Exhibit 10.27
PLEDGE AGREEMENT
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PLEDGE AGREEMENT ("Agreement") dated as of August 20, 2004, between
DualStar Technologies Corporation, with an address at 00-00 00xx Xxxxxx, Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000 ("Guarantor") and Xxxx Xxxxx, with an address at
000-00 000xx Xxxxxx, Xxxxx Xxxx, Xxx Xxxx 00000 ("Secured Party").
WHEREAS, High-Rise Electric, Inc. ("High-Rise"), a Delaware corporation and
a wholly owned subsidiary of the Guarantor, is a party to a Promissory Note (the
"Note") and a Security Agreement (the "Security Agreement") of even date
herewith pursuant to which the Secured Party has made a loan to the High-Rise.
WHEREAS, as a condition to extending such credit to High-Rise, the Secured
Party has required that, the Guarantor enter into a Guaranty Agreement dated
August 20, 2004, in the form annexed hereto.
WHEREAS, the in connection with and as security for the Guaranty, the
Guarantor has agreed to grant the Secured Party a security interest in certain
collateral owned by the Guarantor.
NOW, THEREFORE, the parties agree as follows:
1. Pledge. As collateral security for the due and punctual payment the
Note, the Guarantor hereby pledges, hypothecates and assigns to the Secured
Party, and hereby grants to the Secured Party a security interest in (all the
foregoing herein called the "Pledge"), the following described property, whether
now owned by the Guarantor or hereafter acquired and whether now existing or
hereafter created (hereinafter collectively called the "Pledged Collateral"):
(a) all of Guarantor's right, title and interest in and to all
of the issued and outstanding shares of common stock of
High-Rise together with the certificate(s) evidencing such
shares (collectively, the "Pledged Shares");
(b) all cash, instruments, securities or other property
representing a dividend or other distribution on any of the
Pledged Shares, or representing a distribution or return of
capital upon or in respect of the Pledged Shares, or
resulting from a split-up, revision, reclassification or
other like change of the Pledged Shares or otherwise
received in exchange therefor, and any warrants, rights or
options issued to the holders of, or otherwise in respect
of, the Pledged Shares;
(c) all sale proceeds of any of the property of the Guarantor
described in subsections (a) and (b) above of this Section 1
and, to the extent related to any property described in said
clauses or such proceeds, all books, correspondence,
records, and other documents.
2. (a) Pledge Absolute. The Guarantor hereby agrees that this Agreement
shall be binding upon the Guarantor and that the Pledge of the Pledged
Collateral hereunder shall be irrevocable and unconditional, irrespective of the
validity, legality or enforceability of the Note, the absence of any action to
enforce the same, the waiver or consent by the Secured Party with respect to any
provision thereof, the recovery of any judgment against the Guarantor, or any
action to enforce the same or any other similar circumstances. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of merger or bankruptcy of the Guarantor, any notice to
require a proceeding first against the Guarantor or any other person, or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Agreement will remain in full force and effect so long as the Note remains
unsatisfied.
(b) Guarantor Remains Liable. Anything herein to the contrary
notwithstanding, (i) Guarantor shall remain liable for the obligations under the
Guaranty to the same extent as if this Pledge Agreement had not been executed,
and (ii) the exercise by the Secured Party of any of the rights hereunder shall
not release Guarantor from the Guaranty. Except as expressly set forth herein,
the Secured Party shall have no obligation nor liability with respect to the
Pledged Shares by reason of this Pledge Agreement, nor shall the Secured Party
be obligated to perform any of the obligations or duties of a shareholder, or to
take any action on behalf of High-Rise or the Guarantor in the event any of the
rights and remedies under this Pledge Agreement are exercised.
3. Representations, Warranties and Covenants. Guarantor represents,
warrants and covenants that:
(a) (i) the chief executive office/principal place of business
of Guarantor and the office where Guarantor keeps its books
and records relating to the Pledged Collateral, and all
locations of Collateral are at 00-00 00xx Xxxxxx, Xxxx
Xxxxxx Xxxx, XX 00000; and (ii) following the move of its
offices, which is scheduled to be completed no later than
October 1, 2004, Guarantor will not change its chief
executive office/principal place of business, office where
its books and records are kept or any locations of
Collateral, or merge or consolidate with any person, without
prior written notice to and consent of Secured Party;
(b) the Pledged Collateral is free and clear of all Liens, and
Guarantor will not create or suffer to exist any Lien on any
of the Pledged Collateral, except for Liens in favor of
Secured Party and Permitted Liens. A "Lien" is any lien,
security interest, claim and/or encumbrance, but excluding
in each case any Permitted Liens. A "Permitted Lien" is a
lien for taxes not yet due and payable or which are being
contested in good faith and by appropriate proceedings;
(c) Guarantor will not assign, transfer, sell, lease or
otherwise dispose of or abandon any Collateral, nor will
Guarantor suffer or permit any of the same to occur with
respect to any Collateral, without prior written notice to
and consent of Secured Party, except for the sale or lease
from time to time in the ordinary course of business of such
items of the Pledged Collateral as may constitute inventory;
(d) Guarantor will, at its sole cost and expense, perform all
acts and execute all documents requested by Secured Party
from time to time to evidence, perfect, maintain or enforce
Secured Party's security interest granted herein, and to
effectuate or maintain the priority thereof, or otherwise to
carry out the provisions and purposes of this Agreement,
including, without limitation, the execution and delivery of
financing statements pursuant to the UCC, and Guarantor
hereby authorizes Secured Party to execute and file at any
time and from time to time one or more financing statements
or copies thereof or of this Agreement with respect to the
Pledged Collateral signed only by Secured Party and/or
signed by Secured Party as attorney-in-fact of Guarantor;
(e) if any of the Pledged Collateral at any time consists of
instruments, documents, chattel paper or letters of credit,
Guarantor shall, immediately upon receipt or creation of
such Collateral, deliver such Collateral in its original
form to Secured Party, duly endorsed to Secured Party or in
blank or accompanied by appropriate stock or bond powers;
(f) Guarantor will pay Secured Party for any direct sums, costs,
and expenses which Secured Party may pay or incur in
perfecting or enforcing this Agreement or the security
interest granted herein or in enforcing the Guaranty,
including but not limited to court costs, collection
charges, reasonable travel expenses, and reasonable
attorneys fees;
(g) in its discretion, Secured Party may, at any time and from
time to time, assign, transfer or deliver to any permitted
assignee of the Note, any Collateral, whereupon Secured
Party shall be fully discharged from all responsibility and
the transferee shall be vested with all powers and rights of
Secured Party hereunder with respect thereto, but Secured
Party shall retain all rights and powers with respect to any
Collateral not assigned, transferred or delivered; and
(h) Guarantor presently owns and will continue to own at all
times all of the issued and outstanding capital stock, and
all other equity and debt interest of High-Rise, and High
Rise will not issue or allow the transfer of its capital
stock nor any option, right or interest therein while the
Note remains outstanding.
4. Events of Default. Each of the following events shall constitute an
event of default ("Event of Default") under this Agreement:
(a) if Guarantor or any obligor, maker, endorser, acceptor,
surety or guarantor of, or any party to, or any person
hypothecating property as security for, the Note (the same,
including Guarantor, being collectively referred to herein
as "Obligors") shall default in the punctual payment of any
sum payable with respect to, or in the observance or
performance of any of the material terms and conditions of,
the Note or this Agreement or any other agreement between
any Obligor and Secured Party;
(b) (i) High-Rise shall be dissolved or shall fail to maintain
its corporate existence in good standing, or if the usual
business of High-Rise shall be terminated or suspended; or
(ii) Guarantor shall be dissolved or shall fail to maintain
its corporate existence in good standing, or if Guarantor
shall cease its operations (for this purpose, owning the
stock or other equity of operating entities shall be deemed
continuing operations);
(c) if any Obligor shall be unable to pay its debts generally as
they become due; file a petition to take advantage of any
insolvency act; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of
the whole or any substantial part of its property; file a
petition or answer seeking reorganization or arrangement or
similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of
America, any state thereof or any foreign country; or make
or send notice of any intended bulk transfer;
(d) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver,
trustee, liquidator or conservator of any Obligor or of the
whole or any substantial part of its properties, or approve
a petition filed against any Obligor seeking reorganization
or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of
the United States of America, any state thereof or any
foreign country; or if, under the provisions of any other
law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of any Obligor
or of the whole or any substantial part of its properties;
or if there is commenced against any Obligor any proceeding
for any of the foregoing relief;
(e) if a default shall occur (i) in the payment of any
principal, interest or premium with respect to any
indebtedness for borrowed money of Guarantor, or (ii) under
any agreement or instrument under or pursuant to which any
such indebtedness may have been issued, created, assumed,
guaranteed or secured by Guarantor, and such default shall
permit the acceleration of such indebtedness (without giving
effect to any standstill or acceleration blockage period) or
if any such indebtedness shall be declared due and payable
prior to the stated maturity thereof or shall not be paid in
full at the stated maturity thereof; or
(f) an Event of Default under the Note or under the Guaranty or
Security Agreement delivered by High-Rise in connection with
the Note.
5. Delivery of Shares.
(a) Simultaneously with the execution of this Pledge Agreement,
Guarantor shall deliver or cause the delivery of
certificates representing all of the Pledged Shares to the
Secured Party along with a stock power signed in blank.
(b) Delivery of the Pledged Shares pursuant to this section
shall be considered for all purposes as delivery to the
Secured Party, and the Secured Party's security interest in
and to such Pledged Shares shall be deemed perfected by such
delivery.
(c) Upon performance in full of Guarantor's obligations
hereunder, the Secured Party shall deliver the Pledged
Shares to Guarantor in accordance with Guarantor's written
instructions.
6. Voting Rights; Dividends, Etc.
(a) So long as no Event of Default has occurred, the Guarantor
shall be entitled to exercise any and all voting rights and
powers relating or pertaining to the Pledged Collateral or
any part thereof for any purpose not inconsistent with the
terms of this Pledge Agreement.
(b) So long as no Event of Default has occurred, the Guarantor
shall be entitled to receive and retain any and all cash
dividends paid on the Pledged Collateral. Any and all stock
dividends, liquidating dividends, distribution of property,
redemption or other distributions made on or in respect of
the Pledged Collateral, whether resulting from a
subdivision, combination or reclassification of the
outstanding capital stock of the issuer of the Pledged
Collateral or received in exchange for Pledged Collateral or
any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to
which the Guarantor may be a party or otherwise, and any and
all cash and other property received in payment of the
principal of or in redemption of or in exchange for any
Pledged Collateral (either at maturity, upon call for
redemption or otherwise), shall become part of the Pledged
Collateral and, if received by the Guarantor, shall be held
in trust for the benefit of the Secured Party and shall
forthwith be delivered to the Secured Party (accompanied by
proper instruments of assignment and/or stock powers
executed by the Guarantor in accordance with the Secured
Party's instructions) to be held subject to the terms of
this Pledge Agreement.
(c) Upon the occurrence of an Event of Default, at the option of
the Secured Party (subject to applicable law), (i) all
rights of the Guarantor to exercise the voting rights and
powers which Guarantor is entitled to exercise pursuant to
Section 6(a) shall cease, and all such rights shall
thereupon become vested in the Secured Party, and the
Secured Party shall have the sole and exclusive right and
authority to exercise such voting and/or consensual rights
and powers and (ii) the Secured Party shall be entitled to
receive and retain any and all cash dividends, if any, paid
on the Pledged Collateral. Any and all cash and other
property paid over to or received by the Secured Party
pursuant to the provisions of this subsection (c) shall be
retained by the Secured Party as part of the Pledged
Collateral, and shall be applied in accordance with the
provisions hereof.
(d) The Secured Party at any time may extend or renew for one or
more periods (whether or not longer than the original
period) the Note, and grant releases, compromises or
indulgences with respect to the Note or any extension or
renewal thereof or any security therefor or to any obligor
hereunder or thereunder without impairing the Secured
Party's rights, or releasing the Guarantor from his
obligations, hereunder.
7. Remedies upon Default.
(a) Upon the occurrence of an Event of Default, the Secured
Party may, without being required to give any notice to the
Guarantor:
(i) exercise any and all rights afforded to the shareholders of
High-Rise with respect to the Pledged Shares;
(ii) take possession of the Pledged Shares and sell the Pledged
Shares at once or from time to time, in accordance with the
terms of this Pledge Agreement;
(iii) exercise all the rights and remedies provided for herein or
otherwise available under the laws of any jurisdiction, and
all the rights and remedies of a secured party on default
under the Uniform Commercial Code in New York or any other
state or jurisdiction as applicable;
(iv) apply the cash (if any) then held by it pursuant to Section
6 to the ratable payment in full of the Note and all other
indebtedness referred to in Section 9 in the order and
manner specified in Section 9. In addition, the Secured
Party may sell the Pledged Collateral, or any part thereof,
in accordance with Section 8 and shall apply the proceeds of
such sale to the ratable payment in full of the Note and all
other indebtedness referred to in Section 9 in the order and
manner specified in Section 9; and
(b) The Guarantor agrees that, upon the occurrence of an Event
of Default without notice to or further assent by the
Guarantor, the liability of High-Rise and the Guarantor or
any other Person for or upon the Note may, from time to
time, in whole or in part, be renewed, extended, modified,
accelerated, compromised or released by the Secured Party,
as the Secured Party may deem advisable, and that the
Pledged Collateral or other collateral or liens securing the
Note may, from time to time, in whole or in part (subject,
in the case of the Pledged Collateral, to the provisions of
this Agreement), be exchanged, sold or surrendered by the
Secured Party, as the Secured Party may deem advisable, all
without impairing, abridging, affecting or diminishing this
Agreement or the rights of the Secured Party hereunder or
with respect to the Pledged Collateral.
8. Sale of Pledged Collateral.
(a) The sale of the Pledged Collateral or any portion thereof
may be made at any public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit
or for future delivery, as the Secured Party shall deem
appropriate. The proceeds of any such sale shall be applied
in the order and manner specified in Section 9. The Secured
Party shall be authorized at any such sale (to the extent it
deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and
agree that they are purchasing the Pledged Collateral then
being sold for their own account for investment and not with
a view to the distribution or resale thereof, and upon
consummation of any such sale the Secured Party shall have
the right to assign, endorse, transfer and deliver to the
purchaser or purchasers thereof the Pledged Collateral so
sold. Each such purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on
the part of the Guarantor, and the Guarantor hereby waives
(to the extent permitted by law) all right of redemption,
stay and/or appraisal that Guarantor now has or may at any
time in the future have under any rule of law or statute now
existing or hereafter enacted. Except in the case of Pledged
Collateral which threatens to decline speedily in value or
is of a type customarily sold on a recognized exchange, the
Secured Party shall give to the Guarantor at least ten (10)
days' written notice of the Secured Party's intention to
make any such public or private sale or sale at a broker's
board or on any such securities exchange. Such notice, in
case of public sale, shall state the time and place fixed
for such sale, and, in the case of sale at a broker's board
or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on
which the Pledged Collateral, or any portion thereof, will
first be offered for sale at such board or exchange. Any
such public sale shall be held at such time or times within
ordinary business hours, and at such place or places, as the
Secured Party may fix in the notice of such sale. At any
such sale, the Pledged Collateral, or any portion thereof,
to be sold may be sold in one lot as an entirety or in
separate parcels, as the Secured Party may determine and the
Secured Party may bid (which bid may be, in whole or in
part, in the form of cancellation of any Obligation) for and
purchase the whole or any part of the Pledged Collateral.
The Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further
notice, be made at the time and place to which the same was
so adjourned. In case the sale of all or any part of the
Pledge Collateral is made on credit or for future delivery,
the Pledged Collateral so sold may be retained by the
Secured Party until the sale price is paid by the purchaser
or purchasers thereof, but the Secured Party shall not incur
any liability in case any such purchaser or purchasers shall
fail to take up and pay for the Pledged Collateral so sold
and, in the case of any such failure, such Pledged
Collateral may be sold again upon like notice. As an
alternative to exercising the power of sale herein conferred
upon him, the Secured Party may proceed by a suit or suits
at law or in equity to foreclose this Pledge Agreement and
to sell the Pledged Collateral, or any portion thereof,
pursuant to a judgment or decree of a court or courts of
competent jurisdiction.
(b) In connection with any disposition of the Pledged
Collateral, if the Secured Party elects to obtain the advice
of any regionally known investment banking firm that is a
member firm of the National Association of Securities
Dealers, Inc., proposed by the Secured Party to the
Guarantor and chosen by the Guarantor within seven days of
receiving notice thereof (or, if the Guarantor fails to
agree on such choice within such seven-day period, the
advice of any one of such firms chosen by the Secured Party)
with respect to the method or manner of sale or disposition
of any of the Pledged Collateral, the best price reasonably
obtainable therefor and any other details concerning such
sale or disposition, then, to the extent permitted by law
any sale or other disposition of any Pledged Collateral in
reliance on such advice shall be deemed to be commercially
reasonable under the Uniform Commercial Code and otherwise
proper.
(c) The Guarantor understands that compliance with Federal or
state securities laws may very strictly limit the course of
conduct of the Secured Party if the Secured Party were to
attempt to dispose of all or any part of the Pledged
Collateral and may also limit the extent to which or the
manner in which any subsequent transferee of the Pledged
Collateral may dispose of the same. The Guarantor agrees
that in any sale of any of the Pledged Collateral the
Secured Party is hereby authorized to comply with any such
limitation or restriction in connection with such sale as it
may be advised by counsel is necessary in order to (i) avoid
any violation of applicable law (including, without
limitation, compliance with such procedures as may restrict
the number of prospective bidders and purchasers and/or
further restrict such prospective bidders or purchasers to
persons who will represent and agree that they are
purchasing for their own account for investment and not with
a view to the distribution or resale of such Pledged
Collateral) or (ii) obtain any required approval of the sale
or of the purchaser by any governmental regulatory authority
or official. The Guarantor further agrees that such
compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable
manner, and that the Secured Party shall not be liable or
accountable to the Guarantor for any discount allowed by
reason of the fact that the Pledged Collateral is sold in
compliance with any such limitation or restriction.
(d) The Secured Party shall be under no obligation to sell or
otherwise dispose of any Pledged Collateral, or to cause any
Pledged Collateral to be sold or otherwise disposed of, by
reason of any diminution in the fair market value thereof,
and the failure of the Secured Party to do so shall under no
circumstances be deemed a failure to exercise reasonable
care in the custody or preservation of the Pledged
Collateral.
(e) The Secured Party shall be under no obligation to delay a
sale or disposition of any of the Pledged Shares to permit
the Guarantor of such Pledged Shares to register them for
public sale under the Securities Act of 1933 or under any
applicable state securities or blue-sky laws.
In addition to the rights and remedies granted to the Secured Party in this
Pledge Agreement and in any other instrument or agreement securing, evidencing
or relating to the Note, the Secured Party shall have all the rights and
remedies of a secured party under the Uniform Commercial Code. The Secured Party
shall have the right in his sole discretion to determine which rights, security,
liens, guaranties or remedies he shall retain, pursue, release, subordinate,
modify or enforce, without in any way modifying or affecting any of the other of
them or any of the Secured Party's rights hereunder.
9. Application of Proceeds of Collateral Sale.
(a) Secured Party may apply the cash proceeds actually received
from any sale or other disposition of the Pledged Collateral
to the direct reasonable expenses of preparing for sale and
selling the Pledged Collateral, to direct reasonable
attorneys' fees and all other direct reasonable expenses
which may be incurred by Secured Party in attempting to
collect the Note or enforce this Agreement; and then to the
Note in such order and as to principal or interest as
Secured Party may desire; and Guarantor shall remain liable
and will pay Secured Party on demand any deficiency
remaining after the application of such cash proceeds,
together with interest thereon at the highest rate then
payable on the Note, and the balance of any expenses unpaid,
with any surplus to be paid to Guarantor, subject to any
duty of Secured Party imposed by law to the holder of any
subordinate security interest in the Pledged Collateral
known to Secured Party.
(b) Secured Party may appropriate, set off and apply to the
payment of the Note, any Collateral in or coming into the
possession of Secured Party or its agents, upon prior
written notice to Guarantor and in such manner as Secured
Party may in its discretion determine.
10. Power of Attorney. To effectuate the terms and provisions hereof,
Guarantor hereby designates and appoints Secured Party and each of its designees
or agents as attorney-in-fact of Guarantor, irrevocably, with authority to: (i)
endorse the name of Guarantor on any notes, acceptances, checks, drafts, money
orders, instruments or other evidences of the Pledged Collateral that may come
into Secured Party's possession; (ii) sign the name of Guarantor on any
invoices, documents, drafts against and notices to account debtors or obligors
of Guarantor, assignments and requests for verification of accounts; (iii)
execute proofs of claim and loss with respect to the Pledged Collateral; (iv)
execute endorsements, assignments or other instruments of conveyance or transfer
with respect to the Pledged Collateral; (v) execute and file UCC financing
statements and/or amendments thereto with respect to the Pledged Collateral; and
(vi) do all other acts and things necessary or advisable in the sole discretion
of Secured Party to carry out and enforce this Agreement or the Note. All acts
done under the foregoing authorization are hereby ratified and approved and
neither Secured Party nor any designee or agent thereof shall be liable for any
acts of commission or omission, for any error of judgment or for any mistake of
fact or law, provided that Secured Party or any designee or agent thereof shall
not be relieved of liability to the extent it is determined by a final judicial
decision that its act, error or mistake constituted gross negligence or willful
misconduct. This power of attorney being coupled with an interest is irrevocable
while any the Note shall remain unpaid.
11. Care of the Pledged Collateral. Secured Party shall have the duty to
exercise reasonable care in the custody and preservation of any Pledged
Collateral in its possession, which duty shall be fully satisfied if Secured
Party accords such Pledged Collateral treatment substantially the same as that
which it accords similar property owned by it. Except for any claims, causes of
action or demands arising out of Secured Party's failure to perform its
agreements set forth in the preceding sentence, Guarantor releases Secured Party
from any claims, causes of action and demands at any time arising out of or with
respect to this Agreement, the Note, the Pledged Collateral and its use and/or
any actions taken or omitted to be taken by Secured Party with respect thereto,
and Guarantor hereby agrees to hold Secured Party harmless from and with respect
to any and all such claims, causes of action and demands. Secured Party's prior
recourse to any Pledged Collateral shall not constitute a condition of any
demand, suit or proceeding for payment or collection of the Note.
12. Waivers. No act, omission or delay by Secured Party shall constitute a
waiver of its rights and remedies hereunder or otherwise. No single or partial
waiver by Secured Party of any Event of Default or right or remedy which it may
have shall operate as a waiver of any other Event of Default, right or remedy or
of the same Event of Default, right or remedy on a future occasion. Guarantor
hereby waives presentment, notice of dishonor and protest of all instruments
included in or evidencing any Pledged Collateral, and all other notices and
demands whatsoever (except as expressly provided herein).
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
14. SUBMISSION TO JURISDICTION: WAIVER OF TRIAL BY JURY, ETC.. (a) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN XXX
XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN NASSAU COUNTY OR THE UNITED STATES
DISTRICT COURTS FOR THE EASTERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, DEBTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. DEBTOR HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING, (1) TRIAL BY JURY, (II) ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (III) THE RIGHT
TO INTERPOSE ANY SETOFF, NON-COMPULSORY COUNTERCLAIM OR CROSS-CLAIM.
(a) DEBTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY CERTIFIED
MAIL, POSTAGE PREPAID, TO DEBTOR AT ITS ADDRESS DETERMINED
PURSUANT TO SECTION 10 HEREOF. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF SECURED PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST DEBTOR IN ANY OTHER JURISDICTION.
15. Notices. All notices and other communications to any party hereunder
shall be in writing and shall be personally delivered or sent by certified mail,
postage prepaid, return receipt requested, or by a reputable courier delivery
service or by telecopy and shall be given to the telecopier number or address
for such party set forth below such party's signature to this Agreement, or to
such other telecopier number or address as such party may hereafter specify by
notice to the other party. Each such notice or other communication shall be
effective (a) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified by this Section and the appropriate answer back or
confirmation is received, (b) if given by certified mail, 4 business days after
such communication is deposited with the post office, addressed as aforesaid or
(c) if given by any other means (including, without limitation, by courier),
when delivered at the address specified by this Section.
16. Amendments and Waivers: Partial Invalidity. Acknowledgment of Receipt.
No provision hereof shall be modified, altered or limited except by a written
instrument executed by the party to be charged. If any term of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity of all other
terms hereof shall in no way be affected thereby. Guarantor acknowledges receipt
of a copy of this Agreement.
17. Benefit of Agreement: Continuing Security Interest. This Agreement and
all obligations hereunder shall be binding upon the heirs, executors, legal
representatives, administrators, successors and assigns of Guarantor and shall,
together with the rights and remedies of Secured Party hereunder, inure to the
benefit of Secured Party, its successors, endorsees and permitted assigns;
provided, however, neither party may assign, transfer or delegate any of its
rights or obligations hereunder without the express prior written consent of the
other party. Notwithstanding the foregoing, the Secured Party may, without
notice to or consent by the Guarantor, transfer or assign this Agreement,
together with the rights and remedies of Secured Party hereunder or any interest
herein and may assign or transfer any of its rights or interest in and to the
Collateral or any part thereof so long as the assignee is an entity either
controlled by the Secured Party or in which the Secured Party has a majority
interest. This Agreement shall create a continuing security interest in the
Pledged Collateral which shall remain in full force and effect until payment in
full of the Note and termination of any commitment by Secured Party to make
loans or other financial accommodations to or for the benefit of Guarantor has
been acknowledged in writing by Secured Party.
18. Performance by Debtor. Upon full payment of the Note and performance of
the obligations under the Security Agreement, this Pledge Agreement shall
terminate, at which time Secured Party shall release, reassign and redeliver to
Guarantor all Pledge Collateral and related documents then in the possession of
Secured Party, including any applicable termination statements under the Uniform
Commercial Code. Notwithstanding the foregoing, if any such payment is
thereafter set aside, recovered, rescinded or required to be returned for any
reason (including, without limitation, the bankruptcy, insolvency or
reorganization of the Debtor or Guarantor), the indebtedness to which such
payment was applied shall for the purpose of this Pledge Agreement be deemed to
have continued in existence, notwithstanding such application, and this Pledge
Agreement shall be enforceable as fully as if such application had never been
made, and the parties will have all rights and obligations hereunder as if the
payment was never made and such rights and obligations were never interrupted,
including without limitation a redelivery by Guarantor to Secured Party of the
Pledged Collateral.
19. Counterparts, Captions, Entire Agreement. This Agreement maybe executed
in any number of counterparts. The captions of the Sections of this Agreement
have been inserted for convenience only and shall not in anyway affect the
meaning or construction of any provision of this Agreement. This Agreement
represents the agreement of the parties hereto with respect to the subject
matter hereof and there are no promises or representations by Guarantor or
Secured Party relative to the subject matter hereof not reflected herein.
IN WITNESS WHEREOF, the undersigned have executed or caused this Agreement
to be duly executed as of the date first above set forth.
DEBTOR:
DUALSTAR TECHNOLOGIES
CORPORATION
By:
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Name:
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Title:
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Address:
SECURED PARTY:
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Xxxx Xxxxx
Address:
