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EXHIBIT 10.56
SECURITY AGREEMENT
This Security Agreement ("Agreement") made on this 25th day of September, 2000,
by and between MICHIGAN NATIONAL BANK, a national banking association, of 00000
Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 (the "Bank"), and United American
Healthcare Corporation, a Michigan corporation, with chief executive offices
located at 0000 Xxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS Borrower has obtained or may from time to time obtain loans
or be otherwise obligated to Bank and has agreed to secure its Obligations (as
defined in Paragraph 1. below) to Bank by granting Bank security interests in
the personal property described in this Agreement, and
NOW THEREFORE Borrower and Bank AGREE AS FOLLOWS:
1. GRANT OF SECURITY INTEREST. Borrower grants Bank a continuing
security interest in the collateral described in Paragraph 2. below (all of the
personal property described in Paragraph 2. is individually and collectively
referred to in this Agreement as the "Collateral"), to secure the repayment of
all loans (including all renewals, extensions, modifications, or refinancings
thereof) from Bank to Borrower, together with any and all other obligations now
or in the future owing from Borrower to Bank (including future advances),
however incurred or evidenced, whether primary, secondary, contingent or
otherwise, whether arising under this Agreement, under other security
agreements, promissory notes, loan agreements, guaranties, mortgages, leases,
instruments, documents, or under any other contractual obligation now or
hereafter arising (hereinafter collectively called the "Obligations") together
with all costs, expenses and reasonable attorneys' fees incurred by Bank in the
disbursement, administration and collection of the Obligations or the
protection, maintenance, and liquidation of the Collateral. Borrower agrees not
to sell the Collateral except in the ordinary course of Borrower's business and
will not assign, transfer, pledge, grant a security interest in, or otherwise
dispose of or encumber the Collateral without Bank's prior written consent.
2. COLLATERAL. The Collateral covered by this Agreement is all of
Borrower's property described below where an "X" or check xxxx has been placed
in the applicable box, which Borrower now owns or shall hereafter acquire or
create, immediately upon acquisition or creation, wherever located, and
includes, but is not limited to, any items listed on any schedule or list
attached to this Agreement:
[ ] A. ACCOUNTS. All Accounts, Documents, Chattel Paper, Instruments,
and General Intangibles, including any rights to any tax
refunds from any governmental authority (all of which are
hereinafter individually and collectively referred to as
"Accounts");
[ ] B. INVENTORY. All Inventory and Goods including, but not limited
to, raw materials, work in process, finished goods, tangible
property, stock in trade, wares and merchandise used in, sold
by, or stopped in transit by Borrower;
[ ] C. EQUIPMENT. All Equipment and Fixtures, including all machinery
and vehicles, and all substitutions, improvements, replacements
and additions thereto;
[ ] D. INVESTMENT PROPERTY. All certificated and uncertificated
securities, security entitlements, securities accounts,
commodity contracts and commodity accounts.
[X] E. ALL ASSETS. All of Borrower's personal property described in
Paragraph 2.A. through 2.D. above, inclusively;
[ ] F. SPECIFIC. The following specific property and all related
rights:
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If none of the above boxes are checked, it is understood and agreed that
Borrower grants Bank a security interest in all of Borrower's assets as if the
box adjacent to Paragraph 2.E. had been checked.
For each and every type of Collateral described above, the proceeds of the
Collateral and the proceeds of all insurance, eminent domain, condemnation
awards, and all products of and all accessions and attachments to the Collateral
are also part of the Collateral. In addition, any and all bank deposits and bank
accounts or other sums at any time credited or due from Bank to Borrower and any
and all instruments, documents, policies, certificates of insurance, securities,
goods, accounts, chattel paper, cash, property and the proceeds thereof which
Borrower owns or in which Borrower has an interest and which are at any time in
the possession or control of Bank or any third party acting on Bank's behalf,
shall also be considered Collateral.
3. PERFECTION OF SECURITY INTEREST. Borrower agrees to promptly
execute and deliver to Bank, concurrently with this Agreement and at any time
hereafter at Bank's request, all financing statements, assignments, certificates
of title, applications for motor vehicle or watercraft titles, affidavits,
reports, notices, schedules of Accounts, designations of Inventory, letters of
authority and any and all other documents and agreements as Bank requests, in
form satisfactory to Bank, to perfect and to at all times maintain perfected
Bank's security interests in the Collateral. Borrower also agrees to make
appropriate entries on its books and records disclosing Bank's security
interests in the Collateral.
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4. WARRANTIES. Borrower warrants to Bank, that: (a) Borrower has
or forthwith will acquire full legal title to the Collateral, is the lawful
owner of all of the Collateral, and has an unqualified right to subject the
Collateral to the Bank's security interest; (b) except as specifically stated in
any attachment to this Agreement, Bank's security interest in the Collateral is
a first priority security interest, there are no financing statements covering
any of the Collateral in any public office, and Borrower will defend and
indemnify the Bank against the claims and demands of all other persons claiming
an interest in the Collateral; (c) all of the Collateral is located in the
State of Michigan at the address stated above or other address specified in
Paragraph 10. of this Agreement or is in the Bank's possession, and Borrower
agrees not to remove the Collateral outside the State of Michigan without
Bank's prior written consent, nor use or permit the Collateral to be used for
any unlawful purpose; (d) Borrower does not conduct Borrower's business under
any other name than that given above, and agrees not to change or reorganize the
business entity under which it does business except upon the Bank's prior
written approval and, if such approval is granted, Borrower agrees that all
documents, instruments, and agreements requested by Bank shall be prepared,
filed and recorded at Borrower's expense, before such change occurs; (e)
Borrower's records are located at the above address and Borrower agrees not to
remove any records concerning the Collateral from said address nor keep any of
its records at any other address unless at least ten (10) days prior written
notice is given to Bank of any new address; (f) the Collateral is in good
condition and repair and will be kept in such condition; (g) Borrower has full
authority, complete power, and is duly authorized to enter into this Agreement
with Bank, and the execution of this Agreement does not constitute a breach of
any provision contained in any other agreement or instrument to which Borrower
is or may become a party or by which Borrower is or may be bound or affected;
(h) all financial statements and information delivered and to be delivered by
Borrower to Bank are true and correct, have been prepared in accordance with
generally accepted accounting principles, and there has been no material adverse
change in the financial condition of Borrower since the most recent financial
information submitted to Bank; (i) there are no actions or proceedings either
threatened or pending against Borrower which might result in any material
adverse change in Borrower's financial condition or materially affect any of
Borrower's assets; (j) all personal property taxes on the Collateral are fully
paid and Borrower has filed all other Federal, State and local governmental tax
returns Borrower is required by law to file and all such taxes required to be
paid have been paid in full; (k) no part of the Collateral is classified or
classifiable as hazardous waste under Federal or Michigan environmental laws
and regulations, Borrower is in full compliance with all Federal and Michigan
environmental laws and regulations, and Borrower hereby indemnifies Bank against
any and all expenses and costs, including reasonable attorney fees, arising from
or related to any breach of these warranties. All of Borrower's warranties
contained in this Paragraph 4. continuing warranties until Borrower has no
remaining Obligations to Bank.
5. TAXES, INSURANCE. Borrower agrees to: (a) promptly pay all
taxes, levies, assessments, judgments, and charges of any kind upon or relating
to the Collateral, to Borrower's business, and to Borrower's ownership or use of
any of its assets, income, or gross receipts; (b) at its own expense, keep all
of the Collateral fully insured against loss or damage by fire, theft, explosion
and other risks, in such amounts, with such companies, under such policies, and
in such form, as shall be satisfactory to Bank, a copy of which policies shall
be delivered to Bank with evidence of premium payment and which policies shall
be endorsed to provide Bank a standard loss payable clause with not less than 30
days notice of cancellation or of any change in coverage (CF 00000000) and the
Bank shall have a security interest in the proceeds of all such insurance and
may apply any such proceeds received by it toward payment of Borrower's
Obligations, whether or not due, in such order of application as Bank may
determine; (c) maintain at its own expense, public liability and property damage
insurance in such amounts, with such companies, under such policies, and in such
form as shall be satisfactory to Bank, and (d) upon Bank's request, shall
furnish Bank with original insurance policies and evidence that such policies
have been paid and maintained. If, after such request, the Bank does not
promptly receive evidence that any of the insurance coverages required by this
paragraph are being maintained, Bank may assume Borrower does not have the
required coverage. If Borrower at any time fails to obtain or maintain any of
the policies required above or pay any premium relating thereto, or fails to pay
any tax, assessment, levy or charge, or discharge any lien, claim, or
encumbrance, then Bank, without waiving or releasing any obligation or default
of Borrower hereunder, may at any time, but without obligation to do so, make
such payment, obtain such discharge, obtain and maintain policies of insurance,
pay such premiums, and take any other action as Bank deems advisable. All sums
disbursed by Bank, including reasonable attorney fees, court costs, expenses,
and other charges relating thereto, shall be part of the Obligations secured
hereby, shall be payable on demand, and shall bear interest until paid at the
highest rate of interest then being charged by and loaned from Bank to Borrower.
Upon Borrower's failure to obtain or maintain insurance upon the Collateral, the
Bank may assess a service charge for obtaining and servicing the required
insurance coverage.
6. COLLECTION OF ACCOUNTS.
A. If Paragraph 2.A. or 2.E. above is checked, Bank
conditionally authorizes Borrower to collect Accounts from Borrower's Account
debtors provided, however, this privilege may be terminated by Bank at any time
upon written notice from Bank and, upon mailing such notice, Bank shall have all
of Borrower's rights, title, and interest in the Accounts, including a right
of stoppage in transit. After notice as aforesaid or upon the occurrence of an
Event of Default (as subsequently defined), Bank may notify any Account
debtor(s) of Bank's security interest in Borrower's Accounts and shall be
entitled to collect same, and Borrower will thereafter receive all Accounts
payments as the agent of and as trustee for Bank and will deliver to Bank on the
day of receipt, all checks, cash, drafts, acceptances, notes and other Accounts
payments and, until such delivery, Borrower shall not use or commingle any
Accounts payments and shall at all times keep all such remittances separate and
apart from Borrower's own funds, capable of identification as the Bank's
property. After any default, Borrower shall open all mail only in the presence
of a Bank representative, who may remove therefrom any Account remittance(s).
Bank and its representatives are hereby authorized to endorse in Borrower's
name, any item received by the Bank representing any payment on or proceeds of
any of the Collateral, and may sign Borrower's name upon all Accounts, invoices,
assignments, financing statements, notices to debtors, bills of lading, storage
receipts, or other instruments or documents in respect to the Accounts, the
proceeds therefrom, or property related thereto. Borrower shall promptly give
Bank copies of all Accounts statements, accompanied by such additional
information, documents, or copies thereof, as Bank may request. Borrower shall
maintain all records with respect to the Accounts and with respect to the
general conduct and operation of Borrower's business, including balance sheets,
operating statements and other financial information, in accordance with
generally accepted accounting principles and as Bank may request.
B. If Paragraph 2.B. or 2.E. above is checked, until the
Bank shall notify Borrower of the revocation of such power and authority,
Borrower: (i) may, in the ordinary course of its business only, at Borrower's
expense, sell, lease, or furnish under contracts of service any of the Inventory
normally held by Borrower for such purpose; (ii) may use and consume any raw
materials, work in process or materials, the use and consumption of which is
necessary in order to carry on Borrower's business; and (iii) shall, at its own
expense, endeavor to collect, as and when due, all amounts due with respect to
any of the Collateral, including the taking of such collection action as the
Bank may request or, in the absence of such request, as Borrower deems
advisable. A sale in the ordinary course of business does not include a transfer
in partial or total satisfaction of any debt of Borrower.
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7. INFORMATION. Borrower agrees to permit Bank or Bank's agents to
have access to and inspect the Collateral, and from time to time verify
Accounts, Inventory, Equipment, and all other Collateral, and check, make copies
of or extracts from the books, records and files of Borrower, and Borrower shall
make same available at any time for such purposes. Bank is hereby authorized to
conduct from time to time such investigation of Borrower's continuing
creditworthiness as Bank deems appropriate including, without limitation,
contact with Borrower's accountants or other third parties, and Bank is also
authorized to respond to any credit inquiries received from trade creditors or
other credit granting institutions. Borrower agrees to promptly supply Bank with
such financial and other information concerning its financial and business
affairs, assets and liabilities as Bank may from time to time request, and
Borrower agrees that Bank or its agents may from time to time verify Borrower's
continuing compliance with any of Borrower's warranties made in Paragraph 4.
above, at Borrower's cost and expense.
8. DEFAULT.
A. Except as otherwise provided in any promissory note,
loan agreement, or other agreement secured by this Agreement, the occurrence of
any of the following events shall constitute an Event of Default: (a) failure to
pay any of the Obligations when due; (b) any statement, warranty, or
representation of Borrower or any guarantor of the Obligations made herein or in
any other instrument, document, agreement, or financial statement now or
hereafter furnished to the Bank by or on behalf of the Borrower or a guarantor,
is false or misleading; (c) breach of any covenant, term, condition, or
agreement contained herein or in any related instrument, document, or agreement
by Borrower or any guarantor of the Obligations; (d) Borrower or any guarantor
of the Obligations ceases doing business or Borrower's or any guarantor's
existence is terminated by death, sale, dissolution, merger or otherwise; (e)
any conveyance is made of substantially all of Borrower's assets, any assignment
is made for the benefit of creditors, any receiver is appointed for Borrower, or
any insolvency, liquidation, or reorganization proceeding is filed by or against
Borrower under the Bankruptcy Code or otherwise; (f) any attachment, execution,
levy, forfeiture, tax lien or similar writ or process is issued against the
Collateral or any other property of Borrower, (g) any felony criminal proceeding
is brought against Borrower, Borrower's management, or any guarantor of the
Obligations; (h) Bank determines the interest rate charged by Bank on any loan
to Borrower is usurious or otherwise unlawful or limited; (i) any material
adverse change occurs or is imminent, the effect of which would be to
substantially diminish Borrower's or any guarantor's financial condition,
business, ability to perform their agreements with Bank, or the value of the
Collateral; (j) any Borrower indebtedness to the Bank or any other creditor
remains unpaid after acceleration of the maturity or after the maturity stated.
B. Whenever an Event of Default shall exist, the
Obligations may, at Bank's option, and without demand or notice of any kind, be
declared immediately due and payable and the Bank may exercise all rights and
remedies, including the right to immediate possession of the Collateral,
available to it under applicable law. Bank shall have the right to hold any
property then in or upon the Collateral at time of repossession and not covered
by this Agreement until return is demanded in writing. Borrower agrees, upon
default, to assemble all the Collateral at a convenient place acceptable to the
Bank, and to pay all costs of collection of the Obligations and enforcement of
the Bank's rights, including reasonable attorney fees, together with all Bank
expenses in locating the Collateral and repairs to any realty or other property
to which any of the Collateral may be affixed. Any notification of intended
disposition of any of the Collateral required by law shall be deemed reasonably
and properly given if sent at least seven (7) calendar days before such
disposition, postage prepaid, addressed to Borrower either at the address shown
in this Agreement or at any other address of Borrower appearing on the records
of the Bank.
9. GENERAL. Except as otherwise defined in this Agreement, all
terms in this Agreement shall have the meanings provided by the Michigan Uniform
Commercial Code, as amended from time to time. Any Bank delay in exercising any
power, privilege, or right under this Agreement, or under any other instrument
or agreement executed in connection with this Agreement shall not operate as a
waiver thereof, and no single or partial exercise shall preclude other or
further exercise thereof, or the exercise of any other power, privilege, or
right. The Bank's waiver of any Event of Default shall not constitute a waiver
of any subsequent default, but shall be restricted only to the default waived.
All rights, remedies and powers of Bank under this Agreement are irrevocable and
cumulative and not alternative or exclusive, and shall be in addition to all
rights, remedies, and powers given in any other instrument or agreement and by
the Michigan Uniform Commercial Code. This Agreement cannot be modified except
by a writing signed by Borrower and by the Bank.
This Agreement has been delivered in Michigan, and shall be construed
in accordance with the laws of the State of Michigan. Whenever possible, each
provision of this Agreement shall be interpreted to be effective and valid under
applicable law, but if any provision of this Agreement is prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without affecting the remainder of such
provision or the remaining provisions of this Agreement. All rights and
privileges of the Bank under this Agreement shall inure to the benefit of its
successors and assigns, and this Agreement shall be binding on all heirs,
executors, administrators, and successors of Borrower. If more than one Borrower
has signed this Agreement their obligations shall be joint and several.
10. SPECIAL PROVISIONS/ADDITIONAL AGREEMENTS. (If Collateral
includes Fixtures, describe the real estate here and in Form UCC-1A.)
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IN WITNESS WHEREOF Borrower and Bank have executed this Security
Agreement on the above-referenced date.
BORROWER'S ADDRESS: BORROWER:
0000 Xxxxxxx Xxxx Xxxx., Xxxxx 000 XXXXXX XXXXXXXX HEALTHCARE CORPORATION,
Xxxxxxx, Xxxxxxxx 00000 a Michigan corporation
By: /s/ Xxxxxxx X. Xxxxx Xx.
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Xxxxxxx Xxxxx
Its: Chief Operating Officer
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BANK:
MICHIGAN NATIONAL BANK,
a national banking association
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its: Asset Structuring Manager
106895
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