LOAN AGREEMENT
This Loan Agreement (this "Agreement") is entered into as of the 1 day of
April, 2000, by and between Prime Medical Services, Inc., a Delaware corporation
and New York Laser Management, L.L.C., a Delaware limited liability company.
Definitions:
EFFECTIVE DATE: April 1, 2000
BORROWER: New York Laser Management, L.L.C.,
a Delaware limited liability company
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LENDER: Prime Medical Services, Inc.,
a Delaware corporation
LENDER'S ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
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NOTES:
Acquisition Line Notes: Promissory Notes in the aggregate maximum
original principal amount not to exceed $10,000,000 (the "Acquisition
Line Maximum Principal Amount"), executed by Borrower and payable to
the order of Lender as provided therein (the "Acquisition Line Notes"
or "Notes").
SECURITY AGREEMENTS: All documents, agreements and instruments hereinafter or
herewith executed by Borrower, ▇▇▇ ▇▇▇▇▇▇, M.D., P.C., a New York professional
corporation ("Moadel PC"), ▇▇▇ ▇▇▇▇▇▇, M.D. ("Moadel"), or any Target Location
securing this Agreement or the obligations under any of the Notes.
LOAN DOCUMENTS: This Agreement, the Acquisition Line Notes, the Security
Agreements, and all other documents, agreements, and instruments now or
hereafter existing, evidencing, securing, or otherwise relating to this
Agreement and any transactions contemplated by this Agreement, as any of the
foregoing items may be modified or supplemented from time to time.
INDEBTEDNESS: All present and future indebtedness, obligations and liabilities
of Borrower to Lender, all present and future indebtedness, obligations and
liabilities of any Target Location to Lender, and all renewals, extensions and
modifications of either of the foregoing, arising pursuant to any of the Loan
Documents and all interest accruing thereon, and all other fees, costs,
expenses, charges and attorneys' fees payable, and covenants performable, under
any of the Loan Documents (including without limitation this Agreement).
DEFINED TERMS: Terms not otherwise defined herein shall have the meaning
provided in that certain Contribution Agreement dated effective April 1, 2000,
by and among Lender, Prime RVC, Inc., a Delaware corporation ("Prime"), Moadel
PC, Borrower, and Moadel (the "Contribution Agreement"). For the purposes hereof
the terms "Target Locations" and "Target Location" shall have the meaning set
forth in the Contribution Agreement, but shall include, upon the acquisition of
a Target Location by Borrower or any subsidiary or affiliate of Borrower, the
subsidiary or affiliate utilized to make such acquisition.
AGREEMENT:
Borrower has requested from Lender the credit accommodations described
below, and Lender has agreed to provide such credit accommodations on the terms
and conditions contained herein. Therefore, for good and valuable consideration,
the receipt and sufficiency of which Lender and Borrower acknowledge, Lender and
Borrower hereby agree as follows:
ARTICLE I
THE ACQUISITION LINE LOANS
1.1 The Acquisition Line. Subject to the terms of the Contribution
Agreement and the terms, conditions, representations and warranties hereinafter
set forth, Lender agrees to lend Borrower from time to time, the amounts
necessary to acquire or develop Target Locations, in an aggregate amount not to
exceed the Acquisition Line Maximum Principal Amount (collectively, the
"Acquisition Line Loans").
1.2 Acquisition Line Loans. Each Acquisition Line Loan will finance up
to 100% of the purchase price (or acquisition cost) of a Target Location being
acquired (or developed) by Borrower. The parties acknowledge that the grant of
any Acquisition Line Loan does not create any obligation on the part of Lender
to extend further Acquisition Line Loans. Additionally, each Acquisition Line
Loan is subject in all respects to Lender obtaining prior written approval from
the bank syndication under its or its parent company's outstanding borrowing
facilities and the execution and delivery of such guarantees by Borrower as may
be required by such bank syndication. Pursuant to the Contribution Agreement,
each Acquisition Line Loan must be (a) evidenced by a separate Acquisition Line
Note executed by Borrower, (b) secured by all of Moadel's ownership interest in
Borrower as evidenced by an Assignment and Security Agreement executed by
Moadel, and (c) accompanied by Assignment and Security Agreements executed by
Borrower. In addition, if Borrower is acquiring, directly or indirectly, a one
hundred percent (100%) interest in a Target Location (hereinafter referred to as
a "100% Target Location"), Borrower shall cause such Target Location to execute
a security agreement, acceptable in form and substance to Lender, granting to
Lender or one of Lender's subsidiaries the highest available priority security
interest in all of the assets of such Target Location.
1.3 Interest and Repayment. Borrower and Target Location shall pay the
unpaid principal amount under each Acquisition Line Note in accordance with the
terms of this Section 1.3 and the respective Acquisition Line Note. Payments of
interest and principal on each Acquisition Line Note shall be due and payable
quarterly over a seven (7) year term. Under no circumstances shall any
Acquisition Line Note bear interest at a rate less than fifteen percent (15%).
ARTICLE II
CONDITIONS PRECEDENT TO ACQUISITION LINE LOANS
In addition to the conditions precedent stated elsewhere herein, Lender
shall not be obligated to make any Acquisition Line Loan unless:
(a) the representations and warranties contained in Article
III are true and correct in all material respects on and as of the date
of such Acquisition Line Loan, as though made on and as of such date
with such changes therein;
(b) on the date of the Acquisition Line Loan, no Event of
Default, and no event which, with the lapse of time or notice or both,
could become an Event of Default, has occurred and is continuing;
(c) there shall have been no material adverse change, as
determined by Lender in its reasonable judgment, in the financial
condition or business of Borrower;
(d) there has been no breach or threatened breach by Borrower
under the Contribution Agreement or any other Transaction Document (as
such term is defined in the Contribution Agreement);
(e) Borrower executes the respective Acquisition Line Note and Borrower
executes an Assignment and Security Agreement in the form attached as
Exhibit D4 to the Contribution Agreement, and otherwise in form and
substance acceptable to Lender wherein Lender is granted a first lien
perfected security interest in all of Borrower's or Borrower's
subsidiaries' ownership interest in the Target Location and related
acquisition documents;
(f) Moadel shall have previously granted to Lender a first lien perfected
security interest in all of Moadel's ownership interest in Borrower
through the execution and delivery of the Assignment and Security
Agreement in the form attached as Exhibit D2 to the Contribution
Agreement and Moadel shall be in compliance with all of its obligations
thereunder;
(g) if Borrower is using a Acquisition Line Loan to acquire,
directly or indirectly, a 100% Target Location, Borrower shall cause
such Target Location to execute a security agreement, acceptable in
form and substance to Lender, granting to Lender or one of Lender's
subsidiaries the highest available priority security interest in all of
the assets of such Target Location; and
(h) Lender shall have received such other approvals, opinions,
documents, certificates or evidences as Lender may reasonably request
(in form and substance reasonably satisfactory to Lender). Each request
for a Acquisition Line Loan shall be deemed a representation by
Borrower that the conditions of this Section 2 have been met.
ARTICLE III
BORROWER'S REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
3.1 Good Standing. Borrower is a duly formed limited liability company,
duly organized and in good standing, under the laws of Delaware and has the
power to own its property and to carry on its business in each jurisdiction in
which Borrower operates.
3.2 Authority and Compliance. Borrower has full power and authority to
enter into this Agreement, to make the borrowing hereunder, to execute and
deliver the Loan Documents and to incur the indebtedness described in this
Agreement, all of which has been duly authorized by all proper and necessary
action of its managers and members. No further consent or approval of any public
authority is required as a condition to the validity of any Loan Document, and
Borrower is in compliance with all laws and regulatory requirements to which it
is subject.
3.3 Binding Agreement. This Agreement and other Loan Documents when
issued and delivered pursuant hereto for value received will constitute, valid
and legally binding obligations of Borrower in accordance with their terms.
3.4 Litigation. There are no proceedings pending or, to the knowledge
of Borrower, threatened before any court or administrative agency which will or
may have a material adverse effect on the financial condition or operations of
Borrower or any subsidiary, except as disclosed to Lender in writing prior to
the date of this Agreement. To the knowledge of Borrower, there are no
proceedings pending or threatened against any Target Location.
3.5 No Conflicting Agreements. There are no provisions of Borrower's
organizational documents and no provisions of any existing agreement, mortgage,
indenture or contract binding on Borrower or affecting its property, which would
conflict with or in any way prevent the execution, delivery, or carrying out of
the terms of the Loan Documents.
3.6 Ownership of Assets. Borrower will at all times maintain its
tangible property, real and personal, in good order and repair taking into
consideration reasonable wear and tear.
3.7 Taxes. All income taxes and other taxes due and payable through the
date of this Agreement have been paid prior to becoming delinquent.
ARTICLE IV
BORROWER'S AFFIRMATIVE COVENANTS
So long as Borrower may borrow under this Agreement and until payment
in full of all Acquisition Line Notes, and performance of all other obligations
of Borrower and Target Locations hereunder or thereunder, Borrower covenants and
agrees to do the following:
4.1 Financial Statements.
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(a) Maintain, and cause each Target Location to maintain, a
system of accounting satisfactory to Lender and in accordance with
generally accepted accounting principles consistently applied, and will
permit Lender's officers or authorized representatives to visit and
inspect Borrower's or Target Location's books of account and other
records at such reasonable times and as often as Lender may desire
during office hours and after reasonable notice to Borrower, and pay
the reasonable fees and disbursements of any accountants or other
agents of Lender selected by Lender for the foregoing purposes. Unless
written notice of another location is given to Lender, Borrower's books
and records will be located at Borrower's Address.
(b) Furnish to Lender year end financial statements, of
Borrower and each Target Location, to include balance sheet, operating
statement and surplus reconciliation, together with an officer's
certificate of compliance with this Agreement including computations of
all quantitative covenants, within 90 days after the end of each annual
accounting period.
(c) Furnish to Lender quarterly financial statements, of
Borrower and each Target Location, to include balance sheet and profit
and loss statement, together with an officer's certificate of
compliance with this Agreement including computations of all
quantitative covenants, within 45 days of the end of each such
accounting period.
(d) With each balance sheet delivered under subsections (b) or
(c) of this Section 4.1, an aging of all Accounts Receivable.
(e) Promptly provide Lender with such additional information,
reports or statements respecting the business operations and financial
condition of Borrower or any Target Location, as Lender may reasonably
request from time to time.
4.2 Insurance. Maintain, and cause each Target Location to maintain,
insurance with responsible insurance companies on such of its respective
properties, in such amounts and against such risks as is customarily maintained
by similar businesses operating in the same vicinity, specifically to include a
policy of fire and extended coverage insurance covering all assets, and
liability insurance, all to be with such companies and in such amounts
satisfactory to Lender and to contain a mortgage clause naming Lender as its
interest may appear. Evidence of such insurance will be supplied to Lender.
4.3 Existence and Compliance. Maintain, and cause each Target Location
to maintain, its organizational existence in good standing and comply with all
laws, regulations and governmental requirements applicable to it or to any of
its property, business operations and transactions. Borrower further agrees to
provide Lender with copies of all instruments filed with the Delaware Secretary
of State amending and/or renewing Borrower's certificate of formation.
4.4 Adverse Conditions or Events. Promptly advise Lender in writing of
any condition, event or act which comes to its attention that would or might
materially affect Borrower's or any Target Location's financial condition,
Lender's rights under this Agreement or any of the Loan Documents, and of any
litigation filed against Borrower or to its knowledge against any Target
Location.
4.5 Taxes. Pay all taxes as they become due and payable.
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4.6 Maintenance. Maintain, and cause each Target Location to maintain,
all of its respective tangible property in good condition and repair, reasonable
wear and tear excepted, and make all necessary replacements thereof, and
preserve and maintain all licenses, privileges, franchises, certificates and the
like necessary for the operation of its business.
4.7 Application of Earnings. Except as expressly contemplated in the
Contribution Agreement, pay all available funds toward repayment of any
Acquisition Line Notes, regardless of whether payment of such amounts exceeds
the minimum required payments under the Acquisition Line Notes.
ARTICLE V
BORROWER'S NEGATIVE COVENANTS
So long as Borrower may borrow under this Agreement and until payment
in full of all Acquisition Line Notes, and performance of all other obligations
of Borrower or Target Location hereunder or thereunder, Borrower will not, and
will cause each of the Target Locations to not, without the prior written
consent of Lender:
5.1 Transfer of Assets. Enter into any merger or consolidation, or
sell, lease, assign, or otherwise dispose of or transfer any assets except in
the normal course of its business.
5.2 Change in Ownership or Structure. Dissolve or liquidate; become a
party to any merger or consolidation; reorganize as a professional corporation;
acquire by purchase, lease or otherwise all or substantially all of the assets
or capital stock of any corporation or other entity; or sell, transfer, lease,
or otherwise dispose of all or any substantial part of its respective property
or assets or business.
5.3 Liens. From and after the date hereof grant, suffer, or permit
liens on or security interests in its respective assets, or fail to promptly pay
all lawful claims, whether for labor, materials, or otherwise, except for
purchase money security interests arising in the ordinary course of its
respective business.
5.4 Loans. Make any loans, advances or investments to or in any joint
venture, corporation or other entity, except for the purchase of obligations of
Lender or U.S. Government obligations or the purchase of federally-insured
certificates of deposit.
5.5 Borrowings. Except for borrowing or incurring open accounts payable
to unaffiliated third parties in the ordinary course of business, create, incur,
assume, or liable in any manner for any indebtedness (for borrowed money,
deferred payment for the purchase of assets, lease payments, as surety or
guarantor of the debt of another, or otherwise) other than to Lender in excess
of $10,000 without Lender's prior written consent.
5.6 Violate Other Covenants. Violate or fail to comply with any
covenants or agreements regarding other debt which will or would with the
passage of time or upon demand cause the maturity of any other debt to be
accelerated.
5.7 Equity Redemptions or Restructurings. Apply any of its property or
assets to the purchase, retirement or redemption of any of its equity interests
or in any way amend its capital structure.
5.8 Character of Business. Change the general character of business as
conducted at the date hereof, or engage in any type of business not reasonably
related to its business as presently and normally conducted.
ARTICLE VI
EVENTS OF DEFAULT; NOTICE; ACCELERATION
6.1 Events of Default. If one or more of the following events of
default shall occur and continue after thirty (30) days' written notice to
Borrower, all outstanding principal plus unpaid interest of each Acquisition
Line Note, and any other indebtedness of Borrower to Lender, shall automatically
be due and payable immediately and Lender shall have no further obligation to
fund under this Agreement.
(a) There shall be any breach or default shall be made in the
payment of any installment of principal or interest upon any
Acquisition Line Note, when due and payable, whether at maturity or
otherwise; or
(b) There shall be any breach or default (other than by Lender
or Prime) under any Loan Document, the Contribution Agreement, or any
other Transaction Document, or any other certificate, agreement or
document contemplated hereby or thereby; or
(c) Any representation or warranty of Borrower contained
herein or in any financial statement, certificate, report or opinion
submitted to Lender in connection with any Acquisition Line Loan, or by
Borrower pursuant to the requirements of this Agreement, shall prove to
have been incorrect or misleading in any material respect when made; or
(d) Any judgment against Borrower or any attachment or other
levy against the property of Borrower with respect to a claim
materially affecting Borrower's financial status remains unpaid,
unstayed on appeal, undischarged, not bonded or not dismissed for a
period of thirty (30) days; or
(e) The bankruptcy, death, or dissolution of any guarantor of the
Indebtedness; or
(f) Borrower makes an assignment for the benefit of creditors,
admits in writing its inability to pay its debts generally as they
become due, files a petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions or applies to any tribunal for any receiver or any
trustee of Borrower or any substantial part of their respective
property, commences any action relating to Borrower under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there is commenced against Borrower any such
action, or Borrower by any act indicates its consent to or approval of
any trustee for Borrower or any substantial part of its property, or
suffers any such receivership or trustee to continue undischarged.
6.2 Lender's Remedies. Upon the occurrence of an Event of Default,
Lender, without notice of any kind, except for any notice required under this
Agreement or any other Loan Document, may, at Lender's option: (i) terminate its
obligation to fund any Acquisition Line Loan hereunder; (ii) declare the
Indebtedness, in whole or in part, immediately due and payable; and/or (iii)
exercise any other rights and remedies available to Lender under this Agreement,
any other Loan Document, or applicable laws; except that upon the occurrence of
an Event of Default described in subsection 6.1(f), all the Indebtedness shall
automatically be immediately due and payable, and Lender's obligation to fund
any Acquisition Line Loan hereunder shall automatically terminate, without
notice of any kind (including without limitation notice of intent to accelerate
and notice of acceleration) to Borrower or to any Target Location, guarantor, or
to any surety or endorser of any of the Notes, or to any other person. Borrower,
each Target Location, and each guarantor, surety, and endorser of any of the
Notes, and any and all other parties liable for the Indebtedness or any part
thereof, waive demand, notice of intent to demand, presentment for payment,
notice of nonpayment, protest, notice of protest, grace, notice of dishonor,
notice of intent to accelerate maturity, notice of acceleration of maturity, and
diligence in collection.
6.3 Right of Set-Off. Borrower hereby authorizes Lender, to the maximum
extent permitted under and in accordance with applicable laws, at any time after
the occurrence of an Event of Default which continues uncured, to set-off and
apply any and all deposits, funds or assets at any time held and any and all
other indebtedness at any time owing by Lender to or for the credit or the
account of Borrower against any and all Indebtedness, whether or not Lender
exercises any other right or remedy hereunder and whether or not such
Indebtedness are then matured.
ARTICLE VII
GENERAL TERMS AND CONDITIONS
7.1 Notices. All notices, demands, requests, approvals and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given when (a) presented personally, or (b) three (3) days
after deposited in a regularly maintained mail receptacle of the United States
Postal Service, postage prepaid, certified, return receipt requested, or (c)
upon receipt of confirmation after sending by facsimile transmission, addressed
to Borrower or Lender, as the case may be, at the respective addresses or
facsimile number for notice set forth on the first page of this Agreement, or
such other address or facsimile number as Borrower or Lender may from time to
time designate by written notice to the other.
7.2 Entire Agreement and Modifications. The Loan Documents, together
with the Contribution Agreement and any other Transaction Documents, constitute
the entire understanding and agreement between the undersigned with respect to
the transactions arising in connection with the Acquisition Line Loans, and
supersede all prior written or oral understandings and agreements between the
undersigned in connection therewith. No provision of this Agreement or the other
Loan Documents may be modified, waived, or terminated except by instrument in
writing executed by the party against whom a modification, waiver, or
termination is sought to be enforced, and, in the case of Lender, executed by a
Vice President or higher level officer of Lender.
7.3 Severability. In case any of the provisions of this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable, such
invalidity, illegality, or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
7.4 Cumulative Rights and No Waiver. Lender shall have all of the
rights and remedies granted in the Loan Documents and available at law or in
equity, and these same rights and remedies shall be cumulative and may be
pursued separately, successively, or concurrently against Borrower, at the sole
discretion of Lender. Lender's delay in exercising any right shall not operate
as a waiver thereof, nor shall any single or partial exercise by Lender of any
right preclude any other or future exercise thereof or the exercise of any other
right. Any of Borrower's covenants and agreements may be waived by Lender but
only in writing signed by an authorized officer of Vice President level or
higher of Lender or any subsequent owner or holder of any of the Notes. Except
as otherwise expressly provided in this Agreement and in any Note, Borrower
expressly waives any presentment, demand, protest, notice of default, notice of
intent to accelerate, notice of acceleration, notice of intent to demand
payment, or other notice of any kind. No notice to or demand on Borrower in any
case shall, of itself, entitle Borrower to any other or further notice or demand
in similar or other circumstances. No delay or omission by Lender in exercising
any power or right hereunder shall impair any such right or power or be
construed as a waiver thereof, or the exercise of any other right or power
hereunder.
7.5 Form and Substance. All documents, certificates, insurance
policies, and other items required under this Agreement to be executed and/or
delivered to Lender shall be in form and substance reasonably satisfactory to
Lender.
7.6 Limitation on Interest: Maximum Rate. Lender and Borrower intend to
contract in strict compliance with applicable usury law from time to time in
effect. To effectuate this intention, Lender and Borrower stipulate and agree
that none of the terms and provisions of any Note and any other agreement among
such parties, whether now existing or arising hereafter, shall ever be construed
as a contract to pay interest for the use, forbearance or detention of money in
excess of the Maximum Rate. If, from any possible construction of any document,
interest would otherwise be payable to Lender in excess of the Maximum Rate, any
such construction shall be subject to the provisions of this Section and such
document shall be automatically reformed and the interest payable to Lender
shall be automatically reduced to the Maximum Rate permitted under applicable
law, without the necessity of the execution of any amendment or new document.
Neither Borrower, endorsers or other persons now or hereafter becoming liable
for payment of any portion of the principal or interest of any Note shall ever
be liable for any unearned interest on the principal amount or shall ever be
required to pay interest thereon in excess of the Maximum Rate that may be
lawfully charged under applicable law from time to time in effect. Lender and
any subsequent holder of any Note expressly disavow any intention to charge or
collect unearned or excessive interest or finance charges in the event the
maturity of any Note, is accelerated. If the maturity of any Note is accelerated
for any reason, whether as a result of a default under any Note, or by voluntary
prepayment, or otherwise, any amounts constituting interest, or adjudicated as
constituting interest, which are then unearned and have previously been
collected by Lender or any subsequent holder of any Note shall be applied to
reduce the principal balance thereof then outstanding, or if such amounts exceed
the unpaid balance of principal, the excess shall be refunded to Borrower (and
Target Location, as applicable). In the event Lender or any subsequent holder of
any Note ever receives, collects or applies as interest any amounts constituting
interest or adjudicated as constituting interest which would otherwise increase
the interest to an amount in excess of the amount permitted under applicable
law, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of such Note, and, if the principal
balances of such Note is paid in full, any remaining excess shall be paid to
Borrower (and Target Location, as applicable). In determining whether or not the
interest paid or payable under the specific contingencies exceeds the Maximum
Rate allowed by applicable law, Borrower and Lender shall, to the maximum extent
permitted under applicable law, (i) characterize any non-principal payment as an
expense, fee or premium, rather than as interest; (ii) exclude voluntary
prepayments and the effect thereof; (iii) amortize, prorate, allocate and
spread, in equal parts, the total amount of interest throughout the entire
contemplated term of the applicable Note (as it may be renewed and extended) so
that the interest rate is uniform throughout the entire term of such Note. The
terms and provisions of this section shall control and supersede every other
provision of all existing and future agreements between Lender and Borrower (and
Target Location, as applicable). As used in this Agreement, "Maximum Rate" means
the maximum non-usurious interest rate that at any time or from time to time may
be contracted for, taken, reserved, charged or received on the unpaid principal
or accrued past due interest under applicable law and may be greater than the
applicable rate, the parties hereby stipulating and agreeing that Lender may
contract for, take, reserve, charge or receive interest up to the Maximum Rate
without penalty under any applicable law; and "applicable law" means the laws of
the State of Texas or the laws of the United States of America, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future. In the event applicable law provides for an
interest ceiling under Chapter One of Title 79, Texas Revised Civil Statutes
Annotated, as amended, that ceiling shall be the indicated rate ceiling, subject
to any right Lender may have in the future to change the method of determining
the Maximum Rate.
7.7 Third Party Beneficiary. Borrower acknowledges that the bank
syndication under the senior credit facility of Prime Medical Services, Inc. (as
hereinafter supplemented, modified, or replaced) is a third party beneficiary to
this Agreement. Except for the preceding sentence, this Agreement is for the
sole benefit of Lender and Borrower and is not for the benefit of any third
party.
7.8 Borrower In Control. In no event shall Lender's rights and
interests under the Loan Documents be construed to give Lender the right to, or
be deemed to indicate that Lender is in control of the business, management or
properties of Borrower or any Target Location or has power over the daily
management functions and operating decisions made by Borrower or any Target
Location.
7.9 Use of Financial and Other Information. Borrower agrees that Lender
shall be permitted to investigate and verify the accuracy of any and all
information furnished to Lender in connection with the Loan Documents, including
without limitation financial statements, and to disclose such information, or
provide copies of such information, to representatives appointed by Lender,
including independent accountants, agents, attorneys, asset investigators,
appraisers and any other persons deemed necessary by Lender to such
investigation.
7.10 Collateral Assignment of Loan Documents. Lender shall have the
right to collaterally assign all of its rights under this Agreement and the
other Loan Documents to the third party beneficiaries described in Section 7.7.
Lender shall have the right to disclose in confidence such financial information
regarding Borrower as may be necessary to complete any such assignment or
attempted assignment, including without limitation, all financial statements,
projections, internal memoranda, audits, reports, payment history, appraisals
and any and all other information and documentation in Lender's files relating
to Borrower. This authorization shall be irrevocable in favor of Lender, and
Borrower waives any claims against Lender or the party receiving information
from Lender regarding disclosure of information in Lender's files, and further
waive any alleged damages which may result from such disclosure. Borrower
acknowledges that Lender intends to make a collateral assignment of its rights
under this Agreement and the Loan Documents for the benefit of one or more of
its or its parent company's lenders and will not be authorized to amend or
modify this Agreement or the Loan Documents, or grant waivers of any of its
rights thereunder without the prior written consent of some or all of such
lenders.
7.11 Further Assurances. Borrower agrees to execute and deliver, and
cause each Target Location to execute and deliver, to Lender, promptly upon
request from Lender, such other and further documents as may be reasonably
necessary or appropriate to consummate the transactions contemplated herein.
7.12 Number and Gender. Whenever used herein, the singular number shall
include the plural and the plural the singular, and the use of any gender shall
be applicable to all genders. The duties, covenants, obligations, and warranties
of Borrower in this Agreement shall be joint and several obligations of Borrower
and of each Borrower if more than one.
7.13 Captions. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
7.14 Continuing Agreement. This is a continuing agreement and all
rights, powers, and remedies of Lender under this Agreement and the other Loan
Documents shall continue in full force and effect until each Note is paid in
full as the same becomes due and payable and all other Indebtedness is paid and
discharged, until Lender has no further obligation to advance moneys to Borrower
under this Agreement, and until Lender, upon request of Borrower, has executed a
written termination statement. Furthermore, the parties contemplate that there
may be times when no Indebtedness is owing, but notwithstanding such occurrence,
this Agreement (and all other Loan Documents) shall remain valid and shall be in
full force and effect as to subsequent Indebtedness and Advances, provided that
Lender has not executed a written termination statement.
7.15 Applicable Law. This Agreement and the Loan Documents shall be
governed by and construed in accordance with the laws of the State of Texas and
the laws of the United States applicable to transactions within such state.
7.16 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing any one counterpart.
7.17 NO ORAL AGREEMENTS. THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURE PAGE FOLLOWS]
S-1
SIGNATURE PAGE TO
LOAN AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed this consent as of the
date first above written.
BORROWER: New York Laser Management, L.L.C.
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▇▇▇ ▇▇▇▇▇▇, M.D., Manager
LENDER: Prime Medical Services, Inc.
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▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer