EXHIBIT 10.28
LOAN AND SECURITY AGREEMENT
Loan #0001786
THIS LOAN AND SECURITY AGREEMENT ("Agreement") is made as of the
date set forth below
BETWEEN:
SECURED PARTY: DVI Financial Services Inc.; and
DEBTOR: TRUEVISION LASER CENTER OF ALBUQUERQUE, INC.
_____________________________________________________________________
1. CERTAIN DEFINITIONS. The following terms shall have the following
respective meanings:
(a) ADVANCE. Advances of funds to the Debtor pursuant to
Section 2 hereof and Schedules which may be executed between Secured Party
and Debtor from time to time.
(b) COLLATERAL. "Collateral" shall have the meaning set forth
in Section 2.2 hereof.
(c) EVENT OF DEFAULT. Those events set forth in Section 9
hereof.
(d) MONTHLY LOAN REPAYMENT. The amount set forth in any
Schedule executed in connection with any Advance under this Agreement.
(e) SCHEDULE(S). Any and all or each (as the context shall
require) of the Loan and Collateral Schedules of the Debtor, to be executed
by the parties under this Agreement.
(f) SECURED OBLIGATIONS. The payment of the principal and
interest as set forth in each and all of the Schedules, and the payment of
all additional amounts and other sums at any time due and owing under the
Schedules for this Agreement, and the performance and observance of all
covenants and conditions contained herein and therein.
(g) SUPPLIER. The entity from whom the Debtor purchased the
Collateral including manufacturers, dealers, sellers and vendors.
2. PURPOSE OF FINANCING AND DESCRIPTION OF LOANS;
GRANT OF SECURITY INTEREST; COLLATERAL.
(a) Secured Party agrees, subject to the terms and conditions
of this Agreement, to make Advances to the Debtor in an aggregate amount to
be determined by Secured Party in its sole and absolute discretion.
(b) Debtor agrees that the proceeds of any Advance will be
used solely to refinance the Collateral as by satisfying the lien of
TrueVision Laser Centers, Inc. as described in the Schedule executed in
connection with said advance.
(c) The amount of any Advances to Debtor shall be set forth on
the Schedule executed in connection with said Advance.
(d) The term of repayment of any Advance made under this
Agreement (the "Term") shall commence on the date set forth in the Schedule
executed in connection with said Advance and shall continue for the period
set forth in said Schedule, and for all extensions and renewals of such
period.
(e) Debtor shall pay to Secured Party the Monthly Loan
Repayment for each Advance in amounts and on the dates set forth in the
Schedule executed in connection with said Advance, whether or not Secured
Party has rendered an invoice to Debtor. Debtor agrees to pay the Monthly
Loan Repayment to Secured Party at the office of the Secured Party set forth
below, or to such entity and/or at such other
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place as Secured Party may from time to time designate by notice to Debtor.
Any other amounts required to be paid to Secured Party under this Agreement
are due upon Debtor's receipt of Secured Party's invoice and will be payable
as directed in the invoice. Payments under this Agreement may be applied to
the Debtor's then accrued Secured Obligations in such order as Secured Party
may choose.
(f) The Advances shall not be subject to prepayment or
redemption in whole or in part prior to the expiration of the Term set forth
in the Schedule executed in connection with said Advance.
2.1 GRANT OF SECURITY INTEREST. In consideration of the Advances
to be made by Secured Party to Debtor under this Agreement, and to secure the
payment and performance of the Secured Obligations, Debtor hereby grants and
assigns to Secured Party, its successors and assigns, a security interest in
the Collateral described in section 2.2 below.
2.2 COLLATERAL. All personal property consisting of "goods",
"equipment", and "proceeds" as defined in the Pennsylvania Commercial Code
and all furniture, fixtures and machinery or other property as described in
any and all Schedule(s) executed pursuant to this Agreement, whether now
owned or hereafter acquired, and all substitutions, renewals or replacements
of and alterations, additions or improvements, if any, to such Collateral,
together with, in each and every case, all proceeds thereof. Each item of
Collateral shall secure not only the specific Advances made by Secured Party
to Debtor as set forth in any Schedule, but also all other present and future
indebtedness or obligations of Debtor to Secured Party of every kind and
nature whatsoever. Debtor warrants and agrees that the collateral will be
used primarily for business or commercial purposes and that regardless of the
manner of allocation, the Collateral shall remain personal property and shall
not become part of the real estate. Debtor agrees to keep the Collateral at
the locations set forth in the Schedule(s) covering said Collateral and will
not make any change in the location of the Collateral within such state, and
will not remove the Collateral from such state without the prior written
consent of Secured Party.
3. TIME IS OF THE ESSENCE; LATE CHARGES. Time is of the essence in
this Agreement and if any Monthly Loan Repayment is not paid within the ten
(10) days after the due date thereof, Secured Party shall have the right to
add and collect, and Debtor agrees to pay:
(a) A late charge on and in addition to, such Monthly Loan
Repayment equal to five percent (5%) of such Monthly Loan Repayment or a
lesser amount if established by any State or Federal statute applicable
thereto; and
(b) Interest on such Monthly Loan Repayment from thirty (30)
days after the due date until paid at the rate of eighteen (18%) per annum.
4. NO WARRANTIES. This Agreement is solely a financing agreement.
Debtor acknowledges that: The Collateral has or will have been selected and
acquired solely by Debtor for Debtor's purposes; Secured Party is not the
manufacturer, dealer, vendor or supplier of the Collateral; the Collateral is
of a size, design, capacity, description and manufacture selected by Debtor;
Debtor is satisfied that the Collateral is suitable and fit for its purposes;
and SECURED PARTY HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS,
CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE COLLATERAL, ITS
FITNESS FOR ANY PARTICULAR PURPOSE. THE VALUE OF THE COLLATERAL, THE QUALITY
OR CAPACITY OF THE MATERIALS IN THE COLLATERAL OR WORKMANSHIP IN THE
COLLATERAL NOR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER.
4.1 NO AGENCY. Debtor acknowledges and agrees that none of the
manufacturer, vendor, dealer or supplier, nor any salesman, representative,
or other agent of the manufacturer, dealer, vendor or supplier, is an agent
of Secured Party. No salesman, representative or agent of the manufacturer,
dealer, vendor or supplier is authorized to waive or alter any term or
condition of this Agreement, and no representation as to the Collateral or
any other matter by any manufacturer, dealer, vendor or supplier shall in any
way affect Debtor's duty to pay the Monthly Loan Repayment and perform his
other obligations as set forth in this Agreement.
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5. ACCEPTANCE. Execution by Debtor and Secured Party of the Schedule
covering the Collateral will conclusively establish that such Collateral has
been included under and will be subject to all of the terms and conditions of
this Agreement. If Debtor has not furnished Secured Party with an executed
Schedule by the earlier of fourteen (14) days after receipt thereof or
expiration of the commitment set forth in any applicable Equipment Financing
Commitment Secured Party may terminate its obligation to make any Advances
with respect to any applicable Collateral.
6. INSURANCE AND RISK OF LOSS. All risk of loss of, damage to, or
destruction of the Collateral shall at all times be borne by Debtor. Debtor
will procure forthwith and maintain property and general liability insurance
with extended or combined additional coverage on the Collateral for the full
insurable value thereof for the life of this Agreement and any Schedule(s)
plus such other insurance as Secured Party may specify, and promptly deliver
each policy to Secured Party with a standard long form endorsement attached
showing Secured Party or assigns as additional insureds and loss payees.
Each insurer shall agree by endorsement upon such policy issued by it or by
independent instrument furnished to Secured Party and Debtor that it will
give Secured Party and Debtor thirty (30) days written notice before the
policy in question shall be materially altered or cancelled. Secured Party's
acceptance of policies in lesser amounts or risks shall not be a waiver of
Debtor's foregoing obligation.
7. DEBTOR'S REPRESENTATIONS AND WARRANTIES. Debtor represents and
warrants to Secured Party as follows:
(a) Debtor is duly organized and existing under the laws of
the State of its formation without limit as to the duration of its existence,
and is authorized and in good standing to do business in sold State: Debtor
has corporate powers and adequate authority, rights and franchises to own its
own property and to carry on its business as now conducted, and is duly
qualified and in good standing in each state in which the character of the
properties owned by it therein or the conduct of its business makes such
qualifications necessary; and Debtor has the corporate power and adequate
authority to make and carry out this Agreement.
(b) The execution, delivery and performance of this Agreement
are duly authorized and do not, to the best of the Debtor's knowledge,
require the consent or approval of any governmental body or other regulatory
authority; are not in contravention of or in conflict with any law,
regulation or any term or provision of its articles of formation or bylaws,
and this Agreement is a valid and binding obligation of Debtor legally
enforceable in accordance with its terms.
(c) The execution, delivery and performance of this Agreement
will not contravene or conflict with any agreement, indenture or undertaking
to which Debtor is a party or by which it or any of its property may be bound
by or affected, and will not cause any lien, charge or other encumbrance to
be created or imposed upon any such property by reason thereof.
(d) There is no material litigation or other proceeding
pending or threatened against or affecting Debtor, and it is not in default
with respect to any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority. The balance sheets of Debtor and
the related profit and loss statements and other financial data as submitted
in writing by Debtor to Secured Party in connection with this Agreement, are
true and correct, and said balance sheets and profit and loss statements
truly represent the financial condition of Debtor as of the dates thereof.
(e) Debtor has good and valid title to the Collateral which is
free from and will be kept free from all liens, claims, security interests
and encumbrances, except for the security interest granted hereby and except
for a subordinate lien in favor of TrueVision Laser Centers, Inc. securing on
obligation in excess of $100,000.00.
(f) No financing statement covering the Collateral or any
proceeds thereof is on file in favor of anyone other than Secured Party and
the subordinated junior lienholder described in Paragraph 7(e) above.
(g) All necessary action, including the filing of a UCC-1
Financing Statement has or will be made to give Secured Party a first
priority security interest in the Collateral. Debtor agrees to permit
Secured Party to pre-file any UCC-1 Financing Statement pursuant to New
Mexico Commercial Code Section9402.
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8. DEBTOR'S AGREEMENT. Debtor agrees:
(a) To defend at Debtor's own cost and expense any action
proceeding or claim affecting the Collateral.
(b) To pay reasonable attorney's fees and other expenses
incurred by Secured Party in enforcing its rights in the event of Debtor's
default under this Agreement.
(c) To pay promptly all taxes, assessments, license fees and
other public or private charges when levied or assessed against the
Collateral or this Agreement and this obligation shall survive the
termination of this Agreement.
(d) That if a certificate of title is required or permitted by
law, Debtor shall obtain such certificate with respect to the Collateral,
showing the security interest of Secured Party thereon and in any event do
everything necessary or expedient to preserve or perfect the security of
Secured Party.
(e) That Debtor will not misuse, fail to keep in good repair,
secrete, or without the prior written consent of Secured Party, and
notwithstanding Secured Party's claim to proceeds, sell, rent, lend, encumber
or transfer any of the Collateral. The Collateral shall be maintained in
accordance with the manufacturer's specifications and shall at all times be
eligible for manufacturer's maintenance program.
(f) That Secured Party may enter upon Debtor's premises or
wherever the Collateral may be located at any reasonable time to inspect the
Collateral and Debtor's books and records pertaining to the Collateral and
Debtor shall assist Secured Party in making such inspection.
(g) That the security interest granted by Debtor to Secured
Party shall continue effective irrespective of the payment of the Secured
Obligations, so long as there are any obligations of any kind, including
obligations under guaranties or assignments, owed by Debtor to Secured Party.
(h) To xxxx and identify the Collateral with all information
and in such manner as Secured Party may request from time to time and replace
promptly any such markings or identifications which are removed, defaced or
destroyed.
(i) To indemnify and hold Secured Party harmless from and
against all claims, losses, liabilities (including negligence, tort and
strict liability), damage, judgements, suits and all legal proceedings, and
any and all costs and expenses in connection therewith (including attorney's
fees) arising out of or in any manner connected with the manufacture,
purchase, financing, ownership, delivery, rejection, nondelivery, possession,
use, transportation, storage, operation, maintenance, repair, return or other
disposition of the Collateral or with this Agreement, including without
limitation, claims for injury to, or death of, persons and for damage to
property, and give Secured Party prompt notice of such claims or liability.
(j) That Debtor will not part with possessions of or control
of or suffer or allow to pass out of its possession or control items of
Collateral or change the location of the Collateral or any part thereof from
the address shown in the appropriate Schedule without the prior written
consent of Secured Party.
(k) That Debtor shall not ASSIGN OR IN ANY WAY DISPOSE OF ALL
OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT OR SELL, LEASE,
TRANSFER, PLEDGE OR HYPOTHECATE ANY PART OF THE COLLATERAL. DEBTOR'S
INTEREST IN THIS AGREEMENT AND THE COLLATERAL IS NOT ASSIGNABLE AND WILL NOT
BE ASSIGNED OR TRANSFERRED BY OPERATION OF LAW. CONSENT TO ANY OF THE
FOREGOING PROHIBITED ACTS APPLIES ONLY IN THE GIVEN INSTANCE AND IS NOT
CONSENT TO SUBSEQUENT LIKE ACT BY DEBTOR OR ANOTHER ENTITY.
9. EVENTS OF DEFAULT. Any of the following events or conditions shall
constitute an Event of Default hereunder.
(a) Debtor's failure to pay any Monthly Loan Repayment or any
installment of the principal or interest due under any schedule when and
after the same shall become due and payable, whether at the due date thereof,
or at the date fixed for prepayment or by acceleration or otherwise;
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(b) Debtor failure to observe or perform any covenant or
agreement to be observed or performed by Debtor under this Agreement, any
Schedule or any other instrument or agreement delivered by Debtor to Secured
Party in connection with this or any other transaction;
(c) Any representation or warranty made by Debtor herein or in
any report, certificate, financial or other statement furnished in connection
with this Agreement shall prove to be false or misleading in any material
respect; or
(d) Debtor is (i) adjudicated insolvent or a bankrupt, or
ceases, becomes unable, or admits in writing its inability, to pay its debts
as they mature, or makes a general assignment for the benefit of, or enters
into any composition or arrangement with, creditors; (ii) applies for or
consents to the appointment of a receiver, trustee or liquidator of it or of
a substantial part of its property, or authorizes such application or
consent, or proceedings seeking such appointment shall be instituted against
it without such authorization, consent or application and continues
undismissed for a period of 60 calendar days; (iii) authorizes or files a
voluntary petition in bankruptcy or applies for or consents to the
application of any bankruptcy, reorganization in bankruptcy, arrangement,
readjustments or debts, insolvency, dissolution, moratorium or other similar
laws of any jurisdiction, or authorizes such application or consent, or
proceedings to such end shall be instituted against it without such
authorization, application or consent and such proceeding instituted against
it shall continue undismissed for a period of 60 calendar days; or
(e) Secured Party, in good faith, believes the prospect of
payment or performance is impaired or in good faith believes the Collateral
is insecure;
(f) Any agreement made by a guarantor, surety or endorser for
Debtor's default in any obligation or liability to Secured Party or any
guaranty obtained in connection with this transaction is terminated or
breached.
10. SECURED PARTY'S REMEDIES. Debtor agrees that when an Event of
Default has occurred and is continuing, Secured Party shall have the rights,
opinions, duties and remedies of a Secured Party and Debtor shall have the
rights and duties of a Debtor under the Uniform Commercial Code in effect in
each jurisdiction where the Collateral or any part thereof is located and,
without limiting the foregoing, Secured Party may exercise one or more or
all, and in any order, of the remedies hereinafter set forth:
(a) By notice in writing to Debtor, declare the entire unpaid
principal balance due under ANY, EACH, AND ALL Schedule(s) to be immediately
due and payable; and thereupon all such unpaid balance(s), together with all
accrued and unpaid interest thereon, shall be immediately due and payable;
(b) Personally, or by agents or attorneys, take immediate
possession of the Collateral or any portion thereof and for that purpose
pursue the same wherever it may be found and enter any of the premises of
Debtor with or without notice, demand, process of law or legal procedure, and
search for, take possession of, remove, keep and store the same, or use,
operate, or lease the same until sold and otherwise exercise any and all of
the rights and powers of Debtor in respect thereof;
(c) Either with or without taking possession and without
instituting any legal proceedings whatsoever (having first given notice of
such sale by mail to Debtor once at least 10 calendar days prior to the date
of such sale, and any other notice of such sale which may be required by law,
if said notice is sufficient), sell and dispose of the Collateral or any part
thereof at public auction(s) to the highest bidder, or at a private sale(s)
in one lot as an entirety or in several lots, and either for cash or for
credit and on such terms as Secured Party may determine, and at any place
(whether or not it is the location of the Collateral or any part thereof,
designated in the notice above referred to. Any such sale or sales may be
adjourned from time to time by announcement of the time and place appointed
for such sale or sales, or for such adjourned sales or sales without further
notice, and Secured Party may bid and become the purchaser at any such sale;
(d) Secured Party may proceed to protect and enforce this
Agreement and any Schedule(s) by suit or suits or proceedings in equity, at
law or in bankruptcy, and whether for the specific performance of any
covenant or agreement herein contained, or execution or aid of any power
herein granted, or for foreclosure hereunder, or for the appointment of a
receiver or receivers for the Collateral, or any party thereof, or for the
enforcement of any proper, legal or equitable remedy available under
applicable law.
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(e) Secured Party may require Debtor to assemble the
Collateral and return it to Secured Party at at place to be designated by
Secured Party which is reasonably convenient to both parties.
(f) Debtor agrees to pay the Secured Party all expenses or
retaking, holding, preparing for sale, or selling the Collateral in addition
to attorneys' fees as set forth above.
11. ACCELERATION CLAUSE. In case of any sale of the Collateral, or any
part thereof, pursuant to any judgment or decree of any court or otherwise in
connection with the enforcement of any of the terms of this Agreement, the
outstanding principal due under any Schedule, if not previously due, the
interest accrued thereon and all other sums required to be paid by Debtor
pursuant to this Agreement shall at once become and be immediately due and
payable.
12. EXERCISE OF RIGHTS. No delay or omission of Secured Party in the
exercise of any right or power arising from any default shall act as a waiver
of or impair any such right or power or prevent its exercise during the
continuance of such default. No waiver by Secured Party of any such default,
whether such waiver be full or partial, shall extend to or be taken to affect
any subsequent default, nor shall it impair the rights resulting therefrom
except as may be otherwise provided therein. The giving, taking or
enforcement of any other or additional security, collateral, or guarantee for
the payment of the Secured Obligations shall not operate to prejudice, waive,
or affect the security of this Agreement or any rights, powers, or remedies
hereunder, and Secured Party shall not be required to look first to enforce
or exhaust such other additional security, collateral, or guarantees. All
rights, remedies, and options of Secured Party hereunder, or by law shall be
cumulative.
13. ASSIGNMENT BY SECURED PARTY. SECURED PARTY MAY ASSIGN OR TRANSFER
THIS AGREEMENT OR SECURED PARTY'S INTEREST IN THE COLLATERAL WITHOUT NOTICE
TO DEBTOR. Any assignee of Secured Party shall have all of the rights but
none of the obligations, of Secured Party under this Agreement, and Debtor
agrees that it will not assert against any assignee of Secured Party any
defense, counterclaim or offset that Debtor may have against Secured Party.
14. NON-TERMINABLE AGREEMENT: OBLIGATIONS UNCONDITIONAL. This
Agreement cannot be cancelled or terminated except as expressly provided
herein. Debtor hereby agrees that Debtor's obligation to pay all Secured
Obligations shall be absolute and unconditional and Debtor will not be
entitled to any abatement of Monthly Loan Repayments or other payments due
under this Agreement or any reduction thereof under circumstances or for any
reason whatsoever. Debtor hereby waives any and all existing and future
claims, as offsets against any Monthly Loan repayments and other payments due
under this Agreement as and when due regardless of any offset or claim which
may be asserted by Debtor or on its behalf. The obligations and liabilities
of Debtor hereunder will survive the termination of this Agreement.
15. ADDITIONAL DOCUMENTS. In connection with and in order to provide
effective evidence of the security interest in the Collateral granted Secured
Party under this Agreement, Debtor will execute and deliver to Secured Party
such financing statements and similar documents as Secured Party requests.
Debtor authorizes Secured Party where permitted by law to make filings of
such financing statements without Debtor's signature. Debtor further agrees
to furnish Secured Party:
(a) On a timely basis, Debtor's future financial statements,
including Debtor's most recent annual report, balance sheet and income
statement, prepared in accordance with generally accepted accounting
principles, which reports, Debtor warrants, shall fully and fairly represent
the true financial condition of Debtor;
(b) Any other financial information normally provided by
Debtor to the public; and
(c) Such other financial data or information relative to this
Agreement and the Collateral, including, without limitation, copies of
Suppliers' proposals and purchase orders and agreements, listings of serial
numbers or other identification data and confirmations of such information,
as Secured Party may from time to time reasonably request. Debtor will
procure and/or execute, have executed, have acknowledged, and/or deliver to
Secured Party, record and file such other documents and notices as Secured
Party deems necessary or desirable to protect its interest in and rights
under this Agreement and Collateral. Debtor will pay for all filings,
searches, title reports, legal and other fees incurred by Secured Party in
connection with any documents to be provided by Debtor pursuant to this
Agreement and any other similar documents Secured Party may procure.
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16. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. Whenever any of the parties
hereto is referred to, such reference shall be deemed to include the
successors and assigns of such parties, and all the covenants, promises, and
agreements in this Agreement contained by or on behalf of Debtor or Secured
Party shall bind and inure to the benefit of the respective successors and
assigns of each party whether so expressed or not.
(b) PARTIAL INVALIDITY. The enforceability or invalidity of
any provision(s) of this Agreement shall not render any other provision(s)
herein contained unenforceable or invalid.
(c) COMMUNICATIONS. All communications provided for herein
shall be in writing and shall be deemed to have been given (unless otherwise
required by the specific provisions in respect of any matter) ((i) when
addressed and delivered personally or (ii) three (3) calendar days following
deposit in the United States mail, registered or certified, postage prepaid,
and addressed to the address set forth beneath the respective parties'
signature lines below, or as to Debtor or Secured Party at such other address
as they may designate by notice duly given in accordance with this Section to
the other party.
(d) COUNTERPART, GOVERNING LAW. This Agreement may be
executed, acknowledged, and delivered in any number of counterparts, each of
such counterparts constituting an original but all together only one
Agreement. This Agreement and any Schedule shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
Debtor agrees to submit to the jurisdiction of the State and/or Federal
Courts in Pennsylvania.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding or agreement between Secured Party and Debtor and there is no
understanding or agreement, oral or written, which is not set forth herein.
This Agreement may not be amended except by a writing signed by Secured Party
and Debtor and shall be binding upon and inure to the benefit of the parties
hereto, their permitted successors and assigns.
DATED: Xxxxx 00, 0000
XXXXXX:
TRUEVISION LASER CENTER OF ALBUQUERQUE, INC. SECURED PARTY:
DVI FINANCIAL SERVICES, INC.
By: /s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX
------------------------- -------------------------
Xxxx X. Xxxxx Xxxxxx X. Xxxxxx
------------------------- -------------------------
(Print Name) (Print Name)
Director
Its President Its Credit/Documentation
------------------------- -------------------------
(Title) (Title)
Address: Address:
000 X Xxxxxx 000 Xxxx Xxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
NO SECURITY INTEREST IN AN EQUIPMENT SCHEDULE MAY BE CREATED THROUGH THE
TRANSFER OR POSSESSION OF ANY COUNTERPART OF THE ORIGINAL EQUIPMENT SCHEDULE
OTHER THAN THAT EQUIPMENT SCHEDULE MARKED "SECURED PARTY'S ORIGINAL" AND A
CERTIFIED COPY OF THE MASTER AGREEMENT.
CERTIFIED TO BE A TRUE AND CORRECT THIS CONTRACT (AND EQUIPMENT SCHEDULE
DOCUMENT AS SUBMITTED TO AND MASTER LEASE THE TERMS OF WHICH IT
[ILLEGIBLE] SERVICES, INC. INCORPORATES) HAS BEEN ASSIGNED TO, IS
SUBJECT TO THE SECURITY INTEREST OF AND
IS HELD IN TRUST FOR THE BENEFIT OF
FLEET BANK N.A. AS AGENT, PURSUANT TO
