Exhibit 6
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SECURITY AGREEMENT
AMONG
BIO-PLEXUS, INC.,
as Obligor
and
Appaloosa Management, L.P.,
as Collateral Agent
Dated as of April 28, 2000
TABLE OF CONTENTS
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Article I. Definitions and Interpretation....................................1
1.01 Certain Defined Terms...............................................1
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1.02 Interpretation......................................................4
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Article II. Collateral.......................................................4
2.01 Grant of First Priority Security Interest...........................4
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2.02 Grant of Second Priority Security Interest..........................6
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2.03 Intellectual Property...............................................7
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2.04 Perfection..........................................................7
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2.05 Preservation and Protection of Security Interests...................8
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2.06 Reserved............................................................9
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2.07 Special Provisions Relating to Securities Collateral................9
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2.08 Use of Intellectual Property.......................................10
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2.09 Instruments........................................................10
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2.10 Use of Collateral..................................................10
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2.11 Rights and Obligations.............................................11
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2.12 Release of Motor Vehicles..........................................11
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2.13 Termination........................................................12
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Article III. Cash Proceeds of Collateral....................................12
3.01 Collateral Account.................................................12
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3.02 Certain Proceeds...................................................12
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3.03 Investment of Balance in Collateral Account........................13
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Article IV. Representations and Warranties..................................13
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4.01 Title..............................................................13
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4.02 Intellectual Property..............................................14
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4.03 Goods..............................................................14
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Article V. Covenants........................................................14
5.01 Books and Records..................................................14
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5.02 Removals, Etc......................................................15
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5.03 Stock Collateral...................................................15
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5.04 Intellectual Property..............................................15
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Article VI. Remedies........................................................17
6.01 Events of Default, Etc.............................................17
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6.02 Deficiency.........................................................18
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6.03 Private Sale.......................................................18
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6.04 Application of Proceeds............................................19
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Article VII. Miscellaneous..................................................20
7.01 Waiver.............................................................20
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7.02 Notices............................................................20
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7.03 Expenses, Etc......................................................21
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7.04 Amendments.........................................................21
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7.05 Successors and Assigns.............................................21
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7.06 Survival...........................................................21
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7.07 Agreements Superseded..............................................21
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7.08 Severability.......................................................22
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7.09 Captions...........................................................22
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7.10 Counterparts.......................................................22
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7.11 GOVERNING LAW......................................................22
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7.12 Submission to Jurisdiction.........................................22
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7.13. Service of Process.................................................23
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7.14. WAIVER OF JURY TRIAL...............................................23
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Annex I - Schedule of Pledged Debt
Annex II - Jurisdictions for Filing of Financing Statements
Annex III - Business Locations
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SECURITY AGREEMENT
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This SECURITY AGREEMENT (this "Agreement"), dated as of April 28,
2000, is made by and among BIO-PLEXUS, INC., a Connecticut corporation (the
"Obligor"), and Appaloosa Management, L.P., as collateral agent (the
"Collateral Agent"), for the benefit of the holders of the Obligor's Notes.
WHEREAS, pursuant to the Convertible Note Purchase Agreement, dated as
of the date hereof (as amended, supplemented, restated or otherwise
modified from time to time, the "Note Purchase Agreement"), among the
purchasers listed on Exhibit A thereto (the "Purchasers"), the Collateral
Agent and the Obligor, the Purchasers are purchasing, among other things,
Notes from the Obligor in the aggregate principal amount of $16.75 million;
WHEREAS, as a condition, and material inducement, to the Purchasers'
agreement to purchase the Notes, the Purchasers required that the Obligor
deliver this Agreement to the Collateral Agent;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Obligor agrees with
the Collateral Agent as follows:
Article I. Definitions and Interpretation.
1.01 Certain Defined Terms. Unless otherwise defined, all capitalized
terms used in this Agreement that are defined in the Note Purchase
Agreement (including those terms incorporated therein by reference) shall
have the respective meanings assigned to them in the Note Purchase
Agreement. In addition, the following terms shall have the following
meanings under this Agreement:
"Accounts" shall have the meaning assigned to that term in Section
2.01(b).
"Additional Debt" shall have the meaning assigned to that term in
Section 2.01(a).
"Additional Shares" shall have the meaning assigned to that term in
Section 5.03.
"Casualty Event" shall mean, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of,
such property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"Collateral" shall have the meaning assigned to that term in Section
2.02.
"Collateral Account" shall have the meaning assigned to that term in
Section 3.01.
"Documents" shall have the meaning assigned to that term in Section
2.01(f).
"Domestic Corporation" shall mean any corporation organized under the
laws of any state of the United States of America (or the District of
Columbia).
"Equipment" shall have the meaning assigned to that term in Section
2.01(e).
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including any stockholders' or voting
trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital
stock of any class, or partnership or other ownership interests of any type
in, such Person.
"First Priority Collateral" shall have the meaning assigned to that
term in Section 2.01.
"Foreign Corporation" shall mean any corporation that is not a
Domestic Corporation.
"Holder" shall mean, at any time of reference, a Person in whose name
a Note is registered in the Note Register at such time.
"Instruments" shall have the meaning assigned to that term in Section
2.01(c).
"Inventory" shall have the meaning assigned to that term in Section
2.01(d).
"Issuers" shall mean, collectively, each Subsidiary, directly or
indirectly, of the Obligor that is the issuer (as defined in the Uniform
Commercial Code) of any shares of capital stock now owned or hereafter
acquired by the Obligor.
"Loan Documents" shall mean the Note Purchase Agreement, the Notes,
this Agreement, the Guarantee and Security Agreement and the Registration
Rights Agreement.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title to any such property is
governed by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired by the Obligor.
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"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Pledged Debt" shall have the meaning assigned to that term in Section
2.01(a).
"Pledged Stock" shall have the meaning assigned to that term in
Section 2.01(a).
"Second Priority Collateral" shall have the meaning assigned to that
term in Section 2.02.
"Securities Collateral" means the Stock Collateral and the Pledged
Debt.
"Signing Date" shall mean the date on which the Obligor shall sign and
deliver this Agreement.
"Stock Collateral" shall have the meaning assigned to that term in
Section 2.01(a).
"Trademark Collateral" shall mean all Trademarks, whether now owned or
hereafter acquired by the Obligor. Notwithstanding the foregoing, the
Trademark Collateral shall not include any Trademark which would be
rendered invalid, abandoned, void or unenforceable by reason of its being
included as part of the Trademark Collateral.
"Trademarks" shall mean, collectively, (a) all trade names,
trademarks, service marks, logos, trade dress, domain names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith and
all business, or portion thereof, pertaining thereto and all registrations
and applications in connection with any of the foregoing, (b) all renewals
and extensions of any of the foregoing and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties, damages and
other payments (including in respect of all past, present and future
infringements) now or hereafter due or payable under or with respect to any
of the foregoing, (ii) to ▇▇▇ for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise
accruing under or pertaining to any of the foregoing throughout the world,
together, in each case, with the product lines and goodwill of the business
connected with the use of, or otherwise symbolized by, each of the
foregoing.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of New York from time to time or, by reason of
mandatory application, any other applicable jurisdiction.
1.02 Interpretation. In this Agreement, unless otherwise indicated,
the singular includes the plural and plural the singular; words importing
either gender include the
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other gender; references to statutes or regulations are to be construed as
including all statutory or regulatory provisions consolidating, amending or
replacing the statute or regulation referred to; references to "writing"
include printing, typing, lithography and other means of reproducing words
in a tangible visible form; the words "including," "includes" and "include"
shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Agreement; references to agreements and
other contractual instruments shall be deemed to include all subsequent
amendments, extensions and other modifications to such instruments
(without, however, limiting any prohibition on any such amendments,
extensions and other modifications by the terms of any Loan Document); and
references to Persons include their respective permitted successors and
assigns and, in the case of governmental Persons, Persons succeeding to
their respective functions and capacities.
Article II. Collateral.
2.01 Grant of First Priority Security Interest. As collateral security
for the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) and performance of the Secured Obligations and
obligations of every kind and nature of the Obligor now or hereafter
incurred, existing or created, to any of the Purchasers (including, without
limitation, under the Note Purchase Agreement), the Obligor hereby pledges
and grants to the Collateral Agent, for the ratable benefit of the Holders,
a first priority security interest in all of the Obligor's right, title and
interest in and to the following property, whether now owned or hereafter
acquired by the Obligor and whether now existing or hereafter coming into
existence including, without limitation, all real and personal property and
interests in real and personal property (collectively, the "First Priority
Collateral"):
(a)(i) all of the shares of capital stock of the Issuers now
owned or hereafter acquired by the Obligor together with in each case the
certificates representing the same; provided that the Obligor shall not be
required to pledge hereunder, and nothing herein shall be deemed to
constitute a pledge hereunder, of more than 65% of the total combined
voting power of all classes of stock of any Foreign corporation
(collectively, the "Pledged Stock"); (ii) all shares, securities, moneys or
property representing a dividend on, or a distribution or return of capital
in respect of, any of the Pledged Stock, resulting from a split-up,
revision, reclassification or other like change of any of the Pledged Stock
or otherwise received in exchange for any of the Pledged Stock and all
Equity Rights issued to the holders of, or otherwise in respect of, any of
the Pledged Stock; and (iii) without affecting the obligations of the
Obligor under any provision prohibiting such action under any Loan
Document, in the event of any consolidation or merger in which any Issuer
is not the surviving corporation, all shares of each class of the capital
stock of the successor corporation (unless such successor corporation is
the Obligor itself) formed by or
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resulting from such consolidation or merger (collectively, and together
with the property described in clauses (i) and (ii) above, the "Stock
Collateral"); (iv) the Indebtedness described in Annex I and issued by the
obligors named therein (the "Pledged Debt"); (v) all additional
Indebtedness for money borrowed or for the deferred purchase price of
property from time to time owed to the Obligor by any Person, "Additional
Debt"); (vi) all notes or other instruments evidencing the Indebtedness
referred to in clauses (iv) and (v) above;
(b) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Obligor constituting a right to the payment
of money, whether or not earned by performance, including, without
limitation, (i) in payments due and to become due to the Obligor under the
(1) Development and License Agreement, dated as of January 28, 1997,
between ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Medical, Inc. and the Company, as such agreement
may be amended from time to time (the "Development and License Agreement")
and (2) License Agreement, dated as of October 1998, between the Company
and TFX Medical, Incorporated (as such agreement may be amended from time
to time), (ii) in payments due and to become due to the Obligor under any
existing or future licensing, supply, development, or similar agreements,
(iii) in repayment of any loans or advances (including loans and advances
to Subsidiaries of the Obligor), (iv) in payment for goods (including
Inventory and Equipment) sold or leased or for services rendered and (v) in
payment of tax refunds and in payment of any guarantee of any of the
foregoing (collectively, the "Accounts");
(c) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of the Obligor evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts (collectively,
the "Instruments");
(d) all inventory (as defined in the Uniform Commercial Code) and
all other goods (including Motor Vehicles) of the Obligor that are held by
the Obligor for sale, lease or furnishing under a contract of service
(including to its Subsidiaries or Affiliates), that are so leased or
furnished or that constitute raw materials, work in process or material
used or consumed in its business, including all spare parts and related
supplies, all goods obtained by the Obligor in exchange for any such goods,
all products made or processed from any such goods and all substances, if
any, commingled with or added to any such goods (collectively, the
"Inventory");
(e) except for the equipment subject to the equipment leases
referred to in Schedule 2.7(a) of the Note Purchase Agreement, all
equipment (as defined in the Uniform Commercial Code) and all other goods
(including Motor Vehicles) of the Obligor that are used or bought for use
primarily in its business, including all spare parts and related supplies,
all goods obtained by the Obligor in exchange for any such goods,
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all substances, if any, commingled with or added to such goods and all
upgrades and other improvements to such goods, in each case to the extent
not constituting Inventory (collectively, the "Equipment");
(f) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Obligor covering, evidencing or representing
Inventory or Equipment (collectively, the "Documents");
(g) all contracts and other agreements of the Obligor relating to
the sale or other disposition of all or any part of the Inventory,
Equipment or Documents and all rights, warranties, claims and benefits of
the Obligor against any Person arising out of, relating to or in connection
with all or any part of the Inventory, Equipment or Documents of the
Obligor, including any such rights, warranties, claims or benefits against
any Person storing or transporting any such Inventory or Equipment or
issuing any such Documents;
(h) all other accounts or general intangibles of the Obligor not
constituting Accounts, including, to the extent related to all or any part
of the other Collateral, all books, correspondence, credit files, records,
invoices, tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Obligor or any computer bureau or
service company from time to time acting for the Obligor;
(i) the balance from time to time in the Collateral Account;
(j) all other tangible and intangible property of the Obligor,
including all Patent Collateral, Trademark Collateral or any other
Intellectual Property (provided, however, that with respect to Patents
jointly developed by the Obligor and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Medical, Inc. under
the Development and License Agreement, only to the extent consented to by
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Medical, Inc.); and
(k) all proceeds and products in whatever form of all or any part
of the other Collateral, including all proceeds of insurance and all
condemnation awards and all other compensation for any Casualty Event with
respect to all or any part of the other Collateral (together with all
rights to recover and proceed with respect to the same), and all
accessories to, substitutions for and replacements of all or any part of
the other Collateral.
2.02 Grant of Second Priority Security Interest. As collateral
security for the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) and performance of the Secured
Obligations, the Obligor hereby pledges and grants to the Collateral Agent,
for the ratable benefit of the Holders a second priority security interest
in all of the Obligor's right, title and interest in and to the real
property in which ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ have a perfected first
priority security interest
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pursuant to the Mortgage Deed, Security Agreement, Assignment of Rents and
Fixture Filing, dated October 28, 1994, between ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and the Company, whether now existing or hereafter coming into
existence (collectively, the "Second Priority Collateral" and together with
the First Priority Collateral, the "Collateral").
2.03 Intellectual Property. For the purpose of enabling the Collateral
Agent to exercise its rights, remedies, powers and privileges under Article
VI at such time or times as the Collateral Agent shall be lawfully entitled
to exercise such rights, remedies, powers and privileges, and for no other
purpose, the Obligor hereby grants to the Collateral Agent, the right to
immediately, without demand of performance and without additional notice,
or demand whatsoever to the Obligor, sell at public or private sale or
otherwise realize upon, all right, title, and interest in all or any of the
Intellectual Property and any associated good will or business, or portion
thereof, pertaining thereto, as the case may be, or any interest that the
Obligor may have therein, and after deducting all expenses (including all
reasonable expenses for brokers' fees and legal services) from the proceeds
of such sale or other disposition of the Intellectual Property and any
associated good will, as the case may be, the Collateral Agent shall apply
the residue of such proceeds toward the payment of all liabilities.
2.04 Perfection. Concurrently with the execution and delivery of this
Agreement, the Obligor shall (i) file such financing statements and other
documents in such offices as shall be necessary or as the Collateral Agent
may request to perfect and establish, with regard to First Priority
Collateral, the first priority (subject only to Liens permitted under
Section 6.7 of the Note Purchase Agreement) of, and with regard to Second
Priority Collateral, the second priority of, the Liens granted by this
Agreement (including promptly filing the Patent Collateral Security
Agreement and Trademark Collateral Security Agreement, in the forms
executed on the date hereof by the Obligor, in the United States Patent and
Trademark Office), (ii) deliver and pledge to the Collateral Agent any and
all Instruments, endorsed or accompanied by such instruments of assignment
and transfer in such form and substance as the Collateral Agent may
request, (iii) cause the Collateral Agent to be listed as the lienholder on
all certificates of title or ownership relating to Motor Vehicles owned by
the Obligor and deliver to the Collateral Agent originals of all such
certificates of title or ownership for the Motor Vehicles together with the
odometer statements for each respective Motor Vehicle, (iv) deliver and
pledge to the Collateral Agent all certificates for the Pledged Stock and
notes, instruments or other documents evidencing the Pledged Debt,
accompanied by undated stock or bond powers, as the case may be, duly
executed in blank and (v) take all such other actions as shall be necessary
or as the Collateral Agent may request to perfect and establish (A) with
regard to the First Priority Collateral, the first priority (subject only
to such Permitted Liens), and (B) with regard to the Second Priority
Collateral, the second priority of Liens granted by this Agreement. The
Collateral Agent shall have the right, at any time in its discretion and
with notice to the Obligor, to transfer to or to register in its
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name or in the name of any of its nominees any or all of the Pledged Stock
or Pledged Debt.
2.05 Preservation and Protection of Security Interests. The Obligor
shall:
(a) upon the acquisition after the Signing Date by the Obligor of
any Securities Collateral, promptly either (x) transfer and deliver to the
Collateral Agent all such Securities Collateral (together with the
certificates or instruments representing such Securities Collateral
securities duly endorsed in blank or accompanied by undated powers duly
executed in blank) or (y) take such other action as the Collateral Agent
shall deem necessary or appropriate to perfect, and establish the priority
of, the Liens granted by this Agreement in such Securities Collateral;
(b) upon the acquisition after the Signing Date by the Obligor of
any Instrument, promptly deliver and pledge to the Collateral Agent all
such Instruments, endorsed or accompanied by such instruments of assignment
and transfer in such form and substance as the Collateral Agent may
request;
(c) upon the acquisition after the Signing Date by the Obligor of
any Equipment or Motor Vehicle covered by a certificate of title or
ownership, promptly cause the Collateral Agent to be listed as the
lienholder on such certificate of title and within 45 days of the
acquisition of such property deliver evidence of the same to the Collateral
Agent;
(d) upon the Obligor's acquiring, or otherwise becoming entitled
to the benefits of, any copyright (or copyrightable material), Patent (or
patentable invention), Trademark (or associated goodwill) or other
Intellectual Property or upon or prior to the Obligor's filing, either
directly or through any agent, licensee or other designee, of any
application with any governmental Person for any copyright, Patent,
Trademark, or other Intellectual Property, in each case after the Signing
Date, execute and deliver such contracts, agreements and other instruments
as the Collateral Agent may request to evidence, validate, perfect and
establish the first priority (subject only to Liens permitted under Section
6.7 of the Note Purchase Agreement) of the Liens granted by this Agreement
in such and any related Intellectual Property; and
(e) give, execute, deliver, file or record any and all financing
statements, notices, contracts, agreements or other instruments, obtain any
and all governmental approvals and take any and all steps that may be
necessary or as the Collateral Agent may request to create, perfect,
establish with regard to the First Priority Collateral, the first priority
(subject only to Liens permitted under Section 6.7 of the Note Purchase
Agreement) of, or with regard to the Second Priority Collateral, the second
priority of, or to preserve the validity, perfection with regard to the
First Priority Collateral, first priority (subject only to such Permitted
Liens) of, or with regard to the Second Priority Collateral,
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second priority of, the Liens granted by this Agreement or to enable the
Collateral Agent to exercise and enforce its rights, remedies, powers and
privileges under this Agreement with respect to such Liens, including
causing any or all of the Securities Collateral to be transferred of record
into the name of the Collateral Agent or its nominee (and the Collateral
Agent agrees that if any Securities Collateral is transferred into its name
or the name of its nominee, the Collateral Agent will thereafter promptly
give to the Obligor copies of any notices and communications received by it
with respect to the Stock Collateral pledged by the Obligor), provided that
notices to account debtors in respect of any Accounts or Instruments shall
be subject to the provisions of Section 3.02(b).
2.06 Reserved.
2.07 Special Provisions Relating to Securities Collateral. (a) So long
as no Event of Default shall have occurred and be continuing, the Obligor
shall have the right to exercise all voting, consensual and other powers of
ownership pertaining to the Securities Collateral for all purposes not
inconsistent with the terms of any Loan Document, provided that the Obligor
agrees that it will not vote the Securities Collateral in any manner that
is inconsistent with the terms of any Loan Document; and the Collateral
Agent shall, at the Obligor' expense, execute and deliver to the Obligor or
cause to be executed and delivered to the Obligor all such proxies, powers
of attorney, dividends and other orders and other instruments, without
recourse, as the Obligor may reasonably request for the purpose of enabling
the Obligor to exercise the rights and powers which it is entitled to
exercise pursuant to this Section 2.07(a).
(b) So long as no Event of Default shall have occurred and be
continuing, the Obligor shall be entitled to receive and retain any
dividends or distributions on the Securities Collateral paid in cash.
(c) If any Event of Default shall have occurred and be
continuing, and whether or not the Holders or the Collateral Agent exercise
any available right to declare any Secured Obligation due and payable or
seek or pursue any other right, remedy, power or privilege available to
them under applicable law, this Agreement or any other Loan Document, all
dividends and other distributions on the Securities Collateral shall be
paid directly to the Collateral Agent and retained by it in the Collateral
Account as part of the Securities Collateral, subject to the terms of this
Agreement, and, if the Collateral Agent shall so request, the Obligor
agrees to execute and deliver to the Collateral Agent appropriate
additional dividend, distribution and other orders and instruments to that
end, provided that if such Event of Default is cured, any such dividend or
distribution paid to the Collateral Agent prior to such cure shall, upon
request of the Obligor (except to the extent applied to the Secured
Obligations), be returned by the Collateral Agent to the Obligor.
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2.08 Use of Intellectual Property. Subject to such action not
otherwise constituting a Default and so long as no Event of Default shall
have occurred and be continuing, the Obligor will be permitted to exploit,
use, enjoy, protect, license, sublicense, assign, sell, dispose of or take
other actions with respect to the Intellectual Property in the ordinary
course of the business of the Obligor subject to the rights of the
Collateral Agent, whose rights shall not be subordinated, impaired or
diminished. In furtherance of the foregoing, so long as no Event of Default
shall have occurred and be continuing, the Collateral Agent shall from time
to time, upon the request of the Obligor, execute and deliver any
instruments, certificates or other documents, in the form so requested,
which the Obligor shall have certified are appropriate (in its reasonable
judgment) to allow it to take any action permitted above. The exercise of
rights, remedies, powers and privileges under Article VI by the Collateral
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Obligor in accordance with the first
sentence of this Section 2.08.
2.09 Instruments. So long as no Default or Event of Default shall have
occurred and be continuing, the Obligor may retain for collection in the
ordinary course of business any Instruments obtained by it in the ordinary
course of business, and the Collateral Agent shall, promptly upon the
request, and at the expense of the Obligor, make appropriate arrangements
for making any Instruments pledged by the Obligor available to the Obligor
for purposes of presentation, collection or renewal. Any such arrangement
shall be effected, to the extent deemed appropriate by the Collateral
Agent, against trust receipt or like document.
2.10 Use of Collateral. So long as no Event of Default shall have
occurred and be continuing, the Obligor shall, in addition to its rights
under Sections 2.07, 2.08 and 2.09 hereof and Section 6.18 of the Note
Purchase Agreement, in respect of the Collateral contemplated in those
sections, be entitled to use and possess the other Collateral and to
exercise its rights, title and interest in all contracts, agreements,
licenses and governmental approvals, subject to the rights, remedies,
powers and privileges of the Collateral Agent under Articles III and VI and
to such use, possession or exercise not otherwise constituting a Default.
2.11 Rights and Obligations. (a) The Obligor shall remain liable to
perform its duties and obligations under the contracts and agreements
included in the Collateral in accordance with their respective terms to the
same extent as if this Agreement had not been executed and delivered. The
exercise by the Collateral Agent of any right, remedy, power or privilege
in respect of this Agreement shall not release the Obligor from any of its
duties and obligations under such contracts and agreements and the Obligor
shall save, indemnify and keep the Collateral Agent harmless from and
against all expense, loss or damage suffered by reason of such exercise.
The Collateral Agent shall have no duty, obligation or liability under such
contracts and agreements or with respect to any
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governmental approval included in the Collateral by reason of this
Agreement or any other Loan Document, nor shall the Collateral Agent be
obligated to perform any of the duties or obligations of the Obligor under
any such contract or agreement or any such governmental approval or to take
any action to collect or enforce any claim (for payment) under any such
contract or agreement or governmental approval.
(b) No Lien granted by this Agreement in the Obligor's right,
title and interest in any contract, agreement or governmental approval
shall be deemed to be a consent by the Collateral Agent to any such
contract, agreement or governmental approval.
(c) No reference in this Agreement to proceeds or to the sale or
other disposition of Collateral shall authorize the Obligor to sell or
otherwise dispose of any Collateral except to the extent otherwise
expressly permitted by the terms of any Loan Document.
(d) The Collateral Agent shall not be required to take steps
necessary to preserve any rights against prior parties to any part of the
Collateral.
2.12 Release of Motor Vehicles. So long as no Default shall have
occurred and be continuing, upon the request of, and at the expense of, the
Obligor, the Collateral Agent shall execute and deliver to the Obligor such
instruments as the Obligor shall reasonably request to remove the notation
of the Collateral Agent as lienholder on any certificate of title for any
Motor Vehicle; provided that any such instruments shall be delivered, and
the release shall be effective, only upon receipt by the Collateral Agent
of a certificate from the Obligor stating that the Motor Vehicle the Lien
on which is to be released is to be sold or has suffered a casualty loss
(with title passing to the appropriate casualty insurance company in
settlement of the claim for such loss).
2.13 Termination. When all Secured Obligations shall have been
indefeasibly paid in full, this Agreement shall terminate, and the
Collateral Agent shall, at the expense of the Obligor, forthwith cause to
be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral
and money received in respect of the Collateral, to or on the order of the
Obligor and to be released, canceled and granted back all licenses and
rights referred to in Section 2.03. The Collateral Agent shall also, at the
expense of the Obligor, execute and deliver to the Obligor upon such
termination such Uniform Commercial Code termination statements,
certificates for terminating the Liens on the Motor Vehicles and such other
documentation as shall be reasonably requested by the Obligor to effect the
termination and release of the Liens granted by this Agreement on the
Collateral.
Article III. Cash Proceeds of Collateral.
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3.01 Collateral Account. There is hereby established with the
Collateral Agent a cash collateral account (the "Collateral Account") in
the name and under the exclusive domain and control of the Collateral Agent
into which there shall be deposited from time to time the cash proceeds of
any of the Collateral (including proceeds resulting from insurance or
condemnation) required to be delivered to the Collateral Agent pursuant to
this Agreement and into which the Obligor may from time to time deposit any
additional amounts which it wishes to pledge to the Collateral Agent as
additional collateral security under this Agreement. The balance from time
to time in the Collateral Account shall constitute part of the Collateral
and shall not constitute payment of the Secured Obligations until applied
as provided in this Agreement. If any Event of Default shall have occurred
and be continuing, the Collateral Agent may in its discretion apply
(subject to collection) the balance from time to time outstanding to the
credit of the Collateral Account to the payment of the Secured Obligations
in the manner specified in Article VI. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided in this
Agreement.
3.02 Certain Proceeds. (a) If any Default or Event of Default shall
have occurred and be continuing, the Obligor shall, upon request of the
Collateral Agent, promptly notify (and the Obligor hereby authorizes the
Collateral Agent so to notify) each account debtor in respect of any
Accounts or Instruments that such Collateral has been assigned to the
Collateral Agent under this Agreement and that any payments due or to
become due in respect of such Collateral are to be made directly to the
Collateral Agent. All such payments made to the Collateral Agent shall be
immediately deposited in the Collateral Account.
(b) The Obligor agrees that if the proceeds of any Collateral
(including payments made in respect of Accounts and Instruments) shall be
received by it following the occurrence and during the continuation of a
Default, the Obligor shall as promptly as possible deposit such proceeds
into the Collateral Account. Until so deposited, all such proceeds shall be
held in trust by the Obligor for and as the property of the Collateral
Agent and shall not be commingled with any other funds or property of the
Obligor.
3.03 Investment of Balance in Collateral Account. Amounts on deposit
in the Collateral Account shall be invested from time to time in such
Permitted Investments as the Obligor (or, if any Default or Event of
Default shall have occurred and be continuing, the Collateral Agent) shall
determine. All such investments shall be held in the name and be under the
control of the Collateral Agent. At any time after the occurrence and
during the continuance of an Event of Default, the Collateral Agent may in
its discretion at any time and from time to time elect to liquidate any
such investments and to apply or cause to be applied the proceeds of such
action to the payment of the Secured Obligations in the manner specified in
Article VI.
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Article IV. Representations and Warranties.
The Obligor hereby represents and warrants to the Collateral Agent for
the benefit of the Holders as follows:
4.01 Title. The Obligor is the sole beneficial owner of the Collateral
in which it purports to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to this Agreement, and,
except as set forth in Schedule 4.01, such Collateral is free and clear of
all Liens. The first priority Liens with regard to First Priority
Collateral and the second priority Liens with regard to Second Priority
Collateral granted by this Agreement in favor of the Collateral Agent for
the benefit of the Collateral Agent and the Holders have attached and, upon
filing of the respective financing statements in the jurisdictions listed
on Annex II, this Agreement is effective to create a perfected first
priority security interest in all of such First Priority Collateral and to
create a perfected second priority security interest in all such Second
Priority Collateral, prior to all other Liens to the extent that a security
interest can be perfected by filing pursuant to the Uniform Commercial
Code. With respect to the Pledged Stock and the Pledged Debt, the pledge of
such Collateral and delivery to the Collateral Agent of certificates or
other instruments representing the same pursuant to this Agreement creates
a valid and perfected first priority security interest in such Collateral
in favor of the Collateral Agent for the benefit of the Holders.
4.02 Intellectual Property. (a) Except pursuant to licenses and other
user agreements entered into by the Obligor in the ordinary course of
business, the Obligor owns and possesses the right to use, and has done
nothing to authorize or enable any other Person to use, any Patent or
Trademark or any other Intellectual Property.
(b) The Obligor owns any Trademarks registered in the United
States of America to which the last sentence of the definition of Trademark
Collateral applies.
4.03 Goods. Any goods now or hereafter manufactured or otherwise
produced by the Obligor or any of its Subsidiaries included in the
Collateral have been and will be produced in compliance with the
requirements of the Fair Labor Standards Act.
Article V. Covenants.
5.01 Books and Records. The Obligor shall: (a) keep full and accurate
books and records relating to the Collateral and stamp or otherwise ▇▇▇▇
such books and records in such manner as the Collateral Agent may
reasonably require in order to reflect the Liens granted by this Agreement;
(b) furnish to the Collateral Agent from time to time (but, unless a
Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing the
Patent Collateral, the Trademark Collateral and any other collateral in
Intellectual Property and such other reports in connection with the Patent
Collateral, the Trademark Collateral and
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any other collateral in Intellectual Property as the Collateral Agent may
reasonably request, all in reasonable detail; (c) prior to filing, either
directly or through an agent, licensee or other designee, any application
for any Patent, Trademark, or any other Intellectual Property furnish to
the Collateral Agent prompt notice of such proposed filing; and (d) permit
representatives of the Collateral Agent, upon reasonable notice, at any
time during normal business hours to inspect and make abstracts from its
books and records pertaining to the Collateral, permit representatives of
the Collateral Agent to be present at the Obligor's place of business to
receive copies of all communications and remittances relating to the
Collateral and forward copies of any notices or communications received by
the Obligor with respect to the Collateral, all in such manner as the
Collateral Agent may reasonably request.
5.02 Removals, Etc. Without at least 30 days' prior written notice to
the Collateral Agent, the Obligor shall (i) not maintain any of its books
and records with respect to the Collateral at any office or maintain its
principal place of business at any place, or permit any Inventory or
Equipment to be located anywhere, other than (a) at the address initially
indicated for notices to it under Article VII, (b) at one of the other
business locations presently owned or operated by the Obligor or any of its
Affiliates and identified in Annex II or III or (c) in transit from one of
such locations to another, or (ii) change its corporate name, or the name
under which it does business, from the name shown on the signature pages to
this Agreement.
5.03 Stock Collateral. The Obligor will cause the Stock Collateral to
constitute at all times 100% (or, in the case of capital stock issued by
any Foreign Corporation, 65%) of the total number of shares of each class
of capital stock of each Issuer then outstanding. The Obligor shall cause
all such shares to be duly authorized, validly issued, fully paid and
nonassessable and to be free of any contractual restriction or any
restriction under the charter or bylaws of the respective Issuer of such
Stock Collateral, upon the transfer of such Stock Collateral (except for
any such restriction contained in any Loan Document). The Obligor agrees
that it will (i) cause each Issuer of the Pledged Stock not to issue any
shares of stock or other securities in addition to or in substitution for
the Pledged Stock, (ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares of capital
stock issued to the Obligor (the "Additional Shares") and any and all
Additional Debt, and (iii) promptly (and in any event within three business
days) deliver to the Collateral Agent an amendment to this Agreement, duly
executed by the Obligor, in respect of the Additional Shares or Additional
Debt, together with all certificates, notes or other instruments
representing or evidencing the same. The Obligor agrees that all Additional
Shares and Additional Debt listed on any such amendment delivered to the
Collateral Agent shall for all purposes hereunder constitute Pledged Stock
and Pledged Debt, respectively, and (iii) is deemed to have made, upon such
delivery, the representations and warranties contained in Article IV hereof
with respect to such Collateral.
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5.04 Intellectual Property. (a) The Obligor (either itself or through
licensees) will, for each Trademark, (i) to the extent consistent with past
practice and good business judgment, continue to use such Trademark on each
and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in order to
maintain such Trademark in full force and effect free from any claim of
abandonment for nonuse, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) employ such
Trademark with the appropriate notice of registration and (iv) not (and not
permit any licensee or sublicensee to) do any act or knowingly omit to do
any act whereby any Trademark material to the conduct of its business may
become invalidated.
(b) The Obligor (either itself or through licensees) will not do
any act or knowingly omit to do any act whereby any Patent or any other
Intellectual Property material to the conduct of its business may become
abandoned or dedicated.
(c) The Obligor shall notify the Collateral Agent immediately if
it knows or has reason to know that any Intellectual Property material to
the conduct of its business may become abandoned or dedicated, or of any
adverse determination or development (including the institution of, or any
such determination or development in, any proceeding before any
governmental Person) regarding the Obligor's ownership of any Intellectual
Property material to its business, its right to apply for registration or
register the same (as the case may be), or its right to keep, use and
maintain the same.
(d) The Obligor will take all necessary steps that are consistent
with good business practices in any proceeding before any appropriate
governmental Person to maintain and pursue each application relating to any
Intellectual Property (and to obtain the relevant registrations) and to
maintain each registration material to the conduct of its business,
including but not limited to payment of maintenance fees, filing of
applications for renewal, affidavits of use, affidavits of incontestability
and opposition, interference and cancellation proceedings.
(e) In the event that any Intellectual Property material to the
conduct of its business is infringed, misappropriated or diluted by, or
comes in conflict with, a third party, the Obligor shall notify the
Collateral Agent within ten days after it learns of such event and shall,
if consistent with good business practice, promptly ▇▇▇ for infringement,
misappropriation or dilution, seek temporary restraints and preliminary
injunctive relief to the extent practicable, seek to recover any and all
damages for such infringement, misappropriation or dilution and take such
other actions as are appropriate under the circumstances to protect such
Collateral.
(f) The Obligor shall prosecute diligently any application for
any Intellectual Property pending as of the date of this Agreement or
thereafter made until the
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termination of this Agreement, make application on uncopyrighted but
copyrightable material, unpatented but patentable inventions and
unregistered but registerable Trademarks and preserve and maintain all
rights in applications for any Intellectual Property; provided, however,
that the Obligor shall have no obligation to make any such application if
making such application would be unnecessary or imprudent in the good faith
business judgment of the Obligor. Any expenses incurred in connection with
such an application shall be borne by the Obligor.
(g) The Collateral Agent shall have the right but shall in no way
be obligated to bring suit in its own name to enforce the Patents and
Trademarks or any other Intellectual Property and any license under such
Intellectual Property, in which event the Obligor shall, at the request of
the Collateral Agent, do any and all lawful acts and execute and deliver
any and all proper documents required by the Collateral Agent in aid of
such enforcement action.
Article VI. Remedies.
6.01 Events of Default, Etc. If any Event of Default shall have
occurred and be continuing:
(a) the Collateral Agent in its discretion may require the
Obligor to, and the Obligor shall, assemble the Collateral owned by it at
such place or places, reasonably convenient to both the Collateral Agent
and the Obligor, designated in the Collateral Agent's request;
(b) the Collateral Agent in its discretion may make any
reasonable compromise or settlement it deems desirable with respect to any
of the Collateral and may extend the time of payment, arrange for payment
in installments, or otherwise modify the terms of, all or any part of the
Collateral;
(c) the Collateral Agent in its discretion may, in its name or in
the name of the Obligor or otherwise, demand, ▇▇▇ for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for all or any part of the Collateral, but shall be under no
obligation to do so;
(d) the Collateral Agent in its discretion may, upon five
business days' prior written notice to the Obligor of the time and place,
with respect to all or any part of the Collateral which shall then be or
shall thereafter come into the possession, custody or control of the
Collateral Agent, or its agents, sell, lease or otherwise dispose of all or
any part of such Collateral, at such place or places as the Collateral
Agent deems best, for cash, for credit or for future delivery (without
thereby assuming any credit risk) and at public or private sale, without
demand of performance or notice of intention to effect any such disposition
or of time or place of any such sale (except such notice as is required
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above or by applicable statute and cannot be waived), and the Collateral
Agent or any other Person may be the purchaser, lessee or recipient of any
or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Obligor, any
such demand, notice and right or equity being hereby expressly waived and
released. In the event of any sale, assignment, license or other
disposition of any of the Trademark Collateral, the goodwill connected with
and symbolized by, and (in the case of pending applications for which no
statements of use have been filed) the goodwill connected with the
business, or portion thereof, pertaining to the Trademark Collateral
subject to such disposition shall be included, and the Obligor shall supply
to the Collateral Agent or its designee, for inclusion in such sale,
assignment, license or other disposition, all Intellectual Property
relating to such Trademark Collateral. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which
the sale may be so adjourned; and
(e) the Collateral Agent shall have, and in its discretion may
exercise, all of the rights, remedies, powers and privileges with respect
to the Collateral of a secured party under the Uniform Commercial Code
(whether or not the Uniform Commercial Code is in effect in the
jurisdiction where such rights, remedies, powers and privileges are
asserted) and such additional rights, remedies, powers and privileges to
which a secured party is entitled under the laws in effect in any
jurisdiction where any rights, remedies, powers and privileges in respect
of this Agreement or the Collateral may be asserted, including the right,
to the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if the
Collateral Agent were the sole and absolute owner of the Collateral (and
the Obligor agrees to take all such action as may be appropriate to give
effect to such right).
The proceeds of, and other realization upon, the Collateral by
virtue of the exercise of remedies under this Section 6.01 and of the
exercise of the license granted to the Collateral Agent in Section 2.03
shall be applied in accordance with Section 6.04.
6.02 Deficiency. If the proceeds of, or other realization upon, the
Collateral by virtue of the exercise of remedies under Section 6.01 and of
the exercise of the license granted to the Collateral Agent in Section 2.03
are insufficient to cover the costs and expenses (including attorneys fees)
of such exercise and the payment in full of the other Secured Obligations,
the Obligor shall remain liable for any deficiency.
6.03 Private Sale. (a) The Collateral Agent shall incur no liability
as a result of the sale, lease or other disposition of all or any part of
the Collateral at any private sale
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pursuant to Section 6.01 conducted in a commercially reasonable manner. The
Obligor hereby waives any claims against the Collateral Agent arising by
reason of the fact that the price at which the Collateral may have been
sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Collateral Agent accepts the first offer
received and does not offer the Collateral to more than one offeree.
(b) The Obligor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view to distribution or resale. The
Obligor acknowledges that any such private sales may be at prices and on
terms less favorable to the Collateral Agent than those obtainable through
a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that the Collateral Agent
shall have no obligation to engage in public sales and no obligation to
delay the sale of any Collateral for the period of time necessary to permit
the respective Issuer of such Collateral to register it for public sale.
6.04 Application of Proceeds. Except as otherwise expressly provided
in this Agreement and except as provided below in this Section 6.04, the
proceeds of, or other realization upon, all or any part of the Collateral
by virtue of the exercise of remedies under Section 6.01 or of the exercise
of the license granted in Section 2.03, and any other cash at the time held
by the Collateral Agent under Article III or this Article VI, shall be
applied by the Collateral Agent:
First, to the payment of the costs and expenses of such exercise of
remedies, including reasonable out-of-pocket costs and expenses of the
Collateral Agent, the fees and expenses of its agents and counsel and all
other expenses incurred and advances made by the Collateral Agent in that
connection;
Second, to the Collateral Agent for amounts due and unpaid on the
Notes for principal and interest and all other amounts due and unpaid under
the Loan Documents; and
Third, to the Obligor or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
As used in this Article VI, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in
kind of, Collateral, including any property received under any bankruptcy,
reorganization or other similar proceeding
- 18 -
as to the Obligor or any issuer of, or account debtor or other obligor on,
any of the Collateral.
Article VII. Miscellaneous.
7.01 Waiver. No failure on the part of the Collateral Agent or any
Holder to exercise and no delay in exercising, and no course of dealing
with respect to, any right, remedy, power or privilege under this Agreement
shall operate as a waiver of such right, remedy, power or privilege, nor
shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement preclude any other or further exercise of
any such right, remedy, power or privilege or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
7.02 Notices. All notices and, consents, requests, instructions,
approvals, financial statements, reports and other communications to be
given under this Agreement shall be deemed given, if in writing and
delivered personally, by telecopy or sent by registered mail, postage
prepaid to:
if to the Obligor: Bio-Plexus, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Collateral Agent: Appaloosa Management, L.P.
▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
7.03 Expenses, Etc. The Obligor agrees to pay or to reimburse the
Collateral Agent for all costs and expenses (including reasonable
attorney's fees and expenses) that may be incurred by the Collateral Agent
in any effort to enforce any of the provisions of Article VI, or any of the
obligations of the Obligor in respect of the Collateral or in connection
with (a) the preservation of the Lien of, or the rights of the Collateral
Agent under this Agreement or (b) any actual or attempted sale, lease,
disposition, exchange, collection, compromise, settlement or other
realization in respect of, or care of, the Collateral, including all such
costs and expenses (and reasonable attorney's fees and expenses) incurred
in any bankruptcy, reorganization, workout or other similar proceeding.
7.04 Amendments. This Agreement may be amended as to the Collateral
Agent and its respective successors and assigns, and the Obligor may take
any action herein prohibited, or omit to perform any act required to be
performed by it, if the Obligor shall obtain the written consent of the
Collateral Agent. This Agreement may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party
or parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
7.05 Successors and Assigns. All covenants and agreements contained
herein shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
7.06 Survival. All covenants, agreements, representations and
warranties contained herein and in any certificates delivered pursuant
hereto in connection with the transactions contemplated hereby shall
survive the Closing and the delivery of the Loan Documents, regardless of
any investigation made by or on behalf of any party.
7.07 Agreements Superseded. Except with respect to express references
to other Loan Documents, this Agreement supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the
subject matter of this Agreement.
7.08 Severability. If any term, provision, covenant or restriction of
this Agreement or any exhibit hereto is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement and such
exhibits shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining
terms, provisions,
- 20 -
covenants and restrictions without including any of such which may be
hereafter declared invalid, void or unenforceable.
7.09 Captions. The table of contents and captions and section headings
appearing in this Agreement are included solely for convenience of
reference and are not intended to affect the interpretation of any
provision of this Agreement.
7.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each party and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW
OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A
JURISDICTION OTHER THAN SUCH STATE.
7.12 Submission to Jurisdiction. If any action, proceeding or
litigation shall be brought by the Collateral Agent in order to enforce any
right or remedy under this Agreement, the Obligor hereby consents and will
submit, and will cause each of its Subsidiaries to submit, to the
jurisdiction of any state or federal court of competent jurisdiction
sitting within the area comprising the Southern District of New York on the
date of this Agreement. The Obligor hereby irrevocably waives any
objection, including, but not limited to, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action, proceeding or litigation
in such jurisdiction.
7.13. Service of Process. Nothing herein shall affect the right of the
Collateral Agent to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Obligor in
any other jurisdiction.
7.14. WAIVER OF JURY TRIAL. THE OBLIGOR HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
BIO-PLEXUS, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
and Vice President of
Finance
APPALOOSA MANAGEMENT, L.P.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
- 22 -