Exhibit O
PLEDGE AGREEMENT
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THIS AGREEMENT, executed and delivered as of January 1, 2001, is from
ENVIRONMENTAL OPPORTUNITIES FUND II (INSTITUTIONAL), L.P., a Delaware limited
partnership ("Debtor"), to FUND II MGT. CO., L.L.C., a Delaware limited
liability company ("Secured Party"), and the parties hereto do hereby agree as
follows:
I.
Parties, Collateral and Obligations
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Debtor, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, hereby grants to Secured Party a security interest
in and pledge of all assets of Debtor (the "Assets"); together with all
proceeds, monies, income and benefits attributable to or accruing to said
property, which Debtor is or may hereafter become entitled to receive on account
of said property. All property in which the Secured Party is herein granted a
security interest is hereinafter called the "Collateral". The security interest
granted herein secures the payment of all principal of, interest on and costs,
attorneys' fees and collection fees incurred in connection with the collection
of, the promissory note of Debtor of even date herewith payable to the order of
Secured Party in the original principal amount of $2,252,948.96 (hereinafter
called the "Note") (the obligations evidenced by the Note being hereafter
collectively referred to as the "Obligations").
II.
Warranties and Covenants of Debtor
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Debtor hereby warrants, covenants and agrees that:
(A) Debtor is the owner of the Collateral free and clear from any
adverse claim, security interest or encumbrance save and except only the
lien and security interest granted hereby; and Debtor has full power and
authority to sell and assign the Collateral and to grant to Secured Party a
first and prior security interest therein as herein provided;
(B) Until the Obligations have been paid in full, Debtor will not
sell or offer to sell or otherwise transfer or encumber the Collateral or
any interest therein, without the prior written consent of Secured Party;
(C) Until the Obligations have been paid in full, Debtor will
keep the Collateral free from any liens, security interests or encumbrances
save and except only the lien and security interest granted hereby; and
(D) The Debtor shall at all times and from time to time, at
Debtors own expense, make, execute, acknowledge,
and deliver and file and record in the proper filing and recording places,
all such instruments, including appropriate financing statements with
respect to the security interests created hereby as may be required by the
Uniform Commercial Code and as may be necessary or as Secured Party may
reasonably request in order to perfect and preserve the security interests
under this Agreement.
III.
Events of Default
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The term "Event of Default", whenever used in this Agreement, shall mean
either or both of the following events or conditions:
(A) The occurrence of an Event of Default under the Note; or
(B) Debtor shall have breached any term or provision of this
Pledge Agreement, and such breach shall continue uncured for a period of
ten days following receipt of written notice of breach delivered by Secured
Party to Debtor.
IV.
Remedies
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Upon the happening of any Event of Default specified in Article III hereof,
and at any time thereafter, at the option of the holder thereof, the Obligations
shall become immediately due and payable without presentment or demand or any
notice to Debtor to any other person obligated thereon and Secured Party shall
have and may exercise any and all of the rights and remedies of a secured party
under the Uniform Commercial Code as adopted in the State of Texas and as
otherwise granted herein or under any other law or under any other agreement
executed by Debtor, including, without limitation, the right and power to sell,
at public or private sale or sales, or otherwise dispose of or utilize such
portion of the Collateral and any part or parts thereof in any manner authorized
or permitted under said Uniform Commercial Code after default by a debtor, and
to apply the proceeds thereof toward payment of any costs and expenses and
attorneys' fees and legal expenses thereby incurred by Secured Party and toward
payment of the obligations hereby secured in such order or manner as Secured
Party may elect. To the extent permitted by law, Debtor expressly waives any
notice of sale or other disposition of the Collateral and any other rights or
remedies of Debtor or formalities prescribed by law relevant to sale or
disposition of the Collateral or exercise of any other right or remedy of
Secured Party existing after default hereunder; and to the extent any such
notice is required and cannot be waived, Debtor agrees that if such notice is
delivered to Debtor in the manner described in Article VII at his address
therein stated at least ten days before the time of the sale or disposition,
such notice shall be deemed reasonable and shall fully satisfy any requirement
of giving of notice. All recitals in any instrument or of assignment or any
other instrument executed by Secured Party incident to the sale, transfer,
assignment or other disposition or utilization of
the Collateral or any part thereof hereunder shall be full proof of the matter
stated therein and no other proof shall be required to establish full legal
propriety of the sale or other action taken by Secured Party or of any fact,
condition or thing incident thereto and all prerequisites of such sale or other
action or any fact, condition or thing incident thereto shall be presumed
conclusively to have been performed or to have occurred.
V.
Secured Party's Power and
Duties with Respect to Collateral
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(A) Secured Party shall be entitled to receive and have
delivered to Secured Party, to be held by Secured Party under this
Agreement as Collateral, all payment on the Assets, and Debtor shall
immediately pledge and deposit with Secured Party any such amounts that may
come into his possession or control.
(B) Secured Party shall be under no duty to collect any amount
which may be or become due on any of the Collateral now or hereafter
pledged hereunder, or to realize on the Collateral, collect principal,
interest or dividends, to keep the same insured, make any presentments,
demands, notice of protest, in connection with any of the Collateral, or do
anything for the enforcement and collection of Collateral or the protection
thereof.
(C) Secured Party may, in Secured Party's discretion, but
without obligation to do so, deposit the Collateral or any part thereof
with a bank or banks for the purpose of safekeeping, and the duties of such
banks shall be no greater than those of Secured Party hereunder.
(D) Notwithstanding the generality of any of the foregoing, but
in amplification of the same, Secured Party shall not be liable to or
responsible for any diminution in the value of the Collateral from any
cause whatsoever.
(E) Debtor agrees to pay all taxes, charges, transfer fees and
assessments against the Collateral and to do all things necessary to
preserve and maintain the value and collectability thereof, and on the
failure of Debtor to do so, Secured Party may, after giving Debtor written
notice of Secured Party's intention to do so, make such payments and
advance such sums on account thereof as to Secured Party in Secured Party's
discretion seems desirable. Debtor agrees to reimburse Secured Party
immediately upon demand for all such payments and advances, repayment of
all of which is secured by this Agreement and the pledge of Collateral
hereunder.
VI.
Satisfaction and Discharge
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When the Obligations shall have been paid in full and all obligations under
this Agreement discharged, Secured Party will cause all of the Collateral
together with any additions thereto and substitutions therefore, all dividends
on the Collateral, then held by Secured Party, and all property, shares of
stock, or other securities, into which the Collateral may have been changed or
converted, to be delivered to Debtor, and shall cause to be executed and
delivered such instruments as may be necessary to cancel this Agreement and
revest the Collateral in Debtor free and clear of the lien and security interest
hereby created.
VII.
Notices, Etc.
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All notices, certificates, requests, consents and other communications
hereunder shall be in writing and shall be deemed delivered on the date mailed
by first class registered or certified mail, return receipt requested, postage
prepaid, or on the date personally delivered or sent by telex or telecopy, as
follows:
(i) if to Secured Party, addressed to Fund II Mgt. Co., L.L.C., 0000
Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, attention Xxxxx X. XxXxxxx, Manager; and
(ii) if to Debtor, addressed to EOF II (Institutional), L.P., 0000
Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, attention: Xxxxx X. XxXxxxx, Manager.
or at such other address as either party may designate by notice given the other
in accordance herewith.
VIII.
Survival of Agreements,
Representations and Warranties, Etc.
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All agreements, representations and warranties contained herein or made in
writing by or on behalf of Debtor in connection with the transactions
contemplated hereby shall survive the execution and delivery of this Agreement,
any investigation at any time made by Secured Party or on Secured Party's
behalf, and the acquisition and disposition of the Note or any of the
Obligations evidenced thereby. All statements contained in any certificate or
other instrument delivered by or on behalf of Debtor pursuant hereto or in
connection with the transactions contemplated hereby shall be deemed
representations and warranties by Debtor hereunder.
IX.
Miscellaneous
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(A) This Agreement shall not prejudice the right of Secured Party to
enforce collection of the Obligations by suit or in any lawful manner, or to
resort to other security for the payment of the Obligations, this Agreement
being additional, cumulative and concurrent security for the payment of the
Note.
(B) No right or remedy in this Agreement or in the Note is intended
to be exclusive of any other right or remedy, but every such right or remedy
shall be cumulative and shall be in addition to every right or remedy herein or
in the Note conferred or now or hereafter existing at law or in equity or by
statute.
(C) No delay or omission by Secured Party to exercise any right or
remedy shall impair such right or remedy or other right or remedy or shall be
construed to be a waiver of any default or an acquiescence therein; and every
right and remedy herein conferred or now or hereafter existing at law or in
equity or by statute, may be exercised separately or concurrently and in such
order and as often as may be deemed expedient by Secured Party. Not limiting the
generality of the foregoing, pursuit or exercise of any right or remedy herein
or in the Note, or by law or in equity, shall not be, and shall not be
considered to be, an election against, waiver or relinquishment of, any other
right or remedy.
(D) The invalidity of any right or remedy in any jurisdiction shall
not invalidate such right or remedy in any other jurisdiction. The invalidity or
unenforceability of any of the rights or remedies herein provided in any
jurisdiction shall not in any way affect the right to the enforcement in such
jurisdiction or elsewhere of any of the other rights or remedies herein
provided.
(E) This Agreement shall in no event be construed as relieving Debtor
from full liability on the Obligations which are secured hereby or for any
deficiency thereon.
(F) This Agreement shall be binding upon and inure to the benefit of
the successors, representatives and assigns of the parties hereto.
(G) THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(H) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first above written.
DEBTOR:
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Environmental Opportunities Fund II
(INSTITUTIONAL), L.P.
By: Fund II Mgt. Co., L.L.C., its General
Partner
By /s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx, Manager
SECURED PARTY:
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FUND II MGT. CO., L.L.C.
By: /s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx, Manager
