Form of Security Agreement SECURITY AGREEMENT
EXHIBIT 10.3
Form of Security Agreement
THIS
SECURITY AGREEMENT (as amended, restated, supplemented or otherwise
modified from time to time, this “Agreement”) dated as
of ____, 2018, by and among MEDITE Cancer Diagnostics, Inc., a
Delaware corporation (the “Company”, and together with
each of the undersigned direct and indirect Subsidiaries from time
to time and any other Person who becomes a party to this Agreement
by execution of a joinder in the form of Exhibit A attached hereto being
hereinafter sometimes referred to individually as a
“Debtor” and, collectively, as the
“Debtors”), and GPB Debt Holdings II, LLC, a Delaware
limited liability company, in its capacity as Collateral Agent (the
“Collateral Agent”), for the Purchasers (collectively
with their successors and permitted assigns, the “Secured
Party”).
W I T N E S S E T H:
WHEREAS, pursuant
to the Purchase Agreement (as hereafter defined), the Secured Party
will purchase that certain senior secured convertible note issued
by the Company (such note, together with any promissory notes or
other securities issued in exchange or substitution therefor or
replacement thereof, and as any of the same may be amended,
supplemented, restated or modified and in effect from time to time,
the “Notes”);
AND
WHEREAS, the Notes are being acquired by the Secured Party, and the
Secured Party has made certain financial accommodations to the
Company pursuant to a Purchase Agreement dated as of the date
hereof between the Company and the Secured Party (as the same may
be amended, restated, supplemented or otherwise modified from time
to time, the “Purchase Agreement”);
AND
WHEREAS, each Debtor will derive substantial benefit and advantage
from the financial accommodations to the Company set forth in the
Purchase Agreement and the Notes, and it will be to each such
Debtor’s direct interest and economic benefit to assist the
Company in procuring said financial accommodations from the Secured
Party;
AND
WHEREAS, to induce the Secured Party to enter into the Purchase
Agreement and purchase the Notes, Debtor will pledge and grant a
security interest in all of its right, title and interest in and to
the Collateral (as hereinafter defined) as security for its
Obligations for the benefit of the Secured Party and its successors
and permitted assigns;
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I. Definitions.
Capitalized terms used herein without definition and defined in the
Purchase Agreement are used herein as defined therein. In addition,
as used herein:
“Accounts” means any “account,” as such
term is defined in the UCC, and, in any event, shall include,
without limitation, “supporting obligations” as defined
in the UCC.
“Chattel Paper” means any “chattel paper,”
as such term is defined in the UCC.
“Collateral” shall have the meaning ascribed thereto in
Section 3 hereof.
“Commercial Tort Claims” means “commercial tort
claims”, as such term is defined in the UCC.
“Contracts” means all contracts, undertakings, or other
agreements (other than rights evidenced by Chattel Paper, Documents
or Instruments) in or under which a Debtor may now or hereafter
have any right, title or interest, including, without limitation,
with respect to an Account, any agreement relating to the terms of
payment or the terms of performance thereof.
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“Copyrights” means any copyrights, rights and interests
in copyrights, works protectable by copyrights, copyright
registrations and copyright applications, including, without
limitation, the copyright registrations and applications listed
on Schedule III
attached hereto (if any), and all
renewals of any of the foregoing, all income, royalties, damages
and payments now and hereafter due and/or payable under or with
respect to any of the foregoing, including, without limitation,
damages and payments for past, present and future infringements of
any of the foregoing and the right to xxx for past, present and
future infringements of any of the foregoing.
“Deposit Accounts” means all “deposit
accounts” as such term is defined in the UCC, now or
hereafter held in the name of a Debtor.
“Documents” means any “documents,” as such
term is defined in the UCC, and shall include, without limitation,
all documents of title (as defined in the UCC), bills of lading or
other receipts evidencing or representing Inventory or
Equipment.
“Equipment” means any “equipment,” as such
term is defined in the UCC and, in any event, shall include, Motor
Vehicles.
“Event of Default” shall have the meaning set forth in
the Notes.
“Excluded Assets” means each of the following: (1) any
lease, license or other agreement or any property subject to a
capital lease, purchase money security interest or similar
arrangement, to the extent that a grant of a Lien thereon in favor
of Secured Party would violate or invalidate such lease, license,
agreement or capital lease, purchase money security interest or
similar arrangement or create a right of termination in favor of
any other party thereto (other than the Debtors), so long as such
provision exists and so long as such lease, license or agreement
was not entered into in contemplation of circumventing the
obligation to provide Collateral hereunder or in violation of the
Purchase Agreement, other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9-406, 9-407,
9-408 or 9-409 of the UCC (or any successor provision or
provisions) of any relevant jurisdiction or any other applicable
law including the bankruptcy code, or principles of equity, (2) any
of the outstanding equity interests in a Foreign Subsidiary to the
extent that the pledge thereof is prohibited by the laws of the
jurisdiction of such Foreign Subsidiary’s organization and
(3) any application to register any trademark or service xxxx xxxxx
to the filing under applicable law of a verified statement of use
(or the equivalent) for such trademark or service xxxx to the
extent the creation of a security interest therein or the grant of
a lien thereon would void or invalidate such trademark or service
xxxx.
“General Intangibles” means any “general
intangibles,” as such term is defined in the UCC, and, in any
event, shall include, without limitation, all right, title and
interest in or under any Contract, models, drawings, materials and
records, claims, literary rights, goodwill, rights of performance,
Copyrights, Trademarks, Patents, warranties, rights under insurance
policies and rights of indemnification.
“Goods” means any “goods”, as such term is
defined in the UCC, including, without limitation, fixtures and
embedded Software to the extent included in “goods” as
defined in the UCC.
“Governmental Authority” means the government of the
United States of America or any other nation, or any political
subdivision thereof, whether state or local, or any agency,
authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or administration powers or functions of or pertaining
to government over any Debtor or any of its subsidiaries, or any of
their respective properties, assets or undertakings.
“Instruments” means any “instrument,” as
such term is defined in the UCC, and shall include, without
limitation, promissory notes, drafts, bills of exchange, trade
acceptances, letters of credit, letter of credit rights (as defined
in the UCC), and Chattel Paper.
“Inventory” means any “inventory,” as such
term is defined in the UCC.
“Investment Property” means any “investment
property”, as such term is defined in the UCC.
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“Obligations” means all obligations, liabilities and
indebtedness of every nature of Debtors from time to time owed or
owing under or in respect of this Agreement, the Purchase
Agreement, the Notes, any of the other Security Documents and any
of the other Transaction Documents, as the case may be, including,
without limitation, the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest and all fees, costs and
expenses, whether primary, secondary, direct, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter
owing, due or payable whether before or after the filing of a
bankruptcy, insolvency or similar proceeding under applicable
federal, state, foreign or other law and whether or not an allowed
claim in any such proceeding.
“Lien” has the meaning set forth in the Purchase
Agreement.
“Motor Vehicles” shall mean motor vehicles, tractors,
trailers and other like property, whether or not the title thereto
is governed by a certificate of title or ownership.
“Mortgage”
has the meaning set forth in Section 2(h).
“Patents” means any patents and patent applications,
including, without limitation, the inventions and improvements
described and claimed therein, all inventions subject to the
patents and patent applications listed
on Schedule IV
attached hereto (if
any), and the reissues, divisions, continuations,
renewals, extensions and continuations-in-part of any of the
foregoing, and all income, royalties, damages and payments now or
hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for
past, present and future infringements of any of the foregoing and
the right to xxx for past, present and future infringements of any
of the foregoing.
“Permitted Indebtedness” has the meaning set forth in
the Notes.
“Proceeds” means “proceeds,” as such term
is defined in the UCC and, in any event, includes, without
limitation, (a) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable with respect to any of the Collateral,
(b) any and all payments (in any form whatsoever) made or due and
payable from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any person
acting under color of Governmental Authority), and (c) any and all
other amounts from time to time paid or payable under, in respect
of or in connection with any of the Collateral.
“Representative” means any Person acting as agent,
representative or trustee on behalf of the Secured Party from time
to time.
“Security Documents” means this Agreement and any other
documents securing the Liens of the Secured Party
hereunder.
“Software” means all “software” as such
term is defined in the UCC, now owned or hereafter acquired by a
Debtor, other than software embedded in any category of Goods,
including, without limitation, all computer programs and all
supporting information provided in connection with a transaction
related to any program.
“Trademarks” means any trademarks, trade names,
corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing have
appeared or appear, all registrations and recordings thereof, and
all applications in connection therewith, including, without
limitation, the trademarks and applications listed in
Schedule
V attached hereto (if any) and
renewals thereof, and all income, royalties, damages and payments
now or hereafter due and/or payable under or with respect to any of
the foregoing, including, without limitation, damages and payments
for past, present and future infringements of any of the foregoing
and the right to xxx for past, present and future infringements of
any of the foregoing.
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“Transaction Documents” means the Purchase Agreement,
the Notes, the Security Documents, the Warrants and any other
related agreements delivered to and in favor of the
Purchaser.
“UCC” shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York; provided, that
to the extent that the Uniform Commercial Code is used to define
any term herein and such term is defined differently in different
Articles or Divisions of the Uniform Commercial Code, the
definition of such term contained in Article or
Division 9 shall govern.
ARTICLE
II. Representations,
Warranties and Covenants of Debtors. Each Debtor represents and
warrants to, and covenants with, the Secured Party as
follows:
(a) Such Debtor has or
will have rights in and the power to grant a security interest in
the Collateral in which it purports to grant a security interest
pursuant to Section 3 hereof (subject, with respect to after
acquired Collateral, to such Debtor acquiring the same) and no Lien
other than Permitted Liens exist or will exist upon such Collateral
at any time.
(b) This
Agreement is effective to create in favor of Secured Party a valid
security interest in and Lien upon all of such Debtor’s
right, title and interest in and to the Collateral, and upon (i)
the filing of appropriate UCC financing statements in the
jurisdictions listed on Schedule I attached hereto, ,
such security interest will be a duly perfected second priority
perfected security interest (subject to Permitted Liens) in the
Collateral that can be perfected by the filing of a UCC financing
statement, and is subordinate to the first priority security
interest of GBP Debt Holdings II, LLC (“GPB”) or any
assignor of GPB’s interest pursuant to the terms of the
Senior Documents (as defined in the Notes).
(c) All of the
Equipment, Inventory and Goods owned by such Debtor is located at
the places as specified on Schedule I attached hereto.
Except as disclosed on Schedule I, none of the
Collateral is in the possession of any bailee, warehousemen,
processor or consignee, other than Collateral in transit, out for
repair or with an employee in ordinary course of business.
Schedule I
discloses such Debtor’s name as of the date hereof as it
appears in official filings in the state or province, as
applicable, of its incorporation, formation or organization, such
Debtor’s state or province, as applicable, of incorporation,
formation or organization and the chief place of business, chief
executive office and the office where such Debtor keeps its books
and records and the states in which such Debtor conducts its
business. Such Debtor has only one state or province, as
applicable, of incorporation, formation or organization. Such
Debtor does not do business and has not done business during the
past five (5) years under any trade name or fictitious business
name except as disclosed on Schedule II attached
hereto.
(d) Schedules III, IV and V contain complete and accurate
lists as of the date hereof of all (i) registered copyrights and
applications therefor; (ii) patents and pending applications
therefor; (iii) registered trademarks and service marks and
applications therefor; and (iv) all unregistered trademarks
and service marks that are material to the operations of the
business of such Debtor; in each case owned by such Debtor. No
Copyrights, Patents or Trademarks listed on Schedules III, IV and V,
respectively, if any, have been adjudged invalid or unenforceable
or have been canceled, in whole or in part, or are not presently
subsisting. Each of such Copyrights, Patents and Trademarks (if
any) is valid and enforceable. Such Debtor is the sole and
exclusive owner of the entire and unencumbered right, title and
interest in and to each of such Copyrights, Patents and Trademarks,
identified on Schedules
III, IV and V, as applicable, as being owned by such Debtor,
free and clear of any liens, charges and encumbrances, including
without limitation licenses, shop rights and covenants by such
Debtor not to xxx third persons. Such Debtor has adopted, used and
is currently using, or has a current bona fide intention to use,
all of such Trademarks. Such Debtor has no notice of any suits or
actions commenced or threatened in writing with reference to the
Copyrights, Patents or Trademarks owned by it.
(e) Each Debtor agrees
to deliver to the Secured Party an updated Schedule I, II, III, IV and/or
V within five (5) Business Days of any change
thereto.
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(f) All depositary and
other accounts including, without limitation, Deposit Accounts,
securities accounts, brokerage accounts and other similar accounts,
maintained by each Debtor are described on Schedule VI hereto, which
description includes for each such account the name of the Debtor
maintaining such account, the name, address and telephone and
telecopy numbers of the financial institution at which such account
is maintained, the account number and the account officer, if any,
of such account. No Debtor shall open any new Deposit Accounts,
securities accounts, brokerage accounts or other accounts unless
such Debtor shall have given Secured Party ten (10) Business
Days’ prior written notice of its intention to open any such
new accounts. Each Debtor shall deliver to Secured Party a revised
version of Schedule
VI showing any changes thereto within five (5) Business Days
of any such change. Each Debtor hereby authorizes the financial
institutions at which such Debtor maintains an account to provide
Secured Party with such information with respect to such account as
Secured Party from time to time may request, and each Debtor hereby
consents to such information being provided to Secured Party. In
addition, all of such Debtor’s depositary, security,
brokerage and other accounts including, without limitation, Deposit
Accounts shall be subject to the provisions of Section 4.5
hereof.
(g) Such Debtor does
not own any Commercial Tort Claim except for those disclosed on
Schedule VII hereto
(if any).
(h) Such Debtor does
not have any interest in real property with respect to real
property except as disclosed on Schedule VIII (if any). Each
Debtor shall deliver to Secured Party a revised version of
Schedule VIII
showing any changes thereto within ten (10) Business Days of any
such change. Except as otherwise agreed to by Secured Party, all
such interests in real property with respect to such real property
are subject to a mortgage or deed of trust, as applicable in
accordance with the custom in the relevant jurisdiction, in form
and substance satisfactory to Secured Party, in favor of Secured
Party (hereinafter, a “Mortgage”).
(i) Each Debtor shall
duly and properly record each interest in real property held
by such Debtor except with respect to easements, rights of
way, access agreements, surface damage agreements, surface use
agreements or similar agreements that such Debtor, using
prudent customs and practices in the industry in which it operates,
does not believe are of material value or material to the operation
of such Debtor’s business or, with respect to state and
federal rights of way, are not capable of being recorded as a
matter of state and federal law.
(j) All Equipment
(including, without limitation, Motor Vehicles) owned by a Debtor
and subject to a certificate of title or ownership statute is
described on Schedule
IX hereto.
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ARTICLE
III. Collateral. As
collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the
Obligations, each Debtor hereby pledges and grants to the Secured
Party a Lien on and security interest in and to all of such
Debtor’s right, title and interest in the following
properties and assets of such Debtor, whether now owned by such
Debtor or hereafter acquired and whether now existing or hereafter
coming into existence and wherever located (all being collectively
referred to herein as “Collateral”):
(a) all Instruments,
together with all payments thereon or thereunder:
(b) all
Accounts;
(c) all
Inventory;
(d) all General
Intangibles (including payment intangibles (as defined in the UCC)
and Software);
(e) all
Equipment;
(f) all
Documents;
(g) all
Contracts;
(h) all
Goods;
(i) all Investment
Property, including without limitation all equity interests now
owned or hereafter acquired by such Debtor;
(j) all Deposit
Accounts, including, without limitation, the balance from time to
time in all bank accounts maintained by such Debtor;
(k) all Commercial Tort
Claims specified on Schedule VII;
(l) all Trademarks,
Patents and Copyrights;
(m) all books and
records pertaining to the other Collateral; and
(n) all other tangible
and intangible property of such Debtor, including, without
limitation, all interests in real property, Proceeds, tort claims,
products, accessions, rents, profits, income, benefits,
substitutions, additions and replacements of and to any of the
property of such Debtor described in the preceding clauses of this
Section 3 (including, without limitation, any proceeds of insurance
thereon, insurance claims and all rights, claims and benefits
against any Person relating thereto), other rights to payments not
otherwise included in the foregoing, and all books, correspondence,
files, records, invoices and other papers, including without
limitation all tapes, cards, computer runs, computer programs,
computer files and other papers, documents and records in the
possession or under the control of such Debtor, any computer bureau
or service company from time to time acting for such
Debtor.
Notwithstanding
anything to the contrary contained herein or in any Transaction
Document, in no event shall the security interest granted herein or
therein attach to any Excluded Assets.
ARTICLE
IV. Covenants;
Remedies. In furtherance of the grant of the pledge and security
interest pursuant to Section 3 hereof, each Debtor hereby agrees
with the Secured Party as follows:
4.1 Delivery
and Other Perfection; Maintenance, etc.
(i) Intentionally
Omitted
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(ii) Other
Documents and Actions. Subject to the rights of holders of
Permitted Liens, each Debtor shall give, execute, deliver, file
and/or record any financing statement, that may be necessary or
desirable (in the reasonable judgment of the Secured Party or its
Representative) to create, preserve, perfect or validate the
security interest granted pursuant hereto or to enable the Secured
Party or its Representative to exercise and enforce the rights of
the Secured Party hereunder with respect to such pledge and
security interest. Notwithstanding the foregoing each Debtor hereby
irrevocably authorizes the Secured Party at any time and from time
to time to file in any filing office in any jurisdiction any
initial financing statements (and other similar filings or
registrations under other applicable laws and regulations
pertaining to the creation, attachment, or perfection of security
interests) and amendments thereto that (a) indicate the Collateral
(i) as all assets of such Debtor or words of similar effect,
regardless of whether any particular asset comprised in the
Collateral falls within the scope of Article 9 of the UCC, or (ii)
as being of an equal or lesser scope or with greater detail, and
(b) contain any other information required by part 5 of Article 9
of the UCC for the sufficiency or filing office acceptance of any
financing statement or amendment, including (i) whether such Debtor
is an organization, the type of organization and any organization
identification number issued to such Debtor, and (ii) in the case
of a financing statement filed as a fixture filing, a sufficient
description of real property to which the Collateral relates. Each
Debtor agrees to furnish any such information to the Secured Party
promptly upon request. No filings in or documentation governed by
any foreign jurisdictions will be required.
(iii) Books
and Records. Each Debtor (or a Company on behalf of a
Debtor) shall maintain at its own cost and expense complete and
accurate books and records of the Collateral, including, without
limitation, a record of all payments received and all credits
granted with respect to the Collateral and all other dealings with
the Collateral. Each Debtor shall permit any Representative of the
Secured Party, in accordance with Section 8.13 of the Purchase
Agreement, to inspect such books and records at any time during
reasonable business hours and will provide photocopies thereof at
such Debtor’s expense to the Secured Party upon request of
the Secured Party.
(iv) Motor
Vehicles. Each Debtor shall, promptly upon acquiring same,
cause the Collateral Agent, for the Secured Party, at the request
of the Secured Party, to be listed as the lienholder subordinate to
GPB on each certificate of title or ownership covering any items of
Equipment, including Motor Vehicles, having a value in excess of
$100,000 individually or in the aggregate for all such items of
Equipment of the Debtor, or otherwise comply with the certificate
of title or ownership laws of the relevant jurisdiction issuing
such certificate of title or ownership in order to properly
evidence and perfect Secured Party’s security interest in the
assets represented by such certificate of title or
ownership.
(v) Intentionally
Omitted
(vi) Intellectual
Property. If such Debtor shall (i) obtain rights to any new
patentable inventions, any registered Copyrights or any Patents or
Trademarks, or (ii) become entitled to the benefit of any
registered Copyrights or any Patents or any registered Trademarks or unregistered
Trademarks material to the operations of the business of such
Debtor or any improvement on any Patent, the provisions of
this Agreement above shall automatically apply thereto and such
Debtor shall give to Secured Party prompt written notice thereof.
Each Debtor hereby authorizes Secured Party to modify this
Agreement by amending Schedules III, IV and V, as
applicable, to include any such registered Copyrights or any such
Patents and Trademarks. Each Debtor shall have the duty (i) to
prosecute diligently any patent, trademark, or service xxxx
applications pending as of the date hereof or hereafter, (ii) to
preserve and maintain all rights in the Copyrights, Patents and
Trademarks, to the extent material to the operations of the
business of such Debtor and (iii) to ensure that the Copyrights,
Patents and Trademarks are and remain enforceable, in each case to
the extent material to the operations of the business of such
Debtor. Any expenses incurred in connection with such
Debtor’s obligations under this Section 4.1(f) shall be borne
by such Debtor. Except for any such items that a Debtor reasonably
believes (using prudent industry customs and practices) are no
longer necessary for the on-going operations of its business, no
Debtor shall abandon any material right to file a patent, trademark
or service xxxx application, or abandon any pending patent,
trademark or service xxxx application or any other Copyright,
Patent or Trademark without the prior written consent of Secured
Party, which consent shall not be unreasonably
withheld.
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(vii) Further
Identification of Collateral. Each Debtor will, when and as
often as requested by the Secured Party or its Representative,
furnish to the Secured Party or such Representative, statements and
schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Secured
Party or its Representative may reasonably request, all in
reasonable detail.
(viii) Intentionally
Omitted
(ix) Commercial
Tort Claims. Each Debtor shall promptly notify Secured Party
of any Commercial Tort Claim acquired by it that concerns a claim
in excess of $50,000 and unless otherwise consented to by Secured
Party, such Debtor shall enter into a supplement to this Agreement
granting to Secured Party a Lien on and security interest in such
Commercial Tort Claim.
4.2 Other
Liens. Debtors will not create,
permit or suffer to exist, and will defend the Collateral against
and take such other action as is necessary to remove, any Lien on
the Collateral except Permitted Liens, and will defend the right, title and interest of
the Secured Party in and to the Collateral and in and to all
Proceeds thereof against the claims and demands of all Persons
whatsoever, except holders of Permitted Liens.
4.3 Preservation
of Rights. Whether or not any
Event of Default has occurred or is continuing, the Secured Party
and its Representative may, but shall not be required to, take any
steps the Secured Party or its Representative deems necessary or
appropriate to preserve any Collateral or any rights against third
parties to any of the Collateral, including obtaining insurance for
the Collateral at any time when such Debtor has failed to do so,
and Debtors shall promptly pay, or reimburse the Secured Party for,
all expenses incurred in connection therewith.
4.4 Formation
of Subsidiaries; Name Change; Location; Bailees.
(i) No
Debtor shall form or acquire any subsidiary unless (i) such
subsidiary becomes a party to this Agreement and all other
applicable Security Documents and (ii) the formation or acquisition
of such Subsidiary is not prohibited by the terms of the
Transaction Documents.
(ii) No
Debtor shall (i) reincorporate or reorganize itself under the laws
of any jurisdiction other than the jurisdiction in which it is
incorporated or organized as of the date hereof, or (ii) otherwise
change its identity or corporate structure, in each case, without
the prior written consent of Secured Party, which consent shall not
be unreasonably withheld, or (iii) change its name without
delivering twenty (20) days prior notice of such change to Secured
Party. Each Debtor will notify Secured Party promptly in writing
prior to any such change in the proposed use by such Debtor of any
tradename or fictitious business name other than any such name set
forth on Schedule
II attached hereto.
(iii) Except
for the sale of Inventory in the ordinary course of business and
other sales of assets expressly permitted by the terms of the
Purchase Agreement, Collateral in transit, our for repair or with
an employee in the ordinary course of business, each Debtor will
keep the Collateral at the locations specified in Schedule I. Each Debtor will
give Secured Party thirty (30) day’s prior written notice of
any change in such Debtor’s chief place of business or of any
new location for any of the Collateral.
(iv) If
any Collateral is at any time in the possession or control of any
warehousemen, bailee, consignee or processor in an aggregate amount
of at least $100,000, such Debtor shall, upon the request of
Secured Party or its Representative, notify such warehousemen,
bailee, consignee or processor of the Lien and security interest
created hereby and shall instruct such Person to hold all such
Collateral for Secured Party’s account subject to Secured
Party’s instructions.
(v) Each Debtor
acknowledges that it is not authorized to file any financing
statement or amendment or termination statement with respect to any
financing statement relating to Secured Party’s security
interests hereunder without the prior written consent of Secured
Party and agrees that it will not do so without the prior written
consent of Secured Party, subject to such Debtor’s rights
under Section 9-509(d)(2) to the UCC.
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(vi) Subject
to the rights of holders of Permitted Liens, no Debtor shall enter
into any Contract that restricts or prohibits the grant to Secured
Party of a security interest in material Accounts, Chattel Paper,
Instruments or payment intangibles or the proceeds of the
foregoing.
4.5 Events
of Default, Etc. During the period during which an Event of Default
shall have occurred and be continuing, subject to the rights of
holders of Permitted Liens and subject to the rights of GPB under
the Subordination and Intercreditor Agreement by and among GPB, the
Company and the Secured Party:
(i) each
Debtor shall, at the request of the Secured Party or its
Representative, assemble the Collateral and make it available to
Secured Party or its Representative at a place or places designated
by the Secured Party or its Representative which are reasonably
convenient to Secured Party or its Representative, as applicable,
and such Debtor;
(ii) the
Secured Party or its Representative may make any reasonable
compromise or settlement deemed desirable with respect to any of
the Collateral and may extend the time of payment, arrange for
payment in installments, or otherwise modify the terms of, any of
the Collateral;
(iii) the
Secured Party shall have all of the rights and remedies with
respect to the Collateral of a secured party under the UCC (whether
or not said UCC is in effect in the jurisdiction where the rights
and remedies are asserted) and such additional rights and remedies
to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be
asserted, including, without limitation, the right, to the maximum
extent permitted by law, to: (i) exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if
the Secured Party were the sole and absolute owner thereof (and
each Debtor agrees to take all such action as may be appropriate to
give effect to such right) and (ii) to the appointment of a
receiver or receivers for all or any part of the Collateral or
business of a Debtor, whether such receivership be incident to a
proposed sale or sales of such Collateral or otherwise and without
regard to the value of the Collateral or the solvency of any person
or persons liable for the payment of the Obligations secured by
such Collateral. Each Debtor hereby consents to the appointment of
such receiver or receivers, waives any and all defenses to such
appointment and agrees that such appointment shall in no manner
impair, prejudice or otherwise affect the rights of Secured Party
under this Agreement. Each Debtor hereby expressly waives notice of
a hearing for appointment of a receiver and the necessity for bond
or an accounting by the receiver;
(iv) the
Secured Party or its Representative in its discretion may, in the
name of the Secured Party or in the name of a Debtor or otherwise,
demand, xxx for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for any of
the Collateral, but shall be under no obligation to do
so;
(v) the Secured Party
or its Representative may take immediate possession and occupancy
of any premises owned, used or leased by a Debtor and exercise all
other rights and remedies which may be available to the Secured
Party;
(vi) the
Secured Party may, upon reasonable notice (such reasonable notice
to be determined by Secured Party in its sole and absolute
discretion, which shall not be less than ten (10) days), with
respect to the Collateral or any part thereof which shall then be
or shall thereafter come into the possession, custody or control of
the Secured Party or its Representative, sell, lease, license,
assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Secured Party deems best, and for
cash or for credit or for future delivery (without thereby assuming
any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition
or of the time or place thereof (except such notice as is required
above or by applicable statute and cannot be waived), and the
Secured Party or anyone else may be the purchaser, lessee,
licensee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law,
at any private sale) and thereafter hold the same absolutely, free
from any claim or right of whatsoever kind, including any right or
equity of redemption (statutory or otherwise), of Debtors, any such
demand, notice and right or equity being hereby expressly waived
and released. The Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place
to which the sale may be so adjourned;
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(vii) the
rights, remedies and powers conferred by this Section 4.5 are in
addition to, and not in substitution for, any other rights,
remedies or powers that the Secured Party may have under any
Transaction Document, at law, in equity or by or under the UCC or
any other statute or agreement. The Secured Party may proceed by
way of any action, suit or other proceeding at law or in equity and
no right, remedy or power of the Secured Party will be exclusive of
or dependent on any other. The Secured Party may exercise any of
its rights, remedies or powers separately or in combination and at
any time; and
(viii) each
Debtor, Secured Party and each Debtor’s bank shall enter into
a deposit account control agreement in form and substance
satisfactory to Secured Party that is sufficient to give Secured
Party “control” (for purposes of Articles 8 and 9 of
the Uniform Commercial Code) over such account and which directs
such bank to transfer such funds so deposited on a daily basis, or
at other times acceptable to Secured Party, to Secured Party,
either to any account maintained by Secured Party at said bank or
by wire transfer to appropriate account(s) at Secured Party. All
funds deposited in such Deposit Accounts shall immediately become
subject to the security interest of Secured Party for its own
benefit, and Secured Party shall obtain the agreement by such bank
to waive any offset rights against the funds so deposited. Secured
Party shall apply all funds received by it from the Deposit
Accounts to the satisfaction of the Obligations.
The
proceeds of each collection, sale or other disposition under this
Section 4.5 shall be applied in accordance with Section 4.8
hereof.
It
being agreed and acknowledged that Secured Party shall not have any
rights and shall not take any action that will impair GPB’s
first priority lien and its rights under the agreements it has
entered into with the Company as described in the Subordination and
Intercreditor Agreement.
4.6 Deficiency.
If the proceeds of sale, collection or other realization of or upon
the Collateral are insufficient to cover the costs and expenses of
such realization and the payment in full of the Obligations,
Debtors shall remain jointly and severally liable for any
deficiency.
4.7 Private
Sale. Each Debtor recognizes
that the Secured Party may be unable to effect a public sale of any
or all of the Collateral consisting of securities by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended (the “Act”), and applicable state securities laws,
but may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire such Collateral for their own
account for investment and not with a view to the distribution or
resale thereof. Each Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to
the seller than if such sale were a public sale and each Debtor
agrees that it is not commercially unreasonable for Secured Party
to engage in any such private sales or dispositions under such
circumstances. The Secured Party shall be under no obligation to
delay a sale of any of the Collateral to permit a Debtor to
register such Collateral for public sale under the Act, or under
applicable state securities laws, even if Debtors would agree to do
so. The Secured Party shall not incur any liability as a result of
the sale of any such Collateral unless it does so in violation of
the rights of GPB, or any part thereof, at any private sale
provided for in this Agreement conducted in a commercially
reasonable manner, and so long as Secured Party conducts such sale
in a commercially reasonable manner each Debtor hereby waives any
claims against the Secured Party arising by reason of the fact that
the price at which the Collateral may have been sold at such a
private sale was less than the price which might have been obtained
at a public sale or was less than the aggregate amount of the
Obligations, even if the Secured Party accepts the first offer
received and does not offer the Collateral to more than one
offeree.
Each Debtor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales of
any portion or all of any such Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts,
arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such
Debtor’s expense. Each Debtor further agrees that a breach of
any of the covenants contained in this Section 4.7 will cause
irreparable injury to the Secured Party, that the Secured Party has
no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this
Section 4.7 shall be specifically enforceable against Debtors, and
each Debtor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred and is
continuing.
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4.8 Application
of Proceeds. The proceeds of
any collection, sale or other realization of all or any part of the
Collateral, and any other cash at the time held by the Secured
Party under this Agreement, shall be applied, after the payment in
full of all obligations owed to GPB under the Senior Documents, to
the Obligations in such order as Secured Party shall
elect.
4.9 Attorney-in-Fact.
Each Debtor hereby irrevocably constitutes and appoints the Secured
Party, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the
place and stead of such Debtor and in the name of such Debtor or in
its own name, from time to time in the discretion of the Secured
Party, for the purpose of carrying out the terms of this Agreement,
to take any and all appropriate action and to execute and deliver
any and all documents and instruments which may be necessary or
desirable to perfect or protect any security interest granted
hereunder, to maintain the perfection or priority of any security
interest granted hereunder, or to otherwise accomplish the purposes
of this Agreement, and, without limiting the generality of the
foregoing, hereby gives the Secured Party the power and right, on
behalf of such Debtor, without notice to or assent by such Debtor
(to the extent permitted by applicable law), subject to the rights
of holders of Permitted Liens and subject to the rights of GPB
under the Senior Documents, to do the following:
(i) to
take any and all appropriate action and to execute and deliver any
and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this
Agreement;
(ii) upon
the occurrence and during the continuation of an Event of Default,
to ask, demand, collect, receive and give acquittance and receipts
for any and all moneys due and to become due under any Collateral
and, in the name of such Debtor or its own name or otherwise, to
take possession of and endorse and collect any checks, drafts,
notes, acceptances or other Instruments for the payment of moneys
due under any Collateral and to file any claim or to take any other
action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Secured Party for the purpose of
collecting any and all such moneys due under any Collateral
whenever payable and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed
appropriate by the Secured Party for the purpose of collecting any
and all such moneys due under any Collateral whenever
payable;
(iii) to
pay or discharge charges or liens levied or placed on or threatened
against the Collateral, to effect any insurance called for by the
terms of this Agreement and to pay all or any part of the premiums
therefor;
(iv) to
direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due, and to become due
thereunder, directly to the Secured Party or as the Secured Party
shall direct, and to receive payment of and receipt for any and all
moneys, claims and other amounts due, and to become due at any
time, in respect of or arising out of any Collateral;
(v) upon the occurrence
and during the continuation of an Event of Default, to sign and
indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts and other
Documents constituting or relating to the Collateral;
(vi) upon
the occurrence and during the continuation of an Event of Default,
to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the
Collateral or any part thereof and to enforce any other right in
respect of any Collateral;
(vii) upon
the occurrence and during the continuation of an Event of Default,
to defend any suit, action or proceeding brought against a Debtor
with respect to any Collateral;
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(viii) upon
the occurrence and during the continuation of an Event of Default,
to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such
discharges or releases as the Secured Party may deem
appropriate;
(ix) to
the extent that a Debtor’s authorization given in
Section 4.1(b) of this
Agreement is not sufficient to file such financing statements with
respect to this Agreement, with or without such Debtor’s
signature, or to file a photocopy of this Agreement in substitution
for a financing statement, as the Secured Party may deem
appropriate and to execute in such Debtor’s name such
financing statements and amendments thereto and continuation
statements which may require such Debtor’s
signature;
(x) upon the occurrence
and during the continuation of an Event of Default, generally to
sell, transfer, pledge, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely
as though the Secured Party were the absolute owners thereof for
all purposes; and
(xi) to
do, at the Secured Party’s option and at such Debtor’s
expense, at any time, or from time to time, all acts and things
which the Secured Party reasonably deems necessary to protect or
preserve or, upon the occurrence and during the continuation of an
Event of Default, realize upon the Collateral and the Secured
Party’s lien therein, in order to effect the intent of this
Agreement, all as fully and effectively as such Debtor might
do.
Each
Debtor hereby ratifies, to the extent permitted by law, all that
such attorneys lawfully do or cause to be done by virtue hereof
provided the same is performed in a commercially reasonable manner.
The power of attorney granted hereunder is a power coupled with an
interest and shall be irrevocable until the Obligations are
indefeasibly paid in full in cash and this Agreement is terminated
in accordance with Section 4.11 hereof.
Each
Debtor also authorizes the Secured Party, at any time from and
after the occurrence and during the continuation of any Event of
Default, (x) to communicate in its own name with any party to any
Contract with regard to the assignment of the right, title and
interest of such Debtor in and under the Contracts hereunder and
other matters relating thereto and (y) to execute, in connection with any
sale of Collateral provided for in Section 4.5 hereof, any
endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
4.10 Intentionally
Omitted.
4.11 Termination;
Partial Release of Collateral.
This Agreement and the Liens and security interests granted
hereunder shall not terminate until the termination of the Purchase
Agreement and the Notes and the full and complete performance and
indefeasible satisfaction of all the Obligations (i) in respect of
the Transaction Documents (including, without limitation, the
indefeasible payment in full in cash of all such Obligations) and
(ii) with respect to which claims have been asserted by the
Collateral Agent/ and or Purchaser, whereupon the Secured Party
shall forthwith cause to be assigned, transferred and delivered,
against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral to or on the
order of Debtors. The Secured Party shall also execute and deliver
to Debtors upon such termination or in connection with a Permitted
Disposition and at Debtors’ expense such UCC termination
statements, certificates for terminating the liens on the Motor
Vehicles (if any), possessory collateral (if any) and such other
documentation as shall be reasonably requested by Debtors to effect
the termination and release of the Liens and security interests in
favor of the Secured Party affecting the
Collateral.
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4.12 Further
Assurances. At any time and
from time to time, upon the written request of the Secured Party or
its Representative, and at the sole expense of Debtors, subject to
the rights of holders of Permitted Liens, Debtors will promptly and
duly execute and deliver any and all such further instruments,
documents and agreements and take such further actions as the
Secured Party or its Representative may reasonably require in order
for the Secured Party to obtain the full benefits of this Agreement
and of the rights and powers herein granted in favor of the Secured
Party or the Collateral Agent on behalf of the Secured Party,
including, without limitation, using Debtors’ best efforts to
secure all consents and approvals necessary or appropriate for the
assignment to the Secured Party of any Collateral held by Debtors
or in which a Debtor has any rights not heretofore assigned, the
filing of any financing or continuation statements under the UCC
with respect to the liens and security interests granted hereby,
placing the interest of the Collateral Agent on behalf of the
Secured Party as lienholder on the certificate of title of any
Motor Vehicle in accordance with the terms hereof, and obtaining
waivers of liens from landlords in accordance with the terms
hereof. Each Debtor also hereby authorizes the Secured Party and
its Representative to file any such financing or continuation
statement without the signature of such Debtor to the extent
permitted by applicable law.
4.13 Limitation
on Duty of Secured Party. The
powers conferred on the Secured Party under this Agreement are
solely to protect the Secured Party’s interest in the
Collateral and shall not impose any duty upon it to exercise any
such powers. The Secured Party shall be accountable only for
amounts that it actually receives as a result of the exercise of
such powers,
and neither the Secured Party nor its
Representative nor any of their respective officers, directors,
employees or agents shall be responsible to Debtors for any act or
failure to act, except for gross negligence or willful misconduct.
Without limiting the foregoing, the Secured Party and any
Representative shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in their possession
if such Collateral is accorded treatment substantially equivalent
to that which the relevant Secured Party or any Representative, in
its individual capacity, accords its own property consisting of the
type of Collateral involved, it being understood and agreed that
neither the Secured Party nor any Representative shall have any
responsibility for taking any necessary steps (other than steps
taken in accordance with the standard of care set forth above) to
preserve rights against any Person with respect to any
Collateral.
Also
without limiting the generality of the foregoing, neither the
Secured Party nor any Representative shall have any obligation or
liability under any Contract or license by reason of or arising out
of this Agreement or the granting to the Secured Party of a
security interest therein or assignment thereof or the receipt by
the Secured Party or any Representative of any payment relating to
any Contract or license pursuant hereto, nor shall the Secured
Party or any Representative be required or obligated in any manner
to perform or fulfill any of the obligations of Debtors under or
pursuant to any Contract or license, or to make any payment, or to
make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party
under any Contract or license, or to present or file any claim, or
to take any action to collect or enforce any performance or the
payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
ARTICLE
V. Miscellaneous.
5.1 No
Waiver. No failure on the part
of the Secured Party or any of its Representatives to exercise, and
no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Secured
Party or any of its Representatives of any right, power or remedy
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The rights and
remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and
remedies provided by law.
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5.2 Governing
Law. All questions concerning
the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of
New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New
York.
5.3 Notices.
All notices, approvals, requests, demands and other communications
hereunder shall be delivered or made in the manner set forth in,
and shall be effective in accordance with the terms of, the
Purchase Agreement; provided, that, to the extent any such
communication is being made or sent to a Debtor that is not the
Company, such communication shall be effective as to such Debtor if
made or sent to the Company in accordance with the foregoing.
Debtors and Secured Party may change their respective notice
addresses by written notice given to each other party five (5) days
prior to the effectiveness of such change.
5.4 Amendments,
Etc. The terms of this
Agreement may be waived, altered or amended only by an instrument
in writing duly executed by the Debtor sought to be charged or
benefited thereby and the Secured Party. Any such amendment or
waiver shall be binding upon the Secured Party and the Debtor
sought to be charged or benefited thereby and their respective
successors and assigns.
5.5 Successors
and Assigns. This Agreement
shall be binding upon and inure to the benefit of the respective
successors and assigns of each of the parties hereto, provided,
that no Debtor shall assign or transfer its rights hereunder
without the prior written consent of the Secured Party. Secured
Party may assign its rights hereunder without the consent of
Debtors, in which event such assignee shall be deemed to be Secured
Party hereunder with respect to such assigned rights; provided, so
long as no Event of Default has occurred and is continuing, the
Secured Party shall not assign any of its rights hereunder to a
competitor of the Company.
5.6 Counterparts;
Headings. This Agreement may be
authenticated in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of
the parties hereto may authenticate this Agreement by signing any
such counterpart. This Agreement may be authenticated by manual
signature or facsimile, .pdf or similar electronic signature, all
of which shall be equally valid. The headings in this Agreement are
for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
5.7 Severability.
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (a) the
other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the
Secured Party and its Representative in order to carry out the
intentions of the parties hereto as nearly as may be possible and
(b) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
5.8 SUBMISSION
TO JURISDICTION; WAIVER OF VENUE; SERVICE OF
PROCESS. EACH DEBTOR HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK, BOROUGH OF
MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND EACH DEBTOR HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
SECURED PARTY TO BRING PROCEEDINGS AGAINST ANY DEBTOR IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY A DEBTOR
AGAINST SECURED PARTY OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN
NEW YORK, NEW YORK (AND SECURED PARTY HEREBY SUBMITS TO THE
JURISDICTION OF SUCH COURT). NOTHING CONTAINED HEREIN SHALL BE
DEEMED TO LIMIT IN ANY WAY ANY RIGHT OF SECURED PARTY TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW.
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5.9 WAIVER
OF RIGHT TO TRIAL BY JURY.
EACH DEBTOR AND SECURED PARTY WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY
OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. EACH DEBTOR AND SECURED PARTY AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION 5.9 AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
5.10 Joint
and Several. The obligations,
covenants and agreements of Debtors hereunder shall be the joint
and several obligations, covenants and agreements of each Debtor,
whether or not specifically stated herein without preferences or
distinction among them.
5.11 Concerning
Collateral Agent.
Collateral Agent shall act in
accordance with the terms of the Purchase Agreement. The Collateral
Agent may exercise or refrain from exercising any rights (including
making demands and giving notices) and take or refrain from taking
any action, in accordance with this Agreement and the Purchase
Agreement. The Collateral Agent may employ agents and
attorneys-in-fact in connection herewith and shall not be liable
for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Collateral
Agent may resign with 10 days’ written notice to Company and
a successor Collateral Agent may be appointed by the Purchasers in
consultation with Company. On the acceptance of appointment as the
successor Collateral Agent, that successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent under this
Agreement, and the retiring Collateral Agent shall thereupon be
discharged from its duties and obligations under this Agreement.
After any retiring Collateral Agent's resignation, the provisions
hereof shall inure to its benefit as to any actions taken or
omitted to be taken by it under this Agreement while it was the
Collateral Agent.
5.12 No
Strict Construction. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any
party.
5.13 ENTIRE
AGREEMENT; AMENDMENT. THIS
AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS,
SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN
SECURED PARTY, THE DEBTORS, THEIR AFFILIATES AND PERSONS ACTING ON
THEIR BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS
AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS AND THE
OTHER INSTRUMENTS REFERENCED HEREIN AND THEREIN, CONTAIN THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS COVERED
HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR
THEREIN, NEITHER THE SECURED PARTY NOR ANY DEBTOR MAKES ANY
REPRESENTATION, WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO
SUCH MATTERS. AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO
UNWRITTEN AGREEMENTS BETWEEN THE PARTIES WITH RESPECT TO THE
MATTERS DISCUSSED HEREIN. NO PROVISION OF THIS AGREEMENT MAY BE
AMENDED, MODIFIED OR SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN
WRITING SIGNED BY THE DEBTORS AND THE SECURED
PARTY.
[Remainder of Page Intentionally Left Blank; Signature Page
Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year
first above written.
DEBTORS:
MEDITE CANCER DIAGNOSTICS, INC., a
Delaware corporation
By:
Name:
Xxxxxxx Xxx Xxxx
Title:
Chief Executive Officer
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PURCHASER:
______________________________
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COLLATERAL AGENT:
GPB
DEBT HOLDINGS II, LLC
By:
Name:
Xxxxx Xxxxxxx
Title:
Manager
Notice
Address:
000
Xxxx 00xx
Xxxxxx, Xxxxx 0
Xxx
Xxxx, XX 00000
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