SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of the 10th day
of October 2000 by and among each of the parties listed on the signature pages
hereto (collectively, the "Debtors" and each, a "Debtor"), in favor of ALEXANDER
ENTERPRISE HOLDINGS CORP., a company organized in the British Virgin Islands
("Alexander Enterprise").
W I T N E S S E T H
WHEREAS, Alexander Enterprise has agreed to advance the sum of Two
Million Two Hundred fifty Thousand Dollars ($2,250,000) (the "Loan") to OptiCare
Eye Health Centers, Inc., a Connecticut corporation ("OptiCare"), Primevision
Health, Inc., a Delaware corporation ("PVH"), and OptiCare Eye Health Network,
Inc., a North Carolina corporation formerly known as Consolidated Eye Care, Inc.
("CEC" and, together with OptiCare and PVH, the "Borrowers") pursuant to a
Secured Promissory Note dated the date hereof (the "Note");
WHEREAS, as a condition to the making of the Loan, Alexander Enterprise
has required that the Debtors other than the Borrowers enter into that certain
Guaranty, dated the date hereof (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty"), pursuant
to which, among other things, each of such Debtors has guaranteed the payment
and performance of the Borrowers' respective obligations under the Note;
WHEREAS, the Borrowers and Opticare Health Systems, Inc., a Delaware
corporation (the "Parent"), are parties to that certain Amended and Restated
Loan and Security Agreement, dated as of August 13, 1999, (such Amended and
Restated Loan and Security Agreement, as amended by a certain First Amendment
dated June 30, 2000 and a certain Second Amendment dated the date hereof and as
the same may be further amended, restated, supplemented or otherwise modified
from time to time, the "Bank Austria Loan Agreement"), with the financial
institutions from time to time party thereto (the "Lenders"), Bank Austria, AG,
as LC Issuer (in such capacity, the "LC Issuer") and Bank Austria AG, as the
agent for the Lenders and the LC Issuer (in such capacity, the "Agent"),
pursuant to which, among other things, and subject to the terms and conditions
contained therein, the Lenders have made available to the Borrowers term loans
and a revolving credit facility;
WHEREAS, to secure the repayment of amounts outstanding from time to
time under the Bank Austria Loan Agreement, the Debtors entered into a Security
Agreement dated as of August 13, 1999 in favor of the Agent, pursuant to which,
among other things, the Debtors granted a security interest in all of their
respective assets and properties more fully described therein as security for
their respective obligations incurred in connection with amounts advanced under
the Bank Austria Loan Agreement;
WHEREAS, as a further condition to the making of the Loan, Alexander
Enterprise has required that each of the Debtors enter into this Agreement,
pursuant to which, among other things, the Debtors shall grant a security
interest in all of their respective assets and properties more fully described
herein as security for their respective obligations under the Note, the
Guaranty, and each of the agreements, documents and instruments executed and
delivered in connection therewith;
WHEREAS, pursuant to a Second Amendment to Amended and Restated Loan
and Security Agreement, the Agent and the Lenders have consented to the grant of
the security interests granted hereby; and
WHEREAS, the Borrowers desire to obtain the Loan, and each of the
Debtors has determined that it is and will be in the best interest and to the
direct advantage of such Debtor to assist the Borrowers in borrowing money from
Alexander Enterprise in order to further the business of the Debtors, and each
Debtor has therefore agreed to make and execute this Agreement in favor of
Alexander Enterprise to induce Alexander Enterprise to extend the Loan to the
Borrowers;
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the Debtors, and each
of them, hereby agree with the Lender, as follows:
1. DEFINITIONS
All capitalized terms used herein shall have the respective meanings
given to such terms in the Bank Austria Loan Agreement, except that the
following terms when used herein shall have the following respective meanings:
"Accounts" shall mean any "accounts", as such term is defined in
Section 9-106 of the UCC, of any Debtor, whether now owned or hereafter
acquired, and, in any event shall include all of such Debtor's accounts,
contract rights, book debts and other forms of obligations, whether now existing
or hereafter acquired or arising or in which such Debtor now has or hereafter
acquires any rights, including, without limitation, all present and future
rights to payments for goods, merchandise or Inventory sold or leased or for
services rendered, whether or not represented by invoices or other billing, and
whether or not earned by performance; proceeds of any letter of credit on which
such Debtor is a beneficiary and all forms of obligations whatsoever owing to
such Debtor, together with all instruments and documents of title representing
any of the foregoing, all rights in any goods, merchandise or Inventory which
any of the foregoing may represent all rights in any returned or repossessed
goods, merchandise or Inventory, and all rights, security and guaranties with
respect to each of the foregoing, including, without limitation, any rights of
stoppage in transit.
"Chattel Paper" shall mean any "chattel paper", as such term is defined
in Section 9105(l)(b) of the UCC, of any Debtor, whether now owned or hereafter
acquired or arising.
"Collateral" shall have the meaning ascribed to such term in Section
2.1 hereof.
"Contracts" shall mean all contracts, undertakings or other agreements
(other than rights evidenced by Chattel Paper, Documents or Instruments) in or
under which a Debtor may now or hereafter have any right, title or interest ,
including, without limitation, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof.
2
"Documents" shall mean any "documents", as such term is defined in
Section 9-105(l)(0) of the UCC, of any Debtor, whether now owned or hereafter
acquired or arising.
"Equipment" shall mean any "equipment", as such term is defined in
Section 9-109(2) of the UCC, of any Debtor, whether now owned or hereafter
acquired or arising, and, in any event, shall include all of such Debtor's
equipment, fixtures and leasehold improvements, whether now existing or
hereafter acquired or arising or in which any Debtor now has or hereafter
acquires any rights, including, without limitation, all furniture, machinery,
vehicles and trade fixtures, together with any and all accessories, accessions,
parts and appurtenances thereto, substitutions therefor and replacements
thereof.
"Event of Default" shall mean the occurrence of any one or more of the
following events:
(a) the occurrence of any Event of Default under, and as such
term is defined in, the Note; or
(b) any of the Collateral shall be attached or levied upon or
seized in any legal proceedings, or held by virtue of any lien or
distress, or any other event or condition shall occur or exist which
shall result in Alexander Enterprise no longer having a perfected,
first priority security interest in the Collateral, subject only to
Permitted Liens; or
(c) any representations or warranties made by the Debtors, or
any of them, in this Agreement, the Note, the Guaranty or in any
certificate or statement furnished at any time hereunder or in
connection herewith proves to have been untrue or misleading in any
material respect when made or furnished and which continues to be
untrue or misleading in any material respect; or
(d) default by any Pledgor in the observance or performance of
the covenants set forth in Section 4 (other than Section 4.6) hereof
and the continuation of such default for more than thirty (30) after
Pledgors receive notice thereof; or
(e) default by any Debtor in the observance or performance of
any other covenant or agreement contained in this Agreement, the Note
or the Guaranty; or
(f) this Agreement ceases to be in full force and effect or
any Debtor renounces or disputes any of its obligations hereunder.
"General Intangibles" shall mean any "general intangibles", as such
term is defined in Section 9-106 of the UCC, of any Debtor, whether now existing
or hereafter acquired or arising or in which such Debtor acquires any rights,
including, without limitation, all rights under escrow agreements and in all
property held pursuant thereto, choses in action, causes of action, corporate or
other business records, inventions, designs, Patents, patent applications,
service marks, Trademarks, trade names, trade secrets, goodwill, copyrights,
registrations, licenses, franchises, customer lists, agency and other contracts,
tax refund claims, computer programs, all claims under guaranties, Liens or
other security held by or granted to any Debtor to secure payment of any of the
Accounts by an Account Debtor, all rights to indemnification, and all other
intangible property of every kind and nature (other than Accounts).
3
"Instruments" shall mean any "instrument", as such term is defined in
Section 9-105(l)(i) of the UCC, of any Debtor, whether now owned or hereafter
arising or acquired, other than instruments that constitute, or are a part of a
group of writings that constitute, Chattel Paper.
"Intercompany Note" means a promissory note executed by a Subsidiary of
any Debtor in favor of such Debtor.
"Inventory" shall mean all "inventory" of any Debtor, as such term is
defined in Section 9-109(4) of the UCC, whether now existing hereafter acquired
or arising or in which such Debtor now has or hereafter acquires any rights,
including, without limitation, any and all goods, merchandise and other personal
property, wheresoever located and whether or not in transit, which is or may at
any time be held for sale or lease or to be furnished under any contract of
service or held as raw materials, work in process, finished goods or materials,
and supplies of any kind, nature or description used or consumed in the business
of any Debtor, including, without limitation, all such property, the sale or
other disposition of which has given rise to an Account and which may have been
returned to or repossessed or stopped in transit by Debtor.
"Investment Property" shall mean all "investment property" of each
Debtor, as such term is defined in Section 9-115 of the UCC, whether now owned
or existing or hereafter acquired or arising, and, in any event, shall include
all of the following: (a) all securities of each Debtor, whether certificated or
uncertificated; (b) any share, participation or other interest in a Person or in
property or in an enterprise of a Person held directly or indirectly by any
Debtor which is, or is of a type, dealt in or traded on financial markets, or
which is recognized in any area in which it is issued or dealt in as a medium
for investment; (c) all commodity futures contracts of any Debtor, options on
any commodity futures contract held by any Debtor, all commodity options or
other contracts of any Debtor that are traded on, or subject to the rules of, a
board of trade that has been designated as a contract market for such contracts
pursuant to the federal commodities laws or which are traded on one or more
foreign commodity boards of trade, exchanges, or markets and are carried on the
books of registered futures commodity merchant or on the books of a Person
providing clearance or settlement services for a board of trade that has been
designated as a contract market for such a contract pursuant to the federal
commodities laws; (d) any of the foregoing held, directly or indirectly, in the
name of any other Person to the extent such other Person has expressly agreed to
treat any Debtor as the Person entitled to exercise the rights comprising the
foregoing; and (e) all right, title and interest of any Debtor in any account to
which any of the foregoing have been credited.
"Patents" shall mean all of the following, whether now owned or
existing or hereafter acquired or arising or in which any Debtor now has or
hereafter acquires any rights: (a) all patents and patent applications, (b) all
inventions and improvements described and claimed therein, (c) all reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof, (d) all income, royalties, damages and payments now and hereafter due
and/or payable to any Debtor with respect thereto, including without limitation,
damages and payments for past, present or future infringements or
misappropriations thereof, (e) all rights to ▇▇▇ for past present and future
infringements or misappropriations thereof, and (f) all other rights
corresponding thereto throughout the world.
4
"Permitted Liens" shall mean the Liens on the assets of the Debtors
expressly permitted under Section 10.2 of the Bank Austria Loan Agreement.
"Secured Obligations" shall mean (a) all of the obligations of the
Debtors, and each of them, under the Note, the Guaranty and this Agreement; and
(b) all other indebtedness, liabilities and obligations of the Debtors, or any
of them, to Alexander Enterprise, whether direct, indirect or contingent, now or
hereafter existing, due or to become due, whether otherwise secured or unsecured
and howsoever evidenced, incurred or arising in connection with the Note;
provided, however, that the obligations of the Parent under that certain Warrant
Agreement dated the date hereof by and between the Parent and Medici I
Investment Corp. and the obligations of the Parent under that certain Warrant to
Purchase Common Stock issued by the Parent to Medici I Investment Corp. shall
not be deemed to constitute Secured Obligations hereunder.
"Trademarks" shall mean all of the following, whether now owned or
existing or hereafter acquired or arising or in which any Debtor now has or
hereafter acquires any rights: (a) all trademarks (including service marks and
trade names, whether registered or at common law), registrations and
applications therefor, and the entire product lines and goodwill of the business
of any such Debtor connected therewith and symbolized thereby, (b) all renewals
thereof, (c) all income, royalties, damages and payments now and hereafter due
or payable or both with respect thereto, including, without limitation, damages
and payments for past, present or future infringements or misappropriations
thereof, (d) all rights to ▇▇▇ for past, present and future infringements or
misappropriations thereof, and (e) all other rights corresponding thereto
throughout the world.
2. SECURITY INTERESTS
2.1. COLLATERAL. In order to secure the payment and performance of the
Secured Obligations, the Debtors, and each of them, hereby grant to Alexander
Enterprise a continuing, first priority lien on and security interest in and to
the following described property of the Debtors, whether now owned or existing
or hereafter acquired or arising or in which such Debtor now has or hereafter
acquires any rights and wheresoever located (sometimes herein collectively
referred to as the "Collateral"):
(a) Accounts;
(b) Chattel Paper;
(c) Contracts;
(d) Documents;
(e) Equipment;
(f) General Intangibles;
(g) Instruments;
(h) Inventory;
5
(i) Investment Property;
(j) all Intercompany Notes entered into from time to time, the
rights of such Debtor as holder of such Intercompany Notes,
including, without limitation any security interest in any and
all assets of each Subsidiary of such Debtor granted to such
Debtor by such Subsidiary;
(k) all monies, residues and property of any kind of such Debtor,
now or at any time or times hereafter, in-the possession or
under the control of Alexander Enterprise or a bailee of
Alexander Enterprise;
(l) all accessions to, substitutions for and all replacements,
products and proceeds of the foregoing, including, without
limitation, proceeds of insurance policies insuring any of the
foregoing;
(m) all books and records (other than patient medical records but
otherwise including, without limitation, patient billing and
payment records, customer lists, credit files, computer
programs, print-outs and other computer materials and records)
of such Debtor pertaining to any of the foregoing;
(n) any and all other property of the Debtors, and each of them;
and
(o) all products and proceeds of any of the foregoing.
Notwithstanding the foregoing, (i) in no event shall the Collateral
include any employment contract with any optometrist and (ii) the ▇▇▇▇▇▇
Properties (as such term is defined in the Bank Austria Loan Agreement) shall be
excluded from the Collateral so long as they are encumbered by the ▇▇▇▇▇▇
Security Interest (as that term is defined in the Bank Austria Loan Agreement);
provided, however, that to the extent the ▇▇▇▇▇▇ Properties are no longer
encumbered by the ▇▇▇▇▇▇ Security Agreement, the lien granted hereby shall,
automatically and without further act by any Debtor, attach to the ▇▇▇▇▇▇
Properties and thereafter the ▇▇▇▇▇▇ Properties shall constitute Collateral
hereunder and shall secure the Secured Obligations.
2.2. NATURE OF SECURITY INTEREST. The security interests granted
pursuant to this Agreement are granted as security only and shall not subject
Alexander Enterprise to, or transfer to Alexander Enterprise, or in any way
affect or modify, any obligation or liability of any Debtor under any of the
Collateral or any transaction which gave rise thereto.
2.3. PERFECTION OF SECURITY INTEREST. Until the payment and
satisfaction in full of all Secured Obligations, Alexander Enterprise's security
interest in the Collateral and all products and proceeds thereof, shall continue
in full force and effect. Each Debtor shall perform any and all steps requested
by Alexander Enterprise to perfect, maintain and protect Alexander Enterprise's
security interest in the Collateral, including, without limitation, executing
and filing financing or continuation statements, or amendments thereof, in form
and substance satisfactory to Alexander Enterprise; delivering to Alexander
Enterprise all Documents, Instruments or Chattel Paper included in the
Collateral, the possession of which is necessary or appropriate to perfect
Alexander Enterprise's security interest therein; delivering to Alexander
Enterprise all
6
letters of credit on which such Debtor is named as a beneficiary; and obtaining
and delivering such consents and waivers from such landlords, developers or
other Persons as Alexander Enterprise may reasonably request. Alexander
Enterprise may file one (1) or more financing statements disclosing Alexander
Enterprise's security interest under this Agreement without Debtor's signature
appearing thereon and the Debtors, or any of them, shall pay the costs of, or
incidental to, any recording or filing of any financing statements concerning
the Collateral. Each Debtor agrees that a carbon, photographic, photostatic, or
other reproduction of this Agreement or of a financing statement is sufficient
as a financing statement.
2.4. RIGHT TO INSPECT; VERIFICATIONS. Alexander Enterprise (or any
Person or Persons designated by it), in its sole discretion, shall have the
right to call at any place of business or property location of each Debtor at
any reasonable time, and, without hindrance or delay, to inspect the Collateral
and to inspect, audit, check and make extracts from each Debtor's respective
books, records, journals, orders, receipts and any correspondence and other data
relating to the Collateral, to each Debtor's respective business or to any other
transactions between the parties hereto and to discuss any of the foregoing with
each Debtor's respective employees, officers and directors and independent
accountants. Additionally, Alexander Enterprise may, at any time and from time
to time in its sole discretion, require any Debtor to verify the individual
Account Debtors promptly upon its request therefor. To facilitate the foregoing,
upon request from Alexander Enterprise made-at any time and from time to time
hereafter, the Debtors shall ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Enterprise with a then current
Account Debtor address list.
3. REPRESENTATIONS AND WARRANTIES
In order to induce Alexander Enterprise to make the Loan, each Debtor
hereby makes the following representations and warranties to Alexander
Enterprise, which representations and warranties shall be true and correct on
the date hereof and shall continue to be true and correct until all the Secured
Obligations have been paid in full:
3.1. CORPORATE EXISTENCE AND QUALIFICATION. Each Debtor is either a
corporation or a limited liability company, duly organized or formed, validly
existing and in good standing under the laws of its state of organization or
formation and is duly qualified as either a foreign corporation or a foreign
limited liability company, as the case may be, in good standing in each other
state wherein the conduct of its business or the ownership of its property
requires such qualification and where the failure to be qualified would not
reasonably be expected to have a Material Adverse Effect.
3.2. CHIEF EXECUTIVE OFFICE; COLLATERAL LOCATIONS. Each Debtor's
respective principal place of business, chief executive office and office where
it keeps all its respective books and records is set forth on Schedule 3.2
attached hereto, and except as set forth therein, neither of the Debtors nor any
of their respective predecessors has had any other chief executive office or
principal place of business during the preceding seven (7) years. Schedule 3.2
attached hereto and incorporated herein by reference sets forth a true, correct
and complete list of all places of business and all locations at which any
Collateral is located.
7
3.3. NO VIOLATION OF LAW. No Debtor is in violation of any applicable
statute, regulation or ordinance of any governmental entity, or of any agency
thereof, in any respect materially and adversely affecting the Collateral or the
business, property, assets, operations, prospects or condition, financial or
otherwise, of the Debtors, or any of them, or any of their respective
Subsidiaries.
3.4. CORPORATE AUTHORITY. Each Debtor has the corporate power and
authority to execute, deliver and perform its obligations under the Note, this
Agreement and the Guaranty and has taken all necessary and appropriate corporate
action to authorize the execution, delivery and performance of the Note, this
Agreement and the Guaranty.
3.5. SOLVENCY. Giving effect to the execution and delivery of the Note,
this Agreement and the Guaranty, each Debtor (a) has capital sufficient to carry
on its respective business and transactions and all respective business and
transactions in which it is about to engage, (b) is able to pay its respective
debts as they mature and (c) owns property whose fair salable value is greater
than the amount required to pay its respective debts.
3.6. CORPORATE AND TRADE OR FICTITIOUS NAMES. During the seven (7)
years immediately preceding the date of this Agreement, no Debtor has been known
as or used any corporate, trade or fictitious name other than its current
corporate name and except as disclosed on Schedule 3.6 hereto.
3.7. SECURITY INTEREST. This Agreement creates a valid security
interest in the Collateral securing payment of the Secured Obligations, subject
only to Permitted Liens, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been taken, and
Alexander Enterprise has a valid and perfected first priority security interest
in the Collateral, subject only to Permitted Liens.
3.8. REGULATORY MATTERS. No Debtor is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the Federal Power Act, the Interstate Commerce Act or
any other federal or state statue or regulation which materially limits its
ability to incur indebtedness or its ability to consummate the transactions
contemplated hereby.
3.9. ACCOUNTS. With regard to each Account now or hereafter shown on
any schedule or aging of Accounts provided to Alexander Enterprise by or on
behalf of a Debtor hereunder:
(a) Such Account arises or will arise under a contract between
such Debtor and an Account Debtor in each case providing for the bona fide sale
of goods or performance of services by such Debtor in the ordinary course of its
business for or on behalf of the Account Debtor except to the extent otherwise
expressly indicated on such schedule or aging of accounts;
(b) Such Debtor has made delivery of the goods or has rendered
the services ordered to which such Account relates and the Account Debtor has
accepted such goods and/or services except to the extent otherwise expressly
indicated on such schedule or aging of accounts;
8
(c) Except to the extent otherwise expressly indicated on such
schedule or aging of accounts, the amount of the face value of such Accounts is
actually and absolutely owing to such Debtor, is not contingent for any bona
fide reason known to any Debtor, and there are no setoffs, counterclaims,
disputes or deductions existing or asserted with respect thereto (except to the
extent, if any, that such Account Debtor(s) may be entitled to normal trade
discounts, warranties, adjustments, returns and allowances);
(d) Such Debtor will have preserved and will continue to
preserve any Liens and any rights to Liens available by virtue of the sales
giving rise to such Account; and
(e) Such Account is free and clear of all Liens other than
Permitted Liens; and Such Debtor has full right, power and authority to
collaterally assign such Account.
3.10. ADEQUACY OF INTANGIBLE ASSETS. Each Debtor possesses all
intellectual property licenses, patents, patent applications, copyrights,
trademarks, trademark licenses, trademark applications, and trade names and all
governmental registrations and licenses reasonably necessary to continue to
conduct its business as heretofore conducted by it and all such intellectual
property licenses, patents, patent applications, copyrights, trademarks,
trademark licenses, trademark applications, trade names, licenses and
registrations which have been registered with any Governmental Authority are
listed on SCHEDULE 6.18 to the Bank Austria Loan Agreement..
3.11. EQUIPMENT. The Equipment of each Debtor is and shall remain in
good condition, normal wear and tear excepted, meets all standards imposed by
any Governmental Authority having regulatory authority over such Equipment and
its use and is currently usable in the normal course of such Debtor's business.
3.12. INVENTORY. The Inventory of each Debtor is and shall remain in
good condition, meets all standards imposed by any Governmental Authority having
regulatory authority over such goods, their use and/or sale, is either currently
usable of currently salable in the normal course of such Debtor's business and
is not subject to any output contract or similar agreement between Debtor and
any other Person.
3.13. INVESTMENT PROPERTY. Schedule 6.21 to the Bank Austria Loan
Agreement is a complete list of all Subsidiaries, Investment Property and other
Investments of any Debtor in any Person, including but not limited to, all
interests in any partnership or joint venture. Except as otherwise disclosed on
such SCHEDULE 6.21, all shares of stock in any corporation held by any Debtor
are evidenced by stock certificates issued in the name of such Debtor and all
other Investment Property of Debtors or their respective Subsidiaries is held
directly in the name of such Debtor or such Subsidiary and is not held in any
brokerage or similar account, in the name of any financial institution or in any
nominee name.
4. AFFIRMATIVE COVENANTS
Each Debtor covenants to Alexander Enterprise from and after the date
hereof, and until the payment and satisfaction in full of the Secured
Obligations, it will, unless Alexander Enterprise otherwise consents in writing:
9
4.1. REPORTING REQUIREMENTS. Furnish or cause to be furnished to
Alexander Enterprise such information respecting the Collateral as Alexander
Enterprise may from time to time reasonably request.
4.2. MAINTENANCE OF COLLATERAL. Diligently and in good faith, use its
best efforts to protect the value of the Collateral and to prevent any action
from being taken which would or could, in the exercise of its reasonable
business judgment, jeopardize or diminish the security afforded to Alexander
Enterprise by this Agreement or diminish the value of the Collateral.
4.3. FURTHER ASSURANCES. At any time and from time to time, at its own
expense, promptly execute and deliver all further certificates, financing
statements, instruments and documents, and take all further action that may be
necessary or desirable, or that Alexander Enterprise may reasonably request, to
perfect, preserve and protect any pledge, assignment or security interest
granted or purported to be granted hereby or to enable Alexander Enterprise to
exercise its rights and remedies hereunder. Upon any failure by any Debtor to do
so, Alexander Enterprise may make, execute and record any and all such
instruments, certificates and documents for and in the name of such Debtor, and
each Debtor hereby irrevocably appoints Alexander Enterprise as the agent and
attorney-in-fact to do so.
4.4. INSURANCE.
(a) Keep all of its property insured by insurance companies
reasonably acceptable to Alexander Enterprise and licensed to do business in all
jurisdictions in which the Collateral is located against loss or damage by fire
or other risk usually insured against under extended coverage endorsement and
theft, burglary, and pilferage, together with such other hazards as Alexander
Enterprise may reasonably from time to time request, in amounts satisfactory to
Alexander Enterprise; and
(b) Deliver certificates of insurance for such policy or
policies to Alexander Enterprise, naming Alexander Enterprise as loss payee
thereon pursuant to a lender's loss payee clause satisfactory to Alexander
Enterprise and containing endorsements, in form and substance satisfactory to
Alexander Enterprise, providing among other things that the insurance shall not
be cancelable, except upon thirty (30) days' prior written notice to Alexander
Enterprise.
4.5. TAXES. Pay all taxes, assessments and charges levied, assessed or
imposed upon the Collateral prior to the date on which penalties attach thereto,
except where the same may be contested in good faith by appropriate proceedings
and for which adequate reserves have been established.
4.6. NOTIFICATIONS TO ALEXANDER ENTERPRISE. Notify Alexander Enterprise
immediately by telephone (with each such notice to be confirmed in writing
within three (3) Business Days) upon occurrence thereof, of any default or Event
of Default hereunder.
4.7. MAINTENANCE OF INTELLECTUAL PROPERTY. Keep all General Intangibles
in full force and effect except for immaterial General Intangibles allowed to
lapse by a Debtor in the ordinary course of its business and any other General
Intangible for which such Debtor has obtained a substantially similar
substitution or the lapse of which, because of such substitution, will not
10
have a Material Adverse Effect and maintain all of its other property necessary
or useful in the proper conduct of its business in good working condition,
ordinary wear and tear excepted.
4.8. EQUIPMENT. Keep and maintain the Equipment in good operating
condition, reasonable wear and tear excepted, repair and make all necessary
replacements, renewals, additions or improvements thereto so that the value and
operating efficiency thereof shall at all times be maintained and preserved and
not permit any item of Equipment to become a fixture to real estate or accession
to other personal property unless Alexander Enterprise has a first priority Lien
on such real estate or other personal property. Each Debtor shall, immediately
on demand therefor by Alexander Enterprise, deliver to Alexander Enterprise any
and all existing evidence of ownership of any of the Equipment (including,
without limitation, certificates of title and applications for title, together
with any necessary applications to have Alexander Enterprise's Lien noted
thereon, in the case of vehicles).
5. NEGATIVE COVENANTS
Each Debtor covenants with Alexander Enterprise that from and after the
date hereof and until the payment and satisfaction in full of the Secured
Obligations, it will not, without the prior written consent of Alexander
Enterprise:
5.1. NO ENCUMBRANCES. Create, assume, or suffer to exist any mortgage,
deed of trust, pledge, assignment, lien, charge, encumbrance on, security
interest or security title of any kind in any of the Collateral or its other
assets, except for Permitted Liens.
5.2. RELOCATIONS; USE OF NAME. Relocate its executive offices, open new
places of business or relocate existing places of business; maintain any
Collateral or records with respect to Collateral at any other locations than
those locations presently kept or maintained, as set forth on SCHEDULE 3.2
hereto; or use any corporate name (other than its own) or any fictitious name,
in each case, except upon thirty (30) days written notice to Alexander
Enterprise and after the delivery to Alexander Enterprise of financing
statements, if required by Alexander Enterprise, in form satisfactory to
Alexander Enterprise.
5.3. ASSET SALES. The Debtors shall not, and shall not permit any of
their respective subsidiaries to, sell, lease or otherwise dispose of any of the
Collateral or any interest therein or any of its other assets except as
permitted pursuant to the terms of the Bank Austria Loan Agreement as in effect
on the date hereof.
6. REMEDIES
Upon the occurrence or existence of any Event of Default, and during
the continuation thereof, without prejudice to the rights of Alexander
Enterprise to enforce its claim against the Debtors, or any of them, for damages
for failure by the Debtors, or any of them, to fulfill any of the obligations
hereunder, Alexander Enterprise shall have the following rights and remedies, in
addition to any other rights and remedies available to Alexander Enterprise at
law, in equity or otherwise:
6.1. SET-OFF. The right of Alexander Enterprise to set-off, without
notice to the Debtors, any and all deposits at any time credited by or due from
Alexander Enterprise to such
11
Debtor, whether in a general or special, time or demand, final or provisional
account or any other account or represented by a certificate of deposit and
whether or not unmatured or contingent.
6.2. RIGHTS AND REMEDIES OF A SECURED CREDITOR. All of the rights and
remedies of a secured party under the UCC or under other applicable law, all of
which rights and remedies shall be cumulative, and none of which shall be
exclusive, to the extent permitted by law, in addition to any other rights and
remedies contained in this Agreement, the Note or the Guaranty.
6.3. TAKE POSSESSION OF COLLATERAL. The right of Alexander Enterprise
to (a) enter upon the premises of any Debtor, or any other place or places where
the Collateral is located and kept, through self-help and without judicial
process, without first obtaining a final judgment or giving the Debtors notice
and opportunity for a hearing on the validity of Alexander Enterprise's claim
and without any obligation to pay rent to any Debtor, and remove the Collateral
therefrom to the premises of Alexander Enterprise or any agent of Alexander
Enterprise, for such time as Alexander Enterprise may desire, in order to
effectively collect or liquidate the Collateral; and/or (b) require the Debtors
to assemble the Collateral and make it available to Alexander Enterprise at a
place to be designated by Alexander Enterprise.
6.4. SALE OF COLLATERAL. The right of Alexander Enterprise to sell or
to otherwise dispose of all or any of the Collateral, at public or private sale
or sales, with such notice as may be required by law, in lots or in bulk, for
cash or on credit, all as Alexander Enterprise, in its sole discretion, may deem
advisable; such sales may be adjourned from time to time with or without notice.
Alexander Enterprise shall have the right to conduct such sales on any Debtor's
premises or elsewhere and shall have the right to use any Debtor's premises
without charge for such sales for such time or times as Alexander Enterprise may
see fit. Alexander Enterprise is hereby granted a license or other right to use,
without charge, each Debtor's labels, patents, copyrights, rights of use of any
name, trade secrets, trade names, trademarks, service marks and advertising
matter, or any property of a similar nature, whether owned by a Debtor or with
respect to which a Debtor has rights under license, sublicense or other
agreements, as it pertains to the Collateral, in preparing for sale (including,
without limitation, finishing any unfinished Inventory of a Debtor), advertising
for sale and selling any Collateral and each Debtor's rights under all licenses
and all franchise agreements shall inure to the benefit of Alexander Enterprise.
Alexander Enterprise shall have the right to sell, lease or otherwise dispose of
the Collateral, or any part thereof, for cash, credit or any combination
thereof, and Alexander Enterprise may purchase all or any part of the Collateral
at public or, if permitted by law, private sale and, in lieu of actual payment
of such purchase price, may set off the amount of such price against the Secured
Obligations. The proceeds realized from the sale of any Collateral shall be
applied first to the costs, expenses and attorneys' fees and expenses incurred
by Alexander Enterprise for collection and for acquisition, completion,
protection, removal, storage, sale and delivery of the Collateral; second to
interest due upon any of the Secured Obligations; and third to the principal of
the Secured Obligations. If any deficiency shall arise, the Debtors, and each of
them, shall remain liable to Alexander Enterprise therefor.
6.5. JUDICIAL PROCEEDINGS. The right to proceed by an action or actions
at law or in equity to obtain possession of the Collateral, to recover the
Secured Obligations and amounts secured hereunder or to foreclose under this
Agreement and sell the Collateral or any portion
12
thereof, pursuant to a judgment or decree of a court or courts of competent
jurisdiction, all without the necessity of posting any bond.
6.6. NOTICE. Any notice required to be given by Alexander Enterprise of
a sale, lease, other disposition of the Collateral or any other intended action
by Alexander Enterprise, given to the Debtors in the manner set forth in Section
7.7 below, ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice thereof to each Debtor.
6.7. APPOINTMENT OF ALEXANDER ENTERPRISE AS DEBTOR'S LAWFUL ATTORNEY.
Each Debtor irrevocably designates, makes, constitutes and appoints Alexander
Enterprise (and all persons designated by Alexander Enterprise) as such Debtor's
true and lawful attorney, and Alexander Enterprise or Alexander Enterprise's
agent, may, without notice to such Debtor, and at such time or times thereafter
as Alexander Enterprise or said agent, in its sole discretion, may determine, in
such Debtor's or Alexander Enterprise's name: (a) demand payment of the
Accounts; (b) enforce payment of the Accounts, by legal proceedings or
otherwise; (c) exercise all of such Debtor's rights and remedies with respect to
the collection of the Accounts; (d) settle, adjust, compromise, extend or renew
the Accounts; (e) settle, adjust or compromise any legal proceedings brought to
collect the Accounts; (f) if permitted by applicable law, sell or assign the
Accounts upon such terms, for such amounts and at such time or times as
Alexander Enterprise deems advisable; (g) discharge and release the Accounts;
(h) take control, in any manner, of any item of payment or proceeds on the
Accounts; (i) prepare, file and sign such Debtor's name on a Proof of Claim in
Bankruptcy or similar document against any Account Debtor; (j) prepare, file and
sign such Debtor's name on any notice of lien, assignment or satisfaction of
lien or similar document in connection with the Accounts; (k) do all acts and
things necessary, in Alexander Enterprise's sole discretion, to fulfill such
Debtor's obligations under this Agreement; (l) endorse the name of such Debtor
upon any of the items of payment or proceeds on any Account and deposit the same
to the account of Alexander Enterprise on account of the Secured Obligations;
(m) endorse the name of such Debtor upon any Chattel Paper, Document,
Instrument, invoice, freight ▇▇▇▇, ▇▇▇▇ of lading or similar document or
agreement relating to the Accounts or Inventory; (n) use such Debtor's
stationery and sign the name of such Debtor to verifications of the Accounts and
notices thereof to Account Debtors; and (o) use the information recorded on or
contained in any data processing equipment and computer hardware and software
relating to the Accounts and Inventory to which each Debtor has access.
7. MISCELLANEOUS
7.1. WAIVER. Each and every right and remedy granted to Alexander
Enterprise under this Agreement, or any other document delivered hereunder or in
connection herewith or allowed it by law or in equity, shall be cumulative and
may be exercised from time to time. No failure on the part of Alexander
Enterprise to exercise, and no delay in exercising, any right or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by
Alexander Enterprise of any right or remedy preclude any other or future
exercise thereof or the exercise of any other right or remedy. No waiver by
Alexander Enterprise of any Event of Default shall constitute a waiver of any
subsequent Event of Default.
7.2. SURVIVAL. All representations, warranties and covenants made
herein shall survive the execution and delivery of this Agreement, the Note and
the Guaranty. The terms and
13
provisions of this Agreement shall continue in full force and effect until all
of the Secured Obligations have been paid in full and Alexander Enterprise has
terminated this Agreement in writing; provided, further, that Debtors'
obligations under Section 7.5 shall survive the repayment of the Secured
Obligations and the termination of this Agreement.
7.3. ASSIGNMENTS; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Debtors and their respective permitted successors and assigns
and shall inure to the benefit of Alexander Enterprise and its successors and
assigns; provided, that no Debtor may transfer or assign any or all of its
rights or obligations hereunder without the prior written consent of Alexander
Enterprise.
7.4. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which when fully executed shall be an original, and all of
said counterparts taken together shall be deemed to constitute one and the same
agreement. Any signature page to this Agreement may be delivered by a telecopy
or other facsimile of any original signature page and any signature page of any
counterpart hereof may be appended to any other counterpart hereof to form a
completely executed counterpart hereof.
7.5. EXPENSE REIMBURSEMENT. The Debtors, and each of them, agree to
reimburse Alexander Enterprise for all costs and expenses incurred by Alexander
Enterprise (including reasonable attorneys' fees and disbursements) in
connection with the negotiation, execution and delivery of this Agreement, the
Note and the Guaranty and the perfection of the security interests granted
hereby and to: (a) commence, defend or intervene in any court proceeding; (b)
file a petition, complaint, answer, motion or other pleading, or to take any
other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) relating to the Collateral or this Agreement, the Note or the
Guaranty; (c) protect, collect, lease, sell, take possession of, or liquidate
any of the Collateral; (d) attempt to enforce any security interest in any of
the Collateral or to seek any advice with respect to such enforcement; and (e)
enforce any of Alexander Enterprise's rights to collect any of the Secured
Obligations. The Debtors, and each of them, also agree to pay, and to save
harmless Alexander Enterprise from any delay in paying, any intangibles,
documentary stamp and other taxes, if any, which may be payable in connection
with the execution and delivery of this Agreement, the Note or the Guaranty, or
the recording of any thereof, or in any modification hereof or thereof. The
Debtors' obligations under this Section 7.5 shall survive the termination of
this Agreement.
7.6. SEVERABILITY. If any provision of this Agreement or the
application thereof to any party hereto. or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to any other party hereto or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
7.7. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing, and shall be deemed to have been made
or give when (a) by facsimile (with receipt confirmed), provided that a copy is
mailed by certified mail, return receipt requested, or (c) except as otherwise
provided herein, deposited in the mail, registered or certified mail, postage
prepaid, as follows:
14
If to any of the Debtors:
c/o Opticare Health Systems, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Alexander Enterprise:
c/o Alpha Private Equity Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Coudert Brothers
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7.8. AMENDMENT. Neither this Agreement nor any provision hereof may be
changed, waived, discharged, modified or terminated except pursuant to a written
instrument signed by the Debtors and Alexander Enterprise.
7.9. TIME OF THE ESSENCE. Time is of the essence in this Agreement.
7.10. ATTORNEY-IN-FACT. The Debtors, and each of them, hereby
designate, appoint and empower Alexander Enterprise irrevocably as their
attorney-in-fact, at the Debtors' cost and expense, to do in the name of the
Debtors any and all actions which Alexander Enterprise may deem, necessary or
advisable to carry out the terms hereof upon the failure, refusal or inability
of the Debtors to do so, and the Debtors, and each of them, hereby agree to
indemnify and hold Alexander Enterprise harmless from any costs, damages,
expenses or liabilities arising against or incurred by Alexander Enterprise in
connection therewith, except to the extent that any of such costs, damages,
expenses or liabilities arise out of Alexander Enterprise's gross negligence or
willful misconduct.
7.11. TERMINATION STATEMENTS. Each Debtor acknowledges and agrees that
it is each such Debtor's intent that all financing statements filed hereunder
shall remain in full force and effect until the all Secured Obligations shall
have been paid in full. Accordingly, each Debtor waives any right which it may
have under Section 9-404(1) of the UCC to demand the filing of termination
statements with respect to the Collateral, and agrees that Alexander Enterprise
shall not be required to send such termination statements to the Debtors, or to
file them with any filing office, unless and until all Secured Obligations shall
have been paid in full in immediately
15
available funds. Upon such termination and payment in full, Alexander Enterprise
shall execute appropriate termination statements and deliver the same to the
Debtors.
7.12. SECURITY AGREEMENT. This Agreement is a master agreement and it
is the intent of the parties hereto that the identity of the Debtors hereunder
will change from time to time as new Subsidiaries or affiliates of the Borrowers
are required to join this Agreement as additional Debtors (the "Additional
Debtors"). Any Person may join this Agreement as an Additional Debtor by
executing and delivering to Alexander Enterprise, or any Person designated by
Alexander Enterprise, a Joinder Agreement, in form and substance satisfactory to
Alexander Enterprise (a "Joinder Agreement"), with a copy of this Agreement
attached thereto. Upon execution and delivery of an Joinder Agreement by an
Additional Debtor, such Additional Debtor shall thereafter be regarded as a
"Debtor" hereunder as if such Additional Debtor had been an original party to
this Agreement and Alexander Enterprise shall have received, by virtue of this
Agreement and such Joinder Agreement, a valid Lien on and security interest in
any Collateral described in such Joinder Agreement and in all other collateral
relating thereto. Neither the addition of any Additional Debtor to this
Agreement nor the release by Alexander Enterprise of any Debtor party to this
Agreement shall affect the obligations of any other Debtor under this Agreement,
the Note or the Guaranty, and each Debtor waives any defenses it may have
arising out of the addition of any Additional Debtor or the release of any
Debtor or any Collateral hereunder.
7.13. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS SECURITY AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK. EACH DEBTOR HEREBY (A) SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN NEW YORK, NEW YORK FOR
THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT; AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING
HEREIN SHALL LIMIT THE RIGHT OF ALEXANDER ENTERPRISE TO BRING PROCEEDINGS
AGAINST ANY DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION. EACH DEBTOR HEREBY
IRREVOCABLY APPOINTS THE PARENT AS ITS AUTHORIZED AGENT AND ATTORNEY-IN-FACT TO
RECEIVE ON BEHALF OF ANY DEBTOR AND ITS PROPERTY SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY COURT IN OR OF THE STATE OF NEW YORK SUCH
SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH
DEBTOR, IN CARE OF THE PARENT, IN ACCORDANCE WITH SECTION 7.7 HEREOF AND SUCH
DEBTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PARENT TO ACCEPT SUCH
SERVICE ON ITS BEHALF AND AGREES THAT THE FAILURE OF ALEXANDER ENTERPRISE TO
16
GIVE ANY NOTICE OF ANY SUCH SERVICE TO ANY DEBTOR SHALL NOT IMPAIR OR AFFECT THE
VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT RENDERED IN ANY ACTION OR PROCEEDING
BASED THEREON.
7.14. WAIVER OF JURY TRIAL.
AFTER REVIEWING THIS PROVISION SPECIFICALLY WITH ITS RESPECTIVE
COUNSEL, EACH DEBTOR AND ALEXANDER ENTERPRISE HEREBY KNOWINGLY, INTELLIGENTLY
AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING
BASED ON OR ARISING OUT OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS
SECURITY AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF
ANY DEBTOR OR ALEXANDER ENTERPRISE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
ALEXANDER ENTERPRISE TO MAKE THE LOAN TO THE BORROWERS.
7.15. NO PUNITIVE DAMAGES.
(a) Alexander Enterprise and each of the Debtors (on behalf of
itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to this
Agreement and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(b) The parties agree that they shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and hereby
waive any right or claim to punitive or exemplary damages they have now or which
may arise in the future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
7.16. INTERCREDITOR AGREEMENT. This Security Agreement and the rights
of Alexander Enterprise herein are subject, in all respects, to the terms and
provisions of that certain Intercreditor, Subordination and Partial Sales
Proceeds Allocation Agreement of even date herewith, between Alexander
Enterprise and the Agent, and in the event of any conflict between the terms of
this Agreement and the Intercreditor Agreement, the Intercreditor Agreement
shall govern.
(Signatures appear on the next page)
17
IN WITNESS WHEREOF, the Debtors, and each of them, have caused their
duly authorized officers to set their hands and seals as of the day and year
first above written.
OPTICARE HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
PRIMEVISION HEALTH, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
OPTICARE EYE HEALTH NETWORK, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
PRIMEVISION EAST, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
PRIMEVISION CENTRAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
18
PRIMEVISION WEST, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
PRIMEVISION OF NORTH CAROLINA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
ASSOCIATION OF EYE CARE, CENTERS
TOTAL VISION HEALTH PLAN, INC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇ SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
ACCOUNTABLE EYE CARE
ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
19
Schedule 3.2
to
Security Agreement
The chief executive office and principal place of business for Parent is ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
The chief executive office and principal place of business for CEC is ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
The chief executive office and principal place of business for PVH and its
Subsidiaries (other than CEC) is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
The following is a list of all other places of business of PVH and its
Subsidiaries:
PVH/CECI ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
PVH/CEC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
PVH/CEC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
PVH/CEC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
PrimeVision East, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
AECC Total Vision Health Plan of TX ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC Tarrytown Mall, Wesleyan Boulevard Rocky Mount NC
Consolidated Eye Care, Inc./OECC ▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC3 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, ▇▇▇./▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇▇▇▇ Mall Jacksonville NC
Consolidated Eye Care, Inc./OECC ▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC Parkwood Mall, Box 85 Wilson NC
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC Homestead Market Durham NC
Consolidated Eye Care, Inc./OECC ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Consolidated Eye Care, Inc./OECC ▇▇▇▇▇ Mall Winston-Salem NC
Consolidated Eye Care, Inc./OECC ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Accountable Eye Care Associates, Inc. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
The chief executive office and principal place of business for Opticare is ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇. The books and records of Opticare are
maintained at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
The following is a list of all other places of business of Opticare:
----------------------------------------------------------------------
Location
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ - Upper
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ - Lower
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
----------------------------------------------------------------------
2
Schedule 3.6
to
Security Agreement
TRADE NAMES:
Names Reserved for Opticare:
Ophthalmic Physicians & Surgeons, PC
Southern New England Regional Eye Center, Inc.
Eye Associates, P.C.
Ocular Diagnostics, Inc.
Eye Associates of Waterbury, P.C
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Associates (and all variations thereof)