ASSIGNMENT OF SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
THAT MED-FUNDING, INC., a Florida corporation ("Assignor"), the-owner
and holder of that certain Security Agreement executed by METRO DADE COMMUNITY
MENTAL HEALTH CENTER, INC., a Florida corporation ("Debtor,'), bearing the date
the 21st day of October, 1997, in favor of MED-FUNDING, INC. and encumbering
the property described therein, in consideration of the sum of Seventy-three
Thousand Five Hundred Dollars ($73,500.00) to it in hand paid by MEDLEY CREDIT
ACCEPTANCE CORP., a Delaware corporation ("Assignee"), the receipt whereof is
hereby acknowledged, has sold, assigned, transferred and set over and by these
presents does sell, assign, transfer and set over unto the Assignee the above
described Security Agreement together with the Note or obligation described
therein.
TO HAVE AND TO HOLD the same unto the Assignee, its successors and
assigns forever.
The Assignor does hereby covenant and agree with the Assignee that it
is the owner of the Security Agreement described above free and clear of any of
any nature and agrees to defend same against all persons whomsoever.
IN WITNESS WHEREOF, the Assignor has hereunto set its hand and seal
this 27th day of January 1998.
Signed, sealed and delivered MED-FUNDING, INC., a Florida corporation in the
presence of:
_________________________ By:__________________________________
Witness Xxxxxx Xxxxxxxx, President
_________________________
Witness
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF DADE
The foregoing instrument was acknowledged before me this 27th day of
January, 1998, by Xxxxxx Xxxxxxxx as President of MED-FUNDING, INC. a Florida
corporation, on behalf of the corporation, who is personally known to me or has
produced ________________________ as identification.
------------------------------
Notary Public, State of Florida
M Commission Expires:
Commission Number:
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement"), dated as of
October 21, 1997, is from METRO DADE COMMUNITY MENTAL HEALTH CENTER, INC., a
Florida corporation (the "Debtor"), whose mailing address is 0000 Xxxx 00xx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, to MED-FUNDING, INC., a Florida
corporation (the "Secured Party"), whose address is 00000 XX 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000.
In consideration of loans or advances made or to be made by the
Secured Party to the Debtor, and for other value received by the Debtor, and in
further consideration of other financial accommodations extended by the Secured
Party to the Debtor or to other persons and guaranteed by the Debtor, the
Debtor hereby grants a continuing security interest in, and assigns to the
Secured Party, the Collateral to secure payment and performance of all of the
Obligations of the Borrower and the Debtor to the Secured Party.
Section 1. Definitions: Definitions in the Code apply to words and
phrases in this Security Agreement and, if Code definitions conflict,
definitions in Article 9 (chapter 679, Florida Statutes of the Code shall
apply. In addition to terms defined in the Code or elsewhere in this Security
Agreement, the following terms have the meanings indicated below, which
meanings shall be equally applicable to both the singular and the plural forms
of such terms:
"Code" means the Uniform Commercial Code as in effect from time to
time in the State o(pound) Florida (Chapters 671 through 680, inclusive,
Florida Statutes).
"Collateral" means and includes any and all of the following owned by
the Debtor or in which the Debtor has an interest, whether now owned or
existing or hereafter created or acquired and wherever located:
(a) Accounts;
(b) Chattel Paper;
(c) Documents;
(d) General Intangibles
(e) Instruments and Securities;
(f) All cash or non-cash proceeds of any of the
foregoing, including insurance proceeds and all
products thereof;
(g) all ledger sheets, files, records, documents and
instruments (including, but not limited to, computer
programs, tapes and related electronic data
processing software) evidencing an interest in or
relating to the above; and
(h) any and all property of the Debtor now or hereafter
delivered to or left in or coming into the
possession, control or custody of the Secured Party,
whether expressly as collateral security or for any
other purpose (including cash, stock and other
securities, and all rights to subscribe for
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securities incident to, declared, or granted in
connection with such property), and property
described in collateral receipts or other documents
signed or furnished by the Debtor, and any and all
replacements of any of the foregoing, whether or not
in the possession of the Secured Party, and all
deposit accounts of the Debtor (or in which the
Debtor may have an interest as a joint tenant)
maintained with the Secured Party or with any
affiliate of the Secured Party.
(i) Any and all stock in the company name of Debtor,
represented by Stock Certificates which shall be
held in the possession of the Secured Party.
"Credit Agreement" shall mean that certain Credit Agreement, dated as
of October 21, 1997, between the Debtor and Secured Party, together with any
and all renewals, modifications, amendments and replacements thereof.
"Obligations" shall include:
(a) the promissory note or notes of the Debtor in the
aggregate principal amount of SEVENTY FIVE THOUSAND AND No/100 DOLLARS
($75,000.00) issued from time to time under the Credit Agreement, and any and
all renewals, modifications, amendments and replacements thereof, together with
any and all other indebtedness, obligations and liabilities of the debtor to
the Secured Party now or hereafter existing, incurred or created under the
Credit Agreement;
(b) all other liabilities (primary, secondary, direct,
contingent, sole, joint or several), due or which may be hereafter contracted
or acquired, or the Debtor to the Secured Party, whether such liabilities arise
in the ordinary course of business or not (including, without limitation,
liabilities for overdrafts and as guarantor, indorser and surety);
(c) all costs incurred by the Secured Party to obtain,
preserve and enforce this Security Agreement and the security interest created
hereunder, collect the obligations and to maintain and preserve the Collateral,
including, without limitation, taxes, assessments, insurance premiums, repairs,
reasonable attorneys' fees and legal expenses, rend storage costs and expenses
of sale; and
(d) interest on the above amounts, as agreed between the
Debtor and the Secured Party, or if no such agreement exists as to any such
amounts, at the Default Rate (as defined in the Credit Agreement).
"Receivables" shall mean all Accounts, Chattel Paper, Instruments,
Documents, General Intangibles (including, without limitation, tax refunds and
insurance proceeds) and any and all other obligations and indebtedness owed to
the Debtor from whatever source arising and whether now existing or hereafter
arising.
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"Receivables" shall also include any and all guarantees of Receivables
and security therefor and any and all proceeds thereof.
Section 2. List of Collateral. Contemporaneous with the execution
hereof the Debtor has furnished to the Secured Party a listing of all of the
Collateral presently owned by it; provided, however, the Secured Party shall
have a security interest in any and all Collateral whether or not such
Collateral is described generally or specifically on such list. The Debtor
warrants and agrees that it is the owner of the Collateral free and clear of
all liens and security interests except the security interest granted by this
Security Agreement or as set forth on Exhibit B hereto (herein called
"Permitted Encumbrances")
Section 3. No Other Security Interests. So long as any Obligation to
the Secured Party is outstanding, the Debtor will not without the prior written
consent of the Secured Party grant to any third party a security interest in
any of the Collateral or permit any lien or encumbrance to attach to any part
of the Collateral (except for taxes not yet due and payable) or suffer or
permit any levy to be made on any part of the Collateral, or permit any
financing statement except that of Secured Party to be on file with respect
thereto except with respect to Permitted Encumbrances. The Debtor will not
sell, transfer, lease or otherwise dispose of any of the Collateral or any
interest therein, or offer to do so or permit anything to be done to impair the
value of the Collateral or the security interest.
Section 4. Representations, Warranties and Covenants Regarding the
Collateral. The Debtor represents, warrants and covenants that:
4.1. The Collateral (other than Collateral which is delivered
to the Secured Party in order to Perfect the security interest contemplated
herein) shall be kept at the address specified above or specified on Schedule I
attached hereto. If any of the Collateral is located on property which is not
owned by the Debtor, the debtor will, on demand of the Secured Party,
reasonably make a good faith effort to obtain landlord~s waivers of liens in
forms satisfactory to the Secured Party as to each such location. The Debtor
will not permit any of the Collateral to be moved without the prior written
consent of the Secured Party.
4 2. It any of the Equipment is attached to real property,
the legal description for said real property is attached hereto as Exhibit A
and the Debtor will, on demand of the Secured Party, reasonably make a good
faith effort to furnish the Secured Party with a disclaimer or disclaimers,
signed by all persons having an interest in said real estate at the time of
such attachment, of any interest in the Equipment. The Debtor is the record
owner of the real property where the Equipment is kept or, if the Debtor is not
the record owner, the name or names of the record owner or owners is shown on
Exhibit A hereto.
4.3. To the extent that the Collateral is of a nature which,
in the ordinary course of business of a person or entity similarly situated as
the Debtor, is insured or insurable, the Debtor will at all times keep such
Collateral insured against loss, damage, theft, and such other
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risks as the Secured Party may require in such amounts (in any event, not less
than the full insurable value thereof), with such insurance companies, under
such policies, in such form and for such periods as shall be satisfactory to
the Secured Party, and each such policy shall provide that loss thereunder and
proceeds payable thereunder shall be payable to the Secured Party under
standard mortgagee endorsement, if available, or, if not available, as an
additional loss payee (and the Secured Party may apply any proceeds of such
insurance which may be received by the Secured Party toward payment of the
Obligations whether due or not due, in such order of application as the Secured
Party may determine). Each such policy shall provide for ten (10) days written
minimum cancellation notice to the Secured Party. Each such policy shall, if
the Secured Party so requests, be deposited with the Secured Party, and the
Secured Party may act as attorney for the Debtor in obtaining, adjusting,
settling, and canceling such insurance and indorsing any drafts. Such policies
shall provide that no act or default of the Debtor shall affect the right of
the Secured Party to recover.
4.4. The Debtor will at all times keep the Collateral in good
order and repair and will not waste or destroy the Collateral or any part
thereof.
4.5. The Debtor warrants that no financing statement covering
any Collateral or any proceeds thereof is on file in any public office, other
than financing statements naming the Secured Party and financing statements
filed with respect to Permitted Encumbrances. The Debtor will promptly, if
requested by the Secured Party, mark its records evidencing its accounts and
chattel paper in a manner satisfactory to the Secured Party so as to show the
same having been assigned to the Secured Party. The Debtor authorizes the
Secured Party to file financing statements with respect to the Collateral
signed only by the Secured Party. The Debtor will join with The Secured Party
in executing financial statements. notices, affidavits or similar instruments
in forms satisfactory to the Secured Party and such other documents as The
Secured Party may from time to time request, and will pay the cost of filing
the same in any public office deemed advisable by the Secured Party. The Debtor
will do such other acts and things, all as the Secured Party may request to
maintain a valid, first perfected security interest in the Collateral (free of
all other liens and claims whatsoever other than Permitted Encumbrances) to
secure the payment of the obligations secured hereby. The Secured Party is
hereby appointed the Debtor's attorney-in-fact to do all acts and things which
the Secured Party may deem necessary to perfect and to continue the perfection
of the security interest created hereby and to protect the Collateral. Without
limiting the foregoing, the Debtor hereby authorizes the Secured Party
following the occurrence of an Event of Default, at its option and without any
obligation to do so, to transfer or register in the name of the Secured Party
or its nominee or nominees all or any part of the securities that constitute a
portion of the Collateral, and to do so with or without notice to the Debtor.
4.6. The Debtor will not use the Collateral or permit the
same to be used in violation of any statute or ordinance. The Secured Party may
examine and inspect the Collateral at any time, wherever located. The Debtor
will pay promptly when due all taxes and
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assessments upon the Collateral or for its use or operation or upon this
Security Agreement or other writing evidencing the Obligations, or any of them.
4.7. The Debtor keeps the bulk of its Inventory a address
specified at the beginning of this Security Agreement and/or at the address or
addresses specified on Schedule I hereto. The chief executive office where
Xxxxxx keeps its records concerning its Receivables and General Intangibles is
at the address specified at the beginning of this Security Agreement unless a
different address is specified on Schedule I hereto. The Debtor shall give the
Secured Party written notice of each additional location at which Inventory
will be kept and of any change in the chief executive office of the Debtor at
which records of the Debtor pertaining to Receivables and General Intangibles
are kept at least thirty (30) days prior to the location of Inventory at such
address or the change of the chief executive office.
Section 5. Special Covenants Regarding. Receivables. Until the Secured
Party requests that account debtors on Receivables of the Debtor be notified of
the Secured Party's security interest, the Debtor shall continue to collect
them, subject to the direction and control of the Secured Party at all times.
upon the event of an uncured default, any proceeds of Receivables collected by
the Debtor shall not be commingled with other funds of the Debtor and shall'
upon the request of the Secured Party, be immediately delivered to the Secured
Party in the form received except for necessary endorsements to permit
collection. The Debtor shall, at the request of the Secured Party, (a) furnish
to the Secured Party a copy of the invoice applicable to each Account being
assigned to the Secured Party or arising out of a contract, bearing a statement
that such Account has been assigned to the Secured Party and such additional
statements as the Secured Party may require, and (b) notify the account debtors
of The security interest of the Secured Party in any Receivable and that
payment thereof is to be made directly to the Secured Party, and the Secured
Party may itself at any time, without notice to or demand upon the Debtor, so
notify account debtors. The making of any such a request or the giving of any
such notification shall not affect the duties of the Debtor described above
with respect to proceeds of collection of Receivables received by the Debtor.
Unless the Secured Party notifies the Debtor that it dispenses with
any one or more of the following requirements, the Debtor shall (a) mark its
records evidencing its Receivables in a manner satisfactory to the Secured
Party so as to show the same having been assigned to the Secured Party, (b)
make no change in any assigned Accounts or in any Account arising out of a
contract assigned to the Secured Party and make no material change in the terms
of any such contract, (c) furnish to the Secured Party all information received
by the Debtor affecting the financial standing of any "Purchaser" whose Account
has been assigned to the Secured Party, {d) pay the Secured Party the amount
advanced against any Account assigned to the Secured Party where the goods are
returned by the Purchaser, or where the contract is cancelled or terminated,
and (e) immediately notify the Secured Party if any of the Debtor's contracts
arise out of contracts with the United States or any department, agency or
instrumentality thereof, and execute any instruments and take any steps
required by the Secured Party in order that all monies due and to become due
under any such contract shall be assigned to the Secured Party
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and notice thereof given to the Government under the Federal Assignment of
Claims Act The Debtor will at any time upon the Secured Party's request deliver
to the Secured Party the original documents in the Debtor's possession for any
chattel paper, documents or instruments, held or owned by the Debtor. For the
Purposes hereof, "Purchaser" includes the buyer of goods from the Debtor, the
customer for which services have been rendered or materials furnished by the
Debtor, or any party with whom the Debtor has contracted.
Section 6. Defaults and Remedies. If any one of the following ..Events
of Default.. shall occur and shall not have been remedied:
(a) The occurrence of any "Event of Default" under the Credit
Agreement; or
(b) Any default by the Debtor with respect to the payment of
any of the Obligations; or
(c) Any representation or warranty made by the debtor herein
or in any certificate or report furnished by the Debtor hereunder shall prove
to have been incorrect in any material respect; or
(d) The Debtor shall default in the performance of any
agreement, covenant or obligation contained herein, then the Secured Party, may
in addition to any other rights and remedies which it may have, immediately and
without demand exercise any and all of the rights and remedies granted to a
secured party upon default under the Code; and upon request or demand of the
Secured Party, the Debtor shall at its expense assemble all or any part of the
Collateral and make it available to the Secured Party at a convenient place
designated by the Secured Party. The Secured Party and its agents are
authorized to enter into or onto any premises where the Collateral may be
located for the purpose of taking possession of such Collateral. Any notice of
sale, disposition or other intended action by the secured Party, sent to the
Debtor at the address specified at the beginning of this Security Agreement or
at such other address of the Debtor as may from time to time be shown on the
Secured Party's records, at least ten (10 days prior to such action, shall
constitute reasonable notice to the Debtor. Any proceeds of any disposition of
any of the Collateral may be applied by the Secured Party toward payment of
such o f the Obligations and in such order of application as the Secured Party
may from time to time elect.
Section 7. Miscellaneous
.
7.1. No waiver by the Secured Party of any default shall
operate as a waiver of any other default or of the same default on a future
occasion. No delay or omission on the part of the Secured Party in exercising
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Secured Party of any right or remedy shall preclude any other
or further exercise thereof or the exercise of any other right or remedy. Time
is of
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the essence of this Security Agreement. The provisions of this Security
Agreement are cumulative and in addition to the provisions of any liability of
the Debtor under any note, any guaranty or any other writing, and the Secured
Party shall have all the benefits, rights and remedies of a secured party under
this Security Agreement and any other document.
7.2. All rights of the Secured Party hereunder shall inure to
the benefit of its successors and assigns, and all Obligations of the Debtor
shall bind the successors and assigns of the Debtor.
7.3. This Security Agreement has been delivered in the State
of Florida and shall be construed in accordance with the laws of Florida.
7.4. The Debtor shall pay on demand all expenses and
expenditures of the Secured Party, including reasonable attorneys' fees and
legal expenses, incurred or paid by the Secured Party in protecting, enforcing
or exercising its security interest, rights or remedies created by, connected
with or provided in this Security Agreement or performance pursuant to this
Security Agreement.
7.5. At its option, the Secured Party may discharge taxes,
liens or security interests or other encumbrances at any time levied or placed
on the Collateral, may pay for insurance on the Collateral, and may pay for the
maintenance and preservation of the Collateral. The Debtor agrees to reimburse
the Secured Party on demand for any payment made, or any expense incurred, by
the Secured Party, pursuant to the foregoing authorization. Except as otherwise
expressly provided in this Security Agreement, until default, the Debtor may
have possession of the Collateral and use it in any lawful manner not
inconsistent with this Security Agreement and not inconsistent with any policy
of insurance thereon.
7.6. The Secured Party shall have no duty of care with
respect to the Collateral except that is shall exercise reasonable care with
respect to the Collateral in its custody The Secured Party shall be deemed to
have exercised reasonable care if such property is accorded treatment
substantially equal to that which the Secured Party accords its own property,
or if the Secured Party takes such action with respect to the Collateral shall
request in writing, but no failure to comply with any such request nor any
omission to do any such act requested by the Debtor shall be deemed a failure
to exercise reasonable care, nor shall the Secured Party's failure to take
steps to preserve rights against any parties or property be deemed a failure to
have exercised reasonable care with respect to Collateral in the Secured
Party's custody.
7.7. If any of the provisions of this Security Agreement
shall contravene or be held invalid under the laws of any jurisdiction, the
Security Agreement shall be construed as if not containing such provision and
the remainder of this Security Agreement shall be construed and enforced
accordingly.
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7.8. The Secured Party's rights under the Credit Agreement
and the Loan Documents (as defined in the Credit Agreement) are cumulative.
Without limiting the generality of the foregoing, the Secured Party may enforce
its rights hereunder in all or part of the Collateral or in any other security
in the order selected by Secured Party.
7.9 In the event the Borrower (i) files with any bankruptcy
court of competent jurisdiction or is the subject of any petition under Title
Eleven of the U.S. Code, as amended, (ii) is the subject of any order for
relief issued under such Title Eleven of the U.S. Code, as amended, (ii) files
or is the subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under
and present or future federal or state act or law relating to debtors, (iv)
have sought or acquiesces in the appointment of any trustee, receiver,
conservator or liquidator, (v) is the subject of any order, judgment, or decree
entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or
relief for debtors, the Secured Party will thereupon be entitled to relief from
any automatic stay imposed by Section 362 of Title Eleven of the U.S. Code, as
amended or otherwise, on or against the exercise of the rights and remedies
otherwise available to the Secured Party as provided in the Credit Agreement
and the other Loan n at law, in equity or otherwise.
7.10. THE DEBTOR HEREBY, AND THE SECURED PARTY BY ITS
ACCEPTANCE OF THIS SECURITY AGREEMENT, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY TN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER YER8AL OR
WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE SECURED PARTY ACCEPTING THIS SECURITY AGREEMENT.
IN WITNESS WHEREOF, this Security Agreement has been executed as of
the date first written above.
DEBTOR:
METRO DADE COMMUNITY MENTAL
HEALTH CENTER, INC., a Florida corporation
_______________________ BY:___________________________________
Xxxxxx Xxxx, President
________________________ Corporate Seal
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