EXHIBIT 10.31
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AGREEMENT AS TO COLLATERAL
THIS AGREEMENT AS TO COLLATERAL (the "AGREEMENT"), dated as of May 22, 2002 (the
"EFFECTIVE DATE"), is made by and among AMSOUTH BANK, an Alabama corporation
("AMSOUTH"), having an office at 2330 University Boulevard, Tuscaloosa, Alabama
35401, RELIANT TECHNOLOGIES, INC., a Delaware corporation ("RELIANT") having an
office at 1185 Chess Drive, Foster City, California 94404, and SURGICAL LASER
TECHNOLOGIES, INC., a Delaware corporation ("SLT") having an office at 147
Keystone Drive, Montgomeryville Pennsylvania 18936-9638.
RECITALS
WHEREAS, Reliant is willing to sell and otherwise transfer to SLT certain
property and other rights in connection with a product line related to CO2
surgical lasers, where SLT will make certain serial payments to Reliant for such
property and other rights;
WHEREAS, Reliant further desires that SLT should grant Reliant a
first-priority security interest in such property related to the CO2 product
line to be acquired from Reliant, and the proceeds therefrom, all as fully
described in the Security Agreement set forth in Exhibit A attached hereto;
WHEREAS, AmSouth is SLT's incumbent secured lender, whose consent SLT seeks
in order to grant the first-priority security interest desired by Reliant in
accordance with the Security Agreement; and
WHEREAS, AmSouth and Reliant desire that SLT commit to proper segregation
of their respective collateral and of the records of such collateral.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:
1. AmSouth hereby consents to the grant by SLT to Reliant of the security
interest contemplated by the Security Agreement attached hereto as
Exhibit A.
2. SLT agrees to maintain the collateral in which Reliant has
first-priority security interest as set forth in the Security
Agreement attached hereto as Exhibit A and to maintain the collateral
in which AmSouth retains a first-priority in a manner that allows for
clear and ready segregation of such collateral.
3. This Agreement shall continue in force for so long as the Security
Agreement between Reliant and SLT remains in force.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as to
Collateral effective as of the day and year first above written.
RELIANT TECHNOLOGIES, INC. SURGICAL LASER TECHNOLOGIES, INC.
By: /s/ Maynard A. Howe By: /s/ Michael R. Stewart
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Name: Maynard A. Howe Name: Michael R. Stewart
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Title: President Title: President and CEO
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AMSOUTH BANK
By: /s/ Rhett Jordan
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Name: Rhett Jordan
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Title: Vice President82
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EXHIBIT A
SECURITY AGREEMENT
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of May 22, 2002 ("SECURITY AGREEMENT"), is
made by SURGICAL LASER TECHNOLOGIES, INC., a Delaware corporation ("GRANTOR"),
in favor of RELIANT TECHNOLOGIES, INC., a Delaware corporation ("SECURED
PARTY").
RECITALS
A. Secured Party has made and has agreed to extend certain financial
accommodation to Grantor as evidenced by that certain Secured Promissory Note
(the "NOTE") and that certain License and Development Agreement (the "LICENSE
AND DEVELOPMENT AGREEMENT") each dated as of even date herewith executed by
Grantor in favor of Secured Party (collectively, the "LOANS").
B. Secured Party is willing to make the Loans to Grantor, but only upon
the condition, among others, that Grantor shall have executed and delivered to
Secured Party this Security Agreement.
AGREEMENT
NOW, THEREFORE, in order to induce Secured Party to make the Loans and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Grantor hereby
represents, warrants, covenants and agrees as follows:
1. DEFINED TERMS. When used in this Security Agreement the following
terms shall have the following meanings (such meanings being equally applicable
to both the singular and plural forms of the terms defined):
"COLLATERAL" shall have the meaning assigned to such term in Section 2 of
this Security Agreement.
"EVENT OF DEFAULT" means (a) any failure by Grantor forthwith to pay or
perform any of the Secured Obligations, (b) any report, information or notice
made to, obtained or received by Secured Party at any time after the date hereof
indicating that Secured Party's security interest is not prior to all other
security interests or other interests reflected in such report, information or
notice, other than Permitted Liens, (c) any breach by Grantor of any warranty,
representation, or covenant set forth herein, and (d) any "Event of Default" as
defined in the Note.
"LIEN" means any mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"PERMITTED LIEN" means any Liens existing on the date of this Security
Agreement and set forth on Schedule A attached hereto.
"SECURED OBLIGATIONS" means (a) the obligation of Grantor to repay Secured
Party all of the unpaid principal amount of, and accrued interest on (including
any interest that accrues after the commencement of bankruptcy), the Loans, (b)
the obligation of Grantor to pay any fees, costs and expenses of Secured Party
under the Note or under Section 5(c) hereof and (c) all other indebtedness,
liabilities and obligations of Grantor to Secured Party arising out of or
related to the Loans, whether now existing or hereafter incurred, and whether
created under, arising out of or in connection with any written agreement or
otherwise.
"SECURITY AGREEMENT" means this Security Agreement and all Schedules
hereto, as the same may from time to time be amended, modified, supplemented or
restated.
"UCC" means the Uniform Commercial Code as the same may from time to time
be in effect in the State of California (and each reference in this Security
Agreement to an Article thereof (denoted as a Division of the UCC as adopted and
in effect in the State of California) shall refer to that Article (or Division,
as applicable) as from time to time in effect); provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of California, the term "UCC" shall mean the Uniform Commercial
Code (including the Articles thereof) as in effect at such time in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such
provisions.
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In addition, the following terms shall be defined terms having the meaning
set forth for such terms in the UCC: "Equipment" (including all accessions and
additions thereto), "Instrument", "Intellectual Property", "Inventory"
(including all goods held for sale or lease or to be furnished under a contract
of service, and including returns and repossessions), and "Proceeds." Each of
the foregoing defined terms shall include all of such items now owned, or
hereafter acquired, by Grantor.
All capitalized terms used herein and not otherwise defined herein shall
have the respective meanings given to them in the Note.
2. GRANT OF SECURITY INTEREST. As collateral security for the full,
prompt, complete and final payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all the Secured Obligations and in
order to induce Secured Party to cause the Loans to be made, Grantor hereby
assigns, conveys, mortgages, pledges, hypothecates and transfers to Secured
Party, and hereby grants to Secured Party, a security interest in all of
Grantor's right, title and interest in, to and under the following, whether now
owned or hereafter acquired, (all of which being collectively referred to herein
as the "COLLATERAL"):
(A) The tangible assets set forth on Schedule B;
(B) Subject to the consent of Grantor's incumbent senior secured
lender, any and all Inventory of Grantor that is related to or
otherwise used in connection with the tangible assets set forth on
Schedule B and that is licensed to Grantor under the License and
Development Agreement; and
(C) To the extent not otherwise included, and subject as
aforesaid in Section 2(b), all Proceeds of each of the foregoing and
all accessions to, substitutions and replacements for and rents,
profits and products of each of the foregoing.
3. REPRESENTATIONS AND WARRANTIES. Grantor hereby represents and warrants
to Secured Party that:
(A) No effective security agreement, financing statement,
equivalent security or lien instrument or continuation statement
covering all or any part of the Collateral exists, except such as may
have been filed by Grantor in favor of Secured Party pursuant to this
Security Agreement and except with respect to Permitted Liens.
(B) This Security Agreement creates a legal and valid first
priority purchase money security interest on and in all of the
Collateral comprehended in Section 2(a) and the Proceeds therefrom
comprehended in Section 2(c). Furthermore, Grantor will use its good
faith reasonable efforts to persuade its incumbent senior secured
lender to allow Secured Party to have a security interest in the
Collateral comprehended in Section 2(b) and the Proceeds therefrom
comprehended in Section 2(c), and that such security interest should
be a valid first priority security interest. Grantor will assist
Secured Party in effecting all filings and other actions necessary or
desirable to perfect and protect such security interest, subject only
to Permitted Liens.
(C) Grantor's taxpayer identification number is, and chief
executive office, principal place of business, and the place where
Grantor maintains its records concerning the Collateral are presently
located at the address set forth on the signature page hereof. If
Grantor is a corporation, the State under whose law such registered
organization was organized is set forth on the signature page hereof.
The preponderance of the Collateral will, upon relocation from Secured
Party's location in California, be located at such address. Grantor
shall not change its taxpayer identification number, jurisdiction of
organization or such chief executive office, principal place of
business or remove or cause to be removed, the records concerning the
Collateral from those premises without prior written notice to Secured
Party or as otherwise expressly permitted by the Note.
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4. COVENANTS. Grantor covenants and agrees with Secured Party that from
and after the date of this Security Agreement and until the Secured Obligations
have been performed and paid in full:
4.1 DISPOSITION OF COLLATERAL. Grantor shall not sell, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or
contract to do so, other than (a) the sale or lease of Collateral or the
use of Collateral in Sections 2(a) and 2(b) in the provision of surgical
services to customers, all in the ordinary course of business, (b) the
granting of non-exclusive licenses with respect to the Collateral and (c)
the disposal of worn-out or obsolete Collateral.
4.2 CHANGE OF JURISDICTION OF ORGANIZATION, RELOCATION OF BUSINESS OR
COLLATERAL. Grantor shall not change its jurisdiction of organization,
relocate its chief executive office, principal place of business or its
records, or allow the relocation of any Collateral (except as allowed
pursuant to Section 4.1 immediately above) from such address(es) provided
to Secured Party pursuant to Section 3(d) above without thirty (30) days
prior written notice to Secured Party.
4.3 LIMITATION ON LIENS ON COLLATERAL. Grantor shall not, directly or
indirectly, create, permit or suffer to exist, and shall defend the
Collateral against and take such other action as is necessary to remove,
any Lien on the Collateral, except (a) Permitted Liens and (b) the Lien
granted to Secured Party under this Security Agreement.
4.4 INSURANCE. Maintain insurance policies insuring the Collateral
against loss or damage from such risks and in such amounts and forms and
with such companies as are customarily maintained by businesses similar to
Grantor.
4.5 TAXES, ASSESSMENTS, ETC. Grantor shall pay promptly when due all
property and other taxes, assessments and government charges or levies
imposed upon, and all claims (including claims for labor, materials and
supplies) against, the Collateral, except to the extent the validity
thereof is being contested in good faith and adequate reserves are being
maintained in connection therewith.
4.6 MAINTENANCE OF RECORDS. Grantor shall keep and maintain at its
own cost and expense satisfactory and complete records of the Collateral.
4.7 FURTHER ASSURANCES; PLEDGE OF INSTRUMENTS. At any time and from
time to time, upon the written request of Secured Party, and at the sole
expense of Grantor, Grantor shall promptly and duly execute and deliver any
and all such further instruments and documents and take such further action
as Secured Party may reasonably deem necessary or desirable to obtain the
full benefits of this Security Agreement, including, without limitation,
(a) using its best efforts to secure all consents and approvals, including
such consent as described in Section 3(b) hereof, necessary or appropriate
for the grant of a security interest to Secured Party in any Collateral
held by Grantor or in which Grantor has any right or interest not
heretofore assigned, (b) executing, delivering and causing to be filed any
financing or continuation statements (including "in lieu" continuation
statements) under the UCC with respect to the security interests granted
hereby, at Secured Party's reasonable request, executing and delivering or
causing to be delivered written notice to insurers of Secured Party's
security interest in, or claim in or under, any policy of insurance
(including unearned premiums) and (c) at Secured Party's reasonable
request, using its best efforts to obtain acknowledgments from bailees
having possession of any Collateral and waivers of liens from landlords and
mortgagees of any location where any of the Collateral may from time to
time be stored or located. Grantor also hereby authorizes Secured Party to
file any such financing or continuation statement (including "in lieu"
continuation statements) without the signature of Grantor. If any amount
payable under or in connection with any of the Collateral is or shall
become evidenced by any Instrument, such Instrument, other than checks and
notes received in the ordinary course of business and any Instrument in the
outstanding or stated amount of less than $10,000, shall be duly endorsed
in a manner reasonably satisfactory to Secured Party and delivered to
Secured Party promptly and in any event within five (5) business days of
Grantor's receipt thereof.
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5. RIGHTS AND REMEDIES UPON DEFAULT.
(A) Beginning on the date which is thirty (30) business days
after any Event of Default, except that such period shall be ten (10)
business days for an Event of Default arising from a payment not
timely made by Grantor, shall have occurred and while such Event of
Default is continuing, Secured Party may exercise in addition to all
other rights and remedies granted to it under this Security Agreement,
the Note, the License and Development Agreement and under any other
instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under
the UCC. Without limiting the generality of the foregoing, Grantor
expressly agrees that in any such event Secured Party, without demand
of performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or
private sale) to or upon Grantor or any other person (all and each of
which demands, advertisements and notices are hereby expressly waived
to the maximum extent permitted by the UCC and other applicable law),
may (i) reclaim, take possession, recover, store, maintain, finish,
repair, prepare for sale or lease, shop, advertise for sale or lease
and sell or lease (in the manner provided herein) the Collateral, and
(ii) forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease,
assign, give an option or options to purchase or sell or otherwise
dispose of and deliver said Collateral (or contract to do so), or any
part thereof, in one or more parcels at public or private sale or
sales, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit
risk. To the extent Grantor has the right to do so, Grantor authorizes
Secured Party, on the terms set forth in this Section 5 to enter the
premises where the Collateral is located, to take possession of the
Collateral, or any part of it, and to pay, purchase, contract, or
compromise any encumbrance, charge, or lien which, in the opinion of
Secured Party, appears to be prior or superior to its security
interest. Secured Party shall have the right upon any such public sale
or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of said Collateral so
sold, free of any right or equity of redemption, which equity of
redemption Grantor hereby releases. Grantor further agrees, at Secured
Party's request, to assemble its Collateral and make it available to
the Secured Party at places which Secured Party shall reasonably
select, whether at Grantor's premises or elsewhere. Secured Party
shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale as provided in Section
5(e), below, with Grantor remaining liable for any deficiency
remaining unpaid after such application, and only after so paying over
such net proceeds and after the payment by Secured Party of any other
amount required by any provision of law, need Secured Party account
for the surplus, if any, to Grantor. To the maximum extent permitted
by applicable law, Grantor waives all claims, damages, and demands
against Secured Party arising out of the repossession, retention or
sale of the Collateral. Grantor agrees that Secured Party need not
give more than ten (10) days' notice of the time and place of any
public sale or of the time after which a private sale may take place
and that such notice is reasonable notification of such matters.
Grantor shall remain liable for any deficiency if the proceeds of any
sale or disposition of its Collateral are insufficient to pay all
amounts to which Secured Party is entitled from Grantor, Grantor also
being liable for the attorney costs of any attorneys employed by
Secured Party to collect such deficiency.
(B) Grantor agrees that in any sale of any of such Collateral,
whether at a foreclosure sale or otherwise, Secured Party is hereby
authorized to comply with any limitation or restriction in connection
with such sale as it may be advised by counsel is necessary in order
to avoid any violation of applicable law (including compliance with
such procedures as may restrict the number of prospective bidders and
purchasers, require that such prospective bidders and purchasers have
certain qualifications), or in order to obtain any required approval
of the sale or of the purchaser by any governmental authority, and
Grantor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a
commercially reasonable manner, nor shall Secured Party be liable nor
accountable to Grantor for any discount allowed by the reason of the
fact that such Collateral is sold in compliance with any such
limitation or restriction.
(C) Grantor also agrees to pay all fees, costs and expenses of
Secured Party, including, without limitation, reasonable attorneys'
fees, incurred in connection with the enforcement of any of its rights
and remedies hereunder.
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(D) Grantor hereby waives presentment, demand, protest or any
notice (to the maximum extent permitted by applicable law) of any kind
in connection with this Security Agreement or any Collateral.
(E) The Proceeds of any sale, disposition or other realization
upon all or any part of the Collateral shall be distributed by Secured
Party in the following order of priorities:
FIRST, to Secured Party in an amount sufficient to pay in full the
reasonable costs of Secured Party in connection with such sale, disposition
or other realization, including all fees, costs, expenses, liabilities and
advances incurred or made by Secured Party in connection therewith,
including, without limitation, reasonable attorneys' fees;
SECOND, to Secured Party in an amount equal to the then unpaid Secured
Obligations; and
FINALLY, upon payment in full of the Secured Obligations, to Grantor
or its representatives, in accordance with the UCC or as a court of
competent jurisdiction may direct.
6. INDEMNITY. Grantor agrees to defend, indemnify and hold harmless
Secured Party and its officers, employees, and agents against (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Security
Agreement and (b) all losses or expenses in any way suffered, incurred, or paid
by Secured Party as a result of or in any way arising out of, following or
consequential to transactions between Secured Party and Grantor, whether under
this Security Agreement or otherwise (including without limitation, reasonable
attorneys' fees and expenses), except for losses arising from or out of Secured
Party's gross negligence or willful misconduct.
7. LIMITATION ON SECURED PARTY'S DUTY IN RESPECT OF COLLATERAL. Secured
Party shall be deemed to have acted reasonably in the custody, preservation and
disposition of any of the Collateral if it takes such action as Grantor requests
in writing, but failure of Secured Party to comply with any such request shall
not in itself be deemed a failure to act reasonably, and no failure of Secured
Party to do any act not so requested shall be deemed a failure to act
reasonably.
8. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
Grantor for liquidation or reorganization, should Grantor become insolvent or
make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of Grantor's property and assets,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Secured Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Secured Obligations,
whether as a "voidable preference," "fraudulent conveyance," or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
9. MISCELLANEOUS.
9.1 NO WAIVER; CUMULATIVE REMEDIES.
(A) Secured Party shall not by any act, delay, omission or
otherwise be deemed to have waived any of its respective rights or
remedies hereunder, nor shall any single or partial exercise of any
right or remedy hereunder on any one occasion preclude the further
exercise thereof or the exercise of any other right or remedy.
(B) The rights and remedies hereunder provided are cumulative and
may be exercised singly or concurrently, and are not exclusive of any
rights and remedies provided by law.
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(C) None of the terms or provisions of this Security Agreement
may be waived, altered, modified or amended except by an instrument in
writing, duly executed by Grantor and Secured Party.
9.2 TERMINATION OF THIS SECURITY AGREEMENT. Subject to Section 8
hereof, this Security Agreement shall terminate upon the payment and
performance in full of the Secured Obligations.
9.3 SUCCESSOR AND ASSIGNS. This Security Agreement and all
obligations of Grantor hereunder shall be binding upon the successors and
assigns of Grantor, and shall, together with the rights and remedies of
Secured Party hereunder, inure to the benefit of Secured Party, any future
holder of any of the indebtedness and their respective successors and
assigns. No sales of participations, other sales, assignments, transfers or
other dispositions of any agreement governing or instrument evidencing the
Secured Obligations or any portion thereof or interest therein shall in any
manner affect the lien granted to Secured Party hereunder.
9.4 GOVERNING LAW. In all respects, including all matters of
construction, validity and performance, this Security Agreement and the
Secured Obligations arising hereunder shall be governed by, and construed
and enforced in accordance with, the laws of the State of California
applicable to contracts made and performed in such state, without regard to
the principles thereof regarding conflict of laws, except to the extent
that the UCC provides for the application of the law of Grantor's
jurisdiction of formation.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
ADDRESS OF GRANTOR SURGICAL LASER TECHNOLOGIES, INC.
147 Keystone Drive By: /s/ Michael R. Stewart
Montgomeryville, Pennsylvania 18936-9638 ----------------------
Printed Name: Michael R. Stewart
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Title: President and CEO
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TAXPAYER IDENTIFICATION NUMBER OF GRANTOR JURISDICTION OF ORGANIZATION OF
GRANTOR
31-1093148 Delaware
ACCEPTED AND ACKNOWLEDGED BY:
RELIANT TECHNOLOGIES, INC.
By: /s/ Maynard A. Howe
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Printed Name: Maynard A. Howe
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Title: President
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