Exhibit 10.11
RESTRUCTURED LOAN AGREEMENT THIS RESTRUCTURED LOAN AGREEMENT (this "Restructured Loan Agreement") is entered into as of December 1, 2006, by and between Lyon Financial Services, Inc. dba U.S. Bank Portfolio Services ("USBPS"), as successor servicer for DVI Financial Services, Inc. ("DVIFS"), for the benefit of those special purpose entities listed on Schedule I to this Restructured Loan Agreement (collectively, the "SPE's" or "Payees"), and as Agent for U. S. Bank, N.A., as Trustee, 1310 Madrid Street - Suite 103, Marshall, MN 56258 and Orion HealthCorp, Inc. ("Orion") (f/k/a SurgiCare, Inc.), 1805 Old Alabama Road, Suite 350, Roswell, Georgia 30076. RECITALS WHEREAS, DVIFS and each of SurgiCare, Inc., Integrated Physician Solutions, Inc., Tuscarawas Ambulatory Surgery, Inc., SurgiCare Memorial Village, L.P. and Bellaire Surgical, Inc. (collectively the "Affiliates") entered into various loans and other financial accommodations (collectively, the "Transactions") for the benefit of the SPE's, and the documents evidencing and securing the Transactions, including, without limitation, a certain Master Loan Agreements 2858, 3032 and 2375, Secured Promissory Notes, a Security Agreement, a Restated Security Agreement and a Restated Loan Agreement (collectively, the "Transaction Documents"), and WHEREAS, U.S. Bank National Association (the "Trustee") is the Trustee for the noteholders (the "Noteholders"), which purchased notes issued by Payees pursuant to certain indentures and amended and restated indentures between Payees and the Trustee, and WHEREAS, USBPS is the Successor Servicer for Payees and Agent for the Trustee with respect to the Transactions and has the power and authority to enter into this Restructured Loan Agreement on behalf of Payees herein, and WHEREAS, at the closing of the transactions contemplated by this Restructured Loan Agreement, Orion will assume the reduced and restructured debt owed to Payees by Orion and some or all of the Affiliates, and WHEREAS, USBPS, on behalf of Payees, and Orion have agreed to compromise and settle the indebtedness incurred by Orion and some or all of the Affiliates and to amend and modify the terms thereof. NOW THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing Recitals are hereby incorporated herein by reference. 2. Compromise and Payment. On the Closing Date (as defined below), in full and final satisfaction of all of the indebtedness and all other obligations incurred by Orion and/or the Affiliates owing to USBPS, Payees or the Trustee, Orion shall issue an unsecured subordinated promissory note payable to USBPS as
Successor Servicer for the benefit of Payees, in the original principal amount of $2,750,000 (the "Note") substantially in the form attached hereto as Exhibit A.
3. The Closing. The closing of the transactions contemplated herein shall take place at the offices of Benesch Friedlander Coplan & Aronoff LLP, 2300 BP Tower, 200 Public Square, Cleveland, Ohio 44114, within three (3) business days following the satisfaction or waiver of the conditions set forth in Section 4 hereof, or at such other time or place as agreed upon by the parties, but in no event later than December 31, 2006 (the "Closing Date"). 4. Conditions to Closing. (a) USBPS' and Payees' Obligation to Close. USBPS' and Payees' obligation to close the transactions contemplated by this Restructured Loan Agreement are subject to the fulfillment by Orion on or prior to the Closing Date of each of the following conditions (unless waived in writing by USBPS): (i) delivery to USBPS of the Note duly executed by Orion; and (ii) delivery to USBPS of the confession of judgment (the "Confession of Judgment") in the form attached hereto as Exhibit B, duly executed by Orion. (b) Orion's Obligation to Close. Orion's obligation to close the transactions contemplated by this Restructured Loan Agreement are subject to the delivery to Orion and the holders of the Senior Debt (as defined below) of the documents to effect the subordination referred to in Section 8 below. 5. Notices. Any notices required by the Loan Documents shall hereafter be made to the addresses of the parties set forth above, or to such other address as a party may hereafter specify by written notice given in accordance with the requirements of this Restructured Loan Agreement. 6. Entire Agreement; No Oral Modification. This Restructured Loan Agreement and the Note contain the entire agreement between USBPS, Payees and Trustee on the one hand and Orion and the Affiliates on the other hand with respect to the subject matter hereof and all of the Transaction Documents are hereby amended and restated in their entirety by the Loan Documents. In the event of any conflict between this Restructured Loan Agreement and the Note, the provisions of this Restructured Loan Agreement shall prevail. To the extent inconsistent with this Restructured Loan Agreement, all prior agreements, understanding, representations and statements, oral or written, with respect to the transactions contemplated herein, are superseded by this Restructured Loan Agreement. Neither this Restructured Loan Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 7. Further Assurances. (a) Orion agrees to deliver to USBPS, its successors and assigns, upon the request of USBPS, such information, documentation, certificates, acknowledgments, consents and other instruments, which USBPS may reasonably determine to be necessary or proper to protect its or Payees' rights hereunder. Orion agrees to take any and all other action and execute and deliver to USBPS all documents reasonably requested by USBPS from time to time for the purpose of fully effectuating the purposes of this
Restructured Loan Agreement. 2 (b) From and after the Closing Date, USBPS and each Payee hereby authorize Orion to file, at Orion's sole cost and expense, any and all am