EXHIBIT 10.16
(FORM OF MED SECURITY AGREEMENT)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "MED SECURITY AGREEMENT"), dated as of June
28, 2002, is made by Med Diversified, Inc., a Nevada corporation, as grantor
("MED"), in favor of Private Investment Bank Limited, Nassau, Bahamas, as
secured party ("PIBL"), for the benefit of the holders of the Amended Debentures
(as defined below).
W I T N E S S E T H:
WHEREAS, Med issued to PIBL, with PIBL acting in its name but on behalf of
certain clients of PIBL, certain subordinated debentures, dated as of December
28, 2001, in the aggregate principal amount of $70,000,000 (collectively, the
"ORIGINAL DEBENTURES");
WHEREAS, PIBL desires to enter into a certain Debenture Purchase and
Subordination Agreement with TEGCO Investments, LLC, a Delaware limited
liability company ("TEGCO"), pursuant to which, among other things, PIBL will
sell and transfer to TEGCO one Original Debenture in an original principal
amount of $12,500,000 (the "TRANSFERRED DEBENTURE");
WHEREAS, PIBL desires to enter into that certain Amendment Agreement, dated
as of even date herewith (the "AMENDMENT AGREEMENT"; each capitalized term used
in this Med Security Agreement that is not otherwise defined herein shall have
the meaning accorded to such term in the Amendment Agreement), by and among Med,
American Reimbursement, LLC, a Delaware limited liability company, PIBL, TEGCO
and the Med Subsidiaries, pursuant to which, among other things, PIBL will
surrender the instruments evidencing the Original Debentures, other than the
Transferred Debenture, to Med for cancellation, in exchange for issuance and
delivery by Med to PIBL of five (5) amended debentures (collectively, the
"AMENDED DEBENTURES"), in the aggregate principal amount of $57,500,000;
WHEREAS, in order to induce PIBL to accept and agree to the Amendment
Agreement and as consideration therefor, Med is entering into this Med Security
Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Med and PIBL hereby agree as follows:
1. OBLIGATIONS. Med hereby acknowledges that Med shall be responsible to
PIBL for the obligations of Med under the Amended Debentures. Med hereby agrees
and undertakes to repay, upon demand therefor by PIBL, all Obligations (as
hereinafter defined) outstanding from time to time. The term "Obligations", as
used herein, shall mean all outstanding amounts advanced by PIBL pursuant to the
Amended Debentures, interest accrued thereon as provided above, and all
additional amounts and other sums at any time due and owing, and required to be
paid, to PIBL or the holders of the Amended Debentures under the terms of the
Amended Debentures, and any other instrument or agreement relating thereto,
including without limitation this Med Security Agreement, the Amendment
Agreement or the other Modification Documents, whether the same are matured or
unmatured, including interest on any such Obligations, whether accruing before
or after any bankruptcy or insolvency case or proceeding involving Med or any
other party to this Med Security Agreement and also including (if interest on
any portion of such obligations ceases to accrue by operation of law by reason
of the commencement of such case or proceeding) such interest as would
1
have accrued on any such portion of such obligations if such case or proceeding
had not commenced, and further agrees to pay all expenses (including reasonable
attorneys' fees and legal expenses) paid or incurred by PIBL in endeavoring to
collect the Obligations, or any part thereof, and in enforcing this Med Security
Agreement.
The obligations of Med set forth herein constitute non-recourse obligations
of Med, enforceable against Med solely to the extent of its assets and
properties pledged hereunder.
(a) SECURITY. As security for the prompt and complete payment and
performance of the Obligations when due, Med hereby delivers, pledges and grants
a security interest to PIBL in all of Med's right, title and interest (whether
now owned and existing or hereafter arising or acquired) in and to the following
(collectively, the "MED DEBENTURE COLLATERAL"):
(i) Med's right to receive, upon the terms and conditions set
forth in the relevant Sale and Subservicing Agreement(s), $20,000,000 of funds
that are currently held in reserves, as identified on an itemized schedule
attached as SCHEDULE 3(b)(i) to the Amendment Agreement and incorporated herein
by this reference (Med's rights in such accounts, collectively, the "MED RESERVE
ACCOUNT INTERESTS"), for the benefit of NCFE and its affiliates pursuant to the
relevant Sale and Subservicing Agreement(s), with all distributions from the Med
Reserve Account Interests on account of, or in relation to, the Med Reserve
Account Interests being directed to the Med Collection Account to be used
exclusively for payments on the Amended Debentures;
(ii) all of the Med Eligible Accounts Receivable; provided,
however, that PIBL's security interest therein is subject to and (A) subordinate
to a security interest in favor of the financing source(s) for the purchase of
the Transferred Debenture and (B) subordinate to a security interest in favor of
NCFE or its affiliates as the purchaser(s) of accounts receivable in various
financing transactions, which security interest collateralizes, among other
things, a repurchase right for rejected receivables under the relevant documents
for such financing arrangements;
(iii) the Net Asset Sale Proceeds, all of which shall be
deposited in the Med Collection Account; PROVIDED, HOWEVER, that nothing in the
Amendment Agreement or in any other Modification Documents shall require Med or
any of the Med Subsidiaries to consummate any Asset Sale, or to sell any equity
securities or other assets for its own account or to cause or make any
distribution to be made in connection with any such Asset Sale; and
(iv) all other assets that are now or may in the future be
acquired or otherwise held by Med on or after the date of this Agreement
(including without limitation, all accounts, cash, chattel paper, contract
rights, copyrights, deposit accounts, documents, documents of title, electronic
chattel paper, equipment, fixtures, furnishings, franchises, general
intangibles, goods, guarantees, intellectual property, inventory, instruments,
investment property, letter of credit rights, licenses, merchandise, patents,
payment intangibles, permits, supporting obligations, trade secrets, trademarks,
tradenames, and cash or non-cash proceeds of any of the foregoing, in each case,
as applicable, as such terms are defined in or understood for the purposes of
the Uniform Commercial Code as in effect in Nevada;
2
PROVIDED that such security interest in the Med Debenture Collateral (x) shall
not attach or otherwise apply with respect to any Medicaid, Medicare, CHAMPUS
and CHAMPVA receivables and (y) shall cease to attach or otherwise apply to any
receivables that have been sold or otherwise transferred to any purchaser(s)
under financing arrangements with NCFE or its affiliates, regardless of whether
such transaction is deemed to be a sale or a secured financing.
Terms used in the foregoing definition of Collateral, that are not
otherwise defined herein, shall have the meanings provided in the Uniform
Commercial Code as in effect in the State of Nevada, or in the Amendment
Agreement.
(b) Med will not (i) change its name or identity, (ii) establish any other
location other than the address set forth beneath its signature hereto where it
expects to maintain inventory and/or equipment or (iii) change its principal
place of business or the place where its records concerning the Collateral are
kept from the address set forth beneath its signature hereto, unless Med shall
have given PIBL at least thirty (30) days' prior written notice thereof and
shall have taken all action (or made arrangements to take such action
substantially simultaneously with such change if it is impossible to take such
action in advance) necessary or reasonably requested by PIBL to amend such
financing statement or continuation statement as PIBL may deem appropriate or
otherwise to maintain perfection of PIBL's security interest in the Collateral.
(c) Med hereby irrevocably constitutes and appoints PIBL and any agent or
representative thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of Med and in the name of Med or in its own name, from time to time in
Med's discretion, for the purpose of carrying out the terms of this Med Security
Agreement, to take any and all appropriate action and to execute and deliver any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Med Security Agreement, and, without limiting
the generality of the foregoing, hereby gives PIBL the power and right, on
behalf of Med, without notice to or assent by Med to do the following: (i) to
ask, demand, collect, receive and give acquittances and receipts for any and all
moneys due and to become due under any Collateral and, in the name of Med or its
own name or otherwise, to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of moneys due
under any Collateral and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by PIBL
for the purpose of collecting any and all such moneys due under any Collateral
whenever payable; (ii) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due, and to become due
thereunder, directly to PIBL or as PIBL shall direct; (iii) to receive payment
of and receipt for any and all moneys, claims and other amounts due, and to
become due at any time, in respect of or arising out of any Collateral; and (iv)
generally to sell, transfer, pledge, make any agreement with respect or
otherwise deal with any of the Collateral as fully and completely as though PIBL
were the absolute owner thereof for all purposes, and to do, at PIBL's option
and Med's expense, at any time, or from time to time, all acts and things which
PIBL reasonably deems necessary to protect, preserve or realize upon the
Collateral and PIBL's lien therein, in order to effect the intent of this Med
Security Agreement, all as fully and effectively as Med might do. Med hereby
ratifies, to the extent permitted by law, all that said attorneys shall lawfully
do or cause to be done by virtue hereof. The power of attorney granted pursuant
to this Section 2 is a power coupled with an interest and shall be irrevocable
until the Obligations are indefeasibly paid in full.
3
(d) Med waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of, or proof of reliance by, PIBL
upon this Med Security Agreement or acceptance of this Med Security Agreement,
and the Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Med Security Agreement.
Med unconditionally waives, to the extent permitted by law: (a) all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice
of or proof of reliance by PIBL upon this Med Security Agreement or acceptance
of this Med Security Agreement (the Obligations being deemed conclusively to
have been created, contracted or incurred in reliance upon this Med Security
Agreement); (b) all notices that may be required by statute, rule of law or
otherwise, now or hereafter in effect, including without limitation, any demand,
presentment, protest, proof or notice of nonpayment; (c) any requirement of
diligence on the part of any party to this Med Security Agreement; and (d) any
requirement of PIBL to take any action whatsoever, to exhaust any remedies or to
mitigate damages.
2. ASSIGNMENT BY PIBL. PIBL may, from time to time, whether before or after
any discontinuance of this Med Security Agreement, at its sole discretion and
without notice to Med, assign or transfer any or all of its portion of the
Obligations or any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such Obligations
shall be and remain Obligations for the purposes of this Med Security Agreement,
and each and every immediate and successive assignee or transferee of any of the
Obligations or of any interest therein shall, to the extent of such assignee's
or transferee's interest in the Obligations, be entitled to the benefits of this
Med Security Agreement to the same extent as if such assignee or transferee were
PIBL, as appropriate.
3. NO WAIVER. No delay in the exercise of any right or remedy shall operate
as a waiver thereof, and no single or partial exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise of any other
right or remedy; nor shall any modification or waiver of any of the provisions
of this Med Security Agreement be binding upon PIBL except as expressly set
forth in a writing duly signed and delivered on its behalf. No action permitted
hereunder shall in any way affect or impair PIBL's rights or Med's obligations
under this Med Security Agreement. For the purposes of this Med Security
Agreement, Obligations shall include all of the obligations described in the
definition thereof, notwithstanding any right or power of Med or anyone else to
assert any claim or defense as to the invalidity or unenforceability of any such
obligation, and no such claim or defense shall affect or impair the obligations
of Med hereunder. Med's obligations under this Med Security Agreement shall be
absolute and unconditional irrespective of any circumstance whatsoever that
might constitute a legal or equitable discharge or defense of Med. Med hereby
acknowledges that there are no conditions to the effectiveness of this Med
Security Agreement.
4. REPRESENTATIONS AND WARRANTIES. Med hereby represents and warrants to
PIBL that:
(a) Med has all requisite power and authority to execute, deliver and
perform its obligations under this Med Security Agreement and such other
instruments or agreements relating thereto to which it is or may become a party;
(b) Med has duly executed and delivered this Med Security Agreement,
and this Med Security Agreement is the legal, valid and binding obligation of
Med, enforceable in accordance with its terms;
4
(c) the execution, delivery and performance of this Med Security
Agreement by Med does not conflict with, or constitute a violation under, any
law, regulation order, agreement or instrument to which Med is a party or by
which Med or its properties is bound.
5. EVENTS OF DEFAULT. An "Event of Default" shall exist under this Med
Security Agreement if at any time: (a) any representation or warranty of made by
Med under this Med Security Agreement shall have been false or misleading in any
material respect when made; (b) Med shall fail to make any payment hereunder
upon demand therefor; (c) any "Event of Default" under any of the Amended
Debentures, as defined in the Amendment Agreement shall occur; or (d) Med shall
fail to observe and perform in any material respect any covenant or agreement
made by Med in this Security Agreement.
6. REMEDIES.
(a) In case an Event of Default shall occur and be continuing, the
Obligations shall become immediately due and payable and PIBL shall be entitled
to exercise all of PIBL's rights, powers and remedies (whether pursuant to
applicable law or this Med Security Agreement) with respect thereto and for the
protection and enforcement of PIBL's rights in the Collateral, including,
without limitation, the following:
(i) the right to receive all monies or other property which,
but for the occurrence of the Event of Default, Med would have been entitled to
retain;
(ii) to transfer registration of the Collateral into PIBL's
name;
(iii) to sell, assign or otherwise dispose of the Collateral, in
the entirety or in separate lots, and generally in such manner, at such time or
times, at such place or places and on such terms as PIBL, in compliance with any
mandatory requirements of applicable law, may determine to be commercially
reasonable, and, to the extent permitted by any such requirement of law, PIBL
may bid (which may be a credit bid) for and become the purchaser of the
Collateral (or any portion thereof), offered for sale in accordance with this
section without accountability to Med, except pursuant to subsection (b)(iii)
below.
(b) The proceeds of any disposition of any Collateral obtained
pursuant to this section shall be applied as follows:
(i) first, to the payment of any and all expenses and fees
(including reasonable attorney's fees) incurred by PIBL in foreclosing on and
disposing of the Collateral;
(ii) next, any surplus then remaining to the payment of the
Obligations (whether matured or unmatured) in such order as PIBL may determine
in its sole discretion; and
(iii) thereafter, if no other Obligations are outstanding,
any surplus then remaining shall be paid to Med or to such other person legally
entitled to same; it being understood that Med will remain liable to PIBL to the
extent of any deficiency between the amount of the Obligations and the aggregate
of all amount realized from Collateral.
5
7. COSTS, ETC. Med agrees to pay all reasonable costs of PIBL, including,
without limitation, reasonable attorneys' fees, incurred in connection with the
enforcement of any of its rights and remedies hereunder.
8. CUMULATIVE RIGHTS. PIBL's rights, powers and remedies under this Med
Security Agreement shall be in addition to all rights, powers and remedies given
to PIBL under law, under the Amendment Agreement or otherwise, all of which
rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently.
9. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Med Security Agreement shall be
binding upon Med and upon Med's successors; and all references herein to Med
shall be deemed to include any successor or successors, whether immediate or
remote, to such party. Med shall have no right to assign its obligations
hereunder. This Med Security Agreement shall inure to the benefit of PIBL and
its successors, assigns and transferees.
(b) SEVERABILITY. Wherever possible each provision of this Med
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable laws and regulations, but if any provision of this Med
Security Agreement shall be prohibited by or invalid thereunder, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Med Security Agreement.
(c) SERVICE OF PROCESS. Med agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
it at its address set forth below or at such other address of which PIBL shall
have been notified in writing, and agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law.
(d) NOTICES. All notices, demands, declarations, consents, directions,
approvals, instructions, requests and other communications required or permitted
by this Med Security Agreement shall be in writing and shall be deemed to have
been duly given when addressed to the appropriate party and deposited in the
U.S. Postal Service via registered mail. The initial address for notices to Med
is set forth beneath its signature below.
(e) GOVERNING LAW. THIS MED SECURITY AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEVADA.
(f) WAIVER OF JURY TRIAL. MED, BY ITS EXECUTION AND DELIVERY OF THIS
MED SECURITY AGREEMENT, AND PIBL, BY ACCEPTING THIS MED SECURITY AGREEMENT, EACH
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS MED SECURITY AGREEMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP
EXISTING IN
6
CONNECTION WITH THIS MED SECURITY AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
COUNTERPARTS. This Med Security Agreement may be executed in counterparts
(including counterparts delivered by facsimile), each of which shall be deemed
an original, but all of which, taken together, shall constitute one and the same
document.
[Remainder of page intentionally left blank; signature page follows.]
7
IN WITNESS WHEREOF, Med and PIBL have caused this Med Security Agreement to
be executed and delivered as of the date first above written.
"Med" MED DIVERSIFIED, INC.,
a Nevada corporation
By:
-----------------------------
Name:
---------------------
Title:
---------------------
Address:
---------------------
-----------------------------
"PIBL" PRIVATE INVESTMENT BANK LIMITED,
Nassau, Bahamas
By:
-----------------------------
Name:
---------------------
Title:
---------------------
Address:
---------------------
-----------------------------
[SIGNATURE PAGE TO MED SECURITY AGREEMENT]
8
