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EXHIBIT 10.42
SENIOR NOTE PURCHASE AGREEMENT
This SENIOR NOTE PURCHASE AGREEMENT (this "Agreement"), dated this 27th
day of January 1999 by and among INTRACEL CORPORATION, a Delaware corporation
("Seller") and DUBLIND INVESTMENTS LLC, a Delaware limited liability corporation
(the "Purchaser").
WHEREAS, the Company wishes to issue and sell to the Purchaser the
Company's 15% Senior Note, substantially in the form attached hereto as Exhibit
A-1, in the original principal amount of $2,000,000 (the "Senior Note"),
WHEREAS, the Purchaser is to purchase the Senior Note on the terms and
subject to the conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained the parties hereto hereby agree as follows:
1. Purchase and Sale. The Company hereby issues and sells to the
Purchaser, and the Purchaser hereby purchases from the Company, the Senior Note.
Simultaneously with the execution of this agreement, each Purchaser has
delivered to the Company, by wire transfer, cash in the amount of $2,000,0000,
representing the original principal amount of the Senior Note purchased
hereunder.
2. Representations and Warranties of the Company.
(a) The Company (i) is duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; (ii) it
has the full power and authority to enter into this Agreement and to perform all
of its obligations hereunder; (iii) the execution, delivery and performance of
this Agreement by the Company has been duly authorized by all necessary
corporate action of the Company; (iv) the execution, delivery and performance by
the Company of this Agreement and the sale and delivery of the Senior Note will
not violate, conflict with or result in a breach of the Certificate or Articles
of Incorporation or By-Laws of the Company or any agreement, instrument,
judgment, or judicial decree or order to which the Company is a party or by
which the Company or any of its assets is bound and (v) this Agreement and the
Senior Note constitute the legal, valid and binding obligations of the Seller,
enforceable in accordance with their respective terms, except (a) to the extent
that enforceability may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and (b) that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceedings therefor may be brought.
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3. Representations, Warranties and Covenants of the Purchaser. The
Purchaser hereby represents and warrants to the Company as follows:
(a) Purchase of Securities.
(i) It is an "accredited investor" within the meaning of Rule 501
under the Securities Act and was not organized for the specific purpose of
acquiring the Senior Note.
(ii) It has sufficient knowledge and experience in investing in
companies in a similar stage of development to the Company so as to be able to
evaluate the risks and merits of its investment in the Company and it is able
financially to bear the risks thereof, including a complete loss thereof.
(iii) It has had an opportunity to discuss the Company's
business, management and financial condition with the management of the
Company's and its subsidiaries.
(iv) It is acquiring the Senior Note for its own account for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof.
(v) It understands that (i) the Senior Note has not been
registered under the Securities Act by reason of its issuance in a transaction
exempt from the registration requirements of the Securities Act pursuant to
Section 4(2) thereof, (ii) the Senior Note must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from such registration, (iii) the Senior Note will bear a legend to such
effect and (iv) the Company will make a notation on its transfer books to such
effect.
(b) Authority. It has all requisite power and authority to execute,
deliver and perform this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby. Purchaser (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) it has the full power and authority to
enter into this Agreement and to perform all of its obligations hereunder; (iii)
the execution, delivery and performance of this Agreement by the Purchaser has
been duly authorized by all necessary corporate action of Purchaser; and (iv)
the execution, delivery and performance by the Purchaser of this Agreement and
the purchase of the Senior Note will not violate, conflict with or result in a
breach of the Certificate or Articles of Incorporation or By-Laws of Purchaser
or any agreement, instrument, judgment, or judicial decree or order to which the
Purchaser is a party or by which the Purchaser or any of its assets is bound, or
result in the creation of any lien or encumbrance on the Senior Note.
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(c) Projections. Purchaser understands that any and all financial
projections and other estimates delivered to it were based on the Company's
experience in the industry and on assumptions of fact and opinion which the
Company believes to have been, and to be, as of the date hereof, reasonable. It
understands that the Company cannot and does not assure or guarantee the
attainment of such projections or other estimates.
(d) Risk Factors. Purchaser understands that the Senior Note is
subject to certain risk factors and has fully and independently evaluated to its
satisfaction each risk factor prior to making a decision to invest in the Senior
Note.
4. Miscellaneous
(a) This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
(b) This Agreement constitutes the sole agreement between or among
the parties hereto relating to the subject matter hereof and merge with and
supersede any and all prior agreements between them relating to such subject
matter. This Agreement cannot be altered or amended except by a writing duly
executed by the party against whom such alteration or amendment is sought to be
enforced.
(c) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(d) The headings in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
(e) This Agreement shall be governed by and construed under the laws
of the state of New York applicable to contracts made and to be performed
entirely within such state.
(f) The representations, warranties and covenants contained herein
shall survive the sale and purchase of the Senior Note hereunder and any
disposition thereof, notwithstanding any investigation made at any time by any
of the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
INTRACEL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
------------------------
Name: Xxxxx X. XxXxxxxx
Title: Chief Executive Officer
DUBLIND INVESTMENTS LLC
By:________________________
Name:
Title:
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THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. IT
MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER SUCH ACT OR IN COMPLIANCE WITH ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS.
INTRACEL CORPORATION
15% SENIOR PROMISSORY NOTE
January 27, 1999 $2,000,000
FOR VALUE RECEIVED, INTRACEL CORPORATION, a Delaware corporation (the
"Company"), hereby promises to pay to the order of DUBLIND INVESTMENTS LLC, its
successors or assigns (the "Noteholder"), the Principal Amount (as defined
below) payable on April 1, 2000 (the "Principal Payment Date") with interest
payable pursuant to Section 2. Capitalized terms used in this Senior Note have
the meanings provided in Section 9. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Securities Purchase Agreement
dated August 25, 1998 by and among the Company and the other parties thereto
(the "Securities Purchase Agreement"), a copy of which has been delivered to the
Noteholder.
SECTION 1. Payments of Principal.
(a) Principal Amount. The principal amount of this Note is Two
Million Dollars ($2,000,000) (the "Principal Amount").
(b) Principal Payment Date. Subject to earlier redemption or
prepayment as provided herein, the Principal Amount of this Senior Note and all
other theretofore unpaid amounts due hereunder shall be due and payable on the
Principal Payment Date.
(c) Mandatory Redemption Upon Consummation of the Initial Public
Offering. Upon the closing date of the first offering of equity securities of
the Company to the public pursuant to a registration statement declared
effective by the Securities and Exchange Commission under the Securities Act of
1933, as amended, the Company shall redeem this Senior Note by paying to the
Noteholder all principal, accrued and unpaid interest thereon and any other
amount due to the Noteholder hereunder.
(d) Optional Prepayment. The principal amount of this Senior Note may
be prepaid at the option of the Company at any time, in part or in full,
together with accrued interest through the date of prepayment on the principal
amount so prepaid.
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SECTION 2. Payments of Interest.
(a) Interest Rate. Except as otherwise expressly provided in Section
4(b), interest shall accrue from the Closing Date at the rate of fifteen percent
(15%) per annum on the Unpaid Principal Amount. All computations of interest
shall be made on the basis of a year of three hundred and sixty (360) days for
the actual number of days including the first day but excluding the last day for
which any interest period is calculated.
(b) Interest Payment Date. All accrued and unpaid interest shall be
payable semi-annually in arrears on each Interest Payment Date beginning on July
27, 1999.
SECTION 3. Covenants.
The Company hereby agrees that, so long as any amount is owing to the
Noteholder, it shall and shall cause its Subsidiaries to perform the covenants
set forth in Article V of the Securities Purchase Agreement.
SECTION 4. Events of Default.
(a) Definition. For purposes of this Senior Note, an Event of Default
shall have occurred and shall be deemed to have occurred if:
(i) the Company shall fail to pay any principal when due in
accordance with the terms hereof; or
(ii) the Company shall fail to pay any interest or any other
amount payable hereunder when due in accordance with terms hereof by a date
which is five calendar days after such interest or other amount payable
hereunder is due and payable in accordance with the terms hereof; or
(iii) the Company or any Subsidiary (whether as primary obligor
or as a guarantor or other surety) shall (A) default in any payment of principal
of or interest on any Debt (after giving effect to any applicable grace period);
or (B) default in the observance or performance of any other agreement or
condition relating to any such Debt or any Guarantee Obligation or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to give the holder thereof the right to cause such Debt to
become due prior to its stated maturity or such Guarantee Obligation to become
payable (whether by the terms of any document evidencing such Debt or Guarantee
Obligation, upon the election of any holder of Debt or beneficiary of any
Guarantee Obligation or otherwise); provided, that the aggregate amount of all
obligations as to which such payment Default shall occur and be continuing or
other event causing or permitting acceleration thereof exceeds $500,000; or
(iv) (A) the Company or any Subsidiary shall commence any case,
proceeding or other action (1) under any existing or future Law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of
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debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (2) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its Assets, or the Company shall make a
general assignment for the benefit of its creditors; or (B) there shall be
commenced against the Company any case, proceeding or other action of a nature
referred to in clause (A) above which (1) results in the entry of an order for
relief or any such adjudication or appointment or (2) remains undismissed,
undischarged or unbonded for a period of sixty (60) days; or (C) there shall be
commenced against the Company any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its Assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within sixty (60) days from the entry thereof;
or (D) the Company shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(A), (B) or (C) above; or (E) the Company shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(v) one or more final judgments or decrees shall be entered
against the Company or any Subsidiary involving in the aggregate a liability
(not paid or fully covered by insurance) of two hundred fifty thousand dollars
($250,000) or more; or
(vi) any judgment or decree is entered in any proceedings against
the Company or any Subsidiary decreeing a split-up of the Company or such
Subsidiary which requires the divestiture of Assets representing more than
33 1/3%, or the divestiture of the stock of a Subsidiary whose Assets
represent more than 33 1/3%, of the consolidated Assets of the Company and its
Subsidiaries (determined in accordance with GAAP) or which requires the
divestiture of Assets, or stock of a Subsidiary, which shall have contributed
more than 33 1/3% of the consolidated net income of the Company and its
Subsidiaries (determined in accordance with GAAP) during the three fiscal years
then most recently ended, and such order, judgment or decree remains unstayed
and in effect for more than 120 days; or
(vii) the Company or any Community Controlled Entity, in its
capacity as an employer under a Multiemployer Plan, makes a complete or partial
withdrawal from such Multiemployer Plan resulting in the incurrence by such
withdrawing employer of a withdrawal liability in an amount exceeding $500,000;
or
(viii) the Company shall have not consummated on or prior to
December 31, 1999 a sale of its Common Stock, whether in a public offering
registered under the Securities Act or otherwise, which sale has an aggregate
offering price of not less than $40,000,000 and results in aggregate proceeds to
the Company (net of selling expenses and underwriter's discount or selling
agent's commission) of not less than $35,000,000; or
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(ix) (A) the Securities Purchase Agreement or any Ancillary
Agreement shall cease in any material respect, for any reason, to be in full
force and effect or the Company or any subsidiary shall assert that any of such
Agreements has ceased in any material respect to be in full force and effect,
(B) the Liens created by any Security Documents shall cease, in any material
respect, for any reason other than a release executed and delivered by each
Noteholder, to be enforceable and of the same effect and first priority
purported to be created thereby (unless otherwise contemplated thereby), or (C)
any breach, default or event of default occurs under any Securities Purchase
Agreement or any Ancillary Agreement and the same is not remedied within the
applicable period of grace (if any) provided in such Agreement; or
(x) the Company shall fail to redeem the Senior Note in
accordance with the terms of Section 1(c) hereof.
(b) Consequences of Events of Default.
(i) When any Event of Default has occurred and is continuing, the
interest rate on this Senior Note shall increase to the Default Interest Rate.
Any increase of the interest rate resulting from the operation of this clause
shall terminate as of the close of business on the date on which no Events of
Default exist (subject to subsequent increases pursuant to this clause),
provided, however, that nothing herein shall prevent subsequent increases of the
interest rate to the Default Interest Rate upon any subsequent Defaults or
Events of Default by the Company.
(ii) If an Event of Default of the type described in Section
4(a)(iv) has occurred, the aggregate principal amount of this Senior Note
(together with all accrued interest thereon and all other amounts due and
payable with respect thereto) shall become immediately due and payable without
any action on the part of the Noteholder, and the Company shall immediately pay
to the Noteholder all amounts due and payable hereunder.
(iii) If any Event of Default has occurred (other than under
Section 4(a)(iv)), the Noteholder may declare this Senior Note to be immediately
due and payable and may demand immediate payment of the Unpaid Principal Amount
(together with all accrued and unpaid interest and all other amounts due and
payable with respect thereto).
(iv) If any Event of Default or Default shall occur and be
continuing, the Noteholder may proceed to protect and enforce its rights under
the Senior Note by exercising such remedies as are available to such Noteholder
in respect thereof, under applicable Law, whether for specific performance of
any covenant or other agreement contained in this Senior Note or otherwise; no
remedy is intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at Law or in equity or by statute
or otherwise.
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(v) If an Event of Default or Default shall occur and be
continuing, payments by the Company of amounts due to the Noteholder shall be
made in the following order or priority:
(A) all accrued unpaid past due interest on the Senior Notes;
(B) all accrued unpaid interest due on the Senior Notes; and
(C) the principal amount due under the Senior Notes.
(c) Rescission of Acceleration. At any time after any or all of the
Senior Notes shall have been declared immediately due and payable pursuant to
subsection (b), the Required Holders may, by notice in writing to the Company,
rescind and annul such declaration and its consequences if (i) the Company shall
have paid all overdue interest on the Senior Notes, the principal of any Senior
Notes which have become due otherwise than by reason of such declaration, and
interest on such overdue interest and overdue principal at the rate specified in
the Senior Notes, (ii) the Company shall have paid any amounts, other than
principal and interest, which have become due solely by reason of such
declaration, (iii) all Events of Default and Defaults, other than non-payment of
amounts which have become due solely by reason of such declaration, shall have
been cured or waived and (iv) no judgment or decree shall have been entered for
the payment of any amounts due pursuant to the Senior Notes. No such rescission
or annulment shall extend to or affect any subsequent Event of Default or
Default or impair any right arising therefrom.
(d) Notice of Acceleration or Rescission. Whenever any Senior Note
shall be declared immediately due and payable pursuant to subsection (b) or any
such declaration shall be rescinded and annulled pursuant to subsection (c), the
Company shall forthwith give written notice thereof to each Noteholder at the
time outstanding.
SECTION 5. Waiver of Certain Rights. The Company hereby waives diligence,
presentment, protest and demand and notice of protest and demand, dishonor and
nonpayment of this Senior Note, and expressly agrees that this Senior Note, or
any payment hereunder, may be extended from time to time and that the Noteholder
hereof may accept security for this Senior Note or release security for this
Senior Note, all without in any way affecting the liability of the Company
hereunder.
SECTION 6. Transfer of this Senior Note. Upon surrender for registration of
transfer of this Senior Note at the principal office of the Company, the Company
shall, execute and deliver one or more new Senior Notes of like tenor and of
like aggregate principal amount, registered in the name of such transferee or
transferees and or the Noteholder, as the case may be. At the time this Senior
Note is surrendered for registration of transfer, it shall be duly endorsed, or
be accompanied by a written instrument of transfer duly executed, by the
Noteholder or such holder's attorney duly authorized in writing. Any Senior Note
or Senior Notes issued upon transfer of this Senior Note shall carry the rights
to unpaid interest and the accrual of interest which were carried by this Senior
Note, so that neither gain nor loss of interest shall result from any such
transfer. In the event that the Noteholder shall transfer less than the full
amount of the
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Note, the Company shall execute and deliver a replacement Note of like tenor for
the balance of the amount of the Note due to the Noteholder. In addition, on
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note and, in the case of any such loss, theft
or destruction of this Note, and delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company in the case of such
mutilation, on delivery and cancellation of this Note, the Company at its
expense, will execute and deliver in lieu thereof, a replacement Note of like
tenor.
SECTION 7. Assignment. The rights and obligations of the Company and the
Noteholder shall be binding upon and benefit the permitted successors, assigns
and transferees of the parties; provided that (i) in no event shall the Company
assign its rights hereunder without the prior written consent of the Noteholder,
(ii) the Noteholder may sell, assign, convey, or otherwise transfer this Senior
Note with the consent of the Company, which consent will not be unreasonably
withheld, and (iii) notwithstanding Section 7(ii), the Noteholder may at all
times, without the consent of the Company, sell, assign, convey or otherwise
transfer this Senior Note to an Affiliate of the Noteholder.
SECTION 8. Amendment and Waiver. Except as otherwise expressly provided
herein, the provisions of this Senior Note may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company has obtained the written consent of the
Required Holders. No failure or delay on the part of the Noteholder in
exercising any power or right under this Senior Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right.
SECTION 9. Definitions. For purposes of this Senior Note, the following
capitalized terms have the following meaning:
"Affiliate" means, with reference to a specified person or entity, any
person or entity that directly or indirectly through one or more intermediaries
controls or is controlled by or is under common control with the specified
person or entity. For purposes of this definition, "control" (including, with
correlative meaning, the terms "controlled by" and "under common control with"),
as used with respect to any person or entity, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person or entity, whether through the ownership
of voting securities or by contract or otherwise.
"Business Day" has the meaning specified in Section 1.1 of the Securities
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
"Common Stock" means the common stock of the Company.
"Commonly Controlled Entity" means an entity, whether or not incorporated,
which is under common control with the Company within the meaning of Section
4001 of ERISA or is
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part of a group which includes the Company and which is treated as a single
employer under Section 414 of the Code.
"Company" is defined in the preamble.
"Debt" has the meaning specified in Section 1.1 of the Securities
Purchase Agreement.
"Default" means any of the events specified in Section 4, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Default Interest Rate" means a rate of interest equal to seventeen and
one-half percent (17.5%) per annum.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" means each of the events described in Section 4;
provided, however, that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"GAAP" has the meaning specified in Section 1.1 of the Securities
Purchase Agreement.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Debt, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (x) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (y) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such
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guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Company in good faith.
"Senior Notes" means this 15% Senior Promissory Note and any additional
15% Senior Promissory Notes issued simultaneously herewith.
"Interest Payment Dates" mean, for any year, July 27 and January 27,
beginning with the Interest Payment Date of July 27, 1999.
"Lien" has the meaning specified in Section 1.1 of the Securities
Purchase Agreement.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Noteholder" means the Person defined as such in the first paragraph
hereof and its permitted successors, transferees and assigns.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Principal Amount" is defined in Section 1(a).
"Principal Payment Date" is defined in the preamble.
"Required Holders" means that number of holders of Senior Notes
constituting not less a majority of the aggregate Unpaid Principal Amount due
under all outstanding Senior Notes at that time.
"Subsidiary" has the meaning specified in Section 1.1 of the
Securities Purchase Agreement.
"Unpaid Principal Amount" means, at any time, the portion of the
Principal Amount outstanding under a Senior Note at such time.
SECTION 10. Cancellation. After all principal, accrued interest thereon
and all other amounts due hereunder at any time owed on this Senior Note has
been paid in full, this Senior Note shall be surrendered to the Company for
cancellation and shall not be reissued.
SECTION 11. Payment of Expenses and Taxes. The Company hereby agrees
(a) to pay or reimburse the Noteholder for all its reasonable and documented
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Senior Note after the occurrence of any Event of
Default, including, without limitation, the reasonable and documented fees and
disbursements of counsel to the Noteholder and (b) to pay, indemnify, and hold
the Noteholder harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if
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any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Senior Note.
SECTION 12. Payments. All payments to be made to the Noteholder shall be
made in the lawful money of the United States of America in immediately
available funds.
SECTION 13. Place of Payment. Payments of principal and interest shall be
delivered to the Noteholder by wire transfer of immediately available funds to
the following account: Fleet Bank, Greenwich Avenue Branch, ABA No. 000000000
for credit to Dublind Partners Inc., Account No. 00-0000-0000, or to such other
Noteholder at such other address or to the attention of such other person or to
such other account as specified by prior written notice to the Company.
SECTION 14. Severability. Whenever possible, each provision of this Senior
Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Senior Note is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Senior Note.
SECTION 15. Descriptive Headings; Interpretation. The descriptive headings
of this Senior Note are inserted for convenience only and do not constitute a
substantive part of this Senior Note. The use of the word "including" in this
Senior Note shall be by way of example rather than by limitation.
SECTION 16. Governing Law; Submission to Jurisdiction. This Note shall be
construed in accordance with, and governed by, the internal laws of the State of
New York as permitted by Section 5-401 of the New York General Obligations Law
(or any similar successor provision) without giving effect to any choice of law
rule that would cause the application of the laws of any jurisdiction other than
the State of New York. The Company hereby irrevocably and unconditionally:
(i) submits itself and its properties in any legal action or
proceeding relating to this Note, or for recognition and enforcement of any
judgment in respect thereof, to the general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts of any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially
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similar form of mail), postage prepaid, to it at its address set forth in
or delivered pursuant to Section 18 or at such other address of which the
Noteholders shall have been notified pursuant thereto;
(iv) waives, to the maximum extent not prohibited by Law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 18 any punitive or exemplary damages and any
damages which are not proximately caused by or the reasonably foreseeable
result of the breach which is the subject of such action or proceeding.
The Company hereby acknowledges that:
(v) it has been advised by counsel in the negotiation, execution
and delivery of this Note;
(vi) the Noteholders do not have any fiduciary relationship with
or duty to the Company arising out of or in connection with this Note; and
(vii) no joint venture or partnership exists between the Noteholders, on
the one hand, and the Company, on the other hand and the relationship of
the Company and the Noteholders is that of inter alia, debtor and creditor.
THE COMPANY AND THE NOTEHOLDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE, AND
FOR ANY COUNTERCLAIM THEREIN.
THIS NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
SECTION 17. Other Jurisdictions. The Company agrees that the Noteholder
shall have the right to proceed against the Company in a court in any location
to enable such Noteholder to enforce a judgment or other court order entered in
favor of such holder. The Company waives any objection that it may have to the
location of the court in which the Noteholder has commenced a proceeding
described in this Section 17.
SECTION 18. Notices. All notices, requests, demands, waivers and other
communication required or permitted to be given under this Senior Note shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, or (c) sent by next-day or overnight
courier:
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If to the Noteholder:
Dublind Investments LLC
00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax Number: (000) 000-0000
Confirm Number: (000) 000-0000
with a copy, which will
not constitute notice to
the Noteholder, to:
Xxxxxxxx & Worcester
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax Number: (000) 000-0000
Confirm Number: (000) 000-0000
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If to the Company:
Intracel Corporation
0000 XX Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. XxXxxxxx
Fax Number: (000) 000-0000
Confirm Number: (000) 000-0000
with a copy, which will
not constitute notice to
the Company, to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax Number: (000) 000-0000
Confirm Number: (000) 000-0000
or at such other address as may be specified in writing to the other parties in
accordance with this Section 18.
All such notices, requests, demands, waivers and other communications shall be
deemed to have been delivered if by personal delivery or by courier on the date
of such delivery and if by certified or registered mail, on the third (3rd)
Business Day after the mailing thereof.
SECTION 19. Business Days. If any payment is due, or any time period for
giving notice or taking action expires, on a day which is not a Business Day,
the payment shall be due and payable on, and the time period shall automatically
be extended to, the next Business Day immediately following such day, and
interest shall continue to accrue at the required rate hereunder until any such
payment is made.
SECTION 20. Usury Laws. The Company and each Noteholder intend to comply
with applicable usury Laws from time to time in effect. At no time shall the
interest rate payable on the Senior Notes exceed the maximum rate of interest,
if any, that at any time or from time to time may be contracted for, taken,
charged or received on the Senior Notes or on any amount which may be owing to
the Noteholders under the Laws applicable to such Noteholders and this
transaction. In the event that the interest rate payable on the Senior Notes
shall exceed the maximum rate of interest allowable under applicable usury Laws,
then the rate of interest shall automatically be reduced to the maximum rate
permitted by Law.
* * * * *
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IN WITNESS WHEREOF, the Company has executed and delivered this Senior
Note on January 27, 1999.
INTRACEL CORPORATION
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Chief Executive Officer
