EXHIBIT 10.2
THIRD PARTY SECURITY AGREEMENT
------------------------------
This THIRD PARTY SECURITY AGREEMENT is entered into as of September 24,
1997, by and between SILICON VALLEY BANK ("Bank") and Premier Laser Systems,
Inc. ("Pledgor").
RECITALS
--------
EYESYS TECHNOLOGIES, INC. ("Borrower") wishes to borrow money from time to
time from Bank pursuant to a Loan and Security Agreement of even date (the "Loan
Agreement"). Bank has agreed to enter into the Loan Agreement, provided Pledgor
secures the payment and performance obligations under the Loan Agreement in
accordance with the terms of this Agreement.
AGREEMENT
---------
The parties agree as follows:
1. CREATION OF SECURITY INTEREST
-----------------------------
1.1 Grant of Security Interest. Pledgor grants to Bank a continuing
--------------------------
security interest in the property described in Exhibit A attached hereto (the
---------
"Collateral") in order to secure prompt repayment of any and all obligations and
in order to secure prompt performance by Borrower of each of its covenants and
duties under the Loan Agreement, as amended from time to time, and any other
agreements entered into between Bank and Borrower (the "Loan Documents"). Such
security interest constitutes a valid, first priority security interest in the
presently existing Collateral, and will constitute a valid, first priority
security interest in Collateral acquired after the date hereof. Borrower
acknowledges that Bank may place a hold on the deposit account pledged as
Collateral.
1.2 Delivery of Additional Documentation Required. Pledgor shall
---------------------------------------------
from time to time execute and deliver to Bank, documents that Bank may
reasonably request, in form satisfactory to Bank, to perfect and continue
perfected Bank's security interests in the Collateral and in order to fully
consummate all of the transactions contemplated under the Loan Documents.
2. REPRESENTATIONS AND WARRANTIES
------------------------------
Pledgor represents and warrants as follows:
2.1 Due Organization and Qualification. Pledgor is a corporation
----------------------------------
duly existing and in good standing under the laws of its state of incorporation
and qualified and licensed to do business in, and is in good standing in, any
state in which the conduct of its business or its ownership of property requires
that it be so qualified.
2.2 Due Authorization; No Conflict. The execution, delivery, and
------------------------------
performance of this Agreement are within Pledgor's powers, have been duly
authorized, and are not in conflict with nor constitute a breach of any
provision contained in Pledgor's Articles of Incorporation or Bylaws, nor will
they constitute an event of default under any material agreement to which
Pledgor is a party or by which Pledgor is bound.
2.3 No Prior Encumbrances. Pledgor has good and indefeasible title
---------------------
to the Collateral, free and clear of any liens, security interests, or other
encumbrances.
3. AFFIRMATIVE COVENANTS
---------------------
Pledgor covenants and agrees that, until payment in full of all
outstanding Obligations under the Loan Agreement and this Agreement, and for so
long as Bank may have any commitment to make an Advance under the Loan
Agreement, Pledgor shall do all of the following:
1
3.1 Good Standing. Pledgor shall maintain its corporate existence
-------------
and its good standing in its jurisdiction of incorporation and maintain
qualification in each jurisdiction in which the failure to so qualify could have
a material adverse effect on Pledgor's business. Pledgor shall maintain in
force all licenses, approvals and agreements, the loss of which could have a
material adverse effect on Pledgor's business.
3.2 Government Compliance. Pledgor shall comply with all statutes,
---------------------
laws, ordinances and government rules and regulations to which it is subject,
noncompliance with which could have a material adverse effect on Pledgor's
business.
4. NEGATIVE COVENANTS
------------------
Pledgor covenants and agrees that until payment in full of all
outstanding Obligations under the Loan Agreement and this Agreement, Pledgor
will not do any of the following:
4.1 Dispositions. Convey, sell, lease, transfer or otherwise dispose
------------
of (collectively, a "Transfer"), all or any part of the Collateral other than:
(i) Transfers in the ordinary course of business; (ii) Transfers of non-
exclusive licenses and similar arrangements for the use of the Collateral; or
(iii) Transfers of worn-out or obsolete Equipment.
4.2 Change in Business Location. Without thirty (30) days prior
---------------------------
written notification to Bank, relocate its chief executive office.
4.3 Encumbrances. Create, incur, assume or suffer to exist any
------------
security interest, lien or encumbrance with respect to the collateral.
5. EVENTS OF DEFAULT
-----------------
Any one or more of the following events shall constitute an Event of
Default by Pledgor under this Agreement:
5.1 Loan Documents. If an Event of Default occurs under any of the
--------------
Loan Documents;
5.2 Covenant Default. If Pledgor fails or neglects to perform, keep,
----------------
or observe any material term, provision, condition, covenant, or agreement
contained in this Agreement.
5.3 Attachment. If any portion of the Collateral is made the subject
----------
of a lien, security interest or other encumbrance, or is attached, seized,
subjected to a writ or distress warrant, or is levied upon, or comes into the
possession of any trustee, receiver or person acting in a similar capacity and
such attachment, seizure, writ or distress warrant or levy has not been removed,
discharged or rescinded within ten (10) days, or if Pledgor is enjoined,
restrained, or in any way prevented by court order from continuing to conduct
all or any material part of its business affairs.
5.4 Misrepresentations. If any material misrepresentation or
------------------
material misstatement exists now or hereafter in any warranty or representation
set forth herein or in any certificate delivered to Bank by any Responsible
Officer pursuant to this Agreement or to induce Bank to enter into this
Agreement or any other Loan Document.
6. BANK'S RIGHTS AND REMEDIES
--------------------------
6.1 Rights and Remedies. Upon the occurrence and during the
-------------------
continuance of an Event of Default, Bank may, at its election, without notice of
its election and without demand, do any one or more of the following, all of
which are authorized by Pledgor:
2
(a) Exercise all rights available to it under the California
Uniform Commercial Code and applicable law;
(b) Set off and apply to the obligations any and all (i) balances
and deposits of Pledgor held by Bank, or (ii) indebtedness at any time owing to
or for the credit or the account of Pledgor held by Bank; and
(c) Sell the Collateral at either a public or private sale, or
both, by way of one or more contracts or transactions, for cash or on terms, in
such manner and at such places (including Pledgor's premises) as Bank determines
is commercially reasonable.
6.2 Remedies Cumulative. Bank's rights and remedies under this
-------------------
Agreement, the Loan Documents, and all other agreements shall be cumulative.
Bank shall have all other rights and remedies not inconsistent herewith as
provided under the Code, by law, or in equity. No exercise by Bank of one right
or remedy shall be deemed an election, and no waiver by Bank of any Event of
Default on Pledgor's part shall be deemed a continuing waiver. No delay by Bank
shall constitute a waiver, election, or acquiescence by it.
6.3 Demand; Protest. Pledgor waives demand, protest, notice of
---------------
protest, notice of default or dishonor, notice of payment and nonpayment, notice
of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and
guarantees at any time held by Bank on which Pledgor may in any way be liable.
7. NOTICES
-------
Unless otherwise provided in this Agreement, all notices or demands by
any party relating to this Agreement or any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by certified mail, postage
prepaid, return receipt requested, or by prepaid telefacsimile to Pledgor or to
Bank, as the case may be, at its addresses set forth below:
If to Pledgor: Premier Laser Systems, Inc.
3 Morgan
Xxxxxx, XX 00000
Attn.:_____________________
FAX:_______________________
If to Bank: Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn.:_____________________
FAX:_______________________
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
8. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
------------------------------------------
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of California, without regard to principles of
conflicts of law. Each of Pledgor and Bank hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the County of Orange,
State of California. Pledgor AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY
OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
3
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
9. GENERAL PROVISIONS
------------------
9.1 Successors and Assigns. This Agreement shall bind and inure to
----------------------
the benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights hereunder
-------- -------
may be assigned by Pledgor without Bank's prior written consent, which consent
may be granted or withheld in Bank's sole discretion. Bank shall have the right
without the consent of or notice to Pledgor to sell, transfer, negotiate, or
grant participations in all or any part of, or any interest in Bank's
obligations, rights and benefits hereunder.
9.2 Indemnification. Pledgor shall defend, indemnify and hold
---------------
harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement; and
(b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Pledgor whether under this Agreement, or otherwise
(including without limitation reasonable attorneys fees and expenses), except
for losses caused by Bank's gross negligence or willful misconduct.
9.3 Time of Essence. Time is of the essence for the performance of
---------------
all obligations set forth in this Agreement.
9.4 Severability of Provisions. Each provision of this Agreement
--------------------------
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
9.5 Amendments in Writing, Integration. This Agreement cannot be
----------------------------------
changed or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement and the Loan Documents.
9.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Agreement.
9.7 Survival. All covenants, representations and warranties made in
--------
this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Pledgor to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in this Agreement shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run.
9.8 Amendment of Loan Documents. Pledgor authorizes Bank, without
---------------------------
notice or demand and without affecting its liability hereunder, from time to
time to (a) renew, extend, or otherwise change the terms of the Loan Documents
or any part thereof; (b) take and hold security for the payment of the Loan
Documents, and exchange, enforce, waive and release any such security; and (c)
apply such security and direct the order or manner of sale thereof as Bank in
its sole discretion may determine.
9.9 Pledgor Waivers. Pledgor waives any right to require Bank to (a)
---------------
proceed against Borrower, any other guarantor or any other person; (b) proceed
against or exhaust any security held from Borrower; (c) marshal any assets of
Borrower; or (d) pursue any other remedy in Bank's power whatsoever. Bank may,
at its election, exercise or decline or fail to exercise any right or remedy it
may have against Borrower or any security held by Bank, including without
limitation the right to foreclose upon any such security by judicial or
nonjudicial sale, without
4
affecting or impairing in any way the liability of Pledgor hereunder. Pledgor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower. Pledgor waives any setoff, defense or counterclaim that
Borrower may have against Bank. Pledgor waives any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or any
other rights against Borrower. Pledgor shall have no right of subrogation or
reimbursement, contribution or other rights against Borrower, and Pledgor waives
any right to enforce any remedy that Bank now has or may hereafter have against
Borrower. Pledgor waives all rights to participate in any security now or
hereafter held by Bank. Pledgor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, and notices of acceptance of this Pledge Agreement and of the
existence, creation, or incurring of new or additional indebtedness. Pledgor
assumes the responsibility for being and keeping itself informed of the
financial condition of Borrower and of all other circumstances bearing upon the
risk of nonpayment of any indebtedness or nonperformance of any obligation of
Borrower, warrants to Bank that it will keep so informed, and agrees that absent
a request for particular information by Pledgor, Bank shall have no duty to
advise Pledgor of information known to Bank regarding such condition or any such
circumstances. Pledgor waives the benefits of California Civil Code sections
2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433.
9.10 Borrower Insolvency. If Borrower becomes insolvent or is
-------------------
adjudicated bankrupt or files a petition for reorganization, arrangement,
composition or similar relief under any present or future provision of the
United States Bankruptcy Code, or if such a petition is filed against Borrower,
and in any such proceeding some or all of any indebtedness or obligations under
the Loan Documents are terminated or rejected or any obligation of Borrower is
modified or abrogated, or if Borrower's obligations are otherwise avoided for
insolvency, bankruptcy or any similar reason, Pledgor agrees that Pledgor's
liability hereunder shall not thereby be affected or modified and such liability
shall continue in full force and effect as if no such action or proceeding had
occurred. This Agreement shall continue to be effective or be reinstated, as
the case may be, if any payment must be returned by Bank upon the insolvency,
bankruptcy or reorganization of Borrower, Pledgor, any other person, or
otherwise, as though such payment had not been made.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PLEDGOR:
PREMIER LASER SYSTEMS, INC.
By: /s/ XXXXXXX XXXXXX
_______________________________
Title: President
____________________________
By: /s/ XXXXXXX XXXXXXX
_______________________________
Title: Chief Financial Officer
____________________________
BANK:
SILICON VALLEY BANK
By: /s/ XXXXXX XXXXXXXX
_______________________________
Title: Vice President
____________________________
6
Exhibit "A"
The Collateral consists of all of Pledgor's right, title and interest in the
following:
Silicon Valley Bank's Certificate of Deposit No. 8800017562 and 880002141 in
amounts not less than Two Million One Hundred Thousand and 00/100 Dollars
($2,100,000.00, together with all renewals of, extensions of, and proceeds of
the foregoing.
7
