Exhibit 10.36
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is executed effective as of the 23rd day April,
2001, by and between Cytomedix, Inc., a Delaware corporation ("Debtor"), and
First Security Bank, as Collateral Agent ("Collateral Agent"), under the terms
provided herein, for the benefit of the Holders of the Debtor's Series 2001 12%
Convertible Secured Promissory Notes (the "Notes"), all more particularly
described on EXHIBIT A attached hereto and made a part hereof (the "Lenders").
W I T N E S S E T H:
WHEREAS, each Lender has advanced credit to Debtor as evidenced by a Series
2001 12% Convertible Secured Promissory Note of even date herewith naming Debtor
as "Company" and such Lender individually as a "Holder" and payable with
interest at the rate of twelve percent (12%) per annum as provided therein;
WHEREAS, to secure payment of the Secured Debt (as defined below), Debtor
has agreed to grant to Collateral Agent, for the ratable benefit of itself and
the other Lenders pro rata to the amount of indebtedness under the Notes (less
amounts converted), a security interest in the collateral as hereinafter
described;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in exchange for the mutual
promises and covenants contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the capitalized terms used
herein shall have the following meanings, unless the context otherwise
specifically requires:
(a) "COLLATERAL" shall mean and refer to all of the Debtor's personal
assets and personal property and rights in and to property of any nature
whatsoever, tangible and intangible, presently owned or hereafter acquired,
including without limitation the following:
(i) all equipment, machinery, furniture, furnishings, fixtures,
and any and all other tangible personal property, and all additions,
accessions, replacements and substitutions with respect thereto, presently
owned or hereafter acquired by Debtor (hereafter collectively referred to
as the "Equipment") ;
(ii) all accounts, accounts receivable, contracts and contract
rights, chattel paper, documents, instruments, general intangibles, and
other forms of obligation and rights to the payment of money or other
property, presently owned or hereafter acquired by Debtor (hereinafter
collectively referred to as the "Accounts");
(iii) all of Debtor's inventory, including all goods,
merchandise, materials, components, work in process, furnished goods, and
other tangible personal property presently owned or hereafter acquired by
Debtor and held for sale, lease, consumption, or other use in Debtor's
business, and all additions, accessions, replacements and substitutions
with respect thereto (hereinafter collectively referred to as "Inventory");
(iv) all insurance proceeds, refunds, and premium rebates,
whether or not any Lender or Collateral Agent is the loss payee thereof,
including, without limitation, proceeds of fire and credit insurance, to
the extent that any such proceeds, refunds and premiums are related to any
of the foregoing;
(v) all claims for tax refund, whether now existing or hereafter
arising, of such Debtor against any city, county, state or federal
government or any agency or authority or other subdivision thereof, and the
proceeds thereof;
(vi) all contract rights, intellectual property, and general
intangibles ("General Intangibles") of every kind, character and
description, both now owned and hereafter acquired, including, without
limitation, goodwill, trademarks, service marks, domain names, trade
styles, trade names, patents, applications for any of the foregoing
("Intellectual Property") and deposit accounts;
(vii) all liens, guaranties, rights, remedies, and privileges
pertaining to any of the foregoing, including the rights of stoppage in
transit;
(viii) a pledge of all of Debtor's stock, ownership interest,
partnership interest or other equity position whatsoever in any subsidiary
corporation, limited liability company, partnership, joint venture,
association, entity or other organization (domestic or foreign); and
(ix) to the extent not otherwise included, all proceeds,
products, substitutions, and accessions of or to any and all of the
foregoing and all collateral security, indemnities, warranties and
guaranties given by any Person with respect to any of the foregoing.
(Although proceeds are covered, except as otherwise expressly provided
herein or in the other Loan Documents, Collateral Agent does not authorize
the sale or other transfer of any of the Collateral or the transfer of any
interest in the Collateral, except for the sale of goods in the ordinary
course of Debtor's business).
(b) "DEBTOR" shall mean and refer to Cytomedix, Inc., a Delaware
corporation, and its successors in interest.
(c) "PERMITTED LIENS" means:
(i) liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, PROVIDED that adequate reserves with
respect thereto are maintained on the books of Debtor in conformity with
generally accepted accounting principles;
(ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(iv) deposits by or on behalf of Debtor to secure the performance
of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(v) liens securing indebtedness of Debtor incurred to finance the
acquisition of fixed or capital assets, PROVIDED that (i) such liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such liens do not at any time encumber any property
other than the property financed by such indebtedness and (iii) the amount
of indebtedness secured thereby is not increased; and
(vi) Liens created pursuant to this Agreement.
(d) "PROMISSORY NOTE" shall mean and refer to each Series 2001 12%
Convertible Promissory
Note of even date herewith naming Debtor as "Company" and a Lender as "Holder"
payable with interest at the rate of twelve percent (12%) per annum on April 1,
2005, all substantially in the form as EXHIBIT B, and any amendments,
modifications, extensions, renewals or refinancings thereof.
(e) "SECURED DEBT" shall mean and refer to (i) all amounts payable
pursuant to a Promissory Note (including principal and interest) and pursuant to
any amendments, modifications, renewals, extensions or refinancings thereof;
(ii) all future advances from a Lender to Debtor under a Promissory Note; (iii)
any liabilities or obligations of Debtor arising under or in connection with
this Agreement or any other Loan Document, whether now existing or hereafter
arising, contingent or otherwise; (iv) any and all other obligations of Debtor
to a Lender under a Promissory Note of every kind and description, direct or
indirect, absolute or contingent, presently existing or hereafter arising; and
(v) all costs and expenses of collection of the foregoing, or in preserving,
protecting or realizing upon the Collateral, including, without limitation,
attorneys' fees and other legal expenses.
(f) "SECURITIES PURCHASE AGREEMENT" shall mean and refer to each
Securities Purchase Agreement of even date herewith by and between Debtor as
"Company" and a Lender as "Buyer" with respect to the purchase of a Promissory
Note.
(g) "UCC" shall mean and refer to the Uniform Commercial Code, as
amended, in effect under the laws of the State of Illinois, or such other state
as may be appropriate.
2. GRANT OF SECURITY INTEREST. As security for the full and timely payment
of all of the Secured Debt, Debtor hereby assigns and grants to Collateral
Agent, ratably for the benefit of itself and the other Lenders, pro rata to the
amount of indebtedness under the Notes (less amounts converted), a continuing
first priority security interest (subject to the Permitted Liens) in and to all
Debtor's right, title, and interest in and to the Collateral; to have and to
hold unto the Collateral Agent, its successors in interest and assigns forever,
or until the earlier full payment, discharge and satisfaction of all of the
Secured Debt. Collateral Agent shall have all of the rights and remedies of a
secured party under the applicable UCC as non-exclusive rights and remedies.
3. AGENCY.
(a) APPOINTMENT. As evidenced by the Securities Purchase Agreement,
each Lender hereby irrevocably designates and appoints Collateral Agent as the
agent (in such capacity, the "Collateral Agent") of such Lender under this
Agreement and the other Loan Documents to hold all Collateral and act with
respect to all Collateral, and each such Lender irrevocably authorizes the
Collateral Agent, in such capacity, to take such action on its behalf in
connection with the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are delegated to the
Collateral Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Collateral Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Collateral Agent. Any reference to the Collateral
Agent in this Section 3 shall be deemed to refer to the Collateral Agent solely
in its capacity as a Lender.
(b) DELEGATION OF DUTIES. The Collateral Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Collateral Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys in-fact selected by
it with reasonable
care.
(c) EXCULPATORY PROVISIONS. Neither the Collateral Agent nor any of
its officers, directors, partners, employees, agents, attorneys and other
advisors, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by Debtor or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Collateral Agent under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of Debtor to perform its obligations
hereunder or thereunder. The Collateral Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Debtor.
(d) RELIANCE BY COLLATERAL AGENT. The Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper person or persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Debtor), independent accountants
and other experts selected by the Collateral Agent. The Collateral Agent may
deem and treat the payee of any Promissory Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Collateral Agent. The Collateral Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of a majority in interest of the Lenders (or such other proportion
as may be required herein) to authorize or require such action as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. The Collateral Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of each of a
majority in interest of the Lenders (or such proportion as may be required
herein) to authorize or require such action, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Promissory Notes.
(e) NON-RELIANCE ON COLLATERAL AGENT AND OTHER LENDERS. Each Lender
expressly acknowledges that neither the Collateral Agent nor any of its
officers, directors, employees, agents, attorneys and other advisors, partners,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by the Collateral Agent hereinafter taken, including any
review of the affairs of Debtor or any affiliate of Debtor, shall be deemed to
constitute any representation or warranty by the Collateral Agent to any Lender.
Each Lender represents to the Collateral Agent that it has, independently and
without reliance upon the Collateral Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition, prospects and creditworthiness of Debtor and its
affiliates and made its own decision to make its loans under its Promissory Note
and enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Collateral Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition,
prospects and creditworthiness of Debtor and its affiliates. The Collateral
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning
the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of Debtor or any affiliate of Debtor that may come
into the possession of the Collateral Agent or any of its officers, directors,
employees, agents, attorneys and other advisors, partners, attorneys-in-fact or
affiliates.
(f) INDEMNIFICATION. The Lenders agree to indemnify the Collateral
Agent in its capacity as such (to the extent not reimbursed by Debtor to the
extent it is required to do so under the Loan Documents and without limiting the
obligation of Debtor to do so), ratably according to their respective pro rata
shares of the principal amount of the loans outstanding under the Notes in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the loans under the Notes
shall have been paid in full, ratably in accordance with such respective pro
rata shares of the principal amount of the loans outstanding immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the loans under the Notes) be imposed on,
incurred by or asserted against the Collateral Agent in any way relating to or
arising out of, this Agreement or any of the other Loan Documents or any action
taken or omitted by the Collateral Agent under or in connection with any of the
foregoing; provided, that, no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
solely from the Collateral Agent's gross negligence or willful misconduct.
Notwithstanding any other provisions of this Agreement, the agreements in this
Section shall survive the payment of such loans and all other amounts secured
hereunder.
(g) COLLATERAL AGENT IN ITS INDIVIDUAL CAPACITY. The Collateral Agent
and its affiliates may make loans to, and generally engage in any kind of
business with the Debtor as though the Collateral Agent was not the Collateral
Agent. With respect to its loans made or renewed by it and any Promissory Note
issued to it, the Collateral Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not the Collateral Agent, and the terms "Lender" and
"Lenders" shall include the Collateral Agent in its individual capacity.
(h) SUCCESSOR COLLATERAL AGENT. The Collateral Agent may resign as
Collateral Agent upon 30 days' notice to the Lenders and the Debtor. If the
Collateral Agent shall resign as Collateral Agent under this Agreement and the
other Loan Documents, then the Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be subject to
approval by the Debtor (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to and become vested with
the rights, powers and duties of the resigning Collateral Agent, and the term
"Collateral Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Collateral Agent's rights, powers and
duties as Collateral Agent shall be terminated, without any other or further act
or deed on the part of such former Collateral Agent or any of the parties to
this Agreement or any holders of the loans made under the Promissory Notes. If
no successor agent has been appointed and accepted appointment as Collateral
Agent by the date that is 30 days following a retiring Collateral Agent's notice
of resignation, the retiring Collateral Agent's resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Collateral Agent hereunder until such time, if any, as the Lenders
appoint a successor agent as provided for above. After any retiring Collateral
Agent's resignation as Collateral Agent, the provisions of this Section shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Collateral Agent under this Agreement and the other Loan Documents.
(i) AUTHORIZATION TO RELEASE LIENS. The Collateral Agent is hereby
irrevocably authorized by each of the Lenders to release any lien covering any
Collateral that is the subject of a sale or other disposition which is permitted
by this Agreement or the other Loan Documents.
4. REPRESENTATIONS AND WARRANTIES OF THE DEBTOR. The Debtor hereby
represents and warrants as follows and such representations and warranties shall
also be deemed to be made MUTATIS MUTANDIS with respect to each subsidiary of
the Debtor as if such subsidiary were the Debtor and with respect to Cytomedix,
N.V. at such time as it becomes a stockholder of Debtor:
(a) ORGANIZATION AND GOOD STANDING. The Debtor is a corporation, duly
organized, validly existing, and in good standing under the laws of the state of
its jurisdiction of organization, with full corporate power and authority to
execute, deliver and perform this Agreement and to own and operate its
properties and to carry on its business as presently conducted and anticipated.
The Debtor is duly qualified as a foreign corporation to transact business, and
is in good standing and in every state or other jurisdiction where the character
of its properties owned or leased, or the nature of its activities, makes such
qualification necessary under applicable law, except where the failure to so
qualify would not have a Material Adverse Effect (as defined below) on the
Debtor.
(b) AUTHORITY. Debtor has the requisite corporate power and authority
to enter into this Agreement, each Promissory Note and the agreements and
documents contemplated in connection herewith (collectively, the "Loan
Documents", to execute and deliver the Loan Documents and to perform its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Loan Documents by the Debtor and the consummation by the
Debtor of the transactions contemplated hereby and thereby, have been duly
authorized by all requisite corporate action on the part of the Debtor and its
Board of Directors, and no other corporate proceedings on the part of the Debtor
are necessary to authorize the execution, delivery and performance of this
Agreement or the Loan Documents.
(c) VALIDITY. This Agreement and the Loan Documents have been duly
executed and delivered by the Debtor and constitute the legal, valid, and
binding obligations of the Debtor, enforceable against the Debtor in accordance
with their respective terms, except to the extent such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, and other similar
laws affecting the enforcement of creditors' rights generally.
(d) NO VIOLATIONS. Neither the execution and delivery of this
Agreement or the Loan Documents nor the consummation by the Debtor of the
transactions contemplated hereby or thereby, nor the compliance by the Debtor
with any of the provisions hereof or thereof, will (i) violate, conflict with,
or constitute a breach or default under (or an event which, with notice, lapse
of time or both, would constitute a breach or default), or give rise to any
right of termination or acceleration or result in the creation of any lien,
security interest, charge or encumbrance upon any property of the Debtor (other
than in favor of Collateral Agent) under (x) Debtor's charter (including any
certificate of designation), by-laws, or any voting agreement, stockholders'
agreement or similar document to which debtor is a party relating to the rights
of stockholders of Debtor, (y) any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to which the
Debtor is a party or by which it or any of its respective properties or assets
may be bound or subject or (ii) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation applicable to the Debtor or any
of its properties or assets.
(e) NO CONSENT. Except for filings under applicable state and federal
securities laws, which will be timely made, no notice to, filing with, or
authorization, consent or approval of any governmental agency or authority, body
or agency is necessary or required in connection with the execution, delivery or
performance of this Agreement or the Loan Documents by the Debtor.
(f) TITLE. Except for the security interest granted to Collateral
Agent hereunder and certain purchase money security interests in the Equipment,
Debtor is the sole owner (or, in the case of leases or licenses, the sole right
holder) of the Collateral and has good, valid and marketable title thereto, free
and clear of any and all liens, security interests, claims, encumbrances and
adverse rights or interests whatsoever (other
than the Permitted Liens). Debtor has not executed any financing statement with
respect to all or any portion of the Collateral save and except the financing
statements executed in favor of Collateral Agent in connection with this
Agreement and in connection with the Permitted Liens. Set forth on EXHIBIT C is
a list of all Intellectual Property for which filings with governmental
authorities have been made by the Debtor or any of its subsidiaries (along with
the type of filing, the filing number and the authority with which it was
filed).
(g) FIRST PRIORITY SECURITY INTEREST. The security interest granted to
Collateral Agent hereunder constitute and will constitute a valid and continuing
first priority lien and security interest in all Collateral as to which
perfection may be achieved by filing under the UCC in favor of Collateral Agent
(in each case, subject to Permitted Liens).
(h) DEBTOR'S NAME AND ADDRESS. Debtor's current exact name and address
of its principal place of business is:
Cytomedix, Inc.
Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xxxxxxxxx, XX 00000
and Debtor's previous address was:
0000 Xxxxxx Xxxx, Xxxxx X
Xxxxxx Xxxx, Xxxxxxxx 00000
Debtor has not previously had or transacted business under any other names or
addresses since December 31, 2000. Debtor agrees to give Collateral Agent prior
notice of any change in Debtor's name and/or address or any additional names
under which Debtor intends to transact business at least 30 days prior to any
such change or the use of any additional name(s).
(i) POSSESSION AND LOCATION OF THE COLLATERAL. The Collateral is and
shall remain in the exclusive possession and control of Debtor, and Debtor shall
not transfer possession of or relocate all or any portion of the Collateral
without each Lender's prior written consent, unless Collateral Agent has
received 30 days' prior written notice of such relocation and determines that
its security interest is not adversely affected.
(j) LITIGATION. There is no litigation, action, suit, proceeding,
claim or investigation pending, or to the knowledge or Debtor threatened,
against Debtor or with respect to all or any portion of the Collateral, or which
calls into question the validity or enforceability of this Agreement or any
Promissory Note or which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
(k) BOOKS AND RECORDS. All books, records and documents relating to
the Collateral are and shall continue to be true, correct and genuine in all
material respects.
(l) PERMITS. Except for exceptions that would not have a Material
Adverse Effect, the Debtor is not in violation of or in default under any
applicable statute, rule, order, decree, writ, injunction or regulation of any
governmental body (including any court). Except for exceptions that would not
have a Material Adverse Effect, the Debtor has all permits and licenses to
operate its business.
(m) TAXES. The Debtor is not delinquent in the payment of any taxes
which have been levied or assessed by any governmental authority against it or
its assets. The Debtor has timely filed all material tax returns which are
required by law to be filed, and has paid all material taxes and all other
assessments or fees levied upon the Debtor or upon its properties to the extent
that such taxes, assessments or fees have become
due. Except for exceptions that would not have a Material Adverse Effect, no
controversy in respect of income taxes is pending or, to the knowledge of the
Debtor, threatened.
(n) EVENT OF DEFAULT. No event has occurred and is continuing which
constitutes an Event of Default (as hereinafter defined) or would constitute
such an Event of Default after notice or lapse of time or both.
(o) FULL DISCLOSURE. To the Debtor's knowledge, there is no fact which
the Debtor has not disclosed to each Lender in writing which materially affects
adversely or, to the Debtor's knowledge, will materially and adversely affect
the Collateral, the Collateral Agent's liens in the Collateral or the priority
thereof, the other assets, business, liabilities, operations, prospects, profits
or condition (financial or otherwise) of the Debtor or the ability of the Debtor
to perform its obligations under each Promissory Note or the other Loan
Documents (a "Material Adverse Effect").
(p) COMPLIANCE WITH LAWS. Except for exceptions that would not have a
Material Adverse Effect, the Debtor has duly complied with, and the Collateral
and its business operations and leaseholds are in compliance in all material
respects with, the provisions of all federal, state and local laws, rules and
regulations applicable to the Debtor, the Collateral or the conduct of the
Debtor's business.
5. COVENANTS OF DEBTOR. Debtor covenants and agrees that, from and after
the date of this Agreement until all of the Secured Debt shall have been paid in
full (it being understood, for purposes of this Section 5, that "Debtor" shall
also apply to each of its subsidiaries):
(a) COVENANTS. Debtor shall take, or shall refrain from taking, as the
case may be, each action that is necessary to be taken or not taken, as the case
may be, so that no Event of Default is caused by the failure to take such action
or to refrain from taking such action by such Debtor.
(b) INSURANCE. Debtor shall cause the casualty insurance policy
maintained by it to (i) provide that no cancellation, reduction in amount or
change in coverage thereof shall be effective until at least 30 days after
receipt by Collateral Agent of written notice thereof, and (ii) name Collateral
Agent, for the benefit of the Lenders, as an additional insured party and as the
loss payee.
(c) MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(i) Debtor shall maintain the security interest created by this
Agreement as a perfected security interest having the priority described
herein and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(ii) Debtor will furnish to each Lender from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as such Lender may
reasonably request, all in such detail as such Lender may reasonably
request.
(iii) At any time and from time to time, upon the written request
of any Lender, and at the sole expense of Debtor, Debtor will promptly and
duly execute, deliver and/or have recorded with appropriate agencies such
further instruments and documents and take such further actions as such
Lender may reasonably request for the purpose of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the UCC (or other similar laws) in effect in
any jurisdiction with respect to the security interests created hereby and
to the filing of any documents necessary to obtain and preserve the rights
and powers in the Intellectual Property.
(d) CHANGES IN LOCATIONS, NAME, ETC. Debtor will not, except upon
30 days' prior written notice to the each Lender and delivery to Collateral
Agent promptly thereafter of all additional executed financing statements and
other documents reasonably requested by any Lender to maintain the validity,
perfection and priority of the security interests provided for herein:
(i) change the location of its chief executive office or
principal place of business from that referred to in Section 4(h) above; or
(ii) change its name, identity or corporate structure to
such an extent that any financing statement filed by the Collateral Agent
in connection with this Agreement would become seriously misleading.
(e) NOTICES. Debtor will advise the each Lender promptly, in
reasonable detail, of any lien (other than security interests created hereby or
Permitted Liens) on any of the Collateral which would adversely affect the
ability of the Collateral Agent to exercise any of its remedies hereunder.
(f) RECEIVABLES COLLATERAL.
(i) Other than in the ordinary course of business consistent
with past practices, Debtor will not (i) grant any extension of the time of
payment of any receivables collateral, (ii) compromise or settle any
receivables collateral for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any
receivables collateral, (iv) allow any credit or discount whatsoever on any
receivables accounts or accounts receivable, (v) except for Permitted
Liens, sell or pledge any interest in any receivables, collateral, or (vi)
amend, supplement or modify any receivables collateral in any manner that
could adversely affect in any material respect the value thereof.
(ii) If at any time the aggregate amount owing to the Debtor
on all Accounts as to which a governmental authority is an obligor exceeds
20% of the aggregate amount owing to the Debtor on all Accounts, Debtor
shall so notify Collateral Agent and, if requested by any Lender, at the
Debtor's sole cost and expense, from and after the date on which such
aggregate amount first exceeds such percentage, deliver to Collateral Agent
such assignments, notices of assignment and other documents or information
as shall be necessary or otherwise reasonably requested by the Collateral
Agent to permit the assignment hereunder of all Accounts as to which a
Governmental Authority is an obligor pursuant to all applicable
Governmental Requirements (including, without limitation, the Assignment of
Claims Act of 1940, as amended).
(g) INVENTORY.
(i) Debtor shall not engage in any sale of the Inventory
other than for fair consideration in the conduct of such Debtor's business
in the ordinary course and shall not engage in sales or other dispositions
to creditors (except for arms-length sales or disposition of finished goods
to Curative Health Services, Inc. and CHS Services, Inc.); sales or other
dispositions in bulk; and any use of any of the Inventory in breach of any
provision of this Agreement.
(ii) No sale of Inventory shall be on consignment, approval,
or under any other circumstances such that, with the exception of the
Debtor's customary return policy applicable to the return of inventory
purchased by the Debtor's customers in the ordinary course, such Inventory
may be returned to the Debtor without the consent of each Lender.
(iii) All Inventory now owned or hereafter acquired by such
Debtor is and will be of good, and merchantable quality and free from
defects (other than defects within customary trade tolerances).
(h) ACCOUNTS.
(i) The amount of each Account shown on the books, records,
and invoices of Debtor represented as owing by each account debtor is and
will be the correct amount actually owing by such account debtor and shall
have been fully earned by performance by Debtor, except as otherwise
permitted by generally accepted accounting principles.
(ii) Debtor has no knowledge of any impairment of the validity or
collectibility of any of the Accounts in an aggregate amount in excess of
Debtor's reserve or allowance therefore on its regularly prepared balance
sheet and shall notify each Lender of any such fact immediately after
Debtor become aware of any such impairment.
(iii) Other than Permitted Liens, Debtor shall not post any bond
to secure its performance under any agreement to which Debtor is a party
nor cause any surety, guarantor, or other third party obligee to become
liable to perform any obligation of Debtor (other than to each Lender and
Collateral Agent) in the event of the Debtor's failure so to perform.
(i) NOTIFICATION TO ACCOUNT DEBTORS. Collateral Agent shall have the
right at any time following an Event of Default and at anytime thereafter) to
notify any of the Debtor's account debtors to make payment directly to
Collateral Agent and to collect all amounts due on account of the Collateral.
(j) TRANSACTIONS WITH RELATED PERSONS Other than in connection with
the transactions contemplated hereby or as set forth on Schedule 5(j), the
Debtor shall not, directly or indirectly, make any loan or advance, purchase,
assume or guarantee any note to or from any of its officers, directors,
shareholders or Affiliates (as defined for purposes of the Securities Act of
1933, as amended) ("Securities Act"), or to or from any member of the
immediate family of any of its officers, directors, shareholders or
Affiliates, or subcontract any operations to any Affiliate; or enter into, or
be a party to, any transaction with any Affiliate or shareholder of the Debtor,
except in the ordinary course of and pursuant to the reasonable requirements of
the Debtor's business and upon fair and reasonable terms which are fully
disclosed to each Lender and are no less favorable to the Debtor than would
obtain in a comparable arm's length transaction with a Person not an Affiliate
or shareholder of the Debtor.
(k) CORPORATE EXISTENCE AND MAINTENANCE OF PROPERTIES. The Debtor
shall maintain and preserve its corporate existence and all rights, privileges
and franchises now enjoyed; and the Debtor shall conduct its business in an
orderly, efficient and customary manner, keep its properties in good working
order and condition, and from time to time make all needed repairs to, renewals
of or replacements of its properties (except to the extent that any of such
properties is obsolete or is being replaced) so that the efficiency of such
property shall be maintained and preserved. The Debtor shall file or cause to be
filed in a timely manner all reports, applications, estimates and licenses which
shall be required by any governmental authority and which, if not timely filed,
would have a Material Adverse Effect.
(l) MERGER AND DISSOLUTION. The Debtor shall not liquidate or
dissolve, or enter into any consolidation, merger, syndicate, share exchange or
other business combination or sell, lease or dispose of its business or assets
as a whole or such part as in the opinion of each Lender constitute a
substantial portion of its business or assets (except for transactions among the
Debtor and its subsidiaries); provided, however, that the foregoing shall be
inapplicable with respect to the proposed merger which is consummated in
accordance with the Agreement and Plan of Merger, to which Debtor and Cytomedix,
N.V. are to be parties ("Exchange
Agreement") and subject to the following further conditions: (i) the majority
shareholder of Debtor after consummation thereof and all of its subsidiaries
shall have unconditionally guaranteed the Secured Debt in a manner, form and
substance acceptable to each Lender in its absolute discretion and Collateral
Agent (on behalf of the Lenders) shall have obtained a first perfected security
interest in all of such shareholder's and its subsidiaries' assets (subject only
to Permitted Liens), including, but not limited to, such shareholder's stock in
Debtor; (ii) upon consummation of the transactions contemplated by the Exchange
Agreement, the sale by each Lender of all of the securities issuable upon
conversion of its Promissory Note shall have been duly registered under the
Securities Act and such securities shall be freely tradable without any
restrictions except under the Securities Act and applicable securities laws;
(iii) the Exchange Agreement and the agreements referenced therein shall have
been consummated without modification; and (iv) there having occurred no Event
of Default and the Secured Debt having been repaid or converted in full.
(m) INDEBTEDNESS. The Debtor shall not create, incur or suffer to
exist any indebtedness for money borrowed or capitalized lease obligations other
than in the ordinary course of business, except for (a) the Secured Obligations,
or (b) indebtedness secured by Permitted Liens.
(n) DISPOSITION OF ASSETS . The Debtor shall not
sell, lease, transfer, convey or otherwise dispose of any of its assets or
property except for sales of inventory and licensing of intellectual property in
the ordinary course of business, disposition of worn out and obsolete assets and
sales of assets on an arm's-length basis not to exceed $100,000 in any year.
(o) RESTRICTED INVESTMENTS. The Debtor shall not make any loans,
advances or extensions of credit to, or any investment in cash or by delivery of
property in, any Person, whether by acquisition of stock, indebtedness or other
obligation or security, or by loan, advance or capital contribution, or
otherwise, except for travel or other reasonable expense advances to employees
in the ordinary course of business, extensions of trade credit in the ordinary
course of business, investments in cash and cash equivalents, investments by the
Debtor in any entity a value (measured as of the date made), when aggregated
with all other investments made hereunder, that does not exceed $25,000, and
transfers of assets among Debtor and its subsidiaries.
(p) RESTRICTIONS ON DISTRIBUTIONS AND OTHER PAYMENTS; CHARTER
AMENDMENTS. The Debtor shall not (a) declare any dividend on or incur any
liability to make any payment or distribution of cash or other property or
assets in respect of any of the Debtor's securities, or (b) make any payment on
account of the purchase, redemption or other retirement of any of the Debtor's
securities or any other payment or distribution made in respect thereof, either
directly or indirectly. The Debtor shall not modify its Certificate of
Incorporation or Bylaws without each Lender's prior written consent in a manner
that could reasonably be expected to be adverse to any Lender or which is
inconsistent with any Loan Document. Notwithstanding the foregoing, wholly-owned
subsidiaries of the Debtor may pay dividends or make other distributions on any
of such subsidiaries' equity interests owned by Debtor.
(q) NEW BUSINESS. The Debtor shall not engage in any business other
than the business in which the Debtor is currently engaged or a business
reasonably related thereto or make any material change in any of its business
objectives, purposes and operations which might in any way adversely affect the
repayment of the Secured Debt.
(r) SUBSIDIARIES. The Debtor shall cause each of its subsidiaries
(and, upon consummation of the Exchange Agreement, its sole shareholder and such
sole shareholder's subsidiaries) to execute a secured guaranty in favor of the
Collateral Agent (for the benefit of the Lenders) to secure the Secured Debt
with a first lien on all of its assets (subject only to Permitted Liens) and to
take such other actions in connection therewith as any Lender shall request.
Such secured guaranties shall contain representations, warranties and covenants
which are substantially similar (but with application to the guarantor) to those
set forth herein and such others
as any Lender shall require in its sole and absolute discretion.
6. EVENTS OF DEFAULT. The occurrence of any one or more of the following
shall constitute an "Event of Default" hereunder (it being understood that for
the purposes of this Section 6 "Debtor" shall also be a reference to each
subsidiary of Debtor (and to Cytomedix., N.V. after it becomes a shareholder of
Debtor) as well, so that if any of the following events occurs with respect to
any such subsidiary it would constitute an Event of Default):
(a) nonpayment by the Debtor of any portion of the principal or
interest under any Promissory Note as and when due and the continued nonpayment
thereof for a period of ten (10) days; or
(b) the occurrence of any event which would permit any Lender to
accelerate payment of its Promissory Note.
7. RIGHTS OF COLLATERAL AGENT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
Upon the occurrence of an Event of Default and at any time thereafter and upon
the approval of the holders of a majority in interest of the unpaid principal
balance of the Notes, the Collateral Agent may exercise any rights under
applicable law or the Loan Documents, including, but not limited to, any one or
more of the following rights and remedies:
(a) Upon the occurrence of an Event of Default, and at any time
thereafter, Collateral Agent may, at its option, declare all of the Secured Debt
immediately due and payable (and upon an Event of Default arising by virtue of
Debtor's bankruptcy all of the Secured Debt shall automatically and immediately
be deemed declared due and payable), notwithstanding any of the terms thereof
and exercise any rights and remedies available to a secured party under this
Agreement, under the UCC, or otherwise available at law or in equity, including
without limitation the right to enter upon any of the premises of the Debtor,
with or without process of law, and take immediate possession of and remove the
Collateral or any part thereof and collect and receive all income, revenues,
payments and proceeds therefrom. Debtor shall, upon Collateral Agent's request,
assemble the Collateral (and all records and documents relating thereto) and
make such items available to Collateral Agent at a place designated by
Collateral Agent which is reasonably convenient to the parties. Without removal,
Collateral Agent may render any Equipment unusable and may dispose of such items
of Collateral at the Debtor's business premises as provided under the UCC.
(b) Collateral Agent may sell, lease, or otherwise dispose of all or
any portion of the Collateral in any commercially reasonable manner. Disposition
of the Collateral may be made by any one or more public or private proceedings
upon any one or more contracts. Any such sale or disposition may be made in
whole, in part, in units, or in parcels, and at any time and place designated by
Collateral Agent. Any such sale or disposition may be for cash, upon credit, or
upon such other terms and conditions as Collateral Agent may determine, in its
sole discretion.
(c) Unless the Collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
reasonable notification of the time and place of any public sale or reasonable
notification of the time after which any private sale or other intended
disposition is to be made shall be sent by the Collateral Agent to the Debtor
unless the Debtor after the occurrence of an Event of Default shall have signed
a statement renouncing or modifying its right to notification of sale. The
requirements of a reasonable notice hereunder shall be met if such notice is
mailed by ordinary mail, postage prepaid, addressed to Debtor at its business
address described herein, at least ten days before the time of such sale or
disposition.
(d) Each Lender shall have the right to buy all of any portion of the
Collateral at any public or private sale.
(e) The Debtor acknowledges that when all or any portion of the
Collateral is disposed of by Collateral Agent after the occurrence of an Event
of Default, that such disposition shall transfer to any purchaser for value all
of the Debtor's rights and interests therein and any such purchaser shall take
free of all rights and interests of the Debtor in such property.
(f) Upon the occurrence of an Event of Default, Collateral Agent shall
have the right to notify persons obligated to Debtor on any Accounts to make
payment thereof directly to Collateral Agent and Collateral Agent may take
control of all the proceeds of the Accounts. After the occurrence of an Event of
Default, the Debtor will not, without the prior written consent of Collateral
Agent, grant any extension of the time for payment of any of the Accounts,
compromise or settle any accounts for less than the full amount thereof, or
release wholly or partly any person liable for the payment thereof or allow any
credit or discount whatsoever thereon.
8. APPLICATION OF PROCEEDS AND DEFICIENCY. The proceeds of any disposition
of all or any portion of the Collateral following an Event of Default shall be
applied in the following order:
(a) First, to the payment of all reasonable expenses of retaking,
holding, preparing the Collateral for sale or lease, and selling, leasing, or
otherwise disposing of the Collateral, including without limitation reasonable
attorneys' fees and other costs incurred by the Lenders and the Collateral Agent
in connection therewith;
(b) Second, to the full and complete satisfaction of all of the
Secured Debt; and
(c) Third, any surplus shall be remitted by Collateral Agent to Debtor
promptly after payment of all of the foregoing. In the event there is a surplus
and any other person makes a claim to the surplus amount, the Lenders may hold
said sum (without liability for interest or otherwise) or institute an
interpleader action and deposit said sum with an appropriate court of competent
jurisdiction until such time as the rights in such surplus are fully and finally
determined by a final nonappealable decision of a court of competent
jurisdiction or by agreement of all interested parties.
To the extent the proceeds from the disposition of the Collateral are
insufficient to satisfy items 8(a) and (b) above, Debtor shall remain liable to
the Lenders for the payment of such deficiency, with interest at the rate of
twelve percent (12%) per annum.
9. POWER OF ATTORNEY. Debtor hereby makes, constitutes and appoints
Collateral Agent as its true and lawful agent and attorney in fact, with full
power of substitution, and in Debtor's name, place and stead after the
occurrence of an Event of Default (i) to collect, pursue collection of, and
receive payment for any and all income, proceeds or payments with respect to any
Collateral; (ii) to endorse the name of Debtor upon any notes, checks,
acceptances, drafts, money orders, instruments or other documents relating to
the Collateral, or the income, proceeds, or payments with respect thereto so as
to affect the deposit and collection thereof, (iii) to waive, xxx for, settle,
adjust, or compromise any claims or right with respect to the Collateral; and
(iv) to take any action in the name and on behalf of the Debtor to fulfill any
representation, warranty, covenant or agreement of the Debtor contained herein
or as may be necessary or appropriate to carry out the purposes and intent of
this Agreement and to perfect and protect the Collateral Agent's security
interest in the Collateral and its rights therein. Debtor agrees that neither
Collateral Agent nor any of its agents, designees, officers or employees will be
liable for any acts of commission or omission, or for any error of judgment or
mistake of facts or law with respect to the exercise of said power of attorney
save and except fraud, gross misconduct, or a knowing violation of law. The
power of attorney granted hereunder is coupled with an interest and shall be
irrevocable during the term of this Agreement.
10. DURATION. This Agreement shall continue in full force and effect, and
the security interest granted hereby and the representations, warranties,
covenants and obligations of the Debtor hereunder and all the terms, conditions
and provisions hereof shall continue to be fully operative until the Debtor
shall have fully paid and discharged all of the Secured Debt. Debtor agrees that
to the extent a payment or payments to a Lender are subsequently invalidated,
set aside or otherwise required to be repaid, the obligation or part thereof
intended to be satisfied, and the security interest in the collateral granted
hereby, shall be revived and continued in full force and effect as if said
payment had not been made.
11. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement and the rights, obligations and duties
of the Debtor hereunder shall not be assignable or otherwise transferable by
Debtor. Any Lender may, upon notice to Debtor, transfer, participate or assign
any or all of its rights and obligations under this Agreement.
(b) FEES OF LEGAL COUNSEL. In the event a Lender or Collateral Agent
shall employ legal counsel to protect its rights hereunder or to enforce any
term or provision hereof or to protect its interest in the Collateral, such
attorneys' fees and other legal expenses shall become part of the Secured Debt
and shall be payable by Debtor to a Lender and Collateral Agent upon demand. The
Debtor shall pay all fees and expenses of the Lenders and Collateral Agent in
connection with the negotiation, consummation and implementation of this
Agreement and the Loan Documents and the performance of its obligations
hereunder.
(c) FURTHER ASSURANCES. Debtor agrees that from time to time
hereafter, upon request, it will, at its sole expense, execute, acknowledge and
deliver such other instruments and documents and take such further action as may
be reasonably necessary to carry out the intent of this Agreement and the Loan
Documents, specifically including, but not limited to the delivery of executed
stock powers and stock certificates or other evidences of ownership necessary to
perfect the pledge of any such securities granted hereunder and the execution
and delivery of patent and other intellectual property assignments. The Debtor
shall make appropriate entries upon its financial statements and its books and
records disclosing the Collateral Agent's liens and security interests in the
Collateral.
(d) MODIFICATION. No term or provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
(e) BINDING EFFECT AND BENEFIT. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties hereto, their heirs,
executors, administrators, personal representatives, successors in interest and
permitted assigns.
(f) HEADINGS AND CAPTIONS. Subject headings and captions are included
for convenience purposes only and shall not affect the interpretation of this
Agreement.
(g) NOTICE. All notices, requests, demands and other communications
permitted or required hereunder shall be in writing, and either (i) delivered in
person, (ii) sent by express mail or other overnight delivery service providing
receipt of delivery, (iii) mailed by certified or registered mail, postage
prepaid, return receipt requested or (iv) sent by telex, telegraph or other
facsimile transmission as follows:
If to Debtor, addressed or delivered in person to:
Cytomedix, Inc.
Xxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
If to the Collateral Agent, on behalf of the Lenders:
First Security Bank
Attn: Trust Dept.
P. O. Xxx 0000
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
or to such other address as either party may designate by notice in
accordance with this Section.
Any such notice or communication, if given or made by prepaid,
registered or certified mail or by recorded express delivery, shall be deemed to
have been made when actually received, but not later than three (3) business
days after the same was properly posted or given to such express delivery
service and if made properly by telex, telecopy or other facsimile transmission
such notice or communication shall be deemed to have been made at the time of
dispatch.
(h) SEVERABILITY. If any portion of this Agreement is held invalid,
illegal or unenforceable, such determination shall not impair the enforceability
of the remaining terms and provisions herein, which may remain effective, and to
this end this Agreement is declared to be severable.
(i) TIME FOR PERFORMANCE. Time is of the essence in this Agreement.
(j) WAIVER. No waiver of a default, breach or other violation of any
provision of this Agreement shall operate or be construed as a waiver of any
subsequent default, breach or other violation or limit or restrict any right or
remedy otherwise available. No delay or omission on the part of any Lender or
Collateral Agent to exercise any right or power arising by reason of a default
shall impair any such right or power or prevent its exercise at any time during
the continuance thereof.
(k) GENDER AND PRONOUNS. Throughout this Agreement, the masculine
shall include the feminine and neuter and the singular shall include the plural
and vice versa as the context requires.
(l) ENTIRE AGREEMENT. This Agreement and each Note constitute the
entire agreement of the parties and supersedes any and all other prior
agreements, oral or written, with respect to the subject matter contained
herein.
(m) GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF
THE STATE OF ILLINOIS. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY
RECEIVED, THE DEBTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN CHICAGO, STATE OF ILLINOIS. EACH OF THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY SUIT OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. THE
DEBTOR WAIVES ANY OBJECTION WHICH THE DEBTOR MAY HAVE BASED ON LACK OF
JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO ANY SUIT OR PROCEEDING
INSTITUTED BY ANY LENDER OR COLLATERAL AGENT
UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN ANY STATE OR FEDERAL COURT
LOCATED WITHIN CHICAGO, STATE OF ILLINOIS AND CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY LENDER OR COLLATERAL AGENT TO BRING ANY
ACTION OR PROCEEDING AGAINST THE DEBTOR OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION WHICH HAS JURISDICTION OVER THE DEBTOR OR ITS PROPERTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND COLLATERAL AGENT TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, MAKE THE LOANS AND EXTEND THE
OTHER FINANCIAL ACCOMMODATIONS CONTEMPLATED HEREUNDER AND THEREUNDER.
(n) INCORPORATION BY REFERENCE. All exhibits and documents referred to
in this Agreement shall be deemed incorporated herein by any reference thereto
as if fully set out.
(o) COUNTERPARTS. This Agreement may be executed in one or more
counterparts (all counterparts together reflecting the signature of all parties)
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
(p) SERVICE OF PROCESS. Debtor hereby irrevocably consents that
service of legal process in any such action or proceeding may be made in any
manner permitted by the rules of practice and procedure applicable to such
courts.
(q) DEBTOR'S FAILURE TO PAY COSTS OR EXPENSES. If the Debtor fails to
pay any cost or expense required hereunder to be paid by Debtor, (including,
without limitation, insurance and taxes) any Lender and/or Collateral Agent may,
at its option, pay such cost or expense on behalf of the Debtor, and in such
event the amount so paid by such party shall become part of the Secured Debt
hereunder and shall be payable by Debtor to such party upon demand.
(r) INSPECTION. Any Lender and/or Collateral Agent (by any of its
respective officers, employees and agents) shall have the right, at any
reasonable time or times during the Debtor's usual business hours, to inspect
the Collateral, all records related thereto (and to make extracts from such
records), and the premises upon which any of the Collateral is located, after an
Event of Default, to request information relating to the Debtor from any Person
and to verify the amount, quality, quantity, value and condition of, or any
other matter relating to, the Collateral. Collateral Agent may, at any time upon
and after the occurrence of a default or an Event of Default and during the
continuance thereof, employ and maintain in the Debtor's premises custodians
selected by Collateral Agent who shall have full authority to do all acts
necessary to protect Collateral Agent's interest. All expenses incurred by
Collateral Agent by reason of the employment of such custodians shall be paid by
the Debtor, added to the Secured Debt and secured by the Collateral. The Debtor
irrevocably waives the right to direct the application of any and all payments
and collections at any time or times hereafter received by any Lender or the
Collateral Agent from or on behalf of the Debtor, and the Debtor does hereby
irrevocably agree that each Lender and the Collateral Agent shall have the
continuing exclusive right to apply and to reapply any and all such payments and
collections received at any time or times hereafter by such Lender and/or
Collateral Agent or its agents against the Secured Debt which are due and
payable at the time of such application, in such manner as provided herein.
(s) NON-CUMULATIVE REMEDIES. The enumeration of the Lender's and
Collateral Agent's rights and remedies set forth in this Agreement is not
intended to be exhaustive and the exercise by them of any right or remedy shall
not preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given
hereunder, under the Loan Documents
or under any other agreement to which the Debtor and any Lender or which may now
or hereafter exist in law or in equity or by suit or otherwise. No delay or
failure to take action on the part of any Lender or Collateral Agent in
exercising any right, power or privilege shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege
preclude other or further exercise thereof or the exercise of any other right,
power or privilege or shall be construed to be a waiver of any Event of Default.
No course of dealing between the Debtor and any other party hereto or its
employees shall be effective to change, modify or discharge any provision of
this Agreement or to constitute a waiver of any Event of Default. Neither any
Lender nor Collateral Agent shall not, under any circumstances or in any event
whatsoever, have any liability for any error, omission or delay of any kind
occurring in the liquidation of the Collateral or for any damages resulting
therefrom except damages directly attributable to such party's (or its
officers', employees' or agents') gross negligence or willful misconduct.
(t) SURVIVAL OF AGREEMENTS. All agreements, covenants,
representations and warranties contained herein or made in writing by or on
behalf of the Debtor in connection with the transactions contemplated hereby
shall survive the execution and delivery of this Agreement and the other Loan
Documents.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year aforesaid.
DEBTOR:
CYTOMEDIX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
--------------------------------------
Title: Vice President for Finance and Chief
Financial Officer
--------------------------------------
SECURED PARTY:
By: COLLATERAL AGENT
FIRST SECURITY BANK
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
----------------------------------
Title: Vice President and Trust Officer
----------------------------------
EXHIBIT A
Note Holders
Exhibit B
Form of Note
Exhibit C
SCHEDULE 1
U.S. TRADEMARK REGISTRATIONS
AND PENDING APPLICATIONS
REGISTERED U.S. TRADEMARKS
--------------------------------------------------------------------------------------------------------------------
XXXX REG. NO. DATE OF ISSUE
----- -------- -------------
Autologous US 75/507,641 6/23/98 Issued 4/11/00
Autologous Platelet Gel US 75/507,346 6/23/98
Autologous Platelet Jel US 75/507,345 6/23/98
Autolo-Gel US 75/759,746 7/26/99
Autolo US 75/759,747 7/26/99
Cytomedix
PENDING U.S. TRADEMARK APPLICATIONS
-----------------------------------------------------------------------------------------------------
XXXX SERIAL NO. FILING DATE
---- ---------- ------------
FOREIGN TRADEMARK REGISTRATIONS
AND PENDING APPLICATIONS
REGISTERED TRADEMARKS
REGISTERED FOREIGN TRADEMARKS
--------------------------------------------------------------------------------------------------------------------
XXXX REG. NO. DATE OF ISSUE
----- -------- -------------
Canada 512700 7/07/99
Japan 0000000 4/30/92
Sweden 220805 2/01/99
US 1,596,010 5/15/90
PENDING FOREIGN. TRADEMARK APPLICATIONS
-----------------------------------------------------------------------------------------------------
XXXX SERIAL NO. FILING DATE
---- ---------- ------------
Philippines App. No. 01601 2/16/99
SCHEDULE 2
U.S. COPYRIGHTS, COPYRIGHT REGISTRATIONS
AND PENDING APPLICATIONS
NON-REGISTERED COPYRIGHTS CLAIMED
REGISTERED U.S. COPYRIGHTS
-----------------------------------------------------------------------------------------------------
COPYRIGHT REG. NO. DATE OF ISSUE
--------- -------- -------------
PENDING U.S. COPYRIGHT APPLICATIONS
---------------------------------------------------------------------------------------------------
COPYRIGHT SERIAL NO. FILING DATE
--------- ---------- -----------
SCHEDULE 3
U.S. PATENTS, PATENT REGISTRATIONS
AND PENDING APPLICATIONS
REGISTERED U.S. PATENTS
-------------------------------------------------------------------------------------------------------------------
PATENT REG. NO. DATE OF ISSUE
------ -------- -------------
Improved Enriched Platelet Wound Healant PCT/US99/02981 2/13/99
Improved Enriched Platelet Wound Healant US Patent (to be assigned) 7/19/00
US 5,470,831 11/28/95
US 5,776,892 7/07/98
Wound Healing Agents US
Wound Healing Agents US
Wound Healing Agents US
Wound Healing Agents (Hair Growth) US 4,957,742 9/18/90
Isolating Wound Capillary Endothelial Cells US
Wound Healing Agents US
Wound Healing Agents US
Wound Healing Agents US
Virus Free Platelet Derivative US
Method for Promoting Hair Growth US 5,178,883 1/12/93
Coating a Prosthetic Surface w/ Mammalian Cells US
Coating a Prosthetic Surface w/ Mammalian Cells US
Wound Healing Agents US
Wound Healing Agents US
Virus Free Platelet Derivative & Method of Making Same US
Method & Assay Improved Specific Binding Reactivity US
Method & Assay Improved Specific Binding Reactivity US
Method & Assay Improved Specific Binding Reactivity US
Platelet Releasale for Efficacious Treatment of Tissue US 5,599,558 2/04/97
PENDING U.S. PATENT APPLICATIONS
---------------------------------------------------------------------------------------------------
PATENT SERIAL NO. FILING DATE
------ ---------- -----------
FOREIGN PATENTS, PATENT REGISTRATIONS
AND PENDING APPLICATIONS
REGISTERED FOREIGN PATENTS
-----------------------------------------------------------------------------------------------------------------------
PATENTS REG. NO. DATE OF ISSUE
Improved Enriched Platelet Wound Healant Australia 53122/99 2/29/00
Improved Enriched Platelet Wound Healant Brazil (TBA) 1/31/00
Improved Enriched Platelet Wound Healant Canada 2,301,794 2/18/00
Improved Enriched Platelet Wound Healant Japan 2000-555609 1/31/00
Improved Enriched Platelet Wound Healant Mexico 000009 1/03/00
Improved Enriched Platelet Wound Healant Great Britain 00024257 2/02/00
Austria E 164 167 3/18/98
Belgium 0 562 329B 3/18/98
Canada 2,098,921 Filing Date 12/20/91
Switzerland 0 563 329B 3/18/98
Germany 69129121 3/18/98
Denmark 0 563 329B 3/18/98
European 0 563 329B 3/18/98
Spain 2117045 3/18/98
France 0 563 329B 3/18/98
Great Britain 0 563 329B 3/18/98
Italy 0 563 329B 3/18/98
Korea 204,400 3/29/99
Netherlands 0 563 329B 3/18/98
Sweden 0 563 329B 3/18/98
WO PCT (US91/09813) 12/20/91
Europe (Published) 94921322.7 (6/17/94)
WO PCT (US94/06888) (6/17/94)
Wound Healing Agents AR 235,349 8/31/87
Wound Healing Agents CA 1,261,259 9/26/89
Wound Healing Agents lE 57,894 5/05/98
Wound Healing Agents IL 77,096 11/19/85
Wound Healing Agents WO
Wound Healing Agents AU 596,954
Wound Healing Agents BR
Wound Healing Agents DK 165,168 3/01/93
Wound Healing Agents FI 85,219 3/25/92
Wound Healing Agents HU
Wound Healing Agents JP 1,986,949 11/08/95
Wound Healing Agents NO 170,194 9/23/92
Wound Healing Agents RU
Wound Healing Agents AT 202,298 7/15/92
Wound Healing Agents BE 202,298 7/15/92
Wound Healing Agents CH 202,298 7/15/92
Wound Healing Agents DE 202,298 7/15/92
Wound Healing Agents EP 202,298 7/15/92
Wound Healing Agents EP
Wound Heeling Agents FR 202,298 7/15/92
Wound Healing Agents GB 202,298 7/15/92
Wound Healing Agents IT 202,298 7/15/92
Wound Healing Agents LU 202,298 7/15/92
Wound Healing Agents NL 202,298 7/15/92
Wound Healing Agents SE 202,298 7/15/92
Wound Healing Agents AT
Wound Healing Agents DE
Wound Healing Agents GB 2,248,777
Wound Healing Agents 8,603,122
Wound Healing Agents NL
Wound Healing Agents SE
Wound Healing Agents CH 310,686 4/12/89
Wound Healing Agents (Hair Growth) AU
Wound Healing Agents (Hair Growth) CA
Wound Healing Agents (Hair Growth) EP
Wound Healing Agents (Hair Growth) JP
Wound Healing Agents (Hair Growth) WO
Isolating Wound Capillary Endothelia Cells WO
Platelet Releasale for Efficacious Treatment of Tissue AU 659,405 9/05/95
Platelet Releasale for Efficacious Treatment of Tissue CA
Platelet Releasale for Efficacious Treatment of Tissue DE 417,818 11/29/95
Platelet Releasale for Efficacious Treatment of Tissue EP 417,818 11/29/95
Platelet Rcleasale for Efficacious Treatment of Tissue FR 9,011,398 6/16/95
Platelet Releasale for Efficacious Treatment of Tissue FR 417,818 11/29/95
Platelet Releasale for Efficacious Treatment of Tissue GB 417,818 11/29/95
Platelet Releasale for Efficacious Treatment of Tissue IL
Platelet Releasale for Efficacious Treatment of Tissue IT 417, 818 11/29/95
Platelet Releasale for Efficacious Treatment of Tissue JP
Platelet Releasale for Efficacious Treatment of Tissue KR
Platelet Releasale for Efficacious Treatment of Tissue NL 417,818 11/29/95
Platelet Releasale for Efficacious Treatment of Tissue NO
Platelet Releasale for Efficacious Treatment of Tissue NZ 235,326 9/20/93
Platelet Releasale for Efficacious Treatment of Tissue US
Platelet Reteasale for Efficacious Treatment of Tissue WO
Platelet Releasale for Efficacious Treatment of Tissue ZA 907, 276 5/27/92
Virus Free Platelet Derivative IL
Virus Free Platelet Derivative NZ
Virus Free Platelet Derivative WO
Virus Free Platelet Derivative ZA 911,652 3/25/92
Coating a Prosthetic Surface w/ Mammalian Cells AU
Coating a Prosthetic Surface w/ Mammalian Cells CA
Coating a Prosthetic Surface w/ Mammalian Cells EP
Coating a Prosthetic Surface w/ Mammalian Cells FI
Coating a Prosthetic Surface w/ Mammalian Cells IL 97,896 8/27/95
Coating a Prosthetic Surface w/ Mammalian Cells NO
Coating a Prosthetic Surface w/ Mammalian Cells NZ
Coating a Prosthetic Surface w/ Mammalian Cells US
Coating a Prosthetic Surface w/ Mammalian Cells WO
Coating a Prosthetic Surface w/ Mammalian Cells ZA 912,882 1/29/92
Method & Assay Improved Specific Binding Reactivity AU
Method & Assay Improved Specific Binding Reactivity CA
Method & Assay Improved Specific Binding Reactivity EP
Method & Assay Improved Specific Binding Reactivity JP
Method & Assay Improved Specific Binding Reactivity NZ
PENDING FOREIGN PATENT APPLICATIONS
---------------------------------------------------------------------------------------------------
PATENT SERIAL NO. FILING DATE
------ ---------- -----------
Canada (Pending) Appl. No. 2,165,418 6/17/94
Japan (Pending) Appl. No. 4-505279 12/20/91
Japan (Pending) Appl. No. 07-502990 6/17/94
SCHEDULE 4
TRADEMARK, COPYRIGHT AND PATENT LICENSES
Trademark, Copyright and Patent Licenses with respect to which Grantor is a
licensor:
Trademark, Copyright or
Patent Registration or
Grantor Licensee Date of License Serial Number
------- -------- --------------- -----------------------
Trademarks, Copyrights and Patents with respect to which Grantor is a licensee:
Trademark, Copyright or
Patent Registration or
Grantor Licensee Date of License Serial Number
------- -------- --------------- -----------------------
BTG USA Inc Cytomedix, Inc. 1/19/98 All patients transferred to
Cytomedix, Inc. under
Asset Purchase
Agreement with Curative
University of Minnesota Cytomedix, Inc. 12/31/86 U.S. Patents No. 5,165,938
University of Minnesota Cytomedix, Inc. 9/30/88 U.S. Patents 4,957,742
and 5,178,883
