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EXHIBIT 10.33
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PLEDGE AGREEMENT
Intracel Corporation and PerImmune Holdings, Inc.
as Pledgors
to
Holders of the 12% Guaranteed
Senior Secured Primary Promissory Notes
due August 25, 2003 of
Intracel Corporation
and
Holders of the 12%
Guaranteed Senior Secured
Escrow Promissory Notes
due August 25, 2003 of
Intracel Corporation
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Dated as of August 25, 1998
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PLEDGE AGREEMENT
PLEDGE AGREEMENT (the "Pledge Agreement"), dated August 25, 1998,
between Intracel Corporation and PerImmune Holdings, Inc., a wholly-owned
subsidiary of Intracel Corporation (together with their successors and assigns,
the "Pledgors") and Northstar High Total Return Fund, Northstar High Total
Return Fund II, Northstar High Yield Fund, and Northstar Strategic Income Fund
(collectively, the "Holders"), the holders of 12% Guaranteed Senior Secured
Primary Promissory Notes of the Company and the holders of 12% Guaranteed Senior
Secured Escrow Promissory Notes of the Company (collectively, the "Notes")
issued pursuant to that certain Securities Purchase Agreement, dated as of the
date hereof, by and among the Company and the other parties thereto (the
"Purchase Agreement"). As used herein, all capitalized terms not otherwise
defined herein shall have the meanings set forth in the Purchase Agreement.
W I T N E S S E T H:
WHEREAS, the Pledgors have entered into the Securities Purchase
Agreement, the Notes and the Ancillary Agreements as of the date hereof,
pursuant to which the Pledgors are subject to the Obligations (as defined
herein);
WHEREAS, in order to secure the performance of such Obligations of
the Company and its Subsidiaries under the Securities Purchase Agreement, the
Notes and the Ancillary Agreements (the "Obligations"), the parties hereto
desire to set forth their mutual understanding and certain agreement regarding
the terms and conditions of the pledge of the Pledged Collateral (as defined
below) made by the Pledgors to the Holders of the Notes (the "Holders").
NOW, THEREFORE, in consideration of the premises and other benefits
to the Pledgors, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. Pledge. As collateral security for the payment and
performance in full of the Obligations, the Pledgors hereby pledge, assign,
transfer and set over unto the Holders and hereby grant upon the Holders and
unto their respective successors and assigns, a continuing security interest
(the "Security Interests") in all of the right, title and interest of the
Pledgors in, to and under any and all of the following described property,
rights and interests (collectively, the "Pledged Collateral"):
(a) all issued and outstanding shares of Capital Stock now
or hereafter owned by the Pledgors of (i) the companies identified on Schedule A
(the "Identified Companies"), including, without limitation, the shares of
Capital Stock set forth on Schedule A, and (ii) any New Subsidiary of the
Pledgors or any other company (the "Additional Companies");
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(b) all securities of the Identified Companies and the
Additional Companies now or hereafter owned or acquired by the Pledgors; any
present or future options, warrants or other rights to subscribe for or purchase
any shares of Capital Stock of any of the Identified Companies or the Additional
Companies now or hereafter owned by the Pledgors; and any notes bonds,
debentures or other evidences of Debt now or hereafter owned by the Pledgors
that (i) are at any time convertible into Capital Stock of any of the Identified
Companies or the Additional Companies, or (ii) have or at any time could by
their terms have voting rights with respect to any matter affecting any of the
Identifying Companies or the Additional Companies; and all securities,
certificates and instruments representing or evidencing ownership or any of the
property described in subsections 1(a) and (b) hereof (the property described in
subsections 1(a) and (b) being referred to herein collectively as the "Pledged
Securities");
(c) all proceeds and products of the Pledged Securities,
including, without limitation, dividends and distributions payable in cash,
Assets or securities, now or hereafter at any time or from time to time received
or receivable or otherwise distributed or distributable in respect of or in
exchange for any or all of the Pledged Securities; and
(d) any additional property of the kind or type described
in this Section 1 required to be supplied under the terms of this Pledge
Agreement;
TO HAVE AND TO HOLD the Pledged Collateral, together with all rights,
titles, interests, powers, privileges and preferences pertaining or incidental
thereto, unto the Holders and unto their respective successors and assigns;
subject, however, to the terms, covenants and conditions hereinafter set forth.
Section 2. Representations, Warranties and Covenants of Pledgors. The
Pledgors hereby represent and warrant, covenant and agree that:
(a) As of the date hereof, and except for the Security
Interests granted hereunder to the Holders, the Pledgors are the legal and
equitable owners of the Pledged Collateral, hold the Pledged Collateral free and
clear of all Liens, charges, claims, encumbrances and Security Interests of
every kind and nature. Until the Obligations under this Agreement, the
Securities Purchase Agreement, the Notes and any Ancillary Agreement shall have
been satisfied in full and this Agreement shall have been terminated, the
Pledgors will not, without the prior written consent of the Required Holders,
make any other pledge, assignment, sale, mortgage, hypothecation or transfer of,
or create, or permit to exist any Lien, Security Interest or other charge or
encumbrance on, the Pledged Collateral.
(b) The Pledgors have the valid right and legal authority
to pledge or cause to be pledged the Pledged Collateral in the manner hereby
done or contemplated and will defend its title thereto against the claims of all
persons whomsoever and shall maintain and preserve the Security Interests
granted hereunder with respect to the Pledged Collateral as long as this Pledge
Agreement shall remain in full force and effect.
(c) Neither the execution and delivery of this Pledge
Agreement by Pledgors, nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof violate the terms of any
agreement, indenture, mortgage, deed of trust, equipment lease,
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instrument or other document to which Pledgors are parties, or conflict with any
Law, applicable to the Pledgors of any court or any government, regulatory body
or administrative agency or other governmental body having jurisdiction over
Pledgors or their Assets, to the extent that such violation or conflict would
have a material adverse effect on the financial condition, business, Assets,
liabilities or prospects of Pledgors or on the value of the Pledged Collateral
or on the Security Interests.
(d) The Pledged Collateral as described in Schedule A
attached hereto includes all of the issued and outstanding shares of Capital
Stock of the Identified Companies and Additional Companies beneficially owned by
the Pledgors on the date hereof; and all outstanding options, warrants or other
rights to subscribe for or purchase shares of the Capital Stock of the
Identified Companies and the Additional Companies beneficially owned by Pledgors
on the date hereof; and all notes, bonds, debentures or other evidences of Debt
beneficially owned by the Pledgors on the date hereof that (i) are at any time
convertible into Capital Stock of the Identified Companies or the Additional
Companies or (ii) have or at any time could by their terms have voting rights
with respect to any matters affecting the Identified Companies or the Additional
Companies.
(e) No consent or approval that has not been obtained prior
to the date hereof of any governmental body, regulatory authority or securities
exchange was or is necessary as a condition to the validity of the pledge
hereunder of the Pledged Collateral, and such pledge is effective to vest in the
Holders the rights of the Holders in the Pledged Collateral as set forth herein.
(f) If, while this Pledge Agreement is in effect, any
securities of the type described in Section 1 are hereafter acquired by
Pledgors, or any stock dividend, stock split, reclassification, readjustment,
reorganization, merger, consolidation, exchange offer, tender offer or other
change in the capital structure, including the creation of any subscription or
other rights or other Pledged Collateral, is declared or made, or proposed to be
declared or made, by the Identified Companies or any Additional Companies, all
substituted and additional securities or interests, if evidenced by
certificates, shall be endorsed in blank by Pledgors promptly upon receipt
thereof and, if not so evidenced, shall be otherwise appropriately transferred
to the Holders in negotiable form, and all certificates or instruments
evidencing such securities shall be delivered to the Holders to be held under
the terms of this Pledge Agreement in the same manner as, and as part of, the
Pledged Collateral. The Pledgors shall use best efforts to ensure that all
Pledged Securities shall be evidenced by one or more certificates. Any
securities that may be issued upon exercise of any subscription or other rights
relating to the Pledged Securities shall be endorsed in blank and delivered to
the Holders.
(g) Pledgors shall pay and discharge all taxes, assessments
and governmental charges or levies against any Pledged Collateral prior to
delinquency thereof and shall keep all Pledged Collateral free of all unpaid
charges whatsoever, unless such charges are being contested in good faith and
appropriate reserves have been set aside in accordance with GAAP.
Section 3. Administration of the Pledged Collateral. The Holders
shall administer the Pledged Collateral in accordance with the provisions
hereof.
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Section 4. Release and Substitution of Pledged Collateral. The
Pledged Collateral shall not be released from the Security Interests created
hereunder and no Assets shall be substituted for any of the Pledged Collateral,
except in accordance with the provisions of Article V of the Purchase Agreement,
which provisions are hereby incorporated herein by reference.
Section 5. Voting Rights, Dividends, Etc.
(a) So long as no Default or Event of Default or event that
with the lapse of time or the giving of notice or both, would constitute an
Event of Default (as defined below) shall have occurred and be continuing or
would result therefrom:
(i) except as otherwise provided in this Pledge
Agreement, Pledgors shall be entitled to exercise any and
all voting or consensual rights and powers, including
subscription rights, accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not
inconsistent with, or otherwise impair any rights of the
Holders arising under, the terms of this Pledge Agreement
or any agreement giving rise to any of the Obligations;
(ii) Pledgors shall be entitled to retain and use
any and all dividends or distributions which are permitted
by the Purchase Agreement and paid on the Pledged
Collateral in cash or property (other than securities);
(iii) the Required Holders shall execute and
deliver to Pledgors or cause to be executed and delivered
to Pledgors, all such proxies, powers of attorney, dividend
orders and other instruments as Pledgors may reasonably
request for the purpose of enabling it to exercise the
voting or consensual rights and powers which Pledgors are
entitled to exercise pursuant to the foregoing subparagraph
(i) or to receive the dividends or cash or other Assets
which Pledgors are authorized to retain pursuant to the
foregoing subparagraph (ii).
(b) Upon the occurrence and during the continuance of a
Default, an Event of Default, or event that with the lapse of time or the giving
of notice or both, would constitute an Event of Default, all rights of Pledgors
to exercise the voting or consensual rights and powers which the Pledgors would
otherwise be entitled to exercise pursuant to subparagraph (i) of Section 5(a)
hereof and to receive the dividends and distributions which Pledgors would
otherwise be authorized to receive and retain pursuant to subparagraph (ii) of
Section 5(a) hereof shall cease, and all such rights shall thereupon become
vested in the Holders, which shall then have the sole and exclusive right and
authority to exercise all such voting or consensual rights and powers and to
receive and retain all such dividends and distributions. Any and all money and
other Assets paid over to or received by the Holders pursuant to the provisions
of this Section 5(b) shall be retained by the Holders in the account established
pursuant to that certain Interest Escrow Security Agreement, dated as of the
date hereof, by and among the Company and the other parties thereto (the
"Collateral Account") as additional Pledged Collateral hereunder and shall be
administered and applied in accordance with the provisions of the Notes.
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Section 6. Default; Remedies.
(a) Defined. For purposes of this Pledge Agreement, the
terms "Default" and "Event of Default" shall have the respective meanings
provided in the Notes and shall include any event that with the lapse of time or
the giving of notice or both, would constitute an Event of Default.
(b) Exercise of Remedies Under the Security Agreement. If a
Default or Event of Default or event that with the lapse of time or the giving
of notice or both, shall constitute an Event of Default in the payment of any
Obligations shall have occurred and be continuing or would result therefrom the
Holders may commence the taking of such actions (or refrain from taking actions)
toward collection or enforcement of this Pledge Agreement and the Pledged
Collateral (or any portion thereof), including, without limitation, action
toward foreclosure upon any Pledged Collateral, as it deems appropriate in their
sole discretion. If any Default or Event of Default or event that with the lapse
of time or the giving of notice or both, shall constitute an Event of Default
that was the basis for the commencement of such action shall have been cured or
waived, and, in the case where there has been an acceleration, rescission of
such acceleration shall have occurred, in each case in accordance with the terms
of the Securities Purchase Agreement, the Notes, or any of the Ancillary
Agreements, any direction by the Holders to take any action in connection with
the aforementioned notice shall be deemed rescinded upon notification by the
Required Holders of such cure, waiver or rescission of acceleration, as the case
may be.
(c) Remedies Generally. If a Default or Event of Default or
event that with the lapse of time or the giving of notice or both, in the
payment of any Obligation shall constitute an Event of Default shall have
occurred and be continuing or would result therefrom, the Required Holders or
their agents or attorneys may retain the Pledged Collateral or sell, assign,
transfer, or dispose of, endorse and deliver the whole or, from time to time,
any part of the Pledged Collateral at public or private sale, for cash, upon
credit or for other property, for immediate or future delivery, and for such
price or prices and on such other terms as are satisfactory to the Holders (in
their discretion) without liability for loss or damage. Pledgors agree that the
private sale or other private disposition of Pledged Collateral shall be deemed
commercially reasonable notwithstanding the possibility that a substantially
higher price might be realized if such sale or other disposition were public and
deferred until after registration under the Securities Act of 1933, as amended,
or after compliance with any other applicable securities laws. Upon consummation
of any such sale, the Holders shall have the right to assign, transfer, endorse
and deliver to the purchaser or purchasers thereof the Pledged Collateral so
sold. Each such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the Pledgors, and
Pledgors hereby waive (to the full extent permitted by Law) all rights of
redemption, stay or appraisal which Pledgors now have or may have at any time in
the future have under any Law. The Holders shall give Pledgors five days'
written notice (which Pledgors agree shall be deemed to be reasonable
notification within the meaning of Section 9-504(3) of the relevant Uniform
Commercial Code) of the their intention to make any such public or private sale.
Any such sale shall be held at such time or times and at such place or places as
the Holders may fix. At any such sale, the Pledged Collateral, or portion
thereof to be sold, may be sold as an entirety or in separate portions, as the
Required Holders may, in their discretion, determine. The Holders shall not be
obligated to make any sale of the Pledged
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Collateral if they shall determine not to do so, regardless of the fact that
notice of sale of the Pledged Collateral may have been given. The Holders 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 sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case sale of all or any part of
the Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Holders until the sale price is paid
by the purchaser or purchasers thereof, but the Holders shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Pledged Collateral so sold and, in case of any such failure, such
Pledged Collateral may be sold again upon like notice. As an alternative to
exercising the power of sale herein conferred upon it, the Holders may proceed
by suit or suits at Law or in equity to foreclose this Pledge Agreement and sell
the Pledged Collateral or any portion thereof pursuant to judgment or decree of
a court or courts having competent jurisdiction. If, under mandatory
requirements of Law, the Holders shall be required to make disposition of the
Pledged Collateral within a period of time that does not permit the giving of
notice to Pledgors as provided herein, the Holders need give Pledgors only such
notice of disposition as shall be reasonably practicable in view of such Law.
(d) Remedies; Obtaining the Collateral Upon Default. The
Pledgors agrees that, if a Default, Event of Default or any event that with the
lapse of time or the giving of notice, or both, shall constitute an Event of
Default, in the payment of any Obligations shall have occurred and be
continuing, or would result therefrom, then and in every such case, and in
addition to the rights and remedies available to a secured party under any
applicable provisions of the Uniform Commercial Code, or any other Law, the
Holders may:
(i) personally or by Holders or attorneys,
immediately take possession of the Pledged Collateral or
any part thereof from Pledgors or any other person who then
has possession of any part thereof, with or without notice
or process of Law, and for that purpose may enter upon a
Pledgors' premises where any of the Pledged Collateral is
located and remove the same and use in connection with such
removal any and all services, supplies, aids and other
facilities of Pledgors;
(ii) instruct the obligor or obligors on any
agreement, instrument or other obligation constituting
Pledged Collateral to make any payment or render any
performance required by the terms of such agreement,
instrument or obligation directly to the Holders or their
designee;
(iii) withdraw all monies, securities and
instruments held by the Holders in the Financial Accounts
(as that term is defined in the Security Agreement) or
otherwise for application to the Obligations;
(iv) sell or otherwise liquidate or direct the
Pledgors to sell or otherwise liquidate, any or all
investments made in whole or in part with the Pledged
Collateral or any part thereof, and take possession of the
proceeds of any such sale or liquidation; and
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(v) take possession of the Pledged Collateral or
any part thereof by directing Pledgors in writing to
deliver the same to the Holders at any place or places
designated by the Holders, in which event the Pledgors
shall at its own expense:
(A) forthwith cause the same to be
moved to the place or places so designated by the
Holders and there delivered to the Holders;
(B) store and keep any Pledged
Collateral so delivered to the Holders at such
place or places pending further action by the
Holders as provided in this Section 6(d); and
(C) while any such Pledged Collateral
shall be so stored and kept, provide such guard
and maintenance services as shall be necessary to
protect the same and to preserve and maintain
such Pledged Collateral in good condition;
it being understood that the Pledgors' obligation so to deliver the
Pledged Collateral is of the essence of this Pledge Agreement and
that, accordingly, upon application to a court of equity having
jurisdiction, the Holders shall be entitled to a decree requiring
specific performance by Pledgors of such obligation.
(e) Collateral Account. The Required Holders shall deposit
the proceeds of any Pledged Collateral obtained or disposed of pursuant to this
Section 6 in the Collateral Account (as defined in the Security Agreement).
(f) Preventing Impairment of the Pledged Collateral.
Regardless of whether or not there shall have occurred any Default or Event of
Default, the Holders may institute or maintain or cause in the name of Pledgors
or of the Holders, or both, to be instituted and maintained, such suits and
proceedings as the Holders may be advised by counsel shall be necessary or
expedient to prevent any impairment of the Security Interests in or perfection
of, the Pledged Collateral in contravention of the terms hereof or of the
Securities Purchase Agreement, the Notes or any of the Ancillary Agreements.
Section 7. Holders Appointed Attorney-in-Fact. Pledgors hereby
constitute and appoint the Holders their attorney-in-fact for the purpose of
carrying out the provisions, but subject to the terms and conditions, of this
Pledge Agreement and taking any action and executing any instrument, including,
without limitation, any financing statement or continuation statements, and
taking any other action to maintain validity, perfection and enforcement of the
Security Interests intended to be created hereunder, that the Holders may deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest.
Section 8. Purchase of Pledged Collateral by Holder. At any sale of
the Pledged Collateral, whether pursuant to power of sale or otherwise
hereunder, any Holders may, to the extent permitted by Law, bid for and
purchase, free from any right or redemption, stay or
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appraisal (all such rights being hereby waived and released by Pledgors to the
extent permitted by Law), the Pledged Collateral or any part thereof or any
interest therein and upon compliance with the terms of such sale may hold,
retain, exploit, resell or otherwise dispose of such Pledged Collateral without
further accountability to Pledgors for the proceeds of such sale. Pledgors will
execute and deliver, or cause to be executed and delivered, such instruments,
endorsements, assignments, waivers, certificates and other documents and take
such further action as the Holders shall reasonably request in connection with
any such sale.
Section 9. Disposition of Proceeds. The proceeds of any sale or other
disposition of the whole or any part of the Pledged Collateral by the Holders,
together with any other monies held by the Holders pursuant to this Pledge
Agreement, shall be applied by the Holders in accordance with the provisions of
the Notes.
Section 10. Waiver of Claims. Except as otherwise provided in the
Securities Purchase Agreement or this Pledge Agreement, THE PLEDGORS HEREBY
WAIVE, TO THE EXTENT PERMITTED BY LAW, NOTICE OF JUDICIAL HEARING IN CONNECTION
WITH THE HOLDERS' TAKING POSSESSION OR THE HOLDERS' DISPOSITION OF ANY OF THE
PLEDGED COLLATERAL BY THE HOLDERS IN ACCORDANCE WITH THE TERMS HEREOF,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICES AND HEARINGS FROM ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE PLEDGORS WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and, to the fullest extent permitted by applicable Law, Pledgors
hereby further waive:
(a) all damages occasioned by such taking of possession
except any damages that are the direct result of the Holders' gross negligence,
bad faith or willful misconduct; and
(b) all other requirements as to the time, place and terms
of sale or other requirements with respect to the enforcement of the Holders'
rights and powers hereunder.
Any sale of, or the exercise of any options to purchase, or any other
realization upon, any Pledged Collateral shall operate to divest all right,
title, interest, claim and demand, at Law or in equity, of the Pledgors therein
and thereto, and shall be perpetual bar both at Law and in equity against the
Pledgors and against any and all Persons claiming or attempting to claim the
Pledged Collateral so sold, optioned or realized upon, or any part thereof,
through and under Pledgors.
Section 11. Remedies Cumulative; No Waiver. Each right, power and
remedy of the Holders provided for herein, in the Securities Purchase Agreement,
the Notes and any other Ancillary Agreement pursuant to which a Lien is created
in favor of any Holder, or now or hereafter existing at Law, shall be cumulative
and concurrent and shall be in addition to every other right, power or remedy of
any Holder provided for herein, in the Securities Purchase Agreement, the Notes
and any other Ancillary Agreement pursuant to which a Lien is created in favor
of any Holder or now or hereafter existing at Law. No failure on the part of any
Holder to exercise, and no delay in exercising, any right, power or remedy
hereunder, or under the Securities Purchase Agreement, the Notes and any other
Ancillary Agreement pursuant to
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which a Lien is created in favor of any Holder or now or hereafter existing at
Law, shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. No notice to or
demand on Pledgors hereunder shall, of itself, entitle Pledgors to any other or
further notice or demand in the same, similar or other circumstances.
Section 12. Additional Collateral. Without notice or consent of
Pledgors and without impairment of the Security Interests and rights created by
this Pledge Agreement, the Holders may accept from any Person additional
Collateral or other security for the Obligations. Neither the creation of the
Security Interests created hereunder nor the acceptance of any such additional
Collateral or Security shall prevent the Holders from resorting to such
additional Collateral or Security or to the Pledged Collateral, in any order,
without affecting the Holders' rights hereunder.
Section 13. Further Assurances. The Pledgors agree (i) that they
shall, at their own expense, (and will cause their Subsidiaries and New
Subsidiaries to), file or record such notices, financing statements,
continuation statements or other documents as may be necessary to perfect the
Security Interests, and as the Holders may reasonably request, such instruments
to be in form and substance satisfactory to the Holders and (ii) Pledgors shall,
at their own expense, (and will cause their Subsidiaries and New Subsidiaries
to), do such further acts and things and execute and deliver to the Holders such
additional conveyances, assignments, agreements and instruments as the Holders
may at any time reasonably request in connection with the administration and
enforcement of this Pledge Agreement or relative to the Pledged Collateral or
any part thereof or in order to assure and confirm unto the Holders the Holders'
rights, powers and remedies hereunder.
Section 14. Pledgors' Obligations Absolute. The liability of the
Pledgors under this Pledge Agreement shall remain in full force and effect
without regard to, and shall not be released, suspended, discharged, terminated
or otherwise affected by (a) any change in the time, place or manner of payment
of all or any of the Obligations, or in any other term of the Securities
Purchase Agreement, any Ancillary Agreement or the Notes, any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or inaction under
or in respect of the Securities Purchase Agreement, the Notes or any Ancillary
Agreement or any assignment or transfer thereof; (b) any lack of validity or
enforceability, in whole or in part, of the Securities Purchase Agreement, any
Ancillary Agreement or the Notes; (c) any furnishing of any additional security
for the Obligations or any acceptance thereof or any release or non-perfection
of any security interests in the property other than the Pledged Collateral; (d)
any limitation on any party's liability or Obligations under the Securities
Purchase Agreement, any Ancillary Agreement or the Notes; (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation or
other like proceeding relating to the Pledgors, or any action taken with respect
to this Pledge Agreement by any trustee or receiver, or by any court, in any
such proceeding, whether or not the Pledgors shall have notice or knowledge of
any of the foregoing; (f) any exchange, release or amendment or waiver of or
consent to departure from the Securities Purchase Agreement, the Notes and any
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Ancillary Agreement, or any other agreement pursuant to which a Lien is created
in favor of the Holders for the benefit of any Holder, pursuant to which a
person other than the Pledgors have been granted a Security Interest; or (g) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, the Pledgors.
Section 15. Waiver. To the extent permitted by Law, Pledgors hereby
waive promptness, diligence, notice of acceptance and any other notice with
respect to any of the Obligations and this Pledge Agreement and any requirement
that the Holders protect, secure, perfect or insure any security interest or any
property subject thereto or exhaust any right or take any action against the
Pledgors or any other Person; provided, however, that the Holders shall in any
event take such care in the handling of any Pledged Securities in their
possession as they take with respect to the property of a similar nature in its
possession.
Section 16. Termination. Upon payment in full and satisfaction of all
of the Obligations under the Securities Purchase Agreement, the Notes, and any
Ancillary Agreements, this Pledge Agreement shall terminate and the Holders
shall reassign and redeliver to Pledgors all of the Pledged Collateral hereunder
that has not been sold, disposed of, retained or applied by the Holders in
accordance with the terms hereof and the Securities Purchase Agreement, the
Notes and any Ancillary Agreements. Such reassignment and redelivery shall be
without warranty by or recourse to the Holders, and shall be at the expense of
the Pledgors. At such time, this Pledge Agreement shall no longer constitute a
Lien upon or grant of any Security Interests in any of the Pledged Collateral,
and the Holders shall, at the Pledgors' expense, deliver to the Pledgors written
acknowledgement thereof and of cancellation of this Pledge Agreement in a form
as reasonably requested by the Pledgors and adequate for proper filing or
recording in such offices and such jurisdictions as the Pledgors reasonably deem
necessary to release the Security Interests granted hereby. This Pledge
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned upon the insolvency, bankruptcy or reorganization of the
Pledgors, all as though such payment had not been made.
Section 17. Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
To the Pledgors:
Intracel Corporation
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm Number: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Holders:
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm Number: (▇▇▇) ▇▇▇-▇▇▇▇
Either party hereto may by notice to the other party designate such
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to either party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; and three
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee). The Pledgors will give notice to the
Holders at the addresses set forth above or, if the Company has been notified of
a change of address of Holders, to such address as set forth in the Company's
records.
Section 18. Binding Agreement; Assignment. This Pledge Agreement
shall be binding upon and inure to the benefit of the Pledgors, the Holders and
their respective successors and permitted assigns. Neither this Pledge Agreement
nor any interest herein or in the Pledged Collateral, or any part thereof, may
be assigned by the Pledgors; provided, however, that this Pledge Agreement may
be assigned by Pledgors and shall be deemed to be automatically assigned by the
Pledgors to any person who succeeds to the Pledgors, but nothing shall relieve
Pledgors of their Obligations hereunder. This Pledge Agreement shall be deemed
to be automatically assigned by the Holders to any person who succeeds to or
replaces any Holder in accordance with the terms hereof, and its assignee shall
have all rights and powers of, and act as, the Holders hereunder.
Section 19. Governing Law. THE PARTIES HERETO EXPRESSLY ACKNOWLEDGE
AND AGREE THAT, IN ACCORDANCE WITH THE PROVISIONS OF NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1401 GOVERNING AGREEMENTS RELATING TO ANY OBLIGATION
ARISING OUT OF A TRANSACTION COVERING IN THE AGGREGATE NOT LESS THAN $250,000,
THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR THE
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN NEW YORK. TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT, AND IRREVOCABLY AGREE
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THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. THE PARTIES HERETO IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY
AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 20. Amendments. This Pledge Agreement may not be amended or
modified except by a written agreement signed by the Company and the Holders.
Section 21. Severability. In the event that any provision contained
in this Pledge Agreement shall for any reason be held to be illegal or invalid
under the Laws of any jurisdiction, such illegality or invalidity shall in no
way impair the effectiveness of any other provision hereof, or of such provision
under the Laws of any other jurisdiction; provided, that in the construction and
enforcement of such provision under the Laws of the jurisdiction in which such
holding of illegality or invalidity exists, and to the extent only of such
illegality or invalidity, this Pledge Agreement shall be construed and enforced
as though such illegal or invalid provision had not been contained herein.
Section 22. Headings. Section headings used herein are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Pledge Agreement.
Section 23. Counterparts. This Pledge Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, and all of which shall together constitute but one and the same
instrument. A complete set of counterparts shall be lodged with the Holders.
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IN WITNESS WHEREOF, the Pledgors and the Holders have caused this
Pledge Agreement to be executed and delivered by their respective officers
thereunto duly authorized as of the day and year first written above.
INTRACEL CORPORATION
as Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
PERIMMUNE HOLDINGS, INC.
as Pledgor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NORTHSTAR HIGH TOTAL RETURN FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORTHSTAR HIGH TOTAL RETURN
FUND II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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NORTHSTAR HIGH YIELD FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORTHSTAR STRATEGIC INCOME FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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