EXHIBIT 10.31
AMENDED AND RESTATED
GENERAL SECURITY AGREEMENT
AMENDED AND RESTATED GENERAL SECURITY AGREEMENT, dated as of June 28,
2000 (the "Agreement"), by and between ProxyMed, Inc., a Florida corporation
with offices at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000 (the
"Company"), Key Communications Service, Inc., an Indiana corporation ("KCS"),
WPJ, Inc. d/b/a Integrated Medical Systems, a California corporation ("IMS" and,
together with KCS, the "Subsidiaries" and, collectively with the Company, the
"Debtors"), and Commonwealth Associates, L.P., a New York limited partnership,
in its capacity as agent for the Purchasers described below ("Commonwealth" or
the "Agent");
R E C I T A L S
A. The Debtors and Commonwealth are parties to that certain General
Security Agreement, dated as of June 15, 2000 (the "Existing General Security
Agreement"), pursuant to which the Debtors granted to the Initial Purchasers (as
hereinafter defined) certain security interest to secure the payment and
performance of Secured Obligations (as hereinafter defined);
B. The Debtors and Commonwealth desire to amend and restate the
Existing General Security Agreement to reflect the security interest in favor of
the Secondary Purchasers (as hereinafter defined), and to restate the Existing
General Security Agreement on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of mutual promises herein and for
other good and valuable consideration, the Debtors and Commonwealth agree that
the Existing General Security Agreement is hereby amended and restated to read
in full as follows:
W I T N E S S E T H:
WHEREAS, pursuant to that certain Placement Agency Agreement dated as
of June 7, 2000 and among the Company and Commonwealth, Commonwealth agreed to
act as placement agent on behalf of the Company in connection with a private
placement of senior secured convertible securities and warrants of the Company
(the "Financing");
WHEREAS, pursuant to that certain Subscription Agreement dated as of
June 15, 2000 by and among the Company and the persons signatory thereto as
purchasers (including all assignees and transferees, to the extent such
assignments or transfers are permitted, the "Initial Purchasers") (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "Initial Subscription Agreement") and
that certain Subscription Agreement dated as of June 28, 2000 by and among the
Company and the persons signatory thereto as purchasers (including all assignees
and transferees, to the extent such assignments or transfers are permitted, the
"Secondary Purchasers" and, together with the Initial Purchasers, the
"Purchasers") (including all annexes, exhibits or schedules thereto, as from
time to time amended, restated, supplemented or otherwise modified, the
"Secondary Subscription
Agreement" and, together with the Initial Subscription Agreement, the
"Subscription Agreement"), the Company issued and sold to the Purchasers (i)
those certain 7% senior secured convertible promissory notes in the aggregate
principal amount of $15,000,000 (herein, as at any time amended, extended,
restated, renewed or modified, the "Notes") which amount may be increased by
exercise of an overallotment option, first by an additional $7,500,000 aggregate
principal amount of the Notes at the option of Commonwealth and then by an
additional $7,500,000 aggregate principal amount of the Notes at the option of
the Company, and (ii) those certain warrants to purchase a number of shares of
common shares of the Company equal to 50% of the number of shares of common
stock issuable upon conversion of the Notes (herein, as at any time amended,
extended, restated, renewed or modified, the "Warrants") and executed and
delivered for the benefit of the Purchasers that certain Registration Rights
Agreement as of the date hereof by and among the Company and the Purchasers
(herein, as at any time amended, extended, restated, renewed or modified, the
"Registration Rights Agreement" and together with the Subscription Agreement,
the Notes and the Warrants, the "Transaction Documents"); and
WHEREAS, it is a condition to the willingness of the Purchasers and the
Agent to enter into the Subscription Agreement and to effect the Financing
evidenced thereby that the Company and the Subsidiaries enter into this
Agreement and grant to the Purchasers and the Agent the security interests
provided for herein;
NOW, THEREFORE, FOR VALUE RECEIVED, IT IS AGREED:
Section 1. Terms. Unless otherwise defined herein, capitalized terms
used in this Agreement shall have the meaning specified therefor in the
Transaction Documents, as indicated. As used herein the following terms shall
have the meanings specified and shall include in the singular number the plural
and in the plural number the singular:
"Assigned Agreement Interest" shall mean the profits, proceeds, or
other rights to payment of any of the Debtors under or from the performance,
assignment, sale or disposition of all contracts and agreements of any of the
Debtors.
"Collateral" means all of the Debtors' right, title and interest in and
under or arising out of each and all of the following:
All personal property and fixtures of any of the Debtors of any type or
description, wherever located and now existing or hereafter arising or acquired,
including but not limited to the following:
(i) all of the Debtors' goods including, without limitation:
(a) all inventory, including without limitation, equipment
held for lease, whether raw materials, in process or finished, all material or
equipment usable in processing the same and all documents of title covering any
inventory (all of the foregoing, "Inventory"), including without limitation that
located at the locations listed on Schedule I annexed hereto;
(b) all equipment (the "Equipment") employed in connection
with the Debtors' business, together with all present and future additions,
attachments and accessions thereto and all substitutions therefor and
replacements thereof, including without limitation that located at the locations
listed on Schedule 1 annexed hereto;
(ii) all of the Debtors' present and future accounts, accounts
receivable, general intangibles, contracts and contract rights (herein sometimes
referred to as "Receivables"), including but not limited to the Debtors' rights
to payment and the Assigned Agreement Interest, together with
(a) all claims, rights, powers or privileges and remedies of
the Debtors relating thereto or arising in connection therewith including,
without limitation, all rights of the Debtors to make determinations, to
exercise any election (including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, waiver or approval, together
with full power and authority to demand, receive, enforce, collect or receipt
for any of the foregoing or any property which is the subject of the Assigned
Agreement Interest, to enforce or execute any checks, or other instruments or
orders, to file any claims and to take any action which (in the opinion of the
Agent, on behalf of the Purchasers) may be necessary or advisable in connection
with any of the foregoing,
(b) all liens, security, guaranties, endorsements, warranties
and indemnities and all insurance and claims for insurance relating thereto or
arising in connection therewith,
(c) all rights to property forming the subject matter of the
Receivables including, without limitation, rights to stoppage in transit and
rights to, returned or repossessed property,
(d) all writings relating thereto or arising in connection
therewith including, without limitation, all notes, contracts, security
agreements, guaranties, chattel paper and other evidence of indebtedness or
security, all powers-of-attorney, all books, records, ledger cards and invoices,
all credit information, reports or memoranda and all evidence of filings or
registrations relating thereto,
(e) all catalogs, computer and automatic machinery software
and programs, and the like, pertaining to operations by any of the Debtors in,
on or about any of its plants or warehouses, all sales data and other
information relating to sales or service of products now or hereafter
manufactured on or about any of its plants, and all accounting information
pertaining to operations in, on or about any of its plants, and all media in
which or on which any of the information or knowledge or data is stored or
contained, and all computer programs used for the compilation or printout of
such information, knowledge, records or data, and
(f) all accounts, contract rights, general intangibles and
other property rights of any nature whatsoever arising out of or in connection
with the foregoing, including without limitation, payments due and to become
due, whether as part of the Assigned Agreement Interest or as repayments,
reimbursements, contractual obligations, indemnities, damages or otherwise;
(iii) all of the Debtors' right, title, and market in and to any shares
of capital stock of any of its subsidiaries and the certificates representing
any such shares, together with all goods, Inventory, Equipment, Receivables, and
all other personal property of its subsidiaries;
(iv) all patents, trademarks, trade secrets, copyrights, rights to
hardware or software, and any other intellectual property rights of any
description whatsoever, whether owned or licensed by any of the Debtors;
(v) all other personal property of any of the Debtors of any nature
whatsoever, including, without limitation, all accounts, bank accounts,
deposits, credit balances, contract rights, inventory, general intangibles,
goods, equipment, instruments, chattel paper, machinery, furniture, furnishings,
fixtures, tools, supplies, appliances, plans and drawings, together with all
customer and supplier lists and records of the business, and all property from
time to time described in any financing statement (UCC-1) signed by any of the
Debtors naming the Agent or any of the Purchasers as secured party;
(vi) all "documents," as such term is defined in the Code, now owned or
hereafter acquired by any of the Debtors, wherever located;
(vii) all "fixtures" as such term is defined in the Code, now owned or
hereafter acquired by any of the Debtors;
(viii) all "instruments" as such term is defined in the Code, now owned
or hereafter acquired by any of the Debtors, wherever located, and, in any
event, including all certificated securities, all certificates of deposit, and
all notes and other, without limitation, evidences of indebtedness, other than
instruments that constitute, or are a part of a group of writings that
constitute, chattel paper;
(ix) all "investment property" as described in Section 9-115 of the
Code in those jurisdictions in which such definition has been adopted and shall
include (a) all securities, whether certificated or uncertificated, including
stocks, bonds, interests in limited liability companies, partnership interests,
treasuries, certificates of deposit, and mutual fund shares; (b) all securities
entitlements of the Debtors, including the rights of any of the Debtors to any
securities account and the financial assets held by a securities intermediary in
such securities account and any free credit balance or other money owing by any
securities intermediary with respect to that account; (c) all securities
accounts held by any of the Debtors; (e) all commodity contracts held by any of
the Debtors; and (d) all commodity accounts held by any of the Debtors; and
(x) all items of collateral hereafter acquired, credited or arising and
all additions, accessions, replacements, substitutions or improvements and all
products and proceeds including, without limitation, proceeds of insurance, of
any and all of the Collateral described in clauses (i) through (ix) above.
"Lien" means any mortgage, pledge, hypothecation, assignment, security
interest, deposit arrangement, encumbrance (including any easement, right of
way, zoning restriction and the like),
lien (statutory or other) or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease
involving substantially the same economic effect as any of the foregoing and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Permitted Liens" means:
(a) Liens granted to secure indebtedness incurred to finance the
acquisition (whether by purchase or capitalize lease) of tangible assets, but
only on the asset acquired with the proceeds of such indebtedness;
(b) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles ("GAAP")
shall have been set aside on its books;
(b) Liens of carriers, warehousemen, mechanics, materialman and
landlords incurred in the ordinary course of business for sums not overdue or
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens (other than Liens arising under the Employee Retirement
Income Security Act of 1974, as amended, or Section 412(n) of the Internal
Revenue Code of 1986, as amended) incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(d) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or which do not
exceed $50,000 in the aggregate; and
(e) a Lien existing on the date hereof but only to the extent and as
expressly disclosed in the Schedule 2.9 to the Subscription Agreement including,
without limitation the lien in favor of Transamerica Business Credit Corporation
("TBCC") pursuant to the Loan and Security Agreement, dated July 20, 1999, by
and between the Debtor and TBCC and Liens securing indebtedness in principal
amounts less than $50,000.
"Person" means any natural person, corporation, firm, association,
partnership, joint venture, limited liability company, joint-stock company,
trust, unincorporated organization, government, governmental agency or
subdivision, or any other entity, whether acting in an individual, fiduciary or
other capacity.
"Receivables" has the meaning specified therefor in clause (ii) of the
definition of Collateral.
"Secured Obligations" means all obligations of the Debtors, whether for
fees, expenses or otherwise, now existing or hereafter arising under this
Agreement, the Notes or the provisions relating to the Notes in the Subscription
Agreement.
"Termination Date" means the date on which all the Notes have been paid
in full or converted into common stock or preferred stock of the Company.
Section 2. Security Interests. As security for the payment and
performance of all Secured Obligations the Debtors do hereby grant and assign to
the Agent and the Purchasers, a continuing security interest in all of the
Collateral, whether now existing or hereafter arising or acquired and wherever
located, subject to Section 8 of this Agreement.
Section 3. General Representations. Warranties and Covenants. The
Debtors represent, warrant and covenant, which representations, warranties and
covenants shall survive execution and delivery of this Agreement, as follows:
(a) This Agreement is made with full recourse to the Debtors and
pursuant to and upon all the warranties, representations, covenants, and
agreements on the part of any of the Debtors contained herein, in the
Transaction Documents and otherwise made in writing in connection herewith or
therewith.
(b) Except for the security interest of the Agent and the Purchasers
therein, the Debtors are, and as to Collateral acquired from time to time after
the date hereof the Debtors will be, the owner of all the Collateral free from
any lien, security interest, encumbrance or other right, title or interest of
any Person (other than Permitted Liens) and the Debtors shall defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to the Agent or any of the Purchasers,
(other than Permitted Liens).
(c) There is no financing statement (or similar statement or instrument
of registration under the law of any jurisdiction) or any assignment of patent,
trademark or copyright now on file or registered in any public office covering
any interest of any kind in the Collateral, or intended to cover any such
interest, which has not been terminated or released by the secured party named
therein and so long as the Notes remain outstanding or any of the Secured
Obligations of the Debtors remain unpaid or unsatisfied, none of Debtors will
execute and there will not be on file in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except (i) financing
statements filed or to be filed in respect of and covering the security interest
of the Agent and the Purchasers hereby granted and provided for; (ii) as
specified in Schedule 2; (iii) liens in existence as the date hereof in favor of
TBCC; and (iv) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of each of
the Debtors is located at the address of each Debtor listed on the signature
page hereof, and each of the Debtors will not move its chief executive office
and chief place of business except to such new location as the Debtors may
establish in accordance with the last sentence of this Section 3(d). The
originals of all Assigned Agreement Interest and all documents (as well as all
duplicates thereof) evidencing
all Receivables and all other contract rights or accounts and other property of
any of the Debtors and the only original books of account and records of the
Debtors relating thereto are, and will continue to be, kept at the chief
executive office of the Agent, on behalf of the Agent and the Debtors. The
Debtors shall establish no such new location until (i) it shall have given to
the Agent, on behalf of the Agent and the Purchasers, not less than 30 days'
prior written notice of its intention to do so, clearly describing such new
location and providing such other information in connection therewith as the
Agent may reasonably request, and (ii) with respect to such new location, it
shall have taken such action, satisfactory to the Agent (including, without
limitation, all action required by Section 7 hereof), to maintain the security
interest of the Agent and the Purchasers in the Receivables intended to be
granted at all times fully perfected and in full force and effect.
(e) The Debtors have no Collateral located outside of the states of
Florida, California and Indiana.
(f) KCS and IMS are the sole subsidiaries of the Company. For purposes
of this Agreement, subsidiaries means any entity in which the Company, directly
or indirectly, owns 10% of the capital stock or holds an equity or similar
interest.
(g) The name of each of the Debtors is as set forth on the signature
page hereto and none of the Debtors shall change such name, conduct its business
in any other name or take title to the Collateral in any other name while this
Agreement remains in effect. None of the Debtors has ever had any name, or
conducted business under any name in any jurisdiction, other than its name set
forth on the signature page hereto, during the past five years other than as set
forth in Schedule 2 annexed hereto.
(h) At the Debtors' own expense, the Debtors will: (i) without limiting
the provisions of any of the Transaction Documents, keep the Collateral fully
insured at all times with financially sound and responsible insurance carriers
against loss or damage by fire and other risks, casualties and contingencies and
in such manner and to the same extent that like properties are customarily so
insured by other entities engaged in the same or similar businesses similarly
situated and keep adequate insurance at all times against liability on account
of damage to persons and properties and under all applicable workers'
compensation laws, by insurers and in amounts approved by the Agent, for the
benefit of the Debtors and the Agent and the Purchasers, (ii) upon request by
the Agent promptly deliver the insurance policies or certificates thereof to the
Agent, and (iii) keep the Collateral in good condition at all times (normal wear
and tear excepted) and maintain same in accordance with all manufacturer's
specifications and requirements. Upon any failure of any of the Debtors to
comply with its obligations pursuant to this Section 3(h), the Agent, on behalf
of the Agent and the Purchasers, may at its option, and without affecting any of
its other rights or remedies provided herein or as a secured party under the
Uniform Commercial Code, procure the insurance protection it deems necessary
and/or cause repairs or modifications to be made to the Collateral and the cost
of either or both of which shall be a lien against the Collateral added to the
amount of the indebtedness secured hereby and payable on demand with interest at
a rate per annum equal to 12%.
(i) The Debtors hereby assign to the Agent and the Purchasers, all of
Debtors' right, title and interest in and to any and all moneys which may become
due and payable with respect to the Collateral under any policy insuring the
Collateral (except proceeds relating to tangible personal property which are
applied to restoration or replacement), including return of unearned premium,
and shall cause any such insurance company to make payment directly to the
Agent, on behalf of the Agent and the Purchasers, for application to amounts
outstanding under the Notes and Warrants in accordance with the terms of the
Financing Documents and, to the extent not provided therein, in such order as
the Agent shall determine.
(j) The Debtors will not use the Collateral in violation of any statute
or ordinance or applicable insurance policy and will promptly pay all taxes and
assessments levied against the Collateral.
(k) The Debtors will not sell, transfer, change the registration, if
any, dispose of, attempt to dispose of, substantially modify or abandon the
Collateral or any part thereof other than sales of Inventory in the ordinary
course of business and the disposition of obsolete or worn-out Equipment in the
ordinary course of business.
(l) The Debtors will not assert against the Agent or the Purchasers any
claim or defense which any of the Debtors may have against any seller of the
Collateral or any part thereof or against any other Person with respect to the
Collateral or any part thereof (except, in the case of the Agent or any
Purchaser, for such person's gross negligence or willful misconduct).
(m) The Debtors will indemnify and hold the Agent and the Purchasers
harmless from and against any loss, liability, damage, costs and expenses
whatsoever arising from the Debtors' use, operation, ownership or possession of
the Collateral or any part thereof.
(n) The Debtors and the Agent will maintain the confidentiality of all
customer lists and not sell or otherwise dispose of such lists except that any
of the Debtors shall deliver copies thereof to the Agent, on behalf of the Agent
and the Purchasers, upon its request, which may be made at any time and from
time to time after an Event of Default.
(o) The Debtors will not enter into any agreement that is inconsistent
with the Debtors' obligations under this Agreement, without the prior written
consent of the Agent, on behalf of the Agent and the Purchasers.
Section 4. Special Provisions Concerning the Assigned Agreement
Interest. The Debtors represent, warrant and agree as follows:
(a) The Assigned Agreement Interest constitutes the legal, valid and
binding obligations of the Debtors and, to the best of its knowledge, the other
parties thereto, enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, fraudulent conveyance and other similar laws affecting the enforcement
of creditors' rights and remedies generally.
(b) Each of the Debtors will faithfully abide by, perform and discharge
each and every material obligation, covenant and agreement to be performed by
the Debtors under the Assigned Agreement Interest, except for such
nonperformance as a result of a default by any other party thereto.
(c) Each of the Debtors will not act or fail to act in a manner likely
(directly or indirectly) to entitle any party thereto to claim that any of the
Debtors are in default under the terms thereof, except for such nonperformance
as a result of a default by any other party thereto.
(d) None of the Debtors will terminate or permit the termination of any
Assigned Agreement Interest, except in accordance with its terms, other than in
the ordinary course of business or as it deems necessary or desirable in the
normal course of its business.
(e) Without the prior written consent of the Agent, on behalf of the
Agent and the Purchasers, the Debtors will not, other than in the ordinary
course of business, waive or in any manner release or discharge any party to any
Assigned Agreement Interest from any of the material obligations, covenants,
conditions and agreements to be performed by it under such Assigned Agreement
Interest including, without limitation, the obligation to make all payments in
the manner and at the time and places specified.
(f) If the Agent, on behalf of the Agent and the Purchasers, so
requests after the occurrence and continuance of an Event of Default and, if
prior to the Maturity Date of the Notes (as defined in the Notes), the
acceleration of any one or more of the Notes ("Acceleration"), the Debtors will
hold any payments received by it which are assigned and set over to the Agent by
this Agreement for and on behalf of the Agent and the Purchasers and turn them
promptly over to the Agent forthwith in the same form in which they are received
(together with any necessary endorsement) for application to amounts outstanding
under the Notes in accordance with the terms of the Notes and, to the extent not
provided therein, in such order as the Agent, on behalf of the Agent and the
Purchasers, shall determine.
(g) The Debtors will appear in and defend every action or proceeding
arising under, growing out of or in any manner connected with the Assigned
Agreement Interest or the obligations, duties or liabilities of the Debtors and
any assignee thereunder unless such action or proceeding is, in the reasonable
business judgment of the Debtors, deemed to be immaterial.
(h) Should the Debtors fail to make any payment or to do any act as
herein provided after 15 day's notice by the Agent, on behalf of the Agent and
the Purchasers, the Agent, on behalf of the Agent and the Purchasers, may (but
without obligation on the Agent's part to do so and without notice to or demand
on any of the Debtors and without releasing any of the Debtors from any
obligation hereunder) make or do the same in such manner and to such extent as
the Agent, on behalf of the Agent and the Purchasers, may deem necessary to
protect the security interests provided hereby, including specifically, without
limiting the general powers, the right to appear in and defend any action or
proceeding purporting to affect the security interests provided hereby and the
Debtors, and the Agent, on behalf of the Agent and the Purchasers, may also
perform and discharge each and every obligation, covenant and agreement of that
Debtor contained in any
Assigned Agreement Interest and, in exercising any such powers, pay necessary
costs and expenses, employ counsel and incur and pay reasonable attorneys' fees.
(i) Upon the request of the Agent, on behalf of the Agent and the
Purchasers, the Debtors will send to the Agent copies of all notices, documents
and other papers furnished or received by it with respect to any of the Assigned
Agreement Interest.
Section 5. Special Provisions Concerning Receivables.
(a) As of the time when each Receivable arises, each of the Debtors
shall be deemed to have warranted as to each such Receivable that such
Receivable and all papers and documents relating thereto are genuine and in all
respects what they purport to be, and that all papers and documents relating
thereto:
(i) will be signed by the account debtor named therein (or
such account debtor's duly authorized agent) or otherwise be binding on the
account debtor;
(ii) will represent the genuine, legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by such
account debtor arising out of the performance of labor or services or the sale
and delivery of merchandise or both;
(iii) to the extent evidenced by writings, will be the only
original writings evidencing and embodying such obligation of the account debtor
named therein; and
(iv) will be in compliance and will conform with all
applicable federal, state and local laws (including applicable usury laws) and
applicable laws of any relevant foreign jurisdiction.
(b) Each of the Debtors will keep and maintain at the Debtor's own cost
and expense satisfactory and complete records of the Receivables, including, but
not limited to, records of all payments received, all credits granted thereon,
all merchandise returned and all other dealings therewith, and each of the
Debtors will make the same available to the Agent, on behalf of the Agent and
the Purchasers, at the Debtor's own cost and expense, at any and all reasonable
times and upon reasonable notice upon demand of the Agent, on behalf of the
Agent and the Purchasers. Each of the Debtors shall, at the Debtor's own cost
and expense, deliver the Receivables (including, without limitation, all
documents evidencing the Receivables) and such books and records to the Agent,
on behalf of the Agent and the Purchasers, or to its representatives upon its
demand at any time after the occurrence and continuance of an Event of Default
and, if prior to the Maturity Date, at any time after Acceleration. If the
Agent, on behalf of the Agent and the Purchasers, shall so request, each of the
Debtors shall legend, in form and manner satisfactory to the Agent, the
Receivables and other books, records and documents of the Debtors evidencing or
pertaining to the Receivables with an appropriate reference to the fact that the
Receivables have been assigned to the Agent and the Purchasers and that the
Agent and the Purchasers have a security interest therein.
(c) Except in the ordinary course of business prior to an Event of
Default and, if prior to the Maturity Date, prior to Acceleration, the Debtors
will not rescind or cancel any indebtedness evidenced by any Receivable or
modify any term thereof or make any adjustment with respect thereto, or extend
or renew the same, or compromise or settle any dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or interest therein, without
the prior written consent of the Agent, on behalf of the Agent and the
Purchasers, except that any of the Debtors may grant discounts in connection
with the prepayment of any Receivable in an amount which is customary in the
line of business in which any of the Debtors is engaged and consistent with the
Debtors' past practices.
(d) Each of the Debtors will duly fulfill all obligations on its part
to be fulfilled under or in connection with the Receivables and will do nothing
to impair the rights of the Agent and the Purchasers in the Receivables.
(e) The Debtors shall endeavor to collect or cause to be collected from
the account debtor named in each Receivable, as and when due (including, without
limitation, Receivables which are delinquent, such Receivables to be collected
in accordance with generally accepted lawful collection procedures) any and all
amounts owing under or on account of such Receivable, and credit forthwith (on a
daily basis) upon receipt thereof all such amounts as are so collected to the
outstanding balance of such Receivable. The costs and expenses (including
attorneys' fees) of collection, whether incurred by the Debtors or the Agent or
the Purchasers, shall be borne by the Debtors.
(f) Upon request of the Agent, on behalf of the Agent and the
Purchasers, at any time when an Event of Default and, if prior to the Maturity
Date an Acceleration shall exist, the Debtors shall promptly notify (in manner,
form and substance satisfactory to the Agent, on behalf of the Agent and the
Purchasers) all Persons who are at any time obligated under any Receivable that
the Agent and the Purchasers possesses a security interest in such Receivable
and that all payments in respect thereof are to be made to such account as the
Agent, on behalf of the Agent and the Purchasers directs.
Section 6. Special Provisions Concerning Equipment. The Debtors will do
nothing to impair the rights of the Agent and the Purchasers in the Equipment.
The Debtors shall cause the Equipment to at all times constitute and remain
personal property. The Debtors will at all times keep all Equipment insured with
financially responsible insurance companies in favor of the Agent and the
Purchasers, at the expense of the Debtors, against such perils and in such
amounts as are customary for Persons in the same general line of business as the
Debtors and operating in similar reasonable geographic locations and markets. If
any of the Debtors shall fail to insure the Equipment to the satisfaction of the
Agent, on behalf of the Agent and the Purchasers, or if any of the Debtors shall
fail so to endorse and deposit all policies or certificates with respect
thereto, the Agent, on behalf of the Agent and the Purchasers, shall have the
right (but shall be under no obligation) to procure such insurance and the
Debtors agree to reimburse the Agent for all costs and expenses of procuring
such insurance, together with interest at a rate per annum equal to 12%. The
Agent, on behalf of the Agent and the Purchasers, may apply any proceeds of such
insurance when
received by it pursuant to the terms of this Section 6 or Section 3(h) hereof
toward the payment of any of the Secured Obligations, whether or not the same
shall then be due. The Debtors retain all liability and responsibility in
connection with the Equipment and the liability of the Debtors to pay the
Secured Obligations shall in no way be affected or diminished by reason of the
fact that such Equipment may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to the Debtors.
Section 7. Financing Statements; Documentation; Stamp Taxes.
(a) Each of the Debtors will, at its own expense, make, execute,
endorse, acknowledge, file and/or deliver to the Agent, on behalf of the Agent
and the Purchasers, from time to time such lists, descriptions and designations
of Inventory, warehouse receipts, bills of lading, documents of title, vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Agent, on behalf of the Agent and the Purchasers, deems
appropriate or advisable to perfect, preserve or protect its security interest
in the Collateral. The Debtors hereby constitute the Agent, on behalf of the
Agent and the Purchasers, its attorney-in-fact to execute and file in the name
and on behalf of the Debtors such additional financing statements as the Agent,
on behalf of the Agent and the Purchasers, may request, such acts of such
attorney being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable until the Secured Obligations are paid in full.
Further, to the extent permitted by applicable law, the Debtors authorize the
Agent, on behalf of the Purchasers, to file any such financing statements
without the signature of the Debtors. The Debtors will pay all applicable filing
fees and related expenses in connection with any such financing statements.
(b) The Debtors agree to procure, pay for, affix to any and all
documents and cancel any documentary tax stamps required by and in accordance
with, applicable law and the Debtors will indemnify and hold the Agent and the
Purchasers harmless against any liability (including interest and penalties) in
respect of such documentary stamp taxes.
Section 8. Termination of this Agreement. Subject to Section 12(d)
hereof, this Agreement shall terminate upon the Termination Date and the Agent,
at the request and expense of the Debtor, will promptly execute and deliver to
the Debtor a proper instrument or instruments (including Uniform Commercial Code
termination statements on Form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to the
Debtor (without recourse and without representation or warranty) such of the
collateral as may be in the possession of the Agent and as has not thereto been
sold or otherwise applied or released pursuant to this Agreement.
Section 9. Special Provisions Concerning Remedies and Sale.
(a) In addition to any rights and remedies now or hereafter granted
under applicable law and not by way of limitation of any such rights and
remedies, upon the occurrence and continuance of an Event of Default and, if
prior to the Maturity Date and Acceleration, the Agent,
on behalf of the Agent and the Purchasers, shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in any
applicable jurisdiction in addition to the rights and remedies provided herein,
in the Transaction Documents whereby the Debtors have granted any Lien to the
Agent and the Purchasers. Without in any way limiting the foregoing, the Agent,
on behalf of the Agent and the Purchasers, shall have the right, without further
notice to, or assent by, the Debtors, in the names of the Debtors or in the name
of the Agent or otherwise, to pursue any one or all of the following or any
other remedies (to the extent permitted by law):
(i) to ask for, demand, collect, receive, compound and give
acquittance for the Receivables or any part thereof;
(ii) to extend the time of payment of, compromise or settle
for cash, credit or otherwise, and upon any terms and conditions, any of the
Receivables;
(iii) to endorse the names of the Debtors on any checks,
drafts or other orders or instruments for the payment of moneys payable to the
Debtors which shall be issued in respect of any Receivable;
(iv) to file any claims, commence, maintain or discontinue any
actions, suits or other proceedings deemed by the Agent, on behalf of the Agent
and the Purchasers, necessary or advisable for the purpose of collecting or
enforcing payment of any Receivable;
(v) to make test verifications of the Receivables or any
portion thereof,
(vi) to notify any or all account debtors under any or all of
the Receivables to make payment thereof directly to the Agent, on behalf of the
Agent and the Purchasers, for the account of the Agent and the Purchasers, and
to require the Debtors to forthwith give similar notice to the account debtors;
(vii) to require the Debtors forthwith to account for and
transmit to the Agent, on behalf of the Agent and the Purchasers, in the same
form as received all proceeds (other than physical property) of collection of
Receivables received by any of the Debtors and, until so transmitted, to hold
the same in trust for the Agent and the Purchasers and not commingle such
proceeds with any other funds of the Debtors;
(viii) to take possession of any or all of the Collateral and,
for that purpose, to enter, with the aid and assistance of any Person or Persons
and with or without legal process, any premises where the Collateral, or any
part thereof, are, or may be, placed or assembled, and to remove any of such
Collateral;
(ix) to execute any instrument and do all other things
necessary and proper to protect and preserve and realize upon the Collateral and
the other rights contemplated hereby;
(x) upon notice to such effect, to require the Debtors to
deliver, at the Debtors' expense, any or all Collateral to the Agent, on behalf
of the Agent and the Purchasers, at a place designated by the Agent; and
(xi) without obligation to resort to other security, at any
time and from time to time, to sell, re-sell, assign and deliver all or any of
the Collateral, in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right of redemption
thereof, at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices and on such terms as the Agent, on behalf
of the Agent and the Purchasers, may determine, with the amounts realized from
any such sale to be applied to the Secured Obligations in the manner determined
by the Agent (in accordance with applicable law including, without limitation,
the UCC).
The Debtors hereby agree that all of the foregoing may be effected
without demand, advertisement or notice (except as otherwise provided herein or
as may be required by law), all of which (except as otherwise provided) are
hereby expressly waived, to the extent permitted by law. The Agent, on behalf of
the Agent and the Purchasers, shall not be obligated to do any of the acts
hereinabove authorized, but in the event that the Agent elects to do any such
act, the Agent shall not be responsible to any of the Debtors except for its
gross negligence or willful misconduct.
(b) Upon the occurrence of an Event of Default and, if prior to the
Maturity Date, upon the occurrence of an Acceleration, the Agent, on behalf of
the Agent and the Purchasers, may take legal proceedings for the appointment of
a receiver or receivers (to which the Agent and the Purchasers shall be entitled
as a matter of right) to take possession of the Collateral, using reasonable
care to protect such Collateral, pending the sale thereof pursuant either to the
powers of sale granted by this Agreement or to a judgment, order or decree made
in any judicial proceeding for the foreclosure or involving the enforcement of
this Agreement. If, after the exercise of any or all of such rights and
remedies, any of the Secured Obligations shall remain unpaid, the Debtors shall
remain liable for any deficiency. After the indefeasible payment in full of the
Secured Obligations, any proceeds of the Collateral received or held by the
Agent or the Purchasers shall be turned over to the Debtors and the Collateral
shall be reassigned to the Debtors by the Agent or the Purchasers without
recourse to the Agent or the Purchasers and without any representations,
warranties or agreements of any kind.
(c) Upon any sale of any of the Collateral, whether made under the
power of sale hereby given or under judgment, order or decree in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement:
(i) the Agent, on behalf of the Agent and the Purchasers, may,
to the extent permitted by law, bid for and purchase the property being sold,
and upon compliance with the terms of sale may hold, retain and possess and
dispose of such property in its own absolute right without further
accountability, and may, in paying the purchase money therefor, deliver any
Notes or claims for interest thereon, any Warrants and any other instruments
evidencing the Secured Obligations or agree to the satisfaction of all or a
portion of the Secured Obligations in lieu of cash in payment of the amount
which shall be payable thereon, and the Notes, Warrants and such
instruments, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to the Agent and the Purchasers after
being appropriately stamped to show partial payment;
(ii) the Agent, on behalf of the Agent and the Purchasers, may
make and deliver to the purchaser or purchasers a good and sufficient deed, xxxx
of sale and instrument of assignment and transfer of the property sold;
(iii) the Agent, on behalf of the Agent and the Purchasers, is
hereby irrevocably appointed the true and lawful attorney-in-fact of each of the
Debtors in its name and stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property thus sold and for such
other purposes as are necessary or desirable to effectuate the provisions
(including, without limitation, this Section 9) of this Agreement, and for that
purpose it may execute and deliver all necessary deeds, bills of sale and
instruments of assignment and transfer, and may substitute one or more Persons
with like power, the Debtors hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do by virtue hereof;
but if so requested by the Agent, on behalf of the Agent and the Purchasers, or
by any of the Purchaser, themselves, each of the Debtors shall ratify and
confirm any such sale or transfer by executing and delivering to the Agent, on
behalf of the Agent and the Purchasers, or to such purchaser all property,
deeds, bills of sale, instruments or assignment and transfer and releases as may
be designated in any such request;
(iv) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of the Debtors of, in and to the
property so sold shall be divested; such sale shall be a perpetual bar both at
law and in equity against the Debtors, its successors and assigns, and against
any and all Persons claiming or who may claim the property sold or any part
thereof from, through or under the Debtors, its successors or assigns;
(v) the receipt of the Agent, on behalf of the Agent and the
Purchasers, or of the officer thereof making such sale shall be a sufficient
discharge to the purchaser or purchasers at such sale for his or their purchase
money, and such purchaser or purchasers, and his or their assigns or personal
representatives, shall not, after paying such purchase money and receiving such
receipt of the Agent, on behalf of the Agent and the Purchasers, or of such
officer therefor, be obliged to see to the application of such purchase money or
be in any way answerable for any loss, misapplication or non-application
thereof; and (vi) to the extent that it may lawfully do so, and subject to any
legal requirement that the Agent, on behalf of the Agent and the Purchasers, act
in a commercially reasonable manner, each of the Debtors agrees that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisement, valuation, stay, extension or
redemption laws, or any law permitting it to direct the order in which the
Collateral or any part thereof shall be sold, now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance or
enforcement of this Agreement or any of the Transaction Documents whereby any of
the Debtors has granted any Lien to the Agent and the Purchasers, and the
Debtors hereby expressly waive all benefit or advantage of any such laws and
covenants that it will not hinder, delay or impede the execution of any power
granted or
delegated to the Agent and the Purchasers in this Agreement, but will suffer and
permit the execution of every such power as though no such laws were in force.
In the event of any sale of Collateral pursuant to this Section, the Agent, on
behalf of the Agent and the Purchasers, shall, at least 10 days before such
sale, give the Debtors written, telecopied or telex notice of its intention to
sell.
Section 10. Application of Moneys.
(a) Except as otherwise provided herein or in any of the Transaction
Documents, all moneys which the Agent and the Purchasers shall receive, in
accordance with the provisions hereof, shall be applied (to the extent thereof)
in the following manner: First, to the payment of all costs and expenses
reasonably incurred in connection with the administration and enforcement of, or
the preservation of any rights under, this Agreement including any of the
reasonable expenses and disbursements of the Agent and the Purchasers
(including, without limitation, the fees and disbursements of its counsel and
agents); Second, to the payment of all Secured Obligations arising out of the
Notes in accordance with the terms of the Notes and, if not therein provided, in
such order as the Agent, on behalf of the Agent and the Purchasers, may
determine; and Third, to the payment of all other Secured Obligations in such
order as the Agent, on behalf of the Agent and the Purchasers, may determine.
(b) In the event the moneys which the Agent and the Purchasers shall
receive, in accordance with the provisions hereof, is less than the aggregate
amount of all Secured Obligations arising under this Agreement, the moneys shall
be allocated among the Agent and each individual Purchaser pro rata based upon
the percentage that the Secured Obligation owed directly to the Agent or that
individual Purchaser bears to the total Secured Obligations then owed to the
Agent and the Purchase.
(c) If after applying any amounts which the Agent and the Purchasers
have received in respect of the Collateral any of the Secured Obligations remain
unpaid, the Debtors shall continue to be liable for any deficiency, together
with interest.
Section 11. Fees and Expenses, etc. Any and all fees, costs and
expenses of whatever kind or nature, including but not limited to the reasonable
attorneys' fees and legal expenses incurred by the Agent and the Purchasers in
connection with the collection, administration or enforcement of its rights
under this Agreement, the filing or recording of any documents (including all
taxes in connection therewith) in public offices, the payment or discharge of
any taxes, counsel fees, maintenance fees, fees and other costs relating to the
encumbrances or otherwise protecting, maintaining, preserving the Collateral, or
in defending or prosecuting any actions or proceedings arising out of or related
to the Collateral, shall be borne and paid by the Debtors on written demand by
the Agent, on behalf of the Agent and the Purchasers, and until so paid shall be
added to the principal amount of the Secured Obligations and shall bear interest
at a rate per annum equal to 12%. In addition, the Debtors will pay, and
indemnify and hold the Agent and the Purchasers harmless from and against, any
and all liabilities, obligations, losses, damages penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to
the Collateral, including (without limitation) claims of patent or trademark
infringement and any claim of unfair competition or anti-trust violation.
Section 12. Miscellaneous.
(a) All notices, communications and distributions hereunder shall be in
writing (including telecopied communication) and mailed by certified mail,
telecopied, personally delivered or delivered by Federal Express or other
reputable overnight courier service, if to any of the Debtors addressed to each
at the address set forth opposite each its signature below; if to the Agent,
addressed to it at the address set forth opposite its signature below; if to the
Purchasers, addressed to each at its address set forth on Schedule A, or as to
any party at such other address as shall be designated by such party in a
written notice to such other party complying as to delivery with the terms of
this Section. All such notices and other communications shall be effective (i)
if mailed by certified mail, three days after the date of deposit thereof with
the U.S. Postal Service, properly addressed with postage prepaid, (ii) if
telecopied, upon receipt by the addressee, (iii) if personally delivered, upon
such delivery and (iv) if delivered by overnight courier service, on the
business day following delivery thereof to such courier service in time for
next-business-day delivery.
(b) No delay on the part of the Agent or the Purchasers in exercising
any of their rights, remedies, powers and privileges hereunder or partial or
single exercise thereof, shall constitute a waiver thereof. None of the terms
and conditions of this Agreement may be changed, waived, modified or varied in
any manner whatsoever unless in writing duly signed by each of the Debtors and
the Agent, on behalf of the Agent and the Purchasers. No notice to or demand on
any of Debtors in any case shall entitle any of the Debtors to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Agent or the Purchasers to any other or
further action in any circumstances without notice or demand.
(c) The obligations of the Debtors hereunder shall remain in full force
and effect without regard to, and shall not be impaired by, (i) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of any of the Debtors; (ii) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect of the
Notes, this Agreement, the Warrants, or any of the Transaction Documents whereby
the Debtors have granted any Lien to the Agent and Purchasers or any other
agreement executed in connection with any of the foregoing, the Secured
Obligations or any security for any of the Secured Obligations; or (iii) any
amendment to or modification of any of the foregoing; whether or not the Debtors
shall have notice or knowledge of any of the foregoing. The rights and remedies
of the Agent and the Purchasers herein provided are cumulative and not exclusive
of any rights or remedies which the Agent and Purchasers would otherwise have.
(d) This Agreement shall remain in full force and effect and continue
to be effective should any petition be filed by or against any Debtor for
liquidation or reorganization, should any Debtor become insolvent or make an
assignment for the benefit of any creditor or creditors or should a receiver or
trustee be appointed for all or any significant part of any Debtor's assets, and
shall continue to be effective or be reinstated, as the case may be, if at any
time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
(e) This Agreement shall be binding upon each of the Debtors and their
successors and assigns and shall inure to the benefit of the Agent and the
Purchasers and their successors and assigns, except that none of the Debtors may
transfer or assign any of their obligations, rights or interest hereunder
without the prior written consent of the Agent, on behalf of the Agent and the
Purchasers, and any such purported assignment by any of the Debtors shall be
void. All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement.
(f) The Agent represents that the Purchasers have agreed to be bound by
any actions taken by the Agent, on their behalf, under this Agreement.
(g) The descriptive headings of the several sections of this Agreement
are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
(h) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(i) All rights, remedies and powers provided by this Agreement may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and the provisions hereof are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable in whole or in part or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
(j) This Agreement (unless otherwise provided) and all amendments,
supplements, waivers, consents relating hereto or thereto and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the laws of the State of New York except to the extent that matters
of title, or creation, perfection and priority of the security interests created
hereby, or procedural issues of foreclosure are required to be governed by the
laws of the state in which the Collateral, or part thereof, is located. THE
DEBTORS AGREE THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, OR ANY LEGAL ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE
ANY JUDGMENT OBTAINED AGAINST THE COMPANY FOR BREACH HEREOF OR THEREOF, OR
AGAINST ANY OF ITS PROPERTIES, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
BY THE AGENT AND THE PURCHASERS OR ON THEIR BEHALF, AS THEY MAY ELECT, AND THE
COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE
JURISIDICTION OF SUCH COURTS FOR PURPOSES OF ANY SUCH LEGAL ACTION OR
PROCEEDING. IN ADDITION, THE COMPANY HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
ANY INCONVENIENT FORUM. THE COMPANY FURTHER WAIVES TRIAL BY JURY IN ANY ACTION
BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT OF THE NOTES OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH.
(k) It is expressly agreed, anything herein, or in any of the
Transaction Documents to the contrary notwithstanding, that the Debtors shall
remain liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and the Agent and the Purchasers shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, nor shall the Agent and the Purchasers be
required or obligated in any manner to perform or fulfill any of the obligations
of the Debtors under or pursuant to any or in respect of any Collateral.
(l) This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which counterparts taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
PROXYMED, INC., as one of the Debtors
By:
--------------------------------
Name:
Title:
KEY COMMUNICATIONS SERVICE, INC.,
as one of the Debtors
By:
--------------------------------
Name:
Title:
WPJ, INC. d/b/a INTEGRATED MEDICAL
SYSTEMS, as one of the Debtors
By:
--------------------------------
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above written:
COMMONWEALTH ASSOCIATES, L.P.
By:
--------------------------------
Title:
