Exhibit 4.01
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), made as of the 15th day of
June, 1999, by REALMED CORPORATION, an Indiana corporation ("Borrower") in favor
of NEWCOURT FINANCIAL USA INC., a Delaware corporation ("Lender"),
WITNESSETH THAT:
WHEREAS, Borrower has applied to Lender for credit in the aggregate
principal amount of Seventeen Million Five Hundred Thousand Dollars
($17,500,000.00); and,
WHEREAS, Lender is willing to extend such credit to Borrower on the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
AMOUNT AND TERMS OF LOAN
1.1 Agreement to Loan and Repay. Lender hereby agrees to lend the sum
of Seventeen Million Five Hundred Thousand Dollars ($17,500,000.00) (the "Loan")
to Borrower, and Borrower hereby agrees to repay such amount to Lender, upon the
terms and conditions set forth in this Agreement, that certain Subordinated
Convertible Promissory Note of even date herewith (the "Note") and all other
agreements executed in furtherance of this transaction (together with this
Agreement and the Note, the "Loan Documents"). The Loan shall (a) be subordinate
(in priority but not payment) to certain loans of Borrower, (b) be convertible
into Borrower's common shares, (c) bear interest at the rate of Eight Percent
(8%) per annum, and (d) be payable all as specifically described in the Note.
All salaries, wages and expenses of (or relating to) all personnel of Lender
(other than Xxxxxx X. Xxxxx) who perform services for or on behalf of Borrower
will be allocated on any equitable basis between Lender and Borrower ("Allocated
Expenses"), based on the actual time devoted to such services, and that portion
so allocated to Borrower shall be deemed an advance under the Loan; provided,
however, that Allocated Expenses shall not exceed $750,000 per year and
Allocated Expenses shall be made only with respect to those personnel of Lender
(other than Xxxxxx X. Xxxxx) who devote at least 5% of their annual work time to
performing services for or on behalf of Borrower; provided, further, however,
that the restrictions set forth in the foregoing proviso may be waived by the
Board of Directors of Borrower. Borrower and Lender shall agree upon the
personnel who will perform such services and the amount of their compensation.
Subject to Section 2.2, Lender's obligation (but not its right) to lend funds to
Borrower shall terminate upon the earlier of the following: (i) the full and
complete exercise all of Lender's conversion rights under the Loan Documents; or
(ii) June 15, 2004.
1.2 Use of Loan. Borrower shall use the Loan solely to pay expenses and
existing and future debt incurred in the ordinary course of its business and in
accordance with the business plan of Borrower attached hereto as Exhibit A, as
amended from time to time in accordance with this Agreement (the "Business
Plan"). Commencing July 1, 2000, Borrower shall regularly (but not less
frequently than every six (6) months) revise and update the Business Plan to
accurately and properly reflect Borrower's good faith, reasonable projections of
the future operations of its business. All changes to the Business Plan shall
require approval of Borrower's Board of Directors and, if Xxxxxx X. Xxxxx
("Xxxxx") is not the Chief Executive Officer of the Borrower at the time,
approval of Lender, which approval Lender shall not unreasonably withhold.
Within five business days after a new Business Plan has been approved by the
Borrower's Board of Directors, Borrower shall notify Lender of such approval and
provide Lender with a copy of such Business Plan. If Xxxxx is not Chief
Executive Officer of Borrower, then, within fifteen business days after receipt
of a Business Plan, Lender shall notify Borrower of any objections or questions
that it has with respect to the Business Plan. Within fifteen business days
after the receipt by Lender of any responses by Borrower to Lender's objections
or questions regarding the Business Plan, Lender shall notify Borrower that its
responses were satisfactory or provide Borrower with an explanation of why such
responses were not satisfactory. If Borrower fails to revise and update its
Business Plan at the times and in the manner described in this Section 1.2 and
such failure continues for 30 days after notice from Lender, then Borrower's
right to draw any portion of the Loan shall cease during the continuation of
such failure.
ARTICLE 2
CONDITIONS PRECEDENT
2.1 Conditions Precedent of Loan. Lender's obligations to enter into
this Agreement and to advance the funds contemplated by the Note are subject to
the occurrence, prior to or simultaneously with the closing date, of the
following conditions:
(a) Lender shall have received on or before the closing date, in
form and substance satisfactory to Lender:
(i) This Agreement, duly executed by Borrower and delivered
to Lender;
(ii) The Note, duly executed by Borrower;
(iii) Certified copies of Resolutions of the Board of
Directors of Borrower approving the transaction contemplated by the
Loan Documents;
(iv) A certificate of the Secretary or an Assistant
Secretary of Borrower certifying (A) the names and true
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signatures of the officers of Borrower authorized to execute
the Loan Documents to which Borrower is a party, (B) that
attached thereto is a true and accurate copy of the Articles
of Incorporation and By-laws of Borrower, as amended through
the closing date, (C) that attached thereto are true and
accurate copies of the resolutions described in the
immediately preceding subparagraph, and (D) that the Articles
of Incorporation of Borrower have not been amended since the
date of the last amendment thereto indicated on the
Certificate of Existence described in the next succeeding
subparagraph;
(v) A Shareholder Agreement (in form and substance
satisfactory to Lender), duly executed by Borrower, Xxxxxx X.
Xxxxxxxx, Xxxx X. Xxxxxx, JLT, LP, Gemplus SCA, Gemplus Corp.,
Xxxxx Xxxxx, West Plains Investment, Inc., Finno SCA, Candel &
Partners, Xxxxxx X. Xxxx and Lender;
(vi) A Certificate of Existence from the Secretary of State
of Indiana, dated not more than five days before the closing
date, stating that Borrower is duly organized and qualified in
Indiana;
(vii) Copies of all documents evidencing all
necessary corporate action and government approvals, if any, with
respect to each of the Loan Documents;
(viii) Such other information about Borrower and/or its
assets, business and/or financial condition as Lender may
reasonably request;
(ix) A Registration Rights Agreement (in form and
substance satisfactory to Lender), duly executed by Company,
Lender, and certain other shareholders of the Company;
(x) An Eclipse/RealMed Agreement (in form and substance
satisfactory to Lender), duly executed by Company, Xxxxxx X.
Xxxxxxxx, Xxxx X. Xxxxxx, and certain related entities;
(xi) A Release and Termination Agreement (in form and
substance satisfactory to Lender), duly executed by the Company
and certain shareholders of the Company;
(xii) A Recapitalization Confirmation Agreement (in form
and substance satisfactory to Lender), duly executed by Company
and certain shareholders of the Company; and
(b) Articles of Restatement of the Articles of Incorporation of
the Company (in form and substance satisfactory to Lender) shall
have been duly filed with the Indiana Secretary of State.
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2.2 Conditions Precedent of Advances. Lender's obligation to make
any advance to Borrower of the Loan pursuant to the Note is further subject to
(on the date of each such advance):
(a) Borrower having delivered to Lender a written request for
such advance setting forth the amount of the advance requested and a
description of the intended use of such amounts by Borrower and
attaching thereto a copy of Borrower's then current Business Plan (an
"Advance Request");
(b) Borrower having delivered to Lender a certificate of its
Chief Executive Officer (or other officer reasonably acceptable to
Lender) of Borrower certifying that as of such date (i) all
representations and warranties of Borrower made in this Agreement are
true and correct as if made on such date, (ii) no Event of Default has
occurred and is continuing on such date, and (iii) Borrower has
complied with all of the terms and conditions of the Loan Agreements
required to be complied with by Borrower as of such date (a
"Certificate of Performance"); and
(c) If the Certificate of Performance has been executed by
someone other than Xxxxx as Chief Executive Officer of Borrower, Lender
having satisfied itself, in its reasonable discretion, that the matters
set forth in the Certificate of Performance are true and correct. If
Xxxxx is not Chief Executive Officer of Borrower, then, within fifteen
business days after receipt of a Certificate of Performance, Lender
shall notify Borrower of any matters in the Certificate of Performance
that Lender believes are not true and correct or that Certificate of
Performance will be deemed true and correct but only with respect to
the request for advance with which it was submitted. Lender and
Borrower shall endeavor to promptly resolve any disputes regarding the
Certificate of Performance.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Lender,
which warranties and representations shall survive closing and distribution of
the Loan and shall remain in full force and effect until released in writing by
Lender:
3.1 Organization and Existence. Borrower is a corporation duly organized
and validly existing under the laws of the State of Indiana, has the power and
authority to own its property and assets and to carry on its business as now
conducted and proposed to be conducted and is qualified to do business in every
jurisdiction where the nature of the business conducted or the property owned or
leased by it requires such qualification.
3.2 Corporate Powers. Borrower has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents to
which it is a party. Borrower has obtained and maintains all licenses, permits,
franchises, patents, copyrights, trademarks, trade names, consents and approvals
necessary to own its property and assets and to carry on its business as now
conducted.
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3.3 Authorization. The execution, delivery and performance by Borrower
of each Loan Document to which it is or will be a party, the borrowings
hereunder by Borrower, the execution and delivery of the Note by Borrower, and
the use of the Loan in accordance with this Agreement (a) have been duly
authorized by all requisite corporate action and (b) will not (i) require the
consent or approval of any shareholders, directors, members, partners, or other
principals of Borrower which has not been obtained, (ii) violate (A) any
provision of any law, statute, rule or regulation (including, without
limitation, Regulations U and X of the Board of Governors of the Federal Reserve
System) or organizational documents of Borrower, (B) the Articles of
Incorporation or the Bylaws of Borrower, or any order of any court, or any rule,
regulation or order of any other agency or government binding upon Borrower, or
(C) on and after closing, any provision of any indenture, agreement or other
instrument to which Borrower is a party or by which any of Borrower's assets or
properties are or may be bound, (iii) on and after closing, be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or (iv)
result in the creation or imposition of any liens (other than as contemplated by
this Agreement) upon any property or assets of Borrower.
3.4 Acquisition of Consents. No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, is or will be necessary to the valid execution and delivery to Lender
or performance by Borrower of the Loan Documents.
3.5 Enforceability. This Agreement is, and each of the other Loan
Documents when delivered hereunder will be, the legal, valid and binding
obligations of Borrower, enforceable in accordance with their respective terms.
3.6 Capitalization. Borrower's authorized capital stock consists of
200,000,000 shares of common stock, no par value. All of Borrower's capital
stock is free of preemptive rights, except to the extent set forth in the
Shareholder Agreement, dated June 15, 1999, among Borrower, Lender and certain
other shareholders of Borrower. Borrower has issued stock and granted warrants,
options and/or conversion rights to additional shares of common stock to the
persons and in the amounts described in Exhibit B hereto and no other options,
warrants or rights to purchase or convert, nor any agreement or commitment for
the subscription, issuance, redemption, transfer, sale, purchase or acquisition
of, any shares of the capital stock of Borrower not disclosed in this Section
3.6 or in Exhibit B hereto exist.
3.7 Financial Information. All financial statements and other
financial data which have been or will be furnished to Lender by Borrower are,
and will be, true and correct and reflect, or will reflect when delivered in the
future, fairly the financial condition of Borrower and have been or will be
prepared in accordance with Generally Accepted Accounting Principles ("GAAP")
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consistently applied. Borrower has no contingent liabilities, material
liabilities for taxes, unusual forward or long term commitments outside the
ordinary course of business, or material unrealized or anticipated losses from
any unfavorable commitments which are material with respect to the financial
condition, affairs, prospects or business of Borrower, except as reflected or
provided for in such financial statements.
3.8 Litigation. There are not any actions, suits or proceedings at law
or in equity or by or before any court or governmental instrumentality or other
agency or regulatory authority now pending or, to the knowledge of Borrower,
threatened against or affecting Borrower or any property or rights of Borrower.
3.9 Compliance with Laws. Borrower is not in violation of any law,
rule or regulation (including, but not limited to, all environmental laws, rules
or regulations), or in default with respect to any judgment, writ, injunction or
decree of any court or governmental agency or instrumentality.
3.10 Agreements. Borrower is not a party to any agreement or instrument
or subject to any corporate restriction that is expected to have a material and
adverse effect on the business, assets, operations or financial condition of
Borrower. Borrower is not in default in any manner with respect to any provision
of any indenture, agreement or other instrument that would materially and
adversely affect the business, assets, operations or financial condition of
Borrower.
3.11 Federal Reserve Regulations. Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR, Part 221), does not own and has no present
intention of acquiring any such margin stock or a "margin security" within the
meaning of Regulation G of the Board of Governors of the Federal Reserve System
(12 CFR, Part 207). None of the Loan proceeds will be used directly or
indirectly by Borrower for the purpose of purchasing or carrying, or for the
purpose of reducing or retiring any indebtedness which was originally incurred
to purchase or carry, any such margin security or margin stock or for any other
purpose which might constitute the transaction contemplated hereby a "purpose
credit" within the meaning of said Regulation G or Regulation U, or cause this
Agreement to violate any other regulation of the Board of Governors of the
Federal Reserve System or the Securities and Exchange Act of 1934, as amended,
or any rules or regulations promulgated under either such statute.
3.12 Taxes. Borrower has filed or caused to be filed all federal,
state, local and foreign tax returns which are required to be filed by it, and
has paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by it, other than any taxes or
assessments the validity of which Borrower is contesting in good faith by
appropriate proceedings and with respect to which Borrower shall, to the extent
required by GAAP applied on a consistent basis, have set aside on its books
adequate reserves.
3.13 ERISA. Borrower is in compliance with the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to the extent to which it is
applicable to Borrower. Borrower has received no notice that it is not in
compliance with ERISA from the Pension Benefit Guaranty Corporation ("PBGC") or
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any other governmental entity or agency. No reportable event, as the same is
defined by ERISA (a "Reportable Event"), has occurred or is continuing which
could result in an accumulated deficiency under ERISA or liability to the PBGC.
3.14 No Misstatements. No report, financial statement, exhibit or
schedule, warranty or representation furnished on or prior to the date hereof by
or on behalf of Borrower contains any misstatement of fact or omits to state any
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.15 Solvency. After giving effect to the consummation of the
transaction contemplated hereby, Borrower (a) will be able to pay its debts as
they become due, (b) will have funds and capital sufficient to carry on its
business and all businesses in which it is about to engage, and (c) will own
property having a value both at fair valuation and fair saleable value in the
ordinary course of Borrower's business greater than the amount required to pay
its debts, including, for this purpose, unliquidated and disputed claims.
Borrower will not be rendered insolvent by the execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby.
3.16 Licenses and Approvals. Borrower has obtained all permits,
governmental licenses, registrations, and approvals necessary to carrying out
its business as presently conducted and as required by law or the rules and
regulations of any federal, foreign governmental, state, county, or local
association, corporation or governmental agency, body instrumentality or
commission having jurisdiction over Borrower.
3.17 Liabilities. Except as otherwise disclosed in Schedule 3.17
to this Agreement, Borrower has no payables, liabilities or obligations, either
direct or indirect, absolute, contingent or otherwise, including, without
limitation, any direct or indirect indebtedness, guaranty, endorsement, claim,
loss, damage, deficiency, cost, expense, obligation or responsibility, fixed or
unfixed, known or unknown, asserted or unasserted, xxxxxx or inchoate,
liquidated or unliquidated, secured or unsecured.
3.18 Employment Contracts. Except as otherwise disclosed in Schedule
3.18 to this Agreement, (a) Borrower is not a party to any written or oral
agreement, contract or commitment with any present or former employee or
consultant or for the employment of any person, including any consultant; and
(b) Borrower has no liability or obligation to provide any present or former
employee or consultant with any severance or deferred compensation payments or
any other employment-related benefits following a termination of such employee
or consultant's employment with Borrower. A true and complete copy of each
agreement, contract and commitment listed in Schedule 3.18 has previously been
delivered to Lender.
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3.19 Intellectual Property.
(a) Borrower, in the conduct of its business, has not utilized
and does not utilize any patent, trademark, trade name, service xxxx,
copyright, software, trade secret or know-how except for those listed in
Schedule 3.19 to this Agreement (the "Intellectual Property").
(b) All of the Intellectual Property listed in Schedule 3.19 to
this Agreement (i) is valid and in full force and effect and any
applications for registrations relating thereto are pending and in good
standing, all without challenge of any kind; and (ii) is owned entirely
by Borrower, without qualification, limitation, burden or encumbrance of
any kind.
(c) Borrower does not infringe upon or unlawfully or wrongfully
use any patent, trademark, trade name, service xxxx, copyright or trade
secret owned or claimed by another. Borrower is not in default under,
and has not received any notice of any claim of infringement or any
other claim or proceeding relating to any such patent, trademark, trade
name, service xxxx, copyright or trade secret.
ARTICLE 4
COVENANTS OF BORROWER
4.1 Affirmative Covenants. From the date hereof and thereafter for so
long as any portion of the Loan is outstanding or Borrower is indebted to Lender
under any of the Loan Documents, Borrower shall, unless Lender shall consent
otherwise in writing:
(a) Compliance with Laws. Comply with all applicable laws, rules,
regulations and orders (including, but not limited to, all environmental
laws, rules, regulations and orders) by which it or any of its
properties are bound;
(b) Use of Loan Proceeds. Use the Loan Proceeds only in accordance
with Section 1.2 of this Agreement;
(c) Payment of Obligations. Pay all its indebtedness and
obligations promptly and in accordance with their terms and pay
and discharge promptly all taxes, assessments and governmental charges
or levies imposed upon it or in respect of its property, before the
shall become in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might become a
lien or charge upon such properties or any part thereof; provided,
however, that Borrower shall not be required to pay and discharge or
cause to be paid or discharged any such indebtedness or obligations
or any such tax, assessment, charge, levy or claim so long as the
applicability, validity or amount thereof shall be contested in good
faith by appropriate proceedings or actions and Borrower shall set aside
on its books, in accordance with GAAP, adequate reserves, with respect
to any such indebtedness or obligations or any such tax, assessment,
charge, levy or claim so contested;
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(d) Preservation of Existence. Preserve and maintain in full
force and effect its legal existence, rights, and privileges in the
jurisdiction of its organization, preserve and maintain all licenses,
governmental approvals, trademarks, patents, trade secrets, copyrights,
and trade names owned or possessed by it which are necessary or,
in its reasonable business judgment, desirable in view of its business
and operations or the ownership of its properties and qualify or remain
qualified as a foreign entity in each jurisdiction in which such
qualification is necessary or, in its reasonable business judgment,
desirable in view of its business and operations and ownership of its
properties;
(e) Preservation of Property. Maintain and preserve all property
used or useful in the conduct of its business and keep the same in good
repair, working order and condition, and from time to time make, or
cause to be made, all needed and proper repairs, renewals and
replacements thereto, so that the business carried on in connection
therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses;
(f) Maintenance of Insurance. Maintain insurance with responsible
and reputable insurance companies in such amounts and covering such
risks as is usually carried by companies similarly situated;
(g) Giving of Notice. Provide Lender with notice, promptly, of
any (i) default under any agreements by which Borrower has become
indebted to any other party, and (ii) action, suit or proceeding at
law or in equity or by or before any governmental instrumentality or
other agency which might be reasonably expected to materially impair the
right of Borrower to carry on its business substantially as now being
conducted or to affect materially adversely the financial condition of
Borrower, and of any combination of such actions, suits or proceedings
which taken together might be reasonably expected materially to impair
such right or to affect materially adversely such financial condition;
(h) ERISA Compliance. Comply with the applicable provisions of
ERISA where the failure so to comply might reasonably be expected to
impair Borrower's right to carry on business as now being conducted or
to affect adversely Borrower's financial condition and furnish to
Lender (a) as soon as possible, and in any event within ten days
after any officer of Borrower knows or has reason to know that any
Reportable Event with respect to any "plan" has occurred, as
defined in ERISA (a "Plan"), a statement of a financial officer of
Borrower setting forth the details as to such Reportable Event and the
action that Borrower proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event, if any, given by
PBGC, and (b) promptly after the receipt or filing thereof, a copy
of any notice Borrower may receive from PBGC relating to the intention
of PBGC to terminate any Plan or to appoint a trustee to administer
any Plan and all reports and notices relating to any Reportable Event
or "prohibited transaction" (as defined in ERISA) which Borrower files
under ERISA with the Internal Revenue Service, PBGC, or the United
States Department of Labor;
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(i) Books and Records. Keep adequate records and books of account,
in which complete entries will be made in accordance with GAAP and
with applicable requirements of any governmental authority having
jurisdiction over Borrower, reflecting all financial transactions;
(j) Delivery of Financial Information. Furnish to Lender (a)
within ninety days after the end of each fiscal year of Borrower, a
balance sheet as of the close of such fiscal year and statements of
income, retained earnings and changes in financial position of
Borrower for such fiscal year, all of which are to be audited by a
certified public accountant satisfactory to Lender (provided, however,
that such financial statements for 1999 need only be compiled and
reviewed), (b) within forty-five days after the end of each of the
first three fiscal quarters of each fiscal year of Borrower, a balance
sheet and statements of income, retained earnings and changes in
financial position of Borrower as of the end of each such quarter and
for the then elapsed portion of such fiscal year, certified by a
financial officer of Borrower, and (c) when or before the same are first
due, copies of all federal, state and local income tax returns filed by
Borrower;
(k) Inspections and Copying. Permit, at any reasonable time and
from time to time, Lender or any of its agents or representatives, to
examine and make copies of and abstracts from the records and books of
account of Borrower and visit the properties of Borrower to discuss the
affairs, finances, and accounts of Borrower with any of its officers,
employees and/or certified public accountants; provided, that, Lender
agrees that it will not, except to the extent required by law,
disclose such information to any other person and will require its
agents to keep such information confidential; and
(l) Additional Assurances. From time to time hereafter,
execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates and documents and take all such
actions as Lender shall reasonably request for the purpose of
implementing or effectuating the provisions of the Loan Documents and,
upon the exercise by Lender of any power, right, privilege or remedy
pursuant to the Loan Documents which requires any consent, approval,
registration, qualification or authorization of any governmental
authority or instrumentality, exercise and deliver all applications,
certifications, instruments and other documents and papers that Lender
may be so required to obtain.
4.2 Negative Covenant. From the date hereof and thereafter for so long
as any portion of the Loan is outstanding or Borrower is indebted to Lender
under any of the Loan Documents, Borrower shall not, unless Lender shall consent
otherwise in writing:
(a) Apply any of the proceeds of the Loan to the purchase or
carrying of any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System, or any
regulations, interpretations or rulings thereunder; and
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(b) Create, incur, assume, or suffer to exist any lien of any
nature, upon or with respect to any of its properties, now owned or
hereafter acquired, or assign as collateral or otherwise convey as
collateral, any right to receive income, except that the foregoing
restrictions shall not apply to (i) any liens granted to Gemplus Corp.
pursuant to the June 15, 1999 Security Agreement between Gemplus Corp.
and Borrower; and/or (ii) any purchase money security interests granted
by Borrower.
ARTICLE 5
EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default. Borrower shall be in default under this
Agreement, and each of the Loan Documents, upon the occurrence of any one or
more of the following events (each an "Event of Default"):
(a) If any representation or warranty made in connection with
this Agreement, any of the other Loan Documents, or any report,
certificate, financial statement or other instrument furnished by
Borrower pursuant to this Agreement shall prove to have been false or
misleading in any materially adverse respect;
(b) If Borrower shall fail to make when due the payment of
principal or interest as required by the Note, or any other
amount payable hereunder, whether at the due date thereof or by
acceleration thereof or otherwise;
(c) If Borrower shall fail to duly observe or perform any
material covenant, condition or agreement required to be observed or
performed hereunder or in the Note, and such failure remains uncured
for a period of fifteen days after written notice thereof;
(d) A default by Borrower under any other obligation of
Borrower to Lender whether now existing or hereafter created and such
default continues for thirty days after Borrower's receipt of written
notice specifying such default; provided, however, that if Borrower is
unable to cure such default within such thirty day period, despite
using diligent efforts to do so, such cure period shall be extended so
long as Borrower continues to use diligent efforts to cure the default.
(e) If Borrower shall (i) apply for or consent to the
appointment of, or the taking or possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (ii) admit in writing its inability, or be generally unable,
to pay its debts as such debts become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary
case under the United States Bankruptcy Code (as now or hereafter in
effect), (v) file a petition seeking to take advantage as debtor of any
other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, (vi) fail to
controvert in a timely or appropriate manner, or acquiesce in writing
to, any petition filed against Borrower in an involuntary case under
such Bankruptcy Code, or (vii) take any corporate action (other than to
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controvert any such petition) for the purpose of effecting any of the
foregoing;
(f) If any proceeding or case shall be commenced in any court
of competent jurisdiction, seeking (i) the liquidation, reorganization,
dissolution, winding-up, or composition or readjustment of debts, of
Borrower, (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of Borrower or of all or any substantial part of
its assets, or (iii) similar relief in respect of Borrower under any
law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, without the consent of Borrower,
and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of thirty
days, or an order for relief against Borrower shall be entered in an
involuntary case under such Bankruptcy Code; or
(g) If Borrower is dissolved, either voluntarily or involuntarily.
5.2 Remedies upon Default. If there is an Event of Default, and
such Event of Default has not been cured within any applicable grace or cure
period, then Lender may, at its option, and by or through a trustee, nominee,
assignee or otherwise, to the fullest extent permitted by law, exercise any or
all of the following rights, remedies and recourses, either successively or
concurrently:
(a) Terminate its obligation to make any further advance under the
Loan;
(b) Declare the Note to be forthwith due and payable, whereupon
the Note shall become forthwith due and payable, both as to principal
and interest, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by Borrower,
anything contained herein or in the Notes to the contrary
notwithstanding;
(c) Pursue any rights and remedy set forth in any of the other
Loan Documents; or
(d) Pursue any other rights and remedy set forth herein, at law,
or in equity.
5.3 Non-Waiver. No delay in exercising or failure to exercise by Lender
of any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Agreement or any law
to Lender may be exercised from time to time and as often as may be deemed
expedient by Lender.
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ARTICLE 6
MISCELLANEOUS TERMS AND CONDITIONS
6.1 Time of Essence. Time is of the essence with respect to all
provisions of this Agreement.
6.2 Attorneys' Fees. In the event of any litigation between the parties
to this Agreement regarding the matters governed hereby or by any of the other
Loan Documents or the enforcement hereof or thereof, the losing party shall
pay to the prevailing party all reasonable expenses and court costs,
including reasonable attorneys' fees, incurred by the prevailing party in
connection with such litigation.
6.3 Severability. If any term or provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
6.4 Further Assurances. Subject to the specific terms of this
Agreement, Borrower shall make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions, as may be reasonably
required in order to effectuate the purposes of this Agreement and to consummate
the transactions contemplated hereby.
6.5 Waivers, etc. No failure or delay on the part of either party in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement nor
consent to any departure therefrom shall in any event be effective unless the
same shall be in writing and signed by an authorized officer of each of the
parties, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
6.6 Entire Agreement. This Agreement and the other Loan Documents
contain the final and complete understanding of the parties with respect to
their subject matter. This Agreement supersedes all prior agreements and
understandings between the parties, whether written or oral, with respect to the
subject matter hereof.
6.7 Counterparts. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
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6.8 Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
6.9 Notices. Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed to be duly given (i) when personally delivered or
(ii) if mailed, registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent:
(i) if to the Borrower:
RealMed Corporation
Suite 350
00000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Chief Executive Officer
Facsimile Number: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
Suite 2700
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
(ii) if to the Lender:
Newcourt Financial USA Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
Facsimile Number: (000) 000-0000
with copies to:
Xxxx X. Xxxxxxx
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (317) 236_9802
or to such other address as may have previously furnished to the other party in
writing in the manner set forth above.
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6.10 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF INDIANA.
6.11 Headings. The headings in this Agreement are for purposes of
convenience of reference, shall not be deemed to constitute a part of this
Agreement and shall not be considered in construing the terms of this Agreement.
6.12 Parties Bound. This Agreement is binding on and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns as permitted by
this Agreement.
6.13 Construction. This Agreement shall not be strictly construed
against any party. This Agreement is executed in conjunction with the other Loan
Documents and is to be construed harmoniously therewith. If there is any
conflict between the terms of this Agreement and any of the other Loan
Documents, the terms selected by Lender in its sole subjective discretion shall
be controlling.
6.14 Gender. Wherever the context shall so require, all words in the
masculine gender shall be deemed to include the feminine or neuter gender; all
singular words shall include the plural; and, all plural words shall include the
singular.
IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement to
be executed by its duly authorized officer as of the date first written above.
LENDER: BORROWER:
NEWCOURT FINANCIAL USA INC. REALMED CORPORATION
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
Title: Executive Vice President Title: President
