THIRD PARTY CONTRIBUTOR AGREEMENT
---------------------------------
THIRD PARTY CONTRIBUTOR AGREEMENT, dated as of April 22, 1998 among
JA SPECIAL LIMITED PARTNERSHIP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, and jointly and
severally, the "Third Party Contributor"), PHYSICIAN COMPUTER NETWORK, INC. (the
"Borrower") and FLEET BANK, N.A., as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders (hereinafter defined).
R E C I T A L S:
- - - - - - - -
I. The Administrative Agent, ▇▇▇▇▇▇ Brothers Commercial Paper,
Inc., as arranger and as a Lender, the several banks and other financial
institutions parties thereto (the "Lenders"), and the Borrower entered into a
Credit Agreement, dated as of September 10, 1997 (the "Credit Agreement").
II. The Administrative Agent, the Lenders, the Borrower and certain
Subsidiaries of the Borrower (the "Subsidiaries") also entered into a Guarantee
and Collateral Agreement, dated as of September 10, 1997 (the "Guarantee and
Collateral Agreement").
III. On March 3, 1998, the Borrower issued a Securities and
Exchange Commission Form 8-K and certain press releases pursuant to which the
Borrower disclosed the existence of certain accounting matters.
IV. On April 2, 1998, the Borrower issued another press release
disclosing, among other things, additional accounting irregularities and
announcing that the Borrower's auditors had withdrawn their opinion with respect
to the Borrower's 1996 financial statements. The disclosures, facts and events
described in Recitals III and IV collectively referred to herein as the
"Accounting Matters" and are listed in Exhibit A to the Forbearance Agreement
(hereinafter defined).
V. The Accounting Matters have resulted in one or more Events of
Default under the Credit Agreement (the "Specified Events of Default").
VI. As a result of the occurrence of the Specified Events of
Default, the Borrower and the Subsidiaries have requested that the
Administrative Agent and the Lenders agree to forbear from pursuing their
remedies under, and to amend certain sections of, the Credit Agreement.
VII. The Administrative Agent and the Required Lenders have advised
the Borrower that they are willing to agree to the Borrower's and Subsidiaries'
request on the terms and subject to the conditions set forth in the Forbearance
and Amendment Agreement, dated the date hereof, among the Borrower, the
Administrative Agent and the Required Lenders (the "Forbearance Agreement").
VIII. One of the conditions to the effectiveness of the Forbearance
Agreement is that the Third Party Contributor shall have executed and delivered
this Agreement.
1. DEFINITIONS
-----------
(a) As used herein, all references to the "Credit Agreement" shall
be deemed to be references to the Credit Agreement as modified by the
Forbearance Agreement. Unless defined herein, all capitalized terms used herein
shall have the meanings ascribed to them in the Credit Agreement and the
Forbearance Agreement.
(b) The following terms have the following meaning:
"AGREEMENT": this Agreement, as the same may be
amended, supplemented or otherwise modified from time to
time.
"BORROWER OBLIGATIONS": the collective reference to the
unpaid principal of and interest on the Loans and all other
obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided
in the Credit Agreement after a Termination Event or the maturity
of the Loans and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition
in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the
Administrative Agent or any Lender, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Forbearance Agreement, the
Additional Loan Documents, the other Loan Documents, or any other
document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, fees, indemnities,
costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel, accountants and financial advisors to the
Administrative Agent or to the Lenders that are required to be paid
by the Borrower pursuant to the terms of any of the foregoing
agreements).
"INSOLVENCY PROCEEDING": any case, proceeding or other action (a)
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with
respect to the Borrower or any Subsidiary, or seeking to adjudicate
the Borrower or any Subsidiary a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to the
Borrower or any Subsidiary or their debts, or (b) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for the Borrower or any Subsidiary or for all or
any substantial part of the Borrower's or any Subsidiary's assets,
or a general assignment for the benefit of its creditors.
(c) OTHER DEFINITIONAL PROVISIONS. (i) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise
specified.
(ii) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms
of such terms.
NOW, THEREFORE, in consideration of the premises, in order to
induce the Administrative Agent and the Required lenders to enter into the
Forbearance Agreement and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
2. AGREEMENTS OF THIRD PARTY CONTRIBUTOR
-------------------------------------
(a) Third Party Contributor agrees that:
(i) it will not file and will not join in the filing
of any Insolvency Proceeding.
(ii) it will not provide any debtor-in-possession
loan
facility or any other loan facility in any Insolvency
Proceeding which will have or seek to have priority on a
basis other than completely subject and subordinate in all
respects to the security interests of the Administrative
Agent and the other Lenders in all Property now owned or
hereafter acquired by the Borrower or any of the
Subsidiaries, whether prior to or after the commencement
of any Insolvency Proceeding.
(iii) it will not seek to obtain a security interest with
a priority other than completely subject and subordinate
in all respects to any security interest granted or
hereinafter granted by the Borrower and the Subsidiaries
to the Administrative Agent in any and all Property now
owned or hereafter acquired of the Borrower or any of the
Subsidiaries, prior to or after any Insolvency Proceeding
(the "Lenders' Security Interest"),
(iv) the priorities specified herein with respect to the
Lenders' Security Interest shall be applicable
irrespective of the time or order of attachment or
perfection of (or the failure to perfect) such security
interests or the time or order of filing of financing
statements or the giving or failure to give notice of the
acquisition or expected acquisition of purchase money or
other security interests,
(v) it shall not attack or join in any attack or take any
other action or join in any other action which would
impair the enforceability, validity, priority or
perfection of the Lenders' Security Interest.
(vi) the Administrative Agent and the Lenders at any time
and from time to time after the occurrence of a
Termination Event under the Forbearance Agreement, without
the vote, consent or approval of the Third Party
Contributor, may take any action to enforce the Lenders'
Security Interest as the Administrative Agent and the
Required Lenders deem appropriate in their sole
discretion.
(vii) the Administrative Agent and the Lenders shall have
no duty to protect or defend the Lenders' Collateral,
neither the Administrative Agent nor the Lenders shall
have liability, duty or responsibility to the Third Party
Contributor for the protection and defense of the
Collateral.
3. MODIFICATIONS OF LIABILITIES.
----------------------------
3.1 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER'S OBLIGATIONS.
Third Party Contributor agrees that this Agreement shall remain in effect
notwithstanding that, without any reservation of rights against Third Party
Contributor and without notice to or further assent by Third Party Contributor:
(a) any demand for payment of any of the Borrower Obligations made
by the Administrative Agent and the Required Lenders may be rescinded by the
Administrative Agent and the Required Lenders and any of the Borrower
Obligations continued,
(b) the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender,
(c) the Credit Agreement, the Forbearance Agreement, the other Loan
Documents, the Additional Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders or all Lenders, as the case may be) may deem
advisable from time to time,
(d) any collateral security, guarantee or right of offset at any
time held by the Administrative Agent or any Lender for the payment of the
Borrower Obligations may be sold, exchanged, waived, surrendered or released,
and
(e) any of the Loans may be sold or assigned or any interest in the
Loans may be sold or assigned.
3.2 WAIVER OF MARSHALING. Third Party Contributor hereby waives any
right to compel or request the Administrative Agent or any Lender to marshal any
of its or their Collateral.
4. MISCELLANEOUS
-------------
4.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
writing executed by the Third Party Contributors and, in the case of the
Administrative Agent and the Lenders, executed in accordance
with SECTION 10.1 of the Credit Agreement, which is incorporated
herein by reference.
4.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter, notified by the respective parties hereto:
The Borrower:
Physician Computer Network, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and
General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Third Party Contributor:
c/o ▇▇▇▇▇▇ ▇. Picower
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky Shalov & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
Fleet Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the Administrative Agent
shall not be effective until actually received.
4.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. The
Administrative Agent shall not by any act (except by a written instrument
pursuant to SECTION 4.1), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any default,
Event of
Default or Termination Event. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
4.4 ENFORCEMENT EXPENSES. (a) Third Party Contributor agree to pay
or reimburse each Lender and the Administrative Agent for all costs and expenses
incurred by the Lenders and the Administrative Agent in enforcing against the
Third Party Contributor under this Agreement or otherwise in enforcing or
preserving any rights under this Agreement, including, without limitation, the
fees and disbursements of counsel to the Administrative Agent.
(b) The agreements and obligations in this SECTION
4.4 shall survive repayment of the Borrower Obligations and all other amounts
payable under the Credit Agreement, the Forbearance Agreement, the Additional
Loan Documents, and the other Loan Documents.
4.5 SPECIFIC PERFORMANCE. Third Party Contributor hereby
acknowledges that among the remedies the Lenders may enforce upon a default by
Third Party Contributor in the performance of its obligations hereunder, the
Lenders may bring an action for the specific performance by Third Party
Contributor of its obligations hereunder.
4.6 INDEMNITY. Third Party Contributor hereby agrees to indemnify,
defend and hold harmless the Administrative Agent and the Lenders from and
against all claims, losses, damages and liabilities including, without
limitation, reasonable attorneys' fees, which the Administrative Agent or the
Lenders may suffer as a result of any breach of this Agreement by the Third
Party Contributor.
4.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the heirs, administrators, successors and assigns of Third Party Contributor and
shall inure to the benefit of the Administrative Agent and the Lenders and their
respective successors and assigns; PROVIDED that the Third Party Contributor may
not assign, transfer or delegate any of their rights or obligations under this
Agreement.
4.8 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4.9 SECTION HEADINGS. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
4.10 INTEGRATION. This Agreement represents the entire agreement of
the Third Party Contributor and the Administrative Agent with respect to the
subject matter hereof and there are no promises, undertakings, representations
or warranties by the Administrative Agent or any Lender relative to the subject
matter hereof and thereof not expressly set forth or referred to herein or
therein.
4.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
4.12 SUBMISSION TO JURISDICTION; WAIVERS. Third Party
Contributor hereby irrevocably and unconditionally:
(a) submit for themselves and their property in any
legal action or proceeding relating to this Agreement and the other Loan
Documents to which they are a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the
State of New York, the Courts of the United States of America for
the Southern District of New York, and appellate courts from any
thereof;
(b) consent that any such action or proceeding may
be brought in such courts and waive any objection that they may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agree not to
plead or claim the same;
(c) agree that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
them at their address referred to in SECTION 4.2 hereof or at such other address
of which the Administrative Agent shall have been notified pursuant thereto;
(d) agree that nothing herein shall affect the right
to effect service of process in any other manner permitted by law
or shall limit the right to ▇▇▇ in any other jurisdiction; and
(e) waive, to the maximum extent not prohibited by
law, any right they may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.
4.13 ACKNOWLEDGMENTS. Third Party Contributor hereby
acknowledges that:
(a) they have been advised by counsel in the
negotiation, execution and delivery of this Agreement;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Third Party
Contributor arising out of or in connection with this Agreement;
and
(c) no joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby between the Third Party Contributor and the Administrative
Agent and the Lenders.
4.14 WAIVER OF JURY TRIAL. THIRD PARTY CONTRIBUTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM OR THIRD PARTY CLAIM THEREIN.
IN WITNESS WHEREOF the parties have executed this Agreement as of
the date and year first above written.
FLEET BANK N.A., as Administrative Agent
and for the Required Lenders
By:-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Officer
PHYSICIAN COMPUTER NETWORK, INC.
By:------------------------------
Title:
JA SPECIAL LIMITED PARTNERSHIP
By: Decisions Incorporated,
General Partner
By:-----------------------------
Name:------------------------
Title:-----------------------
--------------------------------
▇▇▇▇▇▇ ▇. PICOWER
