COMMERCIAL PLEDGE AGREEMENT
Exhibit 10.3
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Principal
$675,000.00
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Loan
Date
04-21-2008
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Maturity
04-21-2009
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Loan
No.
000000000
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Call
/ Coll
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Account
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Office
LL
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Initials
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References
in the boxes above are for Xxxxxx’s use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing ***** has been omitted due to text length
limitations.
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Grantor:
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PacificHealth
Laboratories, Inc.
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Lender:
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Grand
Bank, N.A.
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000
Xxxxxxx Xxxx, Suite 420
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Xxx
Xxxxxxxx Xxxx
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Matawan,
NJ 07747
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Xxxxxxxx,
NJ 08619
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DEFINITIONS.
The following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United
States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Agreement shall have the meanings
attributed to such terms in the Uniform Commercial Code:
Agreement.
The word "Agreement" means this Commercial Pledge Agreement, as this Commercial
Pledge Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Commercial Pledge Agreement from time to
time.
Borrower.
The word "Borrower" means PacificHealth Laboratories, Inc. and includes all
co-signers and co-makers signing the Note and all their successors and
assigns.
Collateral.
The word "Collateral" means all of Grantor's right, title and interest in and to
all the Collateral as described in the Collateral Description section of this
Agreement.
Default.
The word "Default" means the Default set forth in this Agreement in the section
titled "Default".
Event of
Default. The words "Event of Default" mean any of the events of default set
forth in this Agreement in the default section of this Agreement.
Grantor.
The word "Grantor” means PacificHealth Laboratories, Inc..
Guaranty.
The word "Guaranty" means the guaranty from guarantor, endorser, surety, or
accommodation party to Lender, including without limitation a guaranty of all or
part of the Note*
Income
and Proceeds. The words Income and Proceeds" mean all present and future income,
proceeds, earnings, increases, and substitutions from or for the Collateral of
every kind and nature, including without limitation all payments, interest,
profits, distributions, benefits, rights, options, warrants, dividends, stock
dividends, stock splits, stock rights, regulatory dividends, subscriptions,
monies, claims for money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value issued in
substitution or exchange for shares included in the Collateral, and all other
property Grantor is entitled to receive on account of such Collateral, including
accounts, documents, instruments, chattel paper, and general
intangibles.
Indebtedness.
The word "Indebtedness" means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Grantor is responsible under this
Agreement or under any of the Related Documents.
Lender.
The word "Lender" means Grand Bank, N.A., its successors and
assigns.
Note. The
word "Note" means the Note executed by PacificHealth Laboratories, Inc. in the
principal amount of $675,000.00 dated April 21, 2008, together with all renewals
of, extensions of, modifications of, refinancings of, consolidations of, and
substitutions for the note or credit agreement.
Obligor.
The word "Obligor' means without limitation any and all persons obligated to pay
money or to perform some other act under the Collateral.
Property.
The word 'Property' means all of Grantor's right, title and interest in and to
all the Property as described in the "Collateral Description" section of this
Agreement.
Related
Documents. The words "Related Documents" mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security
agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and
all other instruments, agreements and documents, whether now or hereafter
existing, executed in connection with the Indebtedness.
THIS
COMMERCIAL PLEDGE AGREEMENT dated April 21, 2008, is made and executed between
PacificHealth Laboratories, Inc, ("Grantor") and Grand Bank, N.A.
("Lender").
GRANT OF
SECURITY INTEREST. For valuable consideration, Grantor grants to Lender a
security interest in the Collateral to secure the Indebtedness and agrees that
Xxxxxx shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by
law.
COLLATERAL
DESCRIPTION. The word 'Collateral" as used in this Agreement means all of
Grantor's property (however owned if more than one), in the possession of Lender
(or in the possession of a third party subject to the control of Lender),
whether existing now or later and whether tangible or intangible in character,
including without limitation each, and, all of the following:
Pledged
Collateral Account Agreement with Xxxxxxxxxxx Account #A81-0740868 which will be
funded by a minimum $1,350,000 of assets maintained by Xxxxxxxxxxx
In
addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of Lender (or in the possession of a third party
subject to the control of Lender), whether now or hereafter existing and whether
tangible or intangible in character, including without limitation each of the
following:
(A) All
property to which Xxxxxx acquires title or documents of title.
(B) All
property assigned to Lender.
(C) All
promissory notes, bills of exchange, stock certificates, bonds, savings
passbooks, time certificates of deposit, insurance policies, and all other
instruments and evidences of an obligation.
(D) All
records relating to, any of the property described in this Collateral section,
whether in the form of a writing, microfilm, microfiche, or electronic
media.
(E) All
Income and Proceeds from the Collateral as defined herein.
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RIGHT OF
SETOFF. To the extent permitted by applicable law, Lender reserves a right of
setoff in all Grantor's accounts with Lender (whether checking; savings, or some
other account). This includes all accounts Grantor holds jointly with someone
else and all accounts Grantor may open in the future.
However, this does not include any IRA or Xxxxx accounts, or any trust
accounts for which setoff would be prohibited by law. Grantor authorizes Xxxxxx,
to the extent permitted by applicable law, to charge or setoff all sums owing on
the Indebtedness against any and all such accounts, and, at Xxxxxx's option, to
administratively freeze all such accounts to allow Lender to protect Xxxxxx's
charge and setoff rights provided in this paragraph.
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor represents and warrants
to Lender that:
Ownership.
Grantor is the lawful owner of the Collateral free and clear of all security
interests, liens, encumbrances and claims of others except as disclosed to and
accepted by Xxxxxx in writing prior to execution of this Agreement.
Right to
Pledge. Grantor has the full right, power and authority to enter into this
Agreement and to pledge the Collateral.
Authority;
Binding Effect. Grantor has the full right, power and authority to enter into
this Agreement and to grant a security interest in the Collateral to Lender.
This Agreement is binding upon Grantor as well as Grantor's successors and
assigns, and is legally enforceable in accordance with its terms. The foregoing
representations and warranties, and all other representations and warranties
contained in this Agreement are and shall be continuing in nature and shall
remain in full force and effect until such time as this Agreement is terminated
or cancelled as provided herein.
No
Further Assignment. Grantor has not, and shall not, sell, assign, transfer,
encumber or otherwise dispose of any of Grantor's rights in the Collateral
except as provided in this Agreement.
No
Defaults. There are no defaults existing under the Collateral, and there are no
offsets or counterclaims to the same. Grantor will strictly and promptly perform
each of the terms, conditions, covenants and agreements, if any, contained in
the Collateral which are to be performed by Grantor.
No
Violation. The execution and delivery of this Agreement will not violate any law
or agreement governing Grantor or to which Grantor is a party, and its
certificate or articles of incorporation and bylaws do not prohibit any term or
condition of this Agreement.
Financing
Statements. Grantor authorizes Lender to file a UCC financing statement, or
alternatively, a copy of this Agreement to perfect Xxxxxx's security interest.
At Xxxxxx's request, Xxxxxxx additionally agrees to sign all other documents
that are necessary to perfect, protect, and continue Xxxxxx's security interest
in the Property. Grantor will pay all filing fees, title transfer fees, and
other fees and costs involved unless prohibited by law or unless Lender is
required by law to pay such fees and costs. if Grantor changes Grantor's name or
address, or the name or address of any person granting a security interest under
this Agreement changes, Grantor will promptly notify the Lender of such
change.
XXXXXX'S
RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold the
Collateral until all Indebtedness has been paid and satisfied. Thereafter Lender
may deliver the Collateral to Grantor or to any other owner of the Collateral.
Lender shall have the following rights in addition to all other rights Lender
may have by law:
Maintenance
and Protection of Collateral. Lender may, but shall not be obligated to, take
such steps as it deems necessary or desirable to protect, maintain, insure,
store, or care for the Collateral, including paying of any liens or claims
against the Collateral. This may include such things as hiring other people,
such as attorneys, appraisers or other experts. Xxxxxx may charge Grantor for
any cost incurred in so doing. When applicable law provides more than one method
of perfection of Xxxxxx's security interest, Xxxxxx may choose the method(s) to
be used. If the Collateral consists of stock, bonds or other investment property
for which no certificate has been issued, Grantor agrees, at Xxxxxx's request,
either to request issuance of an appropriate certificate or to give instructions
on Xxxxxx's forms to the issuer, transfer agent, mutual fund company, or broker,
as the case may be, to record on its books or records Xxxxxx's security interest
in the Collateral, Grantor also agrees to execute any additional documents,
including but not limited to, a control agreement, necessary to perfect Xxxxxx's
security interest as Lender may desire.
Income
and Proceeds from the Collateral. Lender may receive all Income and Proceeds and
add it to the Collateral. Xxxxxxx agrees to deliver to Xxxxxx immediately upon
receipt, in the exact form received and without commingling with other property,
all Income and Proceeds from the Collateral which may be received by, paid, or
delivered to Grantor or for Grantor's account, whether as an addition to, in
discharge of, in substitution of, or in exchange for any of the
Collateral.
Application
of Cash. At Lender's option, Lender may apply any cash, whether included in the
Collateral or received as Income and Proceeds or through liquidation, sale, or
retirement, of the Collateral, to the satisfaction of the Indebtedness or such
portion thereof as Lender shall choose, whether or not matured.
Transactions
with Others. Lender may (1) extend time for payment or other performance, (2)
grant a renewal or change in terms or conditions, or (3) compromise, compound or
release any obligation, with any one or more Obligors, endorsers, or Guarantors
of the Indebtedness as Lender deems advisable, without obtaining the prior
written consent of Grantor, and no such act or failure to act shall affect
Lender's rights against Grantor or the Collateral.
All
Collateral Secures Indebtedness. All Collateral shall be security for the
Indebtedness, whether the Collateral is located at one or more offices or
branches of Lender. This will be the case whether or not the office or branch
where Grantor obtained Grantor's loan knows about the Collateral or relies upon
the Collateral as security.
Collection
of Collateral. Lender at Lender's option may, but need not, collect the Income
and Proceeds directly from the Obligors. Grantor authorizes and directs the
Obligors, if Xxxxxx decides to collect the income and Proceeds, to pay and
deliver to Lender all Income and Proceeds from the Collateral and to accept
Xxxxxx's receipt for the payments.
Power of
Attorney. Grantor irrevocably appoints Lender as Grantor's attorney-in-fact,
with full power of substitution, (a) to demand, collect, receive, receipt for,
sue and recover all Income and Proceeds and other sums of money and other
property which may now or hereafter become due, owing or payable from the
Obligors in accordance with the terms of the Collateral; (b) to execute, sign
and endorse any and all instruments, receipts, checks, drafts and warrants
issued in payment for the Collateral; (c) to settle or compromise any and all
claims arising under the Collateral, and in the place and stead of Grantor,
execute and deliver Xxxxxxx's release and acquittance for Grantor; (d) to file
any claim or claims onto take any action or institute or take part in any
proceedings, either in Xxxxxx's own name or in the name of Grantor, or
otherwise, which in the discretion of Lender may seem to be necessary or
advisable; and (e) to execute in Grantor's name and to deliver to the Obligors
on Grantor's behalf, at the time and in the manner specified by the Collateral,
any necessary instruments or documents.
Perfection
of Security Interest. Upon Xxxxxx's request, Grantor will deliver to Lender any
and all of the documents evidencing or constituting the Collateral. When
applicable law provides more than one method of perfection of Xxxxxx's security
interest, Xxxxxx may choose the method(s) to be used. Upon Xxxxxx's request,
Grantor will sign and deliver any writings necessary to perfect Xxxxxx's
security interest. If any of the
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Collateral
consists of securities for which no certificate has been issued, Grantor agrees,
at Xxxxxx's option, either to request issuance of an appropriate certificate or
to execute appropriate instructions on Xxxxxx's forms instructing the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to record on
its books or records, by book-entry or otherwise, Xxxxxx's security interest in
the Collateral. Grantor hereby appoints Xxxxxx as Xxxxxxx's irrevocable
attorney-in-fact for the purpose of executing any documents necessary to
perfect, amend, or to continue the security interest granted in this Agreement
or to demand termination of filings of other secured parties. This is
a continuing Security Agreement
and will continue in effect even though all or any part of the Indebtedness is
paid in full and even though for a period of time Grantor
may not be Indebted to Lender.
XXXXXX'S
EXPENDITURES. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Xxxxxx may are
entitled upon Default
LIMITATIONS
ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care in
the physical preservation and custody of the Collateral in Xxxxxx's possession,
but shall have no other obligation to protect the Collateral or its value. In
particular, but without limitation, Lender shall have no responsibility for (A)
any depreciation in value of the Collateral or for the collection or protection
of any Income and Proceeds from the Collateral, (B) preservation of rights
against parties to the Collateral or against third persons, (C) ascertaining any
maturities, calls, conversions, exchanges, offers, tenders, or similar matters
relating to
any of the Collateral, or (D) informing Grantor about any of the above,
whether or not Lender has or is deemed to have knowledge of such matters. Except
as provided above, Lender shall have no liability for depreciation or
deterioration of the Collateral.
DEFAULT.
Each of the following shall constitute an Event of Default under this
Agreement:
Payment
Default. Grantor fails to make any payment when due under the
Indebtedness.
Other
Defaults. Grantor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of the
Related Documents or to comply with or to perform any term, obligation, covenant
or condition contained in any other agreement between Lender and
Grantor.
Default
in Favor of Third Parties. Should Grantor or any Grantor default under
any loan, extension of credit, security agreement, purchase or sales agreement,
or any other agreement, in favor of any other creditor or person that may
materially affect any of Grantor's property or Grantor's or any Grantor's
ability to repay the Indebtedness or perform their respective obligations under
this Agreement or any of the Related Documents.
False
Statements. Any warranty, representation or statement made or furnished
to Lender by Grantor or on Grantor's behalf under this Agreement or the Related
Documents is false or misleading in any material respect, either now or at the
time made or furnished or becomes false or misleading at any time
thereafter.
Defective
Collateralization. This Agreement or any of the Related Documents ceases
to be in full force and effect (including failure of any Related Documents to
create a valid and perfected security interest or lien) at any time and for any
reason.
Insolvency.
The dissolution or termination of Xxxxxxx's existence as a going
business, the insolvency of Grantor, the appointment of a receiver for any part
of Grantor's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
Creditor
or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Grantor or by any governmental agency against
any collateral securing the indebtedness. This includes a garnishment of any of
Grantor's accounts, including deposit accounts, with Xxxxxx. However, this Event
of Default shall not apply if there is a
good faith dispute by Grantor as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if Grantor
gives Xxxxxx written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
Insufficient
Market Value of Securities. Stock: The Loan to value shall not exceed
70%; and as a result of the deterioration of the market value of the Collateral,
Grantor does not, by the close of business on the next business day after
Grantor has received notice from Lender of the deterioration, either (1) reduce
the amount of the Indebtedness in this loan as required by Lender or (2) pledge
or grant an additional security interest to increase the value of the Collateral
as required by Lender.
Events
Affecting Guarantor. Any of the preceding events occurs with respect to
any guarantor, endorser, surety, or accommodation party of any of the
Indebtedness or guarantor, endorser, surety, or accommodation party dies or
becomes incompetent or revokes or disputes the validity of, or liability under,
any Guaranty of the Indebtedness.
Adverse
Change. A material adverse change occurs n Grantor's financial condition,
or Xxxxxx believes the prospect of payment or performance of the Indebtedness is
impaired.
Insecurity.
Lender in good faith believes itself insecure.
Cure
Provisions. If any default, other than a default in payment or failure to
satisfy Lender's requirement in the Insufficient Market Value of Securities
section is curable and if Grantor has not been given a notice of a breach of the
same provision of this Agreement within the preceding twelve (12) months, it may
be cured if Grantor, after receiving written notice from Lender demanding cure
of such default: (1) cures the default within thirty (30) days; or (2) if the
cure requires more than thirty (30) days, immediately initiates steps which
Xxxxxx deems in Xxxxxx's sole discretion to be sufficient to cure the default
and thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT.
If an Event of Default occurs under this Agreement, at any time
thereafter, Lender may exercise any one or more of the following rights and
remedies:
Accelerate Indebtedness.
Declare all Indebtedness, including any prepayment penalty which Grantor
would be required to pay, immediately due and payable, without notice of any
kind to Grantor.
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Collect the Collateral.
Collect any of the Collateral and, at Xxxxxx's option and to the extent
permitted by applicable law, retain possession of the Collateral while suing on
the Indebtedness.
Sell the Collateral. Sell the
Collateral, at Xxxxxx's discretion, as a unit or in parcels, at one or more
public or private sales. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Lender shall give or mail to Grantor, and other persons as required by
law, notice at least ten (10) days in advance of the time and place of any
public sale, or of the time after which any private sale may be made. However,
no notice need be provided to any person who, after an Event of Default occurs,
enters into and authenticates an agreement waiving that person's right to
notification of sale. Grantor agrees that any requirement of reasonable notice
as to Grantor is satisfied if Lender mails notice by ordinary mail addressed to
Grantor at the last address Grantor has given Lender in writing. If a public
sale is held, there shall be sufficient compliance with all requirements of
notice to the public by a single publication in any newspaper of general
circulation in the county where the Collateral is located, setting forth the
time and place of sale and a brief description of the property to be sold.
Lender may be a purchaser at any public sale.
Sell Securities. Sell any
securities included in the Collateral in a manner consistent with applicable
federal and state securities laws. If, because of restrictions under such laws,
Lender is unable, or believes Xxxxxx is unable, to sell the securities in an
open market transaction, Grantor agrees that Lender will have no obligation to
delay sale until the securities can be registered, Then Lender may make a
private sale to one or more persons or to a restricted group of persons, even
though such sale may result in a price that is less favorable than might be
obtained in an open market transaction. Such a sale will be considered
commercially reasonable. If any securities held as Collateral are "restricted
securities" as defined in the Rules of the Securities and Exchange Commission
(such as Regulation D or Rule 144) or the rules of state securities departments
under state "Blue Sky" laws, or if Grantor or any other owner of the Collateral
is an affiliate of the issuer of the securities, Xxxxxxx agrees that neither
Grantor, nor any member of Grantor's family, nor any other person signing this
Agreement will sell or dispose of any securities of such issuer without
obtaining Xxxxxx's prior written consent.
Rights and Remedies with Respect to
Investment Property, Financial Assets and Related Collateral. In addition
to other rights and remedies granted under this Agreement and under applicable
law, Lender may exercise any or all of the following rights and remedies: (1)
register with any issuer or broker or other securities intermediary any of the
Collateral consisting of investment property or financial assets (collectively
herein, "investment property") in Lender's sole name or in the name of Xxxxxx's
broker, agent or nominee; (2) cause any issuer, broker or other securities
intermediary to deliver to Lender any of the Collateral consisting of
securities, or investment property capable of being delivered; (3) enter into a
control agreement or power of attorney with any issuer or securities
intermediary with respect to any Collateral consisting of investment properly,
on such terms as Lender may deem appropriate, in its sole discretion, including
without limitation, an agreement granting to Lender any of the rights provided
hereunder without further notice to or consent by Grantor; (4) execute any such
control agreement on Grantor's behalf and in Grantor's name, and hereby
irrevocably appoints Xxxxxx as agent and attorney-in-fact, coupled with an
interest, for the purpose of executing such control agreement on Grantor's
behalf; (5) exercise any and all rights of Lender under any such control
agreement or power of attorney: (6) exercise any voting, conversion,
registration, purchase, option, or other rights with respect to any Collateral;
(7) collect, with or without legal action, and issue receipts concerning any
notes, checks, drafts, remittances or distributions that are paid or payable
with respect to any Collateral consisting of investment property. Any control
agreement entered with respect to any investment property shall contain the
following provisions, at Xxxxxx's discretion. Lender shall be authorized to
instruct the issuer, broker or other securities intermediary to take or to
refrain from taking such actions with respect to the investment property as
Lender may instruct, without further notice to or consent by Grantor. Such
actions may include without limitation the issuance of entitlement orders,
account instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled to
instruct the issuer, broker or securities intermediary to sell or to liquidate
any investment Property, or to pay the cash surrender or account termination
value with respect to any and all investment property, and to deliver all such
payments and liquidation proceeds to Lender. Any such control agreement shall
contain such authorizations as are necessary to place Lender in "control" of
such investment collateral, as contemplated under the provisions of the Uniform
Commercial Code, and shall fully authorize Lender to issue "entitlement orders"
concerning the transfer, redemption, liquidation or disposition of investment
collateral, in conformance with the provisions of the Uniform Commercial
Code.
Foreclosure. Maintain a
judicial suit for foreclosure and sale of the Collateral.
Transfer Title. Effect
transfer of title upon sale of all or part of the Collateral. For this purpose,
Xxxxxxx irrevocably appoints Xxxxxx as Xxxxxxx's attorney-in-fact to execute
endorsements, assignments and instruments in the name of Grantor and each of
them (if more than one) as shall be necessary or reasonable.
Other Rights and Remedies.
Have and exercise any or all of the rights and remedies of a secured creditor
under the provisions of the Uniform Commercial Code, at law, in equity, or
otherwise.
Application of Proceeds. Apply
any cash which is part of the Collateral, or which is received from the
collection or sale of the Collateral, to reimbursement of any expenses,
including any costs for registration of securities, commissions incurred in
connection with a sale, attorneys' fees and court costs, whether or not there is
a lawsuit and including any fees on appeal, incurred by Lender in connection
with the collection and sale of such Collateral and to the payment of the
Indebtedness of Grantor to Lender, with any excess funds to be paid to Grantor
as the interests of Grantor may appear. Xxxxxxx agrees, to the extent permitted
by law, to pay any deficiency after application of the proceeds of the
Collateral to the Indebtedness.
Election of Remedies. Except
as may be prohibited by applicable law, all of Lender's rights and remedies,
whether evidenced by this Agreement, the Related Documents, or by any other
writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Xxxxxxx's failure to perform,
shall not affect Xxxxxx's right to declare a default and exercise its
remedies.
MISCELLANEOUS PROVISIONS. The
following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement,
together with any Related Documents, constitutes the entire understanding and
agreement of the parties as to the matters set forth in this Agreement. No
alteration of or amendment to this Agreement shall be effective unless given in
writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys' Fees; Expenses. Xxxxxxx agrees to pay upon
demand all of Xxxxxx's costs and expenses, including Xxxxxx's attorneys' fees
and Xxxxxx's legal expenses, incurred in connection with the enforcement of this
Agreement. Lender may hire or pay someone else to help enforce this Agreement,
and Grantor shall pay the costs and expenses of such enforcement. Costs and
expenses include Xxxxxx's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services.
Grantor also shall pay all court costs and such additional fees as may be
directed by the court.
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Caption Headings. Caption
headings in this Agreement are o convenience purposes only and are not to be
used to interpret or define the provisions of this Agreement.
Governing
Law. This Agreement will be governed by federal law applicable to Lender
and to the extent not preempted by federal law, the laws of the State of New
Jersey without regard to its conflicts of law provisions. This Agreement has
been accepted by Xxxxxx in the State of New Jersey.
Choice of Venue. If there is a
lawsuit Xxxxxxx agrees upon Xxxxxxx request to submit to the jurisdiction of the
courts of Xxxxxx County, State of New Jersey.
No
Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Xxxxxx. No delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by Xxxxxx of a
provision of this Agreement shall not prejudice or constitute a waiver of
Lenders right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Xxxxxx, nor any course of
dealing between Xxxxxx and Grantor, shall constitute a waiver of any of Lender's
rights or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of
Lender.
Non-Liability
of Lender. The relationship between Grantor and Xxxxxx created by this
Agreement is strictly a debtor and creditor relationship and not fiduciary in
nature, nor is the relationship to be construed as creating any partnership or
joint venture between Lender and Grantor.
Notices.
Any notice required to be given under this Agreement shall be given in writing,
and shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the
United States mail, as first class, certified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Agreement.
Any party may chance its address for notices under this Agreement by giving
formal written notice to the other patties, specifying that the purpose of the
notice is to change the party's address. For notice purposes, Xxxxxxx agrees to
keep Xxxxxx informed at all times of Xxxxxxx's current address. Unless otherwise
provided or required by law, if there is more than one Grantor, any notice given
by Lender to any Grantor is deemed to be notice given to all
Grantors.
Severability.
If a court of competent jurisdiction finds any provision of this
Agreement to be illegal, invalid, or unenforceable as to any circumstance, that
finding shall not make the offending provision illegal, invalid, or
unenforceable as to any other circumstance. If feasible, the offending provision
shall be considered modified so that it becomes legal, valid and enforceable. If
the offending provision cannot be so modified, it shall be considered deleted
from this Agreement. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Agreement shall not
affect the legality, validity or enforceability of any other provision of this
Agreement.
Successors
and Assigns. Subject to any limitations stated in this Agreement on
transfer of Grantor's interest, this Agreement shall be binding upon and inure
to the benefit of the parties, their successors and assigns, If ownership of the
Collateral becomes vested in a person other than Grantor, Lender, without notice
to Grantor, may deal with Grantors successors with reference to this Agreement
and the Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Agreement or liability under the
Indebtedness.
Time
is of the Essence. Time is of the essence in the performance of this
Agreement.
Waive Jury. All parties to
this Agreement hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by any party against any other
party.
GRANTOR
HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE AGREEMENT
AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED APRIL 21, 2008.
GRANTOR:
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PACIFICHEALTH
LABORATORIES, INC.
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By:
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/s/ Xxxxxx Xxxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxx | |||
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Xxxxxx
Xxxxxxx, CEO of PacificHealth
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Xxxxxxx
X. Xxxxxx, CFO of PacificHealth
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Laboratories,
Inc.
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Laboratories,
Inc.
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LENDER:
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Grand
Bank, N.A.
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Authorized
Signer
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/s/Xxxxxx Xxxx
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Acknowledgment
State of
New Jersey
County of
Monmouth
Be it
remembered that on this 21st day of
April 2008, before me, the undersigned authority, personally appeared Xxxxxx
Xxxxxxx, who, I am
satisfied
is the person named in the foregoing instrument, and I having first made known
to them the contents thereof, they acknowledged that
they
signed, sealed and delivered the same as their voluntary act and
deed. All of which is hereby certified.
/s/ Xxxxxxx Xxxxx
Xxxxxx
Xxxxxxx
Xxxxx Xxxxxx, Esq.,
an
attorney duly admitted
to
practice law in New Jersey
Acknowledgment
State of
New Jersey
County of
Monmouth
Be it
remembered that on this 21st day of
April 2008, before me, the undersigned authority, personally appeared Xxxxxxx X.
Xxxxxx, who, I am
satisfied
is the person named in the foregoing instrument, and I having first made known
to them the contents thereof, they acknowledged that
they
signed, sealed and delivered the same as their voluntary act and
deed. All of which is hereby certified.
/s/ Xxxxxxx Xxxxx
Xxxxxx
Xxxxxxx
Xxxxx Xxxxxx, Esq.,
an
attorney duly admitted
to
practice law in New Jersey
