PLEDGE AGREEMENT
EXHIBIT 10.2
EXECUTION
COPY
This
PLEDGE AGREEMENT (this “Agreement”) is made
and entered into as of August 20, 2008, by and between ESPRE SOLUTIONS,
INC., a Nevada corporation (“Pledgor”), and DALCOR
INC., a company organized under the laws of Panama (“Secured
Party”).
W I T N E S S E T H:
WHEREAS,
pursuant to that certain Convertible Secured Promissory Note and Loan Agreement,
dated as of the date hereof, issued by Pledgor in favor of Secured Party (as
amended, restated, supplemented or otherwise modified from time to time, the
“Note”), the
Secured Party has agreed to make loans to Pledgor;
WHEREAS,
in connection with the Note, Secured Party requires that Grantor execute and
deliver to the Secured Party this Agreement; and
WHEREAS,
Pledgor and Secured Party are party to that certain Security Agreement, dated as
of the date hereof (the “Security
Agreement”);
WHEREAS,
Pledgor is the record and beneficial owner of the Stock listed in Part A of
Schedule I
hereto and the owner of the promissory notes and Instruments listed in
Part B of Schedule I
hereto;
WHEREAS,
in order to induce Secured Party to make the loans as provided for in the Note,
Pledgor has agreed to pledge the Pledged Collateral to Secured Party, in
accordance herewith; and
NOW,
THEREFORE, in consideration of the premises, the covenants hereinafter contained
and other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, and to induce Secured Party to make loans
under the Note, Pledgor and Secured Party agree as follows:
1.
DEFINITIONS. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Note or Security Agreement, as
applicable. The following terms shall have the following respective
meanings (such meanings being equally applicable to both the singular and plural
form of the terms defined):
(a) “Code” means the
Uniform Commercial Code in effect in the State of Nevada, New York or any other
applicable jurisdiction.
(b) “Event of Default”
means: (a) occurrence of an Event of Default (as defined in the Note
and the Security Agreement) or (b) the failure of the Pledgor to (i) pay or
perform any of the Secured Obligations as and when due to be paid or performed
under the terms of the Note or (ii) comply with any of the provisions of, or the
incorrectness of any representation or warranty contained in, this
Agreement.
(c) “Pledged Collateral”
has the meaning ascribed to such term in Section 2
hereof.
(d) “Pledged Entity” means
Blideo Inc., a Texas corporation.
(e) “Pledged Indebtedness”
means the Indebtedness and other obligations owing to Pledgor from time to time,
including the promissory notes and instruments evidencing such Indebtedness
listed on Part B of Schedule I
hereto.
(f) “Pledged Shares” means
the stock of the Pledged Entity whether now owned or hereafter acquired by
Pledgor, including the stock listed on Part A of Schedule I
hereto.
(g) “Secured Obligations”
has the meaning ascribed to such term in Section 3
hereof.
2.
PLEDGE. Pledgor
hereby pledges to Secured Party, and grants to Secured Party, a first-priority
security interest in all of the following (collectively, the “Pledged
Collateral”):
(a) the
Pledged Shares and any and all certificates representing the Pledged Shares, and
all dividends, distributions, cash, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Pledged Shares; and
(b) the
Pledged Indebtedness and the promissory notes or instruments evidencing the
Pledged Indebtedness, and all interest, cash, instruments and other property and
assets from time to time received, receivable or otherwise distributed in
respect of the Pledged Indebtedness; and
(c) all
proceeds of the foregoing.
3.
SECURITY FOR
OBLIGATIONS. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise), and performance of all of
Pledgor’s obligations of any kind under or in connection with the Note and the
other documents executed in connection therewith and all obligations of Pledgor
now or hereafter existing under this Agreement including, without limitation,
all fees, costs and expenses whether in connection with collection actions
hereunder or otherwise (collectively, the “Secured
Obligations”).
4.
DELIVERY OF PLEDGED
COLLATERAL. Any and all certificates and all promissory notes
and instruments evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Secured Party pursuant hereto. All Pledged Shares
so delivered shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured Party and
all promissory notes or other instruments so delivered evidencing the Pledged
Indebtedness shall be endorsed by Pledgor.
5.
REPRESENTATIONS AND
WARRANTIES. Pledgor represents and warrants to Secured Party
that:
(a) (i)
Pledgor is, and at the time of delivery of the Pledged Shares to Secured Party,
the sole holder of record and the sole beneficial owner of the Pledged Shares
pledged by Pledgor free and clear of any Lien thereon or affecting the title
thereto, except for any Lien created by this Agreement or the Security Agreement
and (ii) Pledgor is and at the time of delivery of the Pledged Indebtedness to
Secured Party will be, the sole owner of such Pledged Indebtedness free and
clear of any Lien thereon or affecting title thereto, except for any Lien
created by this Agreement or the Security Agreement;
(b) (i)
All of the Pledged Shares have been duly authorized, validly issued and are
fully paid and non-assessable and (ii) the Pledged Indebtedness has been duly
authorized, authenticated or issued and delivered by, and is the legal, valid
and binding obligations of the applicable entity, and no such entity is in
default thereunder;
(c)
Pledgor has the right and requisite authority to pledge, assign, transfer,
deliver, deposit and set over the Pledged Collateral pledged by Pledgor to
Secured Party as provided herein;
(d) None
of the Pledged Shares or Pledged Indebtedness has been issued or transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be
subject;
(e) All
of the Pledged Shares are presently owned by Pledgor, and are presently
represented by the certificates, if any, listed on Part A of Schedule I
hereto. As of the date hereof, there are no existing options,
warrants, calls or commitments of any character whatsoever relating to the
Pledged Shares;
(f)
No consent, approval, authorization, other order or other action by, and no
notice to or filing with, any Governmental Authority or any other Person is
required: (i) for the pledge by Pledgor of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by Pledgor, or (ii) for the exercise by Secured Party of the voting or
other rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement, except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally and except for any such consent, approval, authorization,
or other order, if any, arising solely from the status of the Secured
Party;
(g) The
pledge, assignment and delivery of the Pledged Collateral pursuant to this
Agreement will create a valid, first-priority Lien on and a first-priority
perfected security interest in favor of Secured Party, in the Pledged Collateral
and the proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Liens;
(h) This
Agreement has been duly authorized, executed and delivered by Pledgor and
constitutes the legal, valid and binding obligation of Pledgor enforceable
against Pledgor in accordance with its terms;
(i)
The Pledged Shares constitute the percentage of the issued and outstanding stock
of each Pledged Entity set forth on Part A of Schedule
I;
(j)
Except as disclosed on Part B of Schedule I, none of
the Pledged Indebtedness is subordinated in right of payment to other
Indebtedness or obligations (except for the Secured Obligations) or subject to
the terms of an indenture;
(k)
With respect to any Pledged Entity which is a limited liability company or a
limited partnership, none of the Pledged Collateral constitutes a “security”
within the meaning of the Code. In particular, with respect to any
Pledged Entity which is a limited liability company or a limited partnership
(i) none of the Pledged Collateral is dealt in or traded on the securities
exchanges or in securities markets, (ii) none of the terms of the Pledged
Collateral expressly provide that it is a “security” governed by Article 8
of the Code, and (iii) the Pledged Collateral is not an investment company
security; and
(l)
None of the Pledged Collateral is held in a securities account.
The
representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6.
COVENANTS. Pledgor
covenants and agrees that until the Maturity Date:
(a) Without
the prior written consent of Secured Party, Pledgor will not sell, assign,
transfer, pledge or otherwise encumber any of its rights in or to the Pledged
Collateral, or any unpaid dividends, interest or other distributions or payments
with respect to the Pledged Collateral or xxxxx x Xxxx in the Pledged
Collateral, unless otherwise expressly permitted by the Note.
(b) Pledgor
will promptly execute, acknowledge and deliver all instruments and take all
actions as Secured Party from time to time may request in order to ensure to
Secured Party the benefits of the Liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any necessary
Code financing statements, which may be filed by Secured Party in accordance
with the Security Agreement.
(c) Pledgor
has and will defend the title to the Pledged Collateral and the Liens of Secured
Party in the Pledged Collateral against the claim of any Person and will
maintain and preserve such Liens.
(d) Pledgor
will, upon obtaining ownership of any additional Pledged Shares or Pledged
Indebtedness, which stock, notes or instruments have not already been delivered
to Secured Party, promptly (and in any event within three (3) Business Days of
receipt) deliver to Secured Party a Pledge Amendment, duly executed by Pledgor,
in substantially the form of Schedule II hereto (a
“Pledge
Amendment”) in respect of any such additional stock, notes or
instruments, pursuant to which Pledgor shall pledge to Secured Party all of such
additional stock, notes and instruments. Pledgor hereby authorizes
Secured Party to attach each Pledge Amendment to this Agreement and agrees that
all Pledged Shares and Pledged Indebtedness listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral.
(e) Pledgor,
consents to, and waives any and all rights to object to, any other stockholder
or member of Pledged Entity pledging such stockholder’s or member’s interests in
Borrower to Secured Party. In addition, Pledgor hereby waives any and
all rights to require an opinion of counsel or any other information and/or
agreement in connection with any other stockholder’s or member’s pledge of its
interests therein to Secured Party.
(f)
Pledgor, consents to, and waives any and all rights to object to Secured Party
exercising any and all remedies set forth herein pursuant to the terms
hereof. Without limiting the generality of the foregoing, upon the
exercise of such remedies, Secured Party or its transferees or assignees shall
be entitled to become stockholders of Pledged Entity without any further consent
by any other stockholder or member of Pledge Entity.
7.
PLEDGOR’S
RIGHTS. As long as no Event of Default shall have occurred and
be continuing and until written notice shall be given to Pledgor in accordance
with Section 8(a)
hereof:
(a) Pledgor
shall have the right to vote and give consents with respect to the Pledged
Collateral, or any part thereof for all purposes not inconsistent with the
provisions of this Agreement, the Note or any other document executed in
connection therewith; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which would have
the effect of impairing the position or interest of Secured Party in respect of
the Pledged Collateral or which would authorize, effect or consent to (unless
and only to the extent expressly permitted by the Note):
(i) the
dissolution or liquidation, in whole or in part, of a Pledged
Entity;
(ii)
the consolidation or merger of a Pledged Entity with any other
Person;
(iii) the
sale, disposition or encumbrance of all or substantially all of the assets of a
Pledged Entity;
(iv) any
change in the authorized number of shares, the stated capital or the authorized
share capital of a Pledged Entity or the issuance by a Pledged Entity of any
additional stock; or
(v) the
alteration of the voting rights with respect to the stock of a Pledged Entity;
and
(b) Pledgor
shall be entitled to collect and receive for its own use all cash dividends and
interest paid in respect of the Pledged Shares and Pledged Indebtedness to the
extent not in violation of the Note other than any and all: (i)
dividends and interest paid or payable other than in cash in respect of any
Pledged Collateral, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Pledged Collateral;
(ii) dividends and other distributions paid or payable in cash in respect of any
Pledged Shares in connection with a partial or total liquidation or dissolution
or in connection with a reduction of capital, capital surplus or paid-in capital
of a Pledged Entity; and (iii) cash paid, payable or otherwise distributed, in
respect of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until
actually paid all rights to such distributions shall remain subject to the Lien
created by this Agreement; and
(c) all
dividends and interest (other than such cash dividends and interest as are
permitted to be paid to Pledgor in accordance with Section 7(b) above)
and all other distributions in respect of any of the Pledged Shares or Pledged
Indebtedness, whenever paid or made, shall be delivered to Secured Party to hold
as Pledged Collateral for itself, and shall, if received by Pledgor, be received
in trust for the benefit of Secured Party, be segregated from the other property
or funds of Pledgor and be forthwith delivered to Secured Party as Pledged
Collateral in the same form as so received (with any necessary
indorsement).
8.
DEFAULTS AND REMEDIES;
PROXY.
(a) Upon
the occurrence and during the continuation of an Event of Default, and
concurrently with written notice to Pledgor, Secured Party (personally or
through an agent) is hereby authorized and empowered to transfer and register in
its name or in the name of its nominee the whole or any part of the Pledged
Collateral, to: (i) exchange certificates or instruments representing
or evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations, (ii) exercise the voting and all other rights as a holder
with respect thereto, (iii) collect and receive all cash dividends, interest,
principal and other distributions made thereon for application to Pledgor’s
obligations under the Note, (iv) sell in one or more sales after ten (10) days’
notice of the time and place of any public sale or of the time at which a
private sale is to take place (which notice Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral, and (v) otherwise
act with respect to the Pledged Collateral as though Secured Party was the
outright owner thereof. Any sale shall be made at a public or private
sale at Secured Party’s place of business, or at any place to be named in the
notice of sale, either for cash or upon credit or for future delivery at such
price as Secured Party may deem fair, and Secured Party or its affiliates,
designees or assignees may be the purchaser of the whole or any part of the
Pledged Collateral so sold and hold the same thereafter in its own right free
from any claim of Pledgor or any right of redemption. Each sale shall
be made to the highest bidder, but Secured Party reserves the right to reject
any and all bids at such sale which, in its discretion, it shall deem
inadequate. Demands of performance, except as otherwise herein
specifically provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be conducted by an
auctioneer or any officer or agent of Secured Party. PLEDGOR HEREBY
IRREVOCABLY CONSTITUTES AND APPOINTS SECURED PARTY AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING
THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF SUBSTITUTION TO DO
SO. THE APPOINTMENT OF SECURED PARTY AS PROXY AND ATTORNEY-IN-FACT IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE MATURITY
DATE. IN ADDITION TO THE RIGHT TO VOTE THE PLEDGED SHARES, THE
APPOINTMENT OF SECURED PARTY AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE
RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A
HOLDER OF THE PLEDGED SHARES WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING
WRITTEN CONSENTS, CALLING SPECIAL MEETINGS AND VOTING AT SUCH
MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT
THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON THE
RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF THE
PLEDGED SHARES OR ANY OFFICER OR AGENT THEREOF), UPON THE OCCURRENCE AND DURING
THE CONTINUANCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING THE
FOREGOING, SECURED PARTY SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT OR
TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY
DELAY IN DOING SO.
(b) If,
at the original time or times appointed for the sale of the whole or any part of
the Pledged Collateral, the highest bid, if there be but one sale, shall be
inadequate to discharge in full all the Secured Obligations, or if the Pledged
Collateral be offered for sale in lots, if at any of such sales, the highest bid
for the lot offered for sale would indicate to Secured Party, in its discretion,
that the proceeds of the sales of the whole of the Pledged Collateral would be
unlikely to be sufficient to discharge all the Secured Obligations, Secured
Party may, on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of previous
postponement of sale, and no other notice of such postponement or postponements
of sale need be given, any other notice being hereby waived; provided, however, that any
sale or sales made after such postponement shall be after ten (10) days’ notice
to Pledgor.
(c) If,
at any time when Secured Party shall determine to exercise its right to sell the
whole or any part of the Pledged Collateral hereunder, such Pledged Collateral
or the part thereof to be sold shall not, for any reason whatsoever, be
effectively registered under the Securities Act of 1933, as amended (or any
similar statute then in effect) (the “Act”), Secured Party
may, in its discretion (subject only to applicable requirements of law), sell
such Pledged Collateral or part thereof by private sale in such manner and under
such circumstances as Secured Party may deem necessary or advisable, but subject
to the other requirements of this Section 8, and shall
not be required to effect such registration or to cause the same to be
effected. Without limiting the generality of the foregoing, in any
such event, Secured Party in its discretion may (x) in accordance with
applicable securities laws, proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Pledged
Collateral or part thereof could be or shall have been filed under said Act (or
similar statute), (y) approach and negotiate with a single possible purchaser to
effect such sale, and (z) restrict such sale to a purchaser who is an accredited
investor under the Act and who will represent and agree that such purchaser is
purchasing for its own account, for investment and not with a view to the
distribution or sale of such Pledged Collateral or any part
thereof. In addition to a private sale as provided above in this
Section 8, if
any of the Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 8, then
Secured Party shall not be required to effect such registration or cause the
same to be effected but, in its discretion (subject only to requirements of
applicable law), may require that any sale hereunder (including a sale at
auction) be conducted subject to restrictions:
(i) as
to the financial sophistication and ability of any Person permitted to bid or
purchase at any such sale;
(ii) as
to the content of legends to be placed upon any certificates representing the
Pledged Collateral sold in such sale, including restrictions on future transfer
thereof;
(iii) as
to the representations required to be made by each Person bidding or purchasing
at such sale relating to that Person’s access to financial information about a
Pledged Entity or Pledgor and such Person’s intentions as to the holding of the
Pledged Collateral so sold for investment for its own account and not with a
view to the distribution thereof; and
(iv) as
to such other matters as Secured Party may, in its discretion, deem necessary or
appropriate in order that such sale (notwithstanding any failure so to register)
may be effected in compliance with the Bankruptcy Code and other laws affecting
the enforcement of creditors’ rights, the Act and all applicable state
securities laws.
(d) Pledgor
recognizes that Secured Party may be unable to effect a public sale of any or
all the Pledged Collateral and may be compelled to resort to one or more private
sales thereof in accordance with Section 8(c)
above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially
unreasonable manner solely by virtue of such sale being
private. Secured Party shall be under no obligation to delay a sale
of any of the Pledged Collateral for the period of time necessary to permit the
Pledged Entity to register such securities for public sale under the Act, or
under applicable state securities laws, even if Pledgor and the Pledged Entity
would agree to do so.
(e) Pledgor
agrees, to the maximum extent permitted by applicable law, that following the
occurrence and during the continuance of an Event of Default it will not at any
time plead, claim or take the benefit of any appraisal, valuation, stay,
extension, moratorium or redemption law now or hereafter in force in order to
prevent or delay the enforcement of this Agreement, or the absolute sale of the
whole or any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all such laws
to the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Secured Party provided for in this
Agreement or now or hereafter existing at law, in equity, by statute or
otherwise, or the exercise or beginning of the exercise by Secured Party of any
one or more of such rights, powers or remedies. No failure or delay
on the part of Secured Party to exercise any such right, power or remedy and no
notice or demand which may be given to or made upon Pledgor by Secured Party
with respect to any such remedies shall operate as a waiver thereof, or limit or
impair Secured Party’s right to take any action or to exercise any right, power
or remedy hereunder, without notice or demand, or prejudice its rights as
against Pledgor in any respect.
(f)
Pledgor further agrees that a breach of any of the covenants contained in this
Section 8 will
cause irreparable injury to Secured Party, that Secured Party shall have no
adequate remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this Section 8 shall be
specifically enforceable against Pledgor, and Pledgor hereby waives, and agrees
not to assert, any defenses against an action for specific performance of such
covenants except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9.
WAIVER. No
delay on Secured Party’s part in exercising any power of sale, Lien, option or
other right hereunder, and no notice or demand which may be given to or made
upon Pledgor by Secured Party with respect to any power of sale, Lien, option or
other right hereunder, shall constitute a waiver thereof, or limit or impair
Secured Party’s right to take any action or to exercise any power of sale, Lien,
option or any other right hereunder, without notice or demand, or prejudice
Secured Party’s rights as against Pledgor in any respect.
10. ASSIGNMENT. Secured
Party may assign, indorse or transfer any instrument evidencing all or any part
of the Secured Obligations as provided in, and in accordance with, the Note, and
the holder of such instrument shall be entitled to the benefits of this
Agreement.
11. TERMINATION. Within
a reasonable time following the Maturity Date, Secured Party shall deliver to
Pledgor the Pledged Collateral pledged by Pledgor at the time subject to this
Agreement and all instruments of assignment executed in connection therewith,
free and clear of the Liens hereof and, except as otherwise provided in Section 14 hereof,
all of Pledgor’s obligations hereunder shall at such time
terminate.
12. LIEN
ABSOLUTE. All rights of Secured Party hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any
lack of validity or enforceability of the Note, any other documents executed in
connection therewith or any other agreement or instrument governing or
evidencing any Secured Obligations;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any part of the Secured Obligations, or any other amendment or waiver of or
any consent to any departure from the Note, any other documents executed in
connection therewith or any other agreement or instrument governing or
evidencing any Secured Obligations;
(c) any
exchange, release or non-perfection of any other Collateral, or any release,
amendment, waiver of or consent to departure from any guaranty, for all or any
of the Secured Obligations;
(d) the
insolvency of Pledgor; or
(e) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, Pledgor.
13. REINSTATEMENT. This
Agreement shall remain in full force and effect and continue to be effective
should: (a) any petition be filed by or against Pledgor or any
Pledged Entity for liquidation or reorganization, (b) Pledgor or any Pledged
Entity become insolvent or make an assignment for the benefit of creditors, or
(c) a receiver or trustee be appointed for all or any significant part of
Pledgor’s or a Pledged Entity’s assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Secured Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the Secured Obligations, whether as a “voidable preference”,
“fraudulent conveyance”, or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
14. SEVERABILITY. If
for any reason any provision or provisions hereof are determined to be invalid
and contrary to any existing or future law, such invalidity shall not impair the
operation of or effect those portions of this Agreement which are
valid.
15. NOTICES. Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give or serve upon any other a
communication with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
will be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon confirmation of receipt, when sent by facsimile; (iii)
three (3) days after being sent by U.S. certified mail, return receipt
requested, or (iv) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the
Pledgor, to:
Espre
Solutions, Inc.
0000 X.
Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxx,
Xxxxx 00000
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
If to the
Secured Party, to:
Dalcor
Inc.
x/x
Xxxxxx Xxxxxxx
Xxx
Xxxxxxx Xxxxxx 00
0000
Xxxxxx, Xxxxxxxxxxx
Telephone:
Facsimile:
with copy
to (which shall not constitute notice):
Hunton
& Xxxxxxxx LLP
Bank of
America Plaza
000
Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
or at
such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived
in writing by the party entitled to receive such notice.
16. SECTION
TITLES. The section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
17. COUNTERPARTS. This
Agreement may be executed in multiple counterparts (any of which may be via
facsimile signature or other electronic transmission), which shall, collectively
and separately, constitute one agreement.
18. BENEFIT OF SECURED
PARTY. All security interests granted or contemplated hereby
shall be for the benefit of Secured Party, and all proceeds or payments realized
from the Pledged Collateral upon the Secured Party’s exercise of its rights in
accordance herewith shall be applied to the Obligations in accordance with the
terms of the Note.
19. MISCELLANEOUS.
(a) Secured
Party may execute any of its duties hereunder by or through agents or employees
and shall be entitled to advice of counsel concerning all matters pertaining to
its duties hereunder.
(b) Pledgor
agrees to promptly reimburse Secured Party for actual expenses, including,
without limitation, reasonable counsel fees, incurred by Secured Party in
connection with the administration and enforcement of this
Agreement.
(c) Neither
Secured Party nor any of their respective officers, directors, employees, agents
or counsel shall be liable for any action lawfully taken or omitted to be taken
by it or them hereunder or in connection herewith, except for its or their own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
(d) THIS
AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS AND ASSIGNS
(INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF PLEDGOR), AND SHALL INURE TO THE
BENEFIT OF, AND BE ENFORCEABLE BY, SECURED PARTY AND ITS SUCCESSORS AND
ASSIGNS.
(e) None
of the terms of this Agreement may be waived, altered, modified or amended,
except in a writing signed by Secured Party and Pledgor.
20. GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
CONFLICTS OF LAWS PRINCIPLES). WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDINGS RELATING TO THIS AGREEMENT, THE PLEDGOR IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE
CITY OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE CITY OF NEW
YORK AND HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. SUBJECT TO APPLICABLE LAW, THE PLEDGOR AGREES
THAT FINAL JUDGMENT AGAINST IT IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION WITHIN OR OUTSIDE THE UNITED STATES BY SUIT ON THE JUDGMENT,
A CERTIFIED COPY OF WHICH JUDGMENT SHALL BE CONCLUSIVE EVIDENCE THEREOF AND THE
AMOUNT OF ITS INDEBTEDNESS, OR BY SUCH OTHER MEANS PROVIDED BY LAW; PROVIDED, HOWEVER, NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE SECURED PARTY FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) OR ANY OTHER SECURITY
FOR THE OBLIGATIONS UNDER THE NOTE OR THIS AGREEMENT, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF SECURED PARTY. PLEDGOR HEREBY
EXPRESSLY (A) SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION
OR SUIT COMMENCED IN ANY SUCH COURT, (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS, AND (C)
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF ANY SUCH SUMMONS, COMPLAINT OR OTHER PROCESS MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO PLEDGOR AT THE ADDRESS SET FORTH IN
SECTION 15
HERETO AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER
POSTAGE PREPAID.
21. WAIVER OF JURY
TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE
PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND ANY OTHER DOCUMENTS EXECUTED IN CONNECTION
THEREWITH. EACH PARTY HERETO (I) CERTIFIES THAT NEITHER OF THEIR
RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS HEREIN.
[Signature
page follows]
IN
WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to be
executed and delivered by their respective duly authorized representatives as of
the date first written above.
|
PLEDGOR:
|
||
|
ESPRE
SOLUTIONS, INC.
|
||
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
[Signatures
Continue on Following Page]
|
SECURED
PARTY:
|
||
|
DALCOR
INC.
|
||
|
By:
|
/s/ Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
||
|
Title:
Authorized Signatory and
Attorney-in-fact
|
||
Schedule
I
PART
A
PLEDGED
SHARES
|
Pledged
Entity
|
Class of
Stock
|
Stock Certificate
Number(s)
|
Number of
Shares
|
Percentage of
Outstanding Shares
|
|
Blideo
Inc.
|
Common
|
1
|
200,000
|
|
|
Blideo
Inc.
|
Common
|
4
|
100,000
|
|
|
Blideo
Inc.
|
Common
|
5
|
150,000
|
|
|
Blideo
Inc.
|
Common
|
20
|
50,000
|
|
|
Blideo
Inc.
|
Common
|
36
|
95,833
|
PART
B
PLEDGED
INDEBTEDNESS
|
Pledged
Entity
|
Initial Principal
Amount
|
Issue
Date
|
Maturity
Date
|
Interest
Rate
|
Schedule
I
Schedule
II
PLEDGE
AMENDMENT
This
Pledge Amendment, dated ___________ ___, 2___ is delivered pursuant to Section 6(d) of the
Pledge Agreement referred to below. All capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the Pledge
Agreement. The undersigned hereby certifies that the representations
and warranties in Section 5 of the
Pledge Agreement are and continue to be true and correct, both as to the
promissory notes, Instruments (as defined in the Security Agreement) and Pledged
Shares prior to this Pledge Amendment and as to the promissory notes,
Instruments (as defined in the Security Agreement) and Pledged Shares pursuant
to this Pledge Amendment. The undersigned further agrees that this
Pledge Amendment may be attached to that certain Pledge Agreement, dated August
20, 2008, by and between the undersigned, as Pledgor, and Dalcor Inc., as
Secured Party (the “Pledge Agreement”),
and that the Pledged Shares and Pledged Indebtedness listed on this Pledge
Amendment shall be and become a part of the Pledged Collateral referred to in
said Pledge Agreement and shall secure all Secured Obligations referred to in
said Pledge Agreement. The undersigned acknowledges that any
promissory notes, Instruments (as defined in the Security Agreement) or Pledged
Shares not included in the Pledged Collateral at the discretion of Secured Party
may not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
|
ESPRE
SOLUTINONS, INC., as Pledgor
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Name and Address of
Pledgor
|
Pledged
Entity
|
Class of
Stock
|
Certificate
Number(s)
|
Number of
Shares
|
|
Pledged
Entity
|
Initial Principal
Amount
|
Issue
Date
|
Maturity
Date
|
Interest
Rate
|
Schedule
II
