COMMERCIAL SECURITY AGREEMENT
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Principal
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Loan Date
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Maturity
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Loan No.
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Call / Coll
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Account
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Officer
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Initials
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$1,250,000.00
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03-10-2000
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01-16-2001
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61
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500359790000
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G49
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References in the shaded area are for Lender’s use only and
do not limit the applicability of this document to any particular
loan or item.
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SYNERGETICS,
INC., a Missouri Corporation
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Lender:
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Union
Planters Bank NA
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(TIN:
43-1585312)
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Clayton
Banking Center
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88
Hubble
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8182
Maryland Avenue Suite 200
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St. Charles,
MO 63304
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St. Louis,
MO 63105
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THIS COMMERCIAL SECURITY AGREEMENT is entered into between
SYNERGETICS, INC., a Missouri Corporation (referred to below as
“Grantor”); and Union Planters Bank N.A. (referred to
below as “Lender”). For valuable consideration, Grantor
grants to Lender a security interest in the Collateral to secure
the Indebtedness and agrees that Lender shall have the rights
stated in this Agreement with respect to the Collateral, in
addition to all other rights which Lender may have by
law.
DEFINITIONS.
The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall
have the meanings attributed to such terms in the Uniform
Commercial Code. All references to dollar amounts shall mean
amounts in lawful money of the United States of America.
Agreement.
The word “Agreement” means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or
modified from time to time, together with all exhibits and
schedules attached to this Commercial Security Agreement from time
to time.
Collateral.
The word “Collateral” means the following described
property of Grantor, whether now owned or hereafter acquired,
whether now existing or hereafter arising, and wherever
located:
All Inventory, accounts and equipment, together with the following
specifically described property: See Exhibit A and B attached
hereto and made a part hereof
In addition, the word “Collateral” also includes all
the following, whether now owned or hereafter acquired, whether now
existing or hereafter arising, and wherever located:
(A) All attachments, accessions, accessories, tools, parts,
supplies, increases, and additions to and all replacements of and
substitutions for any property described above.
(B) All products and produce of any of the property described
in this Collateral section.
(C) All accounts, general intangibles, instruments, rents,
monies, payments, and all other rights, arising out of a sale,
lease, or other disposition of any of the property described in
this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property
described in this Collateral section.
(E) All records and data relating to any of the property
described in this Collateral section, whether in the form of a
writing, photograph, microfilm, microfiche, or electronic media,
together with all of Grantor’s right, title, and interest in
and to all computer software required to utilize, create, maintain,
and process any such records or data on electronic
media.
Event of Default.
The words “Event of Default” mean and include without
limitation any of the Events of Default set forth below in the
section titled “Events of Default”.
Grantor.
The word “Grantor” means SYNERGETICS, INC., a Missouri
Corporation, its successors and assigns.
Guarantor.
The word “Guarantor” means and includes without
limitation each and all of the guarantors, sureties, and
accommodation parties in connection with the
Indebtedness.
Indebtedness.
The word “Indebtedness” means the indebtedness
evidenced by the Note, including all principal and interest
together with all other indebtedness and costs and expenses for
which Grantor is responsible under this Agreement or under any of
the Related Documents. In addition, the word
“Indebtedness” includes all other obligations, debts
and liabilities, plus interest thereon, of Grantor, or any one or
more of them, to Lender, as well as all claims by Lender against
Grantor, or any one or more of them, whether existing now or later;
whether they are voluntary or involuntary, due or not due, direct
or indirect, absolute or contingent, liquidated or unliquidated;
whether Grantor may be liable individually or jointly with others;
whether Grantor may be obligated as guarantor, surety,
accommodations party or otherwise; whether recovery upon such
Indebtedness may be or hereafter may become barred by any statute
of limitations; and whether such indebtedness may be or hereafter
may become otherwise unenforceable.
Lender.
The word “Lender” means Union Planters Bank N.A., its
successors and assigns.
Note.
The word “Note” means the note or credit agreement
dated March 10, 2000, in the principal amount of $1,250,000.00
from SYNERGETICS, INC., a Missouri Corporation to Lender, together
with all renewals of, extensions of, modifications of, refinancings
of, consolidations of, and substitutions for the note or credit
agreement.
Related Documents.
The words “Related Documents” mean and include without
limitation all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments,
agreements and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
RIGHT OF SETOFF.
Grantor hereby grants Lender a contractual security interest in and
hereby assigns, conveys, delivers, pledges, and transfers all of
Grantor’s right, title and interest in and to Grantor’s
accounts with Lender (whether checking, savings, or some other
account), including all accounts held jointly with someone else and
all accounts Grantor may open in the future, excluding, however,
all IRA and Keogh accounts, and all trust accounts for which the
grant of a security interest would be prohibited by law, Grantor
authorizes Lender, to the extent permitted by applicable law, to
charge or setoff all Indebtedness against any and all such
accounts.
OBLIGATIONS OF GRANTOR.
Grantor warrants and covenants to Lender as follows:
Perfection of Security Interest.
Grantor agrees to execute financing statements and to take whatever
other actions are requested by Lender to perfect and continue
Lender’s security interest in the Collateral. Upon request of
Lender, Grantor will deliver to Lender any and all of the documents
evidencing or constituting the Collateral, and Grantor will note
Lender’s interest upon any and all chattel paper if not
delivered to Lender for possession by Lender.
Grantor hereby appoints Lender as its irrevocable attorney-in-fact
for the purpose of executing any documents necessary to perfect or
to continue the security interest granted in this Agreement. Lender
may at any time, without further authorization from Grantor, file a
carbon, photographic or other reproduction of any financing
statement or of this Agreement for use as a financing statement.
Grantor will reimburse Lender for all its expenses for the
perfection and the continuation of the perfection of Lender’s
security interest of the collateral. Grantor promptly will notify
Lender before any change in Grantor’s name including any
change to the assumed business names of Grantor. This is a
continuing Security Agreement and will continue in effect even
though all or any part of the indebtedness is paid in full and even
though for a period of time Grantor may not be indebted to
Lender.
No Violation.
The execution and delivery of this Agreement will not violate any
law or agreement governing Grantor or to which Grantor is a party,
and its certificate or articles of incorporation and bylaws do not
prohibit any term or condition of this Agreement.
Enforceability of Collateral.
To the extent the Collateral consists of accounts, chattel paper,
or general intangibles, the Collateral is enforceable in accordance
with its terms, is genuine, and complies with all applicable laws
and concerning form, content and manner of preparation and
execution, and all persons appearing to be obligated on the
Collateral have
authority and capacity to contract and are in fact obligated as
they appear to be on the Collateral. At the time any account
becomes subject to a security interest in favor of Lender, the
account shall be a good and valid account representing an
undisputed, bona fide indebtedness incurred by the account debtor,
for merchandise held subject to delivery instructions or
theretofore shipped or delivered pursuant to a contract of sale, or
a service theretofore performed by Grantor with or for the account
debtor, there shall be no setoffs or counterclaims against any such
account; and no Agreement under which any deductions or discounts
may be claimed shall have been made with the account debtor except
those disclosed to Lender in writing.
Location of the Collateral.
Grantor, upon request of Lender, will deliver to Lender in form
satisfactory to Lender a schedule of real properties and Collateral
locations relating to Grantor’s operations, including without
limitation the following: (a) all real property owned or being
purchased by Grantor; (b) all real property being rented or
leased by Grantor; (c) all storage facilities owned, rented,
leased or being used by Grantor; and (d) all other properties
where Collateral is or may be located. Except in the ordinary
course of business, Grantor shall not remove the Collateral from
its existing locations without the prior written consent of
Lender.
Removal of the Collateral.
Grantor shall keep the Collateral (or to the extent the Collateral
consists of intangible property such as accounts, the records
concerning the Collateral) at Grantor’s address shown above,
or at such other locations as are acceptable to Lender. Except in
the ordinary course of its business, including the sale of
inventory, Grantor shall not remove the Collateral from its
existing location without the prior written consent of Lender. To
the extent that the Collateral consists of vehicles, or other
titled property, Grantor shall not take or permit any action which
would require application for certificates of title for the
vehicles outside the State of Missouri, without the prior written
consent of Lender.
Transactions Involving Collateral.
Except for inventory sold or accounts collected in the ordinary
course of Grantor’s business, Grantor shall not sell, offer
to sell, or otherwise transfer or dispose of the Collateral. While
Grantor is not in default under this Agreement, Grantor may sell
inventory, but only in the ordinary course of its business and only
to buyers in the ordinary course of business. A sale in the
ordinary course of Grantor’s business does not include a
transfer in partial or total satisfaction of a debt or any bulk
sale. Grantor shall not pledge, mortgage, encumber or otherwise
permit the Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided
for in this Agreement, without the prior written consent of Lender.
This includes security interests even if junior in right to the
security interests granted under this Agreement. Unless waived by
Lender, all proceeds from any disposition of the Collateral (for
whatever reason) shall be held in trust for Lender and shall not be
commingled with any other funds; provided however, this requirement
shall not constitute consent by Lender to any sale or other
disposition. Upon receipt, Grantor shall immediately deliver any
such proceeds to Lender.
Title.
Grantor represents and warrants to Lender that it holds good and
marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing
statement covering any of the Collateral is on file in any public
office other than those which reflect the security interest created
by this Agreement or to which Lender has specifically consented.
Grantor shall defend Lender’s rights in the Collateral
against the claims and demands of all other persons.
Collateral Schedules and Locations.
As often as Lender shall require, and insofar as the Collateral
consists of accounts, Grantor shall deliver to Lender schedules of
such Collateral, including such information as Lender may require,
including without limitations names and addresses of account
debtors and agings of accounts. Insofar as the Collateral consists
of inventory and equipment, Grantor shall deliver to Lender, as
often as Lender shall require, such lists, descriptions, and
designations of such Collateral as Lender may require to identify
the nature, extent, and location of such Collateral. Such
information shall be submitted for Grantor and each of its
subsidiaries or related companies.
Maintenance and Inspection of Collateral.
Grantor shall maintain all tangible Collateral in good condition
and repair. Grantor will not commit or permit damage to or
destruction of the Collateral or any part of the Collateral. Lender
and its designated representatives and agents shall have the right
at all reasonable times to examine, inspect and audit the
Collateral wherever located. Grantor shall immediately notify
Lender of all cases involving the return, rejection, repossession,
loss or damage of or to any Collateral; of any request for credit
or adjustment or of any other dispute arising with respect to the
Collateral; and generally of all happenings and events affecting
the Collateral or the value or the amount of the
Collateral.
Taxes, Assessments and Liens.
Grantor will pay when due all taxes, assessments and liens upon the
Collateral, its use or operation, upon this Agreement, upon any
promissory note or notes evidencing the Indebtedness, or upon any
of the other Related Documents. Grantor may withhold any such
payment or may elect to contest any lien if Grantor is in good
faith conducting an appropriate proceeding to contest the
obligation to pay and so long as Lender’s interest in the
Collateral is not jeopardized in Lender’s sole opinion. If
the Collateral is subjected to a lien which is not discharged
within fifteen (15) days, Grantor shall deposit with Lender
cash, a sufficient corporate surety bond or other security
satisfactory to Lender in an amount adequate to provide for the
discharge of the lien plus any interest, costs, attorneys’
fees or other
charges that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Lender
and shall satisfy any final adverse judgment before enforcement
against the Collateral. Grantor shall name Lender as an additional
obligee under any surety bond furnished in the contest
proceedings.
Compliance with Governmental Requirements.
Grantor shall comply promptly with all laws, ordinances, rules and
regulations of all governmental authorities, now or hereafter in
effect, applicable to the ownership, production, disposition, or
use of the Collateral. Grantor may contest in good faith any such
law, ordinance or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as
Lender’s interest in the Collateral, in Lender’s
opinion, is not jeopardized.
Hazardous Substances.
Grantor represents and warrants that the Collateral never has been,
and never will be so long as this Agreement remains a lien on the
Collateral, used for the generation, manufacture, storage,
transportation, treatment, disposal, release or threatened release
of any hazardous waste or substance, as those terms are defined in
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq. (“CERCLA”), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499
(“SARA”), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1601, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or other
applicable state or Federal laws, rules, or regulations adopted
pursuant to any of the foregoing. The terms “hazardous
waste” and “hazardous substance” shall also
include, without limitation, petroleum and petroleum by-products or
any fraction thereof and asbestos. The representations and
warranties contained herein are based on Grantor’s due
diligence in investigating the Collateral for hazardous wastes and
substances. Grantor hereby (a) releases and waives any future
claims against Lender for indemnity or contribution in the event
Grantor becomes liable for cleanup or other costs under such laws,
and (b) agrees to indemnify and hold harmless Lender against
any and all claims and losses resulting from a breach of this
provision of this Agreement. This obligation to indemnify shall
survive the payment of the Indebtedness and the satisfaction of
this Agreement.
Maintenance of Casualty Insurance.
Grantor shall procure and maintain all risks insurance, including
without limitation fire, theft and liability coverage together with
such other insurance as Lender may require with respect to the
Collateral, in form, amounts, coverages and basis reasonably
acceptable to Lender and issued by a company or companies
reasonably acceptable to Lender. Grantor, upon request of Lender,
will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished
without at least thirty (30) days’ prior written notice to
Lender and not including any disclaimer of the insurer’s
liability for failure to give such a notice. Each insurance policy
also shall include an endorsement providing that
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