AGREEMENT
This Agreement dated October 1, 1996, by and between NationsBank of
Texas, N.A. (the "Bank") and Jayhawk Medical Acceptance Corporation(the
"Borrower");
Whereas, Borrower desires to obtain a loan (together with all extensions
and renewals thereof hereafter referred to as the "Loan") in the amount of
$15,000,000.00 from Bank in order to provide funds for start-up of consumer
finance company specializing in loans to individuals for elective surgery;
and
Whereas, Bank is willing to grant the Loan provided Borrower agrees not to
encumber certain real or personal property;
Now, therefore, for and in consideration of the Loan made or to be made
by Bank to Borrower, and for other good and valuable considerations, the
receipt and sufficiency of which is hereby acknowledged by both Borrower and
Bank, the parties hereto do agree as follows:
1. Property. Borrower hereby agrees that, for so long as any part of
the Loan remains outstanding, that it will not, without first obtaining the
prior written consent of Bank, create or permit any lien, encumbrance, charge,
or security interest of any kind to exist on:
Accounts: Any and all accounts and other rights of Debtor to the
payment for goods sold or leased or for services rendered whether or not
earned by performance, contract rights, book debts, checks, notes, drafts,
instruments, chattel paper, acceptances, and any and all amounts due to
Debtor from a factor or other forms of obligations and receivables, now
existing or hereafter arising out of the business of Debtor.
2. Recording. Bank is hereby authorized and permitted to cause this
instrument to be recorded at such time and at such place as Bank, at its
option, may elect.
3. Representations and Warranties of Borrower. Borrower represents
and warrants to Bank as follows:
(i) That Borrower owns the real or personal property referenced
above and there are no existing liens or encumbrances upon or
affecting such property.
(ii)Borrower is a (corporation)duly organized and validly existing and in
good standing under the laws of the State of Texas and has all requisite
power and authority to enter into this Agreement.
(iii)The execution and delivery by Borrower of this agreement and
the note (the "Note") evidencing the Loan and the performance of the
respective obligations hereunder and thereunder have been duly authorized.
This Agreement and the Note constitute the legal, valid and binding obligation
of Borrower enforceable in accordance with their terms. The execution and
delivery of this Agreement and the compliance with the provisions thereof
will not conflict with or constitute a breach of, or default under, any of the
provisions of any other agreement to which the Borrower is a party.
(iv)The continued validity in all respects of the aforesaid representations
and warranties shall be a condition precedent to Bank's obligation to fund the
Loan. If any of the representations and warranties shall not be correct at
the time the same is made or at the time a request for an advance under the
Loan is made, Bank will be under no obligation to make any such advance under
the Loan.
4. Reporting. Borrower hereby agrees to furnish to Bank quarterly
accounts receivable agings summaries to Bank within 30 days after the close of
each quarter of each fiscal year.
5. Default. Any failure of the Borrower to comply with the terms of
this Agreement shall constitute an event of default under the documents
evidencing the Loan and the Borrower agrees that in such event the Bank shall
have the right in addition to such other remedies as may be available to it,
to injunctive relief enjoining such breach of the Agreement and neither the
Borrower, its officers, directors, employees, agents or representatives shall
urge that such remedy is not appropriate under the circumstances, it being
expressly acknowledged by the Borrower that such action shall cause the Bank
irreparable damage for which legal remedies are inadequate to protect the
Bank.
6. Termination. This Agreement shall remain in full force and effect
until the Loan described above shall have been paid in full.
In witness whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
Jayhawk Medical Acceptance Corporation
By:/s/ Xxxxxxx X. Xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title: Chairman, CEO
NationsBank of Texas, N.A.
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
State of Texas
County of Dallas_______________________
Personally appeared before me, the undersigned, Notary Public, _Michael I.
Smartt____________________________________, with whom I am personally
acquainted, and who acknowledged that he/she executed the within instrument
for the purposes therein contained.
Witness my hand, at office, this _11__ day of October_________, 1996___.
/s/ Xxxxx Berneburg_______________
Notary Public
Commission expires:12-15-99_____
