SECOND AMENDED SECURITY AGREEMENT
EXHIBIT 10.8
SECOND AMENDED SECURITY AGREEMENT
THIS SECOND AMENDED SECURITY AGREEMENT (this “Agreement”) is made as of September 7, 2005, by
and among Sutura, Inc., a Delaware corporation (“Sutura”), Pandora Select Partners, L.P., a British
Virgin Islands limited partnership (“Pandora”), Whitebox Hedged High Yield Partners, L.P., a
British Virgin Islands limited partnership (“WHHY”), Whitebox Convertible Arbitrage Partners, L.P.,
a British Virgin Islands limited partnership (“WCAP”), Whitebox Intermarket Partners, L.P., a
British Virgin Islands limited partnership (“WIP”), and Xxxx X. Xxxxxx (“Xxxxxx”) and Xxxx X.
Xxxxxx (“Xxxxxx”), each residents of the State of Minnesota. Pandora, WHHY, WCAP, WIP, Kohler and
Xxxxxx are referred to herein individually as a “Secured Party” and together as the “Secured
Parties.”
RECITALS
A. Sutura, Pandora, WHHY, WCAP, WIP, Kohler and Xxxxxx entered into a Purchase Agreement dated
September 17, 2004 (the “Original Purchase Agreement”), pursuant to which Pandora, WHHY, WCAP, WIP,
Kohler and Xxxxxx each purchased a convertible promissory note (each, an “Original Note” and
together, the “Original Notes”) and a warrant to purchase shares of Sutura’s common stock (“Sutura
Stock”) from Sutura in consideration of a collective $6,550,000 loan (the “Original Loan”).
B. As a condition to making the Original Loan, Sutura pledged to the Secured Parties all of
Sutura’s assets pursuant to the terms of a Security Agreement dated September 17, 2004 (the
“Original Security Agreement”).
C. Sutura, Pandora, WHHY and WIP entered into a second Purchase Agreement dated March 24, 2005
(the “Second Purchase Agreement”), pursuant to which Pandora, WHHY and WIP each purchased an
additional convertible promissory note (each, a “March 2005 Note” and togethe, the “March 2005
Notes”) and an additional warrant to purchase Sutura Stock in consideration a collective $3,000,000
new loan (the “March 2005 Loan”).
D. Sutura and the Secured Parties entered into an Amended Security Agreement dated March 24,
2005 (the “March 2005 Security Agreement”) to supersede and replace the Original Security
Agreement.
E. Sutura, Pandora, WHHY and WIP will have entered into a third Purchase Agreement dated as of
this date (the “Third Purchase Agreement”), pursuant to which Pandora, WHHY, WCAP and WIP are each
purchasing an additional convertible promissory note (each, a “New Note” and together, the “New
Notes”) and an additional warrant to purchase the Sutura’s Common Stock (each, a “New Warrant” and
together, the “New Warrants”) in consideration of a collective $7,000,000 new loan (the “August
2005 Loan”).
F. Effective
on August 19, 2005 (the “Effective Date”), Sutura, Inc., a Delaware corporation
(“Premerger Sutura”), merged with and into Technology Visions Group, Inc., a Delaware corporation
(“TVG”), pursuant to which the separate existence of Premerger Sutura ceased and TVG continued as
the surviving corporation. As part of that merger, the name of TVG was changed to Sutura, Inc.
(“Sutura”).
G. The Secured Parties desire to enter into this Agreement to supercede and replace the March
2005 Security Agreement.
NOW, THEREFORE, in consideration of the agreements herein and in reliance upon the
representations and warranties set forth herein and therein, the parties agree as follows:
ARTICLE 1.
DEFINED TERMS
1.1 DEFINITIONS. Unless otherwise defined herein or unless the context otherwise requires,
terms used in this Agreement, including its preamble and recitals, have the meanings provided in
the Uniform Commercial Code in effect in the State of Delaware (the “UCC”). In addition, the
following terms when used in this Agreement, including its preamble and recitals, shall have the
following meanings:
“Loan Documents” means this Agreement, the Third Purchase Agreement, the Second
Amended Patent and Trademark Security Agreement of this date among Sutura and the Secured
Parties (the “Patent and Trademark Security Agreement”) and the Notes.
“Notes” means the Original Notes, the March 2005 Notes and the New Notes.
“Obligations” means the payment and other performance obligations under the Loan
Documents, whether now existing or hereafter created.
ARTICLE 2.
SECURITY INTEREST
2.1 GRANT OF SECURITY INTEREST.
(a) To secure the timely payment and performance in full of the Obligations, Sutura does
hereby assign, grant and pledge to each Secured Party, all of the estate, right, title and interest
of Sutura in and to the Collateral as more fully described on Exhibit A hereto, whether now
owned or later acquired or created, and including all proceeds of the Collateral, whether cash or
non-cash (the “Collateral”).
(b) To further secure the Collateral, Sutura agrees to execute and deliver to Secured Parties
the Patent and Trademark Security Agreement in the form attached as Exhibit B.
2.2 FINANCING STATEMENTS.
(a) Sutura hereby authorizes each Secured Party to file all financing statements, continuation
statements, assignments, certificates, and other documents and instruments with respect to the
Collateral pursuant to the UCC and otherwise as may be necessary or reasonably requested by such
Secured Party to perfect or from time to time to publish notice of, or continue or renew the
security interests granted hereby (including, such financing statements, continuation statements,
certificates, and other documents as may be necessary or reasonably requested to perfect a security
interest in any additional property rights
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hereafter acquired by Sutura or in any replacements, products or proceeds thereof), in each
case in form and substance satisfactory to such Secured Party.
(b) Each Secured Party will pay its respective cost of filing the same in all public offices
where filing is necessary or reasonably requested by such Secured Party and will pay any and all
recording, transfer or filing taxes that may due in connection with any such filing. Sutura grants
each Secured Party the right, at any time and at such Secured Party’s option, to file any or all
such financing statements, continuation statements, and other documents pursuant to the UCC and
otherwise as Secured Party reasonably may deem necessary or desirable.
(c) Sutura hereby authorizes the filing of any financing statements or continuation
statements, and amendments to financing statements, or any similar document in any jurisdictions
and with any filing offices as each Secured Party may reasonably determine is necessary or
advisable to perfect its respective security interest granted to such Secured Party. Such
financing statements may describe the Collateral in the same manner as described herein or may
contain an indication or description of collateral that describes such property in any other manner
as Secured Party may reasonably determine is necessary, advisable or prudent to ensure the
perfection of its security interest in the Collateral granted to such Secured Party herein.
2.3 DEBTOR REMAINS LIABLE.
(a) Anything herein contained to the contrary notwithstanding, Sutura shall remain liable
under any contracts, agreements and other documents included in the Collateral, to perform all of
the obligations undertaken by it thereunder, all in accordance with and pursuant to the terms and
provisions thereof, and Secured Parties shall have no obligations or liabilities (jointly or
severally) under any such contracts, agreements and other documents by reason of or arising out of
this Agreement, nor shall Secured Parties be required or obligated in any manner to perform or
fulfill any obligations of Sutura thereunder or to make any payment, or to make any inquiry as to
the nature or sufficiency of any payment received by such Secured Party or present or file any
claim, or take any action to collect or enforce the payment of any amounts which may have been
assigned to such Secured Party or to which such Secured Party may be entitled at any time or times.
(b) If any default by Sutura under any of the contracts, agreements or other documents
included in the Collateral shall occur, each Secured Party shall, at its option, be permitted (but
shall not be obligated) to remedy any such default by giving written notice of such intent to
Sutura and to the parties to such contract, agreement or other document. Any cure by Secured Party
of Sutura’s default under any such contract, agreement or other document shall not be construed as
an assumption by such Secured Party of any obligations, covenants or agreements of Sutura contained
in such contract, agreement or other document, and Secured Party shall not incur any liability to
Sutura or any other person as a result of any actions undertaken by such Secured Party in curing or
attempting to cure any such default. This Agreement shall not be deemed to release or to affect in
any way the obligations of Sutura under any of such contracts, agreements or other documents.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF DEBTOR
Sutura makes the following representations and warranties to and in favor of each Secured
Party as of the date hereof. All of these representations and warranties shall survive the
execution and delivery of this Agreement:
3.1 ORGANIZATION. Sutura:
(a) is a corporation duly incorporated and validly existing and in good standing under the
laws of the State of Delaware;
(b) is duly qualified, authorized to do business as a foreign corporation in each jurisdiction
where the character of its properties or the nature of its activities makes such qualification
necessary; and
(c) has the corporate power (A) to enter into the Loan Documents and to perform its
obligations thereunder and to consummate the transactions contemplated thereby, (B) to carry on its
business as now being conducted and as proposed to be conducted by it, (C) to execute, deliver and
perform this Agreement, (D) to take all action as may be necessary to consummate the transactions
contemplated hereunder, and (E) to grant the liens and security interests provided for in this
Agreement.
3.2 OFFICES, LOCATION OF COLLATERAL. The chief executive office or chief place of business of
Sutura is located at 00000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx, XX, 00000.
3.3 TITLE AND LIENS. Sutura has good, valid, and marketable title to the Collateral, free
from all liens and encumbrances of any kind. As a result of this Agreement, Secured Parties will,
together, have a first priority security interest in the Collateral, subordinate to no other
secured rights.
3.4 AUTHORIZATION; NO CONFLICT. Sutura has duly authorized, executed and delivered this
Agreement, and Sutura’s execution and delivery hereof and its consummation of the transactions
contemplated hereby and the compliance with the terms thereof:
(a) does not or will not contravene any legal requirements applicable to or binding on Sutura
which could reasonably be expected to have a material adverse effect upon the Collateral or Secured
Party’s respective rights therein;
(b) does not or will not contravene or result in any breach of or constitute any default, or
result in or require the creation of any lien upon any of Sutura’s property, under any agreement or
instrument to which Sutura is a party or by which it or any of its properties may be bound or
affected; and
(c) does not or will not require the consent or approval of any third party which has not
already been obtained.
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3.5 ENFORCEABILITY. This agreement is a legal, valid and binding obligation of Sutura,
enforceable against Sutura in accordance with its terms, except to the extent that enforceability
may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting the enforcement of creditors’ rights or by the effect of general equitable
principles.
ARTICLE 4.
COVENANTS OF DEBTOR
Sutura covenants to and in favor of each Secured Party as follows:
4.1 COMPLIANCE WITH OBLIGATIONS. Sutura shall perform and comply in all material respects
with all obligations and conditions on its part to be performed with respect to the Collateral.
4.2 INFORMATION CONCERNING COLLATERAL. Sutura shall, promptly upon request, provide to
Secured Party all information and evidence that it reasonably requests concerning the Collateral to
enable such Secured Party to enforce the provisions of this Agreement.
4.3 DEFENSE OF COLLATERAL. Sutura shall defend its title to the Collateral and the respective
interest of each Secured Party in the Collateral pledged hereunder against the claims and demands
of all third parties whomsoever.
4.4 MAINTENANCE OF COLLATERAL. Sutura shall not (i) fail to deliver to Secured Party a copy
of each demand or notice received or given by it relating to any Constituent Document of Sutura or
to any other Collateral which could reasonably be expected to have a material adverse effect upon
the Collateral or Secured Party’s respective rights therein, or (ii) sell, contract to sell,
assign, transfer or dispose of any of the Collateral, except in the ordinary course of business, or
with the consent of each Secured Party, which consent will not be unreasonably withheld.
4.5 PRESERVATION OF VALUE; LIMITATION OF LIENS. Sutura shall not take any action in
connection with the Collateral which would impair in any material respect the respective interests
or rights of each Secured Party therein or with respect thereto, except as expressly permitted
hereby; provided, however, that nothing in this Agreement shall prevent Sutura, prior to the
exercise by Secured Party of any of its respective rights pursuant to the terms hereof, from
undertaking Sutura’s operations in the ordinary course of business. Sutura shall not directly or
indirectly create, incur, assume or suffer to exist any liens on or with respect to all or any part
of the Collateral (other than the lien created by this Agreement). Sutura shall at its own cost
and expense promptly take such action as may be necessary to discharge any such liens.
4.6 NO OTHER FILINGS. Sutura shall not file or authorize to be filed in any jurisdiction any
financing statements under the UCC or any like statement relating to the Collateral.
4.7 MAINTENANCE OF RECORDS. Sutura shall, at all times, keep accurate and complete records of
the Collateral. Sutura shall permit representatives of each Secured Party,
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upon reasonable prior notice, at any time during normal business hours of Sutura to inspect
and make abstracts from Sutura’s books and records pertaining to the Collateral. Upon the
occurrence and during the continuation of any Event of Default, at Secured Party’s request, Sutura
shall promptly deliver copies of any and all such records to such Secured Party.
4.8 PAYMENT OF TAXES. Sutura shall pay or cause to be paid, before any fine, penalty,
interest or cost attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies (other than those taxes that it is contesting in good faith and
by appropriate proceedings, and in respect of which it has established adequate reserves for such
taxes) now or hereafter assessed or levied against the Collateral pledged by them hereunder and
shall retain copies of, and, upon request, permit each Secured Party to examine receipts showing
payment of any of the foregoing.
4.9 NAME; JURISDICTION OF ORGANIZATION. Sutura shall give Secured Parties at least 30 days
prior written notice before Sutura changes its name, jurisdiction of organization or entity type
and shall at the expense of Sutura execute and deliver such instruments and documents as may be
required by Secured Parties or applicable legal requirements to maintain their perfected security
interests in the Collateral.
4.10 PROCEEDS OF COLLATERAL. Sutura shall, at all times, keep pledged to each Secured Party
pursuant hereto all Collateral and all dividends, distributions, interest, principal and other
proceeds received by Sutura with respect thereto, and all other Collateral and other securities,
instruments, proceeds and rights from time to time received by or distributable to Sutura in
respect of any Collateral, and shall not permit any issuer of such Collateral to issue any shares
of stock or other equity interests which shall not have been immediately duly pledged to each
Secured Party hereunder.
ARTICLE 5.
RIGHTS AND REMEDIES
5.1 EVENT OF DEFAULT DEFINED. Any failure to materially comply with any covenant, agreement,
term or provision contained in this Agreement, the Patent and Trademark Security Agreement or the
Third Purchase Agreement (provided such failure continues through five days after the Secured party
gives to Sutura written notice thereof) or any event of default under any of the Notes (including
events of non-compliance with this Agreement, as described in the Notes) shall constitute an “Event
of Default” hereunder. Without limiting the foregoing, it is intended that any event of default
under the New Notes will constitute an event of default under each of the Original Notes and the
March 2005 Notes.
5.2 REMEDIES UPON EVENT OF DEFAULT.
(a) During any period during which an Event of Default shall have occurred and be continuing,
each Secured Party may (but shall be under no obligation to), directly or by using agent or broker:
(i) proceed to protect and enforce the respective rights vested in it by this Agreement and
under the UCC;
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(ii) cause all moneys and other property pledged as security to Secured Party to be paid
and/or delivered directly to such Secured Party, and demand, xxx for, collect and receive any such
moneys and property;
(iii) cause any action at law or suit in equity or other proceeding to be instituted and
prosecuted to collect or enforce any Obligations of Sutura or rights included in the Collateral, or
for specific enforcement of any covenant or agreement contained herein, or in aid of the exercise
of any power therein or herein granted, or for any foreclosure hereunder and sale under a judgment
or decree in any judicial proceeding, or to enforce any other legal or equitable right vested in it
by this Agreement or by law;
(iv) foreclose or enforce any other agreement or other instrument by or under or pursuant to
which the Obligations of Sutura are issued or secured;
(v) subject to Section 5.2(b), sell, lease or otherwise dispose of any or all of the
Collateral, in one or more transactions, at such prices as such Secured Party may deem best, and
for cash or on credit or for future delivery, without assumption of any credit risk, at any
broker’s board or at public or private sale, without demand of performance or notice of intention
to sell, lease or otherwise dispose of, or of time or place of disposition (except such notice as
is required by applicable statute and cannot be waived), it being agreed that Secured Party may be
a purchaser or lessee on its own behalf at any such sale and that Secured Party or anyone else who
may be the purchaser, lessee or recipient for value of any or all of the Collateral so disposed of
shall, upon such disposition, acquire all of Sutura’s rights therein. Secured Party may adjourn
any public or private sale or cause the same to be adjourned from time to time by announcement at
the time and place fixed for the same, and such sale may, without further notice or publication, be
made at any time or place to which the same may be so adjourned. If Secured Party sells any of the
Collateral upon credit, after reasonable inquiry as to the credit worthiness of the purchaser,
Sutura will be credited only with payments actually made by the purchaser, received by Secured
Party and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay
for the Collateral, Secured Party may resell the Collateral and Sutura shall be credited with the
proceeds of the sale;
(vi) incur expenses, including reasonable attorneys’ fees, consultants’ fees, and other costs
appropriate to the exercise of any of its rights or powers under this Agreement;
(vii) perform any obligation of Sutura hereunder and make payments, purchase, contest or
compromise any encumbrance, charge, or lien, and pay taxes and expenses;
(viii) make any reasonable compromise or settlement deemed desirable with respect to any or
all of the Collateral and extend the time of payment, arrange for payment installments, or
otherwise modify the terms of, any or all of the Collateral;
(ix) secure the appointment of a receiver of any or all of the Collateral;
(x) exercise any other or additional rights or remedies granted to such Secured Party under
any other provision of this Agreement or exercisable by a secured party under the UCC, whether or
not the UCC applies to the affected Collateral, or under any other
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applicable law and take any other action which Secured Party deems necessary or desirable to
protect or realize upon its respective security interest in the Collateral or any part thereof;
and/or
(xi) appoint a third party (who may be an employee, officer or other representative of Secured
Party) to do any of the foregoing, or take any other action permitted hereunder, on behalf of such
Secured Party.
(b) If, pursuant to any law, prior notice of any action described in Section 5.2(a) is
required to be given to Sutura, Sutura hereby acknowledges that the minimum time required by such
law, or if no minimum is specified, ten days, shall be deemed a reasonable notice period.
(c) Any action or proceeding to enforce this Agreement may be taken by Secured Party either in
Sutura’s name or in Secured Party’s name, as each such Secured Party may deem necessary.
(d) All rights of marshalling of assets of Sutura, including any such right with respect to
the Collateral, are hereby waived by Sutura.
(e) Secured Party shall incur no liability as a result of the sale of any or all of the
Collateral at any private sale pursuant to Section 5.2(a) conducted in a commercially
reasonable manner. Sutura hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any or all of the Collateral may have been sold at such a private sale
was less than the price that might have obtained at a public sale or was less than the aggregate
amount of the Obligations, even if Secured Party accepts the first offer received and does not
offer the Collateral to more than one offeree.
5.3 ATTORNEYS-IN-FACT. Upon the occurrence and during the continuation of an Event of
Default, Sutura hereby irrevocably constitutes and appoints each Secured Party as its true and
lawful attorneys-in-fact to enforce all rights of Sutura with respect to the Collateral, including
the right to give appropriate receipts, releases and satisfactions for and on behalf of and in the
name of Sutura or, at the option of such Secured Party, in the name of such Secured Party, with the
same force and effect as Sutura could do if this Agreement had not been made. If Secured Party
shall so elect after the occurrence and during the continuation of an Event of Default hereunder,
Secured Party shall have the right at all times to settle, compromise, adjust, or liquidate all
claims or disputes directly with Sutura or any obligor of Sutura upon such terms and conditions as
each Secured Party may determine in its sole discretion, and to charge all costs and expenses
thereof (including reasonable attorneys’ fees and charges) to Sutura’s account and to add them to
the Obligations whereupon such costs and expenses shall be and become part of the Obligations.
This power of attorney is a power coupled with an interest and shall be irrevocable.
5.4 EXPENSES; INTEREST. All costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by each Secured Party in connection with exercising any actions taken under
Article 5, together with interest thereon (to the extent permitted by law) computed at a rate of
10% per annum (or if less, the maximum rate permitted by law) from the date on which such costs or
expenses are invoiced to and become payable by Sutura, to the date
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of payment thereof, shall constitute part of the Obligations secured by this Agreement and
shall be paid by Sutura to each such Secured Party within 10 days after written demand.
5.5 NO IMPAIRMENT OF REMEDIES. If, under applicable law, Secured Party proceeds by either
judicial foreclosure or by non-judicial sale or enforcement, such Secured Party may, at its sole
option, determine which of its remedies or rights to pursue without affecting any of its rights and
remedies under this Agreement. If, by exercising any right and remedy, Secured Party forfeits any
of its other rights or remedies, including any right to enter a deficiency judgment against Sutura
or any third party (whether because of any applicable law pertaining to “election of remedies” or
the like), Sutura nevertheless hereby consents to such action by Secured Party. To the extent
permitted by applicable law, Sutura also waives any claim based upon such action, even if such
action by Secured Party results in a full or partial loss of any rights of subrogation,
indemnification or reimbursement which Sutura might otherwise have had but for such action by
Secured Party or the terms herein. Any election of remedies which results in the denial or
impairment of the right of Secured Party to seek a deficiency judgment against any third party
shall not, to the extent permitted by applicable law, impair Sutura’s obligations hereunder. If
Secured Party bids at any foreclosure or trustee’s sale or at any private sale permitted by law or
this Agreement, Secured Party may bid all or less than the amount of the Obligations. To the
extent permitted by applicable law, the amount of the successful bid at any such sale, whether
Secured Party or any other party is the successful bidder, shall be conclusively deemed to be the
fair market value of the Collateral and the difference between such bid amount and the remaining
balance of the Obligations shall be conclusively deemed to be the amount of the Obligations.
ARTICLE 6.
CERTAIN WAIVERS
6.1 MODIFICATION OF OBLIGATIONS. Sutura’s liability hereunder shall not be reduced, limited,
impaired, discharged or terminated if Secured Parties at any time with Sutura’s consent (or, to the
extent permissible by the terms of the Loan Documents and law, without notice to or demand of
Sutura):
(a) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms, or otherwise modifies any of the Obligations (including any payment terms);
(b) extend or waive the time for Sutura’s performance of, or compliance with, any term,
covenant or agreement on their part to be performed or observed under the Loan Documents, or waive
such performance or compliance or consent to a failure of, or departure from, such performance or
compliance;
(c) settle, compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, any of the Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other obligations;
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(d) request and accept other guaranties of any of the Obligations and take and hold security
for the payment hereof or any of the Obligations;
(e) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment of any of the
Obligations, any other guaranties of any of the Obligations, or any other obligation of any third
party with respect to any of the Obligations;
(f) to the extent permitted by law, enforce and apply any security, if any, now or hereafter
held by or for the benefit of each Secured Party in respect hereof or any of the Obligations and
direct the order or manner of sale thereof, or exercise any other right or remedy that each Secured
Party may have against any such security, in each case as each Secured Party in its discretion may
determine, including foreclosure on any collateral pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable; or
(g) exercise any other rights available to them under any of the Loan Documents, at law or in
equity.
6.2 SECURITY INTERESTS ABSOLUTE. All rights of Secured Parties and the security interests
hereunder, and all obligations of Sutura hereunder, shall be absolute and unconditional
irrespective of:
(a) any failure or omission to assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising
under any Loan Document, at law, in equity or otherwise) with respect to any of the Obligations or
any agreement relating thereto, or with respect to any other guaranty of or security for the
payment of any of the Obligations;
(b) any rescission, waiver, amendment or modification of, or any consent to departure from,
any of the terms or provisions (including provisions relating to events of default) hereof, in any
other Loan Document or any agreement or instrument executed pursuant thereto, or of any other
guaranty or security for any of the Obligations, in each case, whether or not in accordance with
the terms hereof or any other Loan Document or any agreement relating to such other guaranty or
security;
(c) the application of payments received from any source (other than payments received from
the proceeds of any security for any of the Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Obligations) to the payment of indebtedness of
Sutura to Secured Party other than the Obligations, even though Secured Party might have elected to
apply such payment to any part or all of the Obligations;
(d) Secured Party’s consent to the change, reorganization or termination of the corporate
structure or existence of Sutura and to any corresponding restructuring of any of the Obligations;
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(e) any other act or thing or omission, or delay to do any other act or thing, which may or
might in any manner or to any extent vary the risk of Sutura as an obligor in respect of any of the
Obligations;
(f) any Obligations or any agreement relating thereto, at any time being found to be illegal,
invalid or unenforceable in any respect; and
(g) any defenses, set-offs or counterclaims which Sutura may allege or assert against Secured
Party in respect of the Obligations.
6.3 CERTAIN WAIVERS. Except as provided in Section 7.16, Sutura hereby waives any and all
defenses afforded to a surety, including promptness, diligence, notice of acceptance and any other
notice with respect to any of the Obligations and this Agreement and any requirement that Secured
Parties protect, secure, perfect or insure any security interest or lien, or any property subject
thereto, or exhaust any right or take any action against Sutura or any other third party or entity
or any collateral securing any of the Obligations, as the case may be.
6.4 POSTPONEMENT OF SUBROGATION. Sutura agrees that it will not exercise any rights which it
may acquire by way of rights of subrogation under this Agreement, by any payment made hereunder or
otherwise, while this Agreement is in effect, unless such action is required to stay or prevent the
running of any applicable statute of limitations. Any amount paid to Sutura on account of any such
subrogation rights prior to such time shall be held in trust for Secured Parties and shall
immediately be paid to Secured Parties and credited and applied against the Obligations. Any time
after this Agreement has terminated and if Sutura has made payment to Secured Parties of all of the
Obligations, or if an action is required to stay or prevent the running of any applicable statute
of limitations, then, at Sutura’s request, Secured Parties will execute and deliver to Sutura
appropriate documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to Sutura of an interest in the Obligations resulting from
such payment by Sutura.
ARTICLE 7.
MISCELLANEOUS
7.1 NOTICES. Any communications, including notices and instructions, between the parties
hereto or notices provided herein to be given may be given to the following addresses:
(a)
|
if to Sutura, at: | |
| Sutura, Inc. | ||
| 00000 Xxxxxxx Xxxxxx | ||
| Xxxxxxxx Xxxxxx, XX 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx, President and Chief Executive Officer | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: |
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| Xxxxxxx & Associates | ||
| 000 Xxxxx Xxxxxxxxx, 00xx Xxxxx | ||
| Xxxxx Xxxx, XX 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. | ||
(b)
|
if to Secured Parties, in care of: | |
| Whitebox Advisors, LLC | ||
| 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
| Xxxxxxxxxxx, XX 00000 | ||
| Attention: Xxxxxxxx Xxxx, Chief Financial Officer | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx & Xxxxxx P.A. | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxxxxx, XX 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 |
All notices or other communications required or permitted to be given hereunder shall be in
writing and shall be considered as properly given (a) on the date received in person, (b) on the
date received by overnight delivery service (including Federal Express, UPS, ETA, Xxxxx, DHL,
AirBorne and other similar overnight delivery services), (c) on the fourth business day following
the date mailed by first class United States mail, postage prepaid, registered or certified with
return receipt requested, (d) on the next business day after being transmitted by telecopy or by
other electronic means (including electronic mail). Any party shall have the right to change its
address for notice hereunder to any other location within the continental United States by giving
of notice to the other parties in the manner set forth hereinabove.
7.2 DELAY AND WAIVER; REMEDIES CUMULATIVE. No failure or delay by Secured Party in exercising
any of its rights or powers hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such rights or powers, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. Any waiver, permit, consent or approval of any kind or character on the
part of Secured Party of any breach or default under the Agreement or any waiver on the part of
Secured Party of any provision or condition of this Agreement must be in writing and shall be
effective only to the extent in such writing specifically set forth. No right, power or remedy
herein conferred upon or reserved to Secured Party hereunder is intended to be exclusive of any
other right, power or remedy, and every such right, power and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right, power and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy. Resort to any or all security now or hereafter held by each
Secured Party may be taken concurrently or
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successively and in one or several consolidated or independent judicial actions or lawfully
taken nonjudicial proceedings, or both.
7.3 ENTIRE AGREEMENT; SUPERSEDES ORIGINAL SECURITY AGREEMENT. This Agreement and any
agreement, document or instrument referred to herein integrate all the terms and conditions
mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in
respect of the subject matter hereof. This Agreement supersedes and replaces the Original Security
Agreement. By their signatures on this Agreement, the Original Secured Parties consent to the
sharing, on the same first secured priority basis, of their security interest in the Collateral
under this Agreement and the Amended Patent and Trademark Security Agreement with the New Secured
Parties, both as to the New Notes and as to any Option Notes that Sutura may sell and issue in the
future to the New Secured Parties.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the
laws of the State of Minnesota, exclusive of its conflict of laws rules.
7.5 SEVERABILITY. In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7.6 HEADINGS. Paragraph headings have been inserted in this Agreement as a matter of
convenience for reference only and it is agreed that such paragraph headings are not a part of this
Agreement and shall not be used in the interpretation of any provision of this Agreement.
7.7 WAIVER OF JURY TRIAL. SUTURA HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF SECURED PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH SECURED PARTY TO MAKE THE LOAN.
7.8 CONSENT TO JURISDICTION. Each party hereto agrees that any legal action or proceeding
with respect to or arising out of this Agreement may be brought in or removed to the federal or
state courts located in Hennepin County, Minnesota, as Secured Party may elect. By execution and
delivery of this Agreement, each party hereto accepts, for themselves and in respect of their
property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each of the
parties hereto irrevocably consents to the service of process out of any of the aforementioned
courts in any manner permitted by law. Nothing herein shall affect the right of each Secured Party
to bring legal action or proceedings in any other competent jurisdiction. Each party hereto hereby
waives any right to stay or dismiss any action or proceeding under or in connection with this
Agreement brought before the foregoing courts on the basis of forum non-conveniens.
7.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
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7.10 COUNTERPARTS. This Agreement may be executed in one or more duplicate counterparts and
when signed by all of the parties listed below, shall constitute a single binding agreement.
Delivery of an executed signature page of this Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart thereof.
7.11 BENEFIT OF AGREEMENT. Nothing in this Agreement, express or implied, shall give or be
construed to give, any person other than the parties hereto and their respective permitted
successors, transferees and assigns any legal or equitable right, remedy or claim under this
Agreement, or under any covenants and provisions of this Agreement, each such covenant and
provision being for the sole benefit of the parties hereto and their respective permitted
successors, transferees and assigns.
7.12 AMENDMENTS AND WAIVERS. No amendment, modification, termination or waiver of any
provision of this Agreement or consent to any departure therefrom shall be effective unless the
same shall be in writing and signed by each of the parties hereto. Each amendment, modification,
termination or waiver shall be effective only in the specific instance and for the specific purpose
for which it was given.
7.13 SURVIVAL OF AGREEMENTS. The provisions regarding the payment of expenses and
indemnification obligations shall survive and remain in full force and effect regardless of the
termination of this Agreement pursuant to Section 7.14.
7.14 RELEASE AND SATISFACTION. Upon the indefeasible payment (whether in cash and/or other
consideration which is satisfactory to each Secured Party in its sole discretion) and performance
in full of the Obligations, (i) this Agreement and the security interests created hereby shall
terminate and Secured Parties will return the Collateral, including all documentation evidencing or
affecting the Collateral, and (ii) upon written request of Sutura, Secured Parties shall execute
and deliver to Sutura, at Sutura’s expense and without representation or warranty by or recourse to
Secured Parties, releases and satisfactions of all financing statements, mortgages, notices of
assignment and other registrations of security.
7.15 REINSTATEMENT. This Agreement shall continue to be effective or be automatically
reinstated, as the case may be, if at any time any payment pursuant to this Agreement is rescinded
or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization,
liquidation of Sutura or upon the dissolution of, or appointment of any intervenor or conservator
of, or trustee or similar official for, Sutura or any substantial part of Sutura’s assets, or
otherwise, all as though such payments had not been made.
7.16 LIMITATION ON DUTY OF SECURED PARTY WITH RESPECT TO THE COLLATERAL. The powers conferred
on each Secured Party hereunder are solely to protect its respective interests in the Collateral
and shall not impose any duty on such Secured Party or any of its designated agents to exercise any
such powers. Except for the safe custody of any Collateral in their possession and the accounting
for monies actually received by them hereunder, Secured Parties shall have no duty with respect to
any Collateral and no implied duties or obligations shall be read into this Agreement against
Secured Parties. Each Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral is accorded
treatment that is substantially equivalent
-14-
to that which such Secured Party accords its own respective property, it being expressly
agreed, to the maximum extent permitted by applicable law, that each Secured Party shall have no
responsibility for (a) taking any necessary steps to preserve rights against any parties with
respect to any Collateral or (b) taking any action to protect against any diminution in value of
the Collateral, but, in each case, each Secured Party may do so and all expenses reasonably
incurred in connection therewith shall be part of the Obligations.
7.17 COLLECTION AGENT. The following shall relate to the enforcement of this Agreement:
(a) The Secured Parties hereby appoint Whitebox Advisors, LLC as the initial collection agent
and attorney-in-fact for the Secured Parties under this Agreement (in such capacity, the
“Collection Agent”) to serve from the date hereof until the termination hereof, or until the
Collection Agent’s successor is duly appointed by agreement among the Secured Parties and their
successors in interest and the Secured Parties and their successors in interest notify Sutura in
writing of the newly appointed successor Collection Agent. Each Secured Party hereby authorizes
the Collection Agent to act as exclusive agent of and for all Secured Parties for purposes of
taking any action to enforce rights and foreclose and dispose of any Collateral under this
Agreement and the Patent and Trademark Security Agreement (together, the “Security Agreements”).
Each Secured Party agrees that it shall not take any action against Sutura to enforce rights under
the Security Agreements and foreclose and dispose of any Collateral, except through and as directed
by the Collection Agent.
(b) Each Secured Party hereby irrevocably authorizes the Collection Agent to take such action
and to exercise such powers hereunder as provided herein or as requested in writing by any of the
Secured Parties. The Collection Agent may rely upon advice of counsel concerning legal matters,
advice of certified public accountants with respect to accounting matters and advice of other
experts as to any other xxxxxx which it reasonably believes to be genuine or to have been presented
by an appropriate person under the circumstances. The Collection Agent may execute any of its
duties hereunder by or through agents or employees and shall be entitled to request and act in
reliance upon the advice of counsel concerning all matters pertaining to its duties hereunder and
shall not be liable for any action taken or omitted to be taken by it in good faith in accordance
therewith. The Collection Agent may take any and all actions that the Collection Agent deems
necessary or appropriate, in its reasonable discretion, in exercising its powers hereunder,
including, but not limited to, initiating any action in the name of the Secured Parties against
Sutura, foreclosing on the Collateral or exercising any other rights available to the Collection
Agent on behalf of the Secured Parties at law or in equity.
(c) Sutura may rely on all orders and directions of the Collection Agent appointed under
subsection (a) above as acting on behalf, and with the authority, of the Secured Parties, or any of
them, without liability to any Secured Party or its successors in interest.
[Signature Page Follows]
-15-
IN WITNESS WHEREOF, the undersigned have hereunto affixed their signatures.
| Sutura: | Secured Parties: | |||||
| Sutura, Inc. | Pandora Select Partners, L.P. | |||||
By
|
By | |||||
| Xxxxxxx X. Xxxxxx, President and Chief Executive Officer | Its |
|||||
| Whitebox Hedged High Yield Partners, L.P. | ||||||
| By | ||||||
| Its | ||||||
| Whitebox Convertible Arbitrage Partners, L.P. | ||||||
| By | ||||||
| Its | ||||||
| Whitebox Intermarket Partners, L.P. | ||||||
| By | ||||||
| Its | ||||||
| Xxxx X. Xxxxxx | ||||||
| Xxxx X. Xxxxxx | ||||||
-16-
EXHIBIT A
DESCRIPTION OF SUTURA COLLATERAL
All assets (except as excluded in the last paragraph below) of Sutura, Inc., a Delaware
corporation (the “Company”), including without limitation, the following:
Inventory: All inventory of the Company as that term is defined in the Uniform Commercial
Code, whether now owned or hereafter acquired or in which the Company obtains rights, whether
consisting of whole goods, spare parts or components, supplies or materials whether acquired, held
or furnished for sale, for lease, for participation, revenue-sharing or other similar arrangements,
or under contracts or for manufacture or processing, and wherever located;
Equipment: All equipment of the Company, whether now owned or hereafter acquired, including
all present and future machinery, vehicles, furniture, fixtures, office and recordkeeping
equipment, parts, tools, supplies and all other goods (except inventory) used or bought for use by
the Company for any business or enterprise and including specifically (without limitation) all
accessions thereto, all substitutions and replacements thereof, and all like or similar property
now owned or hereafter acquired by the Company, and all of which is owned by the Company, and all
deposits made on any such equipment;
Deposit Accounts and Other Cash: All deposits and deposit accounts with any bank, savings and
loan association, credit union or like organization, and all funds and amounts therein, and whether
or not held in trust, or in custody or safekeeping, or otherwise restricted or designated for a
particular purpose, and all other cash or marketable securities on hand, whether held in-vault or
otherwise;
Receivables: Each and every right of the Company to the payment of money, whether such right
to payment now exists or hereafter arises, whether such right to payment arises out of a sale,
lease or other disposition of goods or other property, out of a rendering of services, or of a
loan, out of the overpayment of taxes or other liabilities, or any other transaction or event,
whether such right to payment is created, generated or earned by the Company or by some other
person who subsequently transfers his, her or its interest to the Company, whether such right to
payment is or is not already earned by performance, and howsoever such right to payment may be
evidenced, together with all other rights and interests (including all liens and other security
interests) which the Company may at any time have by law or agreement against any account debtor or
other person obligated to make such payment or against any property of such account debtor or other
persons including, but not limited to, all present and future accounts, contract rights, chattel
paper, bonds, notes and other debt instruments, and rights to payment in the nature of general
intangibles; and to include, without limitation, each and every right of the Company to the
payment of money, whether such right to payment now exists or hereafter arises, out of a sale,
lease or other disposition of Inventory or Equipment, including rights to payment on account of
participation, revenue-sharing or other similar arrangements relating to Inventory or Equipment
placed in service with third parties;
A-1
General Intangibles: All general intangibles of the Company whether now owned or hereafter
acquired, including (without limitation) all present and future patents, patent applications,
copyrights, trademarks, trade names, trade secrets, customer or supplier lists and contracts,
manuals, operating instructions, permits, franchises, the right to use the Company’s name, the
Company’s internet domain names and address and the goodwill of the Company’s business.
Securities: All securities and other equity interests now owned or hereafter acquired by the
Company, including shares of capital stock of any wholly owned or partially owned subsidiary of the
Company.
The Collateral shall include (i) all substitutes and replacements for and proceeds of any and
all of the foregoing property, and in the case of all tangible Collateral, all accessions,
accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed to or
use in connection with any such goods and (ii) all warehouse receipts, bills of lading and other
documents of title now or hereafter covering such goods.
A-2
