EXHIBIT 10.6
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNDER CIRCUMSTANCES THAT
WOULD RESULT IN A VIOLATION OF THE REGISTRATION REQUIREMENTS OF SUCH
LAWS. THIS NOTE IS SUBJECT TO FURTHER RESTRICTIONS ON TRANSFER AND
CERTAIN OTHER PROVISIONS AS SET FORTH IN THIS NOTE.
THE PRINCIPAL BALANCE OF THIS NOTE IS SUBJECT TO ADJUSTMENT AS SET FORTH
IN THIS NOTE. PAYMENTS ON ACCOUNT OF THE INDEBTEDNESS EVIDENCED BY THIS
NOTE AND THE EXERCISE OF REMEDIES HEREUNDER ARE SUBORDINATED AS SET
FORTH IN THIS NOTE.
AMENDED AND RESTATED
SENIOR SUBORDINATED
NON-NEGOTIABLE PROMISSORY NOTE
U.S. $116,240,692 Dated: February 12, 2004
This Amended and Restated Senior Subordinated Non-Negotiable Promissory
Note (this "NOTE") is made February 12, 2004, by WellCare Health Plans, Inc., a
Delaware corporation (the "MAKER"), in favor of Xxxxx X. Xxxxx, as Stockholder
Representative on behalf of the Stockholders (as defined below) (the "PAYEE").
The Maker is indebted to the Payee under that certain Senior
Subordinated Non-Negotiable Promissory Note dated July 31, 2002, in the original
principal amount of $53,000,000, as amended by that certain Amendment No. 1 to
Senior Subordinated Non-Negotiable Promissory Note dated April 18, 2003 (as so
amended, the "ORIGINAL NOTE"). The Original Note was issued pursuant to, and
evidences indebtedness of the Maker to the Payee arising under, that certain
Purchase Agreement, dated May 17, 2002 (as subsequently amended, the "PURCHASE
AGREEMENT"), by and among WellCare Holdings, LLC, a Delaware limited liability
company ("PARENT"); the Maker; Well Care HMO, Inc., a Florida corporation,
HealthEase of Florida, Inc., a Florida corporation, Comprehensive Health
Management, Inc., a Florida corporation, and Comprehensive Health Management of
Florida, L.C., a Florida limited liability company (collectively, the "FLORIDA
COMPANIES"); and the then-stockholders of the Florida Companies (the
"STOCKHOLDERS"). Capitalized terms used and not otherwise defined in this Note
shall have the respective meanings ascribed to them in the Purchase Agreement.
In order to document certain amendments to the terms of the Original
Note, the Original Note is being surrendered and exchanged for, and the unpaid
principal balance of the indebtedness evidenced thereby is being merged into and
will hereafter be evidenced by, this Note.
For value received, the Maker hereby promises to pay to the order of the
Payee the principal amount hereunder, together with simple interest thereon, all
in the manner provided below.
The principal amount of this Note shall initially be One Hundred Sixteen
Million Two Hundred Forty Thousand and Six Hundred Ninety-Two United States
Dollars (U.S. $116,240,692) (the "INITIAL PRINCIPAL AMOUNT"), but shall be
subject to decrease or increase, as the case may be, as provided herein.
1. Definitions. As used herein, the following terms shall have the
meanings set forth below:
(a) "BUYER CLAIM AMOUNT" shall mean the total amount of (i) all
Indemnifiable Losses paid or incurred by any Buyer Indemnified Party under
Section 9.2(a) and 9.2(e) of the Purchase Agreement which arise from Third Party
Claims, and (ii) all other Indemnifiable Losses asserted by a Buyer Indemnified
Party which shall have been finally determined to constitute Indemnifiable
Losses pursuant to the last sentence of Section 9(e) of the Purchase Agreement.
(b) "INDEBTEDNESS" means, as to any Person: (i) all indebtedness,
liabilities or other obligations of such Person for borrowed money and all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (ii) all reimbursement or other obligations
of such Person under or in respect of letters of credit, bankers acceptances,
interest rate swaps, caps, floors and collars, currency swaps, or other similar
financial products; (iii) all indebtedness of another Person of the types
referred to in clause (i) or (ii) above, guaranteed directly or indirectly in
any manner by the Person for whom Indebtedness is being determined, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay
or purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss, (C) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether or not such property is received or such services are
rendered) or (D) otherwise to assure a creditor against loss; and (iv) all
indebtedness of another Person of the types referred to in clause (i), (ii) or
(iii) above secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contract rights) owned by the Person for whom
Indebtedness is being determined, even though such Person has not assumed or
become liable for the payment of such indebtedness of such other Person, in each
case whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined.
(c) "MATURITY DATE" shall mean September 15, 2006.
(d) "QUALIFIED IPO" shall mean an underwritten public offering
and sale of equity securities of the Parent or any Subsidiary of the Parent
pursuant to an effective registration statement under the Securities Act, other
than an offering made in connection with a
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business acquisition or combination pursuant to a registration statement on Form
S-4 or any similar form, or an employee benefit plan pursuant to a registration
statement on Form S-8 or any similar form, in which the aggregate gross proceeds
received by the Parent or such Subsidiary (before the deduction of underwriting
discounts and expenses) are in excess of $75 million.
(e) "RESERVE AMOUNT" shall mean the total asserted or claimed value
of all claims, if any, made in good faith by any Buyer Indemnified Party
for Indemnifiable Losses under Section 9.2 of the Purchase Agreement, the
resolution of which shall not have been finally determined in accordance with
the relevant provisions of Section 9.2 of the Purchase Agreement prior to the
Maturity Date.
(f) "SELLER CLAIM AMOUNT" shall mean the total amount of (i) all
Indemnifiable Losses paid or incurred by any Seller Indemnified Party under
Section 9.2(b) and 9.2(e) of the Purchase Agreement which arise from Third Party
Claims, and (ii) all other Indemnifiable Losses asserted by a Seller Indemnified
Party which shall have been finally determined to constitute Indemnifiable
Losses pursuant to the last sentence of Section 9(e) of the Purchase Agreement.
(g) "SENIOR COVENANT DEFAULT" means any default, other than a
Senior Payment Default, in respect of any Senior Indebtedness (after giving
effect to any applicable grace periods) that entitles the Senior Payee to
accelerate the obligations outstanding thereunder, which default shall not have
been cured or waived.
(h) The "SENIOR DEBT LIMIT" applicable on any given date shall
mean the sum of (i) Forty Million United States Dollars (U.S. $40,000,000), plus
(ii) an amount equal to the EBITDA (as determined in accordance with GAAP) of
any and all businesses acquired by the Maker or any Subsidiary following the
date hereof, in each case calculated for the twelve month period immediately
preceding the date of such acquisition, plus (iii) the total amount of any
Indebtedness incurred by the Maker or any Subsidiary following the date hereof,
not to exceed Sixty Million United States Dollars (U.S. $60,000,000) in the
aggregate, to the extent such Indebtedness is used to finance the acquisition of
any business or businesses by Maker or any Subsidiary of Maker.
(i) "SENIOR INDEBTEDNESS" shall mean the principal of (and
premium, if any), interest (including all interest accrued subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) on, and
all fees and other amounts (including, without limitation, any costs,
enforcement expenses (including legal fees and disbursements), collateral
protection expenses and other reimbursement or indemnity obligations relating
thereto) payable in connection with, any Indebtedness of the Maker (whether as
primary obligor or as guarantor) to any Person (each a "SENIOR PAYEE"), now
existing or hereafter arising (together with any renewals, refundings,
refinancings or other extensions thereof), and that are specifically designated
by the Maker to be Senior Indebtedness for purposes of this Note in the
instruments evidencing such indebtedness or obligations at the time of the
issuance thereof, or which by their terms are senior to any other category or
class of indebtedness of the Maker; provided, however, that in no event shall
any Indebtedness of the Maker to any of its officers or directors, or any Trade
Indebtedness, be
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deemed to be Senior Indebtedness. As a point of clarification, the Maker may, at
its option, designate any Indebtedness of the Maker to Xxxxx Private Equity
Investors LP or its Affiliates as Senior Indebtedness. Notwithstanding the
foregoing, the following shall be deemed not to be Senior Indebtedness solely
for purposes of determining whether the principal amount of Senior Indebtedness
exceeds the Senior Debt Limit, and shall not count toward the Senior Debt Limit:
(i) all Indebtedness that is drawn down and used specifically for the purpose of
making any payment or prepayment of principal or interest under this Note, and
(ii) the unused portion of any line of credit or commitment for Senior
Indebtedness.
(j) "SENIOR PAYMENT DEFAULT" means any default in payment (including
by reason of acceleration due to default) of any Senior Indebtedness (after
giving effect to any applicable grace periods).
(k) "SUBORDINATED DEBT PAYMENT" means any payment or distribution
by or on behalf of the Maker, directly or indirectly, of assets of the Maker of
any kind or character, whether in cash, property or securities, including on
account of the purchase, redemption or other acquisition of Subordinated
Indebtedness, or by setoff, exchange or in any other manner, for or on account
of any Subordinated Indebtedness.
(l) "SUBORDINATED INDEBTEDNESS" means the indebtedness, liabilities
and other obligations of the Maker to the Payee under this Note, including,
without limitation, all amounts of principal, premium, all interest accrued
hereon (including all interest accrued subsequent to the commencement of any
bankruptcy or similar proceeding), and all other fees and other amounts
(including, without limitation, any costs, enforcement expenses (including legal
fees and disbursements) and other reimbursement or indemnity obligations
relating thereto) payable by the Maker to the Payee under this Note.
2. Payments of Principal. The principal amount hereunder shall be
payable in installments, as follows:
(a) In the event that a Qualified IPO shall be consummated on or
prior to August 15, 2004, then
(i) $35,000,000 shall be payable within 30 days following the
consummation of such Qualified IPO;
(ii) $9,672,718 shall be payable on September 15, 2004;
(iii) $30,783,987 shall be payable on September 15, 2005; and
(iv) $40,783,987 shall be payable on the Maturity Date.
(b) In the event that a Qualified IPO shall not have been consummated
on or prior to August 15, 2004, then
(i) $30,080,230 shall be payable on September 15, 2004;
(ii) $38,080,230 shall be payable on September 15, 2005; and
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(iii) $48,080,232 shall be payable on the Maturity Date;
provided, however, that (A) in the event that a Qualified IPO shall
be consummated at any time after August 15, 2004 and on or before September 15,
2005, then (1) in addition to the other payments set forth in this Section 2(b),
$14,672,718 shall be due and payable within 15 days following the consummation
of such Qualified IPO, (2) the amount otherwise payable on September 15, 2005
pursuant to this Section 2(b) shall be reduced by $7,296,243, and (3) the amount
otherwise payable on the Maturity Date pursuant to this Section 2(b) shall be
reduced by $7,296,245; and (B) in the event that a Qualified IPO shall be
consummated at any time after September 15, 2005 and before the Maturity Date,
then (1) in addition to the other payments set forth in this Section 2(b),
$7,296,245 shall be due and payable within 15 days following the consummation of
such Qualified IPO, and (2) the amount otherwise payable on the Maturity Date
pursuant to this Section 2(b) shall be reduced by $7,296,245.
3. Adjustments.
(a) Notwithstanding anything to the contrary contained herein,
(i) the outstanding principal amount due hereunder from time to time shall be
reduced by any Buyer Claim Amounts and shall be increased by any Seller Claim
Amounts, and (ii) any payments due under this Note shall be decreased or
increased, as applicable, by any Buyer Claim Amounts and any Seller Claim
Amounts arising prior to the time of such payment; in each case, except to the
extent that such Buyer Claim Amounts or Seller Claim Amounts shall previously
have been accounted for in the calculation of the principal amount of this Note
or any payment hereunder.
(b) In addition, any amounts otherwise payable by the Maker hereunder
on the Maturity Date shall be reduced by all Reserve Amounts. Upon the final
resolution, pursuant to Section 9.2 of the Purchase Agreement, of any claim
giving rise to a Reserve Amount, (i) if the amount of such claim as finally
determined is less than the Reserve Amount with respect thereto, then the Maker
shall pay to the Payee the difference thereof within ten Business Days after the
date of such final determination, together with interest thereon for the period
from the Maturity Date to the date of such payment, and (ii) if the amount of
such claim as finally determined is greater than the Reserve Amount with respect
thereto, then the Payee shall pay to the Maker the difference thereof within ten
Business Days after the date of such final determination (in each case, subject
to the terms, conditions and limitations contained in Section 9.2 of the
Purchase Agreement); provided, however, that in no event shall the Payee be
required to pay to the Maker pursuant to this clause (ii) an amount greater than
the amount paid or payable by the Maker on the Maturity Date.
4. Interest.
(a) Interest on the outstanding principal amount hereunder (and any
other amounts with respect to which interest is payable under this Note) shall
be payable on the last day of each calendar quarter until the entire principal
amount hereunder and all accrued interest thereon is paid under this Note (each,
an "INTEREST PAYMENT DATE"), at a rate equal to 5.25% per annum (provided,
however, that following the occurrence and during the continuance of any Event
of Default (as defined below), the applicable interest rate shall be 12% per
annum), in each case calculated based upon the outstanding principal amount
hereunder on the applicable Interest
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Payment Date. Notwithstanding the preceding sentence, on each Interest Payment
Date, the amount of interest payable shall be increased or decreased, as
applicable, by the difference between (i) the total amount of interest actually
paid (A) on all previous Interest Payment Dates and (B) under the Prior Note,
and (ii) the total amount of interest that would have been payable (A) on such
previous Interest Payment Dates had the amount of interest payable been based
upon the principal amount outstanding on each such Interest Payment Date, after
giving effect to all Buyer Claim Amounts, all Seller Claim Amounts and, if
applicable, all Reserve Amounts, and (B) under the Prior Note had the amount of
interest payable thereunder been based upon the principal amount thereof, as
adjusted by all Buyer Claim Amounts, all Seller Claim Amounts and, if
applicable, all Reserve Amounts, such that the total amount of interest actually
paid hereunder during the term of this Note is based upon the Initial Principal
Amount, as adjusted by each of such adjustments.
(b) Anything herein to the contrary notwithstanding, if during any
period for which interest is computed hereunder, the amount of interest computed
on the basis provided for in this Note, together with all fees, charges and
other payments which are treated as interest under applicable law, as provided
for herein or in any other document executed in connection herewith, would
exceed the amount of such interest computed on the basis of the Highest Lawful
Rate (as defined below), the Maker shall not be obligated to pay, and the Payee
shall not be entitled to charge, collect, receive, reserve or take, interest in
excess of the Highest Lawful Rate, and during any such period the interest
payable hereunder shall be computed on the basis of the Highest Lawful Rate. As
used herein, "HIGHEST LAWFUL RATE" means the maximum non-usurious rate of
interest, as in effect from time to time, which may be charged, contracted for,
reserved, received or collected by the Payee in connection with this Note under
applicable law.
(c) All computations of interest under this Note shall be made on
the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days occurring in the applicable Interest Period.
5. Payment Mechanics. All payments hereunder shall be made in lawful
money of the United States of America and in same day or immediately available
funds, prior to 5:00 p.m. (Eastern Time) on the applicable due date, to the
address of the Payee set forth below or such other address as the Payee may
designate in a written notice to the Maker. Whenever any payment hereunder shall
be stated to be due on a day other than a Business Day, then, except as
otherwise provided herein, such payment shall be made, and such payment date
shall occur, on the next succeeding Business Day.
6. Security. The obligations of the Maker under this Note are secured by
the pledge of a portion of the capital stock of the Maker, as set forth in that
certain Pledge Agreement, dated as of July 31, 2002, between the Parent and the
Payee (as subsequently amended, the "PLEDGE AGREEMENT"), the terms and
provisions of which are incorporated herein by this reference.
7. Prepayments.
(a) The Maker may, at any time and from time to time, make a partial
prepayment of the outstanding amount hereof, without premium or penalty. Any
such partial prepayment shall first be credited to the payment of accrued
interest and the balance, if any, shall
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be credited to the then-outstanding principal amount hereunder (and all payments
due hereunder after the date thereof shall be reduced by the amount of any such
partial prepayments in order of maturity).
(b) In the event that a Sale of the Maker (as defined below) is
consummated at any time while this Note is outstanding, the Maker shall prepay
the entire outstanding amount hereof, and upon such prepayment this Note shall
immediately be deemed void, canceled and satisfied. As used herein, "SALE OF THE
MAKER" shall mean the sale of the Parent or the Maker in any one transaction or
a series of related transactions to a third party or third parties (other than
any Affiliate of the Parent or the Maker) pursuant to which such party or
parties acquires (i) equity securities of the Maker, or of Subsidiaries of the
Maker representing substantially all of the business of the Maker, constituting
a majority of the common equity securities of the Maker or all of the
Subsidiaries of the Maker (in each case, calculated on a fully-converted basis),
whether by merger, consolidation or sale or transfer of capital stock or (ii)
all or substantially all of the assets of the Maker or its Subsidiaries.
8. Subordination. By accepting this Note, the Payee agrees that all
payments on account of the Subordinated Indebtedness shall be subordinate and
subject in right of payment, to the extent and in the manner set forth herein,
to the prior payment in full in cash of the Senior Indebtedness.
(a) The Maker shall not (i) at any given time prior to the payment in
full of the portion of the principal amount hereof due on September 15, 2005
pursuant to Section 2 of this Note, incur Senior Indebtedness, the principal
amount of which exceeds, in the aggregate, the Senior Debt Limit, (ii) for so
long as this Note remains outstanding, incur any Indebtedness that is secured by
any of the assets of the Maker or any of its Subsidiaries, other than (A) Senior
Indebtedness and (B) Indebtedness that is secured by (I) Liens on fixed or
capital assets acquired, constructed or improved by the Maker or any Subsidiary,
to the extent of Indebtedness incurred for such acquisition, construction or
improvement, (II) other purchase money Liens, (III) Liens on property sold
pursuant to sale and leaseback transactions and general intangibles related
thereto, (IV) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, or (V) other Liens granted to vendors or
other trade creditors (collectively, "TRADE INDEBTEDNESS"), or (iii) for so long
as this Note remains outstanding, incur any Indebtedness which ranks pari passu
to this Note, other than Indebtedness permitted pursuant to clauses (a) or (b)
hereof or which is expressly subordinated to this Note.
(b) The Maker has, upon the issuance of the Original Note, provided
written notice of all Senior Indebtedness in existence as of such date along
with the principal amount of the Senior Indebtedness, and the Maker has updated
and shall continue to update such notice in writing at any time when there has
been any material change to such information or any additional Senior
Indebtedness shall be added.
(c) Notwithstanding the foregoing, the Payee shall be entitled to
receive, and the Maker shall pay, any and all scheduled payments of principal
and interest under this Note except as set forth below. During the continuance
of any Senior Payment Default with respect to which the Payee shall have
received written notice from any Senior Payee or the Maker, the Payee shall not
accept or receive, directly or indirectly, and the Maker shall not make, any
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Subordinated Debt Payment until and unless all amounts due with respect to such
Senior Payment Default shall have been paid in full or until such Senior Payment
Default shall have been cured or waived (a "PAYMENT DEFAULT BLOCKAGE PERIOD").
During the continuance of any Senior Covenant Default with respect to which the
Payee shall have received written notice from such Senior Payee or the Maker (a
"BLOCKAGE NOTICE"), the Payee shall not accept or receive, directly or
indirectly, and the Maker shall not make, any Subordinated Debt Payment from the
date the Payee shall have received such Blockage Notice until the earlier of (i)
89 days after such date and (ii) the date, if any, on which such Senior
Indebtedness to which such Senior Covenant Default relates is discharged or such
Senior Covenant Default is waived or cured (a "NON-PAYMENT DEFAULT BLOCKAGE
PERIOD" and, together with a Payment Default Blockage Period, a "BLOCKAGE
PERIOD"). Except as explicitly set forth in this subsection (c), nothing
contained in this Note shall prevent the Maker from being obligated to make
Subordinated Debt Payments, and the Maker shall remain fully obligated to the
Payee to make such payments.
(d) Immediately upon the expiration of any Blockage Period, the Maker
shall make all past-due payments under this Note and shall resume making all
other required payments due hereunder, including any payment blocked during such
Blockage Period. Only one Blockage Notice may be given in any 360-day period,
and no Senior Covenant Default that previously served as the basis for a
Blockage Notice or that was in existence (and as to which the applicable Senior
Payee had actual notice) during a prior Blockage Period may serve as the basis
for a Blockage Notice unless such Senior Covenant Default was subsequently cured
or waived for a period of at least 90 consecutive days.
(e) In the event that, notwithstanding the foregoing provisions, any
Subordinated Debt Payment shall be received during a Blockage Period, such
Subordinated Debt Payment shall be held in trust for the benefit of the Senior
Payee(s) and shall be paid over or delivered to the Senior Payee(s) for
application to the payment in full in cash of all Senior Indebtedness remaining
unpaid to the extent necessary to give effect to the subordination provisions
contained in this Note, after giving effect to any concurrent payments or
distributions to any Senior Payee in respect of the Senior Indebtedness. Any
such Subordinated Debt Payment paid over or delivered to the Senior Payee(s)
shall not constitute payments in respect of the Subordinated Indebtedness and
will not reduce the outstanding amount of the Subordinated Indebtedness. To the
extent there are any excess amounts paid over or delivered to the Senior
Payee(s) after the Senior Indebtedness then due has been paid in full, such
excess amounts shall be remitted to the Payee to the extent necessary to pay all
the Subordinated Indebtedness then due, which amounts so remitted shall
constitute payments in respect of the Subordinated Indebtedness and will so
reduce the outstanding amount of the Subordinated Indebtedness.
(f) If, while any Subordinated Indebtedness is outstanding, any
bankruptcy, insolvency, reorganization, receivership, arrangement, marshalling
of assets and liabilities or similar proceeding is commenced by or against the
Maker or its property, if the Payee fails to file a proof of claim for its
Subordinated Indebtedness by the date that is ten days before the expiration of
time to file any such claim, then the Senior Payee(s) shall be irrevocably
authorized and empowered (in the name of the Senior Payee(s) or in the name of
the Payee or otherwise), but shall have no obligation, to file claims and proofs
of claim and take such other action (including voting the Subordinated
Indebtedness) as they may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the Senior Payees.
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(g) In the event of any payment or distribution of assets of the
Maker of any kind or character, whether in cash, property or securities, upon
the dissolution, winding up or total or partial liquidation or reorganization,
readjustment, arrangement or similar proceeding relating to the Maker or its
property, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership, arrangement or similar proceedings or upon an assignment for the
benefit of creditors, or upon any other marshalling or composition of the assets
and liabilities of the Maker, or otherwise: (i) all amounts owing on account of
the Senior Indebtedness shall first be paid in full in cash before any
Subordinated Debt Payment is made (except for equity or debt securities of the
Maker the payment or redemption of which is subordinate, at least to the extent
provided in this Note with respect to the Subordinated Indebtedness, to the
payment of the Senior Indebtedness and to the payment of all securities issued
in exchange therefor to the Senior Payee, which equity or debt securities have
been provided for by a plan of reorganization, arrangement, adjustment,
composition, recapitalization or readjustment of the Maker in any insolvency,
liquidation or similar proceeding approved by final order of a court
("SUBORDINATED SECURITIES")); and (ii) to the extent permitted by applicable
law, any Subordinated Debt Payment, other than Subordinated Securities, to which
the Payee would be entitled except for the provisions hereof, shall be paid or
delivered by the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other liquidating agent making such payment or distribution
directly to the Senior Payee(s) for application to the payment of the Senior
Indebtedness in accordance with clause (i) above, after giving effect to any
concurrent payment or distribution or provision therefor to the Senior Payee(s)
in respect of the Senior Indebtedness.
(h) The subordination provisions of this Note are intended solely for
the purpose of defining the relative rights against the Maker of the Payee, on
the one hand, and the Senior Payees, on the other hand. Nothing contained herein
shall, as between the Maker and the Payee, (i) impair the obligation of the
Maker to pay the principal amount of or interest on this Note and its other
obligations with respect to the Subordinated Indebtedness as and when the same
shall become due and payable in accordance with the terms thereof, (ii)
otherwise affect the relative rights against the Maker of the Payee, on the one
hand, and the creditors of the Maker (other than the Senior Payees), on the
other hand or (iii) prevent the Payee from exercising all remedies under the
Pledge Agreement or otherwise permitted by applicable law upon an Event of
Default, subject to the agreement by the Payee that, so long as any Senior
Indebtedness is outstanding, the Payee will not take any action to enforce any
right or remedy available to the Payee under this Note or the Pledge Agreement
(an "ENFORCEMENT ACTION") prior to the earliest of:
(i) the commencement of any bankruptcy, insolvency,
reorganization, receivership, arrangement, marshalling of assets and liabilities
or similar proceeding by or against the Maker or its property;
(ii) the date that is (A) 15 days after written notice is given
by the Payee to the Senior Payee, Parent and the Maker of the occurrence and
continuance of any Event of Default, which notice shall specify the nature of
such Event of Default and state the Payee's intent to commence an Enforcement
Action (the "PAYEE DEFAULT NOTICE") or, (B) in the event during the 15-day
period referred to in clause (A) the Senior Payee gives the Payee a written
notice invoking a standstill, the date that is 90 days after the date the Payee
Default Notice is given; provided that in the case of either of the foregoing
clauses (A) or (B), the Maker shall
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have failed to cure such Event of Default or such Event of Default shall not
have been waived prior to the taking of such Enforcement Action by the Payee; or
(iii) any Senior Indebtedness having been accelerated or declared
accelerated in its entirety in writing;
provided, however, that until all of the Senior Indebtedness shall have been
paid in full in cash, any payments, distributions or proceeds received by the
Payee resulting from the exercise of any action to enforce any right or remedy
available to the Payee under this Note shall be subject to the terms of this
Note; and provided, further, that, notwithstanding the foregoing, the Payee may
institute and maintain, at any time, a judicial proceeding to determine whether
a Performance Default (as defined below) shall have occurred under this Note
(subject to the Payee having first complied with any applicable terms,
conditions and procedures set forth in the Purchase Agreement).
(i) Until the payment and performance in full of all Senior
Indebtedness, the Payee shall not have, and shall not directly or indirectly
exercise, any rights that it may acquire by way of subrogation under this Note,
by any payment or distribution to the Senior Payees hereunder or otherwise. Upon
the payment and performance in full of all Senior Indebtedness, the Payee shall
be subrogated to the rights of the Senior Payees to receive payments or
distributions applicable to the Senior Indebtedness until the Subordinated
Indebtedness shall be paid in full. For the purposes of the foregoing
subrogation, no payments or distributions to the Senior Payees of any cash,
property or securities to which the Payee would be entitled except for the
provisions of this Note shall, as among the Maker and its creditors (other than
the Senior Payees and the Payee), be deemed to be a payment by the Maker to or
on account of the Senior Indebtedness.
(j) The Payee by its acceptance hereof agrees to execute and deliver
to any Senior Payee such subordination agreement as may be reasonably requested
by such Senior Payee and as may have terms and conditions substantially the same
as the subordination provisions contained herein.
(k) No rights of any present or future Senior Payee to enforce
subordination as provided in this Note shall at any time be prejudiced or
impaired by any act or failure to act on the part of the Maker or any such
Senior Payee, or by noncompliance by the Maker with the terms, provisions or
covenants of this Note, regardless of any knowledge thereof any such Senior
Payee may have or otherwise be charged with. Without in any way limiting the
generality of the preceding sentence, any Senior Payee may, at any time and from
time to time, without the consent of or notice to the Payee, without incurring
responsibility to the Payee and without impairing or releasing the subordination
provided in this Note or the obligations hereunder of the Payee to the Senior
Payee(s), do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew, increase (subject
to the Senior Debt Limit) or alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding, (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness, (iii) release any Person
10
liable in any manner for the collection of Senior Indebtedness and (iv) exercise
or refrain from exercising any rights against the Maker and any other Person.
(l) If the Payee, in contravention of the terms of this Note, shall
commence, prosecute or participate in any suit, action or proceeding against the
Maker, then the Maker may interpose as a defense or plea the subordination
provisions of this Note, and any Senior Payee may intervene and interpose such
defense or plea in its name or in the name of the Maker. If the Payee, in
contravention of the terms of this Note, shall attempt to collect under this
Note or enforce any provisions of this Note, then any Senior Payee or the Maker
may restrain the enforcement thereof in the name of such Senior Payee or in the
name of the Maker.
(m) To the extent that the Maker or any guarantor of or provider of
collateral for the Senior Indebtedness or the Subordinated Indebtedness, as the
case may be, makes any payment on the Senior Indebtedness or the Subordinated
Indebtedness, as the case may be, that is subsequently invalidated, declared to
be fraudulent or preferential or set aside or is required to be repaid to a
trustee, receiver or any other party under any bankruptcy, insolvency or
reorganization act, state or federal law, common law or equitable cause of
action (each, a "VOIDED PAYMENT"), then to the extent of such Voided Payment,
that portion of the Senior Indebtedness or the Subordinated Indebtedness, as the
case may be, that had been previously satisfied by such Voided Payment shall be
revived and continue in full force and effect as if such Voided Payment had
never been made. In the event that a Voided Payment is recovered from any Senior
Payee, the subordination provisions of this Note shall be in full force and
effect with respect to the obligations hereunder from the date of such Senior
Payee's initial receipt of such Voided Payment until the full amount of such
Voided Payment is restored to such Senior Payee.
9. Events of Default; Remedies. Subject to the terms and provisions
hereof, upon the occurrence of any Event of Default, and at any time thereafter
during which such Event of Default shall be continuing, the Payee may (a) by
notice to the Maker, declare the entire then current unpaid principal amount of
this Note, all interest accrued and unpaid hereon and all other amounts then
payable hereunder to be forthwith due and payable (provided, however, that if an
Event of Default specified in clause (iii) or (iv) of the following paragraph
shall occur, the then current unpaid principal amount of this Note, all interest
accrued and unpaid hereon and all other amounts then payable hereunder shall
automatically become due and payable without the giving of any such notice); and
(b) proceed to enforce all other rights and remedies available to the Payee
under applicable law.
The occurrence of any of the following specified events shall
constitute an "EVENT OF DEFAULT" hereunder:
(i) the failure to pay within 30 days of when due any amount of
principal or interest hereunder or other amount payable hereunder (provided that
the Payee shall have provided the Maker with written notice of such failure to
pay) (a "PAYMENT DEFAULT");
(ii) the Maker shall have failed to perform or observe any
covenant or agreement in this Note or the Pledge Agreement, and such failure
shall not have been cured within 30 days of the Maker's receipt of written
notice thereof (a "PERFORMANCE DEFAULT");
11
(iii) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking liquidation, reorganization or other relief in
respect of the Maker or its debts under any federal or state bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or the
appointment of a receiver, trustee, custodian, or similar official for the Maker
or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(iv) the Maker shall (A) voluntarily commence, or consent to the
commencement of, any proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (B) apply
for or consent to the appointment of a receiver, trustee, custodian, or similar
official for the Maker or for a substantial part of its assets, (C) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (D) make a general assignment for the benefit of creditors or
(E) take any action for the purpose of effecting any of the foregoing; and
(v) any Senior Payee shall have accelerated the payment of any Senior
Indebtedness in excess of $3,000,000;
The Maker shall promptly notify the Payee of the occurrence of an
Event of Default specified in clause (iii), (iv) or (v) of the definition of
Event of Default. Following the occurrence of an Event of Default, and for so
long as such Event of Default is continuing, the Maker shall not make any
dividend payments on account of any shares of its capital stock.
10. Covenants. For so long as this Note remains outstanding, the Maker
(a) shall provide to the Payee copies of the Maker's or Parent's quarterly
unaudited and annual audited consolidated financial statements, in the case of
quarterly statements, not more than 45 days after the end of the applicable
quarter and, in the case of annual statements, not more than 90 days after the
end of the Maker's or Parent's fiscal year (provided, however, that following
the occurrence of an Event of Default, and for so long as such Event of Default
is continuing, the Maker shall also provide to the Payee copies of the Maker's
or Parent's monthly unaudited financial statements, within 15 days of the
applicable month), together with a schedule showing in reasonable detail the
amount of any Senior Indebtedness outstanding and the Maker's calculation of the
applicable Senior Debt Limit as of the end of such quarterly or annual period;
(b) shall not redeem any shares of its capital stock or pay dividends on its
common stock (provided that any payments of dividends on account of any shares
of its preferred stock shall lower the Senior Debt Limit to the extent of such
payments), other than to the extent required to allow Parent to (i) pay all
Taxes owed by it, if any, (ii) pay any fees and expenses, not to exceed $250,000
per year in the aggregate, (iii) repurchase membership interests held by its
officers or employees upon termination of any such person's employment, and (iv)
pay fees to its directors, not to exceed $250,000 per year in the aggregate; and
(c) shall not, and shall not permit any of its direct or indirect wholly-owned
Subsidiaries (each, a "MAKER SUBSIDIARY") to, enter into or carry out any
transaction with any Affiliate of the Maker (other than any Maker Subsidiary),
including purchasing property or services from or selling property or services
to any Affiliate of the Maker (other than any Maker Subsidiary), other than any
transaction that (i) is entered into upon fair and reasonable arms'-length terms
and conditions (including, without limitation, all employment
12
agreements and arrangements, and payments made pursuant thereto) or (ii) is
approved in writing by the Payee, which approval shall not be unreasonably
withheld.
11. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission against
facsimile confirmation or mailed by internationally recognized overnight courier
prepaid, to the parties at the following addresses or facsimile numbers:
If to the Payee: Xxxxx X. Xxxxx, M.D.
c/o Xxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
with a copy to: Xxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Maker: WellCare Health Plans, Inc.
0000 X. Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Chief Executive Officer
General Counsel
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxxxx Xxxx., Xxxxx 0000
XxXxxx, XX 00000
Attn: Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
All such notices, requests and other communications will (a) if delivered
personally to the address as provided herein, be deemed given upon delivery, (b)
if delivered by facsimile transmission to the facsimile number as provided
herein, be deemed given upon facsimile confirmation, and (c) if delivered by
overnight courier to the address as provided herein, be deemed given on the
earlier of the first Business Day following the date sent by such overnight
courier or upon receipt (in each case regardless of whether such notice, request
or other communication is received by any other Person to whom a copy of such
notice is to be delivered pursuant hereto). Either party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other party
hereto.
12. Assignment. This Note shall be non-negotiable and non-transferable.
Without limiting the generality of the foregoing, the Payee shall have no right
to assign, pledge,
13
hypothecate or otherwise transfer this Note or any of its rights or interests
hereunder without the prior written consent of the Maker, which consent may be
granted or denied in the Maker's sole discretion. Notwithstanding the foregoing,
the Payee may assign its rights hereunder to a successor Stockholder
Representative on behalf of the Stockholders, provided that such successor
Stockholder Representative is reasonable satisfactory to the Maker.
13. Third Party Beneficiaries. The terms and provisions of this Note are
intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and it is not the intention of the parties to
confer third-party beneficiary rights, and this Note does not confer any such
rights, upon any other Person, other than any and all Senior Payees, each of
whom is an express third-party beneficiary of the applicable provisions of this
Note.
14. Certain Waivers. The Maker waives presentment, demand, notice of
dishonor and protest and consents to any and all extensions or renewals hereof
without notice. TIME IS OF THE ESSENCE IN THIS NOTE.
15. Costs of Collection. The Maker promises to pay all reasonable costs
of collection incurred in connection with the collection of this Note following
an Event of Default, including, without limitation, reasonable attorneys' fees
and costs, whether incurred before, during and after litigation, in all trial
and appellate levels as well as those incurred in any bankruptcy proceedings and
post-judgment proceedings.
16. Entire Agreement. This Note and the Pledge Agreement, together with
the Purchase Agreement and the other agreements and documents referred to
therein, constitute the entire agreement between the Maker and the Payee with
regard to the subject matter hereof. This Note supersedes all previous
agreements between such parties with respect to the subject matter hereof
including, without limitation, the Prior Note, which is hereby rendered null and
void.
17. Headings. The headings used in this Note have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
18. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL, SUBSTANTIVE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OR CHOICE OF LAWS PRINCIPLES.
19. Jurisdiction; Venue. ALL ACTIONS AND PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS NOTE SHALL BE HEARD AND DETERMINED IN ANY FLORIDA STATE OR
FEDERAL COURT SITTING IN THE CITY OF TAMPA, FLORIDA, AND EACH PARTY HEREBY
IRREVOCABLY ACCEPTS AND CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION OF THOSE
COURTS FOR SUCH PURPOSE. IN ADDITION, EACH PARTY HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF
BROUGHT IN ANY STATE OR FEDERAL COURT SITTING IN THE CITY OF TAMPA, FLORIDA AND
FURTHER IRREVOCABLY WAIVES
14
ANY CLAIM THAT ANY ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
20. Waiver of Jury Trial. THE MAKER AND, BY ITS ACCEPTANCE HEREOF, THE
PAYEE HEREBY VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, BETWEEN THE MAKER AND THE PAYEE ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Maker has duly executed this Note, as of the
date first above written.
WELLCARE HEALTH PLANS, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
President and Chief Executive Officer
By its countersignature hereto, Comprehensive Health Management, Inc., a
Florida corporation, hereby guaranties the obligations of the Maker under this
Note, provided that such guaranty is subject to all of the provisions of this
Note in favor of the Maker and any Senior Payees, including, without limitation,
the provisions regarding subordination, and the obligations of Comprehensive
Health Management, Inc. pursuant hereto shall be subordinate to the Senior
Indebtedness to the same extent as the obligations of the Maker under this Note.
COMPREHENSIVE HEALTH MANAGEMENT, INC.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
President and Chief Executive Officer
ACCEPTED AND AGREED,
as of the date first above written:
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx, M.D., as Stockholder
Representative on behalf of the Stockholders
