June 1, 0000
Xxxxxxxx Xxxxxxxxxx Healthcare Finance, LLC
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: PracticeXpert of Oklahoma, Inc., and PracticeXpert of Idaho, Inc.
(each, a "Debtor", and collectively, the "Debtors")
Ladies and Gentlemen:
The undersigned ("Indemnitor") is entering into this Indemnification
Agreement to induce you to extend financial accommodations to each respective
Debtor pursuant to the terms of a Loan and Security Agreement, each dated as of
June 1, 2005, between such Debtor and you (each, a "Credit Agreement", and
collectively, the "Credit Agreements"). (All obligations of each Debtor to you,
whether pursuant to such Debtor's respective Credit Agreement or otherwise are
hereinafter referred to as the "Obligations".) Any capitalized term not defined
herein shall have the meaning ascribed thereto in the current or any future
California Uniform Commercial Code.
Indemnitor hereby continuously represents and warrants, that:
A. Financial Statements. All statements and reports made or to be made to
you by each Debtor or any direct or indirect, absolute or contingent obligor on
the Obligations are and shall remain true and correct.
B. Borrowing Base Calculations. All calculations of availability of funds
of each Debtor under the respective Credit Agreement between such Debtor and you
shall be correct in all respects.
C. Accounts.
i. Each Account of each Debtor (an "Account") is genuine, valid,
subsisting and enforceable in accordance with its terms, is in all respects what
it purports to be, and represents an undisputed and bona fide indebtedness owing
to such Debtor by the Account Debtor.
ii. Each Account is accepted by the corresponding Account Debtor,
and there are no defenses, setoffs, credits, contras, or counter-claims against,
or disputes with respect to any Account, nor is the payment of any Account
conditioned or contingent upon the fulfillment of any contract, condition or
warranty, past or future, expressed or implied.
iii. All payments received by each Debtor in payment of any Account
have been deposited, delivered and used only as permitted in the Credit
Agreement with such Debtor.
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iv. Each copy of an invoice delivered to or shown to you in the
course of providing credit accommodations to each Debtor is and shall be a true
and genuine copy of the original sent to the Account Debtor named therein and
accurately reflects all terms of the transaction from which such Account arose,
including but not limited to the amount due and the payment due date (whether
stated on each such invoice, or computed based on the information set forth on
such invoice).
v. All Chattel Paper, promissory notes, drafts, trade acceptances,
or other instruments for the payment of money, and any endorsements thereon, are
true and genuine and in all respects what they purport to be, and represent the
valid and binding obligation of all parties thereto, and all amounts and dates
stated on all such items are correct.
vi. Any promissory notes, letters of credit or post-dated checks
received by each Debtor in payment of or as credit support for any Accounts will
be immediately either delivered or reported to you.
vii. All Inventory described in any invoice has been delivered to an
Account Debtor or placed for such delivery in the possession of a carrier not
owned or controlled directly or indirectly by each Debtor.
viii. All evidence of the delivery or shipment of Inventory is true
and genuine.
ix. All services to be performed by each Debtor in connection with
each Account have been performed by such Debtor.
D. Title to Collateral. Each Debtor:
i. Is the owner of all collateral heretofore or hereafter pledged by
such Debtor to you (the "Collateral"), free of all security interests, liens or
other encumbrances, except your security interest therein and any other liens
which have been disclosed in writing to you.
ii. Has the unconditional authority to grant you a security interest
in the Collateral.
iii. Will not take or fail to take any action (specifically
including but not limited to the suffering of any federal tax lien) which will
adversely affect the priority of your security interest in the Collateral.
iv. Will not transfer the Collateral, other than the selling or
leasing Inventory in the ordinary course of such Debtor's business.
Indemnitor indemnifies you from any loss, including any actual,
consequential, incidental or other damage (the amount of which shall be presumed
to be the face amount of any affected invoice, or the greater of cost or market
of any affected Inventory, where such measure of damage shall be appropriate in
your sole discretion) incurred by you as the result of, or arising out of, the
breach of any covenants set forth in Section 8 of each Credit Agreement,
warranties or representations (in whole or part) made by each Debtor or
Indemnitor to you. Indemnitor further indemnifies you against, and agrees to
reimburse you for, all costs and expenses incurred (including reasonable
attorneys' fees) in the negotiation, preparation, administration and/or
enforcement of this Indemnification Agreement.
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Indemnitor's obligations hereunder shall not be affected by, and
Indemnitor waives any and all claims and defenses arising out of, any of the
following:
o Any failure to perfect or continue the perfection of any
security interest in or other lien upon any Collateral;
o The invalidity, unenforceability, impropriety of manner of
enforcement of, or loss or change in priority of, any such
security interest or lien;
o The failure to protect, preserve or insure any Collateral;
o Any failure of the Indemnitor to receive notice of
presentment, demand, protest, default, non-payment, partial
payment, any intended disposition of any of the Collateral,
the acceptance of this Agreement or the Credit Agreements
(including the acceptance of any assignment of accounts
thereunder), any extension of credit by you to any Debtor,
and all other notices to which Indemnitor might be
otherwise entitled;
o The cessation, from any cause whatsoever, of any Debtor's
liability, including, without limitation, any failure,
negligence or omission by you in enforcing your claims against
such Debtor;
o Any release, settlement or compromise of any obligation of
any Debtor; or
o The invalidity or unenforceability of the Obligations.
This Indemnification Agreement shall remain in full force and effect until
the later to occur of termination of the Credit Agreements or repayment in full
of the Obligations.
In the event of any litigation arising hereunder, the prevailing party
shall recover its attorney's fees and expenses from the unsuccessful party. Any
action arising hereunder may, at your election, be prosecuted in any court
located in California (the "Acceptable Forums"). We agree that such forum is
convenient to us and we submit to such jurisdiction and waive any objections to
jurisdiction or venue. Should we commence an action in any other forum, we waive
any right to oppose your motion or application to transfer such proceeding to a
court in the Acceptable Forum.
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Very truly yours,
--------------------------------
Xxxxxxx X. Xxxxxxx, individually
[Notarial acknowledgement]
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