Exhibit 10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made on November 10, 2005,
between FAMILY HOME HEALTH SERVICES INC., a Nevada corporation, of 000 X. Xxx
Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000-0000 ("Borrower"), and COMERICA
BANK, a Michigan banking corporation, of 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Bank") to set forth the terms and conditions for certain loans from Bank
to Borrower.
1. DEFINITIONS. In this Agreement all capitalized terms used without a separate
definition shall have the meanings given to them in the attached Schedule of
Defined Terms. All accounting terms not specifically defined in this Agreement
shall be construed in accordance with GAAP. Where the context herein requires,
the singular number shall be deemed to include the plural, the masculine gender
shall include the feminine and neuter genders, and vice versa.
2. LOAN AND COLLATERAL.
2.1 LINE OF CREDIT. The Bank will make available to the Borrower, and the
Borrower may borrow from the Bank, and repay and reborrow, an amount up to a
maximum principal amount at any one time outstanding of One Million Three
Hundred Thousand Dollars ($1,300,000) ("Line of Credit") at any time prior to
the Bank's demand for payment in full of the Line of Credit, when the unpaid
balance will be due and payable; provided that borrowings under the Line of
Credit shall at no time exceed the maximum allowable under the Advance Formula
(defined below). The Line of Credit shall bear interest and be payable in the
amounts at the times and subject to the terms and provisions of the Master
Revolving Note in the original principal amount of One Million Three Hundred
Thousand Dollars, dated as of the same date as this Agreement, made by the
Borrower in favor of the Bank (the "Note"). Advances under the Line of Credit
shall be made only in the Bank's sole discretion. This Agreement shall not be
construed to be the Bank's commitment to make any advance under the Line of
Credit at any time or in any amount.
2.2 ADVANCE FORMULA. The total of outstanding advances to the Borrower
under the Line of Credit shall at no time exceed Seventy Percent (70%) of the
Borrower's Eligible Accounts ("Advance Formula") and any amount outstanding in
excess of the Advance Formula shall be immediately payable without notice or
demand.
2.3 USE OF LOAN PROCEEDS. The Borrower will use the proceeds of the Line of
Credit solely for the purpose of financing its working capital and general
business requirements and the Borrower will not require any additional financing
for such purpose(s).
2.4 BORROWING PROCEDURE. The Borrower may request an advance under the Line
of Credit on any day the Bank is open for business. The Bank will promptly make
the advance available to the Borrower by crediting the Borrower's general
deposit account number 1851866325 in the amount requested, or in such other
manner as the Borrower shall request in writing, unless:
2.4.1 The Bank's commitment to the Borrower under the Line of Credit
has expired.
2.4.2 The requested advance, when added to all of the Borrower's
unpaid advances, would cause the unpaid principal balance of the Line of Credit
to exceed the lesser of the amount of the Line of Credit or the maximum amount
allowable under the Advance Formula described in Section 2.2 above.
2.4.3 The Bank has not been furnished with sufficient reports or other
information required by the Bank to determine the Borrower's eligibility for the
requested advance.
2.4.4 The Bank has not been furnished with current documentation
satisfactory to the Bank of the Borrower's authority to borrow.
2.4.5 Any Event of Default has occurred. (The Bank reserves the right
to require the Borrower to certify that no Event of Default has occurred as of
the date of any advance under the Line of Credit).
2.5 COLLATERAL. As security for the performance of the Borrower's
obligations in connection with the Line of Credit, whether under this Agreement,
the Note or otherwise, the Borrower has granted to the Bank a security interest
in (a) Accounts, Chattel Paper, Deposit Accounts, Documents, Equipment,
Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment
Property, and Supporting Obligations, wherever located and whether now owned or
hereafter acquired, together with all replacements thereof, substitutions
therefor, accessions thereto, and all proceeds and products of all the
foregoing, (b) all account balances of the Borrower from time to time deposited
with the Bank, and (c) all property of the Borrower from time to time in the
possession of the Bank. The Line of Credit and the other obligations of the
Borrower under this Agreement are also secured by any mortgage, security
agreement, pledge, assignment or other agreement issued by the Borrower from
time to time for the benefit of the Bank. The term "Collateral" shall mean all
property securing the Line of Credit and the Borrower's other obligations.
2.6 GUARANTORS. Payment and performance of the Line of Credit shall be
guaranteed jointly and severally by Xxxxx Xxxxx and Xxxxx Xxxxxxxxxx pursuant to
a Guaranty in form and substance satisfactory to Bank.
2.7 FEE. Borrower shall pay the Bank an origination fee of Six Thousand
Five Hundred Dollars ($6,500) with respect to the Line of Credit.
3. CONDITIONS TO LOAN. The obligation of the Bank to make the Line of Credit
available is subject to the following conditions:
3.1 LOAN DOCUMENTS. The Bank shall have received and recorded or filed (as
appropriate) executed copies of all loan documents, including, without limit,
the Note, all required security agreements, mortgages, assignments and financing
statements covering the Collateral and all guaranties and subordination
agreements (the "Loan Documents").
3.2 COMMITMENT LETTER. The Bank shall have determined that all conditions
set forth in the Bank's letter offering the Line of Credit, dated October 28,
2005 (the "Commitment Letter"), have been satisfied, including, without limit,
the payment of all required fees and expenses.
3.3 ADDITIONAL DOCUMENTS. The Bank shall have received such other
documents, instruments and certificates as the Bank deems necessary.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the
Bank, as long as the Line of Credit remains outstanding, as follows:
4.1 EXISTENCE AND AUTHORITY. The Borrower is a corporation, duly organized
and validly existing under the laws of the State of Nevada. The person or
persons executing this Agreement have full
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power and complete authority to execute this Agreement and all related documents
and, when executed, this Agreement and all related documents will be legal,
valid and binding obligations of the Borrower, enforceable in accordance with
their terms. The Borrower is authorized or registered to conduct business in
each jurisdiction where its business or properties require such authorization or
registration. The Borrower has no subsidiaries.
4.2 BUSINESS AND LOCATION. The Borrower is in the business of providing
home healthcare services, its chief executive office is 000 X. Xxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000-0000, and the Borrower's business locations
and subsidiaries are set forth on the attached Schedule 4.2.
4.3 NO LITIGATION. There are no pending or to the Borrower's knowledge
threatened suits or proceedings before any court, governmental agency,
regulatory body, or administrative tribunal to which the Borrower is a party or
by which its property may be effected and which may result in any material
change in the financial condition of the Borrower or the Collateral.
4.4 FINANCIAL CONDITION. The Borrower has furnished to the Bank current
financial statements, which statements were prepared in accordance with
generally accepted accounting principles and are correct and complete and
accurately present the financial condition of the Borrower on the dates thereof.
Further, there has been no material adverse change in the business, property or
condition of the Borrower since the date of the most recent financial statements
that the Borrower has furnished to the Bank, and the Borrower is not in default
of any other indebtedness or material obligation. The Borrower is solvent, able
to pay its debts as they mature, has capital sufficient to carry on its business
and has assets the fair market value of which exceeds its liabilities, and the
Borrower will not be rendered insolvent, undercapitalized or unable to pay
maturing debts by the execution or performance of this Agreement or the Loan
Documents.
4.5 TITLE. The Borrower has good and marketable title to all property
(tangible and intangible) necessary for the proper and efficient operations of
the Borrower's business, free from all liens and encumbrances, except those
described in writing, and acceptable to Bank.
4.6 TAXES. The Borrower has filed all federal, state and local income and
other tax returns and other reports required to be filed prior to the date of
this Agreement and the Borrower has paid all taxes, withholdings, assessments
and other governmental charges that are due and payable prior to the date of
this Agreement.
4.7 GOVERNMENTAL AND NON-GOVERNMENTAL REQUIREMENTS. The Borrower has
obtained all licenses, permits, authorizations, consents or approvals from each
governmental authority and has obtained or will obtain all licenses,
authorizations, consents, approvals or franchises from each non-governmental
entity necessary for the operation of the Borrower's business and all such
licenses, permits, authorizations, consents or approvals are, or upon obtaining
thereof, will be, in full force and effect.
4.8 COMPLIANCE WITH LAW. The Borrower has complied with all applicable
laws, rules, regulations and orders relating to the Borrower or any aspect of
the Borrower's business or assets, including, without limit, all environmental
laws, rules, regulations and orders. The Borrower agrees to indemnify and hold
the Bank harmless from any and all violations by the Borrower of any laws,
rules, regulations and/or orders.
4.9 SURVIVAL. All warranties and representations of the Borrower contained
in this Agreement shall survive the execution of this Agreement and any advances
made under this Agreement.
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5. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees that, as long as the
Line of Credit remains outstanding, the Borrower shall:
5.1 FINANCIAL CONDITION REQUIREMENTS. Maintain the following as of the end
of each fiscal quarter for the Borrower combined with all of its subsidiaries or
affiliates having indebtedness to the Bank, as determined and/or calculated in
accordance with generally accepted accounting principles consistently applied:
5.1.1 A tangible effective net worth of not less than Nine Hundred
Thousand Dollars ($900,000), increasing by Five Hundred Thousand Dollars
($500,000) as of the last fiscal quarter of each fiscal year. Tangible effective
net worth is defined as total assets minus intangible assets minus total
liabilities plus subordinated debt. Intangible assets include goodwill, patents,
copyrights, mailing lists, catalogs, trademarks, bond discounts, underwriting
expenses, organization expenses, prepaid accounts receivable, all other
intangibles, and accounts and notes due from officers, shareholders, members,
partners and affiliated entities.
5.1.2 A fixed charge coverage ratio of not less than 1.25 to 1.00.
Fixed charge coverage ratio is defined as the ratio of (i) net income plus
interest, depreciation and amortization expense to (ii) the sum of taxes,
rent/operating lease expense, dividends and distributions, interest expense, and
principal paid or payable on funded debt.
5.2 BOOKS AND REPORTS. Maintain a proper accounting system in accordance
with generally accepted accounting principles, consistently applied, and furnish
the reports specified below, in form and detail satisfactory to the Bank (in
each case, such reports shall be certified by an authorized individual on behalf
of the Borrower).
5.2.1 Management-prepared financial statements of the Borrower
including balance sheet, income, cash flow and retained earnings statements
within forty five (45) days after the end of each fiscal quarter.
5.2.2 Financial statements of the Borrower including balance sheets,
income, cash flow and retained earnings statements within one hundred twenty
(120) days after the end of each fiscal year, with an unqualified audit opinion
from certified public accountants acceptable to the Bank.
5.2.3 Covenant compliance certificate within forty five (45) days
after the end of each fiscal quarter showing the Borrower's calculation of its
compliance with the financial covenants set forth in Section 5.1.
5.2.4 Monthly borrowing base reports within twenty (20) days after the
end of each month, including a report of Accounts and accounts payable agings
and listings.
5.2.5 Audits of the Accounts of Coastal Health Care Solutions and
Physical Therapy Rehabilitation Services, Inc. by the Bank's representatives at
the Borrower's cost after acquisition by the Borrower.
5.2.6 Annual projections within thirty (30) days before the first day
of each fiscal year.
5.3 NOTICE OF ADVERSE EVENTS. Promptly notify the Bank in writing of any
Event of Default or institution of any litigation, administrative proceeding or
lien filed by governmental authorities or other
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proceeding or occurrence which may have a material adverse effect on the
Borrower's business, property or financial condition.
5.4 INSPECTIONS; COMPLIANCE. The Borrower shall permit Bank and its
designees from time to time to make such inspections and audits, and to obtain
such confirmations or other information, with respect to any of the Collateral
or any Account Debtor as Bank is entitled to make or obtain under the Security
Agreement, and shall reimburse Bank on demand for all costs and expenses
incurred by Bank in connection with such inspections and audits.
5.5 EXISTENCE AND IDENTITY. Maintain and keep in full force and effect the
Borrower's existence under the laws of the state of its organization, and
continue its business as presently conducted. The Borrower shall not change the
legal format under which the Borrower was organized nor sell all or
substantially all of its property or merge the Borrower's business, in whole or
in part, without the prior written consent of the Bank. The Borrower shall give
the Bank prompt written notice of any change in location of its chief executive
office or any other place of business.
5.6 INSURANCE. Maintain and keep in effect at all times the following
insurance coverages, in addition to any insurance required under any other loan
document, and provide evidence of insurance to the Bank in form satisfactory to
it:
a. All-risk hazard insurance for fire and extended coverage insurance.
The policy must be in the amount of the Line of Credit, or the full
replacement cost of the property and improvements, whichever is
greater, but in no event less than one hundred percent (100%) of the
insurable value. The insured premises must be described by the street
address of the property. The hazard insurance policy must contain
replacement cost, inflation-guard, vandalism and malicious mischief
endorsements.
b. Comprehensive general liability and property damage insurance with
initial limits of at least $1,000,000/$1,000,000 for bodily injury and
$1,000,000 for property damage.
c. Business interruption insurance in an amount to cover at least a
twelve (12) month period.
d. All insurance policies shall be in such amounts, upon such terms and
in such form as shall be acceptable to the Bank, and shall be carried
with insurers acceptable to the Bank. The Bank's failure to request
copies of such coverage or failure to approve such shall not be a
waiver of the Bank's future right to enforce the terms of this
Section. All insurance policies shall be furnished to the Bank upon
its request. Where the Bank can be insured as a mortgagee or loss
payee (with a Bank's loss payable endorsement) because of its security
interest, such endorsement shall be attached to the policies. All
policies shall require at least thirty (30) days prior written notice
to the Bank of cancellation or modification.
5.7 TAXES. Promptly pay all taxes, withholdings, levies and assessments due
to all local, state and federal agencies, and if requested by the Bank, submit
to the Bank copies of any and all federal or state or local tax returns
evidencing the computation and the payment of such taxes.
5.8 ERISA COMPLIANCE. Meet current funding requirements for qualified
employee benefit plans as required by law or regulations.
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5.9 ENVIRONMENTAL COMPLIANCE. Ensure that the Borrower's real property,
whether owned or leased, complies in all respects with all applicable
environmental laws, notify Bank promptly and in reasonable detail in the event
that the Borrower becomes aware of the presence of hazardous materials or a
violation of any environmental law at the Borrower's real property, conduct all
required clean-up, closure or other remediation of any condition necessary to
maintain compliance with all applicable environmental laws, and keep the such
property free of any lien imposed pursuant to any applicable environmental law.
5.10 NO DEFAULT CERTIFICATE. Furnish to the Bank, within ten (10) days
after request by the Bank, a certificate of the Borrower stating that no Event
of Default has occurred or, if an Event of Default has occurred, stating its
nature, how long it has existed and what action the Borrower proposes to take
with respect to the Event of Default.
5.11 MANAGEMENT. Continue to be managed and operated by the present
management.
5.12 OTHER INFORMATION. Promptly furnish to the Bank such other
information, documents or certificates regarding the operations, business
affairs and financial condition of the Borrower as the Bank may reasonably
request from time to time and permit the Bank, its employees, attorneys and
agents to inspect, confirm and copy all of the books, records and properties of
the Borrower at any reasonable time.
6. NEGATIVE COVENANTS. The Borrower covenants and agrees that, as long as the
Loan(s) remain(s) outstanding, the Borrower shall not:
6.1 ACQUIRE FIXED ASSETS. Acquire fixed assets in any twelve (12) month
period for a cost which exceeds, in the aggregate, Five Hundred Thousand Dollars
($500,000).
6.2 BORROWINGS; GUARANTIES. Borrow money, incur or remain obligated for any
indebtedness; sell accounts; act as guarantor on any loan or other obligation;
or subordinate any obligation due the Borrower to any other claim.
6.3 CREATE LIENS. Mortgage, assign, hypothecate, encumber, or in any manner
create, suffer or permit liens on its property, except liens in favor of the
Bank, and except for liens that have been disclosed in writing by the Borrower
to the Bank prior to the date of this Agreement and consented to by the Bank and
liens incurred in the ordinary course of business for current non-delinquent
liabilities for taxes, worker's compensation, unemployment insurance, social
security and pension liabilities.
6.4 TRANSFER ASSETS. Except for sales of inventory and the disposition of
obsolete or worn-out machinery and equipment in the ordinary course of business,
sell, lease, transfer, assign or otherwise dispose of any of the Borrower's
property.
6.5 ORGANIZATIONAL CHANGES. Change its name, consolidate with or merge into
any other corporation, permit another corporation to merge into it, acquire all
or substantially all the properties or assets of any other Person, enter into
any reorganization or recapitalization or reclassify its capital stock.
6.6 EXTENSION OF CREDIT; INVESTMENT. Except for trade credit or trade terms
provided in the ordinary course of business, make loans, advances or extensions
of credit to or make investments in or acquire ownership of any person or
entity.
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6.7 SUBORDINATED INDEBTEDNESS. Except for payments expressly permitted
under the applicable subordination agreement, make or suffer on any indebtedness
subordinated to the Loans any payment or take any action contrary to the terms
of any applicable subordination agreement.
6.8 MISREPRESENTATION. Furnish the Bank with any certificate or other
document that contains any untrue statement of a material fact or omits to state
a material fact necessary to make such certificate or document not misleading in
light of the circumstances under which it was furnished
7. EVENTS OF DEFAULT. The occurrence of any one of the following events shall
constitute an "Event of Default" under this Agreement and, notwithstanding the
terms of any note or other agreement given in connection herewith or otherwise,
shall be an Event of Default under the terms of any such note or agreement:
7.1 MONETARY. Failure by the Borrower to fully pay any amount owing to
Bank, whether under this Agreement, the Note or otherwise, when due, whether by
maturity, acceleration or otherwise.
7.2 BREACH. Any failure by the Borrower, any subsidiary or affiliate, or
any guarantor or subordinator to comply with, or breach by the Borrower, any
subsidiary or affiliate, or any guarantor or subordinator of, any of the terms,
provisions, warranties or covenants of this Agreement or any other agreement or
commitment between the Borrower, any subsidiary or affiliate, and/or any
guarantor or subordinator and the Bank.
7.3 TERMINATION OF GUARANTY OR SUBORDINATION. The termination, cancellation
or disclaimer of liability or enforceability of any guaranty or subordination
agreement given in connection with the Line of Credit.
7.4 FORECLOSURE. Institution of remedial proceedings or other exercise of
rights and remedies by the holder of any security interest against any of the
Collateral.
7.5 INSOLVENCY. The insolvency of the Borrower or any guarantor or the
admission in writing of the Borrower's or any guarantor's inability to pay debts
as they mature.
7.6 MISSTATEMENT. Any statement, representation or information made or
furnished by or on behalf of the Borrower or any guarantor or subordinator to
the Bank in connection with or to induce the Bank to make the Line of Credit
shall prove to be false or materially misleading when made or furnished.
7.7 BANKRUPTCY. Institution of bankruptcy, reorganization, arrangement,
insolvency or other similar proceedings by or against the Borrower or any
guarantor; or the appointment of a receiver, custodian or trustee for the
Borrower, any guarantor or any substantial portion of its assets.
7.8 CASUALTY LOSS OR JUDGMENT. Any loss, theft, substantial damage or
destruction to the Collateral, unless insured as required by this Agreement or
other document; or the entry of any judgment against the Borrower or any
guarantor; or the issuance or filing of any attachment, levy, garnishment or the
commencement of any related proceeding or judicial process upon or in respect to
the Borrower or any guarantor or the Collateral.
7.9 TRANSFER OF ASSETS. Sale or other disposition by the Borrower or any
guarantor of any substantial portion of assets or property, or death,
dissolution, merger, consolidation, termination of existence, insolvency,
business failure or assignment for the benefit of creditors of or by the
Borrower or any guarantor.
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7.10 FAILURE TO PAY. If there is any failure by the Borrower and/or any
guarantor to pay when due any indebtedness (other than to the Bank) or in the
observance or performance of any term, covenant or condition in any document
evidencing, securing or relating to such indebtedness.
7.11 ADVERSE CHANGE. If there is a substantial change in the existing or
prospective financial condition or worth of the Borrower, any guarantor or the
Collateral, which the Bank in good faith determines to be materially adverse.
7.12 INSECURITY. The Bank in good xxxxx xxxxx itself insecure.
8. ACCELERATION. Upon any Event of Default occurring, the Borrower's right to
request advances under the Line of Credit shall be immediately terminated, and
the Bank may at any time declare the Line of Credit immediately due and payable,
in each case without presentment, demand, protest, notice of dishonor, notice of
non-payment or other notice of any kind, all of which are waived by the
Borrower.
9. REMEDIES.
9.1 GENERAL. The Bank shall have the right to apply any or all of the
Collateral held by the Bank against the Line of Credit at any time after an
Event of Default. The Bank shall have all the rights and remedies provided by
law or equity or by agreement of the parties, including, without limit, all of
the rights and remedies of a secured party under the Michigan Uniform Commercial
Code. The remedies of the Bank are cumulative and not exclusive. No delay,
waiver or failure on the part of the Bank to demand strict adherence to the
terms of this Agreement or any related document shall be deemed to constitute a
course of conduct or waiver inconsistent with the rights herein.
9.2 APPLICATION OF PROCEEDS. Any proceeds received by the Bank from the
exercise of its remedies shall be applied as follows:
9.2.1 First, to pay all costs and expenses incidental to the leasing,
foreclosure, sale or other disposition of the Collateral.
9.2.2 Second, to all sums expended by the Bank in carrying out any
term, covenant or agreement under this Agreement or any related document.
9.2.3 Third, to the payment of the Line of Credit. If the proceeds are
insufficient to fully pay the Line of Credit, then application shall be made
first to late charges and interest accrued and unpaid, then to any applicable
prepayment premiums, other charges and expenses, and then to the outstanding
principal balance.
9.2.4 Fourth, any surplus remaining shall be paid to the Borrower or
to any other party lawfully entitled party.
9.3 PAYABLE UPON DEMAND. The Line of Credit is payable upon demand. Nothing
contained in this Agreement or any document contemplated hereby shall be
construed to prevent the Bank from making demand, without notice and with or
without reason, for immediate payment of all or any part of the Line of Credit
at any time or times, whether or not a Default or an Event of Default has
occurred.
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10. OTHER AGREEMENTS. The Borrower shall execute and deliver to the Bank such
agreements, certificates or instruments as may be reasonably required by the
Bank to evidence or secure or to otherwise guaranty or subordinate obligations
to the Line of Credit. All such agreements and those given in connection with
any other loan, present or future, shall also constitute security for the Line
of Credit, and all security given to the Bank securing the Line of Credit shall
also secure all other obligations of the Borrower to the Bank.
11. INDEMNIFICATION. The Borrower shall indemnify, defend, and hold the Bank
harmless from and against any and all claims, damages, losses, liabilities,
reasonable costs and expenses whatsoever (including reasonable attorneys' fees
and all reasonable expenses resulting from the compromise or defense of any
claims) the Bank may incur (or which may be claimed against the Bank by any
person or entity whatsoever) (collectively "Claims") by reason of or in
connection with (a) the performance of the Bank's obligations under this
Agreement in accordance with this Agreement and applicable law, including,
without limitation, the application of the Line of Credit proceeds, (b) any
breach by the Borrower of any warranty, covenant, term or condition in, or the
occurrence of any default under, this Agreement or any of the Loan Documents,
(c) the Borrower's development, construction, operation, or management of the
Project, or (d) the defense against any legal action commenced to challenge the
validity of this Agreement or any of the Loan Documents. In case any action or
proceeding is brought against the Bank in respect of which indemnity may be
sought under this Agreement, the Bank shall promptly give notice of any such
action or proceeding to the Borrower and may require the Borrower, upon such
notice, to assume the defense of the action or proceeding; provided that failure
of the Bank to give such notice shall not relieve the Borrower from any of its
obligations under this Section. Upon receipt of notice from the Bank, the
Borrower shall resist and defend such action or proceeding at the Borrower's
expense. The obligations of the Borrower under this paragraph shall survive the
payment of the Line of Credit and the termination of this Agreement.
12. MISCELLANEOUS. The Borrower and the Bank further agree as follows:
12.1 GOVERNING LAW. This Agreement shall be construed according to the laws
of the State of Michigan.
12.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
permitted successors and assigns of the Borrower, and the rights and privileges
of the Bank under this Agreement shall inure to the benefit of its successors
and assigns. The Borrower shall not assign its rights, duties and obligations
under this Agreement without the Bank's written consent, which consent may be
given or withheld in the Bank's sole discretion.
12.3 NOTICES. Notice from one party to another relating to this Agreement
shall be deemed effective if made in writing (including telecommunications) and
delivered to the recipient's address, telex number or telecopier number, if any
set forth in this Agreement by any of the following means: hand delivery,
registered or certified mail, postage prepaid, express mail or other overnight
courier service, or telecopy, telex or other wire transmission with request for
assurance of receipt in a manner typical with respect to communications of that
type. Notice made in accordance with these provisions shall be deemed delivered
on receipt if delivered by hand or wire transmission, on the third business day
after mailing if mailed by registered or certified mail, or on the next business
day after mailing or deposit with the postal service or an overnight courier
service if delivered by express mail or overnight courier.
12.4 AMENDMENTS; RELIANCE. Any amendment of this Agreement shall be in
writing and shall require the signature of the Borrower and the Bank. In making
this Agreement, the Borrower is not
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relying on any oral promise or representation of the Bank or any other person
with respect to any aspect of this Agreement.
12.5 CONSENTS AND WAIVERS. No consent or waiver granted by the Bank under
or in respect of this Agreement shall be effective unless it is in writing and
signed by the Bank.
12.6 PARTIAL INVALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remaining provisions of this Agreement.
12.7 FEES AND EXPENSES. The Borrower shall pay to the Bank all of the
Bank's expenses, including reasonable attorneys' fees and expenses, and
disbursements for title searches, appraisals, credit reports and other expenses,
related to the preparation and/or enforcement of this Agreement and any other
document evidencing and/or securing the Line of Credit. Any reference in this
Agreement to attorneys' fees shall mean fees, charges, costs and expenses of
both in-house and outside counsel and paralegals, whether or not a suit or
proceeding is instituted, and whether incurred at the trial court level, on
appeal, in a bankruptcy, administrative or probate proceeding, in consultation
with counsel, or otherwise.
12.8 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK ACKNOWLEDGE THAT THE
RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH
PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL
OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES
ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE
OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE LOAN(S).
This Loan Agreement is executed and delivered on the day and year set forth
above.
BANK: BORROWER:
COMERICA BANK FAMILY HOME HEALTH SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- ------------------------------------
Its: Vice President Its: CFO
Address for notices: Address for notices:
0xx Xxxxx, XX 0000 000 X. Xxx Xxxxx Xxxxx, Xxxxx 000
000 Xxxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxx 00000-0000
Xxxxxxx Xxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.:
LOAN AGREEMENT
Page 10
SCHEDULE 4.2
BUSINESS LOCATIONS AND SUBSIDIARIES
LOAN AGREEMENT
Page 11
SCHEDULE OF DEFINED TERMS
"Accounts," "Chattel Paper," "Deposit Accounts," "Documents," "Equipment,"
"Fixtures," "General Intangibles," "Goods," "Instruments," "Inventory,"
"Investment Property" and "Supporting Obligations" shall have the meanings
assigned to them in the UCC on the Effective Date.
"Account Debtor" means the person who is obligated on or under an Account.
"Eligible Account" shall mean an Account arising in the ordinary course of
Borrower's business which meets each of the following requirements:
(a) it is not owing more than ninety (90) days after the date of the
original invoice or other writing evidencing such Account;
(b) it is not owing by an Account Debtor who has failed to pay twenty five
percent (25%) or more of the aggregate amount of its Accounts owing to
Borrower within ninety (90) days after the date of the respective
invoices or other writings evidencing such Accounts;
(c) it arises from the sale or lease of goods and such goods have been
shipped or delivered to the Account Debtor under such Account; or it
arises from services rendered and such services have been performed;
(d) it is evidenced by an invoice, dated not later than the date of
shipment or performance, rendered to such Account Debtor or some other
evidence of billing acceptable to Bank;
(e) it is not evidenced by any note, trade acceptance, draft or other
negotiable instrument or by any chattel paper, unless such note or
other document or instrument previously has been endorsed and
delivered by Borrower to Bank;
(f) it is a valid, legally enforceable obligation of the Account Debtor
thereunder, and is not subject to any offset, counterclaim or other
defense on the part of such Account Debtor or to any claim on the part
of such Account Debtor denying liability thereunder in whole or in
part;
(g) it is subject to a first priority, properly perfected security
interest in favor of Bank, and it is not subject to any sale of
accounts, any rights of offset, assignment, lien or security interest
whatsoever other than to Bank;
(h) it is not owing by a subsidiary or affiliate of Borrower;
(i) it is not owing by an Account Debtor which (i) does not maintain its
chief executive office in the United States of America or Canada, (ii)
is not organized under the laws of the United States of America or
Canada, or any state or province thereof, as applicable, or (iii) is
the government of any foreign country or sovereign state, or of any
state, province, municipality or other instrumentality thereof;
(j) it is not an Account owing by the United States of America or any
state or political subdivision thereof, or by any department, agency,
public body corporate or other instrumentality of any of the
foregoing, unless all necessary steps are taken to comply with the
Federal Assignment of Claims Act of 1940, as amended, or with any
comparable state law, if applicable, and all other necessary steps are
taken to perfect Bank's security interest in such Account;
LOAN AGREEMENT
Page 12
(k) it is not owing by an Account Debtor for which Borrower has received a
notice of (i) the death of the Account Debtor or any partner of the
Account Debtor, (ii) the dissolution, liquidation, termination of
existence, insolvency or business failure of the Account Debtor, (iii)
the appointment of a receiver for any part of the property of the
Account Debtor, or (iv) an assignment for the benefit of creditors,
the filing of a petition in bankruptcy, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against the
Account Debtor;
(l) it is not an Account billed in advance, payable on delivery, for
consigned goods, for guaranteed sales, for unbilled sales, for
progress xxxxxxxx, payable at a future date in accordance with its
terms, subject to a retainage or holdback by the Account Debtor or
insured by a surety company; and
(m) it is not owing by any Account Debtor whose obligations Bank, acting
in its sole discretion, shall have notified Borrower are not deemed to
constitute Eligible Accounts.
An Account which is at any time an Eligible Account, but which subsequently
fails to meet any of the foregoing requirements, shall forthwith cease to
be an Eligible Account.
"GAAP" means, as of any applicable date of determination, generally
accepted accounting principles consistently applied.
"UCC" means Public Act 174 of 1962 of the State of Michigan, as amended.
LOAN AGREEMENT
Page 13
(COMERICA LOGO) MASTER REVOLVING NOTE
VARIABLE RATE-DEMAND -- OPTIONAL ADVANCES (BUSINESS AND
COMMERCIAL LOANS ONLY)
AMOUNT NOTE DATE MATURITY DATE TAX IDENTIFICATION NUMBER
---------- ----------------- ------------- -------------------------
$1,300,000 November 10, 2005 ON DEMAND 00-0000000
For Value Received, the undersigned, FAMILY HOME HEALTH SERVICES INC., a Nevada
corporation, promises to pay ON DEMAND to the order of COMERICA BANK, a Michigan
banking corporation ("Bank"), at any office of the Bank in the State of
Michigan, One Million Three Hundred Thousand Dollars (US$1,300,000) (or that
portion of it advanced by the Bank and not repaid as later provided) with
interest until demand or until Default, as later defined, at a per annum rate
equal to the Bank's prime rate from time to time in effect plus 0.50% per annum
and after that at a rate equal to the rate of interest otherwise prevailing
under this Note plus 3% per annum (but in no event in excess of the maximum rate
permitted by law). The Bank's "prime rate" is that annual rate of interest so
designated by the Bank and which is changed by the Bank from time to time.
Interest rate changes will be effective for interest computation purposes as and
when the Bank's prime rate changes. Interest shall be calculated on the basis of
a 360-day year for the actual number of days the principal is outstanding.
Unless sooner demanded, accrued interest on this Note shall be payable on the
first day of each month commencing December 1, 2005. If any payment of principal
or interest under this Note shall be payable on a day other than a day on which
the Bank is open for business, this payment shall be extended to the next
succeeding business day and interest shall be payable at the rate specified in
this Note during this extension. A late payment charge equal to 5% of each late
payment may be charged on any payment not received by the Bank within 10
calendar days after the payment due date, but acceptance of payment of this
charge shall not waive any Default under this Note.
The principal amount payable under this Note shall be the sum of all advances
made by the Bank to or at the request of the undersigned, less principal
payments actually received in cash by the Bank. The books and records of the
Bank shall be the best evidence of the principal amount and the unpaid interest
amount owing at any time under this Note and shall be conclusive absent manifest
error. No interest shall accrue under this Note until the date of the first
advance made by the Bank; after that interest on all advances shall accrue and
be computed on the principal balance outstanding from time to time under this
Note until the same is paid in full. At no time shall the Bank be under any
obligation to make any advances to the undersigned pursuant to this Note
(notwithstanding anything expressed or implied in this Note or elsewhere to the
contrary, including without limit if the Bank supplies the undersigned with a
borrowing formula) and the Bank, at any time and from time to time, without
notice, and in its sole discretion, may refuse to make advances to the
undersigned without incurring any liability due to this refusal and without
affecting the undersigned's liability under this Note for any and all amounts
advanced.
This Note and any other indebtedness and liabilities of any kind of the
undersigned to the Bank, and any and all modifications, renewals or extensions
of it, whether joint or several, contingent or absolute, now existing or later
arising, and however evidenced (collectively "Indebtedness") are secured by and
the Bank is granted a security interest in all items deposited in any account of
the undersigned with the Bank and by all proceeds of these items (cash or
otherwise), all account balances of the undersigned from time to time with the
Bank, by all property of the undersigned from time to time in the possession of
the Bank and by any other collateral, rights and properties described in each
and every deed of trust, mortgage, security agreement, pledge, assignment and
other security or collateral agreement which has been, or will at any time(s)
later be, executed by the undersigned to or for the benefit of the Bank
(collectively "Collateral"). Notwithstanding the above, if the undersigned has
given or gives Bank a deed of trust or mortgage covering California real
property, that deed of trust or mortgage shall not secure this Note or any other
indebtedness of the undersigned unless expressly provided to the contrary in
another place.
If the undersigned or any guarantor under a guaranty of all or part of the
Indebtedness ("guarantor") (i) fail(s) to pay any of the Indebtedness when due,
by maturity, acceleration or otherwise, or fail(s) to pay any Indebtedness
owing on a demand basis upon demand; or (ii) fail(s) to comply with any of the
terms or provisions of any agreement between the undersigned or any such
guarantor and the Bank; or (iii) become(s) insolvent or the subject of a
voluntary or involuntary proceeding in bankruptcy, or a reorganization,
arrangement or creditor composition proceeding, (if a business entity) cease(s)
doing business as a going concern, (if a natural person) die(s) or become(s)
incompetent, (if a partnership) dissolve(s) or any general partner of it dies,
becomes incompetent or becomes the subject of a bankruptcy proceeding or (if a
corporation or a limited liability company) is the subject of a dissolution,
merger or consolidation; or (a) if any warranty or representation made by the
undersigned or any guarantor in connection with this Note or any of the
Indebtedness shall be discovered to be untrue or incomplete; or (b) if there is
any termination, notice of termination, or breach of any guaranty, pledge,
collateral assignment or subordination agreement relating to all or any part of
the Indebtedness; or (c) if there is any failure by the undersigned or any
guarantor to pay when due any of its indebtedness (other than to the Bank) or in
the observance or performance of any term, covenant or condition in any document
evidencing, securing or relating to such indebtedness; or (d) if the Bank deems
itself insecure believing that the prospect of payment of this Note or any of
the Indebtedness is impaired or shall fear deterioration, removal or waste of
any of the Collateral; or (e) if there is filed or issued a levy or writ of
attachment or garnishment or other like judicial process upon the undersigned or
any guarantor or any of the Collateral, including without limit, any accounts of
the undersigned or any guarantor with the Bank, then the Bank, upon the
occurrence of any of these events (each a "Default"), may at its option and
without prior notice to the undersigned, declare any or all of the Indebtedness
to be immediately due and payable (notwithstanding any provisions contained in
the evidence of it to the contrary), sell or liquidate all or any portion of the
Collateral, set off against the Indebtedness any amounts owing by the Bank to
the undersigned, charge interest at the default rate provided in the document
evidencing the relevant Indebtedness and exercise any one or more of the rights
and remedies granted to the Bank by any agreement with the undersigned or given
to it under applicable law.
The undersigned acknowledges that this Note matures upon issuance, and that the
Bank, at any time, without notice, and without reason, may demand that this Note
be immediately paid in full. The demand nature of this Note shall not be deemed
modified by reference to a Default in this Note or in any agreement to a default
by the undersigned or to the occurrence of an event of default (collectively an
"Event of Default"). For purposes of this Note, to the extent there is reference
to an Event of Default this reference is for the purpose of permitting the Bank
to accelerate Indebtedness not on a demand basis and to receive interest at the
default rate provided in the document evidencing the relevant Indebtedness. It
is expressly agreed that the Bank may exercise its demand rights under this Note
whether or not an Event of Default has occurred. The Bank, with or without
reason and without notice, may from time to time make demand for partial
payments under this Note and these demands shall not preclude the Bank from
demanding at any time that this Note be immediately paid in full. All payments
under this Note shall be in immediately available United States funds, without
setoff or counterclaim.
If this Note is signed by two or more parties (whether by all as makers or by
one or more as an accommodation party or otherwise), the obligations and
undertakings under this Note shall be that of all and any two or more jointly
and also of each severally. This Note shall bind the undersigned, and the
undersigned's respective heirs, personal representatives, successors and
assigns. The undersigned waives presentment, demand, protest, notice of
dishonor, notice of demand or intent to demand, notice of acceleration or intent
to accelerate, and all other notices and agrees that no extension or indulgence
to the undersigned or release, substitution or nonenforcement of any security,
or release or substitution of the undersigned, any guarantor or any other party,
whether with or without notice, shall affect the obligations of the undersigned.
The undersigned waives all defenses or right to discharge available under
Section 3-605 of the Michigan Uniform Commercial Code and waives all other
suretyship defenses or right to discharge. The undersigned agrees that the Bank
has the right to sell, assign, or grant participations or any interest in, any
or all of the Indebtedness, and that, in connection with this right, but without
limiting its ability to make other disclosures to the full extent allowable, the
Bank may disclose all documents and information which the Bank now or later has
relating to the undersigned or the Indebtedness. The undersigned agrees that the
Bank may provide information relating to this Note or relating to the
undersigned to the Bank's parent, affiliates, subsidiaries and service
providers.
-2-
The undersigned agrees to reimburse the holder or owner of this Note upon demand
for any and all costs and expenses (including without limit, court costs, legal
expenses and reasonable attorney fees, whether inside or outside counsel is
used, whether or not suit is instituted and, if suit is instituted, whether at
the trial court level, appellate level, in a bankruptcy, probate or
administrative proceeding or otherwise) incurred in collecting or attempting to
collect this Note or incurred in any other matter or proceeding relating to this
Note.
The undersigned acknowledges and agrees that there are no contrary agreements,
oral or written, establishing a term of this Note and agrees that the terms and
conditions of this Note may not be amended, waived or modified except in a
writing signed by an officer of the Bank expressly stating that the writing
constitutes an amendment, waiver or modification of the terms of this Note. As
used in this Note, the word "undersigned" means, individually and collectively,
each maker, accommodation party, indorser and other party signing this Note in a
similar capacity. If any provision of this Note is unenforceable in whole or
part for any reason, the remaining provisions shall continue to be effective.
THIS NOTE IS MADE IN THE STATE OF MICHIGAN AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MICHIGAN, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE MAXIMUM INTEREST RATE SHALL NOT EXCEED 25% PER ANNUM, OR THE HIGHEST
APPLICABLE USURY CEILING, WHICHEVER IS LESS.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS.
FAMILY HOME HEALTH SERVICES INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Its:CFO
For Bank Use Only
ccar #
Loan officer initials Loan group name Obligor name
--------------------- --------------- --------------------------------
TJC METRO G FAMILY HOME HEALTH SERVICES INC.
Loan officer id. No. Loan group no. Obligor no. Note no. Amount
--------------------- -------------- ----------- -------- ----------
$1,300,000
-3-
(COMERICA LOGO) SECURITY AGREEMENT
(All Assets)
As of November 10, 2005, for value received, the undersigned, FAMILY HOME HEALTH
SERVICES INC., a Nevada corporation, whose address is 000 X. Xxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000-0000 ("Debtor"), grants to Comerica Bank, a
Michigan banking corporation ("Bank"), whose address is 00000 Xxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000 , Attention: Commercial Loan Documentation, Mail Code
7578, a continuing security interest and lien (any pledge, assignment, security
interest or other lien arising hereunder is sometimes referred to herein as a
"security interest") in the Collateral (as defined below) to secure payment when
due, whether by stated maturity, demand, acceleration or otherwise, of all
existing and future indebtedness ("Indebtedness") to the Bank of any subsidiary
of affiliate of Debtor ("Borrower") and/or Debtor. Indebtedness includes without
limit any and all obligations or liabilities of the Borrower and/or Debtor to
the Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown; any
and all obligations or liabilities for which the Borrower and/or Debtor would
otherwise be liable to the Bank were it not for the invalidity or
unenforceability of them by reason of any bankruptcy, insolvency or other law,
or for any other reason; any and all amendments, modifications, renewals and/or
extensions of any of the above; all costs incurred by Bank in establishing,
determining, continuing, or defending the validity or priority of its security
interest, or in pursuing its rights and remedies under this Agreement or under
any other agreement between Bank and Borrower and/or Debtor or in connection
with any proceeding involving Bank as a result of any financial accommodation to
Borrower and/or Debtor; and all other costs of collecting Indebtedness,
including without limit attorney fees. Debtor agrees to pay Bank all such costs
incurred by the Bank, immediately upon demand, and until paid all costs shall
bear interest at the highest per annum rate applicable to any of the
Indebtedness, but not in excess of the maximum rate permitted by law. Any
reference in this Agreement to attorney fees shall be deemed a reference to
reasonable fees, costs, and expenses of both in-house and outside counsel and
paralegals, whether or not a suit or action is instituted, and to court costs if
a suit or action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy, administrative or
probate proceeding or otherwise. Debtor further covenants, agrees and represents
as follows:
1. Collateral shall mean all of the following property Debtor now or later
owns or has an interest in, wherever located:
(a) all Accounts Receivable (for purposes of this Agreement, "Accounts
Receivable" consists of all accounts; general intangibles; chattel
paper (including without limit electronic chattel paper and tangible
chattel paper); contract rights; deposit accounts; documents;
instruments; rights to payment evidenced by chattel paper, documents
or instruments; health care insurance receivables; commercial tort
claims; letters of credit; letter of credit rights; supporting
obligations; and rights to payment for money or funds advanced or
sold),
(b) all Inventory,
(c) all Equipment and Fixtures,
(d) all Software (for purposes of this Agreement, "Software" consists of
all (i) computer programs and supporting information provided in
connection with a transaction relating to the program, and (ii)
computer programs embedded in goods and any supporting information
provided in connection with a transaction relating to the program
whether or not the program is associated with the goods in such a
manner that it customarily is considered part of the goods, and
whether or not, by becoming the owner of the goods, a person acquires
a right to use the program in connection with the goods, and whether
or not the program is embedded in goods that consist solely of the
medium in which the program is embedded),
(e) specific items listed on attached Schedule A, if any, is/are also
included in Collateral,
(f) all goods, instruments, documents, policies and certificates of
insurance, deposits, money, investment property or other property
(except real property which is not a fixture) which are now or later
in possession or control of Bank, or as to which Bank now or later
controls possession by documents or otherwise, and
(g) all additions, attachments, accessions, parts, replacements,
substitutions, renewals, interest, dividends, distributions, rights of
any kind (including but not limited to stock splits, stock rights,
voting and preferential rights), products, and proceeds of or
pertaining to the above including, without limit, cash or other
property which were proceeds and are recovered by a bankruptcy trustee
or otherwise as a preferential transfer by Debtor.
In the definition of Collateral, a reference to a type of collateral shall
not be limited by a separate reference to a more specific or narrower type
of that collateral.
2. Warranties, Covenants and Agreements. Debtor warrants, covenants and agrees
as follows:
2.1 Debtor shall furnish to Bank, in form and at intervals as Bank may
request, any information Bank may reasonably request and allow Bank to
examine, inspect, and copy any of Debtor's books and records. Debtor
shall, at the request of Bank, xxxx its records and the Collateral to
clearly indicate the security interest of Bank under this Agreement.
2.2 At the time any Collateral becomes, or is represented to be, subject
to a security interest in favor of Bank, Debtor shall be deemed to
have warranted that (a) Debtor is the lawful owner of the Collateral
and has the right and authority to subject it to a security interest
granted to Bank; (b) none of the Collateral is subject to any security
interest other than that in favor of Bank; (c) there are no financing
statements on file, other than in favor of Bank; (d) no person, other
than Bank, has possession or control (as defined in the Uniform
Commercial Code) of any Collateral of such nature that perfection of a
security interest may be accomplished by control; and (e) Debtor
acquired its rights in the Collateral in the ordinary course of its
business.
2.3 Debtor will keep the Collateral free at all times from all claims,
liens, security interests and encumbrances other than those in favor
of Bank. Debtor will not, without the prior written consent of Bank,
sell, transfer or lease, or permit to be sold, transferred or leased,
any or all of the Collateral, except for Inventory in the ordinary
course of its business and will not return any Inventory to its
supplier. Bank or its representatives may at all reasonable times
inspect the Collateral and may enter upon all premises where the
Collateral is kept or might be located.
2.4 Debtor will do all acts and will execute or cause to be executed all
writings requested by Bank to establish, maintain and continue an
exclusive, perfected and first security interest of Bank in the
Collateral. Debtor agrees that Bank has no obligation to acquire or
perfect any lien on or security interest in any asset(s), whether
realty or personalty, to secure payment of the Indebtedness, and
Debtor is not relying upon assets in which the Bank may have a lien or
security interest for payment of the Indebtedness.
2.5 Debtor will pay within the time that they can be paid without interest
or penalty all taxes, assessments and similar charges which at any
time are or may become a lien, charge, or encumbrance upon any
Collateral, except to the extent contested in good faith and bonded in
a manner satisfactory to Bank. If Debtor fails to pay any of these
taxes, assessments, or other charges in the time provided above, Bank
has the option (but not the obligation) to do so and Debtor agrees to
repay all amounts so expended by Bank immediately upon demand,
together
-2-
with interest at the highest lawful default rate which could be
charged by Bank on any Indebtedness.
2.6 Debtor will keep the Collateral in good condition and will protect it
from loss, damage, or deterioration from any cause. Debtor has and
will maintain at all times (a) with respect to the Collateral,
insurance under an "all risk" policy against fire and other risks
customarily insured against, and (b) public liability insurance and
other insurance as may be required by law or reasonably required by
Bank, all of which insurance shall be in amount, form and content, and
written by companies as may be satisfactory to Bank, containing a
lender's loss payable endorsement acceptable to Bank. Debtor will
deliver to Bank immediately upon demand evidence satisfactory to Bank
that the required insurance has been procured. If Debtor fails to
maintain satisfactory insurance, Bank has the option (but not the
obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest at
the highest lawful default rate which could be charged by Bank on any
Indebtedness.
2.7 On each occasion on which Debtor evidences to Bank the account
balances on and the nature and extent of the Accounts Receivable,
Debtor shall be deemed to have warranted that except as otherwise
indicated (a) each of those Accounts Receivable is valid and
enforceable without performance by Debtor of any act; (b) each of
those account balances are in fact owing, (c) there are no setoffs,
recoupments, credits, contra accounts, counterclaims or defenses
against any of those Accounts Receivable, (d) as to any Accounts
Receivable represented by a note, trade acceptance, draft or other
instrument or by any chattel paper or document, the same have been
endorsed and/or delivered by Debtor to Bank, (e) Debtor has not
received with respect to any Account Receivable, any notice of the
death of the related account debtor, nor of the dissolution,
liquidation, termination of existence, insolvency, business failure,
appointment of a receiver for, assignment for the benefit of creditors
by, or filing of a petition in bankruptcy by or against, the account
debtor, and (f) as to each Account Receivable, except as may be
expressly permitted by Bank to the contrary in another document, the
account debtor is not an affiliate of Debtor, the United States of
America or any department, agency or instrumentality of it, or a
citizen or resident of any jurisdiction outside of the United States.
Debtor will do all acts and will execute all writings requested by
Bank to perform, enforce performance of, and collect all Accounts
Receivable. Debtor shall neither make nor permit any modification,
compromise or substitution for any Account Receivable without the
prior written consent of Bank. Debtor shall, at Bank's request,
arrange for verification of Accounts Receivable directly with account
debtors or by other methods acceptable to Bank.
2.8 Debtor at all times shall be in strict compliance with all applicable
laws, including without limit any laws, ordinances, directives,
orders, statutes, or regulations an object of which is to regulate or
improve health, safety, or the environment ("Environmental Laws").
2.9 If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of (a) the ultimate sale
or exchange thereof; or (b) presentation, collection, renewal, or
registration of transfer thereof; or (c) loading, unloading, storing,
shipping, transshipping, manufacturing, processing or otherwise
dealing with it preliminary to sale or exchange; such redelivery shall
be in trust for the benefit of Bank and shall not constitute a release
of Bank's security interest in it or in the proceeds or products of it
unless Bank specifically so agrees in writing. If Debtor requests any
such redelivery, Debtor will deliver with such request a duly executed
financing statement in form and substance satisfactory to Bank. Any
proceeds of Collateral coming into Debtor's possession as a result of
any such redelivery shall be held in trust for Bank and immediately
delivered to Bank for application on the Indebtedness. Bank may
-3-
(in its sole discretion) deliver any or all of the Collateral to
Debtor, and such delivery by Bank shall discharge Bank from all
liability or responsibility for such Collateral. Bank, at its option,
may require delivery of any Collateral to Bank at any time with such
endorsements or assignments of the Collateral as Bank may request.
2.10 At any time and without notice, Bank may (a) cause any or all of the
Collateral to be transferred to its name or to the name of its
nominees; (b) receive or collect by legal proceedings or otherwise all
dividends, interest, principal payments and other sums and all other
distributions at any time payable or receivable on account of the
Collateral, and hold the same as Collateral, or apply the same to the
Indebtedness, the manner and distribution of the application to be in
the sole discretion of Bank; (c) enter into any extension,
subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting the
Collateral, and deposit or surrender control of the Collateral, and
accept other property in exchange for the Collateral and hold or apply
the property or money so received pursuant to this Agreement; and (d)
take such actions in its own name or in Debtor's name as Bank, in its
sole discretion, deems necessary or appropriate to establish exclusive
control (as defined in the Uniform Commercial Code) over any
Collateral of such nature that perfection of Bank's security interest
may be accomplished by control.
2.11 Bank may assign any of the Indebtedness and deliver any or all of the
Collateral to its assignee, who then shall have with respect to
Collateral so delivered all the rights and powers of Bank under this
Agreement, and after that Bank shall be fully discharged from all
liability and responsibility with respect to Collateral so delivered.
2.12 Debtor delivers this Agreement based solely on Debtor's independent
investigation of (or decision not to investigate) the financial
condition of Borrower and is not relying on any information furnished
by Bank. Debtor assumes full responsibility for obtaining any further
information concerning the Borrower's financial condition, the status
of the Indebtedness or any other matter which the undersigned may deem
necessary or appropriate now or later. Debtor waives any duty on the
part of Bank, and agrees that Debtor is not relying upon nor expecting
Bank to disclose to Debtor any fact now or later known by Bank,
whether relating to the operations or condition of Borrower, the
existence, liabilities or financial condition of any guarantor of the
Indebtedness, the occurrence of any default with respect to the
Indebtedness, or otherwise, notwithstanding any effect such fact may
have upon Debtor's risk or Debtor's rights against Borrower. Debtor
knowingly accepts the full range of risk encompassed in this
Agreement, which risk includes without limit the possibility that
Borrower may incur Indebtedness to Bank after the financial condition
of Borrower, or Borrower's ability to pay debts as they mature, has
deteriorated.
2.13 Debtor shall defend, indemnify and hold harmless Bank, its employees,
agents, shareholders, affiliates, officers, and directors from and
against any and all claims, damages, fines, expenses, liabilities or
causes of action of whatever kind, including without limit consultant
fees, legal expenses, and attorney fees, suffered by any of them as a
direct or indirect result of any actual or asserted violation of any
law, including, without limit, Environmental Laws, or of any
remediation relating to any property required by any law, including
without limit Environmental Laws.
3. Collection of Proceeds.
3.1 Debtor agrees to collect and enforce payment of all Collateral until
Bank shall direct Debtor to the contrary. Immediately upon notice to
Debtor by Bank and at all times after that, Debtor
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agrees to fully and promptly cooperate and assist Bank in the
collection and enforcement of all Collateral and to hold in trust for
Bank all payments received in connection with Collateral and from the
sale, lease or other disposition of any Collateral, all rights by way
of suretyship or guaranty and all rights in the nature of a lien or
security interest which Debtor now or later has regarding Collateral.
Immediately upon and after such notice, Debtor agrees to (a) endorse
to Bank and immediately deliver to Bank all payments received on
Collateral or from the sale, lease or other disposition of any
Collateral or arising from any other rights or interests of Debtor in
the Collateral, in the form received by Debtor without commingling
with any other funds, and (b) immediately deliver to Bank all property
in Debtor's possession or later coming into Debtor's possession
through enforcement of Debtor's rights or interests in the Collateral.
Debtor irrevocably authorizes Bank or any Bank employee or agent to
endorse the name of Debtor upon any checks or other items which are
received in payment for any Collateral, and to do any and all things
necessary in order to reduce these items to money. Bank shall have no
duty as to the collection or protection of Collateral or the proceeds
of it, nor as to the preservation of any related rights, beyond the
use of reasonable care in the custody and preservation of Collateral
in the possession of Bank. Debtor agrees to take all steps necessary
to preserve rights against prior parties with respect to the
Collateral. Nothing in this Section 3.1 shall be deemed a consent by
Bank to any sale, lease or other disposition of any Collateral.
3.2 Debtor agrees that immediately upon Bank's request (whether or not any
Event of Default exists) the Indebtedness shall be on a "remittance
basis" as follows: Debtor shall at its sole expense establish and
maintain (and Bank, at Bank's option may establish and maintain at
Debtor's expense): (a) an United States Post Office lock box (the
"Lock Box"), to which Bank shall have exclusive access and control.
Debtor expressly authorizes Bank, from time to time, to remove
contents from the Lock Box, for disposition in accordance with this
Agreement. Debtor agrees to notify all account debtors and other
parties obligated to Debtor that all payments made to Debtor (other
than payments by electronic funds transfer) shall be remitted, for the
credit of Debtor, to the Lock Box, and Debtor shall include a like
statement on all invoices; and (b) a non-interest bearing deposit
account with Bank which shall be titled as designated by Bank (the
"Cash Collateral Account") to which Bank shall have exclusive access
and control. Debtor agrees to notify all account debtors and other
parties obligated to Debtor that all payments made to Debtor by
electronic funds transfer shall be remitted to the Cash Collateral
Account, and Debtor, at Bank's request, shall include a like statement
on all invoices. Debtor shall execute all documents and authorizations
as required by Bank to establish and maintain the Lock Box and the
Cash Collateral Account.
3.3 All items or amounts which are remitted to the Lock Box, to the Cash
Collateral Account, or otherwise delivered by or for the benefit of
Debtor to Bank on account of partial or full payment of, or with
respect to, any Collateral shall, at Bank's option, (a) be applied to
the payment of the Indebtedness, whether then due or not, in such
order or at such time of application as Bank may determine in its sole
discretion, or, (b) be deposited to the Cash Collateral Account.
Debtor agrees that Bank shall not be liable for any loss or damage
which Debtor may suffer as a result of Bank's processing of items or
its exercise of any other rights or remedies under this Agreement,
including without limitation indirect, special or consequential
damages, loss of revenues or profits, or any claim, demand or action
by any third party arising out of or in connection with the processing
of items or the exercise of any other rights or remedies under this
Agreement. Debtor agrees to indemnify and hold Bank harmless from and
against all such third party claims, demands or actions, and all
related expenses or liabilities, including, without limitation,
attorney fees.
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4. Defaults, Enforcement and Application of Proceeds.
4.1 Upon the occurrence of any of the following events (each an "Event of
Default"), Debtor shall be in default under this Agreement:
(a) Any failure to pay the Indebtedness or any other indebtedness
when due, or such portion of it as may be due, by acceleration or
otherwise; or
(b) Any failure or neglect to comply with, or breach of or default
under, any term of this Agreement, or any other agreement or
commitment between Borrower, Debtor, or any guarantor of any of
the Indebtedness ("Guarantor") and Bank; or
(c) Any warranty, representation, financial statement, or other
information made, given or furnished to Bank by or on behalf of
Borrower, Debtor, or any Guarantor shall be, or shall prove to
have been, false or materially misleading when made, given, or
furnished; or
(d) Any loss, theft, substantial damage or destruction to or of any
Collateral, or the issuance or filing of any attachment, levy,
garnishment or the commencement of any proceeding in connection
with any Collateral or of any other judicial process of, upon or
in respect of Borrower, Debtor, any Guarantor, or any Collateral;
or
(e) Sale or other disposition by Borrower, Debtor, or any Guarantor
of any substantial portion of its assets or property or voluntary
suspension of the transaction of business by Borrower, Debtor, or
any Guarantor, or death, dissolution, termination of existence,
merger, consolidation, insolvency, business failure, or
assignment for the benefit of creditors of or by Borrower,
Debtor, or any Guarantor; or commencement of any proceedings
under any state or federal bankruptcy or insolvency laws or laws
for the relief of debtors by or against Borrower, Debtor, or any
Guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part of the
property of Borrower, Debtor, or any Guarantor; or
(f) Bank deems the margin of Collateral insufficient or itself
insecure, in good faith believing that the prospect of payment of
the Indebtedness or performance of this Agreement is impaired or
shall fear deterioration, removal, or waste of Collateral; or
(g) A default shall occur under any instrument, agreement or other
document evidencing, securing or otherwise relating to any of the
Indebtedness.
4.2 Upon the occurrence of any Event of Default, Bank may at its
discretion and without prior notice to Debtor declare any or all of
the Indebtedness to be immediately due and payable, and shall have and
may exercise any one or more of the following rights and remedies:
(a) Exercise all the rights and remedies upon default, in foreclosure
and otherwise, available to secured parties under the provisions
of the Uniform Commercial Code and other applicable law;
(b) Institute legal proceedings to foreclose upon the lien and
security interest granted by this Agreement, to recover judgment
for all amounts then due and owing as Indebtedness, and to
collect the same out of any Collateral or the proceeds of any
sale of it;
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(c) Institute legal proceedings for the sale, under the judgment or
decree of any court of competent jurisdiction, of any or all
Collateral; and/or
(d) Personally or by agents, attorneys, or appointment of a receiver,
enter upon any premises where Collateral may then be located, and
take possession of all or any of it and/or render it unusable;
and without being responsible for loss or damage to such
Collateral, hold, operate, sell, lease, or dispose of all or any
Collateral at one or more public or private sales, leasings or
other disposition, at places and times and on terms and
conditions as Bank may deem fit, without any previous demand or
advertisement; and except as provided in this Agreement, all
notice of sale, lease or other disposition, and advertisement,
and other notice or demand, any right or equity of redemption,
and any obligation of a prospective purchaser or lessee to
inquire as to the power and authority of Bank to sell, lease, or
otherwise dispose of the Collateral or as to the application by
Bank of the proceeds of sale or otherwise, which would otherwise
be required by, or available to Debtor under, applicable law are
expressly waived by Debtor to the fullest extent permitted.
At any sale pursuant to this Section 4.2, whether under the power of
sale, by virtue of judicial proceedings or otherwise, it shall not be
necessary for Bank or a public officer under order of a court to have
present physical or constructive possession of Collateral to be sold.
The recitals contained in any conveyances and receipts made and given
by Bank or the public officer to any purchaser at any sale made
pursuant to this Agreement shall, to the extent permitted by
applicable law, conclusively establish the truth and accuracy of the
matters stated (including, without limit, as to the amounts of the
principal of and interest on the Indebtedness, the accrual and
nonpayment of it and advertisement and conduct of the sale); and all
prerequisites to the sale shall be presumed to have been satisfied and
performed. Upon any sale of any Collateral, the receipt of the officer
making the sale under judicial proceedings or of Bank shall be
sufficient discharge to the purchaser for the purchase money, and the
purchaser shall not be obligated to see to the application of the
money. Any sale of any Collateral under this Agreement shall be a
perpetual bar against Debtor with respect to that Collateral. At any
sale or other disposition of Collateral pursuant to this Section 4.2,
Bank disclaims all warranties which would otherwise be given under the
Uniform Commercial Code, including without limit a disclaimer of any
warranty relating to title, possession, quiet enjoyment or the like,
and Bank may communicate these disclaimers to a purchaser at such
disposition. This disclaimer of warranties will not render the sale
commercially unreasonable.
4.3 Debtor shall at the request of Bank, notify the account debtors or
obligors of Bank's security interest in the Collateral and direct
payment of it to Bank. Bank may, itself, upon the occurrence of any
Event of Default so notify and direct any account debtor or obligor.
At the request of Bank, whether or not an Event of Default shall have
occurred, Debtor shall immediately take such actions as Bank shall
request to establish exclusive control (as defined in the Uniform
Commercial Code) by Bank over any Collateral which is of such a nature
that perfection of a security interest may be accomplished by control.
4.4 The proceeds of any sale or other disposition of Collateral authorized
by this Agreement shall be applied by Bank first upon all expenses
authorized by the Uniform Commercial Code and all reasonable attorney
fees and legal expenses incurred by Bank; the balance of the proceeds
of the sale or other disposition shall be applied in the payment of
the Indebtedness, first to interest, then to principal, then to
remaining Indebtedness and the surplus, if any, shall be paid over to
Debtor or to such other person(s) as may be entitled to it under
applicable law. Debtor shall remain
-7-
liable for any deficiency, which it shall pay to Bank immediately upon
demand. Debtor agrees that Bank shall be under no obligation to accept
any noncash proceeds in connection with any sale or disposition of
Collateral unless failure to do so would be commercially unreasonable.
If Bank agrees in its sole discretion to accept noncash proceeds
(unless the failure to do so would be commercially unreasonable), Bank
may ascribe any commercially reasonable value to such proceeds.
Without limiting the foregoing, Bank may apply any discount factor in
determining the present value of proceeds to be received in the future
or may elect to apply proceeds to be received in the future only as
and when such proceeds are actually received in cash by Bank.
4.5 Nothing in this Agreement is intended, nor shall it be construed, to
preclude Bank from pursuing any other remedy provided by law for the
collection of the Indebtedness or for the recovery of any other sum to
which Bank may be entitled for the breach of this Agreement by Debtor.
Nothing in this Agreement shall reduce or release in any way any
rights or security interests of Bank contained in any existing
agreement between Borrower, Debtor, or any Guarantor and Bank.
4.6 No waiver of default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized officer of
Bank. No waiver of any default or forbearance on the part of Bank in
enforcing any of its rights under this Agreement shall operate as a
waiver of any other default or of the same default on a future
occasion or of any rights.
4.7 Debtor (a) irrevocably appoints Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful attorney
of Debtor (with full power of substitution) in the name, place and
stead of, and at the expense of, Debtor and (b) authorizes Bank or any
agent of Bank, in its own name, at Debtor's expense, to do any of the
following, as Bank, in its sole discretion, deems appropriate:
(i) to demand, receive, xxx for, and give receipts or acquittances
for any moneys due or to become due on any Collateral (including
without limit to draft against Collateral) and to endorse any
item representing any payment on or proceeds of the Collateral;
(ii) to execute and file in the name of and on behalf of Debtor all
financing statements or other filings deemed necessary or
desirable by Bank to evidence, perfect, or continue the security
interests granted in this Agreement; and
(iii) to do and perform any act on behalf of Debtor permitted or
required under this Agreement.
4.8 Upon the occurrence of an Event of Default, Debtor also agrees, upon
request of Bank, to assemble the Collateral and make it available to
Bank at any place designated by Bank which is reasonably convenient to
Bank and Debtor.
4.9 The following shall be the basis for any finder of fact's
determination of the value of any Collateral which is the subject
matter of a disposition giving rise to a calculation of any surplus or
deficiency under Section 9.615 (f) of the Uniform Commercial Code (as
in effect on or after July 1, 2001): (a) the Collateral which is the
subject matter of the disposition shall be valued in an "as is"
condition as of the date of the disposition, without any assumption or
expectation that such Collateral will be repaired or improved in any
manner; (b) the valuation shall be based upon an assumption that the
transferee of such Collateral desires a resale of the Collateral for
cash promptly (but no later than 30 days) following the disposition;
(c) all reasonable closing costs customarily borne by the seller in
commercial sales transactions relating to property similar to
-8-
such Collateral shall be deducted including, without limitation,
brokerage commissions, tax prorations, attorneys' fees, whether inside
or outside counsel is used, and marketing costs; (d) the value of the
Collateral which is the subject matter of the disposition shall be
further discounted to account for any estimated holding costs
associated with maintaining such Collateral pending sale (to the
extent not accounted for in (c) above), and other maintenance,
operational and ownership expenses; and (e) any expert opinion
testimony given or considered in connection with a determination of
the value of such Collateral must be given by persons having at least
5 years experience in appraising property similar to the Collateral
and who have conducted and prepared a complete written appraisal of
such Collateral taking into consideration the factors set forth above.
The "value" of any such Collateral shall be a factor in determining
the amount of proceeds which would have been realized in a disposition
to a transferee other than a secured party, a person related to a
secured party or a secondary obligor under Section 9-615(f).
5. Miscellaneous.
5.1 Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or by law
shall be given to, or made upon, Debtor at the first address indicated
in Section 5.15 below.
5.2 Debtor will give Bank not less than 90 days prior written notice of
all contemplated changes in Debtor's name, location, chief executive
office, principal place of business, and/or location of any
Collateral, but the giving of this notice shall not cure any Event of
Default caused by this change.
5.3 Bank assumes no duty of performance or other responsibility under any
contracts contained within the Collateral.
5.4 Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the Indebtedness and
any related obligations, including without limit this Agreement. In
connection with the above, but without limiting its ability to make
other disclosures to the full extent allowable, Bank may disclose all
documents and information which Bank now or later has relating to
Debtor, the Indebtedness or this Agreement, however obtained. Debtor
further agrees that Bank may provide information relating to this
Agreement or relating to Debtor to the Bank's parent, affiliates,
subsidiaries, and service providers.
5.5 In addition to Bank's other rights, any indebtedness owing from Bank
to Debtor can be set off and applied by Bank on any Indebtedness at
any time(s) either before or after maturity or demand without notice
to anyone. Any such action shall not constitute an acceptance of
collateral in discharge of the Indebtedness.
5.6 Debtor waives any right to require the Bank to: (a) proceed against
any person or property; (b) give notice of the terms, time and place
of any public or private sale of personal property security held from
Borrower or any other person, or otherwise comply with the provisions
of Section 9-504 of the Uniform Commercial Code in effect prior to
July 1, 2001 or its successor provisions thereafter; or (c) pursue any
other remedy in the Bank's power. Debtor waives notice of acceptance
of this Agreement and presentment, demand, protest, notice of protest,
dishonor, notice of dishonor, notice of default, notice of intent to
accelerate or demand payment of any Indebtedness, any and all other
notices to which the undersigned might otherwise be entitled, and
diligence in collecting any Indebtedness, and agree(s) that the Bank
may, once or any number of times, modify the terms of any
Indebtedness, compromise, extend, increase, accelerate, renew or
forbear to enforce payment of any or all Indebtedness, or permit
Borrower to incur additional
-9-
Indebtedness, all without notice to Debtor and without affecting in
any manner the unconditional obligation of Debtor under this
Agreement. Debtor unconditionally and irrevocably waives each and
every defense and setoff of any nature which, under principles of
guaranty or otherwise, would operate to impair or diminish in any way
the obligation of Debtor under this Agreement, and acknowledges that
such waiver is by this reference incorporated into each security
agreement, collateral assignment, pledge and/or other document from
Debtor now or later securing the Indebtedness, and acknowledges that
as of the date of this Agreement no such defense or setoff exists.
5.7 Debtor waives any and all rights (whether by subrogation, indemnity,
reimbursement, or otherwise) to recover from Borrower any amounts paid
or the value of any Collateral given by Debtor pursuant to this
Agreement.
5.8 In the event that applicable law shall obligate Bank to give prior
notice to Debtor of any action to be taken under this Agreement,
Debtor agrees that a written notice given to Debtor at least ten days
before the date of the act shall be reasonable notice of the act and,
specifically, reasonable notification of the time and place of any
public sale or of the time after which any private sale, lease, or
other disposition is to be made, unless a shorter notice period is
reasonable under the circumstances. A notice shall be deemed to be
given under this Agreement when delivered to Debtor or when placed in
an envelope addressed to Debtor and deposited, with postage prepaid,
in a post office or official depository under the exclusive care and
custody of the United States Postal Service or delivered to an
overnight courier. The mailing shall be by overnight courier,
certified, or first class mail.
5.9 Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the effectiveness of
this Agreement shall automatically continue or be reinstated in the
event that any payment received or credit given by Bank in respect of
the Indebtedness is returned, disgorged, or rescinded under any
applicable law, including, without limitation, bankruptcy or
insolvency laws, in which case this Agreement, shall be enforceable
against Debtor as if the returned, disgorged, or rescinded payment or
credit had not been received or given by Bank, and whether or not Bank
relied upon this payment or credit or changed its position as a
consequence of it. In the event of continuation or reinstatement of
this Agreement, Debtor agrees upon demand by Bank to execute and
deliver to Bank those documents which Bank determines are appropriate
to further evidence (in the public records or otherwise) this
continuation or reinstatement, although the failure of Debtor to do so
shall not affect in any way the reinstatement or continuation.
5.10 This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and assigns
and to any other holder who derives from Bank title to or an interest
in the Indebtedness or any portion of it, and shall bind Debtor and
the heirs, legal representatives, successors, and assigns of Debtor.
Nothing in this Section 5.10 is deemed a consent by Bank to any
assignment by Debtor.
5.11 If there is more than one Debtor, all undertakings, warranties and
covenants made by Debtor and all rights, powers and authorities given
to or conferred upon Bank are made or given jointly and severally.
5.12 Except as otherwise provided in this Agreement, all terms in this
Agreement have the meanings assigned to them in Article 9 (or, absent
definition in Article 9, in any other Article) of the Uniform
Commercial Code, as those meanings may be amended, revised or replaced
from time to time. "Uniform Commercial Code" means Act No. 174 of the
Michigan Public Acts of 1962,
-10-
as amended, revised or replaced from time to time, including without
limit as amended by Act No. 348 of the Michigan Public Acts of 2000.
Notwithstanding the foregoing, the parties intend that the terms used
herein which are defined in the Uniform Commercial Code have, at all
times, the broadest and most inclusive meanings possible. Accordingly,
if the Uniform Commercial Code shall in the future be amended or held
by a court to define any term used herein more broadly or inclusively
than the Uniform Commercial Code in effect on the date of this
Agreement, then such term, as used herein, shall be given such
broadened meaning. If the Uniform Commercial Code shall in the future
be amended or held by a court to define any term used herein more
narrowly, or less inclusively, than the Uniform Commercial Code in
effect on the date of this Agreement, such amendment or holding shall
be disregarded in defining terms used in this Agreement.
5.13 No single or partial exercise, or delay in the exercise, of any right
or power under this Agreement, shall preclude other or further
exercise of the rights and powers under this Agreement. The
unenforceability of any provision of this Agreement shall not affect
the enforceability of the remainder of this Agreement. This Agreement
constitutes the entire agreement of Debtor and Bank with respect to
the subject matter of this Agreement. No amendment or modification of
this Agreement shall be effective unless the same shall be in writing
and signed by Debtor and an authorized officer of Bank. This Agreement
shall be governed by and construed in accordance with the internal
laws of the State of Michigan, without regard to conflict of laws
principles.
5.14 To the extent that any of the Indebtedness is payable upon demand,
nothing contained in this Agreement shall modify the terms and
conditions of that Indebtedness nor shall anything contained in this
Agreement prevent Bank from making demand, without notice and with or
without reason, for immediate payment of any or all of that
Indebtedness at any time(s), whether or not an Event of Default has
occurred.
5.15 Debtor represents and warrants that Debtor's exact name is the name
set forth in this Agreement. Debtor further represents and warrants
the following and agrees that Debtor is, and at all times shall be, a
corporation organized under the laws of, and located (as determined
pursuant to the Uniform Commercial Code) in, the state of Nevada.
The Collateral is located and shall be maintained at the following
locations:
000 X. Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
Collateral shall be maintained only at the locations identified in this
Section 5.15.
5.16 A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement under the Uniform Commercial
Code and may be filed by Bank in any filing office.
5.17 This Agreement shall be terminated only by the filing of a termination
statement in accordance with the applicable provisions of the Uniform
Commercial Code, but the obligations contained in Section 2.13 of this
Agreement shall survive termination.
6. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING
(OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE,
KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO
TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE
INDEBTEDNESS.
FAMILY HOME HEALTH SERVICES INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Its:CFO
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