EXHIBIT 10
001 - FTCI
[FIFTH THIRD BANK LOGO]
TERM NOTE
OFFICER No. 04013 NOTE No. 0902074749-00018
$2,000,000.00 July 30, 2004
(Effective Date)
September 2, 2005
(Second Revision)
1. PROMISE TO PAY. On or before July 30, 2007 (the "Maturity Date"), the
undersigned, Lanvision, Inc., an Ohio corporation located at 10200 Alliance
Road, Suite 200, Cincinnati, Hamilton County, Ohio 45242 ("Borrower") for value
received, hereby promises to pay to the order of Fifth Third Bank, an Ohio
banking corporation located at 38 Fountain Square Plaza, Cincinnati, Hamilton
County, Ohio 45263 for itself and as agent for any affiliate of Fifth Third
Bancorp (together with its successors and assigns, the "Lender") the sum of Two
Million and 00/100 Dollars ($2,000,000.00) (the "Borrowing"), plus interest as
provided herein, less such amounts as shall have been repaid in accordance with
this Note which is a revision and restatement of that note originally executed
on July 30, 2004 and revised and restated on September 2, 2005. The outstanding
balance of this Note shall appear on a supplemental bank record and is not
necessarily the face amount of this Note, which record shall evidence the
balance due pursuant to this Note at any time. As used herein, "Local Time"
means the time at the office of Lender specified in this Note.
Principal and interest payments shall be initiated by Lender in accordance with
the terms of this Note from Borrower's account through BillPayer 2000(R).
Borrower hereby authorizes Lender to initiate such payments from Borrower's
account located at Fifth Third Bank, routing number account number
. Borrower acknowledges and agrees that use of BillPayer 2000(R) shall
be governed by the BillPayer 2000(R) Terms and Conditions, a copy of which
Borrower acknowledges receipt. Borrower further acknowledges and agrees to
maintain payments hereunder through BillPayer 2000(R) throughout the term of
this Note. Each payment hereunder shall be applied first to advanced costs,
charges and fees, then to accrued interest, and then to principal.
Principal shall be due and payable in 2 installments, each in the amount of
$1,000,000.00, due on July 30, 2006 and July 30, 2007; provided that the entire
principal balance, together with all accrued and unpaid interest and any other
charges, advances and fees, if any, outstanding hereunder shall be due and
payable in full on the earlier of the Maturity Date or upon acceleration of the
Note.
As of September 2, 2005, the principal sum outstanding shall bear interest at a
floating rate per annum equal to the rate of interest per annum established from
time to time by Fifth Third Bank at its principal office as its "Prime Rate",
whether or not Fifth Third Bank shall at times lend to borrowers at lower rates
of interest or, if there is no such prime rate, then such other rate as may be
substituted by Fifth Third Bank for the prime rate (the "Interest Rate"). In the
event of a change in said Prime Rate, the Interest Rate shall be changed
immediately to such new Prime Rate. Interest shall be calculated based on a
360-day year and charged for the actual number of days elapsed, and shall be
payable on the last day of each quarter beginning on October 31, 2005.
Notwithstanding any provision to the contrary in this Note, in no event shall
the interest rate charged on the Borrowing exceed the maximum rate of interest
permitted under applicable state and/or federal usury law. Any payment of
interest that would be deemed unlawful under applicable law for any reason shall
be deemed received on account of, and will automatically be applied to reduce,
the principal sum outstanding and any other sums (other than interest) due and
payable to Lender under this Note, and the provisions hereof shall be deemed
amended to provide for the highest rate of interest permitted under applicable
law.
2. SECURITY AGREEMENT. To secure repayment of this Note and all other
Obligations (as defined below) together with all modifications, extensions and
renewals thereof, Borrower hereby grants Lender a continuing security interest
in all right, title and interest of Borrower in and to the following property,
whether now owned or hereafter acquired (collectively, the "Collateral"): (i)
any and all property in which Lender and/or any affiliate of Fifth Third Bancorp
(including without limitation Fifth Third Securities, Inc.) is at any time
granted a lien for any Obligation including, without
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limitation, all collateral specified in any of the documents executed in
connection with this Note, (ii) all property in possession of Lender and/or any
affiliate of Fifth Third Bancorp (including without limitation Fifth Third
Securities, Inc.) including, without limitation, money, securities, instruments,
documents, letters of credit, chattel paper, or other property delivered to
Lender in transit, for safekeeping, or for collection or exchange for other
property, (iii) all rights to payment from, and claims against, Lender and/or
any affiliate of Fifth Third Bancorp (including without limitation Fifth Third
Securities, Inc.), and (iv) any and all additions, substitutions, dividends,
distributions (in the form of cash, property, stock or other securities) and
other rights related or in addition to the foregoing, and any and all proceeds
therefrom (the "Distributions"). Borrower agrees to immediately deliver to
Lender all documents, certificates and instruments evidencing the Distributions
and any additional documentation requested by Lender to perfect and protect
Lender's security interest therein, and until such delivery Borrower shall hold
the same in trust for Lender.
Borrower also grants Lender a security interest in all of the Collateral as
agent for all affiliates of Fifth Third Bancorp for all Obligations of Borrower
to such affiliates. Said security interest shall not be enforced to the extent
prohibited by the Truth in Lending Act as implemented by Federal Reserve
Regulation Z.
3. USE OF PROCEEDS. Borrower certifies that the proceeds of this loan are
to be used for business purposes.
4. REVISION AND RESTATEMENT. This Note is issued, not as a payment toward,
but as a continuation of, the obligations of Borrower to Lender pursuant to that
certain note dated July 30, 2004 in the principal amount of $2,000,000.00
(together with all prior amendments thereto or restatements thereof the "Prior
Note"). Accordingly, this Note shall not be construed as a novation or
extinguishment of, the obligations arising under the Prior Note, and its
issuance shall not affect the priority of any security interest granted in
connection with the Prior Note.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby warrants and represents
to Lender the following:
(a) Organization and Qualification. Borrower is duly organized,
validly existing and in good standing under the laws of the State of its
incorporation, has the power and authority to carry on its business and to
enter into and perform all documents relating to this loan transaction,
and is qualified and licensed to do business in each jurisdiction in which
such qualification or licensing is required. All information provided to
Lender with respect to Borrower and its operations is true and correct.
(b) Due Authorization. The execution, delivery and performance by
Borrower of the Loan Documents have been duly authorized by all necessary
corporate action, and shall not contravene any law or any governmental
rule or order binding on Borrower, or the articles of incorporation and
code of regulations or by-laws of Borrower, nor violate any agreement or
instrument by which Borrower is bound nor result in the creation of a Lien
on any assets of Borrower except the Lien granted to Lender herein.
Borrower has duly executed and delivered to Lender the Loan Documents and
they are valid and binding obligations of Borrower enforceable according
to their respective terms, except as limited by equitable principles and
by bankruptcy, insolvency or similar laws affecting the rights of
creditors generally. No notice to, or consent by, any governmental body is
needed in connection with this transaction.
(c) Litigation. There are no suits or proceedings pending or
threatened against or affecting Borrower, and no proceedings before any
governmental body are pending or threatened against Borrower.
(d) Business. Borrower is not a party to or subject to any agreement
or restriction that may have a material adverse effect on Borrower's
business, properties or prospects. Borrower has all franchises,
authorizations, patents, trademarks, copyrights and other rights necessary
to advantageously conduct its business. They are all in full force and
effect and are not in known conflict with the rights of others.
(e) Licenses, etc. Borrower has obtained any and all licenses,
permits, franchises, governmental authorizations, patents, trademarks,
copyrights or other rights necessary for the ownership of its properties
and the advantageous conduct of its business. Borrower possesses adequate
licenses, patents, patent applications,
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copyrights, trademarks, trademark applications, and trade names to
continue to conduct its business as heretofore conducted by it, without
any conflict with the rights of any other person or entity. All of the
foregoing are in full force and effect and none of the foregoing are in
known conflict with the rights of others.
(f) Laws and Taxes. Borrower is in material compliance with all
laws, regulations, rulings, orders, injunctions, decrees, conditions or
other requirements applicable to or imposed upon Borrower by any law or by
any governmental authority, court or agency. Borrower has filed all
required tax returns and reports that are now required to be filed by it
in connection with any federal, state and local tax, duty or charge
levied, assessed or imposed upon Borrower or its assets, including
unemployment, social security, and real estate taxes. Borrower has paid
all taxes which are now due and payable. No taxing authority has asserted
or assessed any additional tax liabilities against Borrower which are
outstanding on this date, and Borrower has not filed for any extension of
time for the payment of any tax or the filing of any tax return or report.
(g) Title. Borrower has good and marketable title to the assets
reflected on the most recent balance sheet submitted to Lender, free and
clear from all liens and encumbrances of any kind, except for
(collectively, the "Permitted Liens") (a) current taxes and assessments
not yet due and payable, (b) liens and encumbrances, if any, reflected or
noted on such balance sheet or notes thereto, (c) assets disposed of in
the ordinary course of business, and (d) any security interests, pledges,
assignments or mortgages granted to Lender to secure the repayment or
performance of the Obligations.
(h) Subsidiaries and Partnerships. Borrower has no subsidiaries and
is not a party to any partnership agreement or joint venture agreement.
6. AFFIRMATIVE COVENANTS. Borrower covenants with, and represents and
warrants to, Lender that, from and after the execution date of the Loan
Documents until the Obligations are paid and satisfied in full:
(a) Financial Statements. Borrower shall maintain a standard and
modern system for accounting and shall furnish to Lender:
(i) Within 90 days after the end of each quarter, a copy of
Borrower's internally prepared consolidated financial statements for
that quarter and for the year to date in a form reasonably
acceptable to Lender and certified as complete and accurate, subject
to changes resulting from year end adjustments by the principal
financial officer of the Borrower.
(ii) Within 120 days after the end of each fiscal year, a copy
of Borrower's 10 K, audited by Borrower's certified public
accountants acceptable to Lender, (which acceptance shall not be
unreasonably withheld) and accompanied by an audit opinion of such
accountants without qualification;
(iii) With the statements submitted above, a certificate
signed by the principal financial officer of Borrower, (i) stating
he is familiar with all documents relating to Lender and that no
Event of Default specified herein, nor any event which upon notice
or lapse of time, or both would constitute such an Event of Default,
has occurred, or if any such condition or event existed or exists,
specifying it and describing what action Borrower has taken or
proposes to take with respect thereto, and (ii) setting forth, in
summary form, figures showing the financial status of Borrower in
respect of the financial restrictions contained herein;
(iv) Immediately upon any officer of Borrower obtaining
knowledge of any condition or event which constitutes or, after
notice or lapse of time or both, would constitute an Event of
Default, a certificate of such person specifying the nature and
period of the existence thereof, and what action Borrower has taken
or is taking or proposes to take in respect thereof;
All of the statements referred to in (i) and (ii) above shall be in
conformance with generally accepted accounting principles and give
representatives of Lender access thereto at all reasonable times,
including permission to examine, copy and make abstracts from any such
books and records and such other information which might be helpful to
Lender in evaluating the status of the loans as it may reasonably request
from time to time.
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With all financial statements delivered to Lender as provided in (i) and
(ii) above, Borrower shall deliver to Lender a Financial Statement
Compliance Certificate in addition to the other information set forth
therein, which certifies the Borrower's compliance with the financial
covenants set forth herein and that no Event of Default has occurred.
If at any time Borrower has any additional subsidiaries which have
financial statements that could be consolidated with those of Borrower
under generally accepted accounting principles, the financial statements
required by subsections (i) and (ii) above shall be the financial
statements of Borrower and all such subsidiaries prepared on a
consolidated and consolidating basis.
(b) Insurance. At its own cost, Borrower shall obtain and maintain
insurance against (a) loss, destruction or damage to its properties and
business of the kinds and in the amounts customarily insured against by
corporations with established reputations engaged in the same or similar
business as Borrower and, in any event, sufficient to fully protect
Lender's interest in the Collateral, and (b) insurance against public
liability and third party property damage of the kinds and in the amounts
customarily insured against by corporations with established reputations
engaged in the same or similar business as Borrower. All such policies
shall (i) be issued by financially sound and reputable insurers, (ii) name
Lender as an additional insured and, where applicable, as loss payee under
a Lender loss payable endorsement satisfactory to Lender, and (iii) shall
provide for thirty (30) days written notice to Lender before such policy
is altered or canceled. All of the insurance policies required hereby
shall be evidenced by one or more Certificates of Insurance delivered to
Lender by Borrower on the Closing Date and at such other times as Lender
may request from time to time.
(c) Taxes. Borrower shall pay when due all taxes, assessments and
other governmental charges imposed upon it or its assets, franchises,
business, income or profits before any penalty or interest accrues
thereon, and all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which by law might be a lien or
charge upon any of its assets, provided that (unless any material item or
property would be lost, forfeited or materially damaged as a result
thereof) no such charge or claim need be paid if it is being diligently
contested in good faith, if Lender is notified in advance of such contest
and if Borrower establishes an adequate reserve or other appropriate
provision required by generally accepted accounting principles and
deposits with Lender cash or bond in an amount acceptable to Lender.
(d) Compliance with Laws. Borrower shall comply with all federal,
state and local laws, regulations and orders applicable to Borrower or its
assets including but not limited to all Environmental Laws, in all
respects material to Borrower's business, assets or prospects and shall
immediately notify Lender of any violation of any rule, regulation,
statute, ordinance, order or law relating to the public health or the
environment and of any complaint or notifications received by Borrower
regarding to any environmental or safety and health rule, regulation,
statute, ordinance or law. Borrower shall obtain and maintain any and all
licenses, permits, franchises, governmental authorizations, patents,
trademarks, copyrights or other rights necessary for the ownership of its
properties and the advantageous conduct of its business and as may be
required from time to time by applicable law.
(e) Depository/Banking Services. Lender shall be the principal
depository in which substantially all of Borrower's funds are deposited,
and the principal bank of account of Borrower, as long as any Obligations
are outstanding, and Borrower shall grant Lender the first and last
opportunity to provide any corporate banking services required by Borrower
and its Affiliates.
(f) Other Amounts Deemed Loans. If Borrower fails to pay any tax,
assessment, governmental charge or levy or to maintain insurance within
the time permitted or required by this Note, or to discharge any Lien
prohibited hereby, or to comply with any other Obligation, Lender may, but
shall not be obligated to, pay, satisfy, discharge or bond the same for
the account of Borrower. To the extent permitted by law and at the option
of Lender, all monies so paid by Lender on behalf of Borrower shall be
deemed Obligations and Borrower's payments under this Note may be
increased to provide for payment of such Obligations plus interest
thereon.
(g) Further Assurances. Borrower shall execute, acknowledge and
deliver, or cause to be executed, acknowledged or delivered, any and all
such further assurances and other agreements or instruments, and take or
cause to be taken all such other action, as shall be reasonably necessary
from time to time to give full effect to the Loan Documents and the
transactions contemplated thereby.
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7. DEFINITIONS. Certain capitalized terms have the meanings set forth on
any exhibit hereto, in the Security Agreement, if applicable, or any other Loan
Document. All financial terms used herein but not defined on the exhibits, in
the Security Agreement, if applicable, or any other Loan Document have the
meanings given to them by generally accepted accounting principles. All other
undefined terms have the meanings given to them in the Uniform Commercial Code
as adopted in the state whose law governs this instrument. The following
definitions are used herein:
(a) "Affiliate" means, as to Borrower, (a) any person or entity
which, directly or indirectly, is in control of, is controlled by or is
under common control with, Borrower, or (b) any person who is a director,
officer or employee (i) of Borrower or (ii) of any person described in the
preceding clause (a).
(b) "Lien" means any security interest, mortgage, pledge,
assignment, lien or other encumbrance of any kind, including interests of
vendors or lessors under conditional sale contracts or capital leases.
(c) "Loan Documents" means any and all Rate Management Agreements
and each and every document or agreement executed by any party evidencing,
guarantying or securing any of the Obligations; and "Loan Document" means
any one of the Loan Documents.
(d) "Obligation(s)" means all loans, advances, indebtedness and each
and every other obligation or liability of Borrower owed to each of Lender
and/or any affiliate of Fifth Third Bancorp, however created, of every
kind and description whether now existing or hereafter arising and whether
direct or indirect, primary or as guarantor or surety, absolute or
contingent, liquidated or unliquidated, matured or unmatured, participated
in whole or in part, created by trust agreement, lease overdraft,
agreement or otherwise, whether or not secured by additional collateral,
whether originated with Lender or owed to others and acquired by Lender by
purchase, assignment or otherwise, and including, without limitation, all
loans, advances, indebtedness and each and every obligation or liability
arising under the loan document, any and all Rate Management Obligations
(as defined in the Loan Documents), letters of credit now or hereafter
issued by Lender or any affiliate of Fifth Third Bancorp for the benefit
of or at the request of Borrower, all obligations to perform or forbear
from performing acts, and agreements, instruments and documents
evidencing, guarantying, securing or otherwise executed in connection with
any of the foregoing, together with any amendments, modifications and
restatements thereof, and all expenses and attorneys' fees incurred by
Lender hereunder or any other document, instrument or agreement related to
any of the foregoing.
(e) "Rate Management Agreement" means any agreement, device or
arrangement providing for payments which are related to fluctuations of
interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency
or interest rate options, puts and warrants, and any agreement pertaining
to equity derivative transactions (e.g., equity or equity index swaps,
options, caps, floors, collars and forwards), including without limitation
any ISDA Master Agreement between Borrower and Lender or any affiliate of
Fifth Third Bancorp, and any schedules, confirmations and documents and
other confirming evidence between the parties confirming transactions
thereunder, all whether now existing or hereafter arising, and in each
case as amended, modified or supplemented from time to time.
(f) "Rate Management Obligations" means any and all obligations of
Borrower to Lender or any affiliate of Fifth Third Bancorp, whether
absolute, contingent or otherwise and howsoever and whensoever (whether
now or hereafter) created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefore), under or in connection with (i) any and all Rate Management
Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Agreement.
8. EVENTS OF DEFAULT. Upon the occurrence of any of the following events
(each, an "Event of Default"), Lender may, at its option, without any demand or
notice whatsoever, declare this Note and all Obligations to be fully due and
payable in their aggregate amount, together with accrued interest and all
prepayment premiums, fees, and charges applicable thereto:
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(a) Any failure to make any payment when due of principal or accrued
interest on this Note or any other Obligation and such nonpayment remains
uncured for a period of 10 days thereafter.
(b) Any representation or warranty of Borrower set forth in this
Note or in any agreement, instrument, document, certificate or financial
statement evidencing, guarantying, securing or otherwise related to, this
Note or any other Obligation shall be materially inaccurate or misleading.
(c) Borrower shall fail to observe or perform any other term or
condition of this Note or any other term or condition set forth in any
agreement, instrument, document, certificate or financial statement
evidencing, guarantying or otherwise related to this Note or any other
Obligation, or Borrower shall otherwise default in the observance or
performance of any covenant or agreement set forth in any of the foregoing
for a period of 30 days.
(d) The dissolution of Borrower or of any endorser or guarantor of
the Obligations, or the merger or consolidation of any of the foregoing
with a third party, or the lease, sale or other conveyance of a material
part of the assets or business of any of the foregoing to a third party
outside the ordinary course of its business, or the lease, purchase or
other acquisition of a material part of the assets or business of a third
party by any of the foregoing.
(e) Any failure to submit to Lender current financial information
upon request.
(f) The creation of any Lien (except a lien to Lender) on, the
institution of any garnishment proceedings by attachment, levy or
otherwise against, the entry of a judgment against, or the seizure of, any
of the property of Borrower or any endorser or guarantor hereof including,
without limitation, any property deposited with Lender.
(g) In the judgment of Lender, any material adverse change occurs in
the existing or prospective financial condition of Borrower that may
affect the ability of Borrower to repay the Obligations, or the Lender
deems itself insecure.
(h) A commencement by the Borrower or any endorser or guarantor of
the Obligations of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect; or the entry
of a decree or order for relief in respect of the Borrower or any endorser
or guarantor of the Obligations in a case under any such law or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Borrower or any endorser or guarantor of
the Obligations, or for any substantial part of the property of Borrower
or any endorser or guarantor of the Obligations, or ordering the wind-up
or liquidation of the affairs of Borrower or any endorser or guarantor of
the Obligations; or the filing and pendency for 30 days without dismissal
of a petition initiating an involuntary case under any such bankruptcy,
insolvency or similar law; or the making by Borrower or any endorser or
guarantor of the Obligations of any general assignment for the benefit of
creditors; or the failure of the Borrower or any endorser or guarantor of
the Obligations generally to pay its debts as such debts become due; or
the taking of action by the Borrower or any endorser or guarantor of the
Obligations in furtherance of any of the foregoing.
(i) Nonpayment by the Borrower of any Rate Management Obligation
when due or the breach by the Borrower of any term, provision or condition
contained in any Rate Management Agreement.
(j) Any sale, conveyance or transfer of any rights in the Collateral
securing the Obligations, or any destruction, loss or damage of or to the
Collateral in any material respect.
9. REMEDIES. In addition to any other remedy permitted by law, Lender may
at any time, without notice, apply the Collateral to this Note or such other
Obligations, whether due or not, and Lender may, at its option, proceed to
enforce and protect its rights by an action at law or in equity or by any other
appropriate proceedings; provided that this Note and the Obligations shall be
accelerated automatically and immediately if the Event of Default is a filing
under the Bankruptcy Code. Notwithstanding any other legal or equitable rights
of Lender, Lender, in the Event of Default, is (a) hereby irrevocably appointed
and constituted attorney-in-fact, with full power of substitution, to exercise
all rights of ownership with respect to the Collateral including, but not
limited to, the right to collect all income or other distributions
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arising therefrom and to exercise all voting rights connected with the
Collateral; and (b) is hereby given full power to collect, sell, assign,
transfer and deliver all of said Collateral or any part thereof, or any
substitutes therefore, or any additions thereto, through any private or public
sale without either demand or notice to Borrower, or any advertisement, the same
being hereby expressly waived, at which sale Lender is authorized to purchase
said property or any part thereof, free from any right of redemption on the part
of Borrower, which is hereby expressly waived and released. In case of sale for
any cause, after deducting all costs and expenses of every kind, Lender may
apply, as it shall deem proper, the residue of the proceeds of such sale toward
the payment of any one or more or all of the Obligations of Borrower, whether
due or not due, to Lender; after such application and the return of any surplus,
Borrower agrees to be and remains liable to Lender for any and every deficiency
after application as aforesaid upon this and any other Obligation. Borrower
shall pay all costs of collection incurred by Lender, including its attorney's
fees, if this Note is referred to an attorney for collection, whether or not
payment is obtained before entry of judgment, which costs and fees are
Obligations secured by the Collateral.
Lender's rights and remedies hereunder are cumulative, and may be exercised
together, separately, and in any order. No delay on the part of Lender in the
exercise of any such right or remedy shall operate as a waiver. No single or
partial exercise by Lender of any right or remedy shall preclude any other
further exercise of it or the exercise of any other right or remedy. No waiver
or indulgence by Lender of any Event of Default shall be effective unless in
writing and signed by Lender, nor shall a waiver on one occasion be construed as
a waiver of any other occurrence in the future.
10. LATE PAYMENTS; DEFAULT RATE; FEES. If any payment is not paid when due
(whether by acceleration or otherwise) or within 10 days thereafter, undersigned
agrees to pay to Lender a late payment fee as provided for in any loan agreement
or 5% of the payment amount, whichever is greater with a minimum fee of $20.00.
After an Event of Default, Borrower agrees to pay to Lender a fixed charge of
$25.00, or Borrower agrees that Lender may, without notice, increase the
Interest Rate by six percentage points (6%) (the "Default Rate"), whichever is
greater. Lender may impose a non-sufficient funds fee for any check that is
presented for payment that is returned for any reason. In addition, Lender may
charge loan documentation fees as may be reasonably determined by the Lender.
11. PREPAYMENT. Borrower may prepay all or part of this Note, which
prepaid amounts shall be applied to the amounts due in reverse order of their
due dates. Partial prepayments shall not excuse any subsequent payment due.
Notwithstanding the foregoing, in the event Borrower repays all of the
outstanding principal of this Note prior to the maturity dates thereof with the
proceeds of a loan from another financial institution, Borrower agrees to pay to
Lender a prepayment penalty equal to two percent (2%) of the original principal
amount of this Note.
12. ENTIRE AGREEMENT. Borrower agrees that there are no conditions or
understandings which are not expressed in this Note and the documents referred
to herein.
13. SEVERABILITY. The declaration of invalidity of any provision of this
Note shall not affect any part of the remainder of the provisions.
14. ASSIGNMENT. Borrower agrees not to assign any of Borrower's rights,
remedies or obligations described in this Note without the prior written consent
of Lender, which consent may be withheld in Lender's sole discretion. Borrower
agrees that Lender may assign some or all of its rights and remedies described
in this Note without notice to, or prior consent from, the Borrower.
15. MODIFICATION; WAIVER OF LENDER. The modification or waiver of any of
Borrower's obligations or Lender's rights under this Note must be contained in a
writing signed by Lender. Lender may perform Borrower's obligations, or delay or
fail to exercise any of its rights or remedies, without causing a waiver of
those obligations or rights. A waiver on one occasion shall not constitute a
waiver on another occasion. Borrower's obligations under this Note shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases (i) any of the obligations belonging to any co-borrower, endorser or
guarantor, (ii) any of its rights against any co-borrower, guarantor or
endorser, or (iii) the Collateral or any other property securing the
Obligations.
16. WAIVER OF BORROWER. Demand, presentment, protest and notice of
dishonor, notice of protest and notice of default are hereby waived by Borrower,
and any endorser or guarantor hereof. Each of Borrower, including but not
limited to all co-makers and accommodation makers of this Note, hereby waives
all suretyship defenses including but
PROMISSORY-NOTE (C) Fifth Third Bancorp 2001M (5/05)
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not limited to all defenses based upon impairment of Collateral and all
suretyship defenses described in Section 3-605 of the Uniform Commercial Code
(the "UCC"). Such waiver is entered to the full extent permitted by Section
3-605 (i) of the UCC.
17. GOVERNING LAW; CONSENT TO JURISDICTION. This Note is delivered in, is
intended to be performed in, will be construed and enforceable in accordance
with and governed by the internal laws of, the State of Ohio, without regard to
principles of conflicts of law. Borrower agrees that the state and federal
courts in the County where the Lender is located shall have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding shall be effective if mailed to Borrower at the
address set forth herein.
18. JURY WAIVER. BORROWER, AND ANY ENDORSER OR GUARANTOR HEREOF, WAIVE THE
RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
19. WARRANT OF ATTORNEY. Borrower authorizes any attorney of record to
appear for it in any court of record in the State of Ohio, after maturity of
this Note, whether by its terms or upon default, acceleration or otherwise, to
waive the issuance and service of process, and release all errors, and to
confess judgment against it in favor of Lender for the principal sum due herein
together with interest, charges, court costs and attorneys' fees. Stay of
execution and all exemptions are hereby waived. If this Note or any Obligation
is referred to an attorney for collection, and the payment is obtained without
the entry of a judgment, the obligors shall pay to the holder of such
obligations its attorneys' fees. EACH OF BORROWER AND ANY ENDORSER OR ANY
GUARANTOR AGREES THAT AN ATTORNEY WHO IS COUNSEL TO LENDER OR ANY OTHER HOLDER
OF SUCH OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR BORROWER WHEN TAKING
THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. BORROWER AGREES THAT ANY ATTORNEY
TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY LENDER OR HOLDER OF SUCH
OBLIGATION. BORROWER WAIVES ANY CONFLICT OF INTEREST THAT MAY BE CREATED BECAUSE
THE ATTORNEY REPRESENTING THE BORROWER IS BEING PAID BY LENDER OR THE HOLDER OF
SUCH OBLIGATION.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
BORROWER:
Lanvision, Inc., an Ohio corporation
By:
--------------------------------
(Authorized Signer)
Paul W. Bridge Jr., CFO
--------------------------------
(Print Name and Title)
PROMISSORY-NOTE (C) Fifth Third Bancorp 2001M (5/05)
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001 - FTCI
[FIFTH THIRD BANK LOGO]
SAVINGS ACCOUNT AND CERTIFICATE OF DEPOSIT ASSIGNMENT
This Bank Savings - Fifth Third Assignment (this "Assignment") is made as
of September 2, 2005 by Lanvision, Inc., an Ohio corporation located at 10200
Alliance Road, Suite 200, Cincinnati, Ohio 45242 (the "Pledgor") and Fifth Third
Bank, an Ohio banking corporation, located at 38 Fountain Square Plaza,
Cincinnati, Ohio 45263 for itself and as agent for any affiliate of Fifth Third
Bancorp (hereinafter the "Secured Party").
W I T N E S S E T H:
WHEREAS, Pledgor is indebted to Secured Party in the aggregate principal
amount of Two Million and 00/100 Dollars ($2,000,000.00) pursuant to the Term
Note, dated July 30, 2004, executed by Pledgor and made payable to the order of
Secured Party, in the principal amount of $2,000,000.00(the "Note"), and all
agreements, instruments and documents executed or delivered in connection with
the foregoing or otherwise related thereto (collectively, together with any
amendments, modifications, or restatements thereof, the "Loan Documents").
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, Pledgor and Secured Party hereby agree as follows:
1. Collateral. Pledgor hereby assigns, transfers and grants to Secured
Party, a security interest in and to all of the following items of property
(collectively, the "Collateral"):
Bank Savings - Fifth Third Number issued by Fifth Third Bank in an
amount equal to the outstanding loan balance
2. Obligations Secured Hereby. The Collateral shall be security for the
payment and performance of the following (collectively, the "Obligations"): all
loans, advances, indebtedness and each and every other obligation or liability
of Pledgor owed to Secured Party and any affiliate of Fifth Third Bancorp,
however created, of every kind and description, whether now existing or
hereafter arising and whether direct or indirect, primary or as guarantor or
surety, absolute or contingent, due or to become due, liquidated or
unliquidated, matured or unmatured, participated in whole or in part, created by
trust agreement, lease, overdraft, agreement, or otherwise, whether or not
secured by additional collateral, whether originated with Secured Party or owed
to others and acquired by Secured Party by purchase, assignment or otherwise,
and including, without limitation, all loans, advances, indebtedness and each
and every other obligation or liability arising under the Loan Documents,
letters of credit now or hereafter issued by Secured Party or any affiliate of
Fifth Third Bancorp for the benefit of or at the request of Pledgor, all
obligations to perform or forbear from performing acts, any and all Rate
Management Obligations (as defined in the Loan Documents), and all agreements,
instruments and documents evidencing, guarantying, securing or otherwise
executed in connection with any of the foregoing, together with any amendments,
modifications, and restatements thereof, and all expenses and attorneys' fees
incurred or other sums disbursed by Secured Party under this Assignment or any
other document, instrument or agreement related to any of the foregoing
(collectively, the "Obligations").
3. Representations and Warranties. Pledgor hereby represents and warrants
to Secured Party as follows:
(a) It is an Ohio corporation with a principal place of business
located at the address otherwise set forth herein, and is duly organized,
validly existing and in good standing under the laws of the State of Ohio.
(b) Pledgor further warrants that its exact legal name is set forth
in the initial paragraph of this Agreement, and that its Taxpayer I.D. is
31-1285286, and that its Organizational No. is 758892.
(c) Except for the security interest hereby granted, Pledgor is, and
as to any property which at any time forms a part of the Collateral, shall
be, the sole owner of, with good and marketable title in, each and every
item of the Collateral, or otherwise shall have the full right and power
to grant a security interest in the Collateral, free from any lien,
security interest or encumbrance whatsoever;
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M (7/04)
(d) Each item of Collateral is, and shall be, valid, and all
information furnished to Secured Party with regard thereto is, and shall
be, accurate and correct in all respects when furnished;
(e) None of the Collateral shall be sold, assigned, transferred,
discounted, hypothecated or otherwise subjected to any lien, encumbrance
or security interest, and Pledgor shall defend such Collateral and each
and every part thereof against all claims of all persons at any time
claiming such Collateral or claiming any interest therein adverse to
Secured Party; and
(f) The provisions of this Assignment are sufficient to create in
favor of Secured Party a valid and continuing lien on, and first security
interest in, the types of Collateral in which a security interest may be
perfected by the filing of UCC Financing Statements, and when such UCC
Financing Statements are filed in the appropriate filing offices, and the
requisite filing fees are paid, such filings shall be sufficient to
perfect such security interests.
4. Events of Default. Any of the following events shall be an "Event of
Default" hereunder:
(a) An event of default occurs under any agreement, instrument or
document evidencing, guarantying, securing or otherwise executed or
delivered in connection with any of the Obligations, as "Event of Default"
shall be defined therein.
(b) Any representation or warranty of Pledgor set forth in this
Agreement or in any agreement, instrument, document, certificate or
financial statement evidencing, guarantying, securing or otherwise related
to, this Agreement or any other Obligation shall be materially inaccurate
or misleading.
(c) Pledgor shall fail to observe or perform any covenant or
condition required in this Agreement or in any agreement, instrument,
document, certificate or financial statement evidencing, guarantying,
securing or otherwise related to, this Agreement or any other Obligation,
or Pledgor shall otherwise default in the observance or performance of any
covenant or agreement set forth in any of the foregoing for a period of 30
days.
5. Remedies. Upon the occurrence and until the waiver of an Event of
Default, Secured Party may, without further notice to Pledgor, at Secured
Party's option, declare any or all of the Obligations to become due and payable
in its aggregate amount; provided that the Obligations shall be accelerated
automatically and immediately if the Event of Default is a filing under the
Bankruptcy Code. Secured Party may resort to the rights and remedies of a
secured party under the Uniform Commercial Code, including the right to take
possession of the Collateral in its own name and apply the Collateral to pay the
Obligations. No remedy set forth herein is exclusive of any other available
remedy or remedies, but each is cumulative and in addition to every other remedy
given under this Assignment, any of the Obligations, or now or hereafter
existing at law or in equity or by statute. Secured Party may proceed to protect
and enforce its rights by an action at law, in equity or by any other
appropriate proceedings. No failure on the part of Secured Party to enforce any
of the rights hereunder shall be deemed a waiver of such rights or of any Event
of Default and no waiver of any Event of Default shall be deemed to be a waiver
of any subsequent Event of Default.
6. Power of Attorney. Pledgor hereby makes, constitutes and appoints
Secured Party its true and lawful attorney in fact to act, with full power of
substitution, with respect to the Collateral in any transaction, legal
proceeding, or other matter in which Secured Party is acting pursuant to this
Assignment, including but not limited to executing, authenticating or filing on
its behalf: (i) UCC Financing Statements reflecting the lien of Secured Party
upon the Collateral and any other documents necessary or desirable to perfect or
otherwise continue the security interest granted herein; and (ii) any third
party agreements or assignments to grant Secured Party control over the
Collateral, including but not limited to third party agreements between Pledgor,
Secured Party, and depository institutions, securities intermediaries, and
issuers of letters of credit or other support obligations, which third party
agreements direct the third party to accept direction from Secured Party
regarding the maintenance and disposition of the Collateral and the products and
proceeds thereof.
7. Miscellaneous Provisions. (a) All rights of Secured Party shall inure
to the benefit of its successors and assigns, and all obligations of Pledgor
shall bind the heirs, executors, administrators, successors and assigns of
Pledgor. (b) Pledgor acknowledges and agrees that, in addition to the security
interests granted herein, Secured Party has a banker's lien and common law right
of set-off in and to Pledgor's deposits, accounts and credits held by Secured
Party and Secured Party may apply or set-off such deposits or other sums
against the Obligations upon the occurrence of an Event
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M (7/04)
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Default as defined in this Assignment. (c) This Assignment contains the entire
agreement of the parties and no oral agreement whatsoever, whether made
contemporaneously herewith or hereafter shall amend, modify or otherwise affect
the terms of this Assignment. (d) All rights and liabilities hereunder shall be
governed and limited by and construed in accordance with the laws of the state
in which Secured Party's principal place of business is located; unless
otherwise defined, words used herein have the meanings given them in Article
Nine of the Uniform Commercial Code as adopted in the state where Secured
Party's principal place of business is located. (e) Any provision herein which
may prove limited or unenforceable under any law or judicial ruling shall not
affect the validity or enforceability of the remainder of this Assignment. (f)
Pledgor hereby authorizes Secured Party to file a copy of this Assignment as a
Financing Statement with appropriate county and state government authorities and
to take any other action necessary to perfect Secured Party's security interest
in the Collateral as set forth herein. Pledgor hereby further authorizes Secured
Party to file UCC Financing Statements on behalf of Pledgor and Secured Party
with respect to the Collateral.
SECURED PARTY: PLEDGOR:
Fifth Third Bank, an Ohio banking Lanvision, Inc., an Ohio corporation
corporation
By: By:
- -------------------------- ------------------------------------
(Signature) (Authorized Signer)
Paul W. Bridge Jr., CFO
_________________________ ------------------------------------
(Print Name and Title) (Print Name and Title)
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M (7/04)
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ACKNOWLEDGEMENT
The assignment set forth above has been recorded on the books of the
undersigned bank on _______________________, 20___. The undersigned bank by its
signature below acknowledges and agrees by its signature below to hold the
Collateral pledged hereby as bailee for the benefit of, and as agent for, the
Secured Party for purposes of perfecting a first priority security interest in
the Collateral as set forth therein, except for normal administrative expenses
of the undersigned bank relating to the Collateral. The undersigned shall comply
with the orders and instructions of Secured Party with respect to the Collateral
and Secured Party shall be deemed to "control" such Collateral.
Fifth Third Bank
__________________________
__________________________
SAVE-CERT-ASGN (C) Fifth Third Bancorp 2001M (7/04)
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