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EXHIBIT 10.8
LOAN AGREEMENT
DATED AS OF AUGUST 11, 1999
BY AND AMONG
INFOCURE CORPORATION,
INFOCURE SYSTEMS, INC.
AND
THOROUGHBRED ACQUISITION, INC.
AS BORROWERS,
AND
FINOVA CAPITAL CORPORATION,
AS LENDER
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TABLE OF CONTENTS
ARTICLE I 1
DEFINITIONS AND DETERMINATIONS 1
1.1 Definitions 1
1.2 Time Periods 20
1.3 Accounting Terms and Determinations 20
1.4 References 21
1.5 Lender's Discretion 21
1.6 Borrower's or Borrowers' Knowledge 21
ARTICLE II 21
LOANS AND TERMS OF PAYMENT; SYNDICATION 21
2.1 Loans 21
2.1.1 Term Loan A 21
2.1.2 Revolving Loan 22
2.2 Use of Proceeds, Notes and Reborrowing 23
2.2.1 Use of Proceeds 23
2.2.2 Notes 23
2.2.3 Reborrowing 23
2.3 Interest 23
2.3.1 Interest Rates and Payment 23
2.3.2 Default Rate 23
2.3.3 Interest and Fees Computation 23
2.3.4 Maximum Interest 24
2.4 Procedure for Borrowing under the Revolving Loan Commitment 24
2.5 Conversion and Continuation Elections 25
2.6 Scheduled Principal Repayments 26
2.6.1 Term Loan A 26
2.6.2 Revolving Loan 26
2.6.3 Final Payment 27
2.7 Late Charges 27
2.8 Optional/Voluntary and Mandatory Prepayments; Prepayment Premium; and Fee Acceleration 27
2.8.1 Voluntary Prepayments 27
2.8.2 Mandatory Prepayments 28
2.8.3 Prepayment Premium and Acceleration of Fees 30
2.9 Commitment Fee 31
2.10 Unused Commitment Fee 31
2.11 Annual Fee 31
2.12 Success Fee 31
2.13 Payments after Event of Default 31
2.14 Method of Payment; Good Funds 31
2.15 Syndication 32
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ARTICLE III 32
SECURITY 32
ARTICLE IV 33
CONDITIONS OF CLOSING AND ADVANCES; ACQUISITIONS 33
4.1 Closing; Conditions of Initial Loans 33
4.1.1 Representations and Warranties 33
4.1.2 Related Transactions 33
4.1.3 Delivery of Documents 33
4.1.4 Performance; No Default 34
4.1.5 Opinions of Counsel 35
4.1.6 Approval of Loan Documents and Security Interests 35
4.1.7 Security Interests 35
4.1.8 Licenses 35
4.1.10 Financial Statements, Reports and Projections; Inspection 35
4.1.11 Material Adverse Effect 35
4.1.12 Use of Assets 35
4.1.13 Broker Fees 35
4.1.14 Insurance; Survey 36
4.1.15 Intentionally Omitted 36
4.1.16 Payment of Fees, Expenses and Loans 36
4.2 Conditions to the Disbursement of the Term Loan A and all Advances 37
4.2.1 Notice of Borrowing 37
4.2.2 Continuation of Representations and Warranties 37
4.2.3 No Existing Default 37
4.2.4 Subsidiary 37
4.3 Conditions to Certain Loans 38
4.3.1 Evidence of Perfected First Priority Security Interest 38
4.3.2 Approval 38
4.3.3 Additional Documentation 38
4.3.4 Acquisition Funding Fee 39
4.4 Additional Conditions to the Disbursement of the proceeds of the Term Loan A 39
4.4.1 Real Estate Acquisition 39
4.4.2 Delivery of Documents 39
4.4.3 Compliance with Certain Provisions of this Loan Agreement 40
4.4.4 Opinions of Counsel 40
4.4.5 Appraisals and Percentage of Acquisition Price 40
4.4.6 Miscellaneous 40
ARTICLE V 41
REPRESENTATIONS AND WARRANTIES 41
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5.1 Existence and Power 41
5.2 Authority 41
5.3 Capital Stock and Related Matters 41
5.3.1 Capital Stock 41
5.3.2 Restrictions 41
5.4 Binding Agreements 42
5.5 Business and Property of Borrower 42
5.5.1 Business and Property 42
5.5.2 Licenses 42
5.5.3 Operating Agreements 42
5.5.4 Facility Sites 42
5.5.5 Leases 42
5.5.6 Real Estate 43
5.5.7 Operation and Maintenance of Equipment 43
5.5.8 License Agreements 43
5.6 Title to Property; Liens 43
5.7 Projections and Financial Statements 43
5.7.1 Financial Statements 43
5.7.2 Projections 44
5.8 Litigation 44
5.9 Defaults in Other Agreements; Consents; Conflicting Agreements 44
5.10 Taxes 45
5.11 Compliance with Applicable Laws 45
5.12 Patents, Trademarks, Franchises, Agreements 45
5.13 Regulatory Matters 45
5.14 Environmental Matters 46
5.15 Application of Certain Laws and Regulations 46
5.15.1 Investment Borrower Act 46
5.15.2 Holding Borrower Act 46
5.15.3 Foreign or Enemy Status 46
5.15.4 Regulations as to Borrowing 46
5.16 Margin Regulations 46
5.17 Other Indebtedness 47
5.18 No Misrepresentation 47
5.19 Employee Benefit Plans 47
5.19.1 No Other Plans 47
5.19.2 ERISA and Code Compliance and Liability 47
5.19.3 Funding 47
5.19.4 Prohibited Transactions and Payments 48
5.19.5 No Termination Event 48
5.19.6 ERISA Litigation 48
5.20 Employee Matters 48
5.20.1 Collective Bargaining Agreements; Grievances 48
5.20.2 Claims Relating to Employment 48
5.21 Burdensome Obligations 49
5.22 Insurance 49
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5.23 Subsidiaries 49
5.24 Year 2000 49
ARTICLE VI 50
AFFIRMATIVE COVENANTS 50
6.1 Legal Existence; Good Standing 50
6.2 Inspection 50
6.3 Financial Statements and Other Information 50
6.3.1 Intentionally Omitted 50
6.3.2 Quarterly Statements; Compliance Certificate 50
6.3.3 Annual Statements 51
6.3.4 Intentionally Omitted 51
6.3.5 Audit Reports 51
6.3.6 Notice of Defaults; Loss 51
6.3.7 Notice of Suits, Adverse Events 52
6.3.8 Reports to Shareholders, Creditors and Governmental Bodies 52
6.3.9 ERISA Notices and Requests 52
6.3.10 Other Information 53
6.4 Reports to Governmental Bodies and Other Persons 54
6.5 Maintenance of Licenses, Franchises and Other Agreements 54
6.6 Insurance 54
6.6.1 Maintenance of Insurance 54
6.6.2 Proceeds 54
6.7 Future Leases 55
6.8 Future Acquisitions of Real Estate 55
6.9 Environmental Matters 55
6.10 Compliance with Laws 56
6.11 Taxes and Claims 56
6.12 Maintenance of Properties 56
6.13 Governmental Approvals 56
6.14 Year 2000 56
6.15 Further Assurances 56
6.16 Landlord Consents 57
6.17 Restricted Foreign Subsidiaries 57
6.18 Lien Waivers 57
ARTICLE VII 57
NEGATIVE COVENANTS 57
7.1 Borrowing 58
7.2 Liens 58
7.3 Mergers and Acquisitions 58
7.4 Contingent Liabilities/Obligations 59
7.5 Distributions/Restricted Junior Payments 59
7.6 Capital Expenditures 59
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7.7 Payments of Indebtedness for Borrowed Money 59
7.8 Investments; Loans 59
7.9 Fundamental Business Changes 60
7.10 Facility Sites 60
7.11 Sale or Transfer of Assets 61
7.12 Amendment of Documents 61
7.13 Acquisition of Additional Properties 61
7.14 Issuance of Capital Stock or Other Similar Interests 61
7.15 Transactions with Affiliates 62
7.16 Compliance with ERISA 62
7.17 Minimum Net Worth 63
7.18 Maximum Leverage Ratio 63
7.19 Minimum Total Debt Service Coverage Ratio 63
7.20 Subsidiaries 64
7.21 Acquisitions 64
ARTICLE VIII 67
DEFAULT AND REMEDIES 67
8.1 Events of Default 67
8.1.1 Default in Payment 67
8.1.2 Breach of Covenants 67
8.1.3 Breach of Warranty 67
8.1.4 Default Under Other Indebtedness for Borrowed Money 67
8.1.5 Bankruptcy 68
8.1.6 Judgments 68
8.1.7 Impairment of Licenses; Other Agreements 68
8.1.8 Collateral 69
8.1.9 Plans 69
8.1.10 Change in Control 69
8.2 Acceleration of Borrower's Obligations 70
8.3 Remedies on Default 70
8.3.1 Enforcement of Security Interests 70
8.3.2 Other Remedies 70
8.4 Application of Funds 71
8.4.1 Expenses 71
8.4.2 Borrowers' Obligations 71
8.4.3 Surplus 71
8.5 Performance of Borrowers' Obligations 71
ARTICLE IX 72
CLOSING 72
ARTICLE X 72
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EXPENSES AND INDEMNITY 72
10.1 Attorneys' Fees and Other Fees and Expenses 72
10.1.1 Fees and Expenses for Preparation of Loan Documents 72
10.1.2 Fees and Expenses in Enforcement of Rights or Defense of Loan Documents 72
10.2 Indemnity 73
10.2.1 Brokerage Fees 73
10.2.2 General 73
10.2.3 Operation of Collateral; Joint Venturers 73
10.2.4 Environmental Indemnity 73
ARTICLE XI 74
TAXES, YIELD PROTECTION AND ILLEGALITY 74
11.1 Taxes. 74
11.2 Illegality 75
11.3 Increased Costs and Reduction of Return 75
11.4 Funding Losses 76
11.5 Inability to Determine Rates 77
11.6 Reserves on LIBOR Rate Loans 77
11.7 Certificates of Lenders 77
11.8 Survival 77
ARTICLE XII 77
MISCELLANEOUS 77
12.1 Notices 77
12.2 Survival of Loan Agreement; Indemnities 79
12.3 Further Assurance 79
12.4 Taxes and Fees 79
12.5 Severability 79
12.6 Waiver 79
12.7 Modification of Loan Documents 80
12.8 Captions 80
12.9 Successors and Assigns 80
12.10 Remedies Cumulative 80
12.11 Entire Agreement; Conflict 80
12.12 APPLICABLE LAW 80
12.13 JURISDICTION AND VENUE 80
12.14 WAIVER OF RIGHT TO JURY TRIAL 81
12.15 TIME OF ESSENCE 81
12.16 Estoppel Certificate 81
12.17 Consequential Damages 81
12.18 Counterparts 82
12.19 No Fiduciary Relationship 82
12.20 Notice of Breach by Lender 82
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12.21 Joint and Several Obligations 82
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LIST OF EXHIBITS TO LOAN AGREEMENT
Exhibit 1.1(A) - Compliance Certificate
Exhibit 1.1(B) - Notice of Borrowing
Exhibit 1.1(C) - Notice of Conversion / Continuation
Exhibit 1.1(D) - Existing Subordinated Indebtedness
Exhibit 5.3.1 - Subsidiary Equity Interests
Exhibit 5.5.1 - Business and Property
Exhibit 5.5.2 - Licenses
Exhibit 5.5.3 - Operating Agreements
Exhibit 5.5.4 - Facility Sites
Exhibit 5.5.5 - Leases
Exhibit 5.5.6 - Real Estate
Exhibit 5.5.8 - License Agreements
Exhibit 5.7.1 - Financial Statements
Exhibit 5.7.2 - Projections
Exhibit 5.8 - Litigation
Exhibit 5.12 - Intellectual Property
Exhibit 5.19.1 - Employee Benefit Plans
Exhibit 5.20.1 - Collective Bargaining
Exhibit 7.1 - Existing Indebtedness
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of August 11, 1999 (this "Loan
Agreement"), is among INFOCURE CORPORATION, a Delaware corporation ("InfoCure
Corporation"), INFOCURE SYSTEMS, INC., a Georgia corporation ("InfoCure
Systems"), THOROUGHBRED ACQUISITION, INC., a Georgia corporation
("Thoroughbred") (InfoCure Corporation, InfoCure Systems and Thoroughbred
hereinafter are referred to individually as a "Borrower" and collectively as
"Borrowers"), and FINOVA CAPITAL CORPORATION, a Delaware corporation ("Lender").
PRELIMINARY STATEMENT:
WHEREAS, Borrowers have requested, and Lender has agreed to make
available to Borrowers, a revolving credit facility and a term loan upon and
subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND DETERMINATIONS
1.1 DEFINITIONS. As used in this Loan Agreement and in the other Loan
Documents, unless otherwise expressly indicated herein or therein, the following
terms shall have the following meanings (such meanings to be applicable equally
to both the singular and plural forms of the terms defined):
Accounting Changes - as defined in Section 1.3.
Acquisition means any transaction or series of related
transactions for the purpose of or resulting in, directly or
indirectly, (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b) the
acquisition of in excess of fifty percent (50%) of the capital stock,
partnership interests or other equity interests of a Person or
otherwise causing a Person to become a Subsidiary of any Borrower or
(c) a merger or consolidation or any other combination with another
Person (other than a Person that is a wholly-owned Subsidiary of a
Borrower) provided that a Borrower or a wholly-owned Subsidiary of a
Borrower is the surviving Person.
Acquisition Documents - as defined in subsection 4.3.3.
Acquisition Funding Fee - as defined in subsection 4.3.4.
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ADA means the Americans with Disabilities Act of 1990, as
amended, any successor statute thereto, and the rules and regulations
promulgated thereunder, as in effect from time to time.
Adjusted EBITDA means, as of any determination date, without
duplication, the sum of (a) EBITDA of Borrowers and their
Subsidiaries(other than the Restricted Foreign Subsidiaries) on a
consolidated basis for the period in question and except to the extent
intended to be included in clauses (1), (2) or (3) below, plus (b) the
sum of the following:
(1) with respect to each Target owned by any Borrower or
any Subsidiary of any Borrower for which Lender has
not received financial statements for at least one
quarter pursuant to subsection 6.3.2, the sum of Pro
Forma EBITDA for each such Target; plus
(2) with respect to any Target owned by any Borrower or
any Subsidiary of any Borrower for one full quarter
or more for which Lender has received the financial
statements for such quarters required pursuant to
subsection 6.3.2, but owned by any such Person for
less than four full quarters, the product obtained by
multiplying EBITDA of such Target for the full
quarters that such Target has been owned by such
Person for which Lender has received such financial
statements by a fraction, the numerator of which is
four (4) and the denominator of which is the number
of full quarters that such Target has been owned by
such Person for which Lender has received such
financial statements; plus
(3) with respect to any Target owned by any Borrower or
any Subsidiary of any Borrower for four (4) full
quarters or more for which Lender has received
financial statements for not less than a four-quarter
period, EBITDA of such Target for the trailing
four-quarter period ending on the last day of the
immediately preceding the quarter for which Lender
has received such financial statements.
Advance means any advance of the Revolving Loan.
Affiliate means, as to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, is in
control of, is controlled by, or is under common control with, such
Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securities, by
contract or otherwise. Without limitation, any director, executive
officer or beneficial owner of five percent (5%) or more of the equity
of a Person shall, for purposes of this Loan Agreement, be deemed to
control the other Person. Notwithstanding the foregoing, Lender shall
not be deemed to be an "Affiliate" of any Borrower or any Subsidiary of
any Borrower.
Annual Fee - as defined in Section 2.11.
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Applicable Margin means, with respect to LIBOR Rate Loans and
Base Rate Loans, respectively, the applicable LIBOR margin or Base Rate
margin in effect from time to time determined based upon the applicable
Leverage Ratio then in effect pursuant to the appropriate column under
the table below:
LIBOR Base Rate
Leverage Ratio Margin Margin
-------------- ------ ------
less than 1.50 to 1.00 2.00% 0.50%
greater than or equal to
1.50 to 1.00, but less than
or equal to 2.00 to 1.00 2.25% 0.75%
greater than 2.00 to 1.00 2.75% 1.25%
The Applicable Margin shall be adjusted from time to time upon delivery
to Lender of the quarterly financial statements required to be
delivered pursuant to subsection 6.3.2 hereof, accompanied by a written
calculation of the Leverage Ratio certified by a Responsible Officer as
of the end of the fiscal quarter for which such financial statements
are delivered, which calculation may be contained in a Compliance
Certificate. If such calculation indicates that the Applicable Margin
shall increase or decrease, then on the first day of the month
following the date of delivery of such financial statements and written
calculation, the Applicable Margin shall be adjusted in accordance
therewith; provided, however, that if Borrowers shall fail to deliver
any such financial statements and written calculation for any such
fiscal quarter by the date required pursuant to subsection 6.3.2, then,
effective as of the first day of the month following the end of the
fiscal quarter for which such financial statements were to have been
delivered and continuing through the first day of the month following
the date (if ever) on which such financial statements and such written
calculation are finally delivered, the Applicable Margin shall be
conclusively presumed to equal the highest Applicable Margin specified
in the pricing table set forth above.
Approved Replacement means, with respect to any person, a
person reasonably acceptable to Lender hired or engaged by Borrowers to
replace and perform the tasks of another person whose employment or
occupancy of an office shall have ceased for any reason, which
replacement shall have occurred on or before the ninetieth (90th) day
after the cessation of the employment of or office occupancy by such
other person.
Assignment of Leases means an assignment of leases executed by
any Borrower or any Subsidiary of any Borrower, in form and substance
satisfactory to Lender.
Bankruptcy Code means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. 101, et seq.), any successor statute thereto, and the
rules, regulations and legally binding policies promulgated thereunder,
as amended and in effect from time to time.
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Base Rate means, at any time and from time to time, the higher
of (i) the per annum rate of interest announced or published publicly
from time to time by Citibank, N.A. in New York, New York as its
corporate base (or equivalent) rate of interest (which rate (a) shall
change automatically without notice and simultaneously with each change
in such corporate base rate, (b) is a reference rate and (c) does not
necessarily represent the lowest or best rate actually charged to any
customer by Citibank, N.A. in New York, New York) and (ii) the sum of,
for any day, (a) the weighted average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it, plus (b) 0.50%.
Base Rate Loan means a Loan that bears interest based on the
Base Rate.
Basic Financial Statements - as defined in subsection 6.3.3.
Borrower means any of the Borrowers.
Borrowers means collectively, InfoCure Corporation, InfoCure
Systems and Thoroughbred.
Borrowers' Obligations means, collectively, (i) any and all
Loans, Indebtedness, liabilities, obligations and fees due or to become
due, whether now existing or hereafter arising, of Borrowers and their
Subsidiaries to Lender (or any other Person required to be indemnified)
pursuant to the terms of this Loan Agreement, any other Loan Document,
any Rate Contracts (to the extent between any Borrower and Lender or
any Affiliate of Lender) or otherwise, including, without limitation,
the Unused Commitment Fee, the Annual Fee, the Success Fee, any
Acquisition Funding Fees and indemnification obligations, and (ii) the
performance of the covenants of Borrowers and their Subsidiaries
contained in the Loan Documents.
Business Day means any day other than a Saturday, Sunday or
other day on which banks in Phoenix, Arizona or New York, New York are
required to close and, if the applicable Business Day relates to any
LIBOR Rate Loan, a day on which dealings are carried on in the London
interbank market.
Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other Governmental Body, or any other
law, rule or regulation, whether or not having the force of law, in
each case, regarding capital adequacy of Lender or of any corporation
controlling Lender.
Capital Expenditures means for any period and with respect to
any Person, the aggregate of all (i) payments that are made or
liabilities that are incurred by such Person
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and its Subsidiaries for the lease, purchase, improvement, construction
or use of any Property, the value or cost of which under GAAP is
required to be capitalized and appears on such Person's consolidated
balance sheet in the category of property, plant or equipment, and (ii)
Capital Expenditures/Research and Development Costs, in any case,
without regard to the manner in which such payments or the instruments
pursuant to which they are made are characterized by such Person or any
other Person.
Capital Expenditures/Research and Development Costs means for
any period and with respect to any Person, the aggregate of all
expenditures by and costs of such Person and its Subsidiaries for
research and development which are capitalized, in accordance with
GAAP, on a consolidated balance sheet of such Person and its
Subsidiaries.
Capitalized Lease means any lease of Property, the obligations
for the rental of which are required to be capitalized in accordance
with GAAP.
Chief Financial Officer means the chief financial officer or
treasurer of InfoCure Corporation.
Closing means the initial Advance of the Revolving Loan on the
Closing Date.
Closing Date means the date on which all conditions precedent
set forth in Section 4.1 are satisfied or waived by Lender.
Code means the Internal Revenue Code of 1986, any successor
statute thereto, and the rules, regulations and legally binding
policies promulgated thereunder, as amended and in effect from time to
time.
Collateral means collectively, (i) all existing and
after-acquired Property of Borrowers and their Subsidiaries, including,
without limitation, all existing and after-acquired accounts,
machinery, equipment, inventory, goods, fixtures, chattel paper,
investment property, instruments, documents, deposit accounts and
general intangibles, (ii) the Subsidiary Equity Interests and (iii) all
proceeds of the foregoing.
Collateral Documents means, collectively, the Security
Agreement, the Assignment of Leases, the Mortgages, the Pledge
Agreement, the Subsidiary Guaranty, the Subsidiary Security Agreement
and all other security agreements, mortgages, deeds of trust, patent
and trademark assignments, lease and other assignments, guarantees and
other similar agreements, and all amendments, restatements,
modifications or supplements thereof or thereto, between any Borrower
or any Subsidiary of any Borrower and Lender now or hereafter delivered
to Lender pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable
documents now on file or hereafter filed in accordance with the UCC or
comparable law) against any Borrower or any Subsidiary of any Borrower
as debtor in favor of Lender, as secured party.
Commitment Fee - as defined in Section 2.9.
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Commitments means, collectively, the Revolving Loan Commitment
and the Term Loan Commitment.
Compliance Certificate means a compliance certificate executed
by the Chief Financial Officer, in substantially the form of EXHIBIT
1.1(A) hereto.
Consolidated Net Income means, for any period, the net income
of Borrowers and their Subsidiaries(other than the Restricted Foreign
Subsidiaries) for such period, on a consolidated basis, computed in
accordance with GAAP.
Consolidated Net Worth means, as of any date of determination,
the net worth of Borrowers and their Subsidiaries (other than the
Restricted Foreign Subsidiaries) on such date, on a consolidated basis,
computed in accordance with GAAP, plus non-cash charges incurred by any
Borrower or any Subsidiary of any Borrower (other than the Restricted
Foreign Subsidiaries) during the applicable period in connection with
any Acquisition, provided, that (i) such charges are so incurred and
recognized on or before the three hundred sixtieth (360th) day after
the consummation of such Acquisition and (ii) the aggregate amount of
such charges shall have been fixed or determined prior to such
consummation.
Conversion Date means any date on which Borrowers convert a
Base Rate Loan to a LIBOR Rate Loan or a LIBOR Rate Loan to a Base Rate
Loan.
Contribution Agreement means a contribution agreement between
the Borrowers, in form and substance satisfactory to Lender.
Default Rate means (i) with respect to the Term Loan A, a rate
equal to the Base Rate then in effect, plus three percent (3.0%) per
annum, (ii) with respect to the Revolving Loan (including, without
limitation, from and after the Term Conversion Date, the Term Loan B
Portion of the Revolving Loan), a rate equal to the Base Rate or the
LIBOR, as the case may be, plus the Applicable Margin then in effect,
plus 2.0% per annum and (iii) with respect to any other amounts which
may be owing by Borrowers to Lender pursuant to this Loan Agreement,
the other Loan Documents or otherwise, a rate equal to the greater of
(i) and (ii) of this definition.
Default Rate Period means a period of time commencing on the
date an Event of Default has occurred and ending on the date that such
Event of Default is cured or waived in writing by Lender.
DISC means DISC Computer Systems, Inc., a Minnesota
corporation.
Disposition means (a) the sale, lease, conveyance or other
disposition of Property, other than sales or other dispositions
expressly permitted under clause (i) and (ii) of Section 7.11, and (b)
the sale or transfer by any Borrower or any Subsidiary of any
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Borrower of any equity securities issued by any Subsidiary of any
Borrower and held by such transferor Person.
EBITDA means for any period, without duplication, net income
(or loss) for the applicable period of measurement of Borrowers and
their Subsidiaries (other than the Restricted Foreign Subsidiaries) (or
such other Persons as the context may require) on a consolidated basis
determined in accordance with GAAP, plus the sum of the following to
the extent deducted in determining such net income: (i) losses from
sales, transactions, exchanges and other dispositions of Property and
other extraordinary losses not in the ordinary course of business; (ii)
interest, fees and other charges paid or accrued on Indebtedness for
Borrowed Money; (iii) depreciation and amortization of Property; and
(iv) income taxes which are accrued or paid during such period, less
gains from sales, transactions, exchanges and other dispositions of
Property and other extraordinary gains not in the ordinary course of
business to the extent included in determining such net income;
provided, however, that for any date of determination occurring before
December 31, 1999, consolidated EBITDA of Borrowers and their
Subsidiaries shall equal the product obtained by multiplying
consolidated EBITDA of Borrowers and their Subsidiaries for the full
quarters of 1999 for which Lender has received financial statements for
Borrowers and their Subsidiaries pursuant to subsection 6.3.2 by a
fraction, the numerator of which is four (4) and the denominator of
which is the number of full quarters that have occurred in 1999 for
which Lender has received such financial statements.
Employee Benefit Plan means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of any Borrower or any ERISA Affiliates of any Borrower or
(ii) has at any time within the preceding six (6) years been maintained
for the employees of such Borrower or any current or former ERISA
Affiliates of any Borrower.
Environmental Certificate means an environmental certificate
executed by Borrowers, in form and substance satisfactory to Lender.
Environmental Laws means any and all federal, state and local
laws that relate to or impose liability or standards of conduct
concerning public or occupational health and safety or protection of
the environment, as now or hereafter in effect and as have been or
hereafter may be amended or reauthorized, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C Section 9601 et seq.), the Hazardous Materials
Transportation Act (42 U.S.C. Section 1802 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the
Clean Air Act (42 U.S.C. Section 7901 et seq.), the National
Environmental Policy Act (42 U.S.C. Section 4231, et seq.), the Refuse
Act (33 U.S.C. Section 407, et seq.), the Safe Drinking Water Act (42
U.S.C. Section 300(f) et seq.), the Occupational Safety and Health Act
(29 U.S.C. Section 651 et seq.), and all rules, regulations, codes,
ordinances and guidance documents promulgated or published thereunder,
and the provisions of any licenses, permits, orders and decrees issued
pursuant to any of the foregoing.
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ERISA means the Employee Retirement Income Security Act of
1974, and any successor statute thereto, and the rules, regulations and
legally binding policies promulgated thereunder, as amended and in
effect from time to time.
ERISA Affiliate means any Person who is a member of a group
which is under common control with any Borrower, who together with such
Borrower is treated as a single employer within the meaning of Section
414(b), (c) and (m) of the Code.
Event of Default means any of the Events of Default set forth
in Section 8.1.
Excess Cash Flow means, for any period, (i) the Operating Cash
Flow of Borrowers for such period, minus (ii) the aggregate of the
following for such period: (A) Total Debt Service and (B) income taxes
paid by Borrowers and their Subsidiaries (other than the Restricted
Foreign Subsidiaries) during such period.
Excess Interest - as defined in subsection 2.3.4.
Existing FINOVA Indebtedness means Indebtedness of Borrowers
owing to Lender under current credit facilities provided by Lender to
Borrowers, including principal, interest, fees and any other amounts
owing in respect thereof, the aggregate amount of which shall be
refinanced on the Closing Date with a portion of the proceeds of the
Loans.
FINOVA means FINOVA Capital Corporation, a Delaware
corporation.
Fiscal Year means the fiscal year of Borrowers and their
Subsidiaries for financial accounting purposes, which fiscal year ends
on December 31. For example, a reference to the 1999 Fiscal Year of
Borrowers shall be deemed to refer to Borrowers' Fiscal Year ended
December 31, 1999.
Funding Date means the date of disbursement of the Term Loan A
or any Advance of the Revolving Loan, as applicable.
GAAP means generally accepted accounting principles as in
effect from time to time, which shall include but shall not be limited
to the official interpretations thereof by the Financial Accounting
Standards Board or any successor thereto.
Good Funds means United States Dollars available in Federal
funds to Lender at or before 2:00 p.m., Phoenix time, on a Business
Day.
Governmental Body means any foreign, federal, state, municipal
or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof or any court or
arbitrator.
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Hazardous Materials means any hazardous, toxic, dangerous or
other waste, substance or material defined as such in, regulated by or
for purposes of any Environmental Law.
Incipient Default means any event, circumstance or condition
which, with the giving of notice, the lapse of time, or both, would
constitute an Event of Default.
Indebtedness means all liabilities, obligations and reserves,
contingent or otherwise, which, in accordance with GAAP, would be
reflected as a liability on a balance sheet or would be required to be
disclosed in a financial statement, including, without duplication: (i)
Indebtedness for Borrowed Money, (ii) obligations secured by any Lien
upon Property, (iii) guaranties, letters of credit and other contingent
obligations and (iv) liabilities in respect of unfunded vested benefits
under any Pension Plan or in respect of withdrawal liabilities incurred
under ERISA by any Borrower or any of its ERISA Affiliates to any
Multiemployer Plan.
Indebtedness for Borrowed Money means, without duplication,
all (i) Indebtedness in respect of borrowed money, (ii) Indebtedness
evidenced by a note, debenture or other like written obligation to pay
money (including, without limitation, all of Borrowers' Obligations and
Permitted Senior Indebtedness), (iii) Indebtedness in respect of rent
or hire of Property under Capitalized Leases or for the deferred
purchase price of Property or services, (iv) Indebtedness in respect of
obligations under conditional sales or other title retention
agreements, (v) all net obligations with respect to Rate Contracts and
(vi) all guaranties of any or all of the foregoing.
InfoCure Corporation - as defined in the Preamble of this Loan
Agreement.
InfoCure Systems - as defined in the Preamble of this Loan
Agreement.
Interest Payment Date means (i) with respect to any LIBOR Rate
Loan (other than a LIBOR Rate Loan having an Interest Period of six (6)
months), the last day of each Interest Period applicable to such Loan,
(ii) with respect to any LIBOR Rate Loan having an Interest Period of
six (6) months, the last day of each three (3) month interval, and
(iii) with respect to Base Rate Loans, the first Business Day of each
quarter.
Interest Period means, with respect to any LIBOR Rate Loan,
the period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to
the LIBOR Rate Loan and ending on the date one, two, three or six
months thereafter, as selected by Borrowers in their Notice of
Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period pertaining to a LIBOR Rate
Loan would otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately
preceding Business Day;
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(ii) any Interest Period pertaining to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at
the end of such Interest Period;
(iii) no Interest Period for the Term Loan B Portion,
any Advance of the Revolving Loan or any portion thereof shall
extend beyond the last scheduled payment date therefor; and
(iv) no Interest Period applicable to the Term Loan B
Portion, any Advance of the Revolving Loan or any portion
thereof shall extend beyond any date upon which is due any
scheduled principal payment in respect of the Term Loan B
Portion or such Advance unless the Principal Balance of the
Term Loan B Portion or such Advance represented by Base Rate
Loans or by LIBOR Rate Loans having Interest Periods that will
expire on or before such date is equal to or in excess of the
amount of such principal payment.
Landlord means a lessor under a Lease.
Landlord Consent means a consent from a Landlord in form and
substance satisfactory to Lender.
Lease means any lease of real estate under which any Borrower
or any Subsidiary of any Borrower is the lessee or sublessee.
Leasehold Property means any real estate which is the subject
of a Lease.
Leverage Ratio means, as of any date of determination, the
ratio of (i) the aggregate amount of all Indebtedness for Borrowed
Money of Borrowers and their Subsidiaries as of such date to (ii) the
amount by which (a) Adjusted EBITDA of Borrowers and their Subsidiaries
(other than the Restricted Foreign Subsidiaries) for the twelve-month
period ending on such date, exceeds (b) the aggregate amount of Capital
Expenditures/Research and Development Costs made, incurred or otherwise
recognized by Borrowers and their Subsidiaries during such period.
LIBOR means, for each Interest Period, the offered rate per
annum for deposits of Dollars for the applicable Interest Period that
appears on Telerate Page 3750 as of 11:00 A.M. (London, England time)
two (2) Business Days prior to the first day in such Interest Period.
If no such offered rate exists, such rate shall be the rate of interest
per annum, as determined by Lender (rounded upwards, if necessary, to
the nearest 1/16 of 1%) at which deposits of United States dollars in
immediately available funds are offered at 11:00 A.M. (London, England
time) two (2) Business Days prior to the first day in such Interest
Period by major financial institutions reasonably satisfactory to
Lender in the London interbank market for such Interest Period for the
applicable principal amount on such date of determination.
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LIBOR Rate Loan means a Loan that bears interest based on
LIBOR.
License Agreements means all license agreements pursuant to
which any Borrower or any Subsidiary of any Borrower is licensed to use
the computer software or similar Property of any other Person in
connection with the business of such Borrower or such Subsidiary.
Licenses means all licenses, permits, consents, approvals and
authority issued by any Governmental Body in connection with the
operation of the business of any Borrower or any Subsidiary of any
Borrower.
Lien means any mortgage, pledge, assignment, lien, charge,
encumbrance or security interest of any kind, or the interest of a
vendor or lessor under any conditional sale agreement, Capitalized
Lease or other title retention agreement.
Loan Agreement means this Loan Agreement and any amendments or
supplements hereto and restatements hereof.
Loan Documents means, collectively, this Loan Agreement, the
Notes, the Environmental Certificates, the Contribution Agreement, the
Subsidiary Guaranty, the Collateral Documents, the Warrants, all
agreements, documents and instruments delivered to Lender in connection
therewith and all Rate Contracts between any Borrower and Lender (or
any Affiliate of Lender), including, without limitation, any
subordination agreements covering or otherwise relating to any of the
Subordinated Indebtedness, including, without limitation, the
Thoroughbred Subordination Agreement.
Loans means, collectively, the Term Loan and the Revolving
Loan or any portion thereof, and may mean a Base Rate Loan or a LIBOR
Rate Loan. Such term shall include the Term Loan B Portion upon
conversion of the Revolving Loan as provided in subsection 2.l.2.
Loan Year means a period of time from the Closing Date or any
anniversary of the Closing Date to the immediately succeeding
anniversary of the Closing Date.
Material Adverse Effect means (i) a material adverse effect
upon or change in the business, operations, Property, profits or
condition (financial or otherwise) of Borrower and their respective
Subsidiaries taken as a whole or upon the validity, enforceability or
priority of the Security Interests or (ii) a material impairment of the
ability of Borrowers and their Subsidiaries taken as a whole to perform
their obligations under any Loan Document or of Lender to enforce or
collect any of Borrowers' Obligations.
Maximum Rate - as defined in subsection 2.3.4.
Medical Software Management means Medical Software Management,
Inc., a Georgia corporation.
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Mortgage means any mortgage, deed of trust or other document
creating a Lien on any parcel of Real Estate in favor of Lender, in
form and substance satisfactory to Lender.
Multiemployer Plan means any multiemployer plan as defined
pursuant to Section 3(37) of ERISA to which any Borrower or any ERISA
Affiliate of any Borrower makes, or accrues an obligation to make
contributions, or has made, or been obligated to make, contributions
within the preceding six (6) years.
Net Issuance Proceeds means, in respect of any issuance of
debt or equity, cash proceeds or non-cash proceeds received or
receivable in connection therewith, net of reasonable out-of-pocket
costs and expenses paid or incurred in connection therewith in favor of
any Person not an Affiliate of any Borrower; provided, however, that
the term "Net Issuance Proceeds" shall not include any proceeds (i)
received by InfoCure Corporation in connection with the issuance of
stock to its employees in the ordinary course of business pursuant to a
stock option plan maintained by InfoCure Corporation or (ii) of the
Loans.
Net Proceeds means proceeds in cash, checks or other cash
equivalent financial instruments (including cash equivalents) as and
when received by the Person making a Disposition, net of: (a) the
direct costs relating to such Disposition excluding amounts payable to
any Borrower or any Affiliate of any Borrower, (b) sale, use or other
transaction taxes paid or payable as a result thereof and (c) amounts
required to be applied to repay principal, interest and prepayment
premiums and penalties on Indebtedness secured by a Lien on the asset
which is the subject of such Disposition.
Notes means collectively, the Term Loan A Note and the
Revolving/Term Loan Note.
Notice of Borrowing means a notice given by Borrowers to
Lender pursuant to either Section 4.2.1 or clause (ii) of subsection
2.1.1, in any case in substantially the form of EXHIBIT 1.1(B) hereto.
Notice of Conversion/Continuation means a notice given by
Borrowers to Lender pursuant to Section 2.5(b), in substantially the
form of EXHIBIT 1.1(C) hereto.
Operating Agreements means all right-of-entry agreements,
access agreements, advertising contracts, equipment leases, agreements
pursuant to which any Person provides electronic data service to any
Borrower or any Subsidiary of any Borrower, service contracts and
similar agreements relating to the operation of the business of any
Borrower or any Subsidiary of any Borrower, excluding Leases.
Operating Cash Flow means, for any period, EBITDA of Borrowers
and their Subsidiaries (other than the Restricted Foreign Subsidiaries)
for such period, less Capital Expenditures made or incurred by
Borrowers and their Subsidiaries during such period.
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Operating Lease means any lease which, under GAAP, is not
required to be capitalized.
PBGC means the Pension Benefit Guaranty Corporation or any
Governmental Body succeeding to the functions thereof.
Pension Plan means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Part 3 of
Title I of ERISA, Title IV of ERISA, or Section 412 of the Code and
which (i) is maintained for employees of any Borrower or any of its
ERISA Affiliates of any Borrower, or (ii) has at any time within the
preceding six (6)years been maintained for the employees of any
Borrower or any current or former ERISA Affiliates of any Borrower.
Permitted Liens means any of the following Liens:
(i) the Security Interests;
(ii) the Permitted Senior Indebtedness Liens;
(iii) Liens for taxes or assessments and similar charges,
which either are (a) not delinquent or (b) being
contested diligently and in good faith by appropriate
proceedings, and as to which the applicable Borrower
or Subsidiary of a Borrower has set aside reserves on
its books which are satisfactory to Lender;
(iv) statutory Liens, such as mechanic's, materialman's,
warehouseman's, carrier's or other like Liens,
incurred in good faith in the ordinary course of
business, provided that the underlying obligations
relating to such Liens are paid in the ordinary
course of business, or are being contested diligently
and in good faith by appropriate proceedings and as
to which the applicable Borrower has set aside
reserves on its books satisfactory to Lender, or the
payment of which obligations are otherwise secured in
a manner satisfactory to Lender;
(v) zoning ordinances, easements, licenses, reservations,
provisions, covenants, conditions, waivers or
restrictions on the use of Property and other title
exceptions, in each case, that are acceptable to
Lender;
(vi) Liens in respect of judgments or awards with respect
to which no Event of Default would exist pursuant to
subsection 8.1.6;
(vii) Liens to secure payment of insurance premiums (a) to
be paid in accordance with applicable laws in the
ordinary course of business relating to payment of
worker's compensation, or (b) that are required for
the participation in any fund in connection with
worker's compensation,
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unemployment insurance, old-age pensions or other
social security programs; and
(viii) Liens in favor of Security National Bank evidenced by
the Real Estate/Macon Mortgage.
Permitted Prior Liens means any of the following Liens:
(i) the Permitted Senior Indebtedness Liens;
(ii) the Permitted Liens described in clauses (iii) and
(iv) of the definition of Permitted Liens that are
accorded priority to the Security Interests by law;
and
(iii) the Permitted Liens described in clauses (v) and
(vii) of the definition of Permitted Liens, subject
to the limitations set forth therein.
Permitted Senior Indebtedness means Indebtedness, other than
Borrowers' Obligations, incurred to purchase tangible personal property
or Indebtedness incurred to lease tangible personal property pursuant
to Capitalized Leases, provided that (i) such aggregate Indebtedness of
Borrowers existing as of the Closing Date shall not exceed $4,000,000
in the aggregate, (ii) during any Loan Year after the Closing Date, the
aggregate amount of such Indebtedness of Borrowers and their
Subsidiaries at any one time outstanding during such Loan Year shall
not exceed $10,000,000 and principal payments made with respect to such
Indebtedness during such Loan Year shall not exceed $3,000,000 in the
aggregate, and (iii) no Event of Default exists at the time or will be
caused as a result of the incurrence of any Indebtedness described in
clause (ii) of this definition.
Permitted Senior Indebtedness Liens means Liens that secure
Permitted Senior Indebtedness, provided that each such Lien attaches
only to the Property purchased or leased with the proceeds of the
Permitted Senior Indebtedness incurred with respect to such Property.
Person means any individual, firm, corporation, business
enterprise, trust, association, joint venture, partnership, limited
liability company or partnership, Governmental Body or other entity,
whether acting in an individual, fiduciary or other capacity.
Pledge Agreement means, collectively, the pledge agreements
executed by InfoCure Corporation and such other Persons, pursuant to
which Lender is granted a first Lien upon the Subsidiary Equity
Interests, in form and substance satisfactory to Lender.
Prepayment Premium - as defined in subsection 2.8.3.
Principal Balance means the unpaid principal balance of the
Loans or any specified portion thereof outstanding from time to time.
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Pro Forma EBITDA means, with respect to any Target, EBITDA for
such Target for the most recent twelve-month period (or, if otherwise
designated, for any other applicable period or periods) for which
financial statements are available at the time of determination
thereof, adjusted for verifiable expense reductions which are expected
to be realized, calculated by Borrowers and approved by Lender pursuant
to Section 7.21.
Property means all types of real, personal or mixed property
and all types of tangible or intangible property.
Qualified Depository means a member bank of the Federal
Reserve System having a combined capital and surplus of at least
$100,000,000.
Rate Contracts means swap agreements (as such term is defined
in Section 101 of the Bankruptcy Code) and any other agreements or
arrangements designed to provide protection against fluctuations in
interest or currency exchange rates.
Real Estate means any real estate which is owned, beneficially
or otherwise, by any Borrower or any Subsidiary of any Borrower and
shall include, after the consummation of the Real Estate Acquisition
and, prior to such consummation, for purposes of Section 4.4, the real
property that is the subject of the Real Estate Acquisition.
Real Estate/Macon means the Real Estate owned by InfoCure
Systems located in Xxxx County, Georgia and covered by and subject to
the Real Estate/Macon Mortgage.
Real Estate/Macon Mortgage means that certain Real Estate Deed
to Secure Debt dated as of May 15, 1998 made from Macon Systems
Management, LLC to Security National Bank, filed for record on May 29,
1998 and recorded in Deed Book 4185, Page 94, Records of Xxxx County,
Georgia, as amended by that certain Assumption, Release and Consent
Agreement by and between Macon Systems Management, LLC, Xxxxxx X.
XxxxXxxx, Xxxxxx X. Xxxxxx, InfoCure Systems and Security National
Bank, dated February 10, 1999, filed for record on February 12, 1999
and recorded in Deed Book 4371, Page 234, Records of Xxxx County,
Georgia.
Real Estate Acquisition means the acquisition by InfoCure
Corporation or any of its Subsidiaries (other than a Restricted Foreign
Subsidiary) of the real property located in Xxxx County, Georgia, and
all improvements thereon, and commonly known as 0000 Xxx Xxxxxxxx,
Xxxxxxx, Xxxxxxx 00000.
Real Estate Acquisition Documents means, collectively, that
certain Agreement of Sale among Highwoods Reality Limited Partnership,
a North Carolina limited partnership, InfoCure Corporation, Chicago
Title Insurance Company, CB Xxxxxxx Xxxxx, Inc. and Hailey Realty
Company, Inc., together with all agreements, documents and instruments
executed and/or delivered in connection therewith, in each case in form
and substance satisfactory to Lender.
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Real Estate Funding Date means the date on which all
conditions precedent contained in Sections 4.2 and 4.4 have been
satisfied and the proceeds of the Term Loan A shall have been funded.
Related Transactions means the Acquisitions and the Real
Estate Acquisition.
Related Transaction Documents means the Acquisition Documents
and the Real Estate Acquisition Documents.
Requirement of Law means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Body, in each case applicable to or
binding upon such Person or any of its Property or to which such Person
or any of its Property is subject.
Restricted Foreign Subsidiaries means, collectively, InfoCure
Australia Pty Limited and Xxxxxx Pty Limited, each a company organized
under the laws of Australia.
Responsible Officer means the Chief Executive Officer or the
president of InfoCure Corporation, or any other officer having
substantially the same authority and responsibility; or, with respect
to compliance with financial covenants, the chief financial officer or
the treasurer of InfoCure Corporation, or any other officer having
substantially the same authority and responsibility.
Revolving Loan means the revolving loan in the maximum amount
of $91,295,000 (subject to reduction in accordance with the terms of
this Loan Agreement) to be made by Lender to Borrowers pursuant to
subsection 2.1.2.
Revolving Loan Commitment means, at any time, the commitment
of Lender to make Advances of the Revolving Loan in accordance with the
terms of this Loan Agreement.
Revolving/Term Loan Note means a promissory note of Borrowers
payable to the order of Lender evidencing Indebtedness of Borrowers
under the Revolving Loan Commitment.
Securities Act means the Securities Act of 1933, the
Securities Exchange Act of 1934, any successor statute thereto, and the
rules, regulations and legally binding policies of the Securities
Exchange Commission promulgated thereunder, as amended and in effect
from time to time.
Security Interests means the Liens in the Collateral granted
to Lender pursuant to the Collateral Documents and any other agreement,
document or instrument now or hereafter executed by any Borrower, any
Subsidiary of any Borrower or any other Person which purports to xxxxx
x Xxxx on the Property of such Borrower, such Subsidiary or such other
Person in favor of Lender.
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Security Agreement means a security agreement made by
Borrowers in favor of Lender, in form and substance satisfactory to
Lender.
Stated Rate - as defined in subsection 2.3.4.
StrategiCare means StrategiCare, Inc., a Minnesota
corporation.
Subordinated Indebtedness means the Indebtedness described on
EXHIBIT 1.1(D) and all other Indebtedness for Borrowed Money of any
Borrower or any Subsidiary of any Borrower which is subordinated in
right of payment and action to Borrowers' Obligations, including,
without limitation, Indebtedness for Borrowed Money incurred in
connection with Acquisitions permitted hereunder and the Indebtedness
for Borrowed Money evidenced by the Thoroughbred Note, but specifically
excluding the Indebtedness for Borrowed Money described on EXHIBIT 7.1
hereto.
Subsidiary of a Person means any other Person of which more
than fifty percent (50%) of the voting stock or other equity interests
(in the case of Persons other than corporations) is owned or
controlled, directly or indirectly, by such Person, or one or more of
the Subsidiaries of such Person, or any combination thereof.
Subsidiary Equity Interests means all of the issued and
outstanding capital stock, partnership and limited liability company
interests and other equity interests, any all warrants, options and
other rights to purchase or otherwise acquire any capital stock,
partnership and limited liability company interests or other equity
interests, of the Subsidiaries of InfoCure Corporation (including,
without limitation, InfoCure Systems, Thoroughbred, DISC, StrategiCare,
Medical Software Management and, to the extent a pledge of the equity
interests of such Persons is required by Section 6.17, the Restricted
Foreign Subsidiaries).
Subsidiary Guaranty means the guaranty made by the
Subsidiaries of Borrowers (other than the Restricted Foreign
Subsidiaries, unless required by Section 6.17) in favor of Lender, in
form and substance satisfactory to Lender.
Subsidiary Security Agreement means the security agreement
made by the Subsidiaries of Borrowers (other than the Restricted
Foreign Subsidiaries, unless required by Section 6.17) in favor of
Lender, in form and substance satisfactory to Lender.
Success Fee - as defined in Section 2.12.
Target means (i) any other Person engaged in business
activities primarily related to the business activities of Borrowers or
(ii) a business unit or asset group of any other Person which is used
in business activities primarily related to the business activities of
Borrowers, in each case acquired or proposed to be acquired in an
Acquisition; provided, that, with respect to the calculation of
Adjusted EBITDA, the term "Target" shall be deemed also to include any
Person or business unit or asset group of any other Person
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that shall have been acquired by any Borrower during the twelve-month
period ending on the Closing Date.
Term Conversion Date means the second anniversary of the
Closing Date, or, if such date is not a Business Day, the Business Day
immediately preceding the second anniversary of the Closing Date.
Term Loan A means the term loan in the maximum amount of
$8,705,000 to be made by Lender to Borrowers pursuant to subsection
2.1.1.
Term Loan A Note means a promissory note of Borrowers payable
to the order of Lender evidencing the Indebtedness of Borrowers to
Lender resulting from the Term Loan A made to Borrowers by Lender.
Term Loan B Portion - as defined in subsection 2.6.2.
Term Loan Commitment means the commitment of Lender to make
the Term Loan A in accordance with the terms of this Agreement.
Termination Event means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder; or (ii)
the withdrawal of any Borrower or any ERISA Affiliate of any Borrower
from a Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2); or (iii) the termination of
a Pension Plan, the filing of a notice of intent to terminate a Pension
Plan or the treatment of a Pension Plan amendment as a termination
under Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension
Plan by the PBGC; or (v) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan; or
(vi) the partial or complete withdrawal of any Borrower or any ERISA
Affiliate of any Borrower from a Multiemployer Plan; or (vii) the
imposition of a lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections
4241 or 4245 of ERISA; or (ix) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or
the institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA.
Thoroughbred - as defined in the Preamble of this Loan
Agreement.
Thoroughbred Note means that certain Convertible Subordinated
Non-Negotiable Promissory Note dated October 23, 1998 in the original
principal amount of $10,000,000 made by InfoCure Corporation payable to
the order of Xxxxxxxx and Xxxxxxxx Holdings, Inc.
Thoroughbred Subordination Agreement means that certain
Subordination Agreement dated as of October 23, 1998 between InfoCure
Corporation and Xxxxxxxx
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and Xxxxxxxx Holdings, Inc., as amended, modified, supplemented,
restated or reaffirmed from time to time with the consent of the
parties thereto.
Total Debt Service means during any period, all payments of
principal, interest, premium, loan fees and other charges with respect
to Indebtedness for Borrowed Money of Borrowers and their Subsidiaries
(including, without limitation, Borrowers' Obligations, Permitted
Senior Indebtedness and Subordinated Indebtedness), which payments are
required or permitted to be made pursuant to this Loan Agreement and
are due and payable during such period.
Total Debt Service Coverage Ratio means the ratio of (i)
Operating Cash Flow of Borrowers and their Subsidiaries for the
twelve-month period ending on the last day of any quarter to (ii) Total
Debt Service of Borrowers and their Subsidiaries for such twelve-month
period.
UCC or Uniform Commercial Code means the Uniform Commercial
Code as in effect in the State of Arizona.
Unused Commitment Fee - as defined in Section 2.10.
Warrants means, collectively, (i) that certain Warrant
Agreement with an original issue date of January 21, 1999 issued by
Borrower to and for the benefit of Lender and (ii) that certain Warrant
Agreement with an original issue date of October 23, 1998 issued by
Borrower to and for the benefit of Lender.
1.2 TIME PERIODS. In this Loan Agreement and the other Loan Documents,
in the computation of periods of time from a specified date to a later specified
date, (i) the word "from" means "from and including," (ii) the words "to" and
"until" each mean "to, but excluding" and (iii) the words "through," "end of"
and "expiration" each mean "through and including." Unless otherwise specified,
all references in this Loan Agreement and the other Loan Documents to (i) a
"month" shall be deemed to refer to a calendar month, (ii) a "quarter" shall be
deemed to refer to a calendar quarter and (iii) a "year" shall be deemed to
refer to a calendar year.
1.3 ACCOUNTING TERMS AND DETERMINATIONS. All accounting terms not
specifically defined herein shall be construed, all accounting determinations
hereunder shall be made and all financial statements required to be delivered
pursuant hereto shall be prepared in accordance with GAAP as in effect at the
time of such interpretation, determination or preparation, as applicable. In the
event that any Accounting Changes (as hereinafter defined) occur and such
changes result in a change in the method of calculation of financial covenants,
standards or terms contained in this Loan Agreement, then Borrowers and Lender
agree to enter into negotiations to amend such provisions of this Loan Agreement
so as to reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of Borrower shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
For purposes hereof, "Accounting Changes" shall mean (i) changes in generally
accepted accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards Board
of the American Institute of Certified Public Accountants
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(or any successor thereto) or other appropriate authoritative body and (ii)
changes in accounting principles as approved by the Borrowers' accountants.
1.4 REFERENCES. All references in this Loan Agreement to "Article,"
"Section," "subsection," "subparagraph," "clause" or "Exhibit," unless otherwise
indicated, shall be deemed to refer to an Article, Section, subsection,
subparagraph, clause or Exhibit, as applicable, of this Loan Agreement.
1.5 LENDER'S DISCRETION. Whenever the terms "satisfactory to Lender,"
"determined by Lender," "acceptable to Lender," "Lender shall elect," "Lender
shall request," "at the option or election of Lender," or similar terms are used
in the Loan Documents, except as otherwise specifically provided therein, such
terms shall mean satisfactory to, at the election or option of, determined by,
acceptable to or requested by Lender, in its sole and unlimited discretion.
1.6 BORROWER'S OR BORROWERS' KNOWLEDGE. Any statements,
representations or warranties in the Loan Documents that are based upon the
knowledge or best knowledge of a Borrower or an officer thereof shall be deemed
to have been made after due inquiry by the officer making such statements,
representations or warranties on behalf of such Borrower or himself or herself,
as applicable, with respect to the matter in question, and no Borrower shall be
imputed with knowledge of any fact or circumstance unless a Responsible Officer
of such Borrower shall have or should have had actual knowledge of such fact or
circumstance.
ARTICLE II
LOANS AND TERMS OF PAYMENT; SYNDICATION
2.1 LOANS.
2.1.1 TERM LOAN A. The Term Loan A shall consist of a term
loan from Lender to Borrowers in an aggregate amount requested by
Borrowers not to exceed $8,705,000, subject to subsection 2.1.3. Lender
shall disburse the proceeds of the Term Loan A to or as directed by
Borrowers on or before the second anniversary of the Closing Date, upon
the satisfaction of the following conditions for each and every advance
thereof:
(i) all of the terms and conditions set forth in
Section 4.2 and 4.4 shall have been satisfied;
(ii) with respect to any such advance occurring after
the Closing Date, not less than two (2) Business Days prior to
the date upon which Borrowers desire to borrow any portion of
the proceeds of the Term Loan A, Borrowers shall have
delivered to Lender a Notice of Borrowing;
(iii) no Incipient Default or Event of Default shall
exist at the time such Notice of Borrowing is delivered to
Lender or on the requested date of
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disbursement, or be caused as a result of the incurrence of
such Indebtedness for Borrowed Money by Borrowers; and
(iv) Lender shall have received (A) evidence (in the
form of invoices or otherwise) satisfactory to Lender which
supports the amount of the requested advance of the Term Loan
A, (B) any lien waivers requested by Lender, including,
without limitation, mechanic's lien waivers, in any case in
form and substance satisfactory to Lender, and (C) a date down
endorsement to the title policy in favor of Lender, as
insured, covering the applicable Real Estate.
2.1.2 REVOLVING LOAN. Lender agrees, on the terms and
conditions hereinafter set forth, to make Advances of the Revolving
Loan to Borrowers on any Business Day during the period from the
Closing Date to the day immediately preceding August 11, 2002 in an
aggregate amount not to exceed at any time outstanding $91,295,000,
subject to subsection 2.1.3 and reduction from time to time pursuant to
the terms of this Loan Agreement. Borrowers agree and acknowledge that
on the Closing Date, without giving effect to any other Loans requested
by Borrowers on such date, $12,149,250.00 shall be deemed outstanding
under the Revolving Loan, which amount shall be deemed to have
refinanced the Existing FINOVA Indebtedness. Notwithstanding anything
contained herein to the contrary, Lender shall not be required or
obligated to make additional Advances of the Revolving Loan Commitment
from and after August 10, 2002.
2.1.3 SUBORDINATION PROVISIONS. Notwithstanding anything
contained herein or any other Loan Document to the contrary, and
without limiting any other term or provision of this Loan Agreement or
any other Loan Document, Lender shall not be required or obligated to
make any Advance or advance of the Term Loan A if, as a result thereof,
the Principal Balance or any portion thereof would not constitute
senior indebtedness or any other similar term or concept under any
effective subordination agreement or terms governing any Subordinated
Indebtedness (including, without limitation, the Indebtedness evidenced
by the Thoroughbred Note) or otherwise be senior in right of payment
and collection to any Subordinated Indebtedness at least to the extent
any other portion of the Principal Balance is senior in right of
payment and collection to any such Subordinated Indebtedness. Without
limiting the foregoing, so long as the Thoroughbred Note remains
outstanding Lender shall not be required or obligated to make any
Advance or advance of the Term Loan A if the result thereof would cause
the Principal Balance to exceed $75,000,000 (or such other limit on
"Senior indebtedness" (as defined in the Thoroughbred Subordination
Agreement) that from time to time may be set or present under the terms
of the Thoroughbred Subordination Agreement).
2.2 USE OF PROCEEDS, NOTES AND REBORROWING.
2.2.1 USE OF PROCEEDS. The proceeds of the (i) Term Loan A
shall be used solely to consummate the Real Estate Acquisition and (ii)
Revolving Loan shall be used solely for consummating Acquisitions to
the extent permitted hereunder and to pay related transaction costs;
provided that a maximum amount of $15,000,000 at any one time
outstanding of the Revolving Loan may be used for working capital
purposes.
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2.2.2 NOTES. The Term Loan A and the Revolving Loan
(including, without limitation, the Term Loan B Portion thereof) shall
be evidenced by the Term Loan A Note and the Revolving/Term Loan Note,
respectively.
2.2.3 REBORROWING. Borrowers may not reborrow all or any
portion of the Term Loan A or, from and after the Term Conversion Date,
the Revolving Loan. Subject to the terms and conditions of this
Agreement, Borrowers from time to time may reborrow all or any portion
of the Revolving Loan which is repaid or prepaid through the date
immediately preceding the Term Conversion Date.
2.3 INTEREST.
2.3.1 INTEREST RATES AND PAYMENT. Except as provided in
subsection 2.3.2 and subject to the provision contained in Section 2.4,
(i) the Principal Balance of the Term Loan A shall bear interest at a
per annum rate equal to the Base Rate, plus one percent (1.0%) and (ii)
the Revolving Loan (including, without limitation, the Term Loan B
Portion thereof) shall bear interest at a per annum rate equal to the
LIBOR or the Base Rate, as the case may be, plus the Applicable Margin.
Interest shall be payable in arrears on each Interest Payment Date.
Interest also shall be paid on the date of any payment or prepayment of
the Loans pursuant to Sections 2.6 and 2.8.
2.3.2 DEFAULT RATE. During a Default Rate Period, Borrowers'
Obligations shall bear interest at the applicable Default Rate.
2.3.3 INTEREST AND FEES COMPUTATION. Computations of interest
on LIBOR Rate Loans, fees and all other Borrowers' Obligations (other
than Base Rate Loans) shall be computed on the basis of a year
consisting of 360 days and charged for the actual number of days during
the period for which such interest and fees are being charged.
Computations of interest on Base Rate Loans shall be computed on the
basis of a year consisting of 365 days (or, in the case of a leap year,
366 days) and charged for the actual number of days during the period
for which such interest is being charged. In computing interest and
fees, the date of funding shall be included and the date of payment
shall be excluded.
2.3.4 MAXIMUM INTEREST. Notwithstanding any provision to the
contrary contained herein or in any other Loan Document, Lender shall
not collect a rate of interest on any obligation or liability due and
owing by Borrowers to Lender in excess of the maximum contract rate of
interest permitted by applicable law (such excess referred to as
"Excess Interest"). Lender and Borrowers agree that the interest laws
of the State of Arizona shall govern the relationship among them and
understand and believe that the transactions contemplated by the Loan
Documents comply with the usury laws of the State of Arizona, but in
the event of a final adjudication to the contrary, Borrowers shall be
obligated to pay, nunc pro tunc, to Lender only such interest as then
shall be permitted by the laws of the state found to govern the
contract relationship among Lender and Borrowers. If any Excess
Interest is provided for or determined by a court of competent
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jurisdiction to have been provided for in this Loan Agreement or any
other Loan Document, then in such event (i) no Borrower shall be
obligated to pay such Excess Interest, (ii) any Excess Interest
collected by Lender shall be, at Lender's option, (A) applied to the
Principal Balance in such manner as Lender may elect or to accrued and
unpaid interest not in excess of the maximum rate permitted by
applicable law (the "Maximum Rate") or (B) refunded to the payor
thereof, (iii) the interest rates provided for herein (the "Stated
Rate") shall be automatically reduced to the Maximum Rate and the Loan
Documents shall be deemed to have been, and shall be, modified to
reflect such reduction and (iv) no Borrower shall have any action
against Lender for any damages arising out of the payment or collection
of such Excess Interest; provided, however, that if at any time
thereafter the Stated Rate is less than the Maximum Rate, Borrowers
shall, to the extent permitted by law, continue to pay interest at the
Maximum Rate until such time as the total interest received by Lender
is equal to the total interest which Lender would have received had the
Stated Rate been (but for the operation of this provision) the interest
rate payable. Thereafter, the interest rate payable shall be the Stated
Rate unless and until the Stated Rate again exceeds the Maximum Rate,
in which event the provisions contained in this subsection 2.3.4 shall
again apply.
2.4 PROCEDURE FOR BORROWING UNDER THE REVOLVING LOAN COMMITMENT. (a)
The Term Loan A and each Advance of the Revolving Loan shall be made upon the
Borrowers' irrevocable written notice delivered to Lender in the form of a
Notice of Borrowing, which notice must be received by Lender prior to 10:30 a.m.
(Chicago time) (i) on the requested Funding Date in the case of each Advance
equal to or less than $1,000,000 and in the case of the Term Loan A and the
Advance to be made on the Closing Date, (ii) on the date which is one (1)
Business Day prior to the requested Funding Date of each Advance in excess of
$1,000,000 but equal to or less than $3,000,000 and (iii) on the day which is
two (2) Business Days prior to the requested Funding Date in the case of each
Advance in excess of $3,000,000; provided, that with respect to Advances
subsequent to the Closing Date, Borrowers may give notice of the requested
Advance to Lender by telephone call, with such notice confirmed not later than
the following Business Day by delivery to Lender of a signed Notice of
Borrowing; and further provided, that Borrowers shall be permitted to notify
Lender of the revocation of such Notice of Borrowing no later than noon (New
York time) on the relevant proposed Funding Date without incurring any cost,
expense or other liability arising from such revocation. Each such Notice of
Borrowing shall specify:
(I) the amount of the Advance (which shall be in an aggregate
minimum principal amount of $500,000 and multiples of $50,000 in excess
thereof);
(II) the requested Funding Date, which shall be a Business
Day;
(III) whether the Advance is to be comprised of LIBOR Rate
Loans or Base Rate Loans; and
(IV) if the Advance is to be LIBOR Rate Loans, the Interest
Period applicable to such Advance.
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provided, however, that with respect to the Advance to be made on the Closing
Date and the Term Loan A, such Advance and the Term Loan A will be a Base Rate
Loan only and shall remain so for not less than three (3) Business Days after
the Closing Date or the Real Estate Funding Date, as applicable.
(b) Unless otherwise required by Lender, the proceeds of each requested
Advance after the Closing Date will be made available to Borrowers by Lender by
wire transfer (or ACH transfer) of such amount to Borrowers pursuant to the wire
transfer instructions specified on the signature page hereto.
2.5 CONVERSION AND CONTINUATION ELECTIONS. (a) Borrowers may upon
irrevocable (subject to subsection 11.2(c) and Section 11.5) written notice to
Lender in accordance with subsection 2.5(b) elect to (i) convert on any Business
Day any Base Rate Loan into a LIBOR Rate Loan or (ii) elect to continue on the
last day of the applicable Interest Period any LIBOR Rate Loan having an
Interest Period maturing on such day or (iii) elect to renew on the last day of
the applicable Interest Period any LIBOR Rate Loan having an Interest Period
maturing on such day, in each instance, in whole or in part in an amount not
less than $500,000, or that is in an integral multiple of $50,000 in excess
thereof.
(b) Borrowers shall deliver a Notice of Conversion/Continuation to be
received by Lender not later than 10:30 a.m. (Chicago time) at least three (3)
Business Days in advance of the requested Conversion Date or continuation date,
specifying:
(i) the proposed Conversion Date or continuation date;
(ii) the aggregate amount of Loans to be converted or renewed;
and
(iii) the duration of the requested Interest Period with
respect to the Loans to be converted or continued as LIBOR Rate Loans.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Rate Loans, Borrowers have failed to select timely a new Interest Period to be
applicable to such LIBOR Rate Loans or if any Incipient Default or Event of
Default shall then exist, Borrowers shall be deemed to have elected to convert
such LIBOR Rate Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
(d) Lender will, with reasonable promptness, notify Borrowers of each
determination of a LIBOR Rate; provided that any failure to do so shall not
relieve Borrowers of any liability hereunder or provide the basis for any claim
against Lender.
(e) Unless Lender shall otherwise agree, during the existence of an
Event of Default, Borrowers may not elect to have any Loan converted into or
continued as a LIBOR Rate Loan.
(f) Notwithstanding any other provision contained in this Agreement,
after giving effect to any Advance, or to any continuation or conversion of any
Loans, there shall not be more than five (5) different Interest Periods in
effect at any time.
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2.6 SCHEDULED PRINCIPAL REPAYMENTS.
2.6.1 TERM LOAN A. The Principal Balance of the Term Loan A
shall be paid in twenty (20) consecutive quarterly installments on the
first Business Day of each quarter, commencing with the first Business
Day of October, 1999. Such installments shall be in the following
amounts: the first nineteen (19) installments shall be in an amount
equal to $77,562.50, and the last such installment shall be in an
amount equal to the then Principal Balance of the Term Loan A.
2.6.2 REVOLVING LOAN. The Principal Balance of the Revolving
Loan as of the Term Conversion Date shall convert into the senior
amortizing term loan (the "Term Loan B Portion" of the Revolving Loan).
Such Term Loan B Portion shall be paid in installments on the dates and
in the respective amounts shown below:
Amount of Payment (expressed as a
percentage of the Principal Balance
of the Revolving Loan on the
Date of Payment Term Conversion Date)
--------------- ---------------------
October 1, 2001 5.00%
January 1, 2002 5.00%
April 1, 2002 5.00%
July 1, 2002 5.00%
October 1, 2002 5.00%
January 1, 2003 5.00%
April 1, 2003 5.00%
July 1, 2003 5.00%
October 1, 2003 5.00%
January 1, 2004 5.00%
April 1, 2004 5.00%
June 30, 2004 45.00%
The Principal Balance of each Advance of the Revolving Loan
made on or after the Term Conversion Date shall be payable in
consecutive quarterly installments on the first Business Day of each
quarter, commencing with the first Business Day of the first quarter
immediately succeeding the quarter in which the Funding Date of such
Advance occurs. Subject to subsection 2.6.3, each such installment
shall be equal to five percent (5.00%) of the initial Principal Balance
of such Advance.
2.6.3 FINAL PAYMENT. The then remaining Principal Balance of
the Term Loan A and the Revolving Loan (including, without limitation,
the Term Loan B Portion thereof), and any other sums which then are due
and payable pursuant to the terms of the Loan Documents, shall be due
and payable on June 30, 2004.
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2.7 LATE CHARGES. If a payment of principal, interest or any fee to be
made pursuant to this Loan Agreement becomes past due for a period in excess of
five (5) days, Borrowers shall pay to Lender on demand a late charge of five
percent (5.0%) of the amount of such overdue payment.
2.8 OPTIONAL/VOLUNTARY AND MANDATORY PREPAYMENTS; PREPAYMENT PREMIUM;
AND FEE ACCELERATION.
2.8.1 VOLUNTARY PREPAYMENTS. Borrowers may at any time and
from time to time voluntarily prepay all or any portion of the
Principal Balance, subject to the following terms and conditions:
(a) NOTICE OF PREPAYMENT; NUMBER AND AMOUNT OF
PREPAYMENTS. Not less than ten (10) days prior to the date
upon which Borrowers desire to make any such voluntary
prepayment, Borrowers shall deliver to Lender notice of their
intention to prepay, which notice shall state the prepayment
date and the amount of the Principal Balance to be prepaid. No
partial prepayment of the Principal Balance shall be in an
amount less than $100,000 or integral multiples of $100,000 in
excess thereof. A voluntary prepayment of the Principal
Balance shall not be made more frequently than once each
month. If Borrowers deliver to Lender a notice of prepayment
and fail to make such prepayment, Borrowers shall reimburse
Lender on demand for any actual out-of-pocket loss, cost
and/or expense incurred by Lender as a result of Lender's
reliance on such notice.
(b) ADDITIONAL PAYMENTS. Concurrently with any
prepayment pursuant to this subsection 2.8.1, Borrowers shall
pay to Lender (i) accrued and unpaid interest on the Principal
Balance which is being prepaid to the date on which Lender is
in receipt of Good Funds, (ii) any amounts required to be paid
in connection therewith pursuant to subsection 2.8.3 and
Section 11.4 and (iii) any other sums which are due and
payable pursuant to the terms of any of the Loan Documents.
(c) APPLICATION OF VOLUNTARY PREPAYMENTS. Voluntary
partial prepayments of (i) the Term Loan A prior to the Term
Conversion Date shall be applied against scheduled
installments of the Term Loan A in inverse order of maturity
and (ii) the Loans after the Term Conversion Date shall be
applied in the following order of priority: (i) first, against
scheduled installments of the Term Loan A in inverse order of
maturity; and (ii) lastly, against scheduled installments of
the Term Loan B Portion and any other Advances of the
Revolving Loan in inverse order of maturity and, to the extent
the principal installments of the Term Loan B Portion or two
or more Advances shall have the same date of maturity, such
prepayment shall be applied to the Principal Balance thereof
on a pro rata basis. Unless a notice of prepayment indicates
otherwise, amounts voluntarily prepaid shall be applied first
to any Base Rate Loans then outstanding and then to
outstanding LIBOR Rate Loans with the shortest Interest
Periods remaining.
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(d) VOLUNTARY COMMITMENT REDUCTIONS. (a) In the event
of a prepayment in full of the Principal Balance prior to
August 11, 2002, Borrowers shall have the right to permanently
terminate the Revolving Loan Commitment upon at least thirty
(30) days' prior written notice to Lender and (b) prior to
August 11, 2002, Borrowers shall have the right from time to
time upon at least thirty (30) days' prior written notice to
Lender to permanently reduce the Revolving Loan Commitment in
minimum increments of $5,000,000 provided that after giving
effect to any such reduction, the then reduced Revolving Loan
Commitment shall exceed the Principal Balance of the Revolving
Loan by not less than $1,000,000.
2.8.2 MANDATORY PREPAYMENTS.
(a) EXCESS CASH FLOW PAYMENTS. Until Borrowers'
Obligations are paid and performed in full, for each Fiscal
Year of Borrowers commencing with the Fiscal Year of Borrowers
ending December 31, 2001, Borrowers shall pay to Lender an
amount equal to fifty percent (50%) of the Excess Cash Flow
for such Fiscal Year. Each such payment shall be made within
thirty (30) days after the date that Borrowers are required to
deliver to Lender the audited financial statements for such
Fiscal Year pursuant to subsection 6.3.3.
(b) DISPOSITIONS. If any Borrower or any Subsidiary
of any Borrower at any time or from time to time shall make or
agree to make a Disposition and the aggregate amount of the
Net Proceeds received by such Person in connection with such
Disposition and all other Dispositions occurring during the
then current Fiscal Year of Borrowers exceeds $1,000,000, then
Borrowers shall promptly notify Lender of such proposed
Disposition (including the amount of the estimated Net
Proceeds to be received by Borrowers in respect thereof). In
the event that Borrowers reasonably expect the Net Proceeds of
such Disposition, or a portion thereof, to be reinvested in
productive assets of a kind then used or useable in the
business of Borrowers and their Subsidiaries within ninety
(90) days, then Borrowers may use the Net Proceeds (or such
portion thereof) for such purpose. In the event either
Borrowers do not reasonably expect the Net Proceeds of such
Disposition, or any portion thereof, to be so used or
Borrowers do not reinvest such Net Proceeds within ninety (90)
days, Borrowers shall deliver 100% of such Net Proceeds to
Lender as a prepayment of the Loans.
(c) EQUITY ISSUANCES. If any Borrower or any
Subsidiary of any Borrower shall issue equity securities
(other than issuances by any Subsidiary of any Borrower to
such Borrower or a wholly-owned Subsidiary of such Borrower),
Borrowers shall promptly notify Lender of the estimated Net
Issuance Proceeds of such issuance to be received by such
Borrower or such Subsidiary in respect thereof and, if any
Event of Default shall exist on the date of either such
issuance or such Borrower's receipt of such Net Issuance
Proceeds, or if any Event of Default shall result from the
consummation of such issuance, promptly upon receipt by
Borrowers of the Net Issuance Proceeds of such issuance,
Borrowers
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shall deliver to Lender 100% of such Net Issuance Proceeds as
a prepayment of the Principal Balance. Net Issuance Proceeds
shall not include net proceeds from sale or issuance of equity
securities of InfoCure Corporation used to pay for, or in
connection with, Acquisitions permitted hereunder.
(d) PREPAYMENTS IN RESPECT OF EXERCISE OF REMEDIES.
Concurrently with any payment of the Principal Balance
received by Lender resulting from the exercise by Lender of
any remedy available to Lender subsequent to the occurrence of
an Event of Default and the acceleration of Borrowers'
Obligations, Borrowers shall pay to Lender a prepayment
premium and such other amounts, as applicable, based on the
Principal Balance in accordance with subsection 2.8.3 and
Section 11.4.
(e) APPLICATION OF MANDATORY PREPAYMENTS. Prepayments
received by Lender pursuant to this subsection 2.8.2 shall be
applied in the following order of priority to the payment of:
(i) any and all sums which are due and payable pursuant to the
terms of the Loan Documents, except the Principal Balance and
accrued and unpaid interest thereon but specifically including
fees payable in accordance with Section 11.4 and subsection
2.8.3; (ii) accrued and unpaid interest on the portion of the
Principal Balance being prepaid; (iii) any other accrued and
unpaid interest which is unpaid; (iv) from and after the Term
Conversion Date, the installments of the Principal Balance of
the Term Loan B Portion and any other Advances of the
Revolving Loan then outstanding in inverse order of maturity
on a pro rata basis between or among any installments thereof
due on the same date, if any; (v) the installments of the
Principal Balance of the Term Loan A in inverse order
maturity; and (vi) prior to the Term Conversion Date, the
Revolving Loan. To the extent permitted by the foregoing
sentence, amounts prepaid shall be applied first to any Base
Rate Loans then outstanding and then to outstanding LIBOR Rate
Loan with the shortest Interest Periods remaining. Together
with each prepayment under this subsection 2.8.2, Borrowers
shall pay any amounts required pursuant to subsection 2.8.3
and Section 11.4.
(f) MANDATORY PREPAYMENT OF THE TERM LOAN A.
Notwithstanding anything contained in this Loan Agreement to
the contrary, Borrowers shall make a mandatory prepayment in
full of the Term Loan A concurrently with any prepayment in
full of the Revolving Loan and the Commitments automatically
shall terminate concurrently therewith.
2.8.3 PREPAYMENT PREMIUM AND ACCELERATION OF FEES.
(a) Any prepayment of the Principal Balance (other
than a prepayment made pursuant to subsection 2.8.2(a) and any
partial repayment of the Revolving Loan prior to the Term
Conversion Date, but specifically including any repayment or
prepayment of the Revolving Loan in full) shall be accompanied
by a payment (a "Prepayment Premium") of (i) three percent
(3%) of the amount so prepaid if
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such prepayment occurs during the first Loan Year (provided,
that, with respect to any repayment or prepayment of the
Revolving Loan in full during such period, the Prepayment
Premium in respect thereof shall equal three percent (3%) of
the highest Principal Balance of the Revolving Loan that was
outstanding (i.e., the peak utilization of the Revolving Loan
Commitment) during the period from and including the Closing
Date and ending on the date such prepayment shall be made);
(ii) two percent (2%) of the amount so prepaid if such
prepayment occurs during the second Loan Year (provided, that,
with respect to any repayment or prepayment of the Revolving
Loan in full during such period, the Prepayment Premium in
respect thereof shall equal two percent (2%) of the highest
Principal Balance of the Revolving Loan that was outstanding
(i.e., the peak utilization of the Revolving Loan Commitment)
during the period from and including the Closing Date and
ending on the date such prepayment shall be made); and (iii)
one percent (1%) of the amount so prepaid if such prepayment
occurs during the third Loan Year.
(b) In addition to the premiums calculated pursuant
to (a) above or otherwise, any prepayment of the Principal
Balance in whole shall be accompanied by (i) a payment equal
to the product obtained by multiplying six (6), multiplied by
the amount of the Unused Commitment Fee charged pursuant to
Section 2.10 most recent to the date of such prepayment and
(ii) a payment equal to the product obtained by multiplying
the original amount of the Revolving Loan Commitment
multiplied by one-quarter of one percent (0.25%).
2.9 COMMITMENT FEE. Borrowers shall pay to Lender on the Closing Date
a commitment fee equal to $500,000 (the "Commitment Fee"), which fee shall be
deemed fully earned on the Closing Date.
2.10 UNUSED COMMITMENT FEE. From and after the Closing Date through
August 10, 2002, Borrowers shall pay to Lender a fee (the "Unused Commitment
Fee") on the first Business Day of each quarter, commencing with the month of
October, 1999, in an amount equal to the product of (i) the amount by which (a)
the Revolving Loan Commitment exceeds (b) the average daily outstanding
Principal Balance of the Revolving Loan during the immediately preceding
quarter, multiplied by (ii) one-quarter of one percent (0.25%) per annum.
2.11 ANNUAL FEE. Borrowers shall pay to Lender on first anniversary of
the Closing Date an annual maintenance and administration fee equal to the
product obtained by multiplying the amount of the Revolving Loan Commitment in
effect on such date multiplied by one-quarter of one percent (0.25%) (the
"Annual Fee"), which Annual Fee shall be deemed fully earned and due and payable
on each such anniversary.
2.12 SUCCESS FEE. On December 15, 1999, Borrowers shall pay to Lender
a success fee of $540,000 (the "Success Fee"), which fee shall be deemed fully
earned as of the Closing Date.
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2.13 PAYMENTS AFTER EVENT OF DEFAULT. All payments received by Lender
during the existence of an Event of Default shall be applied in accordance with
Section 8.4.
2.14 METHOD OF PAYMENT; GOOD FUNDS. All payments to be made pursuant
to the Loan Documents by Borrowers shall be made by wire transfer of Good Funds
to the account of Lender at Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
XXX 000000000, Credit: FINOVA Capital Corporation, Credit Account No. 00000000,
Reference: InfoCure Loan, Attn: Xxxx Xxx Xxxx, or to such other account as
Lender shall notify Borrowers. All payments (including prepayments) to be made
by Borrowers on account of principal, interest, fees and other amounts required
hereunder shall be made without off-set, recoupment or counterclaim. Borrowers
hereby authorize Lender to make an Advance (which shall be a Base Rate Loan) for
payments of interest, principal, fees (including, without limitation, the
Success Fee, the Unused Commitment Fee, the Annual Fee and any Acquisition
Funding Fee), costs and expenses payable by Borrowers or any of their respective
Subsidiaries to Lender hereunder or under any of the other Loan Documents.
2.15 SYNDICATION. Borrowers agree and acknowledge that (i) Lender
shall have the right at any time to sell, assign and transfer any portion of its
loan position to one or more lenders or otherwise syndicate the transaction
contemplated by this Loan Agreement, (ii) in connection with any such sale,
assignment, transfer or syndication, Lender shall have the right to disclose to
such prospective lender(s) any and all information regarding or relating to
Borrowers, the transactions contemplated by this Loan Agreement and the other
Loan Documents which have or hereafter may be provided to or obtained by Lender,
(iii) until successful completion of the initial syndication of the Loans and
the Commitments, in the event such initial syndication of the Loans and
Commitments by Lender shall prove to be impracticable, Borrowers agree to
restructure the credit facilities evidenced by this Loan Agreement and the other
Loan Documents and, in furtherance thereof, Lender may change pricing or make
structural changes to the Loans and this Loan Agreement if Lender determines
that such changes are reasonably required in order to ensure successful
syndication of the Loans and Commitments on terms which are acceptable to
Lender. In connection with any such sale, assignment, transfer or syndication
contemplated by this Section 2.15, Borrowers agree and acknowledge that (i)
Lender and Borrowers will be required to re-document the transactions
contemplated by this Loan Agreement and the other Loan Documents, which
re-documentation shall contain such terms, agreements, provisions, covenants,
representations and warranties customarily contained in Lender's syndicated
transactions, and (ii) the costs, fees, disbursements and expenses (including
attorneys' fees and expenses) for any such re-documentation shall be borne
solely by Borrowers.
ARTICLE III
SECURITY
Borrowers' Obligations shall be secured by a Lien upon all of the
Collateral, which at all times shall be superior and prior to all other Liens
(except Permitted Prior Liens), and unconditionally guaranteed by each
Subsidiary of each Borrower (other than the Restricted Foreign Subsidiaries,
unless required by Section 6.17).
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ARTICLE IV
CONDITIONS OF CLOSING AND ADVANCES; ACQUISITIONS
4.1 CLOSING; CONDITIONS OF INITIAL LOANS. This Loan Agreement
shall not be deemed to be effective, and Lender shall not be obligated to
disburse any proceeds of the Loans or make the initial Advances of the Revolving
Loan or, if applicable, the initial advance of Term Loan A, until all of the
following conditions precedent shall have been satisfied in a manner, form and
substance satisfactory to Lender:
4.1.1 REPRESENTATIONS AND WARRANTIES. On the Closing Date
the representations and warranties of each Borrower and each of their
respective Subsidiaries set forth in the Loan Documents and the Related
Transaction Documents to which such Person is a party shall be true and
correct.
4.1.2 RELATED TRANSACTIONS. The Related Transactions shall
have closed in the manner contemplated by the Related Transaction
Documents and shall otherwise be in form and substance satisfactory to
Lender.
4.1.3 DELIVERY OF DOCUMENTS. The following shall have been
delivered to Lender, each duly authorized and executed, where
applicable:
(a) this Loan Agreement, the Notes, an
Environmental Certificate and a Contribution Agreement;
(b) good standing certificates for each Borrower
and each Subsidiary of each Borrower from each of the states
in which such Person is organized, maintains facilities or
business locations or otherwise conducts material business,
each dated a recent date prior to the Closing Date;
(c) copies of (i) the articles of incorporation
of each Borrower and each Subsidiary of each Borrower,
together with all current and proposed amendments thereto,
certified by the Secretary of State of the state in which each
such Person is organized as of a recent date prior to the
Closing Date; (ii) the by-laws of each Borrower and each
Subsidiary of each Borrower, together with all current and
proposed amendments thereto, certified by the corporate
secretary of each such Person, (iii) copies of resolutions
adopted by the board of directors of each Borrower and each
Subsidiary of each Borrower, each authorizing the execution
and delivery by each such Borrower of the Loan Documents and
the Related Transaction Documents to which each such Person is
a party and the consummation of the transactions contemplated
thereby, certified as of the Closing Date by the corporate
secretary of each such Person;
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(d) signature and incumbency certificates of the
officers of each Borrower and each Subsidiary of each
Borrower;
(e) the Collateral Documents, in appropriate
form for recording where necessary, and such Loan Documents
executed by DISC, StrategiCare and Medical Software
Management, or by Borrowers in respect thereof, including,
without limitation, the Subsidiary Guaranty and the Subsidiary
Security Agreement, so that Borrowers shall have complied with
Section 6.15;
(f) certified copies or executed originals of
each of the following:
(1) all Leases;
(2) all Licenses;
(3) all material License Agreements;
(4) all material Operating Agreements;
and
(5) all instruments and documents
evidencing Permitted Senior
Indebtedness existing as of the
Closing Date;
(g) subordination agreements and/or
reaffirmation of subordination in respect of all Subordinated
Indebtedness outstanding as of the Closing Date;
(h) a Landlord Consent from each Landlord under
each Lease (except to the extent previously delivered to
Lender pursuant to the requirements of previous credit
facilities provided to Borrowers by Lender);
(i) such other agreements, instruments,
documents, certificates, consents, waivers and opinions as
Lender reasonably may request; and
(j) original stock certificates representing the
Subsidiary Equity Interests as of the date hereof and
assignments separate from certificate executed in blank.
4.1.4 PERFORMANCE; NO DEFAULT. Each Borrower and each
Subsidiary of each Borrower shall have performed and complied with all
agreements and conditions contained in the Loan Documents and the
Related Transaction Documents to be performed by or complied with by
such Person prior to or at the Closing, and no Event of Default or
Incipient Default shall then exist or result from the making of the
Term Loan or any Advance on the Closing Date.
4.1.5 OPINIONS OF COUNSEL. Lender shall have received an
opinion dated the Closing Date from Xxxxxx, Xxxxxxx & Xxxxxx, counsel
to Borrowers and their Subsidiaries, and such other opinions as Lender
may request.
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4.1.6 APPROVAL OF LOAN DOCUMENTS AND SECURITY INTERESTS.
Lender shall have received evidence that the approval or consent shall
have been obtained from all Governmental Bodies and all other Persons
whose approval or consent is required to enable Borrowers and their
Subsidiaries to (a) enter into and perform their respective obligations
under the Loan Documents and the Related Transaction Documents to which
each such Person is a party and (b) grant the Security Interests to
Lender.
4.1.7 SECURITY INTERESTS. All filings of Uniform
Commercial Code financing statements, all recordings of Mortgages and
all other filings and actions necessary to perfect and maintain the
Security Interests as first, valid and perfected Liens in the Property
covered thereby, subject only to Permitted Prior Liens, shall have been
filed or taken and Lender shall have received such UCC, state and
federal tax Lien, pending suit, judgment and other Lien searches as it
deems necessary to confirm the foregoing.
4.1.8 LICENSES. Lender shall have received evidence that
(a) each Borrower and each Subsidiary of each Borrower is the licensee
of all Licenses necessary for the operation of its business and (b)
such Licenses are in full force and effect as of the Closing Date and
no event has occurred which could result in the termination, revocation
or non-renewal of any such License.
4.1.10 FINANCIAL STATEMENTS, REPORTS AND PROJECTIONS;
INSPECTION. Lender shall have received the financial statements
described in EXHIBIT 5.7.1 and the projections described in EXHIBIT
5.7.2. Each Borrower shall have arranged for representatives of Lender
to visit and inspect its offices and properties.
4.1.11 MATERIAL ADVERSE EFFECT. No event shall have
occurred since March 31, 1999 which has had or could have a Material
Adverse Effect. No litigation or governmental proceedings or
investigation shall be pending, which in the opinion of Lender could,
if adversely determined, have a Material Adverse Affect.
4.1.12 USE OF ASSETS. Lender shall be satisfied that each
Borrower at all times shall be entitled to the use and quiet enjoyment
of all Property necessary for the continued ownership and operation of
the business conducted by such Borrower, including, without limitation,
the use of equipment, fixtures, Licenses, offices and means of ingress
and egress thereto, necessary for the operation of such business.
4.1.13 BROKER FEES. If the services of a broker or other
agent have been used in connection with the Loans, all fees owed to
such broker or agent shall have been paid by Borrowers and Lender shall
have received evidence of such payment.
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4.1.14 INSURANCE; SURVEY.
(a) BUSINESS AND FLOOD INSURANCE. At least three
(3) Business Days prior to the Closing Date Borrowers shall
have delivered to Lender evidence satisfactory to Lender (i)
of flood insurance with respect to each parcel of Real Estate
other than a parcel as to which Borrowers have supplied Lender
evidence that the improvements located on such parcel are not
in a flood hazard area and (ii) that all insurance coverage
required pursuant to Section 6.6 is in full force and effect
and all premiums then due thereon have been paid in full.
(b) REAL ESTATE; LEASEHOLD PROPERTY. Lender
shall have received an ALTA mortgagee's policy of title
insurance (ALTA Revised 1987 Form) in favor of Lender with
respect to each parcel of Real Estate, issued by a title
company and in an amount showing that the applicable Borrower
or Subsidiary of a Borrower has good and marketable title to
each such parcel of Real Estate and insuring that the Mortgage
covering such parcel constitutes a valid Lien on such
Borrower's or Subsidiary's interest in such parcel, subject
only to Permitted Prior Liens. Each policy shall insure over
all survey and other general exceptions contained therein and
shall include such affirmative endorsements as may be required
by Lender, including, without limitation, comprehensive
endorsement no. 1, contiguity (if applicable), usury, doing
business, variable rate, tie-in, restrictions (where
applicable), encroachment (where applicable), 3.1 zoning
(including parking), last dollar, tax parcel, survey,
location, access and future advances. Lender shall have
received copies of and found satisfactory the provisions of
each document referred to in each such policy.
(c) PREMIUMS. Lender shall have received
evidence that all premiums with respect to such title
insurance have been paid by Borrowers.
(d) SURVEY. Lender shall have received an
"as-built" survey of each parcel of Real Estate dated not
earlier than 45 days prior to the Closing Date, certified to
Lender and the title company as being drawn in compliance with
the American Land Title Association and American Congress on
Surveying and Mapping Standards (as adopted in 1997),
containing a flood plain certification and showing no matters
or exceptions which are not Permitted Liens and otherwise in
sufficient detail as to permit the elimination of any survey
exceptions to the title policies described above.
4.1.15 INTENTIONALLY OMITTED.
4.1.16 PAYMENT OF FEES, EXPENSES AND LOANS. Borrowers shall
have paid (a) the Commitment Fee, (b) all fees and expenses described
in subsection 10.1.1 incurred in connection with the Loans (including
attorneys' fees and expenses), (c) all outstanding premiums, fees and
expenses incurred by Lender pursuant to previous credit facilities
provided by Lender to Borrowers, the amount of which equals $58,529.53,
and (d) all loans, interest, fees and other amounts outstanding under
all then existing credit facilities
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provided to Borrowers by Lender, including, without limitation, the
Existing FINOVA Indebtedness in the aggregate amount of $12,149,250.00.
4.2 CONDITIONS TO THE DISBURSEMENT OF THE TERM LOAN A AND ALL
ADVANCES. The obligation of Lender to disburse the proceeds of the Term Loan A
or make any Advance after the Closing Date, or to continue or convert any Loan
hereunder, is subject to the satisfaction of the following conditions precedent
on the relevant Funding Date, Conversion Date or continuation date, each in a
manner, form and substance satisfactory to Lender:
4.2.1 NOTICE OF BORROWING or Notice of
Continuation/Conversion. Lender shall have received a Notice of
Borrowing or a Notice of Continuation/Conversion, as applicable, in
accordance with Section 2.4 or Section 2.5;
4.2.2 CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by each Borrower contained in
Article 5 shall be true and correct in all material respects on and as
of the applicable Funding Date, or continuation date or Conversion Date
with the same effect as if made on and as of such Funding Date or
continuation date or Conversion Date (except to the extent such
representations and warranties (i) expressly refer to an earlier date,
in which case they shall be true and correct in all material respects
as of such earlier date, or (ii) are not true and correct due to events
or conditions, the occurrence or existence of which are not prohibited
by this Loan Agreement or the other Loan Documents and which do not, in
and of themselves, constitute an Incipient Default or an Event of
Default);
4.2.3 NO EXISTING DEFAULT. No Incipient Default or Event
of Default shall exist or shall result from such Advance or
continuation or conversion; and
4.2.4 SUBSIDIARY. Each Borrower shall have pledged the
stock or other equity interest of each of its Subsidiaries (or the
subject Target in the case of an Acquisition), except, unless otherwise
required by Section 6.17, the Restricted Subsidiaries, to Lender and
shall have delivered, or caused to be delivered, to Lender, to the
extent not previously delivered, the items described in subsections
4.1.3(b) and (c), with respect to each such Subsidiary (or Target, as
applicable). In addition, each such Subsidiary (or the subject Target
in the case of an Acquisition) shall have guaranteed Borrowers'
Obligations and shall have granted to Lender a security interest in all
of such Subsidiary's (or Target's, as applicable) property to secure
such guaranty.
Each Notice of Borrowing and Notice of Continuation/ Conversion submitted by
Borrowers hereunder shall constitute a representation and warranty by Borrowers
hereunder, as of the date of each such notice or application and as of the date
of each Advance or continuation or conversion, as applicable, that the
conditions in Section 4.2 are satisfied.
4.3 CONDITIONS TO CERTAIN LOANS. The right of any Borrower or any
Subsidiary of any Borrower to make an Acquisition, and the obligation of Lender
to make any Advance of the Revolving Loan the proceeds of which are to be used
to finance all or a portion of the purchase
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price of an Acquisition, shall be subject to the satisfaction of all of the
following conditions in a manner, form and substance satisfactory to Lender:
4.3.1 EVIDENCE OF PERFECTED FIRST PRIORITY SECURITY
INTEREST. With respect to the Target acquired or financed with the
proceeds of an Advance, and prior to the funding of such Advance,
Lender shall have been granted a first priority Lien on and security
interest in such Target, and shall have received, without limitation,
the items described in subsection 4.1.3(b), (c) and (d) and Section
6.15, and shall have received evidence of the proper filing in all
required filing offices of duly executed UCC financing statements or
amendments to existing financing statements with respect to such
Target, perfecting the first priority security interest of Lender in
such Property. In the event real property is being acquired in
connection with such Acquisition, Lender shall have received a fully
executed Mortgage, together with an ALTA lender's title insurance
policy issued by a title insurer reasonably satisfactory to Lender in
an amount reasonably satisfactory to Lender insuring that the Mortgage
is a valid and enforceable first priority Lien on the respective
Property, free and clear of all defects, encumbrances and Liens, other
than Permitted Liens. In addition, Lender shall have received then
current surveys, certified to Lender by a licensed surveyor sufficient
to allow the issuer of Lender's title insurance policy to issue such
policy without a survey exception and an environmental site assessment
prepared by a qualified firm reasonably acceptable to Lender.
4.3.2 APPROVAL. Lender shall have approved such
Acquisition in accordance with Section 7.21, if such approval is
necessary.
4.3.3 ADDITIONAL DOCUMENTATION.
(i) Lender shall have received complete
executed or conformed copies of each document,
instrument and agreement executed in connection with
such Acquisition (collectively, the "Acquisition
Documents"), all of which shall be subject to
Lender's review and approval;
(ii) such Acquisition Documents shall be in
full force and effect and no material term or
condition thereof shall have been amended, modified
or waived after the execution thereof (other than
solely to extend the date by which the Acquisition is
required to occur) except with the prior written
consent of Lender;
(iii) none of the parties to any of such
Acquisition Documents shall have failed to perform
any material obligation or covenant required to be
performed or complied with on or before the
applicable Funding Date;
(iv) Lender shall have received a collateral
assignment of the seller's representations,
warranties and indemnities to Borrowers or their
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Subsidiaries under the Acquisition Documents and the
applicable seller parties shall have consented
thereto in writing; and
(v) such other agreements, instruments,
documents, certificates, consents, waivers and
opinions as Lender reasonably may request (including
without limitation, opinions from the sellers'
counsel).
4.3.4 ACQUISITION FUNDING FEE. Borrowers shall have paid
to Lender, on the applicable Funding Date, an acquisition funding fee
(each, an "Acquisition Funding Fee") equal to three percent (3.0%) of
the amount of the Advance requested by Borrowers to consummate such
Acquisition, provided, that, prior to December 15, 1999 Borrowers shall
be required to pay to Lender an Acquisition Funding Fee (or any portion
thereof) only to the extent the aggregate amount of all Acquisition
Funding Fees received by Lender in respect of Acquisitions which shall
have occurred during the period commencing on the Closing Date and
ending on December 15, 1999, which shall have been payable but for the
operation of this proviso, exceeds $540,000.
4.4 ADDITIONAL CONDITIONS TO THE DISBURSEMENT OF THE PROCEEDS OF
THE TERM LOAN A. The obligation of Lender to disburse any proceeds or advances
of the Term Loan A is subject to the satisfaction of the following additional
conditions precedent on the applicable Real Estate Funding Date, each in a
manner, form and substance satisfactory to Lender:
4.4.1 REAL ESTATE ACQUISITION. The Real Estate Acquisition
shall have closed in the manner contemplated by the Real Estate
Acquisition Documents and shall otherwise be in form and substance
satisfactory to Lender, and none of the parties to any of such
Acquisition Documents shall have failed to perform any material
obligation or covenant required to be performed or complied with by
such Person.
4.4.2 DELIVERY OF DOCUMENTS. The following shall have been
delivered to Lender, each duly authorized and executed, where
applicable:
(a) a Mortgage covering the Real Estate that is
the subject of the Real Estate Acquisition;
(b) copies of the resolutions adopted by the
board of directors of each Borrower authorizing the execution
and delivery by such Borrower of the Real Estate Acquisition
Documents and the Loan Documents executed and delivered in
connection therewith to which such Person is a party and the
consummation of the transactions contemplated thereby,
certified as of the Real Estate Closing Date by the corporate
secretary of each such Person;
(c) signature and incumbency certificates of the
officers of each Borrower and each Subsidiary of each
Borrower;
(d) certified copies or executed originals of
the Real Estate Acquisition Documents;
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(e) a collateral assignment of the seller's
representations, warranties and indemnities to Borrowers under
the Real Estate Acquisition Documents and the applicable
seller parties shall have consented thereto in writing; and
(f) such other agreements, instruments,
documents, certificates, consents, waivers and opinions as
Lender reasonably may request (including without limitation,
opinions from the sellers' counsel).
4.4.3 COMPLIANCE WITH CERTAIN PROVISIONS OF THIS LOAN
AGREEMENT. Borrowers shall have complied with subsections 2.1.1,
4.1.11 and 4.1.14 and Sections 6.8 and 6.9 and, if necessary, Section
6.15.
4.4.4 OPINIONS OF COUNSEL. Lender shall have received an
opinion dated the Real Estate Funding Date from Xxxxxx, Xxxxxxx &
Xxxxxx, counsel to Borrowers and their Subsidiaries, and such other
opinions as Lender may request.
4.4.5 APPRAISALS AND PERCENTAGE OF ACQUISITION PRICE.
Lender shall have received an appraisal of the Real Estate that is the
subject of the Real Estate Acquisition conducted by a firm acceptable
to Lender, and the Term Loan A shall be in an aggregate amount
$8,705,000.
4.4.6 MISCELLANEOUS. Lender shall have received and
approved (i) a property condition assessment on such Real Estate
performed by Lender, (ii) copies of all existing leases and assignments
thereof, (iii) evidence of Borrowers' compliance with all applicable
zoning laws in respect of such Real Estate and (iv) prior to any
disbursement of any advance the proceeds of which are to be used by
Borrowers for improvements or build-outs of the applicable Real Estate,
all build-out and improvement plans for such Real Estate.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to Lender as follows (after giving
effect to the Related Transactions):
5.1 EXISTENCE AND POWER. Each Borrower and each Subsidiary of
each Borrower is a corporation duly formed, validly existing and in good
standing under the laws of the state (or country) of its incorporation, and each
Borrower and each Subsidiary of each Borrower has all requisite power and
authority to own its Property and to carry on its business as now conducted and
as proposed to be conducted following the Closing Date, and is in good standing
and authorized to do business in each jurisdiction in which the failure so to
qualify would be a Material Adverse Effect.
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5.2 AUTHORITY. Each Borrower and each Subsidiary of each Borrower
has full power and authority to enter into, execute, deliver and carry out the
terms of the Loan Documents and the Related Transaction Documents to which it is
a party and to incur the obligations provided for therein, all of which have
been duly authorized by all proper and necessary action and are not prohibited
by the organizational instruments of such Person.
5.3 CAPITAL STOCK AND RELATED MATTERS.
5.3.1 CAPITAL STOCK. There is set forth in EXHIBIT 5.3.1 a
complete description of the Subsidiary Equity Interests, all of which
are validly issued, fully paid and non-assessable, and have been issued
and sold in compliance with all applicable federal and state laws,
rules and regulations, including, without limitation, all so-called
"Blue-Sky" laws. The Subsidiary Equity Interests is owned beneficially
and of record by the Persons set forth on EXHIBIT 5.3.1 and in the
amounts therein described, free and clear of all Liens except the
Security Interests. Borrowers represent and warrant to Lender that no
shares of preferred stock of any class of InfoCure Corporation is
issued and outstanding on the date hereof.
5.3.2 RESTRICTIONS. Neither any Borrower nor any
Subsidiary of any Borrower (i) is a party to or has knowledge of any
agreements restricting the transfer of Subsidiary Equity Interests,
except the Loan Documents, (ii) has issued any rights which can be
convertible into or exchangeable or exercisable for any of Subsidiary
Equity Interests, or any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, any of Subsidiary Equity Interests
or any securities convertible into or exchangeable or exercisable for
any of Subsidiary Equity Interests and (iii) is subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire
or retire any of Subsidiary Equity Interests or any convertible rights
or options with respect thereto.
5.4 BINDING AGREEMENTS. This Loan Agreement, the other Loan
Documents and the Related Transaction Documents, when executed and delivered,
will constitute the valid and legally binding obligations of each Borrower and
each Subsidiary of each Borrower to the extent such Person is a party thereto,
enforceable against such Person in accordance with their respective terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and (ii)
equitable principles (whether or not any action to enforce such document is
brought at law or in equity).
5.5 BUSINESS AND PROPERTY OF BORROWER.
5.5.1 BUSINESS AND PROPERTY. Each Borrower and each
Subsidiary of each Borrower is the owner of all Property and the holder
of all Leases, Licenses and Operating Agreements necessary to conduct
its business as now conducted. Neither any Borrower nor any Subsidiary
of any Borrower engages or proposes to engage in any business or
activity other than as set forth in EXHIBIT 5.5.1.
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5.5.2 LICENSES. There is set forth in EXHIBIT 5.5.2 a
description of all Licenses which have been issued or assigned to
Borrowers and their respective Subsidiaries. All of such Licenses are
in full force and effect and have been duly issued in the name of, or
validly assigned to, the applicable Borrower or Subsidiary of a
Borrower, no default or breach exists thereunder and each Borrower and
each Subsidiary of each Borrower has full power and authority
thereunder to conduct its business.
5.5.3 OPERATING AGREEMENTS. There is set forth in EXHIBIT
5.5.3 a description of all material Operating Agreements with respect
to the businesses of Borrowers and their Subsidiaries. All of Operating
Agreements are in full force and effect and no event has occurred which
could result in the cancellation or termination of any such Operating
Agreement or the imposition thereunder of any liability upon any
Borrower or any Subsidiary of any Borrower which could have a Material
Adverse Effect.
5.5.4 FACILITY SITES. There is set forth in EXHIBIT 5.5.4
the location of the chief executive office of each Borrower and each
Subsidiary of each Borrower and all other locations of such Persons'
Property.
5.5.5 LEASES. There is set forth in EXHIBIT 5.5.5 a list
of all Leases, together with a complete and accurate address of each
parcel of Leasehold Property. Each Lease is in full force and effect,
there has been no material default in the performance of any of its
terms or conditions by any party thereto, and no claims of default have
been asserted with respect thereto.
5.5.6 REAL ESTATE. There is set forth in EXHIBIT 5.5.6 a
complete and accurate address and legal description of each parcel of
Real Estate. The present and contemplated use of the Leasehold Property
and the Real Estate is in compliance with all applicable zoning
ordinances and regulations and other laws and regulations, the
violation of which could have a Material Adverse Effect.
5.5.7 OPERATION AND MAINTENANCE OF EQUIPMENT. Neither any
Borrower nor any Subsidiary of any Borrower owning or operating any
equipment necessary for the operation of its business has used,
operated or maintained the same in a manner which now or hereafter
could result in the cancellation or termination of the right of such
Person to use or make use of the same or which could result in any
material liability of such Person for damages in connection therewith.
All of the equipment and other tangible personal property owned by each
Borrower and each Subsidiary of each Borrower is, in all material
respects, in good operating condition and repair and has been used,
operated and maintained in substantial compliance with all applicable
laws, rules and regulations.
5.5.8 LICENSE AGREEMENTS. There is set forth in EXHIBIT
5.5.8 a description of all material License Agreements with respect to
the businesses of Borrowers and their respective Subsidiaries. All such
License Agreements are in full force and effect and no event has
occurred which could result in the cancellation or termination of any
such License Agreement or the imposition thereunder of any liability
upon any Borrower or any Subsidiary of any Borrower which could have a
Material Adverse Effect.
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5.6 TITLE TO PROPERTY; LIENS. Each Borrower and each Subsidiary
of each Borrower has (i) good and marketable title to all of its Property,
except (A) any License which cannot be transferred without the consent of a
Governmental Body and (B) the portion thereof consisting of a leasehold estate
and (ii) a valid leasehold estate in each portion of its Property which consists
of a leasehold estate. All of such Property is free and clear of all Liens,
except Permitted Liens. Upon the proper filing with the appropriate Governmental
Bodies of the Mortgages and appropriate Uniform Commercial Code financing
statements, the applicable Loan Documents will create valid and perfected Liens
in the Property described therein, subject only to Permitted Prior Liens.
5.7 PROJECTIONS AND FINANCIAL STATEMENTS.
5.7.1 FINANCIAL STATEMENTS. Borrowers have delivered to
Lender the financial statements described in EXHIBIT 5.7.1 pertaining
to the operations of Borrowers and their respective Subsidiaries. Such
financial statements present fairly in all material respects the
results of operations of the business of each Borrower and its
Subsidiaries for the periods covered thereby and the financial
condition of such Borrower and its Subsidiaries as of the dates
indicated therein. All of such financial statements have been prepared
in conformity with GAAP, subject to normal year-end adjustments and the
absence of footnotes. Since March 31, 1999, there has been no change
which has had or could have a Material Adverse Effect. Borrowers also
have delivered to Lender a pro-forma balance sheet of each Borrower and
its Subsidiaries as of the Closing Date. Such pro-forma balance sheets,
which assume the consummation of the transactions contemplated by the
Documents, present fairly in all material respects the anticipated
financial condition of each Borrower and its Subsidiaries as of the
Closing Date.
5.7.2 PROJECTIONS. Borrowers have delivered to Lender the
projections described in EXHIBIT 5.7.2 of the future operations of each
Borrower and its Subsidiaries. Such projections represent the best,
good faith estimates of Borrowers as of the Closing Date of the future
financial performance of Borrowers and their Subsidiaries.
5.8 LITIGATION. There is set forth in EXHIBIT 5.8 a description
of all actions and suits, arbitration proceedings and claims pending or, to the
best knowledge of Borrowers, threatened against any Borrower or any Subsidiary
of any Borrower or maintained by any Borrower or any Subsidiary of any Borrower
at law or in equity or before any Governmental Body. None of the matters set
forth in such EXHIBIT 5.8, if adversely determined, could have a Material
Adverse Effect.
5.9 DEFAULTS IN OTHER AGREEMENTS; CONSENTS; CONFLICTING
AGREEMENTS. Except as otherwise disclosed herein, neither any Borrower nor any
Subsidiary of any Borrower is in default under any agreement to which such
Person is a party or by which such Person or any of the Property of such Person
is bound, the effect of which default could have a Material Adverse Effect. No
authorization, consent, approval or other action by, and no notice to or filing
with, any Governmental Body or any other Person which has not already been
obtained, taken or filed, as applicable, is required (i) for the due execution,
delivery or performance by any Borrower or
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any Subsidiary of any Borrower of any of the Loan Documents and the Related
Transaction Documents to which such Person is a party or (ii) as a condition to
the validity or enforceability of any of the Loan Documents or Related
Transaction Documents to which any Borrower or any Subsidiary of any Borrower is
a party or any of the transactions contemplated thereby or the priority of the
Security Interests, except for certain filings to establish and perfect the
Security Interests. No provision of any mortgage, indenture, contract,
agreement, statute, rule, regulation, judgment, decree or order binding on any
Borrower or any Subsidiary of any Borrower or affecting the Property of any
Borrower or any Subsidiary of any Borrower conflicts with, or requires any
consent which has not already been obtained under, or would in any way prevent
the execution, delivery or performance of the terms of any of the Loan Documents
or Related Transaction Documents or affect the validity or priority of the
Security Interests. The execution, delivery or performance of the terms of the
Loan Documents and the Related Transaction Documents will not constitute a
default under, or result in the creation or imposition of, or obligation to
create, any Lien upon the Property of any Borrower or any Subsidiary of any
Borrower pursuant to the terms of any such mortgage, indenture, contract or
agreement, other than the Loan Documents.
5.10 TAXES. Each Borrower and each Subsidiary of each Borrower has
filed all tax returns required to be filed, and has paid, or made adequate
provision for the payment of, all taxes shown to be due and payable on such
returns or in any assessments made against any such Person, and no tax Liens
have been filed and no claims are being asserted in respect of such taxes which
are required by GAAP to be reflected in the financial statements of any Borrower
or any Subsidiary of any Borrower and are not so reflected therein. The charges,
accruals and reserves on the books of each Borrower and each Subsidiary of each
Borrower with respect to all federal, state, local and other taxes are
considered by the management of each such Person to be adequate, and there is no
unpaid assessment which is or might be due and payable by any such Person or
create a Lien against any such Person's Property, except such assessments as are
being contested in good faith and by appropriate proceedings diligently
conducted, and for which adequate reserves have been set aside in accordance
with GAAP. None of the tax returns of any Borrower or any Subsidiary of any
Borrower are under audit.
5.11 COMPLIANCE WITH APPLICABLE LAWS. Neither any Borrower nor any
Subsidiary of any Borrower is in default in respect of any judgment, order,
writ, injunction, decree or decision of any Governmental Body, which default
could have a Material Adverse Effect. Except as otherwise provided herein, each
Borrower and each Subsidiary of each Borrower is in compliance in all material
respects with all applicable laws, statutes and regulations, including, without
limitation, health-care related laws (including anti-fee splitting laws,
corporate practice of medicine laws and fraud and abuse laws), all Environmental
Laws, ERISA, ADA and all laws and regulations relating to unfair labor
practices, equal employment opportunity and employee safety, of all Governmental
Bodies, a violation of which could have a Material Adverse Effect. No
condemnation, eminent domain or expropriation has been commenced or, to the best
knowledge of Borrowers, threatened against the Property of any Borrower or any
Subsidiary of any Borrower.
5.12 PATENTS, TRADEMARKS, FRANCHISES, AGREEMENTS. There is set
forth on EXHIBIT 5.12 a description of all patents, patent applications,
trademarks, trademark applications,
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copyrights and copyright applications owned or used by each Borrower and each
Subsidiary of each Borrower. Each Borrower and each Subsidiary of each Borrower
owns, possesses or has the right to use all patents, trademarks, service marks,
trade names, copyrights, franchises and rights with respect thereto, necessary
for the conduct of its business, without any known conflict with the rights of
others and, in each case, free of any Liens.
5.13 REGULATORY MATTERS. Each Borrower and each Subsidiary of each
Borrower (i) has duly and timely filed all reports, statements of account and
other filings which are required to be filed by such Person under any applicable
law, rule or regulation of any Governmental Body, the non-filing of which could
have a Material Adverse Effect, and (ii) is in compliance with all such laws,
rules and regulations, the noncompliance with which could have a Material
Adverse Effect.
5.14 ENVIRONMENTAL MATTERS. To the best of Borrowers' knowledge,
each Borrower and each Subsidiary of each Borrower is in compliance with all
applicable Environmental Laws and no portion of the Real Estate or Leasehold
Property has been used as a land fill. To the best of Borrowers' knowledge there
currently are not any known Hazardous Materials generated, manufactured,
released, stored, buried or deposited over, beneath, in or on (or used in the
construction and/or renovation of) the Real Estate or Leasehold Property in
violation of applicable Environmental Laws.
5.15 APPLICATION OF CERTAIN LAWS AND REGULATIONS. Neither any
Borrower nor any Affiliate of any Borrower is:
5.15.1 INVESTMENT BORROWER ACT. An "investment company," or
a company "controlled" by an "investment company," within the meaning
of the Investment Company Act of 1940, as amended.
5.15.2 HOLDING BORROWER ACT. A "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company,"
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
5.15.3 FOREIGN OR ENEMY STATUS. (i) An "enemy" or an "ally
of an enemy" within the meaning of Section 2 of the Trading with the
Enemy Act, (ii) a "national" of a foreign country designated in
Executive Order No. 8389, as amended, or of any "designated enemy
country" as defined in Executive Order No. 9095, as amended, of the
President of the United States of America, in each case within the
meaning of such Executive Orders, as amended, or of any regulation
issued thereunder, (iii) a "national of any designated foreign country"
within the meaning of the Foreign Assets Control Regulations or of the
Cuban Assets Control Regulations of the United States of America (Code
of Federal Regulations, Title 31, Chapter V, Part 515, Subpart B, as
amended), or (iv) an alien or a representative of any alien or foreign
government within the meaning of Xxxxxxx 000 xx Xxxxx 00 xx xxx Xxxxxx
Xxxxxx Code.
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5.15.4 REGULATIONS AS TO BORROWING. Subject to any statute or
regulation which regulates the incurrence of any Indebtedness for
Borrowed Money, including, without limitation, statutes or regulations
relative to common or interstate carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public
utility services.
5.16 MARGIN REGULATIONS. None of the transactions contemplated by
this Loan Agreement, any of the other Loan Documents or any of the Related
Transaction Documents, including the use of the proceeds of the Loans, will
violate or result in a violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulations issued pursuant thereto, including, without
limitation, Regulations T, U and X, and neither any Borrower nor any Subsidiary
of any Borrower owns or intend to carry or purchase any "margin security" within
the meaning of such Regulation U.
5.17 OTHER INDEBTEDNESS. After giving effect to the Closing and
the Related Transactions, on the Closing Date neither any Borrower nor any
Subsidiary of any Borrower shall have any Indebtedness for Borrowed Money,
except (i) Borrowers' Obligations, (ii) Permitted Senior Indebtedness and (iii)
Indebtedness for Borrowed Money otherwise permitted under Section 7.1.
5.18 NO MISREPRESENTATION. To the best of Borrowers' knowledge
neither this Loan Agreement nor any other Loan Document, certificate,
information or report furnished or to be furnished by or on behalf of any
Borrower or any Subsidiary of any Borrower to Lender in connection with any of
the transactions contemplated hereby or thereby, contains or will contain a
misstatement of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements contained herein or
therein, taken as a whole, not misleading in the light of the circumstances
under which such statements were made. There is no fact, other than information
known to the public generally, known to or reasonably foreseen by Borrowers
after diligent inquiry, that could have a Material Adverse Effect that has not
expressly been disclosed to Lender in writing.
5.19 EMPLOYEE BENEFIT PLANS.
5.19.1 NO OTHER PLANS. Neither any Borrower nor any ERISA
Affiliate of any Borrower maintains or contributes to, or has any
obligation under, any Employee Benefit Plan other than those identified
on EXHIBIT 5.19.1. Borrowers have provided Lender accurate and complete
copies of all material contracts, agreements and documents described on
EXHIBIT 5.19.1.
5.19.2 ERISA AND CODE COMPLIANCE AND LIABILITY. Each
Borrower and each ERISA Affiliate of each Borrower is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee
Benefit Plans except where failure to comply would not result in a
material liability to any Borrower or such other Person and except for
any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service
to be so
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qualified, and each trust related to such plan has been determined to
be exempt under Section 401(a) of the Code. No material liability has
been incurred by any Borrower or any ERISA Affiliate of any Borrower
which remains unsatisfied for any taxes or penalties with respect to
any Employee Benefit Plan or any Multiemployer Plan.
5.19.3 FUNDING. No Pension Plan has been terminated, nor
has any accumulated funding deficiency (as defined in Section 412 of
the Code) been insured (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested with respect to any Pension
Plan, nor has any Borrower or any ERISA Affiliate of any Borrower
failed to make any contributions or to pay any amounts due and owing as
required by Section 412 of the Code, Section 302 of ERISA or the terms
of any Pension Plan prior to the due dates of such contributions under
Section 412 of the Code or Section 302 of ERISA, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C), 4063(a) or
4068 of ERISA with respect to any Pension Plan.
5.19.4 PROHIBITED TRANSACTIONS AND PAYMENTS. Neither any
Borrower nor any ERISA Affiliate of any Borrower has: (i) engaged in a
nonexempt "prohibited transaction" as such term is defined in Section
406 of ERISA or Section 4975 of the Code; (ii) incurred any liability
to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid;
(iii) failed to make a required contribution or payment to a
Multiemployer Plan; or (iv) failed to make a required installment or
other required payment under Section 412 of the Code.
5.19.5 NO TERMINATION EVENT. No Termination Event has
occurred or is reasonably expected to occur.
5.19.6 ERISA LITIGATION. No material proceeding, claim,
lawsuit and/or investigation is existing or, to the best knowledge of
Borrowers, threatened concerning or involving any (i) employee welfare
benefit plan (as defined in Section 3(1) of ERISA) currently maintained
or contributed to by any Borrower or any of ERISA Affiliate of any
Borrower, (ii) Pension Plan or (iii) Multiemployer Plan.
5.20 EMPLOYEE MATTERS.
5.20.1 COLLECTIVE BARGAINING AGREEMENTS; GRIEVANCES. (i)
None of the employees of any Borrower or any Subsidiary of any Borrower
is subject to any collective bargaining agreement, (ii) except as
described in EXHIBIT 5.20.1, no petition for certification or union
election is pending with respect to the employees of any Borrower or
any Subsidiary of any Borrower and no union or collective bargaining
unit has sought such certification or recognition with respect to the
employees of any Borrower or any Subsidiary of any Borrower and (iii)
there are no strikes, slowdowns, work stoppages, unfair labor practice
complaints, grievances, arbitration proceedings or controversies
pending or, to the best knowledge of Borrowers, threatened against any
Borrower or any Subsidiary of any Borrower by any of such Person's
employees, other than employee
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grievances or controversies arising in the ordinary course of business
that could not in the aggregate have a Material Adverse Effect.
5.20.2 CLAIMS RELATING TO EMPLOYMENT. Neither any Borrower
nor, to Borrowers' best knowledge, any shareholder or employee of any
Borrower, is subject to any employment agreement or non-competition
agreement with any former employer or any other Person which agreement
could have a Material Adverse Effect due to (i) any information which
any Borrower would be prohibited from using under the terms of such
agreement or (ii) any legal considerations relating to unfair
competition, trade secrets or proprietary information.
5.21 BURDENSOME OBLIGATIONS. After giving effect to the
transactions contemplated by the Loan Documents and the Related Transaction
Documents, (i) neither any Borrower nor any Subsidiary of any Borrower (A) will
be a party to or be bound by any franchise, agreement, deed, lease or other
instrument, or be subject to any restriction, which is so unusual or burdensome
so as to cause, in the foreseeable future, a Material Adverse Effect and (B)
intends to incur, or believes that it will incur, debts beyond its ability to
pay such debts as they become due, and (ii) each Borrower and each Subsidiary of
each Borrower (A) owns and will own Property, the fair saleable value of which
is (I) greater than the total amount of its liabilities (including contingent
liabilities) and (II) greater than the amount that will be required to pay the
probable liabilities of its then existing debts as they become absolute and
matured, and (B) has and will have capital that is not unreasonably small in
relation to its business as presently conducted and as proposed to be conducted.
Borrowers do not presently anticipate that future expenditures needed to meet
the provisions of federal or state statutes, orders, rules or regulations will
be so burdensome so as to have a Material Adverse Effect.
5.22 INSURANCE. The Property of each Borrower and each Subsidiary
of each Borrower is insured with financially sound and reputable insurance
companies which are not Affiliates of any Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar Property in locales where such
Borrower or such Subsidiary operates.
5.23 SUBSIDIARIES. As of the Closing Date, (i) InfoCure
Corporation has no Subsidiaries other than InfoCure Systems, Thoroughbred, DISC,
Medical Software Management, StrategiCare and the Restricted Foreign
Subsidiaries and (ii) InfoCure Systems has no Subsidiaries other than DISC,
StrategiCare and Medical Software Management.
5.24 YEAR 2000. Each Borrower and each Subsidiary of each Borrower
has made an assessment of the microchip and computer-based systems and the
software used in its and its Subsidiaries' business and based upon such
assessment believes that it will be "Year 2000 Compliant" by October 1, 1999.
For purposes of this paragraph, "Year 2000 Compliant" means that all software,
embedded microchips and other processing capabilities utilized by, and material
to the business operations or financial condition of, any Borrower or any of its
Subsidiaries are able to interpret, store, transmit, receive and manipulate date
on and involving all calendar dates correctly and without causing any abnormal
ending scenarios in relation to dates in and after the year 2000.
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ARTICLE VI
AFFIRMATIVE COVENANTS
Until all of Borrowers' Obligations are paid and performed in full and
the Commitments shall have terminated, each Borrower agrees that it shall, and
shall cause its Subsidiaries to:
6.1 LEGAL EXISTENCE; GOOD STANDING. Maintain its existence and
its good standing in the jurisdiction of its formation and its qualification in
each jurisdiction in which the failure so to qualify could have a Material
Adverse Effect.
6.2 INSPECTION. Permit representatives of Lender at any time to
(i) visit its offices, (ii) examine its books and records and accountants'
reports relating thereto, (iii) make copies or extracts therefrom, (iv) discuss
its affairs with its employees, (v) examine and inspect its Property and (vi)
meet and discuss its affairs with its accountants, and such accountants, as a
condition to their retention by Borrowers, are hereby irrevocably authorized by
Borrowers to fully discuss and disclose all such affairs with Lender.
6.3 FINANCIAL STATEMENTS AND OTHER INFORMATION. Maintain a system
of accounting in accordance with GAAP and furnish to Lender:
6.3.1 INTENTIONALLY OMITTED.
6.3.2 QUARTERLY STATEMENTS; COMPLIANCE CERTIFICATE. As
soon as available and in any event within forty-five (45) days after
the close of each quarter of each year:
(a) the consolidated balance sheet of Borrowers
and their Subsidiaries and the consolidating balance sheet of
each Borrower and each Subsidiary of each Borrower as of the
end of such quarter, and
(b) the consolidated statements of operations of
Borrowers and their Subsidiaries, the consolidated statements
of cash flows of Borrowers and their Subsidiaries and the
consolidating statements of operations and cash flows for each
Borrower and each Subsidiary of each Borrower for such quarter
and for the period from the beginning of the then current year
to the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding period in the preceding year, and showing a
comparison with the budget for such period,
all in reasonable detail, containing such information as Lender
reasonably may require, and certified by the Chief Financial Officer as
complete and correct, subject to normal year-end adjustments. Each such
financial statement shall be accompanied by a Compliance Certificate.
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6.3.3 ANNUAL STATEMENTS. As soon as available and in any
event within ninety (90) days after the close of each Fiscal Year:
(a) the audited consolidated balance sheet of
Borrowers and their Subsidiaries as of the end of such Fiscal
Year, the audited consolidated statements of operations, cash
flows and stockholders' equity of Borrowers and their
Subsidiaries (collectively, the "Basic Financial Statements"),
the audited consolidating balance sheet of each Borrower and
each Subsidiary of each Borrower as of the end of such Fiscal
Year, the audited consolidating statements of operations, cash
flows and stockholders' equity for each Borrower and each
Subsidiary of each Borrower for such Fiscal Year, the audited
statements of the consolidated and consolidating cash flows
for Borrowers and each Subsidiary of each Borrower for such
Fiscal Year, setting forth in each case in comparative form
the corresponding figures for the preceding Fiscal Year,
(b) an opinion of Borrower's accountants which
shall accompany the Basic Financial Statements, which opinion
shall be unqualified as to going concern and scope of audit,
stating that (i) the examination by the accountants in
connection with such Basic Financial Statements has been made
in accordance with generally accepted auditing standards, (ii)
such Basic Financial Statements have been prepared in
conformity with GAAP and in a manner consistent with prior
periods, and (iii) such Basic Financial Statements fairly
present in all material respects the financial position and
results of operations of the Borrowers and their Subsidiaries,
and
(c) a letter from the accountants stating that
the statements of cash flows were computed in accordance with
the requirements of this Loan Agreement.
6.3.4 INTENTIONALLY OMITTED.
6.3.5 AUDIT REPORTS. Promptly upon receipt thereof, a copy
of each report, other than the reports referred to in subsection 6.3.3,
including any so-called "management letter" or similar report,
submitted to any Borrower or any Subsidiary of any Borrower by the
accountants in connection with any annual, interim or special audit
made by the accountants of the books of such Borrower or such
Subsidiary.
6.3.6 NOTICE OF DEFAULTS; LOSS. Prompt written notice if:
(i) any Indebtedness of any Borrower or any Subsidiary of any Borrower
in excess of $100,000 is declared or shall become due and payable prior
to its declared or stated maturity, or called and not paid when due,
(ii) an event has occurred that enables the holder of any note, or
other evidence of such Indebtedness, certificate or security evidencing
any such Indebtedness to declare such Indebtedness due and payable
prior to its stated maturity, (iii) there shall occur and be continuing
an Incipient Default or Event of Default, accompanied by a statement
setting forth what action the Borrower proposes to take in respect
thereof, or
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(iv) any event shall occur which has or could have a Material Adverse
Effect, including the amount or the estimated amount of any loss or
depreciation or adverse effect.
6.3.7 NOTICE OF SUITS, ADVERSE EVENTS. Prompt written
notice of: (i) any citation, summons, subpoena, order to show cause or
other order naming any Borrower or any Subsidiary of any Borrower a
party to any proceeding before any Governmental Body which could have a
Material Adverse Effect and include with such notice a copy of such
citation, summons, subpoena, order to show cause or other order, (ii)
any lapse or other termination of any license, permit, franchise,
agreement or other authorization issued to any Borrower or any
Subsidiary of any Borrower by any Governmental Body or any other Person
that is material to the operation of the Business of such Borrower or
such Subsidiary, (iii) any refusal by any Governmental Body or any
other Person to renew or extend any such license, permit, franchise,
agreement or other authorization and (iv) any dispute between any
Borrower and any Governmental Body or any other Person, which lapse,
termination, refusal or dispute referred to in clauses (ii) and (iii)
above or in this clause (iv) could have a Material Adverse Effect.
6.3.8 REPORTS TO SHAREHOLDERS, CREDITORS AND GOVERNMENTAL
BODIES.
(a) Promptly upon becoming available, copies of
all financial statements, reports, notices and other
statements sent or made available generally by any Borrower to
its shareholders or members, of all regular and periodic
reports and all registration statements and prospectuses filed
by such Borrower with any securities exchange or with the
Securities and Exchange Commission or any Governmental Body
succeeding to any of its functions, and of all statements
generally made available by any Borrower or any Subsidiary of
any Borrower or others concerning material developments in the
business of such Borrower or such Subsidiary.
(b) Promptly upon becoming available, copies of
any periodic or special reports filed by any Borrower or any
Subsidiary of any Borrower with any Governmental Body or
Person, if such reports indicate any material change in the
business, operations, affairs or condition of such Borrower,
or if copies thereof are requested by Lender, and copies of
any material notices and other communications from any
Governmental Body or Person which specifically relate to any
Borrower or any Subsidiary of any Borrower.
6.3.9 ERISA NOTICES AND REQUESTS.
(a) With reasonable promptness, and in any event
within thirty (30) days after occurrence of any of the
following such Borrower will give notice of and/or deliver to
Lender copies of: (i) the establishment of any new material
Employee Benefit Plan, Pension Plan or Multiemployer Plan;
(ii) the commencement of contributions to any Employee Benefit
Plan, Pension Plan or Multiemployer Plan to which any Borrower
or any ERISA Affiliate of any Borrower was not previously
contributing or any increase in the benefits of any
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existing Employee Benefit Plan, Pension Plan or Multiemployer
Plan; (iii) each funding waiver request filed with respect to
any Employee Benefit Plan and all communications received or
sent by any Borrower or any ERISA Affiliate of any Borrower
with respect to such request; and (iv) the failure of any
Borrower or any ERISA Affiliate of any Borrower to make a
required installment or payment under Section 302 of ERISA or
Section 412 of the Code by the due date.
(b) Promptly and in any event within ten (10)
days of becoming aware of the occurrence of or forthcoming
occurrence of any (i) Termination Event or (ii) "prohibited
transaction", as such term is defined in Section 406 of ERISA
or Section 4975 of the Code, in connection with any Pension
Plan or any trust created thereunder Borrowers shall deliver
to Lender a notice specifying the nature thereof, what action
Borrowers or their ERISA Affiliate has taken, is taking or
proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto.
(c) With reasonable promptness but in any event
within ten (10) days after the occurrence of any of the
following, Borrowers shall deliver to Lender copies of: (i)
any favorable or unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code; (ii)
all notices received by any Borrower or any ERISA Affiliate of
any Borrower of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension
Plan; (iii) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by any Borrower or any
ERISA Affiliate of any Borrower with the Internal Revenue
Service with respect to each Pension Plan; and (iv) all
notices received by any Borrower or any ERISA Affiliate of any
Borrower from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA. Borrowers promptly will notify Lender
in writing in the event any Borrower or any ERISA Affiliate of
any Borrower files or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within
the meaning of Section 4041(c) of ERISA.
6.3.10 OTHER INFORMATION.
(a) Prompt notice of any change in the location
of any Property of any Borrower or any Subsidiary of any
Borrower which is material to or necessary for the continued
operation of such Person's business, any change in the name of
any Borrower or any Subsidiary of any Borrower, any sale or
purchase of Property outside the regular course of business of
any Borrower or any Subsidiary of any Borrower, and any change
in the business or financial affairs of any Borrower or any
Subsidiary of any Borrower, which change could have a Material
Adverse Effect.
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(b) Promptly upon request therefor, such other
information and reports relating to the past, present or
future financial condition, operations, plans and projections
of Borrowers and their Subsidiaries as Lender reasonably may
request from time to time.
6.4 REPORTS TO GOVERNMENTAL BODIES AND OTHER PERSONS. Timely file
all material reports, applications, documents, instruments and information
required to be filed pursuant to all rules, regulations or requests of any
Governmental Body or other Person having jurisdiction over the operation of the
business of Borrowers and their Subsidiaries, including, but not limited to,
such of the Loan Documents as are required to be filed with any such
Governmental Body or other Person pursuant to applicable rules and regulations
promulgated by such Governmental Body or other Person.
6.5 MAINTENANCE OF LICENSES, FRANCHISES AND OTHER AGREEMENTS.
Maintain in full force and effect at all times, and apply in a timely manner for
renewal of, all Licenses, trademarks, trade names, License Agreements and
Operating Agreements necessary for the operation of business of any Borrower or
any Subsidiary of any Borrower, the loss of any of which could have a Material
Adverse Effect.
6.6 INSURANCE.
6.6.1 MAINTENANCE OF INSURANCE. Maintain in full force and
effect at all times such property, casualty, business interruption and
other insurance required by Lender, all of which shall be written by
insurers, contain terms and be in amounts and forms satisfactory to
Lender, including public liability insurance, flood insurance required
pursuant to this Loan Agreement, workmen's compensation, builders'
risk, fire and extended coverage and flood insurance, with a standard
mortgagee clause endorsed thereon in favor of Lender which shall
provide, among other things, that the policies may not be canceled
without thirty (30) days' prior notice to Lender. Deliver to Lender,
from time to time as Lender may reasonably request, evidence of
compliance with this subsection 6.6.1.
6.6.2 PROCEEDS. Each Borrower hereby directs all insurers
under all policies of insurance to pay all proceeds payable thereunder
directly to Lender and each Borrower hereby authorizes Lender to
collect all such proceeds subject to Borrowers' rights as described
below in this subsection 6.6.2 to receive certain proceeds. Each
Borrower irrevocably appoints Lender (and all officers, employees or
agents designated by Lender) as such Borrower's true and lawful
attorney and agent in fact for the purpose of and with power to make,
settle and adjust claims under such policies of insurance, endorse the
name of such Borrower on any check, draft, instrument or other item of
payment for the proceeds of such policies of insurance, and to make all
determinations and decisions with respect to such policies of
insurance. Each Borrower acknowledges that such appointment as attorney
and agent in fact is a power, coupled with an interest, and therefore
is irrevocable. Borrowers shall notify Lender promptly of any loss,
damage, destruction or other casualty to the Collateral in excess of
$20,000. If the proceeds of a casualty do not exceed $50,000 and no
Event of Default exists such proceeds shall be
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paid to the applicable Borrower or Subsidiary of any Borrower and
applied to repair or replace the Property which is the subject of such
casualty. If the proceeds of a casualty exceed $50,000 or an Event of
Default exists, at the option of Lender, such proceeds shall be applied
to the (i) payment of Borrowers' Obligations in accordance with Section
8.4 or (ii) repair or replacement of the Collateral. In the event the
proceeds are to be applied to the repair or replacement of Collateral,
the Collateral shall be repaired or replaced so as to be of at least
equal value and substantially the same character as prior to such loss,
damage, destruction or other casualty.
6.7 FUTURE LEASES. Deliver to Lender, concurrently with the
execution by any Borrower or any Subsidiary of any Borrower, as lessee, of any
Lease, an executed copy thereof and a Landlord's Consent to the assignment of
such Lease pursuant to an Assignment of Leases.
6.8 FUTURE ACQUISITIONS OF REAL ESTATE. Deliver to Lender
concurrently with the (i) execution by any Borrower or any Subsidiary of any
Borrower of any contract relating to the purchase by such Person of real estate,
an executed copy of such contract and (ii) closing of the purchase of such real
estate (A) a first mortgage or deed of trust in favor of Lender on such real
estate, in form and substance satisfactory to Lender, (B) a lender's policy of
title insurance, in such form and amount and containing such endorsements as
shall be satisfactory to Lender (C) an ALTA/ACSM survey of such real estate and
(D) such other documents and assurances with respect to such real estate as
Lender may require.
6.9 ENVIRONMENTAL MATTERS. At all times comply with, and be
responsible for, its obligations under all Environmental Laws applicable to the
Real Estate, the Leasehold Property and any other Property owned by any Borrower
or any Subsidiary of any Borrower or used by any such Person in the operation of
its business. Borrowers shall at their sole cost and expense (i) comply, and
cause their Subsidiaries to comply, in all respects with (A) any notice of any
violation or administrative or judicial complaint or order having been filed
against any such Person, any portion of any Leasehold Property or any other
Property owned by such Person or used by such Person in the operation of its
business alleging violations of any law, ordinance and/or regulation requiring
such Person to take any action in connection with the release, transportation
and/or clean-up of any Hazardous Materials, and (B) any notice from any
Governmental Body or any other Person alleging that such Person is or may be
liable for costs associated with a response or clean-up of any Hazardous
Materials or any damages resulting from such release or transportation, or (ii)
diligently contest, and cause their Subsidiaries to diligently contest, in good
faith by appropriate proceedings any demands set forth in such notices, provided
(A) reserves in an amount satisfactory to Lender to pay the costs associated
with complying with any such notice are established by such Person and (B) no
Lien would or will attach to the Property which is the subject of any such
notice as a result of any compliance by such Person which is delayed during any
such contest. Promptly upon receipt of any notice described in the foregoing
clause (i), Borrowers shall deliver a copy thereof to Lender.
6.10 COMPLIANCE WITH LAWS. Comply with all federal, state and
local laws, ordinances, requirements and regulations and all judgments, orders,
injunctions and decrees applicable to any Borrower or any Subsidiary of any
Borrower or their operations, the failure to comply with which could have a
Material Adverse Effect.
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6.11 TAXES AND CLAIMS. Pay and discharge all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any Property belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims which, if unpaid, might become a
Lien (other than a Permitted Lien) upon the Property of any Borrower or any
Subsidiary of any Borrower, provided that so long as no Lien has attached to the
Property of any Borrower or any Subsidiary of any Borrower as a result of any of
the foregoing, neither any Borrower nor any Subsidiary of any Borrower shall be
required by this Section 6.11 to pay any such amount if the same is being
contested diligently and in good faith by appropriate proceedings and as to
which the applicable Person has set aside reserves on its books satisfactory to
Lender.
6.12 MAINTENANCE OF PROPERTIES. Maintain all of its Properties
necessary in the operation of its business in good working order and condition.
6.13 GOVERNMENTAL APPROVALS. Upon the exercise by Lender of any
power, right or privilege pursuant to the provisions of any of the Loan
Documents requiring any consent, approval or authorization of any Governmental
Body (including, without limitation, transfers of Licenses), promptly execute
and cause the execution of all applications, certificates, instruments and other
documents that Lender may be required to obtain for such consent, approval or
authorization.
6.14 YEAR 2000. Deliver to Lender such updated information as is
requested regarding the status of its efforts to become Year 2000 Compliant and
shall take such actions and commit such resources necessary to ensure that it
and its Subsidiaries will be Year 2000 Compliant by October 1, 1999.
6.15 FURTHER ASSURANCES. Promptly upon request of Lender, take
such additional actions as Lender may require from time to time in order to (i)
carry out more effectively the purposes of this Loan Agreement and the other
Loan Documents, (ii) subject to the Liens created by any of the Collateral
Documents any of the Property, rights or interests covered by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to be created
thereby and (iv) better assure, convey, grant, assign, transfer, preserve,
protect and confirm to Lender the rights granted or now or hereafter intended to
be granted to Lender under any Loan Document or under any other document
executed in connection therewith. Without limiting the generality of the
foregoing and except as otherwise approved in writing by Lender, Borrowers shall
cause each of their Subsidiaries to guaranty Borrowers' Obligations and to cause
each such Subsidiary to grant to Lender a security interest in all of such
Subsidiary's Property to secure such guaranty, and, in connection with
Acquisitions permitted hereunder, execute and deliver to Lender such other
agreements, documents and instruments as reasonably requested by Lender prior to
the consummation of any such Acquisition. Furthermore and except as otherwise
approved in writing by Lender, each Borrower shall pledge the stock or other
equity interests of each of its Subsidiaries to Lender to secure Borrowers'
Obligations.
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6.16 LANDLORD CONSENTS. Use its best efforts to obtain and deliver
to Lender, on or before the sixtieth (60) day after the Closing Date, a Landlord
Consent from the lessor and sublessor, as applicable, under each Lease under
which such Borrower or Subsidiary is a lessee or sublessee, except to the extent
a Landlord Consent from such lessor or sublessor, as applicable, shall have been
delivered previously to Lender.
6.17 RESTRICTED FOREIGN SUBSIDIARIES. If EBITDA generated by any
of the Restricted Foreign Subsidiaries or both of them during any quarter shall
account for or constitute ten percent (10%) or more of EBITDA generated by
Borrowers and their Subsidiaries during such quarter, comply with the provisions
of Section 6.15 in respect of the Restricted Foreign Subsidiaries and, among
other things, cause such Restricted Foreign Subsidiaries and such other
appropriate Persons to join in the execution of the Subsidiary Security
Agreement and the Subsidiary Guaranty.
6.18 LIEN WAIVERS. If Lender shall have approved any plans for
improvements and/or build-outs in respect of any Real Estate and permitted
Borrowers to consummate such improvements and/or build-outs, Borrowers shall
provide to Lender, and shall continue to provide to Lender on an on going basis
when and as requested by Lender, any lien waivers requested by Lender,
including, without limitation, mechanics' lien waivers, in form and substance
satisfactory to Lender, and a date down endorsement to the title policy in favor
of Lender, as insured, covering such Real Estate.
ARTICLE VII
NEGATIVE COVENANTS
Until all of Borrowers' Obligations are paid and performed in full and
the Commitments shall have terminated, no Borrower shall, or permit or cause any
of its Subsidiaries to:
7.1 BORROWING /INDEBTEDNESS. Create, incur, assume or suffer to
exist any liability for Indebtedness for Borrowed Money, except:
(i) the Borrowers' Obligations;
(ii) Permitted Senior Indebtedness;
(iii) Indebtedness for Borrowed Money evidenced by the
Thoroughbred Note;
(iv) other Subordinated Indebtedness disclosed to, and
approved by, Lender incurred or assumed in connection with Acquisitions
permitted hereunder;
(v) unsecured inter-company loans by any Borrower to any
other Borrower or its Subsidiaries (other than the Restricted Foreign
Subsidiaries), provided that the
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obligations of each obligor of such Indebtedness shall: (A) be
evidenced by promissory notes which shall have been pledged to Lender
as security for Borrowers' Obligations, (B) if required by Lender, be
subordinated in right of payment to Borrowers' Obligations on terms and
conditions acceptable to Lender and (C) have such other terms and
provisions as Lender may reasonably require;
(vi) other unsecured Indebtedness in an aggregate amount
not to exceed $2,500,000 at any one time outstanding (which shall
include the Indebtedness described on EXHIBIT 7.1 hereto); and
(vii) the Indebtedness in favor of Security National Bank
in an aggregate amount not to exceed $950,000, which is secured by the
Real Estate/Macon Mortgage.
7.2 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its Property, whether now owned or hereafter acquired, except Permitted
Liens.
7.3 MERGERS AND ACQUISITIONS. Consolidate with or merge with or
into any Person, or acquire directly or indirectly all or substantially all of
the capital stock, equity interests or Property of any Person, except: (i)
Acquisitions otherwise permitted hereunder, (ii) any Subsidiary of InfoCure
Corporation may merge with or into any other Subsidiary of InfoCure Corporation
(other than a Restricted Foreign Subsidiary), provided that (A) no Event of
Default or Incipient Default would exist after giving effect to any such merger,
(B) Lender shall have received at least forty-five (45) days' prior written
notice of any such merger, (C) Borrowers and their Subsidiaries shall have
executed and delivered to Lender such instruments, agreements and documents as
Lender shall require to preserve the validity and priority of the Security
Interests in the Property transferred to the surviving Subsidiary in connection
with any such merger and (D) Lender shall have received such other instruments,
agreements and documents in connection with any such merger as Lender shall
require, including, without limitation, certified copies of the related plan of
merger and certificates of merger and (iii) any Subsidiary of InfoCure
Corporation (other than a Restricted Foreign Subsidiary) may merge with another
Person in connection with an Acquisition permitted hereunder provided such
Subsidiary is the continuing or surviving Person.
7.4 CONTINGENT LIABILITIES/OBLIGATIONS. Assume, guarantee,
endorse, contingently agree to purchase, become liable in respect of any letter
of credit, or otherwise become liable upon the obligation of any Person, except:
(i) liabilities arising from the endorsement of negotiable instruments for
deposit or collection in the ordinary course of business, and (ii) the posting
of bonds to secure performance to the extent necessary in connection with its
business and similar transactions in the ordinary course of business.
7.5 DISTRIBUTIONS/RESTRICTED JUNIOR PAYMENTS. Make any dividends,
distributions or other shareholder expenditures with respect to its capital
stock or other equity interests or apply any of its Property to the purchase,
redemption or other retirement of, or set apart any sum for the payment of, or
make any other distribution by reduction of capital or otherwise in respect of,
any of such capital stock or equity interests (the following item, together with
those described
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in clause (ii) of Section 7.7, are referred to as "Restricted Payments"), except
any Subsidiary may make dividends or other distributions to InfoCure
Corporation.
7.6 CAPITAL EXPENDITURES. Make or incur any Capital Expenditures
(other than (i) Acquisitions permitted hereunder, (ii) the acquisition on the
Closing Date of the Real Estate that is the subject of the Real Estate
Acquisition Documents and (iii) improvements on such Real Estate to the extent
otherwise permitted hereunder) if the aggregate amount of Capital Expenditures
of Borrowers and their Subsidiaries for the twelve-month period ended on any
date exceeds (or would exceed after giving effect to the making thereof)
$8,000,000.
7.7 PAYMENTS OF INDEBTEDNESS FOR BORROWED MONEY. Make any
voluntary or optional payment or prepayment of any Indebtedness for Borrowed
Money or make any payment in respect of Subordinated Indebtedness, other than
(i) in respect of Borrowers' Obligations, (ii) Indebtedness for Borrowed Money
of a type described in clause (vi) of Section 7.1 that does not constitute any
other Indebtedness for Borrowed Money Described in Section 7.1) and (iii)
regularly scheduled payments of interest and principal of the Indebtedness for
Borrowed Money evidenced by the Thoroughbred Note, provided that no Event of
Default or Incipient Default exists or would be created by the making of any
such payment under this clause (iii) and such payment otherwise is permitted
under the terms of the Thoroughbred Subordination Agreement, and, provided,
further, that nothing contained in this clause (iii) shall prohibit the
conversion of the Indebtedness for Borrowed Money evidenced by the Thoroughbred
Note into common stock of InfoCure Corporation.
7.8 INVESTMENTS; LOANS. At any time purchase or otherwise
acquire, hold or invest in the capital stock of, or any other interest in, any
Person (including the creation of any Subsidiary), or make any loan or advance
to, or enter into any arrangement for the purpose of providing funds or credit
to, or make any other investment, whether by way of capital contribution or
otherwise, in or with any Person, including, without limitation, any Affiliate,
except:
(i) investments in direct obligations of, or instruments
unconditionally guaranteed by, the United States of America or in
certificates of deposit issued by a Qualified Depository;
(ii) investments in commercial or finance paper which, at
the time of investment, is rated "A" or better by Xxxxx'x Investors
Service, Inc., or Standard & Poor's Ratings Group, a Division of
XxXxxx-Xxxx, Inc., respectively, or at the equivalent rate by any of
their respective successors;
(iii) any interests in any money market account maintained,
at the time of investment, with a Qualified Depository, the investments
of which, at the time of investment, are restricted to the types
specified in clause (i) above;
(iv) unsecured inter-company loans otherwise permitted
under Section 7.1; and
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(v) Acquisitions permitted by Section 7.21, including
establishment or creation of, and equity investments in, wholly-owned
domestic Subsidiaries consented to by Lender in connection with such
Acquisitions.
All investments permitted pursuant to clauses (i), (ii) and (iii) of this
Section 7.8 shall have a maturity not exceeding one year.
7.9 FUNDAMENTAL BUSINESS CHANGES. Materially change the nature of
its business.
7.10 FACILITY SITES. Change the locations of its chief executive
office or other Property used in the operation of its business (except to the
extent Borrowers shall close any facilities at which such Property is located
(other than the locations of its chief executive office) and only to the extent
Borrowers shall have complied with the provisions of this Section 7.10 in
respect of the locations at which such Property is to be moved), unless (i)
Lender shall have received at least thirty (30) days' prior written notice
thereof, (ii) the applicable Borrower or Subsidiary shall have complied with all
applicable laws, rules and regulations and shall have received all required
consents and approvals from any Governmental Body, (iii) Lender shall have
received satisfactory evidence that such change could not reasonably be expected
to affect adversely the operations or business prospects of the applicable
Borrower or Subsidiary and (iv) the applicable Borrower or Subsidiary shall have
executed and delivered to Lender any documents, agreements and instruments
Lender may reasonably require in order to maintain the validity and priority of
the Security Interests, including, without limitation, UCC financing statements
and amendments.
7.11 SALE OR TRANSFER OF ASSETS. Sell, lease, assign, transfer or
otherwise dispose of any Property (whether in one transaction or a series of
transactions), or enter into any agreement to do any of the foregoing, except:
(i) the disposition of Property which is not material to
or necessary for the continued operation of its business;
(ii) obsolete or unusable items of equipment which
promptly are replaced with new items of equipment of like function and
comparable value to the obsolete or unusable items of equipment when
the same were new or not obsolete or unusable, provided such
replacement items of equipment shall become subject to the Security
Interests;
(iii) dispositions not otherwise permitted hereunder which
are made for fair market value and the mandatory prepayment, if any, in
the amount of the Net Proceeds of such disposition is made as provided
in subsection 2.8.2(b); provided, that (i) at the time of any such
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) not less than the greater of eighty-five percent
(85%) of aggregate sales price from such disposition and the amount of
the mandatory prepayment required pursuant to subsection 2.8.2(b) shall
be paid in cash, (iii) the aggregate value of assets so sold by
Borrowers and their Subsidiaries, together, shall not exceed in any
year
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$1,000,000 and (iv) any non-cash portion of the sales price shall be
pledged to Lender as security for Borrowers' Obligations; and
(iv) as expressly permitted pursuant to Section 7.3.
7.12 AMENDMENT OF DOCUMENTS. Amend or modify (i) its articles of
incorporation (including any certificates of designations, preferences and
rights), bylaws or other corporate governance documents or organization
instruments, except (A) if required by law or (B) InfoCure Corporation may amend
its articles of incorporation in connection with the issuance of additional
capital stock permitted under Section 7.14, (ii) the Thoroughbred Note or the
Thoroughbred Subordination Agreement, (iii) any Acquisition Documents or (iv)
any Related Transaction Agreements to the extent reasonably expected to have a
Material Adverse Effect and, with respect to any such actions described in
clauses (i), (iii) or (iv), only to the extent such actions shall not be in a
manner adverse to Lender or the Collateral.
7.13 ACQUISITION OF ADDITIONAL PROPERTIES. Acquire any additional
Property except (i) such Property as is necessary to or useful in the operation
of its business, provided such acquisitions shall be subject to the conditions
and limitations set forth in this Loan Agreement, and (ii) acquisitions of
Property as are permitted pursuant to Section 7.3 and Section 7.21.
7.14 ISSUANCE OF CAPITAL STOCK OR OTHER SIMILAR INTERESTS. Issue
or sell, permit to be issued or sold, or otherwise consent to the transfer of,
any additional capital stock or equity interests or any interests convertible
into or exercisable for any such capital stock or additional equity interests,
except (i) the issuance of capital stock of InfoCure Corporation, provided that
(a) InfoCure Corporation shall not be required or permitted to pay cash
dividends, redeem such capital stock or make other distributions with respect
thereto and, without limiting the foregoing, any preferred stock of InfoCure
Corporation so issued shall not contain, provide for or otherwise have any
mandatory redemption or put rights during the term of this Loan Agreement or
until Borrowers' Obligations shall have been performed and paid in full and the
Commitments shall have terminated, and (b) Borrowers shall comply with the
provisions of subsection 2.8.2(c), (ii) the convertible rights granted pursuant
to promissory notes evidencing Subordinated Indebtedness or other Indebtedness
for Borrowed Money otherwise permitted hereunder and (iii) InfoCure Corporation
may issue, sell or otherwise transfer, and InfoCure Australia Pty Limited, a
company organized under the laws of Australia, may permit the issuance, sale or
other transfer, of the equity interests of InfoCure Australia Pty Limited,
provided that InfoCure Corporation shall continue to own and control at all
times (a) at least 51% of the issued and outstanding equity interests of
InfoCure Australia Pty Limited and (b) such percentage of the voting securities
of InfoCure Australia Pty Limited at least sufficient to enable InfoCure
Corporation to direct the direction of management and policies of such Person.
7.15 TRANSACTIONS WITH AFFILIATES. Sell, lease, assign, transfer
or otherwise dispose of any Property to any Affiliate of any Borrower, lease
Property, render or receive services or purchase assets from any such Affiliate,
or otherwise enter into any contractual relationship with any Affiliate, except:
(i) as expressly permitted by this Loan Agreement; and
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(ii) in the ordinary course of business and pursuant to
the reasonable requirements of the business of the applicable Borrower
or Subsidiary;
and, in the case of each of (i) and (ii) above, upon fair and reasonable terms
no less favorable to the applicable Borrower or Subsidiary than would be
obtained in a comparable arm's-length transaction with a Person not an Affiliate
of such Person and which are disclosed in writing to Lender.
7.16 COMPLIANCE WITH ERISA.
(i) Permit the occurrence of any Termination Event which
would result in a liability to any Borrower or any ERISA Affiliate of
any Borrower in excess of $250,000;
(ii) Permit the present value of all benefit liabilities
under all Pension Plans to exceed the current value of the assets of
such Pension Plans allocable to such benefit liabilities by more than
$250,000;
(iii) Permit any accumulated funding deficiency in excess
of $250,000 (as defined in Section 302 of ERISA and Section 412 of the
Code) with respect to any Pension Plan, whether or not waived;
(iv) Fail to make any contribution or payment to any
Multiemployer Plan which any Borrower or any ERISA Affiliate of any
Borrower may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto which results in or
is likely to result in a liability in excess of $250,000;
(v) Engage, or permit any Borrower or any ERISA Affiliate
of any Borrower to engage, in any "prohibited transaction" as such term
is defined in Section 406 of ERISA or Section 4975 of the Code for
which a civil penalty pursuant to Section 502(i) of ERISA or a tax
pursuant to Section 4975 of the Code in excess of $250,000 is imposed;
(vi) Permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to any Borrower or any ERISA Affiliate of any Borrower or
increase the obligation of any Borrower or any ERISA Affiliate of any
Borrower to a Multiemployer Plan which liability or increase,
individually or together with all similar liabilities and increases, is
material to any Borrower or any ERISA Affiliate of any Borrower; or
(vii) Fail, or permit any of its ERISA Affiliates to fail,
to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with ERISA, the Code and all other
applicable laws and regulations and interpretations thereof.
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7.17 MINIMUM NET WORTH. Permit Consolidated Net Worth as of the last
day of any quarter to be less than the sum of (i) $85,000,000, plus (ii) an
aggregate amount equal to seventy-five percent (75%) of Consolidated Net Income
of Borrowers and their Subsidiaries (other than the Restricted Foreign
Subsidiaries) for each Fiscal Year of Borrowers and their Subsidiaries ending
after the date hereof, but prior to such date of determination (commencing with
the Fiscal Year ending December 31, 1999), for which Consolidated Net Income is
a positive amount (i.e., no reduction to the amount of Consolidated Net Worth
required to be maintained hereunder shall be permitted for any Fiscal Year in
which Consolidated Net Income is less than zero), plus 100% of Net Issuance
Proceeds generated during the period commencing with the Closing Date and ending
on such date of determination.
7.18 MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio, calculated as
of the last day of any quarter, to exceed 2.50 to 1.00.
7.19 MINIMUM TOTAL DEBT SERVICE COVERAGE RATIO. Permit the Total Debt
Service Coverage Ratio as of the last day of any quarter to be less than 1.50 to
1.00.
7.20 SUBSIDIARIES. Create or permit to exist any Subsidiary, except
(i) InfoCure Corporation may permit the existence of InfoCure Systems,
Thoroughbred, DISC, StrategiCare, Medical Software Management and the Restricted
Foreign Subsidiaries, (ii) InfoCure Systems may permit the existence of DISC,
StrategiCare and Medical Software Management and (iii) wholly-owned domestic
Subsidiaries in connection with Acquisitions permitted hereunder, provided that
each such Subsidiary shall have executed and delivered all agreements, documents
and instruments required under Section 6.15.
7.21 ACQUISITIONS. Consummate, or permit any of its Subsidiaries to
consummate, any Acquisitions unless the following shall have been satisfied in
connection therewith:
(a) If any Borrower or any Subsidiary of any Borrower desires to
make an Acquisition, Borrowers shall deliver, or cause to be delivered,
to Lender, (i) not less than thirty (30) Business Days prior to the
consummation of such potential Acquisition if such Acquisition shall
require the consent of Lender in accordance with the terms of this
Section 7.21 or (ii) not less than twenty (20) Business Days prior to
the consummation of such potential Acquisition if such Acquisition
shall not require the consent of Lender in accordance with the terms of
this Section 7.21, an acquisition summary with respect to the Target
and such potential Acquisition, such summary to include a reasonably
detailed description of the Target and its business (including
financial information) and operating results (including financial
statements), the terms and conditions, including economic terms, of the
proposed Acquisition, and Borrowers' calculation of Pro Forma EBITDA of
such Target;
(b) No Borrower shall consummate or permit any of its Subsidiaries
to consummate any Acquisition unless all of the following conditions
are satisfied:
(i) the Target must be in the same or related line of
business as Borrowers and provide healthcare information systems
services, must be a
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domestic corporation, partnership or limited liability company
(and the seller must be a domestic corporation, partnership or
limited liability company and the Target must be located within
the United States), must have generated positive Pro Forma EBITDA
for each of last two (2) years, the transaction must be structured
as an asset purchase by, or merger with, a wholly-owned domestic
Subsidiary of a Borrower or a stock purchase by a Borrower or a
wholly-owned domestic Subsidiary of a Borrower and Borrowers and
its Subsidiaries shall have complied with the provisions Section
6.15;
(ii) the Target must not have material contingent liabilities
unless either (x) such liabilities are cash collateralized
pursuant to appropriate escrow arrangements or are covered by
insurance or (y) such liabilities, individually and when combined
with contingent liabilities of Targets theretofore acquired by
Borrower, do not exceed, in the aggregate, $500,000;
(iii) (A) no Incipient Default or Event of Default shall have
occurred and be continuing or would arise as a result of such
Acquisition; (B) on a pro forma basis after giving effect to such
Acquisition, including the incurrence or assumption of
Indebtedness in connection therewith and the funding of any
Advance (and utilizing Pro Forma EBITDA for such Target), the
Leverage Ratio on a pro forma basis shall not exceed the maximum
ratio set forth in Section 7.18; and (C) Borrowers shall have
delivered to Lender a Compliance Certificate completed on a pro
forma basis after giving effect to such Acquisition, including the
incurrence or assumption of Indebtedness in connection therewith
and the funding of any Advances, and such Compliance Certificate
shall demonstrate pro forma compliance with Sections 7.17, 7.18
and 7.19;
(iv) Lender shall have approved such Acquisition in
accordance with the following:
(A) if (i) the Leverage Ratio (on a pro forma basis
after giving effect to such Acquisition, including the
incurrence or assumption of Indebtedness in connection
therewith and the funding of any Advance, and utilizing Pro
Forma EBITDA for such target) does not exceed 1.00 to 1.00 and
(ii) the aggregate purchase price (including payments under
non-compete agreements but excluding the fair market value of
any non-cash component of the purchase price) (the
"Acquisition Cost") for such Acquisition does not exceed
$20,000,000, then consent to such Acquisition shall not be
required; provided that such consent shall be required with
respect to the Acquisition which results in the aggregate
Acquisition Costs for all Acquisitions consummated during the
twelve-month period ending on the closing date (or applicable
Funding Date) of such Acquisition exceeding $40,000,000;
(B) if the Leverage Ratio (on a pro forma basis after
giving effect to such Acquisition, including the incurrence or
assumption of Indebtedness in connection therewith and the
funding of any Advance, and
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utilizing Pro Forma EBITDA for such Target) equals or exceeds
1.00 to 1.00, then Lender's consent to the Acquisition shall
be required only if (i) the Acquisition Cost for such
Acquisition exceeds $10,000,000 or (ii) the aggregate
Acquisition Costs for all Acquisitions consummated during the
twelve-month period ending on the closing date of such
Acquisition exceeds $25,000,000 (without limiting such clause
(ii), Lender's consent shall be required with respect to the
Acquisition which results in the aggregate Acquisition Costs
exceeding $25,000,000); and
(C) unless expressly not required above, Lender's
consent to Acquisitions shall be required;
(v) Lender's approval of the accuracy of Borrowers'
computation of Pro Forma EBITDA shall be required, notwithstanding
that consent to such Acquisition with respect to which Pro Forma
EBITDA is being determined may not be required; and
(vi) Borrowers shall have delivered to Lender an audit of the
Target and related Pro Forma EBITDA performed by an accounting
firm reasonably acceptable to Lender, and, in any such case, the
results thereof shall have been satisfactory to Lender, to the
extent either (a) such an audit (or similar audit or review) shall
have been required by the Securities Act or the Securities
Exchange Commission or (b) the respective Acquisition Cost exceeds
$15,000,000 (but only to the extent any proceeds of the Loans
shall be requested in connection with the consummation of such
Acquisition).
(c) It is understood and agreed that Lender's decision to consent
to an Acquisition, if required, shall be based upon Lender's evaluation
and approval of the business and financial condition of the Target and
review and approval of the Acquisition Documents in connection with the
proposed Acquisition.
(d) No later than ten (10) Business Days after Lender's receipt of
the acquisition summary, Lender will notify Borrowers, in writing,
whether or not Lender consents to the proposed Acquisition on the terms
set forth in the acquisition summary. Any failure on the part of Lender
either to grant or deny consent, in writing, the proposed Acquisition
within said ten (10) Business Day period shall constitute the denial of
consent by Lender of such Acquisition on the terms and conditions set
forth in the acquisition summary. If there is any material change to
the terms of the proposed Acquisition with respect to which the consent
of Lender is required (or any proposed Acquisition which, due to such
material change, shall or would require the consent of Lender), any
adverse change in Pro Forma EBITDA or any other material adverse change
to the Target which is the subject of such proposed Acquisition,
Borrowers shall notify Lender of the same and further consent will be
required, which consent will be granted or denied within ten (10)
Business Days of receipt of written notice of such material change. Any
failure either to grant or deny consent within said ten (10) Business
Day period shall constitute Lender's denial of consent. Any disclosures
in the acquisition summary shall be deemed consented to by Lender if
Lender has consented to the Acquisition.
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(e) The foregoing provisions do not impair, vitiate or affect the
conditions to Lender's obligations to fund Loans hereunder.
7.22 MINIMUM CURRENT RATIO. Permit the ratio of (i) consolidated
current assets of Borrowers and their Subsidiaries (other than the Restricted
Foreign Subsidiaries), determined in accordance with GAAP, as of any date to
(ii) consolidated current liabilities of Borrowers and their Subsidiaries (other
than the Restricted Foreign Subsidiaries), determined in accordance with GAAP,
less the amount of deferred revenues of Borrowers as of such date as accurately
reflected on the financial statements of Borrowers in accordance with GAAP, as
of such date to be less than 1.00 to 1.00.
ARTICLE VIII
DEFAULT AND REMEDIES
8.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under the Loan Documents:
8.1.1 DEFAULT IN PAYMENT. If Borrowers shall fail to pay all or
any portion of Borrowers' Obligations when the same become due and
payable.
8.1.2 BREACH OF COVENANTS.
(a) If any Borrower shall fail to observe or perform any
covenant or agreement made by or on behalf of such Person
contained in Section 6.1, 6.2, 6.3, 6.5, 6.6, 6.9, 6.11, 6.14 or
6.15 or in Article VII;
(b) If any Borrower or any Subsidiary of any Borrower shall
fail to observe or perform any covenant or agreement (other than
those referred to in subparagraph (a) above or specifically
addressed elsewhere in this Section 8.1) made by such Person in
any of the Loan Documents to which such Person is a party, and
such failure shall continue for a period of thirty (30) days after
written notice of such failure is given by Lender.
8.1.3 BREACH OF WARRANTY. If any representation or warranty made
by or on behalf of any Borrower or any Subsidiary of any Borrower in or
pursuant to any of the Loan Documents or in any instrument or document
furnished in compliance with the Loan Documents (including, without
limitation, any Compliance Certificate) shall prove to be false or
misleading in any material respect on the date made.
8.1.4 DEFAULT UNDER OTHER INDEBTEDNESS FOR BORROWED MONEY. If (i)
any Borrower or any Subsidiary of any Borrower at any time shall be in
default (as principal or guarantor or other surety) in the payment of
any principal of or premium or interest on any Indebtedness for
Borrowed Money (other than Borrowers' Obligations) beyond the
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grace period, if any, applicable thereto and the aggregate amount of
such payments then in default beyond such grace period shall exceed
$1,000,000 or (ii) any default shall occur in respect of any issue of
Indebtedness for Borrowed Money of any Borrower or any Subsidiary of
any Borrower (other than Borrowers' Obligations) outstanding in a
principal amount of at least $1,000,000, or in respect of any agreement
or instrument relating to any such issue of Indebtedness for Borrowed
Money, and such default shall continue beyond the grace period, if any,
applicable thereto or (iii) any Borrower or any Subsidiary of any
Borrower at any time shall be in default under the Thoroughbred Note.
8.1.5 BANKRUPTCY.
(a) If any Borrower or any Subsidiary of any Borrower shall
(i) generally not be paying its debts as they become due, (ii)
file, or consent, by answer or otherwise, to the filing against it
of a petition for relief or reorganization or arrangement or any
other petition in bankruptcy or insolvency under the laws of any
jurisdiction, (iii) make an assignment for the benefit of
creditors, (iv) consent to the appointment of a custodian,
receiver, trustee or other officer with similar powers for such
Borrower or Subsidiary, or for any substantial part of the
Property of such Borrower or Subsidiary or (v) be adjudicated
insolvent.
(b) If any Governmental Body of competent jurisdiction shall
enter an order appointing, without consent of such Borrower or
Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to any Borrower or any Subsidiary of
any Borrower, or with respect to any substantial part of the
Property belonging to any such Person, or if an order for relief
shall be entered in any case or proceeding for liquidation or
reorganization or otherwise to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of any Borrower or any Subsidiary of any
Borrower or if any petition for any such relief shall be filed
against any Borrower and such petition shall not be dismissed or
stayed within sixty (60) days.
8.1.6 JUDGMENTS. If the aggregate amount of all judgments or
awards against Borrowers and their Subsidiaries exceeds $750,000 at any
one time outstanding, excluding judgments or awards (i) for which there
is full insurance and with respect to which the insurer has assumed
responsibility in writing, (ii) for which there is full indemnification
(upon terms and by credit worthy indemnitors which are satisfactory to
Lender) or (iii) which have not been discharged in full or stayed
pending appeal.
8.1.7 IMPAIRMENT OF LICENSES; OTHER AGREEMENTS. If (i) any
Governmental Body shall (A) revoke, terminate, suspend or adversely
modify any License of any Borrower or any Subsidiary of any Borrower,
the non-continuation of which could have a Material Adverse Effect, or
(B) enter a final order or decision to suspend, revoke, terminate or
adversely modify any such License or (ii) there shall exist any
violation or default in the performance of, or a material failure to
comply with any agreement, or condition or term of any License or
License Agreement, which violation, default or
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failure could have a Material Adverse Effect, or any such License or
License Agreement shall cease to be in full force and effect, or (iii)
any Operating Agreement or License Agreement shall expire or be revoked
or terminated and not replaced by a substitute acceptable to Lender
within thirty (30) days after the date of such expiration, revocation
or termination, and such expiration, revocation or termination and
non-replacement could have a Material Adverse Effect.
8.1.8 COLLATERAL. If any material portion of the Collateral shall
be seized or taken by a Governmental Body or Person, or Borrowers and
their Subsidiaries shall fail to maintain or cause to be maintained the
Security Interests and priority of the Loan Documents as against any
Person, or the title and rights of any Borrower or any Subsidiary of
any Borrower to any material portion of the Collateral shall have
become the subject matter of litigation which reasonably could be
expected to result in impairment or loss of the security provided by
the Loan Documents.
8.1.9 PLANS. If an event or condition specified in subsection
6.3.9 hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or condition,
together with all other such events or conditions, any Borrower or any
ERISA Affiliates of any Borrower shall incur, or in the opinion of
Lender be reasonably likely to incur, a liability to a Plan or
Multiemployer Plan or the PBGC (or any of them) which, in the
reasonable judgment of FINOVA, could have a Material Adverse Effect.
8.1.10 CHANGE IN CONTROL. If at any time (i) InfoCure Corporation
ceases to own and control all of the issued and outstanding Subsidiary
Equity Interests or (ii) any Person or any Persons acting together
which would constitute a "group" (a "Group") for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any successor provision thereto, other than a Group whose
nominees constitute a majority of the board of directors of InfoCure
Corporation as of the Closing Date, together with any Affiliates or
"Related Persons" (as defined in Rule 13d-3 of the Securities and
Exchange Commission under the Exchange Act or any successor provision
thereto) thereof, shall beneficially own 50% or more of the aggregate
voting power of all classes of capital stock of InfoCure Corporation
entitled to vote generally in the election of directors of InfoCure
Corporation; or (iii) any Person or Group, other than any Person or
Group whose nominees constituted a majority of the board of directors
of InfoCure Corporation as of the Closing Date, together with any
Affiliates or Related Persons thereof, shall succeed in having
sufficient of its or their nominees elected to the board of directors
of InfoCure Corporation, such that such nominees, when added to any
existing director remaining on the board of directors of InfoCure
Corporation after such election who is an Affiliate or a Related Person
of such Group, shall constitute a majority of the board of directors of
InfoCure Corporation; or (iv) Lender shall cease at any time to have a
first Lien on all of the issued and outstanding Subsidiary Equity
Interests.
8.1.11 CHANGE IN MANAGEMENT. If for any reason each of Xxxxxxx X.
Xxxxxxx, Xxxxxxxxx X. Fine or Xxxxx X. Xxxxx shall have ceased to (i)
hold the office or offices maintained by such Persons as of the Closing
Date, or (ii) otherwise perform the corporate and day to day management
functions performed by such Persons as of the
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Closing Date, and Borrowers shall have failed to engage or otherwise
hire an Approved Replacement for at least one of them. Thereafter, at
least one Approved Replacement must continue to hold the office or
offices maintained by such Person as of the date of hire or engagement
or otherwise perform the corporate and day to day management functions
performed by such Person as of such date (and Borrowers acknowledge
that the cessation thereof shall constitute an Event of Default
hereunder, unless replaced by another Approved Replacement, and, in
such case, the terms hereof shall apply to such Person).
8.1.12 INVALIDITY OF SUBORDINATION AGREEMENTS AND TERMS. The
subordination provisions of any agreement, document or instrument
governing any Subordinated Indebtedness (including, without limitation,
the Thoroughbred Subordination Agreement) shall, for any reason at any
time, be revoked or invalidated, or otherwise cease to be in full force
and effect, or any Borrower or any Subsidiary of any Borrower shall
contest in any manner the validity or enforceability thereof, or
Borrowers' Obligations shall for any reason not have the priority
contemplated by this Loan Agreement or such subordination provisions.
8.2 ACCELERATION OF BORROWER'S OBLIGATIONS. Upon the occurrence of:
(a) any Event of Default described in clauses (ii), (iii), (iv) or
(v) of subsection 8.1.5(a) or in subsection 8.1.5(b), all Commitments
shall terminate automatically and all of Borrowers' Obligations at that
time outstanding automatically shall mature and become due and payable,
and
(b) any other Event of Default, Lender, at any time (unless such
Event of Default shall have been waived in writing or remedied), at its
option, without further notice or demand may terminate the Commitments
and/or declare all of Borrowers' Obligations due and payable, whereupon
Borrowers' Obligations immediately shall mature and become due and
payable,
all without presentment, demand, protest or notice (other than the declaration
referred to in clause (b) above), all of which hereby are waived.
8.3 REMEDIES ON DEFAULT. If an Event of Default shall have occurred,
Lender, at its option, may:
8.3.1 ENFORCEMENT OF SECURITY INTERESTS. Enforce or cause to be
enforced any of the rights or remedies accorded to Lender under the
Loan Documents.
8.3.2 OTHER REMEDIES. Enforce or cause to be enforced any of the
rights or remedies accorded to Lender at equity or law, by virtue of
statute or otherwise.
8.4 APPLICATION OF FUNDS. Any funds received by Lender pursuant to the
exercise of any rights accorded to Lender pursuant to, or by the operation of
any of the terms of, any of the Loan Documents, including, without limitation,
insurance proceeds, condemnation proceeds or
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proceeds from the sale of Collateral, shall be applied to Borrowers' Obligations
in the following order of priority:
8.4.1 EXPENSES. First, to the payment of all fees and expenses
actually incurred, including, without limitation, court costs, fees of
appraisers, title charges, costs of maintaining and preserving the
Collateral, costs of sale, and all other costs incurred by Lender, in
exercising any rights accorded to Lender pursuant to the Loan Documents
or by applicable law, including, without limitation, reasonable
attorney's fees.
8.4.2 BORROWERS' OBLIGATIONS. Next, to the payment of Borrowers'
Obligations in such manner as Lender shall determine.
8.4.3 SURPLUS. Any surplus, to the Person or Persons entitled
thereto.
8.5 PERFORMANCE OF BORROWERS' OBLIGATIONS. If any Borrower or any
Subsidiary of any Borrower fails to (i) maintain in force and pay for any
insurance policy or bond which such Person is required to provide pursuant to
any of the Loan Documents, (ii) keep the Collateral free from all Liens except
for Permitted Liens, (iii) pay when due all taxes, levies and assessments on or
in respect of the Collateral, except as otherwise permitted pursuant to the
terms hereof, (iv) make all payments and perform all acts on the part of such
Person to be paid or performed in the manner required by the terms hereof and by
the terms of the other Loan Documents with respect to any of the Collateral,
including, without limitation, all expenses of protecting, storing, warehousing,
insuring, handling and maintaining the Collateral, (v) keep fully and perform
promptly any other of the obligations of such Person hereunder or under any of
the other Loan Documents, and (vi) keep fully and perform promptly the
obligations of such Borrower with respect to any issue of Indebtedness for
Borrowed Money secured by a Permitted Prior Lien, then Lender may (but shall not
be required to) procure and pay for such insurance policy or bond, place such
Collateral in good repair and operating condition, pay, contest or settle such
Liens or taxes or any judgments based thereon or otherwise make good any other
aforesaid failure of such Person. Borrowers shall reimburse Lender immediately
upon demand for all reasonable sums paid or advanced on behalf of any Borrower
or any Subsidiary of any Borrower for any such purpose, together with reasonable
and/or necessary costs and expenses (including reasonable attorneys' fees) paid
or incurred by Lender in connection therewith and interest on all sums advanced
from the date of advancement until repaid to Lender at the Default Rate
applicable thereto. All such sums advanced by Lender, with interest thereon,
immediately upon advancement thereof, shall be deemed to be part of Borrowers'
Obligations and secured by the Security Interests.
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ARTICLE IX
CLOSING
The Closing Date shall be such date as the parties shall determine, and
the Closing shall take place on such date, provided all conditions for the
Closing as set forth in this Loan Agreement have been satisfied or otherwise
waived by Lender. The Closing shall take place at the office of Xxxxxx Xxxxxx &
Xxxxx or such other place as the parties hereto shall agree. Unless the Closing
occurs on or before August 30, 1999, this Loan Agreement shall terminate and be
of no further force or effect and, except for any obligations of Borrowers to
Lender pursuant to Article X, none of the parties hereto shall have any further
obligation to any other party.
ARTICLE X
EXPENSES AND INDEMNITY
10.1 ATTORNEYS' FEES AND OTHER FEES AND EXPENSES. Whether or not any
of the transactions contemplated by this Loan Agreement shall be consummated,
subject to the limitations set forth in subsection 10.1.1, Borrowers agree to
pay to Lender on demand all expenses incurred by Lender in connection with the
transactions contemplated hereby and in connection with any amendments,
modifications or waivers (whether or not the same become effective) under or in
respect of any of the Loan Documents, including, without limitation:
10.1.1 FEES AND EXPENSES FOR PREPARATION OF LOAN DOCUMENTS. All
expenses, disbursements (including, without limitation, charges for
required mortgagee's title insurance, lien searches, reproduction of
documents, long distance telephone calls and overnight express
carriers) and reasonable attorneys' fees, actually incurred by Lender
in connection with the (i) preparation and negotiation of the Loan
Documents or any amendments, modifications or waivers thereto or any
documents delivered pursuant thereto and (ii) administration of the
Loans.
10.1.2 FEES AND EXPENSES IN ENFORCEMENT OF RIGHTS OR DEFENSE OF
LOAN DOCUMENTS. Any expenses or other costs, including reasonable
attorneys' fees and expert witness fees, actually incurred by Lender in
connection with the enforcement or collection against any Borrower or
any Subsidiary of any Borrower of any provision of any of the Loan
Documents, and in connection with or arising out of any litigation,
investigation or proceeding instituted by any Governmental Body or any
other Person with respect to any of the Loan Documents, whether or not
suit is instituted, including, but not limited to, such costs or
expenses arising from the enforcement or collection against any
Borrower or any Subsidiary of any Borrower of any provision of any of
the Loan Documents in workout or restructuring any state or federal
bankruptcy or reorganization proceeding.
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10.2 INDEMNITY. Borrowers agree to indemnify and save Lender harmless
of and from the following:
10.2.1 BROKERAGE FEES. The fees, if any, of brokers and finders
engaged by Borrower.
10.2.2 GENERAL. Any loss, cost, liability, damage or expense
(including reasonable attorneys' fees and expenses) incurred by Lender
in investigating, preparing for, defending against, providing evidence,
producing documents or taking other action in respect of any commenced
or threatened litigation, administrative proceeding, suit instituted by
any Person or investigation under any law, including any federal
securities law, the Bankruptcy Code, any relevant state corporate
statute or any other securities law, bankruptcy law or law affecting
creditors generally of any jurisdiction, or any regulation pertaining
to any of the foregoing, or at common law or otherwise, relating,
directly or indirectly, to the transactions contemplated by or referred
to in, or any other matter related to, the Loan Documents.
10.2.3 OPERATION OF COLLATERAL; JOINT VENTURERS. Any loss, cost,
liability, damage or expense (including reasonable attorneys' fees and
expenses) incurred in connection with the ownership, operation or
maintenance of the Collateral, the construction of Lender and any
Borrower or any Subsidiary of any Borrower as having the relationship
of joint venturers or partners or the determination that Lender has
acted as agent for any Borrower or any Subsidiary of any Borrower.
10.2.4 ENVIRONMENTAL INDEMNITY. Any and all claims, losses,
damages, response costs, clean-up costs and expenses suffered and/or
incurred at any time by Lender arising out of or in any way relating to
the existence at any time of any Hazardous Materials in, on, under, at,
transported to or from, or used in the construction and/or renovation
of, any of the Real Estate or Leasehold Property, or otherwise with
respect to any Environmental Law, and/or the failure of any Borrower or
any Subsidiary of any Borrower to perform its obligations and covenants
hereunder with respect to environmental matters, including, but not
limited to: (i) claims of any Persons for damages, penalties, response
costs, clean-up costs, injunctive or other relief, (ii) costs of
removal and restoration, including fees of attorneys and experts, and
costs of reporting the existence of Hazardous Materials to any
Governmental Body, and (iii) any expenses or obligations, including
attorneys' fees and expert witness fees, incurred at, before and after
any trial or other proceeding before any Governmental Body or appeal
therefrom whether or not taxable as costs, including, without
limitation, witness fees, deposition costs, copying and telephone
charges and other expenses, all of which shall be paid by Borrowers to
Lender.
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ARTICLE XI
TAXES, YIELD PROTECTION AND ILLEGALITY
11.1 TAXES. (a) Any and all payments by Borrowers to Lender under this
Loan Agreement shall be made free and clear of, and without deduction or
withholding for, any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of Lender, such taxes (including income taxes or
franchise taxes) as are imposed on or measured by Lender's net income by the
jurisdiction under the laws of which such Lender, as the case may be, is
organized or maintains a lending office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
(b) In addition, Borrowers shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Loan Agreement
or any other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Borrowers shall indemnify and hold harmless Lender for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 11.1) paid by Lender and
any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within thirty (30) days from the date Lender makes written demand
therefor.
(d) If any Borrower shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to Lender,
then:
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 10.1) Lender receives an
amount equal to the sum it would have received had no such deductions
been made;
(ii) Borrowers shall make such deductions; and
(iii) Borrowers shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law.
(e) Within thirty (30) days after the date of any payment by Borrowers
of Taxes or Other Taxes, Borrowers shall furnish to Lender the original or a
certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to Lender.
(f) If Borrowers are required to pay additional amounts to Lender or
the Agent pursuant to subsection 11.1(d), then Lender shall use its reasonable
best efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its lending office so as to eliminate any such
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additional payment by Borrowers which may thereafter accrue if such change in
the judgment of Lender is not otherwise disadvantageous to such Lender.
11.2 ILLEGALITY. (a) If after the date hereof Lender shall determine
that the introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or administration thereof, has made
it unlawful, or that any central bank or other Governmental Body has asserted
that it is unlawful, for Lender or its lending office to make LIBOR Loans, then,
on notice thereof by Lender to Borrowers, the obligation of Lender to make LIBOR
Rate Loans shall be suspended until Lender shall have notified Borrowers that
the circumstances giving rise to such determination no longer exists.
(b) Subject to clause (c) below, if Lender shall determine that it is
unlawful to maintain any LIBOR Rate Loan, Borrowers shall prepay in full all
LIBOR Rate Loans of Lender then outstanding, together with interest accrued
thereon, either on the last day of the Interest Period thereof if Lender may
lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately,
if Lender may not lawfully continue to maintain such LIBOR Rate Loans, together
with any amounts required to be paid in connection therewith pursuant to Section
11.4.
(c) If the obligation of Lender to make or maintain LIBOR Rate Loans
has been terminated, Borrowers may elect, by giving notice to Lender, that all
Loans which would otherwise be made shall be instead Base Rate Loans.
(d) Before giving any notice to Lender pursuant to this Section 11.2,
Lender shall designate a different lending office with respect to the LIBOR Rate
Loans if such designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of Lender, be illegal or otherwise
disadvantageous to Lender.
11.3 INCREASED COSTS AND REDUCTION OF RETURN. (a) If Lender shall
determine that, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Body (whether
or not having the force of law) made, in the case of clause (i) or (ii)
subsequent to the date hereof, there shall be any increase in the cost to Lender
of agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then
Borrowers shall be liable for, and shall from time to time, within thirty (30)
days of demand therefor by Lender, pay to Lender additional amounts as are
sufficient to compensate Lender for such increased costs.
(b) If Lender shall have determined that:
(i) the introduction of any Capital Adequacy Regulation;
(ii) any change in any Capital Adequacy Regulation;
(iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Body charged with the interpretation or administration thereof; or
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(iv) compliance by Lender (or its lending office) or any
corporation controlling Lender, with any Capital Adequacy Regulation;
affects the amount of capital required or expected to be maintained by Lender or
any corporation controlling Lender and (taking into consideration Lender's or
such corporation's policies with respect to capital adequacy and Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment(s), loans, credits or obligations
under this Agreement, then, within thirty (30) days of demand of Lender,
Borrowers shall upon demand pay to Lender, from time to time as specified by
Lender, additional amounts sufficient to compensate Lender for such increase.
11.4 FUNDING LOSSES. Borrowers agree to reimburse Lender and to hold
Lender harmless from any loss or expense which Lender may sustain or incur as a
consequence of:
(a) the failure of Borrowers to make any payment or mandatory
prepayment of principal of any LIBOR Rate Loan (including payments made after
any acceleration thereof);
(b) the failure of Borrowers to borrow, continue or convert any Loan
after Borrowers have given (or is deemed to have given) a Notice of Borrowing or
a Notice of Conversion/ Continuation;
(c) the failure of Borrowers to make any prepayment after Borrowers
have given a notice in accordance with Section 2.8.1;
(d) the prepayment (including pursuant to subsection 2.8.1 and
subsection 2.8.2) of a LIBOR Rate Loan on a day which is not the last day of the
Interest Period with respect thereto; or
(e) the conversion pursuant to Section 2.5 of any LIBOR Rate Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its LIBOR Rate Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. Solely
for purposes of calculating amounts payable by Borrowers to Lender under this
Section 11.4 and under subsection 11.3(a): each LIBOR Rate Loan made by Lender
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in determining the
interest rate for such LIBOR Rate Loan by a matching deposit or other borrowing
in the interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such LIBOR Rate Loan is in fact so funded.
11.5 INABILITY TO DETERMINE RATES. If Lender shall have determined in
good faith that for any reason adequate and reasonable means do not exist for
ascertaining the LIBOR for any requested Interest Period with respect to a
proposed LIBOR Rate Loan or that the LIBOR applicable pursuant to subsection
2.3.1 for any requested Interest Period with respect to a proposed LIBOR Rate
Loan does not adequately and fairly reflect the cost to Lender of funding
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such Loan, Lender will forthwith give notice of such determination to Borrowers.
Thereafter, the obligation of Lender to make or maintain LIBOR Rate Loans
hereunder shall be suspended until Lender revokes such notice in writing. Upon
receipt of such notice, Borrowers may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If Borrowers do not revoke such
notice, Lender shall make, convert or continue the Loans, as proposed by
Borrowers, in the amount specified in the applicable notice submitted by
Borrowers, but such Loans shall be made, converted or continued as Base Rate
Loans.
11.6 RESERVES ON LIBOR RATE LOANS. Borrowers shall pay to Lender, as
long as Lender shall be required under regulations of the Federal Reserve Board
to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each LIBOR
Rate Loan equal to actual costs of such reserves allocated to such Loan by
Lender (as determined by Lender in good faith, which determination shall be
conclusive absent demonstrative error), payable on each date on which interest
is payable on such Loan provided Borrowers shall have received at least fifteen
(15) days' prior written notice of such additional interest from Lender. If
Lender fails to give notice fifteen (15) days prior to the relevant Interest
Payment Date, such additional interest shall be payable fifteen (15) days from
receipt of such notice.
11.7 CERTIFICATES OF LENDERS. If Lender claims reimbursement or
compensation pursuant to this Article XI, Lender shall deliver to Borrowers a
certificate setting forth in reasonable detail the amount payable to Lender
hereunder and such certificate shall be conclusive and binding on Borrowers in
the absence of manifest error.
11.8 SURVIVAL. The agreements and obligations of Borrowers in this
Article XI shall survive the payment of all other Borrowers' Obligations.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. All notices and communications under this Loan Agreement
shall be in writing and shall be (i) delivered in person, (ii) sent by telecopy,
or (iii) mailed, postage prepaid, either by registered or certified mail, return
receipt requested, or by overnight express carrier, addressed in each case as
follows:
To Borrowers: c/o InfoCure Corporation
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
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1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
To FINOVA: FINOVA Capital Corporation
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx, Vice President
or Portfolio Manager
Telecopy No.: (000) 000-0000
Copy to: FINOVA Capital Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President, Law
Telecopy No.: (000) 000-0000
Copy to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to any other address or telecopy number, as to any of the parties hereto, as
such party shall designate in a written notice to the other parties hereto. All
notices sent pursuant to the terms of this Section 12.1 shall be deemed received
(i) if personally delivered, then on the Business Day of delivery, (ii) if sent
by telecopy before 2:00 p.m. Phoenix time, on the day sent if a Business Day or
if such day is not a Business Day or if sent after 2:00 p.m. Phoenix time, then
on the next Business Day, (iii) if sent by overnight, express carrier, on the
next Business Day immediately following the day sent, or (iv) if sent by
registered or certified mail, on the earlier of the fifth (5th) Business Day
following the day sent or when actually received. Any notice by telecopy shall
be followed by delivery on the next Business Day by overnight, express carrier
or by hand.
12.2 SURVIVAL OF LOAN AGREEMENT; INDEMNITIES. All covenants,
agreements, representations and warranties made in this Loan Agreement and in
the certificates delivered pursuant hereto shall survive the making by Lender of
the Loans and the execution and delivery to Lender of the Notes and of all other
Loan Documents, and shall continue in full force and effect so long as any of
Borrowers' Obligations remain outstanding, unperformed or unpaid and the
Commitments have not been terminated. Notwithstanding the repayment of all
amounts due under the Loan Documents, the cancellation of the Notes and the
release and/or cancellation of any and all of the Loan Documents or the
foreclosure of any Liens on the Collateral or the termination of the
Commitments, the obligations of Borrowers to indemnify Lender with respect to
the expenses, damages, losses, costs and liabilities described in Section 10.2
shall survive until
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all applicable statute of limitations periods with respect to actions which may
be brought against Lender have run.
12.3 FURTHER ASSURANCE. From time to time, Borrowers shall execute and
deliver to Lender such additional documents as Lender reasonably may require to
carry out the purposes of the Loan Documents and to protect rights of Lender
thereunder, including, without limitation, using its best efforts in the event
any Collateral is to be sold to secure the approval by any Governmental Body of
any application required by such Governmental Body in connection with such sale,
and not take any action inconsistent with such sale or the purposes of the Loan
Documents.
12.4 TAXES AND FEES. Should any tax (other than taxes based upon the
net income of any Lender), recording or filing fees become payable in respect of
any of the Loan Documents, or any amendment, modification or supplement thereof,
Borrowers agree to pay the same on demand, together with any interest or
penalties thereon attributable to any delay by Borrowers in meeting any Lender
demand, and agrees to hold Lender harmless with respect thereto.
12.5 SEVERABILITY. In the event that any provision of this Loan
Agreement is deemed to be invalid by reason of the operation of any law, or by
reason of the interpretation placed thereon by any court or Governmental Body,
as applicable, this Loan Agreement shall be construed as not containing such
provision and the invalidity of such provision shall not affect the validity of
any other provisions hereof, and any and all other provisions hereof which
otherwise are lawful and valid shall remain in full force and effect.
12.6 WAIVER. No delay on the part of Lender in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, and no single or
partial exercise of any right, power or privilege hereunder shall preclude other
or further exercise thereof, or be deemed to establish a custom or course of
dealing or performance between the parties hereto, or preclude the exercise of
any other right, power or privilege.
12.7 MODIFICATION OF LOAN DOCUMENTS. No modification or waiver of any
provision of any of the Loan Documents shall be effective unless the same shall
be in writing and signed by Borrowers and Lender, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Borrower in any case shall entitle
such Borrower to any other or further notice or demand in the same, similar or
other circumstances.
12.8 CAPTIONS. The headings in this Loan Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
12.9 SUCCESSORS AND ASSIGNS. This Loan Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
12.10 REMEDIES CUMULATIVE. All rights and remedies of the parties
hereto, any other Loan Documents or otherwise, shall be cumulative and
non-exclusive, and may be exercised singularly or concurrently. Lender shall not
be required to prosecute collection, enforcement or
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other remedies against any Borrower before proceeding against any other Borrower
or any Subsidiary of any Borrower or to enforce or resort to any security,
liens, collateral or other rights of Lender. One or more successive actions may
be brought against any Borrower and/or any Subsidiary of any Borrower, either in
the same action or in separate actions, as often as Lender deems advisable,
until all of Borrowers' Obligations are paid and performed in full and the
Commitments shall have terminated.
12.11 ENTIRE AGREEMENT; CONFLICT. This Loan Agreement and the other
Loan Documents executed prior or pursuant hereto constitute the entire agreement
among the parties hereto with respect to the transactions contemplated hereby or
thereby and supersede any prior agreements, whether written or oral, relating to
the subject matter hereof. In the event of a conflict between the terms and
conditions set forth herein and the terms and conditions set forth in any other
Loan Instrument, the terms and conditions set forth herein shall govern.
12.12 APPLICABLE LAW. THE LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ARIZONA.
12.13 JURISDICTION AND VENUE. BORROWERS HEREBY AGREE THAT ALL ACTIONS
OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF
THE LOAN DOCUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT OF MARICOPA COUNTY,
OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA OR, IF LENDER
INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING COURTS, ANY COURT IN WHICH
LENDER SHALL INITIATE SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION.
EACH BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH
COURTS IN THE STATE OF ARIZONA. EACH BORROWER WAIVES ANY CLAIM THAT MARICOPA
COUNTY, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN
IMPROPER FORUM BASED ON LACK OF VENUE. THE EXCLUSIVE CHOICE OF FORUM FOR
BORROWERS SET FORTH IN THIS SECTION 12.13 SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT BY OR LENDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM TO THE
EXTENT SUCH FORUM HAS JURISDICTION OR THE TAKING BY LENDER OF ANY ACTION TO
ENFORCE THE SAME IN ANY OTHER JURISDICTION PERMITTED BY LAW, AND EACH BORROWER
HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
12.14 WAIVER OF RIGHT TO JURY TRIAL. LENDER AND BORROWERS ACKNOWLEDGE
AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE LOAN DOCUMENTS
OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT
ARISING OUT OF ANY SUCH CONTROVERSY WILL BE
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TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
12.15 TIME OF ESSENCE. TIME IS OF THE ESSENCE FOR THE PERFORMANCE BY
BORROWERS OF THE OBLIGATIONS SET FORTH IN THIS LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
12.16 ESTOPPEL CERTIFICATE. Within fifteen (15) days after Lender
requests Borrowers to do so, Borrowers will execute and deliver to Lender a
statement certifying (i) that this Loan Agreement is in full force and effect
and has not been modified except as described in such statement, (ii) the date
to which interest and principal on the Notes have been paid, (iii) the Principal
Balance, (iv) whether or not to its knowledge an Incipient Default or Event of
Default has occurred and is continuing, and, if so, specifying in reasonable
detail each such Incipient Default or Event of Default of which they have
knowledge, (v) whether to its knowledge Borrowers have any defense, setoff or
counterclaim to the payment of the Notes in accordance with their terms, and, if
so, specifying each defense, setoff or counterclaim of which they have knowledge
in reasonable detail (including where applicable the amount thereof), and (vi)
as to any other matter reasonably requested by Lender.
12.17 CONSEQUENTIAL DAMAGES. Neither Lender nor any agent or attorney
of Lender shall be liable to Borrowers for consequential damages arising from
any breach of contract, tort or other wrong relating to the establishment,
administration or collection of the Borrowers' Obligations.
12.18 COUNTERPARTS. This Loan Agreement may be executed by the parties
hereto in several counterparts and each such counterpart shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same agreement.
12.19 NO FIDUCIARY RELATIONSHIP. No provision in this Loan Agreement
or in any other Loan Document, and no course of dealing among the parties
hereto, shall be deemed to create any fiduciary duty by Lender to Borrowers or
their Subsidiaries.
12.20 NOTICE OF BREACH BY LENDER. Borrowers agree to give Lender
written notice of (i) any action or inaction by Lender or any agent or attorney
of Lender in connection with the Loan Documents that may be actionable against
Lender or any agent or attorney of Lender or (ii) any defense to the payment of
Borrowers' Obligations for any reason, including, but not limited to, commission
of a tort or violation of any contractual duty implied by law.
12.21 JOINT AND SEVERAL OBLIGATIONS. The obligations and liabilities
of Borrowers under this Loan Agreement, all other Loan Documents and any and all
other agreements, documents and instruments executed from time to time in
connection herewith or therewith constitute the joint and several obligations of
Borrowers.
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IN WITNESS WHEREOF, this Loan Agreement has been executed and delivered
by each of the parties hereto by a duly authorized officer of each such party on
the date first set forth above.
INFOCURE CORPORATION, a Delaware
corporation, INFOCURE SYSTEMS, INC.,
a Georgia corporation, and
THOROUGHBRED ACQUISITION, INC., a
Georgia corporation
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------------
A duly authorized officer of each Borrower
XXXXX: InfoCure Corporation: 00-0000000
InfoCure Systems: 00-0000000
Thoroughbred: 00-0000000
Wire Transfer Instructions:
x/x XxxxXxxx Xxxxxxxxxxx
XxxxxxxXxxx, Xxxxxxx, Xxxxxxx
Account No. 3261311445
ABA No. 000000000
FINOVA CAPITAL CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------------------
Vice President
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