RECEIVABLES SECURITY AGREEMENT
between
COSMETIC SCIENCES, INC.
and
ARBOR HOME HEALTHCARE HOLDING LLC
Dated as of September 6, 1996
RECEIVABLES SECURITY AGREEMENT
RECEIVABLES SECURITY AGREEMENT, dated as of September 6, 1996 (as
modified, supplemented or amended from time to time, this "Agreement"), between
COSMETIC SCIENCES, INC., a New York corporation (together with its successors
and permitted assigns, the "Grantor") and ARBOR HOME HEALTHCARE HOLDING LLC (the
"Secured Party"). Capitalized terms used without definition herein shall have
the meaning set forth in Article V.
W I T N E S S E T H:
WHEREAS, the Secured Party is concurrently herewith loaning $250,000 to
the Grantor, such loan (the "Loan") to be evidenced by a Note of even date
herewith (the "Note"); and
WHEREAS, to induce the Secured Party to make the Loan, the Grantor has
agreed to grant the Secured Party a security interest in certain assets of the
Grantor
NOW, THEREFORE, in consideration of the benefits accruing to the
Grantor, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Grantor hereby makes the
following representations and warranties to the Secured Party and hereby
covenants and agrees with the Secured Party as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As collateral security for the
prompt and complete payment and performance when due (whether by acceleration or
otherwise) of all of its Obligations, the Grantor does hereby pledge, assign and
transfer unto the Secured Party, and does hereby grant to the Secured Party a
continuing security interest in, and a right of setoff against, all of the
right, title and interest of the Grantor in, to and under all of the following,
whether now owned by the Grantor or hereafter from time to time acquired and
whether now existing or hereafter coming into existence, and wherever located:
(i) each and every Receivable, (ii) all Contracts, together with Contract Rights
arising thereunder, and (iii) all Proceeds and products of any and all of the
foregoing (all of the above collectively, the "Collateral").
(b) The security interest of the Secured Party under this Agreement
extends to all Collateral of the kind which is the subject of this Agreement
which the Grantor may acquire at any time during the continuation of this
Agreement.
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1.2. Power of Attorney. The Grantor hereby constitutes and appoints the
Secured Party its true and lawful attorney, irrevocably, with full power after
the date hereof (in the name of the Grantor or otherwise) to act, require,
demand, receive, compound and give acquittance for any and all monies and claims
for monies due or to become due to the Grantor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Secured Party may deem to be necessary or advisable to protect the
interests of the Secured Party, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Grantor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this Agreement,
as follows:
2.1. Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by the Grantor to the Secured Party hereby in respect of the
Collateral have been accomplished except to the extent arrangements have been
made to make such filings, registrations and recordings which arrangements are
satisfactory to the Secured Party in its sole discretion and, upon the
completion of such filings, registrations and recordings the security interest
granted to the Secured Party pursuant to this Agreement in and to the Collateral
of the Grantor will constitute a perfected security interest therein superior
and prior to the rights of all other Persons therein and subject to no other
Liens and is entitled to all the rights, priorities and benefits afforded by the
Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests.
2.2. No Liens. The Grantor is, and as to Collateral acquired by it from
time to time after the date hereof the Grantor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Liens created hereby) and the
Grantor shall defend its Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein adverse to the
Secured Party.
2.3. Other Financing Statements. There is no financing
statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any
interest of any kind in the Collateral and so long any of the
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Obligations remain unpaid, the Grantor will not execute or authorize to be filed
in any public office any financing statement (or similar statement or instrument
of registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of and
covering the security interests granted hereby by the Grantor.
2.4. Chief Executive Office; Records. The chief executive office of the
Grantor is located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Documents evidencing all Receivables and Contract Rights of the Grantor and the
books of account and records of the Grantor relating thereto are, and will
continue to be, kept at the chief executive office. All Receivables and Contract
Rights of the Grantor are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, the office location described above.
2.5. Trade Names; Change of Name. The Grantor does not have or operate
in any jurisdiction under, or in the preceding 12 months has not had nor
operated in any jurisdiction under, any trade names, fictitious names or other
names except its legal name and "Extended Family Care Corporation". The Grantor
shall not change its legal name or assume or operate in any jurisdiction under
any trade, fictitious or other name other than Extended Family Care Corporation.
2.6. No Sale, Merger, Etc. Grantor shall not directly or indirectly
sell, lease, transfer, abandon or otherwise dispose of all or any substantial
portion of its property or assets (except in the ordinary course of business) or
consolidate or merge with or into any other entity or permit any other entity to
consolidate or with or into it and Grantor shall at all times preserve, renew
and keep in full force and effect its existence as a corporation and the rights
and franchises with respect thereto. Furthermore, it shall be a default
hereunder if there shall be any change in the current ownership of Grantor,
except a change in ownership to Secured Party.
ARTICLE III
SPECIAL PROVISION CONCERNING
RECEIVABLES; CONTRACT RIGHTS
3.1. Additional Representations and Warranties. As of the time when
each of its accounts receivable arises, the Grantor shall be deemed to have
represented and warranted that such receivable, and all records, papers and
documents relating thereto (if any) are genuine and in all respects what they
purport to be and that all papers and documents (if any) relating thereto (i)
will represent the genuine, legal, valid and binding obligation of the account
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debtor, evidencing indebtedness unpaid and owed by the respective account debtor
arising out of the performance of labor or services, (ii) will be the only
original writings held by the Grantor evidencing and embodying such obligation
of the account debtor named therein (other than copies created for general
accounting purposes) and (iii) will evidence true and valid obligations,
enforceable in accordance with their respective terms.
3.2. Maintenance of Records. The Grantor will keep and maintain at its
own cost and expense satisfactory and complete records of its Receivables and
Contracts, including the originals of all documentation (including each
Contract) with respect thereto, records of all payments received, all credits
granted thereon, all merchandise returned and all other dealings therewith, and
the Grantor will make the same available to the Secured Party for inspection, at
the Grantor's own cost and expense, at any and all reasonable times upon demand.
At any time and whether or not an Event of Default has occurred and is
continuing, upon the request of the Secured Party, the Grantor shall, at its own
cost and expense, deliver all tangible evidence of its Receivables and Contract
Rights (including, without limitation, copies of all documents evidencing the
Receivables and all Contracts, such copies, if requested by the Secured Party,
to be certified as true and complete by an appropriate officer of the Grantor)
and such books and records to the Secured Party or to its representatives
(copies of which evidence and books and records may be retained by the Grantor).
If the Secured Party so directs, the Grantor shall legend, in form and manner
reasonably satisfactory to the Secured Party, the Receivables and Contracts, as
well as books, records and documents of Grantor evidencing or pertaining to such
Receivables and Contracts with an appropriate reference to the fact that such
Receivables and Contracts have been assigned to the Secured Party and that the
Secured Party has a security interest therein.
3.3. Direction to Account Debtors; Contracting Parties, etc. If the
Secured Party so directs the Grantor and whether or not an Event of Default has
occurred and is continuing, the Grantor agrees (x) to cause all payments on
account of the Receivables and Contracts to be made directly to an account
established by and with the Secured Party, or at Secured Party's option, by and
with Grantor subject to withdrawal by Secured Party only, except for Grantor's
indorsement when required and (y) that the Secured Party may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the preceding
clause (x). Without notice to or assent by the Grantor, the Secured Party may
apply any or all amounts then in, or thereafter deposited in, the account
referred to in clause (x) in the manner provided in Section 4.4 of this
Agreement. The costs and expenses (including attorneys' fees)
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of collection, whether incurred by the Grantor or the Secured
Party, shall be borne by the Grantor.
3.4. Modification of Terms, etc. The Grantor shall not rescind or
cancel any indebtedness evidenced by any Receivable or under any Contract, or
modify any material term thereof or make any material adjustment with respect
thereto, or extend or renew the same, or compromise or settle any material
dispute, claim, suit or legal proceeding relating thereto, or sell any
Receivable or Contract, or interest therein, without the prior written consent
of the Secured Party, except as permitted by Section 3.5 hereof. The Grantor
will duly fulfill all obligations on its part to be fulfilled under or in
connection with the Receivables and Contracts and will do nothing to impair the
rights of the Secured Party in the Receivables or Contracts.
3.5. Collection. The Grantor shall endeavor to cause to be collected
from the account debtor named in each of its Receivables or obligor under any
Contract, as and when due (including, without limitation, amounts which are
delinquent, such amounts to be collected in accordance with generally accepted
lawful collection procedures) any and all amounts owing under or on account of
such Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts as are so collected to the outstanding balance of such Receivable or
under such Contract. The costs and expenses (including, without limitation,
attorneys' fees) of collection whether incurred by the Grantor or the Secured
Party shall be borne by the Grantor.
3.6. Instruments. If the Grantor owns or acquires any Instrument
constituting Collateral and representing indebtedness in an aggregate principal
amount of not less than $1,000, the Grantor will within 10 Business Days notify
the Secured Party thereof, and upon request by the Secured Party promptly
deliver such Instrument to the Secured Party appropriately endorsed to the order
of the Secured Party as further security hereunder.
3.7. Protection of Secured Party's Security. Except as expressly
permitted herein, the Grantor will do nothing to impair the rights of the
Secured Party in the Collateral. The Grantor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of the Grantor to pay its Obligations shall in no way be affected or
diminished by reason of the fact that such Collateral may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to the Grantor.
3.8. Further Actions. The Grantor will, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the
Secured Party from time to time such lists, descriptions and
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designations of its Collateral, bills of lading, documents of title, vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Secured Party deems reasonably appropriate or advisable to
perfect, preserve or protect its security interest in the Collateral.
3.9. Financing Statements. The Grantor agrees to execute and deliver to
the Secured Party such financing statements, in form acceptable to the Secured
Party, as the Secured Party may from time to time reasonably request or as are
necessary or desirable in the opinion of the Secured Party to establish and
maintain a valid, enforceable, security interest in the Collateral as provided
herein and the other rights and security contemplated hereby all in accordance
with the Uniform Commercial Code as enacted in any and all relevant
jurisdictions or any other relevant law. The Grantor will pay any applicable
filing fees and related expenses. The Grantor authorizes the Secured Party to
file any such financing statements without the signature of the Grantor to the
extent permitted by law.
ARTICLE IV
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
4.1. Remedies; Obtaining the Collateral Upon Default. The Grantor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, subject to any mandatory requirements of applicable law
then in effect, the Secured Party, in addition to any rights now or hereafter
existing under this Agreement or applicable law, shall have all rights as a
secured creditor under the Uniform Commercial Code in all relevant jurisdictions
and may:
(a) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from the Grantor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
the Grantor's premises where any of the Collateral is located and
remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of the Grantor; and
(b) instruct the obligor or obligors on any agreement,
instrument or other obligation constituting the Collateral to make any
payment required by the terms of such instrument or agreement directly
to the Secured Party; and
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(c) sell, assign or otherwise liquidate, or direct the Grantor
to sell, assign or otherwise liquidate, any or all of the Collateral or
any part thereof, and take possession of the proceeds of any such sale
or liquidation; and
(d) take possession of the Collateral or any part thereof, by
directing the Grantor in writing to deliver the same to the Secured
Party at any place or places designated by the Secured Party, in which
event the Grantor shall at its own expense:
(i) forthwith cause the same to be moved to the place or
places so designated by the Secured Party and there
delivered to the Secured Party,
(ii) store and keep any Collateral so delivered to the Secured
Party at such place or places pending further action by the
Secured Party as provided in Section 4.2 hereof, and
(iii) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain
them in good condition;
it being understood that the Grantor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly,
upon application to a court of equity having jurisdiction, the Secured
Party shall be entitled to a decree requiring specific performance by
the Grantor of said obligation.
4.2. Remedies; Disposition of the Collateral. Any Collateral
repossessed by the Secured Party under or pursuant to Section 4.1 hereof and any
other Collateral whether or not so repossessed by the Secured Party, may be
sold, assigned, leased or otherwise disposed of under one or more contracts or
as an entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Secured Party may, in compliance
with any mandatory requirements of applicable law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the Secured Party. Any
such disposition which shall be a private sale or other private proceedings
permitted by such requirements shall be made upon not less than 10 days' written
notice to the Grantor specifying the time at which such disposition is to be
made and the
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intended sale price or other consideration therefor, and shall be subject, for
the 10 days after the giving of such notice, to the right of the Grantor or any
nominee of the Grantor to acquire the Collateral involved at a price or for such
other consideration at least equal to the intended sale price or other
consideration so specified. Any such disposition which shall be a public sale
permitted by such requirements shall be made upon not less than 10 days' written
notice to the Grantor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Secured Party's option, be subject to reserve), after publication of
notice of such auction not less than 10 day's prior thereto in a newspaper in
general circulation in New York City. To the extent permitted by any such
requirement of law, the Secured Party may bid for and become the purchaser of
the Collateral or any item thereof, offered for sale in accordance with this
Section without accountability to the Grantor (except to the extent of surplus
money received as provided in Section 4.4 hereof). If, under mandatory
requirements of applicable law, the Secured Party shall be required to make
disposition of the Collateral within a period of time which does not permit the
giving of notice to the Grantor as hereinabove specified, the Secured Party need
give the Grantor only such notice of disposition as shall be reasonably
practicable in view of such mandatory requirements of applicable law.
4.3. Waiver of Claims. Except as otherwise provided in this Agreement,
THE GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND
JUDICIAL HEARING IN CONNECTION WITH THE SECURED PARTY'S TAKING POSSESSION OR THE
SECURED PARTY'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH GRANTOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and the
Grantor hereby further waives, to the extent permitted by law:
(a) all damages occasioned by such taking of
possession except any damages which are the direct result of
the Secured Party's gross negligence or wilful misconduct;
(b) all other requirements as to the time, place and
terms of sale or other requirements with respect to the
enforcement of the Secured Party's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and the
Grantor, for itself
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and all who may claim under it, insofar as it or they now or hereafter
lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the Grantor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Grantor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
such Grantor.
4.4. Application of Proceeds. Except as otherwise herein expressly
provided and except as provided below in this Section 4.4, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Secured Party under
Article III hereof or this Article IV, shall be applied by the Secured Party:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Secured Party and the fees and
expenses of its agents and counsel, and all expenses incurred and
advances made by the Secured Party in connection therewith;
Next, to the payment in full of the Obligations; and
Finally, to the payment to the Grantor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
As used in this Section 4.4, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Grantor or any issuer of or obligor on
any of the Collateral.
4.5. Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Secured Party shall be in
addition to every other right, power and remedy specifically given
under this Agreement, the Note or any document related thereto or
now or hereafter existing at law or in equity, or by statute and
each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time or
simultaneously and as often and in such order as may be deemed
expedient by the Secured Party. All such rights, powers and
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remedies shall be cumulative and the exercise or the beginning of exercise of
one shall not be deemed a waiver of the right to exercise of any other or
others. No delay or omission of the Secured Party in the exercise of any such
right, power or remedy and no renewal or extension of any of the Obligations
shall impair any such right, power or remedy or shall be construed to be a
waiver of any Event of Default or an acquiescence therein. No notice to or
demand on the Grantor in any case shall entitle the Grantor to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Secured Party to any other further action in any
circumstances without notice or demand. In the event that the Secured Party
shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then in such suit the Secured Party may recover reasonable
expenses, including attorneys' fees, and the amounts thereof shall be included
in such judgment.
ARTICLE V
DEFINITIONS
The following terms shall have the meanings herein specified unless the
context otherwise requires. Such definitions shall be equally applicable to the
singular and plural forms of the terms defined.
"Business Day" means any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law to close.
"Contracts" shall mean all contracts between the Grantor and one or
more additional parties relating to the Receivables.
"Contract Rights" shall mean all rights of the Grantor (including
without limitation all rights to payments and indemnities) under each Contract.
"Event of Default" shall mean the Grantor's failure to pay when due any
amounts owing to the Secured Party under the Notes or under any Obligations or
to perform any of its covenants or agreements hereunder or under any other
document creating any Obligations.
"Instrument" shall have the meaning provided under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement,
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lessor's interest in a financing lease or analogous instrument, in,
of, or on the Grantor's property.
"Obligations" shall mean: (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principle
of and interest on the Note; (ii) any and all loans, indebtedness, liabilities
and obligations of any kind owing by Grantor to the Secured Party, however
evidenced, whether now existing or hereafter arising, whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, original, renewed
or extended, and whether arising directly or acquired from others, and
including, without limitation, charges, commissions, interest, expenses, costs
and attorney's fees under any of the foregoing; (iii) any and all sums advanced
by the Secured Party in order to preserve the Collateral or preserve its
security interest in the Collateral; and (iv) in the event of any proceeding for
the collection or enforcement of any indebtedness, obligations, or liabilities
of the Grantor referred to in clauses (i), (ii) and (iii), the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing or realizing on the Collateral, or of any exercise by the
Secured Party of its rights hereunder, together with reasonable attorneys' fees
and court costs.
"Person" shall mean any individual, corporation, partnership, company,
voluntary association, joint venture, trust, limited liability company, trust,
governmental agency or any other entity.
"Proceeds" shall have the meaning provided under the Uniform Commercial
Code as in effect on the date hereof in the State of New York or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Secured Party or the Grantor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to the Grantor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by Grantor and all of the Grantor's rights to
payment for goods sold or leased or services performed by the Grantor, whether
now in existence or arising from time to time hereafter, including, without
limitation,
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rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness or security, together with (a) all
security pledged. assigned, hypothecated or granted to or held by the Grantor to
secure the foregoing, (b) all of the Grantor's right, title and interest in and
to any goods, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (f) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto, and (h) all
other writings related in any way to the foregoing.
ARTICLE VI
MISCELLANEOUS
6.1. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed to such party
at its address set forth opposite its signature below, or at such other address
as any of the parties hereto may hereafter notify the others in writing.
6.2. Waiver; Amendment. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in a writing signed by the parties hereto.
6.3. Obligations Absolute. The obligations of the Grantor hereunder
shall remain in full force and effect without regard to, and shall not be
impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Grantor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, the Note or any other document;
or (c) any amendment to or modification of the Note or any security for any of
the Obligations, whether or not the Grantor shall have notice or knowledge of
any of the foregoing. The rights and remedies of the Secured Party herein
provided are cumulative and not exclusive of any rights or remedies which the
Secured Party would otherwise have.
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6.4. Successors and Assigns. This Agreement shall be binding upon the
Grantor and its successors and assigns and shall inure to the benefit of the
Secured Party and its successors and assigns, provided that the Grantor may not
transfer or assign any or all of its rights or obligations hereunder without the
written consent of the Secured Party. All agreements, statements,
representations and warranties made by the Grantor herein or in any certificate
or other instrument delivered by the Grantor or on its behalf under this
Agreement shall be considered to have been relied upon by the Secured Party and
shall survive the execution and delivery of this Agreement regardless of any
investigation made by the Secured Party.
6.5. Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any
provision of this Agreement.
6.6. Severability. Any provision of this 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.
6.7. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.
6.8. Grantor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the Grantor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Secured Party shall not have any obligations or liabilities
with respect to any Collateral by reason of or arising out of this Agreement,
nor shall the Secured Party be required or obligated in any manner to perform or
fulfill any of the obligations of the Secured Party under or with respect to any
Collateral.
6.9 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral hereof are insufficient to cover the costs
and expenses of such realization and the payment in full of the Obligations, the
Grantor shall remain liable for any deficiency in respect of the Obligations.
6.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on
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separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
Grantor:
COSMETIC SCIENCES, INC.
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
Address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Secured Party:
ARBOR HOME HEALTHCARE HOLDING LLC
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
ss.:
COUNTY OF NASSAU )
On this 6th day of September, 1996, before me personally appeared
▇▇▇▇▇▇ ▇▇▇▇▇▇, to be personally known, who, being by me duly sworn,
says that he is Vice President of Cosmetic Sciences, Inc.; that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors, and he acknowledged that the execution of the foregoing instrument
was the free act and deed of said corporation.
/s/▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
My Commission Expires:
[Notary Seal]
STATE OF NEW YORK )
ss.:
COUNTY OF NASSAU )
On this 6th day of September, 1996, before me personally appeared ▇▇▇▇
▇▇▇▇▇▇▇, to be personally known, who, being by me duly sworn, says that he is
Member of Arbor Home HealthCare Holding LLC; that said instrument was
signed on behalf of said corporation by authority of its Board of Directors, and
he acknowledged that the execution of the foregoing instrument was the free act
and deed of said corporation.
/s/▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
My Commission Expires
[Notary Seal]
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TO: ARBOR HOME HEALTHCARE HOLDING LLC
TPC Home Care Services, Inc. ("TPC") hereby agrees that, as a 83% owned
subsidiary of Cosmetic Sciences, Inc. ("CSI") and as consideration for the funds
which will be made available to it by CSI from time to time, including funds
made available as a result of a $250,000 loan made by Arbor Home HealthCare
Holding LLC ("Arbor") to CSI, and in order to induce Arbor to make such loan to
CSI:
(i) TPC shall become a party to that certain Receivables
Security Agreement dated September __, 1996
("Receivables Security Agreement") between CSI, as
Grantor and Arbor, as Secured Party;
(ii) TPC shall be bound in the same manner as CSI with
respect to the grant as security of all Collateral
as defined therein, and that the terms Contracts,
Contract Rights, Proceeds, Receivables and
Collateral shall include such items in the same
manner and to the same extent as if TPC was the
Grantor as defined in the Receivables Security
Agreement;
(iii) TPC shall also be bound to any duties and
obligations of the Grantor with respect to the
Collateral provided by TPC and any "Event of
Default" as defined in the Receivables Security
Agreement, will grant Arbor the same rights with
respect to Collateral provided by TPC as it has
with respect to Collateral provided by CSI,
notwithstanding that TPC is not a party to a loan
agreement or promissory note with Arbor.
TPC HOME CARE SERVICES, INC.
By:/s/ ▇▇▇▇ ▇▇▇ Page
