Exhibit 10
LanVision Systems, Inc.
Term Note, and associated documents, dated
July 30, 2004, between the LanVision, Inc. (a wholly
owned subsidiary of the Registrant) and the Fifth Third Bank
001 - FTCI
[LOGO OF FIFTH THIRD BANK]
TERM NOTE
OFFICER No. 04013 NOTE No. _______-_______
$3,500,000.00 July 30, 2004
(Effective Date)
1. PROMISE TO PAY. On or before July 30, 2007 (the "Maturity Date"), the
undersigned, Lanvision, Inc., an Ohio corporation located at 0000 Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000 ("Borrower") for value received, hereby
promises to pay to the order of Fifth Third Bank, an Ohio banking corporation
located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000 for
itself and as agent for any affiliate of Fifth Third Bancorp (together with its
successors and assigns, the "Lender") the sum of Three Million Five Hundred
Thousand and 00/100 Dollars ($3,500,000.00) (the "Borrowing"), plus interest as
provided herein, less such amounts as shall have been repaid in accordance with
this Note. The outstanding balance of this Note shall appear on a supplemental
bank record and is not necessarily the face amount of this Note, which record
shall evidence the balance due pursuant to this Note at any time. As used
herein, "Local Time" means the time at the office of Lender specified in this
Note.
Principal and interest payments shall be initiated by Lender in accordance with
the terms of this Note from Borrower's account through BillPayer 2000(R).
Borrower hereby authorizes Lender to initiate such payments from Borrower's
account located at FIFTH THIRD BANK, routing number 000000000 account number
________. Borrower acknowledges and agrees that use of BillPayer 2000(R) shall
be governed by the BillPayer 2000(R) Terms and Conditions, a copy of which
Borrower acknowledges receipt. Borrower further acknowledges and agrees to
maintain payments hereunder through BillPayer 2000(R) throughout the term of
this Note. Each payment hereunder shall be applied first to advanced costs,
charges and fees, then to accrued interest, and then to principal.
Principal shall be due and payable in 2 installments, each in the amount of
$1,166,666.67 on the earlier of the 30th or last day of each calendar year
beginning on July 30, 2005; provided that the entire principal balance, together
with all accrued and unpaid interest and any other charges, advances and fees,
if any, outstanding hereunder shall be due and payable in full on the earlier of
the Maturity Date or upon acceleration of the Note.
The principal sum outstanding shall bear interest at a floating rate per annum
equal to 2% in excess of the rate of interest per annum established from time to
time by Fifth Third Bank at its principal office as its "Prime Rate", whether or
not Fifth Third Bank shall at times lend to borrowers at lower rates of interest
or, if there is no such prime rate, then such other rate as may be substituted
by Fifth Third Bank for the prime rate (the "Interest Rate"). In the event of a
change in said Prime Rate, the Interest Rate shall be changed immediately to the
percentage stated above in excess of such new Prime Rate. Interest shall be
calculated based on a 360-day year and charged for the actual number of days
elapsed, and shall be payable on the earlier of the 30th or last day of each
quarter beginning on October 30, 2004.
Notwithstanding any provision to the contrary in this Note, in no event shall
the interest rate charged on the Borrowing exceed the maximum rate of interest
permitted under applicable state and/or federal usury law. Any payment of
interest that would be deemed unlawful under applicable law for any reason shall
be deemed received on account of, and will automatically be applied to reduce,
the principal sum outstanding and any other sums (other than interest) due and
payable to Lender under this Note, and the provisions hereof shall be deemed
amended to provide for the highest rate of interest permitted under applicable
law.
2. SECURITY AGREEMENT. To secure repayment of this Note and all other
Obligations (as defined below) together with all modifications, extensions and
renewals thereof, Borrower hereby grants Lender a continuing security interest
in all right, title and interest of Borrower in and to the following property,
whether now owned or hereafter acquired (collectively, the "Collateral"): (i)
any and all property in which Lender and/or any affiliate of Fifth Third Bancorp
(including without limitation Fifth Third Securities, Inc.) is at any time
granted a lien for any Obligation including, without limitation, all collateral
specified in any of the documents executed in connection with this Note, (ii)
all property in possession of Lender and/or any affiliate of Fifth Third Bancorp
(including without limitation Fifth Third Securities, Inc.) including, without
limitation, money, securities, instruments, documents, letters of credit,
chattel paper, or other property
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delivered to Lender in transit, for safekeeping, or for collection or exchange
for other property, (iii) all rights to payment from, and claims against, Lender
and/or any affiliate of Fifth Third Bancorp (including without limitation Fifth
Third Securities, Inc.), and (iv) any and all additions, substitutions,
dividends, distributions (in the form of cash, property, stock or other
securities) and other rights related or in addition to the foregoing, and any
and all proceeds therefrom (the "Distributions"). Borrower agrees to immediately
deliver to Lender all documents, certificates and instruments evidencing the
Distributions and any additional documentation requested by Lender to perfect
and protect Lender's security interest therein, and until such delivery Borrower
shall hold the same in trust for Lender.
Borrower also grants Lender a security interest in all of the Collateral as
agent for all affiliates of Fifth Third Bancorp for all Obligations of Borrower
to such affiliates. Said security interest shall not be enforced to the extent
prohibited by the Truth in Lending Act as implemented by Federal Reserve
Regulation Z.
3. USE OF PROCEEDS. Borrower certifies that the proceeds of this loan are
to be used for business purposes.
4. NOTE PROCESSING FEE. Lender may charge, and Borrower agrees to pay on
the above Effective Date, a note processing fee in the amount of $500.00.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby warrants and represents
to Lender the following:
(a) Organization and Qualification. Borrower is duly organized,
validly existing and in good standing under the laws of the State of its
incorporation, has the power and authority to carry on its business and to
enter into and perform all documents relating to this loan transaction,
and is qualified and licensed to do business in each jurisdiction in which
such qualification or licensing is required. All information provided to
Lender with respect to Borrower and its operations is true and correct.
(b) Due Authorization. The execution, delivery and performance by
Borrower of the Loan Documents have been duly authorized by all necessary
corporate action, and shall not contravene any law or any governmental
rule or order binding on Borrower, or the articles of incorporation and
code of regulations or by-laws of Borrower, nor violate any agreement or
instrument by which Borrower is bound nor result in the creation of a Lien
on any assets of Borrower except the Lien granted to Lender herein.
Borrower has duly executed and delivered to Lender the Loan Documents and
they are valid and binding obligations of Borrower enforceable according
to their respective terms, except as limited by equitable principles and
by bankruptcy, insolvency or similar laws affecting the rights of
creditors generally. No notice to, or consent by, any governmental body is
needed in connection with this transaction.
(c) Litigation. There are no material suits or proceedings pending
or threatened against or affecting Borrower, and no proceedings before any
governmental body are pending or threatened against Borrower.
(d) Business. Borrower is not a party to or subject to any agreement
or restriction that may have a material adverse effect on Borrower's
business, properties or prospects. Borrower has all franchises,
authorizations, patents, trademarks, copyrights and other rights necessary
to advantageously conduct its business. They are all in full force and
effect and are not in known conflict with the rights of others.
(e) Licenses, etc. Borrower has obtained any and all licenses,
permits, franchises, governmental authorizations, patents, trademarks,
copyrights or other rights necessary for the ownership of its properties
and the advantageous conduct of its business. Borrower possesses adequate
licenses, patents, patent applications, copyrights, trademarks, trademark
applications, and trade names to continue to conduct its business as
heretofore conducted by it, without any conflict with the rights of any
other person or entity. All of the foregoing are in full force and effect
and none of the foregoing are in known conflict with the rights of others.
(f) Laws and Taxes. Borrower is in material compliance with all
laws, regulations, rulings, orders, injunctions, decrees, conditions or
other requirements applicable to or imposed upon Borrower by any law or by
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any governmental authority, court or agency. Borrower has filed all
required tax returns and reports that are now required to be filed by it
in connection with any federal, state and local tax, duty or charge
levied, assessed or imposed upon Borrower or its assets, including
unemployment, social security, and real estate taxes. Borrower has paid
all taxes which are now due and payable. No taxing authority has asserted
or assessed any additional tax liabilities against Borrower which are
outstanding on this date, and Borrower has not filed for any extension of
time for the payment of any tax or the filing of any tax return or report.
(g) Title. Borrower has good and marketable title to the assets
reflected on the most recent balance sheet submitted to Lender, free and
clear from all liens and encumbrances of any kind, except for
(collectively, the "Permitted Liens") (a) current taxes and assessments
not yet due and payable, (b) liens and encumbrances, if any, reflected or
noted on such balance sheet or notes thereto, (c) assets disposed of in
the ordinary course of business, and (d) any security interests, pledges,
assignments or mortgages granted to Lender to secure the repayment or
performance of the Obligations.
(h) Subsidiaries and Partnerships. Borrower has no subsidiaries and
is not a party to any partnership agreement or joint venture agreement.
6. AFFIRMATIVE COVENANTS. Borrower covenants with, and represents and
warrants to, Lender that, from and after the execution date of the Loan
Documents until the Obligations are paid and satisfied in full:
(a) Financial Statements. Borrower shall maintain a standard and
modern system for accounting and shall furnish to Lender:
(i) Within 90 days after the end of each quarter, a copy of
Borrower's internally prepared consolidated financial statements for
that quarter and for the year to date in a form reasonably
acceptable to Lender, prepared and certified as complete and
correct, subject to changes resulting from year-end adjustments, by
the principal financial officer of Borrower;
(ii) Within 120 days after the end of each fiscal year, a copy
of Borrower's internally prepared consolidated financial statements
for that year in a form reasonably acceptable to Lender, prepared
and certified as complete and correct by the principal financial
officer of Borrower;
(iii) With the statements submitted above, a certificate
signed by the principal financial officer of Borrower, (i) stating
he is familiar with all documents relating to Lender and that no
Event of Default specified herein, nor any event which upon notice
or lapse of time, or both would constitute such an Event of Default,
has occurred, or if any such condition or event existed or exists,
specifying it and describing what action Borrower has taken or
proposes to take with respect thereto, and (ii) setting forth, in
summary form, figures showing the financial status of Borrower in
respect of the financial restrictions contained herein;
(iv) Immediately upon any officer of Borrower obtaining
knowledge of any condition or event which constitutes or, after
notice or lapse of time or both, would constitute an Event of
Default, a certificate of such person specifying the nature and
period of the existence thereof, and what action Borrower has taken
or is taking or proposes to take in respect thereof;
All of the statements referred to in (i) and (ii) above shall be in conformance
with generally accepted accounting principles and give representatives of Lender
access thereto at all reasonable times, including permission to examine, copy
and make abstracts from any such books and records and such other information
which might be helpful to Lender in evaluating the status of the loans as it may
reasonably request from time to time.
With all financial statements delivered to Lender as provided in (i) and (ii)
above, Borrower shall deliver to Lender a Financial Statement Compliance
Certificate in addition to the other information set forth therein, which
certifies the Borrower's compliance with the financial covenants set forth
herein and that no Event of Default has occurred.
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If at any time Borrower has any additional subsidiaries which have financial
statements that could be consolidated with those of Borrower under generally
accepted accounting principles, the financial statements required by subsections
(i) and (ii) above shall be the financial statements of Borrower and all such
subsidiaries prepared on a consolidated and consolidating basis.
(b) Insurance. At its own cost, Borrower shall obtain and maintain
insurance against (a) loss, destruction or damage to its properties and business
of the kinds and in the amounts customarily insured against by corporations with
established reputations engaged in the same or similar business as Borrower and,
in any event, sufficient to fully protect Lender's interest in the Collateral,
and (b) insurance against public liability and third party property damage of
the kinds and in the amounts customarily insured against by corporations with
established reputations engaged in the same or similar business as Borrower. All
such policies shall (i) be issued by financially sound and reputable insurers,
(ii) name Lender as an additional insured and, where applicable, as loss payee
under a Lender loss payable endorsement satisfactory to Lender, and (iii) shall
provide for thirty (30) days written notice to Lender before such policy is
altered or canceled. All of the insurance policies required hereby shall be
evidenced by one or more Certificates of Insurance delivered to Lender by
Borrower on the Closing Date and at such other times as Lender may request from
time to time.
(c) Taxes. Borrower shall pay when due all taxes, assessments and other
governmental charges imposed upon it or its assets, franchises, business, income
or profits before any penalty or interest accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which by law might be a lien or charge upon any of its
assets, provided that (unless any material item or property would be lost,
forfeited or materially damaged as a result thereof) no such charge or claim
need be paid if it is being diligently contested in good faith, if Lender is
notified in advance of such contest and if Borrower establishes an adequate
reserve or other appropriate provision required by generally accepted accounting
principles and deposits with Lender cash or bond in an amount acceptable to
Lender.
(d) Compliance with Laws. Borrower shall comply with all federal, state
and local laws, regulations and orders applicable to Borrower or its assets
including but not limited to all Environmental Laws, in all respects material to
Borrower's business, assets or prospects and shall immediately notify Lender of
any violation of any rule, regulation, statute, ordinance, order or law relating
to the public health or the environment and of any complaint or notifications
received by Borrower regarding to any environmental or safety and health rule,
regulation, statute, ordinance or law. Borrower shall obtain and maintain any
and all licenses, permits, franchises, governmental authorizations, patents,
trademarks, copyrights or other rights necessary for the ownership of its
properties and the advantageous conduct of its business and as may be required
from time to time by applicable law.
(e) Depository/Banking Services. Lender shall be the principal depository
in which substantially all of Borrower's funds are deposited, and the principal
bank of account of Borrower, as long as any Obligations are outstanding, and
Borrower shall grant Lender the first and last opportunity to provide any
corporate banking services required by Borrower and its Affiliates.
(f) Other Amounts Deemed Loans. If Borrower fails to pay any tax,
assessment, governmental charge or levy or to maintain insurance within the time
permitted or required by this Note, or to discharge any Lien prohibited hereby,
or to comply with any other Obligation, Lender may, but shall not be obligated
to, pay, satisfy, discharge or bond the same for the account of Borrower. To the
extent permitted by law and at the option of Lender, all monies so paid by
Lender on behalf of Borrower shall be deemed Obligations and Borrower's payments
under this Note may be increased to provide for payment of such Obligations plus
interest thereon.
(g) Further Assurances. Borrower shall execute, acknowledge and deliver,
or cause to be executed, acknowledged or delivered, any and all such further
assurances and other agreements or instruments, and take or cause to be taken
all such other action, as shall be reasonably necessary from time to time to
give full effect to the Loan Documents and the transactions contemplated
thereby.
7. FINANCIAL COVENANTS. Borrower and Lender hereby agrees as follows:
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(a) Capital Expenditures. Borrower shall not make or incur, in any
fiscal year, any expenditure for real estate, plant, machinery, equipment,
or other similar expenditure (including all renewals, improvements and
replacements thereto, and all obligations under any lease of any of the
foregoing) that would be capitalized on the balance sheet of Borrower in
accordance with generally acceptable accounting principles in excess of
$500,000.00, in the aggregate for such in fiscal year.
(b) Minimum Tangible Net Worth. Borrower shall not permit its
Tangible Net Worth, on a consolidated basis, to be less than the following
at the end of any quarter during any of the periods set forth below:
PERIOD MIN. AMOUNT
------ -----------
01/31/2004 and thereafter $2,000,000.00
(c) Fixed Charge Coverage Ratio. Borrower shall not permit its Fixed
Charge Coverage Ratio, on a consolidated basis, to be less than the
following at the end of any quarter during any of the following periods as
measured on a rolling four quarter basis.
PERIOD MIN. RATIO
------ ----------
10/31/2004 and thereafter 1.25 to 1.0
(d) Funded Indebtedness to EBITDA. Borrower shall not permit its
Funded Indebtedness to EBITDA, on a consolidated basis, to be greater than
the following at the end of any quarter during any of the following
periods as measured on a rolling four quarter basis.
PERIOD MIN. RATIO
------ ----------
10/31/2004 and thereafter 1.5 to 1.0
8. DEFINITIONS. Certain capitalized terms have the meanings set forth on
any exhibit hereto, in the Security Agreement, if applicable, or any other Loan
Document. All financial terms used herein but not defined on the exhibits, in
the Security Agreement, if applicable, or any other Loan Document have the
meanings given to them by generally accepted accounting principles. All other
undefined terms have the meanings given to them in the Uniform Commercial Code
as adopted in the state whose law governs this instrument. The following
definitions are used herein:
(a) "Affiliate" means, as to Borrower, (a) any person or entity
which, directly or indirectly, is in control of, is controlled by or is
under common control with, Borrower, or (b) any person who is a director,
officer or employee (i) of Borrower or (ii) of any person described in the
preceding clause (a).
(b) "EBITDA" means on a consolidated basis, the amount of Borrower's
earnings before interest, taxes, depreciation and amortization expense for
the measurement period.
(c) "Fixed Charge Coverage Ratio" means the ratio of (a) Borrower's
EBITDA to (b) the sum of Borrower's interest expense, required principal
payments made during the measurement period, taxes, dividends and unfunded
capital expenditures for such measurement period.
(d) "Funded Indebtedness" means all Indebtedness (i) in respect of
money borrowed or (ii) evidenced by a note, debenture (senior or
subordinated) or other like written obligation to pay money, or (iii) in
respect of rent or hire of property under leases or lease arrangements
which under generally accepted accounting principles are required to be
capitalized, or (iv) in respect of obligations under conditional sales or
other title retention agreements; and shall also include all guaranties of
any of the foregoing.
(e) "Indebtedness" means (i) all items (except items of capital
stock, of capital surplus, of general contingency reserves or of retained
earnings, deferred income taxes, and amount attributable to minority
interest if any) which in accordance with generally accepted accounting
principles would be included in determining total liabilities on a
consolidated basis (if Borrower should have a subsidiary) as shown on the
liability side of a balance sheet as at the date as of which Indebtedness
is to be determined, (ii) all indebtedness secured by any mortgage,
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pledge, lien or conditional sale or other title retention agreement to
which any property or asset owned or held is subject, whether or not the
indebtedness secured thereby shall have been assumed (excluding
non-capitalized leases which may amount to title retention agreements but
including capitalized leases), and (iii) all indebtedness of others which
Borrower or any subsidiary has directly or indirectly guaranteed, endorse
(otherwise than for collection or deposit in the ordinary course of
business), discounted or sold with recourse or agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect
of which Borrower or any subsidiary has agreed to apply or advance funds
(whether by way of loan, stock purchase, capital contribution or
otherwise) or otherwise to become directly or indirectly liable.
(f) "Lien" means any security interest, mortgage, pledge,
assignment, lien or other encumbrance of any kind, including interests of
vendors or lessors under conditional sale contracts or capital leases.
(g) "Loan Documents" means any and all Rate Management Agreements
and each and every document or agreement executed by any party evidencing,
guarantying or securing any of the Obligations; and "Loan Document" means
any one of the Loan Documents.
(h) "Obligation(s)" means all loans, advances, indebtedness and each
and every other obligation or liability of Borrower owed to each of Lender
and/or any affiliate of Fifth Third Bancorp, however created, of every
kind and description whether now existing or hereafter arising and whether
direct or indirect, primary or as guarantor or surety, absolute or
contingent, liquidated or unliquidated, matured or unmatured, participated
in whole or in part, created by trust agreement, lease overdraft,
agreement or otherwise, whether or not secured by additional collateral,
whether originated with Lender or owed to others and acquired by Lender by
purchase, assignment or otherwise, and including, without limitation, all
loans, advances, indebtedness and each and every obligation or liability
arising under the loan document, any and all Rate Management Obligations
(as defined in the Loan Documents), letters of credit now or hereafter
issued by Lender or any affiliate of Fifth Third Bancorp for the benefit
of or at the request of Borrower, all obligations to perform or forbear
from performing acts, and agreements, instruments and documents
evidencing, guarantying, securing or otherwise executed in connection with
any of the foregoing, together with any amendments, modifications and
restatements thereof, and all expenses and attorneys' fees incurred by
Lender hereunder or any other document, instrument or agreement related to
any of the foregoing.
(i) "Subsidiary" means any corporation of which Borrower directly or
indirectly owns or controls at the time outstanding stock having ordinary
circumstances (not depending on the happening of a contingency) voting
power to elect a majority of the board of directors of said corporation.
(j) "Tangible Net Worth" shall mean the total of the capital stock
(less treasury stock), paid-in surplus, general contingency reserves and
retained earnings (deficit) of Borrower and any Subsidiary as determined
on a consolidated basis in accordance with generally accepted accounting
principles after eliminating all inter-company items and all amounts
properly attributable to minority interests, if any, in the stock and
surplus of any Subsidiary, minus the following items (without duplication
of deductions), if any, appearing on the consolidated balance sheet of
Borrower:
(i) all deferred charges (less amortization, unamortized debt
discount and expense and corporate organization expenses);
(ii) the book amount of all assets which would be treated as
intangibles under generally accepted accounting principles,
including, without limitation, such items as goodwill, trademark
applications, trade names, service marks, brand names, copyrights,
patents, patent applications and licenses, and rights with respect
to the foregoing;
(iii) the amount by which aggregate inventories or aggregate
securities appearing on the asset side of such consolidated balance
sheet exceed the lower of cost or market value (at the date of such
balance sheet) thereof; and
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(iv) any write-up in the book amount of any asset resulting
from a revaluation thereof from the book amount entered upon
acquisition of such asset.
(k) "Rate Management Agreement" means any agreement, device or
arrangement providing for payments which are related to fluctuations of
interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross- currency
interest rate exchange agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency
or interest rate options, puts and warrants, and any agreement pertaining
to equity derivative transactions (e.g., equity or equity index swaps,
options, caps, floors, collars and forwards), including without limitation
any ISDA Master Agreement between Borrower and Lender or any affiliate of
Fifth Third Bancorp, and any schedules, confirmations and documents and
other confirming evidence between the parties confirming transactions
thereunder, all whether now existing or hereafter arising, and in each
case as amended, modified or supplemented from time to time.
(l) "Rate Management Obligations" means any and all obligations of
Borrower to Lender or any affiliate of Fifth Third Bancorp, whether
absolute, contingent or otherwise and howsoever and whensoever (whether
now or hereafter) created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefore), under or in connection with (i) any and all Rate Management
Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Agreement.
9. EVENTS OF DEFAULT. Upon the occurrence of any of the following events
(each, an "Event of Default"), Lender may, at its option, without any demand or
notice whatsoever, declare this Note and all Obligations to be fully due and
payable in their aggregate amount, together with accrued interest and all
prepayment premiums, fees, and charges applicable thereto:
(a) Any failure to make any payment when due of principal or accrued
interest on this Note or any other Obligation and such nonpayment remains
uncured for a period of 10 days thereafter.
(b) Any representation or warranty of Borrower set forth in this
Note or in any agreement, instrument, document, certificate or financial
statement evidencing, guarantying, securing or otherwise related to, this
Note or any other Obligation shall be materially inaccurate or misleading.
(c) Borrower shall fail to observe or perform any other term or
condition of this Note or any other term or condition set forth in any
agreement, instrument, document, certificate or financial statement
evidencing, guarantying or otherwise related to this Note or any other
Obligation, or Borrower shall otherwise default in the observance or
performance of any covenant or agreement set forth in any of the foregoing
for a period of 30 days.
(d) Any failure to submit to Lender current financial information
upon request.
(e) The creation of any Lien (except a lien to Lender) on, the
institution of any garnishment proceedings by attachment, levy or
otherwise against, the entry of a judgment against, or the seizure of, any
of the property of Borrower or any endorser or guarantor hereof including,
without limitation, any property deposited with Lender.
(f) In the judgment of Lender, any material adverse change occurs in
the existing or prospective financial condition of Borrower that may
affect the ability of Borrower to repay the Obligations, or the Lender
deems itself insecure.
(g) A commencement by the Borrower or any endorser or guarantor of
the Obligations of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect; or the entry
of a decree or order for relief in respect of the Borrower or any endorser
or guarantor of the Obligations in a case under any such law or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Borrower or any endorser or guarantor of
the Obligations, or for any substantial part of the property of Borrower
or any endorser or guarantor of the Obligations, or ordering the wind-up
or liquidation of the affairs of
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Borrower or any endorser or guarantor of the Obligations; or the filing
and pendency for 30 days without dismissal of a petition initiating an
involuntary case under any such bankruptcy, insolvency or similar law; or
the making by Borrower or any endorser or guarantor of the Obligations of
any general assignment for the benefit of creditors; or the failure of the
Borrower or any endorser or guarantor of the Obligations generally to pay
its debts as such debts become due; or the taking of action by the
Borrower or any endorser or guarantor of the Obligations in furtherance of
any of the foregoing.
(h) Nonpayment by the Borrower of any Rate Management Obligation
when due or the breach by the Borrower of any term, provision or condition
contained in any Rate Management Agreement.
(j) Any sale, conveyance or transfer of any rights in the Collateral
securing the Obligations, or any destruction, loss or damage of or to the
Collateral in any material respect.
10. REMEDIES. In addition to any other remedy permitted by law, Lender may
at any time, without notice, apply the Collateral to this Note or such other
Obligations, whether due or not, and Lender may, at its option, proceed to
enforce and protect its rights by an action at law or in equity or by any other
appropriate proceedings; provided that this Note and the Obligations shall be
accelerated automatically and immediately if the Event of Default is a filing
under the Bankruptcy Code. Notwithstanding any other legal or equitable rights
of Lender, Lender, in the Event of Default, is (a) hereby irrevocably appointed
and constituted attorney-in-fact, with full power of substitution, to exercise
all rights of ownership with respect to the Collateral including, but not
limited to, the right to collect all income or other distributions arising
therefrom and to exercise all voting rights connected with the Collateral; and
(b) is hereby given full power to collect, sell, assign, transfer and deliver
all of said Collateral or any part thereof, or any substitutes therefore, or any
additions thereto, through any private or public sale without either demand or
notice to Borrower, or any advertisement, the same being hereby expressly
waived, at which sale Lender is authorized to purchase said property or any part
thereof, free from any right of redemption on the part of Borrower, which is
hereby expressly waived and released. In case of sale for any cause, after
deducting all costs and expenses of every kind, Lender may apply, as it shall
deem proper, the residue of the proceeds of such sale toward the payment of any
one or more or all of the Obligations of Borrower, whether due or not due, to
Lender; after such application and the return of any surplus, Borrower agrees to
be and remains liable to Lender for any and every deficiency after application
as aforesaid upon this and any other Obligation. Borrower shall pay all costs of
collection incurred by Lender, including its attorney's fees, if this Note is
referred to an attorney for collection, whether or not payment is obtained
before entry of judgment, which costs and fees are Obligations secured by the
Collateral.
Lender's rights and remedies hereunder are cumulative, and may be exercised
together, separately, and in any order. No delay on the part of Lender in the
exercise of any such right or remedy shall operate as a waiver. No single or
partial exercise by Lender of any right or remedy shall preclude any other
further exercise of it or the exercise of any other right or remedy. No waiver
or indulgence by Lender of any Event of Default shall be effective unless in
writing and signed by Lender, nor shall a waiver on one occasion be construed as
a waiver of any other occurrence in the future.
11. LATE PAYMENTS; DEFAULT RATE; FEES. If any payment is not paid when due
(whether by acceleration or otherwise) or within 10 days thereafter, undersigned
agrees to pay to Lender a late payment fee as provided for in any loan agreement
or 5% of the payment amount, whichever is greater with a minimum fee of $20.00.
After an Event of Default, Borrower agrees to pay to Lender a fixed charge of
$25.00, or Borrower agrees that Lender may, without notice, increase the
Interest Rate by 6% (the "Default Rate"), whichever is greater. Lender may
impose a non-sufficient funds fee for any check that is presented for payment
that is returned for any reason. In addition, Lender may charge loan
documentation fees as may be reasonably determined by the Lender.
12. PREPAYMENT. Borrower may prepay all or part of this Note, which
prepaid amounts shall be applied to the amounts due in reverse order of their
due dates. Partial prepayments shall not excuse any subsequent payment due.
Notwithstanding the foregoing, in the event Borrower repays all of the
outstanding principal of this Note prior to the maturity dates thereof with the
proceeds of a loan from another financial institution, Borrower agrees to pay to
Lender a prepayment penalty equal to two percent (2%) of the original principal
amount of this Note.
13. ENTIRE AGREEMENT. Borrower agrees that there are no conditions or
understandings which are not expressed in this Note and the documents referred
to herein.
PROMISSORY-NOTE (C) Fifth Third Bancorp 2001M(7/04) 33118-10-2-X.XXXX
-8-
14. SEVERABILITY. The declaration of invalidity of any provision of this
Note shall not affect any part of the remainder of the provisions.
15. ASSIGNMENT. Borrower agrees not to assign any of Borrower's rights,
remedies or obligations described in this Note without the prior written consent
of Lender, which consent may be withheld in Lender's sole discretion. Borrower
agrees that Lender may assign some or all of its rights and remedies described
in this Note without notice to, or prior consent from, the Borrower.
16. MODIFICATION; WAIVER OF LENDER. The modification or waiver of any of
Borrower's obligations or Lender's rights under this Note must be contained in a
writing signed by Lender. Lender may perform Borrower's obligations, or delay or
fail to exercise any of its rights or remedies, without causing a waiver of
those obligations or rights. A waiver on one occasion shall not constitute a
waiver on another occasion. Borrower's obligations under this Note shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases (i) any of the obligations belonging to any co-borrower, endorser or
guarantor, (ii) any of its rights against any co-borrower, guarantor or
endorser, or (iii) the Collateral or any other property securing the
Obligations.
17. WAIVER OF BORROWER. Demand, presentment, protest and notice of
dishonor, notice of protest and notice of default are hereby waived by Borrower,
and any endorser or guarantor hereof. Each of Borrower, including but not
limited to all co-makers and accommodation makers of this Note, hereby waives
all suretyship defenses including but not limited to all defenses based upon
impairment of Collateral and all suretyship defenses described in Section 3-605
of the Uniform Commercial Code (the "UCC"). Such waiver is entered to the full
extent permitted by Section 3- 605 (i) of the UCC.
18. GOVERNING LAW; CONSENT TO JURISDICTION. This Note is delivered in, is
intended to be performed in, will be construed and enforceable in accordance
with and governed by the internal laws of, the State of Ohio, without regard to
principles of conflicts of law. Borrower agrees that the state and federal
courts in the County where the Lender is located shall have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding shall be effective if mailed to Borrower at the
address set forth herein.
19. JURY WAIVER. BORROWER, AND ANY ENDORSER OR GUARANTOR HEREOF, WAIVE THE
RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
20. WARRANT OF ATTORNEY. Borrower authorizes any attorney of record to
appear for it in any court of record in the State of Ohio, after maturity of
this Note, whether by its terms or upon default, acceleration or otherwise, to
waive the issuance and service of process, and release all errors, and to
confess judgment against it in favor of Lender for the principal sum due herein
together with interest, charges, court costs and attorneys' fees. Stay of
execution and all exemptions are hereby waived. If this Note or any Obligation
is referred to an attorney for collection, and the payment is obtained without
the entry of a judgment, the obligors shall pay to the holder of such
obligations its attorneys' fees. EACH OF BORROWER AND ANY ENDORSER OR ANY
GUARANTOR AGREES THAT AN ATTORNEY WHO IS COUNSEL TO LENDER OR ANY OTHER HOLDER
OF SUCH OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR BORROWER WHEN TAKING
THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. BORROWER AGREES THAT ANY ATTORNEY
TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY LENDER OR HOLDER OF SUCH
OBLIGATION. BORROWER WAIVES ANY CONFLICT OF INTEREST THAT MAY BE CREATED BECAUSE
THE ATTORNEY REPRESENTING THE BORROWER IS BEING PAID BY LENDER OR THE HOLDER OF
SUCH OBLIGATION.
PROMISSORY-NOTE (C) Fifth Third Bancorp 2001M(7/04) 33118-10-2-X.XXXX
-9-
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
BORROWER:
Lanvision, Inc., an Ohio corporation
By:_________________________________________
(Authorized Signer)
J. Xxxxx Xxxxx, President & CEO
--------------------------------------------
(Print Name and Title)
By:_________________________________________
(Authorized Signer)
Xxxx X. Bridge Jr., CFO
--------------------------------------------
(Print Name and Title)
PROMISSORY-NOTE (C) Fifth Third Bancorp 2001M(7/04) 33118-10-2-X.XXXX
-10-
001 - FTCI [FIFTH THIRD BANK LOGO]
CONTINUING GUARANTY AGREEMENT
THIS CONTINUING GUARANTY AGREEMENT (the "Guaranty") made as of July 30,
2004 by and between Lanvision Systems, Inc., a Delaware corporation located at
0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000 (the "Guarantor") and
Fifth Third Bank, an Ohio banking corporation located at 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000 for itself and as agent for any
affiliate of Fifth Third Bancorp ("Beneficiary").
W I T N E S S E T H:
WHEREAS, Beneficiary has agreed to extend credit and financial
accommodations to Lanvision, Inc., an Ohio corporation ("Borrower"), pursuant to
the Term Note, dated July 30, 2004, executed by Borrower and made payable to the
order of Beneficiary (the "Note"), and all agreements, instruments and documents
executed or delivered in connection with the foregoing or otherwise related
thereto (together with any amendments, modifications, or restatements thereof,
the "Loan Documents"); and
WHEREAS, Guarantor is affiliated with Borrower and, as such, shall be
benefited directly by the transaction contemplated by the Loan Documents, and
shall execute this Guaranty in order to induce Beneficiary to enter into such
transaction.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, Guarantor hereby guarantees, promises and undertakes
as follows:
1. GUARANTY.
(a) Guarantor hereby unconditionally, absolutely and irrevocably
guarantees to Beneficiary the full and prompt payment and performance when
due (whether at maturity by acceleration or otherwise) of any and all
loans, advances, indebtedness and each and every other obligation or
liability of Borrower owed to Beneficiary and any affiliate of Fifth Third
Bancorp, however created, of every kind and description, whether now
existing or hereafter arising and whether direct or indirect, primary or
as guarantor or surety, absolute or contingent, due or to become due,
liquidated or unliquidated, matured or unmatured, participated in whole or
in part, created by trust agreement, lease, overdraft, agreement, or
otherwise, whether or not secured by additional collateral, whether
originated with Beneficiary or owed to others and acquired by Beneficiary
by purchase, assignment or otherwise, and including, without limitation,
all loans, advances, indebtedness and each and every other obligation or
liability arising under the Loan Documents, letters of credit now or
hereafter issued by Beneficiary or any affiliate of Fifth Third Bancorp
for the benefit of or at the request of Borrower, all obligations to
perform or forbear from performing acts, any and all Rate Management
Obligations (as defined in the Loan Documents), and all agreements,
instruments and documents evidencing, guarantying, securing or otherwise
executed in connection with any of the foregoing, together with any
amendments, modifications, and restatements thereof, and all expenses and
attorneys' fees incurred or other sums disbursed by Beneficiary or any
affiliate of Fifth Third Bancorp under this Guaranty or any other
document, instrument or agreement related to any of the foregoing
(collectively, the "Obligations").
(b) This Guaranty is a continuing guaranty of payment, and not
merely of collection, that shall remain in full force and effect until
expressly terminated in writing by Beneficiary, notwithstanding the fact
that no Obligations may be outstanding from time to time. Such termination
by Beneficiary shall be applicable only to transactions having their
inception after the effective date thereof, and shall not affect the
enforceability of this Guaranty with regard to any Obligations arising out
of transactions having their inception prior to such effective date, even
if such Obligations shall have been modified, renewed, compromised,
extended, otherwise amended or performed by Beneficiary subsequent to such
termination. In the absence of any termination of this Guaranty as
provided above, Guarantor agrees that Guarantor's obligations hereunder
shall not be deemed discharged or satisfied until the Obligations are
fully paid and performed, and no such payments or performance with regard
to the Obligations is subject to any right on the part of any person
whomsoever, including but not limited to any
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
trustee in bankruptcy, to recover any of such payments. If any such
payments are so set aside or settled without litigation, all of which is
within Beneficiary's discretion, Guarantor shall be liable for the full
amount Beneficiary is required to repay, plus costs, interest, reasonable
attorneys' fees and any and all expenses that Beneficiary paid or incurred
in connection therewith. A successor of Borrower, including Borrower in
its capacity as debtor in a bankruptcy reorganization case, shall not be
considered to be a different person than Borrower; and this Guaranty shall
apply to all Obligations incurred by such successor.
(c) Guarantor agrees that Guarantor is directly and primarily liable
to Beneficiary and that the Obligations hereunder are independent of the
Obligations of Borrower, or of any other guarantor. The liability of
Guarantor hereunder shall survive discharge or compromise of any
Obligation of Borrower in bankruptcy or otherwise. Beneficiary shall not
be required to prosecute or seek to enforce any remedies against Borrower
or any other party liable to Beneficiary on account of the Obligations, or
to seek to enforce or resort to any remedies with respect to any
collateral granted to Beneficiary by Borrower or any other party on
account of the Obligations, as a condition to payment or performance by
Guarantor under this Guaranty.
(d) Beneficiary may, without notice or demand and without affecting
its rights hereunder, from time to time: (i) renew, extend, accelerate or
otherwise change the amount of, the time for payment of, or other terms
relating to, any or all of the Obligations, or otherwise modify, amend or
change the terms of the Loan Documents or any other document or instrument
evidencing, securing or otherwise relating to the Obligations,(ii) take
and hold collateral for the payment of the Obligations guaranteed hereby,
and exchange, enforce, waive, and release any such collateral, and apply
such collateral and direct the order or manner of sale thereof as
Beneficiary in its discretion may determine. Accordingly, Guarantor hereby
waives notice of any and all of the foregoing.
(e) Guarantor hereby waives all defenses, counterclaims and off-sets
of any kind or nature, whether legal or equitable, that may arise: (i)
directly or indirectly from the present or future lack of validity,
binding effect or enforceability of the Loan Documents or any other
document or instrument evidencing, securing or otherwise relating to the
Obligations, (ii) from Beneficiary's impairment of any collateral,
including the failure to record or perfect the Beneficiary's interest in
the collateral, or (iii) by reason of any claim or defense based upon an
election of remedies by Beneficiary in the event such election may, in any
manner, impair, affect, reduce, release, destroy or extinguish any right
of contribution or reimbursement of Guarantor, or any other rights of the
Guarantor to proceed against any other guarantor, or against any other
person or any collateral.
(f) Guarantor hereby waives all presentments, demands for
performance or payment, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of default or nonpayment, notice of
acceptance of this Guaranty, and notices of the existence, creation, or
incurring of new or additional Obligations, and all other notices or
formalities to which Guarantor may be entitled, and Guarantor hereby
waives all suretyship defenses, including but not limited to all defenses
set forth in the Uniform Commercial Code, as revised from time to time
(the "UCC") to the full extent such a waiver is permitted thereby.
(g) Guarantor hereby irrevocably waives all legal and equitable
rights to recover from Borrower any sums paid by the Guarantor under the
terms of this Guaranty, including without limitation all rights of
subrogation and all other rights that would result in Guarantor being
deemed a creditor of Borrower under the federal Bankruptcy Code or any
other law, and Guarantor hereby waives any right to assert in any manner
against Beneficiary any claim, defense, counterclaim and offset of any
kind or nature, whether legal or equitable, that Guarantor may now or at
any time hereafter have against Borrower or any other party liable to
Beneficiary.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor hereby represents,
warrants and covenants as follows:
(a) Guarantor is duly organized, validly existing and in good
standing under the laws of the state of its incorporation, has the power
and authority to carry on its business and to enter into and perform this
Guaranty and is qualified and licensed to do business in each jurisdiction
in which such qualification or licensing is required.
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
-2-
(b) The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary corporate action, and
shall not violate any provision of law or regulation applicable to
Guarantor, or the articles of incorporation, regulations or bylaws of
Guarantor, or any writ or decree of any court or governmental
instrumentality, or any instrument or agreement to which Guarantor is a
party or by which Guarantor may be bound; this Guaranty is a legal, valid
and binding obligation of said Guarantor, enforceable in accordance with
its terms; and there is no action or proceeding before any court or
governmental body agency now pending that may materially adversely affect
the condition (financial or otherwise) of Guarantor.
3. AFFIRMATIVE COVENANTS. Guarantor covenants with, and represents and
warrants to, Beneficiary that, from and after the execution date of the Loan
Documents until the Obligations are paid and satisfied in full:
(a) Financial Statements. Guarantor shall maintain a standard and
modern system for accounting and shall furnish to Beneficiary:
(i) Within 90 days after the end of each fiscal year, a copy
of Guarantor's internally prepared consolidated financial statements
for that year in a form reasonably acceptable to Beneficiary,
prepared and certified as complete and correct by the principal
financial officer of Guarantor;
(ii) With the statements submitted above, a certificate signed
by the principal financial officer of Guarantor, (i) stating he is
familiar with all documents relating to Beneficiary and that no
Event of Default specified herein, nor any event which upon notice
or lapse of time, or both would constitute such an Event of Default,
has occurred, or if any such condition or event existed or exists,
specifying it and describing what action Guarantor has taken or
proposes to take with respect thereto, and (ii) setting forth, in
summary form, figures showing the financial status of Guarantor in
respect of the financial restrictions contained herein;
(iii) Immediately upon any officer of Guarantor obtaining
knowledge of any condition or event which constitutes or, after
notice or lapse of time or both, would constitute an Event of
Default, a certificate of such person specifying the nature and
period of the existence thereof, and what action Guarantor has taken
or is taking or proposes to take in respect thereof;
All of the statements referred to in (i) above shall be in conformance
with generally accepted accounting principles and give representatives of
Beneficiary access thereto at all reasonable times, including permission
to examine, copy and make abstracts from any such books and records and
such other information which might be helpful to Beneficiary in evaluating
the status of the loans as it may reasonably request from time to time.
With all financial statements delivered to Beneficiary as provided in (i)
above, Guarantor shall deliver to Beneficiary a Financial Statement
Compliance Certificate in addition to the other information set forth
therein, which certifies the Guarantor's compliance with the financial
covenants set forth herein and that no Event of Default has occurred.
If at any time Guarantor has any additional subsidiaries which have
financial statements that could be consolidated with those of Guarantor
under generally accepted accounting principles, the financial statements
required by subsections (i) above shall be the financial statements of
Guarantor and all such subsidiaries prepared on a consolidated and
consolidating basis.
(b) Depository/Banking Services. Beneficiary shall be the principal
depository in which substantially all of Guarantor's funds are deposited,
and the principal bank of account of Guarantor, as long as any Obligations
are outstanding, and Guarantor shall grant Beneficiary the first and last
opportunity to provide any corporate banking services required by
Guarantor and its Affiliates.
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
-3-
4. EVENTS OF DEFAULT. Any of the following occurrences shall constitute an
"Event of Default" under this Guaranty:
(a) An Event of Default occurs under the terms of the Loan Documents
or any other document or instrument evidencing, securing or otherwise
relating to the Obligations, as "Event of Default" shall be defined
therein.
(b) Guarantor shall fail to observe or perform any covenant,
condition, or agreement under this Guaranty for a period of thirty (30)
days from the date of such breach, or any representation or warranty of
Guarantor set forth in this Guaranty shall be materially inaccurate or
misleading when made or delivered.
(c) The death, legal incompetence or dissolution of Guarantor, or of
any endorser or other guarantor of the Obligations, or the merger or
consolidation of any of the foregoing with a third party, or the lease,
sale or other conveyance of a material part of the assets or business of
any of the foregoing to a third party outside the ordinary course of its
business, or the lease, purchase or other acquisition of a material part
of the assets or business of a third party by any of the foregoing.
(d) The default by Guarantor under the terms of any indebtedness of
Guarantor now or hereafter existing, which default has not been cured
within any time period permitted pursuant to the terms and conditions of
such indebtedness or the occurrence of an event which gives any creditor
the right to accelerate the maturity of any such indebtedness.
(e) The commencement by Guarantor of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; or the entry of a decree or order for relief in respect of
Guarantor in a case under any such law or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of Guarantor or for any substantial part of Guarantor's
property, or ordering the wind-up or liquidation of Guarantor's affairs;
or the filing and pendency for 30 days without dismissal of a petition
initiating an involuntary case under any such bankruptcy, insolvency or
similar law; or the making by Guarantor of any general assignment for the
benefit of creditors; or the failure of Guarantor generally to pay
Guarantor's debts as such debts become due; or the taking of action by
Guarantor in furtherance of any of the foregoing.
(f) The revocation or attempted revocation of this Guaranty by
Guarantor before the termination of this Guaranty in accordance with its
terms, or the assignment or attempted assignment of this Guaranty by
Guarantor.
5. REMEDIES.
(a) Whenever any Event of Default as defined herein shall have
happened, Beneficiary, in its sole discretion, may take any remedial
action permitted by law or in equity or by the Loan Documents or any other
document or instrument evidencing, securing or otherwise relating to the
Obligations, including demanding payment in full of all sums guaranteed
hereby, plus any accrued interest or other expenses.
(b) If Beneficiary should employ attorneys or incur other expenses
for the enforcement of this Guaranty, Guarantor, on demand therefor, shall
reimburse the reasonable fees of such attorneys and such other expenses to
the extent permitted by law.
(c) No remedy set forth herein is exclusive of any other available
remedy or remedies, but each is cumulative and in addition to every other
remedy given under this Guaranty or now or hereafter existing at law or in
equity or by statute. No delay or omission on the part of Beneficiary to
exercise any right or remedy shall be construed to be a waiver thereof,
but any such right or remedy may be exercised from time to time and as
often as may be deemed expedient thereby, and a waiver on any one occasion
shall be limited to that particular occasion.
6. FINANCIAL CONDITION OF BORROWER. Guarantor is presently informed of the
financial condition of Borrower and of all other circumstances that a diligent
inquiry would reveal and which would bear upon the risk of
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
-4-
nonpayment of any of the Obligations. Guarantor hereby covenants that Guarantor
shall continue to keep informed of such matters, and hereby waives Guarantor's
right, if any, to require Beneficiary to disclose any present or future
information concerning such matters including, but not limited to, the release
of or revocation by any other guarantor.
7. SUBORDINATION. All indebtedness and liability now or hereafter owing by
Borrower to Guarantor is hereby postponed and subordinated to the Obligations
owing to Beneficiary; and such indebtedness and liability to Guarantor, if
Beneficiary so requests, shall be collected, enforced and received by Guarantor
as trustee for Beneficiary and be paid over to Beneficiary on account of the
Obligations.
8. NOTICES. Any notices under or pursuant to this Guaranty shall be deemed
duly sent when delivered in hand or when mailed by registered or certified mail,
return receipt requested, addressed as follows:
To Guarantor: Lanvision Systems, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxxxx Xxxxxx, Xxxx
To Beneficiary: Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Xxxxxxxx County, Ohio
Either party may change such address by sending notice of the change to
the other party.
9. MISCELLANEOUS.
(a) This Guaranty may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and
the same instrument.
(b) This Guaranty is the complete agreement of the parties hereto
and supersedes all previous understandings and agreements relating to the
subject matter hereof. Neither this Guaranty nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the party against whom
enforcement of the termination, amendment, supplement, waiver or
modification is sought.
(c) As the context herein requires, the singular shall include the
plural and one gender shall include one or both other genders.
(d) This Guaranty shall inure to the benefit of Beneficiary's
successors and assigns and shall be binding upon the heirs, executors,
administrators and successors of Guarantor. This Guaranty is not
assignable by Guarantor.
(e) If any provision of this Guaranty or the application thereof to
any person or circumstance is held invalid, the remainder of this Guaranty
and the application thereof to other persons or circumstances shall not be
affected thereby.
(f) This Guaranty shall be governed by and construed in accordance
with the law of the State of Ohio. Guarantor agrees that the state and
federal courts for the County in which the Beneficiary is located or any
other court in which Beneficiary initiates proceedings have exclusive
jurisdiction over all matters arising out of this Guaranty.
(g) GUARANTOR AND BENEFICIARY HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY OF ANY MATTERS ARISING IN CONNECTION WITH THIS GUARANTY OR THE
TRANSACTIONS RELATED THERETO.
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
-5-
10. CONFESSION OF JUDGMENT. Guarantor authorizes any attorney of record to
appear for it in any court of record in the State of Ohio, after an Obligation
becomes due and payable whether by its terms or upon default, waive the issuance
and service of process, and release all errors, and confess a judgment against
it in favor of the holder of such Obligation, for the principal amount of such
Obligation plus interest thereon, together with court costs and attorneys' fees.
Stay of execution and all exemptions are hereby waived. If an Obligation is
referred to an attorney for collection, and the payment is obtained without the
entry of a judgment, the obligors shall pay to the holder of such obligation its
attorneys' fees. GUARANTOR AGREES THAT AN ATTORNEY WHO IS COUNSEL TO BENEFICIARY
OR ANY OTHER HOLDER OF SUCH OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR
GUARANTOR WHEN TAKING THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. GUARANTOR
AGREES THAT ANY ATTORNEY TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY
BENEFICIARY OR THE HOLDER OF SUCH OBLIGATION. GUARANTOR WAIVES ANY CONFLICT OF
INTEREST THAT MAY BE CREATED BECAUSE THE ATTORNEY WHO ACTS FOR GUARANTOR
PURSUANT TO THIS PARAGRAPH IS ALSO REPRESENTING BENEFICIARY OR THE HOLDER OF
SUCH OBLIGATION, OR BECAUSE SUCH ATTORNEY IS BEING PAID BY BENEFICIARY OR THE
HOLDER OF SUCH OBLIGATION.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the date first above written.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
BENEFICIARY: GUARANTOR:
Fifth Third Bank Lanvision Systems, Inc., a Delaware corporation
By:___________________________ By:____________________________________________
(Signature) (Authorized Signer)
______________________________ _______________________________________________
(Print Name and Title) (Print Name and Title)
CONT-GAUR (C) Fifth Third Bancorp 2001 33118-14-1-X.XXXX
-6-
001-FTCI
[FIFTH THIRD BANK LOGO]
SECURITY AGREEMENT
This Security Agreement (the "Agreement") is made as of July 30, 2004 by
Lanvision, Inc., an Ohio corporation located at 0000 Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxx 00000, (the "Debtor") in favor of Fifth Third Bank, an
Ohio banking corporation located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxx 00000 for itself and as agent for any affiliate of Fifth
Third Bancorp (the "Secured Party"). Debtor and Secured Party hereby agree as
follows:
W I T N E S S E T H:
WHEREAS, Debtor is indebted to Secured Party in the aggregate principal
amount of Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000.00)
pursuant to the Term Note, dated July 30, 2004, executed by Debtor and made
payable to the order of Secured Party, in the principal amount of $3,500,000.00
(the "Note"), and all agreements, instruments and documents executed or
delivered in connection with the foregoing or otherwise related thereto
(collectively, together with any amendments, modifications, or restatements
thereof, the "Loan Documents").
1. OBLIGATIONS. This assignment of collateral and grant of security
interest shall secure all loans, advances, indebtedness and each and every other
obligation or liability of Debtor owed to Secured Party and any affiliate of
Fifth Third Bancorp, however created, of every kind and description, whether now
existing or hereafter arising and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, due or to become due, liquidated or
unliquidated, matured or unmatured, participated in whole or in part, created by
trust agreement, lease, overdraft, agreement, or otherwise, whether or not
secured by additional collateral, whether originated with Secured Party or owed
to others and acquired by Secured Party by purchase, assignment or otherwise,
and including, without limitation, all loans, advances, indebtedness and each
and every other obligation or liability arising under the Loan Documents,
letters of credit now or hereafter issued by Secured Party or any affiliate of
Fifth Third Bancorp for the benefit of or at the request of Debtor, all
obligations to perform or forbear from performing acts, any and all Rate
Management Obligations (as defined in the Loan Documents), and all agreements,
instruments and documents evidencing, guarantying, securing or otherwise
executed in connection with any of the foregoing, together with any amendments,
modifications, and restatements thereof, and all expenses and attorneys' fees
incurred or other sums disbursed by Secured Party under this Agreement or any
other document, instrument or agreement related to any of the foregoing
(collectively, the "Obligations").
2. COLLATERAL. The Debtor hereby grants to Secured Party a security
interest in all right, title and interest of Debtor in the collateral now
existing and hereafter arising or acquired by Debtor, regardless of where it is
located, and defined as follows (together with all proceeds and products thereof
and all additions and accessions thereto, replacements thereof, supporting
obligations therefor, software related thereto, guaranties thereof, insurance or
condemnation proceeds thereof, documents related thereto, all sales of accounts
constituting a right to payment therefrom, all tort or other claims against
third parties arising out of damage thereto or destruction thereof, all property
received wholly or partly in trade or exchange therefor, all fixtures attached
or appurtenant thereto, all leases thereof, and all rents, revenues, issues,
profits and proceeds arising from the sale, lease, license, encumbrance,
collection, or any other temporary or permanent disposition thereof, or any
other interest therein, collectively, the "Collateral"):
(a) All Accounts, all Inventory, all Equipment, all General
Intangibles, all Investment Property.
(b) All instruments, chattel paper, electronic chattel paper,
documents, securities, moneys, cash, letters of credit, letter of credit
rights, promissory notes, warrants, dividends, distributions, contracts,
agreements, contract rights or other property, owned by Debtor or in which
Debtor has an interest, including but not limited to, those which now or
hereafter are in the possession or control of Secured Party or in transit
by mail or carrier to or in the possession of any third party acting on
behalf of Secured Party, without regard to whether Secured Party received
the same in pledge, for safekeeping, as agent for collection or
transmission or otherwise or whether Secured Party had conditionally
released the same, and the proceeds thereof, all rights to payment from,
and all claims against Secured Party, and any deposit accounts of Debtor
with Secured Party, including all demand, time, savings, passbook or other
accounts and all deposits therein.
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
(c) All assets and all personal property now owned or hereafter
acquired; all now owned and hereafter acquired inventory, equipment,
fixtures, goods, accounts, chattel paper, documents, instruments, farm
products, general intangibles, supporting obligations, software,
commercial tort claims, minerals, standing timber, growing crops and all
rents, issues, profits, products and proceeds thereof, wherever any of the
foregoing is located.
3. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement
shall have the meanings attributed thereto in the applicable version of the
Uniform Commercial Code adopted in the jurisdiction in which Debtor is organized
or, where appropriate, the jurisdiction in which the Collateral is located, as
such definitions may be enlarged or expanded from time to time by legislative
amendment thereto or judicial decision (the "Uniform Commercial Code"). As used
herein, the following capitalized terms shall have the following meanings:
(a) "Accounts" means all accounts, accounts receivable, health-care
insurance receivables, credit card receivables, contract rights,
instruments, documents, chattel paper, tax refunds from federal, state or
local governments and all obligations in any form including without
limitation those arising out of the sale or lease of goods or the
rendition of services by Debtor; all guaranties, letters of credit and
other security and support obligations for any of the above; all
merchandise returned to or reclaimed by Debtor; and all books and records
(including computer programs, tapes and data processing software)
evidencing an interest in or relating to the above; all winnings in a
lottery or other game of chance operated by a governmental unit or person
licensed to operate such game by a governmental unit and all rights to
payment therefrom; and all "Accounts" as same is now or hereinafter
defined in the Uniform Commercial Code.
(b) "Equipment" means all goods (excluding inventory, farm products
or consumer goods), all machinery, machine tools, equipment, fixtures,
office equipment, furniture, furnishings, motors, motor vehicles, tools,
dies, parts, jigs, goods (including, without limitation, each of the items
of equipment set forth on any schedule which is either now or in the
future attached to Secured Party's copy of this Agreement), and all
attachments, accessories, accessions, replacements, substitutions,
additions and improvements thereto, all supplies used or useful in
connection therewith, and all "Equipment" as same is now or hereinafter
defined in the Uniform Commercial Code.
(c) "General Intangibles" means all general intangibles, choses in
action, causes of action, obligations or indebtedness owed to Debtor from
any source whatsoever, payment intangibles, software and all other
intangible personal property of every kind and nature (other than
Accounts) including without limitation patents, trademarks, trade names,
service marks, copyrights and applications for any of the above, and
goodwill, trade secrets, licenses, franchises, rights under agreements,
tax refund claims, and all books and records including all computer
programs, disks, tapes, printouts, customer lists, credit files and other
business and financial records, the equipment containing any such
information, and all "General Intangibles" as same is now or hereinafter
defined in the Uniform Commercial Code.
(d) "Inventory" means goods, supplies, wares, merchandises and other
tangible personal property, including raw materials, work in process,
supplies and components, and finished goods, whether held for sale or
lease, or furnished or to be furnished under any contract for service, or
used or consumed in business, and also including products of and
accessions to inventory, packing and shipping materials, all documents of
title, whether negotiable or non-negotiable, representing any of the
foregoing, and all "Inventory" as same is now or hereinafter defined in
the Uniform Commercial Code.
(e) "Investment Property" means a security, whether certificated or
uncertificated, security entitlement, securities account, commodity
contract or commodity account and all "Investment Property" as same is now
or hereafter defined in the Uniform Commercial Code.
4. WARRANTIES AS TO DEBTOR. Debtor hereby represents and warrants to
Secured Party as follows:
(a) It is an Ohio corporation with a principal place of business
located at the address otherwise set forth herein, and is duly organized,
validly existing and in good standing under the laws of the State of Ohio.
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
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(b) Debtor further warrants that its exact legal name is set forth
in the initial paragraph of this Agreement, and that its Taxpayer I.D. is
00-0000000, and that its Organizational No. is 758892.
(c) Exhibit A, attached to this Agreement and incorporated herein by
reference, lists the location of any and all of the Collateral of Debtor.
5. WARRANTIES AS TO THE COLLATERAL. Debtor hereby represents and warrants
to Secured Party that:
(a) Except for the security interest hereby granted, Debtor is, and
as to any property which at any time forms a part of the Collateral, shall
be, the sole owner of, with good and marketable title in, each and every
item of the Collateral, or otherwise shall have the full right and power
to grant a security interest in the Collateral, free from any lien,
security interest or encumbrance whatsoever;
(b) Each item of Collateral is, and shall be, valid, and all
information furnished to Secured Party with regard thereto is, and shall
be, accurate and correct in all respects when furnished;
(c) None of the Collateral shall be sold, assigned, transferred,
discounted, hypothecated or otherwise subjected to any lien, encumbrance
or security interest, and Debtor shall defend such Collateral and each and
every part thereof against all claims of all persons at any time claiming
such Collateral or claiming any interest therein adverse to Secured Party;
(d) The provisions of this Agreement are sufficient to create in
favor of Secured Party a valid and continuing lien on, and first security
interest in, the types of Collateral in which a security interest may be
perfected by the filing of UCC Financing Statements, and when such UCC
Financing Statements are filed in the appropriate filing offices, and the
requisite filing fees are paid, such filings shall be sufficient to
perfect such security interests (other than Equipment affixed to real
property so as to become fixtures);
(e) If any of the Collateral is or will be attached to real estate
in such a manner as to become a fixture under applicable state law, that
said real estate is not encumbered in any way, or if said real estate is
encumbered, Debtor will secure from the lien holder or the party in whose
favor it is or will become so encumbered a written acknowledgment and
subordination to the security interest hereby granted in such form as is
acceptable to Secured Party;
(f) The financial statements of Debtor for the most recent ended
fiscal period and heretofore submitted, to the Secured Party are true and
correct and there are no material adverse changes in the conditions,
financial or otherwise, of Debtor since the date of said financial
statements.
6. DEBTOR'S RESPONSIBILITIES. Debtor covenants with, and warrants to,
Secured Party that Debtor shall:
(a) Furnish to Secured Party, in writing, a current list of all
Collateral for the purpose of identifying the Collateral and, further,
execute and deliver such supplemental instruments, documents, agreements
and chattel paper, in the form of assignments or otherwise, as Secured
Party shall require for the purpose of confirming and perfecting, and
continuing the perfection of, Secured Party's security interest in any or
all of such Collateral, or as is necessary to provide Secured Party with
control over the Collateral or any portion thereof;
(b) At its expense and upon request of Secured Party, furnish copies
of invoices issued by Debtor in connection with the Collateral, furnish
certificates of insurance evidencing insurance on Collateral, furnish
proof of payment of taxes and assessments on Collateral, make available to
Secured Party, any and all of Debtor's books, records, written memoranda,
correspondence, purchase orders, invoices and other instruments or
writings that in any way evidence or relate to the Collateral;
(c) Keep the Collateral insured at all times against risks of loss
or damage by fire (including so-called extended coverage), theft and such
other casualties including collision in the case of any motor vehicle,
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
-3-
all in such amounts, under such forms of policies, upon such terms, for
such periods and written by such companies or underwriters as is
satisfactory to Secured Party. In all cases losses shall be payable to
Secured Party and any surplusage shall be paid to Debtor. All policies of
insurance shall provide for at least thirty (30) days prior written notice
of cancellation to Secured Party. Should Debtor at any time fail to
purchase or maintain insurance, pay taxes, or pay for any expense,
incident or such insurance, pay such taxes, order and pay for such
necessary items of preservation, maintenance or protection, and Debtor
agrees to reimburse Secured Party for all expenses incurred under this
paragraph;
(d) Pay all taxes or assessments imposed on or with respect to the
Collateral;
(e) Keep all of the Collateral in good condition and repair,
protecting it from weather and other contingencies which might adversely
affect it as secured hereunder;
(f) Notify Secured Party immediately in writing of any information
which Debtor has or may receive which might in any way adversely affect
the value of the Collateral or the rights of Secured Party with respect
thereto;
(g) Notify Secured Party promptly, in writing, of any change in the
location of the Collateral or of any place of business or mailing
addresses or the establishment of any new place of business or mailing
address;
(h) Pay all costs of filing any financing, continuation or
termination statements with respect to the security interest created
hereby;
(i) Upon the occurrence of an Event of Default or breach of any
provision of this Security Agreement, pay all expenses and reasonable
attorneys' fees of Secured Party; and Debtor agrees that said expenses and
fees shall be secured under this Agreement;
(j) Maintain possession of all Collateral at the location disclosed
to Secured Party and not to remove the Collateral from that location;
(k) Not sell, contract to sell, lease, encumber, or otherwise
transfer the Collateral (other than inventory) until the Obligations have
been paid and performed, Debtor acknowledging nonetheless that Secured
Party has a security interest in the proceeds of such Collateral;
(l) Take any other and further action necessary or desirable as
requested by Secured Party to grant Secured Party control over the
Collateral, as "control" is defined in the applicable version of the
Uniform Commercial Code, including without limitation (i) executing and/or
authenticating any assignments or third party agreements; (ii) delivering,
or causing the delivery of, any of the Collateral to the possession of
Secured Party; or (iii) obtaining written acknowledgements of the lien of
Secured Party and agreements of subordination to such lien from third
parties in possession of the Collateral in a form acceptable to Secured
Party. Debtor consents to and hereby authorizes any third party in an
authenticated record or agreement between Debtor, Secured Party, and the
third party, including but not limited to depository institutions,
securities intermediaries, and issuers of letters of credit or other
support obligations, to accept direction from Secured Party regarding the
maintenance and disposition of the Collateral and the products and
proceeds thereof, and to enter into agreements with Secured Party
regarding same, without further consent of the Debtor.
7. ACCOUNTS RECEIVABLE. Debtor hereby agrees that, notwithstanding the
fact that all or any part of the Obligations is not matured and Debtor is
current in payment according to the tenor of the Obligations, Secured Party
shall have the absolute right to take any one or all of the following actions:
(a) Secured Party may serve written notice on Debtor instructing
Debtor to deliver to Secured Party all subsequent payments on accounts
receivable which Debtor shall do until notified otherwise;
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
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(b) Secured Party may notify the account debtor(s) of its security
interest and instruct such account debtor(s) to make further payments on
such accounts to Secured Party instead of to Debtor; and,
(c) Secured Party may serve written notice upon Debtor that all
subsequent xxxxxxxx or statements of account rendered to any account
debtor shall bear a notation directing the account debtor(s) to make
payment directly to Secured Party. Any payment received by Secured Party
pursuant to this paragraph shall be retained in a separate non-interest
bearing account as security for the payment and performance of all
Obligations of Debtor.
8. POWER OF ATTORNEY. Debtor hereby makes, constitutes and appoints
Secured Party its true and lawful attorney in fact to act, with full power of
substitution, with respect to the Collateral in any transaction, legal
proceeding, or other matter in which Secured Party is acting pursuant to this
Agreement, including but not limited to executing, authenticating and/or filing
on its behalf: (i) UCC Financing Statements reflecting the lien of Secured Party
upon the Collateral and any other documents necessary or desirable to perfect or
otherwise continue the security interest granted herein; and (ii) any third
party agreements or assignments to grant Secured Party control over the
Collateral, including but not limited to third party agreements between Debtor,
Secured Party, and depository institutions, securities intermediaries, and
issuers of letters of credit or other support obligations, which third party
agreements direct the third party to accept direction from Secured Party
regarding the maintenance and disposition of the Collateral and the products and
proceeds thereof.
9. EVENTS OF DEFAULT. Any of the following events shall be an "Event of
Default" hereunder:
(a) An event of default occurs under any agreement, instrument or
document evidencing, guarantying, securing or otherwise executed or
delivered in connection with any of the Obligations, as "Event of Default"
shall be defined therein.
(b) Any representation or warranty of Debtor set forth in this
Agreement or in any agreement, instrument, document, certificate or
financial statement evidencing, guarantying, securing or otherwise related
to, this Agreement or any other Obligation shall be materially inaccurate
or misleading.
(c) Debtor shall fail to maintain in force the insurance required in
this Agreement or in any agreement, instrument, document, certificate or
financial statement evidencing, guarantying, securing or otherwise related
to, this Agreement or any other Obligation, or Debtor shall otherwise
default in the observance or performance of any covenant or agreement set
forth in any of the foregoing for a period of 30 days.
10. REMEDIES. Upon the occurrence and until the waiver of an Event of
Default, Secured Party may, without further notice to Debtor, at Secured Party's
option, declare any note and all of the Obligations to become due and payable in
its aggregate amount; provided that the Obligations shall be accelerated
automatically and immediately if the Event of Default is a filing under the
Bankruptcy Code. Secured Party may resort to the rights and remedies of a
secured party under the Uniform Commercial Code, including but not limited to
the right of a secured party to (a) enter any premises of Debtor, with or
without legal process and take possession of the Collateral and remove it and
any records pertaining thereto and/or remain on such premises and use it for the
purpose of collecting, preparing and disposing of the Collateral; (b) ship,
reclaim, recover, store, finish, maintain and repair the Collateral; and (c)
sell the Collateral at public or private sale. Debtor will be credited with the
net proceeds of any such sale only when they are actually received by Secured
Party, and any requirement of reasonable notice of any disposition of the
Collateral will be satisfied without notice to Debtor if the Collateral is of a
type customarily sold on a recognized market or otherwise if such notice is sent
to Debtor 10 days prior to such disposition. Debtor will, upon request, assemble
the Collateral and any records pertaining thereto and make them available at a
place designated by Secured Party. Secured Party may use, in connection with any
assembly or disposition of the Collateral, any trademark, tradename, tradestyle,
copyright, patent right, trade secret or technical process used or utilized by
Debtor. No remedy set forth herein is exclusive of any other available remedy or
remedies, but each is cumulative and in addition to every other remedy given
under this Agreement, any of the Obligations, or now or hereafter existing at
law or in equity or by statute. Secured Party may proceed to protect and enforce
its rights by an action at law, in equity or by any other appropriate
proceedings. No failure on the part of Secured Party to enforce any of the
rights hereunder shall be deemed a waiver of such rights or of any Event of
Default and no waiver of any Event of Default shall be deemed to be a waiver of
any subsequent Event of Default.
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
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11. MISCELLANEOUS PROVISIONS.
(a) All rights of Secured Party shall inure to the benefit of its
successors and assigns and all obligations of Debtor shall bind the heirs,
executors, administrators, successors and assigns of Debtor.
(b) Debtor acknowledges and agrees that, in addition to the security
interests granted herein, Secured Party has a banker's lien and common law
right of set-off in and to Debtor's deposits, accounts and credits held by
Secured Party and Secured Party may apply or set-off such deposits or
other sums against the Obligations upon the occurrence of an Event of
Default as set forth in this Agreement.
(c) This Agreement contains the entire Agreement of the parties and
no oral Agreement whatsoever, whether made contemporaneously herewith or
hereafter shall amend, modify or otherwise affect the terms of this
Agreement.
(d) All rights and liabilities hereunder shall be governed and
limited by, and construed in accordance with, the laws of the State in
which Debtor is organized.
(e) Any provision herein which may prove limited or unenforceable
under any law or judicial ruling shall not affect the validity or
enforceability of the remainder of this Agreement.
(f) Debtor hereby authorizes Secured Party to file a copy of this
Agreement as a Financing Statement with appropriate county and state
government authorities necessary to perfect Secured Party's security
interest in the Collateral as set forth herein. Debtor hereby further
authorizes Secured Party to file UCC Financing Statements on behalf of
Debtor and Secured Party with respect to the Collateral.
SECURED PARTY: DEBTOR:
Fifth Third Bank Lanvision, Inc., an Ohio corporation
By:___________________________ By:___________________________________________
(Signature) (Authorized Signer)
J. Xxxxx Xxxxx, President & CEO
______________________________ ______________________________________________
(Print Name and Title) (Print Name and Title)
By: __________________________________________
(Authorized Signer)
Xxxx X. Bridge Jr., CFO
______________________________________________
(Print Name and Title)
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
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EXHIBIT A
Collateral Locations
0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000
0000 Xxxxxxxx Xxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxx 00000
SEC-AGREEMENT (C) Fifth Third Bancorp 2001 33118-1-2-X.XXXX
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0010-FTCI
[FIFTH THIRD BANK LOGO]
SAVINGS ACCOUNT AND CERTIFICATE OF DEPOSIT ASSIGNMENT
This Bank Savings - Fifth Third Assignment (this "Assignment") is made as
of July 30, 2004 by Lanvision, Inc., an Ohio corporation located at 0000 Xxxxx
Xxxx, Xxxxxxxxxx, Xxxx 00000 (the "Pledgor") and Fifth Third Bank, an Ohio
banking corporation, located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000
for itself and as agent for any affiliate of Fifth Third Bancorp (hereinafter
the "Secured Party").
W I T N E S S E T H:
WHEREAS, Pledgor is indebted to Secured Party in the aggregate principal
amount of Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000.00)
pursuant to the Term Note, dated July 30, 2004, executed by Pledgor and made
payable to the order of Secured Party, in the principal amount of $3,500,000.00
(the "Note"), and all agreements, instruments and documents executed or
delivered in connection with the foregoing or otherwise related thereto
(collectively, together with any amendments, modifications, or restatements
thereof, the "Loan Documents").
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, Pledgor and Secured Party hereby agree as follows:
1. Collateral. Pledgor hereby assigns, transfers and grants to Secured
Party, a security interest in and to all of the following items of property
(collectively, the "Collateral"):
Bank Savings - Fifth Third Number ________ issued by Fifth Third Bank and
limited to $2,000,000.00.
2. Obligations Secured Hereby. The Collateral shall be security for the
payment and performance of the following (collectively, the "Obligations"): all
loans, advances, indebtedness and each and every other obligation or liability
of Pledgor owed to Secured Party and any affiliate of Fifth Third Bancorp,
however created, of every kind and description, whether now existing or
hereafter arising and whether direct or indirect, primary or as guarantor or
surety, absolute or contingent, due or to become due, liquidated or
unliquidated, matured or unmatured, participated in whole or in part, created by
trust agreement, lease, overdraft, agreement, or otherwise, whether or not
secured by additional collateral, whether originated with Secured Party or owed
to others and acquired by Secured Party by purchase, assignment or otherwise,
and including, without limitation, all loans, advances, indebtedness and each
and every other obligation or liability arising under the Loan Documents,
letters of credit now or hereafter issued by Secured Party or any affiliate of
Fifth Third Bancorp for the benefit of or at the request of Pledgor, all
obligations to perform or forbear from performing acts, any and all Rate
Management Obligations (as defined in the Loan Documents), and all agreements,
instruments and documents evidencing, guarantying, securing or otherwise
executed in connection with any of the foregoing, together with any amendments,
modifications, and restatements thereof, and all expenses and attorneys' fees
incurred or other sums disbursed by Secured Party under this Assignment or any
other document, instrument or agreement related to any of the foregoing
(collectively, the "Obligations").
3. Representations and Warranties. Pledgor hereby represents and warrants
to Secured Party as follows:
(a) It is an Ohio corporation with a principal place of business
located at the address otherwise set forth herein, and is duly organized,
validly existing and in good standing under the laws of the State of Ohio.
(b) Pledgor further warrants that its exact legal name is set forth
in the initial paragraph of this Agreement, and that its Taxpayer I.D. is
00-0000000, and that its Organizational No. is is 758892.
(c) Except for the security interest hereby granted, Pledgor is, and
as to any property which at any time forms a part of the Collateral, shall
be, the sole owner of, with good and marketable title in, each and every
item of the Collateral, or otherwise shall have the full right and power
to grant a security interest in the Collateral, free from any lien,
security interest or encumbrance whatsoever;
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M(7/04) 33118-2-2-X.XXXX
(d) Each item of Collateral is, and shall be, valid, and all
information furnished to Secured Party with regard thereto is, and shall
be, accurate and correct in all respects when furnished;
(e) None of the Collateral shall be sold, assigned, transferred,
discounted, hypothecated or otherwise subjected to any lien, encumbrance
or security interest, and Pledgor shall defend such Collateral and each
and every part thereof against all claims of all persons at any time
claiming such Collateral or claiming any interest therein adverse to
Secured Party; and
(f) The provisions of this Assignment are sufficient to create in
favor of Secured Party a valid and continuing lien on, and first security
interest in, the types of Collateral in which a security interest may be
perfected by the filing of UCC Financing Statements, and when such UCC
Financing Statements are filed in the appropriate filing offices, and the
requisite filing fees are paid, such filings shall be sufficient to
perfect such security interests.
4. Events of Default. Any of the following events shall be an "Event of
Default" hereunder:
(a) An event of default occurs under any agreement, instrument or
document evidencing, guarantying, securing or otherwise executed or
delivered in connection with any of the Obligations, as "Event of Default"
shall be defined therein.
(b) Any representation or warranty of Pledgor set forth in this
Agreement or in any agreement, instrument, document, certificate or
financial statement evidencing, guarantying, securing or otherwise related
to, this Agreement or any other Obligation shall be materially inaccurate
or misleading.
(c) Pledgor shall fail to observe or perform any covenant or
condition required in this Agreement or in any agreement, instrument,
document, certificate or financial statement evidencing, guarantying,
securing or otherwise related to, this Agreement or any other Obligation,
or Pledgor shall otherwise default in the observance or performance of any
covenant or agreement set forth in any of the foregoing for a period of 30
days.
5. Remedies. Upon the occurrence and until the waiver of an Event of
Default, Secured Party may, without further notice to Pledgor, at Secured
Party's option, declare any or all of the Obligations to become due and payable
in its aggregate amount; provided that the Obligations shall be accelerated
automatically and immediately if the Event of Default is a filing under the
Bankruptcy Code. Secured Party may resort to the rights and remedies of a
secured party under the Uniform Commercial Code, including the right to take
possession of the Collateral in its own name and apply the Collateral to pay the
Obligations. No remedy set forth herein is exclusive of any other available
remedy or remedies, but each is cumulative and in addition to every other remedy
given under this Assignment, any of the Obligations, or now or hereafter
existing at law or in equity or by statute. Secured Party may proceed to protect
and enforce its rights by an action at law, in equity or by any other
appropriate proceedings. No failure on the part of Secured Party to enforce any
of the rights hereunder shall be deemed a waiver of such rights or of any Event
of Default and no waiver of any Event of Default shall be deemed to be a waiver
of any subsequent Event of Default.
6. Power of Attorney. Pledgor hereby makes, constitutes and appoints
Secured Party its true and lawful attorney in fact to act, with full power of
substitution, with respect to the Collateral in any transaction, legal
proceeding, or other matter in which Secured Party is acting pursuant to this
Assignment, including but not limited to executing, authenticating or filing on
its behalf: (i) UCC Financing Statements reflecting the lien of Secured Party
upon the Collateral and any other documents necessary or desirable to perfect or
otherwise continue the security interest granted herein; and (ii) any third
party agreements or assignments to grant Secured Party control over the
Collateral, including but not limited to third party agreements between Pledgor,
Secured Party, and depository institutions, securities intermediaries, and
issuers of letters of credit or other support obligations, which third party
agreements direct the third party to accept direction from Secured Party
regarding the maintenance and disposition of the Collateral and the products and
proceeds thereof.
7. Miscellaneous Provisions. (a) All rights of Secured Party shall inure
to the benefit of its successors and assigns, and all obligations of Pledgor
shall bind the heirs, executors, administrators, successors and assigns of
Pledgor. (b) Pledgor acknowledges and agrees that, in addition to the security
interests granted herein, Secured Party has a banker's lien and common law right
of set-off in and to Pledgor's deposits, accounts and credits held by Secured
Party and Secured Party may apply or set- off such deposits or other sums
against the Obligations upon the occurrence of an Event
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M(7/04) 33118-2-2-X.XXXX
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Default as defined in this Assignment. (c) This Assignment contains the entire
agreement of the parties and no oral agreement whatsoever, whether made
contemporaneously herewith or hereafter shall amend, modify or otherwise affect
the terms of this Assignment. (d) All rights and liabilities hereunder shall be
governed and limited by and construed in accordance with the laws of the state
in which Secured Party's principal place of business is located; unless
otherwise defined, words used herein have the meanings given them in Article
Nine of the Uniform Commercial Code as adopted in the state where Secured
Party's principal place of business is located. (e) Any provision herein which
may prove limited or unenforceable under any law or judicial ruling shall not
affect the validity or enforceability of the remainder of this Assignment. (f)
Pledgor hereby authorizes Secured Party to file a copy of this Assignment as a
Financing Statement with appropriate county and state government authorities and
to take any other action necessary to perfect Secured Party's security interest
in the Collateral as set forth herein. Pledgor hereby further authorizes Secured
Party to file UCC Financing Statements on behalf of Pledgor and Secured Party
with respect to the Collateral.
SECURED PARTY: PLEDGOR:
Fifth Third Bank Lanvision, Inc., an Ohio corporation
By:___________________________ By:____________________________________________
(Signature) (Authorized Signer)
J. Xxxxx Xxxxx, President & CEO
______________________________ _______________________________________________
(Print Name and Title) (Print Name and Title)
By:____________________________________________
(Authorized Signer)
Xxxx X. Bridge Jr., CFO
_______________________________________________
(Print Name and Title)
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M(7/04) 33118-2-2-X.XXXX
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