PLEDGE AGREEMENT AND ASSIGNMENT
EXHIBIT 10.10
PLEDGE
AGREEMENT AND ASSIGNMENT
PLEDGE
AGREEMENT (as amended, restated, supplemented or modified, from time to
time, the “Agreement”) dated as of August 7, 2007 by and between and among each
of the persons and entities identified on the signature page hereto under the
heading “Pledgors” (each and collectively, “Pledgor” or the “Pledgors”) and
MANUFACTURERS AND TRADERS TRUST COMPANY, having an ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇&▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ Attention: Office of General Counsel (the
“Pledgee”).
RECITALS
A. Pursuant
to a Revolving Line of Credit Note and Credit Agreement in the amount of
$6,000,000.00 issued by Emerging Vision, Inc., a New York State corporation
(the “Borrower”) in favor of Pledgee (as hereinafter amended, restated,
supplemented, extended or otherwise modified, collectively, the “Note”), dated
as of the date hereof, the Borrower will receive loans and other financial
accommodations from the Pledgee and will incur Obligations (as defined in the
Note and Guaranty).
B. Pursuant
to a Continuing Guaranty of all Obligations of the Borrower to Pledgee executed
and delivered by Pledgor, a subsidiary of Borrower, dated as of the date hereof,
issued by the Pledgor in favor of the Pledgee (as hereinafter amended, restated,
supplemented, extended or otherwise modified, the “Guaranty”), Pledgor has
guaranteed the payment by the Borrower of all its Obligations (the obligations
of such Pledgor under such Guaranty are hereinafter referred to, collectively,
as the “Guaranty Obligations”).
C. Pledgor
is the beneficial owner of that percentage of the issued and outstanding capital
stock of 1725758 Ontario Inc.,
d/b/a The Optical Group, a corporation governed under the laws of the Province
of Ontario (the “Pledged Company”) as indicated on Schedule A
attached hereto.
D. In
order to induce the Pledgee to extend credit to the Borrower on and after the
date hereof pursuant to the Note, Pledgor wishes to grant to the Pledgee
security and assurance in order to secure the payment and performance of all
its/his, as the case may be, Guaranty Obligations, and to that effect to pledge
and assign to the Pledgee, all of the issued and outstanding capital stock
of
the Pledged Company (the “Pledged Shares” or the “Pledged Interests”) that is
owned by such Pledgor, including, without limitation, the Pledged Interests
listed opposite the name of such Pledgor as more particularly described on
Schedule A and, with respect to the Pledged Shares, as represented by the stock
certificates referenced thereon.
Accordingly,
the parties hereto agree as follows:
1. Security
Interest. As security for the Guaranty Obligations,
including any and all renewals or extensions thereof, (each, if more than one)
Pledgor hereby delivers, pledges and assigns to the Pledgee and creates in
the
Pledgee a first security interest in all of such Pledgor’s right, title and
interest in and to all of the Pledged Interests, together with all rights and
privileges of such Pledgor with respect thereto, all proceeds, income and
profits thereof and all property received with respect to the Pledged Interests
in addition thereto, in exchange thereof or in substitution therefor
(collectively, the “Collateral”). Each, if more than one, Pledgor has
delivered to the Pledgee, with respect to the Pledged Shares existing on the
date hereof, certificates evidencing such Pledged Shares, together with undated
stock power(s) duly executed in blank by such Pledgor.
2. Dividends,
Options, or Other Adjustments. The Pledgee shall
receive, as Collateral, any and all additional shares of stock or other property
of any kind distributable on or by reason of the Collateral pledged hereunder,
whether in the form of or by way of dividends, warrants, partial liquidation,
conversion, prepayments or redemptions (in whole or in part), liquidation,
or
otherwise with the exceptions of cash dividends or other cash distributions
to
the extent permitted under Section 7(a) hereof. If any additional
shares of capital stock, instruments, or other property against which a security
interest can only be perfected by possession by the Pledgee, which are
distributable on or by reason of the Collateral pledged hereunder, shall come
into the possession or control of a Pledgor, such Pledgor shall, hold or control
in trust and forthwith transfer and deliver the same to the Pledgee subject
to
the provisions hereof.
3. Delivery
of Share Certificates; Stock Powers; Documents. Pledgor
agrees to deliver all share certificates, undated stock powers duly executed
in
blank, documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Pledgee may request to carry out the terms
of this Agreement or to protect or enforce the lien and security interest in
the
Collateral hereunder granted hereby to the Pledgee and further agrees to do
and
cause to be done, upon the Pledgee’s request, all things reasonably determined
by the Pledgee to be necessary to perfect and keep in full force the lien in
the
Collateral hereunder granted hereby in favor of the Pledgee, including, but
not
limited to, the prompt payment of all documented out-of-pocket fees and expenses
incurred in connection with any filings made to perfect or continue the lien
and
security interest in the Collateral hereunder granted hereby in favor of the
Pledgee. Pledgor agrees to make appropriate entries upon its books
and records (including without limitation its stock record and transfer books)
disclosing the lien against the Collateral hereunder granted hereby to the
Pledgee hereunder. Pledgor further agrees to promptly deliver to the
Pledgee, or cause the corporation or other entity issuing the Collateral to
deliver directly to the Pledgee, share certificates or other documents
representing Collateral acquired or received after the date of this Agreement
with an undated stock power duly executed by such Pledgor in
blank. If at any time the Pledgee notifies any Pledgor that
additional stock powers endorsed in blank with respect to the Collateral are
required, such Pledgor shall promptly execute in blank and deliver such stock
powers as the Pledgee may request.
4. Power
of Attorney. The Pledgor hereby constitutes and
irrevocably appoints the Pledgee, with full power of substitution and revocation
by the Pledgee, as Pledgor’s true and lawful attorney-in-fact, to the full
extent permitted by law, at any time or times when an Event of Default has
occurred and is continuing to affix to certificates and documents representing
the Collateral the stock power delivered with respect thereto, to transfer
or
cause the transfer of the Collateral, or any part thereof on the books of the
corporation or other entity issuing the same, to the name of the Pledgee or
the
Pledgee’s nominee and thereafter to exercise as to such Collateral all the
rights, powers and remedies of an owner. The power of attorney
granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect the Pledgee ’s interest in the
Collateral and shall not impose any duty upon the Pledgee to exercise any
power. Subject to Section 11 hereof, this power of attorney shall be
irrevocable as one coupled with an interest.
5. Inducing
Representations of the
Pledgor(s). Each, if more than
one, Pledgor makes the following representations and warranties to the Pledgee;
each and all of which shall survive the execution and delivery of this
Agreement:
(a) The
information concerning the Pledged Company and such Pledgor’s beneficial
ownership of the Pledged Interests thereof that is contained in Schedule A
is
correct in all respects.
(b) Such
Pledgor is the sole legal and beneficial owner of, and has good and indefeasible
title to, the Pledged Interests pledged by such Pledgor, free and clear of
all
pledges, liens, security interests and other encumbrances and restrictions
on
the transfer and assignment thereof, other than the security interest created
by
this Agreement and has the unqualified right and authority to execute this
Agreement and to pledge the Collateral to the Pledgee as provided for
herein.
(c) There
are no outstanding options, warrants or other agreements to which the Pledged
Company or such Pledgor is a party with respect to the Pledged Interests pledged
by such Pledgor.
(d) The
Pledged Shares pledged by such Pledgor have been validly issued and are fully
paid and non-assessable; the holder or holders of the Pledged Interests are
not
and will not be subject to any personal liability as such holder under any
applicable law; and are not subject to any charter, by-law, statutory,
contractual or other restrictions governing their issuance, transfer, ownership
or control.
(e) Any
consent, approval or authorization of or designation or filing with any
authority on the part of such Pledgor which is required in connection with
the
pledge and security interest granted under this Agreement has been obtained
or
effected.
(f) The
execution and delivery of this Agreement by such Pledgor, and the performance
by
such Pledgor of its obligations hereunder, will not result in a violation of
any
mortgage, indenture, contract, instrument, judgment, decree, order, statute,
rule or regulation to which such Pledgor is subject.
(g) Such
Pledgor has delivered to the Pledgee all instruments and stock certificates,
if
any, representing the Pledged Shares, duly endorsed in blank or accompanied
by
an assignment or assignments sufficient to transfer title thereto.
6. Obligations
of the Pledgor. Each Pledgor hereby covenants and agrees
with the Pledgee as follows:
(a) Such
Pledgor will not sell, transfer or convey any interest in, or suffer or permit
any lien or encumbrance to be created upon or with respect to, any of the
Collateral (other than as created under this Agreement) during the term of
the
pledge established hereby.
(b) Such
Pledgor will, at its own expense, at any time and from time to time at the
Pledgee’s request, do, make, procure, execute and deliver all acts, things,
writings, assurances and other documents as may be required by the Pledgee
to
further enhance, preserve, establish, demonstrate or enforce the Pledgee’s
rights, interests and remedies created by, provided in, or emanating from,
this
Agreement.
7. Rights
of the Pledgor(s). So long as no
Event of Default has occurred and is continuing, and so long as the Pledgee
has
not transferred the Collateral to its own name under Section 8
hereof:
(a) Pledgor
shall be entitled to receive and retain any cash dividends and other cash
distributions paid on its respective Collateral, in each case, solely to the
extent permitted pursuant to the Note.
(b) Pledgor
shall be entitled to vote or consent or grant waivers or ratifications with
respect to its respective Collateral in any manner not inconsistent with this
Agreement, the Note or any other Loan Document. Pledgor hereby
grants to the Pledgee an irrevocable proxy, which proxy shall be
effective immediately upon the occurrence of and during the continuance of
an
Event of Default or registration of the Collateral in the name of the Pledgee
pursuant to Section 8 hereof, to vote the Collateral. Upon request of
the Pledgee, Pledgor agrees to deliver to the Pledgee such further evidence
of
such irrevocable proxy or such further irrevocable proxy to vote the Collateral
during the continuance of an Event of Default as the Pledgee may
request.
8. Rights
of the Pledgee. At any time when an Event of Default has
occurred and is continuing, the Pledgee may in its sole discretion:
(a) Cause
the Collateral to be transferred to its name or to the name of its nominee
or
nominees and thereafter exercise as to such Collateral all of the rights, powers
and remedies of an owner.
(b) Collect
by legal proceedings or otherwise all dividends, interest, principal payments,
capital distributions and other sums now or hereafter payable on account of
said
Collateral, and hold the same as part of the Collateral, or apply the same
to
any of the Guaranty Obligations in such manner and order as the Pledgee may
decide in its sole discretion.
(c) Enter
into any extension, subordination, reorganization, deposit, merger, or
consolidation agreement, or any other agreement relating to or affecting the
Collateral, and in connection therewith deposit or surrender control of the
Collateral thereunder, and accept other property in exchange therefor and hold
and apply such property or money so received in accordance with the provisions
hereof.
(d) Discharge
any taxes, liens, security interests or other encumbrances levied or placed
on
the Collateral or pay for the maintenance and preservation of the Collateral;
the amount of such payments, plus any and all fees, costs and expenses of the
Pledgee (including reasonable attorneys’ fees and disbursements) in connection
therewith shall, at the Pledgee’s option, be (i) reimbursed by the Pledgor(s) on
demand, with interest thereon from the date paid by Pledgee at two percent
(2%)
per annum above the Base Rate or (ii) added to the Guaranty Obligations secured
hereby; provided that recourse of the Bank with respect to reimbursement by
Pledgor(s) of such fees, costs and expenses shall be limited as provided in
Section 11 of the Guaranty.
9. Event
of Default; Remedies. Upon the occurrence and
continuance of an Event of Default:
(a) In
addition to all the rights and remedies of a secured party under applicable
law,
the Pledgee shall have the right, and without demand of performance or other
demand, advertisement or notice of any kind, except as specified below, to
or
upon any Pledgor or any other Person (all and each of which demands,
advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one
or
more parcels at public or private sale or sales at any stock exchange or
broker’s board or at any of the Pledgee’s offices or elsewhere at such prices
and on such terms (including, without limitation, a requirement that any
purchaser of all or any part of the Collateral shall be required to purchase
any
securities constituting the Collateral solely for investment and without any
intention to make a distribution thereof) as the Pledgee in its sole and
absolute discretion deems appropriate without any liability for any loss due
to
decrease in the market value of the Collateral during the period
held. The Pledgee agrees that if notice of sale shall be required by
law such notification shall be deemed reasonable and properly given if mailed
to
the Pledgor(s), postage prepaid, at least five (5) days before any such
disposition, to the address indicated in Section 13(d) below. Any
disposition of the Collateral or any part thereof may be for cash or on credit
or for future delivery without assumption of any credit risk, with the right
of
the Pledgee to purchase all or any part of the Collateral so sold at any such
sale or sales, public or private, free of any equity or right of redemption
in
any Pledgor, which right or equity is, to the extent permitted by applicable
law, hereby expressly waived and released by the Pledgor(s).
(b) All
of the Pledgee’s rights and remedies, including but not limited to the
foregoing, shall be cumulative and not exclusive and shall be enforceable
alternatively, successively or concurrently as the Pledgee may deem
expedient.
(c) The
Pledgee may elect to obtain (at the Pledgor’s expense) the advice of any
independent investment banking firm with respect to the method and manner of
sale or other disposition of any of the Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any
other
details concerning such sale or disposition. The Pledgee, in its sole
discretion, may elect to sell on such credit terms which it deems
reasonable. The sale of any of the Collateral on credit terms shall
not relieve any Pledgor of its liability under any Loan Document until its
Guaranty Obligations have been paid in full. All payments received by
the Pledgee in respect of a sale of Collateral shall be applied to the Guaranty
Obligations in the manner provided in Section 10 hereof, as and when such
payments are received; provided that recourse of the Bank with respect to such
payment by any Pledgor shall be limited as provided in Section 11 of the
Guaranty.
(d) Pledgor
recognizes that the Pledgee may be unable to effect a public sale of all or
a
part of the Collateral by reason of certain prohibitions contained in any
applicable securities law, but may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to agree, among
other things, to acquire the Collateral for their own account, for investment
and not with a view for the distribution or resale thereof. Pledgor
agrees that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sale, and
that the Pledgee has no obligation to delay the sale of any Collateral for
the
period of time necessary to permit the registration of the Collateral for public
sale under the Securities Act of 1933, as amended. Pledgor
agrees that a private sale or sales made under the foregoing circumstances
shall
be deemed to have been made in a commercially reasonable manner.
(e) If
any consent, approval or authorization of any state, municipal or other
governmental department, agency or authority should be necessary to effectuate
any sale or other disposition of the Collateral, or any partial disposition
of
the Collateral, Pledgor will execute all such applications and other instruments
as may be required in connection with securing any such consent, approval or
authorization, and will otherwise use its best efforts to secure such sale
or
other disposition of the Collateral as the Pledgee may reasonably deem necessary
pursuant to the terms of this Agreement.
(f) Upon
any sale or other disposition, the Pledgee shall have the right to deliver,
assign and transfer to the purchaser thereof the Collateral so sold or disposed
of. Each purchaser at any such sale or other disposition (including
the Pledgee) shall hold the Collateral free from any claim or right of
Pledgor of whatever kind, including any equity or right of redemption of
any Pledgor. Pledgor specifically waives, to the extent permitted by
applicable laws, all rights of redemption, stay or appraisal which it had or
may
have under any rule of law or statute now existing or hereafter
adopted.
(g) The
Pledgee shall not be obligated to make any sale or other disposition, unless
the
terms thereof shall be satisfactory to it. The Pledgee may, subject
to applicable laws, without notice or publication, adjourn any private or public
sale, and, upon five (5) days’ prior notice to the applicable Pledgor, hold such
sale at any time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Collateral, on credit or future
delivery, the Collateral so sold may be retained by the Pledgee until the
selling price is paid by the purchaser thereof, but the Pledgee shall incur
no
liability in the case of the failure of such purchaser to take up and pay for
the property so sold and, in case of any such failure, such property may again
be sold as herein provided.
10. Disposition
of Proceeds.
(a) The
proceeds of any sale or disposition of all or any part of the Collateral shall
be applied by the Pledgee in the following order:
(i) to
the payment in full of the costs and expenses of such sale or sales,
collections, and the protection, declaration and enforcement of any security
interest granted hereunder including the reasonable compensation of the
Pledgee’s agents and attorneys;
(ii) to
the payment of the Guaranty Obligations; and
(iii) to
the payment to the Pledgor(s) of any surplus then remaining from such proceeds,
subject to the rights of any holder of a lien on the Collateral of which the
Pledgee has actual notice.
(b) In
the event that the proceeds of any sale or other disposition of the Collateral
are insufficient to cover the principal of, and premium, if any, and interest
on, the Guaranty Obligations secured thereby plus costs and expenses of the
sale
or other disposition, the Pledgor(s) shall remain liable for any
deficiency.
11. Termination. This
Agreement shall continue in full force and effect until all of the Guaranty
Obligations shall have been indefeasibly paid in full and satisfied, and the
Note shall have been terminated. Subject to any sale or other
disposition by the Pledgee of the Collateral or any part thereof pursuant to
this Agreement, the Collateral (together with the undated stock powers delivered
by the Pledgor(s) to the Pledgee) shall be returned to the Pledgor(s) upon
full
payment, satisfaction and termination of all of the Guaranty
Obligations.
12. Expenses
of the Pledgee. All expenses (including reasonable fees
and disbursements of counsel) incurred by the Pledgee in connection with the
perfection and continuation of the security interest granted hereunder and
any
actual or attempted sale or exchange of, or any enforcement, collection,
compromise or settlement respecting, the Collateral, or any other action
taken by the Pledgee hereunder whether directly or as attorney-in-fact pursuant
to a power of attorney or other authorization herein conferred, for the purpose
of satisfaction of the liability of the Pledgor(s) for failure to pay the
Guaranty Obligations or as additional amounts owing by the Pledgor(s) to cover
the Pledgee’s costs of acting against the Collateral, shall be deemed a Guaranty
Obligation of the Pledgor(s) for all purposes of this Agreement and the Pledgee
may apply the Collateral to payment of or reimbursement of itself for such
liability.
13. General
Provisions.
(a) All
capitalized terms used in this Pledge Agreement and not defined herein shall
have the respective meanings assigned to them in the Note.
(b) The
Pledgee and its assigns shall have no obligation in respect of the Collateral,
except to use reasonable care in holding the Collateral and to hold and dispose
of the same in accordance with the terms of this Agreement.
(c) All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing, and unless otherwise expressly provided herein,
shall be conclusively deemed to have been received by a party hereto and to
be
effective on the day on which delivered to such party at the address set forth
below, or if sent by registered or certified mail, on the third Business Day
after the day on which mailed in the United States, addressed to such party
at
said address:
(i) if
to the Pledgee, at:
Manufacturers
and Traders Trust
Company
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▇▇▇▇▇▇▇▇,
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Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Relationship
Manager – Emerging
Vision, Inc.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
Manufacturers
and Traders Trust
Company
One
M&T Plaza
Buffalo,
New York 14240
Attention: Office
of General
Counsel
(ii) if
to any Pledgor, at:
OG
Acquisition, Inc.
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Attention: ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, CEO
Telecopy: (▇▇▇)
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With
a copy to:
OG
Acquisition,
Inc.
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▇▇▇▇, ▇▇▇
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Attention: General
Counsel
Telecopy: (▇▇▇)
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(iii) As
to each party at such other address as such party shall have designated to
the
other in a written notice complying as to delivery with the provisions of this
Section 13(d).
(d) No
failure on the part of the Pledgee to exercise, and no delay in exercising,
any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by the Pledgee of any right, power or remedy
hereunder preclude any other or future exercise thereof, or the exercise of
any
other right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law or any other
agreement. The representations, covenants and agreements of the
Pledgor(s) herein contained shall survive the date hereof. Neither
this Agreement nor the provisions hereof can be changed, waived or terminated
orally. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, legal representatives
and
assigns except that no Pledgor may assign or transfer any of its respective
rights or obligations under this Agreement without the prior written consent
of
the Pledgee.
SECTION
14. APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. EACH PLEDGOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ OF NASSAU OR COUNTY OF SUFFOLK
IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND
TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PLEDGOR HEREBY WAIVES AND AGREES
NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT
IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY DOCUMENT OR ANY INSTRUMENT REFERRED
TO
HEREIN OR THE SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH
COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PLEDGOR
AGREES (i) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT
OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY
BE
CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT AND (ii) NOT TO ASSERT
ANY
COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING UNLESS SUCH COUNTERCLAIM
CONSTITUTES A COMPULSORY OR MANDATORY COUNTERCLAIM UNDER APPLICABLE RULES OF
CIVIL PROCEDURE. EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON
IT
BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS
AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK. EACH
PLEDGOR AND THE PLEDGEE EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY.
SECTION
15. Several
Agreements. This Agreement shall
constitute the several obligations and agreements of each Pledgor and may be
amended, restated, supplemented or otherwise modified from time to time with
respect to any Pledgor without the consent or approval of any other Pledgor,
and
no such amendment, restatement, supplement or modification shall be deemed
to
amend, restate, supplement or modify the obligations of any other Pledgor
hereunder.
SECTION
16. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, in such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
17. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which, taken together, shall constitute one
and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
PLEDGOR(S):
OG
ACQUISITION,
INC.
By:/s/▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title: CEO
PLEDGEE:
MANUFACTURERS
AND TRADERS
TRUST
COMPANY
By:
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
President
SCHEDULE
A
|
Pledgor:
|
Class:
|
No.
of Shares:
|
Stock
Cert. No.
|
%
of issued and outstanding shares
|
|
OG
Acquisition, Inc.
|
Common
|
5120
|
100%
|
|
|
OG
Acquisition, Inc.
|
Class
A Special Shares
|
2,000,000
|
100%
|
|