EXHIBIT 10.3
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SECURITY AGREEMENT
The undersigned, CAS MEDICAL SYSTEMS, INC. (the "Debtor" or "Borrower"), being a
corporation organized and existing under the laws of the State of Delaware and
having its chief executive office and principal place of business at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby grants to NEWALLIANCE BANK
,with a place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Bank" or "Secured Party"), a security interest in all of the Debtor's
present and future right, title and interest in and to any and all of the
following property, whether now existing or hereafter created (all of which is
hereinafter called the "COLLATERAL"):
All Equipment and Fixtures, as these terms are defined in the Uniform Commercial
Code as in effect in Connecticut as amended from time to time and all machinery,
tools, parts, furniture, furnishings, motor vehicles and other personal
property, tangible or intangible, presently owned or hereafter acquired by the
Debtor, together with additions and accessions thereto and substitutions and
replacements therefor, and the products and Proceeds (including insurance and
condemnation proceeds) thereof;
All Inventory and Goods, as these terms are defined in the Uniform Commercial
Code as in effect in Connecticut as amended from time to time, whether presently
owned or hereafter acquired, including, without limitation, all Inventory in the
possession of others or in transit, all Goods held for sale or lease or to be
furnished under contacts for service or which have been so furnished, raw
materials, work in process, and materials used or consumed or to be used or
consumed in the business of the Debtor, and completed and unshipped merchandise,
and the products and Proceeds ( including insurance and condemnation proceeds)
of the foregoing;
All Accounts, Chattel Paper (whether tangible or electronic), Instruments,
Documents, Investment Property (including, without limitation, Certificated
Securities, Uncertificated Securities and Security Entitlements), Letter of
Credit Rights (including rights to draw under letters of credit, to effect which
rights a power of attorney is hereby granted by the Debtor to the Bank) and
General Intangibles (including, without limitation, Payment Intangibles), as
these terms are defined in the Uniform Commercial Code as in effect in
Connecticut as amended from time to time, including those now existing and those
hereafter arising or coming into existence, and including, without limitation,
all rights of payment for goods sold or leased or services rendered or to be
rendered, for a policy of insurance issued or to be issued, for a secondary
obligation incurred or to be incurred, for energy provided or to be provided,
for the use or hire of a vessel under charter or other contract, arising out of
the use of a credit card or for information contained on or for use with the
card, as winnings in a lottery or other game of chance operated or sponsored by
a state, governmental unit or properly authorized person, or health care
insurance receivables, all rights of payment under contracts whether or not
currently due or not yet earned by performance and accounts receivable arising
or to arise there from, and all rights of the Debtor in and to the goods
represented thereby including returned and repossessed goods, and all rights the
Debtor may have or acquire for securing or enforcing the forgoing, including
without limitation, Supporting Obligations of every nature, the rights to
reserves, deposits, income tax refunds, choses in action, judgments or insurance
proceeds, and the products and proceeds of all of the foregoing;
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All goodwill, trade secrets, computer programs, Software, customer lists, trade
names, service names or marks, trademarks and trademark applications, copyrights
and copyright applications, franchises, licenses and patents, patent licenses
and patent applications, and the proceeds thereof, including, without limitation
the rights to ▇▇▇ and recover for infringement thereof;
All books and records relating to the conduct of Debtor's business;
All Deposit Accounts maintained by the Debtor with the Bank or other bank, trust
company, investment firm or fund or any similar institution or organization and
the proceeds thereof;
Any deposits, credits, collateral or property of the Debtor at any time now or
hereafter in the possession, custody, safekeeping or control of the Bank or any
entity under the control of the Bank or in transit to any of them and the
proceeds thereof (the "Deposits and Securities");
All licenses, permits and agreements of any kind or nature pursuant to which (a)
the Debtor operates or has authority to operate; (b) the Debtor possesses, uses
or has authority to possess or use property (whether tangible or intangible) of
others; or (c) others possess, use or have authority to possess or use property
(whether tangible or intangible) of the Debtor to secure the payment and
performance of all liabilities, obligations, indebtedness, duties, covenants and
guaranties now or hereafter owing from the Debtor to the Bank of whatever kind
or nature, whether or not contemplated at the time of this Agreement, whether
direct or indirect, absolute or contingent or due or to become due, including
all obligations of the Debtor, actual or contingent, in respect of letters of
credit or banker's acceptances issued by the Bank for the account of or
guaranteed by the Debtor and all obligations of any partnership or joint venture
as to which Debtor is or may become personally liable (the "OBLIGATIONS", which
term shall also include, without limitation, all accrued interest and costs,
including reasonable attorney's fees, costs and expenses relating to the
appraisal and/or valuation of assets and all costs and expenses incurred or paid
by the Bank in exercising, preserving, defending, enforcing, collecting,
administrating or protecting any of its rights under the Obligations or
hereunder or with respect to the Collateral or in any litigation arising out of
the transactions evidenced by the Obligations). The Bank shall have the
unrestricted right from time to time to apply (or to change any application
already made) the proceeds of any of the Collateral to any Obligations in such
manner and such order of priority as the Bank, in its sole discretion, may
determine.
The Debtor expressly acknowledges that the security interest granted hereunder
shall remain as security for payment and performance of the Obligations, whether
now existing or which may hereafter be incurred by future loans or otherwise.
The notice of the continuing grant of this security interest therefor shall not
be required to be stated on the face of any document representing any such
Obligations, or otherwise identify it as being secured hereby. All collateral
which the Bank may at any time acquire from the Debtor or any other source in
connection with any of the Obligations shall constitute collateral for each and
every Obligation, without apportionment or designation as to particular
Obligations, and the Bank shall have the right, in its sole discretion, to
determine the order in which the Bank's rights in, or remedies against, any
Collateral are to be exercised, and which type or which portions of Collateral
are to be proceeded
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against and the order of application of any proceeds of collateral as against
particular Obligations.
The Debtor acknowledges and agrees that this security agreement grants, and is
intended to grant, a security interest in all assets of the Debtor and that, in
addition to its other legal rights, the Bank is expressly authorized to
authenticate and to file or transmit a financing statement or other record to
perfect such security interest which describes the Collateral as "all personal
property" or "all assets" of the Debtor.
The Debtor further hereby grants to the Bank a security interest in and
non-exclusive license and right to use any and all patents, copyrights,
tradenames, trademarks, service marks, and all applications therefor, and
licenses to Bank any and all patents, copyrights, tradenames, trademarks or
service marks that Debtor now owns and/or has the right to use or may hereafter
own or acquire the right to use. The Bank's security interest and non-exclusive
license set forth in this paragraph shall specifically include all rights of the
Debtor which may be necessary in order for the Bank to exercise or to get the
full benefit and value from the security interest granted in or under this
Agreement.
I. Representations and Warranties of Debtor
The Debtor hereby represents and warrants that except as set forth in Schedule A
attached hereto and made a part hereof:
(a) The exact legal name of the Debtor is stated hereinbelow. Debtor is a
corporation duly organized and validly existing under the laws of the State of
Delaware and is in good standing under the laws of said State. Debtor is
qualified to do business in every state in which the nature of its business
conducted or the character of its property owned in such state would require
such qualification.
(b) Debtor has the power to execute, deliver and perform this Agreement and to
borrow from the Bank. The execution, delivery and performance of this Agreement
and any notes, guaranties or other documents, instruments or agreements
evidencing Debtor's obligations to the Bank have been duly authorized, if the
Debtor is a limited liability company, limited liability partnership,
corporation, partnership, trust or other legal entity, will not violate the
articles of organization, certificate of incorporation, partnership agreement,
declaration of trust or other or similar organizational documents or the bylaws
of the Debtor, if Debtor is a limited liability company, limited liability
partnership, corporation, partnership, trust or other legal entity, or any law,
regulation or court order, and with not result in a default under any agreement
or indenture to which the Debtor is a party.
(c) Debtor has furnished to the Bank such tax returns, financial statements and
other information about the Debtor's financial condition as the Bank shall have
requested. These financial statements, tax returns or other information fairly
present the financial condition of the Debtor in all material respects. There
has been no material adverse change in the assets, liabilities, financial
condition or business of Debtor since the date of the last financial statements,
tax returns or other information delivered to the Bank.
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(d) Debtor has good and marketable title to the property and assets which are
reflected on its financial statements, tax returns or other information
furnished to the Bank. All of the Collateral is owned by the Debtor free and
clear of all liens, pledges, security interests and mortgages, except for liens,
pledges, security interests or mortgages in favor of the Bank or liens, pledges,
security interests or mortgages set forth on Schedule I (d) attached hereto and
incorporated herein (collectively "Permitted Liens"). No effective financing
statement covering the Collateral or any proceeds thereof is on file in any
public office, except as set forth on Schedule I(d).
(e) There is no suit or proceeding at law or in equity affecting the Debtor or
any of its properties which, if adversely determined, would materially impair
the rights of the Debtor to carry on its business substantially as it is now
being conducted or would have a materially adverse effect upon the assets,
liabilities, financial condition or business of the Debtor. The Debtor is not a
party to any document, agreement or instrument, and is not subject to any
charge, order or other restriction, materially and adversely affecting its
assets, liabilities, financial condition or business, except as previously
disclosed to the Bank in writing.
(f) Debtor has filed all federal, state and local tax returns and other reports
it is required by law to file and has paid all taxes and other charges that are
due and payable.
(g) Debtor is not in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any document,
agreement or instrument to which Debtor is a party, except for minor defaults in
purchase or sale orders or other agreements which neither individually nor in
the aggregate have a materially adverse effect on the Debtor.
(h) Debtor has not, during the preceding five (5) years, changed its name, been
a party to a merger, or used any other corporate or fictitious name except as
previously described to the Bank in writing.
(i) The place where Debtor keeps its records concerning the Collateral, the
Debtor's principal place of business and the Debtor's chief executive office, or
if the Debtor is an individual with no place of business, its residence, is the
location set forth at the beginning of this Agreement. The Collateral is now and
will continue to be kept at such location and at the following additional
locations until such time as the written consent of the Bank to a change in
location is received:
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(j) If any of the Collateral is to be attached to real estate, descriptions of
said real estate have been delivered to the Bank and/or are attached to this
Agreement and the name and address of each record owner is as follows:
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(k) Debtor is in compliance in all material respects with all laws, ordinances,
rules or regulations applicable to it, of all federal, state or local
governments or any instrumentality or agency thereof, including, without
limitation, the Employee Retirement Income Security Act of 1974, the United
States Occupational Safety and Health Act of 1970 and all federal, state and
municipal laws, ordinances, rules and regulations relating to the environment,
as such may be amended.
II. Covenants of Debtor
The Debtor hereby agrees and covenants that except as set forth in SCHEDULE B
attached hereto and incorporated herein:
(a) Debtor will keep the Collateral free from all liens, security interests and
encumbrances except for the security interest granted herein or those
specifically permitted in writing by the Bank and will defend the Collateral
against all demands of all persons at any time claiming any interest therein.
The Debtor will not sell or otherwise transfer the Collateral or any interest
therein except in the ordinary course of Debtor's business as presently
conducted. Debtor acknowledges and agrees that any security interest, sale or
transfer of Collateral without the express authorization of Bank will violate
the rights of the Bank and the Bank may note this fact on any financing
statement, fixture filing or other record filed by the Bank.
(b) Debtor will not change its name without giving the Bank thirty (30) days
prior written notice in which it sets forth its new name and the date on which
the new name shall first be used. Debtor shall not change its principal place of
business and chief executive officefrom that address set forth in the beginning
of this Agreement, without giving the Bank at least thirty (30) days prior
written notice of the new address for same, and provided that such new location
(and address) shall be in the United States of America. Debtor shall, at all
times, keep the Bank accurately informed in writing of each location where the
Debtor's assets are kept and of each of its places of business and Debtor shall
not remove any records to another state or change the location or open or close,
move or change any existing or new place of business without giving the Bank at
least thirty (30) days' prior written notice thereof.
(c) Debtor will, at its expense, furnish to the Bank upon its demand such
further information, will execute and deliver to the Bank such financing
statements and other agreements, instruments or documents, and will do all such
acts as the Bank may, at any time or from time to time, reasonably request, or
as may be necessary or appropriate to establish and maintain a valid and
enforceable first priority security interest of the Bank in the Collateral.
Notwithstanding the foregoing, the Bank is hereby authorized to authenticate and
to file Financing Statements,
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Fixture Filings or similar records naming the Debtor or any other party being or
becoming bound by this security agreement (whether as a new debtor, a transferee
of Collateral subject to Bank's security interest or becoming a party to this
agreement) as the debtor and indicating the Collateral. Debtor shall not file a
Correction Statement relating to the Collateral or to any Financing Statement or
Fixture Filing filed by the Bank without the Bank's prior written consent. If
the Debtor is a corporation, limited liability company, limited partnership or
other Registered Organization (as that term is defined in Article 9 of the
Uniform Commercial Code as in effect in Connecticut) the Debtor shall, at its
expense, furnish to Bank a certified copy of Debtor's organization documents
verifying its correct legal name or, at Bank's election, shall permit the Bank
to obtain such certified copy at Debtor's expense. From time to time, at Bank's
election, the Bank may obtain a certified copy of Debtor's organization
documents and a search of such Uniform Commercial Code filing offices as it
shall deem appropriate, at Debtor's expense, to verify Debtor's compliance with
the terms of this Agreement.
(d) Debtor will keep the Collateral (to the extent that it consists of tangible
property) at all times insured against risks of loss or damage by fire
(including so-called extended coverage), theft and such other casualties as the
Bank may reasonably require, including collision in the case of any motor
vehicle, all in such amounts, under such forms of policies, under such terms,
for such periods and written by such companies or underwriters as the Bank may
approve, which approval may not be unreasonably withheld, losses in all cases to
be payable first to the Bank "as its interest may appear." All policies of
insurance shall provide for at least thirty (30) days' prior written notice of
cancellation to the Bank, and the Debtor shall furnish the Bank with
certificates of such insurance or other evidence satisfactory to the Bank as to
compliance with the provisions of this paragraph. Debtor hereby irrevocably
appoints the Bank to act as attorney-in-fact for the Debtor in making, adjusting
and settling claims under such policies of insurance or endorsing the Debtor's
name on any drafts drawn by insurers of the Collateral or any other documents to
effect collection. Such insurance maintained by the Debtor shall include,
without limitation, insurance coverage on Collateral in the possession of the
Bank or its agent or contractor. Debtor, and any other Obligor by becoming bound
by the Obligations, hereby indemnifies the Bank against any loss or damage to
Collateral not insured by Debtor and for any deficiency in any effective
insurance coverage required to be maintained by Debtor pursuant to this section,
which indemnification obligation shall constitute part of the Obligations.
(e) Debtor will notify the Bank in writing promptly upon its learning of any
event, condition, loss, damage, litigation, administrative proceeding or other
circumstance which may materially and adversely affect the assets, liabilities,
financial condition or business of the Debtor or the Bank's security interest in
the Collateral.
(f) Debtor will keep the Collateral in good order and repair, ordinary wear and
tear excepted, and will not waste or destroy the Collateral or any part thereof
and will not use the Collateral in violation of any applicable statute,
ordinance or policy of insurance thereon. The Bank may examine and inspect the
Collateral, the Debtor's books and records and any documents or instruments
relating to the Collateral at any reasonable time or times wherever located.
(g) Debtor will preserve and keep in force its existence in the state of
organization specified in subsection (a) above and will promptly pay all lawful
taxes and assessments. Unless the Bank consents in writing, the Debtor will not
(i) sell any of its assets other than inventory in the
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ordinary course of its business, (ii) incur, create or assume or suffer to exist
any security interest, mortgage, pledge, lien or other encumbrance on its assets
other than those in favor of the Bank, (ii) guarantee or otherwise in any way
become liable for obligations of others, except for the minor endorsement of
instruments for deposit or collection in the ordinary course of business, or
(iv)merge with any other entity or change its type of organization or change its
state of organization.
(h) If it is a corporation, the Debtor will not merge or enter into any
reorganization or consolidation without prior approval of the Bank.
(i) At its option, but without obligation to do so, the Bank may discharge
taxes, liens, security interest or other encumbrances at any levied or placed on
the Collateral; may place and pay for insurance on the Collateral; may order and
pay for the repair, maintenance and preservation of the Collateral; and may pay
any fees for filing or recording such instruments or documents as may be
necessary or desirable to perfect the security interest granted herein. The
Debtor agrees to reimburse the Bank on demand for any payment made or any
expense incurred by the Bank pursuant to the foregoing authorization, and all
such payments and expenses shall constitute part of the principal amount of
Obligations hereby secured and shall bear inters at the highest rate payable on
the Obligations of the Debtor to the Bank.
(j) If the Debtor shall create, assume or permit to exist any lien, pledge,
security interest, mortgage or encumbrance upon any of its property or assets
whether now owned or hereafter acquired, other than Permitted Liens, or liens,
pledges, security interests, mortgages or encumbrances permitted in any
agreement related to the Obligations, it will secure the Obligations or cause
them to be secured by any such lien, pledge, security interest, mortgage or
encumbrance equally and ratably with any and all indebtedness thereby secured,
provided, that nothing contained herein shall be construed or interpreted to
permit the Borrower to create, assume or permit to exist any lien, pledge,
security interest, mortgage or encumbrance not otherwise agreed to in writing by
the Bank. In the event that any other security interest or lien attaches to the
Collateral, other than Permitted Liens or the security interest to the Bank,
Debtor hereby grants to Bank a power of attorney to, in the name of the Debtor,
request and to enforce any right of Debtor to obtain, accountings and
information from such other secured party or lienor relating to the obligations
secured and collateral securing such security interest or lien, which power,
being coupled with an interest, shall not be revocable by Debtor. Debtor agrees
to pay or reimburse Bank upon demand for any charges resulting from such
requests for information.
(k) If any part of the Collateral is a Fixture, the Debtor will, on demand,
furnish the Bank with a disclaimer or release signed by all persons having an
interest in the real estate or any interest in the Collateral which is recorded
or filed, or which may be, prior to the Bank's interest.
(l) Intentionally omitted.
(m) All representations now or hereafter made by the Debtor to the Bank, whether
in this Agreement or in any supporting or supplemental documentation or
statement are, will be, and shall continue to be true and correct in all
material respects.
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(n) In the event that Collateral is in the possession of a bailee or other third
party, Debtor shall, at Bank's election (and in form and content reasonably
satisfactory to the Bank), either: (i) cause a Document of title, in form and
content satisfactory to the Bank, to be issued in the name of the Bank or (ii)
obtain the written acknowledgement of the bailee or third party that it is
holding such Collateral for the benefit of the Bank.
(o) With respect to any Collateral which is subject to a Certificate of Title,
the Debtor shall: (i) cause a Certificate of Title to be issued perfecting the
security interest of the Bank, unless such collateral is Inventory held for sale
in the ordinary course of Debtor's business by the Debtor and until such
Collateral ceases to be such Inventory; and (ii) not cause or permit a
Certificate of Title to be issued in another state which does not list the
Bank's security interest.
(p) If the Debtor shall at any time acquire a Commercial Tort Claim, as defined
in Article 9, the Debtor shall immediately notify the Bank, in a writing signed
by the Debtor, of the brief details of the Commercial Tort Claim and shall grant
to the Bank a security interest therein and in all proceeds thereof in
accordance with the terms of this Agreement. All terms and provisions of such
written notification and grant of such security interests shall be in form and
content reasonably satisfactory to the Bank.
III. Events of Default
The occurrence of any one or more of the following events shall constitute an
"Event of Default" under this Security Agreement:
(a) The failure of the Debtor to pay when due to be paid all or any part of
the Obligations; (b) default by the Debtor in the payment of any other
indebtedness or obligation in excess of $250,000, or if any such indebtedness or
obligation shall be accelerated, or if there exists any event of default (beyond
the expiration of any applicable grace or cure period) under any instrument,
document or agreement evidencing, governing or securing such other indebtedness
or obligation; (c) the occurrence of a material adverse change in the condition
or affairs (financial or otherwise) of Debtor, or a material adverse change
(financial or otherwise) in the Collateral, which change causes the Secured
Party, in good faith, to deem itself insecure with respect to the repayment and
performance of any of the Obligations; or the Bank believes that any material
adverse change in the assets, liabilities, financial condition or business of
the Debtor has occurred since the date of any financial statements delivered to
the Bank before or after the date hereof; (d) failure by the Debtor to comply
with the terms of this Agreement or any existing or future note, mortgage,
guaranty, loan agreement or other agreement or document from Debtor in favor of
Bank, including any document which may now or hereafter evidence, govern or
secure all or a portion of the Obligations; provided that Debtor shall have a
period of 15 days following notice from Bank to cure any such failure to comply
other than a payment failure, before the same shall constitute an Event of
Default (Cure Right), provided that such Cure Right shall not be applicable to
any of the other Events of Default set forth in (a)-(c) or (e)- (k) of this
paragraph ; (e) any representation or warranty made by the Borrower herein or in
any existing or future agreement from Borrower in favor of Bank shall be
incorrect or untrue in any material respect as of the date when made, or any
statement, certificate or data furnished by the Borrower
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in connection with the Obligations, or any said existing or future agreement
shall be incorrect or untrue in any material respect as of the date thereof or
as of the date specified therein, as the case may be.; (f) the occurrence of any
material loss, theft, substantial damage or destruction of or to any Collateral
or to a material portion of the property or assets of the Debtor; (g) sale or
other disposition of or encumbrance on, any property of the Debtor, except
Permitted Liens or as permitted by any note or other agreement or document
evidencing, governing or securing all or a portion of the Obligations; (h) the
making or issuance of any levy, seizure, attachment, execution or similar
process against any property of Debtor; or (i) dissolution of, termination of
the existence of, insolvency of, business failure of, application for or
appointment of a receiver, trustee, conservator or liquidator of any part of the
property of, assignment for the benefit of the creditors by, or the commencement
of any case or any other proceeding (whether for the purpose of liquidation or
rehabilitation or otherwise) under any bankruptcy or insolvency laws, by or
against the Debtor or of, by or against any Obligor, guarantor, endorser or
surety for any Obligations (herein, a "Guarantor"); (j) demand for the payment
of, or the occurrence of a Default or an Event of Default (as defined therein)
under, that certain Commercial Loan Agreement between Debtor and Secured Party
dated of even date herewith, as the same may be amended, restated and/or renewed
from time to time, or under the Commercial Revolving Promissory Note in the
amount of $10,000,000.00, from Borrower to Bank, dated of even date herewith, as
the same may be amended, restated and/or renewed from time to time, or any other
existing or future agreement from Debtor in favor of Secured Party; (k) the
failure to maintain insurance required herein or in any other existing or future
agreement executed by Debtor in favor of Bank.
IV. Remedies
Upon and after the occurrence of any Event of Default or if the Bank shall in
good faith believe that the prospect of payment or performance is impaired, all
of the Obligations shall, at the option of the Bank or automatically, as the
case may be as provided in the instrument or agreement evidencing the defaulted
Obligations, without demand, notice or legal process of any kind, accelerate and
become immediately due and payable.
Upon and after an Event of Default, the Bank shall have the following additional
rights and remedies (which the Debtor , and, by becoming bound by the
Obligations or this Agreement, all other Obligors, Guarantors and any New
Debtors accept and agree upon):
(a) All of the rights and remedies of a secured party under the Uniform
Commercial Code or any other applicable law or at equity, all of which rights
and remedies shall be cumulative and non-exclusive, to the extent permitted by
law, in addition to any other rights and remedies contained in this Security
Agreement or in any other agreement, document or instrument evidencing,
governing or securing the Obligations.
(b) The right to (i) take possession of the Collateral, without resort to legal
process and without prior notice to Debtor, and for the purpose Debtor hereby
irrevocably appoints the Bank its attorney-in-fact to enter upon any premises on
which the Collateral or any part thereof may be situated and remove the
Collateral therefrom, (ii) require the Debtor to assemble the Collateral and
make it available to Bank in a place to be designated by the Bank, in its sole
discretion, or
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(iii) the right to locate, disable or to take possession of the Collateral by
electronic, digital, magnetic or wireless optical electromagnetic or similar
means after giving any notices required under applicable law. The Debtor shall
make available to the Bank all premises, locations and facilities necessary for
the Bank's taking possession of the Collateral or for removing or putting the
Collateral in saleable form.
(c) The right to sell or otherwise dispose of all or any part of the Collateral
by public or private sale or sales. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Bank will give the Debtor at least five (5) days prior
written notice of the time and place of any public sale thereof or of the time
after which any private sale or any other intended disposition (which may
include, without limitation, a public sale or lease of a all or part of the
Collateral) is to be made. The Debtor agrees that 5 days is a reasonable time
for such notice. The Bank, its employees, attorneys and agents may bid and
become purchasers at any such sale, if public, and may purchase at any private
sale of the Collateral that is of a type customarily sold on a recognized market
or which is subject to widely distributed standard price quotations. A public or
private sale of the Collateral or any portion thereof may be accomplished by
digital or electronic means, such as through use of the internet or other
telecommunications means.
At any public or private sale the Collateral shall be sold "as is" with no
warranties by the Bank, whether express or implied. Any public or private sale
shall be free from any right of redemption which the Debtor waives and releases
and which Debtor and any Guarantors agree that they will confirm in a separate
written agreement after any default. If there is a deficiency after such sale
and the application of the net proceeds from such sale, the Debtor shall be
responsible for the same, with interest at the maximum rate allowable by law,
and the costs and expenses of collection of such deficiency, including without
limitation, attorney's fees.
(d) The right (and Debtor irrevocably appoints the Bank as attorney-in-fact for
the Debtor for this purpose, such appointment being coupled with an interest),
without prior notice to Debtor and without resort to legal process, to notify
the persons liable for payment of the Accounts, Chattel Paper, Instruments and
General Intangibles at any time and direct such persons to make payments
directly to the Bank, and to perform all acts the Debtor could take to collect
on such Accounts, Chattel Paper, Instruments and General Intangibles, including,
but without limitation, the right to notify postal authorities to change the
address for delivery, open mail, endorse checks, bring collection suits, and
realize upon Collateral securing such Accounts, Chattel Paper, Instruments and
General Intangibles. At the Bank's request, all bills and statements sent by the
Debtor to the persons liable for payment of such Accounts, Chattel Paper,
Instruments and General intangibles shall state that they have been assigned to,
and solely payable to, the Bank, and Debtor shall direct persons liable for the
payment of such Accounts, Chattel Paper, Instruments and General Intangibles to
pay directly to the Bank any sums due or to become due on account thereof.
(e) The right from time to time without demand or notice, to apply and set off
any or all of the Deposits and Securities against, any and all Obligations even
though such Obligations be unmatured.
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(f) The Bank shall not be required to apply non-cash Proceeds of any disposition
of Collateral until cash is actually received by the Bank.
V. General
(a) No waiver by the Bank of any default shall be effective unless in writing
nor operate as a waiver of any other default or of the same default on a future
occasion, nor shall the failure of delay of the Bank to exercise, or the partial
exercise of, any right, power or privilege provided for hereunder in any
circumstances preclude the full exercise of such right, power or privilege in
the same or similar circumstances in the future or the exercise of any other
right or remedy.
(b) This Security Agreement is intended as the final, complete and exclusive
statement of the provisions contained in this Security Agreement. No amendment,
modification, termination or waiver of any provisions of this Security Agreement
or consent to any departure by the Debtor therefrom shall, in any event, be
effective unless the same shall be in writing and signed by the Bank. Any waiver
of, or consent to any departure from, any provision of this Security Agreement
shall be effective only in the specific purpose for which it is given, and shall
not be deemed to extend to similar situations or to the same situation at a
subsequent time. No notice to or demand upon the Debtor shall in any case
entitle Debtor to any other or further notice or demand in similar or other
circumstances.
(c) All rights of the Bank hereunder shall inure to the benefit of its
successors and assigns, and all obligations of the Debtor shall bind the heirs,
legal representatives, successors and assigns of Debtor.
(d) Debtor will pay to the Bank on demand any and all costs and expenses,
including attorney's fees, costs and expenses relating to the appraisal and/or
valuation of assets and all costs and expenses incurred or paid by the Bank in
establishing, exercising, collecting, defending, preserving, protecting,
administering or enforcing its rights in the Collateral or under any of the
Obligations.
(e) This Security Agreement and the security interest created hereby shall be
governed by and construed in accordance with the laws of the State of
Connecticut (but not its conflicts of law provisions).
(f) Whenever possible, each provision of this Security Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Security Agreement shall to any extent be held
invalid or unenforceable, then only such provision shall be deemed ineffective
and the remainder of this Security Agreement shall not be affected thereby.
(g) Intentionally omitted.
(h) Debtor hereby acknowledges receipt of a fully-completed copy of this
Security Agreement.
(i) If not otherwise defined herein, the terms contained herein which are
defined in Article 9 of the Uniform Commercial Code as enacted in the State of
Connecticut ("Article 9") shall have the meanings ascribed to them in Article 9,
whether or not such terms are capitalized herein.
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VI. Waivers
(a) DEBTOR HEREBY (I) ACKNOWLEDGES THAT THIS AGREEMENT IS PART OF A COMMERCIAL
TRANSACTION AND (II) TO THE EXTENT PERMITTED BY ANY STATE OR FEDERAL LAW
(INCLUDING, BUT NOT LIMITED TO CHAPTER 903a OF THE CONNECTICUT GENERAL
STATUTES), WAIVES ANY RIGHT IT MAY HAVE TO PRIOR NOTICE OF AND A HEARING ON THE
RIGHT OF THE BANK, ITS SUCCESSORS OR ASSIGNS TO ANY REMEDY OR COMBINATION OF
REMEDIES THAT ENABLES THE BANK, ITS SUCCESSORS OR ASSIGNS, BY WAY OF ATTACHMENT,
FOREIGN ATTACHMENT, GARNISHMENT OR REPLEVIN TO DEPRIVE DEBTOR OF ITS PROPERTY AT
ANY TIME PRIOR TO FINAL JUDGMENT IN ANY LITIGATION INSTITUTED IN CONNECTION WITH
THIS AGREEMENT AND ANY TRANSACTIONS SECURED HEREBY, AND FURTHER WAIVES ALL
RIGHTS TO REQUEST THAT THE BANK POST A BOND, WITH OR WITHOUT SURETY, TO PROTECT
DEBTOR AGAINST DAMAGES THAT MAY BE CAUSED BY ANY SUCH REMEDY OR REMEDIES.
(b) DEBTOR AND THE BANK IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY
PROCEEDINGS HEREAFTER INSTITUTED BY OR AGAINST THE DEBTOR OR THE BANK IN RESPECT
OF THIS AGREEMENT, ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING
OR SECURING THE OBLIGATIONS HEREBY SECURED OR THE COLLATERAL.
(c) THE DEBTOR WAIVES NOTICE OF NON-PAYMENT, DEMAND, PRESENTMENT, PROTEST OR
NOTICE OF PROTEST OF THE COLLATERAL AND ALL OTHER NOTICES, CONSENTS TO ANY
RENEWALS OR EXTENSIONS OF TIME OF PAYMENT THEREOF AND GENERALLY WAIVES ANY AND
ALL SURETYSHIP DEFENSES AND DEFENSES IN THE NATURE THEREOF, INCLUDING WITHOUT
LIMITATION, IMPAIRMENT OF COLLATERAL.
IN WITNESS WHEREOF, Debtor has duly authorized and executed this Agreement as a
sealed agreement this 11th day of February, 2008.
WITNESSES:
DEBTOR:
CAS MEDICAL SYSTEMS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its Chief Financial Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
12
SECURED PARTY:
NEWALLIANCE BANK
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
13
STATE OF CONNECTICUT)
) ss: New Haven
COUNTY OF NEW HAVEN)
On this February 11, 2008 before me, the undersigned officer, personally
appeared ▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged herself to be a Vice President of
NewAlliance Bank, and that she, as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained as her free
act and deed and the free act and deed of said Bank, by signing the name of said
Bank by herself as such officer.
In Witness Whereof I hereunto set my hand.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Commissioner of the Superior Court
STATE OF CONNECTICUT)
) ss: New Haven
COUNTY OF NEW HAVEN)
On this February 11, 2008 before me, the undersigned officer, personally
appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇ who acknowledged himself to be the Chief Financial
Officer of CAS Medical Systems, Inc., a Delaware corporation, and that he, as
such officer, being authorized so to do, executed the foregoing instrument for
the purposes therein contained as his free act and deed and the free act and
deed of said corporation.
In Witness Whereof I hereunto set my hand.
▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Commissioner of the Superior Court
14
Schedule A-Exceptions to Section I
15
Schedule B- Exceptions to Section II Covenants
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Schedule I (d) Permitted Liens
Schedule I (d) Permitted Liens
1. The Liens for taxes not yet due and payable, or which are being contested
in good faith by appropriate proceedings with appropriate reserves in
accordance with GAAP,
2. Pledges or deposits in connection with or to secure worker's compensation,
unemployment insurance, pensions, or other employee benefits;
3. Purchase money security interests in the maximum aggregate sum of up to
$150,000.00 at any one time;
4. UCC Financing Statement in favor or Banc of America Leasing & Capital, LLC
filed on 1/10/07 as Filing No. 2007-0117068 (Copier);
5. UCC Financing Statement in favor of Banc of America Leasing & Capital, LLC
filed on 1/10/07 as Filing No. 2007-0118629 (Copiers);
6. UCC Financing Statement in favor of Banc of America Leasing & Capital, LLC
filed on 8/14/07 as Filing No. 2007-3091070 (Copier and related equipment);
7. UCC Financing Statement in favor of Fleetwood Financial, a division of IDB
Leasing, Inc. filed on 8/16/07 as Filing No. 2007-3121430 (Telephones and
related equipment);
8. UCC Financing Statement in favor of New Haven Savings Bank nka NewAlliance
Bank filed on 9/29/03, as Filing No. 3262047-7 (Fixtures, equipment and all
other personal property);
9. UCC Financing Statement in favor of NewAlliance Bank filed on 5/18/05, as
Filing No. 5162842 (Personal Property and fixtures);
10. UCC Financing Statement in favor of New Haven Savings Bank nka NewAlliance
Bank filed on 9/1/98 as Filing No. 001873848. As amended by Amendment filed
on 1/19/99 as Filing No. 0001901427 and continued by on 4/10/03 as Filing
No. 2196332 (All rents incomes and other profits, building materials,
supplies, equipment and fixtures); and
11. UCC Financing Statement in favor of New Haven Savings Bank nka NewAlliance
Bank filed on 8/6/01 by Filing No. 0002087342 and continued on 3/21/06 as
Filing No. 0002382729 (All rentals, accounts receivable, contract rights,
general intangibles, apparatus, appliances, fixtures, furniture,
furnishings and equipment and personal property).
17