EXHIBIT 4.6
CARDIOGENESIS CORPORATION
SECURITY AGREEMENT
To: Laurus Master Fund, Ltd.
c/o M&C Corporate Services Limited
X.X. Xxx 000 XX
Xxxxxx House
South Church Street
Xxxxxx Town
Grand Cayman, Cayman Islands
Date: October 26, 2004
To Whom It May Concern:
1. To secure the payment of all Obligations (as hereafter defined),
CardioGenesis Corporation, a California corporation (the "Assignor"), hereby
assigns and grants to Laurus Master Fund, Ltd. ("Laurus") a continuing security
interest in all of the following property now owned or at any time hereafter
acquired by the Assignor, or in which the Assignor now has or at any time in the
future may acquire any right, title or interest (the "Collateral"): all cash,
cash equivalents, accounts, accounts receivable, deposit accounts [(including,
without limitation, (x) the Restricted Account (the "Restricted Account")
maintained at North Fork Bank (Account Name: Cardio Genesis Corp., Account
Number: 2704053566) referred to in the Restricted Account Agreement and (y)
Lockbox Deposit Accounts), accounts receivable, inventory, equipment, goods,
documents, instruments (including, without limitation, promissory notes),
contract rights, general intangibles (including, without limitation, payment
intangibles and an absolute right to license on terms no less favorable than
those currently in effect among Assignor's affiliates), chattel paper,
supporting obligations, investment property (including, without limitation, all
equity interests owned by the Assignor), letter-of-credit rights, trademarks,
trademark applications, tradestyles, patents, patent applications, copyrights
and copyright applications in which the Assignor now has or hereafter may
acquire any right, title or interest, all proceeds and products thereof
(including, without limitation, proceeds of insurance) and all additions,
accessions and substitutions thereto or therefor. In the event the Assignor
wishes to finance the acquisition of any hereafter acquired inventory and
equipment (or refinance such purchase money financing) and obtains a commitment
from a financing source to finance or refinance such equipment from an unrelated
third party whether in the form of a loan or a lease transaction, Laurus agrees
to release its security interest on such hereafter acquired inventory and
equipment so financed by such third party financing source and all proceeds and
products thereof. Except as otherwise defined herein, all capitalized terms used
herein shall have the meaning provided such terms the Securities Purchase
Agreement referred to below.
2. The term "Obligations" as used herein shall mean and include all debts,
liabilities and obligations owing by the Assignor to Laurus arising under, out
of, or in connection with: (i) that certain Securities Purchase Agreement dated
as of the date hereof by and between the Assignor and Laurus (the "Securities
Purchase Agreement") and (ii) the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and each
Related Agreement as each may be amended, modified, restated or supplemented
from time to time, are collectively referred to herein as the "Documents"), or
any documents, instruments or agreements relating to or executed in connection
with the Documents or any documents, instruments or agreements referred to
therein or otherwise, or any other indebtedness, obligations or liabilities of
the Assignor to Laurus, whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent, due or not due and
whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise, in each case, irrespective of the genuineness,
validity, regularity or enforceability of such Obligations, or of any instrument
evidencing any of the Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Obligations in any case commenced
by or against the Assignor under Xxxxx 00, Xxxxxx Xxxxxx Code, including,
without limitation, obligations or indebtedness of the Assignor for
post-petition interest, fees, costs and charges that would have accrued or been
added to the Obligations but for the commencement of such case.
3. The Assignor hereby represents, warrants and covenants to Laurus that:
(a) it is a corporation, partnership or limited liability company,
as the case may be, validly existing, in good standing and organized under
the laws of the State of California, and it will provide Laurus thirty
(30) days' prior written notice of any change in its jurisdiction of
organization;
(b) its legal name, as set forth in its Articles of Incorporation
(or equivalent organizational document) as amended through the date
hereof, is CardioGenesis Corporation and it will provide Laurus thirty
(30) days' prior written notice of any change in its legal name;
(c) its organizational identification number (if applicable) is
C1637226, and it will provide Laurus thirty (30) days' prior written
notice of any change in its organizational identification number;
(d) it is the lawful owner of the Collateral and it has the sole
right to grant a security interest therein and will defend the Collateral
against all claims and demands of all persons and entities;
(e) it will keep the Collateral owned by it free and clear of all
attachments, levies, taxes, liens, security interests and encumbrances of
every kind and nature ("Encumbrances"), except (i) Encumbrances securing
the Obligations and (ii) Encumbrances securing or evidencing financing or
refinancing of inventory and/or equipment obtained from third party
financing sources and to be released from the security interests of Laurus
as provided in Section 1 above, or (iii) with
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respect to any Encumbrance (other than as described in clauses (i) and
(ii) above) to the extent said Encumbrance does not secure indebtedness in
excess of $100,000 and such Encumbrance is removed or otherwise released
within ten (10) days of the creation thereof;
(f) it will at its own cost and expense keep the Collateral in good
state of repair (ordinary wear and tear excepted) and will not waste or
destroy the same or any part thereof other than ordinary course discarding
of items no longer used or useful in its business;
(g) it will not without Laurus' prior written consent, sell,
exchange, lease or otherwise dispose of the Collateral, whether by sale,
lease or otherwise, except for the sale or other disposition of inventory
in the ordinary course of business and except for the disposition or
transfer in the ordinary course of business during any fiscal year of
obsolete and worn-out equipment or equipment no longer necessary for its
ongoing needs, having an aggregate fair market value of not more than
$25,000 and only to the extent that:
(i) the proceeds of any such disposition are used to acquire
replacement Collateral which is subject to Laurus' first priority
perfected security interest or are used to repay Obligations or to
pay general corporate expenses; and
(ii) following the occurrence of an Event of Default which
continues to exist the proceeds of which are remitted to Laurus to
be held as cash collateral for the Obligations;
(h) it will insure the Collateral in Laurus' name against loss or
damage by fire, theft, burglary, pilferage, loss in transit and such other
hazards as set forth in Section 6.8 of the Securities Purchase Agreement
and all premiums thereon shall be paid by the Assignor and the policies
delivered to Laurus . If the Assignor fails to do so, Laurus may procure
such insurance and the cost thereof shall be promptly reimbursed by the
Assignor and shall constitute Obligations; [
(i) it will upon one business day's prior notice, at all reasonable
times allow Laurus or Laurus' representatives free access to and the right
of inspection of the Collateral for th e purpose of confirming Assignor's
compliance with the provisions of this Agreement; and
(j) the Assignor hereby indemnifies and saves Laurus harmless from
all loss, costs, damage, liability and/or expense, including reasonable
attorneys' fees, that Laurus may sustain or incur to enforce payment,
performance or fulfillment of any of the Obligations and/or in the
enforcement of this Security Agreement or in the prosecution or defense of
any action or proceeding either against the Assignor or Laurus concerning
any matter growing out of or in connection with this Security Agreement,
and/or any of the Obligations and/or any of the Collateral except to the
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extent caused by Laurus' own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and
nonappealable decision); and
(k) On or prior to the 30th day following the Closing Date, the
Assignor will (x) irrevocably direct all of its present and future Account
Debtors (as defined below) and other persons obligated to make payments
constituting Collateral to make such payments directly to the lockboxes
maintained by the Assignor (the "Lockboxes") with [Insert initial Lockbox
Bank] or such other financial institution accepted by Laurus in writing as
may be selected by the Assignor (the "Lockbox Bank") (each such direction
pursuant to this clause (x), a "Direction Notice") and (y) provide Laurus
with copies of each Direction Notice, each of which shall be agreed to and
acknowledged by the respective Account Debtor. Upon receipt of such
payments, the Lockbox Bank has agreed to deposit the proceeds of such
payments in that certain deposit account maintained at the Lockbox Bank
and evidenced by the account name of Cardiogenesis Corporation and the
account number of 4945032605, or such other deposit account accepted by
Laurus in writing (the "Lockbox Deposit Account"). On or prior to the
Closing Date, the Assignor shall and shall cause the Lockbox Bank to enter
into all such documentation as shall be mutually acceptable to Laurus, the
Assignor and the Lockbox Bank, pursuant to which, among other things, the
Lockbox Bank agrees to, following notification by Laurus (which
notification Laurus shall only give following the occurrence and during
the continuance of an Event of Default), comply only with the instructions
or other directions of Laurus concerning the Lockbox and the Lockbox
Deposit Account. All of the Assignor's invoices, account statements and
other written or oral communications directing, instructing, demanding or
requesting payment of any Account of the Assignor or any other amount
constituting Collateral shall conspicuously direct that all payments be
made to the Lockbox or such other address as Laurus may direct in writing.
If, notwithstanding the instructions to Account Debtors, the Assignor
receives any payments, the Assignor shall immediately remit such payments
to the Lockbox Deposit Account in their original form with all necessary
endorsements. Until so remitted, the Assignor shall hold all such payments
in trust for and as the property of Laurus and shall not commingle such
payments with any of its other funds or property. For the purpose of this
Master Security Agreement, (x) "Accounts" shall mean all "accounts", as
such term is defined in the Uniform Commercial Code as in effect in the
State of New York on the date hereof, now owned or hereafter acquired by
the Assignor and (y) "Account Debtor" shall mean any person or entity who
is or may be obligated with respect to, or on account of, an Account.
4. The occurrence of any of the following events or conditions shall
constitute an "Event of Default" under this Security Agreement:
(a) Any representation or warranty made or furnished to Laurus by
the Assignor, shall, be false or misleading in any material respect on the
date that such representation or warranty was made or deemed made that
could reasonably be
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expected to have an Material Adverse Effect; or ; the Assignor breaches
any covenant or any other term or condition of the Note, the Purchase
Agreement or any Related Agreement in any respect that could reasonably be
expected to have an Material Adverse Effect, and, in any such case, such
breach, if subject to cure, continues for a period of fifteen (15) days
after the occurrence thereof;
(b) the loss, theft, substantial damage, destruction, sale or
encumbrance to or of any of the Collateral (other than as expressly
provided in this Security Agreement) or the making of any levy, seizure or
attachment thereof or thereon except to the extent:
(i) such loss is covered (subject to commercially reasonable
deductibles) by insurance proceeds which are used to replace the
item or repay Laurus; or
(ii) said levy, seizure or attachment does not secure
indebtedness in excess of $100,000 and such levy, seizure or
attachment has not been removed or otherwise released within thirty
(30) days of the creation or the assertion thereof;
(c) the Assignor shall become insolvent, cease operations, dissolve,
terminate our business existence, make an assignment for the benefit of
creditors, suffer the appointment of a receiver, trustee, liquidator or
custodian of all or any part of the Assignor's property;
(d) bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings or relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by the Borrower, or any
such proceeding is instituted against the Borrower and is not dismissed
within sixty (60) days after such proceeding is instituted;
(e) the Assignor shall repudiate, purport to revoke or fail to
perform any of its obligations under the Note (after passage of applicable
cure period, if any); or
(f) the occurrence and continuance of any Event of Default under the
Note (as defined therein) or any event of default (or similar term) under
any other indebtedness referred to in Section 4.1(b) of the Note.
5. (a) Upon the occurrence of any Event of Default and the continuation
thereof beyond any applicable cure period, and at any time thereafter, Laurus
may declare in a written notice delivered to Assignor, all Obligations
immediately due and payable and Laurus shall have the remedies of a secured
party provided in the Uniform Commercial Code as in effect in the State of New
York, this Security Agreement and other applicable law. Upon the occurrence of
any Event of Default and at any time thereafter, Laurus will have the right to
take possession of the Collateral and to maintain such possession on the
Assignor's premises or to remove the Collateral or any part thereof to such
other premises as Laurus may desire. Upon Laurus' request, the Assignor shall
assemble the Collateral and make it available to Laurus at a place designated by
Laurus. If any notification of
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intended disposition of any Collateral is required by law, such notification, if
mailed, shall be deemed properly and reasonably given if mailed at least ten
(10) days before such disposition, postage prepaid, addressed to the Assignor
either at the Assignor's address shown herein or at any address appearing on
Laurus' records for the Assignor. Any proceeds of any disposition of any of the
Collateral shall be applied by Laurus to the payment of all expenses in
connection with the sale of the Collateral, including reasonable attorneys' fees
and other legal expenses and disbursements and the reasonable expense of
retaking, holding, preparing for sale, selling, and the like, and any balance of
such proceeds may be applied by Laurus toward the payment of the Obligations in
such order of application as Laurus may elect, and the Assignor shall be liable
for any deficiency. For the avoidance of doubt, following the occurrence and
during the continuance of an Event of Default, Laurus shall have the immediate
right to withdraw any and all monies contained in the Restricted Account or any
other deposit accounts in the name of the Assignor and controlled by Laurus and
apply same to the repayment of the Obligations (in such order of application as
Laurus may elect).
(b) In the event that as of the date of receipt of each loss recovery upon
any such insurance maintained by the Assignor pursuant Section 6.8 of the
Securities Purchase Agreement, the Purchaser has not declared an Event of
Default under the Note or the Master Security Agreement , then the Company shall
be permitted to direct the application of such loss recovery proceeds toward
investment in property, plant and equipment that would comprise Collateral
secured by Purchaser's security interest pursuant to its security agreement,
with any surplus funds to be applied toward payment of the obligations of the
Company to Purchaser. In the event that Purchaser has properly declared an Event
of Default under the Note or the Master Security Agreement, then all loss
recoveries received by Purchaser upon any such insurance thereafter may be
applied to the Obligations in such order as the Purchaser may determine. Any
surplus (following satisfaction of all Company obligations to Purchaser) shall
be paid by Purchaser to the Company or applied as may be otherwise required by
law. Any deficiency thereon shall be paid by the Company to Purchaser, on
demand.
6. Upon the occurrence of any Event of Default and continuation thereof
beyond any applicable cure period, at any time thereafter, if the Assignor
defaults in the performance or fulfillment of any of the terms, conditions,
promises, covenants, provisions or warranties on the Assignor's part to be
performed or fulfilled under or pursuant to this Security Agreement, Laurus may,
at its option without waiving its right to enforce this Security Agreement
according to its terms, immediately or at any time thereafter and without notice
to the Assignor, perform or fulfill the same or cause the performance or
fulfillment of the same for the Assignor's account and at the Assignor's cost
and expense, and the cost and expense thereof (including reasonable attorneys'
fees) shall be added to the Obligations and shall be payable on demand with
interest thereon at the highest rate permitted by law , or, at Laurus' option,
debited by Laurus from the Restricted Account or any other deposit accounts in
the name of any Assignor and controlled by Laurus.
7. Effective upon the occurrence of any Event of Default and the
continuation thereof beyond any applicable cure period, the Assignor hereby
appoints Laurus, any of Laurus' officers, employees or any other person or
entity whom Laurus may designate as
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Assignor's attorney, with power to execute such documents in Assignor's behalf
and to supply any omitted information and correct patent errors in any documents
executed by the Assignor or on Assignor's behalf; to file financing statements
against the Assignor covering the Collateral (and, in connection with the filing
of any such financing statements, describe the Collateral as "all assets and all
personal property, whether now owned and/or hereafter acquired" (or any
substantially similar variation thereof)) subject to the duty of Laurus to
release (of record) inventory and equipment specifically constituting Collateral
that is financed or refinanced as contemplated by Section 1 hereof; to sign the
Assignor's name on public records; and to do all other things Laurus deems
necessary to carry out this Security Agreement. The Assignor hereby ratifies and
approves all acts of the attorney and neither Laurus nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law other than their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). This power being coupled with an interest, is
irrevocable so long as any Obligations remains unpaid.
8. No delay or failure on Laurus' part in exercising any right, privilege
or option hereunder shall operate as a waiver of such or of any other right,
privilege, remedy or option, and no waiver whatever shall be valid unless in
writing, signed by Laurus and then only to the extent therein set forth, and no
waiver by Laurus of any default shall operate as a waiver of any other default
or of the same default on a future occasion. Laurus' books and records
containing entries with respect to the Obligations shall be admissible in
evidence in any action or proceeding, shall be binding upon the Assignor for the
purpose of establishing the items therein set forth and shall constitute prima
facie proof thereof. Laurus shall have the right to enforce any one or more of
the remedies available to Laurus, successively, alternately or concurrently. The
Assignor agrees to join with Laurus in executing financing statements or other
instruments to the extent required by the Uniform Commercial Code in form
reasonably satisfactory to Laurus and in executing such other documents or
instruments as may be reasonably required or deemed necessary by Laurus for
purposes of perfecting or continuing Laurus' security interest in the
Collateral.
9. This Security Agreement shall be governed by and construed in
accordance with the laws of the State of New York and cannot be terminated
orally. All of the rights, remedies, options, privileges and elections given to
Laurus hereunder shall inure to the benefit of Laurus' successors and assigns.
Except for the grant of the security interest in the Collateral to Laurus under
this Security Agreement, the term "Laurus" as herein used shall include Laurus,
any parent of Laurus, any of Laurus' subsidiaries and any co-subsidiaries of
Laurus' parent, whether now existing or hereafter created or acquired, and all
of the terms, conditions, promises, covenants, provisions and warranties of this
Security Agreement shall inure to the benefit of each of the foregoing, and
shall bind the representatives, successors and assigns of the Assignor. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of New
York or in the federal courts located in the state of New York. Both parties and
the individual signing this Agreement on behalf of the Assignor agree to submit
to the jurisdiction of such courts. The prevailing party shall be entitled to
recover from the other party its reasonable attorney's fees and costs. In the
event that any provision of this
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Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or unenforceability of any other provision
of this Agreement. Nothing contained herein shall be deemed or operate to
preclude the Holder from bringing suit or taking other legal action against the
Assignor in any other jurisdiction to collect on the Assignor's obligations to
Laurus, to realize on any collateral or any other security for such obligations,
or to enforce a judgment or other court in favor of the Laurus
10. All notices from Laurus to the Assignor shall be sufficiently given if
mailed or delivered to the Assignor at its address set forth in the Securities
Purchase Agreement.
Very truly yours,
CARDIOGENESIS CORPORATION
By:
Name:
Title
ACKNOWLEDGED:
LAURUS MASTER FUND, LTD.
By: _______________________
Name:______________________
Title:_____________________
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