EXHIBIT 10.5
ADDENDUM TO FACTORING AGREEMENT
Altres Financial, L.P. ("Altres"), a Hawaii limited partnership, and
Medical Asset Management, Inc. ("Client") have entered into a Factoring
Agreement dated October 16, 1997 (the "Factoring Agreement"). Altres and Client
desire to modify the Factoring Agreement as set forth herein and agree as
follows:
1. DEPOSITORY ACCOUNTS.
a. Client represents and warrants that the depository accounts
identified on Exhibit A hereto constitute all of the depositary accounts for
which Client is a signatory or beneficiary or has any other interest, excluding
the Clinic Depositary Accounts (as defined below).
b. Client shall not open, maintain, or become a signatory on or
beneficiary of any other depositary account, including Clinic Depositary
Accounts, without providing prior written notice to Altres. The notice shall
include the name, address and phone number of the bank or other financial
institution where the account is opened, the account number, the name on the
account, and identify all signatories on the account. (All depositary accounts
identified on Exhibit A and all other depositary accounts opened or maintained
by Client or of which Client is a beneficiary or has any other interest,
excluding Clinic Depositary Accounts, are referred to collectively herein as the
"MAM Depositary Accounts".)
c. Client represents and warrants that the depositary accounts
identified on Exhibit B hereto constitute all of the depositary accounts which
are maintained for the purpose of depositing collections of accounts of any
doctor's office or clinic which has been acquired by Client and/or is operated
by Client (a "MAM Clinic"). (All depositary accounts identified on Exhibit B and
all other depositary accounts which are maintained for the purposes of
depositing collections of accounts of any MAM Clinic are referred to
collectively herein as the "Clinic Depositary Accounts".) MAM represents,
warrants and covenants that at all times an officer or employee of MAM shall be
a signatory on each Clinic Depositary Account.
d. All collections and other proceeds from accounts of any MAM
Clinic and/or Client (whether or not Altres has advanced funds based on the
account) shall be deposited daily into the Clinic Depositary Accounts. Such
proceeds and collections shall not be commingled with any other funds and shall
be promptly and directly deposited into the Clinic Depositary Accounts in the
form in which received by Client. Such proceeds and collections shall not be
deposited in any other account.
e. Client shall cause all amounts in all of the Clinic Depositary
Accounts to be transferred to the MAM Depositary Accounts on a daily basis.
f. Client shall cause all amounts in all of the MAM Depositary
Accounts which constitute collections and other proceeds from accounts of any
MAM Clinic and/or Client
(whether or not Altres has advanced funds based on the account) to be
transferred to Altres on a daily basis as instructed by Altres.
g. Client shall provide Altres with any account numbers, passwords,
and other information necessary or helpful for Altres to electronically or
telephonically access the MAM Depositary Accounts and the Clinic Depositary
Accounts for all purposes, including, without limitation, determining balances
and transferring funds. Upon request of Altres, Client will immediately cause
any person designated by Altres to become a signatory on such of the MAM
Depositary Accounts and Clinic Depositary Accounts as are requested by Altres.
Altres is authorized to determine balances in the MAM Depositary Accounts and
Clinic Depositary Accounts at any time and upon failure of Client to transfer
any funds as provided herein or upon the occurrence of any Event of Default, to
cause such transfer to be made.
h. Upon execution and delivery of this Addendum, Client shall
execute and deliver to Altres an Authorization and Power of Attorney in
substantially the form attached hereto as Exhibit C concerning each MAM
Depositary Account and each Clinic Depositary Account. Upon establishing any new
MAM Depositary Account or any new Clinic Depository Account, Client shall
promptly execute and deliver an Authorization and Power of Attorney in
substantially the form attached hereto as Exhibit C concerning each such new
account.
2. UCC FINANCING STATEMENTS.
a. Within seven (7) days of the first advance to Client pursuant to
the Factoring Agreement, Client shall (1) prepare and deliver to Altres fully
executed UCC-1 Financing Statements showing Client as secured party and as
debtor each MAM Clinic, together with an assignment thereof by Client to Altres,
or (2) proof of prior filing of a UCC-1 Financing Statement complying with
sub-section (1), together with an executed assignment thereof by Client to
Altres.
b. All such UCC-1 Financing Statements shall be in a form and
substance acceptable to Altres and filed or to be filed with each jurisdiction
or governmental entity requested by Altres.
3. INTEGRATED AGREEMENTS. This Addendum to Factoring Agreement, together
with the Factoring Agreement, and the documents identified or contemplated
therein, constitute the entire agreement between Altres and Client and may to be
altered or amended except by written agreement signed by Altres and Client. No
provision hereof or thereof may be waived by Altres except upon written waiver
executed by Altres. The Factoring Agreement and this Addendum to Factoring
Agreement shall be read and construed together as one agreement. This Addendum
to Factoring Agreement shall be governed by and construed in accordance with the
laws of the State of Utah and shall be deemed to have been executed by the
parties in the State of Utah.
4. FACTORING AGREEMENT REMAINS IN FULL FORCE AND EFFECT. Except as
expressly modified by this Addendum to Factoring Agreement, the Factoring
Agreement remains in full force and effect.
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Dated: October 22, 1997
Medical Asset Management, Inc.
By: /s/ Xxxx X. Xxxxx
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Title: President
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Altres Financial, L.P.
By: Xxx Xxxx Associates, a Hawaii
limited partnership,
Its General Partner
By: FOIGP Corp., a Hawaii limited
partnership,
Its General Partner
By: /s/ Xxx Xxxx
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Xxx Xxxx
President
Consented to:
/s/ D. Xxxx Xxxxxx
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D. Xxxx Xxxxxx
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