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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (the "Agreement"), dated as of October 6,
2000, is by and among HealthAxis Inc., a Pennsylvania corporation ("Borrower")
and each of the parties listed on Schedule I hereto (each such party a
"Creditor" and collectively, the "Creditors") and is for the benefit of
HealthAxis.com, Inc., a Pennsylvania corporation ("Senior Lender").
WHEREAS, Creditors have provided or, from time to time, will provide or
continue to provide to or for the benefit of Borrower, extensions of credit.
Each of the Creditors is willing to subordinate in favor of Senior Lender such
Creditor's rights in connection with such extensions of credit and Borrower is
willing to agree to the subordination.
NOW, THEREFORE, in consideration of extensions of credit which Senior
Lender has provided or, from time to time, may provide or may continue to
provide to or for the benefit of Borrower, each of the Creditors and Borrower
agree with Senior Lender as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
respective meanings indicated below:
1.1. "Business Day" shall mean any day of the year other than (i) any
Saturday or Sunday or (ii) any other day on which banks located in
New York generally are closed for business.
1.2. "Collateral Security" means any security, collateral, encumbrances,
chattel mortgages, conditional contracts of sale, leases, liens, or
security interests.
1.3. "Convertible Debentures" shall mean the 2% Convertible Debentures
issued by the Borrower and currently outstanding in the aggregate
principal amount of $27,000,000.
1.4. "Default Notice" means written notice sent by Senior Lender to the
Creditors advising Creditors that an Event of Default, which did not
arise as a result of a Payment Default, has occurred.
1.5. "Event of Default" has the meaning set forth in the Revolving Credit
Note and Secured Hannover Re Note attached to and made a part of the
Loan Agreement.
1.6. "Loan Agreement" shall mean the agreement, dated as of September 28,
2000, pursuant to which Senior Lender has agreed to extend to
Borrower up to $3,404,589 in credit, represented by the Secured
Revolving Line of Credit in the amount of $1,100,000, the Secured
Hannover Re Loan in the amount of up to $1,000,000 and the Unsecured
Past Advance Loan.
1.7. "Payment Default" means the default in payment of any Senior
Indebtedness when the same becomes due and payable, whether pursuant
to the terms thereof, by acceleration or otherwise.
1.8. "Unsecured Past Advance Loan" means the funds advanced to Borrower
by HealthAxis.com, Inc. in order for Borrower to pay operating and
Reorganization expenses between May 2000 and September 28, 2000 in
the amount of $1,304,589.
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1.9. "Senior Indebtedness" means the indebtedness, obligations, and
liabilities of Borrower to the Senior Lender arising in connection
with the Secured Revolving Line of Credit, in the amount of
$1,100,000, and the Secured Hannover Re Loan, in an amount of up to
$1,000,000, in each case as accruing interest thereunder at the
rates set forth therein (as of the date hereof) and issued pursuant
to the terms of the Loan Agreement including any extensions or
renewals of such instruments; provided, however, notwithstanding
anything to the contrary in the foregoing, "Senior Indebtedness"
shall be deemed not to include the Unsecured Past Advance Loan
issued pursuant to the terms of the Loan Agreement.
1.10. "Senior Loan Documents" means the documentation evidencing and
governing the Senior Indebtedness, including without limitation the
Loan Agreement.
1.11. "Subordinated Indebtedness" means all indebtedness and other amounts
owing in respect of the indebtedness, as set forth on Schedule II
hereto provided however, that such indebtedness does not include the
obligations of Borrower to Alvin H. Clemens under the terms and
conditions of the Agreement of Termination of Employment Contract
and First Amendment to Employment Contract dated August 15, 2000..
2. Subordination; Limitation of Actions; Subordination of Interests in
Collateral Security.
2.1. Payment Subordination. Borrower and Creditors covenant and agree
that the Subordinated Indebtedness, howsoever evidenced and whether
now existing or hereafter incurred, shall be subordinate and junior
in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full in cash of all Senior
Indebtedness. The Subordinated Indebtedness shall not be payable,
and no payment of principal, interest or other amounts on account
thereof, and no property or Collateral Security or guarantee of any
nature to secure or pay the Subordinated Indebtedness, shall be made
or given, directly or indirectly, by or on behalf of Borrower or
received, accepted, retained or applied by Creditors unless such
payments are held in trust by Creditors for the benefit of Senior
Lenders and promptly paid over to Senior Lender until all Senior
Indebtedness has been paid and satisfied in full in cash; except
that, prior to the occurrence of a Payment Default or prior to a
Creditor's receipt of a Default Notice, Borrower may pay, and
Creditor may accept, regularly scheduled payments of interest made
in the ordinary course of business under the terms of the
Convertible Debentures. Upon the occurrence of a Payment Default, no
payments (in cash or other property) on the Subordinated
Indebtedness may be made or accepted unless and until (i) Borrower
has paid and satisfied in full in cash all Senior Indebtedness or
(ii) such Payment Default has been cured to the satisfaction of
Senior Lender or waived. If a Creditor shall have received a Default
Notice, no payments (in cash or other property) on the Subordinated
Indebtedness may be made or accepted unless and until any one of the
following conditions is satisfied:
2.1.1. the Event of Default specified in such Default Notice shall
have been cured to the satisfaction of Senior Lender or
waived; or
2.1.2. Borrower has paid and satisfied in full in cash all Senior
Indebtedness; or
2.1.3. one hundred eighty (180) days shall have elapsed from the
date that the Default Notice shall have been deemed to have
been received by a Creditor (as determined in accordance
with Section 21 hereof) and no Payment Default shall exist.
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3. No Limitation of Action. Nothing in this Agreement shall be deemed to
restrict the right of Creditors to demand payment of, accelerate the
maturity of or commence or join in any action or proceeding against Borrower
or any property of Borrower to recover all or any part of the Subordinated
Indebtedness.
4. Subordination of Interest in Collateral Security. Creditors agree that it
will not permit or require that the Subordinated Indebtedness be secured by
any Collateral Security or guaranteed (unless guaranteed pursuant to a
guarantee under which a Creditor's rights are subordinate to the rights of
Senior Lender against the guarantor on terms reasonably acceptable to Senior
Lender) by any party and that, in the event any Subordinated Indebtedness is
secured by any Collateral Security, whatever right, title, and interest
(including security interest) that a Creditor has in and to any such
Collateral Security for the Subordinated Indebtedness shall, at all time and
in all respects, be subject and subordinate to Senior Lender's right, title,
and interest (including security interest), if any, in said Collateral
Security.
5. Creditor Agreements. In order to effect this subordination, each Creditor
hereby:
5.1. grants Senior Lender the right in the name of such Creditor to file
(if such Creditor fails to file by the date which is thirty (30)
days before the applicable bar date) any proof of debt or claim on
behalf of such Creditor in respect of such Subordinated Indebtedness
in any proceeding under the federal bankruptcy laws (as now or
hereafter in effect) or in any dissolution, insolvency, liquidation,
or other proceeding involving an adjustment of the indebtedness of
Borrower or application of any assets of Borrower to payment in
liquidation thereof, or otherwise.
5.2. agrees not to assign or transfer or subordinate all or any part of
the Subordinated Indebtedness held by such Creditor or any claim
which such Creditor may have against Borrower in respect of the
Subordinated Indebtedness unless, in the case of assignments and
transfers of the Subordinated Indebtedness only, such assignment or
transfer is expressly made subject to the terms and provisions of
this Agreement.
5.3. agrees that in the event Borrower or any other Person or entity
(including any trustee or receiver in any bankruptcy or similar
proceeding) offers to a Creditor any payment (including any payment
received as proceeds of any Collateral Security for the Subordinated
Indebtedness) or any other distribution of any property on account
of any Subordinated Indebtedness at any time when such payment or
other distribution is required to be turned over by the Creditors to
Senior Lender pursuant to the terms hereof (collectively "Prohibited
Payments"), Creditor will direct that the full amount of the
Prohibited Payment be made or delivered directly to Senior Lender;
any Prohibited Payment received by Creditor from any source
whatsoever will be immediately delivered to Senior Lender in the
form received (except for endorsements or assignments by Creditor
where appropriate or required by Senior Lender) and until so
delivered will be held by the Person receiving such Prohibited
Payment in trust as Senior Lender's property; and agrees that Senior
Lender may, in its sole discretion, retain indefeasibly all moneys
collected or received pursuant to the exercise of the foregoing
powers and may, in its sole discretion, apply said moneys to the
payment of Senior Indebtedness then outstanding (whether matured or
unmatured), provided that after satisfying all amounts owing, or to
be owed, to Senior Lender with respect to the matured and unmatured
Senior Indebtedness, including the payment of all related costs and
expenses incurred by Senior Lender and payable to Senior Lender
pursuant to the Senior Loan Documents, Senior Lender shall pay the
excess, if any, to the Creditors or as a court of competent
jurisdiction otherwise directs.
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5.4. agrees not to borrow any moneys from, nor otherwise incur any
indebtedness, obligations or liabilities, direct or contingent, to
or in favor of Borrower.
5.5. agrees that no payment or distributions to Senior Lender pursuant to
the provisions of this Agreement shall entitle any Creditor to
exercise any rights of subrogation in respect thereof until the
Senior Indebtedness shall have been paid in full in cash.
6. Power of Attorney. Senior Lender and each of its officers is hereby
irrevocably constituted and appointed attorney-in-fact for each Creditor
with full power and authority to (i) file proofs of debt or claim with
respect to Subordinated Indebtedness when permitted pursuant to the
provisions of Section 5.1 and (ii) make the endorsements and assignments
required pursuant to the provisions of Section 5.3) if a Creditor fails to
make such endorsements or assignments. Senior Lender shall not be obligated
to exercise any authority or right granted to it hereunder and Senior Lender
shall not be liable for any action taken or omitted or the manner of taking
any action absent the gross negligence or willful misfeasance of Senior
Lender.
7. Books and Records; Modifications to Subordinated Indebtedness. Borrower and
Creditors agree (a) to make proper notations in their respective books,
records or other statements which evidence or record any Subordinated
Indebtedness ("Records") indicating that the Subordinated Indebtedness is
subject to the provisions of this Agreement, (b) (as to Borrower alone and
not Creditors) to give Senior Lender access at any time and from time to
time, upon Senior Lender's reasonable request, to its respective Records in
order to make a full and free examination of and to copy the Records, (c) to
furnish Senior Lender at any time and from time to time, upon Senior
Lender's request, with statements of account relating to the Subordinated
Indebtedness, (d) to legend any promissory notes evidencing the Subordinated
Indebtedness to reflect that the indebtedness represented by such promissory
notes is subordinated pursuant to the terms of this Agreement and (e) not to
amend or otherwise modify any such promissory notes or any purchase
agreements or other documentation relating thereto except as agreed to by
the parties in writing and signed by Senior Lender.
8. Rights Concerning Senior Indebtedness. Without affecting the rights of
Senior Lender hereunder, each Creditor agrees that, with or without notice
to or further assent from such Creditor, Senior Lender may at any time, and
from time to time, either prior to or after any default by Borrower with
respect to any indebtedness, (a) advance or refuse to advance additional
credit and make other accommodations to or for the account of Borrower, (b)
by written agreement or otherwise, extend, renew or change, modify,
compromise, release, refuse to extend, renew, or change the Senior
Indebtedness or any part thereof and waive any default under all or any part
thereof, and modify, rescind, or waive any provision of any related
agreement or collateral undertaking, including, but not by way of
limitation, any provision relating to acceleration of maturity, (c) fail to
set off any or all accrued balances or deposit balances or any part thereof
Senior Lender's books in favor of Borrower and/or release the same, (d)
sell, surrender, release, exchange, resort to, realize upon or apply, or
fail to do any of the foregoing, with respect to any Collateral Security or
any part thereof held by Senior Lender or available to Senior Lender for the
Senior Indebtedness, and (e) generally deal with Borrower in such manner as
Senior Lender may see fit, including, without limiting the generality of the
foregoing, any forbearance, failure, delay or refusal by Senior Lender to
exercise any rights or remedies Senior Lender may have against Borrower, all
without impairing or affecting Senior Lender's rights and remedies under
this Agreement. No failure by Senior Lender to file, record or otherwise
perfect any lien or security interest, nor any improper filing or recording,
nor any failure by Senior Lender to insure or protect any Collateral
Security nor any other dealing (or failure to deal) with any Collateral
Security by Senior Lender, shall impair or release the obligations of
Creditors hereunder.
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9. Representations and Warranties. Borrower and Creditors represent and warrant
to Senior Lender that Borrower is now or will be indebted to such Creditor
in the principal amount set forth on Schedule II, without counterclaim,
claim, defense or offset, that all Subordinated Indebtedness presently
outstanding is described on Schedule II and that the Subordinated
Indebtedness is not guaranteed, secured by any Collateral Security or
represented by any instrument or document except for such instruments and
documents described on Schedule II. Each Creditor represents and warrants to
Senior Lender that the Subordinated Indebtedness has not heretofore been
assigned, transferred, pledged, subordinated or otherwise encumbered.
10. Prior Agreements; Severability. This Agreement revokes and supersedes any
prior agreement of subordination with respect to Subordinated Indebtedness
which may have been executed by Creditor in favor of Senior Lender. If any
term, condition or provision of this Agreement or any other agreement or
document executed in connection herewith or in connection with the Senior
Indebtedness or any Collateral Security therefor is determined to be invalid
or unenforceable under any law, such determination shall not affect the
validity or enforceability of any other term, condition or provision hereof.
11. Acknowledgement. Each Creditor represents that it has been provided copies
of, and otherwise acknowledges and assents to the terms of, the Loan
Agreement, [list other documents].
12. No Representations or Warranties by Senior Lender. No representations,
warranties or promises have been made by Senior Lender to the other parties
hereto except as expressly set forth the Senior Loan Documents and such
parties have not relied upon any such representation, warranty or promise
made by Senior Lender unless expressly set forth in the Senior Loan
Documents, including without limiting the generality of the foregoing, any
representation, warranty or promise by Senior Lender to give any credit,
advances or loans to Borrower or to extend the time of payment of any such
credits, advances or loans or to grant any other forbearance.
13. Binding Effect. This Agreement shall inure to the benefit of and be binding
upon each of Borrower, each Creditor, Senior Lender and their respective
successors and assigns. Each reference herein to the Senior Lender, Borrower
or Creditor shall be deemed to include, except when inconsistent with the
contents of this Agreement, their respective successors and assigns and
subsequent holders of any Senior Indebtedness.
14. Expenses. Borrower agrees to pay to Senior Lender on demand, all costs and
expenses of any kind, including reasonable counsel fees, which Senior Lender
may incur in enforcing any of its rights under this Agreement.
15. Actions Required by Borrower; Waiver of Setoff. Borrower agrees to do and
perform any and all acts and things which may be required on its part to
enable each Creditor to perform its obligations under this Agreement, and to
refrain from doing any act or thing which would cause or contribute to a
violation by each Creditor of its obligations hereunder. Borrower hereby
waives and agrees not to exercise any right of setoff against the
Subordinated Indebtedness for any indebtedness, liability or obligation of
any Creditor to Borrower.
16. Additional Waivers by Creditors and Borrower. Creditor and Borrower waive
any and all notice of the receipt and acceptance by Senior Lender of this
Agreement or of the creation, renewal, extension, or accrual of any of the
Senior Indebtedness, present or future, in whole or in part, by Senior
Lender or of the reliance by Senior Lender on this Agreement at any time.
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17. Continuing Agreement. This Agreement is a continuing agreement and if all
Senior Indebtedness shall at any time be paid in full, this Agreement shall
remain in full force and effect with respect to any Senior Indebtedness
thereafter incurred.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and any applicable laws of
the United States of America in all respects, including construction,
validity and performance without regard to conflicts of laws principles.
19. Counterparts. This Agreement may be separately executed in counterparts and
by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to so constitute one and the same Agreement.
20. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE
PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT BY THE PARTIES. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
21. Notices. Any notice or other communication required or permitted to given
under this Agreement shall be in writing addressed to the respective party
as set forth below and may be personally served, telecopied, telexed or sent
by overnight courier service or United States mail and shall be deemed to
have been received: (a) if delivered in person, when delivered; (b) if
delivered by telecopy or telex, on the date of transmission if transmitted
on a Business Day before 4:00 p.m. (New York time) or, if not, on the next
succeeding Business Day; (c) if delivered by overnight courier, two days
after deliver to such courier properly addressed; or (d) if by U.S. Mail,
four Business Days after depositing in the United States mail, with postage
prepaid and properly addressed:
Notices shall be addressed as follows:
If to Creditors: To the respective addresses set forth
on Schedule I hereto
If to Senior Lender: HealthAxis.com, Inc.
2500 DeKalb Pike
East Norriton, PA 19401
Attn: Michael Ashker, President & CEO
If to Borrower: HealthAxis Inc.
2500 DeKalb Pike
East Norriton, PA 19401
Attn: Michael Ashker, President & CEO
or to such other address as the party addressed shall have previously
designated by written notice to the serving party, given in accordance with
this Section 21. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
22. Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement.
23. Amendments and Waivers. No amendment, modification, termination or waiver of
any provision of this Agreement, or consent to any departure by Borrower or
Creditor therefrom, shall in any event be effective unless the same shall be
in writing and signed by Senior Lender.
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24. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay
on the part of Senior Lender in the exercise of any power, right or
privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
25. Headings. Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
26. Consent to Jurisdiction and Service of Process. BORROWER AND EACH CREDITOR
HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK
STATE COURT SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. BORROWER AND CREDITOR
EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
27. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES HERETO IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF SENIOR LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT
OF THE TERMS HEREOF.
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IN WITNESS WHEREOF, each of the Creditors and Borrower have caused this
Agreement to be duly executed as of the date first written above.
CREDITORS:
UICI
By:
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Name:
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Title:
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BROWN SIMPSON STRATEGIC GROWTH FUND, LTD.
By: Brown Simpson Asset Management LLC
By:
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Name:
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Title:
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BROWN SIMPSON STRATEGIC GROWTH FUND, L.P.
By: Brown Simpson Capital, LLC, its general partner
By:
-------------------------------------------------
Name:
----------------------------------------------
Title:
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BROWN SIMPSON - ORD INVESTMENTS LLC
By:
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Name:
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Title:
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LB I GROUP INC.
By:
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Name:
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Title:
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/s/ Alvin Clemens
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ALVIN CLEMENS
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BORROWER:
HEALTHAXIS INC., a Pennsylvania corporation
By: /s/ Michael Ashker
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Name: Michael Ashker
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Title: President and CEO
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SENIOR LENDER
HEALTHAXIS.COM, INC., a Pennsylvania corporation
By: /s/ Michael Ashker
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Name: Michael Ashker
---------------------------------------------
Title: President and CEO
---------------------------------------------
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Schedule I
to
Subordination Agreement
Name of Creditor Address
---------------- -------
Brown Simpson Strategic Growth Fund, Ltd. 152 West 57th Street, 40th Floor
New York, New York 10019
Attn: General Counsel
Fax: (212) 247-1329
Residence: Grand Cayman,
Cayman Islands
Brown Simpson Strategic Growth Fund, L.P. 152 West 57th Street, 40th Floor
New York, New York 10019
Attn: General Counsel
Fax: (212) 247-1329
Residence: New York, New York
Brown Simpson - ORD Investments LLC C/o OTA Limited Partnership
1 Manhattanville Road
Purchase, NY 10577
Attn: Vinny DiGeso
Fax: (914) 694-6342
UICI 4001 McEwen
Suite 200
Dallas, Texas 75201
Attn: Mr. Gregory T. Mutz
Fax: (972) 392-6717
Alvin Clemens [Address]
LB I Group Inc. c/o Lehman Brothers, Inc.
3 World Financial Center
New York, New York 10285
Attn: Regis Hagler
Fax: (212) 526-6327
Residence: New York, New York
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Schedule II
to
Subordination Agreement
Description of Subordinated Indebtedness
