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EXHIBIT 10.7
THIRD PARTY PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AGREEMENT is made this June 29, 2000 by the undersigned
("Pledgor") in favor of SILICON VALLEY BANK ("Bank").
RECITALS
Bank has agreed to enter into a Loan and Security Agreement (the "Loan
Agreement") with Sunrise Technologies International, Inc. ("Borrower"). To
secure Pledgor's obligations under that certain Unconditional Guaranty dated as
of June 29, 2000 (the "Guaranty"), Pledgor has agreed to pledge to Bank certain
marketable securities, cash equivalents, financial assets, securities accounts
and such other property as is described on attached Exhibit A, together with all
proceeds and substitutions of any thereof, all interest paid thereon, and all
other cash and noncash proceeds of the foregoing (the "Pledged Collateral").
Capitalized terms not otherwise defined herein have the meanings ascribed to
them in the Loan Agreement.
NOW, THEREFORE, Pledgor and Bank agree as follows:
1. Pledge of Collateral. Pledgor hereby pledges to Bank and grants to
Bank a security interest in the Pledged Collateral, as security for the prompt
performance of all of Guarantor's obligations under the Guaranty (the
"Obligations"). Any certificate or certificates for the securities included in
the Pledged Collateral, accompanied by an instrument of assignment duly executed
in blank by Pledgor, have been, or will be immediately upon the subsequent
receipt thereof by Pledgor, delivered by Pledgor to Bank. Pledgor shall execute
and deliver to Bank a financing statement on Form UCC-1, a Pledged Collateral
Account Agreement, and such other documents as Bank requests to perfect the
security interest granted hereunder.
2. Representations, Warranties and Covenants. Pledgor represents and
warrants to and covenants with Bank that:
(a) The Pledged Collateral is owned by Pledgor free and clear of
any security interests, liens, encumbrances, options or other restrictions
created by Pledgor, except for the security interest in favor of Bank created
hereby;
(b) Pledgor has full power and authority to create a first lien
on the Pledged Collateral in favor of Bank and no disability or contractual
obligation exists that would prohibit Pledgor from pledging the Pledged
Collateral pursuant to this Agreement, and Pledgor will not assign, create or
permit to exist any other claim to, lien or encumbrance upon, or security
interest in any of the Pledged Collateral; and
(c) The Pledged Collateral is not the subject of any present or
threatened suit, action, arbitration, administrative or other proceeding, and
Pledgor knows of no reasonable grounds for the institution of any such
proceedings
(d) On the date hereof, Pledgor shall deposit into Account No.
___________ with Chase H&Q (the "Account") a cash amount not less than $100,000.
Prior to Bank's making an Advance under the Loan Agreement in an amount of
$7,000,000 or more, Pledgor shall deposit into the Account cash or cash
equivalents or publicly traded, freely tradeable securities with an aggregate
collateral value ("Collateral Value") of not less than $3,000,000. The
Collateral Value of cash or cash equivalents shall be equal to 100% of the
amount thereof. The Collateral Value of securities shall be equal to 50% of the
fair market value of such securities. The Collateral Value of the Pledged
Collateral shall at all times after Borrower has requested Advances of an
aggregate of $7,000,000 or more be greater than $3,000,000. If at any such time
the Collateral Value falls below $3,000,000, Pledgor shall immediately pledge to
Bank and transfer into the Account such property as is necessary to cause the
Collateral Value of the Pledged Collateral to be not less than $3,000,000.
3. Events of Default. Each of the following shall constitute an event of
default ("Event of Default") hereunder:
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(a) The occurrence of an Event of Default under the Loan
Agreement; or
(b) The breach of any provision of the Guaranty or this Agreement
by Pledgor or the failure by Pledgor to observe or perform any of the provisions
of this Agreement.
4. Bank's Remedies Upon Default. Upon the occurrence of an Event of
Default, Bank shall have the right to exercise all such rights as a secured
party under the California Uniform Commercial Code as it, in its sole judgment,
shall deem necessary or appropriate, including the right to liquidate the
Pledged Collateral and apply the proceeds thereof to reduce the principal amount
outstanding under the Loan Agreements. After the disposal of any of the Pledged
Collateral, Bank may deduct all reasonable legal and other expenses and
attorney's fees for protecting its interest and enforcing its remedies under the
Loan Agreements and this Agreement and shall apply the residue of the proceeds
to, or hold as a reserve against, the Obligations in such manner as Bank in its
reasonable discretion shall determine, and shall pay the balance, if any to
Pledgor.
5. Amendment of Loan Documents. Pledgor authorizes Bank, without notice
or demand and without affecting its liability hereunder, from time to time to
(a) renew, extend, or otherwise change the terms of the Loan Documents or any
part thereof; (b) take and hold security for the payment of the Obligations, and
exchange, enforce, waive and release any such security; and (c) apply such
security and direct the order or manner of sale thereof as Bank in its sole
discretion may determine.
6. Pledgor Waivers. Pledgor waives any right to require Bank to (a)
proceed against Borrower or any other person; (b) proceed against or exhaust any
security held from Borrower; (c) marshal any assets of Borrower; or (d) pursue
any other remedy in Bank's power whatsoever. Bank may, at its election, exercise
or decline or fail to exercise any right or remedy it may have against Borrower
or any security held by Bank, including without limitation the right to
foreclose upon any such security by judicial or nonjudicial sale, without
affecting or impairing in any way the liability of Pledgor hereunder. Pledgor
waives any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of the
liability of Borrower. Pledgor waives any setoff, defense or counterclaim that
Borrower may have against Bank. Pledgor waives any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or any
other rights against Borrower. Until all of the Obligations that Borrower owes
to Bank have been paid in full, Pledgor shall have no right of subrogation or
reimbursement, contribution or other rights against Borrower, and Pledgor waives
any right to enforce any remedy that Bank now has or may hereafter have against
Borrower. Pledgor waives all rights to participate in any security now or
hereafter held by Bank. Pledgor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, and notices of acceptance of this Agreement and of the existence,
creation, or incurring of new or additional indebtedness. Pledgor assumes the
responsibility for being and keeping itself informed of the financial condition
of Borrower and of all other circumstances bearing upon the risk of nonpayment
of any indebtedness or nonperformance of any obligation of Borrower, warrants to
Bank that it will keep so informed, and agrees that absent a request for
particular information by Pledgor, Bank shall have no duty to advise Pledgor of
information known to Bank regarding such condition or any such circumstances.
Pledgor waives the benefits of California Civil Code sections 2809, 2810, 2819,
2845, 2847, 2848, 2849, 2850, 2899 and 3433.
7. Notices. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other agreement entered
into in connection herewith shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by certified mail,
postage prepaid, return receipt requested, or by prepaid telefacsimile to
Pledgor or to Bank, as the case may be, at its addresses set forth below:
If to Pledgor: Xxxxx Xxxxxx
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Fax:
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If to Bank: Silicon Valley Bank
0000 Xxxxxx Xxxxx
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Xxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxx
FAX: (000) 000-0000
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
8. Choice Of Law And Venue; Jury Trial Waiver.
This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of California, without regard to principles
of conflicts of law. Each of Pledgor and Bank hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the County of Santa
Xxxxx, State of California. PLEDGOR AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND
AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO
ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
9. General Provisions.
(a) Successors and Assigns. This Agreement shall bind and inure
to the benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights hereunder
may be assigned by Pledgor without Bank's prior written consent, which consent
may be granted or withheld in Bank's sole discretion. Bank shall have the right
without the consent of or notice to Pledgor to sell, transfer, negotiate, or
grant participation in all or any part of, or any interest in, Bank's
obligations, rights and benefits hereunder.
(b) Time of Essence. Time is of the essence for the performance
of all obligations set forth in this Agreement.
(c) Severability of Provisions. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
(d) Amendments in Writing, Integration. This Agreement cannot be
amended or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement and the Loan Documents.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Agreement.
(f) Survival. All covenants, representations and warranties made
in this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding.
(g) Indemnity. Pledgor will indemnify, defend and hold harmless
Bank and its officers, employees and agents against: (a) all obligations,
demands, claims and liabilities asserted by any other party in connection with
the transactions contemplated by this Agreement; and (b) all loss or expenses
incurred, or paid by Bank, from, following, or consequential to transactions
between Bank and Pledgor (including reasonable attorneys' fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Pledgor: Bank:
SILICON VALLEY BANK
----------------------------------- By:
Xxxxx Xxxxxx ---------------------------
Title:
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EXHIBIT A
Stock Name Certificate Number Number of Shares/Units
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Brokerage Account Number
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