Pledge Agreement (Deposit Account) Dated December 14, 2007
EXHIBIT
10.25
Pledge Agreement
(Deposit Account)
Dated
December 14, 2007
This
Pledge Agreement (“this Agreement”) has been executed by Advanced Biotherapy,
Inc., a
corporation organized under the law of the State of Delaware, as
debtor
(“we,”
“us,”
“our”
or
“Debtor”)
in
favor of The
Northern Trust Company (“you,”
“your”
or
"Secured
Party").
For
good and valuable consideration, the receipt and adequacy of which are
acknowledged Debtor agrees as follows:
1. PLEDGE.
Debtor
grants to Secured Party a security interest in, and pledges to Secured Party,
all of Debtor’s right, title, and interest in and to certificate of deposit
account number 3800469685 and any replacement or successor account
(collectively, the "Account")
in
Debtor’s name, as well as each renewal, replacement and substitution of,
interest credited to, deposits into, all sums due or to become due on, and
proceeds of, the Account (the Account and such other property and rights,
the
“Collateral”).
Unless an “Event of Default” (as defined below) has occurred and is continuing,
upon our request you shall wire-transfer funds out of the Account, or transfer
funds to another of our accounts with you, if and only if after any such
transfer the collected balance in the Account at all times exceeds the sum
of
the outstanding face amount of the “Letter of Credit” (as defined below) plus
any unpaid draws under the Letter of Credit. We agree that in no case whatsoever
will we write or allow to be presented checks or other drafts against the
Account, or effect withdrawals by any means other than transfers by you at
our
request as specified in the just-previous sentence.
2. LIABILITIES
SECURED.
For
purposes hereof, “Letter of Credit” means your letter of credit no.
SLC302627,
as and
if amended, restated, renewed, extended or replaced from time to time,
This
Agreement secures payment of any and all liabilities of Debtor or Organic
Farm
Marketing, LLC to you under or in connection with: (i) this Agreement; and
(ii)
the Letter of Credit,
including our reimbursement obligations for draws thereunder, whether under
any
Application and Agreement for Letter of Credit or otherwise
(such
liabilities referenced in this sentence, the "Liabilities").
3. EVENTS
OF DEFAULT. The
occurrence of each of the following shall be an “Event
of Default”:
(a) a
draw occurs under the Letter of Credit; (b) a default occurs in the payment
or
performance of the Liabilities or any agreement evidencing or relating to
the
Liabilities, including any Application and Agreement for Letter of Credit;
(c) a
default, event of default, or other event that requires the prepayment of
borrowed money or permits the acceleration of the maturity thereof, under
the
terms of any evidence of indebtedness or other agreement issued or assumed
or
entered into by us; (d) any representation, warranty, financial statement,
or
other writing furnished by or on behalf of us to you is false or misleading
in
any material respect on the date as of which the facts therein set forth
are
stated or certified; or (e) a bankruptcy or insolvency proceeding is filed
by or
against us.
4. REMEDIES.
If an
Event of Default referenced in (e) of the Section entitled “EVENTS OF DEFAULT”
occurs, the Liabilities shall be deemed automatically due and payable without
action or notice of any kind. If any Event of Default occurs and is continuing:
(w) you may apply or set off the Collateral against the Liabilities without
further notice to or consent of us; (x) you may declare the Liabilities
immediately due and payable without additional notice of any kind; (y) you
may
exercise any other rights available to you under the Uniform Commercial Code
of
Illinois, as amended from time to time, or otherwise at law or in equity;
and
(z) you may deposit the Collateral into a special bank account (together
with
balances therein and proceeds thereof, the “Collateral
Account”)
with
you over which you alone have legal control and power of withdrawal. The
maintenance of any Collateral Account shall be solely for your convenience
and
we shall not have any right, title or interest in any Collateral Account
At such
time as all Liabilities have been paid and fulfilled in full, you will pay
over
to us any excess
1
of 3
amounts
in the Collateral Account. If notice of sale or disposition of Collateral
is
required by law, at least ten days’ advance notice shall be deemed commercially
reasonable for all purposes. Any and all payments upon the Liabilities by
us or
any other person, and the proceeds of any and all security therefor may be
applied by you to the Liabilities in such order as you determine. You have
no
obligation to marshal assets.
5. WAIVER
OF DEFENSES. With
respect to our obligations hereunder or in connection herewith, we waive
any
defense or counterclaim that is or may be available to a guarantor or surety
at
law or in equity. We also waive presentment, protest, demand, notice of dishonor
or default, notice of acceptance of this Agreement, notice of any extensions
granted or other action taken in reliance hereon, and all demands and notices
of
any kind in connection with this Agreement or the Liabilities.
6. LENDER
RIGHTS CUMULATIVE.
Your
rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law or under any other document now or hereafter
pertaining to the Liabilities. You may, by written notice to us, at any time
and
from time to time, waive our noncompliance with this Agreement, subject to
such
conditions as shall be specified therein. No such waiver shall extend to
or
impair any subsequent or other noncompliance. No failure to exercise, and
no
delay in exercising, on your part of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
7. ATTORNEYS
FEES, ETC.
If we
fail to comply with this Agreement or any other agreement pertaining to the
Liabilities, we agree to pay or reimburse you for all costs and expenses,
including attorneys’ fees and legal costs and expenses (whether in or out of
court, in original or appellate proceedings or in bankruptcy) incurred or
paid
by you in enforcing or preserving your rights hereunder and thereunder. We
also
agree to indemnify, hold harmless and reimburse you for, from and against
any
and all claims, losses, costs and expenses, including attorneys’ fees and legal
costs and expenses (whether in or out of court, in original or appellate
proceedings or in bankruptcy) incurred or paid by you as a result of your
accepting and complying with this Agreement.
8. NOTICES. Any
notice required to be given under this Agreement shall be given in writing,
and
shall be effective when actually delivered and receipted for if delivered
in
person, one business day after being deposited with a nationally recognized
overnight courier, or five days after deposited in the United States mail,
first
class, certified or registered mail postage prepaid, directed, if to us to
▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇); or you to The Northern
Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: ▇. ▇▇▇▇▇).
Any
party may change its address for notices under this Agreement by giving formal
written notice to the other party in accord herewith, specifying that the
purpose of the notice is to change the party’s address.
9. MISCELLANEOUS.
We
represent and warrant to you that the execution, delivery and performance
of
this Agreement and all related documents are within our powers and have been
authorized by all necessary action required by law, and that this Agreement
and
all related documents are our binding obligations enforceable in accord with
their terms except as such enforcement may be limited by bankruptcy, insolvency
and other laws affecting creditors’ rights generally, and by the discretionary
nature of equitable remedies. The undersigned officer of or other person
signing
on our behalf represents and warrants that (s)he is authorized to sign this
Agreement on behalf of Debtor. This Agreement shall be governed by the internal
law of the state of Illinois, shall bind us and our successors and assigns,
and
shall inure to the benefit of you and your successors and assigns. This
Agreement may be executed in two or more counterparts, and (if there is more
than one party) by each party on separate counterparts, each of which shall
be
deemed an original but which together shall constitute one and the same
instrument. As used in this Agreement, unless otherwise specified : the term
“including” means “including without limitation;” the term “days” means
“calendar days”; and terms such as “herein,” “hereof” and words of similar
import refer to this Agreement as a whole. Unless otherwise defined herein,
all
terms (including those not capitalized) that are defined in the Uniform
Commercial Code of Illinois shall have the same meanings herein as in such
Code,
as such Code may be amended from time to time. Unless the context requires
otherwise, wherever used herein the singular shall include the plural and
vice
versa, and the use of one gender shall also denote the others. Captions herein
are for convenience of reference only and shall not define or limit any of
the
terms or provisions hereof; references herein to sections or provisions without
reference to the document in which they are contained are references to this
Agreement.
2
of 3
10. WAIVER
OF JURY TRIAL, ETC. WE AND YOU (BY YOUR ACCEPTANCE HEREOF AS PROVIDED BELOW,
IRREVOCABLY:(A) AGREE THAT ALL SUITS, ACTIONS OR OTHER PROCEEDINGS WITH RESPECT
TO, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE SUBJECT
TO
LITIGATION IN COURTS HAVING SITUS WITHIN OR JURISDICTION OVER ▇▇▇▇ COUNTY,
ILLINOIS; (B) CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE
OR
FEDERAL COURT LOCATED IN OR HAVING JURISDICTION OVER SUCH COUNTY AND STATE;
AND
(C) WAIVE
ANY RIGHT YOU OR WE MAY HAVE TO REQUEST OR DEMAND TRIAL BY
JURY,
TO TRANSFER OR CHANGE THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT
IN ACCORDANCE WITH THIS SECTION, OR TO CLAIM THAT ANY SUCH PROCEEDING HAS
BEEN
BROUGHT IN AN INCONVENIENT FORUM. NO PARTY HERETO MAY SEEK OR RECOVER PUNITIVE
DAMAGES IN ANY PROCEEDING BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR
ANY RELATED DOCUMENT.
| Agreed
as provided above:
ADVANCED
BIOTHERAPY, INC.
|
Accepted:
THE
NORTHERN TRUST COMPANY
|
|||
| By | By | |||
|
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Print Name |
|
||
| Title |
President
|
Its |
|
|
|
|
||||
3
of 3