PLEDGE AGREEMENT
THIS
PLEDGE AGREEMENT
(this
“Agreement”),
dated
as of August 22, 2008, is made by and between HYDROGEN
CORPORATION, a
Nevada
corporation
(“the
“Pledgor”)
in
favor of FEDERATED
XXXXXXXX FUND, a
portfolio of Federated Equity Funds, a Massachusetts business trust, as agent
for the Lenders (as defined below) (in such capacity, together with its
successors and assigns, the “Pledgee”).
RECITALS
A. The
Pledgor, Hydrogen, L.L.C., an Ohio limited liability company (the “Borrower”),
Federated Xxxxxxxx Fund, a portfolio of Federated Equity Funds, a Massachusetts
business trust and Samsung C&T Corporation, a corporation organized under
the laws of the Republic of Korea (collectively, together with their respective
successors and assigns, the “Lenders”),
and
the Pledgee in its capacity as Agent for the benefit of the Lenders are parties
to that certain Loan and Security Agreement of even date herewith (as amended,
the “Loan
Agreement”).
Capitalized terms used herein but not defined herein shall have the meanings
ascribed thereto in the Loan Agreement.
B. Pursuant
to the Loan Agreement, the Lenders are making term loans to the Borrower
(the
“Loan”).
C. As
a
condition to the making of the Loan to the Borrower and
pursuant to that certain Guaranty, dated as of even date herewith, between
the
Agent and the Pledgor, the
Pledgor is required to execute and deliver this Agreement and shall have
made
the pledge contemplated hereunder of its membership interest in the Borrower
to
provide security for the Borrower’s obligations under the Loan Agreement and any
and all other instruments, agreements and documents delivered or executed
in
connection therewith (as any of the foregoing may be amended, supplemented
or
modified from time to time, collectively, the “Loan
Documents”).
NOW,
THEREFORE,
in
consideration of the premises hereinabove, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the Pledgor hereby covenants and agrees with the Pledgee as
follows:
1. SECURITY
FOR OBLIGATIONS, ETC.
This
Agreement is for the benefit of the Pledgee (in its capacity as Agent for
the
benefit of the Lenders) and any successor Agents appointed pursuant to the
Loan
Agreement to secure the prompt and complete payment and performance when
due of
all obligations, liabilities, indebtedness (whether for principal, interest,
charges, or fees), costs, expenses, covenants, indemnities and agreements
of
every nature whatsoever of the Borrower to the Lenders and the Pledgee (in
its
capacity as Agent for the benefit of the Lenders) now existing or hereafter
arising under the Loan Agreement, this Agreement, and any and all other Loan
Documents (all of the foregoing being herein collectively called the
“Secured
Obligations”).
2. DEFINITION
OF PLEDGED COLLATERAL.
As used
herein, the term “Pledged
Collateral”
shall
mean one hundred percent (100%) of Pledgor’s membership interest in the
Borrower.
3. PLEDGE
OF PLEDGED COLLATERAL AND OTHER COLLATERAL.
3.1 Pledge.
To
secure the Secured Obligations and for the purposes set forth in Section
1
hereof,
Pledgor hereby pledges, collaterally assigns and conveys, and grants a security
interest in and lien on, in favor of Pledgee (as Agent for the benefit of
the
Lenders), all of Pledgor’s right, title and interest in, to, and under (A) the
Pledged Collateral, (B) any additional Pledged Collateral acquired pursuant
to
Section
3.2
below
(whether by purchase, dividend, distribution, merger, consolidation, sale
of
assets, split, spin-off, or any other dividend or distribution of any kind
or
otherwise), (C) all distributions, dividends, cash, certificates, liquidation
rights and interests, options, rights, warrants, instruments or other property
from time to time received, receivable or otherwise distributed in respect
of or
in exchange or substitution for any and all of the Pledged Collateral, and
(D)
all proceeds, products, replacements and substitutions for any of the foregoing,
in each case whether now owned or hereafter acquired by the Pledgor
(collectively, the “Collateral”).
The
Pledgor shall permit the Pledgee to file a UCC Financing Statement naming
the
Pledgor as debtor and the Pledgee as secured party with respect to the
Collateral in any jurisdiction reasonably required by the Pledgee (including
with the Nevada Secretary of State).
3.2 Subsequently
Acquired Pledged Collateral.
If at
any time or from time to time after the date hereof, the Pledgor shall acquire
any additional Pledged Collateral, including any further equity in the Borrower
(whether by purchase, dividend, distribution, merger, consolidation, sale
of
assets, split, spin-off, or any other dividend or distribution of any kind
or
otherwise), the Pledgor will forthwith pledge additional Collateral. The
Pledgor
shall permit the Pledgee to file a UCC Financing Statement naming the Pledgor
as
debtor and the Pledgee as secured party with respect to the additional
Collateral in any jurisdiction reasonably required by the Pledgee (including
with the Nevada Secretary of State).
3.3 Certificated
Pledged Collateral.
In
addition to anything contained in Sections
3.1 and 3.2
hereof,
if any Pledged Collateral (whether now owned or hereafter acquired) is or
becomes evidenced by a certificated security, the Pledgor shall promptly
notify
the Pledgee thereof and shall promptly take all actions required to perfect
the
security interest of the Pledgee (as Agent for the benefit of the Lenders)
under
applicable law (including, in any event, delivery of physical possession
of all
certificates to the Pledgee, and take any other action required or appropriate
under this Agreement or the Uniform Commercial Code of the State of New York
or
equivalent provisions of any other applicable jurisdiction (the “UCC”)).
4. VOTING,
ETC.
Unless
and until an Event of Default (as defined in the Loan Agreement) occurs,
the
Pledgor shall be entitled to vote any and all of the Pledged Collateral.
All
such rights of the Pledgor to vote shall cease in case an Event of Default
shall
occur and the Pledgee elects to enforce its rights and remedies against the
Pledged Collateral and so directs and notifies the Pledgor.
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5. PAYMENTS
AND OTHER DISTRIBUTIONS.
Unless
and until an Event of Default (as defined in the Loan Agreement) occurs,
all
cash distributions payable in respect of the Pledged Collateral shall be
paid to
the Pledgor. All such rights of the Pledgor to receive such cash distributions
shall cease in case an Event of Default shall occur and the Pledgee elects
to
enforce its rights against the Pledged Collateral and so directs and notifies
the Pledgor. The Pledgee shall be entitled to receive directly, and to retain
as
part of the Collateral:
(a) all
other
or additional securities or investment property, or rights to subscribe for
or
purchase any of the foregoing, or property (other than cash) paid or distributed
by way of dividend in respect of the Pledged Collateral;
(b) all
other
or additional securities, investment property or property (including cash)
paid
or distributed in respect of the Pledged Collateral by way of split, spin-off,
split-up, reclassification, combination of shares or similar rearrangement;
and
(c) all
other
or additional securities, investment property or property which may be paid
in
respect of the Collateral by reason of any consolidation, merger, exchange,
dividend, split, or distribution, conveyance of assets, liquidation or similar
reorganization or other disposition of Collateral.
If
at any
time the Pledgor shall obtain or possess any of the foregoing Collateral
described in this Section, the Pledgor shall be deemed to hold such Collateral
in trust for the Pledgee and the Pledgor shall promptly surrender and deliver
such Collateral to the Pledgee.
6. REMEDIES
IN CASE OF AN EVENT OF DEFAULT.
In case
an Event of Default occurs or exists, the Pledgee shall be entitled to exercise
all of the rights, powers and remedies (whether vested in it by this Agreement,
the Loan Agreement, any other Loan Documents, and/or in equity or by law,
and
including, without limitation, all rights and remedies of a secured party
of a
debtor in default under the UCC) for the protection and enforcement of its
rights in respect of the Collateral, and to the fullest extent permitted
by
applicable law, the Pledgee shall be entitled, without limitation, to exercise
the following rights, which the Pledgor hereby agrees to be commercially
reasonable:
(a) to
receive all amounts payable in respect of the Collateral otherwise payable
under
Section
5
hereof
to the Pledgor;
(b) to
transfer all or any part of the Collateral into the Pledgee’s name or the name
of its nominee or nominees;
(c) to
vote
all or any part of the Collateral and otherwise act with respect thereto
as
though it were the outright owner thereof;
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(d) at
any
time or from time to time to sell, assign and deliver, or grant options to
purchase, all or any part of the Collateral in one or more parcels, or any
interest therein, at any public or private sale at any exchange, broker’s board
or at any of the Pledgee’s offices or elsewhere, without demand of performance,
advertisement or notice of intention to sell or of time or place of sale
or
adjournment thereof or to redeem (all of which, except as may be required
by
mandatory provisions of applicable law, are hereby expressly and irrevocably
waived by the Pledgor) for cash, on credit or for other property, for immediate
or future delivery without any assumption of credit risk, and for such price
or
prices and on such terms as the Pledgee in its absolute discretion may
determine. Pledgor agrees that to the extent that notice of sale shall be
required by law that at least ten (10) calendar days’ notice to the Pledgor of
the time (which shall be during normal business hours) and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Pledgee shall not be obligated to make any sale
of
Collateral regardless of notice of sale having been given. The Pledgee may
adjourn any public or private sale from time to time by announcement at the
time
and place fixed therefor, and any such sale may, without further notice,
be made
at the time and place to which it was so adjourned. Pledgor hereby waives
and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the collateral, whether before or after sale
hereunder, and all rights, if any of marshalling the Collateral and any other
security for the Secured Obligations or otherwise. At any such sale, unless
prohibited by applicable law, the Pledgee may bid for and purchase all or
any
part of the Collateral so sold free from any such right or equity of redemption.
The Pledgee shall not be liable for failure to collect or realize upon any
or
all of the Collateral or for any delay in so doing nor shall the Pledgee
be
under any obligation to take any action whatsoever with regard
thereto;
(e) to
settle, adjust, compromise and arrange all accounts, controversies, questions,
claims and demands whatsoever in relation to all or any part of the
Collateral;
(f) in
respect of the Collateral, to execute all such contracts, agreements, deeds,
documents and instruments, to bring, defend and abandon all such actions,
suits
and proceedings, and to take all actions in relation to all or any part of
the
Collateral as the Pledgee in its absolute discretion may determine;
(g) to
appoint managers, sub-agents, officers and servants for any of the purposes
mentioned in the foregoing provisions of this Section and to dismiss the
same,
all of the Pledgee in its absolute discretion may determine; and
(h) generally,
to take all such other action as the Pledgee in its absolute discretion may
determine as incidental or conducive to any of the matters or powers mentioned
in the foregoing provisions of this Section and which the Pledgee may or
can do
lawfully and to use the name of the Pledgor for the purposes aforesaid and
in
any proceedings arising therefrom.
7. REMEDIES,
ETC., CUMULATIVE.
Each
right, power and remedy of the Pledgee provided for in this Agreement, the
Loan
Agreement, any Loan Document or any other security agreement, mortgage, guaranty
or now or hereafter existing at law or in equity or by statute shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee
of any
one or more of the rights, powers or remedies provided for in this Agreement,
the Loan Agreement, or any other Loan Document or now or hereafter existing
at
law or in equity or by statute or otherwise shall not preclude the simultaneous
or later exercise by the Pledgee of all such other rights, powers or remedies,
and no failure or delay on the part of the Pledgee to exercise any such right,
power or remedy shall operate as a waiver thereof. All moneys collected by
the
Pledgee upon sale or other disposition of the Collateral, together with all
other moneys received by the Pledgee hereunder, shall be applied in accordance
with the provisions of the Loan Agreement.
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8. FURTHER
ASSURANCES.
Pledgor
agrees that, at any time and from time to time, Pledgor will join with the
Pledgee in executing and, at the Pledgor’s own expense, will file and refile
under the UCC such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem necessary or appropriate
and
wherever required or permitted by law in order to perfect and preserve the
Pledgee’s security interest in the Collateral, and hereby authorizes the Pledgee
to file financing statements and amendments thereto relative solely to the
Collateral, and agrees to do such further acts and things and to promptly
execute and deliver to the Pledgee such additional conveyances, assignments,
agreements and instruments as the Pledgee may require or deem advisable to
carry
into effect the purpose of this Agreement or to further assure and confirm
unto
the Pledgee its rights, powers and remedies hereunder.
9. REASONABLE
CARE BY PLEDGEE.
The
Pledgee shall be deemed by the Pledgor 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 Pledgee accords
its
own similar property.
10. TRANSFER
BY THE PLEDGOR.
The
Pledgor shall not sell, transfer or otherwise dispose of, grant any option
with
respect to, or pledge or otherwise encumber any of the Collateral or any
interest therein.
11. REPRESENTATIONS
AND WARRANTIES OF THE PLEDGOR.
Pledgor
hereby represents and warrants to the Pledgee, which representations and
warranties shall survive the execution and delivery of this Agreement, as
follows:
11.1 Validity,
Perfection and Priority.
The
pledge and security interests in the Collateral granted to the Pledgee
constitute valid and continuing security interests in the Collateral. Upon
the
filing of a UCC Financing Statement naming the Pledgor as debtor and the
Pledgee
as secured party with the Nevada Secretary of State, the security interests
in
the Pledged Collateral granted to the Pledgee hereunder constitute valid
and
perfected security interests therein.
11.2 No
Liens; Other Financing Statements.
(a) Except
for the liens and security interests granted to the Pledgee, the Pledgor
is the
legal and beneficial owner of, and has good title to, the Pledged Collateral
and
is the lawful owner of all of the other Collateral whether now existing or
hereafter acquired and will continue to own each item of the Collateral free
and
clear of any and all pledges, liens, mortgages, hypothecations, security
interests, charges, rights, options, claims and other encumbrances of all
other
Persons and the Pledgor shall defend the Collateral against all claims and
demand of all Persons at any time claiming the same or any interest therein
adverse to the Pledgee.
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(b) No
financing statement or other evidence of lien covering or purporting to cover
any of the Collateral is on file in any public office.
11.3 Pledged
Collateral.
(a) The
Pledged Collateral is and all other Pledged Collateral in which the Pledgor
shall hereafter xxxxx x xxxx or security interest pursuant to Section
2
hereof
will be, duly authorized, validly issued, and, except for the pledge provided
in
Section
3.1
hereof
in favor of Pledgee, none of such Pledged Collateral is or will be subject
to
any legal or contractual restriction. The Pledged Collateral is, as of the
date
hereof, and shall be at all times hereafter during the term of this Agreement,
freely transferable without restriction or limitation (except as limited
by the
terms of this Agreement).
(b) The
Pledge Collateral constitutes all of the issued and outstanding securities
and
investment property legally and beneficially owned by the Pledgor on the
date
hereof in or relating to Borrower. The Pledgor is the sole member of the
Borrower.
11.4 Power
and Authority.
The
Pledgor has the power and authority to pledge and assign all of the Collateral
pursuant to this Agreement. The Pledgor has executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligations of the Pledgor, enforceable against the Pledgor in accordance
with
the terms herein.
11.5 No
Violation.
Neither
the execution, delivery or performance by the Pledgor of this Agreement,
nor
compliance with the terms and provisions hereof by the Pledgor nor the
consummation of the transactions contemplated hereby will conflict or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under any agreement
or
other instrument to which Pledgor is a party.
11.6 Corporate
Identification Number.
Pledgor’s corporate identification number issued by the Nevada Secretary of
State is C16508-1999.
12. COVENANTS
OF THE PLEDGOR.
Pledgor
covenants and agrees with the Pledgee that on and after the date hereof and
until all of the Secured Obligations shall have been paid in full:
12.1 Collateral.
(a) The
Pledgor will defend the Pledgee’s right, title and security interest in and to
the Collateral against the claims and demands of all Persons whomsoever;
(b) the
Pledgor will have good and marketable title to and right to pledge any other
property at any time hereinafter constituting Collateral and will likewise
defend the right thereto and security interest therein of the Pledgee; and
(c)
except the Operating Agreement in effect on the date hereof, Pledgor will
not
without the advance written consent of the Pledgee, with respect to any
Collateral, enter into any shareholder type agreements, voting agreements,
voting trusts, trust deeds, irrevocable proxies or any other similar agreements
or instruments.
12.2 Right
of Inspection.
The
Pledgee and its representatives shall upon reasonable advance notice have
full
and free access to all the books, correspondence and records of the Pledgor
relating to the Collateral, if any, and the Pledgee and its representatives
may
examine the same, take extracts therefrom and make photocopies
thereof.
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12.3 Compliance
with Laws.
The
Pledgor will comply in all material respects with all requirements of law
applicable to the Collateral or any part thereof.
12.4 Payment
of Obligations.
The
Pledgor will pay promptly when due all taxes, assessments and governmental
charges or levies imposed upon the Collateral or in respect of any income
or
profits therefrom, as well as all claims of any kind against or with respect
to
the Collateral.
12.5 No
Impairment.
The
Pledgor will not take or permit to be taken any action which could impair
the
Pledgee’s rights in the Collateral. The Pledgor will not create, incur or permit
to exist, will defend the Collateral against and will take such other action
as
is necessary to remove, any lien or claim on or to the Collateral, other
than
the liens created hereby, and will defend the right, title and interest of
the
Pledgee in and to any of the Collateral against the claims and demands of
all
Persons whomsoever.
12.6 Performance
by Pledgee of Pledgor’s Obligations; Reimbursement.
If the
Pledgor fails to perform or comply with any of the agreements contained herein,
the Pledgee may, without notice to or consent by the Pledgor, perform or
comply
or cause performance or compliance therewith, and the expenses of the Pledgee
incurred in connection with such performance or compliance shall be payable
by
the Pledgor to the Pledgee on demand, and such reimbursement obligation shall
be
secured hereby; provided,
however,
the
Pledgee shall not be under any obligation to taken any such action.
12.7 Further
Identification of Pledged Collateral.
The
Pledgor will furnish to the Pledgee from time to time such reports in connection
with the Pledged Collateral as the Pledgee may reasonably request from time
to
time.
12.8 Continuous
Perfection.
The
Pledgor will not change the Pledgor’s name, in any manner which might make any
financing or continuation statement filed hereunder seriously misleading
within
the meaning of any applicable provision of Article 9 of the UCC) unless the
Pledgor shall have given the Pledgee at least fifteen (15) days prior written
notice thereof and shall have taken all action necessary or reasonably requested
by the Pledgee to amend such financing statement or continuation statement
so
that it is not seriously misleading. The Pledgor will not change the Pledgor’s
residence, unless the Pledgor shall have given the Pledgee at least fifteen
(15)
days prior written notice thereof and shall have taken such action as is
necessary to cause the security interest of the Pledgee in the Pledged
Collateral to continue to be perfected.
12.9 Stay
or Extension Laws.
The
Pledgor will not at any time claim, take, insist upon or invoke the benefit
or
advantage of or from any law now or hereafter in force providing for the
valuation or appraisement of the Pledged Collateral prior to any sale or
sales
thereof to be made pursuant to the provisions hereof or pursuant to the decree,
judgment, or order of any court of competent jurisdiction; nor, after such
sale
or sales, claim or exercise any right under any statute now or hereafter
made or
enacted by an state to redeem the property so sold or any part thereof, and
the
Pledgor hereby expressly waives, on behalf of the Pledgor and each and every
person claiming by, through and under the Pledgor, all benefit and advantage
of
any such law or laws, and covenants that the Pledgor will not invoke or utilize
any such law or laws or otherwise hinder, delay or impede the execution of
any
power, right or remedy herein or hereby granted and delegated to the Pledgee,
but will authorize, allow and permit the execution of every such power, right
or
remedy as though no such law or lass had been made or enacted.
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12.10 Borrower’s
Records; Sole Member.
The
Pledgor shall cause the Borrower to make a notation on the records of the
Borrower indicating the interest granted hereby in favor of the Pledgee
(as
Agent for the benefit of the Lenders). The Pledgor will remain the sole
member
of the Borrower.
13. PLEDGOR’S
OBLIGATIONS ABSOLUTE, ETC.
The
obligations of the Pledgor under this Agreement shall be absolute and
unconditional in accordance with its terms and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any change in the time, place
or
manner of payment of, or in any other term of, all or any of the Secured
Obligations, any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or
any
other action or inaction under or in respect of the Loan Agreement or any
other
Loan Document (as defined in the Loan Agreement), or any of the other documents,
instruments or agreements relating to the Secured Obligations or any other
instrument or agreement referred to therein or any assignment or transfer
of any
thereof; (b) any lack of validity or enforceability of the Loan Agreement,
or
any other Loan Document (as defined in the Loan Agreement), or any other
documents, instruments or agreement referred to therein or any assignment
or
transfer of any thereof; (c) any furnishing of any additional security or
collateral to the Pledgee or its assignees or any acceptance thereof or any
release of any security by the Pledgee or its assignees; (d) any limitation
on
any party’s liability or obligations under any such instrument or agreement or
any invalidity or unenforceability, in whole or in party, of any such instrument
or agreement or any term thereof; (e) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other
like
proceeding relating to the Pledgor, as applicable, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any
such proceeding, whether or not the Pledgor shall have notice or knowledge
of
any of the foregoing; (f) any exchange, release or nonperfection of any other
collateral, or any release, or amendment or waiver of or consent to departure
from any guaranty or security, for all or any of the Secured Obligations;
or (g)
any other circumstance which might otherwise constitute a defense available
to,
or a discharge of, the Pledgor.
14. NOTICES,
ETC.
Any
notice required or desired to be served, given or delivered hereunder shall
be
in the form and manner specified in the Loan Agreement.
15. MISCELLANEOUS.
The
Pledgor agrees with the Pledgee that each of the obligations and liabilities
of
the Pledgor to the Pledgee under this Agreement may be enforced against the
Pledgor without the necessity of joining any other Person (as defined in
the
Loan Agreement) as a party. This Agreement shall create a continuing security
interest in the Collateral and shall be binding upon the heirs and legal
beneficiaries, and permitted successors and assigns of the Pledgor, as
applicable, and shall inure to the benefit of and be enforceable by the Pledgee
and its successors and assigns. Unless otherwise defined herein, terms defined
in the UCC as in effect in the State of New York are used herein as therein
defined. The headings in this Agreement are for convenience of reference
only
and shall not limit or define the meaning hereof. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all
of
which shall constitute one instrument. If any provision of this Agreement
shall
prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain
binding
on all parties hereto. The Pledgor shall have no rights of subrogation as
to any
of the Pledged Collateral until full and complete performance and payment
of the
Secured Obligations.
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16. TERMINATION.
This
Agreement shall terminate after the Secured Obligations are paid in full
and the
Loan Agreement is terminated in accordance with its terms. Upon the termination
of this Agreement, the Pledgee, at the request of the Pledgor and at the
expense
of the Pledgor, will promptly execute and deliver to the Pledgor the proper
instruments acknowledging the termination of this Agreement and will duly
assign, transfer and deliver to the Pledgor or to whomsoever shall be lawfully
entitled to receive the same (without recourse and without any representation
or
warranty of any kind) such of the Collateral as may be in the possession
of the
Pledgee and has not theretofore been sold or otherwise applied or released
pursuant to this Agreement.
17. AMENDMENTS;
MARSHALLING.
None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Pledgor
and
the Pledgee. The Pledgee shall be under no obligation to marshal any assets
or
collateral in favor of the Pledgor or any other person or entity or against
or
in payment of any or all of the Secured Obligations.
18. APPLICABLE
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK, THE LAWS OF WHICH PLEDGOR AND PLEDGEE
HEREBY
EXPRESSLY ELECT TO APPLY TO THIS AGREEMENT, WITHOUT GIVING EFFECT TO PROVISIONS
FOR CHOICE OF LAW HEREUNDER. PLEDGOR AND PLEDGEE AGREES THAT ANY ACTION OR
PROCEEDING BROUGHT TO ENFORCE OR ARISING OUT OF THIS AGREEMENT SHALL BE
COMMENCED IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT.
19. WAIVER
OF JURY TRIAL.
PLEDGOR
HEREBY WAIVES ANY AND ALL RIGHTS THAT IT MAY NOW OR HEREAFTER HAVE UNDER
THE
LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE TO A TRIAL BY JURY OF ANY
AND
ALL ISSUES ARISING EITHER DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING
BETWEEN PLEDGOR, PLEDGEE OR ITS SUCCESSORS AND ASSIGNS, OUT OF OR IN ANY
WAY
CONNECTED WITH THIS AGREEMENT. IT IS INTENDED THAT SAID WAIVER SHALL APPLY
TO
ANY AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY ACTION OR PROCEEDINGS
BETWEEN PLEDGOR AND PLEDGEE. PLEDGOR WAIVES ALL RIGHTS TO INTERPOSE ANY CLAIMS,
DEDUCTIONS, SETOFFS OR COUNTERCLAIMS OF ANY KIND, NATURE OR DESCRIPTION IN
ANY
ACTION OR PROCEEDING INSTITUTED BY PLEDGEE WITH RESPECT TO THIS AGREEMENT
OR ANY
MATTER ARISING THEREFROM OR RELATING THERETO, EXCEPT COMPULSORY
COUNTERCLAIMS.
-
9
-
20. CONSENT
TO JURISDICTION.
PLEDGOR
HEREBY (a) IRREVOCABLY SUBMITS AND CONSENTS TO THE EXCLUSIVE JURISDICTION
OF THE
STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, WITH RESPECT TO
ANY
ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY MATTER ARISING
THEREFROM OR RELATING THERETO, AND (b) WAIVES ANY OBJECTION BASED ON VENUE
OR
FORUM NON CONVENIENS WITH RESPECT THERETO. IN ANY SUCH ACTION OR PROCEEDING,
PLEDGOR WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS
AND PAPERS THEREIN AND AGREES THAT THE SERVICE THEREOF MAY BE MADE BY CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO PLEDGOR AT ITS OFFICES SET FORTH
HEREIN OR OTHER ADDRESS THEREOF OF WHICH PLEDGEE HAS RECEIVED NOTICE AS PROVIDED
IN THIS AGREEMENT.
[Signature
Page Follows]
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10
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Pledge Agreement to be executed and delivered
as
of the date first above written.
|
PLEDGOR:
|
||||
|
HYDROGEN
CORPORATION
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Name:
|
Xxxx X. Xxxxx | |||
|
Title:
|
Chief Executive Officer | |||
|
PLEDGEE:
|
||||
|
FEDERATED
XXXXXXXX FUND
|
||||
|
a
portfolio of Federated Equity Funds
|
||||
|
By:
|
/s/ Xxxxxxxx Xxxxxxx | |||
|
Name:
|
Xxxxxxxx Xxxxxxx | |||
|
Title:
|
Vice President | |||
|
Acknowledged
and Agreed:
|
||||
|
COMPANY:
|
||||
|
HYDROGEN,
L.L.C.
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Name:
|
Xxxx X. Xxxxx | |||
| Chief Executive Officer | ||||
