WCMA® REDUCING REVOLVERSM LOAN AND SECURITY AGREEMENT
EXHIBIT
10.4
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WCMA® REDUCING REVOLVERSM LOAN AND SECURITY AGREEMENT |
WCMA
REDUCING
REVOLVERSM LOAN AND SECURITY AGREEMENT NO. 81V-02075 (“Loan
Agreement”) dated as of September 22, 2006, between CONTINUCARE MDHC, LLC, a limited liability
company organized and existing under the laws of the State of Florida having its principal office
at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000 (“Customer”), and XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC., a corporation organized and existing under the laws of the State of
Delaware having its principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000 (“MLBFS”).
Pursuant
to that certain WORKING CAPITAL MANAGEMENT® ACCOUNT AGREEMENT NO. 81V-02075 and the
accompanying Program Description (as the same may be, or have been, amended, modified or
supplemented, the “WCMA Agreement”) between Customer and MLBFS’ affiliate, XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED (“MLPF&S”), Customer opened, or shall prior to the Activation Date
open, a Working Capital Management Account pursuant to the “WCMA Service” and the “WCMA Program”
described in the WCMA Agreement and any documents incorporated therein. The WCMA Agreement is by
this reference incorporated as a part hereof. In conjunction therewith, Customer has requested that
MLBFS make a reducing revolving credit facility available to Customer (the “Reducing Revolver”) in
the amount and upon the terms hereafter specified, and, subject to the terms and conditions
hereafter set forth, MLBFS has agreed to provide a Reducing Revolver
for Customer.
Accordingly, and in consideration of the premises and of the mutual covenants of the parties
hereto, Customer and MLBFS hereby agree as follows:
1.1 Specific Terms. In addition to terms defined elsewhere in this Loan Agreement, when used
herein the following terms shall have the following meanings:
“Anti-Terrorism and Anti-Money Laundering Laws” shall mean (a) all applicable laws, regulations,
executive orders and government guidance on the prevention and detection of money laundering
(including 18 U.S.C. §§ 1956 and 1957), drug trafficking, terrorist-related activities, or
financial or other fraud; (b) the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq. and 12 U.S.C.
§§1818(s), 1829(b) and 1951-1959) and its implementing regulations, and (c) all regulations and any
other requirements of any governmental authority (including, without limitation, the United States
Department of the Treasury Office of Foreign Assets Control) addressing, relating to, or attempting
to eliminate drug trafficking, terrorist acts and acts of war.
“Activation Date” shall mean the date upon which MLBFS shall cause the WCMA Line of Credit to be
fully activated under MLPF&S’ computer system as part of the WCMA Program.
“Bankruptcy Event” shall mean any of the following: (i) a proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, liquidation, winding up or
receivership law or statute shall be commenced, filed or consented to by any Credit Party; or (ii)
any such proceeding shall be filed against any Credit Party and shall not be dismissed or withdrawn
within sixty (60) days after filing; or (iii) any Credit Party shall make a general assignment for
the benefit of creditors; or (iv) any Credit Party shall generally fail to pay or admit in writing
its inability to pay its debts as they become due; or (v) any Credit Party shall be adjudicated a
bankrupt or insolvent; or (vi) any Credit Party shall take advantage of any other law or procedure
for the relief of debtors or shall take any action for the purpose of or with a view towards
effecting any of the foregoing; or (vii) a receiver, trustee, custodian, fiscal agent or similar
official for any Credit Party or for any substantial part of any of their respective property or
assets shall be sought by such Credit Party or appointed.
“Business Day” shall mean any day other than a Saturday, Sunday, federal holiday or other day on
which the New York Stock Exchange is regularly closed.
“Business Guarantor” shall mean every
Guarantor that is not a natural person.
“Certificate of Compliance” shall mean, as applicable, that duly executed certificate,
substantially the same form as Exhibit B attached hereto to the extent such certificate shall be
applicable, of the president, chief
financial officer or chief executive officer of Customer, certifying as to the matters set forth
in such certificate.
“Closing Date” shall mean the date upon which all conditions precedent to MLBFS’ obligation to
make the Loan shall have been met to the satisfaction of MLBFS.
“Collateral” shall mean all Accounts, Chattel Paper, Contract Rights, Inventory, Equipment,
Fixtures, General Intangibles, Deposit Accounts, Documents, Instruments, Investment Property and
Financial Assets of Customer, howsoever arising, whether now owned or existing or hereafter
acquired or arising, and wherever located; together with all parts thereof (including spare
parts), all accessories and accessions thereto, all books and records (including computer records)
directly related thereto, all proceeds thereof (including, without limitation, proceeds in the
form of Accounts and insurance proceeds), and the additional collateral described in Section 4.6
(b) hereof.
“Commitment
Expiration Date” shall mean September 29, 2006.
“Commitment
Fee” shall mean a fee of $5,000.00 due to MLBFS in connection with this Loan
Agreement.
“Credit Party” and “Credit Parties” shall mean, individually or collectively, the Customer, all
Guarantors and all Pledgors.
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“Default” shall mean either an “Event of Default” as defined in Section 4.5 hereof, or an event
which with the giving of notice, passage of time, or both, would constitute such an Event of
Default.
“Default Rate” shall mean an annual interest rate equal to the lesser of: (i) two percentage points
over the Interest Rate; or (ii) the highest interest rate allowed by applicable law.
“Event
of Loss” shall mean the occurrence whereby any tangible Collateral is damaged beyond repair,
lost, totally destroyed or confiscated.
“Excess Interest” shall mean any amount or rate of interest (including the Default Rate and, to the
extent that they may be deemed to constitute interest, any prepayment fees, late charges and other
fees and charges) payable, charged or received in connection with any of the Loan Documents which
exceeds the maximum amount or rate of interest permitted under
applicable law.
“GAAP” shall mean the generally accepted accounting principles in effect in the United States of
America from time to time.
“General Funding Conditions” shall mean each of the following conditions precedent to the
obligation of MLBFS to make the Loan or any Subsequent WCMA Loan hereunder: (i) Customer shall have
validly subscribed to and continued to maintain the WCMA Account with MLPF&S, and the WCMA Account
shall then be reflected as an active “commercial” WCMA Account (i.e., one with line of credit
capabilities) on MLPF&S’ WCMA computer system; (ii) no Default or Event of Default shall have
occurred and be continuing or would result from the making of the Loan or such Subsequent WCMA Loan
by MLBFS; (iii) there shall not have occurred and be continuing any material adverse change in the
business or financial condition of any Credit Party; (iv) all representations and warranties of all
of the Credit Parties herein or in any of the Loan Documents shall
then be true and correct in all
material respects; (v) MLBFS shall have received this Loan Agreement and all of the other Loan
Documents, duly executed and filed or recorded where applicable, all of
which shall be in form and substance reasonably satisfactory to MLBFS; (vi) the Commitment Fee
shall have been paid in full; (vii) MLBFS shall have received, as and to the extent applicable,
copies of invoices, bills of sale, loan payoff letters and/or other evidence reasonably
satisfactory to it that the proceeds of the Loan will satisfy the Loan Purpose; (viii) MLBFS shall
have received evidence reasonably satisfactory to it as to the ownership of the Collateral and the
perfection and priority of MLBFS’ liens and security interests thereon, as well as the ownership of
and the perfection and priority of MLBFS’ liens and security interests on any other collateral for
the Obligations furnished pursuant to any of the Loan Documents; (ix) MLBFS shall have received
evidence reasonably satisfactory to it of the insurance required hereby or by any of the Loan
Documents; and (x) any additional conditions specified in the “WCMA Reducing Revolver Loan
Approval” letter executed by MLBFS with respect to the transactions contemplated hereby shall have
been met to the reasonable satisfaction of MLBFS.
“Guarantor” shall mean each Person obligated under a guaranty, endorsement or other undertaking by
which such Person guarantees or assumes responsibility in any capacity for the payment or
performance of any of the Obligations.
“Individual Guarantor” shall mean each Guarantor who is a natural person.
“Interest Due Date” shall mean the first Business Day of each calendar month during the term
hereof.
“Interest Rate” shall mean a variable per annum rate of interest equal to the sum of 2.40%, plus
the One-Month LIBOR. “One-Month LIBOR” shall mean, as of the date of any determination, the
interest rate then most recently published in the “Money
Rates” section of The Wall Street Journal
as the one-month London Interbank Offered Rate (or if more than one such rate is published, the
highest of such rates). The Interest Rate will change as of the date
of publication in The Wall
Street Journal of a One-Month LIBOR that is different from that published on the preceding
Business Day. In the event that The Wall Street Journal shall, for any reason, fail or cease to
publish the One-Month LIBOR, MLBFS will choose a reasonably comparable index or source to use as
the basis for the Interest Rate.
“Loan” shall mean the specific Reducing Revolver by MLBFS to Customer pursuant to this Agreement
for the Loan Purpose and in the Loan Amount.
“Loan
Amount” shall mean an amount equal to the lesser of:
(i) the amount necessary to fulfill the loan purpose or
(ii) $1,000,000.00.
“Loan Documents” shall mean this Loan Agreement, any indenture, any guaranty of any of the
Obligations and all other security and other instruments, assignments, certificates,
certifications and agreements of any kind relating to any of the Obligations, whether obtained,
authorized, authenticated, executed, sent or received concurrently with or subsequent to this Loan
Agreement, or which evidence the creation, guaranty or collateralization of any of the Obligations
or the granting or perfection of liens or security interests upon any Collateral or any other
collateral for the Obligations, including any modifications, amendments or restatements of the
foregoing.
“Loan
Purpose” shall mean the purpose for which the proceeds of the Loan will be used; to wit: to refinance equipment
debt, working capital debt and real estate debt being assumed with the acquisition of Miami-Dade Health Centers and
affiliated companies.
“Location of Tangible Collateral” shall mean the address of Customer set forth at the beginning of
this Loan Agreement, together with any other address or addresses set forth on an exhibit hereto
as being a Location of Tangible Collateral.
“Maximum WCMA Line of Credit” shall mean the maximum aggregate line of credit which MLBFS will
extend to Customer subject to the terms and conditions hereof, as the same shall be reduced each
month in accordance with the terms hereof. On the Closing Date, the Maximum WCMA Line of Credit
will equal the Loan Amount.
“Obligations” shall mean all liabilities, indebtedness and other obligations of Customer and
of Continucare Corporation (“CC”) to MLBFS, howsoever created, arising or evidenced, whether now
existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to become
due, primary or secondary or joint or several, and, without limiting the generality of the
foregoing, shall include principal, accrued interest (including without limitation interest
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accruing after the filing of any petition in bankruptcy), all advances made by or on behalf of
MLBFS under the Loan Documents, collection and other costs and expenses incurred by or on behalf of
MLBFS, whether incurred before or after judgment, and all present and future liabilities,
indebtedness and obligations of Customer under this Loan Agreement (as amended from time to time)
and under that certain WCMA Reducing Revolver Loan and Security
Agreement No. 81V-02074 (as amended
from time to time), and of CC under that certain WCMA Loan and Security Agreement No. 81V-07064 (as
amended from time to time).
“Permitted
Liens” shall mean with respect to the Collateral: (i) liens for current taxes not yet
due and payable, other non-consensual liens arising in the ordinary course of business for sums not
due, and, if MLBFS’ rights to and interest in the Collateral are not materially and adversely
affected thereby, any such liens for taxes or other non-consensual liens arising in the ordinary
course of business being contested in good faith by appropriate proceedings; (ii) liens in favor of
MLBFS; (iii) liens which will be discharged with the proceeds of the initial WCMA Loan; and (iv)
any other liens expressly permitted in writing by MLBFS.
“Person” shall mean any natural person and any corporation, partnership (general, limited or
otherwise), limited liability company, trust, association, joint venture, governmental body or
agency or other entity having legal status of any kind.
“Pledgor” shall mean each Person who at any time provides collateral, or otherwise now or
hereinafter agrees to grant MLBFS a security interest in any assets as security for Customer’s
Obligations.
“Subsequent WCMA Loan” shall mean each WCMA Loan other than the Loan, including, without
limitation, each WCMA Loan to pay accrued interest.
“Termination
Date” shall mean the first to occur of: (i) the last
Business Day of the forty-eighth
(48th) full calendar month following the Closing Date, or (ii) if earlier, the date of termination
of the WCMA Line of Credit pursuant to the terms hereof.
“WCMA Account” shall mean and refer to the Working Capital Management Account of Customer with
MLPF&S identified as WCMA Account No. 81V-02075 and any successor Working Capital Management
Account of Customer with MLPF&S.
“WCMA Line of Credit” shall mean the line of credit funded by MLBFS through the WCMA Account.
“WCMA Loan” shall mean each advance made by MLBFS pursuant to the WCMA Line of Credit, including
the Loan and each Subsequent WCMA Loan.
“WCMA Loan Balance” shall mean an amount equal to the aggregate unpaid principal balance of all
WCMA Loans.
“UCC” shall mean the Uniform Commercial Code of Illinois as in effect in Illinois from time to
time.
1.2
Other Terms. Except as otherwise defined herein: (i) all terms used in this Loan Agreement
which are defined in the UCC shall have the meanings set forth in the UCC, and (ii) capitalized
terms used herein which are defined in the WCMA Agreement (including, without limitation, “Money
Accounts”, “Minimum Money Accounts Balance”, and “WCMA Directed Reserve Program”) shall have the
meanings set forth in the WCMA Agreement; and (iii) accounting terms not defined herein shall have
the meaning ascribed to them in GAAP.
1.3 UCC
Filing. Customer hereby authorizes MLBFS to file a record or records (as defined or
otherwise specified under the UCC), including, without limitation, financing statements, in all
jurisdictions and with all filing offices as MLBFS may determine, in its sole discretion, are
necessary or advisable to perfect the security interest granted to MLBFS herein. Such financing
statements may describe the Collateral in the same manner as described herein or may contain an
indication or description of collateral that describes such property in any other manner as MLBFS
may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection
of the security interest in the Collateral granted to the MLBFS
herein.
2.1
Commitment. Subject to the terms and conditions hereof, MLBFS hereby agrees to make the Loan to
Customer, and Customer hereby agrees to borrow the Loan from MLBFS. Except as otherwise provided in
Section 3.1 hereof, the entire proceeds of the Loan will be disbursed by MLBFS out of the WCMA Line
of Credit either directly to the applicable third party or parties on account of the Loan Purpose
or to reimburse Customer for amounts directly expended by it for the Loan Purpose; all as directed
by Customer in a Closing Certificate to be executed and delivered to MLBFS prior to the date of
funding.
2.2
Conditions of MLBFS’ Obligation. The Closing Date and MLBFS’ obligations to activate the WCMA
Line of Credit, as hereafter set forth, and make the Loan on the Closing Date are subject to the
prior fulfillment of each of the following conditions: (a) not less than two Business Days prior to
any requested funding date, MLBFS shall have received a Closing Certificate, duly executed by
Customer, setting forth, among other things, the amount of the Loan and the method of payment and
payee(s) of the proceeds thereof; (b) after giving effect to the Loan, the WCMA Loan Balance will
not exceed either the Maximum WCMA Line of Credit or the Loan Amount; (c) the Commitment Expiration
Date shall not then have occurred; and (d) each of the General Funding Conditions shall then have been met or satisfied to the reasonable satisfaction of
MLBFS.
2.3
Commitment Fee. In consideration of the agreement by MLBFS to extend the Loan and any
Subsequent WCMA Loans to Customer in accordance with and subject to the terms hereof, Customer has
paid or shall, on or before the Closing Date pay, the Commitment Fee to MLBFS. Customer
acknowledges and agrees that the Commitment Fee has been fully earned by MLBFS, and that it will
not under any circumstances be refundable.
2.4 Use
of Loan Proceeds. Unless otherwise agreed by MLBFS in writing, the proceeds of the Loan
shall be used solely for the Loan Purpose. The Proceeds of each Subsequent WCMA Loan initiated by
Customer shall be used by Customer solely for working capital in the ordinary course of its
business, or, with the prior written consent of MLBFS, for other lawful business purposes of
Customer not prohibited hereby. Customer agrees that under no
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circumstances will the proceeds of the Loan or any Subsequent WCMA Loan be used: (i) for personal,
family or household purposes of any person whatsoever, or (ii) to purchase, carry or trade in
securities, or repay debt incurred to purchase, carry or trade in securities, whether in or in
connection with the WCMA Account, another account of Customer with MLPF&S or an account of Customer
at any other broker or dealer in securities, or (iii) unless otherwise consented to in writing by
MLBFS, to pay any amount to Xxxxxxx Xxxxx and Co., Inc. or any of its subsidiaries, other xxxx
Xxxxxxx Xxxxx Bank USA, Xxxxxxx Xxxxx Bank & Trust Co. or any subsidiary of either of them
(including MLBFS and Xxxxxxx Xxxxx Credit Corporation).
Article III. THE WCMA LINE OF CREDIT
3.1
Activation of the WCMA Line of Credit. Subject to the terms and conditions hereof, on the
Closing Date MLBFS will activate a WCMA Line of Credit for Customer
in the Loan Amount. The Loan
will be funded out of the WCMA Line of Credit immediately after such activation (or, if and to the
extent otherwise expressly contemplated in the definition of Loan Purpose or otherwise directed in
the Closing Certificate and hereafter expressly agreed by MLBFS, all or part of the Loan may be
made available as a WCMA Line of Credit and funded by Customer.)
3.2 Subsequent WCMA Loans. Subject to the terms and conditions hereof, during the period from and
after the Closing Date to the Termination Date: (a) Customer may repay the WCMA Loan Balance in
whole or in part at any time without premium or penalty, and request a re-borrowing of amounts
repaid on a revolving basis, and (b) in addition to Subsequent WCMA Loans made automatically to pay
accrued interest, as hereafter provided, MLBFS will make such Subsequent WCMA Loans as Customer may
from time to time request or be deemed to have requested in accordance with the terms hereof.
Customer may request Subsequent WCMA Loans by use of WCMA Checks,
FTS, Visa® charges, wire
transfers, or such other means of access to the WCMA Line of Credit as may be permitted by MLBFS
from time to time; it being understood that so long as the WCMA Line of Credit shall be in effect,
any charge or debit to the WCMA Account which but for the WCMA Line of Credit would under the terms
of the WCMA Agreement result in an overdraft, shall be deemed a request by Customer for a
Subsequent WCMA Loan.
3.3 Conditions of Subsequent WCMA Loans. Notwithstanding the foregoing, MLBFS shall not be
obligated to make any Subsequent WCMA Loan, and may without notice refuse to honor any such request
by Customer, if at the time of receipt by MLBFS of Customer’s request: (a) the making of such
Subsequent WCMA Loan would cause the Maximum WCMA Line of Credit, as reduced pursuant to the
provisions of Section 3.6 hereof, to be exceeded; or (b) the Termination Date shall have occurred;
or (c) an event shall have occurred and be continuing which shall have caused any of the General
Funding Conditions to not then be met or satisfied to the reasonable satisfaction of MLBFS. The
making by MLBFS of any Subsequent WCMA Loan (including, without limitation, the making of a
Subsequent WCMA Loan to pay accrued interest or late charges, as hereafter provided) at a time when
any one or more of said conditions shall not have been met shall not
in any event be construed as a
waiver of said condition or conditions or of any Default, and shall not prevent MLBFS at any time
thereafter while any condition shall not have been met from refusing to honor any request by
Customer for a Subsequent WCMA Loan.
3.4
WCMA Note. Customer hereby promises to pay to the order of MLBFS, at the times and in the
manner set forth in this Loan Agreement, or in such other manner and at such place as MLBFS may
hereafter designate in writing: (a) the WCMA Loan Balance; (b) interest at the Interest Rate on the
outstanding WCMA Loan Balance (computed for the actual number of days elapsed on the basis of a
year consisting of 360 days), from and including the date on which the Loan is made until the date
of payment of all WCMA Loans in full; and (c) on demand, all other sums payable pursuant to this
Loan Agreement, including, but not limited to, any late charges. Except as otherwise expressly set
forth herein, Customer hereby waives presentment, demand for payment, protest and notice of
protest, notice of dishonor, notice of acceleration, notice of intent to accelerate and all other
notices and formalities in connection with this WCMA Note and this Loan Agreement.
3.5
Interest. (a) An amount equal to accrued interest on the daily WCMA Loan Balance shall be
payable by Customer monthly on each Interest Due Date, commencing with the first Interest Due Date
after the Closing Date shall occur. Unless otherwise hereafter directed in writing by MLBFS on or
after the Termination Date, such interest will be automatically charged to the WCMA Account on the
applicable interest Due Date, and, to
the extent not paid with free credit balances or the proceeds of sales of any Money Accounts then
in the WCMA Account, as hereafter provided, such interest will be paid by a Subsequent WCMA Loan
and added to the WCMA Loan Balance. All interest shall be computed for the actual number of days
elapsed on the basis of a year consisting of 360 days.
(b) Upon the occurrence and during the continuance of any Default, but without limiting the rights
and remedies otherwise available to MLBFS hereunder or waiving such Default, the interest payable
by Customer hereunder shall at the option of MLBFS accrue and be payable at the Default Rate. The
Default Rate, once implemented, shall continue to apply to the Obligations under this Loan
Agreement and be payable by Customer until the date MLBFS gives written notice that such Default
has been cured to the satisfaction of MLBFS.
(c) Notwithstanding any provision to the contrary in any of the Loan Documents, no provision of the
Loan Documents shall require the payment or permit the collection of Excess Interest. If any Excess
Interest is provided for, or is adjudicated as being provided for, in the Loan Documents, then; (i)
Customer shall not be obligated to pay any Excess Interest; and (ii) any Excess Interest that MLBFS
may have received hereunder or under any of the Loan Documents shall, at the option of MLBFS, be
either applied as a credit against the then unpaid WCMA Loan Balance, or refunded to the payor
thereof.
3.6 Periodic Reduction of Maximum WCMA Line of Credit. Commencing on the last Business Day of the
first full calendar month following the Closing Date, and continuing on the last Business Day of
each calendar month thereafter to and including the last Business Day
of the forty-seventh (47th)
such calendar month, the Maximum WCMA Line of Credit shall be reduced
by an amount equal to one-forty-eight (1/48th) of the Loan Amount per month. Unless the WCMA Line of Credit shall have
been earlier terminated pursuant to the terms hereof, on the last
Business Day of the forty-eight (48th) such calendar month, the WCMA Line of Credit shall, without further action of either of the
parties hereto, be terminated, Customer shall pay to MLBFS the entire WCMA Loan Balance, if any,
and all other Obligations, and the WCMA Account, at the option of Customer, will either be
converted to a WCMA Cash
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Account (subject to any requirements of MLPF&S) or terminated. No failure or delay on the part of
MLBFS in entering into the WCMA computer system any scheduled reduction in the Maximum WCMA Line of
Credit pursuant to this Section shall have the effect of preventing or delaying such reduction.
3.8
Method of Making Payments. All payments required or permitted to be made pursuant to this Loan
Agreement shall be made in lawful money of the United States. Unless otherwise hereafter directed
by MLBFS, such payments may be made by the delivery of checks (other than WCMA Checks), or by means
of FTS or wire transfer of funds (other than funds from the WCMA Line of Credit) to MLPF&S for
credit to the WCMA Account. Payments to MLBFS from funds in the WCMA Account shall be deemed to be
made by Customer upon the same basis and schedule as funds are made available for investment in the
Money Accounts in accordance with the terms of the WCMA Agreement. The acceptance by or on behalf
of MLBFS of a check or other payment for a lesser amount than shall be due from Customer,
regardless of any endorsement or statement thereon or transmitted therewith, shall not be deemed an
accord and satisfaction or anything other than a payment on account, and MLBFS or anyone acting on
behalf of MLBFS may accept such check or other payment without prejudice to the rights of MLBFS to
recover the balance actually due or to pursue any other remedy under this Loan Agreement or
applicable law for such balance. All checks accepted by or on behalf of MLBFS in connection with
this Loan Agreement are subject to final collection.
3.9
Irrevocable Instructions to MLPF&S. In order to minimize the WCMA Loan Balance, Customer hereby
irrevocably authorizes and directs MLPF&S, effective on the Closing Date and continuing thereafter
so long as this Loan Agreement shall be in effect: (a) to immediately and prior to application for
any other purpose pay to MLBFS to the extent of any WCMA Loan Balance or other amounts payable by
Customer hereunder all available free credit balances from time to time in the WCMA Account; and
(b) if such available free credit balances are insufficient to pay the WCMA Loan Balance and such
other amounts, and there are in the WCMA Account at any time any investments in Money Accounts
(other than any investments constituting any Minimum Money Accounts Balance under the WCMA Directed
Reserve Program), to immediately liquidate such investments and pay to MLBFS to the extent of any
WCMA Loan Balance and such other amounts the available proceeds from the liquidation of any such
Money Accounts.
3.10
Late Charge. Any payment or deposit required to be made by Customer pursuant to the Loan
Documents not paid or made within ten (10) days of the applicable due date shall be subject to a
late charge in an amount equal to the lesser of: (a) 5% of the overdue amount, or (b) the maximum
amount permitted by applicable law. Such late charge shall be payable on demand, or, without
demand, may in the sole discretion of MLBFS be paid by a Subsequent WCMA Loan and added to the WCMA
Loan Balance in the same manner as provided herein for accrued interest with respect to the WCMA
Line of Credit.
3.11
Prepayment. Customer may prepay the Loan and any Subsequent WCMA Loan at any time in whole or
in part without premium or penalty.
3.12
Option of Customer to Terminate. Customer will have the option to terminate the WCMA Line of
Credit at any time upon written notice to MLBFS. Concurrently with any such termination, Customer
shall pay to MLBFS the entire WCMA Loan Balance and all other Obligations.
3.13
Limitation of Liability. MLBFS shall not be responsible, and shall have no liability to
Customer or any other party, for any delay or failure of MLBFS to honor any request of Customer for
a WCMA Loan or any other act or omission of MLBFS, MLPF&S or any of their affiliates due to or
resulting from any system failure, error or delay in posting or other clerical error, loss of
power, fire, Act of God or other cause beyond the reasonable control of MLBFS, MLPF&S or any of
their affiliates unless directly arising out of the willful wrongful act or active gross negligence
of MLBFS. In no event shall MLBFS be liable to Customer or any other party for any incidental or
consequential damages arising from any act or omission by MLBFS, MLPF&S or any of their
affiliates in connection with the WCMA Line of Credit or this Loan Agreement.
3.14
Statements. MLPF&S will include in each monthly statement it issues under the WCMA Program
information with respect to WCMA Loans and the WCMA Loan Balance. Any questions that Customer may
have with respect to such information or the Loan should be directed to MLBFS; and any questions
with respect to any other matter in such statements or about or affecting the WCMA Program should
be directed to MLPF&S.
Customer represents and warrants to MLBFS that:
(a) Compliance
with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. Without
limiting the generality of any other provision in this Loan Agreement (i) each Credit Party has
taken all reasonable measures, in accordance with all applicable Anti-Terrorism and Anti-Money
Laundering Laws with respect to each holder of a direct or indirect interest in such Credit Party,
to assure that funds invested by such holders in the Credit Parties are derived from legal sources;
(ii) to Customer’s knowledge after making due inquiry, neither any of the Credit Parties nor any
holder of a direct or indirect interest in the Credit Parties: (a) is under investigation by any
governmental authority for, or has ever been charged with, or convicted of, any violation of any
Anti-Terrorism and Anti-Money Laundering Laws or any other criminal activity, (b) has been assessed
civil penalties under any Anti-Terrorism and Anti- Money Laundering Laws, (c) has had any of its
funds seized or forfeited in an action under any Anti-Terrorism and Anti-Money Laundering Laws or
(d) is a Person with whom a citizen of the United States is prohibited to engage in transactions
pursuant to any Anti-Terrorism and Anti-Money Laundering Laws; (iii) each Credit Party has taken
reasonable steps, consistent with industry practice for comparable organizations and in any event
as required by law, to ensure that such Credit Parties are and shall be in compliance with all
Anti-Terrorism and Anti-Money Laundering Laws; provided however, Sections (i) and (ii) of
this provision shall not apply to the extent that such Person’s interest is in or through an entity
whose securities are traded on a national securities exchange.
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(b) Organization and Existence. Customer is a limited liability company, duly organized and validly
existing under the laws of the State of Florida; and, where applicable, each Business Guarantor is
duly organized, validly existing and in good standing under the laws of the state of its formation
and is qualified to do business and in good standing in each other state where the nature of its
business or the property owned by it make such qualification necessary.
(c) Execution, Delivery and Performance. Each Credit Party has the requisite power and authority to
enter into and perform the Loan Documents. The Customer holds all necessary permits, licenses,
certificates of occupancy and other governmental authorizations and approvals required in order to
own or operate the Customer’s business. The execution, delivery and performance by Customer of this
Loan Agreement and by each of the other Credit Parties of such of the other Loan Documents to which
it is a party: (i) have been duly authorized by all requisite action, (ii) do not and will not
violate or conflict with any law, order or other governmental requirement, or any of the
agreements, instruments or documents which formed or govern any of the Credit Parties, and (iii) do
not and will not breach or violate any of the provisions of, and will not result in a default by
any of the Credit Parties under, any other agreement, instrument or document to which it is a party
or is subject.
(d) Notices and Approvals. Except as may have been given or obtained, no notice to or consent or
approval of any governmental body or authority or other third party whatsoever (including, without
limitation, any other creditor) is required in connection with the execution, delivery or
performance by any Credit Party of such of the Loan Documents to which it is a party.
(e) Enforceability. The Loan Documents to which any Credit Party is a party are the respective
legal, valid and binding obligations of such Credit Party, enforceable against it or them, as the
case may be, in accordance with their respective terms, except as
enforceability may be limited by
bankruptcy and other similar laws affecting the rights of creditors generally or by general
principles of equity.
(f) Collateral. Except for priorities afforded to any Permitted Liens: (i) Customer has good and
marketable title to the Collateral, (ii) none of the Collateral is subject to any lien, encumbrance
or security interest, and (iii) upon the filing of all Uniform Commercial Code financing statements
authenticated or otherwise authorized by Customer with respect to the Collateral in the appropriate
jurisdiction(s) and/or the completion of any other action required by applicable law to perfect its
liens and security interests, MLBFS will have valid and perfected first liens and security
interests upon all of the Collateral.
(g) Financial Statements. Except as expressly set forth in Customer’s or any Business Guarantor’s
financial statements, all financial statements of Customer and each Business Guarantor furnished to
MLBFS have been prepared in conformity with generally accepted accounting principles, consistently
applied, are true and correct in all material respects, and fairly present the financial condition
of it as at such dates and the results of its operations for the periods then ended (subject, in
the case of interim unaudited financial statements, to normal year-end adjustments); and since the
most recent date covered by such financial statements, there has been no material adverse change in
any such financial condition or operation. All financial statements furnished to MLBFS of any
Guarantor other than a Business Guarantor are true and correct in all material respects and fairly
represent such Guarantor’s financial condition as of the date of such financial statements, and
since the most recent date of such financial statements, there has been no material adverse change
in such financial condition.
(h) Litigation; Compliance With All Laws. No litigation, arbitration, administrative or
governmental proceedings are pending or, to the knowledge of Customer, threatened against any
Credit Party, which would, if adversely determined, materially and adversely affect (i) such
Credit Party’s interest in the Collateral or the liens and security interests of MLBFS hereunder
or under any of the Loan Documents, or (ii) the financial condition of such Credit Party or its
continued operations. Each Credit Party is in compliance in all material respects with all laws,
regulations, requirements and approvals applicable to such Credit Party.
(i) Tax
Returns. All federal, state and local tax returns, reports and statements required to be
filed by any Credit Party have been filed with the appropriate governmental agencies and all taxes
due and payable by any Credit Party have been timely paid (except to the extent that any such
failure to
file or pay will not materially and adversely affect (i) either the liens and security interests
of MLBFS hereunder or under any of the Loan Documents, (ii) the financial condition of any Credit
Party or (iii) its continued operations).
(j) Collateral Location. All of the tangible Collateral is located at a Location of Tangible
Collateral.
(k) No Default. No “Default” or “Event of Default” (each as defined in this Loan Agreement or any
of the other Loan Documents) has occurred and is continuing.
(l) No Outside Broker. Except for employees of MLBFS, MLPF&S or one of their affiliates, Customer
has not in connection with the transactions contemplated hereby directly or indirectly engaged or
dealt with, and was not introduced or referred to MLBFS by, any broker or other loan arranger.
Each of the foregoing representations and warranties: (i) has been and will be relied upon as an
inducement to MLBFS to make any WCMA Loan,and (ii) is continuing and shall be deemed remade by
Customer on the Closing Date, and concurrently with each request by Customer for a Subsequent WCMA
Loan.
(a) Customer shall furnish or cause to be furnished to MLBFS during the term of this Loan Agreement
all of the following:
(i) Annual Financial Statements. Within 120 days after the close of each fiscal year of Customer,
a copy of the annual audited financial statements of Continucare Corporation, including in
reasonable detail, a balance sheet and statement of retained earnings as at the close of such
fiscal year and statements of profit and loss and cash flow for such fiscal year;
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(ii) Certificate of Compliance. Within 45 days after the close of each fiscal quarter of Customer,
a Certificate of Compliance, duly executed by an authorized officer of Customer, in the form of
Exhibit B attached hereto, or such other form as reasonably required by MLBFS from time to time;
(i) Interim
Financial Statements. Within 45 days after the close of each fiscal quarter of Customer,
a copy of the interim financial statements of Continucare Corporation for such fiscal quarter
(including in reasonable detail both a balance sheet as of the close of such fiscal period, and
statement of profit and loss for the applicable fiscal period);and
(ii) Other Information. Such other information as MLBFS may from time to time reasonably request
relating to Customer, any Credit Party or the Collateral.
4.3 Other Covenants. Customer further covenants and agrees during the term of this Loan Agreement
that:
(a) Compliance
with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws. Each
Credit Party (i) shall take all reasonable measures in
accordance with all applicable
Anti-Terrorism and Anti-Money Laundering Laws with respect to each holder of a direct or indirect
interest in such Credit Party, to assure that funds invested by such holders in the Credit Parties
are derived from legal sources; (ii) shall not violate any Anti-Terrorism and Anti-Money Laundering
Laws, and (iii) shall take reasonable steps, consistent with industry practice for comparable
organizations and in any event as required by law, to ensure that such Credit Parties are and shall
be in compliance with all Anti-Terrorism and Anti-Money Laundering
Laws; provided however,
Sections (i) and (ii) of this provision shall not apply to the extent that such Person’s interest
is in or through an entity whose securities are traded on a national securities exchange.
(i) Minimum Tangible Net Worth. Continucare Corporation and Continucare MDHC, LLC’s consolidated
“Tangible Net Worth” shall at all times exceed $14,000,000.00. For the purposes hereof, the term
“Tangible Net Worth” shall mean Continucare Corporation and Continucare MDHC, LLC’s consolidated
net worth as shown on Continucare Corporation and Continucare MDHC, LLC’s consolidated regular
financial statements prepared in accordance with GAAP, but excluding an amount equal to: (i) any
Intangible Assets, and (ii) any amounts now or hereafter directly or indirectly owing to
Continucare
7
Corporation or Continucare MDHC, LLC by officers, shareholders or affiliates of Continucare
Corporation or Continucare MDHC, LLC. “Intangible Assets” shall mean the total amount of goodwill,
patents, trade names, trade or service marks, copyrights, experimental expense, organization
expense, unamortized debt discount and expense, the excess of cost of shares acquired over book
value of related assets, and such other assets as are properly classified as “intangible assets”
of Continucare Corporation or Continucare MDHC, LLC determined in accordance with GAAP.
(j) Debt Service Coverage Ratio. Continucare Corporation and Continucare MDHC, LLC’s consolidated
“Debt Service Coverage Ratio” shall at all times exceed 1.25 to 1. For purposes hereof, “Debt
Service Coverage Ratio” shall mean the ratio of: (a) income before interest (including payments in
the nature of interest under capital leases), taxes, depreciation, amortization, and other
non-cash charges, to (b) the sum of the aggregate principal and interest paid or accrued, the
aggregate rental under capital leases paid or accrued, any dividends and other distributions paid
or payable to shareholders, and taxes paid in cash; all as determined on a trailing 12-month basis
as set forth in Continucare Corporation and Continucare MDHC, LLC’s regular consolidated quarterly
financial statements prepared in accordance with GAAP.
4.4 Collateral
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the Maximum WCMA Line of Credit in the amount of such prepayment and shall not reduce the amount
of any future reductions in the Maximum WCMA Line of Credit that may be required hereunder.
Notwithstanding the foregoing, if at the time of occurrence of such Event of Loss or any time
thereafter prior to replacement or line reduction, as aforesaid, an Event of Default shall have
occurred and be continuing hereunder, then MLBFS may at its sole option, exercisable at any time
while such Event of Default shall be continuing, require Customer to either replace such
Collateral or prepay the Obligations and reduce the Maximum WCMA Line of Credit, as aforesaid.
The occurrence of any of the following events shall constitute an “Event of Default” under this
Loan Agreement:
(a) Anti-Terrorism,
Embargo, Sanctions and Anti-Money Laundering Laws. (i) Any Credit Party (a)
becomes under investigation by any governmental authority for any violation of any Anti-Terrorism
and Anti-Money Laundering Laws, (b) is assessed civil penalties under any Anti-Terrorism and
Anti-Money Laundering Laws, (c) has any of its funds seized or forfeited in an action under any
Anil-Terrorism and Anti-Money Laundering Laws, or (d) is identified as a Person with whom a
citizen of the United States is prohibited to engage in transactions by any Anti-Terrorism and
Anti-Money Laundering Laws; (i) any representation or warranty made by any Credit Party in this
Loan Agreement or any of the other Loan Documents with respect to any Anti-Terrorism and
Anti-Money Laundering Laws shall at any time prove to have been incorrect when made or (ii) any
Credit Party shall default in the performance or observance of any covenant or agreement related
to any Anti-Terrorism and Anti-Money Laundering Laws contained in any of the Loan Documents.
(i) Collateral Impairment The loss, theft or destruction of any Collateral, the occurrence of any
material deterioration or impairment of any Collateral or any
material decline or depreciation in
the vaiue or market price thereof (whether actual or reasonably anticipated), which causes any
Collateral, in the sole opinion of MLBFS, to become unsatisfactory as to vaiue or character; or
any levy, attachment, seizure or confiscation of the Collateral which is not released within ten
(10) Business Days.
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(k) Judgments. A judgment shall be entered against any Credit Party in excess of $25,000 and the
judgment is not paid in full and discharged, or stayed and bonded to the satisfaction of MLBFS.
4.6 Remedies.
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(c) Power
of Attorney. Effective upon the occurrence and during the continuance of an Event of
Default, Customer hereby irrevocably appoints MLBFS as its attorney-in-fact, with full power of
substitution, in its place and stead and in its name or in the name of MLBFS, to from time to time
in MLBFS’ sole discretion take any action and to execute any instrument which MLBFS may deem
necessary or advisable to accomplish the purposes of this Loan Agreement and the other Loan
Documents, including, but not limited to, to receive, endorse and collect all checks, drafts and
other instruments for the payment of money made payable to Customer included in the Collateral. The
powers of attorney granted to MLBFS in this Loan Agreement are coupled with an interest and are
irrevocable until the Obligations have been indefeasibly paid in full and fully satisfied and all
obligations of MLBFS under this Loan Agreement have been terminated.
(d) Remedies are Severable and Cumulative. All rights and remedies of MLBFS herein are severable
and cumulative and in addition to all other rights and remedies available in the Loan Documents, at
law or in equity, and any one or more of such rights and remedies may be exercised simultaneously
or successively.
(e) No
Marshalling. MLBFS shall be under no duty or obligation to (i) preserve, protect or xxxxxxxx
the Collateral; (ii) preserve or protect the rights of any Credit Party or any other Person
claiming an interest in the Collateral; (iii) realize upon the Collateral in any particular order
or manner, (iv) seek repayment of any Obligations from any particular source; (v) proceed or not
proceed against any Credit Party pursuant to any guaranty or security agreement or against any
Credit Party under the Loan Documents, with or without also realizing on the Collateral; (vi)
permit any substitution or exchange of all or any part of the Collateral; or (vii) release any part
of the Collateral from the Loan Agreement or any of the other Loan Documents, whether or not such
substitution or release would leave MLBFS adequately secured.
(f) Notices. To the fullest extent permitted by applicable law, Customer hereby irrevocably waives
and releases MLBFS of and from any and all liabilities and penalties for failure of MLBFS to comply
with any statutory or other requirement imposed upon MLBFS relating to notices of sale, holding of
sale or reporting of any sale, and Customer waives all rights of redemption or reinstatement from
any such sale. Any notices required under applicable law shall be reasonably and properly given to
Customer if given by any of the methods provided herein at least 5 Business Days prior to taking
action. MLBFS shall have the right to postpone or adjourn any sale or other disposition of
Collateral at any time without giving notice of any such postponed or adjourned date. In the event
MLBFS seeks to take possession of any or all of the Collateral by court process, Customer further
irrevocably waives to the fullest extent permitted by law any bonds and any surety or security
relating thereto required by any statute, court rule or otherwise as an incident to such
possession, and any demand for possession prior to the commencement of any suit or action.
4.7 Miscellaneous.
(a) Non-Waiver. No failure or delay on the part of MLBFS in exercising any right, power or remedy
pursuant to the Loan Documents shall operate as a waiver thereof, and no single or partial exercise
of any such right, power or remedy shall preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy. Neither any waiver of any provision of any of the
Loan Documents, nor any consent to any departure by Customer therefrom, shall be effective unless
the same shall be in writing and signed by MLBFS. Any waiver of any provision of any of the Loan
Documents and any consent to any departure by Customer from the terms thereof shall be effective
only in the specific instance and for the specific purpose for which given. Except as otherwise
expressly provided herein, no notice to or demand on Customer shall in any case entitle Customer to
any other or further notice or demand in similar or other circumstances.
(b) Disclosure. Customer hereby irrevocably authorizes MLBFS and each of its affiliates, including
without limitation MLPF&S, to at any time (whether or not an Event of Default shall have occurred)
obtain from and disclose to each other, and to any third party in connection with Section 4.7 (g)
herein, any and all financial and other information about Customer. In connection with said
authorization, the parties recognize that in order to provide a WCMA Line of Credit certain
information about Customer is required to be made available on a computer network accessible by
certain affiliates of MLBFS, including MLPF&S. Customer further
irrevocably authorizes MLBFS to
contact, investigate, inquire and obtain consumer reports, references and other information on
Customer from consumer reporting agencies and other credit reporting services, former or current
creditors,
and other persons and sources (including, without limitation, any Affiliate of MLBFS) and to
provide to any references, consumer reporting agencies, credit reporting services, creditors and
other persons and sources (including, without limitation, affiliates of MLBFS) all financial,
credit and other information obtained by MLBFS relating to the Customer.
(c) Communications. Delivery of an agreement, instrument or other document may, at the discretion
of MLBFS, be by electronic transmission. Except as required by law or otherwise provided herein or
in a writing executed by the party to be bound, all notices demands, requests, accountings,
listings, statements, advices or other communications to be given under the Loan Documents shall be
in writing and shall be served either personally, by deposit with a reputable overnight courier
with charges prepaid, or by deposit in the United States mail by certified mail return receipt
required. Notices may be addressed to Customer as set forth at its address shown in the preamble
hereto, or to any office to which billing or account statements are sent; to MLBFS at its address
shown in the preamble hereto, or at such other address designated in writing by MLBFS. Any such
communication shall be deemed to have been given upon, in the case of personal delivery the date of
delivery, one Business Day after deposit with an overnight courier, two (2) Business Days after
deposit in the United States by certified mail (return receipt
required), or receipt of electronic
transmission (which shall be presumed to be three hours after the time of transmission unless an
error message is received by the sender), except that any notice of
change of address shall not be
effective until actually received.
(d) Fees,
Expenses and Taxes. Customer shall pay or reimburse MLBFS for: (i) all UCC, real
property or other filing, recording, and search fees and expenses incurred by MLBFS in connection
with the verification, perfection or preservation of MLBFS’
rights hereunder or in any Collateral
or any other collateral for the Obligations; (ii) all
stamp, transfer, mortgage, intangible,
document, filing, recording and other taxes and fees payable or determined to be payable in
connection with the borrowings hereunder or the execution, delivery,
filing, and/or recording of
the Loan Documents and any other instruments or documents provided for herein or delivered or to be
delivered hereunder or in connection herewith; and (iii) all fees and out-of-pocket expenses
(including, attorneys’ fees and legal expenses) incurred by MLBFS in connection with the preparation, execution, administration,
collection, enforcement, protection’waiver or amendment of this Loan Agreement, the other Loan
Documents and such other instruments or documents, and the rights
11
and remedies of MLBFS thereunder, and all other matters in connection therewith. Customer hereby
authorizes MLBFS, at its option, to either cause any and all such fees, expenses and taxes to be
paid with a WCMA Loan, or invoice Customer therefore (in which event Customer shall pay all such
fees, expenses and taxes within 5 Business Days after receipt of such invoice). The obligations of
Customer under this paragraph shall survive the expiration or termination of this Loan Agreement
and the discharge of the other Obligations.
(e) Right to Perform Obligations. If Customer shall fail to do any act or thing which it has
covenanted to do under any of the Loan Documents or any representation or warranty on the part of
Customer contained in the Loan Documents shall be breached, MLBFS may, in its sole discretion,
after 5 Business Days written notice is sent to Customer (or such lesser notice, including no
notice, as is reasonable under the circumstances), do the same or cause it to be done or remedy
any such breach, and may expend its funds for such purpose. Any and all reasonable amounts so
expended by MLBFS shall be repayable to MLBFS by Customer upon demand, with interest at the
Interest Rate during the period from and including the date funds are so expended by MLBFS to the
date of repayment, and all such amounts shall be additional Obligations. The payment or performance
by MLBFS of any of Customer’s obligations hereunder shall not relieve Customer of said obligations
or of the consequences of having failed to pay or perform the same, and shall not waive or be
deemed a cure of any Default.
(f) Further Assurances. Customer agrees to do such further acts and things and to execute and
deliver to MLBFS such additional agreements, instruments and documents as MLBFS may reasonably
require or deem advisable to effectuate the purposes of the Loan
Documents, to confirm the WCMA
Loan Balance, or to establish, perfect and maintain MLBFS’ security interests and liens upon the
Collateral, including, but not limited to: (i) executing financing statements or amendments thereto
when and as reasonably requested by MLBFS; and (ii) if in the reasonable judgment of MLBFS it is
required by local law, causing the owners and/or mortgagees of the real property on which any
Collateral may be located to execute and deliver to MLBFS waivers or subordinations reasonably
satisfactory to MLBFS with respect to any rights in such Collateral.
(g) Binding Effect. The Loan Documents shall be binding upon, and shall inure to the benefit of
MLBFS, Customer and their respective successors and assigns, MLBFS reserves the right, at any time
while the Obligations remain outstanding, to sell, assign, syndicate or otherwise transfer or
dispose of any or all of MLBFS’ rights and interests under the Loan Documents. MLBFS also reserves
the right at any time to pool the WCMA Loan with one or more other loans originated by MLBFS or
any other Person, and to securitize or offer interests in such pool on whatever terms and
conditions MLBFS shall determine. Customer consents to MLBFS releasing financial and other
information regarding Credit Parties, the Collateral and the WCMA Loan in connection with any such
sale, pooling, securitization or other offering. Customer shall not assign any of its rights or
delegate any of its obligations under any of the Loan Documents without the prior written consent
of MLBFS. Unless otherwise expressly agreed to in a writing signed by MLBFS, no such consent shall
in any event relieve Customer of any of its obligations under this Loan Agreement or any of the
other Loan Documents.
(h) Interpretation;
Construction. (i) Captions and section and paragraph headings in this Loan
Agreement are inserted only as a matter of convenience, and shall not affect the interpretation
hereof; (ii) no provision of this Loan Agreement shall be construed against a particular Person or
in favor of another Person merely because of which Person (or its representative) drafted or
supplied the wording for such provision; and (iii) where the context requires: (a) use of the
singular or plural incorporates the other, and (b) pronouns and modifiers in the masculine,
feminine or neuter gender shall be deemed to refer to or include the other genders.
(i) Governing Law. This Loan Agreement and, unless otherwise expressly provided therein, each of
the Loan Documents, shall be governed in all respects by the laws of the State of Illinois, not
including its conflict of law provisions.
(j) Severability of Provisions. Whenever possible, each provision of this Loan Agreement and the
other Loan Documents shall be interpreted in such manner as to be effective and valid under
applicable law. Any provision of the Loan Documents which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of the Loan Documents or
affecting the validity or enforceability of such provision in any other jurisdiction.
(k) Term. This Loan Agreement shall become effective on the date accepted by MLBFS at its office
in Chicago, Illinois, and, subject to the terms hereof, shall continue in effect so long
thereafter as: (i) the WCMA Line of Credit shall be in effect, (ii) there shall be any moneys
outstanding under this Loan Agreement, or (iii) there shall be any other Obligations outstanding.
Customer hereby waives notice of acceptance of this Loan Agreement by MLBFS.
(l) Exhibits. The exhibits to this Loan Agreement are hereby incorporated and made a part hereof
and are an integral part of this Loan Agreement
(m) Counterparts. This Loan Agreement may be executed in one or more counterparts which, when
taken together, constitute one and the same agreement.
(n) Jurisdiction; Waiver. Customer acknowledges that this Loan Agreement is being accepted by MLBFS
in partial consideration of MLBFS’ right and option, in its sole discretion, to enforce the Loan
Documents in either the State of Illinois or in any other jurisdiction where Customer or any
Collateral may be located. Customer irrevocably submits itself to jurisdiction in the State of
Illinois and venue in any state or federal court in the County of Xxxx for such purposes, and
Customer waives any and all rights to contest said jurisdiction and venue and the convenience of
any such forum, and any and all rights to remove such action from state to federal court. Customer
further waives any rights to commence any action against MLBFS in any jurisdiction except in the
County of Xxxx and State of Illinois. Customer agrees that all such service of process shall be
made by mail or messenger directed to it in the same manner as provided for notices to Customer in
this Loan Agreement and that service so made shall be deemed to be completed upon the earlier of
actual receipt or three (3) days after the same shall have been posted to Customer or Customer’s
agent. Nothing contained herein shall affect the right of MLBFS to serve legal process in any other
manner permitted by law or affect the right of MLBFS to bring any action or proceeding against
Customer or its property in the courts of any other jurisdiction. Customer waives, to the extent
permitted by law, any bond or surety or security upon such bond which might, but for this waiver,
be required of MLBFS. Customer further waives the right to bring any non-compulsory counterclaims.
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This Loan Agreement and the other Loan Documents are executed under seal and are intended
to take effect as sealed instruments.
CONTINUCARE MDHC, LLC
BY: CONTINUCARE CORPORATION, ITS SOLE MEMBER
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx, Xx. | By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |||||
Xxxxxxx X. Xxxxxxxxx, Xx. | Xxxxxxxx X. Xxxxxxxxx | |||||||
CEO | CFO | |||||||
13
STATE OF Florida
|
} | |||
}SS. | ||||
COUNTY OF Dade
|
} |
The
foregoing instrument was acknowledged before me this day of Sept. 26 AD, 2006 by
Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxxxx CONTINUCARE MDHC, LLC, a Florida limited liability company, on behalf of the limited
liability company. Said person is personally known to me or has produced as identification.
/s/
Xxxx Xxxxxx |
||||
Xxxx Xxxxxx |
||||
My Commission Expires: |
||||
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||||
By:
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EXHIBIT A
ATTACHED TO AND HEREBY MADE A PART OF WCMA REDUCING REVOLVER LOAN AND SECURITY AGREEMENT NO.
81V-02075 BETWEEN XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. AND CONTINUCARE MDHC, LLC
Additional Locations of Tangible Collateral:
15