EXHIBIT 10.34
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SECURITY AGREEMENT
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THIS SECURITY AGREEMENT ("Agreement"), dated as of February 23,
2001, is made by and between XXXXXXXX.XXX, INC. ("Borrower"), a DELAWARE
corporation, and FINOVA MEZZANINE CAPITAL INC., ("FINOVA") a Tennessee
corporation with its principal office and place of business in Nashville,
Tennessee, in its capacity as collateral agent for itself and for Argosy
Investment Partners, L.P. ("Argosy"), a Pennsylvania limited partnership
("FINOVA and Argosy are collectively referred to as "Lender"; FINOVA is referred
to in its agency capacity as "Agent").
RECITALS:
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WHEREAS, pursuant to that certain First Amended and Restated Loan
Agreement of even date herewith among DynaGen, Inc., a Delaware corporation,
Borrower, Superior Pharmaceutical Company, an Ohio corporation; Argosy and
FINOVA, in its individual capacity and as Collateral Agent (as now existing and
as may hereafter be amended, the "Loan Agreement"), Lender has a loan
outstanding to Borrower in the aggregate principal amount of $2,250,000; and
WHEREAS, it is a condition of Lender's agreement to allow Borrower
to assume the Loan that Borrower execute and deliver this Agreement to Lender.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. Borrower hereby grants to Lender a
security interest in the following described property (collectively, the
"Collateral"):
(a) presently existing and hereafter arising accounts, contract
rights, and all other forms of obligations owing to Borrower arising
out of the sale or lease of goods or the rendition of services by
Borrower, whether or not earned by performance, and any and all
credit insurance, guaranties, and other security therefor, as well
as all merchandise returned to or reclaimed by Borrower and
Borrower's Books relating to any of the foregoing (collectively,
"Accounts");
(b) present and future general intangibles and other personal
property (including chooses or things in action, goodwill, patents,
trade names, trademarks, servicemarks, copyrights, blueprints,
drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, monies due under any royalty or
licensing agreements, infringement claims, computer programs,
computer discs, computer tapes, literature, reports, catalogs
deposit accounts, insurance premium rebates, tax refunds, and tax
refund claims) other than goods and Accounts, and Borrower's Books
relating to any of the foregoing (collectively, "General
Intangibles");
(c) present and future letters of credit, notes, drafts,
instruments, certificated and uncertificated securities, documents,
leases, and chattel paper, and Borrower's Books relating to any of
the foregoing (collectively, "Negotiable Collateral");
(d) present and future inventory in which Borrower has any
interest, including goods held for sale or lease or to be furnished
under a contract of service and all of Borrower's present and future
raw materials, work in process, finished goods, and packing and
shipping materials, wherever located, and any documents of title
representing any of the above, and Borrower's Books relating to any
of the foregoing (collectively, "Inventory");
(e) present and hereafter acquired machinery, machine tools,
motors, equipment, furniture, furnishings, fixtures, vehicles
(including motor vehicles and trailers), tools, parts, dies, jigs,
goods (other than consumer goods or farm products), and any interest
in any of the foregoing, and all attachments, accessories,
accessions, replacements, substitutions, additions, and improvements
to any of the foregoing, wherever located (collectively,
"Equipment");
(f) books and records including: ledgers; records indicating,
summarizing, or evidencing Borrower's assets or liabilities, or the
collateral; all information relating to Borrower's business
operations or financial condition; and all computer programs, disc
or tape files, printouts, funds or other computer prepared
information, and the equipment containing such information
(collectively, "Borrower's Books");
(g) substitutions, replacements, additions, accessions,
proceeds, products to or of any of the foregoing, including, but not
limited to, proceeds of insurance covering any of the foregoing, or
any portion thereof, and any and all Accounts, General Intangibles,
Negotiables, Collateral, Inventory, Equipment, money, deposits,
accounts, or other tangible or intangible property resulting from
the sale or other disposition of the accounts, general Intangibles,
Negotiable Collateral, Inventory, Equipment, or any portion thereof
or interest therein and the proceeds thereof.
2. Secured Indebtedness. The security interest granted hereby shall
secure the prompt payment of the Obligations (as defined in the Loan Agreement)
and the prompt performance of each of the covenants and duties under the Loan
Documents (as defined in the Loan Agreement).
3. Representations and Warranties of Borrower. Borrower represents,
warrants and agrees as follows:
(a) Except for encumbrances described in the schedules to the
Loan Agreement, (the "Permitted Encumbrances"), Borrower is the
owner of the Collateral free and clear of any liens and security
interests. Borrower will defend the Collateral against the claims
and demands of all persons other than the holders of the Permitted
Encumbrances. The Permitted Encumbrances include the senior security
interest described in that Intercreditor Agreement dated as of the
date hereof among FINOVA, Argosy and The CIT Group/Business Credit
Inc.
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(b) The address set forth on Schedule 3(b) hereto is Borrower's
principal place(s) of business and the location of all tangible
Collateral and the place where the records concerning all intangible
Collateral are kept and/or maintained.
(c) Borrower will pay all costs of filing of financing,
continuation and termination statements with respect to the security
interests created hereby, and Lender is authorized to do all things
that it deems necessary to perfect and continue perfection of the
security interests created hereby and to protect the Collateral.
4. Agreements With Respect to the Collateral. Borrower covenants and
agrees with Lender as follows:
(a) Borrower will not permit any of the Collateral to be removed
from the location specified herein, except for temporary periods in
the normal and customary use thereof, without the prior written
consent of Lender.
(b) Borrower shall notify Lender in writing of any change in the
location of Borrower's principal place of business (or residence) or
the location of any tangible Collateral or the place(s) where the
records concerning all intangible Collateral are kept or maintained.
(c) Borrower will keep the Collateral in good condition and
repair and will pay and discharge all taxes, levies and other
impositions levied thereon as well as the cost of repairs to or
maintenance of same, and will not permit anything to be done that
may impair the value of any of the Collateral. If Borrower fails to
pay such sums, Lender may do so for Borrower's account and add the
amount thereof to the Obligations.
(d) Until the occurrence of an Event of Default, Borrower shall
be entitled to possession of the Collateral and to use the same in
any lawful manner, provided that such use does not cause excessive
wear and tear to the Collateral, cause it to decline in value at an
excessive rate, or violate the terms of any policy of insurance
thereon.
(e) Borrower will not sell, exchange, lease or otherwise dispose
of any of the Collateral or any interest therein without the prior
written consent of Lender. Notwithstanding the foregoing, so long as
an Event of Default is not continuing, Borrower shall have the right
to process and sell Borrower's inventory in the regular course of
business and to sell or otherwise dispose of obsolete assets in the
ordinary course of business. Lender's security interest hereunder
shall attach to all proceeds of all sales or other dispositions of
the Collateral. If at any time any such proceeds shall be
represented by any instruments, chattel paper or documents of title,
then such instruments, chattel paper or documents of title shall be
promptly delivered to Lender, and subject to the security interest
granted hereby. If at any time any of Borrower's inventory is
represented by any document of title, such document of title will be
delivered promptly to Lender and subject to the security interest
granted hereby.
(f) Borrower will not allow the Collateral to be attached to
real estate in such manner as to become a fixture or a part of any
real estate.
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(g) Borrower will at all times keep the Collateral insured
against all insurable hazards in amounts equal to the full cash
value of the Collateral. Such insurance shall be in such companies
as may be acceptable to Lender, with provisions satisfactory to
Lender for payment of all losses thereunder to Lender as its
interests may appear. If required by Lender, Borrower shall deposit
the policies with Lender. Any money received by Lender under said
policies may be applied to the payment of the Obligations, whether
or not due and payable, or at Lender's option may be delivered by
Lender to Borrower for the purpose of repairing or restoring the
Collateral. Borrower assigns to Lender all right to receive proceeds
of insurance not exceeding the amounts secured hereby, directs any
insurer to pay all proceeds directly to Lender, and appoints Lender
Borrower's attorney-in-fact to endorse any draft or check made
payable to Borrower in order to collect the benefits of such
insurance. If Borrower fails to keep the Collateral insured as
required' by Lender, Lender shall have the right to obtain such
insurance at Borrower's expense and add the cost thereof to the
Obligations.
(h) Borrower will not permit any liens or security interests
other than those created by this Agreement and the Permitted
Encumbrances to attach to any of the Collateral, nor permit any of
the Collateral to be levied upon under any legal process, nor permit
anything to be done that may impair the security intended to be
afforded by this Agreement, nor permit any tangible Collateral to
become attached to or commingled with other goods without the prior
written consent of Lender.
5. Remedies Upon Default. Upon and during the continuance of an
Event of Default under and as defined in the Loan Agreement, Lender may pursue
any or all of the following remedies, without any notice to Borrower except as
required below:
(a) [Intentionally Omitted].
(b) Lender may take possession of any or all of the Collateral.
Borrower hereby consents to Lender's entry into any of Borrower's
premises to repossess Collateral, and specifically consents to
Lender's forcible entry thereto as long as Lender causes no
significant damage to the premises in the process of entry (xxxxxxxx
of locks, cutting of chains and the like do not in themselves cause
"significant" damage for the purposes hereof) and provided that
Lender accomplishes such entry without a breach of the peace.
(c) Lender may dispose of the Collateral at private or public
sale. Any required notice of sale shall be deemed commercially
reasonable if given at least ten (10) days prior to sale. Lender may
adjourn any public or private sale to a different time or place
without notice or publication of such adjournment, and may adjourn
any sale either before or after offers are received. The Collateral
may be sold in such lots as Lender may elect, in its sole
discretion. Lender may take such action as it may deem necessary to
repair, protect, or maintain the Collateral pending its disposition.
(d) Lender may recover any or all proceeds of accounts from any
bank or other custodian who may have possession thereof. Borrower
hereby authorizes and directs all custodians of Borrower's assets to
comply with any demand for payment made by Lender pursuant to this
Agreement, without the need of confirmation from Borrower
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and without making any inquiry as to the existence of an Event of
Default or any other matter. Lender may engage a collection agent to
collect accounts for a reasonable percentage commission or for any
other reasonable compensation arrangement.
(e) Lender may notify any or all account debtors that subsequent
payments must be made directly to Lender or its designated agent.
Such notice may be made over Lender's signature or over Borrower's
name with no signature or both, in Lender's discretion. Borrower
hereby authorizes and directs all existing or future account debtors
to comply with any such notice given by Lender, without the need of
confirmation from Borrower and without making any inquiry as to the
existence of an Event of Default or as to any other matter.
(f) Lender may, but shall not be obligated to, take such
measures as Lender may deem necessary in order to collect any or all
of the accounts. Without limiting the foregoing, Lender may
institute any administrative or judicial action that it may deem
necessary in the course of collecting and enforcing any or all of
the accounts. Any administrative or judicial action or other action
taken by Lender in the course of collecting the accounts may be
taken by Lender in its own name or in Borrower's name. Lender may
compromise any disputed claims and may otherwise enter into
settlements with account debtors or obligors under the accounts,
which compromises or settlements shall be binding upon Borrower.
Lender shall have no duty to pursue collection of any account, and
may abandon efforts to collect any account after such efforts are
initiated.
(g) Lender may, with respect to any account involving
uncompleted performance by Borrower, and with respect to any general
intangible or other Collateral whose value may be preserved by
additional performance on Borrower's part, take such action as
Lender may deem appropriate including, but not limited, to
performing or causing the performance of any obligation of Borrower
thereunder, the making of payments to prevent defaults thereunder,
and the granting of adequate assurances to other parties thereto
with respect to future performance. Lender's action with respect to
any such accounts or general intangibles shall not render Lender
liable for further performance thereunder unless Lender so agrees in
writing.
(h) Lender may exercise its lien upon and right of setoff
against any monies, items, credits, deposits or instruments that
Lender may have in its possession and that belong to Borrower or to
any other person or entity liable for the payment of any or all of
the Obligations.
(i) Lender may exercise any right that it may have under any
other document evidencing or securing the Obligations or otherwise
available to Lender at law or equity.
6. Audits and Examinations. Lender shall have the right, at any
reasonable time and, in the absence of an Event of Default, upon reasonable
advance notice, by its own auditors, accountants or other agents, to examine or
audit any of the books and records of Borrower, or the Collateral, all of which
will be made available upon request. Such accountants or other representatives
of Lender will be permitted to make any verification of the existence of the
Collateral or accuracy of the records that Lender deems necessary or proper. Any
reasonable
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expenses incurred by Lender in making such examination, inspection, verification
or audit shall be paid by Borrower promptly on demand and shall constitute part
of the Obligations.
7. Termination Statement. Upon receipt of proper written demand
following the payment in full of the Obligations and termination of any
commitment of Lender to make any future advances to Borrower, Lender at its
option, shall send a termination statement with respect to any financing
statement filed to perfect Lender's security interests in any of the Collateral
to Borrower or cause such termination statement to be filed with the appropriate
filing officer(s).
8. Power of Attorney. Borrower hereby constitutes Lender or its
designee, as Borrower's attorney-in-fact with power, upon the occurrence and
during the continuance of an Event of Default, to endorse Borrower's name upon
any notes, acceptances, checks, drafts, money orders, or other evidences of
payment or Collateral that may come into either its or Lender's possession; to
sign the name of Borrower on any invoice or xxxx of lading relating to any of
the accounts receivable, drafts against customers, assignments and verifications
of accounts receivable and notices to customers; to send verifications of
accounts receivable; to notify the Post Office authorities to change the address
for delivery of mail addressed to Borrower to such address as Lender may
designate; to execute any of the documents referred to in Section 3(c) hereof in
order to perfect and/or maintain the security interests and liens granted herein
by Borrower to Lender; to do all other acts and things necessary to carry out
the purposes of and remedies provided under this Agreement. All acts of said
attorney or designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of commission or omission (other than
acts of gross negligence or willful misconduct), nor for any error of judgment
or mistake of fact or law. This power being coupled with an interest is
irrevocable until all of the Obligations are paid in full and any and all
promissory notes executed in connection therewith are terminated and satisfied.
9. Binding Effect. This Agreement shall inure to the benefit of
Lender's successors and assigns and shall bind Borrower's heirs,
representatives, successors and assigns.
10. Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect the validity or enforceability of the
remaining provisions of this Agreement.
11. Governing Law and Amendments. This Agreement shall be construed
and enforced under the laws of the State of Tennessee applicable to contracts to
be wholly performed in such State. No amendment or modification hereof shall be
effective except in a writing executed by each of the parties hereto.
12. Survival of Representations and Warranties. All representations
and warranties contained herein or made by or furnished on behalf of Borrower in
connection herewith shall survive the execution and delivery of this Agreement.
13. Counterparts. This Agreement maybe executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
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14. Construction and Interpretation. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same, it being agreed
that Borrower, Lender and their respective agents have participated in the
preparation hereof.
15. Consent to Jurisdiction, Exclusive Venue. Borrower hereby
irrevocably consents to the Jurisdiction of the United States District Court for
the Middle District of Tennessee and of all Tennessee state courts sitting in
Davidson County, Tennessee, for the purpose of any litigation to which Lender
may be a party and which concerns this Agreement or the Obligations. It is
further agreed that venue for any such action shall lie exclusively with courts
sitting in Davidson County, Tennessee, unless Lender agrees to the contrary in
writing.
16. Waiver of Trial by Jury. LENDER AND BORROWER HEREBY KNOWINGLY
AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR
THE LOAN DOCUMENTS.
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IN WITNESS WHEREOF, Borrower and Lender have executed this
Agreement, or have caused this Agreement to be executed as of the date first
above written.
BORROWER:
XXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ C. Xxxxxx Xxxxxx
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Title: Executive Vice President
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AGENT:
FINOVA MEZZANINE CAPITAL INC.,
a Tennessee corporation, as Agent
By: illegible
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Title: Vice President
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