BORROWER/SUBSIDIARY PLEDGE AGREEMENT
EXHIBIT
10.9
Execution
Copy
BORROWER/SUBSIDIARY
PLEDGE AGREEMENT
THIS
BORROWER/SUBSIDIARY PLEDGE AGREEMENT (this “Agreement”)
is
made as of the 25th day of May, 2006, by and between ▇▇▇▇▇▇, Inc., a Delaware
corporation (the “Borrower”),
▇▇▇▇▇▇ Traffic Systems, Inc., a Delaware corporation (“NTS”),
and
CrossingGuard, Inc., a Delaware corporation (“CGI”),
and
U.S. Bank National Association, as collateral agent for the Purchasers (as
that
term is defined in the Securities Purchase Agreement referred to below)
(together with its successors and assigns in such capacity, the “Agent”).
NTS,
CGI and the Borrower are each referred to herein individually as a “Pledgor” and
collectively as the “Pledgors.”
Background
On
May
24, 2006, the Purchasers and the Agent entered into a Securities Purchase
Agreement (as amended, extended, supplemented, restated, or otherwise modified
from time to time, the “Securities
Purchase Agreement”)
with
the Borrower, pursuant to which the Purchasers agreed to purchase the Notes
from
the Borrower on the terms and conditions described therein.
One
of
the prerequisites to the Purchasers entering into the Securities Purchase
Agreement is that the Pledgors shall have entered into this Agreement and shall
have granted to the Agent for the benefit of the Purchasers a security interest
in the Collateral (as defined below) to secure its obligations under the
Securities Purchase Agreement and certain related documents and agreements
as
more fully set forth below.
NOW,
THEREFORE, the parties hereto, intending to be legally bound hereby, and in
consideration of the mutual covenants herein contained and other good and
valuable consideration receipt of which is hereby acknowledged, agree as
follows:
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DEFINITIONS.
|
Capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to
such terms in, or by reference in, the Securities Purchase Agreement or the
Uniform Commercial Code, as applicable. The following terms shall have the
following meanings:
“Collateral”
shall
mean:
(a) all
Investment Property, Securities Entitlements and General Intangibles respecting
ownership and/or other equity interests in each Subsidiary of a Pledgor, but
in
any event shall include, include, without limitation, the shares of capital
stock and other securities of, or issued by, any of the entities listed on
Schedule
I
hereto
(as the same may be modified from time to time pursuant to the terms hereof),
and any other shares of capital stock of and/or other equity interests of any
Subsidiary of a Pledgor obtained in the future by a Pledgor or in which a
Pledgor shall have any rights, and, in each case, all certificates representing
such shares and/or equity interests and, in each case, all rights, options,
warrants, stock, other securities and/or equity interests that may hereafter
be
received, receivable or distributed in respect of, or exchanged for, any of
the
foregoing (all of the foregoing being referred to herein as the “Pledged
Securities”)
and
all rights of a Pledgor to receive monies due and to become due pursuant thereto
and all other rights related to the Pledged Securities (all the foregoing being
referred to herein as “Pledged
Interests”);
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(b) all
rights under the Organizational Documents of any Subsidiary of a Pledgor and
all
other agreements related to the Pledged Securities, as such documents and
agreements may be amended, modified, supplemented and/or restated from time
to
time, and all rights of the Pledgors to receive monies due and to become due
pursuant thereto;
(c) all
other
property which may be delivered to and held by the Agent pursuant to the terms
hereof of any character whatsoever into which any of the foregoing may be
converted or which may be substituted for any of the foregoing; and
(d) all
Proceeds of the Pledged Securities and Pledged Interests and of such other
property, including, without limitation, all dividends, interest, cash, notes,
securities, equity interests or other property at any time and from time to
time
acquired, receivable or otherwise distributed in respect of, or in exchange
for,
any of or all such Pledged Securities, Pledged Interests or other
property.
“Event
of Default”
has
the
meaning given to such term in the Notes.
“Law”
shall
mean all common law and all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and order of courts or governmental authorities
and
all orders and decrees of all courts and arbitrators.
“Necessary
Endorsement”
shall
mean undated stock powers endorsed in blank or other proper instruments of
assignment duly executed and such other instruments or documents as the Agent
may reasonably request.
“Organizational
Documents”
shall
mean, with
respect to any Person other than a natural person, the documents by which such
Person was organized (such as a certificate of incorporation, certificate of
limited partnership or articles of organization, and including, without
limitation, any certificates of designation for preferred stock or other forms
of preferred equity) and which relate to the internal governance of such Person
(such as bylaws, a partnership agreement or an operating, limited liability
or
members agreement).
“Proceeds”
shall
be used herein as defined in the Uniform Commercial Code but, in any event,
shall include, but not be limited to, (a) any and all proceeds of any insurance
(whether or not the Agent is named as the loss payee thereof), indemnity,
warranty or guaranty payable to a Pledgor or the Agent from time to time with
respect to any of the Collateral, (b) any and all payments (in any form
whatsoever, cash and non-cash) made or due and payable to a Pledgor from time
to
time in connection with any requisition, confiscation, condemnation, seizure
or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority), (c) any and all
amounts received when Collateral is sold, leased, licensed, exchanged, collected
or disposed of, (d) any rights arising out of Collateral, (e) any dividends
or
other distributions associated with the Collateral, and (f) any and all other
amounts from time to time paid or payable under or in connection with any of
the
Collateral.
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“Secured
Obligations”
shall
mean, collectively, the
following obligations of the Grantors, whether now existing or hereafter
incurred:
(a) (i)
the
payment by the Borrower, as and when due and payable (by scheduled maturity,
required prepayment, acceleration, demand or otherwise), of all amounts from
time to time owing by it in respect of the Securities Purchase Agreement, the
Notes, and the other Transaction Documents, including, without limitation,
(A)
all principal of and interest on the Notes (including, without limitation,
all
interest that accrues after the commencement of any bankruptcy, reorganization
or similar proceeding (an “Insolvency
Proceeding”)
involving any Grantor, whether or not the payment of such interest is
unenforceable or is not allowable due to the existence of such Insolvency
Proceeding), and (B) all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under the Securities
Purchase Agreement or any of the Transaction Documents; and
(b) the
due
performance and observance by each Grantor of all of its other obligations
from
time to time existing in respect of any of the Transaction Documents, including
without limitation, with respect to any conversion or redemption rights of
the
Purchasers under the Notes, for so long as they are outstanding.
“Uniform
Commercial Code”
shall
mean the Uniform Commercial Code in effect on the date hereof and as amended
from time to time, and as enacted in the State of New York or in any state
or
states which, pursuant to the Uniform Commercial Code as enacted in the State
of
New York, has jurisdiction with respect to all, or any portion of, the
Collateral or this Agreement, from time to time. It is the intent of the parties
that the definitions set forth above should be construed in their broadest
sense
so that Collateral will be construed in its broadest sense. Accordingly if
there
are, from time to time, proposed changes to defined terms in the Uniform
Commercial Code that broaden the definitions, they are incorporated herein
and
if existing definitions in the Uniform Commercial Code are broader than the
amended definitions, the existing ones shall be controlling. Similarly, the
term
“but in any event shall include” shall be construed to mean that each
specifically enumerated item is included in the defined category whether or
not
it would otherwise be so included. For example, where the phrase “as defined in
the Uniform Commercial Code, but in any event shall include, but not be limited
to . . .” is used above, it means as defined in the Uniform Commercial Code
except that if any of the enumerated types of items specified thereafter would
not fall within the Uniform Commercial Code definition, they shall nonetheless
be included in the applicable definition for purposes of this
Agreement.
2. CREATION
OF SECURITY INTEREST.
As
security for the payment and performance in full of the Secured Obligations,
each Pledgor hereby hypothecates, pledges, assigns, sets over and delivers
unto
the Agent, and grants to the Agent, for the benefit of the Purchasers, a
continuing first priority security interest in all its right, title and interest
in, to and under the Collateral, to have and to hold the Collateral, together
with all right, title, interest, powers, privileges and preferences pertaining
or incidental thereto; subject, however, to the terms, covenants and conditions
hereinafter set forth.
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3. DELIVERY
OF COLLATERAL.
3.1 At
Time of Execution of Agreement.
Contemporaneously with the execution of this Agreement or, in any event, prior
to the Closing Date, the Pledgors shall deliver or cause to be delivered to
the
Agent (a) any and all certificates and other instruments representing or
evidencing the Pledged Securities, (b) any and all certificates and other
instruments or documents representing any of the other Collateral and (c) all
other property comprising part of the Collateral, in each case along with the
Necessary Endorsements. The Pledgors are, contemporaneously with the execution
hereof, delivering to the Agent, or have previously delivered to the Agent,
a
true and correct copy of each Organizational Document governing any of the
Pledged Securities.
3.2 Subsequent
Delivery of Collateral.
If any
Pledgor shall become entitled to receive or shall receive any securities or
other property in respect of the Pledged Securities (whether as an addition
to,
in substitution of, or in exchange for, such Pledged Securities or otherwise),
such Pledgor agrees to deliver to the Agent such securities or other property,
including, without limitation, shares of Pledged Securities or instruments
representing Pledged Interests acquired after the Closing Date, or any options,
warrants, rights or other similar property or certificates representing a stock
dividend, or any distribution in connection with any recapitalization,
reclassification or increase or reduction of capital, or issued in connection
with any reorganization of the Pledgor or any Subsidiary of the Pledgor but
excluding dividends and interest permitted to be retained by the Pledgor under
Section 5 hereof:
(a) to
accept
the same as the agent of the Purchasers;
(b) to
hold
the same in trust on behalf of and for the benefit of the Purchasers;
and
(c) to
deliver any and all certificates or instruments evidencing the same to the
Agent
on or before the close of business on the fifth (5th)
Business Day following the receipt thereof by such Pledgor, in the exact form
received together with the Necessary Endorsements, to be held by the Agent
subject to the terms of this Agreement, as additional Collateral.
4. REPRESENTATIONS
AND WARRANTIES OF PLEDGOR.
4.1 Representations
and Warranties.
Each
Pledgor represents and warrants that each representation and warranty set forth
in the Transaction Documents that relates to or refers to the Pledgor or the
Collateral (or, in either case, any other term that is used with the same or
similar meaning) is incorporated herein by reference and is true and correct
on
and as of the date hereof. Without limiting the generality of the foregoing,
each Pledgor further represents and warrants that:
(a) The
Pledged Securities are not subject to any Organizational Document, statutory,
contractual or other restriction governing their issuance, transfer, ownership
or control which restriction would limit the effectiveness or enforceability
of
the pledge and security interest created under this Agreement.
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(b) The
capital stock and other equity interests listed on Schedule
I
hereto
represent all of the capital stock and other equity interests of the
Subsidiaries of the Pledgors held by the Pledgors in any Subsidiary of the
Pledgors.
(c) The
jurisdiction of formation and the chief executive office of the Pledgors and
the
other offices or places of business of the Pledgors or any offices where records
concerning the Collateral are kept are set forth on Schedule
II
hereto.
No Pledgor is known by any other name except the name appearing on the signature
page hereof.
(d) Each
Pledgor has the corporate power to execute, deliver and carry out the terms
and
provisions of this Agreement and has taken all necessary corporate action
(including, without limitation, any consent of stockholders required by Law
or
by its Organizational Documents) to authorize the execution, delivery and
performance of this Agreement. This Agreement constitutes the authorized, valid
and legally binding obligations of each Pledgor enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and by general principles of
equity.
(e) All
of
the Pledged Securities are validly issued, fully paid and nonassessable, and
the
Pledgors are the legal and beneficial owners of the Pledged Securities as
reflected on Schedule
I,
free
and clear of any Lien except for the security interests created by this
Agreement.
(f) The
pledge of the Pledged Securities pursuant to this Agreement and the filing
of
the necessary financing statements (which filings have been duly made or will
be
made substantially simultaneously with the execution of this Agreement) create
a
valid and perfected first priority security interest in the Collateral securing
payment of the Secured Obligations.
(g) The
ownership and other equity interests in partnerships and limited liability
companies (if any) included in the Collateral by their express terms do not
provide that they are securities governed by Article 8 of the Uniform Commercial
Code and are not held in a securities account or by any financial
intermediary.
4.2 Survival
of Representations and Warranties.
All the
foregoing representations and warranties (including, without limitation, those
incorporated by reference) shall survive the execution and delivery of this
Agreement and shall continue until this Agreement is terminated as provided
herein and shall not be affected or waived by any inspection or examination
made
by or on behalf of the Agent or any Purchaser.
5. VOTING;
DIVIDENDS.
5.1 Rights
Prior To Default.
Other
than during the existence of an Event of Default:
(a) each
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral or any part thereof for any purpose not
inconsistent with the terms of the Transaction Documents.
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(b) Subject
to and limited by the provisions set forth in the Securities Purchase Agreement
and the other Transaction Documents, each Pledgor shall be entitled to receive
and retain any and all dividends, interest and other payments paid in respect
of
the Collateral, provided, however, that any and all:
(i) dividends
or other payments paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed
in
respect of, or in exchange for, any Collateral;
(ii) dividends
and other distributions paid or payable in cash in respect of any Collateral
in
connection with a partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid-in-surplus;
and
(iii) cash
paid, payable or otherwise distributed in respect of principal of, or in
redemption of, or exchange for, any Collateral, except as specifically permitted
by the Securities Purchase Agreement, shall forthwith be delivered to the Agent
to hold as Collateral and shall, if received by a Pledgor, be received in trust
for the benefit of the Agent on behalf of the Purchasers, be segregated from
the
other property or funds of such Pledgor, and be forthwith delivered to the
Agent
as Collateral in the same form as so received (with any Necessary
Endorsement).
The
Agent
shall execute and deliver to the Pledgors all such proxies and other instruments
as the Pledgors may reasonably request for the purpose of enabling the Pledgors
to exercise the voting and other rights which they are entitled to exercise
pursuant to paragraph (i) above and to receive the dividends or interest
payments which they are authorized to receive and retain pursuant to paragraph
(ii) above.
5.2 Rights
Upon Redemption Event.
Upon the
occurrence of any event pursuant to which the Pledgor may be entitled to receive
payment in exchange for the Pledged Securities pursuant to redemption rights,
a
put option or otherwise,
(a) Any
funds
payable to holders of the applicable Pledged Securities (a “Redemption
Payment”)
shall
be paid over to the Agent to be held as additional Collateral or, at the option
of the Agent, applied against the Secured Obligations; and
(b) If
a
Pledgor for any reason receives all or any portion of a Redemption Payment,
such
Pledgor shall receive it in trust for the benefit of the Purchasers, shall
segregate it from other funds of the holder, and shall pay it over to the Agent
to be held as additional Collateral or, at the option of the Agent, applied
against the Secured Obligations.
5.3 Rights
After a Default.
Upon
the occurrence and during the continuation of an Event of Default and as more
fully set forth in Section 10 below:
(a) Subject
to Section 11 below, (i) upon notice to a Pledgor by the Agent, all rights
of
such Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 5.1 above and (ii)
all
rights of such Pledgor to receive the dividends, interest and other payments
which it would otherwise be authorized to receive and retain pursuant to
subsection 5.1 above shall cease, and all such rights shall thereupon become
vested in the Agent who shall have the sole right to exercise such voting and
other consensual rights and to receive and hold as Collateral such dividends,
interest and other payments.
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(b) All
dividends, interest and other payments which are received by a Pledgor contrary
to the provisions of paragraph (a) of this subsection 5.3 shall be received
in
trust for the benefit of the Agent, shall be segregated from other funds of
such
Pledgor and shall forthwith be paid over to the Agent as Collateral in the
same
form as so received (with any Necessary Endorsement).
5.4 Liability
of Agent and of the Purchasers.
Nothing
in this Agreement shall be construed to subject the Agent or any Purchaser
to
liability as a partner in any Subsidiary of the Pledgor that is a partnership
or
as a member in any Subsidiary of the Pledgor that is a limited liability
company, nor shall the Agent or any Purchaser be deemed to have assumed any
obligations under any partnership agreement or limited liability company
agreement, as applicable, of such a Subsidiary or otherwise, unless and until
the Agent exercises its right to be substituted for the Pledgor as a partner
or
member, as applicable, pursuant hereto.
6. COVENANTS
OF PLEDGOR.
6.1 Transaction
Documents; Voting; Sales.
Each of
the covenants and agreements which is set forth or incorporated in the
Transaction Documents and which is applicable to a Pledgor or the Collateral
subject hereto (or, in either case, any other term that is used with the same
or
similar meaning) is incorporated herein by reference and each Pledgor agrees
to
perform and abide by each such covenant and agreement. Without limiting the
generality of the foregoing and in furtherance thereof, each Pledgor shall
vote
the Pledged Securities to comply with the covenants and agreements set forth
in
the Transaction Documents. Without limiting the generality of the foregoing,
no
Pledgor shall sell or otherwise dispose of, or grant any option with respect
to,
any of the Collateral, except in connection with a sale or other disposition
permitted under the provisions of the Securities Purchase Agreement or the
other
Transaction Documents.
6.2 Proceeds
of Collateral Disposition.
During
the continuance of an Event of Default, at the Agent’s request, each Pledgor
having Pledged Securities shall establish and maintain at all times a trust
account with the Agent, and all Proceeds not required to pay down the Secured
Obligations in accordance with the Transaction Documents, before or after an
Event of Default, shall be deposited directly and immediately into such account.
The Pledgors shall be responsible for all costs and fees arising with respect
to
such account at the standard rates. The Pledgors expressly and irrevocably
authorizes and consents to the ability of the Agent to charge such trust
account, in its sole discretion, and recover from the funds on deposit therein,
from time to time and at any time, and apply those funds against any and all
Secured Obligations.
6.3 Notice
of Changes in Representations.
A
Pledgor shall notify the Agent in advance of any event or condition which would
cause any representation and warranty set forth in Section 4.1 above to fail
to
be true, correct and complete.
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6.4 Defense
of Title.
Each
Pledgor shall defend its and the Agent’s respective title and interest in and to
the Collateral against all Liens except Permitted Liens.
6.5 Additional
Pledgor.
At any
time after the date of this Agreement, if ▇▇▇▇▇▇ Interactive, Inc.
(“NII”)
ceases
to be inactive or has significant assets other than net operating losses, it
shall become a Pledgor hereunder and the Borrower shall cause NII to signify
its
acceptance of the terms hereof by execution and delivery to the Agent of a
counterpart of this Agreement, as then in effect.
7. FURTHER
ASSURANCES.
Each
Pledgor agrees that at any time and from time to time, at the expense of the
Pledgors and their Subsidiaries, the Pledgors will, and will cause their
Subsidiaries to, promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable,
or
that the Agent may request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral or to otherwise carry out the purposes of this
Agreement.
8. AGENT
APPOINTED ATTORNEY-IN-FACT; MAY PERFORM CERTAIN DUTIES.
8.1 Appointment
as Attorney-in-fact.
Effective upon the occurrence of an Event of Default, and so long as such Event
of Default is continuing, each Pledgor hereby appoints the Agent as its true
and
lawful agent, proxy and attorney-in-fact for the purpose of carrying out this
Agreement and taking any action and executing any instrument which the Agent
may
deem necessary or advisable to accomplish the purposes hereof including, without
limitation, the execution on behalf of such Pledgor of any financing or
continuation statement with respect to the security interest created hereby
and
the endorsement of any drafts or orders which may be payable to such Pledgor
in
respect of, arising out of, or relating to any or all of the Collateral. This
power shall be valid until the termination of the security interests created
hereunder, any limitation under law as to the length or validity of a proxy
to
the contrary notwithstanding. This appointment is irrevocable and coupled with
an interest and any proxies heretofore given by a Pledgor to any other Person
are revoked. The designation set forth herein shall be deemed to amend and
supersede any inconsistent provision in the Organizational Documents to which
each Pledgor or any Subsidiary of a Pledgor is subject or to which any is a
party.
8.2 Filing
of Financing Statements and Preservation of Interests.
Each
Pledgor hereby authorizes the Agent, and appoints the Agent as its
attorney-in-fact, to file in such office or offices as the Agent deems necessary
or desirable such financing and continuation statements and amendments and
supplements thereto (or similar documents required by any laws of any applicable
jurisdiction), and such other documents as the Agent may require to perfect,
preserve and protect the security interests granted herein all without signature
(except to the extent such signature is required under the laws of any
applicable jurisdiction) and ratifies all such actions taken by the
Agent.
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8.3 Registration
of Securities.
Each
Pledgor and each Subsidiary of a Pledgor shall register the pledge of the shares
included in the Collateral in the name of the Agent on the books of such Pledgor
or such Subsidiary. Upon the occurrence of an Event of Default, each Pledgor
and
each Subsidiary of a Pledgor shall at the direction of the Agent register the
shares included in the Collateral in the name of the Agent on the books of
such
Pledgor and such Pledgor’s Subsidiaries.
8.4 Performance
of Pledgor’s Duties.
In
furtherance, and not by way of limitation, of the foregoing subsections 8.1
and
8.2, if (at any time either before or after the occurrence of an Event of
Default) a Pledgor fails to perform any agreement contained herein, the Agent
may (but under no circumstance is obligated to) perform such agreement and
any
expenses incurred shall be payable by such Pledgor and its Subsidiaries;
provided, however, that nothing herein shall be deemed to relieve a Pledgor
from
fulfilling any of its obligations hereunder.
8.5 Acts
May Be Performed By Agents and Employees.
Any act
of the Agent to be performed pursuant to this Section 8 or elsewhere in this
Agreement may be performed by agents or employees of the Agent.
9. STANDARD
OF CARE.
9.1 In
General.
No act
or omission of any Purchaser (or agent or employee of any of the foregoing)
shall give rise to any defense, counterclaim or offset in favor of the Pledgors
or any claim or action against any such Purchaser (or agent or employee
thereof), in the absence of gross negligence or willful misconduct of such
Purchaser (or agent or employee thereof) as determined in a final, nonappealable
judgment of a court of competent jurisdiction. The Agent shall be deemed to
have
exercised reasonable care in the custody and preservation of the Collateral
in
its possession if the Collateral is accorded treatment substantially equal
to
that which the Agent accords to other collateral it holds, it being understood
that it has no duty to take any action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral
or to
preserve any rights of any parties and shall only be liable for losses which
are
a result of its gross negligence or willful misconduct as determined in a final,
nonappealable judgment of a court of competent jurisdiction.
9.2 Reliance
on Advice of Counsel.
In
taking any action under this Agreement, the Agent shall be entitled to rely
upon
the advice of counsel of the Agent’s choice and shall be fully protected in
acting on such advice whether or not the advice rendered is ultimately
determined to have been accurate.
9.3 No
Obligation To Act.
The
Agent shall be entitled to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the written instructions
of the Required Holders and such instructions shall be binding upon all the
Purchasers; provided,
however,
that the
Agent shall not be under any obligation to exercise any of the rights or powers
vested in it by this Agreement or any Security Document in the manner so
requested unless, if so requested by the Agent, it shall have been provided
indemnity from the Borrower satisfactory to it against the costs, expenses
and
liabilities which may be incurred by it in compliance with or in performing
such
request or direction. No provisions of this Agreement or any Security Document
shall otherwise be construed to require the Agent to expend or risk its own
funds or take any action that could in its judgment cause it to incur any cost,
expenses or liability for which it is not specifically indemnified hereunder
or
under the Securities Purchase Agreement. No provision of this Agreement or
of
any Security Document shall be deemed to impose any duty or obligation on the
Agent to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall
be
illegal, or in which the Agent shall be unqualified or incompetent, to perform
any such act or acts or to exercise any such right, power, duty or obligation
or
if such performance or exercise would constitute doing business by the Agent
in
such jurisdiction or impose a tax on the Agent by reason thereof.
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9.4 Action
by Agent.
Absent
written instructions from the Required Holders at a time when an Event of
Default shall have occurred and be continuing, the Agent shall have no
obligation to take any actions under the Security Documents.
10. DEFAULT.
10.1 Certain
Rights Upon Default.
In
addition to any other rights accorded to the Agent and the Purchasers hereunder,
upon the occurrence and during the continuation of an Event of Default:
(a) The
Agent
shall be entitled to receive any interest, cash dividends or other payments
on
the Collateral and, at the Agent’s option, to exercise in the Agent’s discretion
all voting rights pertaining thereto as more fully set forth in Section 5 above.
Without limiting the generality of the foregoing, the Agent shall have the
right
(but not the obligation) to exercise all rights with respect to the Collateral
as if it were the sole and absolute owner thereof, including, without
limitation, to vote and/or to exchange, at its sole discretion, any or all
of
the Collateral in connection with a merger, reorganization, consolidation,
recapitalization or other readjustment concerning or involving the Collateral
or
the Pledgors or any Subsidiary of a Pledgor.
(b) Each
Pledgor and each Subsidiary of a Pledgor shall take any action necessary or
required or requested by the Agent in order to allow it fully to enforce the
security interest in the Collateral hereunder and to realize thereon to the
fullest extent possible, including, but not limited to, the filing of any claims
with any court, liquidator, trustee, guardian, receiver or other like person
or
party.
(c) The
Agent
shall have all of the rights of a Purchaser under the Uniform Commercial Code
and any other applicable law including the right to sell on such terms as it
may
deem appropriate any or all of the Collateral at one or more public or private
sales upon at least five (5) Business Days written notice to the Pledgors of
the
time and place of any public sale and of the date on which the Collateral will
first be offered for sale in the case of any private sale. The Agent shall
have
the right to bid thereat or purchase any part or all the Collateral in its
own
or a nominee’s name. The Agent shall have the right to apply the proceeds of the
sale, after deduction for any costs and expenses of sale (including any
liabilities incurred in connection therewith including reasonable attorneys’
fees and allocated costs of attorneys who are employees of the Agent), to the
payment of the Secured Obligations, and to pay any remaining proceeds to the
applicable Pledgor or its successors or assigns or to whomsoever may lawfully
be
entitled to receive the same or as a court of competent jurisdiction may direct,
without further notice to or consent of such Pledgor and without regard to
any
equitable principles of marshalling or other like equitable doctrines. Each
Pledgor hereby acknowledges and agrees that the notice provided for above is
reasonable and expressly waives any rights it may have of equity of redemption,
stay or appraisal with respect to the Collateral.
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(d) For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Agent shall be free to carry
out
such sale pursuant to such agreement, and the applicable Pledgor shall not
be
entitled to the return of the Collateral or any portion thereof, notwithstanding
the fact that after the Agent shall have entered into such an agreement, any
and
all Events of Default shall have been remedied and the Obligations paid in
full.
(e) The
Agent
shall have the right, with full power of substitution either in the Agent’s name
or the name of any Pledgor, to ask for, demand, ▇▇▇, collect and receive any
and
all moneys due or to become due under and by virtue of the Collateral and to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, provided, however, that nothing herein shall be construed
as
requiring the Agent to take any action, including, without limitation, requiring
or obligating the Agent to make any inquiry as to the nature or sufficiency
of
any payment received, or to present or file any claim or notice, or to take
any
action with respect to the Collateral or any part thereof or the moneys due
or
to become due in respect thereof or any property covered thereby.
(f) The
Agent
shall be entitled to the appointment of a receiver or trustee for all or any
part of the businesses of a Pledgor or a Subsidiary of a Pledgor, which receiver
shall have such powers as may be conferred by law or the appointing
authority.
10.2 Agent
May Exercise Less Than All Rights.
Each
Pledgor hereby acknowledges and agrees that the Agent is not required to
exercise all remedies and rights available to it equally with respect to all
of
the Collateral, and the Agent may select less than all of the Collateral with
respect to which the remedies as determined by the Agent may be exercised.
10.3 Duties
of Pledgors and Subsidiaries of the Pledgors With Respect to
Transferee.
In the
event that, upon an occurrence of an Event of Default, the Agent shall sell
all
or any of the Collateral to another party or parties (herein called
“Transferee”)
or
shall purchase or retain all or any of the Collateral, each Pledgor and each
Subsidiary of such Pledgor shall:
(a) Deliver
to the Agent or Transferee, as the case may be, the articles of incorporation,
bylaws, minute books, stock certificate books, corporate seals, deeds, leases,
indentures, agreements, evidences of indebtedness, books of account, financial
records and all other Organizational Documents and records of such Pledgor
and
each Subsidiary of such Pledgor;
(b) Use
its
best efforts to obtain resignations of the persons then serving as officers
and
directors of such Pledgor and each Subsidiary of such Pledgor, if so requested;
and
(c) Use
its
best efforts to obtain any approvals that are required by any governmental
or
regulatory body in order to permit the sale of the Collateral to the Transferee
or the purchase or retention of the Collateral by the Agent and allow the
Transferee or the Agent to continue the business of the issuer.
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11. SECURITIES
LAW PROVISION.
Each
Pledgor recognizes that the Agent may be limited in its ability to effect a
sale
to the public of all or part of the Collateral by reason of certain prohibitions
in the Securities Act of 1933, as amended, or other federal or state securities
laws (collectively, the “Securities
Laws”),
and
may be compelled to resort to one or more sales to a restricted group of
purchasers who may be required to agree to acquire the Collateral for their
own
account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that sales so made may be at prices and on terms
less favorable than if the Collateral were sold to the public, and that the
Agent has no obligation to delay the sale of any Collateral for the period
of
time necessary to register the Collateral for sale to the public under the
Securities Laws. Each Pledgor and each Subsidiary thereof shall cooperate with
the Agent in its attempts to satisfy any requirements under the Securities
Laws
(including without limitation registration thereunder if requested by the Agent)
applicable to the sale of the Collateral by the Agent.
12. SECURITY
INTEREST ABSOLUTE; WAIVERS BY PLEDGORS.
12.1 Absolute
Nature of Security Interest.
All
rights of the Agent hereunder, the grant of the security interest in the
Collateral and all obligations of each Pledgor hereunder, shall be absolute
and
unconditional irrespective of (a) any lack of validity or enforceability of
any
of the terms of the Transaction Documents or any other instrument or document
relating hereto or thereto, (b) any change in the amount, time, manner or place
of payment of, or in any other term of, all or any of the Secured Obligations,
or any other amendment or waiver of any terms related thereto, (c) any exchange,
release or nonperfection of any other collateral, or any release or amendment
or
waiver of any guaranty, or (d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, a Pledgor or any other
Person in respect of the Secured Obligations or in respect of this Agreement
or
any other Transaction Document or any obligations hereunder or
thereunder.
12.2 No
Duty To Marshal Assets.
The
Agent shall have no obligation to marshal any assets in favor of the Pledgors
or
any other Person or against or in payment of any or all of the
Obligations.
12.3 Waiver
with Right of Subrogation, Etc.
The
Pledgors acknowledge that until all the Obligations shall have been indefeasibly
paid in full, the Pledgors shall have no right (and hereby waive any such right)
of subrogation, reimbursement, or indemnity whatsoever, in respect of any
Pledgor and any Subsidiary of a Pledgor, arising out of remedies exercised
by
the Agent hereunder.
12.4 Compliance
with Organizational Documents.
To the
extent that the grant of the security interest in the Collateral and the
enforcement of the terms hereof require the consent, approval or action of
any
partner, member, shareholder or other equity owner, as applicable, of any
Subsidiary of a Pledgor or compliance with any provisions of the Organizational
Documents of any Subsidiary of such Pledgor, such Pledgor hereby grants such
consent and approval and waive any such noncompliance with the terms of said
documents.
-12-
12.5 Waivers.
Each
Pledgor hereby waives notice of acceptance of this Agreement. Each Pledgor
further waives presentment and demand for payment of any of the Secured
Obligations, protest and notice of dishonor or default with respect to any
of
the Secured Obligations, and all other notices to which such Pledgor might
otherwise be entitled, except as otherwise expressly provided in this Agreement
or any of the other Transaction Documents. Each Pledgor (to the extent that
it
may lawfully do so) covenants that it shall not at any time insist upon or
plead, or in any manner claim or take the benefit of, any stay, valuation,
appraisal or redemption now or at any time hereafter in force that, but for
this
waiver, might be applicable to any sale made under any judgment, order or decree
based on this Agreement or any other Transaction Document; and each Pledgor
(to
the extent that it may lawfully do so) hereby expressly waives and relinquishes
all benefit of any and all such laws and hereby covenants that it will not
hinder, delay or impede the execution of any power in this Agreement or in
any
other Transaction Document delegated to the Agent, but that it will suffer
and
permit the execution of every such power as though no such law or laws had
been
made or enacted.
12.6 Acknowledgment
Regarding Waivers. EACH
PLEDGOR’S WAIVERS UNDER THIS SECTION 12 HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER SUCH PLEDGOR HAS BEEN APPRISED AND
COUNSELED BY ITS ATTORNEY AS TO THE NATURE THEREOF AND ITS POSSIBLE ALTERNATIVE
RIGHTS.
13. NON-WAIVER
AND NON-EXCLUSIVE REMEDIES.
13.1 Non-Exclusive
Remedies.
No
remedy or right herein conferred upon, or reserved to the Agent is intended
to
be to the exclusion of any other remedy or right, but each and every such remedy
or right shall be cumulative and shall be in addition to every other remedy
or
right given hereunder or under any other Transaction Document or under
law.
13.2 Delay
and Non-Waiver.
No delay
or omission by the Agent to exercise any remedy or right hereunder shall impair
any such remedy or right or shall be construed to be a waiver of any Event
of
Default, or an acquiescence therein, nor shall it affect any subsequent Event
of
Default of the same or of a different nature.
14. NO
IMPLIED WAIVERS.
No
failure or delay on the part of the Agent in exercising any right, power or
privilege under this Agreement or the other Transaction Documents and no course
of dealing between a Pledgor, on the one hand, and the Agent or the Purchasers,
on the other hand, shall operate as a waiver of any such right, power or
privilege. No single or partial exercise of any right, power or privilege under
this Agreement or the other Transaction Documents precludes any other or further
exercise of any such right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies expressly provided in this
Agreement and the other Transaction Documents are cumulative and not exclusive
of any rights or remedies which the Agent or the Purchasers would otherwise
have. No notice to or demand on the Pledgors in any case shall entitle the
Pledgors to any other or further notice or demand in similar or other
circumstances or shall constitute a waiver of the right of the Agent or the
Purchasers to take any other or further action in any circumstances without
notice or demand. Any waiver that is given shall be effective only if in writing
and only for the limited purposes expressly stated in the applicable
waiver.
-13-
15. EFFECT
OF PLEDGE ON CERTAIN SHAREHOLDER RIGHTS.
If
any of
the Collateral subject to this Agreement consists of nonvoting equity or
ownership interests (regardless of their class, designation, preference or
rights) or other instruments that may be converted into voting equity ownership
interests upon the occurrence of certain events (including, without limitation,
upon the transfer of all or any of the other stock or assets of the issuer),
it
is agreed that the pledge of such equity or ownership interests pursuant to
this
Agreement or the enforcement of any of the Agent’s rights hereunder shall not be
deemed to be the type of event which would trigger such conversion rights
notwithstanding any provisions in the Organizational Documents or agreements
of
the issuer or any Pledgor to the contrary.
16. CONTINUING
SECURITY INTEREST; HEIRS AND ASSIGNS.
This
Agreement shall create a continuing security interest in the Collateral and
shall (a) remain in full force and effect until terminated pursuant to Section
16 below, (b) be binding upon each Pledgor, its successors and assigns and
(c)
inure to the benefit of the Agent, the Purchasers and their respective
successors, transferees and assigns provided, however, that no Pledgor shall
be
permitted to transfer any of its obligations hereunder except as otherwise
permitted by the Securities Purchase Agreement.
17. TERMINATION
OF AGREEMENT; RELEASE OF COLLATERAL.
17.1 Termination
of Agreement.
At such
time as all the Secured Obligations in respect of the Notes have been
indefeasibly paid in full (including the conversion in full of the Notes),
then
this Agreement shall terminate and the Collateral shall be released pursuant
to
subsection 17.2.
17.2 Duties
of Agent With Respect To Release of Collateral.
When
this Agreement terminates pursuant to subsection 17.1 above, the Agent shall
reassign and deliver to the Pledgors, or to such Person or Persons as the
Pledgors shall designate, against receipt, such of the Collateral (if any)
as
shall not have been sold or otherwise applied by the Agent pursuant to the
terms
hereof and shall still be held by it hereunder, together with appropriate
instruments of reassignment and release, all without any recourse to, or
warranty whatsoever by, the Agent, at the sole cost and expense of the
Pledgors.
17.3 Release
of Certain Collateral.
Effective upon the closing of a sale or other disposition of any Collateral
and
the application of proceeds in conformity with the provisions of the Securities
Purchase Agreement, and receipt by the Agent of a certification to such effect
from an authorized officer of the Borrower, the security interest in the assets
which are the subject of the sale or other disposition (the “Sold
Collateral”)
shall
terminate. The Agent shall thereupon reassign and deliver to the applicable
Pledgors, or to such Person as such Pledgors shall designate, against receipt,
the Sold Collateral, together with appropriate instruments or reassignment
and
release, all without any recourse to, or warranty whatsoever by, the Agent,
at
the sole cost and expense of such Pledgors.
-14-
18. PAYMENT
OF COSTS AND EXPENSES; INDEMNITIES.
Without
limiting any other cost reimbursement or expense reimbursement provisions in
the
Transaction Documents,
18.1 Payment
of Costs and Expenses.
Upon
demand, the Pledgors shall pay to the Agent the amount of any and all reasonable
expenses incurred by the Agent and the Purchasers hereunder or in connection
herewith, including, without limitation, reasonable fees of counsel to the
Agent
and the Purchasers and those other expenses that may be incurred in connection
with (a) the administration of this Agreement (b) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Collateral, (c) the exercise or enforcement of any of the rights of the Agent
or
the Purchasers hereunder or (d) the failure of the Pledgors to perform or
observe any of the provisions hereof.
18.2 Fees.
Each
Pledgor shall, upon demand, pay to the Agent such reasonable fees (in addition
to its expenses) for its services as the Agent as may be agreed upon from time
to time between the Agent and the Pledgors.
18.3 Indemnification.
Each
Pledgor shall indemnify, reimburse and hold harmless all Indemnitees from and
against any and all losses, claims, liabilities, damages, penalties, suits,
costs and expenses, of any kind or nature, (including fees relating to the
cost
of investigating and defending any of the foregoing) imposed on, incurred by
or
asserted against such Indemnitee in any way related to or arising from or
alleged to arise from this Agreement or the Collateral except any such losses,
claims, liabilities, damages, penalties, suits, costs and expenses which result
from the gross negligence or willful misconduct of the Indemnitee as determined
by a final nonappealable decision of a court of competent
jurisdiction.
18.4 Taxes.
Each
Pledgor shall pay to the Agent, upon demand, the amount of any taxes which
the
Agent may have been required to pay by reason of the security interests
established pursuant to this Agreement (including any applicable transfer
taxes).
18.5 Additional
Obligations.
Any
amounts payable pursuant to this Section 18 shall be additional Secured
Obligations secured hereby.
19. MISCELLANEOUS
PROVISIONS.
19.1 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York (excluding the laws applicable to conflicts or choice of
law).
19.2 Specific
Performance.
Each
Pledgor hereby authorizes the Agent and the Purchasers to demand specific
performance of this Agreement at any time when a Pledgor shall have failed
to
comply with any provision hereof, and each Pledgor hereby irrevocably waives
any
defense based on the adequacy of a remedy at law which might be asserted as
a
bar to the remedy of specific performance hereof in any action brought
therefor.
-15-
19.3 Successors
and Assigns.
Except
as otherwise provided in the Securities Purchase Agreement, the Agent may assign
or transfer this Agreement and any or all rights or obligations hereunder
without the consent of the Pledgors and without prior notice. No Pledgor shall
assign or transfer this Agreement or any rights or obligations hereunder without
the prior written consent of the Agent or as expressly provided in the
Securities Purchase Agreement. The rights and privileges of the Agent and the
Purchasers under this Agreement shall inure to the benefit of their respective
successors, assigns and participants. All promises, covenants and agreements
of
each Pledgor contained in this Agreement shall be binding upon personal
representatives, heirs, successors and assigns of such Person. Notwithstanding
the foregoing, if there is any assignment of any obligations by operation of
law
or in contravention of the terms of this Agreement or otherwise, then all
covenants, agreements, representations and warranties made herein or pursuant
hereto by or on behalf of a Pledgor shall bind the successors and assigns of
such Pledgor, jointly and severally (if applicable), together with the
pre-existing Pledgor whether or not such new Pledgor shall execute a joinder
to
this Agreement.
19.4 Amendments
and Waivers.
This
Agreement represents the entire agreement between the parties with respect
to
the transactions contemplated herein and, except as expressly provided herein,
shall not be affected by reference to any other documents. The
Purchasers holding 75% of the total outstanding principal balance of the Notes
(the “Required
Holders”)
shall
have the right to direct the Agent, from time to time, to consent to any
amendment, modification or supplement to or waiver of any provision of this
Agreement and to release any Collateral from any lien or security interest
held
by the Agent; provided,
however,
that
(i) no such direction shall require the Agent to consent to the modification
of
any provision or portion thereof which (in the sole judgment of the Agent)
is
intended to benefit the Agent, (ii) the Agent shall have the right to decline
to
follow any such direction if the Agent shall determine in good faith that the
directed action is not permitted by the terms of this Agreement or may not
lawfully be taken and (iii) no such direction shall waive or modify any
provision of this Agreement the waiver or modification of which requires the
consent of all Purchasers unless all Purchasers consent thereto. The Agent
may
rely on any such direction given to it by the Required Holders and shall be
fully protected in relying thereon, and shall under no circumstances be liable,
except in circumstances involving the Agent's gross negligence or willful
misconduct as shall have been determined in a final nonappealable judgment
of a
court of competent jurisdiction, to any holder of the Notes or any other person
or entity for taking or refraining from taking action in accordance with any
direction or otherwise in accordance with this Agreement.
19.5 Notices
and Communications.
Any
notice contemplated herein or required or permitted to be given hereunder shall
be made in the manner set forth in the Securities Purchase Agreement and
delivered at the addresses set forth on the signature pages to this Agreement,
or to such other address as any party hereto may have last specified by written
notice to the other party or parties.
19.6 Headings;
Counterparts.
Headings to this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. This Agreement may be executed
in
any number of counterparts, each of which shall be an original, and all of
which, taken together, shall constitute one instrument. Delivery of a photocopy
or telecopy of an executed counterpart of a signature page to this Agreement
shall be as effective as delivery of a manually executed counterpart of such
signature page.
-16-
19.7 Severability.
Every
provision of this Agreement is intended to be severable. If any of the
provisions or terms of this Agreement shall for any reason be held to be invalid
or unenforceable such invalidity or unenforceability shall not affect any of
the
other terms hereof, but this Agreement shall be construed as if such invalid
or
unenforceable term had never been contained herein. Any such invalidity or
unenforceability of any term or provision in this Agreement in a particular
jurisdiction shall not be deemed to render a provision invalid or unenforceable
in any other jurisdiction.
19.8 Relationship
with Securities Purchase Agreement.
To the
extent that any provision of this Agreement is inconsistent with any provision
of the Securities Purchase Agreement, the terms of the Securities Purchase
Agreement shall control.
19.9 Consent
to Jurisdiction, Service and Venue; Waiver of Jury Trial. For
the
purpose of any action that may be brought in connection with this Agreement,
each Pledgor hereby consents to the jurisdiction and venue of the courts of
the
State of New York or of any federal court located in such state and waives
personal service of any and all process upon it and consents that all such
service of process be made by certified or registered mail directed to such
Pledgor at the address provided for in Section 19.5 (Notices and
Communications). Service so made shall be deemed to be completed upon actual
receipt at the address specified in said section. Each Pledgor waives the right
to contest the jurisdiction and venue of the courts located in the county of
New
York, State of New York on the ground of inconvenience or otherwise and,
further, waives any right to bring any action or proceeding against (a) the
Agent in any court outside the county of New York, State of New York, or (b)
any
Purchaser other than in a state within the United States designated by such
Purchaser. The provisions of this Section shall not limit or otherwise affect
the right of the Agent or any Purchaser to institute and conduct an action
in
any other appropriate manner, jurisdiction or court.
NO
PARTY
TO THIS AGREEMENT, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE
OF THE FOREGOING SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT RELATING TO SUCH
INDEBTEDNESS OR THE RELATIONSHIP BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM.
NO SUCH PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION
IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT
AS PROHIBITED BY LAW, EACH PARTY HERETO WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. EACH
PARTY TO THIS AGREEMENT (a) CERTIFIES THAT NEITHER THE AGENT NOR ANY
REPRESENTATIVE, OR ATTORNEY OF THE AGENT NOR ANY PURCHASER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH PURCHASER WOULD NOT, IN THE
EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (b) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER TRANSACTION
DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED TO THE PARTIES AND
THE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION
WILL
NOT BE FULLY ENFORCED IN ALL INSTANCES.
-17-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered by their respective authorized officers on the date first above
written.
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PLEDGOR:
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▇▇▇▇▇▇,
INC.
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By:/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
CFO
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Notice
Information
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Phone
No.: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇
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Fax
No. ▇▇▇-▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
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PLEDGOR:
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▇▇▇▇▇▇
TRAFFIC SYSTEMS, INC.
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By:/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
CFO
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Notice
Information
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Phone
No.: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇
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Fax
No. ▇▇▇-▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
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PLEDGOR:
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CROSSINGGUARD,
INC.
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By:/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
CFO
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Notice
Information
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Phone
No.: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇
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Fax
No. ▇▇▇-▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
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[Signature
Page to Borrower/Subsidiary Pledge Agreement]
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-18-
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AGENT:
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U.S.
BANK NATIONAL ASSOCIATION
in
its capacity as Agent
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By:/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
Vice President
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Notice
Information
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U.S.
Bank National Association
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Corporate
Trust Services
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Telephone:
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Facsimile:
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Attention:
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[Signature
Page to Borrower/Subsidiary Pledge Agreement]
-19-
Schedule
I
Pledged
Securities
-20-
Schedule
II
Locations
of Pledgors
-21-