Exhibit 10.8
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
THIS SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of August
29, 2003 (this "AGREEMENT"), is made by DIOMED, INC., a Delaware corporation
(the "PLEDGOR"), in favor of GIBRALT US, INC., a Colorado corporation (in its
individual capacity, "XXX"), as agent (in such capacity as agent, the
"DESIGNATED Pledgeholder") for the Secured Parties (as defined herein).
W I T N E S S E T H:
WHEREAS, pursuant to (i) an Exchange Agreement dated as of April 22,
2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "EXCHANGE AGREEMENT"), among the Pledgor, Diomed Holdings, Inc., a
Delaware corporation ("HOLDINGS"), the Note Purchasers party thereto and XXX, as
agent (in such capacity as agent, the "DESIGNATED NOTE PURCHASER") for the
predecessors in interest to current holders of the Class E Notes (as defined in
the Second Exchange Agreement dated as of May 28, 2003, among Holdings, the
Pledgor, the Noteholders party thereto, and the Designated Note Purchaser), (ii)
Secured Loan Agreement dated as of April 22, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "SECURED LOAN
Agreement"), among Holdings, the Lenders party thereto and XXX, as agent (in
such capacity as agent, the "DESIGNATED LENDER") for such Lenders holding the
Class D Notes referred to in therein (the Designated Lender and the holders of
the Class D Notes being referred to herein, collectively, as the "LENDER SECURED
PARTIES") and (iii) the other Documents (as defined in the Exchange Agreement),
the Pledgor, the Designated Note Purchaser and the Designated Lender have
entered into that certain Amended and Restated Pledge Agreement, dated as of
April 22, 2003 (the "FIRST AMENDED PLEDGE AGREEMENT"), by Pledgor in favor of
the Designated Note Purchaser and the Designated Lender;
WHEREAS, pursuant to a Securities Purchase Agreement dated as of August
8, 2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "SECURITIES PURCHASE AGREEMENT"), among Holdings and the Investors
party thereto, XXX, in its individual capacity, has been appointed as the agent
(in such capacity as agent, the "DESIGNATED NOTE INVESTOR") for the holders of
the Secured Bridge Notes referred to therein (the Designated Note Investor and
the holders of the Secured Bridge Notes being collectively referred to in this
Agreement as the "NOTE INVESTOR SECURED PARTIES"; and, together with the
Designated Pledgeholder and the Lender Secured Parties, the "SECURED PARTIES");
WHEREAS, Holding's proposes to immediately contribute the proceeds
which Holdings receives from the issuance and sale of Holding's Secured Bridge
Notes pursuant to the Securities Purchase Agreement to the Pledgor to be
immediately applied by the Pledgor to the repayment in full of the Pledgor's
Class E Notes;
WHEREAS, following the issuance and sale of the Secured Bridge Notes,
the Pledgor's Class D Notes will remain outstanding and secured pursuant, among
other agreements, the First Amended Pledge Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to time;
WHEREAS, as conditions precedent to the consummation of the purchase
and sale of the Secured Bridge Notes pursuant to the Securities Purchase
Agreement, (a) the Pledgor is required to guaranty the Secured Bridge Notes and
to execute and deliver this Agreement to secure its guaranty and (b) the
Designated Note Purchaser and the Designated Lender are each required to consent
to the amendment and restatement of the First Amended Pledge Agreement in its
entirety as provided in this Agreement;
WHEREAS, the holders of the Pledgor's Class E Notes and the holders of
the Pledgor's Class D Notes will derive substantial benefits from the
transactions contemplated by the Securities Purchase Agreement and have duly
authorized the execution, delivery and performance of this Agreement by the
Designated Note Purchaser and the Designated Lender, respectively; and
WHEREAS, the Pledgor will derive substantial benefits from the
transactions contemplated by the Securities Purchase Agreement, and has duly
authorized the execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Note
Investor Secured Parties to consummate the purchase and sale of the Secured
Bridge Notes pursuant to the Securities Purchase Agreement, (a) the Pledgor, the
Designated Lender and the Designated Note Purchaser hereby amend and restate the
First Amended Pledge Agreement in its entirety and (b) the Pledgor agrees, for
the benefit of each Secured Party, in each case, as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"AGREEMENT" is defined in the PREAMBLE.
"CLASS D NOTES" is defined in the FIRST RECITAL.
"CLASS E NOTES" is defined in the FIRST RECITAL.
"COLLATERAL" is defined in SECTION 2.1.
"DESIGNATED LENDER" is defined in the FIRST RECITAL and shall include
any successor agent for the holders of the Class D Notes appointed by such
holders pursuant to Section 10(g) of the Secured Loan Agreement.
"DESIGNATED NOTE INVESTOR" is defined in the SECOND RECITAL and shall
include any successor agent for the holders of the Secured Bridge Notes
appointed by such holders pursuant to Section 6.1(g) of the Security Agreement.
"DESIGNATED NOTE PURCHASER" is defined in the FIRST RECITAL.
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"DESIGNATED PLEDGEHOLDER" is defined in the preamble and shall
include any successor agent for the Secured Parties appointed by the Secured
Parties pursuant to SECTION 5.1(G).
"DISTRIBUTIONS" shall mean all Equity Interest dividends,
other dividends, including liquidating dividends, Equity Interests resulting
from (or in connection with the exercise of) splits, reclassifications,
warrants, options, non-cash dividends and all other distributions (whether
similar or dissimilar to the foregoing) on or with respect to any Pledged Equity
Interests or other Equity Interests constituting Collateral, but shall not
include Dividends.
"DIVIDENDS" means cash dividends and cash distributions with
respect to any Pledged Equity Interests made in the ordinary course of business
and not as a liquidating dividend.
"DOCUMENT" shall mean, in respect of the Class D Notes, any
Document, as defined in the Exchange Agreement and, in respect of the Secured
Bridge Notes, any Investment Document, as defined in the Securities Purchase
Agreement.
"EQUITY INTERESTS" means, with respect to any Person, all
shares, interests, participations or other equivalents (however, designated,
whether voting or non-voting) of such Person's capital, whether now outstanding
or issued after the Closing Date.
"EVENT OF DEFAULT" shall mean, with respect to the Class D
Notes, any Event of Default as defined in the Class D Notes and, with respect to
the Secured Bridge Notes, any Event of Default as defined in the Secured Bridge
Notes.
"EXCHANGE AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING SECURITY AGREEMENT" shall mean the Security
Agreement as defined in the Exchange Agreement.
"HOLDINGS" is defined in the FIRST RECITAL.
"LENDER SECURED PARTIES" is defined in the FIRST RECITAL.
"NOTES" shall mean the Class D Notes and the Secured Bridge
Notes.
"NOTE INVESTOR SECURED PARTIES" is defined in the SECOND
RECITAL.
"PERSON" is defined in the Securities Purchase Agreement.
"PLEDGED EQUITY INTERESTS" shall mean all Pledged Shares.
"PLEDGED SHARES" is defined in CLAUSE (B) of SECTION 2.1.
"PLEDGOR" is defined in the PREAMBLE.
"PROCEEDS" is defined in the Security Agreement.
"REQUIRED NOTEHOLDERS" shall mean, on any date, the holders of
more than 50% of the outstanding principal balance of the Notes on such date.
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"SECURED BRIDGE NOTES" is defined in the Securities Purchase
Agreement.
"SECURED LOAN AGREEMENT" is defined in the FIRST RECITAL.
"SECURED OBLIGATIONS" shall mean, in respect of the Class D
Notes, all Secured Obligations, as defined in the Existing Security Agreement
and, in respect of the Secured Bridge Notes, all Secured Obligations, as defined
in the Security Agreement.
"SECURED PARTIES" is defined in the SECOND RECITAL.
"SECURITIES PURCHASE AGREEMENT" is defined in the SECOND
RECITAL.
"SECURITIES ACT" is defined in SECTION 6.2.
"SECURITIES ISSUER" shall mean Diomed PDT, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Pledgor.
"SECURITY AGREEMENT" is defined in the Securities Purchase
Agreement.
"TERMINATION DATE" shall mean the later of the Termination
Date as defined in the Existing Security Agreement and the Termination Date as
defined in the Security Agreement.
"U.C.C." is defined in the Security Agreement.
1.2 SECURITIES PURCHASE AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the
Securities Purchase Agreement.
1.3 U.C.C. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the U.C.C. are used
in this Agreement, including its preamble and recitals, with such meanings.
1.4 OTHER INTERPRETIVE PROVISIONS. The rules of construction in
Sections 20(d) of the Securities Purchase Agreement shall be equally applicable
to this Agreement.
ARTICLE II
PLEDGE
2.1 GRANT OF SECURITY INTEREST. The Pledgor hereby pledges, assigns,
charges, mortgages, delivers, and transfers to the Designated Pledgeholder, and
hereby grants to the Designated Pledgeholder and each of the Secured Parties, a
continuing security interest in all of its right, title and interest in and to
the following property of the Pledgor, whether now or hereafter existing or
acquired (collectively, the "COLLATERAL"):
(a) all issued and outstanding shares of capital stock of the
Securities Issuer as identified in SCHEDULE I hereto (as such Schedule may be
supplemented from time to time pursuant to SECTION 4.1(B)) opposite the name of
the Pledgor and all additional shares of capital stock of any the Securities
Issuer from time to time acquired by the Pledgor in any manner, and the
certificates representing such shares of capital stock (such shares of capital
stock being referred to herein as the "PLEDGED SHARES");
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(b) all Dividends, Distributions, other payments and rights with
respect to the items listed in CLAUSE (A) above; and
(c) all Proceeds of any and all of the foregoing Collateral.
2.2 SECURITY FOR SECURED OBLIGATIONS. The Collateral of the Pledgor
under this Agreement secures the prompt payment in full of (i) in respect of the
Class D Notes, all Secured Obligations as defined in the Existing Security
Agreement and (ii) in respect of the Secured Bridge Notes, all Secured
Obligations as defined in the New Security Agreement.
2.3 DELIVERY OF COLLATERAL. All certificates representing or evidencing
any Collateral, including all Pledged Equity Interests shall be delivered to the
Designated Pledgeholder and shall be held by the Designated Pledgeholder on
behalf of the Secured Parties pursuant hereto and as provided in the Secured
Loan Agreement and the Securities Purchase Agreement, shall be in suitable form
for transfer by delivery, and shall be accompanied by all necessary instruments
of transfer or assignment, duly executed in blank. The Designated Pledgeholder
hereby acknowledges that it has received delivery of such certificate and
instrument from the Designated Note Purchaser and the Designated Lender.
2.4 DIVIDENDS ON PLEDGED EQUITY INTERESTS. In the event that any
Dividend is to be paid on any Pledged Equity Interest at a time when no Event of
Default has occurred and is continuing, such Dividend may be paid directly to
the Pledgor. If any such Event of Default has occurred and is continuing, then
any such Dividend or payment shall be paid directly to the Designated
Pledgeholder to be held as a part of the Collateral.
2.5 CONTINUING SECURITY INTEREST; TRANSFER OF NOTES. This Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the Termination Date, be binding upon the Pledgor
and its successors, transferees and assigns, and inure, together with the rights
and remedies of the Designated Pledgeholder hereunder, to the benefit of the
Designated Pledgeholder and each Secured Party. Without limiting the generality
of the foregoing, each Secured Party may assign or otherwise transfer (in whole
or in part) any Note held by it to any other Person, and such other Person shall
thereupon become vested with all the rights and benefits in respect thereof
granted to such Secured Party under any Document (including this Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer.
2.6 SECURITY INTEREST ABSOLUTE. All rights of the Designated
Pledgeholder and the security interests granted to the Secured Parties
hereunder, and all obligations of the Pledgor hereunder, shall be, absolute and
unconditional, irrespective of any of the following conditions, occurrences or
events:
(a) any lack of validity or enforceability of any Document;
(b) the failure of the Designated Pledgeholder or any Secured
Party to assert any claim or demand or to enforce any right or remedy against
Holdings, the Pledgor or any
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other Person under the provisions of any Document, or otherwise or to exercise
any right or remedy against any other guarantor of, or collateral securing, any
Secured Obligation;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations or any other extension,
compromise or renewal of any Secured Obligation, including any increase in the
Secured Obligations resulting from the extension of additional credit to
Holdings, the Pledgor or otherwise;
(d) any reduction, limitation, impairment or termination of any
Secured Obligation for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and the
Pledgor hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Secured Obligation or otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of any Document;
(f) any addition, exchange, release, surrender or non-perfection
of any collateral (including the Collateral), or any amendment to or waiver or
release of or addition to or consent to departure from any guaranty, for any of
the Secured Obligations; or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, Holdings, the
Pledgor or otherwise.
2.7 SUBROGATION. Until the Termination Date, the Pledgor shall not
exercise any claim or other rights which it may now or hereafter acquire against
Holdings that arises from the existence, payment, performance or enforcement of
the Pledgor's obligations under this Agreement, including any right of
subrogation, reimbursement, exoneration or indemnification, any right to
participate in any claim or remedy against Holdings or any collateral which the
Designated Pledgeholder or any Secured Party now has or hereafter acquires,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including the right to take or receive from Holdings,
directly or indirectly, in cash or other property or by set-off or in any
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to the Pledgor in violation of the preceding sentence, such
amount shall be deemed to have been paid for the benefit of the Secured Parties,
and shall forthwith be paid to the Designated Pledgeholder to be held as
additional Collateral. The Pledgor acknowledges that it will receive direct and
indirect benefits for the financing arrangements contemplated by the Documents
and that the agreement set forth in this Section is knowingly made in
contemplation of such benefits.
2.8 RELEASE; TERMINATION.
(a) Upon any sale, transfer or other disposition of any item of
Collateral of the Pledgor, the Designated Pledgeholder will, at the Pledgor's
expense and without any representations, warranties or recourse of any kind
whatsoever, execute and deliver to the Pledgor such documents as the Pledgor
shall reasonably request to evidence the release of such item of Collateral from
the pledge, assignment and security interest granted hereby; provided,
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that (i) at the time of such request and such release no Event of Default under
either the Class D Notes or the Secured Bridge Notes shall have occurred and be
continuing, (ii) the Pledgor shall have delivered to the each Secured Party, at
least ten Business Days prior to the date of the proposed release, a written
request for release describing the item of Collateral and the terms of the sale,
lease, transfer or other disposition in reasonable detail, including, without
limitation, the price thereof and any expenses in connection therewith, together
with a form of release for execution by the Designated Pledgeholder (which
release shall be in from and substance satisfactory to the Designated
Pledgeholder) and a certificate of the Pledgor to the effect that the
transaction is in compliance with the Documents and as to such other matters as
the Designated Pledgeholder may reasonably request and (iii) the proceeds of any
such sale, lease, transfer or other disposition shall be used to redeem the
Notes in accordance with SECTION 6.4 and the terms and conditions of the Notes.
Notwithstanding the foregoing, the Pledgor agrees that this Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Secured Obligations is rescinded
or must otherwise be restored by any Secured Party upon the insolvency,
bankruptcy or reorganization of the Pledgor, Holdings or otherwise, all as
though such payment had not been made.(b) Upon the Termination Date, the pledge,
assignment and security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the Pledgor. Upon any such termination, the
Designated Pledgeholder will, at the Pledgor's expense and without any
representations, warranties or recourse of any kind whatsoever, execute and
deliver to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination and deliver to the Pledgor all certificates and
instruments representing or evidencing the Collateral then held by the
Designated Pledgeholder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants unto the Designated Pledgeholder
and each Secured Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of a Pledged Equity Interest) by the Pledgor
to the Designated Pledgeholder of any Collateral, as set forth in this Article.
3.1 OWNERSHIP; NO LIENS, ETC. The Pledgor is the legal and beneficial
owner of, and has good and marketable title to (and has full right and authority
to pledge and assign) such Collateral, free and clear of all Liens, except for
this security interest granted pursuant hereto in favor of the Secured Parties.
3.2 VALID SECURITY INTEREST. The delivery of such Collateral to the
Designated Pledgeholder, to hold for the benefit of the Secured Parties, is
effective to create a valid, perfected security interest in such Collateral and
all Proceeds thereof, subject to no other Liens, securing the payment of the
Secured Obligations. No filing or other action will be necessary to perfect or
protect such security interest.
3.3 AS TO PLEDGED SHARES. All of such Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
all of the issued and outstanding voting capital stock and all of the non-voting
shares of capital stock of the Securities Issuer thereof. The Pledgor has no
Subsidiaries other than the Securities Issuer.
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3.4 AUTHORIZATION, APPROVAL, ETC. No authorization, approval, or other
action by, and no notice to or filing with, any Governmental Authority or any
other Person is required either:
(a) for the pledge by the Pledgor of any Collateral pursuant to
this Agreement or for the execution, delivery, and performance of this Agreement
by the Pledgor; or
(b) for the exercise by any Secured Party of the voting or other
rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, except, with respect to the Pledged
Equity Interests, as may be required in connection with a disposition of such
Pledged Equity Interests by laws affecting the offering and sale of securities
generally.
3.5 DUE EXECUTION, VALIDITY, ETC. The Pledgor has full power and
authority, and holds all requisite governmental licenses, permits and other
approvals, to enter into and perform its obligations under this Agreement. With
the consent of the Designated Note Investor on behalf of the holders of the
Class D Notes, the execution, delivery and performance by the Pledgor of this
Agreement does not contravene or result in a default under the Pledgor's
articles of incorporation or by-laws or contravene or result in a default under
any material contractual restriction, Lien or applicable law binding on the
Pledgor. This Agreement has been duly authorized by the Pledgor, has been duly
executed and delivered on behalf of the Pledgor and constitutes the legal, valid
and binding obligation of the Pledgor enforceable in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency or similar
applicable law affecting creditor's right generally, and subject to the effect
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
3.6 OTHER DOCUMENTS. Each representation and warranty of the Pledgor
contained in each Document to which it is a party is true and correct in all
material respects as of such date (unless such representation and warranty is
stated to relate solely to an earlier date, in which case such representation
and warranty is true and correct in all material respects as of such earlier
date).
ARTICLE IV
COVENANTS
The Pledgor covenants and agrees that, until the Termination Date, the
Pledgor will, unless the Designated Pledgeholder shall otherwise agree in
writing, perform the obligations set forth in this Section.
4.1 PROTECT COLLATERAL; FURTHER ASSURANCES, ETC. (a) (a) The Pledgor
will not create or suffer to exist any Lien on the Collateral (except a Lien in
favor of the Secured Parties). The Pledgor will warrant and defend the right and
title herein granted unto the Secured Parties in and to the Collateral (and all
right, title, and interest represented by the Collateral) against the claims and
demands of all Persons whomsoever.
(b) The Pledgor agrees that at any time, and from time to time, at
the expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments, and take all further action, that may be necessary, or that
the Designated Pledgeholder may reasonably
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request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Designated Pledgeholder to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
(c) The Pledgor will not permit the Securities Issuer to issue any
Equity Interest unless the same is immediately delivered in pledge to the
Designated Pledgeholder hereunder.
4.2 POWERS, CONTROL, ETC. (a) The Pledgor agrees that all Pledged
Equity Interests delivered by the Pledgor pursuant to this Agreement will be
accompanied by duly executed undated blank powers, or other equivalent
instruments of transfer acceptable to the Designated Pledgeholder.
(b) The Pledgor will, from time to time upon the request of the
Designated Pledgeholder, promptly deliver to the Designated Pledgeholder such
powers, instruments, and similar documents, satisfactory in form and substance
to the Designated Pledgeholder, with respect to the Collateral as the Designated
Pledgeholder may reasonably request and will, from time to time upon the request
of the Designated Pledgeholder after the occurrence of any Event of Default
under the Notes, promptly transfer any Pledged Equity Interests into the name of
any nominee designated by the Designated Pledgeholder.
4.3 CONTINUOUS PLEDGE. Subject to SECTION 2.4, the Pledgor will, at all
times, keep pledged to the Designated Pledgeholder pursuant hereto all Pledged
Equity Interests and all other Equity Interests constituting Collateral, all
Dividends and Distributions with respect thereto, and all other Collateral and
other securities, instruments, proceeds, and rights from time to time received
by or distributable to the Pledgor in respect of any Collateral.
4.4 VOTING RIGHTS; DIVIDENDS, ETC. The Pledgor agrees:
(a) after any Event of Default shall have occurred and be
continuing, promptly upon receipt thereof by the Pledgor and without any request
therefor by the Designated Pledgeholder, to deliver (properly endorsed where
required hereby or requested by the Designated Pledgeholder) to the Designated
Pledgeholder all Dividends, Distributions, other cash payments, and proceeds of
the Collateral, all of which shall be held by the Designated Pledgeholder as
additional Collateral for use in accordance with SECTION 6.4; and
(b) after any Event of Default under the Notes shall have occurred
and be continuing and the Designated Pledgeholder has notified the Pledgor that
it has received a direction from the Designated Note Investors and/or the
Designated Lenders pursuant to SECTION 6.1 directing the Designated Pledgeholder
to exercise its voting power under this clause:
(i) the Designated Pledgeholder may exercise (to the exclusion of
the Pledgor) the voting power and all other incidental rights of ownership with
respect to any Pledged Equity Interests and the Pledgor hereby grants the
Designated Pledgeholder an irrevocable proxy, exercisable under such
circumstances, to vote the Pledged Equity Interests; and
(ii) the Pledgor shall promptly deliver to the Designated
Pledgeholder such additional proxies and other documents as may be necessary to
allow the Designated Pledgeholder to exercise such voting power.
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(c) All Dividends, Distributions, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which the
Pledgor is then obligated to deliver to the Designated Pledgeholder, shall,
until delivery to the Designated Pledgeholder, be held by the Pledgor separate
and apart from its other property in trust for the Secured Parties. Until an
Event of Default shall have occurred and be continuing and the Designated
Pledgeholder shall have given the notice referred to in CLAUSE (B) above, the
Pledgor shall have the exclusive voting power with respect to any Equity
Interests constituting Collateral and the Designated Pledgeholder shall, upon
the written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any such
Equity Interests constituting Collateral; PROVIDED, HOWEVER, that no vote shall
be cast, or consent, waiver, or ratification given, or action taken or any
action not taken by the Pledgor that would materially impair any Collateral.
ARTICLE V
THE DESIGNATED PLEDGEHOLDER
5.1 APPOINTMENT OF DESIGNATED PLEDGEHOLDER BY DESIGNATED LENDER AND
DESIGNATED NOTE INVESTOR.
(a) Pursuant to Section 10(b) of the Secured Loan Agreement, the
Designated Lender, on behalf of each Lender Secured Party, and pursuant to
Section 6.1(b) of the Security Agreement, the Designated Note Investor, on
behalf of each Note Investor Secured Party, hereby irrevocably appoints,
designates and authorizes XXX as agent for such Secured Party hereunder and
authorizes the Designated Pledgeholder to take such action on behalf of such
Secured Party under the provisions of this Agreement and each other Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Document, the Designated
Pledgeholder shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Designated Pledgeholder have or be
deemed to have any fiduciary relationship with any Secured Party, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Document or otherwise exist against the
Designated Pledgeholder.
(b) The Designated Pledgeholder may execute any of its duties
under this Agreement or any other Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Designated Pledgeholder shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
(c) The Designated Pledgeholder shall not (a) be liable for any
action taken or omitted to be taken by it under or in connection with this
Agreement or any other Document or
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the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to the Designated Lender, the Designated Note
Investor or any Secured Party for any recital, statement, representation or
warranty made by the Pledgor or any officer thereof, contained herein or in any
other Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Designated Pledgeholder under
or in connection with, this Agreement or any other Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Document, or for any failure of the Pledgor or any other party to any
Document to perform its obligations hereunder or thereunder.
(d) Designated Pledgeholder shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Pledgor), independent accountants and other experts selected by the Designated
Pledgeholder. The Designated Pledgeholder shall be fully justified in failing or
refusing to take any action under any Document unless it shall first receive
such advice or concurrence of (i) the Designated Lender and the Designated Note
Investor, (ii) the Required Noteholders or (iii) all the Secured Parties, as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Secured Parties against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Designated Pledgeholder shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Document
in accordance with a request or consent of (i) the Designated Lender and the
Designated Note Investor or (ii) the Required Noteholders (unless, in each case,
the consent of all the Secured Parties is required pursuant to SECTION 7.2(A))
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Secured Parties.
(e) Each Secured Party acknowledges that the Designated
Pledgeholder has not made any representation or warranty to it, and that no act
by the Designated Pledgeholder hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of the Pledgor or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by the Designated Pledgeholder to any Secured Party as to any matter, including
whether the Designated Pledgeholder have disclosed material information in their
possession. Each Secured Party represents to the Designated Pledgeholder that it
has, independently and without reliance upon the Designated Pledgeholder and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Pledgor and
its subsidiaries, and all applicable laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement.
(f) Whether or not the transactions contemplated hereby are
consummated, the Secured Parties shall indemnify upon demand the Designated
Pledgeholder (to the extent not reimbursed by or on behalf of the Pledgor and
without limiting the obligation of the Pledgor to do so), pro rata, and hold
harmless the Designated Pledgeholder from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Secured Party shall be
liable
11
for the payment to the Designated Pledgeholder of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from the
Designated Pledgeholder's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Secured
Parties shall be deemed to constitute gross negligence or willful misconduct for
purposes of 5. Without limitation of the foregoing, each Secured Party shall
reimburse the Designated Pledgeholder upon demand for its ratable share of any
costs or out-of-pocket expenses incurred by the Designated Pledgeholder in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Document, or any document
contemplated by or referred to herein, to the extent that the Designated
Pledgeholder is not reimbursed for such expenses by or on behalf of the Pledgor.
(g) The Designated Pledgeholder may resign as Designated
Pledgeholder upon thirty (30) days notice to the Secured Parties and to the
Company. If the Designated Pledgeholder resigns under this Agreement, within
fifteen (15) days after the delivery by the Designated Pledgeholder of its
notice of resignation, (i) the Designated Lender and the Designated Note
Investor or (ii) the Required Noteholders shall appoint a successor Designated
Pledgeholder from any of the other Secured Parties, and shall notify the Company
of the identity of and contact information for such successor Designated
Pledgeholder within five (5) days of such successor Designated Pledgeholder's
appointment.
5.2 APPOINTMENT AS ATTORNEY-IN-FACT BY PLEDGOR. The Pledgor hereby
irrevocably constitutes and appoints the Designated Pledgeholder and any officer
or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in its own name, for the
purpose of carrying out the terms of this Agreement, to take, upon the
occurrence and during the continuance of any Event of Default under the Notes,
any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement. Upon the occurrence and during the continuance of an Event of
Default under the Notes, the Pledgor hereby gives the Designated Pledgeholder
the power and right, on behalf of the Pledgor, without notice to or assent by
the Pledgor, to do any or all of the following:
(a) in the name of the Pledgor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under or in respect of any
Collateral and file any claim or take any other action or proceeding in any
court of law or equity or otherwise deemed appropriate by the Secured Parties
for the purpose of collecting any and all such moneys due under or in respect of
any Collateral whenever payable; and
(b) (i) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due thereunder
directly to the Designated Pledgeholder or as the Designated Pledgeholder shall
direct; (ii) ask or demand for, collect, and receive payment of and give receipt
for, any and all moneys, claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral; (iii) receive, collect,
sign and endorse any drafts or other instruments, documents and chattel paper in
connection with any
12
of the Collateral; (iv) commence and prosecute any suits, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect of
any Collateral; (v) defend any suit, action or proceeding brought against the
Pledgor with respect to any Collateral; (vi) settle, compromise or adjust any
such suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Designated Pledgeholder (at the direction of the
Secured Parties) may deem appropriate; and (vii) generally, sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Designated Pledgeholder (for
the benefit of the Secured Parties) were the absolute owner thereof for all
purposes, and do, at the option of the Designated Pledgeholder and at the
Pledgors' expense, at any time, or from time to time, all acts and things that
the Designated Pledgeholder deems necessary to protect, preserve or realize upon
the Collateral and the Secured Parties' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as the Pledgor might
do.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
5.3 DESIGNATED PLEDGEHOLDER MAY PERFORM. If the Pledgor fails to
perform any agreement contained herein, the Designated Pledgeholder may perform,
or cause performance of, such agreement and the reasonable expenses of the
Designated Pledgeholder incurred in connection therewith shall be payable by the
Pledgor pursuant to SECTION 6.5.
5.4 DESIGNATED PLEDGEHOLDER HAS NO DUTY. (a) The powers conferred on
the Designated Pledgeholder hereunder are solely to protect its interest (on
behalf of the Secured Parties) in the Collateral and shall not impose any duty
on it to exercise any such powers. Neither the Designated Pledgeholder nor any
of its officers, directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof
(including the taking of any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral). Neither the
Designated Pledgeholder nor any of its officers, directors, employees or agents
shall be responsible to the Pledgor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.(b) The Pledgor
assumes all responsibility and liability arising from or relating to the use,
sale or other disposition of the Collateral. The Secured Obligations shall not
be affected by any failure of the Designated Pledgeholder to take any steps to
perfect the pledge and security interest granted hereunder or to collect or
realize upon the Collateral, nor shall loss or damage to the Collateral release
the Pledgor from any Secured Obligations.
ARTICLE VI
REMEDIES
6.1 CERTAIN REMEDIES. If any Event of Default shall have occurred and
be continuing:
(a) Upon receipt of (i) the written direction of the Note Investor
Secured Parties that hold a majority in outstanding principal amount of the
Secured Bridge Notes or (ii) the written direction of the Lender Secured Parties
that hold a majority in outstanding principal
13
amount of the Class D Notes, the Designated Pledgeholder may exercise in respect
of 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 on
default under the U.C.C.
(b) Upon receipt of (i) the written direction of the Note Investor
Secured Parties that hold a majority in outstanding principal amount of the
Secured Bridge Notes or (ii) the written direction of the Lender Secured Parties
that hold a majority in outstanding principal amount of the Class D Notes the
Designated Pledgeholder may:
(i) transfer all or any part of the Collateral into the name of
the Designated Pledgeholder (on behalf of the Secured Parties) or its nominee,
with or without disclosing that such Collateral is subject to the lien and
security interest hereunder;
(ii) notify the parties obligated on any of the Collateral to make
payment to the Designated Pledgeholder of any amount due or to become due
thereunder (and notify the Pledgor as contemplated by SECTION 4.4(B));
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than the
original period) any obligations of any nature of any party with respect
thereto;
(iv) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral;
(v) take control of any proceeds of the Collateral; and
(vi) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
6.2 APPLICABLE LAWS. If the Designated Pledgeholder shall determine to
exercise its right to sell all or any of the Collateral pursuant to SECTION 6.1,
the Pledgor agrees that, upon request of the Designated Pledgeholder, the
Pledgor will, at its own expense do or cause to be done all such acts and things
as may be reasonably requested by the Designated Pledgeholder necessary to make
such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
6.3 COMPLIANCE WITH RESTRICTIONS. The Pledgor agrees that in any sale
of any of the Collateral whenever an Event of Default shall have occurred and be
continuing, the Designated Pledgeholder is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and 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 Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental authority or official, and the
Pledgor further
14
agrees that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner, nor shall the
Designated Pledgeholder be liable nor accountable to the Pledgor for any
discount allowed by reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
6.4 APPLICATION OF PROCEEDS. All cash proceeds received by the
Designated Pledgeholder in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied (after
payment of any amounts payable to the Designated Pledgeholder pursuant to
SECTION 6.5 below) in whole or in part by the Designated Pledgeholder for the
ratable benefit of the Secured Parties against all or any part of the Secured
Obligations. Any surplus of such cash or cash proceeds held by the Designated
Pledgeholder and remaining after payment in full in cash of all the Secured
Obligations and the termination of this Agreement as provided in SECTION 2.8(B)
hereof, shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
6.5 INDEMNITY AND EXPENSES. The Pledgor agrees to indemnify and hold
harmless the Designated Pledgeholder from and against any and all claims,
losses, and liabilities arising out of or resulting from this Agreement and the
other Documents (including enforcement of this Agreement and the other
Documents), except claims, losses, or liabilities resulting from the Designated
Pledgeholder's gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction. The Pledgor will, upon demand,
pay to the Designated Pledgeholder the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its counsel and of
any experts and agents, which the Designated Pledgeholder may incur in
connection with the following:
(a) the administration of this Agreement and the other Documents;
(b) the custody, preservation, use or operation of, or the sale
of, collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Designated Pledgeholder hereunder; or
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
6.6 WAIVERS. The Pledgor hereby waives any right, to the extent
permitted by applicable law, to receive prior notice of or a judicial or other
hearing with respect to any action or prejudgment remedy or proceeding by the
Designated Pledgeholder to take possession, exercise control over or dispose of
any item of Collateral where such action is permitted under the terms of this
Agreement or any other Document or by applicable laws or the time, place or
terms of sale in connection with the exercise of the Designated Pledgeholder's
rights hereunder. The Pledgor waives, to the extent permitted by applicable
laws, any bonds, security or sureties required by the Designated Pledgeholder
with respect to any of the Collateral. The Pledgor also waives any damages
(direct, consequential or otherwise) occasioned by the enforcement of the
Designated Pledgeholder's rights under this Agreement or any other Document,
including, the taking of possession of any Collateral, all to the extent that
such waiver is permitted by
15
applicable laws. These waivers and all other waivers provided for in this
Agreement and the other Documents have been negotiated by the parties and the
Pledgor acknowledges that it has been represented by counsel of its own choice
and has consulted such counsel with respect to its rights hereunder.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 DOCUMENT. (a) This Agreement is a Document executed pursuant to (i)
the Exchange Agreement and (ii) the Securities Purchase Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions of each thereof.
(b) Previously, the Pledgor executed and delivered the Existing
Security Agreement pursuant to which the Pledgor granted a security interest to
the Lender Secured Parties in certain of the properties and assets of the
Pledgor (other than the Collateral hereunder). Concurrently herewith the Pledgor
is executing and delivering the Security Agreement pursuant to which the Pledgor
is granting a security interest to the Note Investor Secured Parties in certain
of the properties and assets of the Pledgor (other than the Collateral
hereunder). Such security interests shall be governed by the terms of the
Existing Security Agreement or the Security Agreement, as the case may be, and
not by this Agreement.
7.2 AMENDMENTS, ETC.; SUCCESSORS AND ASSIGNS.
(a) No amendment to or waiver of any provision of this Agreement
nor consent to any departure by the Pledgor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Designated
Pledgeholder, at the direction of either (a) both the Designated Note Investor
and the Designated Lender or (b) the Required Lenders; PROVIDED, HOWEVER, that
the Designated Pledgor shall not agree to any such amendment or waiver which
modifies the definition of the Required Lenders or a Secured Party hereunder or
the terms of Article VI hereof without a written direction from each Secured
Party and, with respect to any such amendment, by the Pledgor, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
(b) Upon delivery by the Pledgor of a supplement to SCHEDULE I
pursuant to SECTION 4.1(B), the schedule supplement attached to each such
certificate shall be incorporated into and become part of and supplement
SCHEDULE I hereto, and the Designated Pledgeholder may attach such schedule
supplement to such Schedule and each reference to such Schedule shall mean and
be a reference to such Schedule, as supplemented pursuant hereto.
(c) This Agreement shall be binding upon the Pledgor and its
successors, transferees and assigns and shall inure to the benefit of the
Designated Pledgeholder and each Secured Parties and their respective
successors, transferees and assigns; PROVIDED, that the Pledgor may not assign
its obligations hereunder without the prior written consent of the Designated
Pledgeholder.
7.3 ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing and mailed, delivered or transmitted
by facsimile to any party
16
hereto at the address set forth in Section 18 of the Securities Purchase
Agreement (with any notice to the Pledgor being delivered to the Pledgor in care
of Holdings and such notices to the Designated Pledgeholder being delivered [
]). All such notices and other communications shall be deemed to be given or
made at the times provided in Section 18 of the Securities Purchase Agreement.
7.4 SECTION CAPTIONS. Section captions used in this Agreement are for
convenience of reference only, and shall not affect the construction of this
Agreement.
7.5 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to replace
the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
7.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
7.7 GOVERNING LAW, ETC. (A) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK OR ANY SECURED PARTY.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE; PROVIDED, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY SHALL BE
BROUGHT, AT THE OPTION OF THE DESIGNATED PLEDGEHOLDER, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
PLEDGOR, THE DESIGNATED PLEDGEHOLDER IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING
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 ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR OTHER DOCUMENT
RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
17
7.8 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
ANY DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
7.9 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES OR BY PRIOR
OR CONTEMPORANEOUS WRITTEN AGREEMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
AMONG THE PARTIES.
[Signature page follows.]
18
IN WITNESS WHEREOF, the Pledgor has caused this Second Amended and
Restated Pledge Agreement to be duly executed and delivered by its respective
officer thereunto duly authorized as of the date first above written.
DIOMED, INC.
By:
------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
ACKNOWLEDGED AND ACCEPTED:
GIBRALT US, INC.,
as the Designated Lender
By: __________________________
Name: Xxxxxx Xxxxxx
Title: Authorized Officer
GIBRALT US, INC.,
as the Designated Note Investor
By: __________________________
Name: Xxxxxx Xxxxxx
Title: Authorized Officer
GIBRALT US, INC.,
as the Designated Pledgeholder
By: __________________________
Name: Xxxxxx Xxxxxx
Title: Authorized Officer
GIBRALT US, INC.,
as the Designated Note Purchaser
By: __________________________
Name: Xxxxxx Xxxxxx
Title: Authorized Officer
19
SCHEDULE I
to
Second Amended and Restated Pledge
Agreement
PLEDGED SHARES
Securities Issuer
(Jurisdiction of % of Shares
ORGANIZATION) Authorized SHARES Outstanding SHARES PLEDGED Certificate NO.
------------- ----------------- ------------------ ------- ---------------
Diomed PDT, Inc. ( a 100 100 100 1
Delaware Corporation)
