LOAN AGREEMENT AND
ASSIGNMENT
THIS AGREEMENT made as of this 31st day of May, 2000, by and between
LIFECELL CORPORATION, a Delaware Corporation, having its principal executive
offices at Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Borrower") and
PUBLIC SERVICE NEW MILLENNIUM ECONOMIC DEVELOPMENT FUND L.L.C., a New Jersey
limited liability company, having its principal executive offices at 00 Xxxx
Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx 00000, ("Lender").
WITNESSETH:
WHEREAS, subject to certain conditions Borrower has entered into an
agreement dated as of March 26, 1999, as amended from time to time (the "BEIP
Agreement") with the NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the "NJEDA"),
whereby pursuant to the Business Employment Incentive Program, N.J.S.A.
34:1B-120 et seq., (the "Act"), the NJEDA in accordance with the provisions of
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the Act shall provide to Borrower a Business Employment Incentive Grant (the
"Grant") equal to 80% of Withholdings for the Grant Payment Period as those
terms are defined in the BEIP Agreement; and
WHEREAS, the offer of the Grant and the conditions for the disbursement of
the proceeds are set are set forth in the BEIP Agreement; and
WHEREAS, Borrower, a bio-engineering company engaged in the development and
commercialization of tissue regeneration and cell preservation products, intends
to relocate a significant portion of its facilities from Houston, Texas to
Branchburg, New Jersey (the "New Jersey Facility"), which relocation will
provide for approximately one hundred fifty (150) employees upon its completion;
and
WHEREAS, Borrower intends to fund its relocation costs in part through a
loan. (the "Loan") from Lender in the amount of SIX HUNDRED FIFTY THREE THOUSAND
TWO HUNDRED TWO 13/100 Dollars ($653,202.13); and
WHEREAS, Borrower in order to induce Lender to provide the Loan agrees to
presently, absolutely and unconditionally assign to Lender of all of Borrower's
right, title and interest in and to payments to Borrower under the Act (the
"NJBEIP Payments"), which funds are payable to Borrower in annual installments
of $105,840 for a period of ten years commencing on or about the end of the
second calendar quarter in the calendar year 2001(the "Payment Period"), which
assignment shall provide for direct payment of the NJBEIP Payments to. Lender by
the State of New Jersey until such time as the Loan shall have been repaid in
full, with Borrower remaining obligated, in the event of Borrower's failure to
qualify for the full amount of the NJBEIP Payments assigned to Lender or for any
shortfall in the amount of any installment of the NJEDA Payments for any reason,
for such amounts as shall be required to fully amortize the Loan and to pay
Lender the amount of such shortfall as provided in the Note as hereinafter
defined; and
NOW, THEREFORE, and in consideration of the promises and mutual covenants
herein contained the parties hereto agree as follows:
1. The Loan.
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Subject to the terms and conditions of this Agreement, Lender shall loan to
Borrower and Borrower shall borrow from Lender the Loan in the principal amount
SIX HUNDRED FIFTY THREE THOUSAND TWO HUNDRED TWO .13/100 Dollars ($652,202.13).
The Loan shall be for a term of ten years payable annually in arrears, shall be
fully amortizing over the term of the Loan, shall bear interest at a per annum
rate of Nine Percent (9.00%) and shall be secured, by an assignment to Lender of
all of Borrower's right, title and interest in and to the NJBEIP Payments, which
funds are payable to Borrower in ten annual installments over the Payment
Period, which assignment shall provide for direct payment of the NJBEIP Payments
to Lender by the State of New Jersey until such time as the Loan shall have been
fully repaid, with Borrower remaining obligated, in the event of Borrower's
failure to qualify for the full amount of the NJBEIP Payments assigned hereby to
Lender or for any shortfall in the amount of any installment of the NJEDA
Payments for any reason, for such amounts as shall be required to fully amortize
the Loan and to pay to Lender the amount of any such shortfall as provided in
the Note as hereinafter defined. To evidence Borrower's obligations under this
Section 1, Borrower shall execute and deliver an installment note (the "Note")
in the principal amount of SIX HUNDRED FIFTY THREE THOUSAND TWO HUNDRED TWO
13/10 0 Dollars ($653,202.13) and which shall bear interest at a per annum rate
Percent (9.00%)on the outstanding principal balance until paid in full.
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2. Agreement to AssignandTransfer.
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Subject to the terms and conditions of this Agreement, Borrower hereby
agrees to presently, absolutely and unconditionally assign and transfer and
hereby does assign and transfer' all of Borrower's right, title and interest in
and to the NJBEIP Payments to Lender until such time as the Loan shall have been
fully repaid, with Borrower remaining obligated, in the event of Borrower's
failure to qualify for the full amount of the NJEEIP Payments assigned hereby to
Lender or for any shortfall in the amount of any installment of the NJEDA
Payments for any reason, for such amounts as shall be required to fully amortize
the Loan and to pay to Lender the amount of any such shortfall as provided in
the Note, and Lender hereby agrees to accept assignment of Borrower's right,
title and interest as aforesaid in consideration of the payment by Lender of
$105,840 to Borrower. Borrower agrees that, notwithstanding the fact that the
rights to receive the NJBEIP Payments are being assigned, (i) Borrower shall
retain all duties and obligations under the terms and conditions of the BEIP
Agreement and (ii) Borrower shall remain obligated, in the event of Borrower's
failure to qualify for the full amount of the NJBEIP Payments assigned to Lender
or for any shortfall of any installment of the NJEDA Payments for any reason,
for such amounts as shall be required to fully amortize the Loan and to pay to
Lender the amount of any such shortfall as provided in the Note. Borrower
further agrees that it shall obtain the consent and agreement of the State of
New Jersey to the direct payment of each annual installment of the NJBEIP
Payments to Lender by the State of New Jersey until such time as the Loan shall
have been fully repaid. To evidence such consent and agreement on the part of
the State of New Jersey, Borrower shall secure the execution and delivery by the
State of New Jersey of an instrument of consent and agreement (the "Consent and
Agreement") in substantially the form of Exhibit B.
Borrower acknowledges and agrees that the assignment of the NJBEIP Payments
described herein constitutes an unconditional, absolute and present assignment
from New Jersey Economic Development Authority to the Lender of all of
Borrower's right, title and interest in and to such payments, and not an
assignment in the nature of a pledge or a mere grant of a security interest
therein.
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3. Security Interest Granting Clause.
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UCC Collateral Granting Clause [INTENTIONALLY DELETED]
Perfection. At or before closing, Borrower shall execute and deliver UCC-l
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Financing Statements covering all assignments contemplated in Section 2 and
security interests granted under this Section 3 in a form suitable for filing in
all places necessary or desirable to perfect such security interest and in all
other places as Lender shall have reasonably requested.
Reimbursement of Expenses. At the option of the Lender as secured party,
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and after notice to Borrower the Lender may discharge taxes, liens, interest, or
perform or cause to be performed for and on behalf of -Borrower any actions and
conditions, obligations, or covenants that Borrower have failed or refused to
perform, and may pay for the preservation of the assignments and security
interest granted hereunder, and all sums so expended, including, but not limited
to, attorneys' fees, court costs, insurance premiums, agent's fees, or
commissions, or any other costs or expenses, shall bear interest from the date
of payment at the rate of Eighteen Percent (18%) per annum computed on the basis
of the actual number of days elapsed over a 360-day year, and shall be payable
upon demand and shall be supported by the assignment set forth in Section 2
hereof and secured by the security agreement set forth in this Section 3.
Performance. Borrower shall perform the Obligations supported by the
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assignment contemplated in Section 2 and secured by the security provisions of
this Section 3, and any renewal or extensions hereof, in accordance with the
terms and conditions hereof and shall repay immediately all sums expended by
Lender as assignee and/or secured party in accordance with the terms and
conditions of this Agreement. Upon the completion by Borrower of the Obligations
supported or secured hereunder, the assignment contemplated in Section 2 and
security provisions of this Section 3 shall be terminated and the Collateral
shall be released from the lien hereof.
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4. Conditions Precedent to the. Obligations of the Lender.
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The obligation of Lender to make the Loan to Borrower is subject to the
fulfillment, to the satisfaction of or waiver by the Lender, on or prior to the
closing date, of the following conditions precedent:
No Continuing Event of Default. No Events of Default hereunder shall have
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occurred and be continuing uncured, unless all such defaults have been expressly
waived by the Lender in writing, in its sole discretion.
Opinion of Counsel. The Lender shall have received an opinion of counsel
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to Borrower, dated as of the closing date, in substantially the form of Exhibit
D.
Authorizations; Execution and Delivery of Documents. The following
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documents shall have been duly authorized, executed and delivered by the
Borrower shall be in full force and effect on the closing date, and original,
executed counterparts (or copies in the case of clause (iv)) of each thereof
shall have been delivered to Lender:
(i) this Agreement;
(ii) the Note;
(iii) the BEIP Agreement;
(iv) a secretary or an assistant secretary's certificate and incumbency
certificate.
UCC-1 Financing Statements. UCC-1 Financing Statements covering all of
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the assignment contemplated in Section 2 and the security interests created by
or pursuant to Section 3 of this Agreement in a form suitable for filing in all
places necessary or desirable to perfect such security interest and in all such
other places as Lender shall have reasonably requested shall be executed and
delivered to Lender at closing and there shall have been taken all other action
reasonably requested by Lender to perfect such assignment security interests.
Litigation. No action, proceeding or investigation, other than such due
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diligence investigations as Borrower may have undertaken, shall have been
instituted or threatened questioning the validity or legality of this Agreement
or the transactions contemplated hereby or the ability of a party hereto to
consummate such transactions and no action or proceeding shall have been
instituted against Borrower which if decided adversely to Borrower or Borrower's
interests would materially and adversely effect Borrower's ability to perform
the Obligations.
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Representations and Warranties. The representations and warranties
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of Borrower contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on the closing date. In the
event that the closing date shall be other than the date of this Agreement,
Borrower shall deliver to Lender a certificate of a responsible officer of
Borrower, dated as of the closing date, in substantially the form of Exhibit G,
to the effect that all of the representations and warranties of Borrower
contained in this Agreement are true and correct in all material respects as of
the closing date.
Change in Law. No change shall have occurred in applicable law or
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regulations thereunder or interpretations thereof by the appropriate regulatory
authorities which, in the opinion of Lender or its counsel, would make it
illegal for the Lender to fully perform its obligations hereunder.
5. Representations, Warranties of Borrower.
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Borrower makes the following representations and warranties to the Lender.
Organization and Status. Borrower is a corporation duly organized and
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validly existing in good standing under the laws of the State of Delaware and
its otherwise duly authorized to transact business in the State of New Jersey.
It has all the requisite power and authority to own and operate its properties,
to carry on its business as presently conducted and to enter and perform its
obligations under this Agreement and the Note.
No Consent Required. Neither the execution and delivery by Borrower of this
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Agreement or he Note nor the performance by Borrower of its obligations
hereunder or thereunder requires the consent or approval of, the giving of
notice to, or the registration with or the taking of any action in respect of-
any Federal, state or foreign governmental authority or agency, except for the
actions contemplated in the immediately following paragraph.
Financing Statements. Except for the filing of financing statements (and
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continuation statements at periodic intervals) with respect to the assignments
and security interests created by this Agreement under the UCC, no further
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action, including any filing or recording of any document, is necessary or
advisable in order to establish Lender's. security interest contemplated
hereunder as against Borrower and any third parties in any applicable
jurisdiction in the United States.
No Conflicts, etc. Neither the execution and delivery by Borrower of this
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Agreement, the Note or the Consent and Agreement nor the consummation by it of
the transactions contemplated hereby or thereby nor the compliance by it with
the provisions hereof or thereof will contravene any Federal or state law,
governmental rule or regulation, or any judgment or order applicable to or
binding on Borrower, or contravene, result in any breach of or constitute a
default under, or result in the creation of any lien (other than liens
contemplated hereby) upon any of its property under its certificate of
incorporation or by-laws or any agreement or instrument to which it is a party
or by which any of its properties may be bound.
Due Authorization. The execution, delivery and performance of this
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Agreement, the Note and the Consent and Agreement have been duly authorized by
all necessary corporate action of Borrower. Each of this Agreement, the Note and
the Consent and Agreement at the time of delivery thereof constituted or will
constitute the legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms, assuming the due authorization,
execution and delivery thereof by each of the other parties thereto and that
each of such other parties has full power, authority and the legal right to
enter into such agreement, and subject to the applicable bankruptcy, insolvency
and similar laws affecting the enforcement of creditors' rights generally, and
subject, as to enforceability, to the general principles of equity regardless of
whether enforcement is sought in equity or at law.
No Approvals Required. The execution and delivery by Borrower of each of
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this Agreement, the Note and the Consent and Agreement and the performance by
Borrower of its obligations under such agreements do not require any approval or
consent of any trustee or holder of any indebtedness.
No Material Litigation. There are not pending or, to the knowledge
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of Borrower, threatened investigations, suits or proceedings against it or
affecting it or its properties that reasonably may be expected to have a
material adverse effect on the Borrower's ability to perform its obligations
under this Agreement, the Note or the Consent and Agreement.
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Taxes and Tax Returns. All tax returns and reports of Borrower required by
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law to be filed have been duly filed and all taxes, assessments, fees and other
governmental charges upon Borrower or upon any of its respective properties,
assets, income or franchises which are due and payable pursuant to any
assessment received by Borrower have been paid other than those which are
presently payable without penalty or interest.
No Material Change. There have been no material changes in the aggregate
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assets or aggregate liabilities or in the condition, financial or otherwise, of
Borrower from that set forth in the financial statements delivered by Borrower
to the NJEDA in connection with its application (the "Application") for the
Grant, or delivered by Borrower to Lender in connection with its application
(the "NMF Application") for the Loan.
Correctness of Application,NMFApplication, Statements, Representations
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and Warranties; Lender's Reliance. All statements, representations and
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warranties made by Borrower in its Application, and/or its NMF Application and
any materials submitted in support of Borrower's Application and/or its NMF
Application are true. It is understood by Borrower that all such statements,
representations and warranties shall be deemed to have been relied upon by
Lender as an inducement to enter into this Agreement and that if any such
statements, representations or warranties were materially false at the time they
were made Lender may, in its sole discretion, consider any such
misrepresentation an Event of Default as hereinafter defined.
Chief Executive Office. The chief executive office of Borrower is located
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at Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. None of Borrower's books
and records are maintained in any other location. Borrower shall notify Lender
in writing of any change in the location of Borrower's chief executive office.
Borrower's Non-reliance on Lender. Borrower represents that it has at
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all times relevant to this Agreement been represented by advisors of its own
selection, including, but not limited to, attorneys at law, and/or certified
public accountants; that it has not relied upon any statement, representation,
warranty, agreement or information provided by Lender; that it acknowledges that
8
it is informed by its advisors of its respective rights, duties, and obligations
with respect to the transactions which are the subject of this Agreement under
all applicable laws, and that it has no set-off s, defenses or counterclaims
against Lender with respect to the transaction which is the subject of this
Agreement.
Borrower's Obligation to Notify Lender. If during the term of this
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Agreement Borrower becomes aware of any facts, occurrences, information,
statements, or events that render any of the foregoing representations or
warranties herein untrue or materially misleading or incomplete, Borrower shall
immediately notify Lender.
6. Covenants of Borrower.
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Certificate of Occupancy. Promptly upon issuance of a final certificate of
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occupancy for the New Jersey Facility Borrower will deliver a copy thereof to
Lender.
Corporate Existence. Borrower shall at all times maintain its corporate
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existence and Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its rights (charter and statutory)
and franchises; provided, however that Borrower shall not be required to
preserve any right or franchise if its board of directors shall determine that
the preservation thereof is no longer desirable in the ordinary conduct of the
business of Borrower and that the loss thereof does not adversely affect or
diminish the rights of the Lender.
Compliance with BEIP Agreement. Borrower shall perform each of its
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obligations, covenants and agreements under the BEIP Agreement, including but
riot limited to, Borrower's reporting obligations under Paragraph 3 Reporting
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Requirements of the BEIP Agreement.
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Audits and Inspections. At any time during normal business hours upon
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written notice, and so long as no Event of Default as hereinafter defined shall
have occurred and be continuing no more than once during any calendar year,
Lender or its auditors may audit the "Books and Records" of the Borrower
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relating to the New Jersey Facility, the Project, the Obligations, the NJEDA
Payments and/or Borrower's reporting obligations pursuant to the immediately
following paragraph (Financial and Other Information), and in order to
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determine and/or confirm Borrower's performance of any covenant, warranty or
agreement contained in this Agreement or in the Note. All audits and related
9
activities conducted by Lender or its auditors? shall be at Borrower's sole cost
and expense, and Borrower shall reimburse Lender for all such costs. "Books and
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Records" shall mean, without limitation, and however identified or denominated
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by Borrower, and to the extent in Borrower's possession or control, income and
operating statements, balance sheets, bank statements, deposit slips, cash
journals and. registers, receivable ledgers, receivable aging and delinquency
reports, management letters and notices, billing invoices, accounts payable
ledgers or registers, canceled checks, voucher registers, expense ledgers,
service contracts, expense invoices, utility bills, tax bills and receipts,
insurance premium statements or bills, insurance binders and policies, payroll
records and registers, management agreements, correspondence with or Notices
from the NJEDA or any other party, applications for any NJEDA programs, and
agreements and/or instruments entered into by and between Borrower and the
NJEDA, any and all reports, documents, schedules, compilations, returns, filings
and/or other materials required to be delivered by Borrower pursuant to the
immediately following paragraph (Financial and Other Information) and all
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detail, backup and/or supporting documentation therefor.
Financial and Other Information. (a) Financial Information. Borrower shall
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deliver to Lender the following financial and other information, all of which
shall be prepared (1) so as to accurately and fairly reflect in reasonable
detail the transactions of Borrower and (2) in accordance with generally
accepted accounting principals ("GAAP") consistently applied (except for changes
which have been fully disclosed in writing to Lender by Borrower's independent
public accountants) (i) Annually. Within 90 days after the end of each fiscal
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year: (1) Borrower's Financial Statements as of the end of each such fiscal
year, certified by Borrower's independent public accountant's and setting forth
comparisons for the preceding fiscal year; (2) a certificate of Borrower's chief
financial officer ("CFO"), stating that to the best of the CFO'S knowledge,
information and belief after a review by the CFO or those under the CFO's
supervision of this Agreement no condition or Event of Default as hereinafter
defined exists, or, if existing, specifying the nature thereof and any action,
taken or proposed, to remedy such condition or Event of Default as hereinafter
10
defined; (3) TaxReturns, promptly upon filing, a copy of all completed Federal
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and State tax returns of whatever kind or nature; and (4) Accountant's
Reliance Letter. Contemporaneously with the audited financial statements
required. Pursuant to clause (i) above a privity letter from the
Borrower's independent public accountants indicating said accountant's
acknowledgment of the Lender's ability to rely on said audited statements; (ii)
Within 60 days of the end of each of the first three fiscal quarters of each
fiscal year, an unaudited balance sheet and the related income and cash flow
statements of Borrower as of at the end of such quarterly period,
setting forth year to date totals, and in each case setting
forth comparisons for the corresponding periods of the preceding fiscal
year, prepared in reasonable detail and certified by Borrower's CFO as
presenting fairly, in accordance with GAAP, the information contained therein
(subject to normal year-end adjustments) (b) Other Information. (i) Management
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Letters. Promptly upon receipt by Borrower, a copy of each material report or
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letter delivered to Borrower by its independent public accountants in connection
with any annual, interim or special audit of Borrower; and (ii) NJEDA BEIP
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Agreement Reports & Information. No later than March 1 of the year following the
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calendar year in which the Minimum Eligibility Threshold (the "MET"), as such
term is defined in the BEIP Agreement, is reached and no later than March 1 of
each succeeding year, through and including the calendar year following the year
in which the Final Grant period, as defined in the BEIP Agreement, occurs a copy
of all reports, documents, schedules, compilations, returns, filings, and/or
other materials delivered to the NJEDA pursuant to Borrower's reporting
requirements under Paragraph 3 (Reporting Requirements) of the BEIP Agreement.
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Notices. Upon the CFO or any other Responsible Officer of Borrower having
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actual knowledge thereof, Borrower shall promptly give notice to Lender of the
following: (i) Material Adverse Change in Business. Any material adverse change
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in the business, operations, results of operations, or condition of Borrower, or
the occurrence of any material default, Event of Default as hereinafter defined
or breach under this Agreement or under any other material contractual
obligation of Borrower irrespective of fault; (ii) Governmental Authority
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Investigation or Other Litigation. Any litigation, investigation, inquiry
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action or proceeding which may exist at any time between Borrower and any
governmental authority or any third party which has or is likely to have a
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material adverse effect on the business, operations, prospects, results of
operations or otherwise of Borrower or its ability to perform under this
Agreement, the Note, the BEIP Agreement, and/or the Consent and Agreement; (iii)
Casualty. or Notice of Taking. Any casualty or notice of taking by eminent
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domain or condemnation which has or is likely to have a material adverse effect
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on the business, operations, prospects, results of operations or otherwise of
Borrower or its ability to perform under this Agreement, the Note, the BEIP
Agreement, and/or the Consent and Agreement; or (iv) NJEDANotices. Any Notices
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delivered to Borrower by the NJEDA pursuant to the BEIP Agreement or otherwise.
Adherence to State and Federal Laws and Regulations. Borrower agrees
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to comply with all applicable Federal, state and local laws relevant to the
Jersey City Facility, the operation thereof, and the conduct of Borrower's
business. Borrower accepts full responsibility for payments of all unemployment
compensation, insurance premiums, worker's compensation premiums, income tax
withholding, social security deductions, and- any and all other taxes and/or
payroll deductions required for all employees engaged by the Borrower in the
operation of Borrower' s business.
Further Assurances; Recordations and Filings. The Borrower shall, at its
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sole cost and expense, cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents and assurances as
the Lender from time to time may reasonably request in order to carry out more
effectively the intent and purposes of this Agreement, the Note, the BEIP
Agreement and/or the Consent and Agreement and the transactions contemplated
hereby or thereby. The Borrower shall cause the financing statements (and
continuation statements with respect thereto), and any other documents or
instruments necessary or desirable in that connection, to be recorded or filed
at such places and times, and in such manner, and shall take, or cause to be
taken, all such other action as need be necessary or reasonably requested by the
Lender in order to (i) establish, preserve, protect and perfect the interests of
the Lender in the Collateral and the Lender's lien in the Collateral, and (ii)
establish, preserve, protect and perfect the rights, interests (and the priority
thereof) and remedies created or intended to be created in favor of the Lender.
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Insurance. Borrower, agrees to insure its interests in the New Jersey
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Facility with insurance companies licensed to do business in New Jersey in
such manner and against such loss, damage and liability to third parties as
is customary with companies in the same or similar business. Borrower shall
at all times carry general liability insurance with companies licensed to do
business in New Jersey in amounts approved by the Lender.
At all times during the term of this Agreement, Borrower shall comply with
the Laws of New Jersey relating to Xxxxxxx'x Compensation Laws and shall provide
the Lender with evidence of Workers' Compensation insurance in accordance with
statutory requirements.
Debt Service Coverage Ratio. Commencing with the end of the Borrower's
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first fiscal quarter in fiscal year 2001 and at all times thereafter during
which any of the Obligations remain due and owing, Borrower shall maintain a
Debt Service Coverage Ratio of not less than 1.25 to 1.00, said ratio to be
measured no less frequently than quarterly based on the results showing on the
financial statements to Borrower furnished to the Lender pursuant to the terms
hereof; provided, however that, said ratio shall be annualized for the quarterly
testing in the first, second and third fiscal quarters of fiscal year 2001 by
multiplying the numerator of such ratio by: (i) 4, in the case of the first
fiscal quarter of 2001; (ii) 2, in the case of the second fiscal quarter of
2001; and (iii) 1.33 in the case of the third quarter of 2001. Thereafter, the
ratio will be tested on a rolling 4 quarter basis. As used in this covenant,
"Debt Service Coverage Ratio" shall mean the ratio of the Borrower's net income
before interest, taxes, depreciation and amortization divided by the sum of the
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Borrower's current maturities of long term debt (including, without limitation,
such obligation arising under capital leases) plus interest expense plus rental
---- ----
expenses, in each case determined in accordance with generally accepted
accounting principles, applied on a consistent basis.
Cash on Hand Covenant. At all times during which any of the Obligations
------------------------
remain due and owing, Borrower shall maintain in its possession (or otherwise
under its control) unencumbered cash or cash equivalents in an aggregate amount
of not less than the then outstanding Obligations.
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7. Default.
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The occurrence of any one or more of the following shall constitute an
event of default (each, an "Event of Default") hereunder.
Failure to Pay. If Borrower shall fail to pay any amount of principal or
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interest within ten (10) days after the same shall be due.
Borrower's Failure to Perform Covenants or Obligations. If Borrower
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has breached or failed to perform any covenant, agreement (other than an
obligation to pay any amount of principal or interest when due and owing) or
other obligation contained in this Agreement or the Note or if Borrower has
failed to perform satisfactorily any of the terms and conditions contained in
this Agreement or the. Note and the same shall not have been cured within thirty
(30) days after the earlier to occur of (A) written notice to Borrower of said
default from Lender or (B) the date on which Borrower obtains actual knowledge
of said default.
Borrower's Misrepresentations. If any representation or warranty made by
--------------------------------
Borrower in this Agreement, in the Note, in the BEIP Agreement, in the
Application, the Borrower's application to Lender (the "NMF Application") or in
any report, certificate, financial statement or other instrument furnished to
the Lender or to the NJEDA pursuant to this Agreement, to the Note, and/or to
the BEIP Agreement is false or misleading in any material respect.
Borrower's Insolvency. If any of - the following has occurred: (a) Borrower
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has applied for, or consented to, the appointment of a receiver, trustee, or
liquidator of all or a substantial part of Borrower's assets; (b) Borrower has
admitted in writing the inability to pay its debts as they mature; (c) Borrower
has made a general assignment for the benefit of creditors; (d) Borrower has
been adjudged a bankrupt, or filed a petition or an answer admitting the
material allegations of a petition in bankruptcy or insolvency proceeding; (f)
an order, judgment or decree has been entered, without the application, approval
or consent of Borrower, by any court of competent jurisdiction approving a
petition seeking reorganization of Borrower, or appointing a receiver, trustee,
or liquidator of Borrower or a substantial part of its assets and such order
shall continue unstayed and in effect for a period of forty-five (45) days; or
(g) Borrower has filed a voluntary petition in bankruptcy or has failed to
remove an involuntary petition within forty-five (45) days of the filing
thereof.
14
Borrower's Dissolution, Merger or Termination. If Borrower shall without
------------------------------------------------
the written consent of Lender, which consent shall not be unreasonably withheld,
merge, or if Borrower shall dissolve, liquidate, terminate or cease operations.
Cross-Default; Borrower Default Under the Note the BEIP Agreement, the
---------------------------------------------------------------------------
Consent and Agreement and/orAgreements for Borrowed Money. If a Borrower a
---------------------------------------------------------------
default (howsoever characterized) shall exist under the Note, the BEIP
Agreement, the Consent and Agreement and/or any other note, bond, indenture,
debenture or any other instrument evidencing Borrower's obligation for borrowed
money ("Other Indebtedness"), and the same shall have continued uncured in
excess of the applicable cure period, if any, after the Lender, the NJEDA, or
the holders of any of the Other Indebtedness, as the case may be, shall have
given Borrower written notice, if the giving of such notice is required, of such
default in accordance with the provisions of the applicable agreement or
instrument, Borrower acknowledges and agrees that the same shall constitute an
Event of Default hereunder without further notice or opportunity on the part of
Borrower to cure. In the event Borrower defaults on its obligations under this
Agreement, Borrower acknowledges and agrees that Lender may declare the unpaid
principal balance of the Loan together with all interest accrued thereon, and
any and all other sums due Lender from Borrower from any source whatsoever, and
the same shall become, immediately due and payable.
Failure to Participate in BEIP. Without limiting the generality of any of
--------------------------------
the clauses set forth above, the failure for any reason of Borrower to continue
to qualify with NJBEIP Payments or the suspension, discontinuance, termination
or substantial reduction by the State of New Jersey or the Authority of the
Business Employment Incentive Grant Program pursuant to NJSA 34: lB-120 or any
of the regulations promulgated hereunder, or the failure of the New Jersey State
legislature or the Governor of the State of New Jersey to appropriate (or make
such appropriation available) to fund said program.
8. Remedies.
--------
Upon the existence of an Borrower Event of Default which shall continue
unsecured for a period of thirty (30) days after Lender shall have given
Borrower written notice of the same pursuant to the provisions of this Agreement
15
(unless the giving of such notice shall be otherwise excused by the provisions
of this Agreement), except for the failure of Borrower to pay any amount of
principal or interest when due, which failure shall afford Borrower a ten (10)
day cure period:
Lender shall have all of its rights and remedies at law, in equity, or as a
secured party under the Uniform Commercial Code, and shall have the further
additional rights and remedies which may be exercised either cumulatively or in
the alternative; and
Lender may terminate this Agreement, and declare the principal balance of
the Note and/or all interest thereon accrued and/or late penalties immediately
due and payable, without notice or demand, and the same shall become immediately
due and payable without notice or demand; and.
Lender may, in its sole discretion in its name or in the name of the
Borrower, or otherwise, demand, xxx for, collect or receive any money or
property at any time payable or receivable on account of or in exchange for, or
make any compromise or settlement deemed desirable with respect to, any
collateral, but shall be under no obligation to so do, or the Lender may extend
the time of payment, arrange for payment in installment, or otherwise modify the
term of, or release any collateral, without thereby incurring responsibility to,
or discharging or otherwise affecting any liability of, the Borrower. The Lender
will not be required to take any steps to preserve any rights against any prior
parties collateral. If the Borrower fails to make any payment or take any action
required under this Agreement, the Note and/or the BEIP Agreement the Lender may
make such payments and take such all such actions as the Lender deems necessary
to protect Lender's security interests in any collateral and/or the value
thereof, and the Lender is hereby authorized (without limiting the general
nature of the authority hereinabove conferred) to pay, purchase, contest or
compromise any encumbrances, charges or liens which in the judgment of the
Lender appear to be equal to, prior to or superior to the security interests of
the Lender any collateral; and
Lender may take any other action legally available to it.
16
Application of Proceeds. Upon the occurrence of an Event of Default, the
-------------------------
balance of all revenue from the assignment contemplated in Section 2 hereof and
all proceeds from any sale of said assignment pursuant to this Section 8 shall
be applied (in such order as the Lender shall in its sole discretion determine)
as follows: (i) to the payment of all costs and expenses incurred by the Lender
in connection with any sale of said assignment, including, but not limited to,
all court costs and the reasonable fees and expenses of counsel for the Lender
in connection therewith, and to the repayment of all advances made by the Lender
hereunder for the account of the Borrower and the payment of all other costs and
expenses paid or incurred by the Lender in connection with this Agreement, the
Note or otherwise in connection with the Obligations, to the extent that such
advances, costs and expenses shall not have been paid previously to the Lender;
(ii) to the payment of interest on the Obligations; and (iii) to the payment or
repayment of the Obligations. Any amounts remaining after such applications
shall be remitted to an account maintained by the Borrower with the Lender or as
directed by the Borrower or as a court of competent jurisdiction may otherwise
direct.
Powers of Attorney. Upon the occurrence of an Event of Default (i) the
--------------------
Borrower does hereby irrevocably make, constitute and appoint the Lender or any
of its officers or designees its true and lawful attorney-in-fact with full
power in the name of the Lender or the Borrower to receive, open and dispose of
all mail addressed to the borrower, and to endorse any notes, checks, drafts,
money orders or other evidences of payment that may come into the possession of
the Lender with full power and right to cause the Borrower's mail to be
transferred to the Lender's own offices or otherwise, and to do any and all acts
necessary or proper to carry out the intent of this Agreement and/or the Note
and the Borrower hereby ratifies and confirms all that the Lender or its
substitutes shall properly do by virtue hereof; (ii) the Borrower does hereby
further irrevocably appoint the Lender or any of its officers or designees its
true and lawful attorney-in-fact in the name of the Lender or the Borrower (1)
to enforce all of the Borrower's rights under and pursuant to all agreements
with respect to the assignment contemplated in Section 2 or any collateral, all
for the sole benefit of the Lender, (2) to enter into and perform such
agreements as may be necessary in order to carry out the terms, covenants and
conditions of this Agreement and/or the Note which are required to be observed
or performed by the Borrower, (3) to execute such other and further mortgages,
pledges and assignments of any collateral as the Lender may reasonably require
17
for the purpose of protecting, maintaining or enforcing the security interests
granted to the Lender pursuant to this Agreement, and (4) to do any and all
other things necessary or proper to carry out the intention of this Agreement
and/or the Note, and the Borrower hereby ratifies and confirms all that the
Lender or its substitutes as such attorney-in-fact shall properly do by virtue
hereof.
Lender's Remedies Cumulative. To the maximum extent permitted by, and
------------------------------
subject to the mandatory requirements of, applicable law, and except as
expressly set forth herein, no remedy under this Section 8 is intended to be
exclusive, but each shall be cumulative and in addition to any other remedy
provided herein or otherwise available to Lender at law, in equity or otherwise,
whether for specific performance of any agreement or provision contained herein
or in the Note or in aid of the exercise of any right, power or remedy granted
herein or therein. No express or implied waiver by Lender of any default or
Event of Default hereunder shall in any way be, or be construed to be, a waiver
of any future or subsequent default or Event of Default. The failure or delay of
Lender in exercising any right, power or remedy granted it hereunder upon the
occurrence of any of the contingencies set forth herein shall not constitute a
waiver of any such right, power or remedy upon the continuation or reoccurrence
of any such contingency or similar contingencies and any single or partial
exercise of any particular right, power or remedy by Lender shall not exhaust
the same or constitute a waiver of any other, right, power or remedy provided
herein. To the maximum extent permitted by applicable law, Borrower hereby
waives any rights now or hereafter conferred by statute or otherwise that may
limit or modify any of Lender's rights, powers or remedies provided in this
Section 8.
LIMITATIONON LENDER' SLIABILITY. IN NO EVENT, WHETHER BASED ON CONTRACT,
--------------------- ----------
INDEMNITY, Warranty, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
LL LENDER, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR
COINCIDENTAL DAMAGES FOR BREACH OF THIS AGREEMENT.
18
9. Expenses upon Default.
-----------------------
In the event that Borrower shall commit an Event of Default as hereinafter
defined under this Agreement, the Note and/or the BEIP Agreement then, in
addition to any amounts -due and payable' thereunder, Borrower shall pay to
Lender, upon demand, all of the reasonable costs and expenses (including,
without exclusion, reasonable attorneys' fees) incurred by Lender as a result of
Borrower' s default.
10. WARRANTIES.
-----------
No Representations or Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
-----------------------------------
IN THIS AGREEMENT, Lender MAKES NO REPRESENTATIONS OR WARRANTIES, NOR SHALL IT
BE DEEMED TO HAVE MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO VALUE, CONDITION, WORKMANSHIP, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS
FOR USE FOR A PARTICULAR PURPOSE OF THE NEW JERSEY FACILITY OR ANY PART THEREOF
OR AS TO THE ABSENCE OF LATENT AND OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE,
AS TO THE INFRINGEMENT OR ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE
OF OBLIGATION BASE]) ON STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATION OR
WARRANTY, WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PURCHASED
ASSETS OR ANY PART THEREOF.
11. Forbearance Not a Waiver.
---------------------------
No act of forbearance or failure to insist on the prompt performance by
Borrower of its obligations pursuant to this Agreement and/or the Note either
express or implied, shall be construed as a waiver by the Lender of any of its
rights hereunder or thereunder. In the event that any provision of this
Agreement shall be breached by Borrower and such breach is thereafter waived by
the Lender, such waiver shall be limited to the particular breach waived by the
Lender and shall not be deemed to waive any other breach.
12. Assignment.
----------
Borrower may not assign its interests in this Agreement to another party
without the prior written consent of the Lender which consent may be granted or
withheld in Lender's sole discretion. This Agreement shall be binding upon and
inure to the benefit of the permitted successors and assigns of the parties
hereto.
19
13. Indemnification.
---------------
Borrower covenants and agrees to indemnify and hold harmless Lender, its
agents, officers, Committee of Managers, employees, servants and representatives
from all losses, claims, damages, liabilities, and costs whatsoever (including
all costs, expenses and reasonable fees of counsel incurred in investigating and
defending such losses and claims, etc.), brought by any person or entity, and
caused by, related to, arising or purportedly arising out of (i) the condition,
use, possession, conduct, management, construction, and financing of the New
Jersey Facility, the Collateral or the operation of Borrower's business; (ii)
the performance by Borrower of its obligations under this Agreement, the Note,
the BEIP Agreement and/or the Consent and Agreement; (iii) any loss, damage,
injury to, or death of, any person occurring at or about or resulting from, the
operation of the New Jersey Facility, any collateral or the Borrower's business
or any defect' in the facility housing the New Jersey Facility, any collateral
or the Borrower's business; and, (iv) any damage or injury to property of the
Borrower or to the agents, servants, or employees of the Borrower, or to any
other person who may be about the New Jersey Facility, or any collateral caused
by the negligence of any person. THE PROVISIONS OF THIS SECTION 13. SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. Termination of Agreement.
--------------------------
Upon the repayment in full of the Loan and the completion by the Borrower
of the Obligations this Agreement shall terminate.
15. Miscellaneous Provisions.
--------------------------
Disclosure of Financial Information. The Lender is hereby authorized to.
--------------------------------------
disclose any financial or other information about the Borrower to any regulatory
body or agency having jurisdiction over the Lender and to any present, future or
prospective participant or successor in interest in any loan or other financial
accommodation made by the Lender to the Borrower. The information provided my
include, without limitation, amounts, terms, balances, payment history, return
item history and any financial or other information about the Borrower.
No Implied Waiver. The Lender shall not be deemed to have modified or
-------------------
waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and signed by the Lender and then only to the extent
specifically set forth therein. A waiver in one event shall not be construed as
continuing or as a waiver of or bar to such right or remedy in a subsequent
event. After any acceleration of, or the entry of any judgment on, this Note,
the acceptance by the Lender of any payments by or on behalf of the Borrower on
20
account of the indebtedness evidenced by this Agreement shall not cure or be
deemed to cure any default or reinstate or be deemed to reinstate the terms of
this Agreement absent an express written agreement duly executed by the Lender
and the Borrower.
Other Agreements. At the request of Lender, Borrower
-----------------
shall execute such other agreements, documents or instruments in connection with
this Note as Holder reasonably requests, all of which must be in form and
substance satisfactory to Lender.
Notices. Notice from one party to another relating to this Note shall be
-------
deemed effective if made in writing (including telecommunications) and delivered
to the recipient's address or telecopier number set forth below by any of the
following means: (i) hand delivery, (ii) registered or certified mail, postage
prepaid, with return receipt requested, (iii) first class or express mail,
postage prepaid, (iv) Federal Express, Purolator Courier or like overnight
courier service,, or (v) telecopy or other wire transmission with request for
assurance of receipt in a manner typical with respect to communications of that
type. Notice made in accordance with this paragraph shall be deemed delivered
upon receipt if delivered by hand or wire transmission, 3 business days after
mailing if mailed by first class registered or certified mail or one business
day after mailing or deposit with an overnight courier service if delivered by
express mail or overnight courier. This notice provision shall be inapplicable
to any judicial or non-judicial proceeding where state law governs the manner
and timing of notices in foreclosure or receivership proceedings. All such
notices shall be addressed as follows:
(i) if to Lender, at 00 Xxxx Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx 00000;
attention: President; telecopier number 000-000-0000; and
(ii) if to Borrower, Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000;
Attention: Sr. Vice President, CFO; telecopier number (000) 000-0000.
21
Headings. The headings contained in this Agreement are for reference only
--------
for the convenience of the parties. The headings shall not be deemed to
constitute a part of this Agreement nor shall they alter or supercede the
contents of the sections themselves.
Governing Law. This Agreement shall be governed exclusively by, and
--------------
construed in strict accordance with, the laws of the State of New Jersey, with
the exception of New Jersey's conflict of laws provisions. ALL TERMS NOT DEFINED
HEREIN ARE USED IN THE MANNER SET FORTH IN THE UNIFORM COMMERCIAL CODE AS
ADOPTED IN THE STATE OF NEW JERSEY.
Costs and Attorneys' Fees. In the event of any action by Lender against
either Borrower or any third party to enforce this Agreement and/or -to protect
the security interest of Lender in the Collateral, and/or to preserve, process,
develop maintain, protect, care for or insure any Collateral, the Agreement
agrees to pay all costs and expenses thereof, immediately, together with any and
all reasonable attorneys' fees and expenses.
Third Party Beneficiaries. There are no third party beneficiaries to this
--------------------------
Note.
Separability. If any term or provision of this Agreement, the Note, and/or
------------
the Consent and Agreement or the application thereof to any circumstance shall,
in any jurisdiction and to any extent, be held to be invalid or unenforceable,
such term or such provision shall be ineffective as to such jurisdiction to the
extent of invalidity or unenforceability without invalidating or rendering
unenforceable any remaining terms and provisions hereof or thereof or the
application of such term or provision to circumstances other than those as to
which it is held invalid or unenforceable. To the maximum extent permitted by
applicable laws, the parties to this Agreement waive any provision of law that
renders any term or provision of this Agreement, the Note, and/or the Consent
and Agreement invalid or unenforceable in any respect.
WAIVER OP JURY TRIAL. RECOGNIZING THAT ANY DISPUTE ARISING UNDER THIS
-----------------------
AGREEMENT AND/OR THE NOTE WILL BE COMMERCIAL IN NATURE AND COMPLEX, AND IN ORDER
TO MINIMIZE THE COSTS INVOLVED IN THE DISPUTE RESOLUTION PROCESS, TO THE MAXIMUM
EXTENT PREMITTED BY LAW, THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY
MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS AGREEMENT,
THE NOTE OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES.
22
JURISDICTION;SERVICEOF PROCESS. RECOGNIZING THAT ANY DISPUTE ARISING UNDER THIS
-------------------------------
AGREEMENT AND/OR THE NOTE WILL BE COMMERCIAL IN NATURE AND COMPLEX, AND IN ORDER
TO MINIMIZE THE COSTS INVOLVED IN THE DISPUTE RESOLUTION PROCESS, TO THE MAXIMUM
EXTENT PREMITTED BY LAW, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO ANY
BREACH OP THIS AGREEMENT AND/OR THE NOTE MAY BE BROUGHT, AT THE OPTION OF ANY
AGGRIEVED PARTY IN ANY OF THE COURTS OF TEE STATE OF NEW JERSEY OR THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE CITY OF NEWARK, NEW
JERSEY, AND TO THE MAXIMUM EXTENT PREMITTED BY LAW, EACH PARTY HERETO HEREBY
UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS,
EXPRESSLY WAIVING ANY OTHER JURISDICTION TO WHICH SUCH PARTY MAY BE ENTITLED BY
REASON OF ITS PRESENT OR FUTURE DOMICILE. EACH PARTY IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OP ANY SUCH ACTION
OR PROCEEDING IN ANY OP THE AFORESAID COURTS AN]) ANY OBJECTION IT MAY NOW OR
HEREINAFTER HAVE TO VENUE IN ANY OF THE AFORESAID COURTS ON THE BASIS OF FORUM
-----
NON CONVENIENS. EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
--- ----------
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY HERETO
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFORESAID COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF TRUE COPIES
-OF THEREOF BY REGISTERED OR CERTIFIED MAIL TO SUCH PARTY'S ADDRESS AS FIRST SET
FORTH ABOVE OR TO SUCH OTHER ADDRESS AS SUCH PARTY SHALL HAVE SUBSEQUENTLY
DESIGNATED PURSUANT TO THE NOTICE PROVISIONS OF THIS AGREEMENT. THE BORROWER
IRREVOCABLY APPOINTS EACH AND EVERY OWNER, PARTNER AND/OR OFFICER OF BORROWER AS
ITS ATTORNEY UPON WHOM MAY BE SERVED, BY REGULAR OR CERTIFIED MAIL AT THE
ADDRESS SET FORTH HEREIN, ANY NOTICE, PROCESS OR PLEADING IN ANY ACTION OR
PROCEEDING AGAINST IT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT. NOTHING HEREIN SHALL EFFECT THE RIGHT TO SERVE PROCESS IN
ANY OTHER
MANNER PERMITTED BY LAW.
NO AGENCY, PARTNERSHIP, OR JOINT VENTURE. Nothing contained in this
--------------------------------------------
agreement, and/or the note or any other security instrument, nor the acts of the
parties hereto shall be construed to create a relationship of principal .and
agent, partnership or joint venture between borrower and lender.
23
Effect of Agreement. This Agreement shall be binding upon the parties
---------------------
hereto, their respective heirs, executors, administrators, successors and
permitted assigns.
Entire Agreement This Agreement contains the complete agreement between the
----------------
parties, and no modification, amendment, recision, waiver or other change will
be binding on any party unless agreed to in writing by such party's authorized
representative.
Modifications. This Agreement may not be supplemented, extended, modified
-------------
or terminated except by an agreement in writing signed by the party against whom
enforcement of any such waiver, change, modification or discharge is sought.
Sales or Participations. The Lender may from time to time sell or assign,
-------------------------
in whole or in part, or grant participations in the Loan and the Note and/or the
obligations or participation, if the applicable agreement between the Lender and
such holder so provides, shall be (a) entitled to all of the rights, obligations
and benefits of the Lender; and (b) deemed to hold and may exercise the rights
of setoff or banker's lien with respect to any and all obligations of such
holder to the Borrower, in each case as fully as though the Borrower were
directly indebted to such holder. The Lender may in its discretion give note to
the Borrower of such sale, assignment or participation; however, the failure to
give such notice shall not affect any of the Lender's or such Lender' s rights
hereunder.
[SIGNATURES ARE SET FORTH ON THE NEXT PAGE]
24
ATTEST: LIFECELL CORPORATION
By: By:
---------------------------- ------------------------------
Name: Name:
Title: Title:
ATTEST: PUBLIC SERVICE NEW MILLENNIUM
ECONOMIC DEVELOPMENT FUND
L.L.C.
By: By:
---------------------------- ------------------------------
Name: Name:
Title: Title:
25
FORM OF
CONSENT AND AGREEMENT
This Consent and Agreement ("Agreement"), made this 3l day of May, 2000, by
and between LIFECELL CORPORATION, a corporation organized under the laws of the
State of Delaware, having its principal offices at Xxx Xxxxxxxxxx Xxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, ("Grantee"), the New Jersey Economic Development
Authority, a body corporate and politic organized and existing- under the
authority of N.J.S.A. 34:13-2 et seq., having its offices at 00 Xxxx Xxxxx
------- -------
Street, X.X. Xxx 000, Xxxxxxx, Xxx Xxxxxx 00000 ("Grantor") and Public Service
New Millennium Economic Development Fund, L.L.C., a New Jersey limited liability
company, having its principal offices at 00 Xxxx Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx
00000, ("New Millennium").
WHEREAS, in order to xxxxxx job creation in the State of New Jersey, the
Business Employment Incentive Program Act, N.J.S.A. 34:13-120 et seq. (the
------- -------
"Act"), authorizes Grantor to enter into agreements with businesses to provide
Business Employment Incentive Grants in accordance with the provisions of the
Act and the implementing regulations, N.J.A.C 19:31-10 et seq. (the
------- -------
"Regulations"); and
WHEREAS, Grantee, a bio-engineering company engaged in the development and
commercialization of tissue regeneration and cell preservation products, intends
to relocate a significant portion of its operations from Houston, Texas to a
facility located at One Millennium Way, Branchburg, New Jersey (the "New Jersey
Facility"); and
WHEREAS, Grantee's relocation will provide for approximately one hundred
and fifty (150) employees; and
WHEREAS, Grantee intends to fund a portion of its relocation costs through
a New Millennium Loan (the "New Millennium Loan") from New Millennium in the
amount of SIX HUNDRED FIFTY THREE THOUSAND TWO HUNDRED TWO and 13 / 100 Dollars
($653,202.13), said loan to have a term of ten (10) years, to accrue interest
at a per annum fixed rate of 7.00% and to be secured by the assignment
contemplated herein; and
WHEREAS, subject to certain conditions Grantee will enter into an agreement
dated as of March 26, 1999, as amended from time to time (the BEIP Agreement")
with the Grantor, whereby pursuant to the Act, the Grantor in accordance with
the provisions of the Act shall provide to Grantee a Business Employment
Incentive Grant (the "Grant") equal to 80% of Withholdings for the Grant Payment
Period as those terms are defined in the BEIP Agreement; and
2
WHEREAS, pursuant to the terms of the BEIP Agreement, the Grant shall be
payable to Grantee in annual installments of $105,840 (the "NJBEIP Payments")
for a period of 10 years commencing on or about the end of the second calendar
quarter in the calendar year 2001(the "Payment Period"); and
WHEREAS, Grantee, in order to induce New Millennium to make the New
Millennium NJBEIP New Millennium Loan, has agreed, inter alia, to assign to New
Millennium (the "NJBEIP Assignment") to New Millennium all of Grantee's right,
title and interest in and to the NJBEIP Payments, which assignment provides for
the direct payment of the NJBEIP Payments to New Millennium by the Grantor until
such time as the New Millennium NJBEIP New Millennium Loan shall have been
repaid in full, with Grantee remaining obligated, in the event of Grantee's
failure to qualify for the full amount of the NJBEIP Payments assigned to New
Millennium or in the event of any shortfall in the amount of any installment of
the NJBEIP Payments for any reason, for such amounts as shall be required to
fully amortize the New Millennium Loan and to pay New Millennium the amount of
such shortfall over the Payment Period; and
WHEREAS, Grantor has found, on the basis of the information contained in
Grantee's application for a Grant, and any other information provided by Grantee
in support of its application that (i) the Project will create, during the term
of the BEIP Agreement, a net increase in employment in the State of New Jersey;
(ii) the Project is economically sound and will benefit the people of New Jersey
by increasing opportunities for employment and by strengthening New Jersey's
economy; and, (iii) the receipt of the Grant and the making of the New
Millennium BEIP New Millennium Loan are material factors in Grantee's decision
to go forward with the Project.
NOW THEREFORE, in consideration of the mutual promises and. covenants made
herein, it is agreed as follows:
1. Consent to Assignment. The Grantor consents to the NJBEIP Assignment by
---------------------
Grantee to New Millennium subject to the terms and conditions of this Agreement.
2. Agreement to Pay NJBEIP Payments Directly to New Millennium.
-------------------------------------------------------------------
A. The Grantor agrees to pay the NJBEIP Payments directly to and in the
name of New Millennium during the Payment Period until such time as the New
Millennium NJBEIP New Millennium Loan shall have been paid in full, with Grantee
remaining obligated, in the event of Grantee's failure to qualify for the full
3
amount of the NJBEIP Payments collaterally assigned to New Millennium or in the
event of any shortfall in the amount of any installment of the NJBEIP Payments
for any reason, for such amounts as shall be required to fully amortize the New
Millennium NJBEIP New Millennium Loan and to pay New Millennium the amount of
such; provided, however, that Grantor shall have no obligation to pay to New
------------------
Millennium any amounts in excess of the actual NJBEIP Payments for which Grantee
duly qualifies with respect to any annual installment or in the aggregate. New
Millennium shall promptly notify Grantor in writing as soon as the New
Millennium NJEEIP New Millennium Loan has been paid in full. While said New
Millennium Loan is still outstanding Grantor shall be entitled from time to time
to request and receive from New Millennium a certification as to the amount
outstanding under said New Millennium Loan.
B. Grantee hereby unconditionally and irrevocably authorizes and
directs Grantor to make all NJBEIP Payments to which Grantee is entitled under
the BEIP Agreement, directly payable to New Millennium, as provided in
Subparagraph 2A hereof. Grantee acknowledges and agrees that this authorization
and direction is present, absolute and unconditional and that, subject only to
court order, it may not be revoked for any reason, even if Grantee should make
or assert any claim or claims that the New Millennium NJBEIP New Millennium Loan
is void or unenforceable under any legal or equitable principles, whether
grounded in contract or tort, including, without limitation, fraud, bad faith,
coercion, duress or unclean hands, accord and compromise, lack of consideration,
or offset. (Hereinafter, any and all such claims shall be referred to
individually and collectively as "Payment Defense" or "Payment Defenses,"
respectively.)
3. Release and Waiver.
--------------------
A. Grantee hereby unconditionally and irrevocably releases, waives, and
discharges Grantor, and all of its members, officers, employees, agents and
assigns, from any liability, obligation, or indebtedness whatsoever, in
connection with, or on account of the making of the NJBEIP Payments by Grantor
to New Millennium as provided under Paragraph 2 hereof, whether or not such
payments were made contrary to any demand by Grantee that the same not be made,
or, whether or not Grantee had or has asserted any Payment Defenses in or
outside of any legal proceedings.
4
B. New Millennium hereby unconditionally and irrevocably releases,
waives, and discharges Grantor, and all its members, officers, employees, agents
and assigns, from any liability, obligation, indebtedness, or suit whatsoever,
in connection with, or on account of, the exercise of its rights and remedies
under the Act, the Regulations or the BEIP Agreement, or the carrying out of its
undertakings hereunder, including, without limitation, any duty to it of
contribution, indemnification, reimbursement, subrogation or accounting.
4. Notwithstanding anything herein contained to the contrary, at any time
the Grantor entertains any doubt or question with respect to the legality of its
making the NJBEIP Payments directly to New Millennium, it may, but shall not be
obligated to, in lieu of making payments, file an inter-pleader or declaratory
judgment action in the appropriate court. In addition, New Millennium agrees
that in the event the Grantee should file for protection under the United States
Bankruptcy Code, the Grantor shall be entitled to require, as a condition of
making further NJBEIP Payments to New Millennium, that New Millennium obtain an
order from the Bankruptcy Court hearing the case, finding that the making of
such payments would not violate any stay then in effect or otherwise contravene
any applicable bankruptcy court orders in the case. The provisions of this
Paragraph 4 shall survive termination of this Agreement.
5. The Act, Regulations andBEIPAgreement Govern.
------------------------------------------------
A. New Millennium and Grantee each acknowledge and agree that the Act,
the Regulations and the BEIP Agreement shall at all times govern and control the
administration of the BEIP Grant to Grantee and that nothing contained herein
shall in any way alter, diminish, abrogate or waive any rights or discretion of
Grantor or duties of Grantee under the Act, the Regulations and the BEIP
Agreement, including, without limitation, the right of Grantor to terminate the
Grant, reduce the term of same or the amount of the NJBEIP Payments, or
recapture NJBEIP Payments previously made, as provided in the BEIP Agreement.
New Millennium acknowledges and agrees that Grantor, in administering and
enforcing the BEIP Agreement, is not and shall not be required to obtain any
approval or consent whatsoever from New Millennium.
B. New Millennium acknowledges that it has reviewed and is familiar
with the BEIP Grant and hereby approves and consents to the same.
C. In the event of a conflict between the provisions of the NJBEIP
Agreement and this Agreement, the former shall govern.
5
D. The provisions of this Section 5 shall survive termination of this
Agreement.
6. Effect of Termination of the BEIP Agreement or Other Enforcement
--------------------------------------------------------------------
Action thereunder
---------------
A. In the event the BEIP Agreement is terminated by Grantor for any
reason, then Grantor shall as of the date of such termination have no further
duty or obligation to New Millennium to make any further NJEEIP Payments to it
except for any final NJBEIP Payment that may still be due and payable under the
BEIP Agreement and this Agreement shall be deemed terminated on thirty days
written notice to New Millennium and the Grantee by Grantor, with no further
liability between the parties to one another hereunder.
B. In the event the term of the Grant or the amount thereof is reduced
by Grantor in accordance with the provisions of the BEIP Agreement, the amounts
to be paid to New Millennium under Paragraph 2 hereof shall be reduced
accordingly.
C. Grantor and Grantee agree that in the event that Grantor exercises
its right to recapture under the BEIP Agreement of NJBEIP Payments previously
made, such right shall be exercisable against Grantee only, and that New
Millennium shall have no obligation to refund or disgorge any NJBEIP Payments
previously received by it.
7. Disclaimer. It is agreed and understood by Grantee and New
----------
Millennium that Grantor makes no representations or warranties whatsoever as to
(i) the ability of Grantee to comply with all of the requirements of the BEIP
Agreement; (ii) the financial condition of Grantee; (iii) the ability of Grantee
to service and pay the New Millennium and the New Millennium Loan; or (iv) the
accuracy of any financial records, certifications, or other documents submitted
by Grantee either to Grantor in connection with the Grant, or to New Millennium
in connection with the New Millennium and New Millennium NJBEIP New Millennium
Loans.
8. Further Assurances. At any time and from time to time, upon the
-------------------
request of New Millennium, each of Grantor, and Grantee shall promptly and duly
execute and deliver or cause to be executed and delivered on its behalf any and
all such further instruments and documents and take such further action as New
Millennium (or any successor or assign of New Millennium) may reasonably request
in order to obtain the full benefits of this Consent and Agreement and the
rights and powers herein granted. The cost and expense incidental to such
further assurances shall be for the account of the Grantee; provided, however
--------- -------
that New Millennium shall reimburse the Grantor for all costs and expenses
reasonably incurred by such party in complying with the immediately preceding
sentence to the extent not otherwise paid by the Grantee.
6
9. No Release; No Assumption. It is the intent of the parties to this
----------------------------
Consent and Agreement that Grantee shall not be released from any duty, burden,
obligation or liability under any New Millennium New Millennium Loan document to
which Grantee is a party, including without limitation, that certain New
Millennium Loan Agreement and Assignment by and between New Millennium and
Grantee, dated as of April , 2000, and that certain promissory note (the "New
---
Millennium NJBEIP New Millennium Loan Note") in the principal amount of
$653,202.13 and made by Grantee payable to the order of New Millennium. It is
the further intent of the parties to this Consent and Agreement that no duty,
burden, obligation or liability under the BEIP Agreement shall be assumed by New
Millennium.
10. Termination of Agreement Upon Payment. Upon payment in full of the
--------------------------------------
New Millennium Loan, this Agreement shall terminate, with no further liability
obligation between the parties hereto.
11. Notices. All notices and other communications required or permitted to
-------
be given hereunder shall be in writing and shall become effective when delivered
by hand or received by telecopier or sent by registered first-class mail (return
receipt requested), addressed as follows:
(i) if to Grantor, at 00 Xxxx Xxxxx Xxxxxx, X.X.
Xxx 000, Xxxxxxx, Xxx Xxxxxx 00000, attention:
telecopier number ( ) -
(ii) if to Grantor, at Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000;
attention: Senior Vice President, CFO; telecopier number (000) 000-0000; and
(iii) if to New Millennium, at 00 Xxxx Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx
00000; attention: President, telecopier number 000-000-0000.
12. Counterpart Execution. The parties may sign this Consent and
----------------------
Agreement in any number of counterparts and on separate counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
13. Governing Law. This Consent and Agreement shall be governed by and
--------------
construed under the laws of the State of New Jersey.
14. Entire Agreement. This Consent and Agreement contains the complete
-----------------
agreement between the parties, and no modification, amendment, recision, waiver
or other change will be binding on any party unless agreed to in writing by such
party' s authorized representative.
[SIGNATURES ARE SET FORTH ON THE NEXT PAGE]
7
ATTEST: New Jersey Economic Development
Authority
By: By:
---------------------------- ------------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Director Title:Managing Director-Finance
Community Lending
By: By:
---------------------------- ------------------------------
Name: Name:
Title: Controller Title:
ATTEST: PUBLIC SERVICE NEW MILLENNIUM
ECONOMIC DEVELOPMENT FUND L.L.C.
By: By:
---------------------------- ------------------------------
Name: Name: Xxxxxx X. Xxxxx
Title: Title: President
8
NEGOTIABLE
SECURED
INSTALLMENT NOTE
$653,202.13 May 31, 2000
FOR VALUE RECEIVED the undersigned, Maker unconditionally promises to pay
to the order of Holder, at Holder's principal executive offices at 00 Xxxx
Xxxxx, X-00, Xxxxxx, Xxx Xxxxxx 00000, or at such other place as holder, from
time to time, may designate, the principal amount of SIX HUNDRED FIFTY
THREE THOUSAND TWO HUNDRED TWO AND 13 / 100 DOLLARS ($653,202.13) (the
"Principal Balance") plus interest on the unpaid Principal
Balance, in lawful money of the United States and in immediately available
funds, payable in ten (10) equal annual installments of principal and interest
(each an "Annual Installment", collectively the "Installments") of $105,840
commencing on August 1, 2001 and on each anniversary thereof until August 1,
2010 (the "Maturity Date") when the remaining outstanding principal balance of
this Note, together with any accrued and unpaid interest thereon shall be due
and payable.
Each such date on which an Annual Installment of principal and interest is due
shall be an "Installment Date."
The Annual Installment have been calculated based on a mortgage style level
principal and interest payment amortization. The principal and interest
component of each such installment is set forth on Schedule A attached hereto.
SECTION 1. Definitions. All capitalized terms used but not defined herein shall,
when used herein, have the meaning assigned to such terms in that certain Loan
Agreement and Assignment (the "Loan Agreement") by and between LIFECELL
CORPORATION, a Delaware corporation, having its principal executive offices at
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx 77381-4232("Maker"), and PUBLIC
SERVICE MEN MILLENNIUM ECONOMIC DEVELOPMENT FUND L.L.C., a New Jersey limited
liability company (together with its successors and assigns, collectively,
"Holder"), dated as of May 31, 2000.
SECTION 2. Payment Terms.
--------------
(a) Payment Credits. Maker is unconditionally obligated to make all
----------------
payments under this Negotiable Installment Note (this "Note") when due,
provided, y, that Maker shall receive a credit against such payment obligations
with respect to any Annual Installment to the extent that pursuant to the terms
and provisions of the Consent and Agreement, Holder shall have received the
NJBEIP Payments from the New Jersey Economic Development Authority (the
"Authority") on or before the Installment Date on which such Annual Installment
becomes due and owing provided however, that Maker shall remain obligated, in
-------- -------
the event of Maker's failure to qualify for the full amount of the NJBEIP
Payments assigned to Holder or in the event of any shortfall, for any reason
whatsoever, in the amount actually paid to Holder by the Authority pursuant to
the Consent and Agreement with respect to such Installment Date over the amount
of the Annual Installment then due and owing, for such amounts as shall be
required to fully satisfy Maker's payment obligations with respect to the Annual
Installment then due and owing and Maker shall pay such amounts to Holder in
full immediately upon being notified by Holder of such shortfall.
Notwithstanding the foregoing, Maker shall remain fully liable for any late
payment interest pursuant to Section 1(d) hereof. Any excess in the amount of
the NJBEIP Payments over the amount of any Annual Installment shall be paid over
to the Borrower after deduction therefrom of any fees and expenses then due and
payable hereunder.
(b) Interest. This Note shall bear interest, computed on the basis of the
--------
actual number of days elapsed over a 360-day year, on the Principal Balance from
the date hereof at a fixed per annum rate equal to 9.00%.
(c) Upon 5 days prior written notice (specifying the date and amount
of said repayment), the amounts due under this Note may be prepaid in whole or
from time to time in part, in each case without premium or penalty, but with
interest on the amount prepaid through the date of prepayment.
(d) Late Payment. In the event that the full amount of any Annual
-------------
Installment is not received by Holder on any Installment Date, Maker agrees to,
and shall thereafter, pay to Holder, on the full amount of the unpaid Annual
2
Installment due and owing on such Installment Date at the per annum rate equal
to the Default Rate set forth in Paragraph 5(b) below per annum, computed on the
basis of the actual number of days elapsed over a 360-day year, from such
Installment Date.
(e) Usury. Notwithstanding any provision herein or in any other instrument
now or hereafter securing this Note, the total liability for payment of interest
shall not exceed the limits now imposed by the applicable usury laws. In the
event of an acceleration of this Note, the total charges for Interest and in the
nature of interest shall not exceed the maximum amount allowed by law and any
excess portion of such charges that may have been paid shall be refunded to
Maker. It is the intent of Maker and Holder to strictly comply with all
applicable usury laws from time to time in effect. In no way, nor in any event
or contingency (including but not limited to prepayment, default, demand f or
payment, or acceleration of the maturity of any obligation, or the
recharacterization of any application fees or any other fees required hereunder
or under the Loan Agreement, or any other agreement by and between Maker and
Holder as interest), shall the interest taken, reserved, contracted for, charged
or received under the Note, or otherwise, exceed the maximum nonusurious amount
permitted under applicable law. If, from any possible construction of any
document, interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to this provision and
any such document shall be automatically reformed and the interest payable shall
be automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If Holder shall ever receive anything of value that is characterized
as interest under applicable law that would, apart from this provision, be in
excess of the maximum nonusurious amount, an amount equal to the amount that
would have been excessive interest shall, without penalty, be applied to the
reduction of Principal Balance owing on the indebtedness evidenced thereby in
the inverse order of its maturity and not to the payment of interest, or
refunded to Maker or the other payor thereof if and to the extent such amount,
which would have been excessive, exceeded such unpaid Principal Balance. The
right to accelerate the maturity of this, or any other indebtedness, does not
include the right to accelerate any interest that
3
has not otherwise accrued on the date of such acceleration, and Holder does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid by Maker shall, to the extent permitted
by applicable law, be amortized, protected, allocated and spread throughout the
full stated term (including any renewal or extension) of this Note so that the
amount of interest on account of this Note does not exceed the maximum
nonusurious amount permitted by applicable law. As used in this Section 1(f),
the term "applicable law" ("Applicable Law") shall mean the laws of the State of
New Jersey or the federal laws of the United States, whichever laws allow the
greater interest, as such laws now exist or may be changed -or amended or come
into effect in the future.
SECTION 3.
(a) Security Interest Granted. This Note is the Installment Note
---------------------------
referred to in the Loan Agreement, and, therefore is secured by the collateral
(the "Collateral") described therein, and otherwise governed thereby. All of the
agreements, conditions, covenants, provisions, and stipulations contained in the
Loan Agreement and which are to be kept and performed by Maker are hereby made a
part of this Note to the same extent and with the same force and effect as if
they were fully set forth herein, and Maker covenants and agrees to keep and
perform them, or cause them to be kept and performed, strictly in accordance
with their
terms.
(b) Waivers By Maker. Maker hereby waives and releases to the maximum
------------------
extent permitted by applicable law, (i) all technical errors, defects and
imperfections in any proceedings instituted by Holder under this Note and/or the
Loan Agreement, (b) all benefits that might accrue to Maker by virtue of any
present or future laws exempting the Collateral or any part of the proceeds
arising from any sale thereof, from attachment, levy or sale under execution, or
providing for any stay of execution, exemption from civil process, or extension
of time for payment, (c) all notices not herein elsewhere specifically required
of Maker's default or of Holder's exercise, or election to exercise, any option
under this Note, and (d) any present or future law, regulation or judicial
decision which provides for any stay of execution, marshalling of assets,
exemption from civil process, redemption, extension of time for -payment or
valuation or appraisement of any of the Collateral.
4
SECTION 4. Events of Default. The occurrence of any one or more of the following
-----------------
shall be a default (each, an "Event of Default") hereunder:
(a) Failure to Pay. If Maker shall fail to pay any amount of principal
---------------
or interest within ten (10) days after the same shall be due.
(b) Maker's Failure to Perform Covenants or Obligations. If Maker
---------------------------------------------------------
has breached or failed to perform any covenant, agreement (other than an
obligation to pay any amount of principal or interest or fees when due) or other
obligation contained in the Loan Agreement, this Note, the BEIP Agreement and/or
the Consent and Agreement, or if Maker has failed to perform satisfactorily any
of the terms and conditions contained in the Loan Agreement, this Note the BEIP
Agreement and/or the Consent and Agreement and the same shall not have been
cured within thirty (30) days after the earlier to occur of (A) written notice
to Maker of said default from Holder or (B) the date on which Maker obtains
actual knowledge of said default.
(c) Maker's Misrepresentations.If any representation or warranty
------- -------------------
made by Maker in the Loan Agreement, in this Note, in the BEIP Agreement, in the
Consent and Agreement, in the Application, in the Maker's NMF Application or, in
any report, certificate, financial statement or other instrument furnished to
the Holder or to the NJEDA pursuant to the Loan Agreement, to this Note or to
the BEIP Agreement, proves to be false or misleading in any material respect.
(d) Maker's Insolvency. If any of the following has occurred: (i) Maker
------------------
has applied for, or consented to, the appointment of a receiver, trustee, or
liquidator of all or a substantial part of Maker's assets; (ii) Maker has
admitted in writing the inability to pay its debts as they mature; (iii) Maker
has made a general assignment for the benefit of creditors; (iv) Maker has been
adjudged a bankrupt, or filed a petition or an answer admitting the material
allegations of a petition in bankruptcy or insolvency proceeding; (v) an order,
judgment or decree has been entered, without the application, approval or
5
consent of Maker, by any court of competent jurisdiction approving a petition.
seeking reorganization of Maker, or appointing a receiver, trustee, or
liquidator of Maker or a substantial part of its assets and such order shall
continue unstayed and in effect for a period of forty-five (45) days; or (vi)
Maker has filed a voluntary petition in bankruptcy or has failed to remove an
involuntary petition within forty-five (45) days of the filing thereof.
(e) Maker's Dissolution. Merger or Termination. If Maker shall merge,
--------------------------------------------
dissolve, liquidate, terminate or cease operations or shall have executed any
written undertaking or initiated any corporate proceedings in furtherance of any
of the foregoing.
(f) Cross-Default: Maker Default Under the Loan Agreement: the BEIP
-------------------------------------------------------------------
Agreement. the Consent and Agreement and/or other Agreements for Borrowed Money.
--------------------------------------------------------------------------------
If a default (howsoever characterized) shall exist under the Loan Agreement, the
BEIP Agreement, the Consent and Agreement, and/or any other note, bond,
indenture, debenture or any other instrument evidencing Maker's obligation for
borrowed money ("Other Indebtedness") and the same shall have continued uncured
in excess of the applicable cure period, if any, after the Holder or the NJEDA,
or the holders of any of the Other Indebtedness, as the case may be, shall have
given Maker written notice of such default in accordance with the provisions of
the applicable agreement or instrument, Maker acknowledges and agrees that the
same shall constitute an Event of Default hereunder without further notice or
opportunity on the part of Maker to cure. In the event Maker defaults on its
obligations under this Note, Maker acknowledges and agrees that Holder may
declare the Principal Balance, all interest accrued thereon, and any and all
other sums due Holder from Maker from any source whatsoever, and the same shall
become, immediately due and payable.
Failure to participate in BEIP. Without limiting the generality of any
----------------------------------
clause set forth above, the failure for any reason of Maker to continue to
qualify with NJBEIP Payments or the suspension, discontinuance, termination or
substantial reduction by the State of New Jersey or the Authority of the
Business Employment Incentive Grant Program pursuant to NJSA S 34:1B-120 or any
of the regulations promulgated hereunder, or the failure of the State
legislature or the Governor of the State to appropriate (or make such
appropriation available) to fund said program.
6
SECTION 5. Holder's Remedies Upon Default. In the event of any default, Holder
------------------------------
may do any one or more of the following:
(a) Rightsunderthe Loan Agreement. Exercise any and all rights allowed
------------------------------
under the Loan Agreement.
(b) Declare Indebtedness Due and Payable. Declare the Principal Balance
---------------------------------------
and/or all interest thereon accrued and/or late penalties immediately due and
payable, without notice or demand, and the same shall become immediately due and
payable without notice or demand, and such amounts shall bear interest at the
lesser of one and one-half (1.5%) percent per month or the highest rate
permitted by applicable law (the "Default Rate"); and payment thereof may be
enforced and recovered in whole or in part at any time by one or more of the
remedies provided to Holder in this Note or in the Loan Agreement; provided,
---------
however, that in the event that Holder shall have declared the Principal Balance
------
and/or all interest accrued thereon and/or late penalties immediately due and
payable, then Maker's Deferral Rights shall terminate and be extinguished, and
Holder shall be entitled to immediately proceed, subject to Maker's Notice
rights, to enforce its remedies against Maker pursuant to this Section 4;
(c) Setoff. Exercise the right of setoff on any and all moneys due Maker
------
from Holder under any other agreement, instrument, document or any other source
whatsoever against the Principal Balance and all accrued interest thereon. In
such case, Holder shall give Maker written notice of Holder's exercise of such
right of setoff and shall indicate in such notice the payment or payments
against which such right of setoff shall be credited;
(d) Rights Under Law. Exercise the rights and remedies of a secured party
-----------------
under the Uniform Commercial Code in force in the State of New Jersey, as same
may be modified at any time and from time to time, or any other applicable law;
(e) Notice to Account Debtors. Notify account debtors to pay over to Holder
-------------------------
all sums owed to Maker.
7
(f) Holder's Remedies Cumulative. To the extent permitted by, and
------------------------------
subject to the mandatory requirements of, applicable law, and except as
expressly set forth herein, no. remedy under this Section 4 is intended to be
exclusive, but each shall be cumulative and in addition to any other remedy
provided herein or otherwise available to Holder at law, in equity or otherwise,
whether for specific performance of any agreement or provision contained herein
or in the Loan Agreement or in aid of the exercise of any right, power or remedy
granted herein or therein. No express or implied waiver by Holder of any default
or Event of Default hereunder shall in any way be, or be construed to be, a
waiver of any future or subsequent default or Event of Default. The failure or
delay of Holder in exercising any right, power or remedy granted it hereunder
upon the occurrence of any of the contingencies set forth herein shall not
constitute a waiver of any such right, power or remedy upon the continuation or
reoccurrence of any such contingency or similar contingencies, and any single or
partial exercise of any particular right, power or remedy by Holder shall not
exhaust the same or constitute a waiver of any other right, power or remedy
provided herein. To the extent permitted by applicable law, Maker hereby waives
any rights now or hereafter conferred by statute or otherwise that may limit or
modify any of Holder's rights, powers or remedies provided in this Section 4.
SECTION 6 Miscellaneous.
-------------
(a) Disclosure of Financial Information. The Holder is hereby
--------------------------------------
authorized to disclose any financial or other information about the Maker to any
regulatory body or agency having jurisdiction over the Holder and to any
present, future or prospective participant or successor in interest in any loan
or other financial accommodation made by the Holder to the Maker. The
information provided may include, without limitation, amounts, terms, balances,
payment history, return item history and any financial or other information
about the Maker.
(b) Interaction. This Note and the other Loan Documents constitute
------------
the sole agreement of the parties with respect to the transaction contemplated
hereby and supersede all oral negotiations and prior writings with respect
thereto.
8
(c) No Implied Waiver. The Holder shall not be deemed to have modified
-------------------
or waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and sighed by the Holder and then only to the extent
specifically set forth therein. A waiver in one event shall not be construed as
continuing or as a waiver of or bar-to such right or remedy in a subsequent
event. After any acceleration of, or the entry of any judgment on, this Note,
the acceptance by the Holder of any payments by or on behalf of the Maker on
account of the indebtedness evidenced by this Note shall not cure or be deemed
to cure any Event of Default or reinstate or be deemed to reinstate the terms of
this Note absent an express written agreement duly executed by the Holder and
the Maker.
(d) Waiver. Maker waives demand, notice, presentment, protest, demand
------
for payment, notice of dishonor, notice of protest and diligence of collection
of this Note. Maker consents to any and all extensions of time, renewals,
waivers, or modifications that may be granted by the Holder with respect to the
payment or other provisions of this Note, and to the release of any collateral,
with or without substitution. Maker agrees that makers, endorsers, guarantors
and sureties may be added or released without notice and without affecting the
Maker's liability hereunder. The liability of the Maker shall not be affected by
the failure of the Holder to prefect or otherwise obtain or maintain the
priority or validity of any security interest in any collateral. The liability
of the Maker shall be absolute and unconditional and without regard to the
liability of any other party hereto. Any waiver, express or implied, or any
provision hereunder and any delay or failure by Holder to enforce any provision
shall not preclude Holder from enforcing any such provision thereafter.
(e) Other Agreements. At the request of Holder, Maker shall execute
-----------------
such other agreements, documents or instruments in connection with this Note as
Holder reasonably requests, all of which must be in form and substance
satisfactory to Holder.
(f) Governing Law. This Note shall be governed exclusively by, and
--------------
construed in strict accordance with, the laws of the State of New Jersey, with
the exception of New Jersey's conflict of laws provisions. ALL TERMS NOT DEFINED
OR IN THE LOAN AGREEMENT ARE USED IN THE MANNER SET FORTH IN THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN '1 STATE OF New JERSEY.
9
(g) Costs and Attorneys' Fees. In the event of any action by Holder against
--------------------------
either Maker or any third party to enforce this Note, and/or to protect the
security interest of Holder in the Collateral, and/or to preserve, process,
develop, maintain, protect, care for or insure any Collateral, the Maker agrees
to pay all costs and expenses thereof, immediately, together with any and all
reasonable attorneys' fees and expenses.
(h) Notices. Notice from one party to another relating to this Note
-------
shall be deemed effective if made in writing (including telecommunications) and
delivered to the recipient's address, or telecopier number set forth below by
any of the following means: (i) hand delivery, (ii) registered or certified
mail, postage prepaid, with return receipt requested, (iii) first class or
express mail, postage prepaid, (iv) Federal Express, Purolator Courier or like
overnight courier service, or (v) telecopy or other wire transmission with
request for assurance of receipt in a manner typical with respect to
communications of that type. Notice made in accordance with this paragraph shall
be deemed delivered upon receipt if delivered by hand or wire transmission, 3
business days after mailing if mailed by first class registered or certified
mail or one business day after mailing or deposit with an overnight courier
service if delivered by express mail or overnight courier. This notice provision
shall be inapplicable to any judicial or non-judicial proceeding where state law
governs the manner and timing of notices in foreclosure or receivership
proceedings. All such notices shall be addressed as follows:
(i) if to Holder, at 00 Xxxx Xxxxx, X-x0, Xxxxxx, Xxx Xxxxxx 00000;
attention: President; telecopier number 000-000-0000; and
(ii) if to Maker, at Xxx Xxxxxxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000;
Attention: Sr. Vice President, CFO; telecopier number (000) 000-0000.
(i) Severability. In the event any one or more of the provisions
------------
contained in this Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Note, but this. Note shall be
construed as if such invalid, illegal or unenforceable provision has never been
contained herein or therein
10
(j) Parties in Interest. All covenants, agreements and undertakings in this
-------------------
Note by and on behalf of any of the parties hereto shall bind and inure to the
benefit of the respective permitted successors and assigns of the parties hereto
whether so expressed or not.
(k) Third Party Beneficiaries. There are no third party beneficiaries
---------------------------
to this Note.
(l) WAIVER OF JURY TRIAL. RECOGNIZING THAT ANY DISPUTE ARISING UNDER THIS
--------------------
NOTE WILL BE COMMERCIAL IN NATURE AND COMPLEX, AND IN ORDER TO MINIMIZE THE
COSTS INVOLVED IN THE DISPUTE RESOLUTION PROCESS, TO THE MAXIMUM EXTENT
PREMITTED BY LAW, THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY
MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS NOTE OR
THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES.
(m) JURISDICTION; SERVICE OF PROCESS. RECOGNIZING THAT ANY DISPUTE ARISING
--------------------------------
UNDER THIS NOTE WILL BE COMMERCIAL IN NATURE AND COMPLEX, AND IN ORDER TO
MINIMIZE THE COSTS INVOLVED IN THE DISPUTE RESOLUTION PROCESS, TO THE MAXIMUM
EXTENT PREMITTED BY LAW, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO ANY BREACH OF THIS NOTE MAY BE BROUGHT, AT THE OPTION OF ANY AGGRIEVED
PARTY IN ANY OF THE COURTS OF THE STATE OF NEW JERSEY OR THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE CITY OF
NEWARK, NEW JERSEY, AND TO THE MAXIMUM EXTENT PREMITTED BY LAW, EACH PARTY
HERETO HEREBY UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, EXPRESSLY WAIVING ANY OTHER JURISDICTION TO WHICH SUCH PARTY
MAY BE ENTITLED BY REASON OF ITS PRESENT AND FUTURE - DOMICILE. EACH PARTY
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY
OBJECTION IT MAY NOW OR HEREINAFTER HAVE TO VENUE IN ANY OF THE AFORESAID COURTS
ON THE BASIS OF FORUM NON CONVENZiENS. EACH PARTY AGREES THAT A FINAL. JUDGMENT
---------------------
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFORESAID COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
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MAILING OF TRUE COPIES OF THEREOF BY REGISTERED OR CERTIFIED MAIL TO SUCH PARTY'
S ADDRESS AS FIRST SET FORTH ABOVE. THE MAKER IRREVOCABLY APPOINTS EACH AND
EVERY OWNER, PARTNER AND/OR OFFICER OF THE MAKER AS ITS ATTORNEY UPON WHOM MAY
BE SERVED, BY REGULAR OR CERTIFIED MAIL AT THE ADDRESS SET FORTH HEREIN, ANY
NOTICE, PROCESS OR PLEADING IN ANY ACTION OR PROCEEDING AGAINST IT ARISING OUT
OF OR IN CONNECTION WITH THIS NOTE OR ANY OTHER LOAN DOCUMENT. NOTHING HEREIN
SHALL EFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(n) No Agency. Partnership. or Joint Venture.
---------------------------------------------
Nothing contained in this Note, the Agreement, or any other security instrument
nor the acts of the parties hereto shall be construed to create a relationship
of principal and agent, partnership or joint venture between Maker and Holder.
(o) Modifications. This Note may not be supplemented, extended,
-------------
modified or terminated- except by an agreement in writing signed by the party
against whom enforcement of any such waiver, change, modification or discharge
is sought.
(p) Sales or Participations. The Holder may from time to time sell or
-------------------------
assign, in whole or in part, or grant participations in this Note and/or the
obligations evidenced hereby. The holder of any such sale, assignment or
participation, if the applicable agreement between the Holder and such holder so
provides, shall be (a) entitled to all of the rights, obligations and benefits
of the Holder; and (b) deemed to hold and may exercise the rights of setoff or
banker's lien with respect to any and all obligations of such holder to the
Maker, in each case as fully as though the Maker were directly indebted to such
holder. The Holder may in its discretion give note to the Maker of such sale,
assignment or participation; however, the failure to give such notice shall not
affect any of the Holder's or such holder's rights hereunder.
(q) Continuing Enforcement. If, after receipt of any payment of all or
-----------------------
any part of this Note, the Holder is compelled or agrees, for settlement
purposes, to surrender such payment to any person or entity for any reason
(including, without limitation, a determination that such payment is void or
avoidable as a preference or fraudulent conveyance, an impermissible setoff, or
a diversion of trust funds), then this Note and the other Loan Documents shall
continue in full force and effect or be reinstated, as the case may be, and the
Maker shall be liable for, and shall indemnify, defend and hold harmless the
Holder with respect to, the full amount so surrendered. The provisions of this
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Section shall survive the cancellation or termination of this Note and shall
remain effective notwithstanding the payment of the obligations evidenced
hereby, the release of any security interest, lien or encumbrance securing this
Note or any other action with the Holder may have taken in reliance upon its
receipt of such payment. Any cancellation, release or other such action shall be
deemed to have been conditioned upon any payment of the obligations evidenced
hereby having become final and irrevocable.
[SIGNATURES ARE SET FORTH ON THE NEXT PAGE]
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IN WITNESS WHEREOF, Maker, intending to be fully and legally bound hereunder and
liable hereon, has caused its duly-authorized representative to execute and
deliver this Note, the date and year first above written.
ATTEST: LIFECELL CORPORATION
By: /s/Xxxxx Xxxxx By: /s/Xxxxx X. Xxxx
------------------------------ -------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxx
Title: Controller Title: SVP, CFO
STATE OF : New Jersey
: SS
COUNTY OF : Huntington
On this 31st day of May 2000, before me, the undersigned, a Notary Public of
the State of New Jersey, personally appeared Xxxxx X. Xxxx of LIFECELL
-------------
CORPORATION, a Delaware corporation, who I am satisfied is the person named
in the foregoing instrument and he/she acknowledged that he/she signed, sealed
and delivered the same as the act and deed of such corporation, made by
authority of its Board of Directors, for the uses and purposes therein
expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and notary seal.
/s/XXXXXX XXX XXXXXX
-----------------------------------
My commission expires
XXXXXX XXX XXXXXX
NOTARY PUBLIC OF NEW JERSEY
COMMISION EXPIRES 6/30/2004
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