PLEDGE AGREEMENT
EXHIBIT
10.6
EXECUTION
VERSION
THIS
PLEDGE AGREEMENT (this “Agreement”),
effective as of December 24, 2007, is by and among INDIA GLOBALIZATION CAPITAL,
INC., a Maryland corporation (“Pledgor”), and each
of the other parties that is a signatory hereto (each a “Secured Party” and,
collectively the “Secured
Parties”).
WHEREAS,
the Secured Parties have extended credit to Pledgor (the “Loan”) and, in
exchange therefor, Pledgor has executed and delivered to each Secured Party
a
Promissory Note, dated as of the date hereof (each a “Note” and,
collectively the “Notes”), for the
respective principal amount stated therein, and the Secured Parties and Pledgor
have executed and delivered a Note Purchase Agreement, dated as of the date
hereof (the “Purchase
Agreement”), setting forth certain terms and conditions relating to the
Notes;
WHEREAS,
in accordance with the terms of the Purchase Agreement, additional lenders
may
also extend credit to Pledgor from time to time in the future, in which event
each such additional lender shall become party to this Pledge Agreement as
an
additional “Secured Party” hereunder and Schedule 1
hereto shall be revised in order to reflect such additional Secured Party’s
Percentage Interest in and to the Collateral and the Obligations (each as
hereinafter defined), without any further action, signature, or consent by
the
Secured Parties who are signatories hereto on the date hereof;
WHEREAS,
it is in the best interests of Pledgor to execute this Agreement, as Pledgor
will derive substantial benefits from the Loan made to Pledgor; and
WHEREAS,
any capitalized terms used in this Agreement not otherwise defined herein are
defined in the Note.
NOW,
THEREFORE, for valuable consideration, and to induce Secured Party to make
the
Loan to Pledgor and to accept as evidence of the Loan the Note, the parties
hereto agree as follows:
1. Certain
Definitions. The following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
“Collateral”
shall
have the meaning specified in Section 2(a).
“Event
of Default”
shall have the meaning specified in Section 8.
“Governmental
Authority” shall mean any federal, state, local, foreign or other
governmental or administrative (including self-regulatory) body,
instrumentality, department or agency or any court, tribunal, administrative
hearing body, arbitration panel, commission, or other similar dispute resolving
panel or body.
“Indemnitees”
shall
have the meaning specified in Section 14(a).
“Lien”
shall
mean any
mortgage, pledge, assignment, security interest, encumbrance, lien or charge
of
any kind, any conditional sale or other title retention agreement or any lease
in the nature thereof (including any agreement to give any of the
foregoing).
“Note”
shall
have the
meaning specified in the recitals hereto.
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“Obligations”
shall
have the meaning specified in Section 5.
“Percentage
Interest”
shall mean, as to each Secured Party, its percentage interest in and
to the
Collateral or of the Obligations, as applicable, in the amount set forth on
Schedule 1
attached hereto.
“Person”
shall
mean
and include any individual, partnership, limited liability company, joint
venture, firm, corporation, association, trust or other enterprise or any
Governmental Authority.
“Pledgor”
shall
have
the meaning specified in the preamble hereto.
“Proceeds”
shall
have
the meaning specified in the UCC.
“UCC”
shall
mean the
Uniform Commercial Code as in effect in the State of Maryland from time to
time.
“Secured
Party” shall
have the meaning specified in the preamble hereto.
“Securities
Act” shall
mean the Securities Act of 1933, as amended.
“Securities”
shall
have the meaning specified in Sections 2(a) and
(b).
“Third
Party Claims”
shall have the meaning specified in Section 14(a).
2. Grant
of a Security
Interest.
(a) As
security for the prompt and complete payment and performance when due of all
the
Obligations, Pledgor hereby pledges, assigns, transfers and grants to each
Secured Party, a continuing first priority security interest in and to such
Secured Party’s Percentage Interest in Pledgor’s right, title and interest in,
to and under (i) the shares of capital stock of India Globalization
Capital, Mauritius, Limited, a Mauritius company, held or owned by Pledgor
(the
“Securities”),
(ii) all certificates evidencing such Securities (the “Certificates”), and
(iii) any and all Proceeds therefrom (the foregoing collectively referred
to as the “Collateral”). Pledgor
shall deliver, simultaneously with the execution of this Agreement, to each
Secured Party the Certificate, together with appropriate stock powers relating
thereto, duly endorsed in blank, to be held by Secured Party pursuant to the
terms of this Agreement.
(b) The
term
“Securities” as
used herein shall also mean and include, without limitation, any securities
into
which the Securities are converted or for which they are exchanged, and any
stock dividend and/or distribution or exchange of stock in connection with
any
reorganization, recapitalization, reclassification, or increase or reduction
of
capital, if any, to which Pledgor shall become entitled for any reason
whatsoever as an addition to, in substitution for, or in exchange for any
portion of the aforesaid securities.
3. Payments;
Distributions. Until payment in full of the Obligations, all
rights of the Pledgor to receive dividends, payments and distributions as to
the
Collateral shall cease, and Secured Parties shall have the exclusive right
and
authority to receive those dividends, payments and distributions in accordance
with each Secured Party’s Percentage Interest in the Collateral. In
order to permit Secured Parties to receive such dividends, payments and
distributions, the Pledgor shall, if necessary, upon the written request of
any
Secured Party, execute and deliver to such Secured Party appropriate dividend
payment orders. Any and all money or other property paid over to or
received by any Secured Party pursuant to this Section 3 shall be
delivered to Secured Party as additional Collateral hereunder and shall be
applied in accordance with the provisions hereof.
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4. Voting
and Other
Rights.
(a) So
long
as no Event of Default shall have occurred and be continuing, the Pledgor may
exercise all voting and other rights in respect of the Collateral, provided
that
the Pledgor shall not exercise any of such rights in a manner which would be
inconsistent with any provisions of this Pledge Agreement, or any other
agreement, document or instrument executed and delivered pursuant hereto, or
which would otherwise have the effect of impairing the value of the
Collateral. In order to facilitate the Pledgor’s exercise of such
voting and other rights, each Secured Party shall, if necessary, upon the
written request of the Pledgor, from time to time execute and deliver to the
Pledgor appropriate proxies.
(b) Upon
the
occurrence of an Event of Default, all voting rights of the Pledgor with respect
to the Collateral shall cease and each Secured Party shall have, without notice,
the sole and exclusive right to exercise all voting and other rights with
respect to the Collateral, on a pro rata basis (based on each Secured Party’s
Percentage Interest) as if such Secured Party was the absolute owner
thereof. In order to facilitate Secured Parties’ exercise of such
voting and other rights, the Pledgor shall, if necessary, upon the written
request of any Secured Party, from time to time execute and deliver appropriate
proxies to each such Secured party.
5. Obligations
Secured
Hereby. This Agreement secures, and each Secured Party’s
Percentage Interest in the Collateral is collateral security for, the prompt
payment and performance in full when due, whether at stated maturity, by
acceleration or otherwise (including, without limitation, the payment of
interest and other amounts which would accrue and become due but for the filing
of a petition in bankruptcy or the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code) of all obligations of Pledgor now or
hereafter arising under or in respect of such Secured Party’s Note (collectively, the
“Obligations”).
6. Pledgor’s
Representations
and Warranties. Pledgor represents and warrants and, so long
as this Agreement is in effect, shall be deemed continuously to represent and
warrant that:
(a) No
Liens. Pledgor is and will be the owner of all Collateral free
from any Lien or other right, title or interest of any Person, other than
Secured Parties.
(b) Authority;
Enforceability. Pledgor has full corporate power and authority
and has taken all corporate action necessary to execute, deliver and perform
this Agreement and to encumber and grant security interests in the
Collateral. This Agreement constitutes legal, valid and binding
obligations of Pledgor, enforceable against Pledgor in accordance with its
terms.
(c) Other
Financing
Statements. There is no financing statement (or similar
statement or instrument of registration under any jurisdiction) or any notice
filed with any Governmental Authority covering or purporting to cover any
interest of any kind in the Collateral, and so long as any of the Obligations
remain unpaid, Pledgor shall not execute or authorize to be filed in any public
office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of
and
covering the security interest granted hereby by Pledgor.
(d) Security
Interest; Necessary
Filings. This Agreement creates a valid security interest for
each Secured Party in such Secured Party’s Percentage Interest in the Collateral
securing payment of such Secured Party’s Percentage Interest in the
Obligations. All filings, registrations and recordings necessary,
appropriate or reasonably requested by Secured Parties to create, preserve,
protect and perfect the security interest granted by Pledgor to Secured Parties
hereby in respect of the Collateral have or will be made on or before the date
of this Agreement. The security interest granted to each Secured
Party pursuant to this Agreement in and to such Secured Party’s Percentage
Interest in the Collateral constitutes and hereafter will constitute a perfected
security interest therein, superior and prior to the rights of all other persons
therein and subject to no other Liens.
(e) No
Consents,
etc. No other consent of any other Person (including, without
limitation, stockholders or creditors of Pledgor) and no consent, authorization,
approval, or other action by, and no notice to or filing with, any Governmental
Authority (other than a court in connection with the exercise of judicial
remedies by Secured Parties) or regulatory body is required either (i) for
the pledge by Pledgor of the Collateral pursuant to this Agreement, or for
the
execution, delivery or performance of this Agreement by Pledgor, or
(ii) for the exercise by Secured Parties of the rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to this
Agreement.
(f) Collateral. The
Securities were validly issued and are fully paid and
nonassessable. Pledgor has delivered or will deliver to Secured
Parties the Certificates, each duly endorsed in favor the of Secured Party
to
whom the Securities evidence thereby are pledged hereunder. All
information set forth herein relating to the Collateral is accurate and complete
in all material respects.
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7. Pledgor’s
Covenants. Pledgor agrees and covenants for itself, its
successors and permitted assigns that:
(a) Protection
of Secured
Parties’ Security. Pledgor shall not take any action that
impairs the rights of any Secured Party in the such Secured Party’s Percentage
Interest in the Collateral. Pledgor will xxxx all books and records
to indicate the security interests. Pledgor will defend the
Collateral against the claims and demands of all other parties against Pledgor
or Secured Parties; will keep the Collateral free from all Liens; and will
not
sell, transfer, assign, deliver, pledge, hypothecate or otherwise dispose of
any
Secured Party’s Percentage Interest in the Collateral (or any interest therein)
without the prior written consent of such Secured Party.
(b) Financing
Statements. Pledgor shall, at no cost to Secured Parties,
execute, acknowledge and deliver all such other documents, as Secured Parties
reasonably deem necessary to create, perfect and continue the security interest
in the Collateral contemplated hereby. Pledgor will pay all costs of
title searches and filing of financing statements, assignments and other
documents in all public offices reasonably requested by Secured Parties, and
will not, without the prior written consent of Secured Parties, file or
authorize or permit to be filed in any public office any financing statement
naming Pledgor as Pledgor and not naming Secured Parties as secured
parties.
(c) Further
Actions. Pledgor shall at any time and from time to time take
such steps as Secured Parties may reasonably request to insure the continued
perfection and priority of Secured Parties’ security interest in any of the
Collateral and of the preservation of its rights therein in any
jurisdiction. Without limiting the foregoing, Pledgor will deliver,
at its own expense, to Secured Parties, upon demand, all documents, instruments
or other writings constituting, representing or relating to the Collateral
or
any part thereof.
(d) After
Acquired
Collateral. Any and all Collateral described or referred to in
the granting clauses hereof which is hereafter acquired shall, and without
any
further conveyance, assignment or act on the part of Pledgor or Secured Parties,
become and be subject to the security interests herein granted as fully and
completely as though specifically described herein.
8. Events
of
Default. The occurrence of any of the following events with
respect to a Secured Party shall constitute an “Event of Default”
under this
Agreement as to such Secured Party:
(a) any
default in the performance, or any breach, of any representation, warrant,
covenant or agreement for the benefit of such Secured Party contained in this
Agreement;
(b) any
default in the payment of the principal or interest on such Secured Party’s
Note, when and as the same shall become due and payable; or
(c) the
entry
of a decree or order by a court of competent jurisdiction adjudging Pledgor
bankrupt or insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Pledgor, under
federal bankruptcy law, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, and the
continuance of any such decree or order unstayed and in effect for a period
of
60 days; or the commencement by Pledgor of a voluntary case under federal
bankruptcy law, as now or hereafter constituted, or any other applicable federal
or state bankruptcy, insolvency or similar law, or the consent by Pledgor to
the
institution of bankruptcy or insolvency proceedings against it, or the filing
by
Pledgor of a petition or answer or consent seeking reorganization or
relief under federal bankruptcy law or any other applicable federal or state
law, or the consent by Pledgor to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or
similar official of Pledgor or of any substantial part of the property of
Pledgor, or the making by Pledgor of an assignment for the benefit of creditors,
or the admission by Pledgor in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by Pledgor
in
furtherance of any such action.
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9. Remedies.
(a) Acceleration
of
Note. Upon the occurrence of an Event of Default, each Secured
Party may, by notice to Pledgor, declare the aggregate unpaid principal balance
of its Note, together with all unpaid accrued interest thereon, to be
immediately due and payable and thereupon all such amounts shall be and become
immediately due and payable to such Secured Party.
(b) Obtaining
the Collateral
Upon Event of Default. If any Event of Default shall have
occurred and be continuing, then and in every such case, each Secured Party
may,
at any time or from time to time during the continuance of such Event of Default
take any or all of the following actions, all if which shall be at Pledgor’s
expense, which expenses shall constitute Obligations secured by the
Collateral:
(i) Personally,
or by agents or attorneys, immediately take possession of such Secured Party’s
Percentage Interest in the Collateral or any part thereof not already in such
Secured Party’s possession, from Pledgor or any other Person who then has
possession of any part thereof with or without notice or process of law, and
for
that purpose may enter upon Pledgor’s premises where any of such Collateral is
located and remove such Collateral, and use in connection with such removal
any
and all services, supplies, aids and other facilities of Pledgor;
(ii) Instruct
the obligor or obligors on any agreement, instrument or other obligation
constituting such Secured Party’s Percentage Interest in Collateral, to make any
payment required by the terms of such instrument or agreement directly to such
Secured Party; provided, however,
in the event
that any such payments are made directly to Pledgor, Pledgor shall hold such
payments in trust and shall segregate all amounts received pursuant thereto
in a
separate account and pay the same promptly to such Secured Party;
and
(iii) To
the
extent permitted by law, including any federal or state securities laws, sell,
assign or otherwise liquidate, or direct Pledgor to sell, assign or otherwise
liquidate, the Secured Party’s Percentage Interest in the Collateral, or any
part thereof, and take possession of the proceeds of any such sale, assignment
or liquidation.
(c) Other
Rights and
Remedies. Upon the occurrence and during the continuance of an
Event of Default, each Secured Party may from time to time exercise in respect
of its Percentage Interest in the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party under the UCC at the time of an event of
default.
(d) Waiver
of
Claims. Except as otherwise provided herein, Pledgor hereby
waives, to the fullest extent permitted by applicable law, notice or judicial
hearing in connection with any Secured Party taking possession, or Secured
Parties’ disposition of any of the Secured Party’s Percentage Interest in the
Collateral, including, without limitation, any and all prior notice and hearing
for any prejudgment remedy or remedies and any such right which Pledgor would
otherwise have under law, and Pledgor hereby further waives to the extent
permitted by applicable law: (i) all damages, occasioned by such
taking of possession, (ii) all other requirements as to the time, place and
terms of sale or other requirements with respect to the enforcement of such
Secured Party’s rights hereunder, and (iii) all rights of redemption,
appraisal, valuation, stay, extension or moratorium now or hereafter in force
under any applicable law. Any sale of, or the grant of options to
purchase, or any other realization upon, any Collateral shall operate to divest
all rights, title, interest, claim and demand, either at law or in equity,
of
Pledgor therein and thereto, and shall be a perpetual bar both at law and in
equity against Pledgor and against any and all Persons claiming or attempting
to
claim the Collateral so sold, optioned or realized upon, or a thereof, from,
through or under Pledgor.
(e) Notice. Without
in any way requiring notice to be given in the following time and manner,
Pledgor agrees that any notice by any Secured Party of sale, disposition or
other intended action hereunder or in connection herewith, whether required
by
the UCC or otherwise, shall constitute reasonable notice to Pledgor if such
notice delivered in accordance with Section 16(h).
(f) Sale
of
Collateral. Pledgor acknowledges that Secured Parties may be
unable to effect a public sale of all or part of the Collateral by reason of
certain prohibitions contained in the Securities Act and other applicable
securities laws, or that they may be able to do so only after delay which might
adversely affect the value that might be realized upon the sale of the
Collateral. Accordingly, Pledgor agrees that any Secured Party,
without the necessity of attempting to cause any registration of the Collateral
to be effected under the Securities Act or other applicable securities laws,
may
sell its Percentage Interest in the Collateral or any part thereof, in one
or
more private sales in any manner exempt from such
registration. Pledgor agrees that any such private sale may be at
prices or on terms less favorable to the owner of such sold Collateral than
would be the case if such Collateral were sold at public sale, and that any
such
private sale shall not be deemed not to have been made in a commercially
reasonable manner by virtue of such sale having been a private
sale.
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10. Payments
After an Event of
Default. All payments received and amounts realized by any
Secured Party pursuant to Section 9,
including all such payments and amounts received after the entire unpaid
principal and interest amount of its Note has been declared due and payable,
as
well as all payments or amounts then held or thereafter received by such Secured
Party as part of the Collateral while an Event of Default shall be continuing,
shall be promptly applied and distributed in the following order of
priority:
(a) first,
to the payment
of all costs and expenses, including reasonable legal expenses and attorneys’
fees, incurred or made hereunder by any Secured Party, including any such costs
and expenses of foreclosure or suit, if any, and of any sale or the exercise
of
any other remedy under Section 9, and
of all taxes, assessments or liens superior to the lien granted under this
Agreement, except any taxes, assessments or other superior lien subject to
which
any said sale under Section 9 may
have been made;
(b) second,
to the
payment to each Secured Party of the amount then owing or unpaid on its Note,
with application on the Note to be made first to any cost, fees, expenses,
indemnities or other similar amounts due and payable to such Secured Party
pursuant to the terms of its Note, second to the unpaid interest under such
Note, and third, to the unpaid principal under such Note, such application
to be
made upon presentation of the Note and the notation thereon of the payment,
if
partially paid, or the surrender and cancellation thereof, if fully paid;
and
(c) third,
to the payment
of the balance or surplus, if any, to Pledgor, its successors and assigns,
or to
whosoever may be lawfully entitled to receive the same.
11. Power
of
Attorney. Pledgor hereby appoints each Secured Party the
attorney-in-fact of Pledgor to prepare, sign and file or record, for Pledgor
in
Pledgor’s name, any financing statement and to take any other action reasonably
deemed by such Secured Party necessary or desirable to perfect and continue
the
perfection of the security interest of such Secured Party hereunder, and to
perform any obligations of Pledgor hereunder, at Pledgor’s expense, but without
obligation to do so. Such power of attorney is coupled with an
interest and is irrevocable so long as this Agreement is in effect.
12. Secured
Parties’ Right to
Cure; Reimbursement. In the event Pledgor should fail to do
any act as herein provided, Secured Parties may, but without obligation to
do
so, with notice to Pledgor, and without releasing Pledgor from any obligation
hereof, make or do the same in such manner and to such extent as Secured Parties
may deem necessary to protect the Collateral, including, without limitation,
the
defense of any action purporting to affect the Collateral or the rights or
powers of Secured Parties hereunder, at Pledgor’s expense. Pledgor
shall reimburse Secured Parties for expenses reasonably incurred under this
Section 12.
13. Expenses. Pledgor
will upon demand pay to Secured Parties the amount of any and all reasonable
expenses, including the fees and expenses of its counsel and the allocated
fees
and expenses of staff counsel and the fees and expenses of any experts and
agents, which Secured Parties may incur in connection with (i) the
collection of the Obligations, (ii) the administration of this Agreement,
(iii) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iv) the exercise or
enforcement of any of the rights of Secured Parties hereunder, or (v) the
failure by Pledgor to perform or observe any of the provisions
hereof. All amounts payable by Pledgor under this Section 13 shall
be due upon demand and shall be part of the Obligations. Pledgor’s
obligations under this Section shall survive the termination of this Agreement
and the discharge of Pledgor’s other obligations hereunder.
14. Indemnity.
(a) Indemnity. Pledgor
agrees to indemnify, reimburse and hold each Secured Party and its successors,
assigns, officers, directors, stockholders, members, managers, employees,
agents, representatives, attorneys and servants (collectively, “Indemnitees”)
harmless from and against any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and
all
reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees and expenses) of whatsoever kind and nature imposed on, asserted
against or incurred by any of the Indemnitees in any way relating to or arising
out of this Agreement or its Note or in any other way connected with the
administration of the transactions contemplated hereby or the enforcement of
any
of the terms hereof, or the preservation of any rights hereunder, or in any
way
relating to or arising out of the ownership, purchase, delivery, control,
financing, possession, sale, or other disposition, or use of the Collateral,
or
the violation of the laws of any Governmental Authority (including, without
limitation, any federal or state securities laws); provided, that
Pledgor shall have no obligation to an Indemnitee hereunder to the extent it
is
judicially determined by a final order or decree that such indemnified
liabilities arise solely from the gross negligence or willful misconduct of
that
Indemnitee. Any Indemnitee shall provide Pledgor with prompt notice
of all third party actions, suits, proceedings, claims, demands or assessments
subject to the indemnification provisions of this Section 14(a)
(collectively, “Third
Party Claims”), and provide Pledgor with notice of all other claims or
demands for indemnification pursuant to this Section 14(a);
provided, however, that the failure to provide timely notice shall not affect
Pledgor’s indemnification obligations except to the extent Pledgor shall have
been materially prejudiced by such failure. Pledgor shall, if
requested by such Indemnitee, resist and defend any Third Party Claim or cause
the same to be resisted and defended by counsel reasonably satisfactory to
such
Indemnitee. Each Indemnitee shall, unless any other Indemnitee has
made the request described in the preceding sentence and such request has been
complied with, have the right to employ its own counsel (or internal counsel)
to
investigate and control the defense of any matter covered by the indemnity
set
forth in this Section 14, and
the fees and expenses of any such outside counsel shall be paid by Pledgor;
provided that,
only to the extent no conflict exists between or among the Indemnitees as
reasonably determined by the Indemnitees, Pledgor shall not be obligated to
pay
the fees and expenses of more than one counsel for all Indemnitees as a group
with respect to any such matter, action, suit or proceeding.
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(b) Misrepresentations. Without
limiting the application of Section 14(a),
Pledgor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of any misrepresentation by
Pledgor in this Agreement or in any statement or writing contemplated by or
made
or delivered pursuant to or in connection with this Agreement.
(c) Contribution. If
and to the extent that the obligations of Pledgor under this Section 14 are
unenforceable for any reason, Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations that is
permissible under applicable law.
(d) Survival. The
obligations of Pledgor contained in this Section 14 shall
survive the termination of this Agreement and the discharge of Pledgor’s other
obligations hereunder.
(e) Reimbursement. Any
amounts paid by an Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured by the
Collateral.
15. Termination;
Release. This Agreement shall terminate on the satisfaction in
full of all of the Obligations and, on such termination, Secured Parties shall
release to Pledgor the security interest granted in the Collateral hereunder
and, upon the request and at the expense of Pledgor, forthwith assign, transfer
and deliver to Pledgor, against receipt and without recourse to or warranty
by
Secured Parties, such of the Collateral to be released as may then be in the
possession of Secured Parties and proper instruments (including UCC termination
statements on Form UCC-3) acknowledging the termination of this Agreement
or the release of such Collateral, as the case may be; provided, that if, after
receipt of any payment of all or any part of the Obligations, any Secured Party
is for any reason compelled to surrender such payment to any person or entity,
because such payment is determined to be void or voidable as a preference,
impermissible setoff, or a diversion of trust funds, or for any other reason,
this Agreement shall continue in full force notwithstanding any contrary action
which may have been taken by such Secured Party in reliance upon such payment,
and any such contrary action so taken shall be without prejudice to such Secured
Party’s rights under this Agreement and shall be deemed to have been conditioned
upon such payment having become final and irrevocable.
16. Miscellaneous.
(a) Entire
Agreement;
Amendment. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof, and supersedes all
existing agreements among them concerning such subject matter. This
Agreement may only be amended or modified by a written instrument duly executed
by Pledgor and Secured Parties.
(b) Successors
and
Assigns. This Agreement, together with the covenants and
warranties contained in it, shall inure to the benefit of each Secured Party
and
its successors, assigns, heirs and personal representatives, and shall be
binding upon Pledgor, its successors and permitted assigns; provided that
Pledgor may not assign this Agreement without the prior written consent of
all
Secured Parties. Any assignment by Pledgor in violation of this Section 16(b) shall
be null and void. No other Persons (including, without limitation,
any other creditor of Pledgor) shall have any interest herein or any right
or
benefit with respect hereto. Without limiting the generality of the
foregoing, each Secured Party may assign or otherwise transfer any indebtedness
held by it and secured by this Agreement to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof
granted to such Secured Party, herein or otherwise, subject however, to the
provisions of the Note.
(c) No
Waiver; Cumulative
Remedies.
(i) No
failure on the part of any Secured Party to exercise, no course of dealing
with
respect to, and no delay on the part of any Secured Party in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein provided are cumulative
and are not exclusive of any remedies provided by law.
(ii) In
the
event any Secured Party shall have instituted any proceeding to enforce any
right, power or remedy under this Agreement by foreclosure, sale, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for
any
reason or shall have been determined adversely to such Secured Party, then
and
in every such case, Pledgor and such Secured Party shall be restored to their
respective former positions and rights hereunder with respect to the Collateral,
and all rights, remedies and powers of such Secured Party shall continue as
if
no such proceeding had been instituted.
7
(d) Governing
Law. This Agreement shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of
Maryland.
(e) Consent
to Jurisdiction and
Service of Process. Pledgor irrevocably consents to the
jurisdiction of the courts of the State of Maryland and of any federal court
sitting in Maryland in connection with any action or proceeding arising out
of
or relating to this Agreement, any document or instrument delivered pursuant
to,
in connection with or simultaneously with this Agreement, or a breach of this
Agreement or any such document or instrument.
(f) WAIVER
OF JURY
TRIAL. PLEDGOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH IT IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
(g) Severability
of
Provisions. If any provision of this Agreement is invalid,
illegal or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person, party or circumstance,
it
shall nevertheless remain applicable to all other persons, parties and
circumstances.
(h) Notices. All
notices and other communications required or permitted under this Agreement
shall be sent by registered or certified mail, postage prepaid, overnight
courier, confirmed telex or facsimile transmission (provided, that a copy is
also set by registered or certified mail), or delivered by hand or by messenger,
addressed (i) if to a Secured Party, addressed at its address set forth on
the signature page hereto, or at such other address as such Secured Party shall
have furnished to Pledgor in writing, or (ii) if to Pledgor, at its offices
at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, to the attention of the
Chief Executive Officer, or at such other address as Pledgor shall have
furnished to Secured Party in writing.
(i) Headings. The
Section headings used in this Agreement are for convenience of reference only
and shall not affect the construction or interpretation of this
Agreement.
(j) Execution
in
Counterparts. This Agreement and any amendments, waivers,
consents or supplements hereby may be executed in any number of counterparts
and
by different parties hereto in separate counterparts.
[SIGNATURE
PAGE FOLLOWS.]
8
IN
WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement to be duly
executed and delivered as of the date and year first written above.
PLEDGOR:
INDIA
GLOBALIZATION CAPITAL, INC
By:
Name:
Title:
9
IN
WITNESS WHEREOF, the undersigned Secured Party has caused this Pledge Agreement
to be duly executed and delivered as of the date and year first written
above.
SECURED
PARTY:
By:
Name:
Title:
Address:
10
SCHEDULE
1
PERCENTAGE
INTERESTS
Percentage
|
|
DR.
RANGA KRISHNA (CHAIRMAN OF
IGCBOARD)
|
59.107%
|
XXXXXXXX
CAPITAL
|
13.746%
|
Total
|
72.853%
|
11