Continuing
Guaranty Agreement
THIS
CONTINUING GUARANTY AGREEMENT (the “Guaranty”) made as
of July 30, 2008 by and between Streamline Health Solutions,
Inc., a Delaware corporation located at 10200 Alliance Road,
Cincinnati, Hamilton County, Ohio 45242 (the
“Guarantor”) and Fifth Third Bank, an Ohio banking
corporation located at 38 Fountain Square Plaza, Cincinnati,
Hamilton County, Ohio 45263 for itself and as agent for any
affiliate of Fifth Third Bancorp
(“Beneficiary”).
WHEREAS,
Beneficiary has agreed to extend credit and financial
accommodations to Streamline Health, Inc. fka LanVision, Inc., an
Ohio corporation (“Borrower”), pursuant to the Term
Note, dated July 30, 2004, executed by Borrower and made
payable to the order of Beneficiary and the Revolving Note, dated
July 30, 2008, executed by Borrower and made payable to the
order of Beneficiary (collectively, the “Notes”), and
all agreements, instruments and documents executed or delivered in
connection with any of the foregoing or otherwise related thereto
(together with any amendments, modifications, or restatements
thereof, the “Loan Documents”); and
WHEREAS,
Guarantor is affiliated with Borrower and, as such, shall be
benefited directly by the transaction contemplated by the Loan
Documents, and shall execute this Guaranty in order to induce
Beneficiary to enter into such transaction.
NOW,
THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, Guarantor hereby guarantees,
promises and undertakes as follows:
(a)
Guarantor hereby unconditionally, absolutely and irrevocably
guarantees to Beneficiary the full and prompt payment and
performance when due (whether at maturity by acceleration or
otherwise) of any and all loans, advances, indebtedness and each
and every other obligation or liability of Borrower owed to
Beneficiary and any affiliate of Fifth Third Bancorp, however
created, of every kind and description, whether now existing or
hereafter arising and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, due or to become due,
liquidated or unliquidated, matured or unmatured, participated in
whole or in part, created by trust agreement, lease, overdraft,
agreement, or otherwise, whether or not secured by additional
collateral, whether originated with Beneficiary or owed to others
and acquired by Beneficiary by purchase, assignment or otherwise,
and including, without limitation, all loans, advances,
indebtedness and each and every other obligation or liability
arising under the Loan Documents, letters of credit now or
hereafter issued by Beneficiary or any affiliate of Fifth Third
Bancorp for the benefit of or at the request of Borrower, all
obligations to perform or forbear from performing acts, any and all
Rate Management Obligations (as defined in the Loan Documents), and
all agreements, instruments and documents evidencing, guarantying,
securing or otherwise executed in connection with any of the
foregoing, together with any amendments, modifications, and
restatements thereof, and all expenses and attorneys’ fees
incurred or other sums disbursed by Beneficiary or any affiliate of
Fifth Third Bancorp under this Guaranty or any other document,
instrument or agreement related to any of the foregoing
(collectively, the “Obligations”).
(b)
This Guaranty is a continuing guaranty of payment, and not merely
of collection, that shall remain in full force and effect until
expressly terminated in writing by Beneficiary, notwithstanding the
fact that no Obligations may be outstanding from time to time. Such
termination by Beneficiary shall be applicable only to transactions
having their inception after the effective date thereof, and shall
not affect the enforceability of this Guaranty with regard to any
Obligations arising out of transactions having their inception
prior to such effective date, even if such Obligations shall have
been modified, renewed, compromised, extended, otherwise amended or
performed by Beneficiary subsequent to such termination. In the
absence of any termination of this Guaranty as provided above,
Guarantor agrees that Guarantor’s obligations hereunder shall
not be deemed discharged or satisfied until the Obligations are
fully paid and performed, and no such payments or performance with
regard to
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the Obligations is subject
to any right on the part of any person whomsoever, including but
not limited to any trustee in bankruptcy, to recover any of such
payments. If any such payments are so set aside or settled without
litigation, all of which is within Beneficiary’s discretion,
Guarantor shall be liable for the full amount Beneficiary is
required to repay, plus costs, interest, reasonable
attorneys’ fees and any and all expenses that Beneficiary
paid or incurred in connection therewith. A successor of Borrower,
including Borrower in its capacity as debtor in a bankruptcy
reorganization case, shall not be considered to be a different
person than Borrower; and this Guaranty shall apply to all
Obligations incurred by such successor.
(c)
Guarantor agrees that Guarantor is directly and primarily liable to
Beneficiary and that the Obligations hereunder are independent of
the Obligations of Borrower, or of any other guarantor. The
liability of Guarantor hereunder shall survive discharge or
compromise of any Obligation of Borrower in bankruptcy or
otherwise. Beneficiary shall not be required to prosecute or seek
to enforce any remedies against Borrower or any other party liable
to Beneficiary on account of the Obligations, or to seek to enforce
or resort to any remedies with respect to any collateral granted to
Beneficiary by Borrower or any other party on account of the
Obligations, as a condition to payment or performance by Guarantor
under this Guaranty.
(d)
Beneficiary may, without notice or demand and without affecting its
rights hereunder, from time to time: (i) renew, extend,
accelerate or otherwise change the amount of, the time for payment
of, or other terms relating to, any or all of the Obligations, or
otherwise modify, amend or change the terms of the Loan Documents
or any other document or instrument evidencing, securing or
otherwise relating to the Obligations, (ii) take and hold
collateral for the payment of the Obligations guaranteed hereby,
and exchange, enforce, waive, and release any such collateral, and
apply such collateral and direct the order or manner of sale
thereof as Beneficiary in its discretion may determine.
Accordingly, Guarantor hereby waives notice of any and all of the
foregoing.
(e)
Guarantor hereby waives all defenses, counterclaims and off-sets of
any kind or nature, whether legal or equitable, that may arise:
(i) directly or indirectly from the present or future lack of
validity, binding effect or enforceability of the Loan Documents or
any other document or instrument evidencing, securing or otherwise
relating to the Obligations, (ii) from Beneficiary’s
impairment of any collateral, including the failure to record or
perfect the Beneficiary’s interest in the collateral, or
(iii) by reason of any claim or defense based upon an election
of remedies by Beneficiary in the event such election may, in any
manner, impair, affect, reduce, release, destroy or extinguish any
right of contribution or reimbursement of Guarantor, or any other
rights of the Guarantor to proceed against any other guarantor, or
against any other person or any collateral.
(f)
Guarantor hereby waives all presentments, demands for performance
or payment, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of default or nonpayment,
notice of acceptance of this Guaranty, and notices of the
existence, creation, or incurring of new or additional Obligations,
and all other notices or formalities to which Guarantor may be
entitled, and Guarantor hereby waives all suretyship defenses,
including but not limited to all defenses set forth in the Uniform
Commercial Code, as revised from time to time (the
“UCC”) to the full extent such a waiver is permitted
thereby.
(g)
Guarantor hereby irrevocably waives all legal and equitable rights
to recover from Borrower any sums paid by the Guarantor under the
terms of this Guaranty, including without limitation all rights of
subrogation and all other rights that would result in Guarantor
being deemed a creditor of Borrower under the federal Bankruptcy
Code or any other law, and Guarantor hereby waives any right to
assert in any manner against Beneficiary any claim, defense,
counterclaim and offset of any kind or nature, whether legal or
equitable, that Guarantor may now or at any time hereafter have
against Borrower or any other party liable to
Beneficiary.
2.
REPRESENTATIONS, WARRANTIES AND COVENANTS . Guarantor hereby
represents, warrants and covenants as follows:
(a)
Guarantor is duly organized, validly existing and in good standing
under the laws of the state of its incorporation, has the power and
authority to carry on its business and to enter into and perform
this Guaranty and is qualified and licensed to do business in each
jurisdiction in which such qualification or licensing is
required.
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(b)
The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary corporate
action, and shall not violate any provision of law or regulation
applicable to Guarantor, or the articles of incorporation,
regulations or bylaws of Guarantor, or any writ or decree of any
court or governmental instrumentality, or any instrument or
agreement to which Guarantor is a party or by which Guarantor may
be bound; this Guaranty is a legal, valid and binding obligation of
said Guarantor, enforceable in accordance with its terms; and there
is no action or proceeding before any court or governmental body
agency now pending that may materially adversely affect the
condition (financial or otherwise) of Guarantor.
3.
AFFIRMATIVE COVENANTS . Guarantor covenants with, and
represents and warrants to, Beneficiary that, from and after the
execution date of the Loan Documents until the Obligations are paid
and satisfied in full:
(a)
Financial Statements . Guarantor shall maintain a standard
and modern system for accounting and shall furnish to
Beneficiary:
(i)
Within 30 days after the end of each month, a copy of
Guarantor’s internally prepared consolidated financial
statements for that month and for the year to date in a form
reasonably acceptable to Beneficiary, prepared and certified as
complete and correct, subject to changes resulting from year-end
adjustments, by the principal financial officer of
Guarantor;
(ii)
Within 45 days after the end of each quarter, a copy of
Guarantor’s financial statements for that quarter and for the
year to date and certified as complete and correct, subject to
changes resulting from year-end adjustments, by the principal
financial officer of Guarantor;
(iii)
Within 120 days after the end of each fiscal year, a copy of
Guarantor’s financial statements audited by a firm of
independent certified public accountants acceptable to Beneficiary
(which acceptance shall not be unreasonably withheld) and
accompanied by an audit opinion of such accountants without
qualification;
(iv)
With the statements submitted above, a certificate signed by the
Guarantor, (i) stating that no Event of Default specified
herein, nor any event which upon notice or lapse of time, or both
would constitute such an Event of Default, has occurred, or if any
such condition or event existed or exists, specifying it and
describing what action Guarantor has taken or proposes to take with
respect thereto, and (ii) setting forth, in summary form,
figures showing the financial status of Guarantor in respect of the
financial restrictions contained herein;
(v)
Immediately upon any officer of Guarantor obtaining knowledge of
any condition or event which constitutes or, after notice or lapse
of time or both, would constitute an Event of Default, a
certificate of such person specifying the nature and period of the
existence thereof, and what action Guarantor has taken or is taking
or proposes to take in respect thereof;
All of the statements
referred to in (i), (ii) and (iii) above shall be in
conformance with generally accepted accounting principles and give
representatives of Beneficiary access thereto at all reasonable
times, including permission to examine, copy and make abstracts
from an
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