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EXHIBIT 10.3
SECURED CONVERTIBLE
TERM LOAN AGREEMENT
Dated: September 30, 1996
$300,000
MANAGED CARE SOLUTIONS, INC.
(the "Borrower")
and
XXXXXXX XXXXXXXX XXXXX AND XXXXXXX X. XXXXXXX,
TRUSTEES U/A DATED 12/20/93 WITH XXXXXXX XXXXXXX XXXXX,
GRANTOR KNOWN AS THE XXXXXXX XXXXXXX XXXXX
1993 GST TRUST
("WGB Trust")
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SECURED CONVERTIBLE
TERM LOAN AGREEMENT
This secured loan agreement (the "Agreement") is made and entered
into as of the 30th day of September, 1996 between Managed Care Solutions, Inc.,
a Delaware corporation ("MCS"), and Xxxxxxx XxXxxxxx Xxxxx and Xxxxxxx X.
Xxxxxxx, trustees u/a dated 12/20/93 with Xxxxxxx Xxxxxxx Xxxxx, grantor known
as the Xxxxxxx Xxxxxxx Xxxxx 1993 GST Trust (the "WGB Trust").
RECITAL
This Agreement is being entered into to provide the following
secured convertible term loan from the WGB Trust to MCS in the maximum principal
amount of $300,000 (the "Loan"). As hereinafter provided, the Loan shall be
convertible into shares of common stock of MCS.
AGREEMENTS
In consideration of the mutual representations, warranties, and
covenants set forth herein, and in consideration of the Loan made hereunder to
or for the benefit of the WGB Trust by MCS, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein:
"AHC" means Arizona Health Concepts, Inc., an Arizona corporation,
which is a wholly-owned Subsidiary of the Borrower.
"Bankruptcy Law" means any law referred to in clause (i) of
Section 6.1.7 hereof.
"Closing" means the closing referred to in Section 3.1.
"Event of Default" means an Event of Default under Section 6.1.
"Indebtedness" means, as to the Borrower or any Subsidiary, all
items of indebtedness, obligation or liability, whether matured or unmatured,
liquidated or unliquidated, direct or contingent, joint or several, including,
but without limitation:
(i) All indebtedness guaranteed, directly or indirectly, in any
manner, or endorsed (other than for collection or deposit in the ordinary
course of business) or discounted with recourse;
(ii) All indebtedness in effect guaranteed, directly or
indirectly, through agreements, contingent or otherwise: (1) to
purchase such indebtedness;
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or (2) to purchase, sell or lease (as lessee or lessor) property,
products, materials or supplies or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such
indebtedness or to assure the owner of the indebtedness against loss; or
(3) to supply funds to or in any other manner invest in the debtor;
(iii) All indebtedness secured by (or for which the holder of such
indebtedness has a right, contingent or otherwise, to be secured by) any
mortgage, deed of trust, pledge, lien, security interest or other charge
or encumbrance upon property owned or acquired subject thereto, whether or
not the liabilities secured thereby have been assumed; and
(iv) All indebtedness incurred as the lessee of goods or services
under leases that, in accordance with generally accepted accounting
principles, should not be reflected on the lessee's balance sheet.
Notwithstanding the foregoing, "Indebtedness" shall not be deemed to
include amounts due participants under certificates issued by health maintenance
organizations in the ordinary course of business unless the amount due under any
such certificate has been finally determined and remains unpaid for a period of
more than 30 days after such final determination.
"Insolvency Law" means any law referred to in clause (ii) of
Section 6.1.7.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs or decrees of any government or political subdivision or
agency thereof, or any court or similar entity established by any thereof.
"Loan" means the convertible term loan referred to in the Recital of
this Agreement and represented by the Note.
"Note" means the convertible note issued to the WGB Trust, referred
to in Section 2.4 hereof, evidencing the Loan in the form attached hereto as
Exhibit A, as such note shall be amended or restated from time to time.
"Obligations" means the obligation of the Borrower:
(i) To pay the principal of and interest on the Note in accordance
with the terms thereof and to satisfy all of its other indebtedness,
liabilities and obligations to the WGB Trust, whether hereunder or
otherwise, whether now existing or hereafter incurred, matured or
unmatured, direct or contingent, joint or several, including any
extensions, modifications, renewals thereof and substitutions therefor
(including amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy Code
(or any successor statute));
(ii) To repay to the WGB Trust all amounts advanced by the
WGB Trust hereunder on behalf of the Borrower; and
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(iii) To reimburse the WGB Trust, on demand, for all of the WGB
Trust's expenses and costs, including the reasonable fees and expenses of
its counsel, in connection with enforcement of this Agreement and the
documents required hereunder, including, without limitation, any
proceeding brought to enforce payment of any of the obligations referred
to in the foregoing paragraphs (i) and (ii).
"Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, joint
venture, court or government or political subdivision or agency thereof.
"Potential Default" means an event or condition which, but for the
lapse of time or giving of notice, or both, would constitute an Event of
Default.
"Rate" means the Rate referred to in Section 2.7.1.
"Subsidiary" means any corporation of which more than fifty percent
(50%) of the outstanding voting securities shall, at the time of determination,
be owned directly, or indirectly through one or more intermediaries, by the
Borrower. For purposes of this Agreement, the term Subsidiary shall include
Benova Managed Care Solutions, LLC, a New York limited liability company, 65% of
the equity interest of which is owned by the Borrower, except that references to
the corporate nature of Benova shall relate to its existence as a limited
liability company.
"Ventana" means Ventana Health Systems, Inc., an Arizona
corporation, which is a wholly-owned Subsidiary of the Borrower.
"Warrant" means the warrant certificate issued to the WGB Trust,
referred to in Section 2.8 hereof, evidencing the right granted to the WGB Trust
in connection with the Loan to purchase shares of common stock of the Borrower,
which Warrant shall be in the form attached hereto as Exhibit B.
Interpretation. In this Agreement, unless the context otherwise
requires:
(i) The terms "hereby," "hereof," "hereto," "hereunder," "herein"
and any similar terms used herein refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean before
the date of this Agreement;
(ii) Words contemplating the singular number shall mean and include
the plural number and vice versa;
(iii) Any headings preceding the text of the several Sections and
Paragraphs of this Agreement, and any table of contents or marginal notes
appended to copies hereof, shall be solely for the convenience of
reference and shall not constitute a part of this Agreement, nor shall
they affect its meaning, construction or effect;
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(iv) Sections and Paragraphs mentioned by number only are the
respective Sections and Paragraphs of this Agreement so numbered; and
(v) As previously disclosed to the WGB Trust by the Borrower, AHC
has a negative net worth, and without the investment of additional funds,
AHC may be unable to satisfy its obligations as they become due. To the
extent any representation, warrant, covenant or default in this Agreement
would be breached or violated due to the financial condition of AHC or its
business, such representation, warranty, covenant or default shall be
deemed not to apply to AHC.
ARTICLE II
THE LOAN
2.1 General Terms. Subject to the terms hereof, the WGB Trust will
lend the Borrower the principal sum of $300,000 on a term basis.
2.2 Disbursement of the Loan. The WGB Trust will wire transfer the
proceeds of the Loan at Closing to the Borrower's bank account as shall be
designated by Borrower at least 24 hours prior to Closing.
2.3 Use of Loan Proceeds. Proceeds of the Loan will be used by the
Borrower to satisfy existing Indebtedness, provide working capital and finance
expansion.
2.4 The Note. At the time of the making of the Loan, the Borrower
will execute and deliver the Note to the WGB Trust.
2.5 Payments of Principal. The principal of the Loan shall be repaid
as follows:
2.5.1 The principal amount of the Loan shall be due and payable on
September 30, 1999 unless (i) the Loan is automatically extended as
provided in Clause 2.5.2 below in which event the principal amount of the
Loan shall be due and payable on the date to which the Loan is
automatically extended pursuant to Clause 2.5.2 below, or (ii) the WGB
Trust otherwise agrees to an extension of the Loan; and
2.5.2 (i) In the event that on September 30, 1999 no Default or
Potential Default exists under this Agreement, the date on which the
principal of the Loan shall be repaid shall be, without any action on
behalf of the WGB Trust, automatically extended to September 30, 2000 and
(ii) in the event that on September 30, 2000 no Default or Potential
Default exists under this Agreement, the date on which the principal of
the Loan shall be repaid shall be, without any action on behalf of the WGB
Trust, automatically extended to September 30, 2001. Prior to any
automatic extension becoming effective, the Borrower shall deliver a
certificate of an officer of the Borrower to the effect that all
conditions precedent to such automatic extension have been satisfied.
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2.5.3 The Borrower shall be entitled to prepay the Loan, in whole or
in part, at any time upon delivery of not less than 45 days nor more than
60 days prior written notice to the WGB Trust of the date fixed for
payment.
2.6 Conversion Rights. The WGB Trust shall have the right, at any
time and from time to time prior to payment of the Loan in full, to convert the
Note into shares of common stock of the Borrower as more fully set forth in the
Note.
2.7 Interest Rate and Payments of Interest.
2.7.1 Interest on the Loan shall be paid as follows:
(1) Interest on the principal balance of the Loan, from time
to time outstanding, and on all other Obligations arising under this
Agreement, will be payable at a rate (the "Rate") equal to eight
percent (8%) per annum, shall be payable monthly on the last day of
the month for which such interest was earned with the final payment
of interest being due on September 30, 1999 or such later date to
which the Loan is extended pursuant to the terms hereof;
(2) If the Loan is extended as provided in Section 2.5.2,
interest accruing after September 30, 1999 shall be payable monthly
and be payable on the last day of the month for which such interest
was earned with the final payment of interest being due on September
30, 1999 or such later date to which the Loan is extended pursuant
to the terms hereof;
(3) If the Loan is prepaid either in whole or in part,
interest on any principal balance being prepaid to the prepayment
date shall be due on such date;
(4) If the Loan is converted into common stock of the Borrower
as provided in Section 3.6 and in the Note, all unpaid interest
accrued on the Loan to the conversion date shall be due on such
date; and
(5) At any time an Event of Default shall occur under this
Agreement all unpaid interest accrued on the Loan to the date such
Event of Default occurred shall be immediately due and payable.
2.7.2 If, at any time, the Rate shall be deemed by any competent
court of law, governmental agency or tribunal to exceed the maximum rate
of interest permitted by any applicable Laws, then, for such time as the
Rate would be deemed excessive, its application shall be suspended and
there shall be charged instead the maximum rate of interest permissible
under such Laws.
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2.8 Warrant. The Borrower shall deliver to the WGB Trust the Warrant
granting the WGB Trust the right to purchase 10,000 shares of common stock
(subject to anti-dilution protection) at a price equal to $4.45 per share. The
Warrant shall be subject to the terms and conditions set forth in the
certificate evidencing the Warrant and shall be exercisable on or before
September 30, 2001.
2.9 Payment to the WGB Trust. All sums payable to the WGB Trust
hereunder shall be paid directly to the WGB Trust in immediately available
funds. The WGB Trust shall send the Borrower statements of all amounts due
hereunder, which statements shall be considered correct and conclusively binding
on the Borrower unless the Borrower notifies the WGB Trust to the contrary
within 30 days of its receipt of any statement which it deems to be incorrect.
ARTICLE III
CONDITIONS PRECEDENT
The obligation of the WGB Trust to make the Loan hereunder is
subject to the following conditions precedent:
3.1 Documents Required for the Closing. The Borrower shall have
delivered to the WGB Trust, prior to the disbursement of the Loan (the
"Closing") the following:
3.1.1 The Note;
3.1.2 The Warrant; and
3.1.3 A copy of the resolutions of the Borrower's board of directors
authorizing the execution, delivery and performance of this Agreement, the
Note, and the Warrant.
3.2 Certain Events. At the time of the Closing:
3.2.1 No Event of Default or Potential Default shall have
occurred and be continuing;
3.2.2 No material adverse change shall have occurred in the
financial condition of the Borrower and its Subsidiaries, taken as a
whole, since August 31, 1996, the date of the most recent financial
statements delivered to the WGB Trust prior to the Closing; and
3.2.3 No event shall have occurred which would cause any of the
Collateral Documents not to be in full force and effect.
3.3 Legal Matters. At the time of the Closing, all legal matters
incidental to the Loan shall be reasonably satisfactory to Xxxxxx & Xxxxx,
counsel to the WGB Trust.
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3.4 Board Approval. Prior to the time of the Closing, the WGB
Trust's Board of Directors shall have authorized the Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 To induce the WGB Trust to enter into this Agreement, the
Borrower represents and warrants to the WGB Trust as follows:
4.1.1 The Borrower is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and has
all power (corporate and other) necessary to carry on its business as now
being conducted and to own, lease and operate its properties. The Borrower
is duly licensed, qualified and authorized to conduct its business in
Arizona and in all other jurisdictions in which the character and location
of the assets owned by it or the nature of the business transacted by it
requires licensing, qualification or authorization;
4.1.2 Neither the Borrower nor any Subsidiary is in default with
respect to any of its existing Indebtedness, and the making and
performance of this Agreement, the Note, and the Warrant (immediately, or
with the passage of time or the giving of notice, or both):
(1) Violate or conflict with the articles of incorporation or
bylaws of the Borrower, or violate any Laws binding upon the
Borrower or any Subsidiary or their properties;
(2) Violate or conflict with or result in a material breach of
any of the terms or conditions of or constitute a default under any
material contract, agreement, commitment, indenture, mortgage, note,
bond, license, permit, or other instrument or obligation to which
the Borrower is a party or by which any of its property or assets
are bound or affected; or
(3) Violate any order, writ, injunction or decree of any
court, administrative agency or governmental body.
4.1.3 The Borrower has the power and authority to enter into and
perform this Agreement, the Note and the Warrant, and to incur the
obligations herein and therein provided for, and has taken all corporate
action necessary to authorize the execution, delivery, and performance of
this Agreement, the Note and the Warrant to be delivered by the Borrower;
4.1.4 This Agreement, the Note and the Warrant when delivered will
be, valid, binding obligations, enforceable in accordance with their
respective terms;
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4.1.5 Except as otherwise set forth in Exhibit C to this Agreement
or in the consolidated financial statements at and for the fiscal year
ended May 31, 1996 of the Borrower and the Subsidiaries, there are no
actions, suits, investigations or proceedings pending other than actions,
suits, investigations or proceedings which are of a nature generally
encountered by the Subsidiaries in the ordinary course of their businesses
in any court or before or by any federal, state, municipal or other
governmental or non-governmental department, commission, board, bureau,
agency, or instrumentality, or to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary which seek $50,000 or
more in compensatory or punitive damages or the eventual outcome of which,
if decided adversely to the Borrower or any Subsidiary, could have a
material adverse effect on the condition, financial or otherwise, results
of operations, business or prospects, of either the Borrower and its
Subsidiaries, taken as a whole; and the aggregate damages sought in all
such actions, suits or proceedings not disclosed because they seek less
than $25,000 in compensatory or punitive damages does not exceed the
aggregate of $200,000; and there are no other proceedings, actions or
other matters pending before any insurance department to which the
Borrower, or any Subsidiary is a party;
4.1.6 Except as otherwise set forth in Exhibit C to this Agreement,
there is no pending order, stipulation or other direction from any court,
agency, department or other body with jurisdiction over the Borrower or
any Subsidiary, that would materially restrict the Borrower's or any
Subsidiary's ability to carry on their respective businesses in the manner
in which they were carried on during the periods covered by the Financial
Statements;
4.1.7 No representation or warranty by the Borrower contained herein
or in any certificate or other document furnished by the Borrower pursuant
hereto contains any untrue statement of a material fact or omits to state
a material fact necessary to make such representation or warranty not
misleading in light of the circumstances under which it was made; and
4.1.8 Each consent, approval or authorization of, or filing,
registration or qualification with, any Person which is required to be
obtained or effected by the Borrower or any Subsidiary in connection with
the execution and delivery of this Agreement, the Note and the Warrant or
the undertaking or performance of any obligation hereunder or thereunder
has been duly obtained or effected.
4.2 Survival. All of the representations and warranties set forth in
Section 4.1 shall survive until all Obligations are satisfied in full,
regardless of any investigation made by the WGB Trust or on its behalf.
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ARTICLE V
COVENANTS
The Borrower does hereby covenant and agree with the WGB Trust that,
so long as any of the Obligations remain unsatisfied, it will comply and it will
cause its Subsidiaries to comply, with the following covenants:
5.1 Affirmative Covenants of Borrower.
5.1.1 The Borrower will use the proceeds of the Loan only for the
purposes set forth in Section 2.3.
5.1.2 The Borrower and its Subsidiaries will, when requested so to
do, make available for inspection by duly authorized representatives of
the WGB Trust their Records, and will furnish the WGB Trust any
information regarding their business affairs and financial condition
within a reasonable time after written request therefor.
5.1.3 The Borrower and its Subsidiaries will take all necessary
steps to preserve their corporate existence, franchises, licenses and
certificates of authority and to comply with all present and future Laws,
applicable to them in the operation of their respective businesses, and
all material agreements to which they are subject.
5.1.4 The Borrower and its Subsidiaries will pay when due (or within
applicable grace periods) all Indebtedness due third Persons, except when
the amount thereof is being contested in good faith by appropriate
proceedings and with adequate reserves therefor being set aside on the
books of the Borrower and its Subsidiaries. If default be made by the
Borrower or any Subsidiary in the payment of any principal (or installment
thereof) of, or interest on, any such Indebtedness, the WGB Trust shall
have the right, in its discretion, to pay such interest or principal for
the account of the Borrower or such Subsidiary and be reimbursed by the
Borrower therefor. Any such payment by the WGB Trust shall be deemed an
Obligation hereunder.
5.1.5 The Borrower and its Subsidiaries will notify the WGB Trust
immediately if any of them becomes aware of the occurrence of any Event of
Default or Potential Default, or of the failure of the Borrower or any
Subsidiary to observe any of their respective undertakings hereunder.
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5.2 Negative Covenants of Borrower.
5.2.1 Neither the Borrower nor any Subsidiary will furnish the WGB
Trust any certificate or other document that will contain any untrue
statement of a material fact or that will omit to state a material fact
necessary to make it not misleading in light of the circumstances under
which it was furnished.
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default hereunder:
6.1.1 The Borrower shall fail to pay any installment of principal of
the Loan or any other Obligation when due and such failure shall continue
for a period of five days;
6.1.2 The Borrower shall fail to pay any installment of interest on
the Loan or any other Obligation hereunder when due and such failure shall
continue for a period of five days;
6.1.3 The Borrower or any Subsidiary shall fail to observe or
perform any other obligation to be observed or performed by them hereunder
or under any of the Collateral Documents, and such failure shall continue
for 30 days after: (1) notice of such failure from the WGB Trust; or (2)
the WGB Trust is notified of such failure or should have been so notified
pursuant to the provisions of Article VI, whichever is earlier;
6.1.4 The Borrower or any Subsidiary shall fail to pay any
Indebtedness due any third Person and such failure shall continue beyond
any applicable grace period, or the Borrower or any Subsidiary shall
suffer to exist any other default under any agreement binding upon the
Borrower or any Subsidiary unless, in either instance, the Borrower or
such Subsidiary shall have commenced an appropriate action or proceeding
challenging in good faith its obligation to make such payment or to
perform under such agreement and any action by the holder of such
Indebtedness to enforce payment thereof or of the other party to such
agreement to require performance or obtain damages under such agreement
shall have been effectively suspended, enjoined or otherwise stayed
pending a determination in the Borrower's or the Subsidiary's action or
proceeding. Such action or proceeding shall be diligently pursued by the
Borrower or the Subsidiary or the Borrower shall have otherwise posted a
bond (any reimbursement obligations under which shall be subordinate to
all rights of the WGB Trust hereunder) or additional Collateral in either
case in a form and amount satisfactory to the WGB Trust;
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6.1.5 Any financial statement, representation, warranty or
certificate made or furnished by the Borrower or any Subsidiary to the WGB
Trust in connection with this Agreement, or as inducement to the WGB Trust
to enter into this Agreement, or in any separate statement or document to
be delivered hereunder to the WGB Trust, shall be materially false,
incorrect, or incomplete when made;
6.1.6 The Borrower or any Subsidiary (other than AHC) shall admit
its inability to pay its debts as they mature, or shall make an assignment
for the benefit of its, or any of its, creditors;
6.1.7 (i) an order, judgment or decree is entered under the
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law
("Bankruptcy Law") adjudicating the Borrower or any Subsidiary (other than
AHC) bankrupt or insolvent or (ii) an order, judgment or decree is entered
pursuant to the insurance or other laws of any state for the purpose of
liquidating, rehabilitating, reorganizing, or conserving any Subsidiary
(the "Insolvency Law");
6.1.8 The Borrower or any Subsidiary petitions or applies to any
tribunal for, or consents to, the appointment of, or taking possession by,
a trustee, receiver, custodian, liquidator, rehabilitator, conservator or
similar official, of the Borrower or any Subsidiary (other than AHC) of
any substantial part of the assets of the Borrower or any Subsidiary
(other than AHC) or if the Borrower commences a voluntary case under
Bankruptcy Law or any Subsidiary or state commences a proceeding for the
purpose of liquidating, rehabilitating, reorganizing, or conserving any
Subsidiary under the Insolvency Law, whether now or hereafter in effect;
6.1.9 A petition or application referred to in Section 7.1.2 is
filed, or any such proceedings are commenced, against the Borrower or any
Subsidiary (other than AHC) and the Borrower or such Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence therein,
or an order for the relief is entered in an involuntary case against the
Borrower or any Subsidiary (other than AHC) under any Bankruptcy Law or
Insolvency Law, as the case may be, as now or hereafter constituted, or an
order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving the
petition or application in any such proceedings, and any such order,
judgment or decree remains unstayed and in effect for more than 60
calendar days;
6.1.10 Any order, judgment or decree is entered in any proceedings
against the Borrower or Ventana decreeing the dissolution or liquidation
of the Borrower or Ventana and such order, judgment or decree remains
unstayed;
6.1.11 The Borrower or any Subsidiary shall suffer final
nonappealable judgments for payment of money aggregating in excess of
$50,000 and shall not
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discharge the same within a period of 30 days or when due, whichever is
later, unless, pending further proceedings, execution has not been
commenced or if commenced has been effectively stayed;
6.1.12 The validity or enforceability of this Agreement, the Note or
the Warrant shall be contested by the Borrower, or the Borrower shall deny
that it has any or further liability or obligation hereunder or
thereunder.
6.2 Acceleration. Immediately and without notice upon the occurrence
of an Event of Default specified in the foregoing paragraphs 6.1.1, 6.1.2,
6.1.3, 6.1.4 or 6.1.5, or at the option of the WGB Trust, but only upon notice
to the Borrower, upon the occurrence of any other Event of Default, all
Obligations, whether hereunder or otherwise, shall immediately become due and
payable without further action of any kind.
6.3 Remedies. After any acceleration, as provided for in Section
7.2, the WGB Trust shall have, in addition to the rights and remedies given it
by this Agreement and the Collateral Documents, all those allowed by all
applicable Laws, including, but without limitation, the Uniform Commercial Code
as enacted in any jurisdiction in which any Collateral may be located. Without
limiting the generality of the foregoing, the WGB Trust may immediately, without
demand of performance and without other notice (except as specifically required
by this Agreement or the Collateral Documents) or demand whatsoever to the
Borrower, all of which are hereby expressly waived, and without advertisement,
sell at public or private sale or otherwise realize upon, in Phoenix, Arizona,
or elsewhere, the whole or, from time to time, any part of the Collateral, or
any interest which the Borrower may have therein. After deducting from the
proceeds of sale or other disposition of the Collateral all expenses (including
all reasonable expenses for legal services), the WGB Trust shall apply such
proceeds toward the satisfaction of the Obligations. Any remainder of the
proceeds after satisfaction in full of the Obligations shall be distributed as
required by applicable Laws. Notice of any sale or other disposition shall be
given to the Borrower at least five days before the time of any intended public
sale or of the time after which any intended private sale or other disposition
of the Collateral is to be made, which the Borrower hereby agrees shall be
reasonable notice of such sale or other disposition. The Borrower agrees to
assemble, or to cause to be assembled, at its own expense, the Collateral at
such place or places as the WGB Trust shall designate. At any such sale or other
disposition, the WGB Trust may, to the extent permissible under applicable Laws,
purchase the whole or any part of the Collateral, free from any right of
redemption on the part of the Borrower, which right is hereby waived and
released. Without limiting the generality of any of the rights and remedies
conferred upon the WGB Trust under this paragraph, the WGB Trust may, to the
full extent permitted by applicable Laws:
6.3.1 Enter upon the premises of the Borrower, exclude therefrom the
Borrower or any affiliate thereof, and take immediate possession of the
Collateral, either personally or by means of a receiver appointed by a
court of competent jurisdiction, using all necessary force to do so;
6.3.2 At the WGB Trust's option, use, operate, manage and
control the Collateral in any lawful manner;
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6.3.3 Collect and receive all rents, income, revenue, earnings,
issues and profits therefrom; and
6.3.4 Maintain, repair renovate, alter or remove the Collateral as
the WGB Trust may determine in its discretion.
ARTICLE VII
MISCELLANEOUS
7.1 Construction. The provisions of this Agreement shall be in
addition to those of any pledge or security agreement, note or other evidence of
liability held by the WGB Trust, all of which shall be construed as
complementary to each other. Nothing herein contained shall prevent the WGB
Trust from enforcing any or all other notes, guaranty, pledge or security
agreements in accordance with their respective terms.
7.2 Enforcement and Waiver by the WGB Trust. The WGB Trust shall
have the right at all times to enforce the provisions of this Agreement in
strict accordance with the terms hereof and thereof, notwithstanding any conduct
or custom on the part of the WGB Trust in refraining from so doing at any time
or times. The failure of the WGB Trust at any time or times to enforce its
rights under such provisions, strictly in accordance with the same, shall not be
construed as having created a custom in any way or manner contrary to specific
provisions of this Agreement or as having in any way or manner modified or
waived the same. All rights and remedies of the WGB Trust are cumulative and
concurrent and the exercise of one right or remedy shall not be deemed a waiver
or release of any other right or remedy.
7.3 Expenses. The Borrower and the WGB Trust shall each pay their
own respective expenses incurred in connection with the negotiation and
execution of this Agreement.
7.4 Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be deemed delivered if delivered in
person or if sent by certified mail, postage prepaid, return receipt requested,
by an established and reputable overnight express delivery service or by
facsimile transmission, as follows, unless such address is changed by written
notice hereunder:
If to the Borrower:
Managed Care Solutions, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
If to the WGB Trust:
Xxxxxxx XxXxxxxx Xxxxx, Trustee
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0000 X. Xxxxx Xxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
7.5 Waiver and Release by the Borrower. To the maximum extent
permitted by applicable laws, the Borrower releases the WGB Trust and its
officers, attorneys, agents and employees from all claims for loss or damage
caused by any act or omission on the part of any of them except for its gross
negligence or willful misconduct.
7.6 Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to any party, the determination of such satisfaction
shall be made by such party in its sole and exclusive judgment exercised in good
faith in a commercially reasonable manner.
7.7 Applicable Law. The laws of the State of Arizona applicable to
contracts made and to be performed in that state shall govern the construction
of this Agreement and the rights and remedies of the parties hereto without
regard to conflict of laws provisions.
7.8 Binding Effect, Assignment and Entire Agreement. This Agreement
shall inure to the benefit of, and shall be binding upon, the respective
successors and permitted assigns of the parties hereto. The Borrower has no
right to assign any of its rights or obligations hereunder without the prior
written consent of the WGB Trust. This Agreement, and the documents executed and
delivered pursuant hereto, constitute the entire agreement between the parties,
and may be amended only by a writing signed on behalf of each party.
7.9 Severability. If any provision of this Agreement shall be held
invalid under any applicable Laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end the provisions hereof are severable.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MANAGED CARE SOLUTIONS, INC.
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
Vice President
XXXXXXX XXXXXXXX XXXXX AND XXXXXXX X.
XXXXXXX, TRUSTEES U/A DATED 12/20/93
WITH XXXXXXX XXXXXXX XXXXX, GRANTOR
KNOWN AS THE XXXXXXX XXXXXXX XXXXX
1993 GST TRUST
By /s/ Xxxxxxx XxXxxxxx Xxxxx
--------------------------------
Xxxxxxx XxXxxxxx Xxxxx, Trustee
and
By /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
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