EXHIBIT 10.56
-------------
CITIZENS BANK OF MASSACHUSETTS PLEDGE AGREEMENT
--------------------------------------------------------------------------------
This Pledge Agreement is made as of the 2nd day of March, 2004, by
and between the following parties:
Citizens Bank of Massachusetts, as Administrative Agent
for the notable benefit of the Lenders (the "Agent"), a
Massachusetts banking corporation having a principal
place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
Able Laboratories, Inc. ( the "Borrower"), a corporation
duly organized and existing under the laws of the State
of Delaware and having its corporate offices and
principal place of business at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇;
in consideration of the mutual covenants and benefits to be derived herefrom.
W I T N E S S E T H:
A. The Borrower and the Agent and Lenders party hereto have entered
into a certain Credit Agreement (the "Credit Agreement") of even date
establishing a certain revolving line of credit facility in the maximum
principal amount of Thirty Million Dollars ($30,000,000.00) (the "Revolving
Credit Facility") for the Borrower's working capital and other financing needs
including the issuance of letters of credit.
B. The Borrower's obligations under the Revolving Credit Facility
are secured by, among other things, a security interest in all of the Borrower's
assets as set forth in a certain Security Agreement of even date.
C. As a condition precedent to establishing the Revolving Credit
Facility, the Agent has required that the Borrower enter into this Agreement and
thereby pledge the Borrower's interests in RxBazaar, Inc. to the Agent as
further collateral to the Agent.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Borrower and the Agent agree as follows:
1. To secure the prompt, punctual, and faithful performance of all
and each of the Obligations (as that term is defined herein) of the Borrower to
the Agent, the Borrower hereby grants to the Agent a security interest in and
to, and pledges and delivers to the Agent the following property, and all
products, Proceeds, substitutions, additions, interest, dividends, and other
distributions (including, without limitation, stock splits) in respect thereto,
and all books, records, and papers relating to the foregoing (all of which is
referred to hereinafter as the "Pledged Securities"):
345,333 shares of Series A Preferred Stock, evidenced by
certificates No. 4 and No. 5 (for an aggregate of 2,466,667 shares before giving
effect to a one-for-five reverse split and a conversion factor of .7 in a
subsequent merger)
Warrant to purchase 168,000 shares of common stock (for an aggregate
of 1,200,000 shares before giving effect to a one-for-five reverse split and a
conversion factor of .7 in a subsequent merger.
Certificate No. 15 for 238,000 shares of common stock for an
aggregate of 1,700,000 shares before giving effect to a one-for-five reverse
split and a conversion factor of .7 in a subsequent merger.
Certificate No. RXB 0304 for 239,841 shares of common stock.
"Proceeds" of the Pledged Securities include, without limitation, any
investment, instrument, security, certificate of deposit, or other asset
purchased from time to time with the proceeds of any of the foregoing (or with
the proceeds thereof) including: any into which any of the foregoing (or such
proceeds) is "rolled" or "turned over"; any cash received on account of any of
the foregoing; and any deposit or other account to the extent that any proceeds
of any of the foregoing is deposited therein.
The Pledged Securities and any Proceeds are hereby agreed and
acknowledged by the Borrower to be a portion of the "Collateral" as defined in
the Security Agreement.
2. The Borrower represents that the Pledged Securities are held and
owned by the Borrower free and clear of all liens, encumbrances, attachments,
security interests, pledges, and charges, and is fully paid for and
nonassessable.
3. The Borrower shall:
(a) execute all such instruments, documents, and papers, and will do
all such acts as the Agent may request from time to time to carry into effect
the provisions and intent of this Agreement, including, without limitation, the
execution of stop transfer orders, stock powers, notifications to obligors on
the Pledged Securities, the providing of notifications in connection with book
entry securities or general intangibles, and the providing of instructions to
the issuers of uncertificated securities, and will do all such other acts as the
Agent may request with respect to the perfection and protection of the security
interest granted herein;
(b) keep the Pledged Securities free and clear of all liens,
encumbrances, attachments, security interests, pledges, and charges;
(c) deliver to the Agent, if and when received by the Borrower, any
item representing or constituting any of the Pledged Securities, including,
without limitation, all cash dividends and all stock certificates whether now
existing or hereafter received as a result of any stock dividends, stock splits
or other transactions;
2
(d) Upon the request of the Agent, cause the issuer of any
uncertificated securities comprising any of the Pledged Securities to issue
certificates with respect thereto;
(e) upon the request of the Agent, cause certificated securities
comprising any of the Collateral to be issued in the name of the Agent, as
pledgee;
(f) not cause or permit any of the Pledged Securities presently
evidenced by written certificates to be converted to uncertificated securities;
(g) not exercise any right with respect to the Pledged Securities
which would dilute or adversely affect the Agent's rights in the Pledged
Securities;
(h) not file any affidavit for replacement of lost stock
certificates or bonds without the Agent's prior consent; and
(i) not vote the Pledged Securities in favor of or consent to any
resolution which might impose any restrictions upon the sale, transfer, or
disposition of the Pledged Securities.
4. The Borrower shall be in default under this Agreement, a
("Default") upon the occurrence of an "Event of Default" as defined in the
Credit Agreement. Upon the occurrence of any Default, any and all Obligations of
the Borrower to the Agent shall become immediately due and payable at the option
of the Agent and without notice or demand, in addition to which the Agent may
exercise the Agent's rights and remedies upon default with respect to any
Pledged Securities.
5. Upon the occurrence of a Default and at any time thereafter the
Agent shall have all of the rights and remedies of a secured party upon default
under the Uniform Commercial Code as adopted in Massachusetts, in addition to
which the Agent may sell or otherwise dispose of the Pledged Securities and/or
enforce and collect the Pledged Securities (including, without limitation, the
liquidation of debt instruments or securities and the exercise of conversion
rights with respect to convertible securities, whether or not such instruments
or securities have matured and whether or not any penalties or other charges are
imposed on account of such action), for application toward (but not necessarily
in complete satisfaction of) the Obligations. The Borrower shall remain liable
to the Agent for any deficiency remaining following such application. Unless the
Pledged Securities threatens to decline speedily in value, or is of a type
customarily sold on a recognized market (in which event the Agent shall give the
Borrower such notice as may be practicable under the circumstances), the Agent
shall give the Borrower at least the greater of the minimum notice required by
law or ten (10) days prior written notice of the date, time and place of any
public sale thereof or of the time after which any private sale or any other
intended disposition is to be made. The Borrower acknowledges that any exercise
by the Agent of the Agent's rights upon default may be subject to compliance by
the Agent with any statute, regulation, ordinance, directive, or order of any
federal, state, municipal, or other governmental authority, including, without
limitation, any of the foregoing restricting the sale of securities. The Agent,
in its sole discretion at any such sale, may restrict the prospective bidders or
purchasers as to their number, nature of business and investment intention, and
impose without limitation, a requirement that the persons making such purchases
represent and agree, to
3
the satisfaction of the Agent, that they are purchasing the Pledged Securities
for their own account, for investment, and not with a view to the distribution
or resale thereof. The proceeds of any collection or of any sale or disposition
of the Pledged Securities held pursuant to this Agreement shall be applied
toward the Obligations in such order and manner as the Agent determines in its
sole discretion, any statute, custom, or usage to the contrary notwithstanding.
6. Upon the occurrence of an Event of Default and at any time
thereafter the Borrower hereby designates the Agent as and for the
attorney-in-fact of the Borrower to: endorse in favor of the Agent any of the
Pledged Securities; cause the transfer of any of the Pledged Securities in such
name as the Agent may, from time to time, determine; cause the issuance of
certificates for book entry and/or uncertificated securities; renew, extend, or
roll over any Pledged Securities; and make demand and initiate actions to
enforce any of the Pledged Securities. The Agent may take such action with
respect to the Pledged Securities as the Agent may reasonably determine to be
necessary to protect and preserve its interest in the Pledged Securities. The
Agent shall also have and may exercise at any time all rights, remedies, powers,
privileges, and discretions of the Borrower with respect to and under the
Pledged Securities, provided, however, the Agent shall have no right to exercise
any voting rights available to holders of the Pledged Securities at any time the
Pledged Securities are held by the Agent solely as pledgee hereunder, and
whether or not an Event of Default has occurred. All of the rights, remedies,
powers, privileges and discretions included in this Paragraph 6, may be
exercised by the Agent whether or not any of the Obligations are then due and
whether or not a Default has occurred. The within designation, being coupled
with an interest, is irrevocable until the within instrument is terminated by a
written instrument executed by a duly authorized officer of the Agent. The
within power of attorney shall not be affected by subsequent disability or
incapacity of the Borrower. The Agent shall not be liable for any act or
omission to act pursuant to this Paragraph except for any act of omission to act
which is in actual bad faith.
7. The rights, remedies, powers, privileges, and discretions of the
Agent hereunder (hereinafter, the "Agent's Rights and Remedies") shall be
cumulative and not exclusive of any rights, remedies, powers, privileges or
discretions which it otherwise may have. No delay or omission by the Agent in
exercising or enforcing any of the Agent's Rights and Remedies shall operate as,
or constitute, a waiver thereof. No waiver by the Agent of any Default or of any
default under any other agreement shall operate as a waiver of any other default
hereunder or under any other agreement. No single or partial exercise of any of
the Agent's Rights and Remedies and no other agreement or transaction of
whatever nature entered into between the Agent and the Borrower at any time
shall preclude any other exercise of the Agent's Rights and Remedies. No waiver
by the Agent of any of the Agent's Rights and Remedies on any one occasion shall
be deemed a waiver on any subsequent occasion, nor shall it be deemed a
continuing waiver. All of the Agent's Rights and Remedies may be exercised by
the Agent at such time or times and in such order of preference as the Agent in
its sole discretion may determine.
8. As used herein, the following terms have the following meanings:
(a) "Obligations" means any and all loans, advances and other credit
made by Secured Party prior to, on or after the date of this Agreement to or for
the account of the
4
Borrower, and any and all interest, commissions, obligations, liabilities,
indebtedness, charges and expenses now or hereafter chargeable against the
Borrower by the Agent or owing by the Borrower to the Agent, whether any of the
foregoing are direct or indirect, joint or several, absolute or contingent, due
or to become due, now existing or hereafter arising, no matter how or when
arising and whether under any present or future agreement or instrument between
the Borrower and the Agent or otherwise, and the performance and fulfillment by
the Borrower of all of the terms, conditions, promises, covenants and provisions
contained in this Agreement or in any note or notes secured hereby or in any
present or future agreement or instrument between the Borrower and the Agent.
Without limiting the foregoing, the Obligations of the Borrower to the Agent
shall include, without limitation, all indebtedness owed by the Borrower to the
Agent under the non-restoring equipment credit facility and revolving credit
facility described in the Credit Agreement.
9 The Agent shall have no duty as to the collection or protection of
the Pledged Securities or any income or distribution thereon, beyond the safe
custody of such of the Pledged Securities as may come into the possession of the
Agent and shall have no duty as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Agent's Rights and Remedies
may be exercised without resort or regard to any other source of satisfaction of
the Obligations.
10. This Agreement shall be binding upon the Borrower and upon the
Borrower's heirs, executors, administrators, representatives, successors, and
assigns, and shall inure to the benefit of the Agent and the Agent's successors
and assigns.
11. This Agreement and all other instruments executed in connection
with the Obligations incorporate all discussions and negotiations between the
Borrower and the Agent concerning the matters included herein and in such other
instruments. No such discussions or negotiations shall limit, modify, or
otherwise affect the provisions hereof. No modification, amendment, or waiver of
any provision of the within Agreement or of any provision of any other agreement
between the Borrower and the Agent shall be effective unless executed in writing
by the party to be charged with such modification or amendment or waiver, and if
such party be the Agent, then by a duly authorized officer thereof.
12. This Agreement and all other documents in the Agent's possession
which relate to the Obligations may be reproduced by the Agent by any
photographic, photostatic, microfilm, micro-card, miniature photographic,
xerographic, or similar process. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and any enlargement,
facsimile, or further reproduction shall likewise be admissible in evidence.
13. This Agreement, and all rights and obligations hereunder,
including matters of construction, validity, and performance, shall be governed
by the laws of The Commonwealth of Massachusetts. The Borrower submits to the
jurisdiction of the courts of said Commonwealth for all purposes with respect to
the within Agreement and the Borrower's relationships with the Agent.
5
IN WITNESS WHEREOF, the parties hereto each have executed this
Pledge Agreement as a sealed instrument as of the date first written above.
Witness: Able Laboratories, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Wadaker
------------------------------- --------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇. Wadaker
------------------------------
Title: President and CEO
-----------------------------
Witness: Citizens Bank of Massachusetts, as Agent
/s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
Print Name: ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------- ------------------------------
Title: Vice President
-----------------------------
6
