COMMERCIAL SECURITY AGREEMENT
EXHIBIT 10.43
| Principal | Loan Date | Maturity | Loan No. | Call / Coll | Account | Officer | Initials | |||||||
| $1,250,000.00 | 03-10-2000 | 01-16-2001 | 61 | 500359790000 | G49 |
References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any particular loan or item.
Grantor:
|
SYNERGETICS, INC., a Missouri Corporation | Lender: | Union Planters Bank NA | |||
| (TIN: 00-0000000) | Xxxxxxx Banking Center | |||||
| 88 Hubble | 0000 Xxxxxxxx Xxxxxx Xxxxx 000 | |||||
| Xx. Xxxxxxx, XX 00000 | Xx. Xxxxx, XX 00000 |
THIS COMMERCIAL SECURITY AGREEMENT is entered into between SYNERGETICS, INC., a Missouri
Corporation (referred to below as “Grantor”); and Union Planters Bank N.A. (referred to below as
“Lender”). For valuable consideration, Grantor grants to Lender a security interest in the
Collateral to secure the Indebtedness and agrees that Lender shall have the rights stated in this
Agreement with respect to the Collateral, in addition to all other rights which Lender may have by
law.
DEFINITIONS. The following words shall have the following meanings when used in this Agreement.
Terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in
the Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money
of the United States of America.
Agreement. The word “Agreement” means this Commercial Security Agreement, as this
Commercial Security Agreement may be amended or modified from time to time, together with
all exhibits and schedules attached to this Commercial Security Agreement from time to time.
Collateral. The word “Collateral” means the following described property of Grantor,
whether now owned or hereafter acquired, whether now existing or hereafter arising, and
wherever located:
All Inventory, accounts and equipment, together with the following specifically described
property: See Exhibit A and B attached hereto and made a part hereof
In addition, the word “Collateral” also includes all the following, whether now owned or
hereafter acquired, whether now existing or hereafter arising, and wherever located:
(A) All attachments, accessions, accessories, tools, parts, supplies, increases, and
additions to and all replacements of and substitutions for any property described
above.
(B) All products and produce of any of the property described in this Collateral
section.
(C) All accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease, or other disposition of any of the
property described in this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale, destruction, loss, or
other disposition of any of the property described in this Collateral section.
(E) All records and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph, microfilm,
microfiche, or electronic media, together with all of Grantor’s right, title, and
interest in and to all computer software required to utilize, create, maintain, and
process any such records or data on electronic media.
Event of Default. The words “Event of Default” mean and include without limitation any of
the Events of Default set forth below in the section titled “Events of Default”.
Grantor. The word “Grantor” means SYNERGETICS, INC., a Missouri Corporation, its successors
and assigns.
Guarantor. The word “Guarantor” means and includes without limitation each and all of the
guarantors, sureties, and accommodation parties in connection with the Indebtedness.
Indebtedness. The word “Indebtedness” means the indebtedness evidenced by the Note,
including all principal and interest together with all other indebtedness and costs and
expenses for which Grantor is responsible under this Agreement or under any of the Related
Documents. In addition, the word “Indebtedness” includes all other obligations, debts and
liabilities, plus interest thereon, of Grantor, or any one or more of them, to Lender, as
well as all claims by Lender against Grantor, or any one or more of them, whether existing
now or later; whether they are voluntary or involuntary, due or not due, direct or indirect,
absolute or contingent, liquidated or unliquidated; whether Grantor may be liable
individually or jointly with others; whether Grantor may be obligated as guarantor, surety,
accommodations party or otherwise; whether recovery upon such Indebtedness may be or
hereafter may become barred by any statute of limitations; and whether such indebtedness may
be or hereafter may become otherwise unenforceable.
Lender. The word “Lender” means Union Planters Bank N.A., its successors and assigns.
Note. The word “Note” means the note or credit agreement dated March 10, 2000, in the
principal amount of $1,250,000.00 from SYNERGETICS, INC., a Missouri Corporation to Lender,
together with all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Related Documents. The words “Related Documents” mean and include without limitation all
promissory notes, credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with the Indebtedness.
RIGHT OF SETOFF. Grantor hereby grants Lender a contractual security interest in and hereby
assigns, conveys, delivers, pledges, and transfers all of Grantor’s right, title and interest in
and to Grantor’s accounts with Lender (whether checking, savings, or some other account), including
all accounts held jointly with someone else and all accounts Grantor may open in the future,
excluding, however, all XXX and Xxxxx accounts, and all trust accounts for which the grant of a
security interest would be prohibited by law, Grantor authorizes Lender, to the extent permitted by applicable law, to charge or setoff all Indebtedness against any and
all such accounts.
OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as follows:
Perfection of Security Interest. Grantor agrees to execute financing statements and to take
whatever other actions are requested by Lender to perfect and continue Lender’s security
interest in the Collateral. Upon request of Lender, Grantor will deliver to Lender any and
all of the documents evidencing or constituting the Collateral, and Grantor will note
Lender’s interest upon any and all chattel paper if not delivered to Lender for possession
by Lender.
Grantor hereby appoints Lender as its irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue the security interest granted in this Agreement. Lender may at any
time, without further authorization from Grantor, file a carbon, photographic or other reproduction of any financing statement or of this Agreement for use as a financing statement. Grantor will reimburse Lender for all its expenses for the perfection and the
continuation of the perfection of Lender’s security interest of the collateral. Grantor promptly will notify Lender before any change in Grantor’s name including any change to the assumed business names of Grantor.
This is a continuing Security Agreement and will continue in effect even though all or any part of the indebtedness is paid in full and even though for a period of time
Grantor may not be indebted to Lender.
No Violation. The execution and delivery of this Agreement will not violate any law or
agreement governing Grantor or to which Grantor is a party, and its certificate or articles
of incorporation and bylaws do not prohibit any term or condition of this Agreement.
Enforceability of Collateral. To the extent the Collateral consists of accounts, chattel
paper, or general intangibles, the Collateral is
enforceable in accordance with its terms, is genuine, and complies with all applicable
laws and concerning form, content and manner of preparation and execution, and
all persons appearing to be obligated on the Collateral have
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authority and capacity to contract and are in fact obligated as they appear to be on the
Collateral. At the time any account becomes subject to a security
interest in favor of Lender, the account shall be a good and valid
account representing an undisputed, bona fide indebtedness incurred
by the account debtor, for merchandise held subject to delivery
instructions or theretofore shipped or delivered pursuant to a
contract of sale, or a service theretofore performed by Grantor with
or for the account debtor, there shall be no setoffs or counterclaims
against any such account; and no Agreement under which any deductions
or discounts may be claimed shall have been made with the account
debtor except those disclosed to Lender in writing.
Location
of the Collateral. Grantor, upon request of Lender, will deliver to Lender in form
satisfactory to Lender a schedule of real properties and Collateral locations relating to
Grantor’s operations, including without limitation the
following: (a) all real property owned or being purchased by
Grantor; (b) all real property being rented or leased by
Grantor; (c) all
storage facilities owned, rented, leased or being used by Grantor;
and (d) all other properties where
Collateral is or may be located. Except in the ordinary course of
business, Grantor shall not remove the Collateral from its existing
locations without the prior written consent of Lender.
Removal
of the Collateral. Grantor shall keep the Collateral (or to the
extent the Collateral consists of intangible property such as
accounts, the records concerning the Collateral) at Grantor’s address
shown above, or at such other locations as are acceptable to Lender.
Except in the ordinary course of its business, including the
sale of inventory, Grantor
shall not remove the Collateral from its existing location without the prior written
consent of Lender. To the extent that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require application for certificates
of title for the vehicles outside the State of Missouri, without the prior written
consent of Lender.
Transactions Involving Collateral. Except for inventory sold or accounts collected in the
ordinary course of Grantor’s business, Grantor shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral.
While Grantor is not in default under this Agreement, Grantor may
sell inventory, but only in the ordinary course of its business and
only to buyers in the ordinary course of business. A sale in the
ordinary course of Grantor’s business does not include a transfer in
partial or total satisfaction of a debt or any bulk sale. Grantor shall not pledge, mortgage, encumber or otherwise permit the Collateral to be
subject to any lien, security interest, encumbrance, or charge, other than the security
interest provided for in this Agreement, without the prior written consent of Lender. This
includes security interests even if junior in right to the security interests granted under
this Agreement. Unless waived by Lender, all proceeds from any disposition of the
Collateral (for whatever reason) shall be held in trust for Lender and shall not be
commingled with any other funds; provided however, this requirement shall not constitute
consent by Lender to any sale or other disposition. Upon receipt, Grantor shall immediately
deliver any such proceeds to Lender.
Title.
Grantor represents and warrants to Lender that it holds good and marketable
title to the Collateral, free and clear of all liens and encumbrances except for the lien of
this Agreement. No financing statement covering any of the Collateral is on file in any
public office other than those which reflect the security interest created by this Agreement
or to which Lender has specifically consented. Grantor shall defend Lender’s rights in the
Collateral against the claims and demands of all other persons.
Collateral Schedules and Locations. As often as Lender shall require, and insofar as the
Collateral consists of accounts, Grantor shall deliver to Lender schedules of such
Collateral, including such information as Lender may require, including without limitations
names and addresses of account debtors and agings of accounts. Insofar as the Collateral
consists of inventory and equipment, Grantor shall deliver to Lender, as often as Lender
shall require, such lists, descriptions, and designations of such Collateral as Lender may
require to identify the nature, extent, and location of such Collateral. Such information
shall be submitted for Grantor and each of its subsidiaries or related companies.
Maintenance and Inspection of Collateral. Grantor shall maintain all tangible Collateral in
good condition and repair. Grantor will not commit or permit damage to or destruction of
the Collateral or any part of the Collateral. Lender and its designated representatives and
agents shall have the right at all reasonable times to examine, inspect and audit the
Collateral wherever located. Grantor shall immediately notify Lender of all cases involving
the return, rejection, repossession, loss or damage of or to any Collateral; of any request
for credit or adjustment or of any other dispute arising with respect to the Collateral; and
generally of all happenings and events affecting the Collateral or the value or the amount
of the Collateral.
Taxes, Assessments and Liens. Grantor will pay when due all taxes, assessments and liens
upon the Collateral, its use or operation, upon this Agreement, upon any promissory note or
notes evidencing the Indebtedness, or upon any of the other Related Documents. Grantor may
withhold any such payment or may elect to contest any lien if Grantor is in good faith
conducting an appropriate proceeding to contest the obligation to pay and so long as
Lender’s interest in the Collateral is not jeopardized in Lender’s sole opinion. If the
Collateral is subjected to a lien which is not discharged within fifteen (15) days, Grantor
shall deposit with Lender cash, a sufficient corporate surety bond or other security
satisfactory to Lender in an amount adequate to provide for the discharge of the lien plus
any interest, costs, attorneys’ fees or other
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charges that could accrue as a result of foreclosure or sale of the Collateral. In any
contest Grantor shall defend itself and Lender and shall satisfy any final adverse judgment
before enforcement against the Collateral. Grantor shall name Lender as an additional
obligee under any surety bond furnished in the contest proceedings.
Compliance with Governmental Requirements. Grantor shall comply promptly with all laws,
ordinances, rules and regulations of all governmental authorities, now or hereafter in
effect, applicable to the ownership, production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as Lender’s
interest in the Collateral, in Lender’s opinion, is not jeopardized.
Hazardous Substances. Grantor represents and warrants that the Collateral never has been,
and never will be so long as this Agreement remains a lien on the Collateral, used for the
generation, manufacture, storage, transportation, treatment, disposal, release or threatened
release of any hazardous waste or substance, as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499 (“XXXX”), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
or other applicable state or Federal laws, rules, or regulations adopted pursuant to any of
the foregoing. The terms “hazardous waste” and “hazardous substance” shall also include,
without limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos. The representations and warranties contained herein are based on Grantor’s due
diligence in investigating the Collateral for hazardous wastes and substances. Grantor
hereby (a) releases and waives any future claims against Lender for indemnity or
contribution in the event Grantor becomes liable for cleanup or other costs under such laws,
and (b) agrees to indemnify and hold harmless Lender against any and all claims and losses
resulting from a breach of this provision of this Agreement. This obligation to indemnify
shall survive the payment of the Indebtedness and the satisfaction of this Agreement.
Maintenance of Casualty Insurance. Grantor shall procure and maintain all risks insurance,
including without limitation fire, theft and liability coverage together with such other
insurance as Lender may require with respect to the Collateral, in form, amounts, coverages
and basis reasonably acceptable to Lender and issued by a company or companies reasonably
acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to
time the policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least thirty (30)
days’ prior written notice to Lender and not including any disclaimer of the insurer’s
liability for failure to give such a notice. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will not be impaired in any way by
any act, omission or default of Grantor or any other person. In connection with all
policies covering assets in which Lender holds or is offered a security interest, Grantor
will provide Lender with such loss payable or other endorsements as Lender may require. In
no event shall the insurance be in an amount less than the amount agreed upon in the
Agreement to Provide Insurance. If Grantor at any time fails to obtain or maintain any
insurance as required under this Agreement, Lender may (but shall not be obligated to)
obtain such insurance as Lender deems appropriate, including if it so chooses “single
interest insurance,” which will cover only Lender’s interest in the Collateral.
Application of Insurance Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral. Lender may make proof of loss if Grantor fails to do so within
fifteen (15) days of the casualty. All proceeds of any insurance on the Collateral,
including accrued proceeds thereon, shall be held by Lender as part of the Collateral. If
Lender consents to repair or replacement of the damaged or destroyed Collateral, Lender
shall, upon satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable cost of repair or restoration. If Lender does not consent to repair or
replacement of the Collateral, Lender shall retain a sufficient amount of the proceeds to
pay all of the Indebtedness, and shall pay the balance to Grantor. Any proceeds which have
not been disbursed within six (6) months after their receipt and which Grantor has not
committed to the repair or restoration of the Collateral shall be used to prepay the
Indebtedness.
Insurance Reserves. Lender may require Grantor to maintain with Lender reserves for payment
of insurance premiums, which reserves shall be created by monthly payments from Grantor of a
sum estimated by Lender to be sufficient to produce, at least fifteen (15) days before the
premium due date, amounts at least equal to the insurance premiums to be paid. If fifteen
(15) days before payment is due, the reserve funds are insufficient, Grantor shall upon
demand pay any deficiency to Lender. The reserve funds shall be held by Lender as a general
deposit and shall constitute a non-interest-bearing account which Lender may
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satisfy by payment of the insurance premiums required to be paid by Grantor as they become
due. Lender does not hold the reserve funds in trust for Grantor, and Lender is not the
agent of Grantor for payment of the insurance premiums required to be paid by Grantor. The
responsibility for the payment of premiums shall remain Grantor’s sole responsibility.
Insurance Reports. Grantor, upon request of Lender, shall furnish to Lender reports on each
existing policy of insurance showing such information as Lender may reasonably request
including the following: (a) the name of the insurer; (b) the risks insured; (c) the amount
of the policy; (d) the property insured; (e) the then current value on the basis of which
insurance has been obtained and the manner of determining that value; and (f) the expiration
date of the policy. In addition, Grantor shall upon request by Lender (however not more
often than annually) have an independent appraiser satisfactory to Lender determine, as
applicable, the cash value or replacement cost of the Collateral.
GRANTOR’S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until default and except as otherwise
provided below with respect to accounts, Grantor may have possession of the tangible personal
property and beneficial use of all the Collateral and may use it in any lawful manner not
inconsistent with this Agreement or the Related Documents, provided that Grantor’s right to
possession and beneficial use shall not apply to any Collateral where possession of the Collateral
by Lender is required by law to perfect Lender’s security interest in such Collateral. Until
otherwise notified by Lender, Grantor may collect any of the Collateral consisting of accounts. At
any time and even though no Event of Default exists, Lender may exercise the rights to collect the
accounts and to notify account debtors to make payments directly to Lender for application to the
Indebtedness. If Lender at any time has possession of any Collateral, whether before or after an
Event of Default, Lender shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral if Lender takes such action for that purpose as Grantor shall
request or as Lender, in Lender’s sole discretion, shall deem appropriate under the circumstances,
but failure to honor any request by Grantor shall not of itself be deemed to be a failure to
exercise reasonable care. Lender shall not be required to take any steps necessary to preserve any
rights in the Collateral against prior parties, nor to protect, preserve or maintain any security
interest given to secure the Indebtedness.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but shall not be obligated
to) discharge or pay any amounts required to be discharged or paid by Grantor under this Agreement,
including without limitation all taxes, liens, security interests, encumbrances, and other claims,
at any time levied or placed on the Collateral. Lender also may (but shall not be obligated to)
pay all costs for insuring, maintaining and preserving the Collateral. All such expenditures
incurred or paid by Lender for such purposes will then bear interest at the rate charged under the
Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the Indebtedness and, at Lender’s option, will (a) be payable on
demand; (b) be added to the balance of the Note and be apportioned among and be payable with any
installment payments to become due during either (1) the term of any applicable insurance policy;
or (2) the remaining term of the Note; or (c) be treated as a balloon payment which will be due and
payable at the Note’s maturity. The Agreement also will secure payment of these amounts. Such
right shall be in addition to all other rights and remedies to which Lender may be entitled upon an
Event of Default.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Grantor, whether voluntarily or
otherwise, or by guarantor or by any third party, on the Indebtedness and thereafter Lender is
forced to remit the amount of that payment (a) to Grantor’s trustee in bankruptcy or to any similar
person under any federal or state bankruptcy law or law for the relief of debtors, (b) by reason of
any judgment, decree or order of any court or administrative body having jurisdiction over Lender
or any of Lender’s property, or (c) by reason of any settlement or compromise of any claim made by
Lender with any claimant (including without limitation Grantor), the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Agreement and this Agreement shall
continue to be effective or shall be reinstated, as the case may be, notwithstanding any
cancellation of this Agreement or of any note or other instrument or agreement evidencing the
Indebtedness and the Collateral will continue to secure the amount repaid or recovered to the same
extent as if that amount never had been originally received by Lender, and Grantor shall be bound
by any judgment, decree, order, settlement or compromise relating to the Indebtedness or to this
Agreement.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Default on Indebtedness. Failure of Grantor to make any payment when due on the
Indebtedness.
Other Defaults. Failure of Grantor to comply with or to perform any other term, obligation,
covenant or condition contained in this Agreement or in any of the Related Documents or in
any other agreement between Lender and Grantor.
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False Statements. Any warranty, representation or statement made or furnished to Lender by
or on behalf of Grantor under this Agreement, the Note or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished.
Defective Collateralization. This Agreement or any of the Related Documents ceases to be in
full force and effect (including failure of any collateral documents to create a valid and
perfected security interest or lien) at any time and for any reason.
Insolvency. The dissolution or termination of Grantor’s existence as a going business, the
insolvency of Grantor, the appointment of a receiver for any part of Grantor’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any creditor
of Grantor or by any governmental agency against the Collateral or any collateral securing
the Indebtedness. This includes a garnishment of any of Grantor’s accounts with Lender.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any
Guarantor of any of the Indebtedness or such Guarantor dies or becomes incompetent.
Adverse Change. A material adverse change occurs in Grantor’s financial condition, or
Lender believes the prospect of payment or performance of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Agreement, at any time
thereafter, Lender shall have all the rights of a secured party under the Missouri Uniform
Commercial Code. In addition and without limitation, Lender may exercise any one or more of the
following rights and remedies:
Accelerate Indebtedness. Lender may declare the entire Indebtedness, including any
prepayment penalty which Grantor would be required to pay, immediately due and payable,
without notice.
Assemble Collateral. Lender may require Grantor to deliver to Lender all or any portion of
the Collateral and any and all certificates of title and other documents relating to the
Collateral. Lender may require Grantor to assemble the Collateral and make it available to
Lender at a place to be designated by Lender. Lender also shall have full power to enter
upon the property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time of repossession,
Grantor agrees Lender may take such other goods, provided that Lender makes reasonable
efforts to return them to Grantor after repossession.
Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise
deal with the Collateral or proceeds thereof in Lender’s own name or that of Grantor.
Lender may sell the Collateral at public auction or private sale. Unless the Collateral
threatens to decline speedily in value or is of a type customarily sold on a recognized
market, Lender will give Grantor reasonable notice of the time after which any private sale
or any other intended disposition of the Collateral is to be made. The requirements of
reasonable notice shall be met if such notice is given at least ten (10) days before the
time of the sale or disposition. All expenses relating to the disposition of the
Collateral, including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part of the Indebtedness
secured by this Agreement and shall be payable on demand, with interest at the Note rate
from date of expenditure until repaid.
Appoint Receiver. To the extent permitted by applicable law, Lender shall have the
following rights and remedies regarding the appointment of a receiver: (a) Lender may have
a receiver appointed as a matter of right, (b) the receiver may be an employee of Lender and
may serve without bond, and (c) all fees of the receiver and his or her attorney shall
become part of the Indebtedness secured by this Agreement and shall be payable on demand,
with interest at the Note rate from date of expenditure until repaid.
Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may collect
the payments, rents, income, and revenues from the Collateral. Lender may at any time in
its discretion transfer any
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Collateral into its own name or that of its nominee and receive the payments, rents, income,
and revenues therefrom and hold the same as security for the Indebtedness or apply it to
payment of the Indebtedness in such order of preference as Lender may determine. Insofar as
the Collateral consists of accounts, general intangibles, insurance policies, instruments,
chattel paper, choses in action, or similar property, Lender may demand, collect, receipt
for, settle, compromise, adjust, xxx for, foreclose, or realize on the Collateral as Lender
may determine, whether or not Indebtedness or Collateral is then due. For these purposes,
Lender may, on behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to be sent; and
endorse notes, checks, drafts, money orders, documents of title, instruments and items
pertaining to payment, shipment, or storage of any Collateral. To facilitate collection,
Lender may notify account debtors and obligors on any Collateral to make payments directly
to Lender.
Obtain Deficiency. If Lender chooses to sell any or all of the Collateral, Lender may
obtain a judgment against Grantor for any deficiency remaining on the Indebtedness due to
Lender after application of all amounts received from the exercise of the rights provided in
this Agreement. Grantor shall be liable for a deficiency even if the transaction described
in this subsection is a sale of accounts or chattel paper.
Other Rights and Remedies. Lender shall have all the rights and remedies of a secured
creditor under the provisions of the Uniform Commercial Code, as may be amended from time to
time. In addition, Lender shall have and may exercise any or all other rights and remedies
it may have available at law, in equity, or otherwise.
Cumulative Remedies. All of Lender’s rights and remedies, whether evidenced by this
Agreement or the Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to take action
to perform an obligation of Grantor under this Agreement, after Grantor’s failure to
perform, shall not affect Lender’s right to declare a default and exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Agreement.
No alteration of or amendment to this Agreement shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by the alteration or
amendment.
Applicable Law. This Agreement has been delivered to Lender and accepted by Lender in the
State of Missouri. If there is a lawsuit, Grantor agrees upon Lender’s request to submit to
the jurisdiction of the courts of St. Louis County the State of Missouri. Subject to the
provisions on arbitration, this Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
Arbitration. Lender and Grantor agree that all disputes, claims and controversies between
them whether individual, joint, or class in nature, arising from this Agreement or
otherwise, including without limitation contract and tort disputes, shall be arbitrated
pursuant to the Rules of the American Arbitration Association, upon request of either party.
No act to take or dispose of any Collateral shall constitute a waiver of this arbitration
agreement or be prohibited by this arbitration agreement. This includes, without
limitation, obtaining injunctive relief or a temporary restraining order; invoking a power
of sale under any deed of trust or mortgage; obtaining a writ of attachment or imposition of
a receiver; or exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article 9 of the
Uniform Commercial Code. Any disputes, claims, or controversies concerning the lawfulness
or reasonableness of any act, or exercise of any right, concerning any Collateral, including
any claim to rescind, reform, or otherwise modify any agreement relating to the Collateral,
shall also be arbitrated, provided however that no arbitrator shall have the right or the
power to enjoin or restrain any act of any party. Judgment upon any award rendered by any
arbitrator may be entered in any court having jurisdiction. Nothing in this Agreement shall
preclude any party from seeking equitable relief from a court of competent jurisdiction.
The statute of limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in an action brought by a party shall be applicable in any
arbitration proceeding, and the commencement of an arbitration proceeding shall be deemed
the commencement of an action for these purposes. The Federal Arbitration Act shall apply
to the construction, interpretation, and enforcement of this arbitration provision.
| 7 |
Attorneys’ Fees; Expenses. Grantor agrees to pay upon demand all of Lender’s costs and
expenses, including attorneys’ fees and Lender’s legal expenses, incurred in connection with
the enforcement of this Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such enforcement. Costs and
expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a
lawsuit, including attorneys’ fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), and appeals and any
anticipated post-judgment collection services. Grantor also shall pay all court costs and
such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience purposes only and
are not to be used to interpret or define the provisions of this Agreement.
Notices. Any notice required to be given under this Agreement shall be given in writing,
may be sent by telefacsimile (unless otherwise required by law), and shall be effective when
actually delivered or when deposited with a nationally recognized overnight courier or
deposited in the United States mail, as first class, postage prepaid, addressed to the party
to whom the notice is to be given at the address shown above. Any party may change its
address for notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party’s address. To the
extent permitted by applicable law, if there is more than one Grantor, notice to any Grantor
will constitute notice to all Grantors. For notice purposes, Grantor will keep Lender
informed at all times of Grantor’s current address(es).
Power of Attorney. Grantor hereby appoints Lender as its true and lawful attorney-in-fact,
irrevocably, with full power of substitution to do the following: (a) to demand, collect,
receive, receipt for, xxx and recover all sums of money or other property which may now or
hereafter become due, owing or payable from the Collateral; (b) to execute, sign and endorse
any and all claims, instruments, receipts, checks, drafts or warrants issued in payment for
the Collateral; (c) to settle or compromise any and all claims arising under the Collateral,
and, in the place and stead of Grantor, to execute and deliver its release and settlement
for the claim; and (d) to file any claim or claims or to take any action or institute or
take part in any proceedings, either in its own name or in the name of Grantor, or
otherwise, which in the discretion of Lender may seem to be necessary or advisable. This
power is given as security for the Indebtedness, and the authority hereby conferred is and
shall be irrevocable and shall remain in full force and effect until renounced by Lender.
Severability. If a court of competent jurisdiction finds any provision of this Agreement to
be invalid or unenforceable as to any person or circumstance, such finding shall not render
the offending provision invalid or unenforceable as to any other persons or circumstances.
If feasible any such offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all other
respects shall remain valid and enforceable.
Successors Interests. Subject to any limitations set forth above on transfer of the
Collateral, this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns.
Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless
such waiver is given in writing and signed by Lender. No delay or omission on the part of
Lender in exercising any right shall operate as a waiver of such right or any other right.
A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender’s right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender’s rights or of any of
Grantor’s obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such consent is required and
in all cases such consent may be granted or withheld in the sole discretion of Lender.
EXHIBIT A. An exhibit, titled “Exhibit A,” is attached to this Agreement and by this reference is
made a part of this Agreement just as if all the provisions, forms and conditions of the Exhibit
had been fully set forth in this Agreement.
EXHIBIT B. An exhibit, titled “Exhibit B,” is attached to this Agreement and by this reference is
made a part of this Agreement just as if all the provisions, forms and conditions of the Exhibit
had been fully set forth in this Agreement.
| 8 |
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT, AND
GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MARCH 10, 2000.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
| GRANTOR: | ||
| SYNERGETICS, INC., a Missouri Corporation | ||
By:
|
/s/ Xxxxxxx Xxxxx VP | |
| Xxxxxxx Xxxxx, Vice President | ||
| LENDER: | ||
| Union Planters Bank, N.A. | ||
By:
|
/s/ Xxxx Xxxxxxxxx V.P. | |
| Authorized Officer | ||
| 9 |
EXHIBIT A
Borrower:
|
SYNERGETICS, INC., a | Lender: | Union Planters Bank, N.A. | |||
| Missouri Corporation | Xxxxxxx Banking Center | |||||
| (TIN: 00-0000000) | 0000 Xxxxxxxx Xxxxxx | |||||
| 00 Xxxxxx | Xx. Xxxxx, XX 00000 | |||||
| Xx. Xxxxxxx, XX 00000 |
This Exhibit A is attached to and by this reference is made a part of such Security Agreement,
dated March 10, 2000, and executed in connection with a loan or other financial accommodations
between Union Planters Bank, N.A. and SYNERGETICS, INC., a Missouri Corporation.
All (a) inventory, including raw materials, goods and merchandise, work in process, parts and
supplies, finished products and returned items, (b) Accounts, including accounts receivable, (c)
Contract Rights, (d) goods, merchandise or other personal property (i) returned to or repossessed
by or on behalf of Debtor, and (ii) the sale or lease of which shall have given or shall give rise
to any Accounts, Contract Rights, chattel paper or instrument, (e) notes, drafts, cash,
acceptances, instruments, chattel paper, warehouse receipts, letters of credit and repurchase
agreements, (f) General Intangibles, including goodwill, patent rights, patents, licenses,
trademarks, service marks, trade names and copyrights, and all income including infringement
damages with respect thereto, (g) documents and instruments evidencing any obligation to Debtor for
payment of goods, merchandise or other personal property sold or services rendered, (h) all federal, state and local tax refunds, (i) customer lists and files, (j) drawings, blueprints, promotional
brochures and mailing lists, (k) insurance policies covering any collateral, (l) franchises and
licenses, (m) [illegible], (n) proceeds and cash surrender values of any life insurance policies of
which the Debtor may be a beneficiary or owner, (o) documents, books and records relating to the
Collateral, and (p) cash and non-cash proceeds (including insurance proceeds), substitutes,
replacements, accretions and products of the Collateral.
THIS EXHIBIT A IS EXECUTED ON MARCH 10, 2000.
BORROWER:
| SYNERGETICS, INC., a Missouri Corporation | ||
By:
|
/s/ Xxxxxxx Xxxxx VP | |
| Xxxxxxx Xxxxx, Vice President | ||
| LENDER: | ||
| Union Planters Bank, N.A. | ||
By:
|
/s/ Xxxx Xxxxxxxxx V.P. | |
| Authorized Officer | ||
| 10 |
EXHIBIT B
Borrower:
|
SYNERGETICS, INC., a | Lender: | Union Planters Bank, N.A. | |||
| Missouri Corporation | Xxxxxxx Banking Center | |||||
| (TIN: 00-0000000) | 0000 Xxxxxxxx Xxxxxx | |||||
| 00 Xxxxxx | Xx. Xxxxx, XX 00000 | |||||
| Xx. Xxxxxxx, XX 00000 |
This Exhibit B is attached to and by this reference is made a part of such Security Agreement,
dated March 10, 2000, and executed in connection with a loan or other financial accommodations
between Union Planters Bank, N.A. and SYNERGETICS, INC., a Missouri Corporation.
All (a) equipment, (b) furniture, fixtures and machinery, (c) accessories, furnishings, molds,
motor vehicles, tools, toolings, jigs, dies, xxxxxx parts, manufacturing implements, trailers and
improvements to real property, (d) tangible personal property, artwork and drawings, (e) insurance
policies covering any Collateral, (f) documents, books and records relating to the Collateral, and
(g) cash and non-cash proceeds (including insurance proceeds), substitutes, replacements,
accretions, accessions and products of the Collateral.
THIS EXHIBIT B IS EXECUTED ON MARCH 10, 2000.
BORROWER:
| SYNERGETICS, INC., a Missouri Corporation | ||
By:
|
/s/ Xxxxxxx Xxxxx VP | |
| Xxxxxxx Xxxxx, Vice President | ||
| LENDER: | ||
| Union Planters Bank, N.A. | ||
By:
|
/s/ Xxxx Xxxxxxxxx V.P. | |
| Authorized Officer | ||
| 11 |
