Execution Copy
COLLATERAL AGENCY AGREEMENT
THIS COLLATERAL AGENCY AGREEMENT (this "Agreement"), dated as of March 7,
2006, is made among each of the Purchasers named on the signature pages hereof
(each a "Purchaser" and, collectively, the "Purchasers") and SOFAER CAPITAL
INC., as collateral agent for the Purchasers (in such capacity, the "Collateral
Agent").
The Purchasers have entered into a Securities Purchase Agreement dated as
of March 1, 2006 (as amended, modified, renewed, extended or replaced from time
to time, the "Securities Purchase Agreement") with Powerlinx, Inc., a Nevada
corporation (the "Company") under which the Purchasers will purchase certain
convertible debentures from the Company (as amended, modified, renewed, extended
or replaced from time to time, the "Debentures") and in connection therewith
will receive certain collateral to secure the Debentures. The Purchasers desire
to enter into this Agreement to provide, among other things, for (i) the
appointment, duties and responsibilities of a Collateral Agent, (ii) the
respective rights and interests of the parties in and to the Collateral, and
(iii) the administration of the Collateral upon the terms and subject to the
conditions set forth in this Agreement.
Accordingly, the parties hereby agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Securities Purchase Agreement. All capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings assigned to them in the Securities Purchase Agreement.
(b) Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" means any Person which, directly or indirectly, controls, is
controlled by or is under common control with another Person. For purposes of
the foregoing, "control," "controlled by" and "under common control with" with
respect to any Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Business Day" means a day (i) other than Saturday or Sunday, and (ii) on
which commercial banks are open for business in New York, NY.
"Collateral" the property now existing or hereafter acquired which may at
any time be or become subject to a security interest in favor of the Collateral
Agent or the Purchasers pursuant to the Documents or otherwise, securing the
payment and performance of the Obligations.
"Collateral Documents" means any agreement, document or instrument pursuant
to which any Obligor or any other Person provides a security interest in its
assets in favor of the Purchasers or the Collateral Agent for the benefit of the
Purchasers.
"Documents" means the Securities Purchase Agreement, the Debentures, any
Guaranty, the Collateral Documents and all other documents, instruments and
agreements delivered to the Purchasers, or the Collateral Agent, in connection
therewith.
"Guaranty" means any guaranty of the Obligations provided by any Person in
favor of the Purchasers.
"Obligations" means the indebtedness, liabilities and other obligations of
the Obligors to the Purchasers under or in connection with the Documents,
including all unpaid principal of the Debentures, all interest accrued thereon
and all other amounts payable by the Obligors to the Purchasers thereunder or in
connection therewith, whether now existing or hereafter arising, and whether due
or to become due, absolute or contingent, liquidated or unliquidated, determined
or undetermined.
"Obligor" means the Company or any guarantor of the Obligations.
"Person" means an individual, corporation, partnership, joint venture,
trust, unincorporated organization or other entity of whatever nature. -
"Pro Rata Share" of any Purchaser means (a) in connection with any payments
or distributions to any Purchaser, (i) in the case of accrued and unpaid
interest on any of the Obligations to any payment date, the proportion which the
amount of interest accrued and unpaid to such Purchaser bears to the aggregate
amount of interest accrued and unpaid to all Purchasers; (ii) in the case of
unpaid principal of any of the Obligations of the proportion which the amount of
unpaid principal owing to such Purchaser bears to the aggregate amount of unpaid
principal owing to all Purchasers; and (iii) in the case of any indebtedness in
respect of any fees, commissions, indemnities and other amounts then owing in
respect of the Obligations, the proportion which the amount of such indebtedness
owing to such Purchaser bears to the aggregate amount of such indebtedness owing
to all Purchasers; and (b) for purposes of Section 6, the proportion which the
amount of unpaid principal owing to such Purchaser bears to the aggregate amount
of unpaid principal owing to all Purchasers.
(c) Interpretation. In this Agreement, except to the extent the context
otherwise requires: (i) Any reference in this Agreement to an Article, a
Section, a Schedule or an Exhibit is a reference to an article hereof, a section
hereof, a schedule hereto or an exhibit hereto, respectively, and to a
subsection hereof or a clause hereof is, unless otherwise stated, a reference to
a subsection or a clause of the Section or subsection in which the reference
appears. (ii) The words "hereof,""herein," "hereto," "hereunder" and the like
mean and refer to this Agreement as a whole and not merely to the specific
Article, Section, subsection, paragraph or clause in which the respective word
appears. (iii) The meaning of defined terms shall be equally applicable to both
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the singular and plural forms of the terms defined. (iv) The words "including,"
"includes" and "include" shall be deemed to be followed by the words "without
limitation". (v) The captions and headings are for convenience of reference only
and shall not affect the construction of this Agreement.
SECTION 2 Appointment of a Collateral Agent.
(a) Appointment. The Purchasers hereby appoint the Collateral Agent and
authorize the Collateral Agent to execute the Collateral Documents and to take
such action as agent on their behalf and to exercise such powers and perform
such duties under this Agreement and the Collateral Documents as are delegated
to the Collateral Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto. The duties and obligations of the
Collateral Agent are strictly limited to those expressly provided for herein,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Collateral Agent. As to any matters not expressly provided for by this
Agreement, the Collateral Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Purchasers, and such instructions shall be binding
upon all Purchasers; provided, however, that except for action expressly
required of the Collateral Agent hereunder, the Collateral Agent shall in all
cases be fully justified in failing or refusing to act hereunder unless it shall
be indemnified to its satisfaction by the Purchasers against any and all
liability and expense which may be incurred by reason of taking or continuing to
take any such action, and that the Collateral Agent shall not in any event be
required to take any action which exposes the Collateral Agent to liability or
which is contrary to this Agreement or any other Document or applicable law.
Nothing in this Agreement shall, or shall be construed to, constitute the
Collateral Agent a trustee or fiduciary for any Purchaser. In performing its
functions and duties hereunder, the Collateral Agent shall act solely as the
agent of the Purchasers and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
any Obligor.
(b) Delegation of Duties. The Collateral Agent may, in its discretion,
employ from time to time one or more agents or attorneys-in-fact (including any
of the Collateral Agent's Affiliates) to perform any of the Collateral Agent's
duties under this Agreement. The Collateral Agent shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
SECTION 3 Duties and Obligations of the Collateral Agent.
(a) General Duties and Obligations of Collateral Agent. The duties and
obligations of the Collateral Agent hereunder shall consist of (i) accepting,
entering into, holding, maintaining, administering and enforcing all Collateral
Documents, including all Collateral subject thereto and all Liens created
thereunder, performing its obligations under the Collateral Documents, and
protecting, exercising and enforcing the interests, rights, powers and remedies
granted or available to it under, pursuant to or in connection with the
Collateral Documents or under applicable law in respect of the Collateral
Documents, (ii) selling, releasing, surrendering, realizing upon or otherwise
dealing with, in any manner and in any order, all or any portion of any
Collateral, (iii) making any demands or giving any notices under the Collateral
Documents, (iv) effecting amendments to and granting waivers under the
Collateral Documents, and (v) distributing payments to the Purchasers of amounts
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received by it in connection with the Collateral in each case in accordance with
the instructions of the Required Purchasers (subject to the provisions of
Sections 8(a) and 8(b) below).
(b) Holding of Collateral. The Collateral Agent agrees to hold all
Collateral hereafter delivered to it pursuant to the Collateral Documents, for
itself and for the benefit of the Purchasers, on and subject to the terms and
conditions set forth in the Collateral Documents and in this Agreement.
(c) Limitation on Collateral Agent's Duties in Respect of Collateral.
Beyond the exercise of reasonable care to assure the safe custody of Collateral
in the Collateral Agent's possession and the accounting for monies actually
received by the Collateral Agent hereunder in respect of the Collateral, the
Collateral Agent shall have no duty or liability to exercise or preserve any
rights, privileges or powers pertaining to any Collateral.
(d) Application of Proceeds. All amounts received or collected by the
Collateral Agent on account of the Obligations as proceeds of any collection,
sale or other realization upon any Collateral or otherwise shall be promptly
applied by the Collateral Agent in the following order: (i) first, to the
Collateral Agent for application to the payment of any fees, costs, expenses and
other amounts due the Collateral Agent; and (ii) second, to the Purchasers,
ratably in accordance with their Pro Rata Shares, for application to the payment
of the other Obligations. The Collateral Agent shall have no obligation to make
any payments to the Purchasers except out of amounts received by the Collateral
Agent or applied by the Collateral Agent in respect of the Collateral. If any
amount so received or collected by the Collateral Agent and applied as provided
in this Section 3 is rescinded or must otherwise be returned by the Collateral
Agent for any reason, each Purchaser shall, upon notice by the Collateral Agent,
forthwith pay over to the Collateral Agent such Purchaser's received portion of
the amount so returned. All payments hereunder shall be made to such accounts as
the Purchasers may designate by notice to the Collateral Agent.
(e) For Sole and Exclusive Benefit of Holders of Obligations. The
Collateral Agent will accept, hold, administer and enforce all Liens on the
Collateral at any time transferred or delivered to it and all other interests,
rights, powers and remedies at any time granted to or enforceable by the
Collateral Agent under or in respect of the Collateral Documents solely and
exclusively for the benefit of the present and future Purchasers, equally and
ratably, and will distribute all proceeds received by it in realization thereon
or from enforcement thereof solely and exclusively pursuant to the provisions of
this Section 3.
SECTION 4 Liability; Collateral Agent and Affiliates; Non-Reliance; Etc.
(a) Limitation on Liability. Neither the Collateral Agent nor any
Affiliate thereof nor any of their respective directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by it or them
under or in connection with this Agreement or any other Document, except for its
or their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Collateral Agent (i) may treat a Purchaser as
the holder of its Obligations for all purposes hereof unless and until the
Collateral Agent receives written notice of the assignment thereof signed by
such Purchaser and the Collateral Agent receives the written agreement of the
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assignee that such assignee is bound hereby as it would have been if it had been
an original Purchaser party hereto, in each case in form satisfactory to the
Collateral Agent, (ii) may consult with legal counsel (including counsel to any
Obligor), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, and
(iii) shall incur no liability to any Purchaser under or in respect of this
Agreement or any other Document by acting upon any notice, consent, certificate,
telegram, facsimile, email, telex or teletype message, statement or other
instrument or writing believed by it to be genuine and signed or sent by the
proper party or parties or by acting upon any representation or warranty made or
deemed to be made hereunder or under any other Document. Further, the Collateral
Agent (A) makes no warranty or representation to any Purchaser and shall not be
responsible to any Purchaser for the accuracy or completeness of any
information, exhibit or report furnished hereunder or under any other Document,
for any statements, warranties or representation (whether written or oral) made
or deemed made in or in connection with this Agreement or the other Documents,
(B) shall have no duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other Document on the part of any Obligor or any other Person or to inspect the
property, books or records of any Obligor or any other Person, and (C) shall not
be responsible to any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency, value or collectibility of this
Agreement, any Document or any Collateral.
(b) Collateral Agent and Affiliates. With respect to any Obligations
owing to the Collateral Agent (or its Affiliates), the Collateral Agent (or such
Affiliate) shall have the same rights and powers under this Agreement as any
other Purchaser and may exercise the same as though it were not the Collateral
Agent (or affiliated with the Collateral Agent); and the term "Purchaser" or
"Purchasers" shall, unless otherwise expressly indicated, include the Collateral
Agent in its individual capacity. The Collateral Agent and its Affiliates may
lend money to and generally engage in any kind of business with the Obligors,
all as if the Collateral Agent were not the Collateral Agent hereunder and
without any duty to account therefor to the Purchasers.
(c) Non-Reliance. Each Purchaser has itself been, and will continue to
be, based on such documents and information as it has deemed appropriate, solely
responsible for making its own independent appraisal of and investigations into
the financial condition, creditworthiness, condition, affairs, status and nature
of the Obligors or any of their subsidiaries and the nature and value of any
Collateral. Accordingly, each Purchaser confirms to the Collateral Agent and the
other Purchasers that it has not relied, and will not hereafter rely, on the
Collateral Agent or the other Purchasers (i) to check or inquire on such
Purchaser's behalf into the adequacy, accuracy or completeness of any
information provided by any Obligor or any other Person under or in connection
with this Agreement or the transactions contemplated by the Documents (whether
or not such information has been or is hereafter distributed to such Purchaser
by the Collateral Agent), or (ii) to assess, confirm or keep under review on
such Purchaser's behalf the financial condition, creditworthiness, condition,
affairs, status or nature of any Obligor, any subsidiary thereof, the nature or
value of any Collateral, the validity of the title of any Obligor to the
Collateral, the insurance maintained with respect to the Collateral, or the
payment of taxes, charges, assessments or Liens upon the Collateral. The
Collateral Agent hereby disclaims any representation or warranty to the present
and future Purchasers concerning the validity, enforceability or sufficiency of
the Collateral Documents, the validity, enforceability, perfection, priority of
the Liens granted under Collateral Documents or the nature, extent or value of
the Collateral.
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(d) Default. The Collateral Agent will not be required to inquire as to
the occurrence or absence of any defaults under the Documents and will not be
affected by or required to act upon any notice or knowledge as to the occurrence
of any such defaults unless and until it receives from or on behalf of the
Required Purchasers written notice stating that a default has occurred and is
continuing. The Collateral Agent will not commence any exercise of remedies or
any foreclosure actions or otherwise take any action or proceeding against any
of the Collateral (other than actions as necessary to prove, protect or preserve
the Liens securing the Obligations) unless and until it receives written notice
from or on behalf of the Required Purchasers directing it to exercise remedies
against the Collateral, and thereafter the Collateral Agent will be required to
act only if such notice is not withdrawn and only in accordance with the other
provisions of this Agreement.
(e) Independent Obligations. Except as expressly provided herein, each
party shall remain responsible for holding its Obligations, and the collection,
servicing and administration thereof.
SECTION 5 Solicitation of Instructions. (i) The Collateral Agent may at any
time solicit written confirmatory instructions from the Required Purchasers or
request an order of a court of competent jurisdiction as to any action that it
may be requested or required to take, or that it may propose to take, in the
performance of any of its obligations under this Agreement or the Collateral
Documents and may suspend performance of such obligations as it determines to be
appropriate until it receives such instructions or order. (ii) No written
direction given to the Collateral Agent by the Purchasers that in the sole
judgment of the Collateral Agent imposes, purports to impose or might reasonably
be expected to impose upon the Collateral Agent any obligation or liability not
set forth in or arising under this Agreement and the Collateral Documents will
be binding upon the Collateral Agent unless the Collateral Agent elects, at its
sole option, to accept such direction. (iii) If so requested by the Collateral
Agent, each Purchaser is authorized to provide, and shall provide, to the
Collateral Agent with such information as may be available to such Purchaser as
to the names and addresses of the Purchasers and the amount of Obligations
outstanding to each such Purchaser.
SECTION 6 Indemnification; Costs, Expenses and Fee.
(a) Indemnification. The Purchasers agree to indemnify the Collateral
Agent, its Affiliates, and their respective directors, officers, employees,
agents, counsel and other advisors (to the extent not reimbursed by the
Obligors) (each an "Indemnified Person"), ratably in accordance with their Pro
Rata Shares, against, and hold each of them harmless from, any and all
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including the reasonable fees and disbursements of counsel to the
Collateral Agent, which may be imposed on, incurred by, or asserted against any
Indemnified Person, in any way relating to or arising out of this Agreement or
any other Document or the transactions contemplated hereby or thereby or any
action taken or omitted by any Indemnified Person in connection with any of the
foregoing; provided that no Purchaser shall be liable to any Indemnified Person
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent they
are found by a final decision of a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or willful misconduct.
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(b) Costs and Expenses. Without limitation of the foregoing provisions
of this Section 6, each Purchaser agrees to reimburse the Collateral Agent and
its Affiliates promptly upon demand for such Purchaser's Pro Rata Share of any
costs and expenses or other charges incurred by the Collateral Agent or its
Affiliates and payable by any Obligor pursuant to the Documents, in each case to
the extent that the Collateral Agent or any Affiliate is not reimbursed for such
expenses or charges by the Obligors.
SECTION 7 Removal and Resignation of Collateral Agent.
(a) Resignation and Removal. Subject to the appointment and acceptance
of a successor Collateral Agent as provided below, the Collateral Agent may be
removed at any time, with or without cause, by the Required Purchasers, upon
prior written notice to the parties. The Collateral Agent may resign at any
time, upon prior written notice to the parties. Upon any such removal or
resignation, the Required Purchasers shall be entitled to appoint a successor
Collateral Agent, who shall agree in writing to be bound by the terms of this
Agreement in accordance with Section 4(a). Upon the acceptance of any successor
Collateral Agent of its appointment, such successor shall thereupon succeed to
and become vested with all the rights, powers, privileges, duties and
obligations of the Collateral Agent. If no successor Collateral Agent is
appointed prior to the effective date of the resignation of the resigning
Collateral Agent, the resigning Collateral Agent may appoint, after consulting
with the Purchasers, a successor Collateral Agent from among the Purchasers. In
the case of any resignation of the Collateral Agent, if no successor shall have
accepted within 60 days, the resignation shall nonetheless become effective upon
the expiration of such 60 day period, and the Purchasers shall perform all of
the duties of the Collateral Agent hereunder until such time, if any, as the
Required Purchasers appoint a successor agent as provided for above. The former
Collateral Agent shall be discharged from its duties and obligations as such
upon the effectiveness of such removal or resignation.
(b) Survival. The provisions of Sections 4 and 6, including all
obligations of the Purchasers with respect to the indemnification of the
Collateral Agent and the reimbursement of costs and expenses of the Collateral
Agent, shall survive the termination of the duties and obligations of the
Collateral Agent hereunder.
SECTION 8 Miscellaneous.
(a) Further Assurances and Additional Acts. Each of the parties shall
execute, acknowledge, deliver, file, notarize and register at its own expense
all such further agreements, instruments, certificates, documents and
assurances, and perform such acts as the Collateral Agent or the Required
Purchasers shall deem necessary or appropriate to effectuate the purposes of
this Agreement.
(b) Action by Collateral Agent. In taking any action on behalf of the
Purchasers and exercising such powers and performing such duties under this
Agreement and the Collateral Documents as are granted to the Collateral Agent
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hereunder and thereunder, except to the extent otherwise provided under herein
or in the Documents, the Collateral Agent shall act in each case in accordance
with the instructions of the Required Purchasers; provided, however, that,
notwithstanding any provision to the contrary herein or in any other Document,
without the consent of all Purchasers, the Collateral Agent shall not, and may
not be directed to, release any of the Collateral or terminate any Collateral
Document, except in connection with a sale or other disposition of Collateral as
contemplated by or permitted under the Securities Purchase Agreement or any
Collateral Document (including as a result of a exercise of any rights or
remedies in respect of any Collateral), as otherwise contemplated or permitted
hereunder or under the Collateral Documents or as contemplated by this
subsection (b). The Purchasers irrevocably authorize the Collateral Agent (i) to
release any Lien on any property granted to or held by the Collateral Agent
under any Collateral Document (A) upon the payment in full of all Obligations
(other than contingent indemnification obligations), (B) that is sold or to be
sold as part of or in connection with any such sale or disposition of Collateral
contemplated by or permitted under this Agreement or under any other Collateral
Document, (C) if approved, authorized or ratified in writing by the Purchasers,
or (D) as ordered pursuant to applicable law under a final and nonappealable
order or judgment of a court of competent jurisdiction; and (ii) to subordinate
any Lien on any Collateral to the holder of any senior Lien on such property
that is permitted by the Securities Purchase Agreement or the Debentures. Upon
request by the Collateral Agent at any time, the Purchasers will confirm in
writing the Collateral Agent's authority to release or subordinate its interest
in particular types or items of Collateral.
(c) Amendments to this Agreement. No amendment or waiver of any
provision of this Agreement or any other Document nor consent to any departure
therefrom by any Purchaser or the Collateral Agent shall in any event be
effective unless the same shall be in writing and signed (or consented to) by
the Required Purchasers, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that without the consent of all the Purchasers, no amendment, waiver or
consent shall do any of the following: (i) subject the Purchasers to any
additional obligations; (ii) reduce any amount payable to the Purchasers; (iii)
postpone any date fixed for any payment in respect of any amount payable to the
Purchasers; (iv) change the definition of "Required Purchasers" or any
definition or provision of this Agreement or other Collateral Document requiring
the approval of Required Purchasers or some other specified amount of
Purchasers; (v) amend the provisions of Section 3(d); or (vi) amend the
provisions of Section 8(a) or this Section 8(b); and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Collateral Agent, affect the rights, duties or obligations of the Collateral
Agent under or in respect of this Agreement.
(d) Assignment. The Purchasers' rights in and to the Collateral and the
Collateral Documents and in respect of their Obligations may be assigned by them
at their sole discretion, subject to the terms and conditions of the Documents.
Any transferee or assignee, as a condition to acquiring such rights in the
Collateral or interest in the Obligations, shall agree to be bound hereby.
(e) Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including by facsimile
transmission or email) and shall be mailed, sent or delivered at or to the
address or facsimile number or email address of the respective party or parties
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set forth in the Securities Purchase Agreement, or at or to such other address
or facsimile number or email address as such party or parties shall have
designated by ten days' advance written notice to the other party or parties.
All such notices and communications shall be effective (i) if delivered by hand,
when delivered; (ii) if sent by mail, upon the earlier of the date of receipt or
five Business Days after deposit in the mail, first class (or air mail, with
respect to communications to be sent to or from the United States), postage
prepaid; and (iii) if sent by facsimile or email, when sent; provided, however,
that notices and communications to the Collateral Agent shall not be effective
until received. Electronic mail may be used only for routine communications,
such as distribution of informational documents or documents for execution by
the parties thereto, and may not be used for any other purpose.
(f) No Waiver; Cumulative Remedies. No failure on the part of the
Collateral Agent or any Purchaser to exercise, and no delay in exercising, any
right, remedy, power or privilege hereunder or under any other Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, remedy, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights and remedies under this Agreement and the other Documents are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to the Collateral Agent or any Purchaser.
(g) Costs and Expenses. Except as expressly provided herein, each of the
parties shall absorb its own costs and expenses (including fees and
disbursements of counsel) in connection with the negotiation, preparation,
execution and performance of this Agreement.
(h) Obligations Several. The obligations of the Purchasers hereunder are
several. The failure of any Purchaser or the Collateral Agent to carry out its
obligations hereunder shall not relieve any other Purchaser or the Collateral
Agent of any obligation hereunder, nor shall any Purchaser or the Collateral
Agent be responsible for the obligations of, or any action taken or omitted by,
any other Person hereunder. Nothing contained in this Agreement shall be deemed
to cause any Purchaser or the Collateral Agent to be considered a partner of or
joint venturer with any other Purchaser or Purchasers, the Collateral Agent or
any Obligor.
(i) Benefits of Agreement. This Agreement is entered into for the sole
protection and benefit of the parties hereto and their successors and assigns,
and no other Person shall be a direct or indirect beneficiary of, or shall have
any direct or indirect cause of action or claim in connection with, this
Agreement.
(j) Effectiveness. This Agreement shall become effective on the date on
which each of the parties hereto shall have signed a copy hereof, and thereafter
shall be binding upon, inure to the benefit of and be enforceable by each
Purchaser, the Collateral Agent (upon its acceptance of its appointment
hereunder), and their respective successors and assigns.
(k) Governing Law. This agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
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(l) Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the matters set forth herein and supersedes any
prior agreements, commitments, discussions and understandings, oral or written,
with respect thereto.
(m) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this Agreement
shall be prohibited by or invalid under any such law or regulation in any
jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
(n) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of -
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
(o) Interpretation. This Agreement is the result of negotiations among
and has been reviewed by counsel to the parties, and is the product of all
parties hereto. Accordingly, this Agreement shall not be construed against a
Purchaser or the Collateral Agent merely because of such Purchaser's or the
Collateral Agent's involvement in the preparation hereof.
[Signature on following page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
THE PURCHASERS
[________________________________________]
By:______________________________________
Title:
[________________________________________]
By:______________________________________
Title:
[________________________________________]
By:______________________________________
Title:
THE COLLATERAL AGENT
SOFAER CAPITAL INC.
By:_______________________________
Name:
Title:
Acknowledged and Agreed:
THE COMPANY
POWERLINX, INC.
By:__________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
