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxxxx X. Fine
------------------------------------------
A duly authorized officer of each such
Person
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By: /s/ Xxxx Xxxxxx
------------------------------------------
Vice President
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ACKNOWLEDGMENT AND AGREEMENT
Each of the undersigned hereby agrees, acknowledges, represents,
warrants and covenants, as the case may be, in favor of the FINOVA as follows:
(i) such Person, prior to the consummation of the
Distribution, is a Subsidiary of InfoCure Corporation and, after giving
effect to the Distribution, shall cease to be a Subsidiary of InfoCure
Corporation and (other than PracticeWorks) shall be a Subsidiary of
PracticeWorks;
(ii) such Person acknowledges the foregoing Second
Amendment and consents to its terms;
(iii) without limiting the foregoing, such Person agrees to
comply with the terms and provisions of Section 17 of the foregoing
Second Amendment and acknowledges that FINOVA is relying on such
agreement, and such agreement is a material inducement of FINOVA, in
agreeing to enter into the foregoing Second Amendment;
(iv) such Person covenants and agrees that it will at any
time and from time to time do, execute, acknowledge and deliver, or
will cause to be done, executed, acknowledged and delivered, all such
further acts, documents and instruments as reasonably may be required
by FINOVA in order to effectuate fully the intent of the Second
Amendment and this Acknowledgment and Agreement; and
(v) without limiting the foregoing, but notwithstanding
anything contained in the foregoing Second Amendment to the contrary,
all of the representations, warranties, terms, conditions, agreements
and covenants contained in Sections 6, 8, 11 and 17 of the foregoing
Second Amendment shall be deemed to be made by such Person to and for
the benefit of FINOVA.
PRACTICEWORKS, INC.; PRACTICEWORKS
SYSTEMS, LLC; CADI ACQUISITION
CORPORATION; SWENAM HOLDINGS, BV;
PRACTICEWORKS LIMITED; SCANDIC
DENTAL COMPUTER SYSTEMS, AB;
MEDICAL & DENTAL BUSINESS SOLUTIONS
(SWEDEN) AB; INFOCURE AUSTRALIA PTY.
LIMITED; INFOCURE ORTHODONTICS PTY.
LIMITED; AND XXXXXX PTY LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
---------------------------------------
A duly authorized officer of each such
Person
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ACKNOWLEDGMENT, AGREEMENT AND AFFIRMATION
The undersigned, InfoCure Corporation, a Delaware corporation and
successor to InfoCure Systems, Inc., a Georgia corporation, hereby acknowledges
and reaffirms the assumption by InfoCure Corporation, pursuant to and as a
consequence of the ISI Merger, of, and succession to, all of the liabilities,
obligations and indebtedness of InfoCure Systems under or pursuant to the Loan
Agreement and each of the other Loan Documents. InfoCure Corporation
acknowledges and agrees that, effective as of the date of the consummation of
the ISI Merger, by its execution and delivery hereof (and as a consequence of
the ISI Merger), without any further action of any kind whatsoever on its part
or on the part of FINOVA:
(a) InfoCure Corporation shall continue to be a Borrower
under the Loan Agreement and each of the other Loan Documents, and all
references to "Borrower," "Borrowers" or "InfoCure Systems" contained
in the Loan Agreement, any other Loan Document or any schedule,
exhibit, appendix or addendum thereto shall be deemed to refer to
InfoCure Corporation, as applicable;
(b) InfoCure Corporation shall assume and shall continue
to be liable with Thoroughbred on a joint and several basis for the
prompt payment, observance and performance of all Borrowers'
Obligations;
(c) all representations and warranties made by InfoCure
Systems under each of the Loan Documents are hereby remade by InfoCure
Corporation, mutatis mutandis, as of the Second Amendment Effective
Date, after giving effect to the conversion.
INFOCURE CORPORATION
By: /s/ Xxxxxxxxx X. Fine
------------------------------------------
A duly authorized officer
AGREED AND ACCEPTED
on this 5th day of March, 2001
THOROUGHBRED ACQUISITION, INC.
By: /s/ Xxxxxxxxx X. Fine
---------------------------
A duly authorized officer
