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Exhibit 10.1
FIRST CONSOLIDATED AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST CONSOLIDATED AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made and entered into this 29th day of August, 1997, by and
between CAPITAL FACTORS, INC., a Florida corporation (hereinafter referred to as
"Borrower") with its chief executive office and principal place of business at
000 Xxxx Xxxxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, and FLEET
CAPITAL CORPORATION, a Rhode Island corporation (hereinafter referred to as
"Fleet"), successor-by-merger to Fleet Capital Corporation, a Connecticut
corporation ("Old Fleet") with an office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx
000, Xxxxxxx, Xxxxxxx 00000.
RECITALS:
---------
Old Fleet and Borrower entered into a certain Loan and Security
Agreement dated as of March 4, 1996 (the "Loan Agreement"), pursuant to which
Old Fleet made certain revolving credit loans to Borrower.
Effective May 1, 1996, Old Fleet merged into Fleet Credit Corporation,
a Rhode Island corporation ("Fleet Credit"), with Fleet Credit being the
surviving corporation and having changed its name to "Fleet Capital
Corporation."
Fleet and Borrower have amended the Loan Agreement pursuant to a
certain First Amendment to Loan and Security Agreement dated July 15, 1996,
between Borrower and Fleet (the "Prior Amendment").
The parties desire to further amend the Loan Agreement as hereinafter
set forth, with the amendments provided for herein to supersede and replace the
Prior Amendment in its entirety.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) By deleting the address for Borrower in the fourth and
fifth lines of the initial paragraph on page 1 thereof and by
substituting therefor "120 Xxxx Xxxxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxx
Xxxxx Xxxxxxx 00000," which, as of May 12, 1997, shall be the chief
executive office and principal place of business.
(b) By deleting the phrase "in effect for such day" in the
third line of Section 2.1.1 thereof.
(c) By deleting Section 2.6 thereof in its entirety and by
substituting therefor the following:
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2.6. AUDIT AND APPRAISAL FEES. Borrower shall
reimburse Lender for all reasonable costs and expenses
incurred by Lender in connection with audits and appraisals of
Borrower's books and records, the Transaction Documents and
such other matters as Lender shall deem reasonable and
appropriate.
(d) By adding the following to the end of Section 3.1.1:
Unless Lender, in the exercise of its sole and absolute
discretion, shall otherwise agree, Lender shall not be obligated to
fund Revolver Loans more than once per calendar month, to the extent
such funding would be based upon the amount of Qualified Borrower
Advances owing to Borrower by a Designated Obligor whose Borrower
Advances were not previously included in the Borrowing Base and such
funding would occur subsequent to Lender's receipt during the then
current calendar month of SCHEDULE 1 to the Securitization Agreement
then in Trustee's possession pursuant to the terms of the Intercreditor
Agreement.
(e) By deleting clause (i) of Section 8.1.12 thereof and by
substituting therefor the following:
(i) For Borrower's operations relating to Healthcare Advances
on or before July 31, 1996
(f) By deleting Section 8.2.17 thereof in its entirety and by
substituting therefor the following:
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8.2.17. SALE OF PARTICIPATIONS. Sell or transfer a
participation in any Borrower Advance or the Transaction
Documents relating thereto, except to the extent that each of
the following conditions has been fully satisfied: (i) no
Default or Event of Default exists at the time of or would
result from the conveyance, assignment, transfer or sale of a
participation in such Borrower Advance; (ii) Borrower gives
Lender at least 5 days prior written notice of Borrower's
intent to convey, assign, transfer or sell a participation in
any Borrower Advance (in which notice Borrower shall specify
the identity of the proposed participant and terms of the
participation); (iii) no Out-of-Formula Condition exists at
the time or would result from such sale or transfer of a
participation in a Borrower Advance unless such Out-of-Formula
Condition is eliminated at the time of such sale or transfer
by payment to Lender, in immediately available funds, of the
purchase price that Borrower receives from the purchaser of
such participation, and (iv) the participation or other
interest sold or transferred in any Borrower Advance does not
provide for payment thereof on a preferred or priority basis
or provide for a priority right to the distribution of
proceeds of collateral or other security for the Borrower
Advance, but, rather, is to be paid on a pro rata basis in
relation to Borrower's interest in the Borrower Advance.
(g) By deleting the notice addresses for Borrower set forth in
Section 11.8 thereof in their entirety and by substituting therefor the
following:
If to Borrower: Capital Factors, Inc.
000 Xxxx Xxxxxxxx Xxxx Road
5th Floor
Boca Raton, Florida 33432
ATTENTION: President
Facsimile No.: (000) 000-0000
With a copy to: Capital Factors, Inc.
000 Xxxx Xxxxxxxx Xxxx Xxxx
0xx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxx,
Vice President and
Corporate Counsel
Facsimile No.: (000) 000-0000
(h) By adding the following new definitions to APPENDIX A
thereto in proper alphabetical sequence:
BOARD OF GOVERNORS - the Board of Governors of the Federal
Reserve Board.
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DESIGNATION SCHEDULE - a Designated Obligor Designation
Schedule in the form of EXHIBIT E hereto, which shall be completed by
Borrower and submitted to Lender with respect to each Obligor (i) that
Borrower requests Lender to consider as a Designated Obligor and (ii)
whose Borrower Advances Borrower requests Lender to consider as
Qualified Borrower Advances.
FLEET BANK POSTED LIBOR RATE - for any day of the week, the
rate of interest determined by Bank to be the average (rounded upward
to the nearest 1/16th of 1%) of the rates at which deposits in
immediately available Dollars are being offered or quoted by major
banks selected by Bank in the London interbank market for a 30-day term
at any time during the Business Day that is the second Business Day
immediately preceding such day of the week; and, if no such offers or
quotes are generally available, a rate determined by Bank in its
reasonable judgment that would be applicable if such offers or quotes
were generally available.
REGULATION D - Regulation D of the Board of Governors.
STATUTORY RESERVES - on any date, the percentage (expressed as
a decimal) established by the Board of Governors which is the then
stated maximum rate for all reserves (including, but not limited to,
any emergency, supplemental or other marginal reserve requirements)
applicable to any member bank of the Federal Reserve System in respect
to Eurocurrency Liabilities (or any successor category of liabilities
under Regulation D). Such reserve percentage shall include, without
limitation, those imposed pursuant to said Regulation D. The Statutory
Reserve shall be adjusted automatically on and as of the effective date
of any change in such percentage.
(i) By deleting the definition of "Availability Reserve" in APPENDIX A
thereto and by substituting therefor the following:
AVAILABILITY RESERVE - on any date of determination thereof,
an amount equal to the sum of: (i) any amounts which Borrower is
obligated to pay pursuant to the provisions of the Loan Documents but
does not pay when due and which Lender elects to pay pursuant to any of
the Loan Documents for the account of Borrower; (ii) if Lender in its
sole and absolute discretion so elects, an amount equal to $4,000,000;
(iii) for so long as any Event of Default exists, such additional
reserves as Lender in its sole and absolute discretion may elect to
impose from time to time, without waiving any such Event of Default or
Lender's entitlement to accelerate the maturity of the Obligations as a
consequence thereof; and (iv) all amounts of past due rent or other
charges owing by Borrower to any landlord of any premises leased and
occupied by Borrower.
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(j) By deleting the definition of "Borrowing Base" in APPENDIX
A thereto and by substituting therefor the following:
BORROWING BASE - on any date of determination thereof, an
amount equal to the lesser of:
(i) $50,000,000; or
(ii) an amount equal to:
(a) 90% of the Net Amount of Qualified
Borrower Advances outstanding at such date;
MINUS
(b) the Availability Reserve.
(k) By deleting the definition of "Designated Obligor" in
APPENDIX A thereto and by substituting therefor the following:
DESIGNATED OBLIGOR - each Obligor identified on EXHIBIT C to
the Agreement, as the same may be amended, modified or supplemented
from time to time, or any Obligor hereafter indicated as a Designated
Obligor pursuant to a Designation Schedule or other written agreement
between Borrower and Lender.
(l) By deleting the definition of "LIBOR Rate" in APPENDIX A
thereto and by substituting therefor the following:
LIBOR RATE - an interest rate per annum equal to the quotient
of (a) the Fleet Bank Posted LIBOR Rate in effect for such date divided
by (b) a percentage (expressed as a decimal) equal to 100% minus
Statutory Reserves.
(m) By deleting the word "subordinated" in the second line of
the definition of "Liquidity" in APPENDIX A thereto and by substituting
therefor the word "substituted."
(n) By deleting the definition of "Qualified Borrower
Advances" in APPENDIX A thereto and by substituting therefor the
following:
QUALIFIED BORROWER ADVANCE - a Borrower Advance made in the
ordinary course of Borrower's business which is payable in Dollars and
which Lender, in its customary credit judgment, deems to be a Qualified
Borrower Advance. Without limiting the generality of the foregoing, no
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Borrower Advance shall be a Qualified Borrower Advance if and to the
extent that: (i) Borrower is not the legal and beneficial owner of the
Borrower Advance; (ii) if Lender so elects, in the exercise of its sole
discretion, the aggregate outstanding balance of Borrower Advances to a
Designated Obligor exceeds $5,000,000 or such greater amount as Lender,
in its sole discretion, may establish, to the extent of such excess;
(iii) the amount thereof is not based upon a Designated Obligor
Borrowing Base; (iv) a Designated Obligor Overadvance exists, but such
Borrower Advance shall be ineligible only to the extent of such
Designated Obligor Overadvance; (v) to the extent that a part of the
amount of the Borrower Advance is based upon the amount or Value of the
eligible Accounts and the eligible Inventory of a Designated Obligor,
the amount of the Borrower Advance based upon the Value of such
Designated Obligor's eligible Inventory exceeds the amount of the
Borrower Advance based upon such Designated Obligor's eligible
Accounts, to the extent of such excess; (vi) the amount of the Borrower
Advance to a Designated Obligor based upon the Value of such Designated
Obligor's Inventory exceeds 40% of the Value of such Inventory, to the
extent of such excess; (vii) if the Borrower Advance is a Healthcare
Advance, the amount of the Borrower Advance owing by a Designated
Obligor exceeds an amount equal to the sum of all collections of
Accounts of such Designated Obligor applied in payment of such Borrower
Advance during the immediately preceding 3 calendar months; (viii) it
arises out of an extension of credit by Borrower to a Subsidiary or an
Affiliate of Borrower or to a Person controlled by an Affiliate of
Borrower; (ix) the Designated Obligor is also Borrower's creditor or
the Designated Obligor has disputed liability with respect to any
Borrower Advance or has made any claim with respect to any Borrower
Advance due from such Designated Obligor to Borrower, or the Borrower
Advance otherwise is or may become subject to any right of setoff,
counterclaim or reserve; (x) all or any part of the Borrower Advance
has been or will be written off by Borrower as a loss or designated as
a "non-accrual" or "non-earning" asset; (xi) an Insolvency Proceeding
has been commenced by or against the Designated Obligor or the
Designated Obligor has suspended business or has ceased to be Solvent;
(xii) it arises from an extension of credit to a Designated Obligor
with its principal office, assets or place of business outside the
United States, unless the extension of credit is backed by an
irrevocable letter of credit issued or confirmed by a bank to Lender
and is in form and substance acceptable to Lender, payable in the full
amount of the Borrower Advance in freely convertible Dollars at a place
of payment within the United States; (xiii) the Designated Obligor is
located in New Jersey, Minnesota or any other state imposing similar
conditions on the right of a creditor to collect accounts receivable
unless such Designated Obligor has either qualified to do business in
such state as a foreign corporation or filed a Notice of Business
Activities Report or other required report with the appropriate
officials in those states for the then current year; (xiv) the
Designated Obligor is located in a state in which
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Borrower is deemed to be doing business under the laws of such state
and which denies creditors access to its courts in the absence of
qualification to transact business in such state or of the filing of
any reports with such state, unless Borrower has qualified as a foreign
corporation authorized to transact business in such state or has filed
all required reports; (xv) the Borrower Advance is subject to a Lien
other than a Lien in favor of Borrower; (xvi) the Designated Obligor is
not a duly organized and validly existing corporation, general
partnership, limited partnership or limited liability company; (xvii)
the Designated Obligor is not in good standing under the laws of the
jurisdiction of its creation or is not authorized to do business and in
good standing as a foreign corporation in all other states and
jurisdictions where the character of such Designated Obligor's
properties or the nature of such Designated Obligor's activities make
such qualification necessary; (xviii) the Designated Obligor is not a
party to a legal, valid and binding Transaction Document that provides
that it is binding upon and inures to the benefit of the successors and
assigns of the parties thereto; (xix) Borrower has accelerated the
maturity or demanded payment of, or otherwise commenced the exercise of
its remedies with respect to, the Borrower Advance; (xx) if the
Borrower Advance is a Healthcare Advance, the Payment Rights relating
to such Healthcare Advance is payable by an individual and is not
insured by a private contract of insurance or Medicare or Medicaid; or
(xxi) the Borrower Advance is not made under or memorialized by
Transaction Documents containing terms similar in all material respects
to the Transaction Documents provided by Borrower to Lender and
approved by Lender prior to the Closing Date; or (xxii) any covenant,
representation or warranty contained in the Agreement with respect to
the Borrower Advance has been breached.
(o) By deleting the word "Code" in the fourth line of the
definition of "Senior Security Interest" in APPENDIX A thereto and by
substituting therefor the phrase "Applicable Law."
(p) By adding to SCHEDULE 7.1.1 thereto, as a jurisdiction in
which Borrower is qualified to do business, a reference to "Georgia."
(q) By deleting the reference to "1799 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000" under the heading "Chief
Executive Office" in paragraph 1 and under the heading "Borrower
maintains its books and records relating to Accounts and General
Intangibles" in paragraph 2 of SCHEDULE 7.1.6 thereto and by
substituting therefor a reference to "120 Xxxx Xxxxxxxx Xxxx Xxxx, 0xx
Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000."
(r) By adding as an additional location under the "Other
Locations" heading in paragraph 1 of SCHEDULE 7.1.6 thereto "the
Atlanta Office located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000."
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(s) By adding the following information under the heading
"Operating Leases" on SCHEDULE 7.1.20 thereto:
Lease of office space located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000
(t) By adding the following to SCHEDULE 8.2.5 thereof:
Security interest in office furniture and fixtures granted in
connection with the lease of office space at 0000 Xxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
(u) All references to Borrower's chief executive office and
principal place of business in the Loan Agreement and in the other Loan
Documents not specifically amended hereby shall be deemed to be: 000
Xxxx Xxxxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
(v) By deleting EXHIBIT C thereto and by substituting therefor
EXHIBIT C to this Amendment.
(w) By adding EXHIBIT E to this Amendment as EXHIBIT E to the
Loan Agreement.
3. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms each of the Loan Documents and all of Borrower's covenants, duties and
liabilities thereunder.
4. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; and the Liens
granted by Borrower in the Collateral in favor of Fleet are duly perfected,
first priority Liens.
5. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Fleet, to induce Fleet to enter into this Amendment, that, after giving effect
to the amendments set forth in Section 2 hereof, no Default or Event of Default
exists on the date hereof; the execution, delivery and performance of this
Amendment have been duly authorized by all requisite corporate action on the
part of Borrower and this Amendment has been duly executed and delivered by
Borrower; and all of the representations and warranties made by Borrower in the
Loan Agreement are true and correct on and as of the date hereof.
6. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective upon
acceptance by Fleet in Atlanta, Georgia, whereupon the same shall be governed by
and construed in accordance with the internal laws of the State of Georgia.
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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8. NO NOVATION, ETC.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement, any of the Other Agreements or any of the Security
Documents, each of which shall remain in full force and effect. This Amendment
is not intended to be, nor shall it be construed to create, a novation or accord
and satisfaction, and the Loan Agreement as herein modified shall continue in
full force and effect.
9. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Agreement on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
10. FURTHER ASSURANCES. Borrower agrees to take such further actions as
Fleet shall reasonably request from time to time in connection herewith to
evidence the amendments set forth herein to the Loan Agreement.
11. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
CAPITAL FACTORS, INC.
("Borrower")
By:
---------------------------
XXXXXX XXXXXX,
Senior Vice President
Accepted and agreed to in Atlanta, Georgia, this _____ day of
____________, 1997.
FLEET CAPITAL CORPORATION
("Fleet")
By:
---------------------------
Title:
-------------------------
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CONSENT AND REAFFIRMATION
The undersigned guarantor of the Obligations of Borrower at any time
owing to Fleet hereby: (i) acknowledges receipt of a copy of the foregoing First
Consolidated Amendment to Loan and Security Agreement; (ii) consents to
Borrower's execution and delivery thereof; (iii) agrees to be bound thereby; and
(iv) affirms that nothing contained therein shall modify in any respect
whatsoever its guaranty of the Obligations and reaffirms that such guaranty is
and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such First Consolidated Amendment to Loan
and Security Agreement.
CAPITAL FACTORS HOLDING, INC.
By:
--------------------------
XXXX X. XXXXXX, President
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CAPITAL FACTORS, INC.
ASSISTANT SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, Xxxxxxx X. Xxxxxx, DO HEREBY CERTIFY, that I am the Assistant
Secretary of Capital Factors, Inc. (the "Corporation"), a corporation duly
organized and existing under and by virtue of the laws of the State of Florida
and am keeper of the records and seal thereof; that the following is a true,
correct and compared copy of the resolutions duly adopted by the unanimous
consent of all members of the Board of Directors of said Corporation effective
as of August 29, 1997; and that said resolutions are still in full force and
effect:
RESOLVED, that the Chairman of the Board, President, any Vice
President, or any other officer or board member of this Corporation (or the
designee of any of them), each be, and each hereby is, authorized and empowered
(either alone or in conjunction with any one or more of the other officers of
the Corporation) to take, from time to time, all or any part of the following
actions on or in behalf of the Corporation: (i) to make, execute and deliver to
Fleet Capital Corporation ("Lender") (1) a First Consolidated Amendment to Loan
and Security Agreement (the "Amendment") providing for the amendment of certain
terms of that certain Loan and Security Agreement dated as of March 4, 1996,
between the Corporation and Lender, as amended (the "Loan Agreement"), and (2)
all other agreements, documents and instruments contemplated by or referred to
in the Amendment or executed by the Corporation in connection therewith; said
Amendment to be substantially in the form presented by Lender with such
additional, modified or revised terms as may be acceptable to any officer or
director of the Corporation, as conclusively evidenced by his or her execution
thereof; and (ii) to carry out, modify, amend or terminate any arrangements or
agreements at any time existing between the Corporation and Lender.
RESOLVED, that any arrangements, agreements, security agreements, or
other instruments or documents referred to or executed pursuant to the Amendment
by Xxxx X. Xxxxxx, any other officer or director of the Corporation, or by an
employee of the Corporation acting pursuant to delegation of authority, may be
attested by such person and may contain such terms and provisions as such person
shall, in his or her sole discretion, determine.
RESOLVED, that the Loan Agreement and each amendment to the Loan
Agreement heretofore executed by any officer or director of the Corporation and
any actions taken under the Loan Agreement as thereby amended are hereby
ratified and approved.
I DO FURTHER CERTIFY that Xxxx X. Xxxxxx is the President of
the Corporation, Xxxxxx Xxxxxx is the Senior Vice President of Corporation and
Xxxxxxx X. Xxxxxx is the Assistant Secretary of the Corporation and each is duly
elected, qualified and acting as such, respectively.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of
the Corporation, this 29th day of August, 1997.
------------------------------
XXXXXXX X. XXXXXX,
Assistant Secretary
[CORPORATE SEAL]
I, Xxxx X. Xxxxxx, President of said Corporation, do hereby certify
that the foregoing is a correct copy of the resolutions passed by the Board of
Directors of the Corporation and that Xxxxxxx X. Xxxxxx is Assistant Secretary
of the Corporation and is duly authorized to attest to the passage of said
resolutions.
------------------------------
XXXX X. XXXXXX, President
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EXHIBIT C
DESIGNATED OBLIGORS
DESIGNATED OBLIGOR CLIENT NUMBER
------------------ -------------
1. Title Loans of America 2800
2. 21st Capital Corp. 3001
3. ConAm Corp. 3154
4. Duo-Cal Industries, Inc. 3196
5. Performance Funding Corporation 3767
6. Third Party Enterprises, Inc. 3871
7. Vanguard Studios, Inc., a subsidiary 3891
of Henlor, Inc.
8. Healthcare Associates 9025
9. Hillcrest Care Center, Inc. d/b/a 9030
Hillcrest Nursing Home
10. BTNH, Inc. d/b/a/ Delaware Heights 9031
Health Care Center
11. Consolidated Rehabilitation 9145
Services, Inc.
12. Home Care Medical Services, Inc. 9380
13. Newhall Community Hospital, Inc. 9415
14. Newhall Urgent Care, Inc. 9417
15. Xxxxx International Corporation 9450
16. Center for Special Immunology, Inc./ 9101/9120
C.S.I. Miami, Inc.
17. CSI Clinical Laboratories, Inc. 9102/9114
18. CSI of Illinois, Inc. 9103/9115
19. CSICA Corporation 9104/9116
20. CSI Therapeutics, Inc. 9109/9117
21. CSI Therapeutics Managed Care 9101-9118
22. CSI Miami, Inc. 9121
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EXHIBIT C CONTINUED
DESIGNATED OBLIGORS
DESIGNATED OBLIGOR CLIENT NUMBER
------------------ -------------
23. CSI Kansas, Inc. 9112/9119
24. PTS Rehab, Inc. 9146/9147
25. Midpoint Service Provider, Inc. 9550
26. X.X. Xxxxxx, M.D., P.A. d/b/a 9600
Biodoron
27. TMG Health Services, Inc. 9419
28. JJED Care Industries 9430
29. Hospital Staffing Services, Inc. 9650/9651/9652
30. One Call Medical, LLC 9580
31. Valcour Medical 9680
32. Visiting Nurse Association of Florida 9700/9701/9702
33. Sun Capital, Inc. 7680
34. Xxxxxxxx Rehabilitation Corporation 9800
35. Capital Credit, Inc. 3129
36. Action Tool, Inc. 5040
37. Central Valley General Hospital 9075/9076
38. Girling Healthcare, Inc. 9350/9351/9352
39. Aexcel Short-term 3018
Accounts Receivable -
Backed Securities VII, a
California limited partnership
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EXHIBIT E
DESIGNATED OBLIGOR DESIGNATION
SCHEDULE TO FLEET CAPITAL CORPORATION
This Designated Obligor Designation Schedule is dated
________________, 19__, and issued pursuant to the Loan and Security
Agreement between Fleet Capital Corporation ("Lender") and the
undersigned ("Borrower") dated as of March 4, 1996 (as at any time
amended, the "Loan Agreement"). Capitalized terms used herein, unless
otherwise defined, shall have the meaning set forth in the Loan
Agreement.
Borrower hereby requests that (i) the following named Obligor be
deemed a Designated Obligor and (ii) that Borrower Advances to such
Designated Obligor treated as Qualified Borrower Advances pursuant to the
Loan Agreement :
Obligor's Full Legal Name: _________________________
Obligor's Principal Business Address: _______________________
_______________________
_______________________
Type of Business Entity: _________________________
Closing Date of
Transaction Documents: _________________________
LIEN PERFECTION CHECKLIST
1. UCC Assignment Forms with respect to each UCC-1 financing
statement naming Borrower as secured party executed "in blank"
by Borrower and delivered to Lender? Yes ____ No ____.
2. UCC-3 Amendment to Lender's UCC-1 financing statements to add
Obligor as a Designated Obligor executed by Borrower and
delivered to Lender? Yes ____ No ____.
3. Promissory Note(s) made by Obligor to Borrower's order? Yes
____ No ____.
If yes, has each such Promissory Note been delivered to
Lender? Yes ____ No ____
4. Do any Transaction Documents between Borrower and Obligor or
any other obligor on the Borrower Advances constitute chattel
paper? Yes ____ No ____.
If yes, has each original counterpart of the chattel paper
been delivered to Lender or inscribed with a legend indicating
that it is subject to Lender's Liens? Yes ____ No ____.
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5. Any real estate mortgages, trust deeds, security deeds or
other security instruments executed by Obligor or any other
obligor on the Borrower Advances in favor of Borrower?
Yes ____ No ____.
If yes, has a copy of the recorded instrument been delivered
to Lender? Yes ____ No ____.
If yes, has Borrower or any other obligor on the Borrower
Advances executed "in blank" a collateral assignment of such
security instrument and delivered same to Lender?
Yes ____ No ____.
6. Are Transaction Documents between Oblitor or any other obligor
on the Borrower Advances and Borrower stated to be binding on,
and inure to benefit of, the successors and assigns of such
parties?
Yes ____ No ____.
7. Has Borrower sold a participation interest in any of the
Borrower Advances? Yes ____ No ____.
If yes, identity of participant: ____________; amount or
percentage of participation interest: ___________; and type of
participation interest: _______________.
Has participant been made aware in writing that the Borrower
Advances to Obligor are subject to Fleet's Liens? Yes ____ No
____.
8. Has Borrower conveyed any of the Borrower Advances to Obligor
or any Accounts owing by any Person to Obligor to CF Funding,
the Trust or any other Person under or in connection with the
Securitization Documents? Yes ____ No ____.
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17
Borrower hereby certifies that the information contained herein is
true, correct and accurate; and that, to the best of Borrowers knowledge, no
Default, Event of Default or Out-of-Formula Condition exists on the date hereof.
Upon acceptance hereof by Lender, (notice of which acceptance Borrower
hereby waives), this Designated Obligor Designation Schedule shall be deemed an
amendment of the Loan Agreement for the sole purpose of updating the list of
Designated Obligors set forth on EXHIBIT C to the Loan Agreement. Borrower
authorizes Lender, in its discretion, to replace the current EXHIBIT C to the
Loan Agreement with a substitute EXHIBIT C that reflects the addition of the
Designated Obligor(s) identified in this Designated Obligor Designation
Schedule, but Lender's failure to do so shall not affect in any way the validity
of the Loan Agreement or the amendment of EXHIBIT C thereto that results from
Lender's acceptance hereof.
CAPITAL FACTORS, INC.
By:
----------------------------------
Title:
--------------------------------
Accepted in Atlanta, Georgia, this ___ day of , 19__.
FLEET CAPITAL CORPORATION
By:
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Title:
--------------------------------
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