Amended and Restated
Continuing Guaranty Agreement
THIS AMENDED AND RESTATED CONTINUING GUARANTY
AGREEMENT (the “Guaranty”) made as of October 21, 2009
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., an Ohio
corporation (“Borrower”), pursuant to the Amended and
Restated Revolving Note, dated October 21, 2009, executed by
Borrower and made payable to the order of Beneficiary, 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
(with this Guaranty amending and restating in its entirety the
Continuing Guaranty Agreement dated as of January 6, 2009
between Lender and Guarantor:
(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 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.
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(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.
(h) In order to secure repayment of all
Obligations, Guarantor and Lender have entered into a Security
Agreement dated as of the date hereof. The rights of Lender in and
to the Collateral are set forth in the Security
Agreement.
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.
(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.
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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 modem 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 all financial statements
delivered to Beneficiary as provided in (i), (ii) and
(iii) above, Guarantor shall deliver to Beneficiary a
Financial Statement Compliance Certificate in addition
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