This Loan
Agreement (“Agreement”), dated as of April 28,
2009, is made between Citigroup Global Markets Inc.
(“CGMI”) and the undersigned, HLTH Corporation
(“Client”), to set forth the terms and conditions that
will govern one or more extensions of credit (each, an
“Advance”) by CGMI to the Client.
1.) Certain
Defined Terms . As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
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a.
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“Account” shall mean
Client’s account number [number omitted] maintained with
CGMI.
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b.
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“Applicable Law” means,
with respect to any Person, all provisions of all
(i) constitutions, statutes, rules, regulations and orders of
governmental bodies, domestic or foreign, applicable to such
Person, (ii) Governmental Approvals applicable to such Person
and (iii) orders, decisions, judgments and decrees of all
courts (whether at law or in equity or admiralty) and arbitrators
applicable to such Person.
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c.
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“Auction Rate
Securities” means debt securities whose rate is reset
periodically, but no less often than every 90 days, pursuant
to an auction.
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d.
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“Borrowing Base” means,
at any date, 75% of the sum of (i) the aggregate face amount
of all Auction Rate Securities in the Account, (ii) any cash
in the Account in excess of amounts required to be retained
pursuant to Section 4 in respect of interest and amounts
either required to be applied to repayment of the Loan Obligation
or permitted to be withdrawn pursuant to Section 2(f), and
(iii) in respect of securities received in exchange for
Auction Rate Securities Collateral, the amount equal to the
aggregate face amount of such Auction Rate Securities Collateral
exchanged minus the amount of any cash received in such
exchange.
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e.
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“Business Day” means any
day on which the regular trading session on the New York Stock
Exchange is open.
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f.
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“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder.
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g.
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“ERISA Affiliate” of a
Person or entity means any trade or business (whether or not
incorporated) that is a member of a group of which such Person or
entity is a member and that is under common control with such
Person or entity within the meaning of Section 414(b) or
(c) of the Internal Revenue Code, and the regulations
promulgated and rulings issued thereunder, each as amended or
modified from time to time.
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h.
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“Governmental Approval”
means any authorization, consent, approval, license or exemption
of, registration or filing with, or report or notice to, any
governmental body.
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i.
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“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued
thereunder.
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j.
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“Lien” means any lien,
security interest or other charge or encumbrance of any kind,
including, without limitation, the lien or retained security title
of a conditional vendor and any easement, right of way or other
encumbrance on title to real property, provided , that any
agreement to sell in a sale expressly permitted hereunder shall not
be deemed a Lien.
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k.
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“Market Value” means, at
any time, the latest market closing price of any security traded in
a nationally recognized market, which for Auction Rate Securities
shall be the secondary market (if any) which CGMI has selected as
its source of market prices for client holdings in such Auction
Rate Securities, and in the absence of such a market, the market
value determined by CGMI in good faith in a manner consistent with
past practice (subject to any modification thereto determined in
good faith by CGMI to be appropriate to reflect then current market
conditions and practices), and in any case consistent with the
manner in which CGMI is valuing such Auction Rate Securities for
its own books and records, which may include without limitation
information consisting of relevant market data supplied by third
parties in respect of sales of Auction Rate Securities such as
rates, prices and volume or other relevant data, or such
information from internal sources as may be used by CGMI to value
Auction Rate Securities (not including non-public information
regarding the issuer or borrower in respect of the security in
question). The parties hereto agree that the Market Value of the
Auction Rate Securities in the Account as of the date hereof is in
excess of 75% of the face amount thereof. CGMI has provided Client
a valuation as of March 31, 2009 for certain of the Auction
Rate Securities in the Account, which reflects CGMI’s current
approach to estimating Market Value for those securities. Upon the
request of the Client, at any time that there has been a
determination by CGMI that the Market Value is below 75% of the
face amount of the Auction Rate Securities (or other securities) in
the Account, and such Market Value is not reported on the
Client’s Account statements or the CGMI website or readily
available third party market price
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reporting, CGMI
promptly shall provide the Client with a description in reasonable
detail (which may be comparable to that provided in the
April 30 valuation report referenced above) of the basis on
which it has determined the Market Value, including relevant
comparable market data of the type described above (it is agreed
that provision of such information is not a condition to
determination of such Market Value or any sale of Collateral
hereunder, except, in either case, to the extent
Section 9(c)(i) is applicable).
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l.
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“Material Adverse
Effect” means a material adverse change in, or a material
adverse effect upon, (a) the legality, validity or
enforceability of any Transaction Document; (b) the
availability or enforceability of the rights and remedies of CGMI
under any Transaction Document or (c) the creation, perfection
or priority of CGMI’s Lien on the Collateral.
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m.
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“MSSB” means Morgan
Stanley Smith Barney LLC.
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n.
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“Multiemployer Plan”
means any employee benefit plan as defined in
Section 4001(a)(3) of ERISA to which Client or any ERISA
Affiliate makes or is obligated to make contributions, or during
the preceding five plan years, has made or been obligated to make
contributions.
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o.
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“PBGC” means the Pension
Benefit Guaranty Corporation (or any successor).
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p.
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“Person” means an
individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint
venture, corporate or other entity, or a government or any
political subdivision or agency thereof.
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q.
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“Plan” means any
“employee benefit pension plan”, as such term is
defined in ERISA, that is subject to Title IV of ERISA (other than
a Multiemployer Plan) and to which Client, or any ERISA Affiliate,
has liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of
ERISA for any time within the preceding five years or by reason of
being deemed to be a contributing sponsor under Section 4069
of ERISA.
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a.
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Subject to the terms and conditions
of this Agreement, CGMI agrees to make one or more Advances to the
Client in an aggregate principal amount, which shall not exceed
$142,575,000 (as the same may be reduced pursuant to Section
2(f) below, the “Loan Maximum”).
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b. The Client
may obtain an Advance by: (i) requesting CGMI to wire transfer
Federal funds in the amount of the Advance to a bank
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account in the
Client’s name or (ii) by any other method agreed upon by
CGMI and the Client.
c. Subject to
the terms and conditions of this Agreement, Client may request
Advances on not less than one (1) Business Day’s notice
to CGMI from time to time from the date of this Agreement to
April 27, 2010 (the “Advance Termination
Date”).
d. Subject to
Section 5, the Client agrees to pay, commencing on
February 26, 2010, the Loan Obligation or any part thereof
upon demand by CGMI therefor. The Loan Obligation or part thereof
demanded to be repaid shall be due at the end of the applicable
Repayment Notice Period. In this Agreement, “Repayment Notice
Period” means the period beginning on the date CGMI demands
repayment, and ending on the earlier of (i) 60 days
thereafter, and (ii) if any circumstances that would
constitute a default hereunder then exist (or come into existence
during such period), at the end of any grace or notice period
applicable to such circumstances as set forth in Section 9(a) (and
in the event there is no grace or notice period for such
circumstances set forth in Section 9(a), immediately). (In the
event of a default, the provisions of Section 9 shall apply.)
Upon consummation of the exercise of the Option as provided in
Section 22(b), any Repayment Notice Period shall be terminated
without the Loan Obligation becoming due. As used in this
Agreement, “Loan Obligation” means the total amount of
any balance outstanding with respect to all Advances, including any
accrued but unpaid interest, as well as any costs of collection and
reasonable attorney’s fees and costs payable pursuant to this
Agreement. The Client may prepay the Loan Obligation in whole or in
part without penalty at any time.
e. Subject to
Section 5, if for any reason at any time (i) the Loan
Obligation exceeds the Loan Maximum or (ii) the Loan
Obligation exceeds the Borrowing Base, (either such excess, a
“Shortfall”) Client shall immediately prepay Advances,
together with all accrued but unpaid interest thereon (or, in lieu
thereof, deposit cash to the Account as Collateral), in an
aggregate amount sufficient to eliminate such Shortfall (and in the
event that the Client fails to make such prepayment, CGMI shall be
entitled to liquidate Collateral and apply the proceeds to
repayment of the Loan Obligation sufficient to make such
prepayment).
f. All cash
proceeds from any liquidation (whether by sale, redemption,
exchange or otherwise) of Collateral pursuant to any provision of
this Agreement shall be applied in full immediately to repayment of
the Loan Obligation (if any) and shall permanently reduce the Loan
Maximum (i) except in connection with sales pursuant to
Section 9(c)(iv), in the full amount of such proceeds, and
(ii) in connection with sales pursuant to
Section 9(c)(iv), in the amount equal to the greater of
(A) the full amount of such proceeds and (B) 75% of the
face amount of such
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Collateral. The
Client shall be entitled to remove from the Account the amount of
any such cash proceeds remaining after repayment in full of any
Loan Obligation then outstanding, and any such removed amount shall
not constitute Collateral after such removal.
3.)
Interest . CGMI shall charge the Client interest at the
daily variable rate equal to Open Federal Funds Rate plus 3.95%
(the “Interest Rate”) on the aggregate principal amount
of Advances outstanding, if any. Such interest shall be computed in
the same manner as that set forth for securities margin accounts in
the pamphlet prepared by CGMI entitled “Important New Account
Information” (hereafter referred to as “New Account
Document”), which may be amended from time to time and which
amendment shall become binding upon written notice to the Client
(provided, that no such amendment shall change the Interest Rate
without Client’s prior written consent). The Client hereby
acknowledges receipt of the New Account Document. Interest shall be
payable monthly, provided , that failure to pay interest
during a Repayment Notice Period shall not constitute a default
hereunder until the end of such Repayment Notice Period (but
interest unpaid during such Repayment Notice Period shall be added
to principal in accordance with this Section)). If, after
application of interest paid on the Collateral pursuant to
Section 4, (i) a sufficient amount of cash or money
market fund shares is not available in the Account to pay the
monthly interest amount, and (ii) sufficient Collateral
acceptable to CGMI is in the Account, the interest due shall be
added to the Client’s outstanding principal balance hereunder
and thereafter interest shall accrue on any such unpaid principal
until paid in full. Client acknowledges and agrees that any such
interest added to principal may reduce the availability of future
Advances or if creating a Shortfall, require repayment and
liquidation of Collateral.
4.)
Collateral . As continuing security for the Loan Obligation,
the Client hereby assigns, grants and conveys to CGMI a first
priority Lien and security interest in all cash, stocks, bonds, and
other securities and instruments now or hereafter in the Account,
and all dividends, interest and proceeds of such property, and any
property substituted by the Client in accordance with this
Agreement (collectively, the “Collateral”). No
substitution of Collateral shall be permitted without CGMI’s
approval, upon such terms and conditions as may be prescribed by
CGMI. The Client agrees to take any action reasonably requested by
CGMI to maintain and preserve CGMI’s first priority Lien and
security interest in the Collateral. Client hereby authorizes CGMI
to prepare and file Uniform Commercial Code financial statements
without the signature of Client in respect of the Transaction
Documents and Collateral. Except for withdrawals of interest
pursuant to the following two sentences or as provided in Section
2(f) or Section 9(c), no withdrawals from the Account shall be
permitted until the Loan Obligation is paid in full and CGMI has no
further obligations under this Agreement. At any time prior to the
Client first requesting an Advance hereunder, Client shall be
entitled to withdraw from the Account any interest that has been
paid on the Collateral and remains as cash in the Account. From the
date of the first Advance until the Loan Obligation has been repaid
in full and CGMI has no further obligations under this Agreement,
all interest paid on the Collateral shall be applied immediately to
payment of accrued but unpaid interest on the Loan Obligation
(including the amount of any interest added to principal pursuant
to Section 3) and any other portion of the Loan Obligation
then due, and Client authorizes
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CGMI to make
such applications without any further approval or consent of Client
required; provided , that, upon request made to CGMI, Client
shall be entitled to withdraw from the Account on or after the
15 th
day of each month (except to the
extent that a Shortfall would result from such withdrawal) the
amount of such interest paid on the Collateral prior to the first
day of such month exceeding (x) any accrued but unpaid
interest on the Loan Obligation (including the amount of any
interest added to principal pursuant to Section 3) plus
(y) the amount of interest on the Loan Obligation payable for
the preceding month.
5.)
Non-Recourse . CGMI shall not enforce the liabilities and
obligations of the Client to pay the Loan Obligation, or to pay,
perform and observe any other obligation contained in this
Agreement (other than the Recourse Obligations), by any action or
proceeding wherein a money judgment shall be sought against the
Client, or any subsidiary, shareholder, officer, director, agent or
employee of the Client (collectively, “Client Related
Parties”). In all instances, the Loan Obligation, and any
other obligations (other than the Recourse Obligations), may only
be satisfied out of the Collateral, and upon the occurrence of a
default hereunder, CGMI shall have no recourse and may not seek to
enforce the Loan Obligation, or any other liabilities or
obligations of the Client (other than the Recourse Obligations),
against or with respect to any assets of the Client, other than the
Collateral, or any Client Related Parties. Notwithstanding the
foregoing, CGMI shall be entitled to recover from the Client (all
of the following constituting the “Recourse
Obligations”) any amounts payable pursuant to Section 15
that (i) consist of any amounts payable by Client pursuant to
Section 8, (ii) result from any breach of the
representations, warranties and covenants set forth in
Section 7 (which breach or breaches result in a Material
Adverse Effect) or from breach by the Client of the
representations, warranties and agreements, as applicable, set
forth in 9(c) and Section 7(a)(iv), (iii) are in respect
of any Third Party Claims, or (iv) result from any Statutory
Tax Liens on the Collateral.
6.)
Conditions Precedent .
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a.
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The
effectiveness of this Agreement shall be subject to the prior
satisfaction of the following conditions:
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i.
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CGMI shall have received this
Agreement and all other documents executed in connection herewith
(together, the “Transaction Document(s)”), duly
executed and delivered by the Client; and
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ii.
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CGMI shall have received an opinion
of counsel to Client addressed to CGMI, substantially in the form
of Exhibit A attached hereto.
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b.
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CGMI’s obligation to make any
Advance hereunder shall be subject to the prior satisfaction of the
following conditions:
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i.
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the
representations and warranties of Client contained in
Section 7 and any other Transaction Document shall be true and
correct on
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and as of the
date of such Advance immediately prior to and after giving effect
to such Advance;
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ii.
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no
default under this Agreement shall exist or would result from the
making of such Advance;
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iii.
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after giving effect to such Advance,
the Loan Obligation shall not exceed the Loan Maximum or the
Borrowing Base;
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iv.
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Client shall have completed,
executed and delivered to CGMI a Federal Reserve Board Form T-4 in
respect of such Advance;
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v.
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Client shall have provided to CGMI
an officer’s certificate confirming compliance with the
foregoing conditions as of the date of the request for Advance;
and
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vi.
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CGMI shall have received a request
for an Advance in accordance with Section 2.
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7.)
Representations, Warranties and Covenants .
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a.
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Client represents and warrants to
CGMI, on the date of signing of this Agreement and on the date each
Advance is obtained hereunder, that:
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i.
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Client is duly organized and validly
existing under the law of its jurisdiction of establishment, has
full authority to enter into this Agreement and the other
Transaction Documents and to perform its obligations hereunder and
thereunder, respectively;
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ii.
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this Agreement and the other
Transaction Documents comply with all laws, rules and regulations
applicable to Client, except to the extent failure to so comply
would not, individually or in the aggregate, have a Material
Adverse Effect;
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iii.
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each of this Agreement and the other
Transaction Documents have been duly authorized, executed and
delivered by the Client; each of this Agreement and the other
Transaction Documents constitutes a legal, valid and binding
obligation of the Client, enforceable against the Client in
accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency and other laws affecting
creditors’ rights generally and by general principles of
equity;
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iv.
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Client’s entry into this
Agreement and each of the other Transaction Documents and the
consummation of the transactions contemplated hereunder and
thereunder are not restricted by and would not result in a material
breach or default under any material agreement to which it is a
party or by which its assets are bound;
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v.
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as
of the date of this Agreement there are no actions, suits,
proceedings, claims, charges, demands or disputes pending or
threatened in writing, at law, in equity, in arbitration or by or
before any governmental authority, by or against the Client or any
of its affiliates or employees that (A) purport to affect or
pertain to this Agreement or any Transaction Document, or any of
the transactions contemplated hereby, or (B) either
individually or in the aggregate, if determined adversely, would
have a Material Adverse Effect; and as of the date of each Advance,
there are no actions, suits, proceedings, claims, charges, demands
or disputes pending or threatened in writing, at law, in equity, in
arbitration or by or before any governmental authority, by or
against the Client or any of its affiliates or employees that
(A) purport to affect or pertain to this Agreement or any
Transaction Document, or any of the transactions contemplated
hereby, and (B) either individually or in the aggregate, if
determined adversely, would have a Material Adverse
Effect;
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vi.
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Client is in compliance with
Applicable Law, except to the extent any such failure to be in such
compliance would not, individually or in the aggregate, have a
Material Adverse Effect;
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vii.
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Client is the sole owner of the
Collateral, this Agreement creates a valid first priority security
interest in the Collateral (assuming CGMI does not have notice from
third parties of any adverse claims on the Collateral) and upon the
filing of financing statements all filings and other actions
necessary to perfect such security interest
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