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Exhibit 99.3
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FORBEARANCE AGREEMENT
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This Forbearance Agreement ("AGREEMENT") is made this 18th day of
November, 1998 among Chrysalis International Corporation ("CHRYSALIS"), a
Delaware corporation, Chrysalis International Preclinical Services Corporation,
a Pennsylvania corporation, Chrysalis DNX Transgenic Sciences Corporation, an
Ohio corporation and Chrysalis International Clinical Services Corporation, a
Delaware corporation (the foregoing entities being hereinafter severally and
collectively referred to and obligated as "BORROWER"), and First Union National
Bank ("BANK"), a national banking association, the successor by merger to
CoreStates Bank, N.A. ("CORESTATES") and Phoenix International Life Sciences
Inc., a Canadian corporation ("BUYER").
BACKGROUND
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A. Pursuant to the terms and subject to the conditions set forth in
that certain Term Loan and Security Agreement dated as of August 29, 1997 among
Borrower and CoreStates, as amended pursuant to the terms and subject to the
conditions set forth in (i) that certain First Amendment to Term Loan and
Security Agreement dated as of September 24, 1997 among Borrower and CoreStates,
(ii) that certain Second Amendment to Loan Agreement dated as of March 16, 1998
among Borrower and CoreStates and (iii) that certain Third Amendment to Term
Loan and Security Agreement dated as of March 20, 1998, to be effective as of
February 1, 1998, among Borrower and Bank (as amended, the "LOAN AGREEMENT") and
related instruments, agreements and documents (collectively, as amended, along
with the Loan Agreement, the "FINANCING AGREEMENTS"), Borrower is currently
indebted to Bank for repayment of a term loan made by CoreStates to Borrower in
the original principal sum of Five Million ($5,000,000.00) Dollars (the "LOAN"
or "TERM LOAN"), which indebtedness is evidenced by that certain Term Note dated
August 29, 1997 in the principal sum of Five Million ($5,000,000.00) Dollars
executed and delivered by Borrower to CoreStates and held by Bank (the "NOTE").
B. To secure the existing and future debts, liabilities and obligations
of Borrower to Bank, pursuant to the terms and subject to the conditions of (i)
the Loan Agreement and that certain Security Agreement dated as of August 29,
1997 among Borrower and CoreStates (the "SECURITY AGREEMENT"), (ii) that certain
Collateral Assignment of Contracts dated as of August 29, 1997 between Chrysalis
and CoreStates (the "CONTRACT ASSIGNMENT") and (iii) that certain Stock Pledge
Agreement dated as of August 29, 1997 between Chrysalis and CoreStates (the
"STOCK PLEDGE"), Borrower granted to CoreStates and Bank holds continuing liens
on and security interests in and to the following assets and the cash and
noncash proceeds thereof (collectively, the "COLLATERAL"): all of Borrower's
existing and future accounts, chattel paper, instruments, contract rights,
investment accounts, documents, inventory, goods, equipment, general
intangibles; the issued and outstanding shares of stock of each subsidiary of
Chrysalis which is a party to the Loan Agreement and the other Financing
Agreements; and an assignment of, and a lien on and security interest in and to,
various contracts and agreements including, without limitation, certain
licensing agreements relating to DNA microinjection technology, all as more
fully described in the Loan Agreement and the Contract Assignment.
C. Borrower has acknowledged and confirms that Borrower is in default
of the Loan Agreement and the other Financing Agreements by virtue of Borrower's
failure to comply with the
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following financial covenants as of September 30, 1998 and December 31, 1998:
Section 6.1.1 of the Loan Agreement (maintenance of Current Ratio); Section
6.1.3 of the Loan Agreement (maintenance of Consolidated Tangible Net Worth);
and Section 6.1.4 (maintenance of ratio of Consolidated Total Liabilities to
Consolidated Tangible Net Worth) (collectively, the "EXISTING DEFAULTS").
Borrower further acknowledges and confirms that as a result of the occurrence of
the Existing Defaults, Bank has the unconditional right to accelerate the
Obligations and, at its option, to otherwise exercise its rights and remedies
under the Financing Agreements and applicable law against Borrower and the
Collateral.
D. Borrower has advised Bank that, concurrently herewith, pursuant to
an Agreement and Plan of Merger dated as of November 18, 1998, among Buyer,
Chrysalis and Phoenix Merger Sub Corp. ("MERGER SUB"), a Delaware corporation
and a wholly owned subsidiary of Buyer (the "AGREEMENT AND PLAN OF MERGER"), on
or before March 31, 1999 (the "MERGER DATE"), subject to the terms and
conditions set forth in the Agreement and Plan of Merger, Merger Sub shall merge
into Chrysalis (the "MERGER"), with Chrysalis being the surviving corporation in
the Merger.
E. Borrower has requested that Bank, among other things, (i) consent to
Borrower's execution of the Agreement and Plan of Merger and its consummation of
the transactions contemplated thereby (including the Merger), and (ii) refrain
from exercising its rights and remedies under the Financing Agreements and
applicable law for the period from the date of this Agreement through the
earliest of (i) the date on which the Merger is consummated, (ii) January 31,
1999 or (iii) the date on which any Terminating Event (as hereinafter defined)
occurs, and Bank is willing to do so under the terms and subject to the
conditions set forth in this Agreement and the instruments, agreements and
documents referred to in this Agreement.
F. Borrower has requested that Buyer execute and deliver to Bank an
Unconditional Guaranty ("GUARANTY") of Borrower's Obligations to Bank, secured
by a Pledge and Assignment Agreement ("PLEDGE"). Buyer's decision to execute and
deliver such Guaranty and Pledge to Bank is based in material part on the
representations, covenants and agreements herein.
NOW, THEREFORE, with the foregoing Background deemed incorporated
hereinafter by this reference and hereby made a part hereof, the parties hereto,
intending to be legally bound, hereby further covenant and agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in the Loan Agreement.
2. CONFIRMATION OF EXISTING INDEBTEDNESS. Borrower hereby acknowledges
and confirms that: the unpaid principal indebtedness of Borrower to Bank
evidenced by the Note is, as of November 6, 1998, Four Million Six Hundred
Eighty-Seven Thousand Five Hundred ($4,687,500.00) Dollars; interest on the
Obligations has been paid through October 31, 1998; and the foregoing
indebtedness, together with continually accruing interest and related costs,
fees and expenses (including attorneys' fees) is, as of the date hereof, owing
without claim, counterclaim, right of recoupment, defense or set-off of any kind
or of any nature whatsoever.
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3. RATIFICATION OF FINANCING AGREEMENTS.
(a) Borrower hereby ratifies and confirms and reaffirms in all
respects and without condition, all of the terms, covenants and conditions set
forth in the Financing Agreements and agrees that Borrower remains liable to
Bank in accordance with the respective terms, covenants and conditions of such
instruments, agreements and documents, and that all liens, security interests,
assignments and pledges encumbering the Collateral, created pursuant to and/or
referred to in the Loan Agreement, the Security Agreement, the Contract
Assignment, the Pledge Agreement and the other Financing Agreements are first
priority liens, security interest, assignments and pledges (subject only to
Permitted Liens), continue unimpaired, are in full force and effect, and secure
and shall continue to secure all of the Obligations of Borrower to Bank
including, without limitation, the Obligations evidenced by the Note.
(b) Without limiting the generality of the foregoing, Borrower
hereby further ratifies and confirms and reaffirms that the Collateral includes
all right, title and interest of Borrower in, to and under Borrower's exclusive
license under U.S. Patent 4,873,191 entitled "The Genetic Transformation of
Zygotes" covering the use of DNA microinjection to create non- human transgenic
mammals (the "PATENT") and all nonexclusive fee- and royalty-based sublicenses
for three primary applications under the Patent and any future sublicenses under
the Patent.
4. CONSENT. Subject to satisfaction of all conditions precedent set
forth in this Agreement, Bank consents, for all purposes of the Financing
Agreements, to Borrower's (i) execution of the Transaction Documents (as that
term is defined in the Agreement and Plan of Merger, and (ii) consummation by
Borrower of the transactions (including the Merger) contemplated by the
Transaction Documents.
5. FORBEARANCE PERIOD; TERMINATING EVENTS. Bank agrees to forbear from
exercising its rights and remedies under the Financing Agreements and applicable
law which Bank is entitled to exercise as a result of the occurrence of the
Existing Default during the period (the "FORBEARANCE PERIOD") commencing on the
date of this Agreement and ending on the earliest to occur of (i) January 31,
1999, (ii) the date on which the Merger is consummated or (iii) the date on
which any Terminating Event (as hereinafter defined) occurs (the "FORBEARANCE
TERMINATION DATE"). For the purposes of this Agreement, the term "Terminating
Event" shall mean the occurrence of any of the following events:
(a) Any breach, default, violation or event of default (howsoever
defined) under any of the Financing Agreements, other than the Existing
Defaults, which remains unremedied for six (6) Business Days after the date of
Bank's written notice to Borrower and Buyer of such breach, default, violation
or event of default; provided, however, no notice shall be required for any
failure of Borrower to pay any principal, interest or other sum when due and no
grace, notice or cure period shall be applicable to any such payment failure;
(b) The occurrence of any breach of warranty or representation or
covenant set forth in this Agreement or the occurrence of any default, violation
or event of default (howsoever defined) under any of the instruments, agreements
or documents executed and/or delivered pursuant to Section 8 of this Agreement
(the "FORBEARANCE AGREEMENTS"); or
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(c) The occurrence of any breach, default, violation or event of
default (howsoever defined) which is material, or termination under the
instruments, agreements and documents now or hereafter executed and exchanged in
connection with the Merger including, without limitation, the Agreement and Plan
of Merger.
On the Forbearance Termination Date, without further notice to Borrower or any
other action on the party of Bank to be taken, all Obligations shall be
immediately due and payable.
6. EXTENSION OF FORBEARANCE TERMINATION DATE. Subject to satisfaction
of the following conditions (all instruments, agreements and documents to be in
form and substance satisfactory to Bank and its counsel), Bank agrees to (i)
extend the Forbearance Period through the earliest to occur of (A) Xxxxx 00,
0000, (X) the date on which the Merger is consummated or (C) the date on which
any Terminating Event occurs, (ii) to release to Borrower the cash collateral
described in Subparagraph 8(e) of this Agreement for use by Borrower in the
ordinary course of its business consistent with the Agreement and Plan of
Merger, so long as the Agreement and Plan of Merger is in full force and effect;
(iii) should satisfaction of the following conditions occur prior to December
31, 1998, to waive the requirement that Borrower make a principal payment on
account of the Obligations on such date; and (iv) to waive any default (in
addition to the Existing Defaults) which may arise as of December 31, 1998 as a
result of the financial condition of Borrower as of such date:
(a) No Terminating Event shall have occurred and be continuing;
(b) Buyer shall execute and deliver to Bank the Guaranty and Pledge;
(c) Pursuant to the Pledge, to secure its liabilities and
obligations under the Guaranty, Buyer shall pledge and assign to Bank a
Bank-issued certificate of deposit (or other investment property satisfactory to
Bank in its sole and absolute discretion) in an amount (or having a value) equal
to the then-outstanding principal balance of the Loan and an amount equal to
thirty (30) days' accrual of interest on such outstanding principal balance at
the non-default rate set forth in the Note (which amount may be subject to
increase in the event the rate of interest set forth in the Note changes), it
being understood, acknowledged and agreed that under the Guaranty, Bank shall
have recourse as against Buyer only to the collateral described in this
Subparagraph; and
(d) Buyer and Borrower hereby unconditionally acknowledge and agree
that, upon the occurrence of any Terminating Event including, without
limitation, the occurrence of any of the Events of Default set forth at Section
7.1.7 of the Loan Agreement, [without further notice to Borrower or Buyer,] Bank
shall have the right, in its sole and absolute discretion, to apply the sums
pledged to secure the Guaranty to satisfy the Guaranty, upon the satisfaction of
which, Bank shall absolutely and irrevocably transfer, convey, assign, endorse
and deliver to Buyer all of Bank's right, title and interest in and to the
Financing Agreements, the Loan, the Note and all mortgages, security interests
and liens securing or evidencing the same, free and clear of liens, claims and
encumbrances, without representation, warranty or recourse of any kind, except
that Bank has not previously sold, assigned or transferred the same, has title
to, and the authority to do so, and that the amount applied to satisfy the
Guaranty is the amount due by Borrower to Bank, and Buyer shall be subrogated to
the rights of Bank in, to and under the Financing Agreements and the Forbearance
Agreements. Borrower acknowledges and agrees that
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upon Buyer's satisfaction of its obligations under the Guaranty, Buyer shall be
subrogated to the rights of Bank, shall be entitled to assert all rights and
remedies against Borrower under the Financing Agreements, the Loan and the Note
and shall hold all rights of Bank under the Financing Agreements, the Loan, the
Note and the Forbearance Agreement.
7. REPRESENTATIONS AND WARRANTIES. All representations and warranties
set forth in the Loan Agreement and the other Financing Agreements are hereby
reasserted and restated by Borrower, without qualification, as of the date
hereof as if set forth at length herein. As a further inducement to Bank and
Buyer to enter into this Agreement and the Guaranty and Pledge, Borrower further
represents and warrants to Bank and Buyer as follows:
(a) Borrower has the power, authority and capacity to enter into and
perform this Agreement and the Forbearance Agreements and have, as applicable,
taken all proper and necessary action to authorize the execution, delivery and
performance of this Agreement and the Forbearance Agreements;
(b) This Agreement and Forbearance Agreements are or, when delivered
will be, valid, binding and enforceable against the Borrower in accordance with
their respective terms;
(c) No consent, approval or authorization of, or filing,
registration or qualification with, any person or entity is required to be
obtained by Borrower in connection with the execution and delivery of this
Agreement and the Forbearance Agreements, or any undertaking or performance of
any liability or obligation hereunder or thereunder including, without
limitation, the consent or approval of any holder of any subordinated
indebtedness of Borrower;
(d) The execution and delivery of this Agreement and the Forbearance
Agreements and the performance by Borrower of their obligations hereunder and
thereunder will not conflict with, or result in breach of, any of the terms,
covenants and provisions of any charter or bylaw provision of Borrower, or any
judgment, writ, injunction or decree of any court or governmental authority, or
any material agreement or instrument to which any Borrower is a party or by
which any Borrower is or may be bound;
(e) To the best of Borrower's knowledge, no representation or
warranty by Borrower contained in the Agreement and Plan of Merger, this
Agreement, or any Forbearance Agreements contains any untrue statements of
material fact or omits to stating a material fact necessary to make such
representation or warranty not misleading in light of the circumstances under
which it was made;
(f) Except for the Existing Defaults, to the best of Borrower's
knowledge, no default, violation or Event of Default (howsoever defined) under
the Financing Agreements, and no event which, with the passage of time or the
giving of notice, or both, could constitute any such default, violation or Event
of Default, has occurred and is continuing;
(g) Except as disclosed is the Company Disclosure Schedule (as that
term is defined in the Agreement and Plan of Merger), there are no judgments or
judicial or administrative orders or proceedings pending, or to the knowledge of
any Borrower threatened against or affecting any Borrower or the property of any
Borrower in any court or before any
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governmental authority or arbitration board or tribunal that has had or
reasonably could be expected to have a material adverse effect on Borrowers; and
(h) The Agreement and Plan of Merger and all related instruments,
agreements and documents (collectively, the "MERGER AGREEMENTS") are valid,
binding and enforceable against the parties thereto in accordance with their
respective terms and is in full force and effect.
(i) All obligations and commitments of Bank or its predecessors to
loan or advance funds or to provide any financial accommodations under the
Financing Agreements have been fully and timely satisfied and performed, and
Borrower shall not increase the principal amount of the existing indebtedness as
of November 6, 1998.
Borrower hereby expressly acknowledges that the foregoing representations and
warranties are being specifically relied upon by Bank and Buyer as a material
inducement to Bank and Buyer to enter into this Agreement and to forbear from
exercising Bank's rights and remedies under the Financing Agreements. The
foregoing warranties and representations shall survive the execution and
exchange of this Agreement and the delivery of the instruments, agreements and
documents referred to in this Agreement.
8. CONDITIONS PRECEDENT. As a condition precedent to this Agreement,
including the agreement of Bank to forbear from exercising its rights and
remedies under the Financing Agreements, Borrower shall provide to Bank (or
cause to be provided to Bank) the following (all instruments, agreements and
documents to be in form and substance satisfactory to Bank and its counsel):
(a) This Agreement;
(b) Certified (as of the date of this Agreement) copies of
resolutions of Borrower's Board of Directors authorizing the execution, delivery
and performance of this Agreement and the Forbearance Agreements;
(c) Certificates (dated the date of this Agreement) of Borrower's
corporate secretary as to the incumbency and specimen signatures of the officers
of Borrower executing this Agreement and the Forbearance Agreements;
(d) Borrower shall cause Buyer and Merger Sub to acknowledge that
Bank holds a lien on and security interest in and to Borrower's right to receive
the consideration, if any, payable to Borrower upon termination of the Agreement
and Plan of Merger;
(e) The assignment and pledge to Bank of not less than Three Million
($3,000,000.00) Dollars of United States Treasury securities acceptable to Bank
in its exclusive discretion, together with the establishment of a pledge account
(the "Pledge Account") for such securities and the execution and exchange of
such instruments, agreements and documents as may be necessary to perfect Bank's
liens on and security interests in and to such pledged securities;
(f) An instrument (in form recordable with the United States Patent
and Trademark Office) pursuant to which Borrower confirms that Bank has a lien
on and security
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interest, and all rights of Borrower in, to and under, the exclusive license for
the Patent and all rights in, to and under all existing and future sublicenses
for the Patent and processes thereunder;
(g) Evidence of the execution and delivery of the Agreement and Plan
of Merger and the other Merger Agreements;
(h) Payment to Bank of a forbearance fee in the amount of Fifty
Thousand ($50,000.00) Dollars;
(i) Payment of all outstanding fees and reasonable expenses of Bank
in connection with the Financing Agreements, including fees and disbursements of
counsel to Bank; and
(j) Such other instruments, agreements and documents as may be
required by Bank and/or its counsel.
9. COVENANTS DURING THE FORBEARANCE PERIOD.
(a) Borrower shall comply with all terms, covenants and conditions
set forth in the Loan Agreement and the other Financing Agreements. Without
limiting the generality of the foregoing, Borrower shall continue to pay
interest as and when due on the outstanding principal balance of the Term Loan;
provided, however, absent the existence of any Terminating Event, on December
31, 1998, Bank agrees that Three Hundred Twelve Thousand Five Hundred
($312,500.00) Dollars of the Cash Collateral maintained in the Pledge Account
referred to above may be used to pay the principal payment owing as of such
date, if such Cash Collateral is then being maintained in the Pledge Account.
(b) Borrower shall comply in all material respects with all
covenants to be performed by it under the Agreement and Plan of Merger and the
other Merger Agreements.
(c) Borrower shall furnish to Bank a copy of any notice received
from Buyer or Merger Sub, and shall give prompt, written notice to Bank of any
knowledge of the occurrence of any default, violation or event of default under
the Agreement and Plan of Merger and the other Merger Agreements.
(d) Borrower shall not borrow, and Bank shall not advance funds so
as to cause an increase in the principal amount of the indebtedness, except as
Bank may deem necessary to preserve and protect its loan and Collateral
positions.
10. SUBORDINATED INDEBTEDNESS. Reference is made to that certain
Subordination Agreement dated March 16, 1998 among Chrysalis, Panlabs
International, Inc. ("CREDITOR"), a Washington corporation, and CoreStates (the
"SUBORDINATION AGREEMENT"). Borrower acknowledges that, pursuant to Paragraph
2.3 of the Subordination Agreement, Bank has the right to declare that all
payments on account of Subordinated Indebtedness owing Creditor, with a
denominated principal, interest, indemnification payments or otherwise, shall
cease for the Blockage Period (as defined in the Subordination Agreement).
Nothing set forth in this Agreement, including the agreement on the part of Bank
to forbear through the Forbearance Termination Date, shall impair the ability of
Bank to give notice to Creditor of the commencement
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of a "Blockage Period" (as defined in the Subordination Agreement), and all
rights of Bank to give such notice and otherwise take action in respect of the
Subordination Agreement are hereby expressly reserved.
11. POWER OF ATTORNEY. Each of the officers of Bank or its successor in
interest is hereby irrevocably made, constituted and appointed the true and
lawful attorney for each Borrower (without requiring any of them to act as such)
with full power of substitution to do the following: endorse the name of any
Borrower upon any and all checks, drafts, money orders and other instruments for
the payment of monies that are payable to any Borrower and constitute proceeds
of assets liened in favor of Bank.
12. DISGORGEMENT. If Bank is, for any reason, compelled by a court or
other tribunal of competent jurisdiction to surrender or disgorge any payment,
interest or other consideration described hereunder to any person because the
same is determined to be void or voidable as a preference, fraudulent
conveyance, impermissible set-off or for any other reason, such Obligations or
part thereof intended to be satisfied by virtue of such payment, interest or
other consideration shall be revived and continue as if such payment, interest
or other consideration had not been received by Bank, and Borrower shall be
liable to, and shall indemnify, defend (engaging counsel acceptable to Bank) and
hold Bank harmless for, the amount of such payment or interest surrendered or
disgorged. The provisions of this Paragraph shall survive execution and exchange
or this Agreement and the termination of the Financing Agreements.
13. NO DEFENSES; RELIANCE. Borrower hereby confirm and reconfirm that
there are no existing defenses, claims, counterclaims or rights of recoupment or
set-off against Bank in connection with the negotiation, preparation, execution,
performance or any other matters relating to the Financing Agreements or this
Agreement. It is hereby and thereby further acknowledged and agreed that
notwithstanding anything to the contrary set forth in this Agreement, Bank has
and shall have no obligation to (i) further amend the Financing Agreements, or
otherwise further restructure the Obligations, (ii) make any further loans,
advances or extension of credit to or for the benefit of Borrower, (iii) extend
the Forbearance Period or the Forbearance Termination Date, (iv) refrain from
terminating the Forbearance Period upon the occurrence of any Terminating Event
or (v) enter into any other instruments, agreements or documents regarding any
of the same with any Borrower, and that neither Bank nor its representatives
have made any agreements with, or commitments or representations or warranties
to, any Borrower (either in writing or orally) other than as expressly stated in
this Agreement. Nothing contained in this Agreement, or any compliance with the
terms of this Agreement or any of the instruments, agreements or documents
referred to in this Agreement, shall impose any obligation on the part of Bank
to consummate a further restructure of the Obligations.
14. BANK RELIANCE. Borrower expressly understand and further agree that
Bank is relying on all terms, covenants, conditions, warranties and
representations set forth in this Agreement including, without limitation,
Bank's right to terminate the Forbearance Period at any time upon the occurrence
of a Terminating Event, as a material inducement to Bank to enter into this
Agreement.
15. RELEASE. In consideration of the accommodations being made
available by Bank to or for the benefit of Borrower under this Agreement
including, without limitation, the forbearance on the part of Bank, Borrower,
for themselves and their respective heirs, personal representatives,
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agents, employees, successors and assigns, do hereby remise, release and forever
discharge Bank and its agents, employees, representatives, officers, successors
and assigns of and from any and all claims, counterclaims, demands, actions and
causes of action of any nature whatsoever, whether at law or in equity
including, without limitation, any of the foregoing arising out of or relating
to the transactions described in this Agreement, or any proposed financing
arrangements to or for the benefit of any Borrower or any entities owned by or
under the control of any Borrower, which against Bank or its agents, employees,
representatives, officers, successors or assigns, or any of them, any Borrower
now has or hereafter can or may have for or by reason of any cause, matter or
thing whatsoever, from the beginning of the world to the date of this Agreement.
16. INDEMNIFICATION. From and after the date of this Agreement,
Borrower, severally and collectively, shall indemnify, defend and hold harmless
Bank and its agents, employees, representatives, attorneys, successors and
assigns (severally and collectively, the "Indemnified Parties") against and from
any and all liability for, and against and from all losses or damages
Indemnified Parties may suffer as a result of, any claim, demand, cost, expense,
or judgment of any type, kind, character or nature (including attorneys' fees
and court costs), which Indemnified Parties shall incur or suffer as a result of
(i) any act or omission of Borrower or any of their agents or representatives in
connection with the transactions described in this Agreement and any of the
instruments, agreements and documents referred to in this Agreement, (ii) the
inaccuracy of any of the representations or warranties of Borrower, and (iii)
the breach of any of the respective covenants set forth herein of Borrower. This
indemnification shall survive execution and exchange of this Agreement.
17. WAIVERS.
(a) Borrower hereby waives the benefit of any theory or statute
requiring the marshaling of assets or other similar legal doctrine and agree
that Bank may exercise its rights against the Collateral and apply the proceeds
thereof to any of the Obligations, as aforesaid.
(b) Borrower hereby renounces any rights of notification of sale
Borrower may have pursuant to Section 9504(c) of the Uniform Commercial Code as
enacted in the Commonwealth of Pennsylvania; Borrower acknowledge that this
renunciation is intended to be a renunciation after default, as described in
Section 9504(c) of the Uniform Commercial Code.
18. NO COERCION. Borrower hereby represents and warrants that they are
fully aware of the terms set forth in this Agreement and have voluntarily, and
without coercion or duress of any kind, entered into this Agreement intending to
be legally bound by its terms.
19. APPLICABLE LAW. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, without giving effect to principles of conflicts
of laws.
20. JURY TRIAL WAIVER. BORROWER HEREBY IRREVOCABLY WAIVES TRIAL BY JURY
AND ANY RIGHT THERETO, AND CONSENT TO THE JURISDICTION
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OF THE COURTS OF PHILADELPHIA COUNTY, PENNSYLVANIA, AND AGREES NOT TO RAISE ANY
OBJECTION TO SUCH JURISDICTION, OR TO THE LAYING OF THE VENUE IN SUCH
COMMONWEALTH, AND FURTHER AGREES THAT SERVICE OF PROCESS MAY BE DULY EFFECTED
UPON THEM BY SERVICE BY CERTIFIED MAIL OR NATIONALLY RECOGNIZED OVERNIGHT
COURIER SERVICE, CHARGES PREPAID, TO THE ADDRESSES SET FORTH ON THE FIRST PAGE
OF THIS AGREEMENT.
21. EXPENSES. On demand, Borrower will pay all reasonable expenses,
including the reasonable fees and expenses of legal counsel for Bank, incurred
in connection with the administration, amendment, modification or enforcement of
this Agreement and the collection or attempted collection of any of the debts,
liabilities and obligations referred to in this Agreement.
22. INTEGRATION. This Agreement and the instruments, agreements and
documents referred to in this Agreement shall be deemed incorporated into and
made a part of the Loan Agreement, the Note and the other Financing Agreements.
All such instruments, agreements and documents, and this Agreement, shall be
construed as integrated and complementary of each other, and as augmenting and
not restricting Bank's rights, remedies, benefits and security. If, after
applying the foregoing an inconsistency still exists, the provisions of this
Agreement shall constitute and amendment to the Financing Agreements and shall
control.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25. NO OBLIGATION. Nothing set forth herein shall obligate Buyer to
enter into the Guaranty or Pledge, and Buyer shall have no liability to Bank
unless and until the execution and delivery by Buyer and Bank of mutually
satisfactory written agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Forbearance
Agreement to be executed the day and year first above written.
CHRYSALIS INTERNATIONAL
CORPORATION, a Pennsylvania corporation
By: /s/ Xxxx X. Scmittt
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman, President and CEO
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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CHRYSALIS INTERNATIONAL PRECLINICAL
SERVICES CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxx X. Scmittt
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
CHRYSALIS DNX TRANSGENIC SCIENCES
CORPORATION, an Ohio corporation
By: /s/ Xxxx X. Scmittt
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and CEO
CHRYSALIS INTERNATIONAL CLINICAL
SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Scmittt
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
PHOENIX INTERNATIONAL LIFE
SCIENCES INC.
By: /s/ Xxxx-Xxxx Xxxxx
---------------------------------
Name: Xxxx-Xxxx Xxxxx
Title: Senior Vice President and Secretary
11
