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EXHIBIT 10.48
SECURITY AGREEMENT
THIS AGREEMENT made and entered into this 30th day of January, 1997, by
and between Caraco Pharmaceutical Laboratories, Ltd., the address of which is
0000 Xxxxxx XxXxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Debtor"), and Xxx X. Xxxxxx,
as Trustee of the Xxx X. Xxxxxx Qualified Terminable Interest Marital Trust
u/a/d April 8, 1982, the address of which is 0000 X. Xxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Secured Party").
R E C I T A L S:
In consideration of the mutual covenants and agreements of the parties
hereinafter set forth and good and valuable consideration paid and/or extended
by Secured Party to Debtor, the receipt and sufficiency of which is hereby
acknowledged by Debtor, the parties hereto agree as follows:
1. CREATION OF SECURITY INTEREST. To secure the payment of the sums or
performance of the obligations referred to as the "Indebtedness" in Paragraph 2
of this Agreement, Debtor does hereby create in favor of Secured Party, its
successors and assigns, a continuing security interest and lien in all of
Debtor's right, title and interest in and to the following, wherever located,
(from time to time referred to as the "Collateral") which as used herein shall
have those definitions set forth below:
A. ACCOUNTS. All present and future Accounts, Documents, Chattel
Paper, Instruments, Contracts Rights, General Intangibles (as
defined below) and choses in action, now owned or hereafter
acquired, including, without limitation, any right to any refund
of taxes heretofore or hereafter paid to any governmental
authority including, without limitation, all new drug
applications to, and approvals of such applications from, the
United States Food and Drug Administration and other regulatory
agencies;
B. SPECIFIED EQUIPMENT. The equipment listed on Schedule A hereto,
and including, without limitation, all accessions, accessories,
tools and dies, parts attached thereto or used or intended to be
used in connection therewith and all books, records, instruments
and documents relating thereto or useful in maintaining or
realizing upon such equipment, and all substitutions of,
improvements to and replacements of as well as all additions to
all of the foregoing, whether now owned or hereafter acquired by
Debtor;
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C. INVENTORY. All Inventory and Goods, now owned or hereafter
acquired including, without limitation, raw materials, scrap,
work-in-process, finished Goods, tangible property,
stock-in-trade, wares and merchandise used in, held for sale or
sold in the ordinary course of business, including, without
limitation, Goods for sale, lease or other disposition which give
rise to any Accounts, all Goods which have been returned to,
repossessed or stopped in transit by the party granting a
security interest to Secured Party herein, and all accessions,
parts attached thereto or used or intended to be used in
connection therewith, and all books, records, instruments and
documents relating thereto or useful in maintaining or realizing
upon the Inventory;
D. PROCEEDS. Proceeds, and proceeds of hazard insurance and eminent
domain or condemnation awards of all of the foregoing described
assets and/or properties or interests therein, including, without
limitation, all products of, and accessions to, such assets or
properties or interests therein. In addition thereto, any and
all deposits or other sums at any time credited by or due from
Secured Party to Debtor and any and all Instruments, Documents,
policies and certificates of insurance, securities, Goods,
Accounts, choses in action, chattel paper, cash, property and the
proceeds thereof (whether or not the same are Collateral or
Proceeds thereof hereunder) owned by Debtor or in which Debtor
has an interest, which are now or at any time hereafter in
possession or control of Secured Party or in transit by mail or
carrier to or from Secured Party or in possession of any third
party acting on Secured Party's behalf, without regard to whether
Secured Party received the same in pledge, for safekeeping, as
agent or otherwise, or whether Secured Party has conditionally
released the same;
E. ACCOUNTS, CHATTEL PAPER, CONTRACTS, CONTRACT RIGHTS, DOCUMENTS,
GENERAL INTANGIBLES, GOODS, INSTRUMENTS AND INVENTORY. The
foregoing terms shall have meanings ascribed to them in the
Uniform Commercial Code as adopted by the State of Michigan, as
supplemented by the definitions set forth above;
whether now owned or hereafter acquired by Debtor, and all books, records,
instruments and documents relating thereto or useful in maintaining or
realizing upon the Collateral.
2. INDEBTEDNESS. Secured Party has agreed to loan Debtor the aggregate
amount of Four Hundred Thousand and No/100 ($400,000) Dollars in one or more
payments and Debtor shall pay to Secured Party when due all amounts evidenced
by those Secured Promissory Notes in the aggregate principal amount of Four
Hundred Thousand and no/100 ($400,000.00)
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Dollars, with interest as therein provided, executed and delivered by Debtor to
Secured Party (the "Notes"), as the same may be modified, renewed, extended,
amended or replaced from time to time, and shall pay all amounts and perform all
obligations required under or pursuant to this Agreement and all other documents
and/or agreements delivered to Secured Party in connection with the Notes (the
"Loan Documents"), such obligations of payment and performance being hereinafter
collectively referred to as the "Indebtedness".
3. ACCELERATION CLAUSE. Upon the occurrence of any Default (as defined
pursuant to Section 9 hereof), all of the Indebtedness of Debtor, whether due
or not, shall become immediately due and payable in accordance with the terms
of the Notes and the other Loan Documents.
4. USE OF COLLATERAL. The Collateral shall be used exclusively in
connection with the conduct of Debtor's present business, unless Secured Party
gives its written consent to another use. Secured Party shall have the right
to inspect the Collateral at any time, to inspect Debtor's books and records
with respect thereto and to make inquiry of account and contract debtors in
connection therewith, all at any time.
5. REMOVAL. The Collateral shall be kept at Debtor's business premises,
and shall not be removed therefrom without the written consent of Secured
Party. Removal of any of the Collateral by Debtor, or its agents, servants or
employees, shall be deemed a willful taking, an unlawful conversion and a
default under this Agreement. Use of the Collateral and sale of the Inventory
in the regular and ordinary course of Debtor's business shall not constitute a
prohibited removal of the Collateral for the purpose of this Agreement.
6. REPAIRS AND TAXES. Debtor shall at its own expense, from time to
time, replace and repair all parts of the Collateral as may be broken, worn,
damaged or otherwise in need of repair, and shall keep the Collateral in every
respect in good working order and repair. Debtor shall pay all taxes charged
against, assessed or imposed upon any of the Collateral.
7. INSURANCE. Debtor shall keep the Collateral insured against loss and
damage by casualty, theft and such other perils with insurers and coverages
reasonably acceptable to Secured Party.
8. DEBTOR'S WARRANTIES AND REPRESENTATIONS. Debtor warrants, represents
and covenants that:
A. The Collateral is or will be owned by Debtor and except with
respect to the collateral securing the Sun Loan and Hagelstein
Loan as defined in that certain Inter-Creditor Agreement of even
date herewith, the Collateral is not subject to any security
interests, liens or encumbrances, charges, restrictions or claims
except as created by this Agreement, and Debtor will defend the
Collateral against the claims and demands of all persons;
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B. Debtor will execute, and will pay all costs of filing of, any
financing, continuation or termination statement with respect to
the security interest created by this Agreement deemed necessary
or desirable by the Secured Party;
C. Debtor shall from time to time, at the expense of Debtor, execute
and deliver all further instruments and documents, and take all
further actions, that the Secured Party may reasonably deem
necessary or desirable, in order to perfect and protect any
security interest granted or purported to be granted hereby or to
enable the Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
D. Debtor hereby authorizes the Secured Party to file one or more
financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral, with or without
Debtor's signature thereon.
E. Debtor was incorporated under the name J-Mac Domestic, Inc.,
changed its name to Caraco, Inc. until changing its name to its
current name, and Debtor's chief executive office and sole place
of business is located at 0000 Xxxxxx XxXxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000.
F. Debtor is a corporation duly organized under the laws of
Michigan, validly existing and in good standing and has full
corporate power to own, operate and lease its properties and to
carry on its business as now conducted. Debtor is qualified to do
business in all jurisdictions where the nature of its activities
would make such qualification necessary and the failure to so
qualify would have a material and adverse affect on the Debtor.
G. Debtor has all power, statutory and otherwise, to execute and
deliver this Security Agreement, the Notes and the Inter-Creditor
Agreement, and the execution hereof and thereof, and Debtor's
performance of its obligations hereunder and thereunder, have
been approved by all appropriate corporate action. Such
agreements and documents constitute the legal, valid and binding
obligation of Debtor, enforceable against such Debtor in
accordance with its terms.
H. The equipment listed on Schedule A hereto is not subject to the
lien of the Economic Development Corporation of the City of
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Detroit and Debtor reasonably believes the Equipment has a fair
market value of not less than $1.5 million.
I. Debtor shall not move the Collateral or change Debtor's name, identity or
corporate structure unless it has received Secured Party's prior written
consent thereto and has taken all action necessary or reasonably requested
by the Secured Party to amend any financing statement or continuation
statement filed with respect to the Collateral in connection therewith.
J. The execution, delivery and performance of this Agreement and the
other Loan Documents by Debtor and its performance of its
obligations hereunder and thereunder does not conflict with or
result in any violation of or constitute a breach or default
under (i) any term of the Articles of Incorporation or Bylaws of
Debtor, (ii) any indenture, agreement instrument, order, judgment
or decree to which Debtor is a party, bound or subject or to
which any of the assets or business of Debtor are subject, (iii)
any law, statute or regulation of any governmental or regulatory
body.
K. No approval or consent of the execution, delivery and performance
by the Debtor of this Agreement, the Notes, and the other Loan
Documents is required by law or by the Debtor's existing Articles
of Incorporation or Bylaws or by any contract, indenture,
agreement, instrument, order, judgment or decree to which the
Debtor is a party or otherwise bound or to which any of its
property or business is subject, or by any indebtedness of the
Debtor.
L. There are no actions, proceedings or investigations pending or,
to the knowledge of the Debtor, threatened against the Debtor
before any court, administrative agency or other governmental or
regulatory authority. Neither the Debtor nor its property and
assets is subject to any judicial or administrative order,
judgment or decree which could have a material adverse effect on
the Debtor, its business, properties, condition (financial or
otherwise) or prospects. The Debtor has not violated any
federal, state or local laws, regulations or orders.
9. DEFAULT. The following shall constitute defaults (each a "Default")
under this Agreement:
A. The occurrence of any breach of warranty or other
misrepresentation, omission or misstatement in connection with
or
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noncompliance or nonperformance of any of Debtor's
covenants, obligations (other than to make payment), agreements
(other than to make payment), representations or warranties
under this Agreement, the Notes or any other Loan Document
(including the occurrence of any other default identified under
this Agreement or any of the other Loan Documents) which is not
cured within 15 days after notice thereof from Secured Party to
Debtor;
B. Any default in the payment of any portion of the
Indebtedness when due in accordance with the terms of the Notes,
this Agreement or the Loan Documents;
C. Debtor's voluntarily application for the appointment of a
custodian, trustee or receiver to take custody or dispose of any
substantial portion of its assets; or the appointment by a court
of competent jurisdiction of a custodian, trustee or receiver to
take custody or dispose of any substantial portion of the assets
of Debtor pursuant to any involuntary proceeding and either (i)
Debtor shall indicate approval of, consent to, or acquiescence to
such appointment, or (ii) such custodian, trustee, or receiver
shall not be discharged within thirty (30) days; or Debtor shall
voluntarily seek protection from creditors under any applicable
state or federal bankruptcy, liquidation or dissolution,
insolvency, or debt reorganization laws; or any of Debtor's
creditors shall institute any proceeding against Borrower under
any applicable state or federal bankruptcy, liquidation or
dissolution, insolvency, or debt reorganization laws, and the
same shall not be dismissed or discharged within thirty (30)
days.
D. The liquidation, dissolution, or other discontinuance of
Debtor's corporate existence.
E. The issuance of a writ or warrant or attachment,
garnishment, execution, distraint or similar process against any
material portion of the Debtor's assets which remains
undischarged and unstayed for a period of thirty consecutive
days.
F. Debtor shall make a general assignment for the benefit of its
creditor.
G. Any party to the Inter-Creditor Agreement (other than
Secured Party) shall default in the performance of any covenant,
agreement, condition or provision thereof.
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10. REMEDIES. In the event of the occurrence of any default, Secured
Party may exercise its rights under law, including by way of
enforcement under the Uniform Commercial Code in effect in the State of
Michigan as in effect from time to time. Secured Party may enter Debtor's
premises without legal process or any obligation to pay rent and remove the
Collateral or require the Debtor to assemble the Collateral and make it
available to Secured Party at a place within or outside the State of Michigan
designated by Secured Party. If it so elects, Secured Party may and is hereby
empowered, without legal process, to enter any premises where the Collateral
may be kept and take exclusive possession of it on those premises with or
without a custodian. Secured Party may thereafter sell the Collateral at one
or more public or private sales, on or away from Debtor's business premises.
Unless the Collateral is perishable, threatens to decline speedily in value or
is of a type customarily sold on a recognized market, Secured Party shall give
Debtor reasonable notice of the time and place of any public sale thereof, or
of the time after which any private sale or any other intended disposition
thereof is to be made. The requirement of reasonable notice shall be met if
notice is mailed to Debtor, postage prepaid, by first class certified mail,
return receipt requested, at least five (5) days prior to the date of the
proposed sale or disposition. At any such sale, Secured Party may in its
absolute discretion sell and dispose of all the right, title, and interest of
Debtor in and to any of the Collateral. Any such sale may be for cash or for
credit, and Secured Party may be the purchaser. Secured Party shall have the
right to (i) demand payments of the Accounts, (ii) enforce payment of the
Accounts by legal proceedings or otherwise, (iii) exercise all of Debtor's
rights and remedies with respect to the collection of the Accounts, (iv)
settle, adjust or compromise any legal proceedings brought to collect the
Accounts, (v) if permitted by law, sell or assign the Accounts upon such terms,
for such amounts and at such time or times as the Secured Party deems
advisable, (vi) discharge and release the Accounts, (vii) prepare, file and
sign Debtor's name on any proof of claim in bankruptcy or similar document
against any account debtor, (viii) prepare, file and sign any Debtor's name on
any notice of lien, assignment or satisfaction of lien or similar document in
connection with the Accounts, (ix) do all acts and things necessary in the
Secured Party's sole discretion, to fulfill Debtor's obligations under this
Security Agreement, (x) endorse the name of Debtor upon any Chattel Paper,
Document, Instrument, invoice, freight xxxx, xxxx of lading or similar document
or agreement relating to the Collateral, (xi) use Debtor's stationery and sign
the name of Debtor to verifications of the Accounts and notice thereof to
Account debtors, and (xii) use the information recorded on or contained in any
data processing equipment and computer hardware, software and source codes
relating to the Collateral to which Debtor has access. Out of the monies
arising from the sale and/or collection of the Collateral, Secured Party shall
retain any and all sums then owing to Secured Party, including all additional
advances and debts, and all costs, fees, charges and expenses in connection
therewith, with interest, including reasonable attorneys fees, disbursements,
premiums on bonds, custodian's fees, fees of public officers, auctioneer's
fees, plus advertising and labor, disbursements for use and occupancy of
premises and any and all other disbursements made by Secured Party in
connection with the taking, maintaining, storage and disposing of the
Collateral, tendering the excess (if any) to Debtor or its successors or
assigns. If for any reason the Collateral shall fail to satisfy all of the
foregoing items, Debtor shall pay to Secured Party the resulting deficiency
upon demand. Secured Party's remedies shall be cumulative and non-exclusive to
the fullest extent permitted by law.
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11. DISCRETIONARY RIGHTS. Exercise of or omission to exercise any right of
the Secured Party shall not affect any other subsequent right of the Secured
Party to exercise the same and the waiver of any default by the Secured Party
shall not be deemed a waiver of any subsequent Default.
12. SEVERABILITY. If any provision of this Agreement shall for any reason
be held to be invalid or unenforceable, that invalidity or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if the invalid or unenforceable provision had never been contained
herein.
13. NOTICES. All notices to the parties under this Agreement shall be
sufficient if mailed by certified mail, return receipt requested with
sufficient prepaid postage, to the parties at their addresses appearing at the
beginning of this Agreement, or at such other address as they shall designate
in writing as provided by this paragraph. Notice so directed and posted shall
be effective upon receipt.
14. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Michigan.
15. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement. The signature of any party to any counterpart shall
be deemed to be a signature to, and may be appended to, any other counterpart.
16 CAPTIONS. Captions to paragraphs contained in this Agreement, other
than in Paragraph 1.E., are for convenience only and are entirely without
substantive effect.
17. SUCCESSORS. This Agreement shall be binding upon, and the benefits
hereof shall inure to, the parties hereto and their respective successors and
assigns. Debtor's obligations and rights hereunder shall not be assigned
without the prior written consent of Secured Party.
18. INDEMNITY. Debtor agrees to indemnify the Secured Party from and
against any and all claims, losses and liabilities in connection with or
arising out of this Security Agreement, the Inter-Creditor Agreement or the
Notes and any actions taken hereunder or thereunder, except where due to
Secured Party's gross negligence or wilful misconduct.
19. WAIVER OF JURY TRIAL. DEBTOR HEREBY WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS AGREEMENT OR ANY
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INSTRUMENT OR DOCUMENT RELATING HERETO. THIS WAIVER IS INFORMED AND FREELY
MADE.
THIS AGREEMENT was executed as of the date and year first above
written.
DEBTOR:
CARACO PHARMACEUTICAL LABORATORIES, LTD.
a Michigan corporation
By:/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its: President
SECURED PARTY:
XXX X. XXXXXX QUALIFIED TERMINABLE
INTEREST MARITAL TRUST
U/A/D 4/8/82
By:/s/Xxx X. Xxxxxx
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Xxx X. Xxxxxx, Trustee
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