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EXHIBIT 10.6
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of May 18, 1999, among MINIMED INC., a
Delaware corporation ("MiniMed"), and each of the Subsidiaries of MiniMed listed
on Schedule I attached hereto (the "Grantor Subsidiaries"; the Grantor
Subsidiaries, together with the Owner Trustee and MiniMed shall be collectively
known as the "Grantors" and individually as a "Grantor"), and ING (U.S.) CAPITAL
LLC (the "Collateral Agent"), as collateral agent for the Secured Parties
referenced below.
W I T N E S S E T H:
RECITALS
A. The Secured Parties proposed to make certain financial accommodations
to MiniMed and certain of its Subsidiaries pursuant to the Related Documents (as
such term in defined in the Participation Agreement; and
B. In connection with the making of such financial accommodations to
MiniMed and certain of its Subsidiaries pursuant to the Related Documents and as
condition precedent thereto, the Collateral Agent and the Secured Parties are
requiring that the Grantors execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing, each Grantor
hereby agrees with the Collateral Agent, for the benefit of the Secured Parties,
as follows:
SECTION 1. Definitions. Terms defined in the Participation
Agreement and not otherwise defined herein, when used in this Agreement
including its preamble and recitals, shall have the respective meanings provided
for in the Participation Agreement. The following additional terms (whether or
not underscored), when used in this Agreement, shall have the following
meanings:
"Account Debtors" means any Person who is obligated under an
Account.
"Accounts" means all "accounts" (as defined in the UCC), now or
hereafter owned or acquired by a Person or in which a Person now or hereafter
has or acquires any rights, and, in any event, shall mean and include, without
limitation, (a) all accounts receivable, contract rights, book debts, notes,
drafts and other obligations or indebtedness owing to such Person arising from
the sale or lease of goods or other property by it or the performance of
services by it (including, without limitation, any such obligation which might
be characterized as an account, contract right or general intangible under the
Uniform Commercial Code in effect in New York), (b) all of such Person's rights
in, to and under all purchase and sales orders for goods, services or other
property,
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and all of such Person's rights to any goods, services or other property
represented by any of the foregoing (including returned or repossessed goods and
unpaid sellers' rights of rescission, replevin, reclamation and rights to
stoppage in transit), (c) all monies due to or to become due to such Person
under all contracts for the sale, lease or exchange of goods or other property
or the performance of services by it (whether or not yet earned by performance
on the part of such Person), and (d) all collateral security and guarantees of
any kind given by such Person with respect to any of the foregoing, in each case
whether now in existence or hereafter arising or acquired.
"Chattel Paper" means any "chattel paper" (as defined in the
UCC) now or hereafter owned or acquired by a Person or in which a Person now or
hereafter has or acquires any rights.
"Collateral" means, collectively:
i. Accounts;
ii. Inventory;
iii. Chattel Paper;
iv. Documents;
v. Equipment;
vi. Instruments;
vii. General Intangibles;
viii. All other goods and personal property, whether
tangible or intangible;
ix. All books and records pertaining to any of the
Collateral (including, without limitation, customer lists, credit files,
computer programs, printouts and other computer materials and records);
x. The Master Lease, the Construction Agency Agreement
and the Lessee's Deed of Trust including, without limitation, (i) all rights of
the Lessee under Section 13 of the Master Lease to purchase the Property and
Equipment, and (ii) all rights of the Lessee under Section 19 of the Master
Lease to receive the excess proceeds or payments upon an Event of Default under
the Master Lease and sale by the Lessor of the Lessee's interest in the Property
and Equipment.
xi. All products and Proceeds of all or any of the
Collateral described
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in clauses (i) through (x) hereof.
"Documents" means all "documents" (as defined in the UCC) or
other receipts covering, evidencing or representing goods, now or hereafter
owned or acquired by a Person or in which a Person now or hereafter has or
acquires rights.
"Equipment" means all "equipment" (as defined in the UCC), now
or hereafter owned or acquired by a Person or in which a Person now or hereafter
has or acquires rights, and, in any event, shall mean and include, without
limitation, all telephones, cables, telephone components (whether assembled or
disassembled), handsets, cords, microprocessors, machinery, equipment,
furnishings, fixtures, vehicles and computers and other electronic data
processing and other office equipment and any and all additions, substitutions
and replacements of any of the foregoing, together with all attachments,
components, parts, equipment and accessories installed thereon or affixed
thereto.
"General Intangibles" means all "general intangibles" (as
defined in the UCC), now or hereafter owned or acquired by a Person or in which
a Person now or hereafter has or acquires any rights, and, in any event, shall
mean and include, without limitation, all obligations or indebtedness owing to a
Person (other than Accounts) from whatever source arising, and all rights, title
and interest which a Person may now or hereafter have in or under all contracts
(in addition to contracts described in the definition of Accounts), causes of
action, franchises, tax refund claims, customer lists, Intellectual Property,
license royalties, goodwill, trade secrets, proprietary or confidential
information, data bases, business records, data, skill, expertise, experience,
processes, models, drawings, materials and records, permits and licenses,
warranties, manuals, software and all other intangible property of every kind
and nature.
"Instruments" means all "instruments" or "letters of credit"
(each as defined in the UCC), including, without limitation, instruments, and
letters of credit evidencing, representing, arising from or existing in respect
of, relating to, securing or otherwise supporting the payment of, any of the
Accounts, including (but not limited to) promissory notes, drafts, bills of
exchange and trade acceptances, now or hereafter owned or acquired by a Person
or in which a Person now or hereafter has or acquires any rights.
"Intellectual Property" means, collectively, (a) all systems
software and applications software, including, but not limited to, source code,
object code, screen displays and formats, program structure, sequence and
organization, and audiovisual elements, all formulas, processes, ideas and
know-how embodied in any of the foregoing, and all documentation and program
materials, user manuals, operations manuals, flowcharts, programer's notes,
outlines and specifications created in connection with any of the foregoing,
whether or not patentable or copyrightable, (b) concepts, discoveries,
improvements and ideas, (c) Patents, patent rights and patent applications,
copyrights and copyright applications, Trademarks, and (d) Patent Licenses,
Trademark Licenses, copyright licenses and other licenses to use any of the
items described in the foregoing clauses (a), (b) and (c).
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"Inventory" means all "inventory" (as defined in the UCC), now
or hereafter owned or acquired by a Person or in which a Person now or hereafter
has or acquires any rights, wherever located, and, in any event, shall mean and
include, without limitation, all raw materials, inventory and other materials
and supplies, work-in-process, finished goods, and any products made or
processed therefrom and all substances, if any, commingled therewith or added
thereto.
"Patent License" means any written agreement now or hereafter in
existence granting to the Grantor any right to practice any invention on which a
Patent is in existence.
"Patents" means all of the following: (i) all letters patent of
the United States or any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or any
other country, including, without limitation registrations, recordings and
applications in the office or agency of the United States, any State thereof or
any other country or any political subdivision thereof listed on Schedule II
hereto, and (ii) all reissues, continuations, continuations-in-part or
extensions thereof.
"Perfection Certificates" means collectively, the certificates
dated as of even date herewith, setting forth the corporate names, chief
executive office or principal places of business in each State and other current
locations of each of the Grantors and such other information as the Collateral
Agent deems reasonably pertinent to the perfection of security interests,
completed and supplemented with the schedules and attachments contemplated
thereby to the satisfaction of the Collateral Agent, and duly executed by an
authorized officer of each such Grantor.
"Permitted Liens" means the Security Interests and the Liens on
the Collateral permitted to be created, to be assumed or to exist pursuant to
Section 14(c) of the Parent Guaranty and Section 8.03 of the Revolving Credit
Agreement.
"Proceeds" means all proceeds of, and all other profits, rentals
or receipts, in whatever form, arising from the collection, sale, lease,
exchange, assignment, licensing or other disposition of, or realization upon,
Collateral, including, without limitation all claims of a Person against third
parties for loss of, damage to or destruction of, or for proceeds payable under,
or unearned premiums with respect to, policies of insurance in respect of, any
Collateral, and any condemnation or requisition payments with respect to any
Collateral and the following types of property acquired with cash proceeds:
Accounts, Inventory, General Intangibles, Documents, Instruments and Equipment.
"Secured Obligations" means:
(a) with respect to MiniMed, the full and punctual payment and
performance in full of all obligations and liabilities now or hereafter existing
of MiniMed and each of MiniMed's Subsidiaries under the Related Documents,
including, without limitation, all principal of, and interest (including,
without limitation, any interest which accrues after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of MiniMed or any of its Subsidiaries) on, any Revolving Credit
Note issued pursuant to the
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Revolving Credit Agreement, and all other amounts due from and obligations to be
performed by MiniMed or any of its Subsidiaries under the Revolving Credit
Agreement, any Guaranty or any other Related Document;
(b) with respect to each Subsidiary of MiniMed other than
MiniMed Development Corp., the full and punctual payment and performance in full
of all obligations and liabilities now or hereafter existing of such Subsidiary
under the Subsidiary Guaranty and each other Related Document to which such
Subsidiary is a party; and
(c) with respect to MiniMed Development Corp., the full and
punctual payment and performance in full of all obligations and liabilities now
or hereafter existing of MiniMed Development Corp. under the Master Lease, the
Construction Agency Agreement, the Subsidiary Guaranty and each other Related
Document to which MiniMed Development Corp. is a party;
in each case whether primary or secondary, absolute or
contingent, liquidated or unliquidated, and whether for the payment of money or
the performance of other obligations (monetary or otherwise).
"Secured Parties" means collectively:
(a) the Owner Trustee, as Lessor under the Master Lease, as
beneficiary of the Parent Guaranty and the Subsidiary, and as a party to each of
the other Related Documents;
(b) the Agent and the Lenders from time to time party to the
Credit Agreement and each of the other Related Documents;
(c) the Certificateholders from time to time party to the Trust
Agreement and each of the other Related Documents;
(d) the Agent and the Revolving Credit Lenders from time to time
party to the Revolving Credit Agreement and each of the other Related Documents;
and
(e) the Collateral Agent under each of the Related Documents.
"Security Interests" means the security interests granted
pursuant to Section 2, as well as all other security interests created or
assigned as additional security for the Secured Obligations pursuant to the
provisions of this Agreement.
"Trademark License" means any written agreement now or hereafter
in existence granting to a Person any right to use any Trademark.
"Trademarks" means all of the following: (i) all trademarks,
trade names, corporate names, company names, business names, fictitious business
names, trade styles, service
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marks, logos, other source or business identifiers, prints and labels on which
any of the foregoing have appeared or appear, designs and general intangibles of
like nature, whether now existing or hereafter adopted or acquired, all
registrations and recordings thereof, (ii) all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or
any political subdivision thereof listed on Schedule III hereto, and (iii) all
reissues, extensions or renewals thereof.
"UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of New York; provided that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of the Security Interests in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than New York, "UCC" means
the Uniform Commercial Code as in effect in such other jurisdiction for purposes
of the provisions hereof relating to such perfection or effect of perfection or
non-perfection.
SECTION 2. Grant of Security Interests. Each Grantor hereby
grants, mortgages, assigns, pledges, transfers, hypothecates, sets over and
conveys to the Collateral Agent, for the benefit of the Secured Parties, a
continuing security interest in and to, and a lien upon, all Collateral now or
hereafter accrued or acquired by such Grantor or in which such Grantor now has
or hereafter has or acquires any rights, and wherever located, to secure the
full and punctual payment and performance of all Secured Obligations of such
Grantor. The Security Interests are granted as security only and shall not
subject the Collateral Agent or any Secured Party to, or transfer to the
Collateral Agent or any Secured Party, or in any way effect or modify any
obligation or liability of any Grantor with respect to any Collateral or any
transaction in connection therewith.
SECTION 3. Security for Obligations. With respect to each
Grantor, this Security Agreement secures the full and punctual payment and
performance in full of all Secured Obligations of such Grantor.
SECTION 4. Representations and Warranties. Each Grantor
represents and warrants as follows:
(a) Such Grantor has good and marketable title to all of its
Collateral, free and clear of any Liens other than the Permitted Liens. Except
as listed on Schedule IV attached hereto, none of such Collateral consists of
material contracts, agreements or other documents which by their terms prohibit
an assignment or pledge of such Collateral nor is any Collateral subject to any
agreement which prohibits assignment or pledge of such Collateral by such
Grantor.
(b) Such Grantor has not performed any act or acts that, to the
best knowledge of the Grantors, could prevent the Collateral Agent from
enforcing any of the terms of this Agreement. Other than financing statements or
other similar or equivalent documents or instruments with respect to Permitted
Liens, to such Grantor's knowledge no financing statement,
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mortgage, security agreement or similar or equivalent document or instrument
covering all or any part of the Collateral is on file or of record in any
jurisdiction, and no Collateral is subject to any Lien other than Permitted
Liens. Except as disclosed on Schedule V, no material amount of Collateral is in
the possession of a Person (other than such Grantor or) asserting any claim
thereto or security interest therein, except that the Collateral Agent or its
designee may have possession of Collateral as contemplated hereby.
(c) All of the information set forth in the Perfection
Certificates is true and correct as of the date hereof.
(d) When the UCC financing statements in appropriate form are
filed in the offices specified in the Perfection Certificates, the Security
Interests shall constitute valid and perfected security interests in the
Collateral, prior to all other Liens and rights of others therein except for the
Permitted Liens, to the extent that a security interest therein may be perfected
by filing pursuant to the UCC.
(e) As of the date hereof, no Grantor has any rights in or to
any Patent, Patent License, Trademark or Trademark License except those
reflected in Schedules II and III hereto.
(f) The Inventory and Equipment are insured in accordance with
the requirements of the Related Documents.
SECTION 5. Further Assurances; Covenants.
(a) Each Grantor agrees that from time to time, at its own cost
and expense, such Grantor will promptly execute and deliver and will cause to be
executed and delivered all further instruments and documents (including, without
limitation, financing and continuation statements, any filings with the United
States Patent and Trademark Office) and will take all further action and will
cause all further action to be taken, that the Collateral Agent may reasonably
request in order to create, preserve, perfect and protect the security interest
in the Collateral or to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder or to preserve, perfect and protect each Grantor's
right, title and interest in and to the Collateral.
(b) Each Grantor hereby authorizes the Collateral Agent to file
one or more financing or continuation statements, and amendments thereto, and
take all such further action and execute all such further documents and
instruments as may be reasonably necessary or desirable in order to create,
preserve, perfect and protect the security interest in the Collateral without
the signature of such Grantor where permitted by law. Whenever applicable law
requires the signature of such Grantor on a document to be filed to preserve,
perfect or protect the security interest in the Collateral, such Grantor hereby
appoints the Collateral Agent as such Grantor's attorney-in-fact, with full
power of substitution, to sign such Grantor's name on any such document. Each
Grantor agrees that a carbon, photographic, photostatic or other reproduction of
this Agreement or of a financing statement may be used as a financing statement.
The
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Grantors shall, jointly and severally, pay the reasonable costs of, or
incidental to, any recording or filing of any financing statements, financing
statement amendments or continuation statements concerning the Collateral. In
addition, each Grantor will immediately deliver and pledge each Instrument to
the Collateral Agent, appropriately endorsed to the Collateral Agent, provided
that so long as no Event of Default shall have occurred and be continuing, such
Grantor may retain for collection in the ordinary course any Instruments (other
than checks and drafts constituting payments in respect of Accounts) received by
it in the ordinary course of business and the Collateral Agent shall, promptly
upon request of such Grantor, make appropriate arrangements for making any other
Instrument pledged by such Grantor available to it for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent deemed
appropriate to the Collateral Agent, against trust receipt or like document).
(c) MiniMed shall deliver to the Collateral Agent the duly
executed counterpart number 1 of the Master Lease and the Construction Agency
Agreement after the execution and delivery thereof, together with a duly
executed counterpart of the Parent Guaranty and Subsidiary Guaranty, which
counterparts at all times shall be retained in the custody and possession of the
Collateral Agent. In addition, MiniMed shall deliver to the Collateral Agent the
duly executed counterpart number 1 of each amendment, modification, supplement
or waiver made of or to the Master Lease or the Construction Agency Agreement
and a duly executed counterpart of each amendment, modification, supplement or
waiver made with respect to the Parent Guaranty and Subsidiary Guaranty,
immediately after the execution and delivery thereof.
(d) Each Grantor will at all times keep accurate and complete
books and records with respect to the Collateral and agrees that the Collateral
Agent or its representative shall have the right at any time and from time to
time to call at such Grantor's place of business during normal business hours to
inspect and examine the books and records of the Grantor relating to the
Collateral and to make extracts therefrom and copies thereof.
(e) No Grantor will change the location of its chief executive
office or principal place of business in any state unless it shall have given
the Collateral Agent thirty (30) days prior notice thereof, executed and
delivered to the Collateral Agent all financing statements and financing
statement amendments which the Collateral Agent may request in connection
therewith and delivered an opinion of counsel with respect thereto in accordance
with Section 5(j) below. No Grantor shall change the locations, or establish new
locations, where it keeps or holds any Collateral or any records relating
thereto from the applicable locations described in the applicable Perfection
Certificate unless such Grantor shall have given the Collateral Agent fifteen
(15) days prior notice of such change of location, executed and delivered to the
Collateral Agent all financing statements and financing statement amendments
which the Collateral Agent may reasonably request in connection therewith and
delivered an opinion of counsel with respect thereto in accordance with Section
5(j) below, and such Grantor shall have complied with any other requirement in
this Agreement or any other Related Document relating to the location of any
Collateral, provided, however, that each Grantor may keep Collateral at, or in
transit to, any location described in the applicable Perfection Certificate. No
Grantor shall in any event change the location, or establish new locations, of
any Collateral if such change would cause the Security
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Interests in such Collateral to lapse or cease to be a perfected first priority
Security Interest.
(f) No Grantor will change its name, identity or corporate
structure in any manner unless it shall have given the Collateral Agent thirty
(30) days prior notice thereof, executed and delivered to the Collateral Agent
all financing statements and financing statement amendments which the Collateral
Agent may reasonably request in connection therewith.
(g) If any Grantor's Collateral exceeding in value $500,000 in
the aggregate is at any time in the possession or control of any warehouseman,
bailee (other than a carrier transporting Inventory to a purchaser in the
ordinary course of business) or any of such Grantor's agents or processors, such
Grantor shall notify in writing such warehouseman, bailee, agent or processor of
the Security Interests created hereby, shall obtain such warehouseman's,
bailee's, agent's or processor's agreement in writing to hold all such
Collateral for the Collateral Agent's account subject to the Collateral Agent's
instructions, and shall cause such warehousemen, bailee, agent or processor to
issue and deliver to the Collateral Agent warehouse receipts, bills of lading or
any similar documents relating to such Collateral in the Collateral Agent's name
and in form and substance acceptable to the Collateral Agent.
(h) No Grantor will (A) sell, transfer, lease, exchange, assign
or otherwise dispose of, or grant any option, warrant or other right with
respect to, any Collateral except that, subject to the rights of the Collateral
Agent and the Secured Parties hereunder if an Event of Default shall have
occurred and be continuing, the Grantors may dispose of assets if such
disposition is not prohibited by Section 14(m) of the Parent Guaranty or Section
8.13 of the Revolving Credit Agreement, whereupon, in the case of such a
disposition, sale or exchange, the Security Interests created hereby in such
item (but not in any Proceeds arising from such disposition, sale or exchange)
shall cease immediately without any further action on the part of the Collateral
Agent; or (B) create, incur or suffer to exist any Lien with respect to any
Collateral, except for the Permitted Liens.
(i) Each Grantor will, promptly upon request, provide to the
Collateral Agent all information and evidence it may reasonably request
concerning the Collateral, to enable the Collateral Agent to enforce the
provisions of this Agreement.
(j) Prior to each date on which any Grantor proposes to take any
action contemplated by Section 5(e), upon the reasonable request of the Majority
Secured Parties such Grantor shall, at its cost and expense, cause to be
delivered to the Collateral Agent and the Secured Parties an opinion of counsel,
reasonably satisfactory to the Collateral Agent, to the effect that all
financing statements and amendments or supplements thereto, continuation
statements and other documents required to be recorded or filed in order to
perfect and protect the Security Interests and priority thereof against all
creditors of and purchasers from such Grantor have been filed in each filing
office necessary for such purposes and that all filing fees and taxes, if any,
payable in connection with such filings have been paid in full. Collateral Agent
and the Secured Parties shall only be entitled to the legal opinion referenced
in this paragraph 5(j) if they determine that any change in location discussed
in Section 5(e) will affect the security
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interest of the Secured Parties reflected in the applicable financing
statements.
(k) Accounts, Etc.
i. Each Grantor shall use all reasonable efforts
consistent with prudent business practice to cause to be collected from its
Account Debtors, as and when due, any and all amounts owing under or on account
of each Account (including, without limitation, Accounts which are delinquent,
such Accounts to be collected in accordance with lawful collection procedures)
and apply forthwith upon receipt thereof all such amounts as are so collected to
the outstanding balance of such Account. The reasonable costs and expenses
(including, without limitation, reasonable attorney's fees) of collection of
Accounts incurred by the Grantors or the Collateral Agent, shall be borne by the
Grantors, jointly and severally.
ii. Upon the occurrence and during the continuance of
any Event of Default, upon request of the Collateral Agent, each Grantor will
promptly notify (and each Grantor hereby authorizes the Collateral Agent so to
notify) each Account Debtor in respect of any Account or Instrument that such
Collateral has been assigned to the Collateral Agent hereunder, and that any
payments due or to become due in respect of such Collateral are to be made
directly to the Collateral Agent or its designee.
iii. Each Grantor will perform and comply in all
material respects with all of its obligations in respect of Accounts,
Instruments and General Intangibles.
(l) Inventory, Etc. Each Grantor shall notify the Collateral
Agent promptly of any additional location where Inventory is stored which is not
listed in the applicable Perfection Certificate.
(m) Equipment, Etc. Each Grantor shall, no more than one (1)
time per calendar year, (i) within ten (10) days after a request by the Majority
Secured Parties, in the case of Equipment now owned, and (ii) following a
request by the Majority Secured Parties pursuant to subclause (i) above, within
ten (10) days after acquiring any other Equipment, deliver to the Collateral
Agent, for the benefit of the Secured Parties, any and all certificates of
title, and applications therefor, if any, of such Equipment and shall cause the
Collateral Agent, for the benefit of the Secured Parties, to be named as
lienholder on any such certificate of title and applications. Each Grantor shall
not permit any such items to become a fixture to real estate or an accession to
other personal property.
(n) Patents, Trademarks, Etc. Each Grantor shall notify the
Collateral Agent promptly of its acquisition after the Effective Date of any
Patent, Patent License, Trademark or Trademark License. In the event that any
Patent, Patent License, Trademark or Trademark License is infringed,
misappropriated or diluted by a third party, each Grantor shall notify the
Collateral Agent promptly after they learn thereof and shall, if such Grantor
reasonably determines that inaction would materially affect the economic value
of such item(s), promptly sue for infringement, misappropriation or dilution and
to recover any and all damages for such
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infringement, misappropriation or dilution, or take such other actions as such
Grantor shall reasonably deem appropriate under the circumstances to protect
such Patent, Patent License, Trademark or Trademark License. In no event shall
any Grantor, either itself or through any agent, employee or licensee, file an
application for the registration of any Patent or Trademark with the United
States Patent and Trademark Office, unless, upon issuance such Grantor shall
deliver such documents and papers that the Collateral Agent may reasonably
request to evidence the Security Interests in such Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.
SECTION 6. Collateral Agent Appointed Attorney-in-Fact. Each
Grantor hereby irrevocably appoints the Collateral Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time after the occurrence
and during the continuation of an Event of Default, to take any action, to
execute any instruments and to exercise any rights, privileges, options,
elections or powers of such Grantor pertaining or relating to the Collateral
which the Collateral Agent may deem necessary or desirable to preserve and
enforce its security interest in the Collateral and otherwise to accomplish the
purposes of this Security Agreement. The Collateral Agent shall not have any
duty to take any such action, to execute any such instrument, to exercise any
such rights, privileges, options, including, without limitation, termination
options, elections or powers or to sell or otherwise to realize upon any of the
Collateral, as hereinafter authorized, and the Collateral Agent shall not be
responsible for any failure to do so or delay in so doing.
SECTION 7. Reporting and Recordkeeping. Each Grantor covenants
and agrees with the Collateral Agent and the Secured Parties that from and after
the date of this Agreement and until the payment and performance in full of all
Secured Obligations:
(a) Maintenance of Records Generally. Such Grantor will keep and
maintain at its own cost and expense records of the Collateral, in substantially
the form, scope and detail as Grantor currently keeps such records, including,
without limitation, a record of all payments received and all credits granted
with respect to the Collateral. For the Collateral Agent's and the Secured
Parties' further security, such Grantor agrees that the Collateral Agent and the
Secured Parties shall have a security interest in all of the Grantor's books and
records pertaining to the Collateral and, upon the occurrence and during the
continuation of any Potential Default or Event of Default, the Grantor shall
deliver and turn over full and complete copies of any such books and records to
the Collateral Agent or to its representatives at any time on demand of the
Collateral Agent. Prior to the occurrence of a Potential Default or an Event of
Default and upon reasonable notice from the Collateral Agent, such Grantor shall
permit any representative of the Collateral Agent, at reasonable times and
reasonable intervals upon one Business Day's notice, to inspect such books and
records and will provide photocopies thereof to the Collateral Agent.
(b) Further Identification of Collateral. Following the
occurrence and during the continuation of an Event of Default, such Grantor will
if so requested by the Collateral Agent furnish to the Collateral Agent, as
often as the Collateral Agent reasonably requests, statements and schedules
further identifying and describing the Collateral and such other reports in
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connection with the Collateral as the Collateral Agent may reasonably request,
all in reasonable detail.
(c) Notices. Each Grantor will advise the Collateral Agent
promptly, in reasonable detail, (i) of any material Lien or claim made or
asserted against any of the Collateral, (ii) of any material adverse change in
the composition of the Collateral, and (iii) of the occurrence of any other
event which would have a substantial likelihood of having a material adverse
effect on the aggregate value of the Collateral or on the validity, perfection
or priority of the Security Interests.
SECTION 8. Collateral Agent May Perform. If any Grantor fails to
perform any agreement contained herein, the Collateral Agent may (but shall not
be obligated to) itself perform, or cause performance of, such agreement. The
Grantors shall reimburse the Collateral Agent on demand for any reasonable
amounts paid or any reasonable expenses incurred by the Collateral Agent in good
faith in connection therewith.
SECTION 9. Collateral Agent's Duties. The powers conferred on
the Collateral Agent hereunder are solely to protect its interest in the
Collateral for the benefit of the Secured Parties and shall not impose any duty
upon it to exercise any such powers. Except as expressly provided herein, the
Collateral Agent shall have no duty to take any steps to preserve the security
interest granted hereby.
SECTION 10. Realization upon Collateral. (a) If an Event of
Default shall occur and be continuing, the Collateral Agent may, and at the
request of the Majority Secured Parties shall, (i) take any and all action
necessary or appropriate to collect any and all amounts payable under or with
respect to the Collateral, (ii) apply any and all amounts in the Collateral
Account to the Secured Obligations in accordance with Section 11 hereof, (iii)
take possession of the Collateral forthwith or at any time thereafter, in which
case the Grantor shall marshal and deliver the Collateral to the Collateral
Agent at such time and place as the Collateral Agent may reasonably specify, and
(iv) sell the whole or, from time to time, any part of the Collateral, by
private or public sale, in such order or otherwise in such manner as the
Majority Secured Parties may elect in their sole discretion. The Collateral
Agent shall have, with respect to the Collateral, in addition to any other
rights and remedies which may be available to it at law or in equity or pursuant
to this Security Agreement, any Related Document or any other contract or
agreement, all rights and remedies of a secured party under any applicable
version of the Uniform Commercial Code of the relevant jurisdictions relating to
the Collateral, and it is expressly agreed that if the Collateral Agent should
proceed to dispose of or utilize the Collateral, or any part thereof, in
accordance with the provisions of said versions of the Uniform Commercial Code,
ten days' notice by the Collateral Agent to each Grantor of the intended
disposition of such Grantor's collateral shall be deemed to be reasonable notice
under any such provision requiring such notice. Any sale of Collateral by the
Collateral Agent may be made on such terms as the Majority Secured Parties may
reasonably specify, without assuming any credit risk and without any obligation
to advertise or give notice of any kind other than that necessary under
applicable law. The Collateral Agent and the Secured Parties shall incur no
liability as a result of the sale of the Collateral, or any part
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thereof, at any private or public sale. Except as otherwise stated herein each
Grantor hereby waives, to the extent permitted by applicable law, any claims
against the Collateral Agent and the Secured Parties arising by reason of the
fact that the price at which 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 Secured Obligations, even if the
Collateral Agent accepts the first offer received and does not offer such
Collateral to more than one possible purchaser. In exercising its rights under
this Section 10, the Collateral Agent will act in a commercially reasonable
manner and comply with all applicable laws, including Section 9-207 of the
Uniform Commercial Code.
The Collateral Agent or any Secured Party may be the purchaser
of any or all of the Collateral so sold at any public sale (or, if the
Collateral is of a type customarily sold in a recognized market or is of a type
which is the subject of widely distributed standard price quotations or if
otherwise permitted under applicable law, at any private sale) and thereafter
hold the same, absolutely, free from any right or claim of whatsoever kind. The
Grantors will execute and deliver such documents and take such other action as
the Collateral Agent deems reasonably necessary or advisable in order that any
such sale may be made in compliance with law. Upon any such sale the Collateral
Agent shall have the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. Each purchaser at any such sale shall hold the
Collateral so sold to it absolutely, free from any claim or right of any kind,
including any equity or right of redemption of the Grantors. To the extent
permitted by law, each Grantor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law now
existing or hereafter adopted. The notice (if any) of such sale shall (1) in
case of a public sale, state the time and place fixed for such sale, and (2) in
the case of a private sale, state the day after which such sale may be
consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix in the notice of such sale. At any such sale the Collateral may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may
determine. The Collateral Agent shall not be obligated to make any such sale
pursuant to any such notice. The Collateral Agent 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 same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Collateral
Agent until the selling price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice. The Collateral
Agent, instead of exercising the power of sale herein conferred upon it, may
proceed by a suit or suits at law or in equity to foreclose the Security
Interests and sell the Collateral, or any portion thereof, under a judgment or
decree of a court or courts of competent jurisdiction. The Grantors shall remain
liable, jointly and severally, for any deficiency.
(b) Following the occurrence and during the continuation of an
Event of Default, for the purpose of enforcing any and all rights and remedies
under this Agreement, the Collateral Agent may (i) require the Grantors to, and
the Grantors agree that they will, at their
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expense and upon the request of the Collateral Agent, forthwith assemble all or
any part of the Collateral as directed by the Collateral Agent and make it
available at a place designated by the Collateral Agent which is, in the
Collateral Agent's reasonable opinion, reasonably convenient to the Collateral
Agent and the Grantors, whether at the premises of a Grantor or otherwise, (ii)
to the extent permitted by applicable law, enter, with or without process of law
and without breach of the peace, any premise where any of the Collateral is or
may be located and, without charge or liability to the Collateral Agent, seize
and remove such Collateral from such premises, (iii) have access to and use the
Grantors' books and records, computers and software relating to the Collateral,
and (iv) prior to the disposition of the Collateral, store or transfer such
Collateral without charge in or by means of any storage or transportation
facility owned or leased by the Grantors, process, repair or recondition such
Collateral or otherwise prepare it for disposition in any manner and to the
extent the Collateral Agent deems appropriate and, in connection with such
preparation and disposition, use without charge any trademark, trade name,
copyright, patent or technical process used by the Grantors (at the expense of
the Grantors).
(c) Without limiting the generality of the foregoing, if any
Event of Default has occurred and is continuing:
(i) the Collateral Agent may license, or sublicense,
consistent with such Grantor's rights therein, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any Patents or
Trademarks included in the Collateral throughout the world for such term or
terms, on such conditions and in such manner as the Collateral Agent shall in
its sole discretion determine;
(ii) the Collateral Agent may (without assuming any
obligations or liability thereunder), at any time and from time to time, enforce
(and shall have the exclusive right to enforce) against any licensee or
sublicensee all rights and remedies of the Grantors in, to and under any Patent
Licenses or Trademark Licenses and take or refrain from taking any action under
any thereof, and each Grantor hereby releases the Collateral Agent and each of
the Secured Parties from, and agrees to hold the Collateral Agent and each of
the Secured Parties free and harmless from and against any claims arising out
of, any lawful action so taken or lawfully omitted to be taken with respect
thereto except for the Collateral Agent's or such Secured Parties' bad faith,
negligence or wilful misconduct as determined by a final and nonappealable
decision of a court of competent jurisdiction; and
(iii) upon request by the Agent, the Grantors will
execute and deliver to the Collateral Agent powers of attorney, in form and
substance satisfactory to the Collateral Agent, for the implementation of any
lease, assignment, license, sublicense, grant of option, sale or other
disposition of a Patent or Trademark. In the event of any such disposition
pursuant to this Section 10, the Grantors shall to the extent possible, supply
their know-how and expertise relating to the manufacture and sale of the
products bearing Trademarks or the products or services made or rendered in
connection with Patents, and its customer lists and other records relating to
such Patents or Trademarks and to the distribution of said products, to the
Collateral Agent.
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SECTION 11. Application of Proceeds. The Collateral Agent shall
apply the proceeds of any realization upon or sale of the whole or any part of
the Collateral, after deducting all reasonable costs and expenses of collection,
retaking, handling, storage, preparation, sale and delivery (including, without
limitation, reasonable counsel's fees and expenses) incurred by it in connection
with such realization or sale to the payment of the Secured Obligations in
accordance with the Participation Agreement, and the Grantors shall remain in
all respects liable to the Collateral Agent and the Secured Parties for any
unrecovered balance owing to them.
SECTION 12. Waiver of Stays, etc. To the fullest extent that the
Grantors may lawfully so agree, each Grantor agrees that it will not at any time
plead, claim or take the benefit of any appraisement, valuation, stay,
extension, moratorium or redemption law now or hereafter in force to prevent or
delay the enforcement of this Security Agreement or the absolute sale of any
portion of or all of the Collateral or the possession thereof by any purchaser
at any sale under this Security Agreement, and each Grantor, for itself and all
who may claim under each Grantor, as far as each Grantor now or hereafter
lawfully may do so, hereby waives the benefit of all such laws.
SECTION 13. Continuing Security Interest. This Security
Agreement shall create a continuing security interest in the Collateral and
shall (a) remain in full force and effect until the payment and performance in
full of the Secured Obligations, (b) be binding upon each Grantor and its
successors and assigns, and (c) inure to the benefit of the Collateral Agent,
each of the Secured Parties and their respective successors, transferees and
assigns. At any time and from time to time prior to termination of the Security
Interests, the Collateral Agent may release any of the Collateral with the prior
written consent of the Majority Secured Parties; provided, however, that the
Security Interest of the Collateral Agent in any Collateral constituting an
asset of which the Grantors may dispose under the Related Documents shall
automatically terminate and be released upon such disposition by any such
Grantor without the necessity of any further action or consent by the Collateral
Agent or any Secured Party. Upon the payment and performance in full of the
Secured Obligations and termination of all Commitments of the Secured Parties to
extend credit or provide financing, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to the Grantors. Upon
any such termination, the Collateral Agent will deliver to MiniMed counterpart
No. 1 of the Master Lease and Construction Agency Agreement, the original
executed counterpart of the Parent Guaranty and Subsidiary Guaranty delivered to
it and any amendments or supplements thereto held by the Collateral Agent and
will, at the expense of the Grantors, execute and deliver to the Grantors such
other documents as the Grantor shall reasonably request to evidence such
termination and release of all security interests held for the benefit of the
Secured Parties.
SECTION 14. Obligations Under the Master Lease, the Construction
Agency Agreement and Subordinated Mortgage. Anything herein contained to the
contrary notwithstanding, (i) the Lessee and Construction Agent, as applicable,
shall remain liable under the Master Lease, the Construction Agency Agreement
and the Subordinated Mortgage to perform all of its obligations and agreements
thereunder, (ii) if an Event of Default shall occur and
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be continuing, the obligations of the Lessee, Construction Agent and Mortgagee,
as applicable, under the Master Lease, the Construction Agency Agreement and the
Subordinated Mortgage may be performed by the Collateral Agent or its nominee or
other assignee of the Collateral Agent without releasing the Lessee,
Construction Agent and Mortgagee, as applicable, therefrom, and (iii) neither
the Collateral Agent nor the Secured Parties shall have any obligation or
liability under the Master Lease, the Construction Agency Agreement or the
Subordinated Mortgage by reason of, or arising out of, this Security Agreement
or be obligated to perform any of the obligations or agreements of the Lessee
and Construction Agent, as applicable, thereunder or to make any payment or to
make any inquiry of the sufficiency of any payment received by the Lessee, the
Construction Agent, the Mortgagee or the Collateral Agent or to present or file
any claim or to take any other action to enforce any right, title or interest
assigned hereunder.
SECTION 15. Intentionally Omitted.
SECTION 16. No Action Contrary to Lessee's Rights under the
Master Lease or Lessee's Rights, as agent, under the Construction Agency
Agreement. So long as no Event of Default has occurred and is continuing and
subject respectively to the terms and conditions of the Master Lease and the
Construction Agency Agreement, the Collateral Agent shall not take or cause to
be taken any action contrary to the rights of the Lessee under the Master Lease
and the Construction Agency Agreement; provided, however, that nothing contained
herein shall limit any rights the Secured Parties and the Collateral Agent may
have against the Lessee pursuant to any of the other Related Documents to which
it is a party.
SECTION 17. GOVERNING LAW AND CONSENT TO JURISDICTION, WAIVER OF
JURY TRIAL, SERVICE OF PROCESS. (a) THIS AGREEMENT HAS BEEN EXECUTED AND
DELIVERED IN THE STATE OF NEW YORK. EACH GRANTOR AGREES THAT, TO THE MAXIMUM
EXTENT PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, THIS AGREEMENT, AND THE
RIGHTS AND DUTIES OF EACH GRANTOR HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
IN ALL RESPECTS, INCLUDING, WITHOUT LIMITATION, IN RESPECT OF ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. EACH GRANTOR HEREBY IRREVOCABLY SUBMITS,
FOR ITSELF AND ITS PROPERTIES, TO THE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE
OF NEW YORK IN THE COUNTY OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, AND TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH GRANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURT, THAT THE SUIT, ACTION OR
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PROCEEDING, IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURT. THIS SUBMISSION TO JURISDICTION
IS NONEXCLUSIVE AND DOES NOT PRECLUDE THE COLLATERAL AGENT OR ANY SECURED PARTY
FROM OBTAINING JURISDICTION OVER ANY GRANTOR IN ANY COURT OTHERWISE HAVING
JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GRANTOR AGREES NOT
TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH
COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON
TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. EACH GRANTOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR
NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW
YORK. EACH GRANTOR EXPRESSLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM RELATED TO THIS AGREEMENT. EACH GRANTOR ACKNOWLEDGES
THAT THE PROVISIONS OF THIS SECTION 17 HAVE BEEN BARGAINED FOR AND THAT THEY
HAVE BEEN REPRESENTED BY COUNSEL IN CONNECTION HEREWITH.
(b) Each Grantor hereby irrevocably designates, appoints and
empowers CT Corporation System, whose present address is 1633 Broadway, New
York, New York 10019, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as such
legal actions or proceedings may be brought in the courts of the State of New
York or of the United States of America sitting in New York, and such service of
process shall be deemed complete upon the date of delivery thereof to such agent
whether or not such agent gives notice thereof to such Grantor, or upon the
earliest of any other date permitted by applicable law. It is understood that a
copy of said process served on such agent will as soon as practicable be
forwarded to such Grantor, at its address set forth on the signature pages
attached hereto, but its failure to receive such copy shall not affect in any
way the service of said process on said agent as the agent of any such Grantor.
Each Grantor irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of the
copies thereof by certified mail, return receipt requested, postage prepaid, to
it at its address set forth in Section 19(c), such service to become effective
upon the earlier of (i) the date ten (10) calendar days after such mailing or
(ii) any earlier date permitted by applicable law. Each Grantor agrees that it
will at all times continuously maintain an agent to receive service of process
in the State of New York on behalf of itself and its properties and in the event
that, for any reason, the agent named above or its successor shall no longer
serve as its agent to receive service of process in the State of New York on its
behalf, it shall promptly appoint a successor so to serve and shall advise the
Lessor thereof (and shall furnish to the Lessor the consent of any successor
agent so to act). Nothing in this Section 17(b) shall affect the right of the
Collateral Agent to bring proceedings against any Grantor in the courts of any
other jurisdiction or to serve process in any other manner permitted by
applicable law.
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SECTION 18. Expenses. In the event that any Grantor fails to comply with
the provisions of any Related Documents, such that the value of any Collateral
or the validity, perfection, rank or value of the Security Interests are thereby
diminished or potentially diminished or put at risk, the Collateral Agent, if
requested by the Majority Secured Parties may, but shall not be required to,
effect such compliance on behalf of such Grantor, and the Grantors shall
reimburse the Collateral Agent, jointly and severally, for the reasonable costs
thereof on demand. All reasonable insurance expenses and all reasonable expenses
of protecting, storing, warehousing, appraising, insuring, handling, maintaining
and shipping the Collateral, any and all excise, stamp, intangibles, transfer,
property, sales, and use taxes imposed by any state, federal, or local authority
or any other governmental authority on any of the Collateral, or in respect of
periodic appraisals and inspections of the Collateral to the extent the same may
be requested by the Majority Secured Parties from time to time, or in respect of
the sale or other disposition thereof, shall be borne and paid by the Grantors;
and if the Grantors fail promptly to pay any portion thereof when due, the
Collateral Agent or such Secured Party may, at its option, but shall not be
required to, pay the same and charge the Grantors' accounts therefor, and the
Grantors agree to reimburse the Collateral Agent or such Secured Party therefor
on demand. All sums so paid or incurred by the Collateral Agent or such Secured
Party for any of the foregoing and any and all other sums for which the Grantors
may become liable hereunder and all reasonable costs and expenses (including
reasonable attorneys' fees, legal expenses and court costs) incurred by the
Collateral Agent or such Secured Party in enforcing or protecting the Security
Interests or any of their rights or remedies thereon shall be payable by the
Grantors on demand and shall bear interest (after as well as before judgment)
until paid at a rate equal to the Base Rate plus an additional 2.00% per annum,
and shall be additional Secured Obligations hereunder.
SECTION 19. Additional Grantors. In the event that any Subsidiary of
MiniMed is required, under the terms of the Parent Guaranty, the Revolving
Credit Agreement or any other Related Document or otherwise, to become a Grantor
hereunder, such Subsidiary shall so become a Grantor hereunder, and be bound by
all of the terms and conditions hereof, upon delivering to the Collateral Agent
an executed counterpart of a Supplement to Security Agreement in the form of
Exhibit A attached hereto.
SECTION 20. Miscellaneous.
(a) Assignment. No Grantor may assign its rights or obligations
under this Agreement except as provided in the Participation Agreement. The
Collateral Agent may assign its rights under this Agreement in accordance with
the provisions of the Participation Agreement, and no such assignment or
delegation shall diminish any Grantor's obligations hereunder.
(b) Amendments and Waivers. The provisions of this Agreement may
from time to time be amended, modified or waived solely in accordance with the
provisions of the Participation Agreement. No failure of delay on the part of
the Collateral Agent or any Secured Party in exercising any power or right under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
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exercise thereof or the exercise of any other power or right.
(c) Notices. All notices, requests, demands and other
communications to any party hereunder shall be in writing (including telex,
telecopier or similar writing) and shall be given to such party at its address
or telecopier number set forth below or such other address, telex or telecopier
number as such party may hereafter specify by notice to the other parties listed
below. Any notice, request, demand or other communication sent by telex or
telecopier shall be promptly confirmed with a copy of such notice sent by
courier or by first class mail.
If to the Collateral Agent:
ING (U.S.) Capital LLC
55 East 52nd Street, 33rd Floor
New York, New York 10055
Attention: Chief Credit Officer
Telecopier: (212) 750-8935
With copies of each such notice to be simultaneously given, delivered or
served to the following addresses:
ING (U.S.) Capital LLC
Atlanta Office
200 Galleria Parkway, Suite 950
Atlanta, Georgia 30339
Attention: Darren G. Wells
Telecopier: (770) 951-1005
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Hector E. Llorens
Telecopier: (404) 572-5100
If to the Grantor:
MiniMed Inc.
12744 San Fernando Road
Sylmar, California 91342
Attention: General Counsel
Telecopier: (818)367-1460
With a copy of each such notice to be simultaneously given, delivered or
served
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to the following addresses:
Brobeck Phleger & Harrison
550 West C Street, Suite 1300
San Diego, California 92101
Attention: Scott Biel
Telecopier: (619) 234-3848
Each such notice, request or other communication shall be effective when
actually received.
(d) Cumulative Rights; No Waiver. The rights, powers and
remedies of the Collateral Agent hereunder are cumulative and in addition to all
rights, powers and remedies provided under any and all agreements between the
Grantors and the Collateral Agent relating hereto, at law, in equity or
otherwise. Neither any delay nor any omission by the Collateral Agent to
exercise any right, power or remedy shall operate as a waiver thereof, nor shall
a single or partial exercise thereof preclude any other or further exercise
thereof or any exercise of any other right, power or remedy.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when executed and delivered, shall be deemed an original
and all of which counterparts, taken together, shall constitute one and the same
Agreement.
(f) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(g) Headings. The Article and Section headings in this Agreement
are for convenience of reference only and shall not affect the interpretation
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the date first above written.
ING (U.S.) CAPITAL LLC,
as Collateral Agent
By: /s/ DARREN J. WELLS
---------------------------------
Name: Darren J. Wells
Title: Managing Director
MINIMED INC.,
a Delaware corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
MINIMED DEVELOPMENT CORP.,
a Delaware corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
MINIMED DISTRIBUTION CORP.,
a Delaware corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
22
CLARK FINANCIAL SERVICES, INC.,
a Florida corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
CLARK WHOLESALE CO.,
a Florida corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
HOME MEDICAL SUPPLY, INC.,
a California corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
HOME MEDICAL SUPPLY, INC.,
a Georgia corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
23
HOME MEDICAL SUPPLY OF
MICHIGAN, INC., a Michigan
corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
PHARMAX, INC., a Florida corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
CLARK PHARMACY, INC.,
a Georgia corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
DIABETIX DEPOT, INC., a Florida
corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
HMS, INC., an Alabama corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
24
HOME MEDICAL SUPPLY, INC.,
a Florida corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
HOME MEDICAL SUPPLY, INC.,
a Tennessee corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
MEDICAL MANAGEMENT & MARKETING
OF SOUTH FLORIDA, INC., a Florida
corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President
SOUTH BROWARD MEDICAL ARTS
PHARMACY, INC., a Florida
corporation
By: /s/ TERRANCE H. GREGG
---------------------------------
Name: Terrance H. Gregg
Title: President