Ex. 10.63
DEPOSIT PLEDGE AGREEMENT
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THIS AGREEMENT is made as of October 11, 2001 by and between Implant
Sciences Corporation, 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
("PLEDGOR") and Citizens Bank of Massachusetts (the "LENDER"), 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
In order to induce the Lender to extend credit pursuant to Pledgor, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Pledgor hereby assigns to the Lender and grants to the
Lender a security interest in, and exclusive control over the Collateral as
described below. The Collateral is pledged to secure performance of all
obligations of the Pledgor to the Lender, direct or indirect, absolute or
contingent, now existing or hereafter arising of every kind and description
arising out of the Commercial Promissory Note dated January 18, 1998 executed by
Pledgor in favor of Lender, Commercial Term Loan, Revolving Loan and Security
Agreement dated December 22, 1999 as amended by a Modification Agreement dated
October 11, 2001, each between the Lender and the Pledgor and out of the
Commercial Promissory Note dated January 18, 1998 executed by Pledgor in favor
of Lender.
COLLATERAL:
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The Collateral is Account No. maintained at Lender.
The Collateral shall remain in the control or possession of the Lender and
shall constitute continuing collateral security for the full payment and
performance of the Obligations. Pledgor agrees that so long as any of the
Obligations remains outstanding no action of any kind whatsoever may be taken by
Pledgor or any other person or entity with respect to any portion of the
Collateral without the Lender's written consent. The Lender is hereby
authorized and appointed as agent and attorney-in-fact of Pledgor, which
appointment is coupled with an interest and shall be irrevocable so long as any
of the Obligations remain outstanding, to sign and deliver such documents,
endorsements and instruments and to take all such other actions in the name of
Pledgor as the Lender may deem necessary or advisable to perfect or preserve its
security interest in, and lien on, the collateral.
WAIVERS BY GUARANTOR:
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Pledgor waives: notice of acceptance hereof, notice of any action taken or
omitted by the Lender in reliance hereon, notice of default with respect to any
of the Obligations and, to the fullest extent it may effectively do so under
applicable law, all defenses which might at any time be available to it.
PLEDGE UNCONDITIONAL:
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This Agreement is the direct, unconditional, absolute and primary
obligation of Pledgor, and no invalidity, irregularity or unenforceability of
all or any part of the Obligations or of any security therefor shall affect,
impair or be a defense to this Agreement. This Agreement and the collateral are
given to secure payment, and not merely collection of the Obligations.
DEFAULTS AND REMEDIES:
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Each of the following shall constitute a default hereunder: any failure by
the Pledgor to pay, perform or observe any obligations on its part hereunder or
under the aforementioned loan to Pledgor as the case may be beyond any
applicable grace period; the service upon the Lender or such facility or branch
as trustee, or of any similar writ or process of attachment relating to any
deposit or property of Pledgor. Upon the occurrence of any default hereunder,
the Lender may apply any Collateral to the satisfaction of any or all of
Pledgor's and/or Pledgor's Obligations and pursue any additional rights or
remedies available to it under this Agreement, any agreement between the Lender
and Pledgor or applicable law.
REPRESENTATIONS AND WARRANTIES:
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Pledgor represents and warrants to the Lender that except for the security
interest granted to the Lender hereunder the Collateral is and shall remain free
from any adverse lien, security interest or encumbrances in favor of others; it
is duly organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts; it has full power to enter into and perform this
Agreement and has taken all necessary corporate or other action to authorize the
execution, delivery and performance of this Agreement; this Agreement
constitutes the legal, valid and binding obligations of Pledgor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally; the execution, delivery and
performance of this Agreement will not violate any provisions of any existing
law, treaty or regulation applicable to Pledgor or of its Articles of
Organization and By-Laws, or other governing documents, or of any order or
decree of any court, arbitrator or governmental agency or of any contractual
undertaking to which it is a party or by which it may be bound; no consents,
licenses, approvals or authorizations of, exemptions by or registrations or
declarations with, any governmental authority are required with respect to this
Agreement.
COSTS:
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Pledgor agrees to reimburse the Lender for any out-of-pocket costs or
expenses (including without limitation reasonable fees and disbursements of
counsel) incurred by the Lender in connection with the preservation or
enforcement of its rights or remedies under this Agreement or any agreement
between Pledgor and the Lender.
INTERPRETATION, ETC.:
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This Agreement is a continuing one and all liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon. No delay on the part of the Lender in exercising
any of its options, powers or rights, or partial or single exercise thereof,
shall constitute a waiver thereof. Except as expressly provided herein, no
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waiver of any of rights and no modification or amendment of this Agreement shall
be deemed to be made by the Lender unless the same shall be in writing, duly
signed on behalf of the Lender; each such waiver (if any) shall apply only with
respect to the specific instance involved and shall in no way impair the rights
of the Lender or the obligations of Pledgor to the Lender in any other respect
or at any other time. The Collateral, this Agreement and the rights and
obligations of the Lender and of Pledgor hereunder shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
This Agreement is binding upon Pledgor, its successors and assigns and shall
inure to the benefit of the Lender and its respective successors or assigns.
The headings contained herein are for convenience only and shall not affect the
construction hereof.
SUBMISSION TO JURISDICTION:
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Pledgor irrevocably submits to the non-exclusive jurisdiction of any state
or federal court sitting in Boston, Massachusetts over any suit, action or
proceeding arising out of or relating to this Agreement or the Collateral.
Pledgor irrevocably waives, to the fullest extent it may effectively do so under
applicable law, its right to a trial by jury, and any objection which it may
have or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Pledgor agrees, to the fullest extent it may effectively do so under applicable
law, that a final judgment in any such suit, action or proceeding brought in any
court shall be conclusive and binding upon Pledgor and may be enforced in the
courts of the United States of America and the Commonwealth of Massachusetts (or
any other courts to the jurisdiction of which Pledgor is or may be subject) by a
suit upon such judgment, provided that service of process is effected on Pledgor
as permitted by law.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly executed
under seal and delivered as of the date first above written.
WITNESS: IMPLANT SCIENCES CORPORATION
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Its: Chief Executive Officer
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Date: 10/11/01
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Then personally appeared the above-named Xxxxxxx X. Xxxxxx, of Implant
Sciences Corporation and acknowledged the foregoing instrument to be the free
act and deed of said corporation before me,
/s/ Xxxxxxx Xxxxxxx
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Notary Public
My commission expires 2/4/05
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