ACTIVE LINK COMMUNICATIONS, INC.
FORM 10-KSB
EXHIBIT 10 (P.3)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of June 20, 2003, between ACTIVE LINK
COMMUNICATIONS, INC., a Colorado corporation ("Pledgor"), INTEGRATED MOBILE
SOLUTIONS, LLC ("Secured Party").
RECITALS
A. Secured Party anticipates making a loan (the "Loan") to Pledgor.
B. Pursuant to the terms of the Loan, Secured Party will lend to Pledgor
the aggregate principal amount of Three Hundred Thousand Dollars ($300,000) to
be evidenced by the Pledgor's Promissory Note of even date herewith (the
"Note").
C. Pledgor is the owner of the shares (collectively, the "Shares") of all
of the capital of the Subsidiary described on Schedule A, and Pledgor has agreed
to pledge and assign to Secured Party a security interest in the Shares to
secure payment of the Loan of Pledgor under the Notes.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, the parties agree as follows:
1. Pledge of Shares. Pledgor hereby pledges and assigns to the Secured
Party the Shares for the purpose of securing the full and prompt payment, when
due, by Pledgor of the Loan.
2. Delivery of Shares. Upon execution of this Pledge, Pledgor shall
deliver to Agent all the certificates representing the Shares, together with
duly executed stock powers, in blank. Agent shall hold all such certificates and
stock powers subject to the terms of this Pledge Agreement.
3. Voting of Shares and Receipt of Dividends. Pledgor shall have the right
to vote the Shares, except as provided herein and in the Notes, upon the
occurrence of an event of default under the terms of the Notes.
4. Representations and Warranties. Pledgor hereby warrants, represents and
covenants as follows:
a. Pledgor owns the Shares, free from any adverse claims and Liens,
except as provided for herein;
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b. Pledgor will notify Secured Party of, and will defend the Shares
against, all claims and demands of all persons at any time claiming the
Shares or any interest therein;
c. Pledgor will pay all taxes and assessments upon the Shares prior
to the date of delinquency for payment of such taxes and assessments;
d. Pledgor has the full power, authority and capacity to grant the
security interest hereunder;
e. Pledgor shall cause Subsidiary not to issue any additional shares
of its capital stock to any person.
f. Until the Loan is paid in full, Pledgor shall cause Subsidiary
not to sell, transfer or assign all or any part of its assets to a third
party without the prior written consent of Secured Party, except in the
ordinary course of business.
5. Return of Security. When the Loan has been paid in full, Agent shall
promptly deliver the certificates representing the Shares then held by it and
all related stock powers to Pledgor.
6. Occurrence of Event of Default. If an event of default, Agent or
Secured Party shall have the right to exercise any rights and remedies provided
in the Notes, as Secured Party or Agent, in its or their sole discretion, may
deem necessary or appropriate. Secured Party or Agent shall further have the
right to exercise any remedies afforded a secured party under the Uniform
Commercial Code of Illinois or any other applicable law with respect to the
Shares.
7. Duration of Pledge. This Pledge shall be terminated upon the earlier
of: (i) foreclosure by Secured Party of the security interest granted hereunder
upon the occurrence of an event of default, or (ii) return of the Shares to
Pledgor upon payment of the Loan.
8. Miscellaneous.
a. Governing Law. This Pledge shall be governed by and construed and
enforced in accordance with the substantive laws of the State of Illinois,
without regard to the conflicts of laws provisions thereof, and the
applicable laws of the United States. Venue and jurisdiction shall be in
the state or federal courts in Xxxx County, Illinois.
b. Binding Effect. All of the terms, covenants, representations,
warranties and conditions herein shall be binding upon, and inure to the
benefit of, and be enforceable by the parties and their respective
successors and assignees.
c. Waiver. This Pledge may not be amended, modified, superseded or
canceled, nor may any of the terms, covenants, representations, warranties
or conditions hereof be waived, except by a written instrument executed by
the party against whom such amendment, modification, supersedure,
cancellation or waiver is charged. The failure of any party at any time or
times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by any
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party of any condition, or of any breach of any term, covenant,
representation or warranty contained herein, in any one or more instances,
shall be deemed to be or construed as a further or continuing waiver of
any such condition or breach or waiver of any other condition or of any
breach of any other term, covenant, representation or warranty.
d. Attorneys' Fees. If any party brings an action in connection with
the performance, breach or interpretation of this Pledge, or in any action
related to the transaction contemplated hereby, the prevailing party in
such action shall be entitled to recover from the losing party in such
action all reasonable costs and expenses of such litigation, including
attorneys' fees, court costs, costs of investigation, accounting and other
costs reasonably incurred or related to such litigation.
e. Severability. If any provision hereof is determined to be illegal
or unenforceable, such determination shall not affect the validity or
enforceability of the remaining provisions hereof, all of which shall
remain in full force and effect.
f. Further Documents. Each party covenants and agrees that, from
time to time, after the date hereof, at the reasonable request of any
other party, and without further consideration, such party will execute
and deliver such other documents and take such other action reasonably
required to carry out, in all respects, the transactions contemplated and
intended by this Pledge.
g. Notices. Any notices or other communications required or
permitted to be given by this Agreement or any other documents and
instruments referred to herein must be (i) given in writing and personally
delivered or sent by overnight service, such as FedEx, or (ii) made by
telex or facsimile transmission delivered or transmitted to the party to
whom such notice or communication is directed, with confirmation thereupon
given in writing and personally delivered or mailed by prepaid certified
or registered mail.
If to Pledgor:
Active Link Communications, Inc.
0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx LLC
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Secured Party:
Integrated Mobile Solutions
0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx
Xxxxxxxx & Xxxxxx LLC
00 X. Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice delivered personally in the manner provided herein will be
deemed given to the party to whom it is directed upon the party's (or its
agent's) actual receipt. Any notice addressed and mailed in the manner provided
herein will be deemed given to the party to whom it is addressed at the close of
business, local time of the recipient, on the fourth business day after the day
it is placed in the mail, or, if earlier, the time of actual receipt.
h. Parties in Interest. Nothing in this Pledge, whether express or
implied, is intended to confer any rights or remedies under or by reason
of this Pledge on any persons other than the parties and their respective
successors and assigns, nor is anything in this Pledge intended to relieve
or discharge the obligation or liability of any third persons to any party
to this Pledge, nor shall any provision give any third persons any right
of subrogation or action over or against any party to this Pledge.
i. Defined Terms. All capitalized terms, unless otherwise specified,
have the same meanings assigned to them in the Loan Agreement and Notes.
[The remainder of this page is intentionally left blank; signature page
follows.]
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IN WITNESS WHEREOF, this Pledge Agreement is executed as of the date first
above written.
PLEDGOR:
ACTIVE LINK COMMUNICATIONS, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
SECURED PARTY:
INTEGRATED MOBILE SOLUTIONS, LLC
By:
------------------------------------
Name: Xxxxx Xxxxxx
Title: Manager
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SCHEDULE A
SUBSIDIARIES NO. OF SHARES
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Mobility Concepts, Inc. [__440__]
