SECURITY AGREEMENT BY AND BETWEEN GLAZER FAMILY PARTNERSHIP LP AND PATIENT SAFETY TECHNOLOGIES, INC.
BY
AND BETWEEN ▇▇▇▇▇▇ FAMILY PARTNERSHIP LP
▇▇▇▇▇▇
Family Partnership LP (“Secured Party”) and Patient Safety Technologies, Inc., a
Delaware corporation (“Debtor”) agree as follows:
1.
GRANT
OF SECURITY INTEREST.
1.1
The Debtor, jointly and severally, hereby grants to the Secured Party a security
interest in personal property and fixtures, inventory, products and proceeds
(including proceeds of proceeds, the “Collateral”) of Debtor, as security
for:
1.1.1
The satisfaction and the prompt and full performance of all of Debtor’s
obligations under that certain Secured Promissory Note (the “Note”) dated
January 5, 2006 in the principal amount of one hundred thirty thousand dollars
($130,000.00) plus interest at the rate of seven percent (7% ) annually, as
the
Note may be amended, modified, or extended from time to time (including, without
limitation, the obligation to make payments of principal and interest thereon);
and
1.1.2
The full, faithful, true and exact performance and observance of all of the
obligations, covenants and duties of Debtor under this Security Agreement,
as
the same may be amended, modified, or extended from time to time.
2.
DEFAULT.
Any of
the following events shall constitute an event of default
hereunder:
2.1
The failure by Debtor to make full and timely payment when due of any sum as
required to be paid to Secured Party under the Note after any applicable notice
of non-payment provided for in the Note has been given, and any period within
which to cure the non-payment has elapsed, if applicable. A true and correct
copy of the Note is attached hereto as Exhibit “A” and incorporated herein by
this reference.
2.2
The failure by Debtor to fully and timely perform any covenant, agreement,
obligation or duty imposed on Debtor by this Security Agreement or any other
agreement by and between Debtor and Secured Party now existing or hereinafter
made.
2.3
The filing by Debtor of any petition, or commencement by Debtor of any
proceeding, under the Bankruptcy Act or any state insolvency law.
2.4
The making by Debtor of any general assignment for the benefit of
creditors.
2.5
The filing of any petition, or commencement of any proceeding, under the
Bankruptcy Act or any state insolvency law, against Debtor, or the appointment
of any receiver or trustee, which petition, proceeding or appointment is not
fully and completely discharged, dismissed or vacated within sixty (60)
days.
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2.6
Any warranties made by Debtor are untrue in any material respect, or any
schedule, statement, report, notice, or writing furnished by Debtor to the
Secured Party are untrue in any material respect on the date as of which the
facts set forth are stated or certified.
3.
INSPECTION
OF RECORDS.
Secured
Party shall have the right without
notice
to
inspect all financial books, records and reports of Debtor at Debtor’s premises
or wherever the same may be maintained during normal business
hours.
4.
REMEDIES UPON DEFAULT.
4.1
Upon the occurrence of an event of default, in addition to any and all other
remedies at law or in equity available to Secured Party, Debtors hereby
authorize and empower Secured Party, at Secured Party’s option and without
notice to Debtor, except as specifically provided herein (and, to the extent
necessary, hereby irrevocably appoint Secured Party as Debtor’s attorney-in-fact
for such purposes):
4.1.1
To require Debtor to assemble any and all of the Collateral and make the same
available to Secured Party at the premises wherein the same is located, or
any
other place designated by Secured Party; Secured Party may enter upon any
premises where any of the Collateral is located and may take possession of
the
same without judicial process and without the need to post any bond or security
as an incident thereto; and
4.1.2
To sell, assign, transfer and deliver the whole or any part of the Collateral
at
public or private sale, for cash, upon credit, or for future delivery, in bulk
or item by item, at such prices and upon such terms as are commercially
reasonable, given the nature of the Collateral and the market therefor, with
or
without warranties, without the necessity of the Collateral being present at
any
such sale or in view of the prospective purchasers thereof, and without any
presentment, demand for performance, protest, notice of protest, or notice
of
dishonor except as set forth herein, any other such advertisement, presentment,
demand or notice being expressly waived by Debtors to the extent permitted
by
law. At any public sale or sales of the Collateral, Secured Party or Secured
Party’s assigns may bid for and purchase all or any part of the Collateral
offered for sale and upon compliance with the terms of such sale, may hold,
exploit and dispose of such Collateral discharged from all claims of Debtor,
except to the extent that Debtor has rights in the proceeds of such sale or
sales, and free from any right or redemption, all of which are hereby expressly
waived and released, and may in paying the purchase price thereof, in lieu
of
cash assignment at the face amount thereof, together with any interest accrued
thereon, all or any part of unpaid principal or interest or both, payable under
the Note. Secured Party may also purchase all or any part of the Collateral
at
any private sale thereof to the extent that such Collateral is customarily
sold
in a recognized market or is the subject of a widely or regularly distributed
standard price quotation. Upon conclusion of any such public or private sale,
Secured Party may execute and deliver a ▇▇▇▇ of sale to the assets so sold,
in
the name of Debtor. Secured Party may use Debtor’s premises for the purpose of
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conducting
of any such sale. Secured Party shall give Debtor seven (7) days’ notice, in
writing, of the time and place thereof, and in the case of a public sale, the
date thereof and the name of the purchaser. Notice shall be deemed given when
deposited in the United States mail, postage prepaid, certified or registered,
and addressed to Debtor at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇
▇▇▇▇▇. Secured Party shall only be required to publish an advertisement of
a
public sale, which advertisement may be published in a newspaper of general
circulation no later than seven (7) days prior to the date of sale, and an
advertisement so published shall be deemed commercially reasonable if it merely
gives the place, time, and date of sale, merely identifies the Collateral by
classification without describing quantity or quality; provided, however that
such advertisement may, at Secured Party’s option, contain additional
information. Debtor acknowledges that Secured Party may accept any offer
received, provided it is commercially reasonable, that Secured Party, at Secured
Party’s option, need not approach more than one possible purchaser, and that
Secured Party shall, to the fullest extent permitted by law, be relieved from
all liability or claim for inadequacy of price if the manner and terms of sale
comply with the terms of this Security Agreement.
4.2
In the event of any such sale by Secured Party of all or any of said Collateral
on credit, or for future delivery, such property so sold may be retained by
Secured Party until the selling price is paid by the purchaser. Secured Party
shall incur no liability in case of the failure of the purchaser to take up
and
pay for the property so sold. In case of any such failure, said Collateral
may
be again, and from time to time, sold.
4.3
In the event of any such sale or disposition, the proceeds thereof shall be
applied first to the payment of the expenses of the sale, commissions, actual
attorneys’ fees, and all other charges paid or incurred by Secured Party in
taking, holding, selling , advertising, or otherwise preparing such Collateral
for sale or otherwise in connection with maintaining the security of such
Collateral, including any taxes or other charges imposed by law upon the
Collateral and/or the ownership, holding or transfer thereof; secondly, to
pay,
satisfy and discharge all indebtedness of Debtor to Secured Party secured hereby
then due and payable pursuant to the Note; thirdly, to the extent that Debtor
may still have monetary obligations to Secured Party not yet due and payable,
Secured Party may retain any surplus as collateral for the payment of such
sums
when due; and fourthly, if all of the secured obligations are then discharged
and satisfied, to pay the surplus, if any, to Debtor. Secured Party shall look
only to the assets of the business then operated and/or owned by Debtor to
satisfy any and all claims, defaults or breaches regarding the Note and shall
not in any event, look to any other assets of Debtor to satisfy
same.
4.4
Secured Party shall not be liable or responsible for safeguarding the
Collateral, or any portion thereof, or maintaining the condition thereof, or
for
any loss or damage thereto and diminution in value of the Collateral either
through loss or non-collection. Secured Party shall not be liable or responsible
for any act or default of any carrier or warehouseman or of any other person,
other than that occasioned by the gross negligence and willful misconduct of
Secured Party.
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5.
REPRESENTATIONS
AND WARRANTIES.
Debtor
represents and warrants that
this
Security Agreement has been duly and validly authorized, executed and delivered
by Debtor and constitutes a valid and binding agreement, enforceable in
accordance with its terms, and the execution and delivery of this Security
Agreement do not violate, or constitute a default (with or without the giving
of
notice, the passage of time, or both) under any order, judgment, agreement,
contract, or instrument to which Debtor is a party or by which Debtor is
affected or may be bound. Debtor represents that Debtor will at all times
maintain the Collateral in good state of repair and condition consistent
with
good business practice, including replacement of damaged, destroyed, or obsolete
parts thereof, will pay any and all taxes thereon or applicable thereto prior
to
delinquency, and shall maintain at all times insurance thereon against risk
of
fire and other such risks as are covered by “extended coverage”, theft, burglary
and vandalism. Such policy or policies shall provide that any loss thereunder
and proceeds payable thereunder shall be payable to Secured Party as Secured
Party’s interest may appear.
6.
INDEMNITY.
In the
case of any adverse claim with respect to the Collateral or any
portion thereof arising out of any act done, or permitted or acquiesced in
by
Debtor, Debtor indemnifies and agrees to hold Secured Party harmless from
and
against any and all claims, losses, liabilities, damages, expenses, costs
and
actual attorneys’ fees incurred by Secured Party in or by virtue of exercising
any right, power or remedy of Secured Party hereunder or defending, protecting,
enforcing or prosecuting the security interest hereby created. Any such loss,
cost, liability, damage or expense so incurred shall be repaid upon demand
by
Secured Party and until so paid shall be deemed a secured obligation
hereunder.
7.
NO
WAIVER BY SECURED PARTY.
Any
forbearance, failure, or delay by Secured
Party in exercising any right, power or remedy hereunder shall not be deemed
to
be a waiver of such right, power, or remedy, and any single or partial exercise
of any right, power, or remedy of Secured Party shall not preclude the later
exercise of any other right, power, or remedy, each of which shall continue
in
full force and effect until such right, power, or remedy is specifically
waived
by an instrument in writing, executed by Secured Party.
8.
EFFECTIVENESS
OF AGREEMENT.
This
Security Agreement and Debtors’ duties
and obligations and Secured Party’s powers to dispose of the Collateral, and all
other rights, powers and remedies granted to Secured Party hereunder shall
remain in full force and effect until Debtor has satisfied and discharged
all of
Debtor’s obligations to Secured Party secured thereby.
9.
WAIVER
BY DEBTOR.
All
provisions of law, in equity and by statute providing
for, relating to, or pertaining to pledges or security interests and the
sale of
pledged property or property in which a security interest is granted, or
which
prescribe, prohibit, limit or restrict the right to, or conditions, notice
or
manner of sale, together with all limitations of law, in equity, or by statute,
on the right of attachment in the case of secured obligations, are hereby
expressly waived by Debtor to the fullest extent Debtor may lawfully waive
same.
10.
RELEASE
OF COLLATERAL.
Upon
payment in full by Debtor, in lawful money
of
the United States of America, to Secured Party at the address set forth in
the
Note of all amounts secured hereby, and performance of all other obligations
of
Debtor under this Security Agreement, together with any interest thereon
and any
costs and expenses incurred by Secured Party in the enforcement of this Security
Agreement or of any of Secured Party’s rights hereunder, or in the enforcement
of any other agreements (whether heretofore or hereafter entered into) between
Debtor and Secured Party, or any of the rights of Secured Party thereunder,
and
upon the request of Debtor therefore, Secured Party will deliver to Debtor,
at
Debtor’s sole cost and expense, such termination statements and such other
documents of release, reconveyance and reassignments as shall be sufficient
to
discharge Debtor of the liabilities secured hereby and to terminate and release
the security interest in the Collateral created hereby.
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11.
MISCELLANEOUS.
11.1
This Security Agreement and all of the rights and duties in connection herewith
shall be governed by and construed in accordance with the laws of the State
of
California thereof without giving effect to principles governing conflicts
of
law.
11.2
This Security Agreement and all of its terms and provisions shall be binding
upon the heirs, successors, transferees and assigns of each of the parties
hereto.
11.3
In the event any portion of this Security Agreement is held invalid, the
remaining portions shall remain in full force and effect as if that invalid
portion had never been a part hereof.
11.4
In the event litigation is commenced to enforce or interpret this Security
Agreement, or any provision hereof, the prevailing party shall be entitled
to
recover its actual costs and attorneys’ fees.
11.5
This Security Agreement may be amended only by written consent of each of the
parties hereto.
11.6
Any and all notices, demands, requests, or other communications required or
permitted by this Security Agreement or by law to be served on, given to, or
delivered to any party hereto by any other party to this Security Agreement
shall be in writing and shall be deemed duly served, given, or delivered when
personally delivered to the party, or in lieu of such personal delivery, when
deposited in the United States mail, first-class postage prepaid addressed
to
the party at the address herein appearing.
11.7
This Security Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained herein and supercedes all prior
and
contemporaneous agreements, representations and understandings of the parties.
No waiver of any of the provisions of this Security Agreement shall be deemed,
or shall constitute a waiver of any other provision, whether or not similar,
nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
11.8
This Security Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The exhibits attached
hereto are made a part hereof and incorporated herein.
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11.9
Nothing in this Security Agreement, whether express or implied, is intended
to
confer any rights or remedies under or by reason of this Security Agreement
on
any persons other than the parties to it and their respective successors and
assigns, nor is anything in this Security Agreement intended to relieve or
discharge the obligations or liability of any third persons to any party to
this
Security Agreement, nor shall any provision give any third person any right
of
subrogation or action against any party to this Security Agreement.
11.10
Each party’s obligations under this Security Agreement is unique. If any party
should default in its obligations under this Security Agreement, the parties
each acknowledge that it would be extremely impracticable to measure the
resulting damages; accordingly, the non-defaulting party, in addition any other
available rights or remedies, may ▇▇▇ in equity for specific performance without
the necessity of posting a bond or other security, and the parties each
expressly waive the defense that a remedy in damages will be adequate.
11.11
All representations, warranties and agreements of the parties contained in
this
Security Agreement, or in any instrument, certificate, opinion or other writing
provided for in it, shall survive the completion of all acts contemplated
herein.
11.12
Whenever the context of this Security Agreement requires, the masculine gender
includes the feminine or neuter gender, and the singular number includes the
plural.
11.13
As used herein, the word “days” shall refer to calendar day, including holidays,
weekends, non-business days, etc.
11.14
The captions contained herein do not constitute part of this Security Agreement
and are used solely for convenience and shall in no way be used to construe,
modify, limit or otherwise affect this Security Agreement.
IN
WITNESS WHEREOF, this Security Agreement is executed on the date first set
forth
above at Los Angeles County, California.
|
DEBTOR
|
SECURED
PARTY
|
|
PATIENT
SAFETY TECHNOLOGIES,
|
▇▇▇▇▇▇
FAMILY PARTNERSHIP LP
|
|
INC.
|
|
|
/s/
▇▇▇▇▇▇
▇▇▇▇
|
/s/
▇▇▇▇▇▇
▇▇▇▇
|
|
BY:
▇▇▇▇▇▇ “▇▇▇▇” ▇▇▇▇ III
|
BY:
▇▇▇▇▇▇ “▇▇▇▇” ▇▇▇▇ III
|
|
TITLE:
Chairman and Chief Executive
|
TITLE:
Managing Director
|
|
Officer
|
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