EXHIBIT 10.6
SECURITY AGREEMENT
(ALL ASSETS)
This Security Agreement dated as of April 5, 2006 ("Effective Date") is made by
NEW PTRS, LLC, a Florida limited liability company, FAMILY HOME HEALTH SERVICES,
LLC, a Delaware limited liability company, FHHS, LLC, a Michigan limited
liability company, and ILLINOIS FAMILY HOME HEALTH SERVICES, LLC, an Illinois
limited liability company, (collectively, "Debtors"), whose address is set forth
next to Debtors' signatures hereto, to COMERICA BANK, a Michigan banking
corporation ("Bank"), whose address is 00000 Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Commercial Loan Documentation, Mail Code 7578.
For value received, Debtors grant to Bank a continuing security interest and
lien (any pledge, assignment, security interest or other lien arising hereunder
is sometimes referred to herein as a "security interest") in the Collateral (as
defined below) to secure payment when due, whether by stated maturity, demand,
acceleration or otherwise, of all of the existing and future Indebtedness (as
defined below) to the Bank of FAMILY HOME HEALTH SERVICES INC., a Nevada
corporation ("Borrower").
For the purposes of this Agreement, "Indebtedness" includes without limit any
and all indebtedness, obligations or liabilities of Debtors or Borrower to the
Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown
including without limitation its obligations under the following:
The Amended and Restated Loan Agreement dated April 5, 2006, made between
Borrower and Bank ("Loan Agreement"), the $1,300,000 Line of Credit Note
dated November 10, 2005, and the $3,750,000 Term Loan Note dated April 5,
2006, made by Borrower to Bank pursuant thereto;
and any and all amendments, modifications, renewals and/or extensions of any of
the above; any and all obligations or liabilities for which Debtors or Borrower
would otherwise be liable to the Bank were it not for the invalidity or
unenforceability of them by reason of any bankruptcy, insolvency or other law,
or for any other reason; all costs incurred by Bank in establishing,
determining, continuing, or defending the validity or priority of its security
interest, or in pursuing its rights and remedies under this Agreement or under
any other agreement between Bank and Debtors or Borrower or in connection with
any proceeding involving Bank as a result of any financial accommodation to
Debtors or Borrower; and all other costs of collecting Indebtedness, including
without limit attorney fees. Debtors agree to pay Bank all such costs incurred
by the Bank, immediately upon demand, and until paid all costs shall bear
interest at the highest per annum rate applicable to any of the Indebtedness,
but not in excess of the maximum rate permitted by law. Any reference in this
Agreement to attorney fees shall be deemed a reference to reasonable fees,
costs, and expenses of both in-house and outside counsel and paralegals, whether
or not a suit or action is instituted, and to court costs if a suit or action is
instituted, and whether attorney fees or court costs are incurred at the trial
court level, on appeal, in a bankruptcy, administrative or probate proceeding or
otherwise.
Debtors further covenant, agree and represent as follows:
1. Collateral. Collateral shall mean all of the following property Debtors now
or later own or has an interest in, wherever located:
(a) all Accounts Receivable (for purposes of this Agreement, "Accounts
Receivable" consists of all accounts; general intangibles; chattel
paper (including without limit
electronic chattel paper and tangible chattel paper); contract rights;
deposit accounts; documents; instruments; rights to payment evidenced
by chattel paper, documents or instruments; health care insurance
receivables; commercial tort claims; letters of credit; letter of
credit rights; supporting obligations; and rights to payment for money
or funds advanced or sold);
(b) all Inventory;
(c) all Equipment and Fixtures;
(d) all Software (for purposes of this Agreement, "Software" consists of
all (i) computer programs and supporting information provided in
connection with a transaction relating to the program, and (ii)
computer programs embedded in goods and any supporting information
provided in connection with a transaction relating to the program
whether or not the program is associated with the goods in such a
manner that it customarily is considered part of the goods, and
whether or not, by becoming the owner of the goods, a person acquires
a right to use the program in connection with the goods, and whether
or not the program is embedded in goods that consist solely of the
medium in which the program is embedded);
(e) all goods, instruments, documents, policies and certificates of
insurance, deposits, money, investment property or other property
(except real property which is not a fixture) which are now or later
in possession or control of Bank, or as to which Bank now or later
controls possession by documents or otherwise; and
(f) all additions, attachments, accessions, parts, replacements,
substitutions, renewals, interest, dividends, distributions, rights of
any kind (including but not limited to stock splits, stock rights,
voting and preferential rights), products, and proceeds of or
pertaining to the above including, without limit, cash or other
property which were proceeds and are recovered by a bankruptcy trustee
or otherwise as a preferential transfer by Debtors.
In the definition of Collateral, a reference to a type of collateral shall
not be limited by a separate reference to a more specific or narrower type
of that collateral.
2. Warranties, Covenants and Agreements. Debtors warrant, covenant and agree
as follows:
2.1 Debtors shall furnish to Bank, in form and at intervals as Bank may
request, any information Bank may reasonably request and allow Bank to examine,
inspect, and copy any of Debtors' books and records. Debtors shall, at the
request of Bank, xxxx its records and the Collateral to clearly indicate the
security interest of Bank under this Agreement.
2.2 At the time any Collateral becomes, or is represented to be, subject to
a security interest in favor of Bank, Debtors shall be deemed to have warranted
that (a) Debtors are the lawful owner of the Collateral and has the right and
authority to subject it to a security interest granted to Bank; (b) none of the
Collateral is subject to any security interest other than that in favor of Bank;
(c) there are no financing statements on file, other than in favor of Bank; (d)
no person, other than Bank, has possession or control (as defined in the Uniform
Commercial Code) of any Collateral of such nature that perfection of a security
interest may be accomplished by control; and (e) Debtors acquired their rights
in the Collateral in the ordinary course of their business.
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2.3 Debtors will keep the Collateral free at all times from all claims,
liens, security interests and encumbrances other than those in favor of Bank.
Debtors will not, without the prior written consent of Bank, sell, transfer or
lease, or permit to be sold, transferred or leased, any or all of the
Collateral, except for Inventory in the ordinary course of its business and will
not return any Inventory to its supplier. Bank or its representatives may at all
reasonable times inspect the Collateral and may enter upon all premises where
the Collateral is kept or might be located.
2.4 Debtors will do all acts and will execute or cause to be executed all
writings requested by Bank to establish, maintain and continue an exclusive,
perfected and first security interest of Bank in the Collateral. Debtors agree
that Bank has no obligation to acquire or perfect any lien on or security
interest in any asset(s), whether realty or personalty, to secure payment of the
Indebtedness, and Debtors are not relying upon assets in which the Bank may have
a lien or security interest for payment of the Indebtedness.
2.5 Debtors will pay within the time that they can be paid without interest
or penalty all taxes, assessments and similar charges which at any time are or
may become a lien, charge, or encumbrance upon any Collateral, except to the
extent contested in good faith and bonded in a manner satisfactory to Bank. If
Debtors fail to pay any of these taxes, assessments, or other charges in the
time provided above, Bank has the option (but not the obligation) to do so and
Debtors agree to repay all amounts so expended by Bank immediately upon demand,
together with interest at the highest lawful default rate which could be charged
by Bank on any Indebtedness.
2.6 Debtors will keep the Collateral in good condition and will protect it
from loss, damage, or deterioration from any cause. Debtors have and will
maintain at all times (a) with respect to the Collateral, insurance under an
"all risk" policy against fire and other risks customarily insured against, and
(b) public liability insurance and other insurance as may be required by law or
reasonably required by Bank, all of which insurance shall be in amount, form and
content, and written by companies as may be satisfactory to Bank, containing a
lender's loss payable endorsement acceptable to Bank. Debtors will deliver to
Bank immediately upon demand evidence satisfactory to Bank that the required
insurance has been procured. If Debtors fail to maintain satisfactory insurance,
Bank has the option (but not the obligation) to do so and Debtors agree to repay
all amounts so expended by Bank immediately upon demand, together with interest
at the highest lawful default rate which could be charged by Bank on any
Indebtedness.
2.7 On each occasion on which Debtors evidence to Bank the account balances
on and the nature and extent of the Accounts Receivable, Debtors shall be deemed
to have warranted that except as otherwise indicated (a) each of those Accounts
Receivable is valid and enforceable without performance by Debtors of any act;
(b) each of those account balances are in fact owing, (c) there are no setoffs,
recoupments, credits, contra accounts, counterclaims or defenses against any of
those Accounts Receivable, (d) as to any Accounts Receivable represented by a
note, trade acceptance, draft or other instrument or by any chattel paper or
document, the same have been endorsed and/or delivered by Debtors to Bank, (e)
Debtors have not received with respect to any Account Receivable, any notice of
the death of the related account Debtors, nor of the dissolution, liquidation,
termination of existence, insolvency, business failure, appointment of a
receiver for, assignment for the benefit of creditors by, or filing of a
petition in bankruptcy by or against, the account Debtors, and (f) as to each
Account Receivable, except as may be expressly permitted by Bank to the contrary
in another document, the account Debtors are not an affiliate of Debtors, the
United States of America or any department, agency or instrumentality of it, or
a citizen or resident of any jurisdiction outside of the United States. Debtors
will do all acts and will execute all writings requested by Bank to perform,
enforce performance of, and collect all Accounts Receivable. Debtors shall
neither make nor permit any modification, compromise or
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substitution for any Account Receivable without the prior written consent of
Bank. Debtors shall, at Bank's request, arrange for verification of Accounts
Receivable directly with account Debtors or by other methods acceptable to Bank.
2.8 Debtors at all times shall be in strict compliance with all applicable
laws, including without limit any laws, ordinances, directives, orders,
statutes, or regulations an object of which is to regulate or improve health,
safety, or the environment ("Environmental Laws").
2.9 If Bank, acting in its sole discretion, redelivers Collateral to
Debtors or Debtors' designee for the purpose of (a) the ultimate sale or
exchange thereof; or (b) presentation, collection, renewal, or registration of
transfer thereof; or (c) loading, unloading, storing, shipping, transshipping,
manufacturing, processing or otherwise dealing with it preliminary to sale or
exchange; such redelivery shall be in trust for the benefit of Bank and shall
not constitute a release of Bank's security interest in it or in the proceeds or
products of it unless Bank specifically so agrees in writing. If Debtors request
any such redelivery, Debtors will deliver with such request a duly executed
financing statement in form and substance satisfactory to Bank. Any proceeds of
Collateral coming into Debtors' possession as a result of any such redelivery
shall be held in trust for Bank and immediately delivered to Bank for
application on the Indebtedness. Bank may (in its sole discretion) deliver any
or all of the Collateral to Debtors, and such delivery by Bank shall discharge
Bank from all liability or responsibility for such Collateral. Bank, at its
option, may require delivery of any Collateral to Bank at any time with such
endorsements or assignments of the Collateral as Bank may request.
2.10 At any time and without notice, Bank may (a) cause any or all of the
Collateral to be transferred to its name or to the name of its nominees; (b)
receive or collect by legal proceedings or otherwise all dividends, interest,
principal payments and other sums and all other distributions at any time
payable or receivable on account of the Collateral, and hold the same as
Collateral, or apply the same to the Indebtedness, the manner and distribution
of the application to be in the sole discretion of Bank; (c) enter into any
extension, subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting the Collateral, and
deposit or surrender control of the Collateral, and accept other property in
exchange for the Collateral and hold or apply the property or money so received
pursuant to this Agreement; and (d) take such actions in its own name or in
Debtors' names as Bank, in its sole discretion, deems necessary or appropriate
to establish exclusive control (as defined in the Uniform Commercial Code) over
any Collateral of such nature that perfection of Bank's security interest may be
accomplished by control.
2.11 Bank may assign any of the Indebtedness and deliver any or all of the
Collateral to its assignee, who then shall have with respect to Collateral so
delivered all the rights and powers of Bank under this Agreement, and after that
Bank shall be fully discharged from all liability and responsibility with
respect to Collateral so delivered.
2.12 [reserved]
2.13 Debtors shall defend, indemnify and hold harmless Bank, its employees,
agents, shareholders, affiliates, officers, and directors from and against any
and all claims, damages, fines, expenses, liabilities or causes of action of
whatever kind, including without limit consultant fees, legal expenses, and
attorney fees, suffered by any of them as a direct or indirect result of any
actual or asserted violation of any law, including, without limit, Environmental
Laws, or of any remediation relating to any property required by any law,
including without limit Environmental Laws.
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3. Collection of Proceeds.
3.1 Debtors agree to collect and enforce payment of all Collateral until
Bank shall direct Debtors to the contrary. Immediately upon notice to Debtors by
Bank and at all times after that, Debtors agrees to fully and promptly cooperate
and assist Bank in the collection and enforcement of all Collateral and to hold
in trust for Bank all payments received in connection with Collateral and from
the sale, lease or other disposition of any Collateral, all rights by way of
suretyship or guaranty and all rights in the nature of a lien or security
interest which Debtors now or later has regarding Collateral. Immediately upon
and after such notice, Debtors agree to (a) endorse to Bank and immediately
deliver to Bank all payments received on Collateral or from the sale, lease or
other disposition of any Collateral or arising from any other rights or
interests of Debtors in the Collateral, in the form received by Debtors without
commingling with any other funds, and (b) immediately deliver to Bank all
property in Debtors' possession or later coming into Debtors' possession through
enforcement of Debtors' rights or interests in the Collateral. Debtors
irrevocably authorize Bank or any Bank employee or agent to endorse the name of
Debtors upon any checks or other items which are received in payment for any
Collateral, and to do any and all things necessary in order to reduce these
items to money. Bank shall have no duty as to the collection or protection of
Collateral or the proceeds of it, nor as to the preservation of any related
rights, beyond the use of reasonable care in the custody and preservation of
Collateral in the possession of Bank. Debtors agree to take all steps necessary
to preserve rights against prior parties with respect to the Collateral. Nothing
in this Section 3.1 shall be deemed a consent by Bank to any sale, lease or
other disposition of any Collateral.
3.2 Debtors agree that immediately upon Bank's request (whether or not any
Event of Default exists) the Indebtedness shall be on a "remittance basis" as
follows: Debtors shall at their sole expense establish and maintain (and Bank,
at Bank's option may establish and maintain at Debtors' expense): (a) an United
States Post Office lock box (the "Lock Box"), to which Bank shall have exclusive
access and control. Debtors expressly authorize Bank, from time to time, to
remove contents from the Lock Box, for disposition in accordance with this
Agreement. Debtors agree to notify all account Debtors and other parties
obligated to Debtors that all payments made to Debtors (other than payments by
electronic funds transfer) shall be remitted, for the credit of Debtors, to the
Lock Box, and Debtors shall include a like statement on all invoices; and (b) a
non-interest bearing deposit account with Bank which shall be titled as
designated by Bank (the "Cash Collateral Account") to which Bank shall have
exclusive access and control. Debtors agree to notify all account Debtors and
other parties obligated to Debtors that all payments made to Debtors by
electronic funds transfer shall be remitted to the Cash Collateral Account, and
Debtors, at Bank's request, shall include a like statement on all invoices.
Debtors shall execute all documents and authorizations as required by Bank to
establish and maintain the Lock Box and the Cash Collateral Account.
3.3 All items or amounts which are remitted to the Lock Box, to the Cash
Collateral Account, or otherwise delivered by or for the benefit of Debtors to
Bank on account of partial or full payment of, or with respect to, any
Collateral shall, at Bank's option, (a) be applied to the payment of the
Indebtedness, whether then due or not, in such order or at such time of
application as Bank may determine in its sole discretion, or, (b) be deposited
to the Cash Collateral Account. Debtors agree that Bank shall not be liable for
any loss or damage which Debtors may suffer as a result of Bank's processing of
items or its exercise of any other rights or remedies under this Agreement,
including without limitation indirect, special or consequential damages, loss of
revenues or profits, or any claim, demand or action by any third party arising
out of or in connection with the processing of items or the exercise of any
other rights or remedies under this Agreement. Debtors agree to indemnify and
hold Bank harmless from and against all
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such third party claims, demands or actions, and all related expenses or
liabilities, including, without limitation, attorney fees.
4. Defaults, Enforcement and Application of Proceeds.
4.1 Upon the occurrence of any of the Events of Default as such term is
defined in the Loan Agreement, which definition is incorporated in this
Agreement by this reference, Debtors shall be in default under this Agreement.
To the extent that (a) the Loan Agreement is amended in order to amend any of
the Events of Default or (b) Bank grants a consent to or waiver of the
occurrence of any event or existence of any condition that constitutes, or with
the lapse of time or notice or both would constitute, an Event of Default, such
amendment, consent or waiver shall be immediately effective hereunder without
need for any other act or agreement, and if the Loan Agreement is terminated,
the last form of the Events of Default shall remain effective under this
Agreement.
4.2 Upon the occurrence of any Event of Default, Bank may at its discretion
and without prior notice to Debtors declare any or all of the Indebtedness to be
immediately due and payable, and shall have and may exercise any one or more of
the following rights and remedies:
(a) Exercise all the rights and remedies upon default, in foreclosure and
otherwise, available to secured parties under the provisions of the
Uniform Commercial Code and other applicable law;
(b) Institute legal proceedings to foreclose upon the lien and security
interest granted by this Agreement, to recover judgment for all
amounts then due and owing as Indebtedness, and to collect the same
out of any Collateral or the proceeds of any sale of it;
(c) Institute legal proceedings for the sale, under the judgment or decree
of any court of competent jurisdiction, of any or all Collateral;
and/or
(d) Personally or by agents, attorneys, or appointment of a receiver,
enter upon any premises where Collateral may then be located, and take
possession of all or any of it and/or render it unusable; and without
being responsible for loss or damage to such Collateral, hold,
operate, sell, lease, or dispose of all or any Collateral at one or
more public or private sales, leasings or other disposition, at places
and times and on terms and conditions as Bank may deem fit, without
any previous demand or advertisement; and except as provided in this
Agreement, all notice of sale, lease or other disposition, and
advertisement, and other notice or demand, any right or equity of
redemption, and any obligation of a prospective purchaser or lessee to
inquire as to the power and authority of Bank to sell, lease, or
otherwise dispose of the Collateral or as to the application by Bank
of the proceeds of sale or otherwise, which would otherwise be
required by, or available to Debtors under, applicable law are
expressly waived by Debtors to the fullest extent permitted.
At any sale pursuant to this Section 4.2, whether under the power of sale, by
virtue of judicial proceedings or otherwise, it shall not be necessary for Bank
or a public officer under order of a court to have present physical or
constructive possession of Collateral to be sold. The recitals contained in any
conveyances and receipts made and given by Bank or the public officer to any
purchaser at any sale made pursuant to this Agreement shall, to the extent
permitted by applicable law, conclusively establish the truth and accuracy of
the matters stated (including, without limit, as to the amounts of the principal
of and interest on the Indebtedness, the accrual and nonpayment of it and
advertisement and conduct of the sale); and all prerequisites to the sale shall
be presumed to have been satisfied and performed. Upon any sale of any
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Collateral, the receipt of the officer making the sale under judicial
proceedings or of Bank shall be sufficient discharge to the purchaser for the
purchase money, and the purchaser shall not be obligated to see to the
application of the money. Any sale of any Collateral under this Agreement shall
be a perpetual bar against Debtors with respect to that Collateral. At any sale
or other disposition of Collateral pursuant to this Section 4.2, Bank disclaims
all warranties which would otherwise be given under the Uniform Commercial Code,
including without limit a disclaimer of any warranty relating to title,
possession, quiet enjoyment or the like, and Bank may communicate these
disclaimers to a purchaser at such disposition. This disclaimer of warranties
will not render the sale commercially unreasonable.
4.3 Debtors shall at the request of Bank, notify the account Debtors or
obligors of Bank's security interest in the Collateral and direct payment of it
to Bank. Bank may, itself, upon the occurrence of any Event of Default so notify
and direct any account Debtors or obligor. At the request of Bank, whether or
not an Event of Default shall have occurred, Debtors shall immediately take such
actions as Bank shall request to establish exclusive control (as defined in the
Uniform Commercial Code) by Bank over any Collateral which is of such a nature
that perfection of a security interest may be accomplished by control.
4.4 The proceeds of any sale or other disposition of Collateral authorized
by this Agreement shall be applied by Bank first upon all expenses authorized by
the Uniform Commercial Code and all reasonable attorney fees and legal expenses
incurred by Bank; the balance of the proceeds of the sale or other disposition
shall be applied in the payment of the Indebtedness, first to interest, then to
principal, then to remaining Indebtedness and the surplus, if any, shall be paid
over to Debtors or to such other person(s) as may be entitled to it under
applicable law. Debtors shall remain liable for any deficiency, which it shall
pay to Bank immediately upon demand. Debtors agree that Bank shall be under no
obligation to accept any noncash proceeds in connection with any sale or
disposition of Collateral unless failure to do so would be commercially
unreasonable. If Bank agrees in its sole discretion to accept noncash proceeds
(unless the failure to do so would be commercially unreasonable), Bank may
ascribe any commercially reasonable value to such proceeds. Without limiting the
foregoing, Bank may apply any discount factor in determining the present value
of proceeds to be received in the future or may elect to apply proceeds to be
received in the future only as and when such proceeds are actually received in
cash by Bank.
4.5 Nothing in this Agreement is intended, nor shall it be construed, to
preclude Bank from pursuing any other remedy provided by law for the collection
of the Indebtedness or for the recovery of any other sum to which Bank may be
entitled for the breach of this Agreement by Debtors. Nothing in this Agreement
shall reduce or release in any way any rights or security interests of Bank
contained in any existing agreement between Debtors, or any guarantor and Bank.
4.6 No waiver of default or consent to any act by Debtors shall be
effective unless in writing and signed by an authorized officer of Bank. No
waiver of any default or forbearance on the part of Bank in enforcing any of its
rights under this Agreement shall operate as a waiver of any other default or of
the same default on a future occasion or of any rights.
4.7 Debtors (a) irrevocably appoint Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful attorney of Debtors
(with full power of substitution) in the name, place and stead of, and at the
expense of, Debtors and (b) authorize Bank or any agent of Bank, in its own
name, at Debtors' expense, to do any of the following, as Bank, in its sole
discretion, deems appropriate:
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(i) to demand, receive, xxx for, and give receipts or acquittances
for any moneys due or to become due on any Collateral (including
without limit to draft against Collateral) and to endorse any
item representing any payment on or proceeds of the Collateral;
(ii) to execute and file in the name of and on behalf of Debtors all
financing statements or other filings deemed necessary or
desirable by Bank to evidence, perfect, or continue the security
interests granted in this Agreement; and
(iii) to do and perform any act on behalf of Debtors permitted or
required under this Agreement.
4.8 Upon the occurrence of an Event of Default, Debtors also agree, upon
request of Bank, to assemble the Collateral and make it available to Bank at any
place designated by Bank which is reasonably convenient to Bank and Debtors.
4.9 The following shall be the basis for any finder of fact's determination
of the value of any Collateral which is the subject matter of a disposition
giving rise to a calculation of any surplus or deficiency under Section 9.615
(f) of the Uniform Commercial Code (as in effect on or after July 1, 2001): (a)
the Collateral which is the subject matter of the disposition shall be valued in
an "as is" condition as of the date of the disposition, without any assumption
or expectation that such Collateral will be repaired or improved in any manner;
(b) the valuation shall be based upon an assumption that the transferee of such
Collateral desires a resale of the Collateral for cash promptly (but no later
than 30 days) following the disposition; (c) all reasonable closing costs
customarily borne by the seller in commercial sales transactions relating to
property similar to such Collateral shall be deducted including, without
limitation, brokerage commissions, tax prorations, attorneys' fees, whether
inside or outside counsel is used, and marketing costs; (d) the value of the
Collateral which is the subject matter of the disposition shall be further
discounted to account for any estimated holding costs associated with
maintaining such Collateral pending sale (to the extent not accounted for in (c)
above), and other maintenance, operational and ownership expenses; and (e) any
expert opinion testimony given or considered in connection with a determination
of the value of such Collateral must be given by persons having at least 5 years
experience in appraising property similar to the Collateral and who have
conducted and prepared a complete written appraisal of such Collateral taking
into consideration the factors set forth above. The "value" of any such
Collateral shall be a factor in determining the amount of proceeds which would
have been realized in a disposition to a transferee other than a secured party,
a person related to a secured party or a secondary obligor under Section
9-615(f).
5. Miscellaneous.
5.1 Until Bank is advised in writing by Debtors to the contrary, all
notices, requests and demands required under this Agreement or by law shall be
given to, or made upon, Debtors at the addresses set forth below their
signatures hereto.
5.2 Debtors will give Bank not less than 90 days prior written notice of
all contemplated changes in Debtors' names, location, chief executive office,
principal place of business, and/or location of any Collateral, but the giving
of this notice shall not cure any Event of Default caused by this change.
5.3 Bank assumes no duty of performance or other responsibility under any
contracts contained within the Collateral.
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5.4 Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the Indebtedness and any
related obligations, including without limit this Agreement. In connection with
the above, but without limiting its ability to make other disclosures to the
full extent allowable, Bank may disclose all documents and information which
Bank now or later has relating to Debtors, the Indebtedness or this Agreement,
however obtained. Debtors further agrees that Bank may provide information
relating to this Agreement or relating to Debtors to the Bank's parent,
affiliates, subsidiaries, and service providers.
5.5 In addition to Bank's other rights, any indebtedness owing from Bank to
Debtors can be set off and applied by Bank on any Indebtedness at any time(s)
either before or after maturity or demand without notice to anyone. Any such
action shall not constitute an acceptance of collateral in discharge of the
Indebtedness.
5.6 Debtors waive any right to require the Bank to: (a) proceed against any
person or property; (b) give notice of the terms, time and place of any public
or private sale of personal property security held from any other person, or
otherwise comply with the provisions of Section 9-504 of the Uniform Commercial
Code in effect prior to July 1, 2001 or its successor provisions thereafter; or
(c) pursue any other remedy in the Bank's power. Debtors waive notice of
acceptance of this Agreement and presentment, demand, protest, notice of
protest, dishonor, notice of dishonor, notice of default, notice of intent to
accelerate or demand payment of any Indebtedness, any and all other notices to
which the undersigned might otherwise be entitled, and diligence in collecting
any Indebtedness, and agree(s) that the Bank may, once or any number of times,
modify the terms of any Indebtedness, compromise, extend, increase, accelerate,
renew or forbear to enforce payment of any or all Indebtedness, all without
notice to Debtors and without affecting in any manner the unconditional
obligation of Debtors under this Agreement. Debtors unconditionally and
irrevocably waives each and every defense and setoff of any nature which, under
principles of guaranty or otherwise, would operate to impair or diminish in any
way the obligation of Debtors under this Agreement, and acknowledges that such
waiver is by this reference incorporated into each security agreement,
collateral assignment, pledge and/or other document from Debtors now or later
securing the Indebtedness, and acknowledges that as of the date of this
Agreement no such defense or setoff exists.
5.7 Debtors waive any and all rights (whether by subrogation, indemnity,
reimbursement, or otherwise) to recover from Borrower any amounts paid or the
value of any Collateral given by Debtors pursuant to this Agreement.
5.8 In the event that applicable law shall obligate Bank to give prior
notice to Debtors of any action to be taken under this Agreement, Debtors agree
that a written notice given to Debtors at least ten days before the date of the
act shall be reasonable notice of the act and, specifically, reasonable
notification of the time and place of any public sale or of the time after which
any private sale, lease, or other disposition is to be made, unless a shorter
notice period is reasonable under the circumstances. A notice shall be deemed to
be given under this Agreement when delivered to Debtors or when placed in an
envelope addressed to Debtors and deposited, with postage prepaid, in a post
office or official depository under the exclusive care and custody of the United
States Postal Service or delivered to an overnight courier. The mailing shall be
by overnight courier, certified, or first class mail.
5.9 Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the effectiveness of this
Agreement shall automatically continue or be reinstated in the event that any
payment received or credit given by Bank in respect of the Indebtedness is
returned, disgorged, or rescinded under any applicable law, including, without
limitation, bankruptcy or insolvency laws, in which case this Agreement, shall
be enforceable against Debtors as if the returned,
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disgorged, or rescinded payment or credit had not been received or given by
Bank, and whether or not Bank relied upon this payment or credit or changed its
position as a consequence of it. In the event of continuation or reinstatement
of this Agreement, Debtors agree upon demand by Bank to execute and deliver to
Bank those documents which Bank determines are appropriate to further evidence
(in the public records or otherwise) this continuation or reinstatement,
although the failure of Debtors to do so shall not affect in any way the
reinstatement or continuation.
5.10 This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and assigns and to any
other holder who derives from Bank title to or an interest in the Indebtedness
or any portion of it, and shall bind Debtors and the heirs, legal
representatives, successors, and assigns of Debtors. Nothing in this Section
5.10 is deemed a consent by Bank to any assignment by Debtors.
5.11 If there is more than one Debtor, all undertakings, warranties and
covenants made by Debtors and all rights, powers and authorities given to or
conferred upon Bank are made or given jointly and severally.
5.12 Except as otherwise provided in this Agreement, all terms in this
Agreement have the meanings assigned to them in Article 9 (or, absent definition
in Article 9, in any other Article) of the Uniform Commercial Code, as those
meanings may be amended, revised or replaced from time to time. "Uniform
Commercial Code" means Act No. 174 of the Michigan Public Acts of 1962, as
amended, revised or replaced from time to time, including without limit as
amended by Act No. 348 of the Michigan Public Acts of 2000. Notwithstanding the
foregoing, the parties intend that the terms used herein which are defined in
the Uniform Commercial Code have, at all times, the broadest and most inclusive
meanings possible. Accordingly, if the Uniform Commercial Code shall in the
future be amended or held by a court to define any term used herein more broadly
or inclusively than the Uniform Commercial Code in effect on the date of this
Agreement, then such term, as used herein, shall be given such broadened
meaning. If the Uniform Commercial Code shall in the future be amended or held
by a court to define any term used herein more narrowly, or less inclusively,
than the Uniform Commercial Code in effect on the date of this Agreement, such
amendment or holding shall be disregarded in defining terms used in this
Agreement.
5.13 No single or partial exercise, or delay in the exercise, of any right
or power under this Agreement, shall preclude other or further exercise of the
rights and powers under this Agreement. The unenforceability of any provision of
this Agreement shall not affect the enforceability of the remainder of this
Agreement. This Agreement constitutes the entire agreement of Debtors and Bank
with respect to the subject matter of this Agreement. No amendment or
modification of this Agreement shall be effective unless the same shall be in
writing and signed by Debtors and an authorized officer of Bank. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Michigan, without regard to conflict of laws principles.
5.14 To the extent that any of the Indebtedness is payable upon demand,
nothing contained in this Agreement shall modify the terms and conditions of
that Indebtedness nor shall anything contained in this Agreement prevent Bank
from making demand, without notice and with or without reason, for immediate
payment of any or all of that Indebtedness at any time(s), whether or not an
Event of Default has occurred.
5.15 Debtors represent and warrant that Debtors' exact names are the names
set forth in this Agreement. Debtors further represent and warrant that: New
PTRS, LLC, is a limited liability company organized under the laws of the state
of Florida; Family Home Health Services, LLC, is a limited liability
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company organized under the laws of the state of Delaware; FHHS, LLC, is a
limited liability company organized under the laws of the state of Michigan; and
Illinois Family Home Health Services, LLC, is a limited liability company
organized under the laws of the state of Illinois; and agree that Debtors are,
and at all times shall be, located at the addresses set forth below Debtors'
signatures hereto. Collateral shall be maintained only at such addresses or the
location identified on attached Schedule 5.15.
5.16 A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement under the Uniform Commercial Code and may
be filed by Bank in any filing office.
5.17 This Agreement shall be terminated only by the filing of a termination
statement in accordance with the applicable provisions of the Uniform Commercial
Code, but the obligations contained in Section 2.13 of this Agreement shall
survive termination.
6. DEBTORS AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS AGREEMENT OR THE INDEBTEDNESS.
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This Security Agreement is executed and delivered as of the Effective Date.
NEW PTRS, LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Its: Manager
Address:
000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
FAMILY HOME HEALTH SERVICES, LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Its: Manager
Address:
000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
FHHS, LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Its: Manager
Address:
000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ILLINOIS FAMILY HOME HEALTH SERVICES,
LLC
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Its: Manager
Address:
000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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SCHEDULE 5.15
ADDITIONAL COLLATERAL LOCATIONS
000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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