EXHIBIT 10.30
AMENDED AND RESTATED CONCENTRATION BANK AGREEMENT
THIS AMENDED AND RESTATED CONCENTRATION BANK AGREEMENT, dated
as of ____ ___, 2003 (as amended, supplemented or otherwise modified from time
to time, this "AGREEMENT"), is by and between AMERICAN HOMEPATIENT, INC., a
Delaware corporation (the "BORROWER"), PNC BANK, NATIONAL ASSOCIATION, as
concentration bank (the "CONCENTRATION BANK"), and BANK OF MONTREAL, as Agent
(the "AGENT") for the Lenders (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrower and the Agent are parties to that
certain Second Amended and Restated Assignment and Borrower Security Agreement,
dated as of July 1, 2003 (as it may be amended, supplemented or otherwise
modified from time to time hereafter, the "BORROWER SECURITY AGREEMENT");
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower and/or certain of the Borrower's Subsidiaries and the Agent entered
into certain Collection Bank Agreements, (as amended, supplemented, or otherwise
modified from time to time hereafter, the "COLLECTION BANK AGREEMENTS") with
certain Collection Banks (as defined in such Collection Bank Agreements);
WHEREAS, the Borrower Security Agreement and the Collection
Bank Agreements contemplate the transfer of all proceeds of Accounts Receivable
contained in accounts maintained with the Collection Banks (each, a "COLLECTION
ACCOUNT"), including without limitation those established for deposit into a
special segregated account maintained with the Concentration Bank and listed in
Part A of Schedule I hereto (the "CONCENTRATION ACCOUNT");
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of the
Lenders, a continuing security interest in all of the Borrower's right, title,
and interest in and to all deposit accounts, including, the Concentration
Account, and all amounts from time to time deposited therein;
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of the
Lenders, a continuing security interest in all present and future accounts,
contract rights, other payment rights of any kind, instruments, documents,
chattel paper and general intangibles of the Borrower, and all proceeds thereof,
that may from time to time be deposited in any deposit account, including the
Concentration Account;
WHEREAS, pursuant to the Borrower Security Agreement, the
Borrower, among other things, granted to the Agent, for the benefit of Lenders,
a continuing security interest in all general intangibles, including, without
limitation, all rights to payment, and all proceeds of the Concentration
Account, including whatever is receivable or received when amounts in the
Concentration Account are exchanged or otherwise disposed of;
WHEREAS, the Borrower, the Agent, and Concentration Bank are
parties to that certain Concentration Bank Agreement dated as of June 8, 2000
(as amended, supplemented or otherwise modified to the date hereof, the
"EXISTING CONCENTRATION BANK AGREEMENT") pursuant to which the Borrower
maintains a concentration account (the "EXISTING CONCENTRATION ACCOUNT") into
which all amounts from the Collection Accounts are swept; and
WHEREAS, Borrower filed a voluntary petition under 11 U.S.C.
Sections 101 et seq. on July 30, 2002 in the United States Bankruptcy Court for
the Middle District of Tennessee. On May 27, 2003, the Bankruptcy Court
confirmed Grantor's Second Amended Joint Plan of Reorganization (herein "JOINT
PLAN") in all respects; and
WHEREAS, Pursuant to the Joint Plan and the Bankruptcy Court's
order issued May 27, 2003, Borrower is amending the Existing Concentration Bank
Agreement as provided herein; and
WHEREAS, Pursuant to the Joint Plan and the Bankruptcy Court's
order issued May 27, 2003, the Borrower is no longer obligated to sweep amounts
in the Concentration Account to a blocked account maintained at Bankers Trust
Company pursuant to that certain Blocked Account Agreement dated June 8, 2001
between Borrower and Bankers Trust Company (the "BLOCKED ACCOUNT Agreement");
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition that are defined in or have reference in, the Borrower Security
Agreement shall have the meanings specified therein. Undefined terms that are
defined in the Uniform Commercial Code, as it is currently enacted or may
hereafter be amended, in the applicable jurisdiction or jurisdictions shall have
the meanings set forth therein.
SECTION 2. Security Interest and Notice and Acknowledgement
Thereof.
(a) To secure the due and punctual payment and
performance of the Secured Obligations, the Borrower hereby reaffirms and
ratifies its assignment and grant, and hereby further assigns and grants, to the
Agent, for the benefit of the Lenders, a security interest in and a lien upon
all of the Borrower's right, title, and interest now or hereafter acquired in
and to (i) the Concentration Account, including all funds and assets from time
to time on deposit therein and all contract rights, claims, choses in action and
privileges in respect of the Concentration Account; (ii) the Collection
Accounts, including all funds and assets from time to time on deposit therein
and all contract rights, claims, choses in action and privileges in respect of
the Collection Accounts; (iii) all investment property and financial assets
("FINANCIAL ASSETS") and all contract rights, claims, choses in action and
privileges in respect thereof, including, without limitation, all investments
made with funds in the Concentration Account or any proceeds thereof; and (iv)
all deposit accounts, including, without limitation, all deposit accounts into
which funds in the Concentration Account may from time to time be transferred
and all deposit accounts otherwise located at the Concentration Bank (the
"DEPOSIT ACCOUNTS").
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(b) The Agent, the Concentration Bank and the Borrower
agree that all checks, money orders, and other evidences of payment may be
deposited in the Concentration Account without the Borrower's endorsement.
(c) The Borrower, the Agent, and the Concentration Bank
hereby agree that upon the occurrence of an Event of Default under the Borrower
Security Agreement which is uncured and continuing the Concentration Bank shall
comply with instructions originated by the Agent directing the disposition of
the funds contained in the Concentration Account or any other Deposit Account
maintained by the Borrower with the Concentration Bank, in accordance with the
terms and conditions of this Agreement, without further consent by the Borrower.
(d) The Borrower and the Agent hereby notify the
Concentration Bank of, and the Concentration Bank hereby acknowledges, the
security interest granted by the Borrower to the Agent in all of the Borrower's
right, title and interest now or hereafter acquired in and to the Collateral
under the Borrower Security Agreement, including, without limitation, all rights
characterized as contract rights, general intangibles or accounts, all proceeds
of funds in the Concentration Account and all other Deposit Accounts.
(e) Deleted.
(f) Deleted.
(g) Borrower hereby agrees to execute such financing
statements and other documents as the Agent may reasonably request to perfect
the security interest reaffirmed and granted to the Agent, for the benefit of
Lenders, pursuant to this Agreement.
(h) Deleted.
SECTION 3. Accounts.
(a) Listed on Part A of Schedule I hereto is the account
number of the Concentration Account and the address of the branch at the
Concentration Bank where such Concentration Account is maintained.
(b) Listed on Part B of Schedule I hereto is the account
number of each deposit account and the address where each deposit account is
maintained.
(c) The Borrower may not, and Borrower may not permit any
Subsidiary to, without the prior written consent of the Agent (i) voluntarily
close the Concentration Account, (ii) establish any new accounts for the
transfer of funds from any Collection Account, (iii) establish any account for
the purpose of making investments in Cash Equivalents from the proceeds of funds
from the Concentration Account after the date hereof except upon prior written
notice and execution of a control agreement sufficient to perfect Agent's
security interest in such account.
(d) The Borrower shall not deposit funds from any source
other than the Existing Concentration Account or proceeds of Accounts
Receivable.
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(e) The Concentration Bank hereby confirms that it has
opened the Concentration Account with the account number and at the location set
in Part A of Schedule I. Concentration Bank hereby agrees to notify Agent of
receipt of any instruction from Borrower to close the Concentration Account
within a reasonable period of time.
SECTION 4. Irrevocable Direction to Transfer Funds; Access to
Transfers.
(a) Pursuant to the Collection Bank Agreements, the
Borrower and certain of the Borrower's Subsidiaries irrevocably directed each
Collection Bank to transfer at least once each Business Day all Collected Funds
contained in the Collection Accounts for deposit into the Concentration Account.
"Collected Funds" means funds in the Concentration Account which are not subject
to hold for uncollected funds pursuant to Federal Reserve Regulation CC or the
Concentration Bank's customary procedures. The Concentration Bank agrees,
subject to Section 8, to hold all amounts in the Concentration Account for the
benefit of the Lenders on the terms set forth in this Agreement and to accept
all transfers from the Collection Banks at least once each Business Day.
(b) Following the giving of the Notice described in
Section 5 to the Concentration Bank and until such Notice is revoked by the
Agent, the Borrower authorizes the Agent to withdraw amounts from, to draw upon,
or to otherwise exercise any powers with respect to, the Concentration Account,
any Deposit Account at the Concentration Bank, and with respect to either such
account, the funds deposited therein, without further consent of the Borrower.
(c) Subject to Section 4(b), funds deposited into the
Concentration Account may be withdrawn by Borrower, subject to the Concentration
Bank's funds availability schedule in effect at such time, at any time or from
time to time. The Concentration Bank shall have no obligation to monitor the
transfer of funds.
(d) After receipt of the Notice from the Agent in
accordance with Section 5 and prior to the revocation by the Agent of such
Notice, the Borrower agrees that all funds deposited in the Concentration
Account and the Deposit Accounts from time to time shall be held by the
Concentration Bank for the Agent, on behalf of the Lenders, shall be the
property of the Agent, on behalf of the Lenders, and may be withdrawn from time
to time by the Agent, and the Borrower shall have no further authority to
withdraw any amount from, to draw upon, or to otherwise exercise any powers as
depositor or owner with respect to the Concentration Account, the Deposit
Accounts and the funds deposited therein. After receipt of the Notice from the
Agent in accordance with Section 5 and prior to the revocation by the Agent of
such Notice, the Borrower shall not give, and the Concentration Bank shall not
honor, any instructions to change the authorized signatories on the
Concentration Account and Deposit Accounts unless such instructions are given,
or approved, in writing by the Agent.
(e) Deleted.
(f) The Borrower hereby acknowledges and agrees that the
authorizations hereunder are powers coupled with an interest.
SECTION 5. Concentration Bank's Notice. The Borrower
irrevocably authorizes and instructs the Concentration Bank to take the
following actions upon and after receipt of
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written notice (the "NOTICE") from the Agent that an Event of Default has
occurred and is continuing under the Borrower Security Agreement and that the
provisions of this Section 5 shall be in effect until receipt of written notice
from the Agent revoking such Notice:
(a) The Concentration Bank shall cease honoring all
drafts, demands, withdrawal requests, entitlement orders, remittance
instructions or other instructions by the Borrower with respect to the
Concentration Account or any other Deposit Account made after receipt of the
Notice.
(b) The Concentration Bank shall hold solely for the
account of the Agent, on behalf of the Lenders, all funds that may be on deposit
in the Concentration Account or any other Deposit Account at the time the Notice
is received by the Concentration Bank and all funds thereafter deposited into
the Concentration Account or any other Deposit Account, and, subject to Section
8, the Concentration Bank will remit all such Collected Funds directly to the
Agent on behalf of the Lenders, in accordance with the Concentration Bank's
procedures then in effect as the funds are collected, by electronic transfers to
the account indicated in such Notice.
(c) Subject to Section 8, the Concentration Bank shall
forward all Collected Funds in the Concentration Account and the Deposit
Accounts and pay over and deliver no later than 2:00 p.m., New York time, on
each Business Day thereafter all Collected Funds on deposit in the Concentration
Account and the Deposit Accounts on such Business Day, in each case directly to
the Agent on behalf of the Lenders; provided, however, that unless the Agent
consents to the Concentration Bank retaining at least $150,000 in the aggregate
in the Concentration Account and the Deposit Accounts on a daily basis, the
Concentration Bank may terminate the Concentration Account and the Deposit
Accounts immediately after remitting the proceeds therein to Agent. The Borrower
hereby acknowledges and agrees that the authorizations hereunder are powers
coupled with an interest.
(d) The Notice shall be effective when it is received by
the Concentration Bank in writing at the address set forth on the signature
pages hereof (or at such other address as the Concentration Bank may specify by
written notice received by the Agent) and when the Concentration Bank has had a
reasonable time to act thereon.
SECTION 6. Certain Agreements of the Agent. Anything in this
Agreement to the contrary notwithstanding:
(a) Any Notice shall be revoked and be of no further
effect at such time as the Agent delivers notice of revocation to the
Concentration Bank, provided that the Concentration Bank has had a reasonable
period of time to implement the changes affecting the Concentration Account as a
result of such notice of revocation.
(b) As between the Agent and the Borrower, copies of all
notices given hereunder or in connection herewith by the Agent to the
Concentration Bank shall be delivered simultaneously to the Borrower.
(c) As between the Agent and the Borrower, all amounts
paid to the Agent pursuant to Section 4(d), or Section 5(c) shall be applied by
the Agent in accordance with the provisions of the Borrower Security Agreement.
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SECTION 7. Certain Agreements of the Borrower and the
Concentration Bank. Except as expressly provided in this Agreement, the Borrower
shall not agree to grant or grant any interest, including security interests, to
the Concentration Bank with respect to the funds contained in the Concentration
Account or any other Deposit Account. Except as expressly provided in this
Agreement, the Concentration Bank shall not take any interest, including
security interests, or seek to obtain any interest, including security
interests, in the funds contained in the security account.
SECTION 8. Fees and Expenses; Set-Off. The Concentration Bank
will not charge or debit, appropriate, recoup or exercise any right of offset or
banker's lien against, the Concentration Account or any other Deposit Account
except as provided below. Notwithstanding the foregoing, the Concentration Bank
shall have the right at any time to set-off against and withdraw funds from the
Concentration Account or other Deposit Account for any of the following: (i)
items credited to the Concentration Account in error or which were unpaid for
any reason, (ii) overdrafts created on related accounts of the Borrower, (iii)
adjustments and corrections in respect of transactions in the Concentration
Account or other Deposit Account, (iv) fees and expenses due Concentration Bank,
and (v) amounts owed to Concentration Bank with respect to Corporate Card
Obligations (as hereinafter defined). If there are insufficient Collected Funds
in the Concentration Account to cover the amount of any returned check or other
adjustment or correction to be debited thereto, the Borrower shall be
responsible for repaying the Concentration Bank the amount of such debit
immediately upon demand. If the Borrower fails to so repay the Concentration
Bank (after receipt of reasonable notice), then the Agent shall repay the
Concentration Bank for such debit, but only to the extent that (i) the Agent
received the proceeds of such check or debit from the Concentration Bank as a
result of issuing the Notice and related directions under Section 5 hereof, (ii)
the proceeds of such check or debit are retained and applied by the Agent to the
obligations owed to the Lenders and the Agent under the Borrower Security
Agreement and (iii) the transfer to and application of the proceeds by the Agent
are not avoided by order of a court of competent jurisdiction. All expenses for
the maintenance of the Concentration Account or any other Deposit Account and
all expenses arising under this Concentration Bank Agreement not paid as
provided above are the responsibility of the Borrower.
SECTION 9. Blocked Account Agreement. The Parties hereto agree
that the Blocked Account Agreement is hereby terminated.
SECTION 10. Account Information. The Borrower hereby instructs
the Concentration Bank and the Concentration Bank agrees to furnish to the
Agent, with a copy to the Borrower, at the Borrower's expense, bank statements
with respect to the Concentration Account or any other Deposit Account that are
customarily provided to customers of the Concentration Bank at the times such
statements are normally provided to customers of the Concentration Bank, through
the normal method of transmission, United States Mail. Additionally, the
Borrower hereby instructs the Concentration Bank and the Concentration Bank
agrees to make available to the Agent and the Borrower, upon request, copies of
all daily debit and credit advices of the Concentration Account and any other
Deposit Account.
SECTION 11. Additional Agreements and Documents. The Borrower
agrees to execute and deliver such other agreements and documents as the Agent
or the Concentration
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Bank may reasonably request, in form and substance reasonably satisfactory to
the Agent or Concentration Bank, to carry out or to confirm the provisions of
this Agreement.
SECTION 12. Procedures.
(a) Concentration Bank will follow its customary
procedures for determining whether or not to honor any checks, drafts or other
payment requests drawn on or with respect to the Concentration Account or any
other Deposit Account. Any electronic funds transfers (wire, automated clearing
house, etc.) to or from the Concentration Account or any other Deposit Account
will be subject to the terms and conditions of Concentration Bank's standard
agreements for such services, as in effect and as amended from time to time. In
the event of any conflict between the terms and conditions of such agreements
and those of this Agreement, then the terms of this Agreement shall control.
(b) Concentration Bank may rely, and shall be protected
in acting or refraining from acting, upon any notice (including but not limited
to electronically confirmed facsimiles of such notice) believed by Concentration
Bank to be genuine and to have been given by the proper party or parties.
(c) If the Borrower becomes subject to a voluntary or
involuntary proceeding under the United States Bankruptcy Code, or if
Concentration Bank is otherwise served with legal process or becomes aware of
facts or circumstances which Concentration Bank in good faith believes affects
its ability to carry out the terms of a notice pursuant to Section 5 hereof or
the disposition of funds deposited in the Concentration Account or any other
Deposit Account, Concentration Bank shall have the right (i) to place a hold on
funds deposited in the Concentration Account or other Deposit Account until such
time as Concentration Bank receives an appropriate order from a court of
competent jurisdiction or other assurances satisfactory to Concentration Bank
establishing that such notice may be effectuated and/or funds may continue to be
disbursed according to the instructions contained in this Agreement; or (ii) to
commence, at the Borrower's expense, an interpleader action in any court of
competent jurisdiction and to take no further action except in accordance with
joint instructions from the Borrower and the Agent or in accordance with the
final order of court in such action.
SECTION 13. Remedies Cumulative, etc. The rights, remedies,
and benefits of the Agent herein provided are cumulative and not exclusive of
any other rights, remedies, or benefits that the Agent may have under this
Agreement or the Borrower Security Agreement, or at law, in equity, by statute,
or otherwise.
SECTION 14. No Delay; Waiver, etc. No delay or failure on the
part of the Agent or the Concentration Bank in exercising and no course of
dealing with respect to, any power or right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any power or rights
hereunder preclude other or further exercise thereof or the exercise of any
other power or right.
SECTION 15. Modification; Resignation.
(a) No modification, amendment, or waiver of any
provision of this Agreement nor any consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent and the Concentration Bank
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and if an amendment or modification, the Borrower, and then such modification,
amendment, waiver, or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Borrower in
any case shall entitle it to any other or further notice or demand in the same,
similar or other circumstances.
(b) The Concentration Bank may resign upon 60 days
written notice to the Borrower and the Agent; provided that it may resign
immediately upon written notice to the other parties in the event of suspected
fraud or other illegal activity in connection with the Concentration Account,
any Deposit Account or this Agreement. Prior to the effectiveness of such
resignation, the Borrower shall appoint a new Concentration Bank hereunder and
cause such new Concentration Bank to execute and deliver to the Agent a
Concentration Bank Agreement in form and substance satisfactory to the Agent.
Upon the effectiveness of such resignation, PNC Bank, National Association shall
close the Concentration Account and transfer all funds therein and any future
instruments deposited therein to the new Concentration Bank, unless otherwise
instructed by Borrower and Agent (or solely by Agent after the giving of
Notice).
SECTION 16. Notices. Prior to an Event of Default, the
Concentration Bank promptly will provide to the Agent copies of all monthly
statements rendered to the Borrower and any other item reasonably requested by
the Agent. On and after an Event of Default, all notices or demands by any party
on the other relating to this Agreement shall be in writing. Notices shall be
deemed received within five Business Days after being deposited in a United
States post office box, postage prepaid, properly addressed to the Borrower, the
Agent, or the Concentration Bank at the addresses stated below, subject to the
earlier receipt thereof as described in Section 5. Notices may also effectively
be given by telecopy machine, if the party to whom the notice is being sent has
such a device in its office, provided a complete copy of any notice so
transmitted shall also be mailed in the same manner as required for a mailed
notice. Notices may also be delivered by courier or otherwise personally
delivered. Such notices shall be deemed effective upon receipt. All notices,
including telephone notices, daily debit and credit advices, monthly statements
of account, photocopies, returned items and general correspondence shall be sent
to the addresses and, when applicable given at the telephone numbers set forth
on the signature pages hereof or to such other person or address as any party
shall designate to the others from time to time in writing.
SECTION 17. Limitation of Liability.
(a) The Concentration Bank shall not be liable to the
Borrower, Agent or the Lenders for any expense, claim, loss, damage or cost
("DAMAGES") arising out of or relating to its performance under this Agreement
other than those Damages which result directly from its acts or omissions
constituting gross negligence.
(b) In no event shall the Concentration Bank be liable
for any special, indirect, exemplary or consequential damages, including, but
not limited to, lost profits, even if advised of the possibility or likelihood
of such damages.
(c) The Concentration Bank shall be excused from failing
to act or delay in acting, and no such failure or delay shall constitute a
breach of this Agreement or otherwise give rise to any liability of the
Concentration Bank, if (i) such failure or delay is caused by
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circumstances beyond the Concentration Bank's reasonable control, including, but
not limited to, legal constraint, emergency conditions, action or inaction of
governmental, civil or military authority, fire, strike, lockout or other labor
dispute, war, riot, theft, flood, earthquake or other natural disaster,
breakdown of public or private common carrier communications or transmission
facilities, equipment failure, or act, negligence or the breach by the Borrower
or Agent of any of their respective obligations hereunder, or (ii) such failure
or delay resulted from the Concentration Bank's reasonable belief that the
action would have violated any guideline, rule or regulation of any governmental
authority.
(d) Notwithstanding any of the other provisions of this
Agreement, in the event of the commencement of a case pursuant to Xxxxx 00,
Xxxxxx Xxxxxx Code, filed by or against the Borrower, or in the event of the
commencement of any similar case under then applicable federal or state law
providing for the relief of debtors or the protection of creditors by or against
the Borrower, the Concentration Bank may act reasonably to comply with all
applicable provisions of governing statutes and neither the Borrower, Agent or
any Lender shall assert any claim against the Concentration Bank for doing so.
SECTION 18. Jurisdiction. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST THE BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN NASHVILLE, DAVIDSON
COUNTY, TENNESSEE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE BORROWER
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 Borrower 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
Borrower at its address specified on the signature pages hereof, such service
being hereby acknowledged by the Borrower to be sufficient for personal
jurisdiction in any action against the Borrower 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 Concentration Bank to bring proceedings
against the Borrower in the courts of any other jurisdiction.
SECTION 19. Waiver of Jury Trial. 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 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
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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.
SECTION 20. Governing Law.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, 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. NOTWITHSTANDING THE FOREGOING, THE SECURITY INTERESTS GRANTED
HEREUNDER SHALL BE GOVERNED AND DETERMINED BY THE UNIFORM COMMERCIAL CODE IN
EFFECT IN KENTUCKY, AS SUCH CODE MAY BE AMENDED (INCLUDING AMENDMENTS RELATED TO
REVISED ARTICLE 9) OR SUCH OTHER APPLICABLE LAW (AS AMENDED) THAT INCREASES THE
VALIDITY AND ENFORCEABILITY OF THE SECURITY INTERESTS GRANTED HEREUNDER, IT
BEING THE INTENT OF THE PARTIES THAT THE SECURITY INTERESTS HEREUNDER BE GIVEN
THE BROADEST POSSIBLE SCOPE.
(b) The Borrower, the Agent, and the Concentration Bank
agree that for purposes of Article 9. Secured Transactions; Sales of Accounts,
Contract Rights and Chattel Paper, of Kentucky's version of the Uniform
Commercial Code, KY ST Sections 355.9-101 - 9-710, the jurisdiction of the
Concentration Bank and Concentration Account is Kentucky.
SECTION 21. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party and all covenants, promises,
and agreements by or on behalf of the Borrower or by and on behalf of the
Concentration Bank shall bind and inure to the benefit of the successors and
assigns of the Borrower, the Concentration Bank, the Agent, and the Lenders.
SECTION 22. Execution in Counterparts. This Agreement may be
executed via facsimile and in any number of 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 physically attached to the same
document. The Borrower and the Concentration Bank each hereby acknowledges
receipt of a true, correct, and complete counterpart of this Agreement.
SECTION 23. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 24. Termination. This Agreement shall terminate upon
the earlier of (i) payment in full of all monetary obligations of the Borrower
under the Borrower Security
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Agreement and the termination of the commitments thereunder, and (ii)
effectiveness of the resignation of the Concentration Bank as provided in
Section 15(b).
SECTION 25. Headings. The section headings in this Agreement
are inserted for convenience of reference and shall not be considered a part of
this Agreement or used in its interpretation.
SECTION 26. Agreement Duly Authorized. All parties hereto
represent and warrant that they have taken all actions and obtained all
authorizations, consents and approvals as are conditions precedent to their
authority to execute this Agreement.
SECTION 27. Notice of Legal Process. If the Concentration Bank
receives any notice of legal process of any kind relating to the Borrower, the
Concentration Bank shall make a reasonable effort to give oral notice to the
Agent and the Borrower of such legal process.
SECTION 28. Indemnity. The Borrower agrees to indemnify,
defend and hold harmless Concentration Bank and its affiliates, directors,
officers, employees, agents, successors and assigns (each an "INDEMNITEE") from
and against any and all liabilities, losses, claims, damages, demands, costs and
expenses of every kind (including but not limited to costs incurred as a result
of items being deposited in the Concentration Account and being unpaid for any
reason, reasonable attorney's fees and the reasonable charges of Concentration
Bank's in-house counsel) incurred or sustained by any Indemnitee arising out of
Concentration Bank's performance of the services contemplated by this Agreement,
except to the extent such liabilities, losses, claims, damages, demands, costs
and expenses are the direct result of Concentration Bank's gross negligence or
willful misconduct. Compliance by Concentration Bank with its standard
procedures for the services provided hereunder in all material respects shall be
deemed to be the exercise of ordinary care by Concentration Bank, provided that
such standard procedures comply with all provisions of applicable law and good
banking practices. Concentration Bank shall have no obligation to review or
confirm that any actions taken pursuant to this Concentration Bank Agreement
comply with the Borrower Security Agreement or any other agreement or document.
The provisions of this Section shall survive termination of the Concentration
Account. To the extent that the undertaking to indemnify and hold harmless set
forth in this Section may be unenforceable because it is violative of any law or
public policy, the Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all indemnified liabilities incurred by the Indemnitees or any
of them. Each Indemnitee, as soon as reasonably practicable, shall notify the
Borrower and the Agent of the commencement of any legal proceeding by a third
Person under which any indemnified liability might arise. The Borrower shall
have the option to participate in the defense of all claims under which any
indemnified liability might arise, but neither the Agent nor the Borrower shall
have the option to compel any Indemnitee to employ counsel not of the
Indemnitee's choosing.
SECTION 29. No Right of Set-Off. Except as expressly provided
in Section 8 or Section 28, the Concentration Bank shall have no right to set
off and appropriate or recoup any amount with respect to any banking
relationship between Concentration Bank and Borrower or any of its Subsidiaries
or otherwise; provided, however, that nothing in this Agreement is intended to
effect or impair (i) the rights of the Concentration Bank under a Pledge
Agreement from the Borrower in favor of the Concentration Bank with respect to a
Certificate of Deposit
11
issued by the Concentration Bank in the principal amount of $30,000 and any
proceeds thereof, including any proceeds deposited in any Deposit Account, or
(ii) the Concentration Bank's right to receive payments from the Borrower under
a VISA Corporate Card Arrangement with the Concentration Bank with a credit
limit of $25,000 ("Corporate Card Obligations").
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers as of the day and year first
above written.
Address: AMERICAN HOMEPATIENT, INC.,
a Delaware corporation
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-Mail:
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President &
Assistant Secretary
Address: BANK OF MONTREAL,
as Agent
Bank of Montreal
Attn: Xxxxxxx Turf
000 X. Xx Xxxxx, 00X
Xxxxxxx, XX 00000
By: _______________________________
Name:
Title:
Address: PNC BANK, NATIONAL ASSOCIATION,
Xxxxx Xxxxxx as Concentration Bank
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 By: _______________________________
Telecopy: (000) 000-0000 Name:
E-Mail: xxxxx.xxxxxx@xxxxxxx.xxx Title:
SCHEDULE I
A. Concentration Account
PNC Bank account 300531945, located at 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
B. Deposit Accounts
Refer to the attached list.
