CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of December 18, 1996, between
COMMUNITY MEDICAL TRANSPORT, INC., a Delaware corporation, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower"), and ATLANTIC BANK OF NEW YORK,
a New York banking corporation, with a principal office located at 960 Avenue of
the Americas, New York, New York, (hereinafter referred to as the "Bank"), for
itself and as agent (in which latter role it may be referred to as "Bank" or
"Agent") for Fleet Bank, N.A., a national banking association having an office
for the transaction of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx
Xxxx (hereinafter referred to as "Fleet") and Israel Discount Bank of New York,
a New York banking corporation with an office for the transaction of business
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as
"IDB", and the Bank, Fleet and IDB, individually referred to as a "Lender" and
collectively referred to as the "Lenders").
ARTICLE I
AMOUNT AND TERMS OF CREDIT
1.1 LOANS, CLOSING DATE. Subject to and upon the terms and
conditions herein set forth, including the definitions contained in Article XII,
the Lenders shall lend to the Company and the Company shall borrow from the
Lenders the aggregate sum of $10,000,000.00 (the "Credit Amount"). Such
borrowing is being made simultaneously with the execution of this Agreement (the
"Closing Date").
1.2 REVOLVING CREDIT NOTE (FACILITY A). The Lenders shall
establish a Revolving Line of Credit in favor of the Company, pursuant to which
the Lenders will, in accordance with the terms of three Revolving Credit Notes
substantially in the form annexed hereto as Exhibit "A", lend and re-lend to the
Borrower amounts which shall not exceed at any one time the lesser of (i) SIX
MILLION FIVE HUNDRED THOUSAND DOLLARS ($6,500,000) or (ii) the Borrowing Base.
The Revolving Credit Notes shall mature on December 18, 1998.
1.3 TERM LOAN NOTES (FACILITIES B & C). $3,500,000 of the
total borrowing will be evidenced by six TERM LOAN NOTES substantially in the
forms annexed hereto as Exhibits "B" and "C". The Note evidencing Facility B
will be in the principal sum of $2,000,000 and will mature on December 18, 1999.
The Notes evidencing Facility C will be in the principal sum of $1,500,000 and
will mature on December 18, 2000.
1.4 CONTRIBUTION AND ALLOCATION OF LENDERS' FUNDS.
The Credit Amount shall be apportioned among the Lenders as
follows: 60%, or $6,000,000 will be contributed by the Bank; 20%, or $2,000,000,
shall be contributed by Fleet, and 20%, or $2,000,000 shall be contributed by
IDB. The respective contributions of each Lender will be divided pro rata among
Facilities A, B & C, expressed as follows:
Bank Fleet IDB Total Facility
Facility A $3,900,000 $1,300,000 $1,300,000 $ 6,500,000
Facility B $1,200,000 $ 400,000 $ 400,000 $ 2,000,000
Facility C $ 900,000 $ 300,000 $ 300,000 $ 1,500,000
---------- ---------- ---------- -----------
Total per Grand Total
Lender $6,000,000 $2,000,000 $2,000,000 $10,000,000
1.5 INTEREST. The Notes shall bear interest from the date
thereof on the unpaid principal balance at each Lender's respective prime or
Benchmark Rate, as the case may be, as announced to be in effect from time to
time, plus one-half (0.5%) per cent, but in no event to exceed the maximum rate
permitted by law. Interest shall be payable monthly on the first day of each
month commencing on the first day of January, 1997, and continuing monthly
thereafter on the same day until the entire unpaid balance is repaid in full.
Interest shall be calculated on the basis of a 360-day year and actual days. In
the event the Bank shall elect to accelerate any or all Notes due to any Event
of Default as defined in Article IX hereto or other occurrence specified in this
Agreement or the accompanying Notes, the rate of interest accruing hereunder
shall be increased by three (3%) per cent per annum provided, however, that in
no event shall the rate of interest accruing hereunder exceed the maximum rate
allowable by law.
1.6 FEES. The following fees will apply to the credits
established herein:
(a) Agent fee - $25,000, payable to the Atlantic Bank of
New York on or before January 15, 1997.
(b) Up-front fee 3/8 of 1% of the Credit Amount, or $37,500.
The fee shall be allocated to the Lenders in proportion
to their respective contributions to the Credit Amount.
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(c) Unused fee - 1/4 of 1% of average daily unused portion
of Facility A, payable quarterly, and allocated to the
Lenders in proportion to their respective contributions
to Facility A.
1.7 MECHANISM FOR BORROWING. Borrower may request advances on
one business day's notice, only in writing sent via fax, hand delivery or mail
to the Bank. Upon receipt, the Bank will notify Fleet and IDB as to the amount
required from each of them. Fleet and IDB will, upon receipt of such notice from
the Bank, immediately wire transfer to the Bank their pro rata share of the
requested advance.
ARTICLE II
PREPAYMENTS
2.1 OPTIONAL PREPAYMENTS. Upon not less than five days prior
written notice to the Bank, the Company shall have the right to prepay any or
all of the Notes in whole or in part without penalty or premium. Unless
otherwise specified or agreed, all prepayments shall be applied to Facilities B
and C in inverse order of maturity. The Bank shall deliver to Lenders copies of
all such notices.
ARTICLE III
SECURITY AND GUARANTEE
As security for and to guarantee the full and timely payment
of the principal of and interest on the Notes and all other Indebtedness or
liabilities of the Company to the Lenders, whether now existing or hereafter
arising:
3.1 GUARANTEES. The Company shall cause to be duly executed
and delivered to the Bank a guarantee of the Company's Indebtedness to the
Lenders by Xxxx X. Xxxxxx, Community Ambulette Service Inc., First Help
Ambulance and Ambulette Inc., Century Ambulance and Ambulette, Inc., Elite
Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette Inc. and all
future subsidiaries of the Company (the "Guarantors"). All guarantees shall be
unlimited as to time or amount except for the guarantee of Xxxx X. Xxxxxx, which
shall be limited to $1,000,000.
3.2 SECURITY INTEREST. The Company and the Guarantors shall
duly execute and deliver to the Bank a security agreement, in form and substance
satisfactory to the Lenders and their counsel, evidencing the granting by the
Company of a security interest in and to the personal property set forth in the
schedule marked Exhibit "D" annexed hereto.
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3.3 ACCOUNT BALANCE. The Company and each Guarantor mentioned
in Section 3.1 hereby grant to the Lenders a security interest in and to any and
all account balances maintained with any of the Lenders to the extent of the
entire interest therein of the Company and/or Guarantor.
3.4 FILING AND RECORDING. The Company shall, at its cost and
expense, cause all instruments and documents given as security pursuant to this
Agreement to be duly recorded and/or filed in all places necessary, in the
opinion of the Lenders, to perfect and protect the lien interest of the Lenders
in the property covered thereby.
ARTICLE IV
CONDITIONS PRECEDENT
The effectiveness of this Agreement and the obligation of the
Lenders to consummate any of the transactions contemplated hereby shall be
subject to the satisfaction of the following conditions precedent at or prior to
the time of the closing date:
4.1 OPINION OF COUNSEL. The Bank shall have received from
counsel for the Company a favorable opinion addressed to the Lenders and dated
the closing date, in form and substance satisfactory to the Lenders.
4.2 SECURITY AND GUARANTEE INSTRUMENTS. The Bank shall have
received all the instruments, documents and property then required to be
delivered pursuant to Article III or pursuant to the instruments and documents
referred to in Article III, and the same shall be in full force and effect.
4.3 NOTES AND FEES. Each Lender shall receive three Notes in
accordance with Sections 1.2 and 1.3, and all fees, except that specified in
Section 1.6(a), shall be paid.
4.4 CORRECTNESS OF WARRANTIES. All representations and
warranties contained herein or otherwise shall be true and correct in all
material respects.
4.5 NO EVENT OF DEFAULT. There shall exist no event of
default, as defined in Article IX, and no condition, event or act which, with
notice or lapse or time, or both, would constitute an event of default.
4.6 OFFICERS' CERTIFICATE. There shall be delivered to each
Lender a certificate dated the closing date, signed by the chief executive
officer or chief
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financial officer of the Company, certifying in such detail as the Bank may
request, to the fulfillment of the conditions specified in Sections 4.4 and 4.5
and, with respect to such other Sections as may be requested by the Bank.
4.7 PROCEEDINGS, RECEIPT OF DOCUMENTS. All corporate and
legal proceedings and all documents and instruments in connection with the
borrowing and pursuant to Articles III and IV shall be satisfactory in form and
substance to the Bank and Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx, LLP, counsel to
the Bank. The Bank and its counsel shall have received all information and
copies of all documents, including records of corporate proceedings, which the
Bank or its counsel may have reasonably requested in connection therewith, such
documents where requested by the Bank or its counsel to be certified by
appropriate corporate or governmental authorities.
4.8 COLLATERAL AUDIT. There shall be delivered to the Lenders
prior to closing the collateral audit referred to in Section 7.7, which audit
shall be satisfactory for the Lenders in their sole discretion.
4.9 There shall be delivered to the Bank prior to the closing
satisfactory evidence of the insurance required by Section 7.3(A).
4.10 There shall be repaid to Fleet and Bank all amounts then
due and owing on its existing loan to the Borrower.
ARTICLE V
USE OF PROCEEDS
The Company agrees that the proceeds of the borrowing
hereunder shall be used solely as follows:
Facility A ($6,500,000) - Refinance existing bank and acquisition
debt, working capital and general
corporate purposes
Facility B ($2,000,000) - Finance existing equipment and
refinance existing bank debt
Facility C ($1,500,000) - Finance acquisition of additional
ambulances and ambulettes
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ARTICLE VI
FINANCIAL COVENANTS
The Company covenants and agrees that until the Notes,
together with interest and all its other Indebtedness to the Lenders under this
Agreement are paid in full, unless specifically waived by the Lenders in
writing:
6.1 Quick Assets will at all times constitute no less than 55%
of Borrower's net worth, as defined in Section 6.2.
6.2 The Borrower's and Guarantors' consolidated net worth
(defined for the purpose of Article 6 only as the book value of assets less all
liabilities) will be at least $12,500,000 until December 31, 1996. For the year
beginning January 1, 1997, net worth will be at least $13,000,000, and the
minimum net worth will increase by $500,000. The net proceeds of any warrants
exercised for each year that any portion of the Facility is outstanding shall be
included in the net worth calculation for that year.
6.3 The Borrower's and Guarantors' total debt will not exceed
150% of its net worth at any given time.
6.4 Xxxx Xxxxxx will remain as Chief Executive Officer.
6.5 At all times, the ratio of EBITDA to all interest expense,
will be at least 2.5 to 1 and the ratio at EBITDA to all debt service (principal
and interest) will be at least 1.25 to 1, both measured on a rolling four
quarters basis.
6.6 Lenders' approval will be required for all acquisitions
involving cash payments of more than $500,000.
6.7 No cash dividends will be issued by the Borrower in
respect of any common stock.
6.8 Testing of the ratios required by Sections 6.1, 6.2, 6.3
and 6.5 will occur no less than four times per year, as of March 31, June 30,
September 30 and December 31.
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ARTICLE VII
OTHER AFFIRMATIVE COVENANTS
The Company covenants and agrees that until the Notes,
together with interest and all its other Indebtedness to the Lenders under this
Agreement are paid in full, unless specifically waived by the Bank in writing:
7.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall furnish to the Lenders:
(A) As soon as practicable and in any event within one
hundred twenty days after the close of each fiscal year of the Company, a copy
of the Form 10K as filed with the Securities and Exchange Commission, together
with a balance sheet of the Company and the related statements of operations,
retained earnings and cash flows for the year then ended, and management letter
on a consolidated and consolidating basis, all in reasonable detail and audited
by Xxxxxxx X. Xxxxxx & Co., the independent certified public accountants
currently retained by the Company or such other certified public accountants
selected by the Company and reasonably satisfactory to the Bank; and
concurrently with such financial statements, a written statement signed by such
independent accountants to the effect that, in making the examination necessary
for their certification of such financial statements, they have not obtained any
knowledge of the existence of any event of default or other act, condition or
event which, with the giving of notice or lapse of time, or both, as specified
in Article IX, would constitute an event of default, or, if such independent
accountants shall have obtained from such examination any such knowledge, they
shall disclose in such written statement the event of default or other act,
condition or event and the nature thereof. In addition, the Company shall
furnish a copy of the Form 10Q for each fiscal quarter filed with the Securities
and Exchange Commission, within sixty days subsequent to the end of the
respective fiscal quarter. The Company shall, in addition, furnish monthly,
within 15 days of the first of the month, accounts receivable summaries and
aging schedules in form and substance acceptable to the Lenders.
(B) Promptly upon receipt thereof, copies of all
financial reports, if any, submitted to the Company by its auditors in
connection with each annual or interim audit of its books by such auditors;
(C) Promptly upon the commencement thereof, written
notice of any litigation, including arbitrations, and of any proceedings before
any governmental agency (including but not limited to Medicare or Medicaid
related organizations or fiscal intermediaries) which would, if successful,
materially adversely affect the Company, or where the amount involved exceeds,
in the aggregate, $10,000.00, and is not
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acknowledged by the insurance carrier to be covered in full by insurance
required to be maintained under Section 6.3;
(D) Furnish, before the 15th of each month, a Borrowing
Base Certificate together with supporting summary accounts receivable schedules
on the form annexed as Exhibit "E";
(E) Furnish, within one hundred twenty days after the
close each calendar year, a personal financial statement of Xxxx X. Xxxxxx which
reflects his financial condition as of a date no earlier than November 30 of
such preceding calendar year; and
(F) With reasonable promptness, such other information
respecting the business, operations and financial condition of the Company, as
any Lender may, from time to time, request. Each Lender is hereby authorized to
deliver a copy of any financial statement or any other information relating to
the business, operations or financial condition of the Company which may be
furnished to it or come to its attention pursuant to this Agreement or
otherwise, to any regulatory body or agency having jurisdiction over such Lender
or to any person which shall, or shall have any right or obligation to, succeed
to all or any part of such Lender's interest in the Note, this Agreement and any
security herein provided for or otherwise securing the Note.
7.2 TAXES AND CLAIMS. The Company shall duly pay and discharge
(a) all taxes, assessments and governmental charges upon or against the Company
or its subsidiaries or their respective properties or assets prior to the date
on which penalties attach thereto, unless and to the extent that such taxes are
being diligently contested in good faith and by appropriate proceedings and
appropriate reserves therefor have been established, and (b) all lawful claims,
whether for tort damages, labor, materials, supplies, services, repairs, wages
or otherwise, which would, if unpaid, become a lien or charge upon the
properties or assets of the Company or its subsidiaries in excess of $10,000.00,
unless and to the extent only that the same are being diligently contested in
good faith and by appropriate proceedings and appropriate reserves therefor have
been established.
7.3 INSURANCE.
(A) The Company shall (1) keep all of its properties and
those of the Guarantors adequately insured at all times with responsible
insurance carriers against loss or damage by fire and other hazards (2) maintain
adequate insurance at all times with responsible insurance carriers against
liability on account of damage to persons and property and under all applicable
workmen's compensation laws; (3) insure the life of Xxxx X. Xxxxxx in an amount
not less than $1,000,000 and assign
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such policy to the Lenders as additional security for the obligation established
by this Agreement; and (4) maintain adequate insurance covering such other risks
as the Lenders may reasonably request. For the purposes of this Section 7.3 (A),
insurance shall be deemed adequate if the same is not less extensive in coverage
and amount than is customarily maintained by other persons engaged in the same
or similar business similarly situated.
(B) The Company shall, from time to time, upon request of
any Lender, promptly furnish or cause to be furnished to such Lender, evidence,
in form and substance satisfactory to it, of the maintenance of all insurance
required by this Section 7.3 to be maintained, including, but not limited to,
such originals or copies as such Lender may request of policies, certificates of
insurance, riders and endorsements relating to such insurance and proof of
premium payments.
(C) The Company shall, on all insurance policies name the
Agent as loss payee or mortgagee or secured party or lienholder, or other
suitable designation depending upon the nature of the property and the Lenders'
security interest therein. All such policies shall contain provisions that the
same may not be cancelled or terminated without first giving at least ten days
written notice to the Lenders.
7.4 BOOKS AND RESERVES. The Company shall:
(A) Maintain at all times true and complete books,
records and accounts in which true and correct entries shall be made of its
transactions in accordance with generally accepted accounting principles
consistently applied and consistent with those applied in the preparation of the
financial statements referred to in Section 10.7; and
(B) By means of appropriate entries, reflect in its
accounts and in all financial statements furnished pursuant to Section 7.1
proper liabilities for all taxes and proper reserves for depreciation, renewals
and replacements, obsolescence and amortization of its properties and bad debts,
all in accordance with generally accepted accounting principles consistently
applied, as above described.
7.5 PROPERTIES IN GOOD CONDITION. The Company shall keep its
properties in good repair, working order and condition and shall, from time to
time, make all necessary and proper repairs, renewals, replacements, additions
and improvements thereto so that the business carried on may be properly and
advantageously conducted at all times in accordance with prudent business
management.
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7.6 INSPECTION BY LENDERS. Upon reasonable notice, the
Company shall allow any representative of any Lender during normal business
hours to visit and inspect any of the properties of the Company, to examine the
books of account and other records and files of the Company, to make copies
thereof and to discuss the affairs, business, finances and accounts of the
Company with the officers and employees, all at such reasonable times and as
often as such Lender may reasonably request. Furthermore, the Company shall,
within ninety (90) days of the date on which the closing of this transaction
occurs, cause to be delivered to Lenders, or allow Lenders to perform, at
Lenders' option, an appraisal of all motor vehicles owned by the Company and its
subsidiaries, such appraisal to be performed by an appraiser satisfactory to the
Lenders.
7.7 COLLATERAL AUDITS. In addition to any other inspection,
it is specifically agreed that the Bank may perform a collateral audit prior to
closing and thereafter annually and at such time as the Bank may reasonably
request, at the Company's expense. Such audit shall be performed by an
independent entity acceptable to the holder of 66 2/3% of the Credit Amount.
7.8 BUSINESS OF COMPANY. The Company shall continue to
conduct its business and activities as presently actively engaged in.
7.9 PAY INDEBTEDNESS TO LENDERS AND PERFORM OTHER COVENANTS.
The Company shall (a) make full and timely payment of the principal of and
interest on the Notes and all other Indebtedness of the Company to the Lenders,
whether now existing or hereafter arising (b) duly comply with all the terms and
covenants contained in each of the instruments and documents given to the Lender
in connection with or pursuant to this Agreement, all at the times and places
and in the manner set forth therein; and (c) at all times maintain the liens and
security interests provided for under or pursuant to this Agreement as valid and
perfected liens and security interests on the property intended to be covered
thereby.
7.10 FURTHER ASSURANCES. The Company shall, at its cost and
expense, upon request of any Lender, duly execute and deliver to the Lenders
such further instruments and do and cause to be done such further acts as may be
necessary or proper, in the reasonable opinion of the Lenders, to carry out more
effectually the provisions and purposes of this Agreement.
ARTICLE VIII
NEGATIVE COVENANTS
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The Company covenants and agrees that until the Notes,
together with interest and all its other Indebtedness to the Lenders under this
or any other Agreement, is paid in full, the Company shall not, without the
prior written consent of the Lenders in accordance with Section 11.4:
8.1 SUBSIDIARIES. Cause to be created or acquired subsidiary
or subsidiaries without the express written consent of the Bank, unless such
subsidiaries are 100% owned by the Company, consolidated in the Company's
financial statements, and execute a guarantee of the obligations established in
this Credit Agreement.
8.2 MORTGAGE, LIENS, ETC. Create, incur, assume or suffer to
exist any mortgage pledge, security interest, encumbrance, lien or charge of any
kind upon or defect in title to or restriction which has a material adverse
effect upon the use of any of the Company's property or assets of any character
considered as a whole, (including but not limited to inventory), whether owned
at the date hereof or hereafter acquired, or hold or acquire any property or
assets of any character under conditional sales, finance lease or other title
retention agreements, except:
(A) Mortgages, liens, pledges and security interests in
favor of the Lenders; or created in connection with an acquisition.
(B) (1) Liens arising out of judgments or awards in
respect of which the Company shall in good faith be prosecuting an appeal or
proceeding for review and in respect of which the Company shall have secured a
subsisting stay of execution pending such appeal or proceeding for review,
provided the Company shall have set aside on its books adequate reserves with
respect to judgments or awards in excess of $10,000.00; (2) liens for taxes,
assessments or governmental charges or levies provided payment thereof shall not
at the time be required in accordance with the provisions of Section 6.2; (3)
deposits, liens or pledges to secure payment of workmen's compensation,
unemployment insurance, pensions or other social security obligations, public or
statutory obligations, surety, stay or appeal bonds, or other similar
obligations arising in the ordinary course of business; (4) mechanics',
workmen's, repairmen's, warehousemen's, vendors' or carriers' liens, or other
similar liens arising in the ordinary course of business and securing sums which
are not past due, or deposits or pledges to obtain the release of any such
liens; (5) statutory landlord's liens under leases to which the Company is a
party; and (6) zoning restrictions, easements, licenses, restrictions on the use
of real property or minor irregularities in title thereto, which do not
materially impair the use of such property in the operation of the business of
the Company or the value of such property in the operation of the business of
the Company or the value of such property for the purpose of such business;
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8.3 INDEBTEDNESS. Create, incur, assume or suffer to exist,
contingently or otherwise, any Indebtedness for monies borrowed or secured debt,
except:
(A) Indebtedness of the Company to the Lenders; or
created in connection with an acquisition.
(B) All Indebtedness of the Company existing as of the
date hereof:
(C) Indebtedness (not overdue) secured by mortgages,
liens or security interests permitted by Section 8.2, if any;
(D) Unsecured Subordinated Debt;
8.4 MERGER, SALE OF ASSETS, DISSOLUTION, ETC. Enter into any
transaction of merger or consolidation or transfer, sell, assign, lease or
otherwise dispose of all or a substantial part of its properties or assets or
its Notes or accounts receivable or any stock (other than directors' qualifying
shares) or Indebtedness or any assets or properties necessary or desirable for
the proper conduct of its business, or change the nature of its business, or
wind up, liquidate or dissolve, or agree to do any of the foregoing;
8.5 FIXED ASSETS. Acquire fixed assets (other than
acquisition assets and assets acquired through Facility "C") in excess of
$250,000 in any fiscal year, such limits to be non-cumulative. Fixed assets
shall include motor vehicles.
8.6 SALE OF ASSETS. Conduct a bulk sale of any of its fixed
assets (including motor vehicles) in excess of $100,000.00 in any fiscal year.
Any assets sold by the Company for a price in excess of $25,000 per year shall
be applied to the repayment of the unpaid principal balance.
8.7 AFFILIATED DEBT. Repay, directly or indirectly, any loan
or advance made by an officer, shareholder or director of the Company to the
Company.
8.8 DIVIDEND. Pay, directly or indirectly, dividends or
distributions to holders of common stock of the Company.
8.9 ACQUISITIONS. Acquire any business, directly or
indirectly, that is (1) outside of the medical transportation field or (2) where
the acquisition requires a cash payment of $500,000 or more.
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8.10 STOCK PURCHASE. Repurchase any of its issued and
outstanding capital stock, provided, however, that the agreement currently in
existence with the holders of Series B preferred shares may be honored, provided
that no violation of Article VI occurs as a result.
8.11 GUARANTEES. The Company or any Guarantor of the Company
shall guarantee the indebtedness of any third party.
8.12 OFFICERS' LOANS. Make any loans to officers of the
Company or third party, except that loans in the normal course of business or
which do not exceed $25,000 in the aggregate, shall be permitted and provided
further, that officers may exercise stock options on a credit basis.
ARTICLE IX
EVENTS OF DEFAULT
9.1 DEFAULTS. "Event of Default" shall mean the occurrence
of any of the events specified in the definition of "Default" set forth in the
following sentence and, except for the default specified in Section 9.1(A), as
to which no cure period shall be applicable, the continuance of such event
unremedied for a period of five (5) Business Days after the Bank shall have
given written notice to the Borrowers. "Default" shall mean any of the following
events:
(A) The Borrower shall fail to make any payment of
principal of, or interest on, or any other amount owing in respect of the Notes
when due and payable and declared due and payable; or
(B) The Borrower shall fail to make any payment to the
Bank as required under this Agreement or any other document executed as part of
this loan transaction (hereinafter, "Loan Document(s)"); or
(C) Any Person shall breach any material terms,
provisions or condition of this Agreement or of any other Loan Document; or
(D) Any material representation, covenant or warranty
made or deemed made by any Person in this Agreement or any other Loan Document,
or which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement or
any other Loan Document shall prove to have been false in any material respect
on or as of the date made or deemed made; or
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(E) Any Person shall breach in the material observance
or performance of any warranty, covenant or representation contained in this
Agreement or any other Loan Document; or
(F) Any Person's failure to permit inspection of
(i) any books or records of the Borrower under the provisions of this Agreement
or any other Loan Document or (ii) the business, assets and operations of the
Borrower as provided under this Agreement; or
(G) The Security Agreement or any document executed in
connection therewith or pursuant thereto shall for any reason cease to be in
full force and effect; or
(H) A Guarantor delivers to the Bank a notice
purporting to terminate or disclaim any liabilities or Obligations under the
Guarantee or Security Agreement; or
(I) The Guarantees or Security Agreement shall for any
reason cease to be in full force and effect; or
(J) The Company or any Guarantor shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against the Company or any Guarantor any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (b) remains
undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii)
there shall be commenced against the Company or any Guarantor any case,
proceeding or other action seeking issuance of warrant of attachment, execution,
restraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall have not
been vacated, discharged, or stayed or bonded pending appeal within thirty (30)
days from the entry thereof; or (iv) The Company or any Guarantor shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) of this
paragraph (r) of this subsection 8.1; or (v) the Company or any Guarantor shall
generally not, or shall be unable to, or shall admit in writing its inability to
pay its debts as they become due; or
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(K) the rendition by any court of a final judgment in
an amount in excess of $50,000 against the Company or any Guarantor which shall
not be satisfactorily stayed, discharged, vacated or set aside within thirty
(30) days of the making thereof; of the attachment of any property of the
Company or any Guarantor which has not been released or provided for to the
reasonable satisfaction of the Lenders within thirty (30) days after the making
thereof; or
(L) the institution of any litigation, suit, or
proceeding or filing of any motion in a litigation, suit, action or proceeding
to set aside or to compel the Lenders to repay or turnover to a trustee,
receiver, custodian, debtor-in-possession or any other Person or entity under
any bankruptcy or insolvency law, state or federal law, common law or equitable
doctrine, monies paid by the Company or Guarantor to the Lenders; or
(M) any litigation, action, suit or proceeding is
instituted, joined, answered, or participated in by the Company and/or a
Guarantor to obtain a ruling, determination or judgment that any terms and
conditions of this Agreement or any other Loan Document or any security
interest, lien, assignment or pledge under this Agreement or any other Loan
document is unenforceable, invalid, unperfected or void in any respect; or
(N) the Lenders shall have reasonably determined in
their sole and absolute discretion that one or more conditions exist or events
have occurred which have resulted or may result in a material adverse effect on
the business operations, properties or assets or in the condition, financial or
otherwise of the Company or any of the Guarantors.
9.2 REMEDIES. Upon any occurrence of an Event of Default, and
in accordance with the provisions of Article XI any or all of the following
actions may be taken: (i) the Lenders may, at their option, declare the Notes
hereunder (with accrued interest thereon) and all other amounts or charges owing
under this Agreement and any other Loan Document to be immediately and fully due
and payable and the same, and all interest accrued thereon, shall forthwith
become due and payable without presentment, demand, protest or notice of any
kind, all of which are hereby waived, anything contained herein or in any
instrument evidencing the Loans to the contrary notwithstanding; (ii) the
Lenders may, at their option, exercise all rights and remedies under this
Agreement, any other Loan Document or any Security Document or applicable law;
(iii) the Lenders may, at their option, without notice or demand, collect,
receive, appropriate and realize upon the Collateral or any part thereof of
sell, lease, assign or otherwise dispose of the Collateral or any part thereof;
(iv) each Lender may immediately (and without notice) hold, apply, freeze or
offset, funds on deposit with such Lender in any account, fund or certificate
maintained by the Borrower or any
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Guarantor; and (vi) the Lenders may obtain a receiver or other trustee or
fiduciary to conduct and operate the business of the Company.
9.3 AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. The Company
hereby irrevocably constitutes and appoints the Agent and any officer or agent
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 the Company and the name of the Company, or in its own name, from time
to time in the Agent's discretion upon the occurrence and during the continuance
of an Event of Default, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement or to protect the rights of the
Lenders under this Agreement or any other Loan Document or in furtherance of the
exercise of any remedies provided under this Agreement or any other Loan
Document. All powers of attorney granted under this Agreement are coupled with
an interest and are irrevocable.
9.4 (A) The Company and Guarantors appoint the firm of Xxxxxx
Xxxxxx, Xxxxxx & Xxxx, a professional corporation, New York, New York , or any
successor in interest thereof, or any other agent which the Borrowers and
Guarantor may designate in writing in the manner provided in subsection , as
their agent to receive service of any process which may be required (the
"Borrower's Agent"). (B) The Company and Guarantors represent and warrant that
the Borrower's Agent has agreed to accept such appointment. (C) Process may be
served in any suit, action or proceeding by mailing a copy thereof via overnight
express mail or hand delivery to the Borrower's Agent, and the Company and
Guarantors agree that such service shall be deemed in every respect effective
service of process upon the Company and/or the Guarantors, as the case may be.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement
and to make the loan as herein provided for, the Company and Guarantors make the
following representations and warranties which shall survive the execution and
delivery of this Agreement and the Note and shall apply irrespective of any
inspection or examination at any time made by or on behalf of the Lenders.
10.1 CORPORATE STATUS. The Company is a duly organized
corporation in good standing under the laws of the state of its incorporation,
with perpetual corporate existence and has the corporate power and authority to
own its properties and to transact the business in which it is engaged or
presently proposes to engage. The Company is duly qualified as a foreign
corporation and in good standing
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in all states where the nature of its business or the ownership or use of
property requires such qualification.
10.2 CORPORATE POWER AND AUTHORITY. The Company and each other
corporation, if any, executing any of the documents delivered or to be delivered
pursuant to Article III has the corporate power to borrow and to execute,
deliver and carry out the terms and provisions of this Agreement, the Notes and
all instruments and documents delivered by it pursuant to this Agreement, and
the Company and each such corporation has taken or caused to be taken all
necessary corporate action (including but not limited to the obtaining of any
consent of stockholders required by law or by the Articles or Certificate of
Incorporation or By-Laws of the Company, any subsidiary or any such corporation)
to authorize the execution, delivery and performance of this Agreement, the
borrowing hereunder, the making and delivery of the Notes, and the execution,
delivery and performance of the instruments and documents delivered by it
pursuant to this Agreement.
10.3 NO VIOLATION OF AGREEMENT. The Company is not in default,
under any indenture, mortgage, deed of trust, agreement or other instrument to
which it is a party or by which it may be bound. Neither the execution and
delivery of this Agreement, the Notes or any of the instruments and documents to
be delivered pursuant to this Agreement, nor the consummation of the
transactions herein and therein contemplated, nor compliance with the provisions
hereof or thereof will violate any law or regulation or any order or decree of
any court or governmental instrumentality, or will conflict with or result in
the breach of or constitute a default under any indenture, mortgage, deed of
trust, agreement or other instrument to which the Company is a party or by which
it may be bound, which default, if any, would have a material adverse effect on
the business or condition (financial or otherwise) of the Company or any of its
properties, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property of the Company, other than the lien created
hereby, or violate any provision of the Articles or Certificate of Incorporation
or By-Laws of the Company or any subsidiary.
10.4 NO BURDENSOME AGREEMENTS. The Company is not a party to
any agreement or instrument or subject to any corporate restriction (including
any restriction set forth in its Articles or Certificate of Incorporation)
materially and adversely affecting its operations, business, properties or
financial condition.
10.5 NO LITIGATION. Except as set forth in Schedule A annexed
hereto, there are no actions, suits or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company before any court,
arbitrator or governmental or administrative body or agency which might result
in any material adverse change in the business, operations, properties or assets
or in the condition, financial or otherwise of the Company and Guarantors.
Neither the Company nor any
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subsidiary is in default in any material respect under any applicable statute,
rule, order, decree or regulation of any court, arbitrator or governmental body
or agency having jurisdiction over the Company or any subsidiary.
10.6 GOOD TITLE TO PROPERTIES. The Company and its
subsidiaries have good and marketable title to all their respective properties
and assets subject to no liens, mortgages, pledges, security interests,
encumbrances or charges of any kind except such as would be permitted under the
provisions of this Agreement.
10.7 FINANCIAL STATEMENTS. The audited consolidated balance
sheet of the Company as at December 31, 1995 and the related statements of
operations, retained earnings and cash flows for the year then ended, including
in each case the related schedules and notes heretofore delivered to the
Lenders, are all true and correct and presently fairly in all material respects
(1) the financial position of the Company as at the date of such balance sheet
and (2) the results of the operations of the Company and its consolidated
subsidiaries for said fiscal year. The Company did not have any direct or
contingent liabilities as of such date which are not provided for or reflected
in such balance sheets or referred to in the Notes thereto. All such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a basis consistently maintained throughout the period
involved. There has been no material adverse change in the assets, liabilities,
properties, business and condition, financial or otherwise, of the Company and
its consolidated subsidiaries considered as one enterprise since September 30,
1996.
10.8 TAX RETURNS. The Company has filed all tax returns which
are required to be filed, taking into account all extensions of time for paying
and filing of taxes, and has paid all taxes which have become due pursuant to
such returns or pursuant to any assessment received by them.
10.9 TRADEMARKS, PATENTS, LICENSES, ETC. The Company is the
owner of all the trademarks and patents represented to be owned by the Company
and, to the knowledge of the Company, there are no actions or proceedings in
existence, threatened or otherwise, contesting the validity or ownership of any
trademarks, patents or other intangible assets owned by the Company. Further,
the Company is the holder of all Federal, State, Municipal and non-governmental
licenses represented to be held by the Company, such licenses have not been
revoked, suspended, or otherwise restricted and there are no actions or
proceedings in existence, threatened or otherwise (other than any renewal
applications which may be required) which would in any way affect the Company's
rights in and to such licenses.
10.10 GOVERNMENT ACTION. No action of, or filing with, any
governmental or public body or authority (other than normal reporting
requirements or filing under the provisions of Section 3.4) is required to
authorize, or is otherwise
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required in connection with the execution, delivery and performance of this
Agreement, the Note or any other instruments or documents to be delivered
pursuant to this Agreement.
10.11 DISCLOSURE. Neither the schedules hereto, nor the
financial statements referred to in Section 10.7, nor any certificate statement,
report or other document furnished to the Lenders by the Company in connection
herewith or in connection with any transaction contemplated hereby, nor this
Agreement, contain any untrue statement of a material fact or omit to state any
material fact in order to make the statements contained therein not misleading.
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ARTICLE XI
PARTICIPATING LENDERS
11.1 APPOINTMENT, POWER AND IMMUNITIES OF AGENT. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under any other Loan Document with such powers as are specifically
delegated to the Agent by the terms of this Agreement and any other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and any other Loan Document, and shall not by reason of
this Agreement be a trustee for any Lender. The Agent shall not be responsible
to the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any officer or official of the Borrower or any other Person
contained in this Agreement or any other Loan Document, or in any certificate or
other document or instrument referred to or provided for in, or received by any
of them under, this Agreement or any other Loan Document, or for the value,
legality, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document or instrument
referred to or provided for herein or therein, for the perfection or priority of
any collateral security for the Loans except to the extent that failure to
perfect is due to the act of or failure to act by, Agent or its Agents,
resulting from the willful misconduct and from negligence of the Agent and its
Agents or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder. The Agent may employ agents and attorneys-in-fact and
shall not be responsible, except as to money or securities received by it or its
authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither the Agent nor any
of its directors, officers, employees or agents shall be liable or responsible
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Documents or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct.
11.2 RELIANCE BY AGENT. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) reasonably believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The Agent may deem and
treat each Lender as the holder of the Loan made by it for all purposes hereof
unless and until a notice of the assignment or transfer thereof satisfactory to
the Agent signed by such Lender shall have been furnished to the Agent but the
Agent shall not be required to deal with any Person who has acquired a
participation in any Loan from a lender. As to any matters not expressly
provided for by this Agreement or any other Loan Document, the Agent shall in
all
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cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instruments signed by the Lenders, and such instruments of the
Lenders and any action taken or failure to act pursuant thereto shall be binding
on all of the Lenders and any other holder of all or any portion of any Loan.
11.3 DEFAULTS. The Agent shall take such action with respect
to such Default or Event of Default which is continuing as shall be directed or
authorized by the holders of 662/3% of the Credit Amount; provided that, unless
and until the Agent shall have received such directions, the Agent may take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Lenders;
and provided further that the Agent shall not be required to take any such
action which it determines to be contrary to law.
11.4 AUTHORIZATIONS. No change to the Credit Amount, Interest
Rate, fees, maturing date for payment of any principal amount, amortization
schedules, definitions of Borrowing Base and Eligible Accounts, or the
collateral or any waiver of any conditions precedent shall be made unless
authorized in writing by the holders of 100% of the dollar amount of the
obligations established by this Credit Agreement. No other changes to this
Credit Agreement shall be made unless authorized in writing by the holders of
662/3% of the Credit Amount.
11.5 INDEMNIFICATION OF AGENT. The Lenders agree to indemnify
the Agent, pro-rata, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement, any
other Loan documents or any other documents contemplated by or referred to
herein or the transactions contemplated hereby or thereby or the enforcement of
any of the terms hereof or thereof or of any such other documents or
instruments; provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
11.6 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each of the
Lenders agrees that it has, independently and without reliance on the Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or any other loan document. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the
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affairs, financial condition or business of the Borrower or any subsidiary (or
any of their affiliates) which may come into the possession of the Agent.
11.7 LIABILITY OF AGENT. The Agent shall not have any
liabilities or responsibilities to the Borrower on account of the failure of any
Lender to perform its obligations under this Agreement or any other loan
document.
11.8 AGENT SOLE REPRESENTATIVE. Borrower agrees that only the
Bank, as Agent, is authorized to represent the Lenders with respect to this
transaction, and that neither the Bank (in its capacity as a Lender), Fleet nor
IDB has any independent authority to take any action with respect to this credit
or to modify or terminate any of the provisions of this Credit Agreement or any
of the Loan Documents. Borrower agrees that it will not cite any action,
representation, or communication by any participant as authority or
justification for any legal position or action which Borrower may take.
ARTICLE XII
DEFINITIONS
For all purposes of this Agreement, unless the context
otherwise requires:
"Account" shall mean any obligation owed to the Borrower or
any Guarantor, regardless of whether such obligation is matured or unmatured,
disputed or undisputed, liquidated or contingent.
"Account Debtor" shall mean any person liable for payment of
an Account.
"Agent" shall mean the Bank, acting in its capacity as Agent
for the Lenders.
"Borrowing Base" shall mean, on any date of determination
thereof, the amount in Dollars equal to 85% of the aggregate net amount of
Eligible Accounts of the Borrower and Guarantors on such date (less such
reserves as the Lenders in their sole discretion elects to establish against
such Eligible Accounts).
"Cash Equivalents" shall mean (a) securities issued or
directly and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof, (b) time deposits and certificates of deposit
of the Bank or any domestic commercial bank having capital and surplus of at
least $100,000,000 and (c) commercial paper of any Person organized under the
laws of the United States or any
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State thereof that is not a Subsidiary or an Affiliate of the Company rated in
the highest category by Standard & Poor's Ratings Group or Xxxxx'x Investors
Service, Inc.
"Current Assets" shall be determined in accordance with
generally accepted accounting principles for the Company and shall include, but
not be limited to, the following items: (1) cash in bank, or hand and in
transit; (2) customers' accounts receivable acquired in the ordinary course of
business; (3) inventories at not in excess of cost or current market value,
whichever is lower; (4) readily marketable, direct obligations of the United
States of America, certificates of deposit, securities, money market funds, and
commercial paper of a corporation designated AA by Moody's, in each case at not
in excess of cost or current market value, whichever is lower; (5) cash
surrender value of any insurance policies on the lives of the Company's
officers, of which the Company is both owner and beneficiary; (6) loans
permitted to be made under Section 7.12; and (7) prepaid expenses, all after
deduction of adequate reserves provided such reserve(s) is proper, in accordance
with generally accepted accounting principles, provided, however, that any of
such assets (other than those assets pledged to the Bank) which are subject to a
pledge, lien or security interest to secure payment of any Indebtedness which is
not included in Current Liabilities shall be excluded from current assets to the
extent of such Indebtedness.
"Current Liabilities" shall be determined in accordance with
generally accepted accounting principles for the Company and shall include, as
of the date of determination thereof, (1) all Indebtedness payable on demand or
maturing within one year after such date without any option on the part of the
obligor to extend or renew beyond such year; (2) final maturities, installments
and required prepayments of Indebtedness required to be made within one year
after such date; and (3) all other items (including taxes accrued as estimated
and reserves for deferred income taxes) which, in accordance with generally
accepted accounting principles, would be included on a balance sheet as Current
Liabilities.
"EBITDA" shall mean, with respect to the Borrowers (and their
Subsidiaries) for any period, earnings before interest expense, taxes,
depreciation and amortization on a consolidated basis for such period, computed
in accordance with GAAP.
"Eligible Accounts" shall mean, at any date, as reasonably
determined by the Lenders, Accounts of any Borrower or Guarantor(i) (a) which
are bona fide, valid and legally enforceable obligations of the parties thereto
or the Account Debtor in respect thereof and arise from the actual sale and
delivery of goods, inventory or rendition of services in the ordinary course of
business to such parties or Account Debtor, (b) as to which the Borrower,
Guarantor, Account Debtor or any other party to such Account is not in default
or is not likely to become in default in the performance or observance of any
terms thereof in any material respect; (c) as to which such Account
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Debtor and the Borrower or have fully performed all its obligations then
required to be performed under each such Account, and the right, title and
interest of such Person in any such Account is not subject to any reduction,
discount, chargeback, defense, offset, counterclaim or claim; (d) which do not
contravene, or arise from sales which contravene, any law, rule or regulation
applicable thereto, (e) which Account Debtor is not insolvent; provided, the
Bank determines such Account Debtor is acceptable; (f) which Account Debtor is
not the subject of any bankruptcy or insolvency proceeding unless such Account
Debtor is a recognized domestic or foreign air line or air carrier; provided,
the Bank determines such Account Debtor is acceptable; (ii) which conform in all
other material respects to the representations and warranties contained herein
and the Loan Documents; (iii) which have been invoiced by such Borrower and
which have not been outstanding for a period of more than one hundred twenty
(120) days after the date of the related invoice or in the absence of an
expressed date, the date as provided by customary practice; provided, however,
the Lenders may include as eligible accounts invoices outstanding for more than
120 days; (iv) which are owned by such Borrower free and clear of all Liens or
other rights or claims of any Person (except in favor of or for the benefit of
the Lenders), (v) which arise from sales in respect of which all sales, excise
or similar taxes have been paid in full or have otherwise been provided for so
as not to be included in the outstanding amount of such Accounts; (vi) which are
denominated in Dollars and payable only in Dollars and only in the United
States; (vii) which Account Debtor is organized under the laws of (a) the
United States of America (or any state thereof) or (b) Canada (or any province
thereof), Puerto Rico and U.S Virgin Islands; provided, the Bank determines that
any Account Debtor under this subparagraph (vii)(b) is acceptable; (viii) which
are not owed by any Account Debtor which is an Affiliate or Subsidiary of any
Borrower or Guarantor; and (ix) the Account is determined by the Bank in its
absolute discretion to constitute adequate collateral to support the advance
requested by the Borrowers.
"Indebtedness" shall mean all items which, in accordance with
generally accepted principles of accounting, would be included in determining
total liabilities as shown on the liability side of a balance sheet as at the
date Indebtedness is to be determined and, in any event, shall include any
liability secured by any mortgage, pledge, lien or security interest on property
owned or acquired, whether or not such liability shall have been assumed, and
guarantees, endorsements (other than for collection in the ordinary course of
business).
A "Person" shall include an individual, a corporation, an
association, a joint stock company, a business trust, a partnership, a joint
venture, an unincorporated organization or a government or any agency or
political subdivision thereof.
"Quick Assets" shall mean cash and cash equivalents plus
accounts receivable.
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"Subordinated Debt" shall mean all Indebtedness of the Company
for borrowed money, none of the principal amount of which shall, by its terms,
be due and payable prior to the latest final maturity date of the Notes, which
shall have been subordinated to the prior payment in full of the Company's
Indebtedness to the Lenders by its terms or by the execution and delivery to the
Lenders by such subordinated lender and the Company prior to the creation of
such Indebtedness of agreements of subordination, in form and substance
reasonably satisfactory to the Lenders.
"Tangible Net Worth" shall mean the total of all assets
appearing on a balance sheet prepared in accordance with generally accepted
accounting principles for the Company after deducting therefrom (without
duplication of deductions): (1) any write-up in the book carrying value of any
asset resulting from a re-evaluation thereof subsequent to the termination of
the Company's latest fiscal year; (2) all reserves including, but not limited
to, reserves for liabilities, fixed or contingent, deferred income taxes,
obsolescence, depletion, insurance and inventory valuation, which are not
deducted from assets; (3) the amount, if any, at which shares of stock of the
Company appear of the asset side of such balance sheet; (4) all Indebtedness of
the Company (after eliminating intercompany items); and (5) all goodwill,
research and development and other intangible items of any kind appearing on the
asset side of such balance sheet.
"Working Capital" shall mean the amount by which Current
Assets exceed Current Liabilities.
ARTICLE XIII
MISCELLANEOUS
13.1 COLLECTION COSTS. In the event that Bank shall retain or
engage an attorney or attorneys to collect, enforce or protect the Lenders'
interests with respect to this Agreement, the Note or any instrument or document
delivered pursuant to this Agreement, the Company shall pay all of the costs and
expenses of such collection, enforcement or protection, including reasonable
attorneys fees, and the Bank may seek a judgment for all such amounts, in
addition to the unpaid principal balance of the Note and accrued interest
thereon.
13.2 MODIFICATION AND WAIVER. No modification or waiver of
any provision of the Note or of this Agreement and no consent by the Lenders to
any departure therefrom by the Company (which consent must be obtained in
accordance with Section 11.4) shall be effective unless such modification or
waiver shall be in writing and signed by a duly authorized officer of the Bank,
acting with the appropriate consent of the requisite Lenders, and the same shall
then be effective only for the period, on the conditions and for the specific
instances and purposes specified in such
-25-
writing. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
13.3 NEW YORK LAW. The Note and this Agreement shall be
construed in accordance with and governed by the laws of the State of New York.
13.4 NOTICES. All notices, requests, demands or other
communications provided for herein shall be in writing and shall be deemed to
have been given when (1) sent by registered or certified mail, postage prepaid,
return receipt requested, addressed, as the case may be, to the Bank at 000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attn: Corporate Lending
Department or to the Company at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, Attn:
Xxxx X. Xxxxxx (2) delivered personally, (3) delivered by an overnight courier
of recognized reputation (such as Federal Express) or (4) teletransmitted by
telecopier to the Bank at (000) 000-0000 or to the Company at (000) 000-0000, or
to such other person, address or telecopier number as either party shall
designate to the other from time to time in writing, forwarded in like manner.
13.5 FEES AND EXPENSES. Whether or not any loans are made
hereunder, the Company shall pay all out-of-pocket expenses incurred by the Bank
in connection with the transactions contemplated hereunder, including, but not
limited to, travel expenses, filing fees, appraisal costs, and the reasonable
fees and expenses of Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP, counsel to the
Bank.
13.6 CROSS-DEFAULT. The Company and each Guarantor agrees
that any default by the Company or a Guarantor with respect to this Agreement
and any Note delivered hereunder shall, after giving effect to any applicable
cure periods, be deemed a default of any other Agreement, loan arrangement or
Note made by the Company or a Guarantor to the Lenders, and to like effect, a
default by the Company or Guarantor under any other obligation of the Company or
Guarantor to the Lenders shall be deemed a default hereunder.
13.7 WAIVER OF JURY TRIAL AND SETOFF. The Company and the
Guarantors hereby waive trial by jury in any litigation in any court with
respect to, in connection with or arising out of this Agreement, or the Notes or
any instrument or document delivered pursuant to this Agreement, or the
validity, protection, interpretation, collection or enforcement thereof, or any
other claim or dispute howsoever arising between the Company and the Guarantors
and the Lenders; and the Company and the Guarantors hereby waive the right to
interpose any setoff or counterclaim or cross-claim in connection with any such
litigation, irrespective of the nature of such setoff, counterclaim or
cross-claim, and further agree not to attempt to consolidate or join any other
action or proceeding with an action or proceeding commenced by the Lenders.
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13.8 BANK DEPOSITORY. The Bank shall be designated and shall
continue to be the prime depository of the funds of the Company.
13.9 LIEN; SETOFF BY LENDERS; SHARING OF PAYMENTS. The
Company hereby grants to each of the Lenders a continuing lien for all
Indebtedness of the Company to the Lenders upon any and all monies, securities
and other property of the Company and the proceeds thereof, now or hereafter
held or received by or in transit to any of the Lenders from or for the Company,
whether for safekeeping, custody, pledge, transmission, collection or otherwise,
and also upon any and all deposits (general or special) and credits of the
Company with, and any and all claims of the Company against, any of the Lenders
at any time existing. Upon the occurrence of any event of default, each of the
Lenders is hereby authorized, at any time and from time to time, without notice
to the Company, to set off, appropriate and apply any or all items hereinabove
referred to against all Indebtedness of the Company to the Lenders, documented
in this Agreement, the Notes or otherwise, and whether now existing or hereafter
arising. Any setoff made by any of the Lenders will be credited to each of the
Lenders on a pro rata basis. In the event that any Lender receives more than its
pro rata share of any payment, it will promptly distribute such overpayment to
each of the other Lenders, pro rata.
13.10 PAYMENT DUE ON HOLIDAY. Whenever any payment to be made
hereunder or on the Notes shall become due and payable on a Saturday, Sunday or
a legal holiday under the laws of the State of New York, such payment may be
made on the next succeeding business day, and such extension of time shall, in
such case, be included in computing interest on such payment.
13.11 CAPTIONS. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the purposes of
convenience. Such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement.
13.12 BENEFIT OF AGREEMENT. This Agreement shall be binding
upon and inure to the benefit of the Company and the Bank and their respective
successors and assigns and all subsequent holders of the Notes.
-27-
IN WITNESS WHEREOF, the Company and the Bank have caused this
Agreement to be duly executed by their respective officers, thereunto duly
authorized as of the day and year first above written.
COMMUNITY MEDICAL TRANSPORT, INC. ATLANTIC BANK OF NEW YORK
as a Lender and as Agent
By_________________________________ By_______________________________________
Xxxxxx X. Xxxxx Assistant Vice President
Vice President Finance and Chief
Financial Officer
ATLANTIC BANK OF NEW YORK FLEET BANK, N.A.
as a Lender and as Agent
By_________________________________ By_______________________________________
Senior Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By_______________________________________
-28-
EXHIBIT D
SCHEDULE OF COLLATERAL
All present and future accounts, contract rights, instruments, documents,
chattel paper, general intangibles, now owned or hereafter acquired or created,
as defined in the Uniform Commercial Code, and all patents and trademarks,
wherever located, and all returned and other goods relative thereto; excluding,
however, all licenses and permits to conduct an ambulance business, and all
other rights based on the possession of such licenses and permits.
All inventory now owned or hereafter acquired, wherever located, whether or not
in transit, including raw materials, work in process, or materials used or
consumed in Debtor's business, or finished goods and supplies customarily
classified as inventory.
All equipment, machinery, furniture, fixtures, dies, tools, machine parts, motor
vehicles and other tangible personal property of Debtor, wherever located, and
whether now owned or hereafter acquired by Debtor, and all accessions and
attachments thereto.
Any and all products and proceeds of the above, in any form (including, without
limitation, any claims by Debtor against third parties for loss or damage to or
destruction of any or all of the foregoing).
All deposit accounts maintained by Debtor with Secured Party.
The insurance policy on the life of Xxxx X. Xxxxxx required by Section 7.3(A) of
the Credit Agreement.
All proceeds of the conversion, voluntary of involuntary, of any of the
foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards and all right, title and interest
of Debtor in and to all unearned premiums accrued, accruing and to accrue under
any or all insurance policies obtained by Debtor.
All books, records and other property, including motor vehicle title
certificates, relating to or referring to any of the above.
The above is intended to include any and all personal property of the Debtor now
owned, hereafter acquired or created and wherever located, and the proceeds of
any of the foregoing.
EXHIBIT E
ACCOUNTS RECEIVABLE BORROWING BASE CERTIFICATE AS OF __________
(due by the 15th of the Month)
FOR MONTH OF ________
________________________________________________________________________________
Total Accounts Receivable $_______________
Less: Accounts Receivable over
120 days from invoice date (______________)
Plus: Eligible A/R's over 120 days
from invoice date _______________
Eligible Accounts Receivable $_______________
Maximum Availability $6,500,000
Eligible A/R x Advance Rate = A/R Borrowing Base
______________ x 85% = $_______________
(Less Loan Outstanding) $_______________
Borrowing Availability or (Required pay down) $_______________
The undersigned, hereby certifies that the above certificate, including, without
limitation, the accounts receivable aging schedule attached hereto, is true,
accurate and complete as of ____________, 199__, and that Atlantic Bank of New
York (the "Bank"), Fleet Bank, N.A., ("Fleet") and Israel Discount Bank of New
York ("IDB") (collectively, the "Lenders") have a first, prior and sole
perfected lien upon the collateral reflected on this certificate, except as
expressly permitted by the credit and security agreements, each dated as of
December 17, 1996 between the undersigned and the Lenders.
Community Medical Transport, Inc.
By:_________________________________
Name:
Title:
SCHEDULE A
Litigations Against Borrower and
Guarantors as Defined in Section 10.5
None
SECURITY AGREEMENT
SECURITY AGREEMENT made as of this ____ day of December, 1996,
by and between COMMUNITY MEDICAL TRANSPORT, INC., a Delaware corporation,
COMMUNITY AMBULETTE SERVICE, INC., a New York corporation, FIRST HELP AMBULANCE
AND AMBULETTE, INC., a New York corporation, ELITE AMBULANCE & MEDICAL COACH,
INC., a New Jersey corporation, EMPIRE AMBULANCE AND AMBULETTE, INC., a New York
corporation, and, CENTURY AMBULANCE AND AMBULETTE, INC., a New York corporation,
all of the above entities having an office for the transaction of business at 00
Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, (collectively hereinafter referred to as
the "Debtor"), and ATLANTIC BANK OF NEW YORK, a New York banking corporation
having an office for the transaction of business at 000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, (hereinafter referred to as the "Bank"), for itself
and as agent for Fleet Bank, N.A., a national banking association having an
office for the transaction of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxx Xxxx (hereinafter referred to as "Fleet") and Israel Discount Bank of New
York, a New York banking corporation with an office for the transaction of
business located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred
to as "IDB", and the Bank, Fleet and IDB collectively referred to as the
"Secured Party").
IT IS HEREBY AGREED between the parties hereto as follows:
1. SECURITY INTEREST
Debtor hereby grants to the Agent and the Lenders a
security interest ("Security Interest") in the goods described below and in all
increases, parts, accessories, attachments, special tools, additions,
replacements, substitutions and accessions thereto or theretofore and in all
proceeds thereof in any form ("Collateral"): A first priority security interest
in all of the personal property now owned or hereafter acquired by the Debtor or
hereinafter created and the proceeds thereof, as described in the Schedule of
Collateral annexed hereto and made a part hereof.
2. INDEBTEDNESS SECURED.
This Security Interest secures all obligations
arising in connection with the payment of Nine Promissory Notes of even date
herewith made by Community Medical Transport, Inc. ("Community") in favor of the
Secured Party in the total principal amount of $10,000,000, which Notes are
delivered by COMMUNITY MEDICAL TRANSPORT, INC. to the Secured Party pursuant to
a certain Credit Agreement, of even date, in the amount of $10,000,000, between
the parties, and the Secured Party shall be entitled to the benefits thereof.
3. REPRESENTATIONS AND WARRANTIES OF DEBTOR.
Debtor represents and warrants and, so long as this
Security Agreement is in effect, shall be deemed continuously to represent and
warrant, that (a) Debtor is the legal and beneficial owner of the Collateral
free of all security
-2-
interests or other encumbrances except the Security Interest, liens permitted
under Section 8.2 (B) of the Credit Agreement and except as may be specified
hereinbelow; (b) this agreement creates a valid and perfected first priority
security interest in the Collateral, securing the payment of the Obligations,
and all filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken; (c) no consent of any other person
and no authorization, approval or other action by any governmental authority or
regulatory body is required for the grant by the Debtor of the security interest
herein or for the execution, delivery or performance of this agreement by the
Debtor; (d) Debtor is authorized to enter into this Security Agreement; (e) the
Collateral is created as a result of business operations or used or bought for
use primarily for business operations; and (f) Debtor's records concerning the
Collateral are kept at the address specified above or in the Schedule of
Collateral unless the Secured Party is otherwise notified pursuant to Section
(4)(b) hereof; and any and all trade names, division names, assumed names or
other names under which Debtor transacts any part of its business are specified
in an appropriate schedule hereto.
4. COVENANTS OF DEBTOR.
So long as this Security Agreement is in effect,
Debtor (a) will defend the Collateral against the claims and demands of all
other parties; will keep the Collateral free from all security interests or
other encumbrances, except as otherwise specified herein; and will not sell,
transfer, lease, assign, deliver or otherwise dispose of any Collateral or any
interest therein except as otherwise
-3-
permitted by any agreement between the Debtor and the Secured Party without the
prior written consent of the Secured Party; (b) will keep the Collateral in the
State in which its operations are presently conducted; and will notify the
Secured Party promptly in writing of any change in Debtor's address specified
above, any change in the address at which records concerning the Collateral are
kept and any change in Debtor's name, identity or corporate or other structure;
(c) will furnish to the Secured Party financial statements in such form and at
such intervals as may be specified in an Agreement between the Debtor and the
Secured Party; will keep, in accordance with generally accepted accounting
principles consistently applied, accurate and complete books and records
including, without limitation, records concerning the Collateral; at the Secured
Party's request, will xxxx any and all such books and records to indicate the
Security Interest; upon reasonable notice will permit, during normal business
hours, the Secured Party or its agents to inspect the Collateral and to audit
and make extracts from or copies of such books and records pertaining to the
Collateral; and will duly account to the Secured Party's satisfaction, at such
time or times as the Secured Party may reasonably require, for any of the
Collateral; (d) will keep the Collateral in good condition and repair, ordinary
wear and tear expected; and will not use the Collateral in violation of any
provisions of this Security Agreement, of any applicable statute, regulation or
ordinance or of any policy insuring the Collateral; (e) in connection herewith,
will execute and deliver to the Secured Party such financing statements,
assignments and other documents and do such other things relating to the
Collateral and the Security Interest as the Secured Party
-4-
may reasonably request, and pay all costs of title searches and filing financial
statements, assignments and other documents in all public offices requested by
the Secured Party; and will not, without the prior written consent of the
Secured Party, file or authorize or permit to be filed in any public office any
financing statement with respect to the Collateral naming the Debtor as debtor
and not naming the Secured Party as the secured party; (f) will pay all taxes,
assessments and other charges of every nature which may be imposed, levied or
assessed against the Debtor or any of the Debtor's assets, prior to the date of
attachment of any penalties or liens with respect thereto (other than liens
attaching prior to the payment becoming due, so long as paid prior to imposition
of penalties); (g) will insure the Collateral against risks, in coverage, form
and amount, and by an insurer, as is customary for businesses of the same type
as the Debtor and, at the Secured Party's request, will cause each policy to be
payable to the Secured Party as a named insured or loss payee, as its interest
may appear, and deliver each policy or certificate of insurance to the Secured
Party; (h) will prevent the Collateral or any part thereof from being or
becoming an accession to other goods not covered by this Security Agreement; (i)
if the Collateral is not a fixture, will prevent the Collateral or any part
thereof from becoming a fixture.
5. DEFAULT.
(a) Any default pursuant to the terms and conditions
of the aforesaid Notes and/or Agreement, as referred to in Paragraph (2)
hereinabove, shall be deemed a default hereunder.
(b) The Secured Party's rights and remedies with
respect to the Collateral shall be those of a Secured Party under the Uniform
Commercial Code and under any other applicable law, as the same may, from time
to time, be in effect, in
-5-
addition to those rights granted herein and in any other agreement
now or hereafter in effect between the Debtor and the Secured Party. Upon the
existence or occurrence of an event of default, the Secured Party may require
the Debtor to assemble the Collateral and make it available to the Secured Party
at a place or places designated by the Secured Party, and the Secured Party may
use and operate the Collateral.
(c) Without in any way requiring notice to be given
in the following time and manner, the Debtor agrees that any notice by the
Secured Party of sale, disposition or other intended action hereunder or in
connection herewith, whether required by the Uniform Commercial Code or
otherwise, shall constitute reasonable notice to the Debtor if such notice is
mailed by certified mail, postage prepaid, return receipt requested, at least
five business days prior to such action, to the Debtor's address specified
above, or to any other address which the Debtor has specified in writing to the
Secured Party as the address to which notices hereunder shall be given to the
Debtor.
(d) The Debtor agrees to pay on demand all reasonable
costs and expenses incurred by any Secured Party in enforcing this Security
Agreement, in realizing upon or protecting any Collateral and in enforcing and
collecting any indebtedness or any guarantee thereof including, without
limitation, if the Secured Party retains counsel for advice, suit, appeal,
insolvency or other proceedings under the federal Bankruptcy Code or otherwise,
or for any of the above purposes, the reasonable attorneys fees incurred by the
Secured Party. Payment of all moneys hereunder is secured by the Collateral.
-6-
6. MISCELLANEOUS.
(a) The Debtor hereby authorizes the Secured Party,
at the Debtor's expense, to file such financing statement or statements relating
to the Collateral without the Debtor's signature thereon as the Secured Party,
at its option, may deem appropriate, and appoints the Secured Party as the
Debtor's attorney-in-fact (without requiring the Secured Party) to execute any
such financing statement or statements in the Debtor's name and to perform all
other acts which the Secured Party deems appropriate to perfect and continue the
Security Interest and to protect, preserve and realize upon the Collateral in
compliance with and subject to applicable law. This power of attorney shall be
affected by the subsequent disability or incompetence of the Debtor. A carbon,
photographic or other reproduction of this Security Agreement or of a financing
statement shall be sufficient as a financing statement.
(b) (1) As further security for payment of the
Indebtedness, the Debtor hereby grants to the Secured Party a security interest
in and lien on any and all deposit and other accounts and all moneys owed or to
be owed by the Secured Party to the Debtor; and with respect to all of such
property, the Secured Party shall have the same rights hereunder as it has with
respect to the Collateral.
(2) Without limiting any other right of the
Secured Party, whenever the Secured Party has the right to declare any
Indebtedness to be due and payable (whether or not it has so declared), the
Secured Party, at its sole election, may set off against the indebtedness any
and all moneys then or thereafter owed to the Debtor by the Secured Party in any
capacity, whether or not the Indebtedness or the
-7-
obligation to pay such moneys owed by the Secured Party is then due, and the
Secured Party shall be deemed to have exercised such right to setoff immediately
at the time of such election even though any charge therefor is made or entered
on the Secured Party's records subsequent thereto.
(c) Upon the Debtor's failure to perform any of its
duties hereunder, the Secured Party may, but shall not be obligated to, perform
any or all such duties including, without limitation, payment of taxes,
assessments, insurance and other charges and expenses as herein provided, and
the Debtor shall pay an amount equal to the cost thereof to the Secured Party on
demand by the Secured Party. Payment of all moneys hereunder is secured by the
Collateral.
(d) No course of dealing between the Debtor and the
Secured Party and no delay or omission by the Secured Party in exercising any
right or remedy hereunder or with respect to any indebtedness shall operate as a
waiver thereof or of any other right or remedy, and no single or partial
exercise thereof shall preclude any other or further exercise thereof or the
exercise of any other right or remedy. The Secured Party may remedy any default
by the Debtor hereunder or with respect to any indebtedness in any reasonable
manner without waiving the default remedied and without waiving any other prior
or subsequent default by the Debtor. All rights and remedies of the Secured
Party hereunder are cumulative.
(e) The Secured Party shall have no obligation to
take, and the Debtor shall have the sole responsibility for taking, any and all
steps to preserve rights against any and all prior parties to any instrument or
chattel paper relating to the
-8-
Collateral, whether or not in the Secured Party's possession as proceeds in
connection with this Security Agreement. The Secured Party shall not be
responsible to the Debtor for loss or damage resulting from the Secured Party's
failure to enforce or collect any such Collateral or to collect any moneys due
or to become due thereunder. The Debtor waives protest of any instrument
constituting Collateral at any time held by the Secured Party on which the
Debtor is in any way liable and waives notice of any other action taken by the
Secured Party.
(f) The Debtor authorizes the Secured Party, without
notice or demand and without affecting the Debtor's obligations hereunder, from
time to time (1) to exchange, enforce or release any Collateral or any part
thereof (other than the Collateral) taken from any party for payment of the
Indebtedness or any part thereof; (2) to release, substitute or modify any
obligation of any endorser, guarantor or other party in any way obligated to pay
the indebtedness or any part thereof, or any party who has given any security,
mortgage or other interest in any other collateral as security for the payment
of the Indebtedness or any part thereof; (3) upon the occurrence of any event of
default, as provided herein or in the Credit Agreement executed
contemporaneously herewith, to direct the order or manner of disposition of the
Collateral and any and all other collateral and the enforcement of any and all
endorsements, guarantees and other obligations relating to the Indebtedness or
any part thereof as the Secured Party, in its sole discretion, may determine;
and (4) to determine how, when and what application of payments and credits, if
any, shall be made on the Indebtedness or any part thereof, as permitted by
applicable law.
-9-
(g) The rights and benefits of the Secured Party
hereunder shall, if the Secured Party so directs, inure to any party acquiring
any interest in the indebtedness or any part thereof.
(h) The Secured Party and the Debtor, as used herein,
shall include the heirs, executors or administrators, or successors or assigns,
of those parties.
(i) If more than one Debtor executes this Security
Agreement, the term "Debtor" shall include each as well as all of them and their
obligations, warranties and representations hereunder shall be joint and
several.
(j) No modification, rescission, waiver, release or
amendment of any provision of this Security Agreement shall be made except by a
written agreement subscribed by the Debtor and by a duly authorized officer of
each Secured Party.
(k) This Security Agreement and the transactions
evidenced hereby shall be construed under the laws of New York State, as the
same may from time to time be in effect.
(l) All terms, unless otherwise defined in this
Security Agreement, shall have the definitions set forth in the Credit Agreement
or the Uniform Commercial Code adopted in New York State as the same may, from
time to time, be in effect.
(m) This Security Agreement is and is intended to be
a continuing Security Agreement and shall remain in full force and effect until
the officer
-10-
in charge of the Lending Office, Department or Division of each Secured Party
indicated above shall actually have received from the Debtor written notice of
its discontinuance provided, however, that this Security Agreement shall remain
in full force and effect thereafter until all of the indebtedness outstanding or
contracted or committed for (whether or not outstanding) before the receipt of
such notice by the Secured Party, and any extensions or renewals thereof
(whether made before or after receipt of such notice), together with interest
accruing thereon after such notice, shall be finally and irrevocably paid in
full. If, after receipt of any payment of all or any part of the indebtedness,
the Secured Party is for any reason compelled to surrender such payment to any
person or entity because such payment is determined to be void or voidable as a
preference, impermissible setoff or a diversion of trust funds or for any other
reason, this Security Agreement shall continue in full force notwithstanding any
contrary action which may have been taken by the Secured Party in reliance upon
such payment, and any such contrary action so taken shall be without prejudice
to the Secured Party's rights under this Security Agreement and shall be deemed
to have been conditioned upon such payment having become final and irrevocable.
(n) After any default by the Debtor under this
Security Agreement, the Secured Party may notify any or all parties obligated to
pay proceeds of the Security Interest and may also direct any or all such
parties to make all payments of proceeds to the Agent for distribution to the
Secured Party.
(o) The Secured Party may demand, collect and xxx for
any and all proceeds (in either the Debtor's or Secured Party's name at the
latter's option);
-11-
may enforce, compromise, settle or discharge any proceeds without the
Indebtedness or any part thereof; and may endorse the Debtor's name on any and
all checks, commercial paper and any other instruments pertaining to or
constituting the proceeds.
-12-
IN WITNESS WHEREOF, the Debtor has executed this Security
Agreement as of the date first above written.
CENTURY AMBULANCE AND AMBULETTE, INC.,
By____________________________________
COMMUNITY MEDICAL TRANSPORT, INC.,
By____________________________________
COMMUNITY AMBULETTE SERVICE, INC.,
By____________________________________
FIRST HELP AMBULANCE AND AMBULETTE,
INC.,
By____________________________________
ELITE AMBULANCE & MEDICAL COACH, INC.
By____________________________________
EMPIRE AMBULANCE AND AMBULETTE, INC.,
By____________________________________
-13-
SCHEDULE OF COLLATERAL
All present and future accounts, contract rights, instruments, documents,
chattel paper, general intangibles, now owned or hereafter acquired or created,
as defined in the Uniform Commercial Code, and all patents and trademarks,
wherever located, and all returned and other goods relative thereto; excluding,
however, all licenses and permits to conduct an ambulance business, and all
other rights based on the possession of such licenses and permits.
All inventory now owned or hereafter acquired, wherever located, whether or not
in transit, including raw materials, work in process, or materials used or
consumed in Debtor's business, or finished goods and supplies customarily
classified as inventory.
All equipment, machinery, furniture, fixtures, dies, tools, machine parts, motor
vehicles and other tangible personal property of Debtor, wherever located, and
whether now owned or hereafter acquired by Debtor, and all accessions and
attachments thereto.
Any and all products and proceeds of the above, in any form (including, without
limitation, any claims by Debtor against third parties for loss or damage to or
destruction of any or all of the foregoing).
All deposit accounts maintained by Debtor with Secured Party.
The insurance policy on the life of Xxxx X. Xxxxxx required by Section 7.3(A) of
the Credit Agreement.
All proceeds of the conversion, voluntary of involuntary, of any of the
foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards and all right, title and interest
of Debtor in and to all unearned premiums accrued, accruing and to accrue under
any or all insurance policies obtained by Debtor.
All books, records and other property, including motor vehicle title
certificates, relating to or referring to any of the above.
The above is intended to include any and all personal property of the Debtor now
owned, hereafter acquired or created and wherever located, and the proceeds of
any of the foregoing.
-14-
REVOLVING CREDIT NOTE
New York, New York
$3,900,000 December __, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ATLANTIC BANK
OF NEW YORK, a New York banking corporation, having its principal office at 960
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx, 00000, (hereinafter referred to as
the "Bank"), or order, at the Bank's principal office or such other place as may
be designated in writing by the holder of this Note, the lesser of (i)
$3,900,000 or (ii) the principal sum outstanding pursuant to Section 1.2 of the
Credit Agreement of even date herewith, between the parties hereto, with
interest thereon at the Benchmark Rate of Atlantic Bank of New York, as
announced to be in effect from time to time, plus one-half (0.50%) per cent, but
in no event to exceed the maximum rate permitted by law, the principal and
interest to be paid as follows:
Principal shall be paid not later than the
day of December, 1998, when the
entire unpaid balance of said principal and
all accrued interest shall be due and payable;
provided, however, that if at any time the
outstanding principal shall exceed the maximum
amount available pursuant to Section 1.2 of the
Credit Agreement, the Borrower shall immediately
repay such excess.
Interest shall be paid monthly upon the
outstanding balance commencing on the last
day of December, 1996, and continuing monthly
thereafter on the last day of each month.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Benchmark Rate is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
-2-
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable
-3-
hereunder shall be computed at such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to any of the Lenders,
direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lender pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
-4-
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, e.g., Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lenders,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By__________________________________
-5-
REVOLVING CREDIT NOTE
New York, New York
$1,300,000 December __, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to FLEET BANK,
N.A., a national banking association having an office for the transaction of
business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx (hereinafter referred
to as "Fleet"), or order, at the Bank's principal office or such other place as
may be designated in writing by the holder of this Note, the lesser of (i)
$1,300,000 or (ii) the principal sum outstanding pursuant to Section 1.2 of the
Credit Agreement of even date herewith, between the parties hereto, with
interest thereon at the Prime Rate of Fleet Bank ("Fleet Prime"), as announced
to be in effect from time to time, plus one-half (0.50%) per cent, but in no
event to exceed the maximum rate permitted by law, the principal and interest to
be paid as follows:
Principal shall be paid not later than the
day of December, 1998, when the
entire unpaid balance of said principal and
all accrued interest shall be due and payable;
provided, however, that if at any time the
outstanding principal shall exceed the maximum
amount available pursuant to Section 1.2 of the
Credit Agreement, the Borrower shall immediately
repay such excess.
Interest shall be paid monthly upon the
outstanding balance commencing on the last
day of December, 1996, and continuing monthly
thereafter on the last day of each month.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Fleet Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
-2-
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable
-3-
hereunder shall be computed at such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to any of the Lenders,
direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lender pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
-4-
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, e.g., Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lenders,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By____________________________________
-5-
REVOLVING CREDIT NOTE
New York, New York
$1,300,000 December __, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a Delaware
corporation authorized to do business in New York, having an office for the
transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ISRAEL
DISCOUNT BANK OF NEW YORK, a New York banking corporation with an office for the
transaction of business located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereinafter referred to as "IDB"), or order, at the Bank's principal office or
such other place as may be designated in writing by the holder of this Note, the
lesser of (i) $1,300,000 or (ii) the principal sum outstanding pursuant to
Section 1.2 of the Credit Agreement of even date herewith, between the parties
hereto, with interest thereon at the Prime Rate of IDB ("IDB Prime"), as
announced to be in effect from time to time, plus one-half (0.50%) per cent, but
in no event to exceed the maximum rate permitted by law, the principal and
interest to be paid as follows:
Principal shall be paid not later than the
day of December, 1998, when the entire
unpaid balance of said principal and all
accrued interest shall be due and payable;
provided, however, that if at any time the
outstanding principal shall exceed the
maximum amount available pursuant to
Section 1.2 of the Credit Agreement, the
Borrower shall immediately repay such
excess.
Interest shall be paid monthly upon the
outstanding balance commencing on the last
day of December, 1996, and continuing monthly
thereafter on the last day of each month.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The IDB Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement dated as of
the date hereof between the Company and the Lenders, as it may be amended from
time to time, reference to which is made, among other things, as to rights of
required and optional prepayments and for rights as to acceleration of the
unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
-2-
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable
-3-
hereunder shall be computed at such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to any of the Lenders,
direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lender pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
-4-
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, e.g., Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lenders,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By_______________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$1,200,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ATLANTIC BANK
OF NEW YORK, a New York banking corporation, having its principal office at 960
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx, 00000, (hereinafter referred to as
the "Bank"), or order, at the Bank's principal office or such other place as may
be designated in writing by the holder of this Note, the principal sum of
$1,200,000, with interest thereon at the Benchmark Rate of Atlantic Bank of New
York, as announced to be in effect from time to time, plus one-half (0.50%) per
cent, but in no event to exceed the maximum rate permitted by law, the principal
and interest to be paid as follows:
Principal shall be paid in equal quarterly
installments of $100,000.00 each,
commencing on the 31st day of March, 1997,
and continuing quarterly thereafter on the
last day of each quarter until the 18th
day of December, 1999, when the entire
unpaid balance of said principal and all
accrued interest shall be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Benchmark Rate is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which,
-2-
under the terms of the Credit Agreement and Security Agreement securing this
Note, said principal sum may or shall become due and payable; also, that all of
the covenants, conditions and agreements contained in said Credit Agreement and
Security Agreement are hereby made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate, and the
portion of all prior interest payments in excess of such maximum rate
-3-
shall be applied and shall be deemed to have been payments in reduction of the
principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to Atlantic Bank of New
York, direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lender's option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security
-4-
for the indebtedness evidenced by this Note, i.e. Security Agreement, etc., and
waives the right to interpose any setoff or counterclaim or crossclaim in
connection with any such litigation, irrespective of the nature of such setoff,
counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By_________________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$400,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ISRAEL
DISCOUNT BANK OF NEW YORK, a New York banking corporation with an office for the
transaction of business located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereinafter referred to as "IDB"), or order, at the Bank's principal office or
such other place as may be designated in writing by the holder of this Note, the
principal sum of $400,000, with interest thereon at the Prime Rate of IDB ("IDB
Prime"), as announced to be in effect from time to time, plus one-half (0.50%)
per cent, but in no event to exceed the maximum rate permitted by law, the
principal and interest to be paid as follows:
Principal shall be paid in equal quarterly
installments of $33,333.33 each,
commencing on the 31st day of March, 1997,
and continuing quarterly thereafter on the
last day of each quarter until the 18th
day of December, 1999, when the entire
unpaid balance of said principal and all
accrued interest shall be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The IDB Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which,
-2-
under the terms of the Credit Agreement and Security Agreement securing this
Note, said principal sum may or shall become due and payable; also, that all of
the covenants, conditions and agreements contained in said Credit Agreement and
Security Agreement are hereby made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate, and the
portion of all prior interest payments in excess of such maximum rate
-3-
shall be applied and shall be deemed to have been payments in reduction of the
principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to Atlantic Bank of New
York, direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lender's option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security
-4-
for the indebtedness evidenced by this Note, i.e. Security Agreement, etc., and
waives the right to interpose any setoff or counterclaim or crossclaim in
connection with any such litigation, irrespective of the nature of such setoff,
counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By___________________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$400,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to FLEET BANK,
N.A., a national banking association having an office for the transaction of
business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx (hereinafter referred
to as "Fleet") or order, at the Bank's principal office or such other place as
may be designated in writing by the holder of this Note, the principal sum of
$400,000, with interest thereon at the Prime Rate of Fleet Bank ("Fleet Prime"),
as announced to be in effect from time to time, plus one-half (0.50%) per cent,
but in no event to exceed the maximum rate permitted by law, the principal and
interest to be paid as follows:
Principal shall be paid in equal quarterly
installments of $33,333.33 each,
commencing on the 31st day of March, 1997,
and continuing quarterly thereafter on the
last day of each quarter until the 18th
day of December, 1999, when the entire
unpaid balance of said principal and all
accrued interest shall be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Fleet Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which,
-2-
under the terms of the Credit Agreement and Security Agreement securing this
Note, said principal sum may or shall become due and payable; also, that all of
the covenants, conditions and agreements contained in said Credit Agreement and
Security Agreement are hereby made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in excess of the maximum rate which the maker is
permitted by law to contract or agree to pay. If, by the terms of this Note, the
maker is at any time required or obligated to pay interest on the principal
balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate, and the
portion of all prior interest payments in excess of such maximum rate
-3-
shall be applied and shall be deemed to have been payments in reduction of the
principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to Atlantic Bank of New
York, direct, indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lender's option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security
-4-
for the indebtedness evidenced by this Note, i.e. Security Agreement, etc., and
waives the right to interpose any setoff or counterclaim or crossclaim in
connection with any such litigation, irrespective of the nature of such setoff,
counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By_____________________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$900,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ATLANTIC BANK
OF NEW YORK, a New York banking corporation, having its principal office at 960
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx, 00000, (hereinafter referred to as
the "Bank"), or order, at the Bank's principal office or such other place as may
be designated in writing by the holder of this Note, the principal sum of
$900,000, with interest thereon at the Benchmark Rate of Atlantic Bank of New
York, as announced to be in effect from time to time, plus one-half (0.50%) per
cent, but in no event to exceed the maximum rate permitted by law, the principal
and interest to be paid as follows:
Principal may be drawn, at any time prior
to December 18, 1997, in amounts not to
exceed 75% of the cost, as recorded on the
books of the Borrower or Guarantor, as the
case may be, of newly-acquired vehicles
(whether through direct purchase or as
part of a corporate acquisition. The
procedure for borrowing will be governed
by Section 1.7 of the Credit Agreement
except that 1) each draw will total not
less than $100,000, distributed among the
Lenders pro rata, and 2) the written
request shall include a statement
identifying the precise vehicle(s) for
which the draw is requested and the booked
cost of such vehicle(s). No more than one
draw per vehicle shall be permitted. The
principal outstanding as of December 18,
1997 shall be paid in equal quarterly
installments commencing on the 31st day of
March, 1998, and continuing thereafter
until the 18th day of December, 2000, when
the entire unpaid balance of said
principal and all accrued interest shall
be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Benchmark Rate is currently 8.25%.
This Note is issued pursuant to a Credit Agreement
dated as of the date hereof between the Company and the Lenders, as it may be
amended from time to time, reference to which is made, among other things, as to
rights of required and optional prepayments and for rights as to acceleration of
the unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
-2-
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in
-3-
excess of the maximum rate which the maker is permitted by law to contract or
agree to pay. If, by the terms of this Note, the maker is at any time required
or obligated to pay interest on the principal balance at a rate in excess of
such maximum rate, the rate of interest under this Note shall be deemed to be
immediately reduced to such maximum rate and interest payable hereunder shall be
computed at such maximum rate, and the portion of all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to the Lenders, direct,
indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
-4-
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, i.e. Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By_____________________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$300,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to FLEET BANK,
N.A., a national banking association having an office for the transaction of
business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx (hereinafter referred
to as "Fleet") or order, at the Bank's principal office or such other place as
may be designated in writing by the holder of this Note, the principal sum of
$300,000, with interest thereon at the Prime Rate of Fleet Bank ("Fleet Prime"),
as announced to be in effect from time to time, plus one-half (0.50%) per cent,
but in no event to exceed the maximum rate permitted by law, the principal and
interest to be paid as follows:
Principal may be drawn, at any time prior
to December 18, 1997, in amounts not to
exceed 75% of the cost, as recorded on the
books of the Borrower or Guarantor, as the
case may be, of newly-acquired vehicles
(whether through direct purchase or as
part of a corporate acquisition. The
procedure for borrowing will be governed
by Section 1.7 of the Credit Agreement
except that 1) each draw will total not
less than $100,000, distributed among the
Lenders pro rata, and 2) the written
request shall include a statement
identifying the precise vehicle(s) for
which the draw is requested and the booked
cost of such vehicle(s). No more than one
draw per vehicle shall be permitted. The
principal outstanding as of December 18,
1997 shall be paid in equal quarterly
installments commencing on the 31st day of
March, 1998, and continuing thereafter
until the 18th day of December, 2000, when
the entire unpaid balance of said
principal and all accrued interest shall
be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The Fleet Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement dated as of
the date hereof between the Company and the Lenders, as it may be amended from
time to time, reference to which is made, among other things, as to rights of
required and optional prepayments and for rights as to acceleration of the
unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
-2-
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in
-3-
excess of the maximum rate which the maker is permitted by law to contract or
agree to pay. If, by the terms of this Note, the maker is at any time required
or obligated to pay interest on the principal balance at a rate in excess of
such maximum rate, the rate of interest under this Note shall be deemed to be
immediately reduced to such maximum rate and interest payable hereunder shall be
computed at such maximum rate, and the portion of all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to the Lenders, direct,
indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
-4-
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, i.e. Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By______________________________________
-5-
TERM PROMISSORY NOTE
New York, New York
$300,000 December 18, 1996
FOR VALUE RECEIVED, COMMUNITY MEDICAL TRANSPORT, INC., a
Delaware corporation authorized to do business in New York, having an office for
the transaction of business at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, (hereinafter
referred to as the "Company" or the "Borrower") promises to pay to ISRAEL
DISCOUNT BANK OF NEW YORK, a New York banking corporation with an office for the
transaction of business located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereinafter referred to as "IDB"), or order, at the Bank's principal office or
such other place as may be designated in writing by the holder of this Note, the
principal sum of $300,000, with interest thereon at the Prime Rate of IDB ("IDB
Prime"), as announced to be in effect from time to time, plus one-half (0.50%)
per cent, but in no event to exceed the maximum rate permitted by law, the
principal and interest to be paid as follows:
Principal may be drawn, at any time prior
to December 18, 1997, in amounts not to
exceed 75% of the cost, as recorded on the
books of the Borrower or Guarantor, as the
case may be, of newly-acquired vehicles
(whether through direct purchase or as
part of a corporate acquisition. The
procedure for borrowing will be governed
by Section 1.7 of the Credit Agreement
except that 1) each draw will total not
less than $100,000, distributed among the
Lenders pro rata, and 2) the written
request shall include a statement
identifying the precise vehicle(s) for
which the draw is requested and the booked
cost of such vehicle(s). No more than one
draw per vehicle shall be permitted. The
principal outstanding as of December 18,
1997 shall be paid in equal quarterly
installments commencing on the 31st day of
March, 1998, and continuing thereafter
until the 18th day of December, 2000, when
the entire unpaid balance of said
principal and all accrued interest shall
be due and payable.
Interest shall be paid monthly upon the
unpaid balance commencing on the last day
of December, 1996, and continuing monthly
thereafter on the last day of each month
until the entire unpaid balance is repaid
in full.
Interest shall be calculated on the basis of a 360-day year,
and actual days.
The IDB Prime is currently 8.25%.
This Note is issued pursuant to a Credit Agreement dated as of
the date hereof between the Company and the Lenders, as it may be amended from
time to time, reference to which is made, among other things, as to rights of
required and optional prepayments and for rights as to acceleration of the
unpaid principal balance hereof before stated maturity upon the happening of
certain events.
Any principal which shall not be paid upon maturity, whether
maturing by lapse of time or by reason of default or by reason of acceleration
under the provisions herein stated in the Credit Agreement delivered
concurrently herewith, shall bear interest at the above rate of interest plus
three (3%) per cent provided, however, that in no event shall the rate of
interest accruing hereunder exceed the maximum rate allowable by law.
-2-
All payments made hereunder shall be applied first to late
charges, then to accrued interest and the balance, if any, to reduction of
principal.
Upon not less than five days prior written notice to the
holder, the maker shall have the right to prepay the Note in whole or in part
without penalty or premium.
IT IS HEREBY EXPRESSLY AGREED that the said principal sum
secured by this Note shall become due at the option of the holder thereof on the
happening of any default or event by which, under the terms of the Credit
Agreement and Security Agreement securing this Note, said principal sum may or
shall become due and payable; also, that all of the covenants, conditions and
agreements contained in said Credit Agreement and Security Agreement are hereby
made part of this instrument.
Presentment for payment, notice of dishonor, protest and
notice are hereby waived.
This Note is secured by a Security Agreement, and Guarantees
of Xxxx X. Xxxxxx (limited to $1,000,000), Community Ambulette Service, Inc.,
Century Ambulance and Ambulette, Inc., First Help Ambulance and Ambulette, Inc.,
Elite Ambulance & Medical Coach, Inc., Empire Ambulance and Ambulette, Inc. and
the Lenders are entitled to the benefits thereof.
This Note is subject to the express condition that at no time
shall the maker be obligated or required to pay interest or the principal
balance at a rate which could subject the payee to either civil or criminal
liability as a result of being in
-3-
excess of the maximum rate which the maker is permitted by law to contract or
agree to pay. If, by the terms of this Note, the maker is at any time required
or obligated to pay interest on the principal balance at a rate in excess of
such maximum rate, the rate of interest under this Note shall be deemed to be
immediately reduced to such maximum rate and interest payable hereunder shall be
computed at such maximum rate, and the portion of all prior interest payments in
excess of such maximum rate shall be applied and shall be deemed to have been
payments in reduction of the principal balance.
In the event any installment required hereunder is not made
within fifteen days of the due date thereof, then and in that event the holder
reserves the right to assess and collect a late charge equal to six (6%) percent
of the delinquent payment.
Any default by the maker or any of the maker's guarantors,
after giving effect to all applicable cure periods, with respect to any other
obligation that the maker or the guarantors may have to the Lenders, direct,
indirect, or contingent, shall be deemed a default hereunder.
Upon default in the payment of any installment of principal or
interest, or any sum due hereunder, the aggregate amount of the Note, remaining
unpaid, at the Lenders' option, shall, without notice or demand, at once become
due together with interest, late charges and reasonable attorneys fees, and any
other sums required to be paid by the undersigned to the Lenders pursuant to the
terms of this Note.
-4-
In the event that the holder hereof employs counsel to collect
this Note or to protect or foreclose the security given for this Note, the
undersigned also agrees to pay to the holder hereof a reasonable attorney's fee
for the services of such counsel, whether or not suit be brought.
The undersigned waives trial by jury in any litigation in any
court with respect to, in connection with or arising out of the execution hereof
and any instrument delivered as security for the indebtedness evidenced by this
Note, i.e. Security Agreement, etc., and waives the right to interpose any
setoff or counterclaim or crossclaim in connection with any such litigation,
irrespective of the nature of such setoff, counterclaim or crossclaim.
This Note is made, executed and delivered pursuant to a
certain Credit Agreement of even date between the maker herein and the Lender,
and the terms, covenants and conditions thereof are incorporated herein by
reference as if set forth at length verbatim.
This Note may not be changed or terminated orally.
COMMUNITY MEDICAL TRANSPORT, INC.
By_______________________________
-5-
