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EXHIBIT 4.9
ASSIGNMENT OF HEALTHCARE RECEIVABLES
PURCHASE AND TRANSFER AGREEMENT
AS COLLATERAL SECURITY
FOR VALUE RECEIVED, BIO-CYPHER FUNDING CORP. (the "Assignor"),
hereby grants a security interest in and assigns and transfers to DAIWA
HEALTHCO-2 LLC, as Lender (the "Assignee"), all right, title and interest of the
Assignor in and to, all benefits of the Assignor under, and all monies due or to
become due to the Assignor under or in connection with, the contract more
particularly described as follows:
That certain Healthcare Receivables Purchase and Transfer Agreement,
dated as of September 30, 1997, among Physicians Clinical Laboratory,
Inc., as Provider, and the Assignor, as Purchaser (as may be amended,
restated, modified or supplemented from time to time in accordance with
the terms thereof and hereof, the "Transfer Agreement")
as collateral security for any and all of the obligations of the Assignor
pursuant to that certain Loan and Security Agreement dated as of September 30,
1997 between the Assignor and the Assignee (as such may be amended, modified or
supplemented from time to time, the "Loan Agreement", the terms defined therein
and not otherwise defined herein being used herein as therein defined), whether
at stated maturity, by acceleration or otherwise (including, without limitation,
all interest thereon, whether accruing prior or subsequent to the commencement
of a bankruptcy or similar proceeding involving the Assignor as a debtor), and
all present and future obligations of the Assignor under this Assignment,
whether at stated maturity, by acceleration or otherwise (all of the foregoing
being herein referred to as the "Obligations").
The Assignor agrees, covenants, represents and warrants that:
1. The Assignor's right, title and interest in the Transfer
Agreement is owned by the Assignor free and clear of all claims,
mortgages, pledges, liens, encumbrances and security interests of every
nature whatsoever, except in favor of the Assignee. Without the Assignee's
prior written consent, the Assignor will not sell, transfer, assign,
pledge or grant a security interest in the Transfer Agreement to any other
person. Any such sale, transfer, assignment, mortgage, pledge or
encumbrance without the Assignee's written consent shall be void and of no
force and effect.
2. Without the Assignee's prior written consent, the Assignor will
not amend (directly or indirectly), modify, supplement, waive compliance
with, seek or grant a waiver under or assent to non-compliance with the
Transfer Agreement.
3. The Assignor specifically acknowledges and agrees that the
Assignee does not assume, and shall have no responsibility for, the
payment of any sums due or to become due under the Transfer Agreement by
the Assignor or the performance of any obligations to be performed under
or with respect to the Transfer Agreement by the Assignor, and the
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Assignor hereby agrees to indemnify and hold the Assignee harmless with
respect to any and all claims by any person relating thereto. The
Assignee, in its discretion, may file or record this Assignment.
4. If an Event of Termination shall occur and be continuing, in
addition to all other rights and remedies of the Assignee pursuant to any
agreements of the Assignor in favor of or assigned to and held by the
Assignee or pursuant to applicable law or otherwise, the Assignee or its
successor shall have all rights and benefits under the Transfer Agreement,
including, without limitation, any and all rights to indemnification,
without modifying or discharging any of the Obligations, except to the
extent payment in respect thereof is received. Upon the occurrence and
continuance of an Event of Termination, the Assignor agrees to execute any
and all documents requested by the Assignee in its sole discretion to
enable the Assignee to exercise all of the rights of the Assignor under
the Transfer Agreement. The specified remedies to which the Assignee may
resort under the terms of this Assignment are cumulative and are not
intended to be exclusive of any other remedies or means of redress to
which the Assignee may be lawfully entitled in case of any breach or
threatened breach by the Assignor of any provision hereof or of any of the
Obligations. Nothing contained in this Assignment and no act or action
taken or done by the Assignee pursuant to the powers and rights granted to
it hereunder or under any instrument collateral hereto shall be deemed to
be a waiver by the Assignee of any of its rights and remedies against the
Assignor in connection with, or in respect of, any of the Obligations. The
right of the Assignee to collect and enforce collection of the Obligations
and to enforce any security and collateral held by it may be exercised by
the Assignee prior to, simultaneously with, or subsequent to any action
taken by the Assignee hereunder.
5. Upon the payment and satisfaction in full of all of the
Obligations and the termination of any commitment by the Assignee to make
loans or other financial accommodations to or for the benefit of the
Assignor under the Loan Agreement, this Assignment shall be terminated by
the Assignee and shall be of no further force or effect, but the
affidavit, certificate, letter or statement of any officer, agent or
attorney of the Assignee showing that any part of the Obligations remains
unpaid or unsatisfied shall be and constitute prima facie evidence of the
validity, effectiveness and continuing force of this Assignment and any
person may, and is hereby authorized to, rely thereon.
6. The Assignee may take, or release, in whole or in part, other
security which it may hold for the payment of the Obligations, may release
any party primarily or secondarily liable therefor, and may apply any
other security held by it to the satisfaction, or partial satisfaction, of
such Obligations, without prejudice to any of its rights under this
Assignment.
7. This Assignment shall inure to the benefit of the Assignee and
its permitted successors, assigns and designees, and shall be binding upon
any subsequent owner of the Assignor's interest in and to the Transfer
Agreement.
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8. The Assignor covenants to execute and deliver to the Assignee,
upon demand, such additional assurances, writings or other instruments as
may be reasonably required by the Assignee to effectuate the purpose
hereof. This Assignment may not be changed orally and is to be governed by
the internal laws of the State of New York applicable to contracts
executed and to be performed in such State.
9. The Assignor hereby irrevocably designates and appoints the
Assignee as attorney-in-fact of the Assignor with power of substitution,
and with authority from and after and during the continuance of an Event
of Termination: to execute and deliver for and on behalf of the Assignor
any and all instruments, documents, agreements and other writings
necessary or advisable for the exercise on behalf of the Assignor pursuant
hereto of any rights, benefits or options created or existing under or
pursuant to the Transfer Agreement and in this regard; to endorse the name
of the Assignor on its behalf on any and all notes, acceptances, checks,
drafts, money orders, instruments or other evidences of collateral, that
may come into the Assignee's possession; to execute proofs of claim and
loss; to execute endorsements, assignments or other instruments of
conveyance and transfer; to execute releases; and, to do all other acts
and things necessary and advisable in the discretion of the Assignee to
carry out and enforce this Assignment or the Obligations. All acts done by
the Assignee under the foregoing authorization are hereby ratified and
approved, and neither the Assignee or its successors nor any designee or
agent thereof shall be liable for any acts of commission or omission
(other than acts committed or omitted through bad faith, gross negligence
or willful misconduct), for any error of judgment or for mistake of facts
or law. This power of attorney being coupled with an interest is
irrevocable while any of the Obligations shall remain unpaid and
unperformed.
10. If an Event of Termination shall occur and be continuing, the
Assignee may, in its discretion, in its name or the Assignor's, notify any
obligor under the Transfer Agreement to make payment to the Assignee of
all amounts due or to become due under the Transfer Agreement.
11. If an Event of Termination shall occur and be continuing, the
Assignee may, in its discretion, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for the Transfer Agreement, or, with respect to payments which
have become due and payable under the Transfer Agreement, make any
compromise or settlement deemed desirable by the Assignee.
12. The Assignor agrees that any copy of this Assignment signed by
the Assignor and transmitted by telefax for delivery to the Assignee shall
be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence.
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IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be executed this ______ day of ____________, 1997.
BIO-CYPHER FUNDING CORP.
By: ____________________________________
Name:
Title:
Acknowledged by:
PHYSICIANS CLINICAL LABORATORY, INC.
By: __________________________
Name:
Title:
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