EXHIBIT 10.30
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT is made and entered into effective as of
the 30th day of December, 1997, by 21ST CENTURY CLAIM SERVICE, INC., a
Kentucky corporation, with address of 0000 Xxxxxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Debtor"); and
BANK ONE, KENTUCKY, NA, a National Banking Association, 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Secured Party").
IT IS AGREED BY THE PARTIES AS FOLLOWS:
1. For value received, Debtor does hereby grant unto Secured Party a
security interest in and to all the collateral described in numerical
Paragraph two (2) hereof to secure all of the indebtedness referred to
in numerical Paragraph three (3) hereof.
2. The collateral covered by this Security Agreement is (a) all of
Debtor's property described in Schedule A hereto and any supplemental
exhibits thereto, and (b) all proceeds and products thereof (all of
which collateral is hereinafter collectively referred to as the
"Collateral").
3. This Security Agreement is made as collateral security for:
a. The payment of all sums due to Secured Party from Debtor and
the other makers under the terms of that certain $200,000.00
Term Note dated as of December 30, 1997 (the "Note"); and
b. All other liabilities and obligations of whatever kind or
type of Debtor to Secured Party, including any guarantees of
the Debtor to Secured Party, whether created directly or
acquired by Secured Party by assignment or otherwise,
whether now existing or hereafter created, arising or
acquired, absolute or contingent, joint or several, due or
to become due (the foregoing obligations are herein
collectively referred to as "Indebtedness").
4. Debtor represents and warrants to Secured Party that:
a. All of the Collateral is used or will be used for business.
b. Debtor is absolute owner of the legal and beneficial title
to the Collateral, (exclusive of hereafter acquired, replacement
or hereafter created items), and is in full possession thereof.
c. Except as previously disclosed in writing, the Collateral is
free and clear of all liens, encumbrances and adverse claims
whatsoever.
d. Debtor has the right to enter into this Security Agreement.
5. Debtor covenants and agrees that:
a. Debtor shall defend the Collateral against the claims and
demands of all persons.
b. Debtor shall not:
i. permit any loan or security interest (other than
Secured Party's security interest granted herein and
those liens previously disclosed in writing) to attach
to any of the Collateral;
ii. permit any of the Collateral to be levied upon under
any legal process; or
iii. dispose of or enter or agree to enter into any sale of
any of the Collateral, whether or not inventory,
without prior written consent of Secured Party.
c. Debtor shall insure or have insured the tangible Collateral
for the benefit of Secured Party (who shall be the loss payee) in such
amounts, for such risks and with such company as Secured Party may
request, and promptly deliver all policies with respect thereto to
Secured Party, or in the event Debtor at any time has not maintained and
delivered to Secured Party such requested policies of insurance, Secured
Party shall, in its sole and absolute discretion, whether or not any
Event of Default, as defined in this Security Agreement, has occurred,
have the right to place and effect such insurance as Secured Party deems
appropriate at the Debtor's expense and in the event Secured Party
elects to pay for such insurance coverage, Debtor shall reimburse
Secured Party for the amount(s) so paid plus interest thereon at the
default rate of interest due under the Note.
d. Debtor shall keep the Collateral consisting of tangible
property in good condition.
e. Debtor shall advise Secured Party in writing, at least
thirty (30) days prior thereto, of any change in Debtor's place of
business or mailing address.
f. Debtor shall not conduct business under any other name than
that given above nor change or reorganize the type of business entity
under which it does business except upon prior written approval of
Secured Party. If such approval is given, Debtor agrees that all
documents, instruments and agreements demanded by Secured Party shall be
prepared and filed at Debtor's expense before such change of name or
business entity occurs.
g. Debtor shall execute and deliver to Secured Party upon
request new UCC-1 Financing Statements describing the same Collateral
specified herein for recordation where necessary in Secured Party's sole
discretion to perfect Secured Party's security interest in the
Collateral, and Debtor shall pay all filing and recording fees and
filing and recording taxes in connection with the filing and/or
recordation of such Statements, and, if paid by the Secured Party,
Debtors will reimburse Secured Party therefor upon demand of Secured
Party.
h. Debtor hereby irrevocably appoints Secured Party as Debtor's
attorney-in-fact to do all acts and things which Secured Party may deem
necessary or appropriate to perfect and continue perfected the security
interest created by this Security Agreement and to protect and, in the
case of an Event of Default hereunder, sell the Collateral, including,
but not limited to, the execution in Debtor's name as Debtor's
irrevocable attorney-in-fact:
i. notifications and agreements to sell where sale is
permitted,
ii. any documents or papers necessary or helpful to comply
with the terms of any agreements relative to any of
the Collateral, and
iii. UCC-1 (and other) Financing Statements covering the
Collateral and filing and recordation of same wherever
Secured Party deems appropriate, with Debtor to
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reimburse Secured Party for all filing and recording
fees, taxes and other expenses in connection therewith
upon demand of Secured Party.
Provided, however, the power of attorney granted hereby shall
survive the disability of the principal but when all the indebtedness is
fully paid and performed and Debtor has no obligation to or commitment
for loan(s) from Secured Party, this power of attorney shall become null
and void upon Secured Party's receipt of written notification from
Debtor to such effect.
i The Indebtedness shall be paid to Secured Party in
accordance with the terms thereof.
j. Debtor shall comply in all respects with any other agreement
between Debtor and Secured Party.
k. Debtor shall permit Secured Party and/or its agents to
inspect and appraise the Collateral and inspect the books and records of
Debtor at all reasonable times and from time to time, and shall pay all
expenses Secured Party may incur in connection with any such
inspection(s) and appraisal(s).
6. Upon the occurrence of any "Event of Default," which, for the
purposes of this Security Agreement means any default in, or breach of,
any covenant, agreement, representation or warranty by Debtor under the
provisions of any document evidencing any of the Indebtedness or other
obligations of Debtor to Secured Party or of any other agreement
regarding any of the Indebtedness, this Security Agreement, the Note,
and any mortgage(s) or other security agreement(s) securing or otherwise
relating to any of the Indebtedness, Secured Party shall have all rights
and remedies in and against the Collateral and otherwise of a secured
party under the Uniform Commercial Code and the other applicable law of
Kentucky (and all such other states where any part of the Collateral may
be located, if applicable) and all other applicable laws and all rights
provided herein, in all other documents evidencing, securing or related
to any of the Indebtedness, or in any other applicable security or loan
agreement, all of which rights and remedies shall, to the full extent
permitted by law, be cumulative. In addition, Secured Party may require
Debtor, at Debtor's sole expense, to assemble the Collateral and make it
available to Secured Party at the place or places to be designated by
Secured Party and Debtor. Secured Party shall have the right to sell
the Collateral at public or private sale. Debtor agrees to pay to
Secured Party, as part of the Indebtedness, all amounts paid by Secured
Party, including, but not limited to:
a. Secured Party's attorney's fees, to the extent not
prohibited by applicable law, in connection with the
enforcement of any of Debtor's obligations hereunder or
contained in the documents evidencing the Indebtedness, with
interest thereon at the highest rate provided for in any of
the Indebtedness;
b. taxes, levies and prior liens and insurance on, repairs to,
maintenance of, or transporting or otherwise caring for, the
Collateral; and
c. expenses incurred in taking possession of or preserving the
Collateral.
7. The requirement of reasonable notice of the time and place of
disposition of Collateral by Secured Party shall be conclusively deemed
to have been met if such notice is mailed, postage prepaid, to Debtor's
address specified above at least ten (10) days before the time of the
sale or disposition. Secured Party may bid upon and purchase any or all
of the Collateral at any public sale thereof. Secured Party may dispose
of all or any part of the Collateral at one or more times and from time
to time and in one or more lots or parcels, and upon such terms and
conditions, including a credit sale, as Secured Party determines in its
sole discretion. Secured Party shall apply the net proceeds of any such
disposition of the Collateral (after deducting therefrom all costs
incurred in connection therewith, or incidental to the
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holding, preparing for sale, in whole or in part, of the Collateral,
including Secured Party's attorney's fees and court costs) to the
Indebtedness and any other obligations of Debtor to Secured Party in the
order elected by Secured Party in its sole discretion, and any remaining
proceeds shall be paid to the Debtor or such other party as is entitled
thereto.
8. This is a continuing Security Agreement and all the rights, powers
and remedies hereunder shall apply to all past, present and future
indebtedness of Debtor to Secured Party, including any indebtedness
arising under subsequent transactions which shall either continue the
Indebtedness, increase or decrease it, or from time to time create new
indebtedness or additional indebtedness whether or not all or any prior
indebtedness has been satisfied, and notwithstanding the death,
incapacity or bankruptcy of Debtor, or any other event or proceeding
affecting Debtor.
9. The rights, powers and remedies given to Secured Party by this
Security Agreement shall be in addition to all rights, powers and
remedies given to the Secured Party by virtue of any other agreement now
existing or subsequently entered into by and between the parties hereto
and any statute or rule of law. Secured Party may exercise its right of
set off with respect to the Indebtedness in the same manner as if the
Indebtedness were unsecured. Any waiver, forbearance, failure or delay
by Secured Party in exercising any right, power or remedy hereunder
shall not be deemed to be a waiver of such right, power or remedy, and
any single or partial exercise of any right, power or remedy hereunder
shall not preclude the further exercise thereof; and every right, power
and remedy of Secured Party shall continue in full force and effect
until such right, power or remedy is specifically waived by an
instrument in writing executed by Secured Party.
10. DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY
AGREEMENT OR ANY OTHER DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SECURED
PARTY, DEBTOR AND ANY GUARANTORS. DEBTOR ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT TO SECURED PARTY.
11. The Debtor agrees that the sole proper venue for the determination
of any litigation commenced by either Debtor or Secured Party on any
basis shall be in a court of competent jurisdiction which is located in
Fayette County, Kentucky, and the parties hereby expressly declare that
any other venue shall be improper and Debtor expressly waives any right
to a determination of any such litigation against Debtor by a court in
any other venue. Debtor further agrees that service of process by any
judicial officer or by registered or certified U.S. mail shall establish
personal jurisdiction over Debtor, and Debtor waives any rights under
the laws of any state to object to jurisdiction within the Commonwealth
of Kentucky. The aforesaid means of obtaining personal jurisdiction and
perfecting service of process are not intended to be exclusive, but are
cumulative and in addition to all other means of obtaining personal
jurisdiction and perfecting service of process now or hereafter provided
by the laws of the Commonwealth of Kentucky or by any other state in an
action brought by Secured Party in such state.
12. The laws of the Commonwealth of Kentucky shall govern the
construction of this Security Agreement and the rights, remedies and
duties of the parties hereto, unless the laws of the state where the
Collateral or part thereof is situated dictate that the laws of such
other state shall govern with respect thereto.
13. This Security Agreement shall bind Debtor and Debtor's heirs,
successors and assigns and shall inure to the benefit of Secured Party
and its successors and assigns.
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14. Time shall be of the essence in the performance of each of the
Debtor's obligations under this Security Agreement.
15. A judicial decree, order or judgment holding any provision herein
invalid or unenforceable shall not in any way impair or preclude
enforcement of the remaining provisions herein, and shall not in any way
impair or preclude enforcement of rights or remedies of Secured Party
under Chapter 355 of the Kentucky Revised Statutes, or other applicable
law.
16. This Security Agreement may, in the sole discretion of Secured
Party, be filed as a financing statement and Debtor agrees to also
execute any additional financing statements with respect hereto which
may be requested by Secured Party. Secured Party may, in its sole
discretion, attach this Security Agreement or any other document
executed pursuant hereto or in connection herewith with any person or
organization which registers, sells or is in any manner involved with
any or all of the Collateral. Secured Party shall be entitled to notify
the person in possession of the Collateral, or any other person Secured
Party deems appropriate of the security interest herein granted and to
notify such person or entity to forward all documents with respect to
the Collateral to Secured Party and otherwise as Secured Party deems
appropriate.
IN TESTIMONY WHEREOF, witness the signature of the parties hereto,
to be effective the day, month and year first above written.
21ST CENTURY CLAIM SERVICE, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: Secretary/Treasurer
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BANK ONE, KENTUCKY, NA
BY: /s/ X. X. Xxxxxx
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TITLE: Executive Vice President
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EXHIBIT A TO FINANCING STATEMENT AND/OR SECURITY AGREEMENT
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This property covered by this Financing Statement and/or Security
Agreement includes all of the Debtor's right, title and interest in, to
and under the following described property, whether now owned or
hereafter acquired by the Debtor, and whether now existing or hereafter
created, arising, accruing, incurred or entered into (all of which
hereinafter collectively called the "Collateral"):
1. Each and every "Account", as such term is defined in the Uniform
Commercial Code of the State of Kentucky, and in any event shall
include, but not be limited to, all of the Debtor's rights to payment
for goods sold or leased or services performed by the Debtor whether now
in existence or arising from time to time hereafter, including, without
imitation, rights evidenced by an account, accounts receivables, note,
contract, security agreement, chattel paper, or other evidence of
indebtedness or security, whether or not such right(s) to payment has
been earned by performance, and whether or not such right(s) to payment
is evidenced by any document, instrument or chattel paper, together with
(a) all security pledged, assigned, hypothecated or granted to or held
by the Debtor to secure the foregoing, (b) all of the Debtor's right,
title and interest in and to any goods, the sale of which gave rise
thereto, (c) all guarantees, endorsements and indemnifications on, or
of, any of the foregoing, (d) all powers of attorney for the execution
of any evidence of indebtedness or security or other writing in
connection therewith, (e) all books, correspondence, credit files,
records, ledger cards, invoices, and other papers relating thereto,
including, without limitation, all tapes, cards, computer runs and other
papers and documents in the possession or under the control of the
Debtor or any computer bureau from time to time acting for the Debtor,
(f) all evidences of the filing of financing statement and other
statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured
parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto, and
(h) all other writings related in any way to the foregoing.
2. All "Chattel Paper", as such term is defined in the Uniform
Commercial Code and in the State of Kentucky, in which Debtor now has or
hereafter acquires any rights and wherever located and, in any event,
shall include a writing or writings which evidence both a monetary
obligation and a security interest in or lease of specific goods; any
returned, rejected or repossessed goods covered by any such writing or
writings and all proceeds (in any form including, without limitation,
accounts, contract rights, documents, chattel paper, instruments and
general intangibles) of such returned, rejected or repossessed goods.
3. All of the inventory of the Debtor of every type or description,
now owned or hereafter acquired and wherever located, whether raw, in
process or finished, all materials usable in processing the same and all
documents of title covering any inventory, including, but not limited
to, work in process, materials used or consumed in the Debtor's
business, now owned or hereafter acquired or manufactured by the Debtor
and held for sale or lease or to be furnished under a contract of
service in the ordinary course of its business; all present and future
substitutions therefor, parts and accessories thereof and all additions
thereto; all proceeds thereof and products of such inventory in any form
whatsoever; specifically including all "inventory", as such term is
defined in the Uniform Commercial Code of the State of Kentucky.
4. All "Instruments" of Debtor, as such term is defined in the
Uniform Commercial Code of the State of Kentucky and in Kentucky Revised
Statutes Subsection 355.9-105(1)(g), and shall include but not be
limited to any and all negotiable instruments (defined in Kentucky
Revised Statutes 355.8-102) or any other writings which evidence a right
to payment of money and are not themselves security agreements or leases
and are of the type which are in the ordinary course of business
transferred by delivery with any necessary endorsement or assignment.
5. All "Equipment", as such term is defined in the Uniform Commercial
Code of the State of Kentucky, now or hereafter owned or leased by the
Debtor and, in any event, shall include, but shall not be limited to,
all machinery, tools, equipment, office equipment, furniture,
furnishings, fixtures, trade fixtures, goods which are to become
fixtures, and any materials, instructions, blueprints, computer software
and similar items which relate to the above, and any and all additions,
substitutions and replacements of any of the foregoing, wherever
located, together with all improvements thereon and all attachments,
components, parts, equipment and accessories installed thereon or
affixed thereto (all of the foregoing in this section collectively, the
"Equipment").
6. All "General Intangibles", as such term is defined in the Uniform
Commercial Code of Kentucky and in Kentucky Revised Statutes Subsection
355.9-106, now or hereafter owned by the Debtor and shall include, but
not be limited to, all (a) Marks, Patents and Copyrights (as such terms
are hereinafter defined), (b) goodwill of the Debtor's business
symbolized by any of the foregoing, (c) license rights, license
agreements, leases, permits, franchises, patents, computer software and
customer lists, and (d) any rights to tax refunds to which the Debtor is
now or hereafter may be entitled.
7. All trademarks, trademark registrations and trademark applications
pending, now held or hereafter acquired by the Debtor, including,
without limitation, registrations, recordings and applications in the
United States Patent and Trademark Office or any similar governmental
agency in any foreign country (which the Debtor has adopted and used and
is using or hereafter acquires or under which the Debtor is licensed),
as well as all other trademarks, trade names, fictitious business names,
business names, company names, business identifiers, prints, labels,
trade styles and service marks not registered, and trade dress,
including logos and/or designs (all of the foregoing in this section
collectively, the "Marks") together with the registrations and right to
all renewals, reissues and extensions thereof, the goodwill of the
business of the Debtor symbolized by the Marks, and any and all causes
of action which may exist by reason of infringement or dilution thereof,
or injury to the associated goodwill with the right to xxx for and
collect said damages and the right to collect all royalties under any
license agreements with respect to any such Marks.
8. All copyrights, copyright registrations and copyright applications
now held or hereafter acquired by the Debtor including, without
limitation, any United States copyright to which the Debtor now or
hereafter has an interest as well as any application for a United States
copyright made by the Debtor (all of the foregoing in this section
collectively, the "Copyrights"), together with any renewals, reissues
and extensions thereof, and any and all causes of action which may exist
by reason of infringement thereof with the right to xxx for and collect
said damages and the right to collect all royalties under any license
agreements with respect to any such Copyrights.
9. All letters patent and any patent registrations, and any patent
applications pending, including, without limitation, registrations,
recordings and applications registered or recorded in the United States
Patent and Trademark Office or any similar governmental agency in any
foreign country (all of the foregoing in this section collectively, the
"Patents"), in respect of which the Debtor possesses any rights
whatsoever, together with any renewals, reissues, continuations and
extensions thereof, any and all causes of action which may exist by
reason of infringement thereof with the right to xxx for and collect
said damages and the right to collect all royalties under any license
agreements with respect to any such Patents.
10. Each and every contract to which the Debtor is a party, is bound
or is a beneficiary or assignee, and all exhibits to such contracts and
all other instruments, agreements and documents executed and delivered
with respect to such contracts and all revenues, rentals, Proceeds (as
hereinafter defined) and other sums of money due and to become due
thereunder from any of the foregoing, as the same may be
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modified, supplemented or amended from time to time in accordance with
its terms, as well as all contracts to which the Debtor may hereafter
from time to time become a party, become bound, or become a beneficiary
or assignee (all of the foregoing in this section collectively the
"Contracts"), including with limitation, (a) the leases relating to the
Inventory, the Equipment, any licenses, any personal property and assets
in the nature of personal property wheresoever situated to which the
Debtor is a party or is bound, as well as all renewals, substitutions
and replacements therefor and all other leases to which the Debtor may
hereafter from time to time become a party or become bound
(collectively, the "Leases"), (b) (1) all payments due and to become due
under any Contract, whether as contractual obligations, damages or
otherwise; (2) all of the Debtor's claims, rights, powers, or privileges
and remedies under any Contract and under any Lease and, to the extent
permitted by the lessor under any such Lease, the right to cure a
default by Debtor under any such Lease; (3) all of its rights under any
Contract or under any Lease to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option
or to give or receive any notice, consent, waiver or approval together
with full power and authority with respect to any Contract to demand,
receive, enforce, collect or receipt for any of the foregoing rights or
any property the subject of any of the Contracts, to enforce or execute
any checks, or other instruments or orders, to file any claims and to
take any action which may be necessary or advisable in connection with
any of the foregoing and (c) all contract rights thereunder.
11. All amounts from time to time held in any checking, savings,
deposit or other account of the Debtor, which amounts are "cash
collateral" as defined in the U.S. Bankruptcy Code, 11 U.S.C.
Section 363.
12. All licenses and permits issued by any federal, state, municipal,
or other governmental department, commission, board, bureau, agency,
court, tribunal or other instrumentality, domestic or foreign, and any
arbitrator.
13. All computer programs of the Debtor, and all intellectual property
rights therein and all other proprietary information of the Debtor
including, but not limited to, trade secrets.
14. All books, records, ledger cards, data processing records,
computer software and other property at any time evidencing or relating
to any of the foregoing.
15. Without limiting the generality of the foregoing, all other
personal property, goods (including without limitation consumer goods),
"farm products", "documents" (as such terms are defined in the Uniform
Commercial Code of the State of Kentucky), credits, claims, demands and
assets of the Debtor, whether now existing or hereafter acquired from
time to time.
16. All "Proceeds", as such term is defined in the Uniform Commercial
Code of the State of Kentucky, and in any event shall include, but not
be limited to, (a) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to Secured Party or the Debtor, from time
to time, and claims for insurance, indemnity, warranty or guaranty
effected or held for the benefit of the Debtor, with respect to any of
the Collateral (as hereinafter defined), (b) any and all payments (in
any form whatsoever) made or due and payable to the Debtor, from time to
time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any
governmental authority (or any person acting under color of governmental
authority) and (c) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral (all of the
foregoing in this section 16, collectively, the "Proceeds").
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17. Any and all additions and accessions to any of the foregoing, all
improvements thereto, all substitutions and replacements thereof and all
products and Proceeds thereof.
The undersigned confirms that this
Exhibit is part of a financing
statement and security agreement signed
by it:
21ST CENTURY CLAIMS SERVICE, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: Secretary/Treasurer
---------------------------------
"DEBTOR"
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