EXHIBIT 6
COMMERCIAL SECURITY AGREEMENT
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Borrower: InMedica Development Corporation Lender: Larry E. Clark
(TIN: 1036 Oak Hills Way
495 East 4500 South, Suite 230 Salt Lake City, Utah 84108
Salt Lake City, Utah 84107
Grantor: InMedica Development Corporation
(TIN: )
495 East 4500 South, Suite 230
Salt Lake City, Utah 84107
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THIS COMMERCIAL SECURITY AGREEMENT IS ENTERED INTO BETWEEN INMEDICA
DEVELOPMENT CORPORATION (REFERRED TO BELOW AS "BORROWER"); INMEDICA DEVELOPMENT
CORPORATION (REFERRED TO BELOW AS "GRANTOR"); AND LARRY E. CLARK (REFERRED TO
BELOW AS "LENDER"). FOR VALUABLE CONSIDERATION, GRANTOR HEREBY GRANTS, CONVEYS,
ASSIGNS, AND PLEDGES TO LENDER AS COLLATERAL, A SECURITY INTEREST IN GRANTOR'S
ENTIRE INTEREST IN THE COLLATERAL, WHETHER NOW EXISTING OR HEREAFTER ACQUIRED,
TO SECURE THE INDEBTEDNESS AND AGREES THAT LENDER SHALL HAVE THE RIGHTS STATED
IN THIS AGREEMENT WITH RESPECT TO THE COLLATERAL, IN ADDITION TO ALL OTHER
RIGHTS WHICH LENDER MAY HAVE BY LAW.
DEFINITIONS. The following words shall have the following meanings when
used in this Agreement. Terms not otherwise defined in this Agreement shall
have the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
AGREEMENT. The word "Agreement" means this Commercial Security Agreement,
as this Commercial Security Agreement may be amended or modified from time to
time, together with all
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exhibits and schedules attached to this Commercial Security Agreement from time
to time.
BORROWER. The word "Borrower" means each and every person or entity
signing the Note, including without limitation InMedica Development Corporation.
COLLATERAL. The word "Collateral" means the following described property
of Grantor, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
A CERTAIN LICENSING AGREEMENT BETWEEN INMEDICA DEVELOPMENT CORPORATION AND
JOHNSON & JOHNSON MEDICAL, INC. DATED JUNE 15, 1995
In addition, the word "Collateral" includes all the following, whether now owned
or hereafter acquired, whether now existing or hereafter arising, and wherever
located:
(a) All attachments, accessions, accessories, tools, parts, supplies,
increases, and additions to and all replacements of and substitutions of any
property described above.
(b) All products and produce of any of the property described in this
Collateral section.
(c) All accounts, contract rights, general intangibles, instruments,
rents, monies, payments, and all other rights, arising out of a sale, lease, or
other disposition of any of the property described in this Collateral section.
(d) All proceeds (including insurance proceeds) from the sale,
destruction, los, or other disposition of any of the property described in this
Collateral section.
(e) All records and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph, microfilm,
microfiche, or electronic media, together with all of Grantor's right, title and
interest in and to all computer software required to utilize, create, maintain,
and process any such records or data on electronic media.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section titled
"Events of Default."
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GRANTOR. The word "Grantor" means and includes without limitation each and
all of the guarantors, sureties, and accommodation parties in connection with
the indebtedness.
GUARANTOR. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in connection
with the indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note, including all principal and interest, together with all other
indebtedness and costs and expenses for which Grantor or Borrower is responsible
under this Agreement or under any of the Related Documents.
LENDER. The word "Lender" means LARRY E. CLARK, his successors and
assigns.
NOTE. The word "Note" means the note of credit agreement dated September
15, 1995, in the principal amount of $500,000.00 from Borrower to First
Interstate Bank of Utah, N.A., together with all renewals of, extensions of,
modifications of refinancings of, consolidations of and substitutions for the
note or credit agreement. Lender has guaranteed the Note to said First
Interstate Bank of Utah, N.A. on behalf of Borrower.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the indebtedness.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under
this Agreement or by applicable law, (a) Borrower agrees that Lender need not
tell Borrower about any action or inaction Lender takes in connection with this
Agreement; (b) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (c) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this
Agreement is executed at Borrower's request and not at the request of Lender;
(b) Grantor has the full right, power and
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authority to enter into this Agreement and to pledge the Collateral to Lender;
(c) Grantor has established adequate means of obtaining from Borrower on a
continuing basis information about Borrower's financial condition; and (d)
Lender has made no representation to Grantor about Borrower or Borrower's
creditworthiness.
GRANTOR'S WAIVERS. Grantor waives all requirements of presentment, protest,
demand and notice of dishonor or non-payment to Grantor, Borrower, or any other
party to the Indebtedness or the Collateral. Lender may do any of the following
with respect to any obligation of any Borrower, without first obtaining the
consent of Grantor; (a) grant an extension of time for any payment, (b) grant
any renewal, (c) permit any modification of payment terms or other terms, or (d)
exchange or release any Collateral or other security. No such act or failure to
act shall affect Lender's rights against Grantor or the Collateral.
If now or hereafter (a) Borrower shall be or become insolvent, and (b) the
indebtedness shall not at all times until paid be fully secured by collateral
pledged by Borrower, Grantor hereby forever waives and relinquishes in favor of
Lender and Borrower, and their respective successors, any claim or right to
payment Grantor may now have or hereafter have or acquire against Borrower, by
subrogation or otherwise, so that at no time shall Grantor be or become a
"creditor" of Borrower within the meaning of 11 U.S.C. Section 547(b), or any
successor provision of the Federal Bankruptcy laws.
RIGHT OF SETOFF. Grantor and Borrower hereby grant to Lender a right of setoff
and authorize Lender to charge or setoff all indebtedness hereunder against any
amount which Lender may owe to Borrower or Grantor.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
ORGANIZATION. Grantor is a corporation which is duly organized, validly
existing, and in good standing under the laws of the State of Utah.
AUTHORIZATION. The execution, delivery and performance of this Agreement
by Grantor has been duly authorized by all necessary action by Grantor and do
not conflict with, result in a violation of, or constitute a default under (a)
any provision of its articles of incorporation or organization, or bylaws, or
any agreement or other instrument binding upon Grantor of (b) any law,
governmental regulation, court decree, or order applicable to Grantor.
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PERFECTION OF SECURITY INTEREST. Grantor agrees to execute such financing
statements and to take whatever other actions are requested by Lender to perfect
and continue Lender's security interest in the Collateral. Upon request of
Lender, Grantor will deliver to Lender any and all of the documents evidencing
or constituting the Collateral, and Grantor will note Lender's interest upon any
and all chattel paper if not delivered to Lender for possession by Lender.
Grantor hereby appoints Lender as its irrevocable attorney-in-fact for the
purpose of executing any documents necessary to perfect or to continue the
security interest granted in this Agreement. Lender may at any time, and
without further authorization from Grantor, file a carbon, photographic or other
reproduction of any financing statement or of this Agreement for use as a
financing statement. Grantor will reimburse Lender for all expenses for the
perfection and the continuation of the perfection of Lender's security interest
in the Collateral. Grantor promptly will notify Lender before any change in
Grantor's name including any change to the assumed business names of Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a party,
and its certificate or articles of incorporation and bylaws do not prohibit any
term or condition of this Agreement.
ENFORCEABILITY OF COLLATERAL. To the extent the Collateral consists of
accounts, chattel paper, or general intangibles, the Collateral is enforceable
in accordance with its terms, is genuine, and complies with applicable laws
concerning form, content and manner of preparation and execution, and all
persons appearing to be obligated on the Collateral have authority and capacity
to contract and are in fact obligated as they appear to be on the Collateral.
LOCATION OF THE COLLATERAL. Grantor, upon request of Lender, will deliver
to Lender in form satisfactory to Lender a schedule of real properties and
Collateral locations relating to Grantor's operations, including without
limitation the following: (a) all real property owned or being purchased by
Grantor; (b) all real property being rented or leased by Grantor; (c) all
storage facilities owned, rented, leased, or being used by Grantor; and (d) all
other properties where Collateral is or may be located. Except in the ordinary
course of its business, Grantor shall not remove the Collateral from its
existing locations without the prior written consent of Lender.
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REMOVAL OF COLLATERAL. Grantor shall keep the Collateral (or to the extent
the Collateral consists of intangible property such as accounts, the records
concerning the Collateral) at Grantor's address shown above, or at such other
locations as are acceptable to Lender. Except in the ordinary course of its
business, including the sales of inventory, Grantor shall not remove the
Collateral from its existing locations without the prior written consent of
Lender. To the extend that the Collateral consists of vehicles, or other titled
property, Grantor shall not take or permit any action which would require
application for certificates of title for the vehicles outside the State of
Utah, without the prior written consent of Lender.
TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, Grantor shall not sell,
offer to sell, or otherwise transfer or dispose of the Collateral. While
Grantor is not in default under this Agreement, Grantor may sell inventory, but
only in the ordinary course of its business and only to buyers who qualify as a
buyer in the ordinary course of business. A sale in the ordinary course of
Grantor's business doe not include a transfer in partial or total satisfaction
of a debt or any bulk sale. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided for in this
Agreement, without the prior written consent of Lender. This includes security
interests even if junior in right to the security interests granted under this
Agreement. Unless waived by Lender, all proceeds from any disposition of the
Collateral (for whatever reason) shall be held in trust for Lender and shall not
be commingled with any other funds; provided however, this requirement shall not
constitute consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
TITLE. Grantor represents and warrants to Lender that it holds good and
marketable title to the Collateral, free and clear of all liens and encumbrances
except for the lien of this Agreement and the Security Interest granted to First
Interstate Bank of Utah N.A. on September 9, 1995. No financing statement
covering any of the Collateral is on file in any public office other than those
which reflect the security interest created by this Agreement or to which Lender
has specifically consented. Grantor shall defend Lender's rights in the
Collateral against the claims and demands of all other persons.
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COLLATERAL SCHEDULES AND LOCATIONS. Insofar as the Collateral consists of
inventory, Grantor shall deliver to Lender, as often as Lender shall require,
such lists, descriptions, and designations of such Collateral as Lender may
require to identify the nature, extend and location of such Collateral. Such
information shall be submitted for Grantor and each of its subsidiaries or
related companies.
MAINTENANCE AND INSPECTION OF COLLATERAL. Grantor shall maintain all
tangible Collateral in good condition and repair. Grantor will not commit or
permit damage to or destruction of the Collateral or any part of the Collateral.
Lender and its designated representatives and agents shall have the right at all
reasonable times to examine, inspect, and audit the Collateral whenever located.
Grantor shall immediately notify Lender of all cases involving the return,
rejection, repossession, loss or damage of or to any Collateral; of any request
for credit or adjustment or of any other dispute arising with respect to the
Collateral; and generally of all happenings and events affecting the Collateral
or the value or the amount of the Collateral.
TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation, upon this
Agreement, upon any promissory note or notes evidencing the indebtedness, or
upon any of the other Related Documents. Grantor may withhold any such payment
or may elect to contest any lien if Grantor is in good faith conducting an
appropriate proceeding to contest the obligation to pay and so long as Lender's
interest in the Collateral is not jeopardized in Lender's sole opinion. If the
Collateral is subjected to a lien which is not discharged within fifteen (15)
days, Grantor shall deposit with Lender cash, a sufficient corporate surety bond
or other security satisfactory to Lender in an amount adequate to provide for
the discharge of the lien plus any interest, costs, reasonably attorneys' fees
or other charges that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Lender and shall
satisfy any final adverse judgment before enforcement against the Collateral.
Grantor shall name Lender as an additional obligee under any surety bond
furnished in the contest proceedings.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply promptly
with all laws, ordinances, rules and regulations of all governmental
authorities, including without limitation all environmental laws, ordinances,
rules and regulations, now or hereafter in effect, applicable to the
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ownership, production, disposition, or use of the Collateral. Grantor may
contest in good faith any such law, ordinance or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as
Lender's interest in the Collateral, in Lender's opinion, is not jeopardized.
HAZARDOUS SUBSTANCES. Grantor represents and warrants that the Collateral
never has been, and never will be so long as this Agreement remains a lien on
the Collateral, used for the generation, manufacture, storage, transportation,
treatment, disposal, release or threatened release of any hazardous waste or
substance, as those terms are defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 ("SARA), the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq. the Resource Conservation and Recovery Act, 49
U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules,
or regulations adopted pursuant to any of the foregoing. The terms "hazardous
waste" and "hazardous substance" shall also include, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos. The
representations and warranties contained herein are based on Grantor's due
diligence in investigating the Collateral for hazardous wastes and substances.
Grantor hereby (a) releases and waivers any future claims against Lender for
indemnity or contribution in the event Grantor becomes liable for cleanup or
other costs under any such laws and (b) agrees to indemnify and hold harmless
Lender against any and all claims and losses resulting from a breach of this
provision of this Agreement. This obligation to indemnify shall survive the
payment of the Indebtedness and the satisfaction of this Agreement.
MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and maintain all
risks insurance, including without limitation fire, theft and liability coverage
together with such other insurance as Lender may require with respect to the
Collateral, in form, amounts, coverages and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to Lender.
Grantor, upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be canceled or diminished without at least
ten (10) days' prior written notice to Lender and not including any disclaimer
of the insurer's liability for failure to give such notice. Each insurance
policy also shall include an endorsement providing
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that coverage in favor of Lender will not be impaired in any way by any act,
omission or default of Grantor or any other person. In connection with all
policies covering assets in which lender holds or is offered a security
interest, Grantor will provide Lender with such loss payable or other
endorsements as Lender may require. If Grantor at any time fails to obtain or
maintain any insurance as required under this Agreement, Lender may (but shall
not be obligated to) obtain such insurance as Lender deems appropriate,
including if it so chooses "single interest insurance," which will cover only
Lender's interest in the Collateral.
APPLICATION OF INSURANCE PROCEEDS. Grantor shall promptly notify Lender of
any loss or damage to the Collateral. Lender may make proof of loss if Grantor
fails to do so within fifteen (15) days of the casualty. All proceeds of any
insurance on the Collateral, including accrued proceeds thereon, shall be held
by Lender as part of the Collateral. If Lender consents to repair or
replacement of the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonably cost of repair or restoration. If Lender does not consent to
repair or replacement of the Collateral, Lender shall retain a sufficient amount
of the proceeds to pay all of the Indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within six (6) months after
their receipt and which Grantor has not committed to the repair or restoration
of the Collateral shall be used to repay the Indebtedness.
INSURANCE RESERVES. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be created by
monthly payments from Grantor of a sum estimated by Lender to be sufficient to
produce, at least fifteen (15) days before the premium due date, amounts at
least equal to the insurance premiums to be paid. If fifteen (15) days before
payment is due, the reserve funds are insufficient, Grantor shall upon demand
pay any deficiency to Lender. The reserve funds shall be held by Lender as a
general deposit and shall constitute a non-interest-bearing account which Lender
may satisfy by payment of the insurance premiums required to be paid by Grantor
as they become due. Lender does not hold the reserve funds in trust for
Grantor, and Lender is not the agent of Grantor for payment of the insurance
premiums required to be paid by Grantor. The responsibility of the payment of
premiums shall remain Grantor's sole responsibility.
INSURANCE REPORTS. Grantor, upon request of Lender,
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shall furnish to Lender reports on each existing policy of insurance showing
such information as Lender may reasonably request including the following: (a)
the name of the insurer; (b) the risks insured; (c) the amount of the policy (d)
the property insured; (e) the then current value on the basis of which insurance
has been obtained and the manner of determining that value; and (f) the
expiration date of the policy. In addition, Grantor shall upon request by
Lender (however not more often than annually) have an independent appraiser
satisfactory to Lender determine, as applicable, the cash value or replacement
cost of the Collateral.
GRANTOR'S RIGHT TO POSSESSION. Until default, Grantor may have possession of
the tangible personal property and beneficial use of all the Collateral and may
use it in any lawful manner not inconsistent with this Agreement or the Related
Documents, provided that Grantor's right to possession and beneficial use shall
not apply to any Collateral where possession of the Collateral by Lender is
required by law to perfect Lender's security interest in such Collateral. If
Lender at any time has possession of any Collateral, whether before or after an
Event of Default, Lender shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if Lender takes such action for
that purpose as Grantor shall request or as Lender, in Lender's sole discretion,
shall deem appropriate under the circumstances, but failure to honor any request
by Grantor shall not of itself be deemed to be a failure to exercise reasonable
care. Lender shall not be required to take any steps necessary to preserve any
rights in the Collateral against prior parties, nor to protect, preserve or
maintain any security interest given to secure the Indebtedness.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, liens, security interests, encumbrances, and other claims, at any
time levied or place on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment which will be
due and payable at the Note's maturity. This Agreement also will secure payment
of these amounts. Such right
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shall be in addition to all other rights and remedies to which Lender may be
entitled upon the occurrence of an Event of Default.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when due
on the Indebtedness.
ENVIRONMENTAL DEFAULT. Failure of any party to comply with or perform when
due any term, obligation, covenant or condition contained in any environmental
agreement executed in connection with any Loan.
OTHER DEFAULTS. Failure of Grantor or Borrower to comply with or to
perform any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or failure of Borrower to comply
with or to perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower.
DEATH OR INSOLVENCY. The death of Grantor or Borrower or the dissolution
or termination of Grantor or Borrower's existence as a going business, the
insolvency of Grantor or Borrower, the appointment of a receiver for any part of
Grantor or Borrower's property, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Grantor or Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help, repossession
or any other method, by any creditor of Grantor or Borrower or by any
governmental agency against the Collateral or any other collateral securing the
Indebtedness.
EVENTS AFFECTION GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor dies or
becomes incompetent.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
INSECURITY. Lender, in good faith, deems itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs
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under this Agreement, at any time thereafter, Lender shall have all the rights
of a secured party under the Utah Uniform Commercial Code. In addition and
without limitation, Lender may exercise any one or more of the following rights
and remedies:
ACCELERATE INDEBTEDNESS. Lender may declare the entire Indebtedness,
including any prepayment penalty which Borrower would be required to pay,
immediately due and payable, without notice.
ASSEMBLE COLLATERAL. Lender may require Grantor to deliver to Lender all
or any portion of the Collateral and any and all certificates of title and other
documents relating to the Collateral. Lender may require Grantor to assemble
the Collateral and make it available to Lender at a place to be designated by
Lender. Lender also shall have full power to enter upon the property of Grantor
to take possession of and remove the Collateral. If the Collateral contains
other goods not covered by this Agreement at the time of repossession, Grantor
agrees Lender may take such other goods, provided that Lender makes reasonable
efforts to return them to Grantor after repossession.
SELL THE COLLATERAL. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in its own
name or that of Grantor. Lender may sell the Collateral at public auction or
private sale. Unless the Collateral threatens to decline speedily in value or
is of a type customarily sold on a recognized market, Lender will give Grantor
reasonable notice of the time after which any private sale or any other intended
disposition of the Collateral is to be made. The requirements of reasonably
notice shall be met if such notice is given at least ten (10) days before the
time of the sale or disposition. All expenses relating to the disposition of
the Collateral, including without limitation the expenses of retaking, holding,
insuring, preparing for sale and selling the Collateral, shall become a part of
the Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the Note rate from date of expenditure until repaid.
COLLECT REVENUES, APPLY ACCOUNTS. Lender, either itself or through a
receiver, may collect the payments, rents, income, and revenues from the
Collateral. Lender may at any time in it discretion transfer any Collateral
into its own name or that of its nominee and receive the payments, rents, income
and revenues therefrom and hold the same as security for the Indebtedness or
apply it to payment of the Indebtedness in such order of preference as Lender
may
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determine. Insofar as the Collateral consists of accounts, general intangibles,
insurance policies, instruments, chattel payer, chooses in action, or similar
property, Lender may demand, collect, receipt for, settle, compromise, adjust,
sue for, foreclose, or realize on the Collateral as Lender may determine,
whether or not Indebtedness or Collateral is then due. For these purposes,
Lender may, on behalf of and in the name of Grantor, receive, open and dispose
of mail addressed to Grantor; change any address to which mail and payments are
to be sent; and endorse notes, checks, drafts, money orders, documents of title,
instruments and items pertaining to payment, shipment, or storage of any
Collateral. To facilitate collection, Lender may notify account debtors and
obligors on any Collateral to make payments directly to Lender.
OBTAIN DEFICIENCY. If Lender chooses to sell any or all of the Collateral,
Lender may obtain a judgment against Borrower for any deficiency remaining on
the Indebtedness due to Lender after application of all amounts received from
the exercise of the rights provided in this Agreement. Borrower shall be liable
for a deficiency even if the transaction described in this subsection is a sale
of accounts or chattel paper.
OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and remedies
of a secured creditor under the provisions of the Uniform Commercial Code, as
may be amended from time to time. In addition. Lender shall have and may
exercise any or all other rights and remedies it may have available at law, in
equity, or otherwise.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any other writing,
shall be cumulative and may be exercised singularly or concurrently. Election
by Lender to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform an obligation
of Grantor or Borrower under this Agreement, after Grantor or Borrower's failure
to perform, shall not affect Lender's right to declare a default and to exercise
its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement.
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No alteration of or amendment to this Agreement shall be effective unless given
in writing and signed by the party or parties sought to be charged or bound by
the alteration or amendment.
APPLICABLE LAW. This Agreement has been delivered to Lender and accepted
by Lender in the State of Utah. If there is a lawsuit, Grantor and Borrower
agree upon Lender's request to submit to the jurisdiction of the courts of Salt
Lake County, State of Utah. Subject to the provisions on arbitration, this
Agreement shall be governed by and construed with the laws of the State of Utah.
ARBITRATION.
BINDING ARBITRATION. Upon demand of any party ("Party/Parties"), to a
Document (as defined below), whether made before the institution of any judicial
preceding or not more than sixty (60) days after service of a complaint, third
party complaint, cross-claim or counterclaim or any answer thereto or any
amendment to any of the above, any Dispute (as defined below) shall be resolved
by binding arbitration in accordance with the terms of this Arbitration Program.
A "Dispute" shall include any action, dispute, claim or controversy of any kind,
whether founded in contract, tort, statutory or common law, equity, or
otherwise, now existing or hereafter arising between any of the Parties arising
out of, pertaining to or in connection with any agreement, document or
instrument to which this Arbitration Program is to submit to binding arbitration
following a lawful demand by another Party shall bear all costs and expenses,
including reasonable attorneys' fees, (including those incurred in any trial,
bankruptcy proceeding or on appeal) incurred by the other Party in obtaining a
stay of any pending judicial proceeding and compelling arbitration of any
Dispute. The parties agree that any agreement, document or instrument which
includes, attaches to or incorporates this Arbitration Program represents a
transaction involving commerce as that term is used in the Federal Arbitration
Act, ("FAA") Title 9 United States Code. THE PARTIES UNDERSTAND THAT BY THIS
AGREEMENT THEY HAVE DECIDED THAT THEIR DISPUTES SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN IN COURT, AND ONCE DECIDED BY ARBITRATION NO DISPUTE CAN
LATER BE BROUGHT, FILED OR PURSUED IN COURT.
GOVERNING RULES. Arbitrations conducted pursuant to this Arbitration
Program shall be administered by the American Arbitration Association ("AA"), or
other mutually agreeable administrator ("Administrator") in accordance with the
terms
51
of this Arbitration Program and the Commercial Arbitration Rules of the AA.
Proceedings hereunder shall be governed by the provisions of the Federal
Arbitration Act (Title 9 of the United States Code). The arbitrator(s) shall
resolve all disputes in accordance with the applicable substantive law designed
in the Documents. Judgment upon any award rendered hereunder may be entered in
any court having jurisdiction; provided, however that nothing herein shall be
construed to be a waiver by any party that is a bank of the protections afforded
pursuant to 12 U.S.C. 91 or any similar applicable state law.
PRESERVATION OF REMEDIES. No provision of, nor the exercise of any rights
under, this arbitration clause shall limit the right of any Party to: (a)
foreclose against any real or personal property collateral or other security, or
obtain a personal or deficiency award; (b) exercise self-help remedies
(including repossession and setoff rights); or (c) obtain provisional or
ancillary remedies such as injunctive relief, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent
such action is contrary to a final award or decision in any arbitration
proceeding. The institution and maintenance of an action as described above
shall not constitute a waiver of the right of any Party to submit the Dispute to
arbitration, nor render inapplicable the compulsory arbitration provisions
hereof. Any claim or Dispute related to exercise of any self-help, auxiliary or
other rights under this paragraph shall be a Dispute hereunder.
ARBITRATOR POWERS AND QUALIFICATIONS: AWARDS. The Parties agree to select
a neutral "qualified" arbitrator or a panel of three "qualified" arbitrators to
resolve any Dispute hereunder. "Qualified" means a practicing attorney, with
not less than ten (10) years practice in commercial law, licensed to practice in
the state of the applicable substantive law designated in the Documents. A
Dispute in which the claims or amounts in controversy do not exceed
$1,000,000.00, shall be decided by a single arbitrator. A single arbitrator
shall have authority to render an award up to but not to exceed $1,000,000.00
including all damages of any kind whatsoever, costs, fees, attorneys' fees and
expenses. Submission to a single arbitrator shall be a waiver of all Parties'
claims to recover more than $1,000,000.00. A Dispute involving claims or
amounts in controversy exceeding $1,000,000.00 shall be decided by a majority
vote of a panel of three qualified arbitrators. An arbitration panel shall be
composed of one arbitrator who would be qualified to sit as a single
52
arbitrator hereunder, one who has at least ten years experience in commercial
lending and one with at least ten years experience in the Borrower's industry.
The arbitrator(s) shall be empowered to, at the written request of any Party in
any Dispute, (a) to consolidate in a single proceeding any multiple party claims
that are substantially identical or based upon the same underlying transaction;
(b) to consolidate any claims and Disputes between other Parties which arise out
of or relate to the subject matter hereof, including all claims by or against
borrowers, guarantors, sureties and or owners of collateral; and (c) to
administer multiple arbitration claims as class action in accordance with Rule
23 of the Federal Rules of Civil Procedure. In any consolidated proceeding the
first arbitrator(s) selected in any proceeding shall conduct the consolidated
proceeding unless disqualified due to conflict of interest. The arbitrator(s)
shall be empowered to resolve any dispute regarding the terms of this
arbitration clause, including questions about the arbitrability of any Dispute,
but shall have no power to change or alter the terms of this Arbitration
Program. The prevailing Party in any Dispute shall be entitled to recover its
reasonable attorneys' fees in any arbitration, and the arbitrator(s) shall have
the power to award such fees. The award of the arbitrator(s) shall be in
writing and shall set forth the factual and legal basis for the award.
MISCELLANEOUS. All statutes of limitation applicable to any Dispute shall
apply to any proceeding in accordance with this arbitration clause. The Parties
agree, to the maximum extent practicable, to take any action necessary to
conclude an arbitration hereunder within 180 days of the filing of a Dispute
with the Administrator. The arbitrator(s) shall be empowered to impose
sanctions for any Party's failure to proceed within the times established
herein. Arbitrations shall be conducted in the state of the applicable
substantive law designated in the Documents. The provisions of this Arbitration
Program shall survive any termination, amendment, or expiration hereof or of the
Documents unless the Parties otherwise expressly agree in writing. Each Party
agrees to keep all Disputes and arbitration proceedings strictly confidential,
except for disclosures of information required in the ordinary course of
business of the Parties or as required by applicable law or regulation. If any
provision of this Arbitration Program is declared invalid by any court, the
remaining provisions shall not be affected thereby and shall remain fully
enforceable.
ATTORNEYS' FEES; EXPENSES. Grantor and Borrower agree to
53
pay upon demand all of Lender's costs and expenses, including reasonable
attorneys' fees and Lender's legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys' fees and
legal expenses whether or not a salaried employee of Lender and whether or not
there is a lawsuit, including reasonable attorneys' fees and legal expenses for
bankruptcy proceedings (and including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment collection
services. Grantor and Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to be used to interpret or define the
provisions of this Agreement.
MULTIPLE PARTIES. All obligations of Grantor and Borrower under this
Agreement shall be joint and several, and all references to Borrower shall mean
each and every Borrower, and all references to Grantor shall mean each and every
Grantor. This means that each of the Borrowers signing below is responsible for
ALL obligations in this Agreement.
NOTICES. All notices required to be given under this Agreement shall be
given in writing, may be sent by telefacsimile, and shall be effective when
actually delivered or when deposited with a nationally recognized overnight
courier or deposited in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given at the address shown
above. Any party may change its address for notices under this Agreement by
giving formal written notice to the other parties, specifying that the purpose
of the notice is to change the party's address. To the extent permitted by
applicable law, if there is more than one Grantor or Borrower, notice to any
Grantor or Borrower will constitute notice to all Grantor and Borrowers. For
notice purposes, Grantor or Borrower agrees to keep Lender informed at all times
of Grantor or Borrower's current address(es).
POWER OF ATTORNEY. Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do the
following: (a) to demand, collect, receive, receipt for, sue and recover all
sums of money or other property which may now or hereafter become due, owing or
payable from the Collateral; (b) to settle or compromise any
54
and all claims, instruments, receipts, checks, drafts or warrants issued in
payment for the Collateral; (c) to settle or compromise any and all claims
arising under the Collateral, and, in the place and stead of Grantor, to execute
and deliver its release and settlement for the claim; and (d) to file any claim
or claims or to take any action or institute or take part in any proceedings,
either in its own name or in the name of Grantor, or otherwise, which in the
discretion of Lender may seem to be necessary or advisable. This power is given
as security for the Indebtedness, and the authority hereby conferred is and
shall be irrevocable and shall remain in full force and effect until renounced
by Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be invalid or unenforceable as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable as to any
other persons or circumstances. If feasible, any such offending provision shall
be deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects hall remain
valid and enforceable.
SUCCESSOR INTERESTS. Subject to the limitations set forth above on
transfer of the Collateral, this Agreement shall be binding upon and inure to
the benefit of the parties, their successors and assigns.
WAIVER. Lender shall not be deemed to have waived any rights under this
agreement unless such waiver is given in writing and signed by Lender. No delay
or omission on the part of the Lender in exercising any right shall operate as a
waiver of such right or any other right. A wavier by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Grantor, shall constitute a waiver of any of Lender's rights or of
any of Grantor's obligations as to any future transactions. Whenever the
consent of Lender is required under this Agreement, the granting of such consent
by Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
EACH BORROWER AND GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
COMMERCIAL SECURITY AGREEMENT, AND EACH BORROWER
55
AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED ____________________,
1995.
BORROWER:
InMedica Development Corporation
BY: /S/ LARRY E. CLARK
-------------------------
Larry E. Clark, President/CEO
GRANTOR:
InMedica Development Corporation
BY: /S/ LARRY E. CLARK
-------------------------
Larry E. Clark, President/CEO
56
This FINANCING STATEMENT is presented to a filing officer pursuant to the
Uniform Commercial Code
- -----------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and address(es) 2. Secured Party(ies) and address(es)
INMEDICA DEVELOPMENT CORPORATION LARRY E. CLARK
495 EAST 4500 SOUTH, SUITE 230 1036 OAK HILLS WAY
SALT LAKE CITY, UTAH 84107 SALT LAKE CITY, UTAH 84108
---------------------------- ---------------------------------
4. This Financial Statement covers the following types (or items) of property:
SEE ATTACHED EXHIBIT TO UCC FINANCING STATEMENT 6. Gross sales price
DATED OCTOBER of collateral For Filing
_________________, 1995
Officer (Date, Time,
Number, and Filing Office)
$
$
The Secured party is_________is not________a seller or or use tax paid to 5.
Assignee(s) of Secured Party
purchase money lender of the collateral. State of and Address(es)
- ------------------------------------------------------------------------------------------------------------------
This statement is filed without the debtor's signature to perfect a security interest in collateral.
(Check [ ] if so) Microfile No.
[ ] already subject to a security interest in another jurisdiction when it was brought into this state.
[ ] which is proceeds of the original collateral described above in which a security interest was perfected:
- ------------------------------------------------------------------------------------------------------------------
Check [X] if covered: [X] Proceeds of Collateral are also covered. [X] Products of collateral are also covered.
No. of additional sheets presented
1
- ------------------------------------------------------------------------------------------------------------------
3. Maturity Date (if any): Approved by Department of
Commerce Division of
Corporations and Commercial Code.
- --------------------------------------------------------------------------------
InMEDICA DEVELOPMENT CORPORATION LARRY E. CLARK
By: /s/ Larry E. Clark By: /s/ Larry E. Clark
------------------------------------ -------------------
Larry E. Clark, President Signature(s) of Secured Party(ies)
Standard Form - Form UCC-1
(5) DEBTOR COPY
EXHIBIT TO UCC FINANCING STATEMENT
October _____, 1995
This Exhibit is attached to and is a part of the UCC Financing Statement
executed in connection with a loan between Larry E. Clark; and InMedica
Development Corporation (SSN or TIN:).
COLLATERAL DESCRIPTION:
A certain licensing agreement between InMedica Development Corporation and
Johnson & Johnson Medical, Inc. dated June 15, 1995; whether any of the
foregoing is owned now or acquired later; all accessions, additions,
replacements, and substitutions relating to any of the foregoing; all records of
any kind relating to any of the foregoing; all proceeds relating to any of the
foregoing (including insurance, general intangibles and accounts proceeds).
This Exhibit is executed on the same date as the UCC Financing Statement by
FIRST INTERSTATE BANK OF UTAH, N.A., and the undersigned.
INMEDICA DEVELOPMENT CORPORATION LARRY E. CLARK
By: /s/ Larry E. Clark /s/ Larry E. Clark
------------------------------ ------------------------------
By:
------------------------------- ------------------------------
Larry E. Clark, President