SECURITY AGREEMENT
(Accounts and Chattel Paper)
For value received, the undersigned ("Debtor") grants to Comerica Bank, a
Michigan banking corporation, whose address is 500 Woodward Avenue, Detroit,
Michigan 48226 ("Bank"), a continuing security interest in (a) Debtor's Accounts
Receivable, (b) Debtor's interest in the proceeds and products of Debtor's goods
which has given rise to any Account Receivable, (c) Debtor's Property in
Possession of Bank, (d) the Proceeds and products of Debtor's Inventory, and (e)
the proceeds and products of all the above, to secure payment of any and all
sums, indebtedness and liabilities of any and every kind now owing or later to
become due to the Bank from Debtor or from Continental Pharmacy, Inc. ("CPI"),
Preferred RX, Inc. ("Preferred"), Automated Scripts, Inc. ("ASI"), or Valley
Physicians Services, Inc. ("VPSI") (Debtor, CPI, Preferred, ASI and VPSI are
sometimes collectively referred to as the "Borrower") or any or all of them
during the term of this Agreement, however created, incurred, evidenced,
acquired or arising, whether under any note(s), guaranty(ies), letter of credit
agreement(s), evidence(s) of indebtedness or under any other instrument,
obligation, guaranty, contract or agreement or dealing of any and every kind now
existing or later entered into between the Debtor or the Borrower and the Bank,
or otherwise, and whether direct, indirect, primary, secondary, fixed,
contingent, joint or several, due or to become due, together with interest and
charges, and including, without limit, all present and future indebtedness or
obligations of third parties to the Bank which is guaranteed by the Debtor or
the Borrower or any of them and the present or future indebtedness originally
owing by the Debtor or the Borrower or any of them to third parties and assigned
by third parties to the Bank, and any and all renewals, extensions or
modifications of any of them (the "Indebtedness").
1. Definitions. As used in this Agreement:
1.1 "Account(s) Receivable" or "Debtor's Account(s) Receivable" means
all of the following now owned or later acquired by Debtor
wherever located: all accounts, general intangibles (including,
without limit, Tax Refunds, trade names, trade styles and
goodwill, trademarks, copyrights and patents, and applications for
them, trade and proprietary secrets, formulae, designs, blueprints
and plans, customer lists, software programs, literary rights,
licenses and permits, insurance policies, insurance proceeds,
beneficial interests in trusts, and minute books and other books
and records), chattel paper, contract rights, deposit accounts,
documents and instruments.
1.2 "Collateral" means any and all property of Debtor in which Bank
now has or by this Agreement now or later acquires a security
interest.
1.3 "Debtor's Property in Possession of Bank" means goods,
instruments, documents, policies and certificates of insurance,
deposits, money or other property now owned or later acquired by
Debtor or in which Debtor now has or later acquires an interest
and which are now or later in possession of Bank, or as to which
Bank now or later controls possession by documents or otherwise.
1.4 "Environmental Law" means any laws, ordinances, directives,
orders, statutes, or regulations an object of which is to regulate
or improve health, safety, or the environment, including, without
limit, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 USC 9601 et seq.), and the
Resource Conservation and Recovery Act, as amended (42 USC 6091 et
seq.).
1.5 "Inventory" or "Debtor's Inventory" means all goods wherever
located, now owned or later acquired by Debtor, which are held for
sale or lease or furnished or to be furnished under any contract
of service (including, without limit, any such goods which are
returned to or repossessed by Debtor), or which are raw materials,
work in process or. materials used or consumed in Debtor's
business and any other property constituting "inventory" under the
Uniform Commercial Code.
1.6 "Proceeds" has the meaning assigned it in Article 9 and/or chapter
1309 of the Uniform Commercial Code, as of the date of this
Agreement, and also includes, without limit, cash or other
property which were proceeds and are recovered by a bankruptcy
trustee or otherwise as a preferential transfer by Debtor.
1.7 "Tax Refunds" means refunds or claims for refunds of any taxes at
any time paid by Debtor to the United States of America, any
state, city, county or any other governmental entity.
1.8 "Uniform Commercial Code" means chapters 1301 through 1310 of the
Ohio Revised Code, as amended.
1.9 Except as otherwise provided in this Agreement, all terms in this
Agreement have the meanings assigned to them in Chapter 1309 (or,
absent definition in Chapter 1309, in any other Article) of the
Uniform Commercial Code, as of the date of this Agreement.
3. Warranties, Covenants and Agreements. Debtor warrants, covenants and
agrees as follows:
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2.1 Bank at its option may disburse loan proceeds directly to the
seller of any collateral to be acquired with proceeds of loans
from Bank.
2.2 Debtor shall (a) keep adequate records of the Collateral and other
records as Bank shall determine to be appropriate; and (b) allow
Bank to examine, inspect and make abstracts from, or copy any of
Debtor's books and records (relating to the Collateral or
otherwise and whether printed or in magnetic tape or discs or in
other machine readable form), and arrange for verification of
Accounts Receivable directly with account debtors or by other
methods acceptable to Bank.
2.3 Debtor shall at the request of Bank deliver to Bank all accounting
and other records pertaining to, and all writings evidencing, the
Collateral or any portion of it, together with all books, records
and documents of Debtor related to it in whatever form kept by
Debtor, whether printed or in magnetic tape or discs or in other
machine readable form or otherwise, and all forms, programs,
software and other materials and instructions necessary or useful
to Bank, to monitor the Collateral or enforce its rights under
this Agreement.
2.4 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) except for leases currently
in place, none of the Collateral is subject to any security
interest other than that in favor of Bank and the lien of Foxmeyer
Drug Co. ("Foxmeyer") and there are no financing statements on
file, other than in favor of such parties; and (c) Debtor acquired
its rights in the Collateral in the ordinary course of its
business.
2.5 On each occasion on which Debtor evidences to Bank the account
balances on and the nature and extent of Debtor's 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,
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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, 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.
2.6 Debtor will keep the Collateral free at all times from any and all
claims, liens, security interests and encumbrances other than
those in favor of Bank or Foxmayer and except leases currently in
place and for leased equipment in an amount not to exceed $50,000.
Debtor will not, without the prior written consent of Bank, sell,
transfer or lease, or permit or suffer 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 agents or attorneys may at all
reasonable times inspect the Collateral and may enter upon all
premises where the Collateral is kept or might be located.
2.7 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 therewith
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 therein
or in the proceeds or products thereof 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 forthwith delivered
to Bank for application on the Indebtedness. Bank may (if, in its
sole discretion, it elects to do so) deliver the Collateral or any
part of the Collateral to Debtor, and such delivery by Bank shall
discharge Bank from any and all liability or responsibility for
such Collateral.
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2.8 Debtor acknowledges and agrees that the 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 has or may have a lien or security interest for payment of
the Indebtedness.
2.9 Debtor will do all acts and things, and will execute all writings
requested by Bank to establish, maintain and continue a perfected
and first security interest of Bank in the Collateral, and will
pay on demand all costs and expenses of searches, filing and
recording deemed necessary by Bank to establish, determine or
continue the validity and the priority of Bank's security
interest.
2.10 Debtor will pay promptly and within the time that they can be paid
without interest or penalty all taxes, assessments and similar
imposts and charges which at any time are or may become a lien,
charge, or encumbrance upon any of the Collateral, except to the
extent contested in good faith 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 with interest
at the highest default rate which could be charged by Bank to
Debtor on any Indebtedness.
2.11 If any of the Collateral (or any records concerning the
Collateral) is located or kept by Debtor on leased premises,
Debtor will: (a) provide a complete and correct copy of all
applicable leases to Bank, (b) furnish or cause to be furnished to
Bank from each landlord under such leases a lessor's
acknowledgment and subordination in form satisfactory to Bank
authorizing, on Default, Bank's entry on such premises to enforce
its rights and remedies under this Agreement and (c) comply with
all such leases. Debtor's rights under all such leases shall
further be part of the Collateral, and included in the security
interest granted to Bank hereunder.
2.12 Debtor shall neither make nor permit any modification, compromise
or substitution for any Account Receivable without the prior
written consent of Bank.
2.13 Debtor agrees to reimburse Bank upon demand for all fees and
expenses incurred by Bank (a) in seeking to collect the
Indebtedness or any part of it (through formal or informal
collection actions, workouts or otherwise), in defending the
validity or priority of its security interest, or in pursuing its
rights and remedies under
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this Agreement or under any other agreement between Bank and Debtor; (b)
in connection with any proceeding (including, without limit, bankruptcy,
insolvency, administrative, appellate, or probate proceedings or any
lawsuit) in which Bank at any time is involved as a result of any lending
relationship or other financial accommodation involving Bank and Debtor;
or (c) incurred by Bank during the continuance of an Event of Default,
which fees and expenses relate to or would not have been incurred but for
any lending relationship or other financial accommodation involving Bank
and Debtor. The fees and expenses include, without limit, court costs,
legal expenses, reasonable attorneys' fees, paralegal fees, internal
transfer charges for in-house attorneys and paralegals and other
services, and audit expenses.
2.14 Debtor at all times shall be in strict compliance with all
applicable laws.
2.15 Debtor is and shall be in strict compliance with all Environmental
Laws.
2.16 Debtor acknowledges and agrees that if any Guaranty is executed by
the Debtor in connection with or related to this Agreement, all
waivers contained in that Guaranty shall be and are incorporated
by reference into this Agreement.
3. Collection of Proceeds.
3.1 Debtor agrees to collect and enforce payment of all Accounts
Receivable until Bank shall direct Debtor to the contrary and,
from and after this direction, Debtor agrees to fully and promptly
cooperate and assist Bank (or any other person as Bank shall
designate) in the collection and enforcement of all Accounts
Receivable.
3.2 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 of any Account Receivable or for any
Inventory, and to do any and all things necessary in order to
reduce these items to money.
3.3 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 Debtor's Property in
Possession of Bank.
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3.4 For the purpose of calculating interest on the Indebtedness,
Debtor understands that Bank imposes a minimum one business day
delay in crediting payments received by Bank on Accounts
Receivable against the Indebtedness to allow time for collection
and Debtor agrees that Bank may, at Bank's option, make such
credits only when payments are actually collected by Bank in
immediately available funds. Any credit of payment by Bank prior
to receipt by Bank of immediately available funds is conditional
upon Bank's receipt of those funds. For the purpose of calculating
the principal amount which Debtor may request to borrow from Bank
under any borrowing arrangements with Bank, Debtor understands
that Bank may, at Bank's option, use a method different from that
used for the purpose of calculating interest.
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 or neglect to comply with, or breach of, any of
the terms, provisions, warranties or covenants of this
Agreement, or any other agreement or commitment between
Debtor or the Borrower or any or all of them or any
guarantor of any of the Indebtedness ("guarantor") and
Bank; or
(b) Any failure to pay the Indebtedness within five days when
due, or such portion of it as may be due, by acceleration
or otherwise; or
(c) Any warranty, representation, financial statement or other
information made, given or furnished to Bank by or on
behalf of Debtor or the Borrower or any or all of them 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 of the Collateral, or the issuance or filing of any
attachment, levy, garnishment or the commencement of any
proceeding in connection with any of the Collateral or of
any other judicial process of, upon or in respect of Debtor
or the Borrower or any or all of them or any guarantor or
any of the Collateral; or
(e) Sale or other disposition by Debtor or the Borrower or any
or all of them or guarantor of any substantial Portion of
its assets or property without replacing such assets or
property with property of
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a similar nature and quality or voluntary suspension of the
transaction of business by Debtor or the Borrower or any or
all of them or any guarantor, or death, dissolution,
termination of existence, merger, consolidation,
insolvency, business failure or assignment for the benefit
of creditors of or by Debtor or the Borrower or any or all
of them 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 Debtor or the Borrower or any or all of them or any
guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part
of the property of Debtor or the Borrower or any or all of
them or any guarantor; or
(f) Any termination or notice of termination of any guaranty of
collection or payment of, or any breach, termination or
notice of termination of any subordination agreement,
pledge, or collateral assignment relating to, all or any
part of the Indebtedness; or
(g) Any failure by Debtor or the Borrower or any or all of them
or any guarantor to pay when due any of its indebtedness
(other than to Bank) or in the observance or performance of
any term, covenant or condition in any agreement
evidencing, securing or relating to that indebtedness, and
such failure gives rise to an immediate right of
acceleration of such 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 and against
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 of the
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 of the Collateral; and/or
(d) personally or by agents, attorneys, or appointment of a
receiver, enter upon any premises where the Collateral or
any part of it may then be located, and take possession of
all or any part of it and/or render it unusable; and
without being responsible for loss or damage to such
Collateral, except for loss or damage caused by Bank's
gross negligence or willful misconduct,
(i) hold, store, and keep idle, or lease, operate,
remove or otherwise use or permit the use of the
Collateral or any part of it, for that time and upon
those terms as Bank, in its sole discretion, deems
to be in its own best interest, and demand, collect
and retain all resulting earnings and other sums due
and to become due from any party, accounting only
for net earnings, if any (unless the Collateral is
retained in satisfaction of the Indebtedness, in
which case no accounting will be necessary), arising
from that use (which net earnings may be applied
against the Indebtedness) and charging against all
receipts from the use of the Collateral or from its
sale, by court proceedings or pursuant to subsection
(ii) below, all other costs, expenses, charges,
damages and other losses resulting from that use;
and/or
(ii) sell, lease, dispose of, or cause to be sold, leased
or disposed of, all or any part of the Collateral at
one or more public or private sales, leasings or
other dispositions, 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.
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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 the 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
of the 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 of the Collateral under this
Agreement shall be a perpetual bar against Debtor
with respect to that Collateral.
4.3 Debtor shall (upon the occurrence of any Event of Default) at the
request of Bank, notify the account debtors or obligors of the
security interest of Bank in any Accounts Receivable 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 and may take control of any proceeds to which it may be
entitled under this Agreement.
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
liable for any deficiency, which it shall pay to Bank immediately
upon demand.
4.5 Nothing in this Agreement is intended, nor shall it be to preclude
Bank from pursuing any other remedy provided by law for the
collection of any or all the Indebtedness or for the recovery of
any other sum
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to which Bank may be or become 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 Debtor and Bank, nor
shall anything in this Agreement modify the terms of any
Indebtedness owing to Bank on a demand basis.
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 irrevocably appoints Bank or any employee or 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:
(a) to demand, receive, sue for and give receipts or
acquittance for any moneys due or to become due on any
Account Receivable and to endorse any item representing any
payment on or proceeds of the Collateral;
(b) with respect to any Collateral, to assent to any or all
extensions or postponements of the time of its payment or
any other indulgence in connection with it, to the
substitution, exchange, or release of Collateral, to the
addition or release of any party primarily or secondarily
liable, to the acceptance of partial payments on it and the
settlement, compromise or adjustment of it, all in a manner
and at times as Bank shall deem advisable;
(c) to make all necessary transfers of all or any part of the
Collateral in connection with any sale, lease or other
disposition made pursuant to this Agreement;
(d) to adjust and compromise any insurance loss on the
Inventory and to endorse checks or drafts payable to Debtor
in connection with the insurance;
(e) to execute and deliver for value all necessary or
appropriate bills of sale, assignments and other
instruments in connection with any sale, lease or other
disposition of the Collateral. Debtor ratifies and confirms
all that its said attorney (or any substitute) shall
lawfully do under this Agree-
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ment. Nevertheless, if requested by Bank or a purchaser or
lessee, Debtor shall ratify and confirm any sale, lease or
other disposition by executing and delivering to Bank or
the purchaser or lessee all proper bills of sale,
assignments, releases, leases and other instruments as may
be designated in any request; and
(f) 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.
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.
5. Miscellaneous.
5.1 This Agreement shall in all respects be governed by and construed
in accordance with the laws of the State of Ohio. Notwithstanding
the foregoing, the parties acknowledge that the Indebtedness
secured hereby was approved and made and the proceeds of the
Indebtedness were disbursed in the State of Michigan.
5.2 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 2.15 of this Agreement shall survive termination. Until
terminated, the security interest created by this Agreement shall
continue in full force and effect and shall secure and be
applicable to all advances now or later made by Bank to Debtor,
whether or not Debtor is indebted to Bank immediately prior to the
time of any advance, and to all other Indebtedness.
5.3 Notwithstanding any prior revocation, termination, surrender or
discharge of this Agreement, the effectiveness of this Agreement
shall automatically continue or be reinstated, as the case may be,
in the event that (a) any payment received or credit given by the
Bank in respect of the Indebtedness is returned, disgorged or
rescinded as a preference, impermissible setoff, fraudulent
conveyance, diversion of trust funds, or otherwise under any
applicable state or federal law, including, without limitation,
laws pertaining to bankruptcy or insolvency, 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, whether or not
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the Bank relied upon this payment or credit or changed its
position as a consequence of it; or (b) any liability is imposed,
or sought to be imposed, against the Bank relating to Debtor's
failure to comply with all Environmental Laws, (excluding only
conditions which arise after any acquisition by the Bank of any
such Property, by foreclosure, in lieu of foreclosure or
otherwise, to the extent due to the wrongful act or omission of
the Bank), in which case this Agreement shall be enforceable to
the extent of all liability, costs and expenses (including without
limit reasonable attorney fees) incurred by the Bank as the direct
or indirect result of any such failure. In the event of
continuation or reinstatement of this Agreement, Debtor agree(s)
upon demand by the Bank to execute and deliver to the Bank those
documents which the 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. If Debtor
does not execute and deliver to the Bank upon demand such
documents, the Bank and each Bank officer is irrevocably appointed
(which appointment is coupled with an interest) the true and
lawful attorney of Debtor (with full power of substitution) to
execute and deliver such documents in the name and on behalf of
Debtor.
5.4 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.
5.5 It 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.
5.6 In addition to Bank's other rights, any indebtedness owing from
Bank to Debtor can be set off and applied by Bank of any
Indebtedness at any time(s) either before or after maturity or
demand without notice to anyone.
5.7 Banks assumes no duty of performance or other responsibility under
any contracts contained within the Collateral.
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 it at
least five days before the date of the act shall be reasonable
notice of the act and, specifically,
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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.
The mailing shall be registered, certified, or first class mail.
5.9 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.
5.10 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.
5.11 The unenforceability of any provision of this Agreement shall not
affect the enforceability of the remainder of this Agreement.
5.12 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.
5.13 This Agreement constitutes the entire agreement of Debtor and Bank
with respect to the subject matter of this Agreement.
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.
6. Statement of Business Name, Residence and Location of Collateral. Debtor
warrants, covenants and agrees as follows:
6.1 Debtor's chief executive office is located in the County of
Cuyahoga.
Mailing Address: 1400 E. Schaaf Road, Brooklyn Hts., Ohio 44131.
No. and Street City State Zip Code
This location is (check one box):
14
[_] Owned [X] Leased by the Debtor.
6.2 Any other places of business and/or residences of Debtor are
indicated below: 1350 West State Street, Alliance, Ohio 44601
6.3 Debtor's correct legal name is set forth at the end of this
Agreement. During the past five years, Debtor has not conducted
business under any other name except as set forth in any
appropriately labeled schedule attached to this Agreement.
6.4 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 address
indicated in Section 6.1 above.
6.5 Debtor will give Bank not less than 90 days prior written notice
of all contemplated changes in Debtor's name, identity, corporate
structure, and/or any of the above addresses, but the giving of
this notice shall not cure any default caused by this change.
7. Jury Waiver.
7.1 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.
5. Special Provisions Applicable to this Agreement. (*None, if left blank)
15
Dated and delivered on:
January 24, 1995 CONTINENTAL MANAGED PHARMACY
SERVICES, INC.
at Cleveland, Ohio By: /S/ MICHAEL R. ERLENBACH
-------------------------
Signature of
Its: Executive Vice President
--------------------------
Title (if applicable)
By: [illegible]
--------------------------
Signature of
Its: Vice President Treasurer
--------------------------
Title (if applicable)