EXHIBIT 10.17
A MENDED AND R ESTATED S ECURITY A GREEMENT
T HIS A MENDED AND R ESTATED S ECURITY A GREEMENT (this “ Agreement ”) is
entered into as of February 19, 2009, by N ATUS M EDICAL I NCORPORATED , a Delaware corporation (“ Debtor
” or the “ Company ”), in favor of
W ELLS F ARGO B ANK ,
N ATIONAL A SSOCIATION (“ Secured Party
”).
R ECITALS :
A. The Company and Secured Party
have previously entered into that certain Security Agreement, dated
as of November 28, 2007 (as amended, restated, modified and/or
supplemented prior to the date hereof, the “ Existing
Agreement) .
B. The Company has requested that
Secured Party provide and continue to provide the Company with
certain financial accommodations as evidenced by one or more
promissory notes or other instruments executed and delivered by the
Company to Secured Party and other agreements entered into from
time to time between the Company and Secured Party, including,
without limitation, that certain Standby Letter of Credit
Agreement, dated as of the date hereof (the “ L/C
Agreement ”) and that certain Amended and Restated Credit
Agreement, dated as of November 28, 2007 (the “Loan
Agreement” ) (together with this Agreement, the L/C
Agreement, the Amended and Restated Revolving Line of Credit Note,
in the maximum aggregate principal amount of U.S. $25,000,000.00,
executed by the Company in favor of Secured Party, and any and all
documents or agreements executed by Debtor in connection with any
of foregoing, as any of them may be amended, modified or extended
from time to time, collectively, the “ Loan
Documents”) .
C. In order to induce Secured Party
to provide and continue to provide financial accommodations to the
Company under the L/C Agreement and the Loan Agreement and to enter
into the L/C Agreement and other Loan Documents to which it is a
party, the Debtor wishes and has agreed (i) to amend and
restate the Existing Agreement and (ii) to secure its
obligations to Secured Party under Loan Documents by granting to
Secured Party a first priority security interest in the Collateral
(as defined below).
D. All capitalized terms used but
not otherwise defined herein shall have the meanings assigned to
them in the Loan Agreement.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and conditions contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby specifically acknowledged,
Secured Party and Debtor agree as follows:
1. G RANT OF S
ECURITY I NTEREST .
To secure the prompt and complete payment, observance and
performance of each covenant, condition or obligation of whatsoever
nature to be performed or observed by the Company under the Loan
Documents, including repayment of all future loans extended by and
reimbursement obligations owing to Secured Party (the “
Secured Obligations ”), the Company hereby grants
Secured Party a first priority security interest (except for
Permitted Liens that are senior to Bank’s security interest)
in and to all assets of the Company whether now existing or
hereafter arising or acquired, including without limitation the
following (collectively, the “ Collateral
”):
(a) all accounts, deposit accounts,
contract rights, chattel paper, (whether electronic or tangible)
instruments, promissory notes, documents, general intangibles,
payment intangibles, software, letter of credit rights, health-care
insurance receivables and other rights to payment of every kind now
existing or at any time hereafter arising;
(b) all inventory, goods held for
sale or lease or to be furnished under contracts for service, or
goods so leased or furnished, raw materials, component parts, work
in process and other materials used or consumed in Debtor’s
business, now or at any time hereafter owned or acquired by Debtor,
wherever located, and all products thereof, whether in the
possession of Debtor, any warehousemen, any bailee or any other
person, or in process of delivery, and whether located at
Debtor’s places of business or elsewhere;
(c) all warehouse receipts, bills of
sale, bills of lading and other documents of every kind (whether or
not negotiable) in which Debtor now has or at any time hereafter
acquires any interest, and all additions and accessions thereto,
whether in the possession or custody of Debtor, any bailee or any
other person for any purpose;
(d) all money and property
heretofore, now or hereafter delivered to or deposited with Secured
Party or otherwise coming into the possession, custody or control
of Secured Party (or any agent or bailee of Secured Party) in any
manner or for any purpose whatsoever during the existence of this
Agreement and whether held in a general or special account or
deposit for safekeeping or otherwise;
(e) all right, title and interest of
Debtor under licenses, guaranties, warranties, management
agreements, marketing or sales agreements, escrow contracts,
indemnity agreements, insurance policies, service or maintenance
agreements, supporting obligations and other similar contracts of
every kind in which Debtor now has or at any time hereafter shall
have an interest;
(f) all goods, tools, machinery,
furnishings, furniture and other equipment and fixtures of every
kind now existing or hereafter acquired, and all improvements,
replacements, accessions and additions thereto and embedded
software included therein, whether located on any property owned or
leased by Debtor or elsewhere, including without limitation, any of
the foregoing now or at any time hereafter located at or installed
on the land or in the improvements at any of the real property
owned or leased by Debtor, and all such goods after they have been
severed and removed from any of said real property;
(g) all motor vehicles, trailers,
mobile homes, manufactured homes, boats, other rolling stock and
related equipment of every kind now existing or hereafter acquired
and all additions and accessories thereto, whether located on any
property owned or leased by Debtor or elsewhere;
(h) all of the following
(collectively, “ Intellectual Property
Collateral”):
(i) all patents and patent
applications and all patent rights with respect thereto throughout
the world, including without limitation all license royalties,
foreign filing rights, and rights to extend such patents and patent
rights, and all rights in all patentable inventions, and to file
applications for patent under federal patent law or under the laws
or regulations of any foreign country (collectively, the “
Patents ”);
(ii) all copyrights (whether or not
registered with the United States Copyright Office), and all
applications for copyright registration (including without
limitation, applications for copyright registrations of derivative
works and compilations), all license royalties, foreign filing
rights, and extension rights (collectively, the “
Copyrights ”);
(iii) all trademarks and rights and
interests which are capable of being protected as trademarks
(including without limitation trademarks, service marks, designs,
logos, indicia, tradenames, corporate names, company names,
business names, fictitious business names, trade styles, and other
source or business identifiers, and the goodwill related thereto
and represented thereby, and applications pertaining thereto, and
all rights to register trademark claims under any state or federal
trademark law or regulation of any foreign country, and to apply
for, renew, and extend trademark registrations and trademark rights
(collectively, “ Trademarks ” );
(iv) all computer programs,
software, source codes, object codes, data bases, processes and
trade secrets and all other intellectual property in which Debtor
now has or hereafter creates or acquires any interest;
and
(v) all applications for any of the
foregoing and all licenses with respect to any of the
foregoing;
(i) all commercial tort claims in
existence on the date of this Agreement or at any time hereafter
arising and identified by the Debtor to Secured Party;
together with whatever is receivable
or received when any of the foregoing or the proceeds thereof are
sold, leased, collected, exchanged or otherwise disposed of,
whether such disposition is voluntary or involuntary, including
without limitation, all rights to payment, including returned
premiums, with respect to any insurance relating to any of the
foregoing, any infringement claims or causes of action and all
rights to payment with respect to any claim or cause of action
affecting or relating to any of the foregoing.
Notwithstanding the foregoing, the
Collateral shall not include: (a) interests as a lessee under
real property and personal property leases, (b) more than 65%
of the voting securities of any Foreign Subsidiary of Debtor; or
(c) equipment and related software encumbered by a Permitted
Lien covered by paragraph (d) of the definition of Permitted
Liens, and any rights of Debtor as licensee, to the extent the
granting of a security interest in such equipment or license rights
(A) is prohibited by the terms of or would constitute a
default under any agreement or document governing such equipment or
license right (but only to the extent such prohibition is
enforceable under applicable law), or (B) is contrary to
applicable law; provided that, upon the cessation of any
such restriction or prohibition, such equipment and/or license
rights shall automatically become part of the Collateral; and
provided further that the provisions of this Section 1
shall in no case exclude from the definition of Collateral any
accounts receivables, other rights to payment, general intangibles
or proceeds of the disposition of any property. Except as disclosed
to Secured Party in writing prior to the date hereof, Debtor
represents and warrants to Secured Party that it is not presently a
party to, nor is it bound by, any material license, contract or
agreement which prohibits Debtor from granting a security interest
therein (to the extent such prohibition is enforceable under
applicable law). Debtor shall not, hereafter, without Secured
Party’s prior written consent, enter into any material
license which prohibits Debtor from granting a security interest
therein to Secured Party (to the extent such prohibition is
enforceable under applicable law), unless Debtor uses commercially
reasonable efforts to have such prohibition removed, and in the
event Debtor is not successful in having such prohibition removed,
Debtor shall give prompt written notice thereof to Secured
Party.
Debtor agrees that this Agreement
shall create a continuing security interest in the Collateral which
shall remain in effect until the payment and performance in full of
all of the Secured Obligations.
2. D EBTOR ’ S R
EPRESENTATIONS , W ARRANTIES AND C OVENANTS .
Debtor represents, warrants and covenants as follows:
(a) Permitted Liens . Debtor
has rights in and good title to all of the Collateral. Other than
any of the Intellectual Property Collateral for which Debtor is a
licensee, Debtor is and will continue to be the sole and exclusive
owner of the Collateral, free and clear of all security interests,
liens or encumbrances or other rights or claims of third parties
(“ Liens ”), other than Permitted Liens. For any
of the Intellectual Property Collateral for which Debtor is a
licensee, each such license or licensing agreement is in full force
and effect and Debtor is not in default of any of its material
obligations thereunder.
(b) Organization . Debtor is
a registered