FORECLOSURE SALE AGREEMENT
Exhibit 2.1
This FORECLOSURE SALE AGREEMENT (the “Agreement”) is entered into as of July 2, 2009
by and between Comerica Bank (“Lender” or “Seller”) and Synovis Surgical Sales,
Inc., a wholly-owned subsidiary of Synovis Life Technologies, Inc. (“Purchaser”).
RECITALS
A. Pegasus Biologics, Inc. a Delaware corporation (“Borrower”) has borrowed funds from
Lender pursuant to that certain Loan and Security Agreement by and between Lender and Borrower
dated as of November 21, 2006, (as amended from time to time, including by that certain First
Amendment to Loan and Security Agreement dated as of July 16, 2008, collectively the “Loan
Agreement”).
B. As of May 21, 2009, there is owing under the Loan Agreement a principal amount of
$5,236,111.08 (not including, to the extent applicable, any contingent obligations, e.g. those
arising out of any undrawn letters of credit issued by Lender for Borrower’s benefit), accrued and
unpaid interest through May 19, 2009 in the amount of $13,126.64, accrued interest thereafter at
the per diem rate of $1,418.12, legal fees and costs, plus all other outstanding amounts and costs
of enforcement due under the Loan Agreement. Such amount, plus accruing interest and costs and
accrued and accruing attorneys’ fees and costs are hereinafter referred to herein as the “Existing
Debt.”
C. Certain Events of Default have occurred and exist under the Loan Agreement, including under
Sections 8.4 and 8.6 (collectively, the “Existing Default”). Lender has delivered a Notice
of Default dated May 15, 2009 to Borrower. The Existing Default entitled Lender immediately to
enforce all the remedies set forth in the Loan Agreement. Borrower has asked Bank to forbear from
exercising those remedies as a result of the Existing Default, and Lender has agreed and Lender and
Borrower have entered into that certain Forbearance Agreement and Second Amendment to Loan and
Security Agreement, dated May 22, 2009 (the “Forbearance Agreement”).
D. Lender has the unequivocal right to enforce all of its remedies against Borrower and the
Collateral described on Exhibit “A” hereto (the “Collateral”).
E. Borrower has determined that a sale, lease, license or other disposition of, as applicable,
all or any part of the Collateral in one or more private sales to be held on or after the date of
this Agreement (the “Foreclosure Sale Process”) is in its best interests and the best
interests of the creditors of Borrower.
F. Borrower has agreed to cooperate with Lender and facilitate the sale of the Collateral
pursuant to the Foreclosure Sales Process, as set forth in this Agreement.
G. On July 2, 2009, Seller delivered to Borrower and all junior lienholders entitled to
receive the same a Notice of Private Sale of Collateral (“Notice”), in the form attached
hereto
as Exhibit “D”. Borrower agreed that the Notice is reasonable, made in good faith and
is the only notice which Seller, as secured lender exercising the rights as a secured creditor
under the Loan Agreement pursuant to the Uniform Commercial Code as enacted in the State of
California, is required to make in order to validate the sale of the Transferred Assets (as defined
below) under this Agreement.
H. On July 2, 2009, Seller exercised its post default rights under the California Commercial
Code with respect to the Collateral and subject to the terms and conditions of this Agreement,
Seller has agreed to sell to Purchaser, all of Debtor’s right, title and interest in the Collateral
described on Exhibit “A” other than the Excluded Assets (as defined herein) (the Collateral
other than the Excluded Assets is hereinafter referred to as the “Transferred Assets”).
I. Pursuant to that certain Peaceful Foreclosure Agreement of even date herewith (the
“Peaceful Foreclosure Agreement”), Debtor has consented to the Foreclosure Sale Process and
the sale by Seller to Purchaser of Debtor’s right, title and interest in and to the Transferred
Assets on the terms set forth in this Agreement, and Debtor has agreed to cooperate with Seller to
facilitate the sale of all of its right, title, and interest in and to the Transferred Assets.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller hereby agree as follows:
1. Sale of Transferred Assets. Upon the terms and subject to the conditions of this
Agreement, in consideration of and in exchange for Seller’s receipt of the Purchase Price defined
in Section 3 herein, Seller agrees, on the Closing Date (as defined herein), to irrevocably sell,
transfer, assign, convey, and set over to Purchaser, and Purchaser hereby agrees to purchase from
Seller, all of Debtor’s right, title and interest in the Transferred Assets, “as is”, “where is”,
and without recourse, and (except as set forth in Section 8 below) without representations or
warranties of any kind, express or implied, including, without limitation, any warranties as to
title, possession, quiet enjoyment, merchantability, value, useful life, fitness for intended use,
or similar representations and warranties. On the Closing Date, Seller and Purchaser shall execute
and deliver to each other a Xxxx of Sale, substantially in the form attached hereto as Exhibit
“B”.
2. Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the
Transferred Assets shall not include any of the Excluded Assets and the Excluded Assets shall not
be transferred to Purchaser, but shall be retained by Seller. For purposes of this Agreement,
“Excluded Assets” shall mean the following items:
a. all cash, cash equivalents and uncashed checks received prior to the Closing Date,
b. any contracts of insurance and any rights of Seller as an additional insured or loss payee
on any insurance contract obtained by Debtor,
c. any right that Debtor has with respect to tax refunds, claims for tax refunds and tax
attributes arising prior to the Closing Date,
d. to the extent the transfer contemplated herein is prohibited by any license or other
agreement, which prohibition is enforceable in accordance with applicable law, any software or
other licensed products that may be installed on or attached to the Transferred Assets delivered to
Purchaser,
e. corporate minute books, and other books and records that do not relate to the Transferred
Assets.
f. any right that Debtor has with respect to IDE study titled “DurADAPT™ Bioimplant Dural
Substitute’, Clinical Protocol P05-011-CR dated February 21, 2006.
3. Purchase Price. As consideration for the sale, transfer, and conveyance of the
Transferred Assets by Seller, Purchaser agrees to pay at Closing (as defined below). $12,100,000
(the “Purchase Price”) for all of the Transferred Assets. The Purchase Price will be paid
to Seller pursuant to the wire instructions listed on Exhibit “C”, for further credit, if
at all, to the parties identified in, and in accordance with the terms and conditions of, the
Forbearance Agreement.
4. Closing. Subject to satisfaction of the conditions precedent set forth in Sections
5 and 6 below, the closing of the sale (the “Closing”) will be held within three (3)
business days following satisfaction or waiver (by the party for whose benefit such condition
exists) of the conditions set forth in Sections 6 and 7. The date on which the Closing is
consummated is referred to herein as a “Closing Date.”
5. Delivery of Possession. Seller shall be under no obligation to cause delivery of
control or possession of the Transferred Assets to Purchaser. Purchaser understands and
acknowledges that Debtor, and not Seller, is in possession and control of the Transferred Assets,
and that Debtor shall be solely responsible and liable to Purchaser for such transfer of control
and possession.
6. Seller’s Conditions Precedent. Seller’s obligations to consummate the Closing
shall be conditioned upon the satisfaction or waiver of the following:
a. The representations, warranties, and covenants of Purchaser made herein shall have been
true when made and at all times after the date when made, to and including the Closing Date, with
the same force and effect as if made on and as of each such times, including the Closing Date.
b. As of the Closing Date, the sale of the Transferred Assets by Seller or any of the
transactions contemplated hereby are not prohibited by any stay or injunction in any litigation,
governmental action, or other proceeding, including, without limitation, the “automatic stay” under
11 U.S.C. § 362 in any pending case under title 11 of the United States Code by or against Debtor.
c. Purchaser shall have paid the Purchase Price.
d. The Closing occurs on or before July 15, 2009.
7. Purchaser’s Conditions Precedent. Purchaser’s obligations to consummate the
Closing shall be conditioned upon the satisfaction or waiver of the following:
a. The representations, warranties, and covenants of Seller made herein shall have been true
when made and at all times after the date when made, to and including the Closing Date, with the
same force and effect as if made on and as of each such times, including the Closing Date.
b. As of the Closing Date, the sale of the Transferred Assets by Seller or any of the
transactions contemplated hereby are not prohibited by any stay or injunction in any litigation,
governmental action, or other proceeding, including, without limitation, the “automatic stay” under
11 U.S.C. § 362 in any pending case under title 11 of the United States Code by or against Debtor.
c. Seller shall have executed and delivered to Purchaser a Xxxx of Sale in the form attached
as Exhibit “B” hereto, with respect to the Transferred Assets.
d. Seller shall have enforced its security interest in the Transferred Assets effective as of
its receipt of the payment in good funds, of the Purchase Price.
e. Borrower shall have executed and delivered to Purchaser assignments, in form and substance
satisfactory to Purchaser, of the intellectual property rights listed on Part I of Exhibit
“E”.
f. Seller shall have obtained and delivered to Purchaser consents to the transactions
contemplated by this Agreement, in form and substance satisfactory to Purchaser, from the
Borrower’s contractual counterparties to the agreements listed on Part II of Exhibit “E”.
g. Purchaser shall have obtained from the Borrower’s lessor a lease, in form and substance
satisfactory to Purchaser, to the leased premises described in Part III of Exhibit “E” (the
“Transferred Premises”).
h. Borrower shall have delivered to Purchaser possession of the Transferred Assets and the
Transferred Premises.
i. Borrower shall have delivered evidence reasonably satisfactory to Purchaser (i) that all
insurance policies historically maintained by the Borrower are in effect as of the Closing Date,
and (ii) of the binding of a six year tail for a product liability policy reasonably acceptable to
Purchaser.
8. Representations and Warranties of Seller. Except as to Seller’s representations
and warranties as to due authority and the like as expressly provided below, the Transferred Assets
are being sold “as is,” and “where is” with no express or implied representations or warranties of
any kind, nature, or type whatsoever from, or on behalf of, Seller. Notwithstanding the
foregoing, Seller represents and warrants to Purchaser, as follows:
a. Seller (i) is duly organized, validly existing, and in good standing under the laws of
Texas; and (ii) has all requisite organizational power and authority to execute, deliver, and
perform the transactions contemplated hereby.
b. The execution, delivery, and performance by Seller of this Agreement and the consummation
of the transaction contemplated hereby are within the power of Seller and have been duly authorized
by all necessary actions on the part of Seller. The execution of this Agreement by Seller
constitutes, or will constitute, a legal valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as limited by bankruptcy, insolvency, or other
laws of general application relating to or affecting the enforcement of creditors’ rights generally
and general principles of equity.
c. No consent, approval, authorization or order of, or registration or filing with, or notice
to, any court or governmental agency or body having jurisdiction or regulatory authority over
Seller (or any of its properties) is required for (i) Seller’s execution and delivery of this
Agreement (and each agreement executed and delivered by it in connection herewith) or (ii) the
consummation by Seller of the transactions contemplated by this Agreement (and each agreement
executed and delivered by it in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been obtained, made or given (as
applicable) and is still in full force and effect.
d. No person or entity acting on behalf of Seller or any of its affiliates or under the
authority of any of them is or will be entitled to any brokers’ or finders’ fee or any other
commission or similar fee, directly or indirectly, from Seller or any of its affiliates in
connection with any of the transactions contemplated hereby except for Gerbsman Partners.
e. (i) Immediately prior to consummation of the sale, Seller has a valid, enforceable and
perfected first priority lien upon and security interest in Debtor’s right, title, and interest in
the Transferred Assets; (ii) one or more defaults under the Loan Agreement have occurred and are
continuing; (iii) Seller has not amended or modified any of the Loan Agreement or related document
so as to limit its right to enter into this Agreement with the Purchaser to sell and convey title
to the Transferred Assets; (iv) Seller has the right and is entitled to enforce its security
interest in accordance with the terms of this Agreement; (v) Seller has complied with all of the
notice requirements of Part 6 of Article 9 of the Uniform Commercial Code applicable to the
transactions contemplated by this Agreement, and (vi) the transactions contemplated by this
Agreement constitute a disposition of collateral after default within the meaning of Section
9-617(a) of the Uniform Commercial Code.
9. Representations and Warranties of Purchaser. Purchaser represents and warrants to
Seller, as follows:
a. Purchaser (i) is a duly organized, validly existing, and in good standing under the laws of
its jurisdiction of organization; and (ii) has all requisite corporate power and authority to
execute, deliver, and perform the transactions contemplated hereby.
b. The execution, delivery, and performance by Purchaser of this Agreement and the
consummation of the transaction contemplated hereby are within the power of Purchaser
and have been duly authorized by all necessary actions on the part of Purchaser. The
execution of this Agreement by Purchaser constitutes, or will constitute, a legal valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as
limited by bankruptcy, insolvency, or other laws of general application relating to or affecting
the enforcement of creditors’ rights generally and general principles of equity.
c. No consent, approval, authorization or order of, or registration or filing with, or notice
to, any court or governmental agency or body having jurisdiction or regulatory authority over
Purchaser (or any of its properties) is required for (i) Purchaser’s execution and delivery of this
Agreement (and each agreement executed and delivered by it in connection herewith) or (ii) the
consummation by Purchaser of the transactions contemplated by this Agreement (and each agreement
executed and delivered by it in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been obtained, made or given (as
applicable) and is still in full force and effect.
d. No person or entity acting on behalf of Purchaser or Seller or any of its affiliates or
under the authority of any of them is or will be entitled to any brokers’ or finders’ fee or any
other commission or similar fee, directly or indirectly, from Purchaser or any of its affiliates in
connection with any of the transactions contemplated hereby.
10. Expenses. Except as provided in the next sentence, Purchaser and Seller shall
each bear their own expenses incurred in connection with the transactions contemplated by this
Agreement. Notwithstanding the foregoing, (i) Seller’s expenses incurred hereunder shall be
reimbursed by Borrower by being added to the Existing Debt and paid from the Purchase Price, and
(ii) if either party breaches this Agreement, the breaching party shall be responsible for the
costs and expenses, including reasonable attorneys’ fees, incurred by the other party in enforcing
this Agreement against such breaching party by the non-breaching party.
11. Transfer Taxes. Purchaser shall pay all sales, use, excise, stamp, documentary,
filing, recording, transfer or similar fees or taxes or governmental charges, as levied by any
taxing authority or governmental agency in connection with the transfer of Transferred Assets
contemplated by this Agreement. Following the Closing Date, (i) Purchaser shall deliver to Seller
evidence that these transactions are exempt from sales tax, or (ii) Purchaser shall pay any sales
tax due as a result of these transactions in a timely manner to the appropriate taxing authority
and notify Seller accordingly. Seller hereby agrees to cooperate with Purchaser as necessary for
Purchaser to comply with the requirements of this section.
12. Notices. Any notice or other communication provided for herein or given hereunder
to a party hereto shall be in writing, and shall be deemed given when personally delivered to a
party set forth below or when sent by telecopy providing a transmission confirmation (provided that
such notice is immediately sent by a recognized overnight delivery service), or three (3) days
after mailed by first class mail, registered, or certified, return receipt requested, postage
prepaid, or when delivered by nationally-recognized overnight delivery service, with proof of
delivery, delivery charges prepaid, in any case addressed as follows:
To Seller:
|
Comerica Bank | |
| 000 X. Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxx Xxxxx | ||
with a copy to:
|
DLA Piper LLP (US) | |
| 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000 | ||
| Xxx Xxxxx, XX 00000-0000 | ||
| Attn.: Xxxx Xxxxxx | ||
To Purchaser:
|
Synovis Surgical Sales, Inc. | |
| c/o Synovis Life Technologies, Inc. | ||
| 0000 Xxxxxxxxxx Xxxxxx X. | ||
| Xx. Xxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxxxx | ||
With a copy to:
|
Xxxxxx & Whitney, LLP | |
| Suite 1500, 00 Xxxxx Xxxxx Xxxxxx | ||
| Xxxxxxxxxxx, XX 00000-0000 | ||
| Fax: (000) 000-0000 | ||
| Attn: Xxx Xxxxx |
13. Miscellaneous.
a. Entire Agreement. This Agreement, together with the schedules and exhibits
attached hereto, constitutes the entire agreement of the parties hereto regarding the purchase and
sale of the Transferred Assets, and all prior agreements, understandings, representations and
statements, oral or written, are superseded hereby.
b. Captions. Section captions used in this Agreement are for convenience only, and do
not affect the construction of this Agreement.
c. Counterpart Execution. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall together constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed counterpart thereof
and shall be deemed an original signature for all purposes.
d. Severability. If any provision of this Agreement shall for any reason be held to
be invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained in this Agreement.
e. Further Assurances. At any time or from time to time after the Closing, without
further consideration, Seller shall, at the request of Purchaser, execute and deliver such further
instruments and documents as Purchaser may reasonably request as may be reasonably
necessary to evidence or effect the consummation of the transactions contemplated by this
Agreement.
f. Amendments and Waivers. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by Purchaser and Seller. No waiver by any
party hereto of any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
g. 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 Seller and Purchaser hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the State of California. THE UNDERSIGNED
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED
UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND
VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT
OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.
h. Reference Provision. In the event the Jury Trial Waiver set forth above is not
enforceable, the parties elect to proceed under this Judicial Reference Provision.
(i.) Mechanics.
a) With the exception of the items specified in clause b), below, any controversy, dispute or
claim (each, a “Claim”) between the parties arising out of or relating to this Agreement or
any other document, instrument or agreement between the undersigned parties (collectively in this
Section, the “Comerica Documents”), will be resolved by a reference proceeding in California in
accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure
(“CCP”), or their successor sections, which shall constitute the exclusive remedy for the
resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except
as otherwise provided in the Comerica Documents, venue for the reference proceeding will be in the
state or federal court in the county or district where the real property involved in the action, if
any, is located or in the state or federal court in the county or district where venue is otherwise
appropriate under applicable law (the “Court”).
b) The matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise of self-help
remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv)
temporary, provisional or ancillary remedies (including, without limitation, writs of attachment,
writs of possession, temporary restraining orders or preliminary injunctions). This reference
provision does not limit the right of any party to exercise or oppose any of the
rights and remedies described in clauses (i) and (ii) or to seek or oppose from a court of
competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or
opposition to, any of those items does not waive the right of any party to a reference pursuant to
this reference provision as provided herein.
c) The referee shall be a retired judge or justice selected by mutual written agreement of the
parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to
the referee selected by the Presiding Judge of the Court (or his or her representative).
d) The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
e) The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and all other
discovery shall be responded to within fifteen (15) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.
(ii.) Procedures. Except as expressly set forth herein, the referee shall determine
the manner in which the reference proceeding is conducted including the time and place of hearings,
the order of presentation of evidence, and all other questions that arise with respect to the
course of the reference proceeding. All proceedings and hearings conducted before the referee,
except for trial, shall be conducted without a court reporter, except that when any party so
requests, a court reporter will be used at any hearing conducted before the referee, and the
referee will be provided a courtesy copy of the transcript. The party making such a request shall
have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to
award costs to the prevailing party, the parties will equally share the cost of the referee and the
court reporter at trial.
(iii.) Application of Law. The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be applicable to the
reference proceeding. The referee shall be empowered to enter equitable as well as legal relief,
enter equitable orders that will be binding on the parties and rule on any motion which
| 9 | Foreclosure Sale Agreement |
would be authorized in a court proceeding, including without limitation motions for summary
judgment or summary adjudication. The referee shall issue a decision at the close of the reference
proceeding which disposes of all claims of the parties that are the subject of the reference.
Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the
same manner as if the action had been tried by the Court and any such decision will be final,
binding and conclusive. The parties reserve the right to appeal from the final judgment or order
or from any appealable decision or order entered by the referee. The parties reserve the right to
findings of fact, conclusions of laws, a written statement of decision, and the right to move for a
new trial or a different judgment, which new trial, if granted, is also to be a reference
proceeding under this provision.
(iv.) Repeal. If the enabling legislation which provides for appointment of a
referee is repealed (and no successor statute is enacted), any dispute between the parties that
would otherwise be determined by reference procedure will be resolved and determined by
arbitration. The arbitration will be conducted by a retired judge or justice, in accordance with
the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The
limitations with respect to discovery set forth above shall apply to any such arbitration
proceeding.
(v.) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER COMERICA DOCUMENTS.
i. Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any federal, state, local, or foreign
statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word “including” shall mean “including without
limitation”.
j. No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person or entity other than the parties hereto and their respective successors
and permitted assigns.
k. Successor and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and permitted assigns. Neither
party may assign its rights or interests hereunder without providing the other party with prior
written notice; provided, however, that Purchaser shall be entitled to assign its rights under
| 10 | Foreclosure Sale Agreement |
this agreement to an entity wholly-owned by it. Neither party may delegate all or any of its
obligations or duties hereunder, without the prior written consent of the other party.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed as of the
day and year first above written.
| SELLER: | ||||||
| COMERICA BANK | ||||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Its: | First Vice President
|
|||||
| PURCHASER: | ||||||
| SYNOVIS SURGICAL SALES, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Xxxxxxx X. Xxxxx | ||||||
| Its: | President/CEO
|
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| 11 | XXXXXXXXXXX:
2662273 v01 07/06/2009 Foreclosure Sale Agreement |
