EXHIBIT 10.31
SECOND AMENDED AND RESTATED COLLECTION BANK AGREEMENT
This SECOND AMENDED AND RESTATED COLLECTION BANK AGREEMENT
(this "AGREEMENT") is dated as of ___ __, 2003, among _________________________
(the "COLLECTION BANK"), AMERICAN HOMEPATIENT, INC. (the "PLEDGOR"), and BANK OF
MONTREAL, as agent for and representative of (the "AGENT") the financial
institutions (the "LENDERS") that hold a promissory note payable to such Lenders
as set forth on Exhibit A attached hereto (the "Promissory Note") and amends and
restates the Amended and Restated Collection Bank Agreement dated as of ___,
____ among the Collection Bank, the Pledgor and Agent.
W I T N E S S E T H :
WHEREAS, Pledgor presently maintains, or has established
concurrently herewith, at the Collection Bank the accounts described on Schedule
I hereto (each individually, a "COLLECTION ACCOUNT" and collectively, the
"COLLECTION ACCOUNTS");
WHEREAS, Pledgor and the Agent entered into that certain
Second Amended and Restated Assignment and [Borrower][Subsidiary] Security
Agreement dated as of July 1, 2003 amending and restating the
[Borrower][Subsidiary] Security Agreement dated as of July 31, 2001 (the
"COLLATERAL AGREEMENT"), pursuant to which the Pledgor granted to the Agent a
security interest in all of the Pledgor's right, title and interest in and to
the Pledgor's accounts receivable and the proceeds thereof (including, without
limitation, the Collection Account(s)) and all amounts from time to time on
deposit therein;
WHEREAS, it is a requirement of the Collateral Agreement that
the parties hereto execute and deliver this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Pledgor agrees that all accounts receivable
received by the Pledgor shall be deposited by the Pledgor in the Collection
Account(s) or into similar accounts subject to a Collection Bank Agreement and
that no funds from any other source other than proceeds of Accounts Receivable
shall be deposited in any such account. .
2. The Pledgor hereby irrevocably authorizes and directs
the Collection Bank to transfer the available balance (as determined by the
Collection Bank) in the Pledgor's Collection Account(s) on each Business Day to
the concentration account (the "CONCENTRATION ACCOUNT") at such bank (initially,
Account No. _______________ at PNC Bank, National Association, at _______), or,
after the occurrence and during the continuance of an Event of Default under the
Collateral Agreement (an "Event of Default"), as the Agent may, in its sole
discretion, direct in writing. After Agent gives written notice to the
Collection Bank (with a copy to the
Pledgor) that an Event of Default has occurred and is continuing, the Pledgor
hereby irrevocably authorizes and directs the Collection Bank, and the
Collection Bank hereby agrees, to comply with instructions from the Agent,
without further consent from the Pledgor, directing the disposition of the funds
in the Collection Account(s).
3. The parties agree that all funds deposited in the
Collection Account(s) from time to time shall, as between the Pledgor and the
Agent, be subject to the security interests in favor of the Agent, shall be held
by the Collection Bank subject to the security interest of the Agent and, upon
the occurrence of an Event of Default, may be withdrawn at any time or from time
to time at the direction of the Agent without further consent from the Pledgor,
by check, draft, wire transfer or otherwise as the Agent shall determine and
applied by the Agent in accordance with the Collateral Agreement. The Pledgor
hereby agrees that it shall cause forwarding daily of all of the prior day's
available funds deposited in the Collection Account(s) to the Concentration
Account until such time as the Agent gives written notice to the Collection Bank
(with a copy to the Pledgor) that an Event of Default has occurred and is
continuing. After Agent gives such written notice to the Collection Bank, the
Collection Bank hereby agrees to comply with instructions from the Agent,
without further consent from the Pledgor, directing the disposition of the funds
in the Collection Account(s). The Collection Bank hereby agrees that it will
provide the Agent with written notice on or before the date that it terminates
any of the Collection Account(s).
4. The Collection Bank's charges for the services to be
performed pursuant to this Agreement shall be at the Collection Bank's customary
rate unless and until different rates are separately agreed to between the
Collection Bank and the Pledgor. To the extent that the Collection Bank's
charges are not paid when due and to the extent deposits made to the Collection
Account(s) are returned or otherwise not collected, the Agent and the Pledgor
agree that the Collection Bank shall have a lien and right of offset against the
funds in the applicable Collection Account.
5. The Collection Bank agrees that it shall furnish to
the Agent a copy of the original of all bank statements with respect to, and,
upon Notice by the Agent, all daily debit advices of, the Collection Account(s),
and promptly upon the issuance or receipt thereof, copies of all notices and
other communications with respect to the Collection Account(s) issued or
received by the Collection Bank.
6. This Agreement, and the covenants, agreements,
authorizations and directions contained herein, are irrevocable and cannot be
changed or modified without the prior written consent of the Agent.
7. All checks, money orders and other evidences of
payment received by the Collection Bank and all proceeds thereof are at all
times to be considered subject to the security interests granted by the
Collateral Agreements and this Agreement and are further subject to the
requirement that, in accordance with the terms hereof, such amounts shall be
duly transferred to the Concentration Account and the Collection Bank shall not
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have any rights or claims to, or interest in, such property or any funds in the
Collection Account(s), including any right to offset except as provided in
Section 4 hereof. The Collection Bank agrees that it will not obtain, nor seek
to obtain, any security interest or lien against the funds contained in the
Collection Account(s) except as provided in Section 4 hereof and the Pledgor
agrees that it will not grant any security interest in or lien on the funds
contained in the Collection Account(s), except as provided in Section 4 hereof.
Except as otherwise required by law, any notice of legal process of any kind
relating to the Pledgor that the Collection Bank may receive shall have no
effect whatsoever on such property or the Collection Account(s) or on the
Collection Bank's responsibility under this Agreement unless and until the
Collection Bank receives written instructions from the Agent to the contrary;
upon receipt of legal process relating to the Pledgor, the Collection Bank
promptly shall give notice thereof to the Agent.
8. All notices, requests or other communications given
to the Pledgor, the Agent or the Collection Bank shall be given in writing
(including facsimile transmission or similar writing) at the address or telecopy
number specified below:
Agent: Bank of Montreal
Attn: Xxxxxxx Turf
000 X. Xx Xxxxx, 00X
Xxxxxxx, XX 00000
Collection Bank: ______________________________
______________________________
______________________________
______________________________
Attention: ___________________
Telecopy: ___________________
Pledgor: American HomePatient, Inc.
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. X'Xxxx
Any party may change its address or telecopy number for notices hereunder by
notice to each other party hereunder. Each notice, request or other
communication shall be effective (a) if given by mail, 48 hours after such
communication is deposited in the mails with registered first class postage
prepaid, addressed as aforesaid, or (b) if given by any other means, when
delivered at the address specified in this Section 8.
9. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality or
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enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
10. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts taken together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are attached physically to
the same document. This Agreement shall become effective as of the date first
set forth above upon the execution of a counterpart hereof by the Pledgor, the
Collection Bank and the Agent and receipt by the Agent of written or telephonic
notification of such execution and authorization of delivery thereof. Delivery
of an executed counterpart to this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Agreement.
11. Deleted
12. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE NASHVILLE, DAVIDSON COUNTY,
TENNESSEE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE PLEDGOR ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT. The Pledgor hereby agrees that
service of all process in any such proceeding in any such court may be made by
registered or certified mail, return receipt requested, to the Pledgor at its
address provided in Section 8, such service being hereby acknowledged by the
Pledgor to be sufficient for personal jurisdiction in any action against the
Pledgor in any such court and to be otherwise effective and binding service in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the Agent or the
Collection Bank to bring proceedings against the Pledgor in the courts of any
other jurisdiction.
13. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES
TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each of the parties to this Agreement acknowledges that
this waiver is a material inducement to enter into a business relationship, that
each other party already relied on this waiver in entering into this Agreement
and that each will continue
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to rely on this waiver in their related future dealings. Each of the parties to
this Agreement further warrants and represents that it reviewed this waiver with
its legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
14. EXCEPT TO THE EXTENT THAT THE LAWS OF THE STATE IN
WHICH THE COLLECTION BANK IS LOCATED GOVERN THE COLLECTION ACCOUNT(S),THIS
AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TENNESSEE, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. The Borrower, the Agent, and the Collection Bank
agree that for purposes of Article 9, of _____'s version of the Uniform
Commercial Code, [CITATION], the jurisdiction of the Collection Bank is ____.
15. In addition to the payment of expenses pursuant to
Section 4, the Pledgor and the Agent each agrees to indemnify and hold the
officers, directors, employees and agents of the Collection Bank (collectively
the "INDEMNITEES") harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
the reasonable fees and disbursements of counsel for all of such Indemnitees
collectively in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitee shall be designated a party thereto
and for each of such Indemnitees whose counsel determines in good faith that
joint representation of such Indemnitee along with the other Indemnitees would
or reasonably could be expected to result in a conflict of interest under
applicable laws or ethical principles) that may be imposed on, incurred,
directly or indirectly, by, or asserted against such Indemnitee, as a
consequence of the Collection Bank executing this Agreement and performing its
obligations hereunder (the "INDEMNIFIED LIABILITIES"); provided that neither the
Agent nor the Pledgor shall have any obligation to an Indemnitee hereunder with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of any such Indemnitee. Each Indemnitee, as soon as reasonably
practicable, shall notify the Pledgor and the Agent of the commencement of any
legal proceeding by a third Person under which any indemnified liability might
arise. The Pledgor and the Agent shall have the option to participate in the
defense of all claims under which any indemnified liability might arise, but
neither the Pledgor nor the Agent shall have the option to compel any Indemnitee
to employ counsel not of the Indemnitee's choosing.
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IN WITNESS WHEREOF, each of the parties hereto has caused this agreement to be
executed and delivered by its duly authorized officer on the date first set
forth above.
PLEDGOR: AMERICAN HOMEPATIENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President & Secretary
AGENT: BANK OF MONTREAL
as the Agent
By:
-----------------------------------
Name:
Title:
COLLECTION BANK: ---------------------------------------
By:
-----------------------------------
Name:
Title:
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