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EXHIBIT 10.15
SECURITY AGREEMENT
This Security Agreement is entered into effective this 1st day of May,
1996, by JCW MEDICAL ASSOCIATES, P.A. a Texas professional association, ▇▇▇▇ ▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ , ▇▇▇▇▇▇ County, Texas ("Grantor"), to DOCTORS
PRACTICE MANAGEMENT, INC., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Lender").
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Grantor grants to Lender the security interest hereinafter set
forth and agrees with Lender as follows:
A. OBLIGATIONS SECURED. The security interest granted hereby is to
secure punctual payment and performance of all obligations of Grantor now or
hereafter existing under (i) the Credit Agreement of even date herewith between
Grantor and the Lender (the "Credit Agreement"), and all Promissory Note(s)
issued thereunder (the Credit Agreement and all such Promissory Notes, together
with this Agreement, being hereafter collectively referred to as the "Loan
Documents"), and (ii) the terms of all other indebtedness now or hereafter
owed by Grantor to Lender, whether for principal, interest, fees, expenses or
otherwise and whether direct or indirect, primary or contingent, (all such
obligations being hereafter referred to as the "Obligations"). Capitalized terms
used but not defined herein which are defined in the Loan Documents shall have
the meaning assigned to such terms in the Loan Documents.
B. USE OF COLLATERAL. Grantor represents, warrants and covenants that
the Collateral will be used by the Grantor primarily for business use.
C. DESCRIPTION OF COLLATERAL. Grantor hereby grants to Lender a security
interest in and agrees that Lender shall continue to have a security interest
in, the following property, to wit:
(a) All Inventory. A security interest in all of Grantor's
inventory, including all goods, merchandise and other tangible personal
property, specifically including. medical supplies, wheresoever located, now
owned or hereafter acquired and held for sale or lease or furnished or to be
furnished under contracts for service or used or consumed in Grantor's business
and all additions and accessions thereto and contracts with respect thereto and
all documents of title evidencing or representing any part thereof, and all
products and proceeds thereof, wherever located and however situated.
(b) All Accounts. A security interest in all accounts now owned
or existing as well as any and all that may hereafter arise or be acquired by
Grantor, and all the proceeds and products thereof, including without
limitation, all notes, drafts, acceptances, instruments and chattel paper arise
there from, and all returned or repossessed goods arising from or relating to
any such accounts, or other proceeds of any sale or other disposition of
inventory.
(c) All Equipment. A security interest in all equipment of every
nature and
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description whatsoever now owned or hereafter acquired by Grantor including all
appurtenances and additions thereto and substitutions therefor, wheresoever
located, including all tools, parts and accessories used in connection
therewith.
(d) General Intangibles. A security interest in all general
intangibles and other personal property now owned or hereafter acquired by
Grantor other than goods, accounts, chattel paper, documents and instruments.
(e) Chattel Paper. A security interest in all of Grantor's
interest under chattel paper, lease agreements and other instruments or
documents, whether now existing or owned by Grantor or hereafter arising or
acquired by Grantor, evidencing both a debt and security interest in or lease
of specific goods.
(f) Instruments. A pledge and assignment of said security
interest in all of Grantor's now owned or existing as well as hereafter
acquired or arising instruments and documents.
The term "Collateral,, as used in this Agreement shall mean and
include, and the security interest shall cover, all of the foregoing property,
as well as any accessions, additions and attachments thereto and the proceeds
and products thereof or other proceeds of any sale or other disposition of such
property.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS OF Grantor. Grantor
represents and warrants as follows:
1. Ownership; No Encumbrances. Except for the security interest
granted hereby and as permitted under the Loan Documents, the Grantor is the
owner of the Collateral free and clear from all charges, liens, security
interests, adverse claims and encumbrances of any and every nature whatsoever.
2. No Financing Statements. Except as permitted in the Loan
Documents or as disclosed to Lender, there is no financing statement or similar
filing now on file in any public of f ice covering any part of the Collateral,
and Grantor will not execute and there will not be on file in any public office
any financing statement or similar filing except the financing statements filed
or to be filed in favor of Lender.
3. Accuracy Of Information. All information furnished to Lender
concerning Grantor, the Collateral and the Obligations, or otherwise for the
purpose of obtaining or maintaining credit, is or will be at the time the same
is furnished, accurate and complete in all material respects.
4. Authority. Grantor has full right and authority to execute
and perform this Agreement and to create the security interest created by this
Agreement. The making and performance by Grantor of this Agreement will not
violate any articles of incorporation, bylaws or similar document respecting
Grantor, any provision of law, any order of court or governmental agency, or
any indenture or other agreement to which Grantor is a party, or by which
Grantor or any of Grantor's property is bound, or be in conflict with, result
in a breach of or constitute
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(with due notice and/or lapse of time) a default under any such indenture or
other agreement, or result in the creation or imposition of any charge, lien,
security interest, claim or encumbrance of any and every nature whatsoever upon
the Collateral, except as contemplated by this Agreement.
5. Addresses. The address of Grantor designated at the beginning
of this Agreement is Grantor's place of business if Grantor has only one place
of business or Grantor's chief executive office if Grantor has more than one
place of business. Grantor agrees not to change such address without advance
written notice to Lender.
E. GENERAL COVENANTS. Grantor covenants and agrees as follows:
1. Operation of the Collateral. Grantor agrees to maintain and
use the Collateral solely in the conduct of its own business, in a careful and
proper manner, and in conformity with all applicable permits or licenses.
Grantor shall comply in all material respects with all applicable statutes,
laws, ordinances and regulations. Grantor shall not use the Collateral in any
unlawful manner or for any unlawful purposes, or in any manner or for any
purpose that would expose the Collateral to unusual risk, or to penalty,
forfeiture or capture, or that would render inoperative any insurance in
connection with the Collateral.
2. Condition. Grantor shall maintain, service and repair that
portion of the Collateral constituting equipment (referred to in Paragraph C
(a) above) so as to keep it in good operating condition in accordance with good
business practices. Grantor shall replace within a reasonable time all parts
that may be worn out, lost, destroyed or otherwise rendered unfit for use, with
appropriate replacement parts. Grantor shall obtain and maintain in good
standing at all times all applicable permits, licenses, registrations and
certificates respecting the Collateral.
3. Assessments. Grantor shall promptly pay when due all taxes,
assessments, license fees, registration fees, and governmental charges levied
or assessed against Grantor or with respect to the Collateral or any part
thereof, except for any such item contested in good faith by Grantor f or which
adequate reserves have been established.
4. No Encumbrances. Except as permitted in the Loan Agreement,
Grantor agrees not to suffer or permit any charge, lien security interest,
adverse claim or encumbrance of any and every nature whatsoever against the
Collateral or any part thereof.
5. No Removal. Except as otherwise provided in this Agreement,
Grantor shall not remove the Collateral from the county or counties designated
at the beginning of this Agreement without Lender's prior written consent.
6. No Transfer. Except in the ordinary course of business,
Grantor shall not, without the prior written consent of Lender, sell, assign,
transfer, lease, encumber, hypothecate or dispose of the Collateral, or any
part thereof, or interest therein, or offer to do any of the foregoing.
7. Notices and Reports. Grantor shall promptly notify Lender in
writing of any change in the name, identity or structure of Grantor, any
charge, lien, security interest, claim or
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encumbrance asserted against the Collateral, any litigation against Grantor or
the Collateral not fully covered by insurance, any theft, loss, injury or
similar incident involving the Collateral, and any other material matter
adversely affecting Grantor or the Collateral. Grantor shall furnish such
other reports, information and data regarding Grantor's financial condition and
operations ' the Collateral and such other matters as Lender may request from
time to time.
8. Landlord's Waivers. Grantor shall furnish to Lender, if
requested, a landlord's waiver of all liens with respect to any Collateral
covered by this Agreement that is or may be located upon leased premises, such
landlord' s waivers to be in such form and upon such terms as are acceptable to
Lender.
9. Additional Filings. Grantor agrees to execute and deliver
such financing statement or statements, or amendments thereof or supplements
thereto, or other documents as Lender may from time to time require in order to
comply with the Texas Uniform Commercial Code (or other applicable state law of
the jurisdiction where any of the Collateral is located) and to preserve and
protect the Lender's rights to the Collateral.
10. Protection of Collateral. Lender, at its option, whether
before or after default, but without any obligation whatsoever to do so, may
upon notice to Borrower (to the extent practicable) (a) discharge taxes,
claims, charges, liens, security interests, assessments or other encumbrances
of any and every nature whatsoever at any time levied, placed upon or asserted
against the Collateral, (b) place and pay for insurance on the Collateral,
including insurance that only protects Lender's interest, to the extent
insurance is required to be maintained hereunder or in any other Loan Document,
(c) pay the actual, necessary and reasonable costs of the repair, improvement,
testing, maintenance and preservation of the Collateral, (d) pay any filing,
recording, registration, licensing or certification fees or other fees and
charges related to the Collateral, or (e) take any other action to preserve and
protect the Collateral and Lender's rights and remedies under this Agreement as
Lender may reasonably deem necessary or appropriate. Grantor agrees that
Lender shall have no duty or obligation whatsoever to take any of the foregoing
action. Grantor agrees to promptly reimburse Lender upon demand for any
payment made or any expense incurred by the Lender pursuant to this
authorization. These payments and expenditures, together with interest thereon
from date incurred until paid by Grantor at the maximum contract rate allowed
under applicable laws, which Grantor agrees to pay, shall constitute additional
Obligations and shall be secured by and entitled to the benefits of this
Agreement.
11. Inspection. Grantor shall at all reasonable times allow
Lender by or through any of its officers, agents, attorneys or accountants, to
examine the Collateral, wherever located, and to examine and make extracts from
Grantor's books and records.
12. Further Assurances. Grantor shall do, make, procure, execute
and deliver all such additional and further acts, things, deeds, interests and
assurances as Lender may reasonably require from time to time to protect,
assure and enforce Lender's rights and remedies.
13. Insurance. Grantor shall have and maintain insurance at all
time with respect to all tangible Collateral insuring against risks of fire
(including so-called extended coverage), theft
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and other risks as Lender may reasonably require, containing such terms, in
such form and amounts and written by such companies as may be reasonably
satisfactory to Lender, all of such insurance to contain, if requested by
Lender, loss payable clauses in favor of Lender as its interest may appear.
All policies of insurance shall provide for fifteen (15) days, written minimum
cancellation notice to Lender and at the request of Lender shall be delivered
to and held by it. Lender is hereby authorized to act as attorney for Grantor
in obtaining, adjusting, settling and canceling such insurance and endorsing
any drafts or instruments. Lender shall be authorized to apply the proceeds
from any insurance to the Obligations secured hereby whether or not such
obligations are then due and payable. Grantor specifically authorizes Lender
to disclose information from the policies of insurance to prospective insurers
regarding the Collateral. In lieu of the foregoing Grantor may self-insure to
the extent permitted under the Loan Documents.
F. EVENTS OF DEFAULT. The occurrence or continuance of an "Event of
Default" within the meaning of the Loan Agreement shall constitute an "Event of
Default" under this Agreement.
G. REMEDIES. Upon the occurrence of an Event of Default, Lender, at its
option, shall be entitled to exercise any one or more of the following remedies
(all of which are cumulative):
1. Declare Obligations Due. Lender, at its option, may declare
the obligations or any part thereof immediately due and payable, without
demand, notice of intention to accelerate, notice of acceleration, notice of
nonpayment, presentment, protest, notice of dishonor, or any other notice
whatsoever, all of which are hereby waived by Grantor and any maker, endorser,
guarantor, surety or other party liable in any capacity for any of the
obligations.
2. Remedies. Lender shall have all of the rights and remedies
provided for in this Agreement and in any other agreements executed by Grantor,
the rights and remedies in the Uniform Commercial Code of Texas, and any and
all of the rights and remedies at law and equity, all of which shall be deemed
cumulative. Without limiting the foregoing, Grantor agrees that Lender shall
have the right to (a) require Grantor to assemble the Collateral and make it
available to Lender at a place designated by Lender that is reasonably
convenient to both parties, which Grantor agrees to do; (b) take possession of
the Collateral, with or without process of law, and, in this connection, enter
any premises where the Collateral is located to remove same, to render it
unusable, or to dispose of same on such premises; (c) sell, lease or otherwise
dispose of the Collateral, by public or private proceedings, for cash or
credit, without assumption of credit risk; and/or (d) whether before of after
default, collect and receipt for, compound, compromise, and settle, and give
releases, discharges and acquaintances with respect to, any and all amounts
owned by any person or entity with respect to the Collateral. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, Lender will send Grantor
reasonable notice of the time and place of any public sale or of the time after
which any private sale or other disposition will be made. Any requirement of
reasonable notice to Grantor shall be met if such notice is mailed, postage
prepaid, to Grantor at the address of Grantor designated at the beginning of
this Agreement, at least five (5) days before the day of any public sale or at
least five (5) days before the time after which any private sale or other
disposition will be made.
3. Expenses. Grantor shall be liable for and agrees to pay the
reasonable expenses
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incurred by Lender in enforcing its rights and remedies, in retaking, holding,
testing, repairing, improving, selling, leasing or disposing of the Collateral,
or like expenses, including, without limitation, attorneys' fees and legal
expenses incurred by Lender. These expenses, together with interest thereon
from the date incurred until paid by Grantor at the maximum contract rate
allowed under applicable laws, which Grantor agrees to pay, shall constitute
additional Obligations and shall be secured by and entitled to the benefits of
this Agreement.
4. Proceeds; Surplus; Deficiencies. Proceeds received by Lender
from disposition of the Collateral shall be applied toward Lender's expenses
and other Obligations in such order or manner as Lender may elect. Grantor
shall be entitled to any surplus if one results after lawful application of the
proceeds. Grantor shall remain liable for any deficiency.
5. Remedies Cumulative. The rights and remedies of Lender are
cumulative and the exercise of any one or more of the rights or remedies shall
not be deemed an election of rights or remedies or a waiver of any other right
or remedy. Lender may remedy any default and may waive any default without
waiving the default remedied or without waiving any other prior or subsequent
default.
H. OTHER AGREEMENTS.
1. Savings Clause. Notwithstanding any provision to the contrary
herein, or in any of the documents evidencing the Obligations or otherwise
relating thereto, no such provision shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable usury
laws. If any such excessive interest is so provided for, then in such event
(i) the provisions of this paragraph shall govern and control, (ii) neither the
Grantor nor its successors or assigns or any other party liable for the payment
thereof, shall be obligated to pay the amount of such interest to the extent
that is in excess of the maximum amount permitted by law, (iii) any such excess
interest that may have been collected shall be, at the option of the holder of
the instrument evidencing the Obligations, either applied as a credit against
the then unpaid principal amount thereof or refunded to the maker thereof, and
(iv) the effective rate of interest shall be automatically reduced to the
maximum lawful rate under applicable usury laws as now or hereafter construed
by the courts having jurisdiction.
2. Waivers. Grantor and any maker, endorser, guarantor, surety
or other party liable in any capacity respecting the Obligations hereby waive
demand, notice of intention to accelerate, notice of acceleration, notice of
nonpayment, presentment, protest, notice of dishonor and any other similar
notice whatsoever, subject to Grantor's rights to notice and cure expressly
provided for in the Loan Agreement.
3. Severability. Any provision hereof found to be invalid by
courts having jurisdiction shall be invalid only with respect to such provision
(and then only to the extent necessary to avoid such invalidity). The
offending provision shall be modified to the maximum extent possible to confer
upon Lender the benefits intended thereby. Such provision as modified and the
remaining provisions hereof shall be construed and enforced to the same effect
as if such offending provision (or portion thereof) had not been contained
herein, to the maximum extent possible.
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4. Use of Copies. Any carbon, photographic or other reproduction
of any financing statement signed by Grantor is sufficient as a financing
statement for all purposes, including without limitation, filing in any state
as may be permitted by the provisions of the Uniform Commercial Code of such
state.
5. Relationship to Other Agreements. This Security Agreement and
the security interests (and pledges and assignments as applicable) herein
granted are in addition to (and not in substitution, notation or discharge of)
any and all prior or contemporaneous security agreements, security interests,
pledges, assignments, liens, rights, titles or other interests in favor of
Lender or assigned to Lender by others in connection with the Obligations. All
rights and remedies of Lender in all such agreements are cumulative, but in the
event of actual conflict in terms and conditions, the terms and conditions of
the latest security-, agreement shall govern and control. Grantor acknowledges
that it has had full opportunity to consult with an attorney of its own choice
regarding the nature, obligations and consequences of entering into each of the
Loan Documents and that it is not relying upon counsel for the Lender in this
regard. Grantor and the Lender have also entered into certain management
arrangements under which the Lender is providing certain management,
administrative and accounting services for the Grantor. The existence of such
management arrangements, including the exercise by Lender of rights and
remedies in that regard, may be deemed to constitute or give rise to certain
conflicts of interest. Grantor hereby irrevocably, knowingly and willingly
waives all such conflicts.
6. Notices. Any notice or demand given by Lender to Grantor in
connection with this Agreement, the Collateral or the Obligations shall be
deemed given and effective two days after deposited in the United States mail,
postage prepaid, addressed to Grantor at the address of Grantor designated at
the beginning of this Agreement. Actual notice to Grantor shall always be
effective no matter how given or received.
7. Headings and Gender. Paragraph headings in this Agreement are
for convenience only and shall be given no meaning or significance in
interpreting this Agreement. All words used herein shall be construed to be of
such gender or number as the circumstances require.
8. Amendments. Neither this Agreement nor any of its provisions
may be changed, amended, modified, waived or discharged orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, amendment, modification waiver or discharge is sought.
9. Continuing Agreement. The security interest (and pledges and
assignments as applicable) hereby granted and all of the terms and provisions
in this Agreement shall be deemed a continuing agreement, until such time as
all Obligations have been paid in full and all commitments of Lender to make
Advances under the Loan Agreement have been terminated, whereupon this
Agreement will terminate.
10. Binding Effect. The provisions of this Security Agreement
shall be binding upon the successors and assigns of Grantor and the rights,
powers and remedies of Lender hereunder shall inure to the benefit of the
successors and assigns of Lender.
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11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A J-JURISDICTION OTHER THAN THE STATE OF TEXAS.
EXECUTED this 1st day of April, 1996.
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JCW MEDICAL ASSOCIATES, P.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President
- GRANTOR -
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AMENDMENT ONE TO THE SECURITY AGREEMENT BY AND BETWEEN JCW MEDICAL ASSOCIATES,
P.A. AND DOCTORS PRACTICE MANAGEMENT, INC.
This Amendment One to the Security Agreement dated May 1, 1996 is agreed to by
JCW Medical Associates, P.A., referred to herein as ("Grantor") and Doctors
Practice Management, Inc. referred to herein as ("Lender").
In consideration of the mutual promises between Grantor and Lender, Article C
included in the Security Agreement dated May 1, 1996 between Grantor and Lender
is hereby amended and replaced in its entirety as follows:
Article C All Accounts.
A security interest in all accounts include all bank accounts all accounts
receivable and trade receivables now owned or existing as well as any and all
that may hereafter arise or be acquired by Grantor, and all the proceeds and
products thereof, including without limitation, all notes, drafts, acceptances,
instruments and chattel paper arise there from, and all returned or repossessed
goods arising from or relating to any such accounts, or other proceeds of any
sale or other disposition of inventory.
In consideration of the mutual promises between Grantor and Lender, the
following sentence is added to Article H as item 12 in the Security Agreement
dated May 1, 1996 between Grantor and Lender is hereby added.
Article H.12 Personal Guarantee
Grantor is personally liable for the $675,000 loan advanced under the REVOLVING
CREDIT NOTE dated April 1, 1996 between JCW Medical Associates, P.A. ("Maker")
and Doctors Practice Management, Inc. ("Payee") and all monies advanced under
the CREDIT AGREEMENT dated May 1, 1996 between JCW Medical Associates, P.A.
("Borrower") and Doctors Practice Management, Inc. ("Lender")
Such Amendment One to the Security Agreement shall be effective as of May 1,
1996.
DOCTOR:
JCW MEDICAL ASSOCIATES, P.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
COMPANY:
DOCTORS PRACTICE MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, Vice President
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