SECURITY AGREEMENT
(Equipment)
For value received, the undersigned ("Debtor") grants to Comerica Bank, a
Michigan banking corporation, whose address is 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 ("Bank"), a security interest in all Equipment and Fixtures of
Debtor wherever located, now owned or later acquired, and also in (a) all other
similar property, wherever located, now owned or later acquired by Debtor, (b)
all additions, attachments, accessions, parts, replacements, substitutions and
renewals of or for all Equipment and Fixtures of Debtor, wherever located, now
owned or later acquired, (c) all of Debtor's Property in Possession of Bank, and
(d) the Proceeds and products of all of the above, to secure payment of any and
all sums, indebtedness and liabilities of any and every kind now owing or later
to become due to the Bank from Debtor or from Continental Pharmacy, Inc.
("CPI"), Preferred Rx, Inc. ("Preferred"), Automated Scripts, Inc. ("ASI"), or
Valley Physicians Services, Inc. ("VPSI") (Debtor, CPI, Preferred, ASI and VPSI
are sometimes collectively hereinafter referred to as the "Borrower") or any or
all of them, during the term of this Agreement, however created, incurred,
evidenced, acquired or arising, whether under any note(s), guaranty(ies), letter
of credit agreement(s), evidence(s) of indebtedness or under any other
instrument, obligation, guaranty, contract or agreement or dealing of any and
every kind now existing or later entered into between the Debtor or the Borrower
and the Bank, or otherwise, and whether direct, indirect, primary, secondary,
fixed, contingent, joint or several, due or to become due, together with
interest and charges, and including, without limit, all present and future
indebtedness or obligations of third parties to the Bank which is guaranteed by
the Debtor or the Borrower or any or all of them and the present or future
indebtedness originally owing by the Debtor or the Borrower or any or all of
them to third parties and assigned by third parties to the Bank, and any and all
renewals, extensions or modifications of any of them (the "Indebtedness").
1. Definitions. As used in this Agreement:
1.1 "Collateral" means any and all property of Debtor in which Bank
now has or by this Agreement now or later acquires a security
interest.
1.2 "Debtor's Property in Possession of Bank" means goods,
instruments, documents, policies and certificates of insurance,
deposits, money or other property now owned or later acquired by
Debtor or in which Debtor now has or later acquires an interest
and which are now or later in possession of Bank or as to which
Bank now or later controls possession by documents or otherwise.
1.3 "Environmental Law" means any laws, ordinances, directives,
orders, statutes, or regulations an object of which is to regulate
or improve health, safety, or the environment, including, without
limit, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 USC 9601 et seq.), and the
Resource Conservation and Recovery Act, as amended (42 USC 6901 et
seq.).
1.4 "Equipment" and "Fixtures" each have the respective meaning
assigned it in Article 9 and/or Chapter 1309 of the Uniform
Commercial Code, as of the date of this Agreement.
1.5 "Proceeds" has the meaning assigned it in Article 9 of the Uniform
Commercial Code, as of the date of this Agreement, and also
includes without limit cash or other property which were proceeds
and are recovered by a bankruptcy trustee or otherwise as a
preferential transfer by Debtor.
1.6 "Uniform Commercial Code" means Chapters 1301 through 1310 of the
Ohio Revised Code, as amended.
1.7 Except as otherwise provided in this Agreement, all terms used in
this Agreement have the meanings assigned to them in Chapter 1309
(or, absent definition in Chapter 1309, in any other Article) of
the Uniform Commercial Code, as of the date of this Agreement.
2. Warranties, Covenants and Agreements. Debtor warrants, covenants and
agrees as follows:
2.1 The Collateral has been acquired (or will be acquired) for use
primarily in business. Bank at its option may disburse loan
proceeds directly to the seller of any Collateral to be acquired
with proceeds of loans from Bank.
2.2 All items constituting a part of the Collateral which are Fixtures
under applicable law or which are in fact attached to real estate
are described in attached Schedule A (if any) (but the failure by
Debtor to attach a Schedule A to this Agreement shall not in any
way affect or impair Bank's security interest in Fixtures). There
is also set forth in Schedule A (if any) a description of the real
estate upon which all these items are located and the name(s) and
address(es) of the owner(s) and mortgagee(s) of the real estate.
Debtor upon demand of Bank shall furnish Bank with consents or
disclaimers filed by all persons having an interest in the real
estate (including without limit owners, mortgage
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holders and lessees) consenting to Bank's security interest and
acknowledging its priority or disclaiming any interest in the
Collateral.
2.3 At the time any Collateral becomes, or is represented to be,
subject to a security interest in favor of Bank, Debtor shall be
deemed to have warranted that (a) Debtor is the lawful owner of
the Collateral and has the right and authority to subject the same
to a security interest granted to Bank and (b) except for leases
currently in place, none of the Collateral is subject to any
security interest other than that in favor of Bank and the lien of
Foxmeyer Drug Co. ("Foxmeyer") and there are no financing
statements on file other than in favor of such parties.
2.4 Debtor will keep the Collateral free at all times from any and all
claims, liens, security interests and encumbrances other than
those in favor of Bank and except for leases currently in place
and for leased equipment in an amount not to exceed $50,000.
Debtor will not, without the prior written consent of Bank, sell,
transfer or lease, or permit or suffer to be sold, transferred or
leased any or all of the Collateral. Bank or its agents or
attorneys may at all reasonable times inspect the Collateral and
may enter upon all premises where the Collateral is kept or might
be located. Debtor shall allow Bank to examine, inspect and make
abstracts from, or copy any of Debtor's books and records
(relating to the Collateral or otherwise).
2.5 Debtor will do all acts and things, and will execute all writings
requested by Bank to establish, maintain and continue a perfected
and first security interest of Bank in the Collateral, and will
pay on demand all costs and expenses of searches, filing and
recording deemed necessary by Bank to establish, determine or
continue the validity and the priority of Bank's security
interest.
2.6 If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of
(a) the ultimate sale or exchange thereof, or
(b) presentation, collection, renewal, or registration of
transfer thereof, or
(c) loading, unloading, storing, shipping, transshipping,
manufacturing, processing or otherwise dealing therewith
preliminary to sale or exchange,
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such redelivery shall be in trust for the benefit of Bank and
shall not constitute a release of Bank's security interest therein
or in the proceeds or products thereof unless Bank specifically so
agrees in writing. If Debtor requests any such redelivery, Debtor
will deliver with such request a duly executed financing statement
in form and substance satisfactory to Bank. Any proceeds of
Collateral coming into Debtor's possession as a result of any such
redelivery shall be held in trust for Bank and forthwith delivered
to Bank for application on the Indebtedness. Bank may (if, in its
sole discretion, it elects to do so) deliver the Collateral or any
part of the Collateral to Debtor, and such delivery by Bank shall
discharge Bank from any and all liability or responsibility for
such Collateral.
2.7 Debtor acknowledges and agrees that the Bank has no obligation to
acquire or perfect any lien on or security interest in any
asset(s), whether realty or personalty, to secure payment of the
Indebtedness, and Debtor is not relying upon assets in which the
Bank has or may have a lien or security interest for payment of
the Indebtedness.
2.8 Debtor will pay promptly and within the time that they can be paid
without interest or penalty all taxes, assessments and similar
imposts and charges which at any time are or may become, a lien,
charge, or encumbrance upon any of the Collateral, except to the
extent contested in good faith in a manner satisfactory to Bank.
If Debtor fails to pay any of these taxes, assessments, or other
charges in the time provided above, Bank has the option (but not
the obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest
at the highest default rate which could be charged by Bank to
Debtor on any Indebtedness.
2.9 Debtor will keep the Collateral in good condition and will
safeguard and protect it from loss, damage or deterioration from
any cause. Debtor has and will maintain at all times (a) with
respect to the Collateral, insurance against fire and other risks
customarily insured against under an "all risk" policy and such
other risks customarily insured against by persons engaged in
similar business to that of Debtor, and (b) public liability
insurance and other insurance as may be required by law or
reasonably required by Bank, all of which insurance shall be in
amount, form and content, and written by companies as may be
satisfactory to Bank, naming Bank as sole payee as to the
Collateral. Debtor will deliver to Bank evidence satisfactory to
Bank that
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the required insurance has been procured. If Debtor fails to
maintain satisfactory insurance, Bank has the option (but not the
obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest
at the highest default rate which could be charged by Bank to
Debtor on any Indebtedness.
2.10 If any of the Collateral (or any records concerning the
Collateral) is located or kept by Debtor on leased premises,
Debtor will: (a) provide a complete and correct copy of all
applicable leases to Bank, (b) furnish or cause to be furnished to
Bank from each landlord under such leases a lessor's
acknowledgment and subordination in form satisfactory to Bank
authorizing, on Default, Bank's entry on such premises to enforce
its rights and remedies under this Agreement and (c) comply with
all such leases. Debtor's rights under all such leases shall
further be part of the Collateral, and included in the security
interest granted to Bank hereunder.
2.11 Debtor agrees to reimburse Bank upon demand for all fees and
expenses incurred by Bank (a) in seeking to collect the
Indebtedness or any part of it (through formal or informal
collection actions, workouts or otherwise), in defending the
validity or priority of its security interest, or in pursuing its
rights and remedies under this Agreement or under any other
agreement between Bank and Debtor; (b) in connection with any
proceeding (including, without limit, bankruptcy, insolvency,
administrative, appellate, or probate proceedings or any lawsuit)
in which Bank at any time is involved as a result of any lending
relationship or other financial accommodation involving Bank and
Debtor; or (c) incurred by Bank during the continuance of an Event
of Default, which fees and expenses relate to or would not have
been incurred but for any lending relationship or other financial
accommodation involving Bank and Debtor. The fees and expenses
include, without limit, court costs, legal expenses, reasonable
attorneys' fees, paralegal fees, internal transfer charges for
in-house attorneys and paralegals and other services, and audit
expenses.
2.12 Debtor at all times shall be in strict compliance with all
applicable laws.
2.13 Debtor is and shall be in strict compliance with all Environmental
Laws.
2.14 Debtor acknowledges and agrees that if any Guaranty is executed by
the Debtor in connection with or related to this Agreement, all
waivers contained in that Guaranty
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shall be and are incorporated by reference into this Agreement.
3. Defaults, Enforcement and Application of Proceeds.
3.1 Upon the occurrence of any of the following events (each an "Event
of Default"), Debtor shall be in default under this Agreement:
(a) Any failure or neglect to comply with, or breach of, any of
the terms, provisions, warranties or covenants of this
Agreement, or any other agreement or commitment between
Debtor or the Borrower or any or all of them or any
guarantor of any of the Indebtedness ("guarantor") and
Bank; or
(b) Any failure to pay the Indebtedness within five (5) days
when due, or such portion of it as may be due, by
acceleration or otherwise; or
(c) If the Collateral or any part of it ceases to be personal
property unless shown to the contrary in this Agreement;
(d) Any warranty, representation, financial statement or other
information made, given or furnished to Bank by or on
behalf of Debtor or the Borrower or any or all of them or
any guarantor shall be, or shall prove to have been, false
or materially misleading when made, given, or furnished; or
(e) Any loss, theft, substantial damage or destruction to or of
any of the Collateral, or the issuance or filing of any
attachment, levy, garnishment or the commencement of any
proceeding in connection with any of the Collateral or of
any other judicial process of, upon or in respect of Debtor
or the Borrower or any or all of them or any guarantor or
any of the Collateral; or
(f) Sale or other disposition by Debtor or the Borrower or any
or all of them or any guarantor of any substantial portion
of its assets or property without replacing such assets or
property with property of a similar nature and quality, or
voluntary suspension of the transaction of business by
Debtor or Borrower or any or all of them or any guarantor,
or death, dissolution, termination of existence, merger,
consolidation, insolvency, business failure, or assignment
for the benefit of creditors of or by Debtor or Borrower or
any or all of them or any guarantor; or commencement of any
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proceedings under any state or federal bankruptcy or
insolvency laws or laws for the relief of debtors by or
against Debtor or Borrower or any or all of them or any
guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part
of the property of Debtor or Borrower or any or all of them
or any guarantor; or
(g) Any termination or notice of termination of any guaranty of
collection or payment of, or any breach, termination or
notice of termination of any subordination agreement,
pledge, or collateral assignment relating to, all or any
part of the Indebtedness; or
(h) Any failure by Debtor or Borrower or any or all of them or
any guarantor to pay when due any of its indebtedness
(other than to Bank) or in the observance or performance of
any term, covenant or condition in any agreement
evidencing, securing or relating to that indebtedness, and
such failure gives rise to an immediate right of
acceleration of such indebtedness.
3.2 Upon the occurrence of any Event of Default, Bank may at its
discretion and without prior notice to Debtor declare any or all
of the Indebtedness to be immediately due and payable, and shall
have and may exercise any one or more of the following rights and
remedies:
(a) exercise all the rights and remedies upon default, in
foreclosure and otherwise, available to secured parties
under the provisions of the Uniform Commercial Code and
other applicable law;
(b) institute legal proceedings to foreclose upon and against
the lien and security interest granted by this Agreement,
to recover judgment for all amounts then due and owing as
Indebtedness, and to collect the same out of any of the
Collateral or proceeds of any sale of it;
(c) institute legal proceedings for the sale, under the
judgment or decree of any court of competent jurisdiction,
of any or all of the Collateral; and/or
(d) personally or by agents, attorneys or appointment of a
receiver, enter upon any premises where the Collateral or
any part of it may then be located, and take possession of
all or any part of it and/or
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render it unusable, and without being responsible for loss
or damage to such Collateral, except for loss or damage
caused by Bank's gross negligence or willful misconduct,
(i) hold, store, and keep idle, or lease, operate,
remove or otherwise use or permit the use of, the
Collateral or any part of it, for that time and upon
those terms as Bank, in its sole discretion, deems
to be in its own best interest, and demand, collect
and retain all resulting earnings and other sums due
and to become due from any party, accounting only
for net earnings, if any (unless the Collateral is
retained in satisfaction of the Indebtedness, in
which case no accounting will be necessary) arising
from that use (which net earnings may be applied
against the Indebtedness) and charging against all
receipts from the use of the Collateral or from its
sale, by court proceedings or pursuant to subsection
(ii) below, all other costs, expenses, charges,
damages and other losses resulting from that use;
and/or
(ii) sell, lease or dispose of, or cause to be sold,
leased or disposed of, all or any part of the
Collateral at one or more public or private sales,
leasings or other dispositions, at places and times
and on terms and conditions as Bank may deem fit,
without any previous demand or advertisement and,
except as provided in this Agreement, all notice of
sale, lease or other disposition, and advertisement,
and other notice or demand, any right or equity of
redemption, and any obligation of a prospective
purchaser or lessee to inquire as to the power and
authority of Bank to sell, lease or otherwise
dispose of the Collateral or as to the application
by Bank of the proceeds of sale or otherwise, which
would otherwise be required by, or available to
Debtor under, applicable law are expressly waived by
Debtor to the fullest extent permitted.
At any sale pursuant to this Section 3.2, whether under the
power of sale, by virtue of judicial proceedings or
otherwise, it shall not be necessary for Bank or a public
officer under order of a court to have present physical or
constructive possession of the Collateral to be sold. The
recitals
8
contained in any conveyances and receipts made and given by
Bank or the public officer to any purchaser at any sale
made pursuant to this Agreement shall, to the extent
permitted by applicable law, conclusively establish the
truth and accuracy of the matters stated (including,
without limit, as to the amounts of the principal of and
interest on the Indebtedness, the accrual and nonpayment of
it and advertisement and conduct of the sale); and all
prerequisites to the sale shall be presumed to have been
satisfied and performed. Upon any sale of any of the
Collateral, the receipt of the officer making the sale
under judicial proceedings or of Bank shall be sufficient
discharge to the purchaser for the purchase money, and the
purchaser shall not be obligated to see to the application
of the money. Any sale of any of the Collateral under this
Agreement shall be a perpetual bar against Debtor with
respect to that Collateral.
3.3 The proceeds of any sale or other disposition of Collateral
authorized by this Agreement shall be applied by Bank first upon
all expenses authorized by the Uniform Commercial Code and all
reasonable attorney fees and legal expenses incurred by Bank; the
balance of the proceeds of the sale or other disposition shall be
applied in the payment of the Indebtedness, first to interest,
then to principal, then to remaining Indebtedness, if any, and the
surplus, if any, shall be paid over to Debtor or to such other
person(s) as may be entitled to it under applicable law. Debtor
shall remain liable for any deficiency, which it shall pay to Bank
immediately upon demand.
3.4 Nothing in this Agreement is intended, nor shall it be construed,
to preclude Bank from pursuing any other remedy provided by law
for the collection of any or all of the Indebtedness or for the
recovery of any other sum to which Bank may be or become entitled
for the breach of this Agreement by Debtor. Nothing in this
Agreement shall reduce or release in any way any rights or
security interests of Bank contained in any existing agreement
between Debtor and Bank, nor shall anything in this Agreement
modify the terms of any Indebtedness owing to Bank on a demand
basis.
3.5 No waiver of default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized officer of
Bank. No waiver of any default or forbearance on the part of Bank
in enforcing any of its rights under this Agreement shall operate
as a waiver of
9
any other default or of the same default on a future occasion or
of any rights.
3.6 Debtor irrevocably appoints (which appointment is coupled with an
interest) Bank or any employee or agent of Bank the true and
lawful attorney of Debtor (with full power of substitution) in the
name, place and stead of, and at the expense of, Debtor:
(a) to give any necessary receipts or acquittances for amounts
collected or received under this Agreement;
(b) to make all necessary transfers of all or any part of the
Collateral in connection with any sale, lease or other
disposition made pursuant to this Agreement;
(c) to adjust and compromise any insurance loss on the
Collateral and to endorse checks or drafts payable to
Debtor in connection with the insurance;
(d) to execute and deliver for value all necessary or
appropriate bills of sale, assignments and other
instruments in connection with any permitted sale, lease or
other disposition of the Collateral. Debtor ratifies and
confirms all that its said attorney (or any substitute)
shall lawfully do under this Agreement. Nevertheless, if
requested by Bank or a purchaser or lessee, Debtor shall
ratify and confirm any such sale, lease or other
disposition by executing and delivering to Bank or the
purchaser or lessee all proper bills of sale, assignments,
releases, leases and other instruments as may be designated
in any such request; and
(e) to execute and file in the name of and on behalf of Debtor
all financing statements or other filings deemed necessary
or desirable by Bank to evidence, perfect or continue the
security interests granted in this Agreement.
3.7 Upon the occurrence of an Event of Default, Debtor also agrees,
upon request of Bank, to assemble the Collateral and make it
available to Bank at any place designated by Bank which is
reasonably convenient to Bank and Debtor.
4. Miscellaneous.
4.1 This Agreement shall in all respects be governed by and construed
in accordance with the laws of the State of Ohio. Notwithstanding
the foregoing, the parties acknowledge that the Indebtedness
secured hereby was
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approved and made and the proceeds of the Indebtedness were
disbursed in the State of Michigan.
4.2 This Agreement shall be terminated only by the filing of a
termination statement in accordance with the applicable provisions
of the Uniform Commercial Code, but the obligations contained in
Section 2.13 of this Agreement shall survive termination. Until
terminated, the security interest created by this Agreement shall
continue in full force and effect and shall secure and be
applicable to all advances now or later made by Bank to Debtor,
whether or not Debtor is indebted to Bank immediately prior to the
time of any advance, and to all other Indebtedness.
4.3 Notwithstanding any prior revocation, termination, surrender or
discharge of this Agreement, the effectiveness of this Agreement
shall automatically continue or be reinstated, as the case may be,
in the event that (a) any payment received or credit given by the
Bank in respect of the Indebtedness is returned, disgorged or
rescinded as a preference, impermissible setoff, fraudulent
conveyance, diversion of trust funds, or otherwise under any
applicable state or federal law, including, without limitation,
laws pertaining to bankruptcy or insolvency, in which case this
Agreement shall be enforceable against Debtor as if the returned,
disgorged or rescinded payment or credit had not been received or
given, whether or not the Bank relied upon this payment or credit
or changed its position as a consequence of it; or (b) any
liability is imposed, or sought to be imposed, against the Bank
relating to Debtor's failure to comply with all Environmental
Laws, (excluding only conditions which arise after any acquisition
by the Bank of any such Property, by foreclosure, in lieu of
foreclosure or otherwise, to the extent due to the wrongful act or
omission of the Bank), in which case this Agreement shall be
enforceable to the extent of all liability, costs and expenses
(including without limit reasonable attorney fees) incurred by the
Bank as the direct or indirect result of such failure. In the
event of continuation or reinstatement of this Agreement, Debtor
agree(s) upon demand by the Bank to execute and deliver to the
Bank those documents which the Bank determines are appropriate to
further evidence (in the public records or otherwise) this
continuation or reinstatement, although the failure of Debtor to
do so shall not affect in any way the reinstatement or
continuation. If Debtor does not execute and deliver to the Bank
upon demand such documents, the Bank and each Bank officer is
irrevocably appointed (which appointment is coupled with an
interest) the true and lawful attorney
11
of Debtor (with full power of substitution) to execute and deliver
such documents in the name and on behalf of Debtor.
4.4 This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and
assigns and to any other holder who derives from Bank title to or
an interest in the Indebtedness or any portion of it, and shall
bind Debtor and the successors and permitted assigns of Debtor.
4.5 If there is more than one Debtor, all undertakings, warranties and
covenants made by Debtor and all rights, powers and authorities
given to or conferred upon Bank are made or given jointly and
severally.
4.6 In addition to Bank's other rights, any indebtedness owing from
Bank to Debtor can be set off and applied by Bank on any
Indebtedness at any time(s) either before or after maturity or
demand without notice to anyone.
4.7 In the event that applicable law shall obligate Bank to give prior
notice to Debtor of any action to be taken under this Agreement,
Debtor agrees that a written notice given to it at least five days
before the date of the act shall be reasonable notice of the act
and, specifically, reasonable notification of the time and place
of any public sale or of the time after which any private sale,
lease, or other disposition is to be made, unless a shorter notice
period is reasonable under the circumstances. A notice shall be
deemed to be given under this Agreement when delivered to Debtor
or when placed in an envelope addressed to Debtor and deposited,
with postage prepaid, in a post office or official depository
under the exclusive care and custody of the United States Postal
Service. The mailing shall be registered, certified or first class
mail.
4.8 A carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement under the Uniform
Commercial Code and may be filed by Bank in any filing office.
4.9 No single or partial exercise, or delay in the exercise, of any
right or power under this Agreement, shall preclude other or
further exercise of the rights and powers under this Agreement.
4.10 The unenforceability of any provision of this Agreement shall not
affect the enforceability of the remainder of this Agreement.
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4.11 No amendment or modification of this Agreement shall be effective
unless the same shall be in writing and signed by Debtor and an
authorized officer of Bank.
4.12 This Agreement constitutes the entire agreement of Debtor and Bank
with respect to the subject matter of this Agreement.
4.13 To the extent that any of the Indebtedness is payable upon demand,
nothing contained in this Agreement shall modify the terms and
conditions of that Indebtedness nor shall anything contained in
this Agreement prevent Bank from making demand, without notice and
with or without reason, for immediate payment of any or all of
that Indebtedness at any time(s), whether or not an Event of
Default has occurred.
5. Statement of Business Name, Residence and Location of Collateral. Debtor
warrants, covenants and agrees as follows:
5.1 Debtor's chief executive office is located in the County of
Cuyahoga.
Mailing Address: 0000 X. Xxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxx 00000
------------------------------------------------------
No. and Street City State Zip Code
This location is (check one box):
[_] Owned [x] Leased by the Debtor.
5.2 Any other places of business and/or residences of Debtor are
indicated below: 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
5.3 Debtor's correct legal name is set forth at the end of this
Agreement. During the past five years, Debtor has not conducted
business under any other name except as set forth in any
appropriately labeled schedule attached to this Agreement.
5.4 Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or by
law shall be given to, or made upon, Debtor at the address
indicated in Section 5.1 above.
5.5 Debtor will give Bank not less than 90 days prior written notice
of all contemplated changes in Debtor's name, identity, corporate
structure, and/or any of the above addresses, but the giving of
this notice shall not cure any default caused by this change.
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6. Jury Waiver.
6.1 DEBTOR aND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL
OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL
BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF
LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY
WAY RELATED TO, THIS AGREEMENT OR THE INDEBTEDNESS.
7. Special Provisions Applicable to this Agreement. (*None, if left blank)
Dated and delivered on:
January 24, 1995 CONTINENTAL MANAGED PHARMACY
------------------------ SERVICES, INC.
Debtor
at Cleveland, Ohio By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------------
Signature of
Its: Executive Vice President
------------------------------
Title (if applicable)
By: /s/ [ILLEGIBLE]
----------------------------------
Signature of
Its: Vice President, Treasurer
------------------------------
Title (if applicable)
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