EXHIBIT 10.10
GE Capital Healthcare Financial Services
MASTER SECURITY AGREEMENT
DATED AS OF 12/26/2002
THIS MASTER SECURITY AGREEMENT is between General Electric
Capital Corporation (together with its successors and assigns, if
any, "Secured Party") and the undersigned Debtor ("Debtor").
Secured Party has a mailing address at ▇.▇. ▇▇▇ ▇▇▇, ▇-▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. Debtor is a Corporation organized and
existing under the laws of the State of California. Debtor's
mailing address and chief place of business is ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. This Agreement contains the
general terms that apply to the financing of Equipment (defined
below). Additional terms that apply to the Equipment shall be
contained on a schedule ("Schedule") and in the GE Equipment
Addendum or the Non-GE Equipment Addendum, as the case may be.
1. FINANCING, TERM AND TERMINATION:
(a) In the case of equipment manufactured by the General
Electric Company or its affiliates ("GE Equipment"), Secured
Party agrees to sell to Debtor and Debtor agrees to purchase from
Secured Party the GE Equipment. In the case of equipment not
manufactured by the General Electric Company or its affiliates
("non-GE Equipment"), Secured Party agrees to finance Debtor's
purchase of the non-GE Equipment. GE Equipment and non-GE
Equipment shall be referred to herein as the "Equipment". All
units of Equipment and other property, and all accessories,
upgrades, additions, substitutions, replacement parts and tools
pertaining thereto are further described in any Schedule signed
by both parties.
(b) This Agreement shall be effective as of the date stated
above and, unless sooner terminated by Secured Party as
hereinafter provided, shall continue until all of Debtor's
obligations hereunder or under any Schedule(s) are fulfilled.
The term of each Schedule is as specified in the Schedule and
commences upon the Term Commencement Date (defined in
subparagraph (c) below). In the event of a conflict between
provisions of this Agreement and a Schedule, the provisions of
the Schedule shall control.
(c) The "Term Commencement Date" shall begin on (A) in the case
of GE Equipment, the earlier of (i) five days after the date the
Debtor is notified the Equipment has been assembled and is
operating in accordance with the manufacturer's published
performance specifications or (ii) the date the Debtor first uses
the Equipment or (B) in the case of non-GE Equipment the date
when Debtor has accepted the Equipment. However, if the GE
Equipment's installation and availability for first use is
delayed for any reason for which the Secured Party is not
responsible, the GE Equipment's availability for first use may,
at Secured Party's discretion, be declared to be 30 days after
the date the GE Equipment is delivered.
2. CREATION OF SECURITY INTEREST: Debtor grants to Secured
Party, its successors and assigns, a security interest in and
against the Equipment and in and against all additions,
attachments, accessories and accessions to such property, all
substitutions, replacements or exchanges therefor, and all
insurance and/or other proceeds thereof. This security interest
is given to secure the payment and performance of all debts,
obligations and liabilities of any kind whatsoever of Debtor to
Secured Party, now existing or arising in the future, from time
to time identified on a Schedule and any renewals, extensions and
modifications of such debts, obligations and liabilities.
3. MONTHLY INSTALLMENTS/DOWN PAYMENT: Debtor shall pay monthly
installments to Secured Party at its address stated above, except
as otherwise directed by Secured Party. Installments shall be in
the amount set forth in the applicable Schedule and are due in
advance beginning on the Term Commencement Date and on the same
day of each consecutive month thereafter. If any down payment
(as stated in the Schedule) is payable, it shall be due when the
Debtor signs the Schedule. The down payment shall be applied in
the manner set forth under such Schedule. Subject to set-off for
payments made or expenses incurred by Secured Party, Secured
Party will refund the down payment paid by Debtor with respect to
a Schedule if the Schedule is terminated in writing, before any
part of the Equipment is delivered to the Site, (i) by Secured
Party or Debtor as a direct result of the other's material breach
of a material term or condition of that Schedule or (ii) by
mutual written agreement between the parties. If a monthly
installment is not paid within ten days of its due date, Debtor
agrees to pay a late charge of five cents ($0.05) per dollar on.
and in addition to, the amount of such installment but not
exceeding the lawful maximum, if any. All other payments
received by Secured Party shall first be applied to any accrued
late charge(s) and other monies due Secured Party hereunder and
then to any unpaid installments.
4. TAXES: If permitted by law, Debtor shall report and pay
promptly all taxes, fees and assessments due, imposed, assessed
or levied against any Equipment (or purchase, ownership,
delivery, leasing, possession, use or operation thereof), this
Agreement (or any receipts hereunder), any Schedule, Secured
Party or Debtor by any governmental entity or taxing authority
during or related to the term of this Agreement, including,
without limitation, all license and registration fees, and all
sales, use, personal property, excise, gross receipts, franchise,
stamp or other taxes, imposts, duties and charges, together with
any penalties, fines or interest thereon (collectively "Taxes").
Debtor shall have no liability for Taxes imposed by the United
States of America or any state or political subdivision thereof
which are on or measured by the net income of Secured Party.
Debtor shall promptly reimburse Secured Party (on an after tax
basis) for any Taxes charged to or assessed against Secured
Party. Debtor shall send Secured Party a copy of each report or
return and evidence of Debtor's payment of Taxes upon request by
Secured Party.
5. REPORTS:
(a) If any tax or other lien shall attach to any Equipment,
Debtor will notify Secured Party in writing, within ten days
after Debtor becomes aware of the tax or lien. The notice shall
include the full particulars of the tax or lien and the location
of such Equipment on the date of the notice.
(b) Debtor will deliver to Secured Party, Debtor's complete
financial statements, certified by a recognized firm of certified
public accountants within 90 days of the close of each fiscal
year of Debtor. Debtor will deliver to Secured Party copies of
Debtor's quarterly financial report certified by the chief
financial officer of Debtor, within 90 days of the close of each
fiscal quarter of Debtor. Debtor will deliver to Secured Party
all Forms 10-K and 10-Q, if any, filed with the Securities and
Exchange Commission within 30 days after the date on which they
are filed.
(c) Debtor will promptly notify Secured Party of any change
in Debtor's state of incorporation or organization.
6. MAINTENANCE:
(a) Debtor will, at its sole expense, maintain each unit of
Equipment in good operating order and repair, normal wear and
tear excepted. The Debtor shall also maintain the Equipment in
accordance with manufacturer's recommendations. Debtor shall
make aft alterations or modifications required to comply with any
applicable law, rule or regulation during the term of this
Agreement. If Secured Party requests, Debtor shall affix plates,
tags or other identifying labels showing ownership thereof by
Debtor and Secured Party's security interest.
(b) Debtor will not attach or install anything on any Equip-
ment that will impair the originally intended function or use of such
Equipment without the prior written consent of Secured Party.
All additions, parts, supplies, accessories, and equipment
("Additions") furnished or attached to any Equipment that are not
readily removable shall become the property of Secured Party.
All Additions shall be made only in compliance with applicable
law. Debtor will not attach or install any Equipment to or in
any other personal or real property without the prior written
consent of Secured Party.
7. INSURANCE: Debtor agrees at its own expense, to keep the
Equipment insured with companies acceptable to Secured Party for
such amounts and against such hazards as Secured Party may
require, including, but not limited to, all risk physical damage
Insurance for the Equipment itself, with losses under the
policies payable to Secured Party or its assigns, if any, and
liability coverage for personal injuries, death and/or property
damages on terms satisfactory to Secured Party. Secured Party
and/or its officers, agents, employees and/or successors and/or
assigns shall be named as an additional insured under all such
insurance policies with loss payable clauses under said policies
payable in Secured Party's favor, as Secured Party's interest may
appear. Said Equipment shall be insured for not less than its
stated replacement value or such other amount as Secured Party
shall specify. Said liability insurance shall be in an amount of
not less than two million dollars ($2,000,000.00) or such other
amount as Secured Party shall specify. Debtor hereby appoints
Secured Party as its attorney-in-fact to make proof of loss and
claims for insurance and to make adjustments with insurers and to
receive payment of and execute or endorse all documents, checks
or drafts in connection with payments made with respect to the
insurance policies. Debtor may not make adjustments with
insurers except with Secured Party's prior written consent. The
policies will provide that the insurance may not be altered or
canceled by the insurer until after thirty days written notice to
Secured Party. In the event of damage to or toss, secretion,
destruction or theft of the Equipment, or any portion of the
Equipment, whether in whole or in part, Debtor will pay to
Secured Party the replacement value of all Equipment, or of the
portion of the Equipment affected if the value and use of the
remainder of the Equipment are not affected at the time of such
occurrence (except the extent that Secured Party receives
proceeds of insurance covering such Equipment). Secured Party
may, at Secured Party's option, apply proceeds of insurance, in
whole or in part, (i) to repair or comparably replace the
Equipment or any portion of it, or (ii) to satisfy any of
Debtor's obligations pursuant to this Agreement or a Schedule.
8. ACCESS AND REMOVAL:
(a) The cost of removal and turnover, including all
transportation, of the Equipment in the event of Debtor's default
of a Schedule will be at Debtor's expense. If Debtor makes
modifications to the site after the Equipment has been installed
which impede the removal of the Equipment, the cost of removing
the impediments and restoring the site will be at Debtor's
expense.
(b) If, following an event of default, Secured Party exercises
its right to demand that Debtor turn over the Equipment to
Secured Party, the Equipment will be turned over to Secured Party
or assigns, in the same condition and appearance as when received
by Debtor (reasonable wear and tear excepted) and in good working
order and condition, operable in accordance with our then
prevailing performance specifications or, in the case of non-GE
Equipment, the supplier's and, if different, the manufacturer's,
then prevailing specifications. All waste material and fluid
must be removed from the Equipment and disposed of by Debtor in
accordance with then current waste disposal laws. If the
Equipment is not so turned over, Secured Party, at Debtor's sole
expense, may have the Equipment restored to such a condition. If
Secured Party so requires, the units shall be de-installed and
crated by an authorized manufacturer's representative or such
other service person as is reasonably satisfactory to Secured
Party.
9. DEFAULT AND REMEDIES:
(a) Secured Party may declare this Agreement in default if:
(i) Debtor breaches its obligation to pay monthly installments or
any other sum when due and falls to cure the breach within ten
days; (ii) Debtor breaches any of its insurance obligations under
this Agreement; (iii) Debtor breaches any of Its other
obligations and falls to cure that breach within 30 days after
written notice from Secured Party; (iv) any representation or
warranty made by Debtor in connection with this Agreement shall
be false or misleading in any material respect; (v) Debtor or any
guarantor or other obligor for the Debtor's obligations hereunder
("Guarantor") becomes insolvent or ceases to do business as a
going concern; (vi) Debtor assigns any of its interests in this
Agreement or in the Equipment without Secured Party's prior
consent; (vii) if Debtor or any Guarantor is a natural person,
any death or incompetency of Debtor or such Guarantor; (viii) a
petition Is filed by or against Debtor or any Guarantor under any
bankruptcy or insolvency laws and in the event of an involuntary
petition, the petition is not dismissed within 45 days of the
filing date; or (ix) any material adverse change occurs in
Debtor's financial condition or business operations (or of any
Guarantor) or any material change occurs in the ownership of
Debtor; or (x) Debtor improperly files an amendment or
termination statement relating to a filed financing statement
describing the Equipment. The default declaration shall apply to
all Schedules unless specifically excepted by Secured Party.
(b) Upon the occurrence of an event of default hereunder,
Secured Party shall have the non-exclusive option to:
(i) declare all sums due and to become due for the full term of
any or all of the Schedules immediately due and payable;
(ii) declare all other amount(s) due Secured Party hereunder
immediately due and payable; (iii) collect from Debtor, on all
monies due but unpaid for more than ten days, a late charge of
five cents per dollar on, and in addition to, the amount of all
such monies, but not exceeding the lawful maximum; (iv) take
possession of the Equipment and remove same from its existing
location(s) without notice to or consent of Debtor; and store
and/or dispose (by public sale or otherwise) of the Equipment at
its then existing location(s) at no charge to Secured Party;
(v) sell or lease any or all items of Equipment at public or
private sale or lease at such time or times as Secured Party may
determine and if notice thereof is required bylaw, any notice in
writing of any such sale or lease by Secured Party to Debtor not
less than ten days prior to the date thereof shall constitute
reasonable notice thereof to Debtor; (vi) otherwise dispose of,
hold, use, operate, or keep idle such Equipment, all as Secured
Party, in its sole discretion, may determine; and (vii) assert
any other remedies available to Secured Party at law or in equity
(including, without limitation, under the Uniform Commercial
Code).
(c) After deducting all expenses of retaking, repairing,
holding, transporting, selling and/or reletting the Equipment,
the net proceeds (if any) from such sale or reletting by Secured
Party shall be applied against Debtor's obligation hereunder.
The proceeds of any sale, re-lease, or other disposition (if any)
shall be applied in the following priorities: (i) first, to pay
all Secured Party's costs, charges and expenses in taking,
removing, holding, repairing, selling, re-leasing and disposing
of the Equipment (ii) second, to the extent not previously paid
by Debtor (or by a Guarantor of Debtor's obligations hereunder)
to pay Secured Party all amounts due from Debtor hereunder;
(iii) third, to reimburse to Debtor (or any Guarantor) any sums
previously paid as damages to Secured Party by Debtor (or such
Guarantor); and (iv) lastly, any surplus shall be delivered to
Debtor. Secured Party shall have the right to seek a deficiency
from Debtor notwithstanding Secured Party's repossession or
abandonment of the Equipment, or Seared Party's sale or reletting
the Equipment to a third party.
(d) The foregoing remedies are cumulative, and any or all
thereof may be exercised instead of or in addition to each other
or any remedies at law, in equity, or under statute. Debtor
waives notice of sale or other disposition (and the time and
place thereof), and the manner and place of any advertising.
Debtor shall pay Secured Party's actual attorney's fees incurred
in connection with the enforcement, assertion, defense or
preservation of Secured Party's rights and remedies under this
Agreement, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall not be a waiver of any
other or subsequent default.
10. ASSIGNMENT: DEBTOR SHALL NOT SELL, TRANSFER, ASSIGN,
ENCUMBER OR SUBLET ANY EQUIPMENT OR THE INTEREST OF DEBTOR IN THE
EQUIPMENT OR THE RIGHTS OR OBLIGATIONS OF DEBTOR UNDER THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF SECURED PARTY.
Secured Party may, without the consent of Debtor, assign this
Agreement, any Schedule or the right to enter into a Schedule
provided that any such assignment shall not relieve Secured Party
of its obligations hereunder. Debtor agrees that if Debtor
receives written notice of an assignment from Secured Party,
Debtor will pay all monthly installments and all other amounts
payable under any assigned Schedule to such assignee or as
instructed by Secured Party. Debtor also agrees to confirm in
writing receipt of the notice of assignment as may be reasonably
requested by Secured Party or assignee. Debtor hereby waives and
agrees not to assert against any such assignee any defense, set-
off, recoupment claim or counterclaim which Debtor has or may at
any time have against Secured Party for any reason whatsoever.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR: Debtor
makes each of the following representations, warranties, and
covenants to Secured Party on the date hereof and on the date of
execution of each Schedule.
(a) Debtor has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents
(together, the "Documents"). Debtor is duly qualified to do
business wherever necessary to carry on its present business and
operations, including the jurisdiction(s) where the Equipment is
or is to be located.
(b) The Documents have been duly authorized, executed and
delivered by Debtor and constitute valid, legal and binding
agreements, enforceable in accordance with their terms, except to
the extent that the enforcement of remedies may be limited under
applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is
required from any governmental authority or entity with respect
to the entry into or performance by Debtor of the Documents
except such as have already been obtained.
(d) The entry into and performance by Debtor of the Documents
will not: (i) violate any judgment, order, law or regulation
applicable to Debtor or any provision of Debtor's organizational
documents; or (ii) result in any breach of, constitute a default
under or result in the creation of any lien, charge, security
interest or other encumbrance upon any Equipment pursuant to any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other instrument (other than this Agreement) to which Debtor
is a party.
(e) There are no suits or proceedings pending or threatened
in court or before any commission, board or other administrative
agency against or affecting Debtor, which if decided against
Debtor will have a material adverse effect on the ability of
Debtor to fulfill its obligations under this Agreement.
(f) The Equipment is and will remain tangible personal
property.
(g) Each financial statement delivered to Secured Party
has been prepared in accordance with generally accepted accounting
principles consistently applied. Since the date of the most
recent financial statement, there has been no material adverse
change in the financial condition of the Debtor.
(h) Debtor's exact legal name is as set forth In the last
page of this Agreement and Debtor is and will be at all times
validly existing and in good standing under the laws of the
state of its formation (specified in the first sentence of
this Agreement).
(i) The Equipment will at all times be used for commercial
or business purposes.
(j) Debtors agrees that the Equipment will be used by Debtor
solely in the conduct of its business and in a manner complying
with all applicable laws, regulations and insurance policies.
(k) Debtor will not move any Equipment from the location
specified on the Schedule, without the prior written consent of
Secured Party.
(l) Debtor will keep the Equipment free and dear of all
liens and encumbrances other than those which result from acts
of Secured Party.
12. USURY SAVINGS: It is the intention of the parties hereto to
comply with any applicable usury laws to the extent that any
Schedule is determined to be subject to such laws. Accordingly,
it is agreed that, notwithstanding any provision to the contrary
in any Schedule or this Agreement, in no event shall any Schedule
require the payment or permit the collection of interest in
excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under
any Schedule or this Agreement, or in the event that all of the
principal balance shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or
received under any Schedule or this Agreement shall exceed the
maximum amount of interest permitted by applicable law, then in
such event (i) the provisions of this paragraph shall govern and
control, (ii) neither Debtor nor any other person or entity now
or hereafter liable for the payment hereof shall be obligated to
pay the amount of such interest to the extent that it is in
excess of the maximum amount of interest permitted by applicable
law, (iii) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal
balance or refunded to Debtor, at the option of the Secured
Party, and (iv) the effective rate of interest shall be
automatically reduced to the maximum lawful contract rate allowed
under applicable law as now or hereafter construed by the courts
having jurisdiction thereof.
13. LIMITATION OF REMEDIES AND DAMAGES: THE TOTAL LIABILITY OF
SECURED PARTY AND ITS REPRESENTATIVES TO DEBTOR AND DEBTOR'S
EXCLUSIVE REMEDY RELATING TO A SCHEDULE IS LIMITED TO THE MONTHLY
INSTALLMENT WHICH IS THE BASIS FOR THE CLAIM. Debtor agrees that
Secured Party and its representatives have no liability to Debtor
for (i) any penal, punitive, special, incidental, or
consequential damages such as lost profit or revenue, (ii) any
assistance not required under the Schedule, or (iii) anything
occurring after the end of a Schedule. Debtor will be barred
from any remedy unless Debtor gives Secured Party prompt written
notice of the problem. This is a commercial transaction. Any
claim related to this contract will be covered solely by
commercial legal principles. SECURED PARTY, ITS REPRESENTATIVES
AND DEBTOR WILL NOT HAVE ANY NEGLIGENCE OR OTHER TORT LIABILITY
TO THE OTHER ARISING FROM A SCHEDULE.
14. COMPLIANCE WITH REPORTING RESPONSIBILITIES: Debtor agrees
to fully and accurately account for, and report in any,
applicable cost reports, all items and services received from
Secured Party under the Agreement, in a way which complies with
all applicable laws and regulations, including the Federal Social
Security Act and implementing regulations relating to Medicare,
Medicaid and the Federal Health Care Programs.
15. FILING: Debtor will sign and return to Secured Party when
requested such instrument(s) as applicable law requires or
permits to give public notice of Secured Party's interest in the
Equipment. In addition, Debtor hereby authorizes Secured Party
to file a financing statement and amendments thereto describing
the Equipment described in any and all Schedules now and
hereafter executed pursuant hereto and adding any collateral
described therein and containing any other Information required
by the applicable Uniform Commercial Code. Debtor hereby
irrevocably appoints Secured Party or its designee as Debtor's
agent and attorney-in-fact to sign such instrument(s) on Debtor's
behalf and to file them.
16. MISCELLANEOUS:
(a) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY
DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR
THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND
SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, ADDENDA OR
MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY
RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) Time is of the essence of this Agreement. Secured
Party's failure at any time to require strict performance by
Debtor of any of the provisions hereof shall not waive or
diminish Secured Party's right at any other time to demand
strict compliance with this Agreement. If more than one
Debtor is named in this Agreement, the liability of each
shall be joint and several. All notices required to be given
hereunder shall be deemed adequately given if sent by
registered or certified mail to the addressee at its address
stated herein, or at such other place as such addressee may
have specified in writing. This Agreement and any addendum,
schedule and annexes hereto constitute the entire agreement
of the parties with respect to the subject matter hereof.
No prior proposals, statements, course of dealing , or
usage of trade will be a part of this Agreement. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS
PROVISIONS OR CONDITIONS SHALL BE VALID UNLESS IN WRITING AND
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
(c) If Debtor does not comply with any provision of this
Agreement, Secured Party shall have the right, but shall not be
obligated, to effect such compliance, in whole or in part. All
reasonable amounts spent and obligations incurred or assumed by
Secured Party in effecting such compliance shall constitute an
additional installment due to Secured Party. Debtor shall pay
the additional Installment within five days after the date
Secured Party sends notice to Debtor requesting payment. Secured
Party's effecting such compliance shall not be a waiver of
Debtor's default.
(d) Any provisions in this Agreement, any Schedule, addendum or
amendment hereto that are in conflict with any statute, law or
applicable rule shall be deemed omitted, modified or altered to
conform thereto.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
IN WITNESS WHEREOF, Debtor and Secured Party have caused
this Agreement to be executed by their duly authorized
representatives as of the date first above written.
SECURED PARTY: DEBTOR:
General Electric Capital HemaCare Corporation
Corporation
By: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------- ---------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:Duly Authorized Title: President/CEO
Signatory
NON-GE EQUIPMENT ADDENDUM
DATED AS OF 12/26/2002
TO MASTER SECURITY AGREEMENT
DATED AS OF 12/26/2002
THIS ADDENDUM ("Addendum") is attached and made a part of
the above referenced Master Security Agreement (the "Agreement")
between General Electric Capital Corporation ("Secured Party")
and the undersigned Debtor ("Debtor") and is incorporated by
reference into the Agreement. This Addendum modifies and
supplements the Agreement and sets forth additional terms and
conditions that apply to Equipment that has not been manufactured
by the General Electric Company or its affiliates. Any conflict
between this Addendum and the Agreement shall be resolved so as
to give effect to the provisions of this Addendum. Capitalized
terms not otherwise defined herein shall have the meaning set
forth in the Agreement.
1. TRANSPORTATION AND RISK OF LOSS:
(a) The Equipment will be shipped to the site identified in a
Schedule by the Supplier of the Equipment. Debtor will inform
Secured Party of the date the Equipment is delivered within 5
days of such delivery. Any necessary assembly or installation
will be described in the Schedule. The Debtor agrees to accept
shipment of the Equipment and to cooperate with any assembler to
permit the assembler to complete its task without delay.
(b) The Debtor or the Supplier will bear responsibility for
transportation and risk of loss of the Equipment at all times.
At no time will Secured Party bear the risk of loss. The use of
the term "risk of loss" herein shall include, without limitation,
the entire risk of any loss, theft, damage to, or destruction of
any unit of Equipment from any cause whatsoever.
2. INDEMNIFICATION: Debtor hereby agrees to indemnify Secured
Party, its agents, employees, successors and assigns (on an after
tax basis) from and against any and all losses, damages,
penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature arising out of or
relating to the Equipment or this Agreement, except to the extent
the losses, damages, penalties, injuries, claims, actions, suits
or expenses result from Secured Party's gross negligence or
willful misconduct ("Claims"). This Indemnity shall Include, but
is not limited to, Secured Party's strict liability in tort and
claims, arising out of (i) the selection, manufacture, purchase,
acceptance or rejection of Equipment, the ownership of Equipment
during the term of this Agreement, and the delivery, lease,
possession, maintenance, uses, condition, return or operation of
Equipment (including, without limitation, latent and other
defects, whether or not discoverable by Secured Party or Debtor
and any claim for patent, trademark or copyright infringement or
environmental damage) or (ii) the condition of Equipment sold or
disposed of after use by Debtor or employees of Debtor. Debtor
shall, upon request, defend any actions based on, or arising out
of, any of the foregoing. All of Secured Party's rights,
privileges and indemnities contained in this Section 2 shall
survive the expiration or other termination of this Agreement
The rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by
Secured Party, its successors and assigns.
3. DISCLAIMER: DEBTOR ACKNOWLEDGES THAT IT HAS SELECTED THE
EQUIPMENT WITHOUT ANY ASSISTANCE FROM SECURED PARTY, ITS AGENTS
OR EMPLOYEES. SECURED PARTY DOES NOT MAKE, HAS NOT MADE, NOR
SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY
COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS
TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS
OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT,
OR TITLE. All such risks, as between Secured Party and Debtor,
are to be borne by Debtor.
IN WITNESS WHEREOF, Debtor and Secured Party have caused
this Addendum to be executed by their duly authorized
representatives as of the date first above written.
SECURED PARTY: DEBTOR:
General Electric Capital HemaCare Corporation
Corporation
By: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------- ----------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------- --------------------
Title: Duly Authorized Title: President/CEO
Signatory
EQUIPMENT SCHEDULE
DATED AS OF 12/26/2002
TO MASTER SECURITY AGREEMENT
DATED AS OF 1212612002
This Schedule is executed pursuant to, and incorporates by
reference the terms and conditions of the Master Security
Agreement identified above ("Agreement"). Except as provided
herein, capitalized terms not defined herein shall have the
meanings assigned to them in the Agreement.
1. EQUIPMENT: Subject to the terms and conditions of the
Agreement, Secured Party agrees in the case of GE Equipment to
sell to Debtor, and in the case of non-GE Equipment to finance
Debtor's purchase of, the Equipment described below (the
"Equipment').
Model, VIN #,
Unit #
Number Finanaced and/or Type
of Supplier/ Equipment of
Units Site Manufacturer Cost Equipment
------ ------------- ------------ ------------ -------------
5 HemaCare Creative Bus $403,750.65 Blood Vans
Corporation Sales, Inc.
21101 Oxnard ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇
CA 91367 91710
2. TERMS AND INSTALLMENTS:
A. Term of Schedule: 48 months. The term of this
Schedule will commence on the Term Commencement Date specified in
the 'Financing, Term and Termination" section of the Agreement
and continue for the term specified immediately above, subject to
and in accordance with the terms and conditions of this Schedule.
B. Down Payment: $121,125.20. Debtor's payment of the
down payment to Secured Party will be made on or before execution
and return of this Schedule. Secured Party's retention of the
down payment is subject to the "Monthly Installments/Down
Payments" section of the Agreement.
C. Monthly Installment: 48 Months @ $6,899.71, plus all
applicable taxes. All payments will be in arrears. In states
assessing sales and use tax, your Monthly Installments will be
adjusted to include the applicable sales and use tax at the same
rate that was used to calculate your Monthly Installments under
this Agreement. Debtor's payment of Monthly Installments to
Secured Party will be in accordance with the "Monthly
Installments/Down Payments" section of the Agreement. The
interest rate with respect to this Schedule will be established
on the Term Commencement Date. The interest rate will be equal
to 8% per annum plus or minus, as applicable, the number of
points that the yield on 5 Year Interest Rate Swaps on the Term
Commencement Date is above or below 3.7%, which was established
based on the 5 Year Interest Rate Swaps as of the week ending
11/29/2002. The interest rate shall be calculated on the basis
of a 365-day year and will be charged for each calendar day on
which any principal of the financed Equipment cost is
outstanding.
3. PREPAYMENT PENALTY. The Debtor may prepay in full, but not
in part, its entire indebtedness hereunder upon payment of an
additional sum as a premium equal to the following percentages of
the original financed Equipment cost for the indicated period:
Prior to the first annual anniversary date of this Schedule:
no prepayment permitted
Month thirteen (13) through and including month twenty-
four (24) of this Schedule: four percent (4%)
Month twenty-five (25) through and including month thirty-
six (36) of this Schedule: three percent (3%)
Month thirty-seven (37) through and including month forty-
eight (48) of this Schedule: two percent (2%)
And one percent (1%) thereafter, plus all other sums due
hereunder.
4. AUTODRAFTING:
A. Debtor hereby authorizes Secured Party to initiate
debit entries for Debtor's payment of the charges which are due
periodically under this Schedule and any service contracts
relating to the Equipment and the financial institution indicated
below to debit with the amounts thereof the account listed below.
Financial Institution Name: Comerica Bank
Financial Institution Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
City: Woodland Hills State: CA Zip: 91367
B. The following Information can be provided from Debtor's
check so please attach a copy of a voided check:
Account Name: HemaCare Corporation
Nine-digit Financial Institution ID Number: XXXXXXX
Your Financial Institution Account Number:xXXXXXXX
C. Debtor further authorizes Secured Party to adjust the
dollar amount transferred from Debtor's account to correspond to
periodic changes in the payment due, if any, under the terms of
this Schedule.
D. Debtor hereby authorizes Secured Party to automatically
debit all current or past due property taxes (if applicable).
E. Rules and Regulations
(i) Debtor understands that due to the difference in
timing between the Term Commencement Date and the
booking of this Schedule, the initial debit may
be for more then one periodic charge but will
not be more than the actual total monthly amounts
due at that time.
(ii) Failure to have adequate funds in Debtor's account
shall constitute an event of default under its
Schedule.
(iii) Debtor understands that it will continue to receive
an invoice each month as notification of the amount
to be debited from its account.
(iv) Debtor must provide Secured Party with written notice
at least 30 days in advance of Debtor's intent to
revoke, terminate of modify this authorization of the
information contained herein.
In the event Debtor revokes or terminates this
authorization, Debtor must remit its periodic charges
directly to Secured Party at the address specified
in the Agreement. Failure to pay the periodic
charges on or before the due date shall constitute an
event of default under this Schedule.
(v) If a deduction is made in error, Debtor has the right
to be immediately refunded by Secured Party for the
amount of the erroneous deduction provided that
Debtor provides written notification of the erroneous
deduction within 15 days after itsaccount statement is
issued or 45 days after the monies are paid
to Secured Party.
5. Debtor does further certify that as of the date hereof
(i) Debtor is not in default under the Agreement; (ii) the
representations and warranties made by Debtor pursuant to or
under the Agreement are true and correct on the date hereof; and
(iii) Debtor has reviewed and approves of the purchase documents
for the Equipment, if any.
6. Any modified or additional terms and conditions of this
Schedule are set forth in the following attachments to this
Schedule: _______
7. Except as expressly modified hereby, all terms and provisions
of the Agreement shall remain in full force and effect.
SECURED PARTY: DEBTOR:
General Electric Capital HemaCare Corporation
Corporation
By: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------ -----------------------
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------- ---------------------
Title: Duly Authorized Title: President/CEO
Signatory
ACCEPTANCE CERTIFICATE
RELATING TO SCHEDULE DATED AS OF 12/26/2002
TO MASTER SECURITY AGREEMENT DATED AS OF 12/26/2002
INTERNAL CONTRACT REFERENCE NUMBER 8525215
INTERNAL ORDER REFERENCE NUMBER 861-403355
EQUIPMENT DESCRIPTION: Blood Vans
To: General Electric Capital Corporation
Pursuant to the provisions of the above referenced Schedule and
Master Security Agreement the undersigned, on behalf of, and as
authorized and instructed by Debtor, hereby certifies that
the Equipment described in the above-referenced Schedule
has been delivered and received; that the Equipment has
been fully assembled as required; that installation or other work
necessary prior to the use of the Equipment has been fully
completed as required; and that the Equipment has been examined
and/or tested and is in good order and operating condition
and is in all respects satisfactory.
Debtor hereby unconditionally accepts the Equipment as of the
date set forth below.
Debtor has read and reviewed the above-referenced Master Security
Agreement and Schedule, and hereby reaffirms and acknowledges its
terms and conditions. Debtor further represents and warrants
that all representations and warranties made by Debtor in such
Master Security Agreement were true and accurate when originally
made and are true and accurate as of the date set forth below.
The undersigned hereby certifies and represents that the
undersigned is duly authorized to execute and deliver this
ACCEPTANCE NOTICE on behalf of the Debtor.
Debtor
HemaCare Corporation
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Authorized Signature
President/CEO
---------------------------
Title
Date: 12/31/02
----------------------