Exhibit 10.11
PLEDGE AND SECURITY AGREEMENT
THE CIT GROUP/BUSINESS CREDIT, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 27, 2002
Ladies and Gentlemen:
Reference is made to a certain Financing Agreement dated June 27, 2002, as
amended (herein called the "Financing Agreement") between you on the one hand,
and Boundless Technologies Inc. and Boundless Manufacturing Services (the
"Companies") on the other hand. Capitalized terms used herein and defined in the
Financing Agreement shall have the same meanings as set forth therein unless
otherwise specifically defined herein. As security for: (a) the full and
indefeasible payment and performance when due of all now existing and future (i)
Obligations of the undersigned (herein the "Pledgor") arising pursuant to any
guaranty now or hereafter executed by the Pledgor in your favor regarding the
Companies (herein collectively the "Guaranty") and (ii) Obligations of each of
the Companies to you, in each case whether absolute or contingent, however
acquired by you, and whether arising under the Financing Agreement and/or
Guaranty as now written or as amended or supplemented or augmented hereafter, in
law or otherwise (herein collectively the "Obligations"); (b) any liability or
indebtedness you may incur because of any guaranty you may issue at the request
of the Companies; (c) the amount of all expenses (including reasonable
attorneys' fees) incurred by you in collecting or attempting to collect any of
the Obligations whether from either of the Companies, the Pledgor or any other
obligor or in realizing upon collateral; and (d) any interest from the due date
at the Default Rate of Interest specified in the Financing Agreement on all
amounts payable to you hereunder (all of which are herein called the "Secured
Obligations"), the Pledgor hereby pledges, assigns, transfers, delivers and sets
over to you all of its right, title and interest in and to the securities listed
on the attached schedule, issued as indicated on said schedule (the
"Securities").
This pledge includes all right, title and interest in and to and a
continuing lien upon and security interest in, all of said Securities together
with any and all rights, coupons, warrants or rights to subscribe, options,
dividends, liquidating dividends, splits, dividends paid in stock, dividends
paid in Securities, new or reclassified Securities, or any other property which
the Pledgor is or may hereafter become entitled to receive on account of such
Securities, any and all increments, substitutions, additions or replacements
thereof, and any and all proceeds thereof (all collectively hereinafter referred
to as the "Pledged Collateral").
This Pledge and Security Agreement (the "Pledge Agreement") is executed as
an inducement to you to make loans or advances to the Companies, or either of
them, or issue guaranties at the request of the Companies, or either of them, or
otherwise to extend credit or financial accommodations to the Companies, or
either of them, or to enter into or continue a financing arrangement with the
Companies, or either of them, and is executed in consideration of your doing or
having done any of the foregoing.
The Pledgor agrees that any of the foregoing shall be deemed to have been
done or extended by you in consideration of and in reliance upon the execution
of this Pledge Agreement, but nothing herein shall obligate you to do any of the
foregoing.
The Pledgor shall be in default under this Pledge Agreement upon the
occurrence of any of the following (herein any such default shall be referred to
as an "Event of Default"):
1. the occurrence of any Event of Default under the Financing
Agreement;
2. if any warranty, representation or statement contained in this
Pledge Agreement is materially or substantially breached, or is, or
becomes materially or substantially untrue;
3. the commencement by or against the Pledgor of any bankruptcy,
insolvency, arrangement, reorganization, receivership or similar
proceedings under any federal or state law, provided that any such
involuntary proceeding which is commenced against the Pledgor is not
dismissed within thirty (30) days; or
4. the liability of the Pledgor under the Guaranty matures in
accordance with the provisions thereof.
In the event of the happening of any such Event of Default, then on ten
(10) days prior notice to the Pledgor, without the curing of such default within
such time, you may, without demand of performance, advertisement or notice of
intention to sell, or of the time or place of sale, and without notice to
redeem, or other notice or demand whatsoever to or upon the Pledgor (all and
each of which demands, advertisements and/or notices are hereby expressly
waived), forthwith or at any time or times thereafter, transfer to and/or
register in your name, or the name of your nominee, any or all of the Pledged
Collateral and/or collect, receive, appropriate and realize upon said Pledged
Collateral. In addition, and also without any of the aforesaid demands,
advertisements, and/or notices, upon the occurrence of any Event of Default as
defined herein, you may sell, assign, transfer and deliver the whole or any part
of the Pledged Collateral then held by you under this Pledge Agreement or
subject to this Pledge Agreement in one or more parcels, at public or private
sale or sales, at any Exchange Broker's Board, at your office or elsewhere, on
such terms and conditions, and at such prices as you may deem advisable, for
cash, upon credit, or for future delivery, with the right on your part to
-2-
become the purchaser thereof at any such sale or sales, free and clear of any
right to equity of redemption (which right or equity is hereby expressly waived
and released). Any notice of sale, disposition, or other intended action by you
required by applicable law and sent to the Pledgor at least ten (10) days prior
to such action shall constitute reasonable notice to the Pledgor. Prior to
exercising your rights contained herein you may in your discretion forward the
various coupons coming due on any bonds covered hereby directly to the Pledgor
for collection.
Net proceeds of any such disposition as aforesaid, after deduction of all
costs, including reasonable attorney's fees and expenses of every kind incurred
therein, shall be applied to the payment in whole or in part, in such order as
you may elect, of any of the Secured Obligations, whether then due or not due.
You agree to pay over and return any remaining balance to the Pledgor or to any
person entitled thereto, upon proper demand being made therefor, and if there be
any deficiency, the Pledgor and each of the Companies, jointly and severally,
shall continue to be fully liable for same.
Further, you are hereby expressly granted the right and irrevocable proxy,
in the event of the happening of any Event of Default (as defined herein), and
on ten (10) days prior notice to the Pledgor, without the curing of such Event
of Default within such time, to transfer to yourself or to your nominee any or
all of the Pledged Collateral or to register same in your name on the books of
the Companies or entity issuing same; to receive cash dividends, coupons and
income thereon and to hold the same as additional collateral security hereunder,
or to apply it against the Secured Obligations and to exercise any voting rights
with respect to said Collateral for any purposes as you in your discretion deem
advisable, and to otherwise exercise as to such Pledged Collateral, all rights,
powers and remedies as the owner thereof.
The Pledgor hereby represents and warrants that the Pledged Collateral is
owned by the Pledgor absolutely, and is free and clear of all liens and
encumbrances except for the pledge in your favor; that the Pledgor has full
right to pledge and transfer the same in accordance with the terms and
conditions of this Pledge Agreement, free of all encumbrances and without the
consent of any other person, firm, entity or corporation and without the need to
notify the issuing Companies and/or obtain their consent to the pledge; and that
said Pledged Collateral is not subject to any assessment. The Pledgor agrees to
defend its title to the Pledged Collateral at its own cost and expense, and to
pay, satisfy and discharge and any all assessments, liens or charges now or
thereafter placed upon the Pledged Collateral.
In the event that it becomes necessary to comply with any Federal or State
law or regulation or to make or file any registration thereunder in order for
you to exercise any of your rights hereunder, the Pledgor expressly agrees to do
or will cause to be done all acts and prepare and execute all documents
necessary to affect such compliance or registration, and to bear all reasonable
costs in connection therewith. The Pledgor agrees to indemnify and to hold you
harmless from and against any claim or liability; and to hold you harmless from
and against any claim or liability caused by (i) any untrue statement of
material fact, or omission to state a material fact (as required in
-3-
any registration or prospectus) or (ii) a failure to register or comply with any
such law or regulation.
The Pledgor recognizes that you may be unable to effect a public sale of
any or all of the Collateral, by reason of certain prohibitions contained in the
Securities Act of 1933 and applicable state securities law or otherwise, and may
be compelled to resort to one or more private sales thereof to a restricted
group of purchasers which will be obligated to agree, among other things, to
acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. The Pledgor acknowledges and agrees that
any such private sale may result in prices and other terms less favorable to you
than if such sale were a public sale and agrees that such circumstances shall
not, in and of themselves, result in a determination that such sale was not made
in a commercially reasonable manner. You shall be under no obligation to delay a
sale of any of the Pledged Collateral for the period of time necessary to permit
the issuer to register such securities for public sale under the Securities Act
of 1933, or under applicable state securities laws, even if the issuer agrees to
do so.
The Pledgor affirms and certifies that the Secured Obligations were not,
and will not be, incurred for the purpose of providing or obtaining any credit
for purchasing or trading in registered equity securities or other marketable
securities.
The Pledgor hereby agrees at your request to execute all necessary stock
powers in blank, to have the signatures on said powers guaranteed, to execute a
letter or other form confirming that the Pledged Collateral is not being pledged
to you for the purpose of providing or obtaining any credit for purchasing or
trading in registered equity securities or other marketable securities, and to
execute any further documents or papers whatsoever in order to carry out the
intent and purpose of this Pledge Agreement.
The pledge provided for herein shall be in addition to, and shall not be
deemed to affect, modify or limit any other rights, collateral, agreements or
security which you may now or hereafter hold whether granted or given to you by
the Pledgor, either of the Companies or by any other person, firm or
corporation.
It is understood and agreed that the rights and remedies herein enumerated
are not intended to be exhaustive but are in addition to any other rights or
remedies at law or in equity. You shall have the absolute right in your sole
discretion to determine the order in which your rights and remedies are to be
exercised, and your exercise of any right or remedy shall not preclude the
exercise of any other rights or remedies or be deemed to be a waiver thereof. No
act of forbearance, or agreement to forebear the enforcement of, or extension of
the date of maturity of, any Secured Obligation, shall in any way constitute a
release of, or a waiver or relinquishment of any of your rights or remedies.
-4-
The Pledgor expressly waives and relinquishes any rights of subrogation,
reimbursement, indemnity or recourse to or with respect to any of the assets or
properties of the Companies.
This Pledge Agreement is to be governed by the laws of the State of New
York and shall be binding on the heirs, administrators, executors, successors
and assigns of the Pledgor, and shall inure to the benefit of you and your
successors and assigns.
Very truly yours,
BOUNDLESS ACQUISITION CORP.
By /s/ Xxxxxx Xxxxxxx
---------------------------
Name:Xxxxxx Xxxxxxx
Title: CFO
Address: 000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
-5-
Schedule to Pledge Agreement between The CIT Group/Business Credit, Inc. and
(the "Pledgor")
Issuer Owner Certificate # # of Shares
------ ----- ------------- -----------
Boundless Technologies, Inc. Boundless Acquisition Corp. C-1 350
BOUNDLESS ACQUISITION CORP.
(the "Pledgor")
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
-6-
