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EXHIBIT 10.34
SECURITY AGREEMENT
This Security Agreement ("Agreement") made February 11, 1997 by
ACCUMED INTERNATIONAL, INC., a corporation duly incorporated and existing
under the laws of the State of Delaware, United States of America ("Debtor"),
with its principal place of business at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, in favor of ONCOMETRICS IMAGING CORP., a corporation
duly incorporated and existing under the laws of the Yukon Territory, Canada
("Secured Party"), with its principal place of business at 000-000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0.
RECITAL: Debtor has executed a certain Promissory Note of even date
herewith made payable to Secured Party (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Note"), providing
for the making of a $500,000 term loan to Debtor. It is a condition precedent
to the making of such loan that Debtor shall have granted the security interest
contemplated by this Agreement.
1. DEFINITIONS
1.1 General Definitions. When used herein, the following terms
shall have the following meanings:
(a) "Accounts" shall mean all present and future accounts
receivable and other rights of Debtor to payment for goods sold or
leased or for services rendered, which are not evidenced by
instruments or chattel paper, and whether or not they have been earned
by performance.
(b) "Account Debtor" shall mean the party who is
obligated on or under an Account.
(c) "Code" shall mean the Uniform Commercial Code as in
effect in the State of Illinois from time to time.
(d) "Collateral" shall mean all property and interests in
property in which a security interest is granted to Secured Party by
Debtor hereunder or under any of the other Financing Agreements.
(e) "Default" shall mean the occurrence or existence of
any of the following (i) any event described in Paragraph 5 of the
Note, (ii) at any time, for any reason, this Agreement ceases to be in
full force and effect or the Debtor seeks to repudiate its obligations
hereunder or the Debtor seeks to render the Liens intended to be
created hereby invalid or unperfected or (iii)
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Liens in favor of the Secured Party contemplated by this Agreement
shall, at any time, for any reason, be invalidated or otherwise cease
to be in full force and effect with respect to any material portion of
the Collateral, or such Liens shall be subordinated or shall not have
the priority contemplated by this Agreement.
(f) "Equipment" shall mean all of Debtor's tangible
personal property, including, without limitation, equipment,
machinery, furniture and fixtures, together with any and all
accessions, parts and appurtenances thereto, wherever located, which
property is used or bought for use in the business of Debtor, other
than Inventory.
(g) "Financing Agreements" shall mean the Note and all
other agreements, instruments and documents executed by or on behalf
of Debtor and delivered to Secured Party in connection therewith,
including, without limitation, this Agreement.
(h) "General Intangibles" shall mean all general
intangibles, choses in action, causes of action, contract rights and
all other intangible personal property of Debtor of every kind and
nature (other than Accounts, Investment Property and capital stock or
other interests of Debtor in Secured Party, Accumed International
Limited or any other subsidiary or affiliate of Debtor), including,
without limitation, corporate or other business records, inventions,
designs, patents, patent applications, service marks, service xxxx
applications, trademarks, trademark applications, trade names, trade
secrets, goodwill, registrations, copyrights, copyright applications,
licenses, franchises, customer lists, computer software, files, disks,
tapes, drawings, blueprints, manuals, technology, data, proprietary
information, know-how, formulas, specifications, research and
development reports, tax refund claims, tax refunds, and the like,
wherever located.
(i) "Inventory" shall mean all inventory, goods,
merchandise and other personal property now owned or hereafter
acquired by Debtor which is held for sale or lease, furnished under
any contract of service or held as raw materials, work in process,
supplies or materials used or consumed in Debtor's business, wherever
located.
(j) "Investment Property" shall mean all securities,
whether certificate or uncertificated, securities entitlements,
financial assets, securities accounts, commodities contracts and
commodities accounts other than capital stock or other interests of
Debtor in Secured Party, Accumed International Limited or any other
subsidiary or affiliate of Debtor.
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(k) "Liabilities" shall mean all liabilities, obligations
and indebtedness of any and every kind and nature that arise under the
Note, this Agreement or any other Financing Agreement, whether
heretofore, now or hereafter owing, arising, due or payable from
Debtor to Secured Party.
(l) "Lien" shall mean any mortgage, deed of trust,
pledge, hypothecation, assignment, conditional sale agreement, deposit
arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect
of any property of a Person, whether granted voluntarily or imposed by
law, and includes the interest of a lessor under a capitalized lease
or under any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing
statement or similar notice, under the Code or other comparable law
of any jurisdiction.
(m) "Person" shall mean any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated
organization, association, limited liability company, corporation,
institution, entity, party, or government (whether national, federal,
state, provincial, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or
department thereof).
1.2 Other Terms. All other terms contained in this Agreement,
where the context so indicates (unless otherwise specifically defined herein),
shall have the meanings provided by the Code to the extent the same are used or
defined therein.
2. COLLATERAL
2.1 Security Interest. To secure payment and performance of
Debtor's Liabilities, Debtor hereby grants to Secured Party a continuing
security interest in and to the following property and interests in property:
all of Debtor's now owned and hereafter existing or acquired Accounts, General
Intangibles, Investment Property, Inventory, Equipment, documents, instruments,
chattel paper, cash, deposit accounts, and any and all property of Debtor now
or hereafter in the possession of, or pledged or assigned to Secured Party, and
all products, replacements and proceeds of, and accessions and additions to,
any of the foregoing property and interests in property, together with all of
Debtor's books and records relating to any of the foregoing property.
2.2 Financing Statements. Debtor will execute and deliver to
Secured Party such financing statements or amendments thereof or supplements
thereto, and such other instruments as Secured Party may from time to time
require in order to preserve, protect and maintain the security interest hereby
granted. Debtor further agrees that a
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carbon, photographic, photostatic or other reproduction of this Agreement or of
a financing statement is sufficient as a financing statement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Representations and Warranties. Debtor hereby represents and
warrants to Secured Party that:
(a) The Debtor (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified to do business as a foreign corporation and is
in good standing under the laws of Illinois and each jurisdiction in
which the nature of the Debtor's business or the ownership of property
requires such qualification, and (iii) has all requisite corporate
power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the
transactions contemplated by the Note and this Agreement.
(b) The Debtor has the requisite corporate power and
authority to execute, deliver and perform each of the Note, this
Agreement and each document which is to be executed by it in
connection with either of them. The execution, delivery, performance
and filing, as the case may be, of each such document have been duly
approved by the Executive Committee of the board of directors of the
Debtor and such approval has not been rescinded. No other corporate
action or proceedings on the part of the Debtor is necessary to
consummate such transactions. Each of the Note, this Agreement and
each document which is to be executed by the Debtor in connection with
either of them has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, is in full force and effect.
(c) The execution, delivery and performance of each of the
Note, this Agreement and each document which is to be executed by the
Debtor in connection with either of them do not and will not (i)
conflict with the Debtor's certificate of incorporation or by- laws,
(ii) any law known to the Debtor to be applicable to, or binding on,
its business or the Collateral or any contractual restriction binding
on or affecting the Debtor, or (iii) result in or require the creation
or imposition of any lien, encumbrance or security interest whatsoever
upon any of the property or assets of the Debtor, other than Liens
contemplated by the Note or this Agreement.
(d) The Debtor is and will be the owner of, and has and will
have good and marketable title to, the Collateral except for
Collateral sold in the ordinary course of business. The Debtor is the
legal and beneficial owner of the Collateral free and clear of any
Lien or other interest of a third party, except for the security
interest created by this Agreement and the Liens identified on
Schedule A. No financing
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statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office on the date
hereof, except such as may have been filed in favor of (i) Secured
Party and (ii) as set forth on Schedule A.
(e) The office where Debtor keeps its records concerning
the Collateral and Debtor's principal place of business and chief
executive office are and will be located at the address(es) set forth
on Schedule B attached hereto and made a part hereof. All of Debtor's
other places of business and all other places where Collateral is kept
are located at the addresses set forth on Schedule B except for
Inventory in transit. The amount represented by the Debtor from time
to time to Secured Party as the amount owing by each account debtor or
by all account debtors in respect of any Accounts will, at such time,
be the correct amount actually and unconditionally owing by such
account debtor(s) thereunder to the best of the Debtor's knowledge
(except to the extent, if any, that such account debtor(s) may be
entitled to normal trade discounts, adjustments, returns and
allowances).
(f) The correct corporate name of the Debtor on the date
hereof is AccuMed International, Inc. and the Debtor will not use any
other corporate or fictitious name other than AccuMed, Alamar and
Sensititre. The Debtor will not change its name, identity or structure
in any manner without the prior written consent of the Secured Party
which shall not be unreasonably withheld, provided, that, as a
condition to the effectiveness of any such consent, the Debtor shall
execute and deliver to the Secured Party, at the Debtor's expense,
any financing statements or other documents requested by the Secured
Party reasonably necessary or desirable to maintain the validity,
perfection and priority of the Liens intended to be created hereby.
(g) This Agreement, together with the filing of a financing
statement with the offices of the Secretary of State of Illinois, the
Secretary of State of Ohio and the County Recorder of Cuyahoga County,
Ohio, upon the giving of value to the Debtor by Secured Party, creates
a valid and perfected security interest in the Collateral (other than
Inventory in transit outside the States of Illinois and Ohio and
Collateral in which a security interest may not be perfected by filing
a financing statement under the Code and the Uniform Commercial Code
as in effect in the State of Ohio), securing the payment of the
Secured Obligations.
(h) No consent of any other person or entity and no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority is required (i) for the grant by the
Debtor of the security interest granted hereby or for the execution,
delivery or performance of this Agreement by the Debtor, (ii) for the
perfection or, except for the filing of the appropriate continuation
statements with respect to the financing statements described in
clause (g) above, maintenance of the security interest created hereby
(including the maintenance of the relative priority of
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such security interest) or (iii) for the exercise by Secured Party of
its rights and remedies hereunder.
(i) The Debtor has delivered to the Secured Party a draft of
financial statements for the fiscal year ending December 31, 1996. All
such financial statements were prepared in all material respects in
conformity with United States generally accepted accounting
principles, except as otherwise noted therein, and fairly present in
all material respects the respective consolidated financial position,
and the consolidated results of operations and cash flows for the
period covered thereby of the Debtor and its subsidiaries as at the
respective dates thereof. All assets shown under the headings
"Chicago" and "Cleveland" in such financial statements are assets
owned by the Debtor. The Debtor has no contingent liability or
liability for any taxes, long-term leases or commitments, not
reflected in such financial statements or otherwise disclosed to the
Secured Party in writing, which will have or is reasonably likely to
have a material adverse effect on the financial condition, operations,
assets or prospects of the Debtor or any of its Subsidiaries. As of
the date hereof, the Debtor does not anticipate the final versions of
such financial statements will differ in any material respect from
such drafts so delivered to the Secured Party.
(j) The Debtor has obtained, and will maintain, insurance
with responsible companies in such amounts and against such risks as
are customarily carried by corporations engaged in similar businesses
similarly situated.
(k) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived in writing.
3.2 Covenants. Until performance, payment and/or
satisfaction, in full, of the Liabilities, Debtor covenants and agrees as
follows:
(a) Debtor will at all times keep accurate and complete
records and books of account with respect to all of Debtor's business
activities, in accordance with sound accounting practices and
generally accepted accounting principles. Such records and accounts
will be maintained at the address of Debtor set forth at the beginning
of this Agreement.
(b) Secured Party, or any Person designated by it, shall
have the right, from time to time and upon reasonable notice, to call
at Debtor's place or places of business during reasonable business
hours, and, without hindrance or delay, to inspect, audit, check and
make extracts from Debtor's books, records, journals, orders, receipts
and any correspondence and other data relating to Debtor's business or
to any transactions between the parties hereto, and shall have the
right to make such verification concerning the Collateral as Secured
Party may consider reasonable
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under the circumstances, all at Debtor's expense. Debtor will furnish
to Secured Party such information relevant to the Collateral as
Secured Party may from time to time reasonably request, including,
without limitation, the original delivery or other receipts and
duplicate invoices relating to the Accounts.
(c) Debtor will keep the Collateral in good condition,
repair and order, ordinary wear and tear excepted; will not permit the
Collateral, or any party thereof, to be levied upon under execution,
attachment, distraint or other legal process; and will not sell,
lease, grant a security interest in or otherwise dispose of the
Collateral, or any part thereof, except as expressly permitted in this
Agreement or in any of the other Financing Agreements. Debtor will
not permit any of the Collateral to be kept at any location other than
locations specified on Schedule B without the prior written consent of
the Secured Party.
4. SALES, COLLECTIONS AND REPORTS
4.1 Sale of Inventory. Debtor may, in the ordinary
course of its business, and at its own expense, sell any of the Inventory
normally held by Debtor for such purpose, and use and consume, in the ordinary
course of its business, any Inventory normally held by Debtor for such purpose.
4.2 Collection of Accounts. Debtor may collect its
Accounts, but only in the ordinary course of its business and only until such
time, upon or after the occurrence of a Default, as such privilege is revoked,
in whole or in part, by Secured Party's notification to Account Debtors to make
payments directly to Secured Party. Debtor will take such action with respect
to the collection of those Accounts and of the proceeds thereof, as Secured
Party may request.
4.3 Notification of Account Debtors. Secured Party shall
have the right, at any time or times after the occurrence of a Default and
while it is continuing, to notify all Account Debtors that Accounts have been
assigned to Secured Party and that Secured Party has a security interest
therein; to direct all such Account Debtors to make payments to Secured Party
of all or any part of the sums owing Debtor by such Account Debtors; to enforce
collection of any of the Accounts by suit or otherwise; to surrender, release
or exchange all or any part of such Accounts; or to compromise, settle, extend
or renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby.
4.4 Endorsement by Secured Party. Debtor hereby
authorizes Secured Party to indorse, in the name of Debtor, any item, howsoever
received by Secured Party, representing payment on or other proceeds of any of
the Collateral.
4.5 Notice of Loss. Debtor will deliver to Secured
Party, at such times and in such form as shall reasonably be designated by
Secured Party, assignments,
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schedules and reports relating to the Collateral. Upon request by Secured
Party, Debtor will xxxx its books and records to reflect the security interest
of Secured Party in the Accounts. Debtor will promptly notify Secured Party
of any substantial loss or depreciation in the value of the Collateral.
4.6 Return of Goods. Debtor shall promptly report to
Secured Party the return or repossession of any goods, the sale or lease of
which shall have given rise to any Account. Secured Party shall have a
security interest in all such goods.
5. DEFAULT; REMEDIES
5.1 Remedies. In the event a Default shall occur and
while it is continuing:
(a) All Liabilities may (notwithstanding any provisions
thereof), at the option of Secured Party, and without demand, notice
or legal process of any kind, be declared, and immediately shall
become, due and payable, and Secured Party may exercise from time to
time any rights and remedies available to it under applicable laws or
in equity, including, without limitation, the Code, in addition to,
and not in lieu of, any rights and remedies expressly granted in this
Agreement, in any of the other Financing Agreements, or otherwise, all
of which remedies shall be cumulative.
(b) Without notice, demand or legal process of any kind,
Secured Party, its nominee, designee or agent may take possession of
any or all of the Collateral (in addition to Collateral of which it
may already have possession), wherever it may be found, and for that
purpose may pursue the same wherever it may be found, and may, without
a breach of the peace, enter onto any of Debtor's premises
("Premises") where any of the Collateral is or may be located, and
search for, and take possession of, any or all of the Collateral until
the same shall be sold or otherwise disposed of. Secured Party, its
nominee, designee or agent shall have the right to remove any or all
of the Collateral from the Premises and/or to assemble and store the
Collateral on the Premises, and otherwise to operate, occupy and use
the Premises, in connection with public or private sales of the
Collateral, all without cost to Secured Party, its nominee, designee
or agent.
(c) At Secured Party's request, Debtor will, at Debtor's
expense, assemble the Collateral at one or more places, reasonably
convenient to both parties, where the Collateral may, at Secured
Party's option, remain, at Debtor's expense, pending sale or other
disposition thereof.
(d) Debtor acknowledges that any breach by Debtor of any
of the provisions of this Section 5.1 will cause irreparable injury to
Secured Party, and that there is not adequate remedy at law for a
breach of the provisions of such Section.
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Debtor agrees that Secured Party will have the immediate right, upon
such breach, to obtain injunctive and other equitable relief in any
court of competent jurisdiction without any requirement of notice, and
that the granting of any such relief shall not preclude Secured Party
from pursuing any other available relief or remedies for such breach.
5.2 Sale of Collateral. Any notification required by law
of intended sale, lease or other disposition by or on behalf of Secured Party
of any of the Collateral shall be deemed reasonably and properly given if
mailed, postage prepaid, to Debtor at Debtor's address set forth at the
beginning of this Agreement, at least ten (10) calendar days before such sale,
lease or other disposition. Notice sent in such manner shall be deemed
received on the fifth business day following the day of deposit in the mails.
Any proceeds of any sale, lease or other disposition by Secured Party of any of
the Collateral may be applied by Secured Party to the payment of expenses in
connection with the Collateral, including, without limitation, reasonable
"attorneys' fees" (as defined in Section 5.3 below) and legal expenses. Any
balance of such proceeds may be applied by Secured Party toward the payment of
the Liabilities in the manner set forth in Section 7.5 below. Debtor shall
remain liable for any deficiency, and Secured Party shall account for any
surplus.
5.3 Attorneys' Fees; Costs and Expenses. As used in this
Agreement, "attorneys' fees" shall be defined as the reasonable value of the
services of the attorneys employed by Secured Party, from time to time, to
commence, defend or intervene in any court proceeding, or to file a petition,
complaint, answer, motion or other pleadings, or to take any other action in or
with respect to any suit or proceeding (bankruptcy or otherwise) relating to
the Collateral, this Agreement, the Note, or any of the other Financing
Agreements, or to protect, collect, lease, sell, take possession of, or
liquidate any of the Collateral or to attempt to enforce any security interest
in any of the Collateral, or to enforce any rights of Secured Party to collect
any of the Liabilities. Such attorneys' fees, and any expenses, costs and
charges relating thereto, including, without limitation, all fees of all
paralegals and other staff employed by such attorneys, and all other costs and
expenses incurred by Secured Party with respect to the enforcement, collection
or protection of its interests in the Collateral shall be repayable by Debtor
to Secured Party on demand, shall be additional Liabilities and shall be
secured by the Collateral.
5.4 Waiver of Bonds. IN THE EVENT SECURED PARTY SEEKS TO
TAKE POSSESSION OF ANY OR ALL OF THE COLLATERAL BY COURT PROCESS, TO OBTAIN ANY
INJUNCTION OR OTHER EQUITABLE RELIEF REQUIRING DEBTOR TO COMPLY WITH ANY OR ALL
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
SECTION 5.1 ABOVE, OR OTHERWISE TO COMPLY WITH APPLICABLE LAW, DEBTOR HEREBY
IRREVOCABLY WAIVES ANY BONDS AND ANY SURETY THEREON OR SECURITY RELATING
THERETO WHICH IS REQUIRED OR ALLOWED BY ANY STATUTE, COURT RULE OR OTHERWISE AS
AN INCIDENT TO SUCH POSSESSION OR INJUNCTION, AND WAIVES ANY DEMAND FOR
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POSSESSION PRIOR TO THE COMMENCEMENT OF ANY SUIT OR ACTION TO RECOVER WITH
RESPECT THERETO.
5.5 Waiver of Demand. Demand, presentment, protest and
notice of nonpayment is hereby waived by Debtor. Debtor also waives the
benefit of all valuation, appraisement and exemption laws.
5.6 Waiver of Notice. IN THE EVENT OF A DEFAULT
(PURSUANT TO AUTHORITY GRANTED BY ITS BOARD OF DIRECTORS), DEBTOR HEREBY WAIVES
ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY SECURED
PARTY OF ITS RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO
REPLEVY, ATTACH OR LEVY UPON SUCH COLLATERAL WITHOUT PRIOR NOTICE OR HEARING,
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.2. DEBTOR ACKNOWLEDGES THAT IT HAS
BEEN ADVISED BY COUNSEL WITH RESPECT TO THIS TRANSACTION AND THIS AGREEMENT.
5.7 Grant of License. The Secured Party is hereby
granted a license and right to use, following the occurrence and during the
continuance of a Default, without payment of royalty or other compensation, the
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, customer lists and advertising
matter, or any property of a similar nature, as it pertains to the Collateral,
in completing production of, advertising for sale, and selling any Collateral.
6. TERM
6.1 Term of Agreement. This Agreement shall continue in
full force and effect as long as any Liabilities are owing by Debtor to Secured
Party.
6.2 Termination. No termination of this Agreement shall
in any way affect or impair the rights and liabilities of the parties hereto
relating to any transactions or events which occurred prior to such termination
date or to any Collateral in which Secured Party has a security interest. All
agreements, warranties and representations of Debtor shall survive such
termination.
7. MISCELLANEOUS
7.1 Receipt of Payments. For purposes of determining the
amount of the Liabilities, including, without limitation, the computations of
interest which may from time to time be owing by Debtor to Secured Party, the
receipt of any check or any other item of payment by Secured Party shall not be
treated as a payment on account of the Liabilities until such check or other
item of payment is actually paid in collected funds. Any statement of account
rendered by Secured Party to Debtor relating to the Liabilities, including,
without limitation, all statements of balances owing, accrued interest,
expenses
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and costs, shall be presumed to be correct and accurate and constitute an
account stated unless, within thirty (30) days after receipt thereof by Debtor,
Debtor shall deliver to Secured Party written objection thereto specifying the
error or errors, if any, contained in any such statement.
7.2 Successors and Assigns. Whenever in this Agreement
there is reference made to any of the parties hereto, such reference shall be
deemed to include, wherever applicable, a reference to the successors and
assigns of such party. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of Debtor and
Secured Party.
7.3 Survival of Representations. All representations and
warranties of Debtor, and all terms, provisions, conditions and agreements to
be performed by Debtor contained herein, and in any of the other Financing
Agreements shall be true and satisfied at the time of the execution of this
Agreement, and shall survive the closing hereof and the execution and delivery
of this Agreement.
7.4 Governing Law; Severability. This Agreement shall be
construed in all respects in accordance with, and governed by, the laws and
decisions of the State of Illinois. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
7.5 Application of Payment. Debtor irrevocably waives
the right to direct the application of any and all payments at any time or
times hereafter received by Secured Party from Debtor, and Debtor does hereby
irrevocably agree that Secured Party shall have the continuing exclusive right
to apply and reapply any and all payments received at any time or times
hereafter against the Liabilities hereunder in such manner as Secured Party may
deem advisable, notwithstanding any entry by Secured Party upon any of its
books and records.
7.6 Invalidated Payment. Debtor agrees that to the
extent that Debtor makes a payment or payments to Secured Party, which payment
or payments, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to Debtor,
its estate, trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Liability or part thereof which has been paid,
reduced or satisfied by the amount so repaid shall be reinstated and included
within the Liabilities as of the date such initial payment, reduction or
satisfaction occurred.
7.7 Submission to Jurisdiction. DEBTOR CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
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STATE OF ILLINOIS, AND DEBTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON DEBTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO DEBTOR AT ITS ADDRESS STATED AT THE BEGINNING OF
THIS AGREEMENT. SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO POSTED.
7.8 Notice. Except as otherwise provided for herein, any
statement, notice or other communication required or permitted hereunder shall
be in writing and may be personally served, sent facsimile transmission or
courier service or United States certified mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or seven (7) business days after deposit in the United
States or Canadian mail with postage prepaid and properly addressed. For the
purposes hereof, the addresses of the parties hereto shall be as follows:
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If to the Debtor, at:
AccuMed International, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Chief Financial Officer
Telecopier: (000) 000-0000
If to the Secured Party, at:
Oncometrics Imaging Corp.
000-000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attention: President
Telecopier: (000) 000-0000
or, as to each party, at such other address as may be designated by such party
in a written notice to the other party to this Agreement in accordance with
this Section 7.8.
[The following page is the signature page]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
ACCUMED INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Vice President and
Chief Financial Officer
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SCHEDULE A
to
Security Agreement
dated February 11, 1997
Liens, Claims and Encumbrances
Against the Collateral
None, except:
(i) Liens for taxes not yet due or liens for taxes being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained on the books of the
Debtor in accordance with generally accepted accounting principles;
(ii) Liens on property or assets of the Debtor that were
incurred in the ordinary course of business, such as carriers',
warehousemen's, landlords' and mechanics' liens and other similar
liens arising in the ordinary course of business and that (x) do not
in the aggregate materially detract from the value of the property or
assets subject thereto or materially impair the use thereof in the
operation of the business of the Debtor or (y) that are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property
or assets subject to such lien;
(iii) Liens (other than any lien imposed by the Employee
Retirement Income Security Act of 1974, as the same may be
supplemented or amended from time to time, or in connection with any
environmental violation), pledges or deposits incurred or made in
connection with workmen's compensation, unemployment insurance and
other social security benefits, or securing the performance of bids,
tenders, leases, contracts (other than for the repayment of borrowed
money), statutory obligations, progress payments, surety and appeal
bonds and other obligations of like nature, in each case incurred in
the ordinary course of business; and
(iv) Financing statement 003581568 filed with the Illinois
Secretary of State on August 21, 1996, naming the Debtor as debtor and
Nortech Telecommunications Inc., as secured party relating to certain
telephone equipment leased by the Debtor. All of the obligations of
the Debtor relating to such financing statement have been paid in
full.
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16
SCHEDULE B
to
Security Agreement
dated February 11, 1997
Locations of Collateral and Books
and Records Concerning Collateral;
Debtor's Places of Business
----------------------------------
1. Locations of Collateral:
None, except:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx 000 and 403
Xxxxxxx, Xxxxxxxx, X.X.X. 00000
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx, X.X.X. 60610
00000 Xxxxxxx Xxxx, Xxxxx 0-X
Xxxxxxxx, Xxxx, X.X.X. 00000
2. Location of Books and Records Concerning the
Collateral and Debtor's Principal Place of Business and Chief Executive Office:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx, X.X.X. 00000
3. Debtor's Other Places of Business:
None.
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