Exhibit 2.1
LOAN AGREEMENT
THIS AGREEMENT dated January 19, 1993
BETWEEN:
UNILENS CORP. USA, a corporation subsisting under the laws
of the State of Delaware having an office at ▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
("Unilens USA")
AND:
UNILENS VISION INC., (Incorporation No. 257974) a British
Columbia company having an office at 1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
("Unilens Canada")
(Unilens USA and Unilens Canada are herein collectively
referred to from time to time as the "Borrowers")
AND:
EBC ZURICH AG, of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(the "Lender")
WITNESS THAT WHEREAS:
A. The Borrowers have requested and the Lender has agreed to provide the
Borrowers with a secured non-revolving loan of up to the aggregate principal
amount of $450,000 U.S. (the "Loan") on the terms and conditions set forth
herein;
B. The Loan is to be advanced by the Lender to Unilens USA;
C. It is a condition of the availability of the Loan that Unilens Canada
covenant and agree jointly and severally with Unilens USA to repay the Loan and
interest thereon;
D. In consideration of and as a bonus and incentive for the Loan, Unilens
Canada has agreed to issue the Warrants to the Lender; and
E. Unilens Canada will directly or indirectly benefit from the Loan being
advanced to Unilens USA;
THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree each
with the other as follows:
I INTERPRETATION
--------------
1.1 Definitions
-----------
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith:
"Agreement" means this agreement as amended and in effect from time to
time;
"Ancillary Documents" means, collectively, the Security Agreements,
the Promissory Notes, the Pledge Agreement, the Postponement
Agreements and the Warrants;
"Bonus Warrants" means share purchase warrants in the form attached
hereto as Schedule H to be issued by Unilens Canada in favour of the
Lender pursuant to Clause 7.1 expiring five (5) years from the date of
this Agreement entitling the Lender to purchase up to 90,000 shares of
Unilens Canada at an exercise price of $2.00 U.S. per share increasing
$0.25 U.S. per share each year, or such greater number of shares
and/or lower exercise price as may be approved by the VSE and agreed
to by Unilens Canada and the Lender;
"Borrowers" means, collectively, Unilens USA and Unilens Canada and
their respective successors and assigns;
2
"Citibank Base Rate" means the annual rate of interest announced
publicly by Citibank, N.A. in New York, New York, from time to time,
as Citibank, N.A.'s base rate which rate was six percent (6%) per
annum as at January 14, 1993;
"Date of Advance" means the date on which the first advance of the
Loan is made hereunder;
"Detachable Warrants" means share purchase warrants in the form
attached hereto as Schedule H to be issued by Unilens Canada in favour
of the Lender pursuant to Clause 7.1 expiring five (5) years from the
date of this Agreement entitling the Lender to purchase up to 225,000
shares of Unilens Canada at an exercise price of $2.00 U.S. per share
increasing $0.25 cents U.S. per share each year, or such greater
number of shares and/or lower exercise price as may be approved by the
VSE and agreed to by Unilens Canada and the Lender;
"Event of Default" has the meaning ascribed thereto in Clause 9.1;
"Financial Statements" means the audited consolidated financial
statements of the Borrower for the fiscal year ending June 30, 1992
and the unaudited financial statements for the period ended September
30, 1992 copies of which are attached hereto as Schedule B;
"Loan" means the non-revolving loan of up to the principal amount of
$450,000 U.S. to be made by the Lender to the Borrowers pursuant to
this Agreement;
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System;
"person" includes a corporation, an individual, a partnership, a joint
venture, a trust, an unincorporated organization, and a government or
any department or agency thereof;
3
"Pledge Agreement" means the pledge substantially in the form attached
hereto as Schedule F to be granted by Unilens Canada in favour of the
Lender pursuant to Clause 6.1 whereby Unilens Canada pledges all
issued and outstanding shares of Unilens USA to the Lender as security
for, inter alia, the Loan;
"Postponement Agreements" means the postponement agreements
substantially in the form attached hereto as Schedule G to be executed
and delivered by each of the Borrowers in favour of the Lender
pursuant to Clause 6.1;
"Promissory Notes" means promissory notes substantially in the form
attached hereto as Schedule C evidencing each advance of the Loan to
be granted by the Borrowers in favour of the Lender pursuant to Clause
6.1;
"Security Agreements" means, collectively, the Unilens Canada Security
Agreement and the Unilens USA Security Agreement;
"Unilens Canada Security Agreement" means the security agreement
substantially in the form attached hereto as Schedule D to be granted
by Unilens Canada in favour of the Lender pursuant to Clause 6.1 as
security for all present and future indebtedness of Unilens Canada to
the Lender and creating a security interest in all present and
after-acquired personal property and a floating charge on all present
and after-acquired real property, as amended and in effect from time
to time;
"Unilens USA Security Agreement" means the security agreement
substantially in the form attached hereto as Schedule E to be granted
by Unilens USA in favour of the Lender pursuant to Clause 6.1 as
security for all present and future indebtedness of Unilens USA to the
Lender and creating a security interest in all present and
after-acquired personal property and a floating charge on all present
and after-acquired real property, as amended and in effect from time
to time;
4
"VSE" means the Vancouver Stock Exchange; and
"Warrants" means the Bonus Warrants and the Detachable Warrants.
1.2 Currency
--------
All reference to monetary amounts are, unless otherwise stated,
references to lawful money of the United States.
1.3 Governing Law
-------------
This Agreement shall be governed by and be construed in accordance
with the laws of the Province of British Columbia and Canadian federal laws
applicable in the Province of British Columbia.
1.4 Severability
------------
If any covenant, obligation or agreement contained herein or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder or this Agreement or the application of
such covenant, obligation or agreement to such person or circumstance other than
those to which it is held invalid or unenforceable, shall not be effected
thereby and each covenant, obligation and agreement contained herein shall be
separately valid and enforceable to the fullest extent permitted by law.
1.5 Enurement
---------
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
1.6 Schedules
---------
The Schedules to this Agreement, which form part hereof, are:
Schedule A -- Authorized and Issued Capital
Schedule B -- Financial Statements
Schedule C -- Promissory Note
Schedule D -- Unilens Canada Security Agreement
Schedule E -- Unilens USA Security Agreement
Schedule F -- Pledge Agreement
Schedule G -- Postponement Agreements
Schedule H -- Form of Warrants
Schedule I -- Opinions
5
II LOAN
----
2.1 Amount and Purpose of Loan
--------------------------
Subject to the terms and conditions hereof, the Lender will lend to
the Borrowers up to the principal amount of $450,000 U.S. by way of one or more
advances to be advanced to Unilens USA to be used for the purpose of financing
the operations of Unilens USA.
2.2 Interest
--------
The Borrowers will pay interest from and including the Date of Advance
on the amount of the Loan outstanding from time to time, after as well as before
each of maturity, default and judgment, in accordance with the following
provisions:
(a) the Loan will bear interest at a rate per annum which is equal to the
Citibank Base Rate plus three percent (3%) per annum;
(b) the rate of interest on the Loan will be adjusted automatically on the
effective date of any change in the Citibank Base Rate;
(c) interest will accrue from day to day on the basis of a year of 365 or
366 days, as the case may be;
(d) interest will be payable monthly on the 1st day of each and every
month; and
(e) if the Borrowers fail to make any payment of interest, the Borrowers
will pay compound interest thereon computed on the first day of each
month until paid.
2.3 Principal
---------
The principal balance of the Loan together with all accrued and unpaid
interest thereon shall be paid in full ON DEMAND which demand may be made at any
time after January 31, 1995.
6
2.4 Place of Payment
----------------
All payments to be made by the Borrowers to the Lender hereunder will
be made to the Lender at its offices at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
2.5 Prepayment
----------
The Borrowers shall have the right to prepay the principal balance of
the Loan in whole but not in part together with all accrued and unpaid interest
thereon and all other monies due hereunder at any time after January 31, 1995
provided that the Lender is given 60 days' prior notice (which notice may be
given at any time on or after the 60th day prior to January 31,1995) to permit
the Lender to exercise the Warrants in whole or in part and apply the principal
balance of the Loan to the purchase price of such shares pursuant to Clause 7.2
hereof prior to such payment.
2.6 Withholding Tax
---------------
If the Borrowers are required to make any deduction or withholding of
tax from any sum payable by the Borrowers to the Lender hereunder, then the sum
payable by the Borrowers in respect of which such deduction is required to be
made shall be increased to the extent necessary to ensure that after making such
deduction or withholding the Lender receives and retains (free from any
liability in respect of such deduction or withholding) a sum equal to the sum
which it would have received and retained had no such deduction or withholding
been made or required to be made; provided that if the amount of the increase
required under this Clause 2.6 is creditable by the Lender against taxes payable
by the Lender in the Lender's jurisdiction then the Lender shall reimburse the
Borrowers by an amount equal to the amount of the said increase which is so
creditable, and if the amount of the increase is deductible rather than
creditable against taxes payable in the Lender's jurisdiction then the Lender
shall reimburse the Borrowers by an amount equal to the product of the amount
of the said increase and the applicable tax rate levied in the said jurisdiction
to which the said increase is subject. If the Borrowers make any payment
hereunder in respect of which they are required to make any deduction or
withholding, the Borrowers shall pay the full amount required to be deducted or
withheld to the relevant taxation or other authority within the time allowed for
such payment under applicable law and shall promptly deliver to the Lender a
receipt issued by such authority evidencing such payment.
7
2.7 Acceleration
------------
At the sole option of the Lender, the principal balance of the Loan
together with all accrued and unpaid interest thereon and all other monies due
hereunder shall become immediately due and payable upon the occurrence of an
Event of Default.
III JOINT AND SEVERAL LIABILITY
---------------------------
3.1 Joint and Several Obligations
-----------------------------
The Loan shall be advanced to Unilens USA but shall be deemed to have
been made to both of the Borrowers and all obligations in respect of the
repayment of the Loan and interest thereon and all other amounts which may
become payable to the Lender hereunder shall be deemed to be joint and several
obligations of the Borrowers.
3.2 Lender May Grant Extensions
---------------------------
No obligation, liability or undertaking whatsoever of, and no security
whatsoever given by either of the Borrowers hereunder or under any agreement,
document or instrument in connection with the Loan, shall be limited or affected
by the granting of time, renewals, extensions, releases or discharges by the
Lender to both of the Borrowers or to any guarantor or other person or persons
whomsoever.
3.3 Exhaustion of Remedies
----------------------
The Lender shall not be bound to exhaust recourse against any one of
the Borrowers or any guarantor or other person prior to being entitled to
payment from any one of the Borrowers.
3.4 Prohibition
-----------
Until all sums owing to the Lender by the Borrowers under this
Agreement have been paid in full, each of the Borrowers shall not, without the
prior written consent of the Lender:
(a) be entitled and shall not assert or claim to have the benefit of any
right of set-off or counterclaim against the other Borrower; nor
8
(b) be entitled to and shall not assert any claim to have the benefit of
any payments made by or on behalf of or for the account of the other
Borrower or be subrogated to any of the rights of the Lender against
the other Borrower or to have the benefit of any security or monies
held by or for the account of the Lender, and the Lender shall be
entitled to apply such security and monies as it sees fit.
3.5 Insolvency of Borrower
----------------------
Each of the Borrowers shall claim and prove in respect of any and all
debts and liabilities of the other Borrower to it in any insolvency,
composition, scheme or arrangement, liquidation or winding-up, voluntary or
involuntary, affecting the other Borrower or any distribution of assets of the
other Borrower among creditors, and all dividends or other sums which may be or
become payable in respect thereof shall be held in trust for, and promptly paid
to, the Lender until the Lender shall have received all sums owing by the
Borrowers under this Agreement and the Ancillary Agreements.
IV COVENANTS OF THE BORROWERS
--------------------------
4.1 General Covenants
-----------------
The Borrowers hereby jointly and severally covenant and agree with the
Lender that so long as the Loan or any part thereof remains outstanding, each of
the Borrowers will:
(a) duly and punctually pay or cause to be paid to the Lender all amounts
required to be paid to it pursuant to this Agreement on the day, at
the place, in the monies and in the manner set forth herein;
(b) duly observe and perform each and all of its covenants and agreements
as set forth in this Agreement and in the Ancillary Documents;
(c) use the proceeds of the Loan only for the purposes specified in Clause
2.1;
(d) at all times maintain its corporate existence and will carry on and
conduct its businesses in a proper and efficient manner, and will keep
9
or caused to be kept proper books of account and will submit to the
Lender within 120 days after the close of each fiscal year a copy of
its annual audited financial statements; and
(e) submit to the Lender within 30 days of the completion of each quarter
fiscal year unaudited financial statements in respect of such quarter.
4.2 Negative Covenants
------------------
The Borrowers jointly and severally covenant and agree that so long as
the Loan or any part thereof remains outstanding, each of the Borrowers will
not, without the prior written consent of the Lender, such consent not to be
unreasonably withheld:
(a) declare or pay or set aside for payment any dividend or otherwise make
distribution with respect to its shares, or voluntarily purchase,
redeem, acquire or retire any shares of any class;
(b) lend money to or invest money in any person, whether by way of loan,
acquisition of shares, acquisition of debt obligations or in any other
manner whatsoever except in the ordinary course of business, provided
that Unilens Canada may make loans to Unilens USA;
(c) guarantee or otherwise become surety for or upon the obligations of
others except in the ordinary course of business;
(d) consolidate or amalgamate with or merge into any other person;
(e) pay or set aside for payment any bonus, management fee or other
non-salary remuneration to any of its employees, directors or
officers; or
(f) issue or agree to issue any shares or any securities convertible to
shares of the Borrowers or enter into or grant any rights, plans,
options, warrants or agreements for the purchase or acquisition of any
shares of the Borrowers, save and except for the Warrants and any
shares issuable thereunder, and provided that Unilens Canada may upon
10
notice to the Lender issue in the ordinary course of business to the
directors and officers of Unilens Canada incentive stock options to
purchase shares of Unilens Canada in accordance with the policies of
the VSE as may from time to time be in effect.
4.3 Covenants of Unilens Canada
---------------------------
Unilens Canada covenants and agrees that so long as the Loan or any
part thereof remains outstanding, it will:
(a) ensure that all shares issued by it from time to time upon any
exercise of the Warrants are listed and posted for trading on the VSE
and NASDAQ and will not de-list its securities from either the VSE or
NASDAQ without obtaining the prior written consent of the Lender;
(b) make all filings and payments required to be made, and to take all
actions required, to ensure that it is not in default of its listing
agreement with either the VSE or NASDAQ;
(c) make all requisite filings under applicable securities legislation
including those necessary to remain a reporting issuer not in default;
and
(d) make any filing or take any other action which in the opinion of the
Lender or its solicitors is required to be made with any regulatory
authority in order for any of its shares to be properly and legally
issued pursuant to any exercise of the Warrants, all such filings and
action to be taken and made at its sole expense.
V REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
-----------------------------------------------
5.1 The Borrowers jointly and severally represent and warrant to the
Lender as follows, which representations and warranties shall survive the
execution and delivery of this Agreement and all instruments and agreements
delivered pursuant hereto and the advance of the Loan:
11
(a) each of the Borrowers has full power, authority, capacity and legal
right to enter into and to perform this Agreement and all instruments
and agreements delivered pursuant hereto;
(b) the execution, delivery and performance of this Agreement and all
instruments and agreements delivered pursuant hereto, has been duly
authorized by all necessary corporate action on the part of the
Borrowers and will not violate any provision of the Borrowers'
constating documents or any agreement to which they are party, and
this Agreement and those Ancillary Documents to which the Borrowers
are party constitute legal, valid and binding obligations of each of
the Borrowers enforceable against the Borrowers in accordance with
their respective terms except as limited by applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights and
rules or laws concerning equitable remedies;
(c) shares of Unilens Canada when issued upon any exercise of the Warrants
will be duly authorized, validly issued and fully paid (upon payment
or satisfaction of the subscription price therefor) and the
certificates representing the said shares shall be duly issued and
delivered and will be free of any liens, encumbrances and security
interests, save and except for any hold periods and trading
restrictions which may be imposed under applicable securities
legislation or the rules and policies of the VSE or NASDAQ;
(d) the authorized and issued capital of each of the Borrowers is as set
forth in Schedule A hereto;
(e) Unilens Canada is the registered and beneficial owner of all issued
and outstanding shares in the capital of Unilens USA free and clear of
all liens, encumbrances and security interests and other rights of
others of any kind or nature whatsoever (including assignments, voting
agreements, voting trusts, shareholder agreements, rights of first
refusal and rights under proxies), save and except for the Pledge
Agreement and the Unilens Canada Security Agreement;
12
(f) except for the Warrants and except as disclosed in Schedule A hereto,
there are no outstanding rights, plans, options, warrants, conversion
rights or agreements for the purchase or acquisition from any of the
Borrowers of any shares or any securities convertible to shares of the
Borrowers;
(g) there are no pending or threatened claims against the Borrowers
alleging that the conduct of the Borrowers' businesses infringes or
conflicts with the rights of others under patents, trademarks,
copyrights, and trade secrets and, to the best of the Borrowers'
knowledge, no reasonable basis exists for belief that any such claim
is probable or capable of successful exertion;
(h) to the best of the Borrowers' knowledge, the Borrowers' businesses as
now conducted and as proposed to be conducted do not infringe or
conflict with the rights of others, including rights under patents,
trademarks, copyrights, trade secrets and other industrial or
intellectual property;
(i) the Borrowers own or possess all of the patents, copyrights,
trademarks, trade names, service marks, licenses and other rights
necessary for the operation of their businesses as now conducted or as
proposed to be conducted;
(j) Unilens Canada is duly incorporated and is validly subsisting under
the laws of the Province of British Columbia and does not carry on
business except to the extent of owning all issued and outstanding
shares in the capital of Unilens USA and of Unilens Contactlinsen AG;
(k) Unilens Contactlinsen AG does not carry on business and to the
Borrowers' knowledge the value of its assets does not exceed $50,000
U.S.;
(l) Unilens USA is duly incorporated and is validly subsisting under the
laws of the State of Delaware and, save and except for sales agents
13
located outside the State of Florida, does not carry on business in
any jurisdiction other than the State of Florida;
(m) Unilens USA does not have any assets located in any other jurisdiction
other than the State of Florida save and except for office equipment
and supplies not exceeding $10,000 in value in any one state;
(n) each of the Borrowers is duly qualified to carry on its business in
each jurisdiction in which it carries on business and has the power
and authority to enter into and perform its obligations under this
Agreement and all instruments and agreements delivered by the
Borrowers pursuant hereto;
(o) there are no claims, actions, suits or proceedings pending or
threatened against or affecting any of the Borrowers at law or in
equity which would result in any material adverse change in the
business, operations, prospects, properties, assets or conditions,
financial or otherwise, of any of the Borrowers, or in the ability of
any of the Borrowers to perform its obligations under this Agreement
or any agreement or instrument delivered pursuant hereto, and the
Borrowers are not aware of any existing grounds on which any claim
might be made or any such action, suit or proceeding might be
commenced with any reasonable likelihood of success;
(p) neither the execution or delivery of this Agreement or any agreements
or instruments delivered pursuant hereto, nor the performance thereof,
conflicts with, or results or will result in any breach of, or
constitutes a default under, any of the provisions of the constating
documents of the Borrowers or any agreements or instrument to which
any of the Borrowers is a party or by which any of the Borrowers or
any of their property and assets are bound;
(q) no event has occurred which constitutes, or with notice or lapse of
time or both would constitute, an Event of Default;
14
(r) the Borrowers have accurately prepared and timely filed all income tax
returns and other tax returns which are required to be filed, and have
paid or made provisions for the payment of, all taxes which have or
may have become due pursuant to said returns or pursuant to any
assessment which has been or may be received from any taxing authority
for the period through the date of this Agreement;
(s) the Financial Statements were prepared in accordance with generally
accepted accounting principles applied on a basis consistent with
prior years, are true and substantially correct in every material
respect and present fairly and accurately the financial condition and
position of the Borrowers as at June 30, 1992 and September 30, 1992
respectively and the results of their operations for the year or
period then ended; and
(t) since September 30, 1992:
(i) no dividends of any kind or other distribution on any shares
have been declared or paid by Unilens Canada or Unilens USA;
(ii) there has been no material adverse change in the financial
condition or position of the Borrowers and no damage, loss or
destruction materially affecting the said companies or their
assets or their right or capacity to carry on business;
(iii) the Borrowers have conducted their businesses in their usual
and normal manner;
(iv) the Borrowers have not waived or surrendered any right of
material value; and
(u) the Borrowers have no knowledge of any fact or circumstance which, if
known to the Lender, could reasonably be expected to cause the Lender
to refuse to make the Loan.
15
VI SECURITY
--------
6.1 Delivery
--------
As security for, inter alia, repayment of the Loan and payment of
interest thereon, the Borrowers shall deliver or cause to be delivered to the
Lender:
(a) Promissory Notes duly executed by both of the Borrowers in respect of
each advance of the Loan;
(b) the Unilens Canada Security Agreement duly executed by Unilens Canada;
(c) the Unilens USA Security Agreement duly executed by Unilens USA;
(d) the Pledge Agreement duly executed by Unilens Canada together with the
share certificate(s) in the name of Unilens Canada representing all
issued and outstanding shares in the capital of Unilens USA; and
(e) the Postponement Agreements duly executed by each of the Borrowers.
6.2 Intellectual Property
---------------------
The Borrowers shall from time to time upon request provide the Lender
with a complete and accurate list and description of all patents, industrial
designs, copyrights, trademarks, trade names, licenses and other industrial or
intellectual property of the Borrowers and shall from time to time execute and
deliver to the Lender upon request as security for the Loan, assignments and
transfers of any and all such property.
VII WARRANTS
--------
7.1 Delivery
--------
Unilens Canada shall, forthwith following acceptance for filing of
this Agreement by the VSE, issue and deliver the Warrants to the Lender.
7.2 Satisfaction of Purchase Price Upon Exercise of Warrants
--------------------------------------------------------
Unilens Canada acknowledges and confirms that the purchase price
payable for any shares subscribed for by the Lender pursuant to any exercise of
the
16
Warrants may, at the election of the Lender, be satisfied by an off-set and
reduction of the outstanding principal balance of the Loan in an amount equal to
the aggregate purchase price for such shares. In the event that the Lender so
elects, the outstanding principal balance of the Loan shall, upon delivery of
share certificate(s) representing the shares so subscribed for, be and be deemed
to be reduced and satisfied in an amount equal to the aggregate subscription
price for the shares subscribed for.
VIII CONDITIONS
----------
8.1 The obligation of the Lender to advance the Loan or any part thereof
is subject to the fulfillment of each of the following conditions precedent:
(a) the representations and warranties contained herein and in any related
agreements made in favour of the Lender shall be true and correct on
and as at the date on which the first advance of the Loan is to be
made;
(b) the Borrowers shall have issued, executed and delivered to the Lender
each of the Ancillary Documents and such other documents and
instruments as the Lender may reasonably require;
(c) the Security Agreements and the Pledge Agreement or notice thereof
shall have been registered or recorded in all offices of public record
necessary to maintain the validity and priority thereof subject to no
prior liens, encumbrances or security interests save and except for
Permitted Encumbrances as defined therein;
(d) the Lender shall have received opinions of the solicitors to the
Borrowers in form and content substantially the same as attached
hereto as Schedule I;
(e) the Lender shall have received certified copies of resolutions of the
directors of each of the Borrowers and Pineridge authorizing the
transactions contemplated herein together with such certificates of
officers of the Borrowers as the Lender's solicitors shall reasonably
request; and
17
(f) the Borrowers shall have obtained any and all consents, approvals or
authorizations required in connection with the valid issue, execution,
delivery and performance of this Agreement and the Warrants, including
without limitation approval of the VSE and NASDAQ, if required.
The foregoing conditions precedent are for the sole benefit of the Lender and
may be waived in full or in part by the Lender at any time.
IX DEFAULT
-------
9.1 Events of Default
-----------------
The Borrowers and each of them shall be in default under this
Agreement, unless waived in writing by the Lender, in any of the following
events (each of which is herein called an "Event of Default"):
(a) if the Borrowers default in payment when due of the Loan or any
interest thereon;
(b) if the Borrowers or any one of them defaults in the performance or
observance of any other term, condition or covenant contained herein
or in the Ancillary Documents or in any other agreement between the
Lender and any one of the Borrowers and such default is not remedied
within five (5) days' notice from the Lender to the Borrower
specifying such default;
(c) if any representation, warranty or statement made in this Agreement,
the Ancillary Documents or any certificate or other document delivered
to the Lender pursuant to this Agreement is untrue or incorrect in any
material respect;
(d) any one of the Borrowers declares itself to be insolvent or admits in
writing its inability to pay its debts generally as they become due,
or makes an assignment for the benefit of its creditors, is declared
bankrupt, makes or files a notice of intention to make a proposal or
18
otherwise takes advantage of provisions for relief under the
Bankruptcy and Insolvency Act, the Companies Creditors' Arrangement
Act or similar legislation in any jurisdiction, or makes an authorized
assignment; or
(e) a receiver, receiver and manager or receiver-manager of all or any
part of the assets of any one of the Borrowers is appointed; or
(f) an order is made or an effective resolution is passed for winding-up
any one of the Borrowers; or
(g) any one of the Borrowers ceases or threatens to cease to carry on all
or a substantial part of its business; or
(h) an order of execution against the assets of any one of the Borrowers
or any part thereof remains unsatisfied for a period of 10 days; or
(i) without the prior written consent of the Lender, any one of the
Borrowers creates or permits to exist any security interest in,
charge, encumbrance, lien on or claim against any assets of any one of
the Borrowers which ranks or could in any event rank in priority to or
pari passu with any of the security interests created by the Security
Agreements, save and except for Permitted Encumbrances (as defined
therein); or
(j) the holder of any other security interest, charge, encumbrance, or
lien or claim against any of the assets of the Borrowers does anything
to enforce or realize on such security interest, charge, encumbrance,
lien or claim; or
(k) any one of the Borrowers enters into an amalgamation, a merger or
other similar arrangement with any other person; or
(l) the Lender in good faith believes that the prospect of repayment of
the Loan is impaired or that any of the collateral securing the Loan
is or is about to be placed in jeopardy.
19
9.2 Waiver not to Affect Subsequent Breach
--------------------------------------
The Lender may waive default or any breach by the Borrowers hereunder.
No waiver shall extend to a subsequent breach or default, whether or not the
same as or similar to the breach or default waived. No act or omission of the
Lender shall extend to or be taken in any manner whatsoever to affect any
subsequent breach or default of the Borrowers or the rights of the Lender
resulting therefrom. Any such waiver must be in writing and signed by the Lender
to be effective.
X GENERAL
-------
10.1 Proof of Indebtedness
---------------------
The records of the Lender as to the amount outstanding hereunder, or
as to payment of any money payable hereunder or any part thereof being in
default or of any demand for payment having been made shall be prima facie proof
of such fact.
10.2 Judgment Currency
-----------------
If any amount payable by the Borrowers hereunder or in connection
herewith is received by the Lender in a currency (the "Payment Currency") other
than lawful money of the United States (the "Obligation Currency") whether as a
result of any judgment or order or the enforcement thereof or otherwise, any
amount produced by converting the Payment Currency so received, at the time of
receipt into the Obligation Currency is less than the relevant amount of the
Obligation Currency, then the Borrowers shall jointly and severally indemnify
the Lender for the deficiency and in respect of any loss sustained as a result.
The said indemnity will constitute a separate covenant and obligation of the
Borrowers independent from the Borrowers' other covenants and obligations.
10.3 Waiver or Modification
----------------------
No failure or delay on the part of the Lender in exercise of any power
or rights hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right or power preclude any other right or power
hereunder. No amendment, modification or waiver of any condition of this
Agreement or consent to any departure by the Borrowers therefrom shall in any
event be effective unless
20
the same shall be in writing signed by the Lender and nothing contained in this
Agreement may be varied, modified, abrogated, altered or compromised except by
written agreement of all parties.
10.4 Time of Essence
---------------
Time shall be of the essence hereof.
10.5 Expenses
--------
The Borrowers shall be jointly and severally liable to pay all costs,
charges and expenses paid or incurred at any time or from time to time by the
Lender for or in respect of the preparation of this Agreement and the Ancillary
Agreements, and for and in respect of any and all acts, actions and proceedings
(including legal proceedings) for the exercise, enforcement or preservation of
any of its rights, remedies or recourse hereunder and under the Ancillary
Agreements.
10.6 Assignment
----------
The Borrowers shall have no right to assign or transfer their rights
hereunder without the prior written consent of the Lender. The Lender may assign
or transfer any or all of its rights or interest hereunder or under the Loan and
the Ancillary Agreements without the prior written consent of the Borrowers.
10.7 Appropriation of Monies Received
--------------------------------
The Lender may upon the occurrence and during the continuance of an
Event of Default appropriate any monies received by it from the Borrowers or
from any security held by the Lender in or toward payment of such of the
obligations of the Borrowers as the Lender in its sole discretion may see fit.
10.8 Non-Merger
----------
The taking of any action or dealing whatsoever by the Lender in
respect of any one or more of the Borrowers or any security held by the Lender
shall not operate as a merger of any of the obligations of the Borrowers to the
Lender or in any way suspend payment or affect or prejudice the rights, remedies
and powers, legal or equitable, which the Lender may have in connection with
such obligations, and the surrender, cancellation dealing with the said security
or any part thereof shall not release or affect the obligations of the Borrowers
or any one of them or prejudice any other part of the said security.
21
10.9 Notices
-------
Any demand, request, notice or consent to be given under this
Agreement shall be in writing and shall be given by delivering or telecopying
the same addressed to the following addresses or such other addresses as may be
given in writing by one party to the other:
Unilens Vision Inc.
Unilens Corp. USA
c/o Suite 1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telecopier No. (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Unilens Corp. USA
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇)▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ Eye
EBC Zurich AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
Telecopier No. ▇▇▇-▇▇▇-▇▇▇-▇▇-▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Any such demand, request, notice or consent sent as aforesaid shall be deemed to
have been received by the party to whom it is addressed upon delivery, if
delivered, and when transmitted, if sent by telecopier or other like medium of
transmission.
9.10 Attornment
----------
Unilens USA hereby irrevocably attorns and submits to the jurisdiction
of the Courts of the Province of British Columbia, provided always that nothing
herein contained shall prevent the Lender from proceeding at its election in the
Courts of any other jurisdiction.
22
9.11 Further Assurances
------------------
Each of the parties hereto hereby covenants and agrees to execute such
further and other documents and instruments and to do such further and other
things as may be necessary to implement and carry out the intent of this
Agreement.
9.12 Entire Agreement
----------------
The provisions herein contained constitute the entire agreement
between the parties and supersede all previous communications, representations
and agreements whether verbal or written between the parties with respect to the
the subject matter hereof.
9.13 Enurement
---------
This Agreement shall enure to the benefit of the Lender and its
successors and assigns and shall be binding upon the Borrowers and their
respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on
January 19, 1993.
The CORPORATE SEAL of UNILENS
CORP. USA was hereunto affixed in the
presence of:
c/s
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, Director
The COMMON SEAL of UNILENS VISION
INC. was hereunto affixed in the
presence of:
c/s
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
EBC ZURICH AG
By: /s/ A. Fundulus
-----------------------------------
Name A. Fundulus / ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title Senior VP / Senior VP
-----------------------------
23
SCHEDULE "A" TO A LOAN AGREEMENT DATED JANUARY 19, 1993 MADE BETWEEN UNILENS
CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
Authorized and Issued Capital
-----------------------------
1. As at January 19, 1993, the authorized capital of Unilens Vision Inc.
consists of a 300,000,000 shares divided into:
(a) 100,000,000 common shares without par value;
(b) 100,000,000 Class "A Preference shares with a par value of $10.00
each; and
(c) 100,000,000 Class "B" Preference shares with a par value of $50.00
each.
2. As at January 19, 1993, the issued capital of Unilens Vision Inc. consists
of 2,757,389 common shares without par value.
3. As at January 19, 1993, a total of 40,000 common shares without par value
of Unilens Vision Inc. had been allotted and reserved for issuance pursuant
to incentive stock options.
4. As at January 19, 1993, the authorized capital of Unilens Corp. USA
consists of 10,000 shares of common stock with a par value of $1.00 US per
share, of which one share of common stock was issued and outstanding.
SCHEDULE "C" TO A LOAN AGREEMENT DATED JANUARY 19,1993 MADE BETWEEN
UNILENS CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
PROMISSORY NOTE
Vancouver, B.C.
January _________, 1993
Principal Amount: $450,000 U.S.
FOR VALUE RECEIVED, UNILENS CORP. USA, a corporation subsisting under the laws
of the State of Delaware having its head office at ▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, and UNILENS VISION INC. (collectively the "Companies") a
British Columbia company having an office at 1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, hereby jointly and severally promise to
pay to the order of EBC ZURICH AG (the "Lender"), a Swiss corporation, at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ON DEMAND which
demand may be made at any time after January 31, 1995, the sum of FOUR HUNDRED
AND FIFTY THOUSAND ($450,000) (the "Principal Sum") of lawful money of the
United States, together with interest on the Principal Sum from the date of the
advance thereof both before and after maturity, default and/or demand at a rate
per annum equal to the Citibank Base Rate plus three percent (3%) per annum.
Interest at the rate aforesaid computed from the date hereof shall become due
and be paid on the first day of each and every month after the date hereof on so
much of the Principal Sum as shall from time to time remain unpaid until the
whole of the Principal Sum is paid. If the Companies fail to make any payment of
interest, the Companies will pay compound interest thereon computed on the first
day of each month until paid.
For the purpose hereof "Citibank Base Rate" means the annual rate of interest
announced publicly by Citibank, N.A. in New York, New York, from time to time,
as Citibank, N.A.'s base rate which the Companies acknowledge was six percent
(6%) per annum as at January 14, 1993.
The Companies shall not be entitled to prepay the Principal Sum in whole or in
part as any time or from time to time except as provided in the loan agreement
dated January 19, 1993 (the "Loan Agreement") made between the Companies and the
Lender.
At the sole option of the Lender, the whole of the Principal Sum remaining
unpaid together with all accrued and unpaid interest thereon shall become
immediately due and payable in each of the following events:
(a) if the Companies default in the payment of interest hereunder;
(b) if the Lender in good faith believes that the prospect of repayment of
the Principal Sum is impaired or that any collateral securing the
Companies' obligation hereunder is or is about to be placed in
jeopardy; or
(c) there shall otherwise occur an Event of Default as defined in the Loan
Agreement.
The Companies each hereby waive presentment, protest, notice of protest and
notice of dishonour of this Promissory Note.
THE CORPORATE SEAL of UNILENS CORP.
USA was hereunto affixed in the
presence of:
C/S
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, Director
THE COMMON SEAL of UNILENS VISION
INC. was hereunto affixed in the
presence of:
C/S
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
2
SCHEDULE "D" TO A LOAN AGREEMENT DATED JANUARY 19,1993 MADE BETWEEN
UNILENS CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made January ____, 1993
BETWEEN:
UNILENS VISION INC., a British Columbia company having an office at
1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Debtor")
AND:
EBC ZURICH AG (formerly EBC (Schweiz) AG) of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
(the "Secured Party")
1. SECURITY INTEREST
-----------------
1.1 For valuable consideration (the receipt and sufficiency of which is
hereby acknowledged by the Debtor) the Debtor does hereby:
(a) mortgage and charge as and by way of a fixed and specific charge in
favour of the Secured Party, and assign and transfer to the Secured
Party, and grants to the Secured Party a security interest in, all the
Debtor's present and after acquired personal property, assets and
undertakings, of whatever nature or kind and wheresoever situate, and
all proceeds thereof and therefrom including without limitation all of
the Debtor's right, title and interest in and to all:
(i) equipment, including, without limiting the generality of the
foregoing, machinery, tools, fixtures, furniture, furnishings,
chattels, motor vehicles and other tangible personal property
that is not Inventory (as hereinafter defined), and all parts,
components, attachments, accessories, accessions, replacements,
substitutions, additions and improvements to any of the
foregoing (all of which is hereinafter collectively called the
"Equipment");
(ii) inventory, including, without limiting the generality of the
foregoing, goods acquired or held for sale or lease or
furnished or to be furnished under contracts of rental or
service, all raw
materials, work in process, finished goods, returned goods,
repossessed goods, and all packaging materials, supplies and
containers relating to or used or consumed in connection with
any of the foregoing (all of which is hereinafter collectively
called the "Inventory");
(iii) debts, accounts, claims, demands, monies and choses in action
which now are, or which may at any time hereafter be, due or
owing to or owned by the Debtor and all books, records,
documents, papers and electronically recorded data recording,
evidencing or relating to the said debts, accounts, claims,
demands, monies and choses in action or any part thereof (all
of which is hereinafter collectively called the "Accounts");
(iv) chattel paper;
(v) documents of title including all warehouse receipts;
(vi) securities and instruments including all shares, stock,
warrants, bonds, debentures and debenture stock;
(vii) money;
(viii) goods that are not Equipment or Inventory;
(ix) contractual rights, licenses, goodwill, patents, trademarks,
designs, trade names, copyrights and other intellectual
properties of the Debtor, all other choses in action of the
Debtor of every kind which now are, or which may at any time
hereafter be, due or owing to or owned by the Debtor, and all
other personal property of the Debtor which are not Accounts,
goods, chattel paper, instruments, documents of title,
securities or money;
(b) charge as and by way of floating charge, and grant to the Secured
Party a security interest in and to, all of the Debtor's right, title
and interest in and to all presently owned or held and after acquired
or held real, immovable and leasehold property and all interests
therein, and all easements, rights-of-way, privileges, benefits,
licences, improvements and rights whether connected therewith or
appurtenant thereto or separately owned or held, including all
structures, plant and other fixtures (all which is hereinafter
collectively called the "Real Property").
1.2 The charges, assignments and transfers and security interests created
pursuant to Clause 1.1 are hereinafter collectively called the "Security
Interests" and the property, assets and undertakings subject to the Security
Interests and all
2
property, assets and undertakings expressed to be charged, assigned or
transferred or secured by any instruments supplemental hereto or in
implementation hereof are hereinafter collectively called the "Collateral".
1.3 For the purposes of Section 198.1 of the Land Title Act (British
Columbia) the floating charges created pursuant to Clause 1.1 (b) shall become a
fixed charge upon the earlier of:
(a) the occurrence of an Event of Default (as hereinafter defined); or
(b) the Secured Party taking any action to enforce and/or realize on the
security hereby constituted.
2. EXCEPTIONS
----------
2.1 The last 10 days of the term created by any lease or agreement
therefor are hereby excepted out of the Security Interests hereby created but
the Debtor shall stand possessed of the reversion thereby remaining upon trust
to assign and dispose thereof to any third party as the Secured Party shall
direct.
3. ATTACHMENT
----------
3.1 The Debtor acknowledges that the Security Interests hereby created
attach upon the execution of this Security Agreement (or in the case of any
after acquired property, upon the date of acquisition thereof), that value has
been given and that the Debtor has (or in the case of any after acquired
property, will have upon the date of acquisition) rights in the Collateral.
4. PROHIBITION
-----------
4.1 Without the prior written consent of the Secured Party the Debtor
shall not create or permit to exist any security interest in, charge,
encumbrance or lien over, or claim against any of its property, assets or
undertaking which ranks or could in any event rank in priority to or pari passu
with any of the Security Interests created by this Security Agreement, save only
for the security interests and encumbrances, if any, consented to in writing by
the Secured Party or shown in any Schedule hereto (collectively "Permitted
Encumbrances").
5. OBLIGATIONS SECURED
-------------------
5.1 This Security Agreement and the Security Interests hereby created are
in addition to and not in substitution for any other security interest now or
hereafter held by the Secured Party from the Debtor, and shall be general and
continuing security for the payment of all indebtedness and liability of the
Debtor to the Secured Party (including interest), present and future, absolute
or contingent, joint and several, direct or indirect, matured or not, extended
or renewed, wheresoever and howsoever incurred whether alone or with others, and
any
3
ultimate balance thereof, including all future advances and re-advances, and for
the performance of all obligations of the Debtor to the Secured Party, whether
or not contained in this Security Agreement, and including without limitation
all indebtedness and liability of the Debtor to the Secured Party under the loan
agreement of even date made between the Debtor, Unilens Corp. USA and the
Secured Party (the said loan agreement as amended and in effect from time to
time is herein called the "Loan Agreement") and all promissory notes issued
pursuant thereto (all of which indebtedness, liability and obligations are
hereinafter collectively called the "Obligations").
6. REPRESENTATIONS AND WARRANTIES
------------------------------
6.1 The Debtor represents and warrants that this Security Agreement is
granted in accordance with resolutions of its board of directors (and of its
shareholders, as applicable) and that all other matters and things have been
done and performed so as to authorize and make the execution and delivery of
this Security Agreement, and the performance of the Debtor's obligation
hereunder, legal, valid and binding.
6.2 The Debtor represents and warrants that the Debtor lawfully owns and
possesses all Collateral presently held by it, and has good title thereto, free
from all security interests, charges, encumbrances, liens and claims, save only
for Permitted Encumbrances, and the Debtor has good right and lawful authority
to grant the Security Interests in the Collateral as provided by this Security
Agreement.
7. COVENANTS OF THE DEBTOR
-----------------------
7.1 The Debtor covenants that at all times while this Security Agreement
remains in effect the Debtor will:
(a) defend the title to the Collateral for the benefit of the Secured
Party against the claims and demands of all persons;
(b) fully and effectively maintain and keep maintained the Security
Interests hereby created valid and effective;
(c) maintain the Collateral in good order and repair;
(d) forthwith pay:
(i) all taxes, assessments, rates, duties, levies, government fees,
claims and dues lawfully levied, assessed or imposed upon
them, respectively, or the Collateral when due, unless the
Debtor shall in good faith contest its obligation so to pay and
shall furnish such security as the Secured Party may require;
and
4
(ii) all security interests, charges, encumbrances, liens and claims
which rank or could in any event rank in priority to any
Security Interest created by this Security Agreement;
(e) forthwith pay all costs, charges, expenses and legal fees and
disbursements (on a solicitor and his own client basis) which may be
incurred by the Secured Party in:
(i) taking, recovering and keeping possession of the Collateral;
(ii) all other actions and proceedings taken in connection with the
preservation of the Collateral and the enforcement of this
Security Agreement and of any other security interest held by
the Secured Party as security for the Obligations;
(iii) complying with the disclosure requirements under the Act;
(f) at the Secured Party's request at any time and from time to time
execute and deliver such further and other documents and instruments
and do all acts and things as the Secured Party in its absolute
discretion requires in order to confirm and perfect, and maintain
perfection of, the Security Interests hereby created in favour of the
Secured Party upon any of the Collateral;
(g) notify the Secured Party promptly of:
(i) any change in the information contained herein relating to the
Debtor, its business or the Collateral, including without
limitation, any change of name or address of the Debtor, and
any change in the present location of any Collateral;
(ii) the details of any material acquisition of Collateral;
(iii) any material loss or damage to Collateral;
(iv) any material default by any account debtor in payment or other
performance of his obligations to the Debtor with respect to
any Accounts; and
(v) the return to or repossession by the Debtor of Collateral where
such return or repossession of Collateral is material in
relation to the business of the Debtor;
(h) prevent Collateral, other than Inventory sold, leased or otherwise
disposed of as permitted hereby, from being or becoming an accession
to other, property not covered by this Security Agreement;
5
(i) carry on and conduct its business in a proper and business-like
manner, including maintenance of proper books of account and records;
(j) permit the Secured Party and its representatives, at all reasonable
times, access to all its property, assets and undertaking and to all
its books of account and records for the purpose of inspection and
render all assistance necessary for such inspection;
(k) deliver to the Secured Party from time to time promptly upon request:
(i) any documents of title, instruments, securities and chattel
paper constituting, representing or relating to Collateral;
(ii) all books of account and all records, ledgers, reports,
correspondence, schedules, documents, statements, lists and
other writings relating to Collateral for the purpose of
inspecting, auditing or copying the same;
(iii) all financial statements prepared by or for the Debtor or any
of them regarding the Debtor's business; and
(iv) such information concerning Collateral, the Debtor and the
Debtor's business and affairs as the Secured Party may require.
8. INSURANCE
---------
8.1 The Debtor covenants that at all times while this Security Agreement
is in effect the Debtor shall:
(a) maintain or cause to be maintained insurance on the Collateral with an
insurer, of kinds, for amounts and payable to such person or persons,
all as the Secured Party may require, and in particular maintain
insurance on the Collateral to the full insurable value against loss
or damage by fire including extended coverage endorsement and in the
case of motor vehicles, maintain insurance against theft;
(b) cause the insurance policy or policies required hereunder to be
assigned to the Secured Party and have as part thereof a standard
mortgage clause or a mortgage endorsement, as appropriate; and
(c) pay any premium in connection with such insurance, and deliver all
such policies to the Secured Party, if it so requires.
8.2 If proceeds of any insurance required hereunder become payable, the
Secured Party may, in its absolute discretion apply such proceeds to such part
or
6
parts of the Obligations as the Secured Party may see fit or the Secured Party
may release any such insurance proceeds to the Debtor for the purpose of
repairing, replacing or rebuilding, but any release of insurance proceeds to the
Debtor shall not operate as a payment on account of the Obligations or in any
way affect this Security Agreement.
8.3 The Debtor will forthwith, on the happening of loss or damage to the
Collateral, notify the Secured Party thereof and furnish to the Secured Party at
the Debtor's expense any necessary proof and do any necessary act to enable the
Secured Party to obtain payment of the insurance proceeds, but nothing herein
contained shall limit the Secured Party's right to submit to the insurer a proof
of loss on its own behalf.
8.4 The Debtor hereby authorizes and directs the insurer under any policy
of insurance required hereunder to include the name of the Secured Party as a
loss payee on any cheque or draft which may be issued with respect to a claim
under and by virtue of such insurance, and the production by the Secured Party
to any insurer of a certified copy of this Security Agreement shall be its full
and complete authority for so doing.
8.5 If the Debtor fails to maintain insurance as required by Clause 8.1,
the Secured Party may, but shall not be obliged to, maintain or effect such
insurance coverage, or so much thereof as the Secured Party considers necessary
for its protection.
9. PERFORMANCE OF OBLIGATIONS
--------------------------
9.1 If the Debtor fails to perform its obligations hereunder, the Secured
Party may, but shall not be obliged to, perform any or all of such obligations
without prejudice to any other rights and remedies of the Secured Party
hereunder, and any payments made and any costs, charges, expenses and legal fees
and disbursements (on a solicitor and his own client basis) incurred in
connection therewith shall be payable by the Debtor to the Secured Party
forthwith with interest until paid at the highest rate borne by any of
the Obligations.
10. RESTRICTIONS ON SALE OR DISPOSAL OF COLLATERAL
----------------------------------------------
10.1 Except as herein provided, without the prior written consent of the
Secured Party, the Debtor will not
(a) sell, lease or otherwise dispose of the Collateral;
(b) release, surrender or abandon possession of the Collateral; and
(c) move or transfer the Collateral from the jurisdiction in which the
Security Interests hereby created have been perfected.
7
10.2 Provided that the Debtor is not in default under this Security
Agreement, the Borrowers may at any time without the consent of the Secured
Party lease, sell, license, consign or otherwise deal with items of Inventory in
the ordinary course of its business.
11. DEFAULT
-------
11.1 The Debtor shall be in default under this Security Agreement, unless
waived in writing by the Secured Party, in any of the following events (each of
which is herein called an "Event of Default"):
(a) the Debtor defaults in the performance of any of the Obligations; or
(b) the Debtor is in breach of any term, condition, obligation or covenant
to the Secured Party, or any representation or warranty to the Secured
Party is untrue, whether or not contained in this Security Agreement,
the Loan Agreement or any promissory note;
(c) the Debtor declares itself to be insolvent or admits in writing its
inability to pay its debts generally as they become due, or makes an
assignment for the benefit of its creditors, is declared bankrupt,
makes or files a notice of intention to make a proposal or otherwise
takes advantage of provisions for relief under the Bankruptcy and
Insolvency Act, the Companies Creditors' Arrangement Act or similar
legislation in any jurisdiction, or makes an authorized assignment; or
(d) a receiver, receiver and manager or receiver-manager of all or any
part of the Collateral is appointed; or
(e) an order is made or an effective resolution is passed for winding-up
of the Debtor; or
(f) the Debtor ceases or threatens to cease to carry on all or a
substantial part of its business; or
(g) an order of execution against the Collateral or any part thereof
remains unsatisfied for a period of 10 days; or
(h) without the prior written consent of the Secured Party, the Debtor
creates or permits to exist any security interest in, charge,
encumbrance, lien on or claim against any of the Collateral which
ranks or could in any event rank in priority to or pari passu with any
of the Security Interests created by this Security Agreement save for
Permitted Encumbrances; or
8
(i) the holder of any other security interest, charge, encumbrance or lien
or claim against any of the Collateral does anything to enforce or
realize on such security interest, charge, encumbrance, lien or claim;
or
(j) the Secured Party in good faith believes that the prospect of payment
or performance of any of the Obligations is impaired or that any of
the Collateral is or is about to be placed in jeopardy; or
(k) there occurs an Event of Default as defined in:
(i) the security agreement of even date executed and delivered by
Unilens Corp. USA in favour of the Secured Party; or
(ii) the Loan Agreement.
12. ENFORCEMENT
-----------
12.1 Upon the occurrence of an Event of Default, the Secured Party may
declare any or all of the Obligations not payable on demand to become
immediately due and payable and the security hereby constituted will immediately
become enforceable. To enforce and realize on the Security Interests created
by this Security Agreement the Secured Party may take any action permitted by
law or in equity, as it may deem expedient, and in particular and without
limiting the generality of the foregoing, the Secured Party may do any of the
following:
(a) appoint by instrument a receiver, receiver and manager or
receiver-manager (the person so appointed being hereinafter called the
"Receiver") of the Collateral, with or without bond as the Secured
Party may determine, and from time to time in its absolute discretion
remove such Receiver and appoint another in its stead;
(b) enter upon any premises of the Debtor and take possession of the
Collateral with power to exclude the Debtor, its agents and its
servants therefrom, without becoming liable as a mortgagee in
possession;
(c) preserve, protect and maintain the Collateral and make such
replacements thereof and repairs and additions thereto as the Secured
Party may deem advisable;
(d) sell, lease or otherwise dispose of all or any part of the Collateral,
whether by public or private sale or lease or otherwise, in such
manner, at such price as can be reasonably obtained therefor and on
such terms as to credit and with such conditions of sale and
stipulations as to title or conveyance or evidence of title or
otherwise as to the Secured Party may seem reasonable, provided that
if any sale, lease or other disposition is on credit the Debtor will
not be entitled to
9
be credited with the proceeds of such sale, lease or other disposition
until the monies therefor are actually received; and
(e) exercise all of the rights and remedies of a secured party under the
Act.
12.2 A Receiver appointed pursuant to this Security Agreement shall be the
agent of the Debtor and not of the Secured Party and, to the extent permitted by
law or to such lesser extent permitted by its appointment, shall have all the
powers of the Secured Party hereunder, and in addition shall have power to carry
on the business of the Debtor and for such purpose from time to time to borrow
money either secured or unsecured, and if secured by a security interest on any
Collateral, such security interest may rank before or pari passu with or behind
any of the Security Interests created by this Security Agreement, and if it does
not so specify such security interest shall rank in priority to the Security
Interests created by this Security Agreement.
12.3 Subject to the claims, if any, of the creditors of the Debtor ranking
in priority to this Security Agreement, all amounts realized from the
disposition of Collateral pursuant to this Security Agreement will be applied as
the Secured Party, in its absolute discretion, may direct, as follows:
(a) in payment of all costs, charges and expenses (including legal fees
and disbursements on a solicitor and his own client basis) incurred by
the Secured Party in connection with or incidental to:
(i) the exercise by the Secured Party of all or any of the powers
granted to it pursuant to this Security Agreement; and
(ii) the appointment of the Receiver and the exercise by the Receiver
of all or any of the powers granted to it pursuant to this
Security Agreement, including the Receiver's reasonable
remuneration and all outgoings properly payable by the Receiver;
(b) in or toward payment to the Secured Party of all principal and other
monies (except interest) due in respect of the Obligations;
(c) in or toward payment to the Secured Party of all interest remaining
unpaid in respect of the Obligations.
Subject to applicable law and the claims, if any, of other creditors of the
Debtor, any surplus will be paid to the Debtor.
10
13. DEFICIENCY
----------
13.1 If the amounts realized from the disposition of the Collateral are not
sufficient to pay the Obligations in full, the Debtor will immediately pay to
the Secured Party the amount of such deficiency.
14. LIABILITY OF SECURED PARTY
--------------------------
14.1 The Secured Party shall not be responsible or liable for any debts
contracted by it, for damages to persons or property or for salaries or
non-fulfillment of contracts during any period when the Secured Party shall
manage the Collateral upon entry, as herein provided, nor shall the Secured
Party be liable to account as a mortgagee in possession or for anything except
actual receipts or be liable for any loss on realization or for any default or
omission for which a mortgagee in possession may be liable. The Secured Party
shall not be bound to do, observe or perform or to see to the observance or
performance by the Debtor of any obligations or covenants imposed upon the
Debtor nor shall the Secured Party, in the case of securities, instruments or
chattel paper, be obliged to preserve rights against other persons, nor shall
the Secured Party be obliged to keep any of the Collateral identifiable. The
Debtor hereby waives any applicable provision of law permitted to be waived by
it which imposes higher or greater obligations upon the Secured Party than
aforesaid.
15. APPOINTMENT OF ATTORNEY
-----------------------
15.1 The Debtor hereby irrevocably appoints the Secured Party or the
Receiver, as the case may be, with full power of substitution, to be the
attorney of the Debtor for and in the name of the Debtor to sign, endorse or
execute under seal or otherwise any deeds, documents, transfers, cheques,
instruments, demands, assignments, assurances or consents that the Debtor may
be obliged to sign, endorse or execute, and generally to use the names of the
Debtor and to do all things as may be necessary or incidental to the exercise of
all of the powers conferred on the Secured Party or the Receiver, as the case
may be, pursuant to this Security Agreement.
16. ACCOUNTS
--------
16.1 The Secured Party may collect, realize, sell, or otherwise deal with
the Accounts or any part thereof in such manner, upon such terms and conditions
and at such time to times, whether before or after default, as may seem to it
advisable, and without notice to the Debtor. All monies or other forms of
payment received by the Debtor in payment of any Account will be received and
held by the Debtor in trust for the Secured Party and paid to the Secured Party
on demand.
17. APPROPRIATION OF PAYMENTS
-------------------------
17.1 Any and all payments made in respect of the Obligations from time to
time and monies realized from any security interests held therefor (including
11
monies collected in accordance with or realized on any enforcement of this
Security Agreement) may be applied to such part or parts of the Obligations as
the Secured Party may see fit, and the Secured Party may at all times and from
time to time change any appropriation as the Secured Party may see fit.
18. CONSOLIDATION
-------------
18.1 In accordance with the Property Law Act (British Columbia), the
doctrine of consolidation applies to this Security Agreement.
19. NOTICE
------
19.1 Any demand, request, notice or consent to be given under this Security
Agreement shall be in writing and shall be given by delivering or telecopying
the same addressed to the following addresses or such other addresses may be
given in writing by one party to the other:
Unilens Vision Inc.
c/o Suite 1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇
Telecopier No. (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇
EBC Zurich AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
Telecopier No. ▇▇▇-▇▇▇-▇▇▇-▇▇-▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Any such demand, request, notice or consent sent as aforesaid shall be deemed to
have been received by the party to whom it is addressed upon delivery, if
delivered, and when transmitted, if sent by telecopier or other like medium of
transmission.
20. EXTENSIONS
----------
20.1 The Secured Party may grant extensions of time and other indulgences,
take and give up security, accept compositions, compound, compromise, settle,
grant releases and discharges, refrain from perfecting or maintaining perfection
of security interests, and otherwise deal with the Debtor, account debtors of
the Debtor, sureties and others and with Collateral and other security interests
as the Secured Party may see fit without prejudice to the liability of the
Debtor or the Secured Party's right to hold and realize on the Security
Interests created by this Security Agreement.
12
21. NO MERGER
---------
21.1 This Security Agreement shall not operate so as to create any merger
or discharge of any of the Obligations, or of any assignment, transfer
guarantee, lien, contract, promissory note, ▇▇▇▇ of exchange or security
interest of any form held or which may hereafter be held by the Secured Party
from the Debtor or from any other person whomsoever. The taking of a judgment
with respect to any of the Obligations will not operate as a merger of any of
the covenants contained in this Security Agreement.
22. RIGHTS CUMULATIVE
-----------------
22.1 All rights and remedies of the Secured Party set out in this Security
Agreement, and in any other security agreement held by the Secured Party from
the Debtor or any other person whomsoever to secure payment and performance of
the Obligations, are cumulative and no right or remedy contained herein or
therein is intended to be exclusive but each is in addition to every other right
or remedy contained herein or therein or in any future security agreement, or
now or hereafter existing at law, in equity or by statute, or pursuant to any
other agreement between the Debtor and the Secured Party that may be in effect
from time to time.
23. ASSIGNMENT
----------
23.1 The Secured Party may, without further notice to the Debtor, at any
time assign, transfer or grant a security interest in this Security Agreement
and the Security Interests created hereby. The Debtor expressly agrees that the
assignee, transferee or secured party, as the case may be, shall have all of the
Secured Party's rights and remedies under this Security Agreement and the Debtor
will not assert any defense, counterclaim, right of set-off or otherwise any
claim which it now has or may hereafter acquire against the Secured Party in any
action commenced by such assignee, transferee or secured party, as the case may
be, and will pay the Obligations to the assignee, transferee or secured party,
as the case may be, as the Obligations become due.
24. SATISFACTION AND DISCHARGE
--------------------------
24.1 Any partial payment or satisfaction of the Obligations, or any ceasing
by the Debtor to be indebted to the Secured Party shall be deemed not to be a
redemption or discharge of this Security Agreement. The Debtor shall be entitled
to a release and discharge of this Security Agreement upon full payment and
satisfaction of all Obligations, and upon written request by the Borrower and
payment to the Secured Party of a discharge fee to be fixed by the Secured Party
and payment of all costs, charges, expenses and legal fees and disbursements (on
a solicitor and his own client basis) incurred by the Secured Party in
connection with the Obligations and such release and discharge.
13
25. ENUREMENT
---------
25.1 This Security Agreement shall enure to the benefit of the Secured
Party and its successors and assigns, and shall be binding upon the successors
and permitted assigns of the Debtor.
26. INTERPRETATION
--------------
26.1 In this Security Agreement:
(a) "Collateral" has the meaning set out in Clause 1 hereof and any
reference to Collateral shall, unless the context otherwise requires,
be deemed to be a reference to Collateral as a whole or any part
thereof;
(b) "the Act" means the Personal Property Security Act (British Columbia)
and all regulations thereunder, as amended from time to time.
26.2 Words and expressions used herein that have been defined in the Act
shall be interpreted in accordance with their respective meanings given in the
Act unless otherwise defined herein or unless the context otherwise requires.
26.3 The invalidity or unenforceability of the whole or any part of any
clause of this Security Agreement shall not affect the validity or
enforceability of any other clause or the remainder of such clause.
26.4 The headings of the clauses of this Security Agreement have been
inserted for reference only and do not define, limit, alter or enlarge the
meaning of any provision of this Security Agreement.
26.5 This Security Agreement shall be governed by the laws of British
Columbia.
27. COPY OF AGREEMENT AND WAIVER
----------------------------
27.1 The Debtor hereby:
(a) acknowledges receiving a copy of this Security Agreement; and
(b) waives all rights to receive from the Secured Party a copy of any
financing statement or financing change statement filed, or any
14
verification statement received, at any time in respect of this
Security Agreement.
IN WITNESS WHEREOF the Debtor has executed this Security Agreement
this ____ day of January, 1993.
The Common Seal of UNILENS VISION INC.
was hereunto affixed in the presence of:
c/s
----------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
15
SCHEDULE "E" TO A LOAN AGREEMENT DATED JANUARY 18, 1993 MADE BETWEEN UNILENS
CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
SECURITY AGREEMENT
--------------------------------------------------------------------------------
THIS SECURITY AGREEMENT (the "Agreement"), effective as of the ___ day of
January, 1993, is made and entered into by and between UNILENS CORP. USA, a
Delaware corporation ("Debtor"), and EBC ZURICH AG (formerly EBC (Schweiz) AG)
of Zurich, Switzerland, or its assigns (hereinafter referred to as "Secured
Party"):
WHEREAS, Debtor and Secured Party are parties to that certain loan
agreement by and between Unilens Vision Inc., the Debtor, and the Secured Party
dated the ___ day of January, 1993 (the "Loan Agreement"), and the other
agreements and instruments contemplated by the Loan Agreement (the Loan
Agreement and such other agreements and instruments hereinafter referred to as
the "Loan Documentation") whereby Unilens Vision Inc. and the Debtor issued a
promissory note in the amount of U.S. $450,000 (the "Note"); and
WHEREAS, in order to induce Secured Party to enter into the Loan
Documentation, and in order to secure Debtor's repayment obligations to Secured
Party under the terms of the Note and the Loan Documentation, Debtor has agreed
to grant to Secured Party a security interest in certain items of collateral as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and other good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound thereby, agree as follows:
1. Security Interest. Debtor hereby grants to Secured Party a security
interest (the "Security Interest") in the assets described on Exhibit A hereto
and in all attachments, additions, replacements, substitutions, and accessions
and in all proceeds thereof in any form now existing, after acquired and
hereafter arising (hereafter called "Collateral").
2. Indebtedness Secured. This Agreement and the Security Interest created
by it secures payment of the indebtedness owing by Debtor to Secured Party under
the Note and all other obligations owing by Debtor to Secured Party whether now
existing or hereafter incurred, directly or indirectly, and whether the
indebtedness is, from time to time, reduced and thereafter increased or entirely
extinguished and thereafter reincurred (the "indebtedness"). The Indebtedness
includes any credit extended, sums advanced, and any expenses incurred by
Secured Party and specifically includes, but is not limited to, the indebtedness
of Debtor to Secured Party arising out of the Loan Documentation and the Note.
3. Warranties. Debtor hereby covenants and warrants that, at the execution
hereof and at all times throughout the duration hereof:
(a) Debtor will join with Secured Party to file, wherever Secured Party
deems appropriate, financing statements or other documents in the form
and content required by Secured Party, describing the Collateral in
the same manner as it is described herein and Debtor will pay all
costs of such filing. From time to time at the request of Secured
Party, Debtor shall execute one or more financing statements and such
other documents (and pay the cost of filing or recording the same in
all public offices deemed necessary or desirable by Secured Party) and
do such other acts and things, all as Secured Party may request, to
establish and maintain a valid, perfected security interest in the
Collateral.
(b) As long as any Indebtedness is outstanding, Debtor will not (i) permit
any liens, encumbrances or security interests other than Secured
Party's Security Interest and those described on Exhibit B ("Permitted
Encumbrances") to attach to any of the Collateral; (ii) permit any of
the Collateral to be levied upon under legal process; (iii) sell,
transfer, lease, or otherwise dispose of any of the Collateral or
any interest therein, or offer so to do, without the prior written
consent of Secured Party other than inventory in the ordinary course
of business; (iv) permit anything to be done that may impair the value
of any of the Collateral or the security intended to be afforded by
this Agreement; or (v) permit the Collateral to be or become an
accession to other goods or property.
(c) Secured Party may examine and inspect the Collateral at any time,
wherever located. Debtor will pay promptly when due all taxes and
assessments and other charges of every nature upon the Collateral or
upon this Agreement or upon the Note or other writing evidencing the
Indebtedness, or any of them, secured by this Agreement.
(d) Debtor represents and warrants to any assignee of this Agreement that
Debtor shall perform all of the covenants of this Agreement without
regard to any set off, defense, or claim that Debtor may have against
the original secured party, and agrees that Debtor will look only to
the original secured party for performance of any covenants or
warranties or redress for representations made. Secured Party's
assignee shall have all of the rights, powers and remedies of the
original secured party, but shall be subject to none of the defenses
against the original secured party.
(e) The Debtor represents and warrants that this Agreement is granted in
accordance with resolutions of its board of directors (and of its
shareholders, as applicable) and that all other matters and things
have been done and performed so as to authorize and make the execution
and delivery of this Agreement, and the performance of the Debtor's
obligation hereunder, legal, valid and binding.
(f) The Debtor represents and warrants that the Debtor lawfully owns and
possesses all Collateral presently held by it, and has good title
thereto, free from all security interests, charges, encumbrances,
liens and claims, save only for Permitted Encumbrances, and the Debtor
has good right and lawful authority to grant the Security Interests in
the Collateral as provided by this Agreement.
-2-
(g) The Debtor represents and warrants that the Collateral and Debtor's
principle place of business are located in Pinellas County, Florida.
4. Additional Provisions. Debtor agrees that if required by Secured Party,
it will stamp or otherwise ▇▇▇▇ all Collateral now owned or hereafter acquired
by it to show that the same is subject to Secured Party's security interest.
5. Insurance.
(a) The Debtor covenants that at all times while this Agreement is in
effect the Debtor shall:
(i) maintain or cause to be maintained insurance on the Collateral
with an insurer, of kinds, for amounts and payable to such
person or persons, all as the Secured Party may require, and in
particular maintain insurance on the Collateral to the full
insurable value against loss or damage by fire including
extended coverage endorsement and in the case of motor vehicles,
maintain insurance against theft;
(ii) cause the insurance policy or policies required hereunder to be
assigned to the Secured Party and have as part thereof a
standard mortgage clause or a mortgage endorsement, as
appropriate; and
(iii) pay any premium in connection with such insurance, and deliver
all such policies to the Secured Party, if it so requires.
(b) If proceeds of any insurance required hereunder become payable, the
Secured Party may, in its absolute discretion apply such proceeds to
such part or parts of the Indebtedness as the Secured Party may see
fit or the Secured Party may release any such insurance proceeds to
the Debtor for the purposes of repairing, replacing or rebuilding, but
any release of insurance proceeds to the Debtor shall not operate as a
payment on account of the Indebtedness or in any way affect this
Agreement.
(c) The Debtor will forthwith, on the happening of loss or damage to the
Collateral, notify the Secured Party thereof and furnish to the
Secured Party at the Debtor's expense any necessary proof and do any
necessary act to enable the Secured Party to obtain payment of the
insurance proceeds, but nothing herein contained shall limited the
Secured Party's right to submit to the insurer a proof of loss on its
own behalf.
(d) The Debtor hereby authorizes and directs the insurer under any policy
of insurance required hereunder to include the name of the Secured
Party as a loss payee on any check or draft which may be issued with
respect to a claim under
-3-
and by virtue of such insurance, and the production by the Secured
Party to any insurer of a certified copy of this Agreement shall be
its full and complete authority for so doing.
(e) If Debtor fails to maintain insurance as required by Section 5(a), the
Secured Party may, but shall not be obliged to, maintain or effect
such insurance coverage, or so much thereof as the Secured Party
considers necessary for its protection.
6. Default. The Debtor shall be in default under this Agreement, unless
waived in writing by the Secured Party, in any of the following events (each of
which is herein call an "Event of Default"):
(a) the Debtor defaults in the performance of any of the Indebtedness; or
(b) the Debtor is in breach of any term, condition, obligation or covenant
to the Secured Party, or any representation or warranty to the Secured
Party is untrue, whether or not contained in this Agreement, the Loan
Documentation or any promissory note; or
(c) the Debtor declares itself to be insolvent or admits in writing its
inability to pay its debts generally as they become due, or makes an
assignment for the benefit of its creditors, is declared bankrupt,
makes or files a notice of intention to make a proposal or otherwise
takes advantage of provisions for relief under the Bankruptcy Code,
any state statute for the benefit or relief of debtors, or similar
legislation in any jurisdiction, or makes an authorized assignment; or
(d) a receiver, receiver and manager or receiver-manager of all or any
party of the Collateral is appointed; or
(e) an order is made or an effective resolution is passed for winding-up
of the Debtor; or
(f) the Debtor ceases or threatens to cease to carry on all or a
substantial part of its business; or
(g) an order of execution against the Collateral or any party thereof
remains unsatisfied for a period of 10 days; or
(h) without the prior written consent of the Secured Party, the Debtor
creates or permits to exist any security interest in, charge,
encumbrance, lien on or claim against any of the Collateral which
ranks or could in any event rank in priority to or pari passu with any
of the Security Interests created by this Agreement save for the
Permitted. Encumbrances; or
-4-
(i) the holder of any other security interest, charge, encumbrance or lien
or claim against any of the Collateral does anything to enforce or
realize on such security interest, charge, encumbrance, lien or claim;
or
(j) the Secured Party in good faith believes and has commercially
reasonable grounds to believe that the prospect of payment or
performance of any of the Indebtedness is impaired or that any of the
Collateral is or is about to be placed in jeopardy; or
(k) there occurs an Event of Default as defined in:
(i) the Loan Documentation; or
(ii) the security agreement of even date executed and delivered by
Unilens Vision Inc. in favor of the Secured Party;
7. Secured Party's Rights and Remedies.
(a) Upon the occurrence of an Event of Default or at any time thereafter:
(i) Secured Party may, at its option, declare all of the
Indebtedness secured by this Agreement (notwithstanding any
provisions of any agreement with respect to the Indebtedness to
the contrary) immediately due and payable without demand or
notice of any kind, and the Indebtedness thereupon shall become
due and payable immediately without demand or notice (but with
such adjustments, if any, with respect to interest or other
charges as may be provided for in the Note or other writings
evidencing the Indebtedness secured);
(ii) Secured Party and its agents are authorized to enter into and
enter onto any premises where the Collateral may be located for
the purpose of taking possession of the Collateral and any
records thereof and Secured Party may, at its option, demand
Debtor at Debtor's expense to assemble the Collateral and make
the Collateral available to Secured Party at a convenient place
acceptable to Secured Party and after notice to the Debtor as
hereinafter provided, and other reasonable notice to secured
parties of record, Secured Party may sell or otherwise dispose
of the Collateral at public or private sale, without further
notice or advertisement, at which sale Secured Party may become
the purchaser;
(iii) Secured Party may demand that Debtor shall upon receipt by
Debtor of any proceeds covered hereby or of any check, draft, or
other instrument representing the proceeds, forthwith and
without further notice or demand deliver the same to Secured
Party in the form in which the said items are received, endorsed
by Debtor for payment to Secured Party; and
-5-
(iv) Secured Party may by written notice deem Debtor to have
transferred the Collateral to Secured Party and to have
constituted and appointed Secured Party his true and lawful
attorney-in-fact with full and irrevocable power and authority
in the name, place and stead of Debtor, from time to time, in
Secured Party's discretion to demand, collect, receive and give
receipts for any and all monies due on the Collateral or due
otherwise under or with respect to any of the Collateral and to
endorse any checks or other instruments or orders and to file
any claims and take any other action or proceeding deemed by
Secured Party appropriate for the purpose of collecting any and
all such monies whenever they may become payable. Secured Party
may reasonably require Debtor to assist Secured Party in any and
all such collections.
(b) Secured Party shall have and may exercise, from time to time, any and
all rights and remedies of a secured party under the Uniform
Commercial Code of Florida and any and all rights and remedies
available to a secured party under any other applicable law.
(c) Any notice of sale, disposition, or other intended action by Secured
Party, mailed to Debtor at the address specified below or at any other
address to which Debtor has requested in writing that notices be sent,
at least five (5) days prior to such action, shall constitute
reasonable notice to Debtor.
(d) In the event of a sale or other disposition of the Collateral or the
receipt of any proceeds of the Collateral by Secured Party, after all
of the Indebtedness with appropriate interest and all costs and
expenses of Secured Party with respect to the possession and sale of
the Collateral have been paid in full as appropriate, the surplus, if
any, shall be paid to Debtor by Secured Party, and any Collateral
remaining shall be transferred and reassigned to Debtor by Secured
Party; and in the event of a deficiency, there shall be due from
Debtor and Debtor shall immediately pay to Secured Party the
difference between the amounts received by Secured Party and the
remaining sum secured hereby, plus all costs and expenses of
Secured Party in repossessing, transporting, repairing, storing,
selling or otherwise handling the Collateral pursuant to such sale
or other disposition.
(e) All remedies hereunder shall be cumulative and not alternative. Debtor
shall pay promptly the costs and expenses of Secured Party of
collection of any and all Indebtedness, enforcement of rights under
this Agreement, including reasonable attorneys' fees, and those costs,
expenses, and reasonable attorneys' fees incurred in appellate
proceedings and expenses and reasonable attorneys' fees on any
actions otherwise with respect to the Collateral.
8. Rights and Remedies of Debtor. Debtor shall have the rights and
remedies provided in this Agreement and Debtor specifically waives and releases,
to be extent permitted by law, all rights provided in Article 9 of the Uniform
Commercial Code in force in the State of Florida on the date of this Agreement.
-6-
9. Attorney's Fees. Debtor hereby agrees to reimburse Secured Party for
all reasonable attorney's fees, costs, and expenses associated with the creation
of the Indebtedness and the creation, attachment, and perfection of the Security
Interest granted herein.
10. Deficiency. If the amounts realized from the disposition of the
Collateral are not sufficient to pay the Indebtedness in full, the Debtor will
immediately pay to the Secured Party the amount of such deficiency.
11. Liability of Secured party. The Secured Party shall not be responsible
or liable for any debts contracted by it, for damages to persons or property or
for salaries or non-fulfillment of contracts during any period when the Secured
Party shall manage the Collateral upon entry, as herein provided, nor shall the
Secured Party be liable to account as a mortgagee in possession or for anything
except actual receipts or be liable for any loss on realization or for any
default or omission for which a mortgagee in possession may be liable; provided,
however, the foregoing provisions shall not be interpreted or construed to
relieve the Secured Party for liability arising out of the Secured Party's gross
negligence or willful misconduct. The Secured Party shall not be bound to do,
observe or perform or to see to the observance or performance by the Debtor of
any obligations or covenants imposed upon the Debtor nor shall the Secured
Party, in the case of securities, instruments, or chattel paper, be obliged to
keep any of the Collateral identifiable. The Debtor hereby waives any applicable
provision of law permitted to be waived by it which imposes higher or greater
obligations upon the Secured Party than aforesaid.
12. Appropriation of Payments. Any and all payments made in respect of the
Indebtedness from time to time and monies realized from any security interests
held therefor (including monies collected in accordance with or realized on any
enforcement of this Agreement) may be applied to such part or parts of the
Indebtedness as the Secured Party may see fit, and the Secured Party may
at all times and from time to time change any appropriation as the Secured Party
may see fit.
13. Notice. Any demand, request, notice or consent to be given under this
Agreement shall be in writing and shall be given by delivering or telecopying
the same, addressed to the following addresses or such other addresses may be
given in writing by one party to the other:
Unilens Corp. USA and to:
c/o Unilens Vision Inc.
▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇
Vancouver, British Columbia ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇.▇▇▇▇▇▇ Attention: ▇▇▇▇▇ Eye
-7-
EBC Zurich AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇-▇▇-▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any such demand, request, notice or consent sent as aforesaid shall be deemed to
have been received by the party to whom it is addressed upon delivery, if
delivered, and when transmitted, if sent by telecopier or other like medium of
transmission.
14. Extensions. The Secured Party may grant extensions of time and other
indulgences, take and give up security, accept compositions, compound,
compromise, settle, grant releases and discharges, refrain from perfecting or
maintaining perfection of security interests, and otherwise deal with the
Debtor, account debtors of the Debtor, sureties and others and with Collateral
and other security interests as the Secured Party may see fit without prejudice
to the liability of the Debtor or the Secured Party's right to hold and realize
on the Security Interests created by this Agreement.
15. No Merger. This Agreement shall not operate so as to create any merger
or discharge of any of the Indebtedness, or of any assignment, transfer
guarantee, lien, contract, promissory note, ▇▇▇▇ of exchange or security
interest of any form held or which may hereafter be held by the Secured Party
from the Debtor or from any other person whomsoever. The taking of a judgment
with respect to any of the Indebtedness will not operate as a merger of any of
the covenants contained in this Agreement.
16. Miscellaneous.
(a) Debtor authorizes Secured Party at Debtor's expense to file any
financing statement or statements relating to the Collateral (without
Debtor's signature thereon) which Secured Party deems appropriate, and
Debtor appoints Secured Party as Debtor's attorney-in-fact to execute
any such, financing statement or statements in Debtor's name and to
perform all other acts which Secured Party deems appropriate to
perfect and to continue perfection of the Security Interest.
(b) Without limiting any other right of Secured Party, whenever Secured
Party has the right to declare any Indebtedness to be immediately due
and payable (whether or not it has so declared), Secured Party may set
off against the Indebtedness all monies then owed to the Debtor by
Secured Party in any capacity whether due or not and Secured Party
shall be deemed to have exercised its right to set off immediately at
the time its right to such election accrues.
(c) Upon Debtor's failure to perform any of its duties hereunder, Secured
Party may but it shall not be obligated to perform any of such duties
and Debtor shall
-8-
forthwith, upon demand, reimburse Secured Party for any expense
incurred by Secured Party in so doing.
(d) No delay or omission by Secured Party in exercising any right
hereunder or with respect to any Indebtedness shall operate as a
waiver of that or any other right, and no single or partial exercise
of any right shall preclude Secured Party from any other or further
exercise of any other right or remedy. Secured Party may cure any
default by Debtor in any reasonable manner without waiving the default
so cured and without waiving any other prior or subsequent default by
Debtor.
(e) Secured Party shall have no obligation to take and Debtor shall have
the sole responsibility for taking any steps to preserve rights
against all prior parties. Debtor waives presentment for payment,
notice of protest, notice of nonpayment, notice of dishonor and
protest of any instrument at any time held by Secured Party on which
Debtor is in any way liable and, if waivable, waives notice of any
other action taken by Secured Party.
(f) The rights and benefits of Secured Party under this Agreement shall,
if Secured Party agrees, inure to any party acquiring an interest in
the Indebtedness or any part thereof.
(g) The terms "Secured Party" and "Debtor" as used in this Agreement
include the heirs, personal representatives, and successors or
assigns of those parties. The singular pronoun shall include the
plural, and the neuter shall include the masculine and feminine.
(h) This Agreement may not be modified or amended nor shall any provision
of it be waived except by a written instrument signed by Debtor and
Secured Party.
(i) This Security Agreement is a continuing agreement and shall survive
any closing and shall remain in force until Secured Party shall
provide written notice of its termination and thereafter until all
of the Indebtedness contracted for or created before receipt of the
notice and any extension or renewals of that Indebtedness (whether
made before or after receipt of the notice) together with all interest
thereon both before and after the notice, shall be paid in full.
(j) The headings of the clauses of this Agreement have been inserted for
reference only and do not define, limit, alter or enlarge the meaning
of any provision of this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Florida. Whenever possible, each provision of this
Agreement shall be interpreted to be effective and valid under applicable law.
If any provision of this Agreement is prohibited by or invalid under applicable
law, the provision shall be ineffective only to the extent of the prohibition or
invalidity, without invalidating the remainder of the provision or the other
remaining provisions of this Agreement.
-9-
18. Jurisdiction. The parties hereby agree that the Circuit Court in and
for Hillsborough County, Florida and the United States District Court for the
Middle District of Florida, Tampa Division, shall have exclusive jurisdiction to
hear and determine any claims or disputes between the parties hereto pertaining
directly or indirectly to this Agreement or to any matter arising therefrom. The
parties hereto expressly submit and consent in advance to such jurisdiction and
venue.
UNILENS CORP. USA
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
"DEBTOR"
EBC ZURICH AG
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
"SECURED PARTY"
-10-
LIST OF EXHIBITS
----------------
Exhibit
-------
A. All property being pledged.
B. Other Security Interests and Claims.
EXHIBIT A
List of Property Being Pledged
--------------------------------------------------------------------------------
All of Debtor's assets, including but not limited to, the
Debtor's goods, inventory, equipment, fixtures, accounts,
documents, general intangibles, and all accessions thereto
and proceeds therefrom, now owned and hereafter acquired.
EXHIBIT B
List of Other Security Interests and Claims in Pledged Property.
--------------------------------------------------------------------------------
The security interest of Pitney ▇▇▇▇▇ Credit Corporation
evidenced by a Form UCC-1 Financing Statement
(#92-0000001790) filed in the office of the Secretary of
State of Florida covering "All equipment of whatever nature
manufactured, sold or distributed by Pitney ▇▇▇▇▇, Inc.,
Monarch Marketing Systems, Inc., Pitney ▇▇▇▇▇ Credit Corp.,
Dictaphone Corp., VIP, and subject to lease #2490100-001,
dated 9/30/91, between Debtor and Secured Party & all
additions thereto and replacements thereof and all proceeds
of the foregoing.
SCHEDULE "F" TO A LOAN AGREEMENT DATED JANUARY 19,1993 MADE BETWEEN
UNILENS CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
PLEDGE AGREEMENT
----------------
THIS AGREEMENT made January ___, 1993
BETWEEN:
UNILENS VISION INC., a British Columbia company having an office at
1490 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Pledgor")
AND:
EBC ZURICH AG, of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇
(the "Lender")
WITNESSES THAT in consideration of advances heretofore or now made
and/or which at any time hereafter be made under or pursuant to the loan
agreement dated January 19, 1993 (the "Loan Agreement") among Unilens Corp.
USA, the Pledgor and the Lender, the Pledgor has agreed to pledge with the
Lender certain shares in the capital of Unilens Corp. USA ("Unilens USA") on the
terms and conditions set forth herein;
NOW THEREFORE in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties covenant and agree as
follows:
1. Charge
------
The Pledgor hereby mortgages, pledges and charges as and by way of a
first fixed and specific mortgage, pledge and charge to and in favour of the
Lender all shares, bonds, debentures, notes and other securities which may at
any time and from time to time be deposited by the "Pledgor with the Lender in
accordance with the provisions hereof, including without limitation, the one (1)
issued and outstanding common share with a par value of $1.00 in the capital of
Unilens USA represented by share certificate No. 1 delivered herewith.
2. Security
--------
The Pledgor agrees that such securities and such other additional
securities as may hereinafter be delivered to the Lender and subject to the
terms
hereof shall be held by the Lender together with all renewals thereof,
substitutions therefor and accretions thereto and all income therefrom (the
whole hereinafter called the "Pledged Securities"), as general and continuing
security to secure all advances presently made or which at any time hereafter
may be made pursuant to the Loan Agreement, and to cover any indebtedness which
is now or may at any time hereafter be due by the Pledgor to the Lender (the
"Indebtedness"), and as general and continuing security for the fulfillment of
all obligations present or future, direct or indirect, absolute or contingent,
matured or not of the Pledgor to the Lender (the "Liability").
3. Future Security
---------------
At any time and from time to time the Pledgor may deliver to the
Lender Pledged Securities, accompanied by a written order of the Pledgor as
owner thereof, identifying the Pledged Securities and stating that the same are
to form part of the security hereunder. Any Pledged Securities delivered by the
Pledgor to the Lender under any provisions of this Pledge Agreement shall become
and be subject to the provisions of this Pledge Agreement as fully and
completely as though now owned by the Pledgor and delivered at the time of the
execution hereof.
4. Warranties
----------
The Pledgor hereby represents and warrants to the Lender that the
Pledgor is the sole and beneficial owner of the said securities, that the
Pledgor has full right, power and authority to pledge and to create a security
interest in and to each and every of the said securities, the said securities
are free and clear of any encumbrances or any other right or claim except only
as hereby created in favour of the Lender and that the pledge and charge hereof
constitutes a good and valid first charge in and to the said securities.
5. Covenants
---------
The Pledgor hereby agrees with the Lender that:
(a) on default being made in repaying any Indebtedness when due, or on
failure to comply with any demand for payment, or on default in
fulfilling any Liability or otherwise upon the occurrence of an Event
of Default under and as defined in the Loan Agreement, the Lender may
forthwith, without any notice, without demand for payment, without
advertisement, and without any other formality, all of which are
hereby waived, sell all or any part of the Pledged Securities on any
recognized exchange dealing in such securities or by public or private
sale, and enforce payment and realize upon the security of any bonds
or debentures comprising the Pledged Securities as fully and
effectually as if the Lender were the absolute owner thereof;
2
(b) the records of the Lender as to the Pledgor being in default or of any
demand having been made shall be final and conclusive without
further or other proof;
(c) the Lender shall not be bound under any circumstances to realize upon
any Pledged Securities or allow any Pledged Securities to be sold, and
shall not be responsible for any loss occasioned by any sale or by the
retention of or refusal to sell Pledged Securities; nor shall the
Lender be obliged to collect or see to the payment of interest or
dividends thereon;
(d) the Pledged Securities or any excess thereof or proceeds of sale of
the same may be retained or applied upon any Indebtedness direct or
indirect of the Pledgor to the Lender;
(e) the Lender is hereby appointed the attorney irrevocable of the Pledgor
and may transfer all or any of the Pledged Securities and may fill in
all blanks in any transfers of stocks, bonds or debentures or any
power of attorney or other documents delivered to it, and the Lender
may delegate its powers and any subdelegate of the powers hereby given
may exercise the same in the name and on behalf of the Pledgor;
(f) at the request of the Lender the Pledgor will, at its own expense,
execute all such transfers and documents as may be reasonably
required, with all such powers of sale and other necessary powers as
may be expedient for vesting in the Lender, or such person or nominee
as it may appoint, all and every Pledged Securities;
(g) all costs and charges incurred by the Lender with reference to the
Pledged Securities or the realization thereof (including all legal
costs on the basis as between a solicitor and his own client and court
costs paid and also including expenses of taking possession of,
protecting and realizing upon any property comprised in the Pledged
Securities) shall be added to the Indebtedness and shall be a first
charge upon the monies received;
(h) any substituted Pledged Securities shall be held by the Lender subject
to the same terms and conditions and with the same powers and
authorities, as are hereby declared and conferred. If any payment on
account be made the Lender shall not by reason thereof be required to
surrender any of the Pledged Securities;
(i) the Lender shall have the right to but shall not be bound nor required
to exercise any option or right which the holder of any of the Pledged
Securities may at any time have, and any advance made for such
3
purposes shall be added to the Indebtedness and all the provisions
hereof shall apply thereto;
(j) the Lender shall be entitled to vote upon the Pledged Securities at
any meeting whether special or general at which the holder of such
Pledged Securities is entitled to vote, and is also hereby
authorized to give and grant to such person as they may deem
appropriate power to vote upon the Pledged Securities.
6. Non-Merger
----------
This Pledge Agreement shall be a continuing agreement and the Pledged
Securities are in addition to and not in substitution for any other security
held by the Lender and shall not operate as a merger of any simple contract debt
or suspend the fulfillment of, or affect the rights, remedies and powers of the
Lender in respect of the Indebtedness and the Liability or any Pledged
Securities held by the Lender hereunder. All claims, present or future, of the
Pledgor against any person liable upon or for payment of any of the Pledged
Securities are hereby assigned to the Lender.
7. Exhaust Recourses
-----------------
It is further agreed that the Lender shall not be obliged to exhaust
its recourses against the Pledgor or any other party or against any other
security it may hold before realizing on or otherwise dealing with the Pledged
Securities. The Lender may realize on the Pledged Securities in such manner as
the Lender considers desirable, and the Lender may grant time, renewals,
extensions, indulgences, releases and discharges to, may take securities from
and give the same and any and all existing Pledged Securities up to, may abstain
from taking securities from, or from perfecting securities of, may accept
compositions from, and may otherwise deal with the Pledgor and the Pledged
Securities, as the Lender may see fit, without prejudice to the right of the
Lender to hold, deal with and realize on the Pledged Securities in any manner
which the Lender considers desirable.
8. Degree of Care
--------------
The Lender's responsibility is limited to exercising in regard to the
Pledged Securities the same degree of care which it gives to valuable property
of the Lender.
9. Liability for Others
--------------------
The Lender shall not be responsible for or on account of any act or
omission of any broker or similar agent employed by the Lender to purchase or
sell any stocks, bonds, shares or securities for the account of the Pledgor. In
no event
4
shall the Lender be responsible for or warrant title to any stocks, bonds,
shares or securities dealt in for the Pledgor's account.
10. Information
-----------
The Lender shall have no duty or responsibility to forward any notice
received by the Lender regarding any Pledged Securities or as regards voting in
respect thereof or as regards any subscription, conversion or other rights in
respect thereof, or as regards any merger, consolidation, reorganizations,
receivership, bankruptcy or insolvency proceedings, compromise or arrangement or
the deposit of any securities in connection therewith or otherwise, nor shall
the Lender be under any duty to investigate or participate therein or take any
action in connection therewith except in accordance with written instructions
from the Pledgor and upon such indemnity and provision for expense as the Lender
may require.
11. Indemnity
---------
The Pledgor agrees to indemnify the Lender and its nominees against
and hold them harmless from all expenses, liability, claims and demands arising
out of the holding of the Pledged Securities or anything lawfully done
hereunder. In all matters relating hereto the Lender may in its discretion act
on the opinion or advice of counsel and shall not be responsible for any
consequences of acting or not acting in accordance therewith.
12. Taxes
-----
The Pledgor hereby agrees to indemnify and save harmless the Lender
against any and all taxes and other claims pertaining to the said securities
including without limitation any and all taxes, withholding and similar claims.
13. Redelivery
----------
At any time when the Company and the Pledgor are not indebted to the
Lender, the Lender will, at the request of the Pledgor, deliver the Pledged
Securities to the Pledgor.
14. Execute
-------
The Pledgor agrees that it will at all times do, execute, acknowledge,
and deliver or cause to be done, executed, acknowledged, or delivered all and
every such further acts, deeds, or assurances as the Lender may reasonably
require for the better charging, pledging or securing to the Lender the
securities now or hereafter charged, pledged or secured or intended so to be and
for carrying out the purpose of this Pledge Agreement.
5
15. Proper Laws
-----------
This Pledge Agreement shall be subject to the laws of the Province of
British Columbia and shall be construed and enforced in accordance with such
laws.
16. Binding Effect
--------------
This Pledge Agreement shall be binding upon the Pledgor and the
successors and assigns of the Pledgor and shall enure to the benefit of the
Lender and its successors and assigns. "Successors" shall include any
corporation or company resulting from the amalgamation of one or more
corporations or companies.
17. Acknowledgement and Waiver
--------------------------
The Pledgor hereby acknowledges receiving a copy of this Pledge
Agreement and waives all right to receive from the Lender a copy of any
Financing Statement or Financing Change Statement filed at any time in respect
of this Pledge Agreement or any Verification Statement issued in connection
therewith.
IN WITNESS WHEREOF the Pledgor has executed this Pledge Agreement as
of the day and year first above written.
UNILENS VISION INC.
per:
C/S
--------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
6
SCHEDULE "G" TO A LOAN AGREEMENT DATED JANUARY 19,1993 MADE BETWEEN
UNILENS CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
UNILENS CORP. USA
POSTPONEMENT AGREEMENT
TO: EBC ZURICH AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
The undersigned, for valuable consideration, hereby agrees that
payment of air debts, demands and choses in action which are now due, owing or
accruing due or may hereafter become due, owing or accruing due to the
undersigned by Unilens Vision Inc. (hereinafter called the "Customer") shall be
postponed to the payment in full of all present and future indebtedness and
other liabilities of the Customer to EBC Zurich AG (hereinafter called the
"Lender"); and the undersigned hereby assigns and transfers to the Lender, as
security for all present and future indebtedness and other liabilities of the
undersigned and the Customer to the Lender, all debts, demands and choses in
action which are now due, owing or accruing due or may hereafter become due,
owing or accruing due to the undersigned by the Customer and also all securities
and rights of any nature which are now or may hereafter be held by the
undersigned as collateral therefor. Furthermore the undersigned agrees that all
moneys receive by the undersigned in payment of any of the said debts, demands
and choses in action shall be received and held by the undersigned in trust for
the Lender.
The undersigned acknowledges and agrees that this Agreement shall not
defer or otherwise affect the present or future rights and remedies of the
Lender with respect to the present or future indebtedness and other liabilities
of the undersigned and the Customer to the Lender, or with respect to the
securities which the Lender now holds or may hereafter receive from the
undersigned and the Customer as collateral for the said indebtedness and other
liabilities.
The undersigned acknowledges receiving a copy of this Agreement and
waives all rights to receive from the Lender a copy of any Financing Statement
or Financing Change Statement filed at any time in respect of this Agreement or
any Verification Statement issued in connection therewith.
This Agreement shall be binding upon the successors and assigns of the
undersigned.
IN WITNESS WHEREOF the undersigned has executed this Agreement this
___ day of January, 1993.
THE CORPORATE SEAL of UNILENS
CORP. USA was hereunto affixed
in the presence of:
C/S
---------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, Director
ACKNOWLEDGEMENT AND ACCEPTANCE
The Customer named in the foregoing Postponement Agreement hereby
acknowledges that it has received notice thereof and hereby accepts the
assignment and transfer made therein in favour of EBC Zurich AG.
DATED this ___ day of January, 1993.
The Common Seal of UNILENS
VISION INC. was hereunto affixed in
the presence of:
c/s
---------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
2
SCHEDULE "G" TO A LOAN AGREEMENT DATED JANUARY 19,1993 MADE BETWEEN
UNILENS CORP. USA, UNILENS VISION INC. AND EBC ZURICH AG
UNILENS VISION INC
POSTPONEMENT AGREEMENT
TO: EBC ZURICH AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
The undersigned, for valuable consideration, hereby agrees that
payment of all debts, demands and choses in action which are now due, owing or
accruing due or may hereafter become due, owing or accruing due to the
undersigned by Unilens Corp. USA (hereinafter called the "Customer") shall be
postponed to the payment in full of all present and future indebtedness and
other liabilities of the Customer to EBC Zurich AG (hereinafter called the
"Lender"); and the undersigned hereby assigns and transfers to the Lender, as
security for all present and future indebtedness and other liabilities of the
undersigned and the Customer to the Lender, all debts, demands and choses in
action which are now due, owing or accruing due or may hereafter become due,
owing or accruing due to the undersigned by the Customer and also all securities
and rights of any nature which are now or may hereafter be held by the
undersigned as collateral therefor. Furthermore the undersigned agrees that all
moneys receive by the undersigned in payment of any of the said debts, demands
and choses in action shall be received and held by the undersigned in trust for
the Lender.
The undersigned acknowledges and agrees that this Agreement shall not
defer or otherwise affect the present or future rights and remedies of the
Lender with respect to the present or future indebtedness and other liabilities
of the undersigned and the Customer to the Lender, or with respect to the
securities which the Lender now holds or may hereafter receive from the
undersigned and the Customer as collateral for the said indebtedness and other
liabilities.
The undersigned acknowledges receiving a copy of this Agreement and
waives all rights to receive from the Lender a copy of any Financing Statement
or Financing Change Statement filed at any time in respect of this Agreement or
any Verification Statement issued in connection therewith.
This Agreement shall be binding upon the successors and assigns of the
undersigned.
IN WITNESS WHEREOF the undersigned has executed this Agreement
this ___ day of January, 1993.
THE COMMON SEAL of UNILENS
VISION INC. was hereunto affixed in the
presence of:
C/S
---------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, President
ACKNOWLEDGEMENT AND ACCEPTANCE
The Customer named in the foregoing Postponement Agreement hereby
acknowledges that it has received notice thereof and hereby accepts the
assignment and transfer made therein in favour of EBC Zurich AG.
DATED this ___ day of January, 1993.
The Corporate Seal of UNILENS CORP.
USA was hereunto affixed in the
presence of:
c/s
---------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, Director
2