pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 1 of 57

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1 pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 1 of 57

2 pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 2 of 57

3 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION In re: FAIR FINANCE COMPANY, Debtor. BRIAN A. BASH, CHAPTER 7 TRUSTEE, Plaintiff, vs. DALE GUYER and LISA GUYER and ADVANCED MEDICAL CENTER, P.C. and FIVE STAR ACQUISITIONS, LLC, Defendants. Case No Chapter 7 Chief Judge Pat E. Morgenstern-Clarren Adv. Pro. No. COMPLAINT Plaintiff Brian A. Bash (the Trustee, the duly appointed Chapter 7 trustee for Fair Finance Company ( Fair Finance or the Debtor in the above-captioned case, hereby files this Complaint against defendants Dale Guyer, Lisa Guyer, Advanced Medical Center, P.C. ( Advanced Medical, and Five Star Acquisitions, LLC ( Five Star ; together with Dale Guyer, Lisa Guyer, and Advanced Medical, the Defendants. In support of the requested relief, the Trustee states as follows: pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 3 of 57

4 PRELIMINARY STATEMENT 1. This adversary proceeding arises from a large Ponzi scheme perpetrated through Fair Finance by Timothy Durham ( Durham and other individuals. As a result, Ohio residents who purchased Fair Finance investment certificates lost over $200 million. 2. Durham and other individuals funneled this money through Fair Finance s parent companies, Fair Holdings, Inc. ( Fair Holdings or FHI and DC Investments LLC ( DCI, and to other companies owned and controlled by Durham, including Obsidian Enterprises, Inc. ( Obsidian, Diamond Investments LLC ( Diamond and a number of officers and directors of those companies. 3. On June 20, 2012, a jury in the United States District Court for the Southern District of Indiana, case 1:11-cr JMS-KPF, found Timothy Durham guilty on ten counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire fraud and securities fraud. The same jury found James Cochran guilty on six counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire fraud and securities fraud. In addition, the jury found Rick Snow guilty on three counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire fraud and securities fraud. On November 30, 2012, Timothy Durham, James Cochran and Rick Snow were sentenced following their criminal convictions. Timothy Durham received a sentence of 50 years, James Cochran received a sentence of 25 years, and Rick Snow received a sentence of 10 years. 4. In the midst of Durham s fraudulent dealings involving Fair Finance and its related companies, he and his companies provided Advanced Medical a medical practice owned by Durham s good friend Dale Guyer with loans totaling hundreds of thousands of dollars. Upon information and belief, the parties subsequently agreed to indefinite extensions of the maturity dates of those loans, as evidenced by, among other things, correspondence among pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 4 of 57

5 the parties, Defendants partial repayment of the loans over nearly a decade, the absence of notices of default or other attempts to collect on the loans and the sworn testimony of Defendant Dale Guyer in a Rule 2004 examination conducted by the Trustee s counsel. 5. The Trustee has made repeated efforts to collect payment from Defendants on the loans. Such efforts have been unsuccessful. This action is brought to recover the principal and interest due on the loans for the benefit of the Debtor s estate, among other claims. JURISDICTION AND VENUE 6. This is an adversary proceeding commenced before the same Court in which the Fair Finance bankruptcy case, N.D. Bankr. Case No , is pending. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. 157(b and 1334 and Rule 7001 of the Federal Rules of Bankruptcy Procedure. 7. This matter is a core proceeding pursuant to 28 U.S.C. 157(b(2(A. 8. Venue in this Court is proper pursuant to 28 U.S.C PARTIES 9. Brian A. Bash is the duly appointed and acting Chapter 7 trustee for Fair Finance. 10. Upon information and belief, Defendant Dale Guyer is an Indiana resident, and a licensed medical doctor, with a business address of 836 East 86th Street, Indianapolis, IN Upon information and belief, Defendant Lisa Guyer is an Indiana resident currently residing at Pine Valley Court, Fishers, Indiana Upon information and belief, Defendant Advanced Medical Center, P.C. is an Indiana entity located at 836 East 86th Street, Indianapolis, Indiana Upon information and belief, Dale Guyer owns and operates Advanced Medical Center, P.C pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 5 of 57

6 13. Upon information and belief, Defendant Five Star Acquisitions, LLC is an Indiana company with a business address of 836 East 86th Street, Indianapolis, Indiana Upon information and belief, Dale Guyer is the sole member of Five Star Acquisitions, LLC. PROCEDURAL BACKGROUND 14. On February 8, 2010 (the Petition Date, creditor-investors (the Petitioning Creditors filed a petition for involuntary bankruptcy against the debtor in this case, Fair Finance. 15. On the Petition Date, the creditor-investors also filed an Emergency Motion to Appoint Interim Trustee (Dkt. No. 2 alleging that a trustee was needed to oversee the operations of the Debtor because (i the Debtor had failed to make timely payments on its debts, including failing to redeem matured certificates and failing to pay interest on unmatured certificates; (ii the Debtor and several affiliated companies had been raided by the Federal Bureau of Investigation in November of 2009; (iii the Debtor had not been open to the public since the raid; and (iv public records revealed that the Debtor had made unusually large loans to insiders. 16. On February 19, 2010, this Court entered an order directing the United States Trustee to appoint an interim trustee. 17. On February 24, 2010, the Debtor filed notice that it consented to the entry of an order for relief in the bankruptcy proceeding (Dkt. No On March 2, 2010, the Court entered an Order granting the relief sought by the Petitioning Creditors nunc pro tunc as of February 24, 2010 (Dkt. No On March 2, 2010, the United States Trustee filed the Notice of Appointment of Interim Chapter 7 Trustee nunc pro tunc effective February 24, 2010 (Dkt. No pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 6 of 57

7 BACKGROUND 20. The Debtor was founded in 1934 and operated by the Fair family until its purchase by Durham and Cochran in The Debtor was an Akron, Ohio-based factoring company that borrowed by issuing investment certificates to local individuals and used the proceeds to purchase accounts receivable. 21. After Durham and Cochran purchased Fair Finance in 2002, they shifted the company s primary business to making loans to Fair Holdings and DCI, the Debtor s parent and grand-parent organizations, respectively, which would then loan Fair Finance s funds to related parties such as Durham, Cochran, Diamond and many other failed or failing businesses owned or controlled by Durham. 22. Diamond, prior to its dissolution in April 2013, was an Indiana limited liability company wholly owned by Durham. While Durham ostensibly used Diamond to make investments and fund various business opportunities, Diamond was in fact one of the conduits through which Durham funneled money out of Fair Finance and into the hands of insiders, friends, and family. 23. As a result of the funneling of money away from Fair Finance, Diamond owes Fair Finance at least $9,369,733.00, and DCI owes Fair Finance at least $88,021, On June 13, 2010, DCI assigned to the Trustee all of its rights, title and interest in and to its property, including, among other things, all accounts and notes receivable (the DCI Assignment. A copy of the bill of sale memorializing the DCI Assignment is attached hereto as Exhibit A and incorporated herein by reference. On November 8, 2011, Diamond executed a Compromise and Assignment Agreement (the Diamond Assignment assigning all of Diamond s assets to the Trustee, including all claims, accounts, loans, loan documents and loan pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 7 of 57

8 obligations by any party in favor of Diamond. A copy of the bill of sale memorializing the Diamond Assignment is attached hereto as Exhibit B and incorporated herein by reference. THE LOANS TO DEFENDANTS 24. Upon information and belief, and according to the sworn testimony of Dale Guyer in a Rule 2004 examination conducted by counsel for the Trustee, Dale and Lisa Guyer met Durham in Dale Guyer and Durham subsequently became friends. 25. As Dale Guyer and Durham s friendship developed, Durham and his companies began providing financial support to Defendants. For instance, according to Dale Guyer, in or around 2004 Durham offered to assist Defendants in paying off certain of their loans. DCI subsequently purchased four promissory notes executed by Defendants in favor of National Bank of Indianapolis (the Bank Notes in order to lump [them] all together and take care of [them] in one fell swoop. Durham then assisted Defendants in selling the real property securing three of the Bank Notes, and DCI applied the sale proceeds to the balances owed by Defendants on the Bank Notes, with any residual balance owed as a debt to Tim [Durham] or one of his companies. 26. Upon information and belief, Durham or his companies also provided medical equipment to Advanced Medical with the understanding that Advanced Medical would pay for its use of the equipment at a later time. Dale Guyer described such transactions as handshake deal[s] which resulted in the equipment...show[ing] up at the office. 27. In addition, according to Dale Guyer, he and Durham discussed the possibility of Durham or his companies loaning some revenue to the office. According to Dale Guyer, Durham would from time to time review the books of Advanced Medical in order to determine whether the company needed money, arrange for a cash infusion to the practice, tell Dale Guyer that Advanced Medical could pay the money back at a later date, and then money would pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 8 of 57

9 appear. Dale Guyer further testified that he could not recall how much money Durham or his companies loaned to Advanced Medical, as [i]t would have been intermittent chunks without any linearity. In addition, Dale Guyer testified that he did not know from what source, if Tim [Durham] were providing a loan, what account or anything it might have originated from. 28. Dale Guyer further testified that Durham, either directly or through his companies, even loaned [him] money, and that he did not know how a check might have been written, if it was to Dale Guyer or AMC. It might have been just to [Dale Guyer]. 29. Upon information and belief, in addition to these infusions, Durham and his companies also made payments to various third parties on behalf of Advanced Medical and Dale Guyer, including accountants, banks, and other medical practices or vendors. 30. According to the books and records of Durham and his companies, from 2003 to 2008 Durham made infusions and third-party payments to or on behalf of Dale Guyer and Advanced Medical totaling at least $109, (the Durham Loan, DCI made infusions and third-party payments to or on behalf of Dale Guyer and Advanced Medical totaling at least $50, (the DCI Loan, and Diamond made infusions and third-party payments to or on behalf of Dale Guyer and Advanced Medical totaling at least $255, (the Diamond Loan ; together with the Durham Loan and the DCI Loan, the Loans. 31. On or about December 22, 2003, Diamond and Defendants executed a Line of Credit-Promissory Note in favor of Diamond for the original principal amount of $150, (the Note. A copy of the Note is attached to this Complaint as Exhibit C and incorporated herein by reference. Upon information and belief, and according to the books and records of Diamond, the Note memorialized the Diamond Loan described in Paragraph pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 9 of 57

10 32. On or about December 22, 2003, to secure repayment of the Note, Advanced Medical executed a security agreement (the Security Agreement pursuant to which it granted Diamond a security interest in the following collateral: [a]ll assets including but not limited to accounts, accounts receivable, equipment, negotiable instruments, and furniture and fixtures owned presently or in the future and any replacement or proceeds therefrom (collectively, the Collateral. A copy of the Security Agreement is attached to this Complaint as Exhibit D and incorporated herein by reference. 33. On or about December 23, 2003, Dale and Lisa Guyer executed a mortgage agreement (the Mortgage in favor of Diamond as further security on the Note. A copy of the Mortgage is attached to this Complaint as Exhibit E and incorporated herein by reference. 34. Upon information and belief, Defendants executed a First Amendment to Line of Credit-Promissory Note (the Amendment in A copy of the Amendment is attached to this Complaint as Exhibit F and incorporated herein by reference. Upon information and belief, the Amendment served to increase the amount available under the Note by $150,000.00, but did not otherwise change the terms and conditions contained in the Note. 35. At the time of execution of the Note, the unpaid principal balance and accrued, unpaid interest was due and payable on January 1, However, as discussed further below, and upon information and belief, the parties agreed to an indefinite extension of the Note s maturity date. 36. Under the Note, the unpaid principal balance bears interest at the per annum rate of three percent above the prime rate, with interest to be paid on the first day of each month until the maturity date. After the maturity date, the holder of the Note has the option to both increase pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 10 of 57

11 the interest rate on the outstanding amount to five percent above the prime rate and add any unpaid accrued interest to the principal. 37. Upon information and belief, Diamond never increased the interest rate on the outstanding amount to five percent above the prime rate or added unpaid accrued interest to the principal. 38. Under the Note, if any installment of interest due under the terms of the Note is not paid when due, then all principal and interest owed under the Note may be declared immediately due and payable. 39. Upon information and belief, Diamond never declared the Note immediately due and payable, and Diamond never declared a default under the Note. 40. Under the Note, Defendants agreed to pay all costs of collection including, but not limited to, reasonable attorney s fees in the event the Note is collected by or through an attorneyat-law, and expressly waived demand, presentment, and notice of nonpayment. 41. Under the Note, Defendants consented to renewals or extensions of time in which to repay the Note without notice. 42. Although to date no documents explicitly detailing the terms of the Durham Loan or the DCI Loan have been located, and neither Dale Guyer nor Advanced Medical were pressured by Durham, DCI or Diamond to make repayment by a date certain, Dale Guyer characterized the funds he received as loans to be repaid, and further testified that he thought it good to [repay the amounts], so that was kind of the ongoing arrangement we had. Upon information and belief, and according to Dale Guyer s testimony, the Durham Loan and the DCI Loan did not have a stated maturity date. As to the Note specifically, which might have been pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 11 of 57

12 for build-out expenses for the building, Dale Guyer testified that efforts were made to satisfy that loan, and that the Note did not sit[] around collecting dust. 43. Upon information and belief, subsequent to the execution of the Note memorializing the Diamond Loan, most or all of the balance owed on the Durham Loan was assigned to DCI, then subsequently assigned to Diamond and added to the balance owed on the Diamond Loan. In accordance with these assignments, the Trustee, as assignee of DCI and Diamond s assets via the bills of sale attached as Exhibits A and B, possesses the right to collect on the amounts owed on the Durham Loan. 44. In addition, upon information and belief, subsequent to the execution of the Note memorializing the Diamond Loan, most or all of the balance owed on the DCI Loan was assigned to Diamond and added to the balance owed on the Diamond Loan. The Trustee, as assignee of DCI and Diamond s assets via the bills of sale attached as Exhibits A and B, possesses the right to collect on the amounts owed on the DCI Loan. THE AGREEMENT TO EXTEND THE TIME IN WHICH TO REPAY THE LOANS 45. Upon information and belief, as of May 2008 more than 16 months after the stated maturity date in the Note Defendants had not yet repaid the amounts owed on the Loans. 46. According to the books and records of DCI, Diamond, and Durham, the only payments or credits on the Loans stemmed from DCI s apparent decision to credit $21, of the proceeds of the sale of real property securing the Bank Notes to the DCI Loan, the reduction of the balance on the Diamond Loan by $81, pursuant to Defendants sale of a parcel of land in Kentucky and subsequent payment of the proceeds to Diamond, and a payment or credit of $1, on the Diamond Loan in May Upon information and belief, in May 2008, Defendants sought to refinance the Loans, and requested a loan balance to determine the amount due and owing on the Loans pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 12 of 57

13 48. In response to Defendants query, Rick Snow stated that the Loans had a balance of $394, in principle and $40, in unpaid interest, and that [i]nterest is prime plus three, which was the non-default interest rate listed in the Note. 49. Upon being provided the amount outstanding, Lisa Guyer requested the loan detail, as Defendants numbers [were] dramatically different. Upon information and belief, Defendants subsequently received accounting spreadsheets detailing the amounts owed. 50. On June 30, 2008, Durham sent an to Dale and Lisa Guyer stating that he had examined the loan bal[ance] questions [and in] summary the balances are as follows: Advanced Medical: $394,057 principal...[and] $40,963 interest thr[ough] May During his Rule 2004 examination, Dale Guyer testified that, as of November 2009, money was still owed to Durham and his companies. 52. Upon information and belief, Dale Guyer and Advanced Medical made payments to Diamond totaling $53, between March 2008 and February 2011, and payments to Durham totaling $70,000 from March 2011 to May The payments referenced in Paragraph 52 were made months or years beyond the Note s original maturity date, and several years after the last of the payments provided to or on behalf of Guyer and Advanced Medical under the DCI Loan or the Durham Loan. 54. Upon information and belief, (i the contemporaneous communications detailed in preceding paragraphs regarding the amounts owed on the Loans, (ii Defendants payments months or years after the original maturity date stated in the Note, and years after the Loans were provided, (iii Diamond, Durham, and DCI s refusal to declare the Loans to be in default or declare the sums due under the Loans to be immediately due and payable, (iv Diamond, Durham, and DCI s decision not to charge default rates of interest on the sums owed under the pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 13 of 57

14 Loans, and (v Dale Guyer s testimony regarding the ongoing arrangement he had with Durham and his companies for the repayment of the Loans, together reflect that Durham, DCI, and Diamond agreed to provide Defendants with an indefinite period of time in which to repay the amounts owing under the Loans. THE AMOUNTS DUE AND OWING ON THE LOANS 55. In November and December of 2013, then again in March and April of 2014, the Trustee, as assignee of the Diamond Loan pursuant to the Diamond Assignment, demanded payment from Defendants of all of the amounts due and owing under the Loans. Defendants are in default of the Diamond Note by virtue of their failure to make the monthly interest payments required under the Note and by their failure to pay the amount due and owing under the Note upon demand by the Trustee. 56. Despite the Trustee s demands, Defendants continue to be in default under the terms of the Note, and such defaults are ongoing. 57. The entire outstanding principal balance of the Note, together with accrued interest, was due and payable, at the latest, upon the demand of the Trustee. 58. The principal and interest due and owing on the Note is at least $235,842.83, and interest continues to accrue at the default rate specified in the Note. 59. Upon information and belief, the amounts due and owing on the Durham Loan and DCI Loan are $39, and $50,410, respectively. COUNT I BREACH OF CONTRACT (DIAMOND LOAN 60. The Trustee restates the allegations of all preceding paragraphs as if fully set forth herein pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 14 of 57

15 61. Defendants have defaulted under the terms of the Note evidencing the Diamond Loan by, among other things, failing to make the monthly interest payments required under the terms of the Note. 62. In November and December of 2013, then again in March and April of 2014, the Trustee, as assignee of the Note pursuant to the Diamond Assignment, demanded payment from Defendants of all of the amounts due and owing under the Note. 63. Pursuant to the terms of the Note, Defendants were required to pay the entire outstanding principal balance of the Note, together with accrued interest, upon the demand of the Trustee. 64. Defendants have failed to repay all outstanding principal and accrued interest upon demand as required under the Note. 65. Pursuant to the terms of the Note, interest has accrued and continues to accrue on the unpaid principal balance at the default rate of five percent above the prime rate. 66. Pursuant to the terms of the Note, the Trustee is entitled to recover his costs of collection against Defendants, including reasonable attorney s fees. 67. There is due and owing on the Note at least $235, in outstanding principal and interest, plus interest accruing at the default rate of five percent above the prime rate as defined in the Note. 68. As a direct and proximate cause of Defendants breach of the Note, the Trustee is entitled to damages in an amount to be proven at trial, plus all reasonable attorney s fees and costs incurred by the Trustee to collect outstanding amounts pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 15 of 57

16 COUNT II ACTION ON ACCOUNT (DIAMOND LOAN 69. The Trustee restates the allegations of all preceding paragraphs as if fully set forth herein. 70. This claim is pled in the alternative to the extent that the amounts loaned to Advanced Medical under the Durham Loan or the DCI Loan are not included in the amount the Trustee seeks to recover on the Diamond Note via Count I of this Complaint, and to the extent that the loan to Advanced Medical from Diamond was made as part of an open account at Diamond for the benefit of Advanced Medical. 71. By virtue of the Diamond Assignment, the Trustee has a right to assert any causes of action that Diamond may have against Advanced Medical, including an action on any accounts held in favor of Diamond. 72. Upon information and belief, the books and records of Diamond reflect the existence of an open account between Diamond and Advanced Medical (the Diamond Account, to whom or on whose behalf payments from Diamond, DCI, and Durham were made. Attached hereto as Exhibit G is a copy of the portion of Diamond s books and records reflecting the Diamond Account with Advanced Medical. The amount listed on Exhibit G reflects the amounts added to the Diamond account via the assignment of the Durham Loan and the DCI Loan to Diamond. 73. Upon information and belief, and according to the books and records of Diamond, as of 2008 the amount owed by Advanced Medical on the Loans totaled $394, Upon information and belief, there was an agreement between Advanced Medical and Diamond on the balance due on the Diamond Account pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 16 of 57

17 75. Upon information and belief, Advanced Medical promised to pay Diamond the balance due on the Diamond Account. 76. Upon information and belief, the balance due from Advanced Medical on the Diamond Account remains unpaid. 77. Upon information and belief, Advanced Medical owes the Trustee as the assignee of all of Diamond s assets at least $394, on the Diamond Account, minus any applicable payments or credits. This balance is stated on the books and records of Diamond, a relevant portion of which is attached as Exhibit G, and upon information and belief this balance accurately reflects the amount due and owing to Diamond as of May COUNT III UNJUST ENRICHMENT (DIAMOND LOAN 78. The Trustee restates the allegations of all preceding paragraphs as if fully set forth herein. 79. This claim is pled in the alternative, to the extent that any amounts advanced by Diamond to or for the benefit of Advanced Medical were not made on account of the Diamond Note or Diamond Account. 80. By virtue of the Diamond Assignment, the Trustee has a right to assert any causes of action that Diamond may have against Advanced Medical, including an unjust enrichment claim. 81. Advanced Medical was aware that it received or benefited from the funds described in this Complaint. 82. Advanced Medical benefited from the receipt of those funds. As such, Diamond conferred a benefit on Advanced Medical, and Advanced Medical knew it was receiving the benefit from Diamond pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 17 of 57

18 83. It would be unjust for Advanced Medical to retain the benefit of Diamond s funds, and Advanced Medical would be unjustly enriched by retaining this benefit without compensating the Trustee as the assignee of all of Diamond s assets. 84. As a direct and proximate result of Advanced Medical s unjust enrichment, the Trustee has suffered damages in an amount to be proven at trial, but no less than the outstanding balance of funds provided by Diamond to or on behalf of Advanced Medical received from Diamond, plus interest, court costs and attorney s fees, and believed to be in excess of $255, herein. COUNT IV ACTION FOR BREACH OF CONTRACT NOT IN WRITING (DCI LOAN 85. The Trustee restates the allegations of all preceding paragraphs as if fully set forth 86. Upon information and belief, the DCI Loan was assigned to Diamond, and any amounts owed on the DCI Loan are now owed to Diamond. This claim is pled in the alternative, to the extent that any amounts advanced under the DCI Loan were not subsequently assigned to Diamond, and to the extent that the amounts loaned to Advanced Medical under the DCI Loan are not included in the amounts the Trustee seeks to recover via Counts I through III of this Complaint. 87. Upon information and belief, the books and records of DCI reflect the existence of a loan between DCI, Advanced Medical Center, and Dale Guyer. Attached hereto as Exhibit H is a true and accurate copy of the portion of those books and records reflecting the DCI Loan. 88. Upon information and belief, Advanced Medical and Dale Guyer received the proceeds from the DCI Loan as listed on Exhibit H pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 18 of 57

19 89. Under the DCI Loan, Advanced Medical and Dale Guyer agreed to repay to DCI the amounts borrowed from DCI. 90. Upon information and belief, there is no written contract or agreement signed by Advanced Medical or Dale Guyer memorializing or reflecting the DCI Loan or its terms. 91. The principal balance due and owing from Advanced Medical and Dale Guyer on the DCI Loan is at least $50,410.00, minus any applicable payments or credits, and interest has accrued and continues to accrue at the interest rate agreed between DCI, Advanced Medical, and Dale Guyer or supplied by applicable law. Upon information and belief, the principal amount owed by Advanced Medical and Dale Guyer to DCI may exceed $50,410.00, exclusive of interest or other charges, depending on the evidence adduced at trial related to transfers of funds between DCI, Advanced Medical, and Dale Guyer. 92. Advanced Medical and Dale Guyer have defaulted under the terms of the DCI Loan by, among other things, failing to repay the funds that they borrowed from DCI. 93. By virtue of these defaults under the DCI Loan, all principal and interest under the loan is immediately due and payable. 94. Pursuant to the DCI Assignment detailed in Paragraph 23, the Trustee is entitled to assert the present claim against Advanced Medical and Dale Guyer to recover the amounts due to DCI on the DCI Loan. COUNT V ACTION ON ACCOUNT (DCI LOAN 95. The Trustee restates the allegations of all preceding paragraphs as if fully set forth herein. 96. This claim is pled in the alternative, to the extent that the loan to Advanced Medical and Dale Guyer from DCI was made as part of an open account at DCI for the benefit of pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 19 of 57

20 Advanced Medical and Dale Guyer, and to the extent that the amounts loaned to Advanced Medical and Dale Guyer under the DCI Loan are not included in the amounts the Trustee seeks to recover via Counts I through IV of this Complaint. 97. Upon information and belief, the books and records of DCI reflect the existence of an open account involving Advanced Medical and Dale Guyer (the DCI Account, to whom or on whose behalf the payments from DCI were made. Attached hereto as Exhibit H is a copy of the portion of DCI s books and records reflecting the DCI Account with Advanced Medical and Dale Guyer. 98. Upon information and belief, DCI made payments to or on behalf of Advanced Medical and Dale Guyer totaling $50, Upon information and belief, there was an agreement among DCI, Advanced Medical, and Dale Guyer regarding the balance due on the DCI Account Upon information and belief, Advanced Medical and Dale Guyer promised to pay DCI the balance due on the DCI Account Upon information and belief, the balance due from Advanced Medical and Dale Guyer on the DCI Account remains unpaid Upon information and belief, Advanced Medical and Dale Guyer owe the Trustee as the assignee of all of DCI s assets at least $50, on the Diamond Account, minus any applicable payments or credits. This balance is stated on the books and records of DCI, a relevant portion of which is attached as Exhibit H, and upon information and belief this balance accurately reflects the amount due and owing to DCI as of May pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 20 of 57

21 103. Pursuant to the DCI Assignment detailed in Paragraph 23, the Trustee is entitled to assert the present claim against Advanced Medical and Dale Guyer to recover the balance due on the DCI Account. COUNT VI UNJUST ENRICHMENT (DCI LOAN 104. The Trustee restates the allegations of all preceding paragraphs as if fully set forth herein This claim is pled in the alternative, to the extent that any amounts advanced by DCI to or for the benefit of Advanced Medical and Dale Guyer were not made on account of either a contract not in writing or the DCI Account, and to the extent that the amounts loaned to Advanced Medical and Dale Guyer under the DCI Loan are not included in the amounts the Trustee seeks to recover via Counts I through V of this Complaint Advanced Medical and Dale Guyer were aware that they received or benefited from the payments made by DCI described in this Complaint and reflected on Exhibit H Advanced Medical and Dale Guyer benefited from the receipt of those funds. As such, DCI conferred a benefit on Advanced Medical and Dale Guyer, and Advanced Medical and Dale Guyer knew they were receiving the benefit from DCI It would be unjust for Advanced Medical and Dale Guyer to retain the benefit of DCI s funds, and Advanced Medical and Dale Guyer would be unjustly enriched by retaining this benefit without compensating the Trustee as the assignee of all of DCI s assets As a direct and proximate result of Advanced Medical and Dale Guyer s unjust enrichment, the Trustee has suffered damages in an amount to be proven at trial, but no less than the outstanding balance of funds provided by DCI to or on behalf of Advanced Medical and Dale pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 21 of 57

22 Guyer received from DCI, plus interest, court costs and attorney s fees, and believed to be in excess of $50,410.00, minus any applicable payments or credits Pursuant to the DCI Assignment detailed in Paragraph 23, the Trustee is entitled to assert the present claim against Advanced Medical and Dale Guyer to recover the amounts provided by DCI to Advanced Medical and Dale Guyer. WHEREFORE, the Trustee respectfully requests the entry of an order: (a As to Count I, granting the Trustee compensatory and consequential damages against Defendants in an amount to be proven at trial, but believed to be in excess of $235,842.83; (b As to Count II, granting the Trustee compensatory and consequential damages against Advanced Medical in an amount to be proven at trial, but believed to be in excess of $394,057.45; (c As to Count III, granting the Trustee compensatory and consequential damages against Advanced Medical in an amount to be proven at trial, but believed to be in excess of $255,832.86; (d As to Count IV, granting the Trustee compensatory and consequential damages against Advanced Medical and Dale Guyer in an amount to be proven at trial, but believed to be in excess of $50,410.00; (e As to Count V, granting the Trustee compensatory and consequential damages against Advanced Medical and Dale Guyer in an amount to be proven at trial, but believed to be in excess of $50,410.00; pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 22 of 57

23 (f As to Count VI, granting the Trustee compensatory and consequential damages against Advanced Medical and Dale Guyer in an amount to be proven at trial, but believed to be in excess of $50,410.00; (h Granting the Trustee pre-judgment and post-judgment interest as permitted by law; (i Granting the Trustee all the costs incurred in collecting the sums due under the Loans, including, but not limited to, reasonable attorney s fees and the costs of this action; and (j Granting such other and further relief as is appropriate under the circumstances. Dated: June 30, 2014 Respectfully submitted, /s/ David Proaño David F. Proaño ( Kenneth G. Prabucki ( Baker & Hostetler LLP PNC Center 1900 East Ninth Street, Suite 3200 Cleveland, Ohio Telephone: Facsimile: dproano@bakerlaw.com kprabucki@bakerlaw.com Counsel for the Trustee pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 23 of 57

24 EXHIBIT A DCI BILL OF SALE pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 24 of 57

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29 EXHIBIT B DIAMOND BILL OF SALE pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 29 of 57

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33 EXHIBIT C DIAMOND NOTE pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 33 of 57

34 LINE OF CREDIT- PROMISSORY NOTE $150, Indianapolis, Indiana Dated: December 22, 2003 On or before January 1, 2007 or upon demand of Lender, whichever occurs first, ("Maturity Date", Dale Guyer and Lisa Guyer, husband and wife, Indiana residents, Advanced Medical Center, P.C., an Indiana professional corporation and Five Star Acquisitions, LLC, an Indiana limited liability company (collectively "Maker" promise to pay, jointly and severally, to the order of Diamond Investments, LLC, an Indiana limited liability company, (the "Lender' at the principal office at 11 1 Monument Circle, Suite 4800, Indianapolis, Indiana, the principal sum of One Hundred Fifty Thousand and 00/100 DOLLARS ($150, or so much of the principal amount of the Loan represented by this Note as may be disbursed by the Lender under the teiins described below, arid to pay interest on the unpaid principal balance outstanding from time to time as provided herein until Maturity Date. Maker's obligations incurred under this Note shall be supported and secured by a first mortgage on certain real property located in Lyon County Kentucky, commonly known as Lot 17 in Westwood Subdivision located in Lyon County, Kentucky, as more particularly described in a Mortgage granted to Lender (the "Mortgage" executed by Dale and Lisa Guyer on behalf of Lender of even date herewith and attached hereto as Exhibit "A" along with a security interest in certain assets of Advanced Medical Center, P.C. as more fully described in a certain Security Agreement of even date herewith. This Note evidences indebtedness (the "Loan" incurred or to be incurred by the Maker. The principal amount of the Loan outstanding from time to time shall be deteunined by reference to the books and records of the Lender and all payments by the Maker on account of the Loan shall be recorded. Such books and records shall be deemed prima facia to be correct as to such matters. Each of the following shall constitute an Event of Default under this Note: Nonpayment of Loan: Default in the payment when due of any amount payable under the terms of this Note, or otherwise payable to the Lender or any holder of this Note under the terms of this Note; Breach of the Mortgage: Any breach or default under the Mortgage or Security Agreement; and Bankruptcy, Insolvency, etc.: Any one of the Makers admitting in writing the inability to pay his debts as they mature or an administrative or judicial order or determination of insolvency being entered against a Maker; or a Maker making a general assignment for I? EXHIBIT pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 34 of 57

35 the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee or receiver being appointed for a Maker or a substantial part of their property arid not being discharged within 60 days; or any bankruptcy, reorganization, debt arrangement, or other proceeding under the bankruptcy or insolvency law, or any dissolution or liquidation proceeding being instituted by or against a Maker. interest on the unpaid principal balance of the Loan outstanding from time to time prior to Final Maturity will accrue at a per annum rate equal to the Prime Rate plus three percent (3%.. Prior to maturity, accrued interest shall be due and payable on the first day of each month with interest commencing on the date of this Note and continuing each month thereafter until Final Maturity. Interest will be calculated on the basis that an entire year's interest is earned in 360 days. Maker shall pay to Lender on the Maturity Date all amounts outstanding and unpaid of principal and interest. Prime Rate shall mean the prime lending rate as published by First Indiana Bank on the first day of January, April, July and October of each year. Upon an Event of Default, including failure to pay upon Final Maturity, Lender at his option may also, if permitted under applicable law, do one or both of the following: (a increase the applicable interest rate on this Note two percent (2% and (b add any unpaid accrued interest to the principal and such sum will bear interest thereon until paid at the rate provided in this Note. The interest rate will not exceed the maximum rate permitted by applicable law. The entire outstanding principal balance of this Note shall be due and payable, together with accrued interest, at Final Maturity or upon the Lender declaring that all amounts to be due and payable. Principal may be prepâid at anytime without penalty. If any installment of interest due under the terms of this Note is not paid when due, then the Lender or any subsequent holder of this Note may, at its option and without notice, declare the entire principal amount of the Note and all accrued interest immediately due and payable. If payment is 10 days or more late, Maker will be charged 5% of the regularly scheduled payment. Each late payment fee assessed shall be due and payable on the earlier of the next regularly scheduled interest payment date or the maturity of this Note. Waiver by the Lender of any late payment fee assessed, or the failure of the Lender in any instance to assess a late payment fee shall not be construed as a waiver by the Lender of its right to assess late payment fees thereafter. Unless otherwise agreed to, in writing, or otherwise required by applicable law, pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 35 of 57

36 payments will be applied first to accrued, unpaid interest, then to principal, and any remaining amount to any unpaid collection costs, late charges and other charges, provided, however, upon delinquency or other default, Lender reserves the right to apply payment among principal, interest, late charges, collection costs and other charges at its discretion. All prepayments shall be applied to the indebtedness owing hereunder in such order and manner as Lender may from time to time deteitnine in his sole discretion. The Maker and any endorsers severally waive demand, presentment for payment and notice of nonpayment of this Note, and each of them consents to any renewals or extensions of the time of payment of this Note without notice. All amounts payable under the terms of this Note shall be payable with expenses of collection, including attorneys' fees, and without relief from valuation and appraisement laws. This Note is made under and will be governed in all cases by the substantive laws of the State of Indiana notwithstanding the fact that Indiana conflicts of law rules might otherwise require the substantive rules of law of another jurisdiction to apply. THE MAKER AND LENDER (BY ACCEPTANCE OF THIS NOTE HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTCIPATE IN RESOLVING ANY DISPUTE (W}IETHER BASED UPON A CONTRACT, TORT OR OTHERWISE BETWEEN MAKER AND LENDER ARISING OUT OF OR ANY WAY RELATED TO THIS NOTE OR ANY RRELATIONSHIP BETWEEN LENDER AND MAKER. THIS PROVISION IS A MATERIAL INDUCMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN. Lisa Gnyer "MAKER" Dale Guyer Five Star. 'quisitions, LLC Advanced di.. Center, P.C pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 36 of 57

37 EXHIBIT D SECURITY AGREEMENT pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 37 of 57

38 Security Agreement This Agreement is made this 22nd day of December, 2003, by Advanced Medical Center, P.C., an Indiana professional corporation and Dale Guyer (collectively "Debtor", in favor of Diamond Investments, LLC, an Indiana limited liability company ("Creditor". Construction of Agreement and Definitions. Unless the context otherwise requires, all of the terms used herein without definition which are defined by the Indiana Uniform Commercial Code shall have the meanings assigned to them by the Indiana Uniform Commercial Code, as in effect on the date hereof. "Debtor," "Creditor" and "Obligor" shall include their respective heirs, legal representatives, successors and assigns. All words shall be deemed to refer to the singular, plural, masculine, feminine or neuter as the identity of the person or entity or the context may require. The following terms shall have the following meanings: 1.1. "Collateral" shall mean all of the property ofdebtor described on Schedule A together with: (a all substitutions, replacements, appurtenances, accessories and accessions relating to any of the property described on Schedule A and a]l property with which the properly described on Schedule A is commingled; (b except in the case of consumer goods, or as otherwise limited by applicable law, all] after-acquired property of Debtor of the types described on Schedule A; (c all of the books and records pertaining to any of the property described on Schedule A; and (d all proceeds of the property listed in Schedule A 'Loan Documents" shall mean this Agreement, and all other agreements, instruments and contracts previously, simultaneously or hereafter executed and delivered by Debtor and/or by any other Obligor or person, singly or jointly with another person or persons as evidence of, security for, as guaranty of or otherwise in connection with Obligations of Debtor to Creditor, whether or not this Security Agreement is specifically referred to therein "Obligations" shall mean all past, present and future obligations ofdebtor to Creditor of any nature whatsoever, joint or several, now existing or hereafter arising, direct or contingent, due or to become due, which remain unpaid, except if the Collateral consists of "margin stock" as that term is defined in Regulations G and/or U, 12 C.F.R. Parts 207 and 221, or "household goods" as that term is defined in Regulation AA, 12 C.F.R. Part 227. if the Collateral consists of "margin stock" or "household goods," the term "Obligations" shall mean only all amounts that Debtor now or may in the future owe Creditor under the note for which this Security Agreement was executed (the "Note", including any renewals, extensions and modifications of the Note and the costs of collection permitted by applicable law "Obliger" shall mean individually and collectively Debtor, each person who is primarily or secondarily liable for the repayment of any of the Obligations, and each person who has granted security for the repayment of any of the Obligations, 15. "Permitted Liens" shalt mean: (a liens and securityinterests of Creditor, (b liens for taxesriot delinquent (c mechanics', artisans', landlords', earners' and other like liens arising in the ordinary course ofbusiness with respect to obligations which are not due, and (d liens and security interests specifically consented to by Creditor in wrtlrig. Payment and Performance. Debtor Will pay the Obligations as and when due and payable, and will perform, comply with, and observe the terms and conditions of the Loan Documents to be performed, complied with and observed by Debtor. All payments made by Debtor or any Obliger may be applied by Creditor to any of the Obligations, whether matured or unniatured, as Creditor shall determine irs its sole but reasonable discretion, unless otherwise required by applicable law. Security Interest and Collateral. As security for all of the Obligations, Debtor grants to Creditor a lien and continuing security interest in the Collateral. Debtor agrees to execute and deliver to Creditor, whenever requested by Creditor, and to cooperate with Creditor to obtain and keep in effect one or more control agreements in investment property and letter-of-credit rights Collateral and such other documents as Creditor may request, in form and pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 38 of 57

39 content satisfactory to Creditor, in order to confirm, preserve, protect or perfect, or to maintain the perfection of, Creditor's security interest in any of the Collateral. Debtor authorizes Creditor to file financing statements covering the Collateral and containing such legends as Creditor shall deem necessary or desirable to protect Creditor's interest in the Collateral. Debtor shall not file any amendments, correction statements or termination statements concerning the Collateral without the prior written consent of Creditor. Debtor represents, warrants and agrees that the Collateral is and shall remain free and clear of all liens, security interests and encumbrances, except for Permitted Liens. Possession of the Collateral. Upon the request of Creditor, Debtor will promptly deliver to Creditor, with such endorsements, assignments, stock powers, hypothecations and other documents as may be requested by Creditor, all certificates, instruments, promissory notes, chattel paper, guaranties, documents of title, certificates of origin and certificates of title, as well as other documents that may be requested by Creditor, previously or hereafter received by Debtor and constituting or evidencing the Collateral. Debtor shall promptly deliver to Creditor all money, certificates, instruments, and other such documents, and all other property of any kind, previously or hereafter received by Debtor in respect of, in evidence of, as an addition to, in substitution for, in replacement of or in exchange for any of the Collateral. Creditor shall have the right to receive and to apply to any of the Obligations, as Creditor may determine in its discretion, any money or other property payable on account of any sale, assignment or transfer of any of the Collateral, whether pursuant to a redemption or repurchase of the Collateral by the issuer thereof or otherwise. Duty of Care. Beyond the exercise of reasonable care to assure the safe custody of any of the Collateral while in the possession of Creditor, Creditor shall have no duty or liability to collect any cash or other property due in respect thereof or to give any notices with respect thereto or to protect or preserve any rights pertaining thereto, and shall be relieved of all responsibility for the Collateral upon surrendering the same to Debtor. Creditor shall be deemed to have exercised reasonable care with respect to any of the Collateral in its possession if Creditor takes such action as Debtor shall reasonably request in writing; but no failure to comply with any such request shall, without more, be deemed a failure to exercise reasonable care. Representations and Warranties. Debtor represents and warrants to Creditor that, except as previously disclosed to Creditor in writing: (a this Agreement and any other Loan Documents executed by Debtor constitute the legally binding obligations of Debtor and are fully enforceable against Debtor in accordance with their terms, subject to application of general principles of equity and laws affecting the rights of creditors generally; (b to Debtor's knowledge, there are no judgments, injunctions or similar orders outstanding against Debtor or any of the Collateral and no actions, suits or proceedings pending or threatened against Debtor; (c Debtor is and shall remain the owner of the Collateral and has good and marketable title to the Collateral free and clear of all liens, pledges, security interests and other encumbrances except for Permitted Liens; (d Debtor has filed all tax returns which are required to be filed by Debtor, and Debtor has paid all taxes shown to be due thereon or which have been assessed against Debtor; (e Debtor's name is as specified as his/her/their address for Notices pursuant to Section 18 hereof; (f Debtor's principal residence address is as specified as his/her/their address for Notices pursuant to Section 1 8 hereof; (g Debtor will immediately advise Creditor in writing of any intended change of Debtor's principal residence address and the places where the Collateral, or any part thereof, are kept; and (i all information contained in any fmancial statement, application, schedule, report or any other document given to Creditor by Debtor, any other Obligor or by any other person in connection with the Obligations is in all respects true and accurate and Debtor, such other Obligor, or such other person has not omitted to state any material fact or any fact necessary to make such information not misleading. 7 Covenants. Until all of the Obligations have been paid in full, Debtor covenants and agrees that Debtor will, except as otherwise agreed to in writing by Creditor: (a deliver to Creditor in writing, upon Creditor's request, and periodically if Creditor shall so request, such written statements and reports as Creditor may request concerning the Collateral, any other assets of Debtor, or the financial condition of Debtor; (b file all tax returns which are required to be filed by Debtor and pay all taxes and assessments prior to the date on which penalties attach thereto; (c do, make, execute and deliver all such additional and flrrther acts, things, deeds, assurances, instruments and documents as Creditor may reasonably request to vest in and assure to Creditor its rights hereunder or in any of the Collateral, and pay to Creditor all taxes, fees and costs (including reasonable attorneys' fees paid or incurred by Creditor in connection with the preparation, filing or recordation thereof; (e maintain the Collateral in good repair and operating condition; (e keep the tangible Collateral in the State specified as hisiher/tbeir address for Notices pursuant to Section 18 hereof and (1 comply with the requirements of all applicable laws, rules, regulations and orders of governmental or regulatory pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 39 of 57

40 authorities or agencies to which Debtor is subject. Debtor covenants and agrees that Debtor will not, without Creditor's prior written consent: (g sell, assign, transfer or lease any of the Collateral or permit any lien, security interest or other encumbrance to attach to the Collateral, or any part thereof, other than Permitted Liens; and (h not move Debtor's principal residence from the address specified as hisfher/their address for Notices pursuant to Section 18 hereof. Insurance. Debtor will insure such of the Collateral as specified by Creditor against such casualties and risks in such form and amounts as may from time to time be required by Creditor. All insurance proceeds shall be payable to Creditor and all policies or certificates of insurance shall be furnished to Creditor evidencing among other things notice of cancellation to be provided to Creditor. Debtor will pay all prerniunis due or to become due for such insurance and hereby assigns to Creditor any returned or unearned premiums which may be due upon cancellation of insurance coverage. Creditor is hereby irrevocably, (a appointed Debtor's agent and attorney-in-fact to endorse any draft or check which may be payable to Debtor in order to collect such returned or unearned premiums or the proceeds of insurance, and (b authorized to apply such insurance proceeds in the same manner and order as the proceeds of sale or other disposition of the Collateral are to be applied pursuant to Section 10 hereof. Default. The occurrence of any one or more of the following events shall constitute a default under this Agreement: (a the failure of any Obligor to pay promptly when due any sum due in respect of the Obligations; (b the failure of any Obligor to perform, observe or comply with any of the Loan Documents; (c the death of any Obligor; (d the filing of any petition for relief under the United States Bankruptcy Code or any similar federal or state statute by or against any Obligor; (e the making of an application for the appointment of a custodian, trustee or receiver for, or of a general assignment for the benefit of Creditors by, any Obligor; (f the insolvency of any Obligor or the failure of any Obligor generally to pay debts as such debts become due; (g any representation or information contained in any financial statement or any other document given by any Obligor to Creditor that is not in all material respects true and complete; or (h the occurrence of any default by any Obligor under any of the Loan Documents. Effects of Default. Upon default, Creditor may, at its option: (a declare all or any part of the unpaid Obligations, together with all accrued and unpaid interest thereon, to be immediately due and payable without presentment, demand or notice, which are hereby waived by each Obtigor; (b repossess and sell the Collateral and hold Debtor liable for any deficiency balance; (c take control of any of the Collateral and exercise all voting, corporate and other rights at any meeting of the shareholders or other members of the issuer of any of the Collateral and exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to the Collateral as if it were the absolute owner thereof, including the right to exchange, in its discretion, any and all of the Collateral upon any merger, consolidation, reorganization, recapitalization, reclassification, stock split, liquidation or other readjustment in respect to any issuer of any of the Collateral; (d enforce the security interest granted to Creditor hereunder by collecting or liquidating all or any part of the Collateral or selling or otherwise disposing ofall or any part of the Collateral, in one or more parcels, at the same or different times, at public or private sale or disposition; (e notify any or all obligois on the Collateral to make payments thereon directly to Creditor and demand, collect, sue for and receive any money or property at any time due, payable or receivable on account of any or all of the Collateral; (1 exercise its right of setoff against any money, funds, credits or other property of any nature whatsoever of Debtor or any other Obligor now or at any time hereafter in the possession of, in transit to or from, under the control or custody of, or on deposit with, Creditor or any affiliate of Creditor in any capacity whatsoever, including, without limitation, any balance of any deposit account and any credits with Creditor or any affiliate of Creditor; (g terminate any outstanding commitments of Creditor to Debtor; (h exercise any or all rights, powers and remedies provided for in any of the Loan Documents or now or hereafter existing at law or in equity or by statute or otherwise including, but not limited to, exercising all rights and remedies of a secured party under the Indiana Uniform Commercial Code; (i require Debtor to assemble the Collateral and make it available to Creditor at a place designated by Creditor; and U enter upon Debtor's premises to take possession of the Collateral, to remove it, to render it unusable or to sell or otherwise dispose of it. If Creditor takes possession of the Collateral, Creditor shall not be responsible for any of Debtor's or any other person's property not covered by this Agreement left inside the Collateral. Creditor will hold all such property at Debtor's sole risk, without liability on Creditor's part, and Debtor will be responsible for any storage charges Creditor incurs. IfDebtor does not claim any such property within 90 days after repossession, Creditor may dispose of it in any manner Creditor deems appropriate. If Creditor repossesses the Collateral, Creditor may, in Debtor's name, lease, charter, operate or otherwise use the Collateral, as Creditor thinks advisable, and keep the Collateral free of charge at Debtor's premises or elsewhere, at Debtor's expense. For such purpose and subject to any applicable federal or state law or regulation, pmc Doc 1470 FILED 06/30/14 ENTERED 06/30/14 16:35:40 Page 40 of 57