Exhibit 10.22
CONCENTRATION BANK AGREEMENT
THIS CONCENTRATION BANK AGREEMENT, dated as of June 8, 2001
(as amended, supplemented or otherwise modified from time to time, this
"AGREEMENT"), is by and between AMERICAN HOMEPATIENT, INC., a Delaware
corporation (the "BORROWER"), PNC BANK, NATIONAL ASSOCIATION, as concentration
bank (the "CONCENTRATION BANK"), and BANKERS TRUST COMPANY, as Agent (the
"AGENT") for the Lenders (as defined below).
WITNESSETH:
WHEREAS, the Borrower is a party to that certain Fifth
Amended and Restated Credit Agreement, dated as of May 25, 2001 (as amended,
supplemented or otherwise modified to the date hereof or from time to time
hereafter, the "CREDIT AGREEMENT"), with the various financial institutions
that are or may from time to time become parties thereto (the "LENDERS"), and
the Agent;
WHEREAS, pursuant to the Credit Agreement, the Borrower and
the Agent are parties to that certain Borrower Security Agreement, dated as of
October 20, 1994 (as it may be amended, supplemented or otherwise modified from
time to time hereafter, the "BORROWER SECURITY AGREEMENT");
WHEREAS, pursuant to the Credit Agreement, the Borrower
and/or certain of the Borrower's Subsidiaries and the Agent entered into
certain Collection Bank Agreements, (as amended, supplemented, or otherwise
modified from time to time hereafter, the "COLLECTION BANK AGREEMENTS") with
certain Collection Banks (as defined in such Collection Bank Agreements);
WHEREAS, the Borrower Security Agreement and the Collection
Bank Agreements contemplate the transfer of all proceeds of Accounts Receivable
contained in accounts maintained with the Collection Banks (each, a "COLLECTION
ACCOUNT"), including without limitation those established for deposit into a
special segregated account maintained with the Concentration Bank and listed in
Part A of Schedule I hereto (the "CONCENTRATION ACCOUNT");
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of the
Lenders, a continuing security interest in all of the Borrower's right, title,
and interest in and to all deposit accounts, including, the Concentration
Account, and all amounts from time to time deposited therein;
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of the
Lenders, a continuing security interest in all present and future accounts,
contract rights, other payment rights of any kind, instruments, documents,
chattel paper and general intangibles of the Borrower, and all proceeds
thereof, that may from time to time be deposited in any deposit account,
including the Concentration Account;
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of the
Banks, a continuing security interest in
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all general intangibles, including, without limitation, all rights to payment,
and all proceeds of the Concentration Account, including whatever is receivable
or received when amounts in the Concentration Account are exchanged or otherwise
disposed of;
WHEREAS, pursuant to Section 8.05(vi) of the Credit
Agreement, Borrower is permitted to invest in cash equivalents, as defined in
Schedule II attached hereto ("CASH EQUIVALENTS");
WHEREAS, the Borrower, the Agent, and Bank of America, N.A.
are parties to that certain Concentration Bank Agreement dated as of November
1, 2000 (as amended, supplemented or otherwise modified to the date hereof, the
"EXISTING CONCENTRATION BANK AGREEMENT") pursuant to which the Borrower
maintains a concentration account (the "EXISTING CONCENTRATION ACCOUNT") into
which all amounts from the Collection Accounts are swept; and
WHEREAS, the Borrower has requested that the Agent approve a
change in the identity of the Concentration Bank from Bank of America, N.A. to
PNC Bank, National Association and the parties have agreed to certain other
modifications to the Existing Concentration Bank Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein
without definition that are defined in or have reference in, the Borrower
Security Agreement or the Credit Agreement shall have the meanings specified
therein. Undefined terms that are defined in the Uniform Commercial Code, as it
is currently enacted or may hereafter be amended, in the applicable
jurisdiction or jurisdictions shall have the meanings set forth therein.
SECTION 2. Security Interest and Notice and
Acknowledgement Thereof.
(a) To secure the due and punctual payment and
performance of the Secured Obligations, the Borrower hereby reaffirms and
ratifies its assignment and grant, and hereby further assigns and grants, to
the Agent, for the benefit of the Lenders, a security interest in and a lien
upon all of the Borrower's right, title, and interest now or hereafter acquired
in and to (i) the Concentration Account, including all funds and assets from
time to time on deposit therein and all contract rights, claims, choses in
action and privileges in respect of the Concentration Account; (ii) the
Collection Accounts, including all funds and assets from time to time on
deposit therein and all contract rights, claims, choses in action and
privileges in respect of the Collection Accounts; (iii) all investment property
and financial assets ("FINANCIAL ASSETS") and all contract rights, claims,
choses in action and privileges in respect thereof, including, without
limitation, all investments made with funds in the Concentration Account or any
proceeds thereof; and (iv) all deposit accounts, including, without limitation,
all deposit accounts into which funds in the Concentration Account may from
time to time be transferred and all deposit accounts otherwise located at the
Concentration Bank (the "DEPOSIT ACCOUNTS").
(b) The Agent, the Concentration Bank and the Borrower
agree that all checks, money orders, and other evidences of payment may be
deposited in the Concentration Account without the Borrower's endorsement.
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(c) The Borrower, the Agent, and the Concentration Bank
hereby agree that the Concentration Bank shall comply with instructions
originated by the Agent directing the disposition of the funds contained in the
Concentration Account or any other Deposit Account maintained by the Borrower
with the Concentration Bank, in accordance with the terms and conditions of
this Agreement, without further consent by the Borrower.
(d) The Borrower and the Agent hereby notify the
Concentration Bank of, and the Concentration Bank hereby acknowledges, the
security interest granted by the Borrower to the Agent in all of the Borrower's
right, title and interest now or hereafter acquired in and to the Collateral
under the Borrower Security Agreement, including, without limitation, all
rights characterized as contract rights, general intangibles or accounts, all
proceeds of funds in the Concentration Account and all other Deposit Accounts.
(e) The Concentration Bank hereby agrees to establish a
liquidity management sub account within the Concentration Account (the
"LIQUIDITY MANAGEMENT SUB ACCOUNT") for the purpose of automatically sweeping
excess balances into overnight investments in Cash Equivalents, after any
payments required to be made to Agent pursuant to Section 4(d), Section 4(e) or
Section 5(c). The Liquidity Management Sub Account is and shall be a part of
the Concentration Account and all references herein to the Concentration
Account shall include the Liquidity Management Sub Account. The Borrower hereby
agrees that it will not make any other investments with funds in the
Concentration Account.
(f) Borrower hereby covenants and agrees that it will
not deliver any entitlement orders to the Concentration Bank (i) to make any
investments other than in Cash Equivalents, (ii) to transfer the proceeds of
the sale of any investments in the Liquidity Management Sub Account from any
such account to any account other than the Concentration Account, or (iii) to
transfer any dividends or interest on any investments in the Liquidity
Management Sub Account from any such account to any account other than the
Concentration Account, and the Concentration Bank agrees that it will not honor
any instructions from Borrower with respect to investment of funds in the
Concentration Account that do not comply with the provisions of this Section
2(f).
(g) Borrower hereby agrees to execute such financing
statements and other documents as the Agent may reasonably request to perfect
the security interest reaffirmed and granted to the Agent, for the benefit of
Lenders, pursuant to this Agreement.
(h) The Concentration Bank shall not (i) register or
cause to be registered in the name of Borrower any security or other Financial
Asset, hold any security or other Financial Asset registered in the name of
Borrower or issue to Borrower any security or other Financial Asset registered
in the name of Borrower held in the Liquidity Management Sub Account, or (ii)
hold in the Liquidity Management Sub Account or for Borrower any Financial
Asset payable to the order of or specially endorsed to Borrower.
SECTION 3. Accounts.
(a) Listed on Part A of Schedule I hereto is the account
number of the Concentration Account and the address of the branch at the
Concentration Bank where such Concentration Account is maintained.
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(b) Listed on Part B of Schedule I hereto is the account
number of each Deposit Account and the address where each Deposit Account is
maintained.
(c) The Borrower may not, and Borrower may not permit
any Subsidiary to, without the prior written consent of the Agent (i) close the
Concentration Account, (ii) establish any new accounts for the transfer of
funds from any Collection Account or for the purpose of collecting Accounts
Receivables after the date hereof, (iii) establish any account for the purpose
of making investments in Cash Equivalents from the proceeds of funds from the
Concentration Account after the date hereof, other than the Liquidity
Management Sub Account; or (iv) establish any different Deposit Accounts, other
than Deposit Accounts held in the Liquidity Management Sub Account, into which
funds in the Concentration Account may be transferred.
(d) The Borrower shall not deposit funds from any source
other than the Existing Concentration Account, proceeds of Accounts Receivable,
proceeds from the sale or other disposition of investments in the Liquidity
Management Sub Account or interest or dividend payments on investments in the
Liquidity Management Sub Account.
(e) The Concentration Bank hereby confirms that it has
opened the Concentration Account with the account number and at the location
set in Part A of Schedule I. Concentration Bank hereby agrees to notify Agent
of receipt of any instruction from Borrower to close the Concentration Account
within a reasonable period of time.
SECTION 4. Irrevocable Direction to Transfer Funds;
Access to Transfers.
(a) Pursuant to the Collection Bank Agreements, the
Borrower and certain of the Borrower's Subsidiaries irrevocably directed each
Collection Bank to transfer at least once each Business Day all Collected Funds
contained in the Collection Accounts for deposit into the Concentration
Account. "Collected Funds" means funds in the Concentration Account which are
not subject to hold for uncollected funds pursuant to Federal Reserve
Regulation CC or the Concentration Bank's customary procedures. The
Concentration Bank agrees, subject to Section 8, to hold all amounts in the
Concentration Account for the benefit of the Lenders on the terms set forth in
this Agreement and to accept all transfers from the Collection Banks at least
once each Business Day.
(b) Following the giving of the Notice described in
Section 5 to the Concentration Bank and until such Notice is revoked by the
Agent, the Borrower authorizes the Agent to withdraw amounts from, to draw
upon, or to otherwise exercise any powers with respect to, the Concentration
Account, any Deposit Account at the Concentration Bank, and with respect to
either such account, the funds deposited therein, without further consent of
the Borrower.
(c) Subject to Section 4(b), funds deposited into the
Concentration Account may be withdrawn by Borrower, subject to the
Concentration Bank's funds availability schedule in effect at such time, at any
time or from time to time, provided that such funds are transferred to (i) the
Liquidity Management Sub-Account, (ii) zero balance Deposit Accounts maintained
by PNC Bank, National Association for Borrower for the purposes of paying
payroll checks and accounts payable of Borrower, or (iii) Agent. The
Concentration Bank shall have no obligation to monitor the transfer of funds.
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(d) After receipt of the Notice from the Agent in
accordance with Section 5 and prior to the revocation by the Agent of such
Notice, the Borrower agrees that all funds deposited in the Concentration
Account and the Deposit Accounts from time to time shall be held by the
Concentration Bank for the Agent, on behalf of the Lenders, shall be the
property of the Agent, on behalf of the Lenders, and may be withdrawn from time
to time by the Agent, and the Borrower shall have no further authority to
withdraw any amount from, to draw upon, or to otherwise exercise any powers as
depositor or owner with respect to the Concentration Account, the Deposit
Accounts and the funds deposited therein. After receipt of the Notice from the
Agent in accordance with Section 5 and prior to the revocation by the Agent of
such Notice, the Borrower shall not give, and the Concentration Bank shall not
honor, any instructions to change the authorized signatories on the
Concentration Account and Deposit Accounts unless such instructions are given,
or approved, in writing by the Agent.
(e) Upon execution of this Agreement, the Concentration
Bank hereby agrees to pay to Agent at the end of each Business Day all
Collected Funds equal to the difference between (i) all amounts in the
Concentration Account at the end of such Business Day prior to any automatic
sweep of excess cash balances into overnight investments, and (ii) $3,000,000.
(f) The Borrower hereby acknowledges and agrees that the
authorizations hereunder are powers coupled with an interest.
SECTION 5. Concentration Bank's Notice. The Borrower
irrevocably authorizes and instructs the Concentration Bank to take the
following actions upon and after receipt of written notice (the "NOTICE") from
the Agent that an Event of Default has occurred and is continuing under the
Credit Agreement and that the provisions of this Section 5 shall be in effect
until receipt of written notice from the Agent revoking such Notice:
(a) The Concentration Bank shall cease honoring all
drafts, demands, withdrawal requests, entitlement orders, remittance
instructions or other instructions by the Borrower with respect to the
Concentration Account or any other Deposit Account made after receipt of the
Notice.
(b) The Concentration Bank shall hold solely for the
account of the Agent, on behalf of the Lenders, all funds that may be on
deposit in the Concentration Account or any other Deposit Account at the time
the Notice is received by the Concentration Bank and all funds thereafter
deposited into the Concentration Account or any other Deposit Account, and,
subject to Section 8, the Concentration Bank will remit all such Collected
Funds directly to the Agent on behalf of the Lenders, in accordance with the
Concentration Bank's procedures then in effect as the funds are collected, by
electronic transfers to the account indicated in such Notice.
(c) Subject to Section 8, the Concentration Bank shall
forward all Collected Funds in the Concentration Account and the Deposit
Accounts and pay over and deliver no later than 2:00 p.m., New York time, on
each Business Day thereafter all Collected Funds on deposit in the
Concentration Account and the Deposit Accounts on such Business Day, in each
case directly to the Agent on behalf of the Lenders; provided, however, that
unless the Agent consents to the Concentration Bank retaining at least $150,000
in the aggregate in the Concentration Account and the Deposit Accounts on a
daily basis, the Concentration Bank may terminate the Concentration Account and
the Deposit Accounts immediately after remitting the proceeds
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therein to Agent. The Borrower hereby acknowledges and agrees that the
authorizations hereunder are powers coupled with an interest.
(d) The Notice shall be effective when it is received by
the Concentration Bank in writing at the address set forth on the signature
pages hereof (or at such other address as the Concentration Bank may specify by
written notice received by the Agent) and when the Concentration Bank has had a
reasonable time to act thereon.
SECTION 6. Certain Agreements of the Agent. Anything
in this Agreement to the contrary notwithstanding:
(a) Any Notice shall be revoked and be of no further
effect at such time as the Agent delivers notice of revocation to the
Concentration Bank, provided that the Concentration Bank has had a reasonable
period of time to implement the changes affecting the Concentration Account as
a result of such notice of revocation.
(b) As between the Agent and the Borrower, copies of all
notices given hereunder or in connection herewith by the Agent to the
Concentration Bank shall be delivered simultaneously to the Borrower.
(c) As between the Agent and the Borrower, all amounts
paid to the Agent pursuant to Section 4(d), Section 4(e) or Section 5(c) shall
be applied by the Agent in accordance with the provisions of the Credit
Agreement.
SECTION 7. Certain Agreements of the Borrower and the
Concentration Bank. Except as expressly provided in this Agreement, the
Borrower shall not agree to grant or grant any interest, including security
interests, to the Concentration Bank with respect to the funds contained in the
Concentration Account or any other Deposit Account. Except as expressly
provided in this Agreement, the Concentration Bank shall not take any interest,
including security interests, or seek to obtain any interest, including
security interests, in the funds contained in the security account.
SECTION 8. Fees and Expenses; Set-Off. The
Concentration Bank will not charge or debit, appropriate, recoup or exercise
any right of offset or banker's lien against, the Concentration Account or any
other Deposit Account except as provided below. Notwithstanding the foregoing,
the Concentration Bank shall have the right at any time to set-off against and
withdraw funds from the Concentration Account or other Deposit Account for any
of the following: (i) items credited to the Concentration Account in error or
which were unpaid for any reason, (ii) overdrafts created on related accounts
of the Borrower, (iii) adjustments and corrections in respect of transactions
in the Concentration Account or other Deposit Account, (iv) fees and expenses
due Concentration Bank, and (v) amounts owed to Concentration Bank with respect
to Corporate Card Obligations (as hereinafter defined). If there are
insufficient Collected Funds in the Concentration Account to cover the amount
of any returned check or other adjustment or correction to be debited thereto,
the Borrower shall be responsible for repaying the Concentration Bank the
amount of such debit immediately upon demand. If the Borrower fails to so repay
the Concentration Bank (after receipt of reasonable notice), then the Agent
shall repay the Concentration Bank for such debit, but only to the extent that
(i) the Agent received the proceeds of such check or debit from the
Concentration Bank as a result of issuing
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the Notice and related directions under Section 5 hereof, (ii) the proceeds of
such check or debit are retained and applied by the Agent to the Obligations
owed to the Lenders and the Agent under the Credit Agreement and (iii) the
transfer to and application of the proceeds by the Agent are not avoided by
order of a court of competent jurisdiction. All expenses for the maintenance of
the Concentration Account or any other Deposit Account and all expenses arising
under this Concentration Bank Agreement not paid as provided above are the
responsibility of the Borrower.
SECTION 9. Entitlement Orders.
(a) The Concentration Bank shall comply with all
instructions it receives with respect to property (including cash) in the
Liquidity Management Sub Account, including, without limitation, instructions
directing it to transfer or redeem any property in the Liquidity Management Sub
Account (each, an "ENTITLEMENT ORDER") issued by the Agent. In addition, except
as otherwise provided in Section 5 and this Section 9, the Concentration Bank
may also comply with entitlement orders issued by Borrower with respect to
investments to be made in the Liquidity Management Sub Account, without further
consent by Agent, so long as Borrower directs the Concentration Bank to invest
in only Cash Equivalents offered by the Concentration Bank in its liquidity
management account program. In the event of a conflict between an entitlement
order originated by the Agent and an entitlement order issued by the Borrower,
the instructions in the entitlement order issued by the Agent shall control.
(b) Unless otherwise instructed by the Agent in an
entitlement order issued by the Agent, all investments in the Liquidity
Management Sub Account shall be made on only an overnight basis and all
proceeds of such investments and interest and dividend payments thereon shall
be transferred only to the Concentration Account.
SECTION 10. Account Information. The Borrower hereby
instructs the Concentration Bank and the Concentration Bank agrees to furnish
to the Agent, with a copy to the Borrower, at the Borrower's expense, bank
statements with respect to the Concentration Account or any other Deposit
Account that are customarily provided to customers of the Concentration Bank at
the times such statements are normally provided to customers of the
Concentration Bank, through the normal method of transmission, United States
Mail. Additionally, the Borrower hereby instructs the Concentration Bank and
the Concentration Bank agrees to make available to the Agent and the Borrower,
upon request, copies of all daily debit and credit advices of the Concentration
Account and any other Deposit Account.
SECTION 11. Additional Agreements and Documents. The
Borrower agrees to execute and deliver such other agreements and documents as
the Agent or the Concentration Bank may reasonably request, in form and
substance reasonably satisfactory to the Agent or Concentration Bank, to carry
out or to confirm the provisions of this Agreement.
SECTION 12. Procedures.
(a) Concentration Bank will follow its customary
procedures for determining whether or not to honor any checks, drafts or other
payment requests drawn on or with respect to the Concentration Account or any
other Deposit Account. Any electronic funds transfers (wire, automated clearing
house, etc.) to or from the Concentration Account or any other Deposit
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Account will be subject to the terms and conditions of Concentration Bank's
standard agreements for such services, as in effect and as amended from time to
time. In the event of any conflict between the terms and conditions of such
agreements and those of this Agreement, then the terms of this Agreement shall
control.
(b) Concentration Bank may rely, and shall be protected
in acting or refraining from acting, upon any notice (including but not limited
to electronically confirmed facsimiles of such notice) believed by
Concentration Bank to be genuine and to have been given by the proper party or
parties.
(c) If the Borrower becomes subject to a voluntary or
involuntary proceeding under the United States Bankruptcy Code, or if
Concentration Bank is otherwise served with legal process or becomes aware of
facts or circumstances which Concentration Bank in good faith believes affects
its ability to carry out the terms of a notice pursuant to Section 5 hereof or
the disposition of funds deposited in the Concentration Account or any other
Deposit Account, Concentration Bank shall have the right (i) to place a hold on
funds deposited in the Concentration Account or other Deposit Account until
such time as Concentration Bank receives an appropriate order from a court of
competent jurisdiction or other assurances satisfactory to Concentration Bank
establishing that such notice may be effectuated and/or funds may continue to
be disbursed according to the instructions contained in this Agreement; or (ii)
to commence, at the Borrower's expense, an interpleader action in any court of
competent jurisdiction and to take no further action except in accordance with
joint instructions from the Borrower and the Agent or in accordance with the
final order of court in such action.
SECTION 13. Remedies Cumulative, etc. The rights,
remedies, and benefits of the Agent herein provided are cumulative and not
exclusive of any other rights, remedies, or benefits that the Agent may have
under this Agreement, the Borrower Security Agreement, the Credit Agreement,
any other Credit Document, or at law, in equity, by statute, or otherwise.
SECTION 14. No Delay; Waiver, etc. No delay or failure
on the part of the Agent or the Concentration Bank in exercising and no course
of dealing with respect to, any power or right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any power or rights
hereunder preclude other or further exercise thereof or the exercise of any
other power or right.
SECTION 15. Modification; Resignation.
(a) No modification, amendment, or waiver of any
provision of this Agreement nor any consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent and the Concentration Bank and if an amendment or
modification, the Borrower, and then such modification, amendment, waiver, or
consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on the Borrower in any case shall
entitle it to any other or further notice or demand in the same, similar or
other circumstances.
(b) The Concentration Bank may resign upon 60 days
written notice to the Borrower and the Agent; provided that it may resign
immediately upon written notice to the other parties in the event of suspected
fraud or other illegal activity in connection with the
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Concentration Account, any Deposit Account or this Agreement. Prior to the
effectiveness of such resignation, the Borrower shall appoint a new
Concentration Bank hereunder (which appointment shall be with the consent of
the Required Lenders, such consent not to be unreasonably withheld) and cause
such new Concentration Bank to execute and deliver to the Agent a Concentration
Bank Agreement in form and substance satisfactory to the Agent. Upon the
effectiveness of such resignation, PNC Bank, National Association shall close
the Concentration Account and transfer all funds therein and any future
instruments deposited therein to the new Concentration Bank, unless otherwise
instructed by Borrower and Agent (or solely by Agent after the giving of
Notice).
SECTION 16. Notices. Prior to an Event of Default, the
Concentration Bank promptly will provide to the Agent copies of all monthly
statements rendered to the Borrower and any other item reasonably requested by
the Agent. On and after an Event of Default, all notices or demands by any
party on the other relating to this Agreement shall be in writing. Notices
shall be deemed received within five Business Days after being deposited in a
United States post office box, postage prepaid, properly addressed to the
Borrower, the Agent, or the Concentration Bank at the addresses stated below,
subject to the earlier receipt thereof as described in Section 5. Notices may
also effectively be given by telecopy machine, if the party to whom the notice
is being sent has such a device in its office, provided a complete copy of any
notice so transmitted shall also be mailed in the same manner as required for a
mailed notice. Notices may also be delivered by courier or otherwise personally
delivered. Such notices shall be deemed effective upon receipt. All notices,
including telephone notices, daily debit and credit advices, monthly statements
of account, photocopies, returned items and general correspondence shall be
sent to the addresses and, when applicable given at the telephone numbers set
forth on the signature pages hereof or to such other person or address as any
party shall designate to the others from time to time in writing.
SECTION 17. Limitation of Liability.
(a) The Concentration Bank shall not be liable to the
Borrower, Agent or the Lenders for any expense, claim, loss, damage or cost
("DAMAGES") arising out of or relating to its performance under this Agreement
other than those Damages which result directly from its acts or omissions
constituting gross negligence.
(b) In no event shall the Concentration Bank be liable
for any special, indirect, exemplary or consequential damages, including, but
not limited to, lost profits, even if advised of the possibility or likelihood
of such damages.
(c) The Concentration Bank shall be excused from failing
to act or delay in acting, and no such failure or delay shall constitute a
breach of this Agreement or otherwise give rise to any liability of the
Concentration Bank, if (i) such failure or delay is caused by circumstances
beyond the Concentration Bank's reasonable control, including, but not limited
to, legal constraint, emergency conditions, action or inaction of governmental,
civil or military authority, fire, strike, lockout or other labor dispute, war,
riot, theft, flood, earthquake or other natural disaster, breakdown of public
or private common carrier communications or transmission facilities, equipment
failure, or act, negligence or the breach by the Borrower or Agent of any of
their respective obligations hereunder, or (ii) such failure or delay resulted
from the
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Concentration Bank's reasonable belief that the action would have violated any
guideline, rule or regulation of any governmental authority.
(d) Notwithstanding any of the other provisions of this
Agreement, in the event of the commencement of a case pursuant to Xxxxx 00,
Xxxxxx Xxxxxx Code, filed by or against the Borrower, or in the event of the
commencement of any similar case under then applicable federal or state law
providing for the relief of debtors or the protection of creditors by or
against the Borrower, the Concentration Bank may act reasonably to comply with
all applicable provisions of governing statutes and neither the Borrower, Agent
or any Lender shall assert any claim against the Concentration Bank for doing
so.
SECTION 18. Jurisdiction. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST THE BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE BORROWER
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. The Borrower
hereby agrees that service of all process in any such proceeding in any such
court may be made by registered or certified mail, return receipt requested, to
the Borrower at its address specified on the signature pages hereof, such
service being hereby acknowledged by the Borrower to be sufficient for personal
jurisdiction in any action against the Borrower in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of the Agent or the Concentration Bank to bring proceedings
against the Borrower in the courts of any other jurisdiction.
SECTION 19. Waiver of Jury Trial. EACH OF THE PARTIES
TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope
of this waiver is intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims, and all other common law and statutory claims. Each of the
parties to this Agreement acknowledges that this waiver is a material
inducement to enter into a business relationship, that each other party already
relied on this waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future dealings. Each of the
parties to this Agreement further warrants and represents that it reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
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SECTION 20. Governing Law.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THIS AGREEMENT
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. NOTWITHSTANDING THE FOREGOING, THE SECURITY INTERESTS GRANTED
HEREUNDER SHALL BE GOVERNED AND DETERMINED BY THE UNIFORM COMMERCIAL CODE IN
EFFECT IN KENTUCKY, AS SUCH CODE MAY BE AMENDED (INCLUDING AMENDMENTS RELATED
TO REVISED ARTICLE 9) OR SUCH OTHER APPLICABLE LAW (AS AMENDED) THAT INCREASES
THE VALIDITY AND ENFORCEABILITY OF THE SECURITY INTERESTS GRANTED HEREUNDER, IT
BEING THE INTENT OF THE PARTIES THAT THE SECURITY INTERETS HEREUNDER BE GIVEN
THE BROADEST POSSIBLE SCOPE.
(b) The Borrower, the Agent, and the Concentration Bank
agree that for purposes of Article 9. Secured Transactions; Sales of Accounts,
Contract Rights and Chattel Paper, of Kentucky's version of the Uniform
Commercial Code, KY ST xx.xx. 355.9-101 - 9-710, the jurisdiction of the
Concentration Bank and Concentration Account is Kentucky.
SECTION 21. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party and all covenants,
promises, and agreements by or on behalf of the Borrower or by and on behalf of
the Concentration Bank shall bind and inure to the benefit of the successors
and assigns of the Borrower, the Concentration Bank, the Agent, and the
Lenders.
SECTION 22. Execution in Counterparts. This Agreement
may be executed via facsimile and in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument; signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically attached to the
same document. The Borrower and the Concentration Bank each hereby acknowledges
receipt of a true, correct, and complete counterpart of this Agreement.
SECTION 23. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
of this Agreement or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 24. Termination. This Agreement shall terminate
upon the earlier of (i) payment in full of all monetary obligations of the
Borrower under the Credit Agreement and the termination of the commitments
thereunder, and (ii) effectiveness of the resignation of the Concentration Bank
as provided in Section 15(b).
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SECTION 25. Headings. The section headings in this
Agreement are inserted for convenience of reference and shall not be considered
a part of this Agreement or used in its interpretation.
SECTION 26. Agreement Duly Authorized. All parties
hereto represent and warrant that they have taken all actions and obtained all
authorizations, consents and approvals as are conditions precedent to their
authority to execute this Agreement.
SECTION 27. Notice of Legal Process. If the
Concentration Bank receives any notice of legal process of any kind relating to
the Borrower, the Concentration Bank shall make a reasonable effort to give
oral notice to the Agent and the Borrower of such legal process.
SECTION 28. Indemnity. The Borrower agrees to
indemnify, defend and hold harmless Concentration Bank and its affiliates,
directors, officers, employees, agents, successors and assigns (each an
"INDEMNITEE") from and against any and all liabilities, losses, claims,
damages, demands, costs and expenses of every kind (including but not limited
to costs incurred as a result of items being deposited in the Concentration
Account and being unpaid for any reason, reasonable attorney's fees and the
reasonable charges of Concentration Bank's in-house counsel) incurred or
sustained by any Indemnitee arising out of Concentration Bank's performance of
the services contemplated by this Agreement, except to the extent such
liabilities, losses, claims, damages, demands, costs and expenses are the
direct result of Concentration Bank's gross negligence or willful misconduct.
Compliance by Concentration Bank with its standard procedures for the services
provided hereunder in all material respects shall be deemed to be the exercise
of ordinary care by Concentration Bank, provided that such standard procedures
comply with all provisions of applicable law and good banking practices.
Concentration Bank shall have no obligation to review or confirm that any
actions taken pursuant to this Concentration Bank Agreement comply with the
Credit Agreement or any other agreement or document. The provisions of this
Section shall survive termination of the Concentration Account. To the extent
that the undertaking to indemnify and hold harmless set forth in this Section
may be unenforceable because it is violative of any law or public policy, the
Borrower shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of all
indemnified liabilities incurred by the Indemnitees or any of them. Each
Indemnitee, as soon as reasonably practicable, shall notify the Borrower and
the Agent of the commencement of any legal proceeding by a third Person under
which any indemnified liability might arise. The Borrower shall have the option
to participate in the defense of all claims under which any indemnified
liability might arise, but neither the Agent nor the Borrower shall have the
option to compel any Indemnitee to employ counsel not of the Indemnitee's
choosing.
SECTION 29. No Right of Set-Off. Except as expressly
provided in Section 8 or Section 28, the Concentration Bank shall have no right
to set off and appropriate or recoup any amount with respect to any banking
relationship between Concentration Bank and Borrower or any of its Subsidiaries
or otherwise; provided, however, that nothing in this Agreement is intended to
effect or impair (i) the rights of the Concentration Bank under a Pledge
Agreement from the Borrower in favor of the Concentration Bank with respect to
a Certificate of Deposit issued by the Concentration Bank in the principal
amount of $30,000 and any proceeds thereof, including any proceeds deposited in
any Deposit Account, or (ii) the Concentration Bank's right to receive payments
from the Borrower under a VISA Corporate Card Arrangement with the
Concentration Bank with a credit limit of $25,000 ("Corporate Card
Obligations").
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers as of the day and year first
above written.
Address: AMERICAN HOMEPATIENT, INC.,
a Delaware corporation
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-Mail: By:
-----------------------------------
Name:
Title:
Address: BANKERS TRUST COMPANY,
as Agent
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-Mail: xxxxxx-x.xxxxx@xx.xxx By:
-----------------------------------
Name:
Title:
Address: PNC BANK, NATIONAL ASSOCIATION,
Xxxxx Xxxxxx as Concentration Bank
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 By:
Telecopy: (000) 000-0000 -----------------------------------
E-Mail: xxxxx.xxxxxx@xxxxxxx.xxx Name:
Title:
SCHEDULE I
A. Concentration Account
PNC Bank account 300531945, located at 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
B. Deposit Accounts
None.
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SCHEDULE II
DEFINITION OF CASH EQUIVALENTS
"CASH EQUIVALENTS" means, as at any date of determination,
(i) marketable securities (a) issued or directly and unconditionally guaranteed
as to interest and principal by the United States Government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Services ("S&P") or Xxxxx'x
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States or any state
thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund as
regulated by Rule 2a-7 under the Investment Company Act of 1940 that (a) has a
net asset value which remains a constant $1.00 per share, (b) has net assets of
not less than $500,000,000, and (c) has the highest rating then obtainable from
either S&P or Moody's.
S-1
