CONVERTIBLE SECURED NOTE
PURCHASE AGREEMENT
BY AND AMONG
WESTMINSTER CAPITAL, INC.,
PHYSICIAN ADVANTAGE LLC,
XXXXXXX X. XXXXXX
AND
XXXXXXX X.X. XXXXXXXXX
NOVEMBER 20, 1997
TABLE OF CONTENTS
Page
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SECTION 1 PURCHASE OF THE NOTE. . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Purchase from Seller. . . . . . . . . . . . . . . . . . . . 2
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2 REPRESENTATIONS AND WARRANTIES OF INVESTOR. . . . . . . . . . . . 2
2.1 Due Incorporation or Formation; Authorization of
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Investigation . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER AND
THE PHYSICIANS. . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Due Authorization and Execution . . . . . . . . . . . . . . 4
3.2 Organization. . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Capital Stock; Units. . . . . . . . . . . . . . . . . . . . 5
3.4 Financial Statements. . . . . . . . . . . . . . . . . . . . 5
3.5 No Undisclosed Liabilities. . . . . . . . . . . . . . . . . 6
3.6 Absence of Certain Changes. . . . . . . . . . . . . . . . . 6
3.7 Contracts and Commitments . . . . . . . . . . . . . . . . . 6
3.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.9 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 7
3.10 Consents; No Conflicts. . . . . . . . . . . . . . . . . . . 7
3.11 Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.12 Accounts Receivable . . . . . . . . . . . . . . . . . . . . 8
3.13 Compliance with Law . . . . . . . . . . . . . . . . . . . . 8
3.14 Operation of the Business; Title to Assets. . . . . . . . . 8
3.15 Seller's Units. . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.1 Indemnification by Seller, Xxxxxx and Xxxxxxxxx . . . . . . 9
4.2 Indemnification by Investor . . . . . . . . . . . . . . . .10
4.3 General Provisions. . . . . . . . . . . . . . . . . . . . .11
SECTION 5 CONDUCT OF BUSINESS
PENDING REPAYMENT OF NOTE . . . . . . . . . . . . . . . . . . . .12
5.1 Ordinary Course . . . . . . . . . . . . . . . . . . . . . .12
5.2 No Acquisitions . . . . . . . . . . . . . . . . . . . . . .12
5.3 No Dispositions . . . . . . . . . . . . . . . . . . . . . .12
i
TABLE OF CONTENTS (Continued)
Page
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5.4 Employees . . . . . . . . . . . . . . . . . . . . . . . . .12
5.5 Mortgages, Liens and Other Encumbrances . . . . . . . . . .12
5.6 Material Agreements . . . . . . . . . . . . . . . . . . . .12
5.7 Capital Expenditures. . . . . . . . . . . . . . . . . . . .12
5.8 Limitation on Restricted Payments . . . . . . . . . . . . .12
5.9 Limitation on Incurrence of Indebtedness. . . . . . . . . .13
5.10 Board of Directors. . . . . . . . . . . . . . . . . . . . .13
5.11 Physician Advantage LLC . . . . . . . . . . . . . . . . . .13
5.12 Maintenance of Property, Insurance. . . . . . . . . . . . .13
5.13 Corporate Franchise . . . . . . . . . . . . . . . . . . . .13
5.14 Compliance With Law . . . . . . . . . . . . . . . . . . . .13
5.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .13
5.16 Transactions With Affiliates. . . . . . . . . . . . . . . .14
5.17 Restriction On Fundamental Changes. . . . . . . . . . . . .14
5.18 Agreements Affecting Units. . . . . . . . . . . . . . . . .14
SECTION 6 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . .14
6.1 Survival. . . . . . . . . . . . . . . . . . . . . . . . . .14
6.2 Successors and Assigns. . . . . . . . . . . . . . . . . . .14
6.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . .14
6.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . .15
6.5 Titles and Subtitles. . . . . . . . . . . . . . . . . . . .15
6.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .15
6.7 Amendments and Waivers. . . . . . . . . . . . . . . . . . .16
6.8 Attorney's Fees . . . . . . . . . . . . . . . . . . . . . .16
6.9 Entire Agreement. . . . . . . . . . . . . . . . . . . . . .16
ii
SCHEDULES
Schedule 3.4 - Financial Statements
Schedule 3.7 - Contracts and Commitments
Schedule 3.8 - Taxes
Schedule 3.10 - Consents, No Conflicts
Schedule 3.11 - Assets
EXHIBIT
Exhibit A - Convertible Secured Note
iii
CONVERTIBLE SECURED NOTE PURCHASE AGREEMENT
This CONVERTIBLE SECURED NOTE PURCHASE AGREEMENT (this "Agreement") is
made and entered into this 20th day of November, 1997, by and among Physician
Advantage LLC, a Delaware limited liability company ("Seller"), Xxxxxxx X.
Xxxxxx ("Xxxxxx") and Xxxxxxx X.X. Xxxxxxxxx (Xxxxxxxxx, and collectively with
Xxxxxx, the "Physicians") and Westminster Capital, Inc., a Delaware corporation
("Investor").
The parties hereby agree as follows:
SECTION 1
PURCHASE OF THE NOTE
1.1 PURCHASE FROM SELLER. Subject to the terms and conditions of
this Agreement, Investor agrees to purchase from Seller, and Seller agrees to
sell to Investor, that certain Convertible Secured Note of Seller (the "Note")
attached as EXHIBIT A hereto.
1.2 CLOSING. The purchase and sale of the Note (the "Closing") shall
take place at the offices of Investor, Suite M-10, 9665 Wilshire Boulevard,
Beverly Hills, California on November 20, 1997. At the Closing,
(a) Seller shall deliver to Investor the Note (duly endorsed to
Investor), along with an addition to the Schedule of Loans attached thereto that
shows the First Loan; and
(b) Investor will make an initial Advance to Seller in the
amount of $ 450,000 (the "Initial Advance").
SECTION 2
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor hereby represents and warrants to Seller that:
2.1 DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENT.
Investor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to own, operate and lease the properties of its business and to
carry on its business as now conducted. Investor is duly licensed or qualified
to do business and is in good standing in each of the jurisdictions in
which the failure to be so licensed or qualified would have a material adverse
effect on its ability to perform its obligations hereunder and under the Note.
Investor has the corporate power and authority necessary to execute and deliver
this Agreement and to perform its obligations hereunder, and the execution,
delivery and performance of this Agreement has been duly authorized by all
necessary corporate action. This Agreement has been duly and validly executed
and delivered by Investor, and constitutes the legal, valid, and binding
obligation of Investor, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization and other similar laws of applicability relating to creditors
rights and general equity principles.
2.2 NO CONFLICT.
(a) Neither the execution, delivery and performance of this
Agreement nor the consummation by Investor of the transactions contemplated
hereby, will (y) violate any provision of the Certificate of Incorporation or
Bylaws of Investor; or (z) violate any judgment, order, decree, statute, law,
ordinance, rule of regulation applicable to Investor or its properties or
assets, other than such violations which individually or in the aggregate would
not have a material adverse effect on the ability of Investor to consummate the
transactions contemplated by this Agreement and under the Note.
(b) No authorization, consent or approval of, or filing with,
any public body or governmental authority is necessary for the consummation
by Investor of the transactions contemplated by this Agreement.
2.3 LITIGATION.
(a) There are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Investor, threatened against or affecting
Investor or any of its properties, assets, or businesses in any court or before
or by any governmental department, board, agency, or instrumentality, domestic
or foreign, or any arbitrator which could, if adversely determined (or, in the
case of an investigation could lead to any action, suit, or proceeding, which if
adversely determined could) reasonably be expected to materially impair
Investor's ability to perform its obligations under this Agreement; and Investor
has not received any currently effective notice of any default, and Investor is
not in default, under any applicable order, writ, injunction, decree, permit,
determination, or award of any court, any governmental department, board,
agency, or instrumentality, domestic or foreign, or any arbitrator which could
reasonably be expected to materially impair Investor's ability to perform its
obligations under this Agreement.
2.4 INVESTIGATION. Investor is acquiring the Note based upon its own
investigation, and the exercise by Investor of its rights and the performance of
its obligations under this Agreement will be based upon its own investigation,
analysis and expertise, except with respect to the information contained in
SECTION 2 and SECTION 3 hereof. Investor's
3.
acquisition of the Note is being made or was made for its own account for
investment, and not with a view to the sale of distribution thereof. Investor
is a sophisticated investor possessing an expertise in analyzing the benefits
and risks associated with acquiring investments that are similar to the
acquisition of the Note
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE PHYSICIANS
Seller and each of the Physicians hereby represents and warrants to
Investor, jointly and severally, as follows:
3.1 DUE AUTHORIZATION AND EXECUTION. Seller has the power and
authority necessary to execute and deliver this Agreement and the Note and to
perform its obligations hereunder and thereunder. Seller has undertaken all
actions necessary to authorize this Agreement and the Note and the performance
of its obligations hereunder and thereunder. This Agreement and the Note have
been duly and validly executed and delivered by Seller, and constitute the
legal, valid and binding obligations of Seller, enforceable against it in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and other similar laws of applicability
relating to creditors rights and to general equity principles.
3.2 ORGANIZATION. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own, operate and lease the
properties of its business and to carry on its business as now conducted.
Seller is duly licensed or qualified to do business and is in good standing in
each of the jurisdictions in which the failure to be so licensed or qualified
would have a material adverse effect, individually or in the aggregate, on the
condition (financial or otherwise), results of operations, prospects,
properties, assets or business of Seller (a "Material Adverse Effect"). True
and complete copies of the Certificate of Formation and Operating Agreement of
Seller have been delivered to Investor. Such Certificate of Formation and
Operating Agreement are in full force and effect. Seller is not in violation
of any provision of its Certificate of Formation and Operating Agreement. Other
than Access Managed Care, Inc. ("AMC") there are no subsidiaries, direct or
indirect, of Seller. AMC is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and has all requisite
corporate power and authority to own, operate and lease the properties of its
business and to carry on it business as now conducted. AMC is duly licensed or
qualified to do business and is in good standing in each of the jurisdictions in
which the failure to be so licensed or qualified would have Material Adverse
Effect, individually or in the aggregate, on the condition (financial or
otherwise), results of operations, prospects, properties, assets or business of
AMC. True and complete copies of the Certificate of Incorporation and the
Bylaws of AMC have been delivered to Investor. Such
4.
Certificate of Incorporation and Bylaws are in full force and effect. AMC is
not in violation of any provision of its Certificate of Incorporation or Bylaws.
There are no subsidiaries, direct or indirect, of AMC.
3.3 CAPITAL STOCK; UNITS.
(a) The authorized Units (as defined in the Operating
Agreement) of Seller consists in its entirety of one-thousand one hundred
eleven (1,111) Units, of which, as of the date hereof, four hundred fifty
(450) are issued and outstanding and none are held in Seller's treasury.
Seller's outstanding Units were duly authorized and validly issued and are
fully paid and non-assessable. Seller's Units were issued in compliance with
all applicable federal and state securities laws and none of Seller's
outstanding Units were issued in violation of the preemptive or other similar
rights of any securityholder of Seller. There is not outstanding any
subscription, option, warrant, call, right or other agreement or commitment
obligating Seller to issue, sell, deliver or transfer (including any right of
conversion or exchange under any outstanding security or other instrument)
any interest of Seller to any party.
(b) The authorized capital stock of AMC consists in its entirety
of 1,000,000 shares of Common Stock, $.001 par value per share, of which, as of
the date hereof, 10,000 are issued and outstanding and 990,000 are held in AMC's
treasury. The shares of AMC Stock contributed by Xxxxxx and Xxxxxxxxx to Seller
were duly authorized and validly issued and are fully paid and non-assessable.
The AMC stock contributed by Xxxxxx and Xxxxxxxxx to Seller constitutes all of
the issued and outstanding capital stock of AMC. The AMC stock was issued in
compliance with all applicable federal and state securities laws and none of the
outstanding shares of AMC stock was issued in violation of the preemptive or
other similar rights of any securityholder of AMC. The stock powers or other
instruments of transfer and conveyance executed and delivered by Xxxxxxxxx and
Xxxxxx to Seller were valid and binding obligations of Xxxxxx and Xxxxxxxxx,
enforceable in accordance with their terms, and effectively vest in Seller good
and marketable title to all of the AMC stock, free and clear of any and all
claims, liens, pledges, options, charges, security interests, restrictions,
encumbrances or other rights of third parties of any kind or nature whatsoever.
There is not outstanding any subscription, option, warrant, call, right or other
agreement or commitment obligating AMC to issue, sell, deliver or transfer
(including any right of conversion or exchange under any outstanding security or
other instrument) any interest of AMC to any party.
3.4 FINANCIAL STATEMENTS. The balance sheet of Seller as of October
31, 1997 (the "Balance Sheet Date"), and the related statement of income for the
ten (10) month period ended October 31, 1997, correct and complete copies of all
of which are attached hereto as SCHEDULE 3.4 present fairly, in all material
respects, the financial position and results of operations of Seller (including
AMC) as of the date and for the periods indicated, and have
5.
been prepared in accordance with generally accepted accounting principles
consistently applied.
3.5 NO UNDISCLOSED LIABILITIES. Since the Balance Sheet Date, Seller
has not assumed or incurred any liabilities or obligations except liabilities or
obligations assumed or incurred in the ordinary course of business.
3.6 ABSENCE OF CERTAIN CHANGES. Since the Balance Sheet Date,
there has not occurred: (i) any material adverse change in the condition
(financial or otherwise), results of operations, properties, assets or
business of Seller; (ii) any damage, destruction or loss, which is not
adequately covered by insurance, which could have a Material Adverse Effect;
(iii) any increase in compensation payable or to become payable by Xxxxxx or
Xxxxxxxxx to the employees of Seller, other than increases made in the
ordinary course of business; (iv) any sale or other disposition of any assets
of Seller, other than sales or dispositions made in the ordinary course of
business; (v) any creation of a pledge, security interest, encumbrance, lien
or charge of any kind upon any properties or assets of Seller, except in the
ordinary course of business; (vi) any material change in the method of
allocation of expenses, liabilities or income between Seller and Xxxxxx or
Xxxxxxxxx or any other material change in the method of accounting or
accounting practice; (vii) any material write-offs or write-downs of accounts
receivable of Seller other than in the ordinary course of business; (viii)
any discharge or payment of any material obligation or liability of Seller
other than in the ordinary course of business; (ix) any material borrowings
of Seller; (x) any capital expenditures or commitments for which Seller is
liable for any addition to property, plant or equipment exceeding $5,000;
(xi) any material cancellation or waiver of any debts or any claims of Seller
except in the ordinary course of business; (xii) any material increase in
accounts payable of Seller; or (xiii) any agreement to take any action
described in this SECTION 3.6.
3.7 CONTRACTS AND COMMITMENTS. SCHEDULE 3.7 hereto sets forth all
material contracts, commitments, leases, permits and other instruments binding
upon Seller, Xxxxxx, Xxxxxxxxx or AMC or that otherwise relate to Seller
(including without limitation AMC's contracts with Xxxxx, NHMA and PHCA), other
than purchase and sales orders entered into in the ordinary course of business.
For purposes of this SECTION 3.7, "material" shall mean any contract, agreement,
commitment, arrangement or understanding involving payment or receipt by Seller,
Xxxxxx, Xxxxxxxxx or AMC of an amount greater than or equal to $5,000 or having
a duration or more than one (1) year, or otherwise material to Seller. Prior to
the date of this Agreement Seller delivered to Investor true and complete copies
of all items listed in SCHEDULE 3.7 hereto. Except as disclosed in SCHEDULE 3.7
hereto, all such contracts, commitments, leases, permits and instruments are in
full force and effect and, to the best of Seller's knowledge, are valid, binding
and enforceable in all material respects in accordance with their respective
provisions, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles, and neither
Seller, Xxxxxx, Xxxxxxxxx or AMC, nor to the best of Seller's knowledge, any
other party, is in default, nor has there
6.
occurred an event or condition which, with the passage of time or giving of
notice (or both), would constitute a default with respect to the payment or
performance of any obligation thereunder, and no claim of such a default has
been asserted and there is no reasonable basis upon which such a claim could
validly be made.
3.8 TAXES. Except as set forth on SCHEDULE 3.8 hereto, Xxxxxx and
Xxxxxxxxx have filed when due all federal, state, local and foreign tax returns
required by applicable law to be filed with respect to the operations and assets
of Seller and AMC, and have paid all amounts set forth thereon; there is no
action, suit, proceeding, investigation, audit or claim now pending against, or
with respect to Seller or AMC, in respect of any tax of assessment, nor is any
claim for additional tax or assessment asserted or, to Xxxxxx'x or Xxxxxxxxx'x
knowledge, threatened by any such authority; and all tax liabilities with
respect to Seller and AMC (including, without limitation, federal, state, local,
foreign, and other income, franchise, capital stock, employee's income
withholding, foreign pension withholding, social security, unemployment,
disability, payroll, real property, personal property, sales, use, transfer, or
other tax, plus any interest, penalties or other charges in respect of the
foregoing) have been or will be paid for all periods up to and including the
Balance Sheet Date.
3.9 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to Seller's knowledge, threatened against any of
Burnam, Rosenthal, the Business or AMC, at law or in equity, before any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality which would have a Material Adverse Effect or have a
material adverse effect on the ability of either Seller, Xxxxxx or Xxxxxxxxx to
consummate the transactions contemplated by this Agreement; nor is there any
judgment, decree, injunction, rule or order of any public body or governmental
authority outstanding against Seller, Xxxxxx, Xxxxxxxxx or AMC having any such
effect.
3.10 CONSENTS; NO CONFLICTS. Except as set forth on SCHEDULE 3.10
hereto,
(a) none of Seller, Xxxxxx, Xxxxxxxxx or AMC is a party to or
bound by any mortgage, indenture, lien, deed of trust, lease, agreement, permit,
concession, franchise, license, instrument, order, judgment or decree which
would require the consent of another to the execution of this Agreement or the
transactions contemplated hereby;
(b) neither the execution, delivery and performance of this
Agreement nor the consummation by Seller, Xxxxxx and Xxxxxxxxx of the
transactions contemplated hereby, will (w) violate any provision of the
Certificate of Formation or Operating Agreement of Seller, (x) violate any
provision of the Certificate of Incorporation or Bylaws of AMC, or (y) conflict
with, or result (immediately or upon the giving of notice or the passage of time
or both) in any violation of or default under, or give rise to a right of
modification, termination, cancellation or acceleration of any obligation or to
a loss of a benefit under, any mortgage, indenture, lease, instrument, permit,
concession, franchise,
7.
license or other agreement to which any of Seller, Burnam, Rosenthal, the
properties or assets of Seller or AMC are parties to, beneficiaries of, or bound
by, or violate any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Seller, Burnam, Rosenthal, AMC or the properties or
assets of the Seller other than such conflicts, violations, defaults,
modifications, terminations, cancellations, or accelerations which individually
or in the aggregate would not have a Material Adverse Effect or a material
adverse effect on the ability of either Xxxxxx or Xxxxxxxxx to consummate the
transactions contemplated by this Agreement; and
(c) no authorization, consent or approval of, or filing with,
any public body or governmental authority is necessary for the consummation by
either Xxxxxx or Xxxxxxxxx of the transactions contemplated by this Agreement.
3.11 ASSETS. The items listed on SCHEDULE 3.11 attached hereto
include all of the personal property (or interests therein), machinery, tools,
equipment, inventory and other property in which any of Seller, Xxxxxx,
Xxxxxxxxx or AMC has any right, title and interest and which are used in the
conduct of the business by Seller, Xxxxxx, Xxxxxxxxx and AMC.
3.12 ACCOUNTS RECEIVABLE. All of the accounts received of Seller
which are reflected on SCHEDULE 3.4 hereto and all of the accounts receivable of
Seller which have arisen since the Balance Sheet Date (except such accounts
receivable as have been collected since the Balance Sheet Date) are valid and
enforceable claims, and the goods and services sold and delivered which gave
rise to such accounts were sold and delivered in conformity in all material
respects with the applicable purchase orders, agreements and specifications, and
there are no rights of setoff or claims against such accounts receivable
possessed by the account debtors of Seller and AMC. The allowance for doubtful
accounts contained on SCHEDULE 3.4 hereto has been determined in accordance with
GAAP.
3.13 COMPLIANCE WITH LAW. Each of Seller, Xxxxxx, Xxxxxxxxx and AMC
is in compliance in all material respects with all applicable federal, state,
local and foreign laws, statutes, licensing requirements, rules and regulations,
and judicial or administrative decisions applicable to Seller, Xxxxxx, Xxxxxxxxx
and AMC. Except for any such licenses, permits, authorizations or approvals
which are not individually or in the aggregate material to the conduct of
Seller, Xxxxxx and Xxxxxxxxx have been granted any and all licenses, permits
(temporary and otherwise), authorizations and approvals from federal, state,
local and foreign government regulatory bodies necessary to carry on the
business as currently conducted, all of which are valid and in full force and
effect. As of the date of this Agreement, there has been no order issued,
investigation or proceeding pending or, to the best knowledge of Seller,
threatened, or notice served with respect to, any violation of any law,
ordinance, order, writ, decree, rule or regulation issued by any federal, state,
local or foreign court or governmental agency or instrumentality applicable to
the Business of AMC.
8.
3.14 OPERATION OF THE BUSINESS; TITLE TO ASSETS. The assets and
agreements set forth on SCHEDULE 3.7 and SCHEDULE 3.11 hereto constitute all
that is required to operate the Business as presently conducted. Seller owns
and has good and marketable title to, or has valid leasehold interests as to,
all of the assets listed on SCHEDULE 3.11 attached hereto, (collectively, the
"Assets") and except for liens for the payment of state, local and foreign taxes
not yet due or payable, all such Assets are free and clear of any conditions or
restrictions on transfer or assignment and of any liens, pledges, charges,
encumbrances, claims, security interests, easements, covenants or restrictions
which could to any material extent interfere with the present use of such
properties or assets or impair the operations of Seller.
3.15 SELLER'S UNITS. The Units of Seller issuable upon the conversion
of the Note are duly authorized and, if issued upon conversion of the Note, will
be validly issued, fully paid and non-assessable, and not subject to any
preemptive rights.
SECTION 4
INDEMNIFICATION
4.1 INDEMNIFICATION BY SELLER, XXXXXX AND XXXXXXXXX.
(a) Each of Seller, Xxxxxx and Xxxxxxxxx agree, jointly and
severally, and subject to the other terms and conditions of this Agreement, to
indemnify Investor against, and hold it harmless from, all liabilities, damages,
losses, taxes and costs, including without limitation attorneys' fees
("Indemnified Losses") incurred by it arising out of (i) the breach of any
representation or warranty of Seller, Xxxxxx or Xxxxxxxxx herein and (ii) the
formation of Seller. Anything in SECTION 6.1 hereof to the contrary
notwithstanding, no claim may be asserted nor any action commenced against
Seller, Xxxxxx or Xxxxxxxxx for breach of any representation or warranty
contained herein unless written notice of such claim or action is received by
Seller, Xxxxxx or Xxxxxxxxx describing in detail the facts and circumstances
with respect to the subject matter of such claim or action on or prior to the
date on which the representation or warranty on which such claim or action is
based ceases to survive as set forth in SECTION 6.1 hereof, irrespective of
whether the subject matter of such claim or action shall have occurred before or
after such date.
(b) Investor agrees to give Seller, Xxxxxx and Xxxxxxxxx
prompt written notice of any claim, assertion, event or proceeding by or in
respect of a third party of which it has knowledge concerning any Loss as to
which it may request indemnification hereunder. Seller, Xxxxxx and Xxxxxxxxx
shall have the right to direct, through counsel of their own choosing, the
defense or settlement of any such claim or proceeding at their own expense,
which counsel shall be reasonably satisfactory to Investor. If Seller,
Xxxxxx and Xxxxxxxxx elect to assume the defense of any such claim or
proceeding, Investor may participate in such defense, but in such case the
expenses of Investor shall be paid by Investor. Investor shall provide Xxxxxx
9.
and Xxxxxxxxx with access to its records and personnel relating to any such
claim, assertion, event or proceeding during normal business hours and shall
otherwise cooperate with Xxxxxx and Xxxxxxxxx in the defense or settlement
thereof, and Seller, Xxxxxx and Xxxxxxxxx shall reimburse Investor for all
its reasonable out-of-pocket expenses in connection therewith. If Seller,
Xxxxxx and Xxxxxxxxx elect to direct the defense of any such claim or
proceeding, Investor shall not pay, or permit to be paid, any part of any
claim or demand arising from such asserted liability unless Seller, Xxxxxx
and Xxxxxxxxx consent in writing to such payment or unless Seller, Xxxxxx and
Xxxxxxxxx, subject to the last sentence of the SECTION 4.1 (b), withdraw from
the defense of such asserted liability or unless a final judgment from which
no appeal may be taken by or on behalf of Seller, Xxxxxx and Xxxxxxxxx is
entered against Investor for such liability. If Seller, Xxxxxx and Xxxxxxxxx
shall fail to defend, or if after commencing or undertaking any such defense,
fail to prosecute or withdraw from such defense, or if (x) any claim seeks an
injunction, restraining order, declaratory relief or other non-monetary
relief and, if decided adversely, such claim would have a material adverse
effect on the financial condition, prospects, assets, liabilities,
operations, results of operations or business or Investor or (y) the named
parties to any such action or proceeding (including any impleaded parties)
include Investor and Seller, Xxxxxx or Xxxxxxxxx and Investor shall have
been advised by counsel that there are one or more legal or equitable
defenses available to Investor which are different from or additional to
those available to Seller, Xxxxxx or Xxxxxxxxx, then Investor shall have the
right to undertake the defense or settlement thereof, at Seller's, Xxxxxx'x
and Xxxxxxxxx'x expense. If Investor assumes the defense of any such claim
or proceeding pursuant to this SECTION 4.1(b) and proposes to settle such
claim or proceeding prior to a final judgment thereon or to forego any appeal
with respect thereto, then Investor shall give Seller, Xxxxxx and Xxxxxxxxx
prompt written notice thereof.
(c) Except as set forth in this Agreement, neither Seller,
Xxxxxx nor Xxxxxxxxx are making any representation or warranty with respect to
the matters contained herein.
4.2 INDEMNIFICATION BY INVESTOR.
(a) Investor agrees, subject to the other terms and Conditions
of this Agreement to indemnify Seller against, and hold Seller harmless from,
all Indemnified Losses incurred by Seller arising out of the material breach of
any representation and warranty of Investor herein. Anything in SECTION 6.1
hereof to the contrary notwithstanding, no claim may be asserted nor may any
action be commenced against Investor for breach of any representation or
warranty contained herein unless written notice of such claim or action is
received by Investor describe in detail the facts and circumstances with respect
to the subject matter of such claim or action on or prior to the date on which
the representation or warranty on which such claim or action is based ceases to
survive as set forth in SECTION 6.1 hereof, irrespective of whether the subject
matter of such claim or action shall have occurred before or after such date.
(b) Seller Agrees to give Investor prompt written notice of any
claim, assertion, event or proceeding by or in respect of a third party of which
they have knowledge concerning Indemnified Losses as to which it may request
indemnification hereunder. Investor
10.
shall have the right to direct, through counsel of its own choosing, the
defense or settlement of any such claim or proceeding at its own expense,
which counsel shall be reasonably satisfactory to Seller. If Investor elects
to assume the defense of any such claim or proceeding, Seller may participate
in such defense, but in such case the expenses of Seller shall be paid by
Seller. Seller shall provide Investor with access to its records relating to
any such claim, assertion, event or proceeding during normal business hours
and shall otherwise cooperate with Investor in the defense or settlement
thereof and Investor shall reimburse Seller for all reasonable out-of-pocket
expenses in connection therewith. If Investor elects to direct the defense
of any such claim or proceeding, Seller shall not pay, or permit to be paid,
any part of any claim or demand arising from such asserted liability, unless
Investor consents in writing to such payment or unless Investor, subject to
the last sentence of the is SECTION 4.2(b), withdraws from the defense of
such asserted liability, or unless a final judgment from which no appeal may
be taken by or on behalf of Investor is entered against Seller for such
liability. If Investor shall fail to defend, or if, after commencing or
undertaking any such defense, Investor fails to prosecute or withdraws from
such defense or if (x) any claim seeks an injunction, restraining order,
declaratory relief or other non-monetary relief and, if decided adversely,
such claim would have a material adverse effect on the financial condition,
prospects, assets, liabilities, operations, results of operations or business
of Seller of (y) the named parties to any such action or proceeding
(including any impleaded parties) include Investor, Seller shall have been
advised by counsel that there are one or more legal or equitable defenses
available to Seller which are different from or additional to those available
to Investor, then Seller shall have the right to undertake the defense or
settlement thereof at Investor's expense. If Seller assumes the defense of
any such claim or proceeding pursuant to this SECTION 4.2(b) and propose to
settle such claim or proceeding prior to a final judgment thereon or to
forego appeal with respect to thereto, then Seller shall give Investor prompt
written notice thereof.
(c) Except as set forth in this Agreement, Investor is not
making any representation or warranty with respect to the matters contained
herein. Anything herein to the contrary notwithstanding, no breach of any
representation or warranty contained herein shall give rise to any right on the
part of Seller, after the Closing, to rescind this Agreement or any of the
transactions contemplated hereby.
4.3 GENERAL PROVISIONS. If the indemnifying party is controlling the
defense of a claim, the indemnifying party will not, without the prior written
consent of the indemnified party, enter into any settlement of such claim which
could reasonably be expected to lead to liability or create any financial or
other obligation on the part of the indemnified party. If the indemnified party
is controlling the defense of a claim, the indemnified party will not enter into
any settlement of such claim without the consent of the indemnifying party,
which consent shall not be unreasonably withheld. The controlling party shall
deliver, or cause to be delivered, to the other party copies of all
correspondence, pleadings, motions, briefs, appeals or other written statements
relating to or submitted in connection with the defense of any such claim and
timely notices of, and the right to participate in (as observer), any hearing or
other court proceeding relating to such claim.
11.
SECTION 5
CONDUCT OF BUSINESS
PENDING REPAYMENT OF NOTE
From the date of this Agreement and so long as any principal, interest
or other amounts remain outstanding under the Note, the Seller, Xxxxxx,
Xxxxxxxxx and Investor covenant that, except as otherwise consented to in
writing by Investor in its sole discretion, they shall either satisfy or cause
to be satisfied the following:
5.1 ORDINARY COURSE. Seller shall carry on its business in
accordance with that certain Business Plan dated as of July 7, 1997, as amended
October 8, 1997, previously approved by Investor.
5.2 NO ACQUISITIONS. Seller shall not acquire or agree to acquire
assets of any business or acquire or agree to acquire any corporation,
partnership, association or other business organization or division thereof,
except in the ordinary course of business.
5.3 NO DISPOSITIONS. Seller shall not sell, lease or otherwise
dispose of any assets of its business.
5.4 EMPLOYEES. Seller shall not grant any material increase in the
Compensation payable to any of its employees except for increases made in the
ordinary course of business.
5.5 MORTGAGES, LIENS AND OTHER ENCUMBRANCES. Seller shall not
create, assume of incur any mortgage, lien, pledge or other encumbrance of any
kind in respect of any of its properties other than immaterial mortgages, liens,
pledges or other encumbrances incurred in the ordinary course of business.
5.6 MATERIAL AGREEMENTS. Seller shall not enter into any lease
property for equipment or any agreement that is material to its business, except
in the ordinary course of business.
5.7 CAPITAL EXPENDITURES. Seller shall not make or commit to any
capital expenditures or commitments exceeding $5,000 in the aggregate.
5.8 LIMITATION ON RESTRICTED PAYMENTS. Seller shall not, directly or
indirectly, (i) declare or pay any dividend, or make any distribution on account
of Seller's capital stock or Units (or on the capital stock or Units of any
subsidiary thereof); (ii) purchase, redeem or otherwise acquire or retire for
value any capital stock of Seller or any subsidiary or other affiliate thereof;
or (iii) purchase, redeem or otherwise acquire or retire for value prior
12.
to maturity Indebtedness that is subordinated to the Note (other than those two
prior loans from the Physicians to Seller in the aggregate principal amount of
$70,000 (the "Physician Loans") or those prior loans from Tokai Bank to Seller
in the aggregate principal amount of approximately $70,000 (the "Tokai Loans")).
5.9 LIMITATION ON INCURRENCE OF INDEBTEDNESS. Seller shall not,
directly or indirectly, create, incur, assume or suffer to exist any
Indebtedness. For purposes of this Agreement, "Indebtedness" means, (i) all
indebtedness for borrowed money or for the deferred purchase price of property
or services, excluding any trade payables and other accrued current liabilities
in the ordinary course of business, but including, without limitation, all
obligations, contingent or otherwise, in connection with any letters of credit
issued under letter of credit facilities, acceptance facilities or other
similar facilities, (ii) all obligations evidenced by bonds, notes, debentures
or other similar instruments, (iii) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to property
acquired, but excluding trade payables arising in the ordinary course of
business; provided, that the term "Indebtedness" shall not include the Note, the
Physician Loans or the Tokai Loans.
5.10 BOARD OF DIRECTORS Seller shall cause two seats on Seller's
Board of Directors (including the position of chairman) to be filled at all
times by individuals nominated by Investor.
5.11 PHYSICIAN ADVANTAGE LLC. Neither Seller, Xxxxxx nor Xxxxxxxxx
shall cause the Certificate of Formation or Operating Agreement of Physician
Advantage LLC to be amended in any way without the prior written consent of
Investor.
5.12 MAINTENANCE OF PROPERTY, INSURANCE. Seller shall (i keep all
property useful and necessary in its business in good working order and
condition, (ii) maintain with financially sound and reputable insurance
companies insurance on all its property and (iii) furnish to Investor, upon
written request, full information as to the insurance carried.
5.13 CORPORATE FRANCHISE. Seller shall do or cause to be done all
things necessary to preserve and keep in full force and effect the existence and
the material rights, franchises, licenses and patents of Seller.
5.14 COMPLIANCE WITH LAW. Seller shall comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls).
13.
5.15 TAXES. Seller shall pay when due all taxes, except as contested
in good faith and by appropriate proceedings if adequate reserves (in the good
faith judgment of the management of Seller) have been established with respect
thereto.
5.16 TRANSACTIONS WITH AFFILIATES. Seller shall not enter into any
transaction with any affiliate on terms that are less favorable to Seller than
those that might be obtained in an arm's length transaction at the time from a
person who is not an affiliate (except for with respect to transactions with
Investor or its affiliates).
5.17 RESTRICTION ON FUNDAMENTAL CHANGES. Seller shall not (i) enter
into any merger or consolidation, (ii) liquidate, wind-up or dissolve, (iii)
convey, lease, sell, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or substantially all of Seller's business or assets,
(iv) change its capital or legal structure or (v) issue, or reserve for
issuance, pursuant to an employee equity incentive plan Units of Seller not
presently provided for in Seller's Operating Agreement. Seller shall not issue
any Units or other equity securities of Seller for cash (except with regard to
transactions with Investor or its affiliates).
5.18 AGREEMENTS AFFECTING UNITS. Neither Seller, Xxxxxx nor Xxxxxxxxx
shall enter into voting agreements, voting trusts, irrevocable proxies or other
agreements affecting the voting rights of Units of Seller or any agreements to
which Seller, Xxxxxx or Xxxxxxxxx is a party or by which it is bound providing
for any call or put option, right of first refusal or offer or other rights to
acquire or dispose of any Units of Seller or any convertible securities or
option rights.
SECTION 6
MISCELLANEOUS
6.1 SURVIVAL. Subject to the limitations and other provisions of
this Agreement, the representations and warranties of the parties hereto
contained herein shall survive the execution of this Agreement (the "Closing"),
regardless of any investigation made by on behalf of any Member, for a period of
three (3) years after the Closing; provided, however, that the representations
and warranties set forth in SECTION 3.8 hereof shall survive the Closing until
the applicable period under the statute of limitations (and any extension
thereof), if any, therefore has expired, and the representations and warranties
set forth in SECTION 3.14 hereof shall be unlimited as to duration.
6.2 SUCCESSORS AND ASSIGNS. The Terms and conditions of this
Agreement shall insure to the benefit of and be binding upon the respective
successors and assigns of the parties.
14.
6.3 GOVERNING LAW. This Agreement shall be interpreted and enforced
in accordance with, and its validity and performance shall be governed by, the
laws of the State of California, without reference to conflicts of laws
principles thereof.
6.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience of reference only and are not be considered
in construing or interpreting this Agreement.
6.6 NOTICES. Except as otherwise provided herein, all notices,
requests, demands and other communications under this Agreement shall be in
writing, and if by telegram or telecopy, shall be deemed to have been validly
served, given or delivered when sent, or if by personal delivery or messenger or
courier service, shall be deemed to have been validly served, given or delivered
upon actual delivery (but in no event may notice be given by deposit in the
United States mail), at the following addresses, telephone and facsimile numbers
(or such other address(es), telephone and facsimile numbers a party may
designate for itself by like notice):
If to Investor: Westminster Capital, Inc.
Suite M-10
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxx & XxXxxxxx
29th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
15.
If to Seller: Physician Advantage LLC
Suite 711
16133 Ventura Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx X.X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Phillips, Nizer, Xxxxxxxx, Krim and Ballon
LLP
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
6.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived only
with the written consent of the party against which such amendment or waiver
is to be enforced.
6.8 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
6.9 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements and understandings of
the parties in connection herewith, including, without limitation, that certain
letter from Investor to Xx. Xxxxxxx X. Xxxxxx and Xx. Xxxxxxx X.X. Xxxxxxxxx,
dated May 6, 1997.
16.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INVESTOR:
WESTMINSTER CAPITAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
----------------------
Title: E.V.P.
----------------------
SELLER:
PHYSICIAN ADVANTAGE LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------
Title: CEO
----------------------
XXXXXX:
/s/ Xxxxxxx X. Xxxxxx, M.D.
----------------------------------
Xxxxxxx X. Xxxxxx, M.D.
XXXXXXXXX:
/s/ Xxxxxxx X.X. Xxxxxxxxx M.D.
----------------------------------
Xxxxxxx X.X. Xxxxxxxxx, M.D.
17.
SCHEDULE 3.8
TAXES
No exceptions.
SCHEDULE 3.10
CONSENTS, NO CONFLICTS
No exceptions.
EXHIBIT A
CONVERTIBLE SECURED NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT IN COMPLIANCE WITH SUCH ACT
AND ALL APPLICABLE STATE SECURITIES LAWS.
--------------------------------------------------------------------------------
CONVERTIBLE SECURED NOTE
--------------------------------------------------------------------------------
Up to $2,000,000.00 November 20, 1997
FOR VALUE RECEIVED, PHYSICIAN ADVANTAGE LLC, a Delaware limited liability
company (the "Company"), hereby promises to pay to the order of WESTMINSTER
CAPITAL, INC., a Delaware corporation ("WCI," and together with any assignee or
transferee of WCI, the "Holder"), the principal sum of TWO MILLION DOLLARS
($2,000,000.00), or such lesser amount of the outstanding unpaid principal
balance as shall have been borrowed from time to time (an "Advance") as
indicated on the Schedule of Loans ("Loan Schedule") attached hereto as SCHEDULE
1 and incorporated herein by reference, as such schedule may be amended from
time to time. This Convertible Secured Note (this "Note") has been issued
pursuant to the terms of that certain Convertible Secured Note Purchase
Agreement between the Company, the Physicians and the Holder dated as of
November 20, 1997 (the "Purchase Agreement") and is subject to and entitled to
the benefits of the Purchase Agreement. Capitalized terms used in this Note
which are not defined in this Note shall have the meanings given to such terms
in the Purchase Agreement.
1. INTEREST. Interest on Advances made under this Note shall accrue
at a floating rate equal to the Prime Rate plus one percent (1.0%) per annum,
compounded monthly, with respect to the principal amount of each Advance from
the date such Advance is made until the date such Advance is repaid or
converted into shares of the Company's Units as set forth herein and as
provided for in the Purchase Agreement. Subject to the provisions regarding
payment contained in SECTION 3 below, interest payments on an Advance shall
be required on a monthly basis commencing on the first year anniversary of
the relevant Advance.
2. BORROWINGS. Advances hereunder shall each be conditioned upon the
receipt by the Company of a written Notice of Borrowing in the form of EXHIBIT A
attached hereto. Such Advances must be for at least One Hundred Thousand
Dollars ($100,000) or such amount plus a whole multiple of Fifty Thousand
Dollars ($50,000) in excess thereof. The date and the amount of each Advance
shall be recorded on the Schedule of Loans. No amounts may be borrowed under
this Note after the Due Date. The maximum unpaid principal balance outstanding
at any time under this Note shall not exceed Two Million Dollars ($2,000,000).
Notwithstanding the foregoing, WCI's obligation to make Advances under this
Note shall terminate immediately as of any one of the dates set forth in the
chart below, unless as of such date the Company shall have (i) enrolled not less
than the number of physicians set forth next to such date, and (ii) shall have
produced net income before taxes for the three month period ending on such date
of not less than the amount set forth next to such date:
NUMBER OF NET INCOME
DATE PHYSICIANS BEFORE TAXES
--------------------- -------------- ---------------
March 31, 1998 4,880 $0
June 30, 1998 7,800 $125,000
September 30, 1998 10,800 $200,000
December 31, 1998 13,800 $300,000
March 31, 1999 17,800 $375,000
June 30, 1999 25,800 $450,000
September 30, 1999 29,800 $500,000
December 31, 1999 33,800 $500,000
March 31, 2000 37,800 $500,000
June 30, 2000 41,800 $500,000
September 30, 2000 50,800 $500,000
December 31, 2000 54,800 $500,000
3. PAYMENT. The outstanding principal of and all accrued and unpaid
interest on all outstanding Advances shall be immediately due and payable on the
occurrence of an Acceleration Event. If no Acceleration Event has occurred
prior to the third anniversary of the issuance of this Note, then the
outstanding and unpaid principal of and all accrued and unpaid interest on all
outstanding Advances shall be payable in 24 equal monthly installments beginning
on the date of such third anniversary.
4. PREPAYMENT. The Company may prepay all or any portion of the
outstanding and unpaid principal balance of this Note at any time following
thirty days prior written notice to Holder, without premium or penalty;
provided, however, that Holder may, at its sole option at any time prior to the
expiration of such thirty day notice period and in lieu of such prepayment,
require the Company to convert this Note in accordance with the provisions of
SECTION 7; provided, further, that with any prepayment, the Company shall also
prepay all accrued but unpaid interest on the portion of the outstanding and
unpaid principal which is being prepaid. The date and the amount of each
payment of principal and accrued interest shall be recorded on the Schedule of
Loans.
5. MANNER OF PAYMENT. Payments of principal and interest by the Company
shall be made in lawful money of the United States of America (by wire transfer
in funds immediately available at the place of payment) to such account as
Holder may designate in writing to the Company and, if to WCI, to: Xxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000, ABA No. 000000000; Account No. 0645025297 (or such
other place of payment that WCI may designate in writing to the Company). Any
payments due hereunder which are due on a day which is not a business day shall
be payable on the first succeeding business day and such extension of time shall
be included in the computation of interest due hereunder.
6. DEFINITIONS. As used in this Note, the following terms shall have the
meanings set forth below.
2
6.1 The term "Acceleration Event" shall mean the first to occur of
the following:
(a) The consummation of the sale of additional debt or equity
financing by the Company;
(b) Any consolidation or merger of the Company with or into
any other corporation or other entity or person, or any other corporate
reorganization in which the Company shall not be the continuing or surviving
entity of such consolidation, merger or reorganization or any transaction or
series of related transactions by the Company in which in excess of 50% of
the Company's voting power is transferred (except for a conversion of this
Note pursuant to SECTION 7 hereof, provided that such conversion is not in
connection with a transfer by the Holder of all or substantially all of its
interests in the Company), or a sale of all or substantially all of the
assets of the Company; or
(c) The Company's dissolution or liquidation.
6.2 The term "Due Date" shall mean the earlier of an Acceleration
Event or the third anniversary of the issuance of this Note.
6.3 The term "Event of Default" shall mean any one of the following
events (whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) Default in the payment of any interest upon this Note as
and when the same shall become due and payable, and continuance of such
default for a period of five (5) business days;
(b) Default in the payment of the principal of this Note as and
when the same shall become due and payable at maturity, by declaration or
otherwise, and continuance of such default for a period of five (5) business
days;
(c) A material default or breach (after any applicable cure
period) in the Company's performance of any of its obligations under this Note
(other than as set forth in (a) or (b), above, and the continuance of such
default for a period of fifteen (15) business days following notification of
such default or breach by the Holder), the Purchase Agreement or the Pledge and
Security Agreement;
(d) A payment or other default by the Company under any
indebtedness in an aggregate principal amount in excess of $50,000, if such
default causes or results in the acceleration of the maturity of such
indebtedness or the failure to pay any such indebtedness as its final maturity,
and the continuance of such default for a period of five (5) business days;
(e) An involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization or other
relief with respect to it or its debts under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or seeking the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part
of the property of the Company or the winding up or liquidation of the
affairs of the Company: and such case or proceeding shall remain unstayed and
undismissed for a period of sixty (60) days, or an order for relief shall be
entered against the Company under the Federal bankruptcy laws as now or
hereafter in effect;
3
(f) The Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of the property of the
Company, or the Company shall make any general assignment for the benefit of
creditors; or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing; or
(g) Upon the death or Permanent Disability (within the meaning
of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended) or the
resignation or withdrawal from the Company of either of Xxxxxxx X. Xxxxxx or
Xxxxxxx X.X. Xxxxxxxxx.
6.4 The term "Prime Rate" shall mean the interest rate that is quoted
as the "prime rate" by Xxxxx Fargo Bank, as such interest rate shall change from
time to time.
7. CONVERSION.
(a) VOLUNTARY CONVERSION. At the option of the Holder, in the
event that, at any time, (i) the unpaid principal balance of and all accrued
and unpaid interest on all outstanding Advances made pursuant to this Note
equals or exceeds Two Hundred Seventy Thousand Dollars ($270,000.00) (the
"Unpaid Amount"), (ii) the Holder contributes the difference between Two
Hundred Seventy Thousand Dollars ($270,000) and the unpaid principal balance
of and all accrued and unpaid interest on all outstanding Advances to the
Company (collectively with the Unpaid Amount, the "Converted Amount"), or
(iii) an Acceleration Event or Event of Default has occurred, Holder shall
have the right, at its option, at any time thereafter, to convert the
Converted Amount into that number of Units of the Company that, when divided
by the total number of Units that are then outstanding (after giving effect
to the conversion of this Note, the conversion of any outstanding convertible
debt instruments, and the exercise of any outstanding options or warrants to
purchase Units), will equal fifty-five percent (55%), expressed as a decimal.
Units into which such amount is converted shall be credited as fully paid
and shall rank in PARI PASSU in all respects and form one class with all
other Units outstanding at the date of such conversion. For example, if, the
Company has outstanding 1,000,000 Units and no options, warrants or
convertible debt instruments, Holder may, at its option, convert this Note
into 1,222,222 Units.
(b) MECHANICS OF CONVERSION. Upon written notice of conversion of
the Note pursuant to an Election to Convert in the form of EXHIBIT B attached
hereto, the Company will, as soon as practicable thereafter, issue and deliver
to the Holder (i) a certificate for the number of Units to which the Holder
shall be entitled, and (ii) an amended and restated promissory note in
substantially the same form as this Note, but with the outstanding principal and
interest amounts included on the attached Schedule of Loans reduced by the
Converted Amount. In the case of exercise pursuant to SECTION 7 hereof, such
conversion shall be deemed to have occurred as of the close of business on the
date of the surrender of this Note as provided for above, the Holder shall be
treated as the record holder of the Units received upon conversion as of the
close of business on such date and the Holder shall promptly execute a signature
page to the Company's Operating Agreement whereby the Holder shall become a
Member of the Company (as defined in the Operating Agreement) as of the close of
business on such date. Notwithstanding anything contained in this Note to the
contrary, Holder may only exercise its right of conversion pursuant to this
SECTION 7 on one occasion.
(c) PAYMENT OF TAXES. The Company will pay all taxes that may be
payable in respect of the issue or delivery of Units upon conversion of this
Note; provided, that Holder shall pay any tax
4
which may be payable in respect of any transfer involved in the issue and
delivery of Units in a name other than that in which this Note so converted was
registered.
8. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of any Event of
Default, the principal of and all accrued and unpaid interest on all Advances
made pursuant to this Note shall become immediately due and payable without any
declaration or other act on the part of the Holder and all without demand,
presentment, notice, or protest, all of which are hereby expressly waived, and
the Holder may exercise any right or power available to it under this Note, at
law or in equity, all of which rights and powers may be exercised cumulatively
and not alternatively. No delay or omission of the Holder of this Note to
exercise any right or power accruing upon any Event of Default occurring and
continuing shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein, and every power
and remedy given by this Note or by law may be exercised from time to time, and
as often as shall be deemed expedient, by the Holder.
9. SECURITY. This Note is secured by a first priority security in all of
the assets of the Company (including the stock of AMC) and all of the Units of
the Company held by Xxxxxxx X. Xxxxxx and Xxxxxxx X.X. Xxxxxxxxx pursuant to a
Pledge and Security Agreement of even date herewith among the Company, Drs.
Xxxxxx and Xxxxxxxxx, and Holder.
10. NO SETOFFS; WAIVERS, ETC. The Company's obligations under this Note
shall be paid and performed by the Company without any defenses, claims,
setoffs, counterclaims, recoupments, reductions, limitations, impairments or
terminations which the Company may now have or hereafter has or could have
against Holder, and the Company hereby waives all of the same. The Company
hereby waives the benefit of all laws now or hereafter enacted affording any
right to any appraisement, any stay of execution or extension of time for
payment. Except as set forth herein, notice of demand, presentation for
payment, notice of non-payment or dishonor, protest and notice of protest and
notice of protest are hereby waived by the Company. The Company agrees that the
granting, without notice of any extensions or extensions of time for payment of
any sum or sums due hereunder, of for the performance of any covenant, condition
or agreement contained herein, or the granting of any other indulgences to the
Company, or any other modification or amendment of this Note, or the acceptance,
release or substitution by Holder of any security, shall in no way release or
discharge the liability of the Company.
11. HIGHEST RATE PERMITTED. Notwithstanding anything in this Note to the
contrary, no provision of this Note shall require the payment or permit the
collection of interest in excess of the highest rate permitted by applicable
law, and any portion of the interest otherwise payable under this Note which is
in excess of the highest rate permitted by applicable law shall be cancelled
automatically or (if heretofore paid) shall, at the option of the Company, be
either refunded to the Company or credited to the principal amount of this Note.
12. REMEDIES. The Company stipulates that the remedies at law of the
Holder in the event of any default by the Company in the performance of or
compliance with any of the terms of this Note are not and will not be adequate,
and that such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
13. COVENANT TO RESERVE SECURITIES. The Company shall at all times
reserve, for the purpose of issuance upon the conversion into Units, such number
of its duly authorized Units as shall from time to time be sufficient to comply
with the terms of this Note ("Reserved Units"), and if at any time the number of
authorized but unissued Units shall not be sufficient, the Company will take
such action as may
5
in the opinion of its counsel be necessary to increase its authorized but
unissued Units to such number of Units as shall be sufficient for such purpose.
14. COVENANT TO TAKE ALL PROPER LEGAL STEPS FOR CONVERSION. The Company
represents and covenants that it will at all times promptly do any and all
lawful things necessary to permit the conversion into Units of the Converted
Amount as provided herein and, among other things, to that end will
expeditiously and by proper action take all steps necessary to have available to
meet full conversion a sufficient number of Units.
15. ASSIGNMENT. Subject to compliance with all applicable federal and
state securities laws, Holder may assign all or any portion of this Note at
any time or from time to time without the consent of the Company, provided
that the Holder may not assign its rights pursuant to SECTION 7 hereof other
than to a Permitted Transferee (as defined in the Operating Agreement). Each
assignment of this Note, whole or in part, shall be registered on the books
of the Company to be maintained for such purpose, upon surrender of this Note
at the Company's offices, together with appropriate instruments of
assignment, duly completed and executed. Upon such surrender and delivery,
the Company shall execute and deliver within three (3) business days a new
Note or Notes in the name of the assignee or assignees specified in such
assignment and in the denominations specified therein, and this Note shall
promptly be cancelled. In the event any portion of this Note is not being
assigned, the Company shall issue to Holder within three (3) business days a
new Note evidencing the portion not so assigned. In the event the Note
originally issued has been divided and is held at any time by more than one
(1) holder, any payments of principal and interest made pursuant to this Note
shall be made pro rata with respect to all outstanding Notes in accordance
with the respective principal amounts of such Notes.
16. MISCELLANEOUS.
(a) NOTICES. Except as otherwise provided herein, all notices,
requests, demands and other communications under this Note shall be in writing,
and if by telegram or telecopy, shall be deemed to have been validly served,
given or delivered when sent, or if by personal delivery or messenger or courier
service, shall be deemed to have been validly served, given or delivered upon
actual delivery (but in no event may notice be given by deposit in the United
States mail), at the following addresses, telephone and facsimile numbers (or
such other address(es), telephone and facsimile numbers a party may designate
for itself by like notice):
If to the Holder: Westminster Capital, Inc.
Suite M-10
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxx & XxXxxxxx
29th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
6
If to the Company: Physician Advantage LLC
Suite 711
16133 Ventura Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx X.X. Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Phillips, Nizer, Xxxxxxxx, Krim and
Ballon LLP
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) COSTS OF COLLECTION. If any default is made in the payment of
this Note, the Company shall pay the Holder all costs of collection, including,
without limitation, reasonable attorneys' fees. Additionally, if any party
undertakes legal action to enforce any of the terms of this Note, the
unsuccessful party to such action shall pay the successful party's expenses,
including reasonable attorneys' fees, incurred in such action.
(c) GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of California without giving effect to the
principles of conflict of laws.
(d) MODIFICATION. Neither this Note nor any provision hereof may be
amended unless in an instrument in writing signed by the Holder and the Company.
(e) SEVERABILITY. If any provision of this Note is held to be
invalid, illegal, or unenforceable, such invalidity, illegality, and/or
unenforceability shall not affect any other provision of this Note.
(f) REPLACEMENT OF NOTE. Upon receipt of evidence reasonably
satisfactory to the Company of the ownership and the loss, theft, destruction,
or mutilation of this Note, and (in the case of loss, theft, or destruction)
upon delivery of an indemnity agreement in an amount reasonably satisfactory to
the Company, or (in the case of mutilation) upon surrender and cancellation of
the mutilated Note, the Company shall execute and deliver within three (3)
business days, in lieu thereof, a new Note of like tenor.
(g) SUCCESSORS. Except as set forth to the contrary herein, all the
covenants, agreements, representations, and warranties contained in this Note
shall bind the parties hereto and their respective heirs, executors,
administrators, distributees, successors, and assignees.
7
(h) HEADINGS. The section headings in this Note are inserted for
purposes of convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, Physician Advantage LLC has executed this Note on
November 20, 1997.
PHYSICIAN ADVANTAGE LLC
By:
---------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
8
SCHEDULE I
Schedule of Loans
Amount of Outstanding
Amount of Loan Principal Paid Principal Balance
Date Made This Date This Date This Date Notation Made By
--------------- ---------------- --------------- ------------------- ----------------
November 21, $ 450,000.00 0 $ 450,000.00 Xxxxxx Xxxxxx;
1997 Xxxxxxx Xxxxxx
9
EXHIBIT A
NOTICE OF BORROWING
Pursuant to that certain Convertible Secured Note (as amended from time to
time, the "Note") dated as of November 20, 1997, made by Physician Advantage LLC
(the "Company") in favor of Westminster Capital, Inc. ("Investor"), this
represents Company's request to borrow on November 20, 1997 from Investor the
amount of $_______ (the "Advance"). The proceeds of such Advance are to be
deposited in Company's account at the office of _______ located
at __________________.
The undersigned officer, on behalf of the Company, certifies that (i) the
representations and warranties of the Company contained in the Note and in that
certain Convertible Secured Note Purchase Agreement by and among Investor, the
Physicians and the Company dated as of November 20, 1997 (the "Note Purchase
Agreement") are true, correct and complete in all material respects on and as of
the date hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such earlier date;
(ii) no Acceleration Event, Event of Default or potential Event of Default has
occurred and is continuing or will result from the proposed borrowing; (iii) the
Company has performed in all material respects all agreements and satisfied all
conditions under the Note and the Note Purchase Agreement provided to be
performed by it on or before the date hereof; and (iv) the Company has not
violated any of the negative covenants contained in SECTION 5 of the Note
Purchase Agreement.
Dated: PHYSICIAN ADVANTAGE LLC
---------------
By:
-------------------------------
Title:
-----------------------------
EXHIBIT B
Notice of Election to Convert
The undersigned, as Holder of the Convertible Secured Note (the "Note")
issued by Physician Advantage LLC (the "Company"), hereby elects to convert
$270,000 of the outstanding and unpaid principal and accrued interest under
Advances made pursuant to the Note into that number of Units of the Company,
that, when divided by the total number of Units that are then outstanding (after
giving effect to the conversion of the Note, the conversion of any outstanding
convertible debt instruments, and the exercise of any outstanding options or
warrants to purchase Units), will equal fifty-five percent (55%), expressed as a
decimal. The undersigned further acknowledges that the Schedule of Loans shall
be updated to indicate that the amount of principal and accrued interest
outstanding under the Note has been reduced by $270,000 as of this date, in
consideration of the conversion of the Converted Amount.
Date:
-------------
"Holder"
Westminster Capital, Inc.
By:
---------------------------
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Taxpayer
Identifying Number
-----------------------------------
Name
-----------------------------------
Address
-----------------------------------
Taxpayer Identification Number
