EXHIBIT 10.13
LOAN AGREEMENT
This Loan Agreement ("Loan Agreement") is made and entered into as of
this 1st day of October, 2001, by and among AMEDISYS, INC., a Delaware
corporation (the "Lender") and XXXX XXXXXX, an individual of the full age of
majority (referred to herein as the "Borrower").
WITNESSETH
WHEREAS, the Borrower and the Lender have entered into that certain
Promissory Note dated as of even date herewith whereby the Lender agreed to loan
to the Borrower and the Borrower agreed to pay the Lender the principal sum not
to exceed ONE HUNDRED TWO THOUSAND AND 00/100 DOLLARS ($102,000.00) pursuant to
the terms and provisions specified herein (the "Note");
WHEREAS, in order to induce the Lender to enter into this Loan
Agreement and as security for the performance of the Borrower's obligations
under the Note, the Borrower has agreed to grant to Lender a security interest
in certain Collateral (as defined below).
NOW, THEREFORE, in order to secure performance of the Borrower's
obligations under the Note, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is agreed as follows:
1. RECITALS. The recitals set forth above are hereby incorporated as
terms and provisions hereof.
2. LOAN. The Lender hereby agrees to loan to the Borrower the principal
amount not to exceed ONE HUNDRED TWO THOUSAND AND 00/100 DOLLARS ($102,000.00),
payable as follows:
a) $4,200.00 per month commencing October 1, 2001 and continuing
payments on the 1st day of each month through July 1, 2002;
and
b) $5,000.00 per month commencing August 1, 2002 and continuing
payments on the 1st day of each month through July 1, 2003.
3. INTEREST. The interest rate for outstanding loan balances shall be
SIX PERCENT (6%) per annum. Interest on the Note shall be computed on the basis
of a 360-day year and actual days elapsed.
4. INSTALLMENTS. Interest and principal payments shall be made pursuant
to the terms of the Note.
5. PAYMENT. Borrower shall pay Lender, in lawful money of the United
States of America to such account as may be specified by Lender from time to
time.
6. PREPAYMENT. The Borrower shall have the right to prepay the
principal balance outstanding in whole or in part.
7. GRANT OF A SECURITY INTEREST. The Borrower hereby grants a security
interest to the Lender, and its successors and assigns, in, to and under the
following, which shall sometimes be collectively referred to herein as the
"Collateral";
(a) all monies due borrower as bonus payments
pursuant to that certain Employment Agreement by and
between Borrower and Purchaser of even date herewith.
(b) all monies due borrower as severance payments
pursuant to that certain Employment Agreement by and
between Borrower and Purchaser of even date herewith.
It is the intention of the parties hereto that this Loan Agreement
shall constitute a security agreement under the Uniform Commercial Code and any
other applicable law and the Lender shall have the rights and remedies of a
secured party thereunder. The Borrower further agrees to deliver any financing
statement or additional document the Lender may reasonably request to perfect or
evidence the Lender's security interest granted herein.
13. FURTHER ASSURANCES. Borrower covenants to execute such other
assignments, security agreements, financing statements, and other documents that
Lender may deem necessary to further evidence the obligations provided for
herein or to perfect, extend, or clarify Lender's rights in the Collateral.
14. LEGAL AND BINDING AGREEMENT. Borrower warrants that the execution
and performance of this Loan Agreement will not violate any judicial or
administrative order or governmental law or regulation, and that this Loan
Agreement is valid, binding and enforceable against the Borrower in every
respect according to its terms.
15. DEFAULT DEFINED. The occurrence of any one or more of the following
events shall constitute a default under this Loan Agreement if not cured within
ten (10) business days following receipt of written notice thereof:
a. Monetary Default. The failure of the Borrower to
timely pay to the Lender any amount due hereunder
following any applicable notice to Borrower as set
forth in the Note.
b. Breach of Warranty/Covenant. The failure of the
Borrower to materially perform or observe any
obligation, covenant, agreement, representation or
warranty contained herein.
c. Dissolution/Cessation of Business. The cessation
of the Borrower's employment with Lender, Borrower's
liquidation or the taking of any action by Borrower
to further a liquidation, including the filing by the
Borrower of a Chapter 7 or Chapter 13 petition under
the Bankruptcy Code.
Except as set forth herein, the Borrower waives
presentment, demand and protest and the right to
assert any statute of limitations.
16. REMEDIES UPON DEFAULT. Upon default hereunder, Lender shall give
written notice thereof to the Borrower and, if such default is not cured within
ten (10) business days of such notice, Lender may pursue any or all of the
following remedies, without any further notice to Borrower, except as required
below:
a. Acceleration. Lender may declare the entire amount of the
Loan then outstanding due and payable at once.
b. Recovery of Proceeds of the Collateral. Lender may recover
any or all proceeds of the Collateral from any bank, court or
other custodian who may have possession thereof. Borrower
hereby authorizes and directs all custodians of Borrower's
assets to comply with any demand for payment made by Lender
pursuant to this Loan agreement, without the need of prior
approval or confirmation from Borrower and without making any
inquiry as to the existence of a default hereunder or any
other matter. Lender may engage a collection agent to collect
the proceeds of the Collateral for a reasonable percentage
commission or on any other reasonable compensation
arrangement.
c. Enforcement of Rights of Collection. Lender may, but shall
not be obligated to, take such measures as Lender may deem
necessary in order to collect or otherwise liquidate the
Collateral. Without limiting the foregoing, Lender may
institute or continue any administrative or judicial action
that it may deem necessary in the course of collecting and
enforcing any or all of the Lender's rights in or under the
Collateral. Any administrative or judicial action or other
action taken by Lender in the course of collecting the
proceeds of the Collateral may be taken by Lender in its own
name or in Borrower's name. Lender may compromise or settle
any disputed claims, which compromises or settlements shall be
binding upon Borrower. Lender shall have no duty to pursue
collection of the proceeds of the Collateral, and may abandon
efforts to collect the proceeds of the Collateral after such
efforts are initiated.
d. Other Remedies. Lender may exercise any right that it may
have under any other document evidencing, securing or
guaranteeing the Loan or otherwise available to Lender at law
or equity.
e. Attorney-in-Fact. Borrower hereby irrevocably appoints
Lender as Borrower's attorney-in-fact to (i) execute
appropriate Form(s) UCC-1 in connection herewith and (ii)
attach appropriate Exhibit(s) to the Form(s) UCC-1 executed in
connection herewith or any other UCC forms executed in
connection with the transactions contemplated herein. This
power shall be deemed to be a power coupled with an interest
and is irrevocable.
f. Application of Proceeds. All amounts received by Lender for
Borrower's account by exercise of its remedies hereunder shall
be applied as follows: First, to the payment of all expenses
incurred by Lender in exercising its rights hereunder,
including attorney's fees, and any other expenses due Lender
from Borrower; Second, to the payment of all interest, if any,
in such order as Lender may elect; Third, to the payment of
all principal, in such order as Lender may elect; and, Fourth,
any excess to Borrower or any other party entitled thereto.
17. NO THIRD PARTY BENEFICIARIES. This Loan Agreement has been executed
for the sole benefit of Lender and its assignees, and no other third party is
authorized to rely upon Lender's rights hereunder or to rely upon an assumption
that Lender has or will exercise its rights under this Loan Agreement or under
any document referred to herein.
19. NOTICES. Any communication concerning this Agreement shall be
addressed as follows:
As To Lender:
Amedisys, Inc.
00000 Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
As To Borrower:
Xxxx Xxxxxx
0000 X. Xxxxxxxxx Xx.
Xxxxx Xxxxx, XX 00000
20. INDULGENCE NOT WAIVER. Lender's indulgence in the existence of a
default hereunder or any other departure from the terms of this Loan Agreement
shall not prejudice Lender's rights to declare a default or otherwise demand
strict compliance with this Loan Agreement.
21. CUMULATIVE REMEDIES. The remedies provided Lender in this Loan
Agreement are not exclusive of any other remedies that may be available to
Lender under any other document or at law or equity.
22. TERM; REINSTATEMENT. The security interest granted herein shall
continue until all amounts due and owing hereunder and all amounts included in
the secured indebtedness and secured hereby have been irrevocably paid in full.
If, after receipt of payment of all or any part of the Loan, Lender is for any
reason required to surrender such payment to any person because such payment is
invalidated, declared fraudulent, set aside, determined to be void or voidable
as a preference or diversion of trust funds, or for any other reason, then the
Loan or part thereof intended to be satisfied shall be revived and this Loan
Agreement and the security interest shall continue in full force as if such
payment had not been made, and Borrower shall be liable to Lender, and hereby
indemnifies Lender against and hold Lender harmless from, the amount of such
surrendered payment. These provisions shall remain effective notwithstanding any
contrary action taken by Lender in reliance on such payment which such action
shall be deemed to have been conditioned on such payment having become final an
irrevocable. The provisions of this Loan Agreement are irrevocable. Upon final
and irrevocable payment of the Loan and all amounts included in the secured
indebtedness and performance of all of Borrower's obligations hereunder, all
filings under the Uniform Commercial Code will be terminated within a reasonable
time and the provisions of this Loan Agreement shall terminate.
23. AMENDMENT AND WAIVER IN WRITING. No provision of this Loan
Agreement can be amended or waived, except by a statement in writing signed by
all parties hereto.
24. HEADINGS. The headings and captions herein are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Loan Agreement or the intent of any provision thereof.
25. COUNTERPARTS. This Loan Agreement may be executed in one or more
counterparts all of which together shall constitute a binding and enforceable
agreement with respect to each party. Signatures received via facsimile shall be
binding on the parties hereto.
26. BINDING EFFECT; ASSIGNABILITY. This Loan Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The Borrower may not assign any of his rights
and obligations hereunder or any interest herein without the prior written
consent of the Lender. The Lender may, at any time, without the consent of the
Borrower, assign any of its rights and obligations hereunder or interests herein
to any affiliate of the Lender.
27. SEVERABILITY. The invalidity of any provision or provisions of this
Loan Agreement shall not affect the other provisions, and this Loan Agreement
shall be construed in all respects as if any invalid provisions were omitted.
28. GOVERNING LAW. This Agreement shall governed by and construed in
accordance with the laws of the State of Louisiana.
IN WITNESS HEREOF, this Loan Agreement has been duly executed as of the
date first above written.
AMEDISYS, INC.
By:
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Xxxxxxx X. Xxxxx, CEO XXXX XXXXXX, BORROWER
