EXHIBIT 10.o
ACCOUNTS SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of May 31, 1995, made by Hospital Cost
Consultants, Inc., a California corporation, having its chief executive offices
at 5000 Hopyard Road, #300, Pleasanton, California, 94588 ("Grantor"), in favor
of First Financial Management Corporation, a Georgia corporation having an
office at 3 Corporate Square, Suite 700, Atlanta, Georgia 30329 ("Lender").
1. DEFINED TERMS. The following terms, as used herein, have the meanings
set forth below:
"Account Debtor" shall mean any Person who may become obligated to Grantor
under, with respect to, or on account of, an Account or Chattel Paper.
"Accounts" shall mean, with respect to any Person, all "accounts," as such
term is defined in the Code, now owned or hereafter acquired by such Person and,
in any event, including: (a) all accounts receivable, other receivables, book
debts and other forms of obligations (other than forms of obligations evidenced
by Chattel Paper, Documents or Instruments) now owned or hereafter received or
acquired by or belonging or owing to such Person, whether arising out of goods
sold or services rendered by it or from any other transaction (including any
such obligations which may be characterized as an account or contract right
under the Code); (b) all of such Person's rights in, to and under all purchase
orders or receipts now owned or hereafter acquired by it for goods or services;
(c) all of such Person's rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods); (d)
all monies due or to become due to such Person under all purchase orders and
contracts for the sale or lease of goods or the performance of services or both
by such Person or in connection with any other transaction (whether or not yet
earned by performance on the part of such Person) now or hereafter in existence,
including, without limitation, the right to receive the proceeds of said
purchase orders and contracts; and (e) all collateral security and guarantees of
any kind, now or hereafter in existence, given by any Person with respect to any
of the foregoing.
"Chattel Paper" shall mean all "chattel paper," as such term is defined in
the Code, now owned or hereafter acquired and wherever located.
"Code" shall mean the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, that in the event that by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of, or the remedies with respect to, Lender's security interest in
any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "Code" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
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the provisions hereof relating to such attachment, perfection, priority or
remedies and for purposes of definitions related to such provisions.
"Default Rate" shall mean, as of any date of determination thereof, the
interest rate then in effect under the Note, plus two percent (2%) per annum.
"Documents" shall mean, with respect to any Person, all "documents," as
such term is defined in the Code, now owned or hereafter acquired by such
Person, wherever located, and in any event any bills of lading, dock warrants,
dock receipts, warehouse receipts, or other documents of title.
"Event of Default" shall have the meaning assigned to such term in the
Note.
"GECC" shall mean General Electric Capital Corporation, a New York
corporation.
"GECC Security Agreement" shall mean that certain Accounts Security
Agreement dated of even date herewith, made by Debtor in favor of GECC.
"Instruments" shall mean, for any Person, all "instruments," as such term
is defined in the Code, now owned or hereafter acquired by such Person, wherever
located and in any event all certificated securities, certificates of deposit
and all notes and other evidences of indebtedness, other than instruments that
constitute, or are a part of a group of writings that constitute, Chattel Paper.
"Intercreditor Agreement" shall mean that certain Intercreditor Agreement
of even date herewith, between Lender and GECC, as amended, supplemented or
restated from time to time.
"Lien" shall mean any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).
"Note" shall mean that certain Promissory Note of even date herewith, in
the principal amount of $5,000,000, made by Debtor and payable to the order of
Lender, as amended, supplemented and restated from time to time, and together
with all replacement notes issued in substitution therefor.
"Obligations" shall mean all indebtedness, liabilities and obligations of
Debtor now or hereafter owing to Lender under the Note or this Agreement, and
all renewals, extensions, restructurings and refinancings thereof.
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"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Proceeds" shall mean all "proceeds," as such term is defined in the Code.
2. GRANT OF SECURITY INTEREST. To secure the prompt and complete payment,
performance and observance of all of the Obligations, Grantor hereby grants to
Lender a security interest in all of Grantor's right, title and interest in, to
and under the following, whether now owned by or owing to, or hereafter acquired
by or arising in favor of Grantor (including, without limitation, under any
trade names, styles or divisions thereof), and whether owned, leased or
consigned by or to Grantor, and regardless of where located (all of which being
hereinafter collectively referred to as the "Collateral"):
(i) all Accounts;
(ii) all lockbox, deposit and other bank accounts of Grantor and all
deposits therein and investments made with the funds therein;
(iii) all money, cash or cash equivalents of Grantor; and
(iv) to the extent not otherwise included, all Proceeds of any of the
foregoing and all accessions to, substitutions and replacements for, and rents,
profits and products of, each of the foregoing.
3. RIGHTS OF LENDER. Subject to the limitations of the Intercreditor
Agreement:
(a) Lender may at any time after the occurrence of an Event of Default and
without prior notice to Grantor, notify Account Debtors, that the Accounts have
been assigned to Lender and that payments shall be made directly to Lender.
Upon the request of Lender, Grantor shall so notify such Account Debtors.
(b) Lender may at any time in Lender's own name or in the name of Grantor
communicate with Account Debtors to verify with such Person, to Lender's
satisfaction, the existence, amount and terms of any Accounts.
4. REPRESENTATIONS AND WARRANTIES. Grantor hereby represents and warrants
that:
(a) Grantor (i) is a corporation duly organized, validly existing and in
good standing under the laws of the State of California; (ii) is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where qualification or licensing is
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required by the nature of its business except where the absence of such
qualification or licensing has no reasonable likelihood of having a materially
adverse effect (A) on the business, properties, assets or financial condition of
Grantor or (B) on the Collateral; (iii) has all requisite corporate power and
authority to operate its properties, and to conduct its business as now or
currently proposed to be conducted; (iv) is in compliance with its certificate
of incorporation and by-laws; and (v) is in compliance with all applicable laws
except if such non-compliance has no reasonable likelihood of having a material
adverse effect on the business, operations, properties, assets or financial
condition of Grantor or the ability of Grantor to perform its obligations under
this Agreement or on the Collateral.
(b) Grantor is the sole owner of each item of the Collateral in which it
purports to grant a security interest hereunder, having good and marketable
title thereto free and clear of any and all Liens except (i) the security
interest granted to Lender under this Security Agreement and (iii) the first
priority security interest granted to GECC under the GECC Security Agreement.
Grantor will warrant and defend such Collateral against all claims and demands
of all persons at any time claiming the same or any interest thereon.
(c) No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except (i) such
as have been filed in favor of Lender pursuant to this Security Agreement or
(ii) such as have been filed in favor of GECC pursuant to the GECC Security
Agreement.
(d) As a result of the filing of appropriate financing statements in the
jurisdictions listed on Schedule I hereto, this Security Agreement is effective
to create a valid and continuing Lien on and perfected security interest in
favor of Lender in the Collateral with respect to which a security interest may
be perfected by filing pursuant to the Code, which lien and security interest is
prior to all other Liens, except the first priority security interest granted to
GECC under the GECC Security Agreement, and is enforceable as such as against
creditors of and purchasers from Grantor. All action (including, without
limitation, all filings, registrations and recordings) necessary or desirable to
create, protect and perfect the security interest granted to Lender hereby in
respect of each item of the Collateral has been duly accomplished.
(e) Grantor's chief executive office, principal place of business,
corporate offices, and the locations of all of its records concerning the
Collateral are set forth on Schedule I. Grantor shall not change its chief
executive office, principal place of business, corporate offices, or the
location of its records concerning the Collateral without giving thirty (30)
days prior written notice thereof to Lender and taking all actions deemed by
Lender necessary or appropriate to protect and perfect Lender's interest in the
Collateral.
(f) Unless otherwise disclosed in writing to Lender by Grantor, each
Account represents a bona fide sale of services or Inventory to customers in the
ordinary course of Grantor's business completed in accordance with the terms and
provisions contained in the
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documents available to Lender with respect thereto, and no Account is evidenced
by a Document, Instrument or Chattel Paper.
5. COVENANTS. Grantor covenants and agrees with Lender that from and after
the date of this Security Agreement and until payment in full of the
Obligations:
(a) Further Assurances; Pledge of Instruments. At any time and from time to
time, upon the written request of Lender and at the sole expense of Grantor,
Grantor shall promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as Lender may reasonably
deem desirable to obtain the full benefits of this Security Agreement and of the
rights and powers herein granted, including filing any financing or continuation
statements under the Code with respect to the liens and security interests
granted hereunder. Grantor also hereby authorizes Lender to file any such
financing or continuation statement without the signature of Grantor to the
extent permitted by applicable law. If any amount payable under or in connection
with any of the Collateral is or shall become evidenced by any Instrument having
an outstanding principal balance of greater than $50,000, then, subject to the
prior rights of GECC with respect thereto, such Instrument, other than checks
and notes received in the ordinary course of business, shall be duly endorsed in
a manner satisfactory to Lender immediately upon Grantor's receipt thereof and
promptly delivered to Lender. Grantor will warrant and defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest thereon.
(b) Maintenance of Records. Grantor shall keep and maintain, at its own
cost and expense, satisfactory and complete records of the Collateral, including
a record of any and all payments received and any and all credits granted with
respect to the Collateral and all other dealings with the Collateral. Grantor
shall mark its books and records pertaining to the Collateral to evidence this
Security Agreement and the security interests granted hereby. Upon the
occurrence and during the continuation of any Event of Default, subject to the
prior rights of GECC with respect thereto, Grantor shall deliver and turn over
all of Grantor's books and records pertaining to the Collateral to Lender or to
Lender's representatives at any time on demand of Lender. Prior to the
occurrence of an Event of Default, upon reasonable notice from Lender, Grantor
shall permit any representative of Lender to inspect such books and records and
shall provide photocopies thereof to Lender.
(c) Continuous Perfection. Grantor shall not change its name, identity or
corporate structure in any manner which might make any financing or continuation
statement filed in connection herewith seriously misleading within the meaning
of Section 9-402(7) of the Code or any other then applicable provision of the
Code unless Grantor shall have given Lender at least thirty (30) days' prior
written notice thereof and shall have taken all action (or made arrangements
satisfactory to Lender to take such action substantially simultaneously with
such change if it is impossible to take such action in advance) necessary or
reasonably requested by Lender to amend such financing statement or continuation
statement so that it is not seriously misleading.
6. LENDER'S APPOINTMENT AS ATTORNEY-IN-FACT.
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(a) Grantor hereby irrevocably constitutes and appoints Lender and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of Grantor and in the name of Grantor or in its own name, from time to
time in Lender's reasonable discretion, for the purpose of carrying out the
terms of this Security Agreement, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to accomplish the purposes of this Security Agreement and, without
limiting the generality of the foregoing, hereby grants to Lender the power and
right, on behalf of Grantor, without notice to or assent by Grantor, and at any
time, to do the following:
(i) in the name of Grantor, in its own name or otherwise, take
possession of, endorse and receive payment of any checks, drafts, notes,
acceptances, or other Instruments for the payment of monies due under any
Collateral; and
(ii) receive payment of any and all monies, claims, and other amounts
due or to become due at any time arising out of or in respect of any
Collateral.
(b) Grantor hereby irrevocably constitutes and appoints Lender and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of Grantor and in the name of Grantor or in its own name, from time to
time in Lender's discretion, for the purpose of carrying out the terms of this
Security Agreement, to take any and all appropriate action and to execute and
deliver any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement and, without
limiting the generality of the foregoing, hereby grants to Lender the power and
right, on behalf of Grantor, without notice to or assent by Grantor, upon the
occurrence and during the continuation of an Event of Default, to do the
following:
(i) ask, demand, collect, receive and give acquittances and receipts
for any and all money due or to become due under any Collateral;
(ii) pay or discharge any taxes, Liens, security interests, or other
encumbrances levied or placed on or threatened against the Collateral;
(iii) direct any party liable for any payment under or in respect of
any of the Collateral to make payment of any and all monies due or to
become due thereunder, directly to Lender or as Lender shall direct;
(iv) sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against Account Debtors,
assignments, verifications, and notices in connection with accounts and
other documents constituting or related to the Collateral;
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(v) settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or
releases as Lender may deem appropriate;
(vi) file any claim or take or commence any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by Lender for
the purpose of collecting any and all such monies due under any Collateral
whenever payable;
(vii) commence and prosecute any suits, actions or proceedings at law
or in equity in any court to collect the Collateral or any part thereof and
to enforce any other right in respect of any Collateral;
(viii) defend any suit, action or proceeding brought against Grantor
with respect to any Collateral if Grantor does not defend such suit, action
or proceeding or if Lender believes that Grantor is not pursuing such
defense in a manner that will maximize the recovery with respect to such
Collateral; and
(ix) sell, transfer, pledge, make any agreement with respect to, or
otherwise deal with any of the Collateral as fully and completely as though
Lender were the absolute owner thereof for all purposes, and to do, at
Lender's option and Grantor's expense, at any time, or from time to time,
all acts and other things which Lender reasonably deems necessary to
perfect, preserve, or realize upon the Collateral and Lender's Lien therein
in order to effect the intent of this Security Agreement, all as fully and
effectively as Grantor might do.
(c) Grantor hereby ratifies, to the extent permitted by law, all that said
attorneys shall lawfully do or cause to be done by virtue hereof. The power of
attorney granted pursuant to this Section 6 is a power coupled with an interest
and shall be irrevocable until the payment in full of the Obligations.
(d) The powers conferred on Lender hereunder are solely to protect Lender's
security interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Lender shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and none of its
officers, directors, employees, agents or representatives shall be responsible
to Grantor for any act or failure to act, except for their own gross negligence
or willful misconduct as determined by a final judgment of a court of competent
jurisdiction.
(e) Grantor also authorizes Lender, at any time and from time to time,
following the occurrence and during the continuance of an Event of Default, to
execute, in connection with the sale provided for in Section 8 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
(f) All of the rights of Lender under this Section 6 are subject to the
limitations thereon set forth in the Intercreditor Agreement.
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7. PERFORMANCE BY LENDER OF GRANTOR'S OBLIGATIONS. If Grantor fails to
perform or comply with any of its agreements contained herein, and Lender, as
provided for by the terms of this Security Agreement, shall itself perform or
comply, or otherwise cause performance of or compliance with such agreement, the
reasonable expenses, including attorneys' fees, of Lender incurred in connection
with such performance or compliance, together with interest thereon at the
Default Rate shall be payable by Grantor to Lender on demand and shall
constitute part of the Obligations secured hereby.
8. REMEDIES; RIGHTS UPON AN EVENT OF DEFAULT. (a) If any Event of Default
shall occur and be continuing, Lender may exercise in addition to all other
rights and remedies granted to it under this Security Agreement and under any
other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, Grantor expressly agrees that in any
such event Lender without demand of performance or other demand, advertisement
or notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon Grantor or any other Person (all and each of
which demands, advertisements and notices are hereby expressly waived to the
maximum extent permitted by the Code and other applicable law), may forthwith
enter upon the premises of Grantor where any Collateral is located through self-
help, without judicial process, without first obtaining a final judgment or
giving Grantor notice and opportunity for a hearing on Lender's claim or action,
and without paying rent to Grantor, and collect, receive, assemble, process,
appropriate and realize upon the Collateral, or any part thereof, and may
forthwith sell, lease, assign, give an option or options to purchase, or sell or
otherwise dispose of and deliver said Collateral (or contract to do so), or any
part thereof, in one or more parcels at public or private sale or sales, at any
exchange at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Lender shall have the right
upon any such public sale or sales and, to the extent permitted by law, upon any
such private sale or sales, to purchase for its benefit the whole or any part of
said Collateral so sold, free of any right or equity of redemption, which equity
of redemption Grantor hereby releases. Such sales may be adjourned or continued
from time to time with or without notice. Lender shall have the right to
conduct such sales on Grantor's premises or elsewhere and shall have the right
to use Grantor's premises without charge for such sales for such time or times
as Lender deems necessary or advisable except as otherwise provided in the
applicable landlord's waiver.
Grantor further agrees, at Lender's request, to assemble the Collateral and
make it available to Lender at places which Lender shall reasonably select,
whether at Grantor's premises or elsewhere. Until Lender is able to effect a
sale, lease, or other disposition of the Collateral, Lender shall have the right
to hold or use the Collateral on behalf of Lender, or any part thereof, to the
extent that it deems appropriate for the purpose of preserving the Collateral or
its value or for any other purpose deemed appropriate by Lender. Lender shall
have no obligation to Grantor to maintain or preserve the rights of Grantor as
against third parties with respect to the Collateral while the Collateral is in
the possession of Lender. Lender may, if it so elects, seek the appointment of
a receiver or keeper to take possession of the Collateral and to enforce any of
Lender's remedies with respect to such appointment without prior notice or
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hearing. Lender shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, as provided in Section 8(d) hereof,
and only after so paying over such net proceeds and after the payment by Lender
of any other amount required by any provision of law, including section
9504(1)(c) of the Code (but only after Lender has received what Lender considers
reasonable proof of a subordinate party's security interest), need Lender
account for the surplus, if any, to Grantor. To the maximum extent permitted by
applicable law, Grantor waives all claims, damages, and demands against Lender
arising out of the repossession, retention or sale of the Collateral except such
as arise out of the gross negligence or willful misconduct of such party.
Grantor agrees that ten (10) days' prior notice by Lender of the time and place
of any public sale or of the time after which a private sale may take place is
reasonable notification of such matters. Grantor shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Lender is entitled, Grantor also being
liable for any and all costs and expenses incurred by Lender, including
reasonable attorneys' fees, to collect such deficiency.
(b) Grantor agrees to pay any and all costs of Lender, including, without
limitation, reasonable attorneys' fees, incurred in connection with the
enforcement of any of its rights and remedies hereunder.
(c) Except as otherwise specifically provided herein, to the maximum extent
permitted by applicable law, Grantor hereby waives presentment, demand, protest
or any notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon all or
any part of the Collateral shall be distributed by Lender upon receipt, in the
following order of priorities:
First, the payment in full of reasonable expenses of Lender in
connection with such sale, disposition or other realization, including all
expenses, liabilities and advances incurred or made by Lender in connection
therewith, including reasonable attorney's fees and any other Obligations
owed to Lender;
Second, to the payment of accrued but unpaid interest on the
Obligations;
Third, to the payment of unpaid principal of the Obligations;
Fourth, to the payment of all other Obligations until all other
Obligations shall have been paid in full; and
Finally, to payment to Grantor, or its successors or assigns, or as a
court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
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(e) All of the rights and remedies of Lender under this Section 8 are
subject to the limitations thereon set forth in the Intercreditor Agreement.
9. LIMITATION ON LENDER'S DUTY IN RESPECT OF COLLATERAL. Lender shall use
reasonable care with respect to the Collateral in its possession or under its
control. Lender shall not have any other duty as to any Collateral in its
possession or control or in the possession or control of any agent or nominee of
Lender, or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. Upon request of Grantor, Lender
shall promptly account for any monies received by Lender in respect of any
foreclosure on or disposition of the Collateral.
10. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Grantor for liquidation or reorganization, should Grantor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of Grantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a "voidable preference,"
"fraudulent conveyance," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
11. NOTICES. All notices, approvals, consents and other communications to
any party hereunder shall be in writing and sent by certified or registered
mail, return receipt requested, or by overnight delivery service, with all
charges prepaid, if to Grantor addressed to it at [c/o C.I.S. Technologies,
Inc., One Warren Place, 6100 South Yale, Suite 1900, Tulsa, Oklahoma 74136-
1903,] Attention: Richard A. Evans, Telecopy No. (918) 481-4281, or Lender, at
First Financial Management Corporation, 3 Corporate Square, Suite 700, Atlanta,
Georgia 30329, Attention: Legal Department, Telecopy No.: (404) 636-7632, or by
facsimile transmission, promptly confirmed in writing sent by first class mail,
to the telecopy number set forth above, or such other address or telecopy number
as such party may hereafter specify by notice to Lender and Grantor. All such
notices, approvals, consents or other communications shall be deemed given (i)
if sent by certified or registered mail, (5) business days after being
postmarked, (ii) if sent by overnight delivery service, when received at the
address set forth above or when delivery is refused and (iii) if sent by
facsimile transmission, when receipt of such transmission is acknowledged.
12. SEVERABILITY. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. This Security Agreement
sets forth
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the complete understanding and agreement of the Lender and Grantor with respect
to the matters referred to herein.
13. NO WAIVER; CUMULATIVE REMEDIES. Lender shall not by any act, delay,
omission or otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing, signed by Lender and
then only to the extent therein set forth. A waiver by Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which Lender would otherwise have had on any future occasion.
No failure to exercise nor any delay in exercising on the part of Lender, any
right, power or privilege hereunder, shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies hereunder provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights and remedies provided by law. None of the terms or provisions of
this Security Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by Lender and Grantor.
14. LIMITATION BY LAW. All rights remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they do not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered,
or filed under the provisions of any applicable law.
15. TERMINATION OF THIS SECURITY AGREEMENT. Subject to Section 10 hereof,
this Security Agreement shall terminate upon the payment in full of the
Obligations.
16. SUCCESSOR AND ASSIGNS. This Security Agreement and all obligations of
Grantor hereunder shall be binding upon the successors and assigns of Grantor,
and shall, together with the rights and remedies of Lender hereunder, inure to
the benefit of Lender, all future holders of any instrument evidencing any of
the Obligations and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any portion
thereof or interest therein shall in any manner affect the security interest
granted to Lender hereunder. Grantor may not assign, sell or otherwise transfer
an interest in this Security Agreement.
17. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS SECURITY
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE
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LAWS OF THE UNITED STATES OF AMERICA. GRANTOR HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK CITY SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GRANTOR AND
LENDER PERTAINING TO THIS SECURITY AGREEMENT OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS SECURITY AGREEMENT OR THE NOTE, PROVIDED, THAT LENDER AND
GRANTOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF NEW YORK CITY AND, PROVIDED, FURTHER, THAT NOTHING IN
THIS SECURITY AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER. GRANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND GRANTOR HEREBY WAIVES ANY OBJECTION WHICH GRANTOR MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINTS AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO GRANTOR AT THE ADDRESS SET FORTH IN
SECTION 11 HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF GRANTOR'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN
THE U.S. MAILS, PROPER POSTAGE PREPAID.
18. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS SECURITY AGREEMENT OR THE NOTE OR THE TRANSACTIONS RELATED
THERETO.
46
IN WITNESS WHEREOF, Grantor has caused this Security Agreement to be
executed and delivered by its duly authorized officer on the date first set
forth above.
HOSPITAL COSTS CONSULTANTS, INC.
By: /s/ Phillip D. Kurtz
-----------------------------
Name: Phillip D. Kurtz
Title: V.P.
ACCEPTED ON May 31, 1995:
FIRST FINANCIAL MANAGEMENT
CORPORATION
By: /s/ Stephen D. Kane
-------------------
Name:
Title: Vice Chairman
47