MEMBERSHIP INTEREST PLEDGE AGREEMENT
THIS
MEMBERSHIP INTEREST PLEDGE AGREEMENT (as
the
same may be amended, restated, modified and otherwise supplemented from time
to
time, this “Pledge
Agreement”),
dated
as of August 17, 2007 is made by PROLINK
HOLDINGS CORP.,
a
Delaware corporation (“Pledgor”),
in
favor of CALLIOPE
CAPITAL CORPORATION,
a
Delaware corporation (“Calliope”).
W
I T N E
S S E T H :
WHEREAS,
pursuant to the terms of (a) that certain Security Agreement dated as of the
date hereof by and among Pledgor, certain Subsidiaries of Pledgor and Calliope
(including all annexes, exhibits and schedules thereto, and as from time to
time
amended, restated, supplemented and otherwise modified the “Security
Agreement”),
(b)
that certain Secured Convertible Term Note executed by Pledgor and certain
Subsidiaries of Pledgor in favor of Calliope in the aggregate principal amount
of Four Million Dollars ($4,000,000) (as from time to time amended, restated,
supplemented and otherwise modified, the “Convertible
Term Note”),
and
(c) that certain Secured Revolving Note executed by Pledgor and certain
Subsidiaries of Pledgor in favor of Calliope in the aggregate principal amount
of Four Million Dollars ($4,000,000) (as from time to time amended, restated,
supplemented and otherwise modified, the “Revolving
Note”
and
together with the Convertible Term Note, the “Notes”),
Calliope has agreed to provide certain financial accommodations to
Pledgor;
WHEREAS,
Pledgor
is the legal and beneficial owner of the Pledged Interests (as hereinafter
defined); and
WHEREAS,
in order
to induce Calliope to enter into the Security Agreement and the Notes, Pledgor
has agreed to secure the Obligations under and as defined in the Security
Agreement by, among other things, pledging the Pledged Interests to Calliope
in
accordance herewith.
NOW,
THEREFORE,
in
consideration of the premises and to induce Calliope to enter into the Security
Agreement and the Notes, Pledgor hereby agrees with Calliope as
follows:
1. Defined
Terms.
(a) Unless
otherwise defined herein, terms defined in the Security Agreement and used
herein shall have the meanings given to them in the Security Agreement, and
the
following terms which are defined in the Code (as defined below) are used herein
as so defined: Accounts, Chattel Paper, General Intangibles and
Instruments.
(b) The
following terms shall have the following meanings:
“Code”
means
the Uniform Commercial Code from time to time in effect in the State of New
York.
“Collateral”
means
(i) the Pledged Interests, (ii) all General Intangibles arising out of or
constituted by the LLC Agreement in respect of the Pledged Interests, (iii)
all
Accounts arising out of the LLC Agreement in respect of any Pledged Interests,
and (iv) to the extent not otherwise included, all Proceeds of any and all
of
the foregoing.
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“Documents”
means
this Pledge Agreement, the Security Agreement, the Notes, the other Ancillary
Agreements and all other documents, instruments, agreements and certificates
at
any time delivered by any Person executed in connection herewith or
therewith.
“Event
of Default”
shall
have the meaning given to such term in
Section 9.
“Governmental
Authority”
means
any nation or government, any state or other political subdivision thereof,
and
any agency, department or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
“Issuers”
shall
have the meaning given to such term in Section
5(a).
“LLC
Agreement”
means
the Third Amended and Restated Operating Agreement of ProLink Solutions, LLC,
a
Delaware limited liability company, dated as of December 23, 2005, by and among
Prolink Solutions, LLC, ProLink Holdings Corp. (f/k/a Amalgamated Technologies,
Inc.) and Parview, Inc., as amended, restated, supplemented and otherwise
modified from time to time in accordance with the terms thereof.
“Person”
means
an individual, a partnership, a corporation (including a business trust), a
joint stock company, a trust, an unincorporated association, a joint venture,
a
limited liability company, a limited liability partnership or other entity,
or a
government or any agency, instrumentality or political subdivision
thereof.
“Pledged
Interests”
means
the interest of Pledgor listed on Schedule
1
hereto
in the Issuers, including, without limitation, all of Pledgor’s right, title and
interest to participate in the operation or management of the Issuers, if any,
and all of Pledgor’s rights to properties, assets, membership interests and
distributions under the LLC Agreement, if any, together with all certificates,
options or rights of any nature whatsoever that may be issued or granted by
the
Issuers to Pledgor in respect of the Pledged Interests while this Pledge
Agreement is in effect and any other limited liability company interest obtained
by Pledgor in the Issuers during the term hereof.
“Proceeds”
means
all “proceeds” as such term is defined in Section 9-102(a)(64) of the Code and,
in any event, shall include, without limitation, all dividends or other income
from the Pledged Interests, collections thereon or distributions with respect
thereto.
“Secured
Obligations”
shall
have the meaning given to the term “Obligations” in the Security
Agreement.
2. Pledge;
Grant of Security Interest.
Pledgor
hereby transfers and assigns to Calliope all of the Pledged Interests of Pledgor
and hereby grants to Calliope a first priority security interest in the
Collateral of Pledgor, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations.
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3. Delivery
to Calliope.
(a) Pledgor
shall deliver to Calliope (i) simultaneously with or prior to the execution
and
delivery of this Pledge Agreement, all certificates representing the Collateral,
if any, and (ii) promptly upon the receipt thereof by or on behalf of Pledgor,
all other certificates and instruments constituting Collateral of Pledgor.
Prior
to delivery to Calliope, all such certificates and instruments constituting
Collateral of Pledgor shall be held in trust by Pledgor for the benefit of
Calliope pursuant hereto. All such certificates shall be delivered in suitable
form for transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, substantially in the form
provided in Schedule
2
attached
hereto.
(b) If
any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note, other Instrument or Chattel Paper,
such
note, Instrument or Chattel Paper shall be immediately delivered to Calliope,
duly endorsed in a manner satisfactory to Calliope, to be held as Collateral
pursuant to this Pledge Agreement.
(c) Pledgor
authorizes Calliope to file such UCC or other applicable financing statements
as
may be reasonably requested by Calliope in order to perfect and protect the
security interest created hereby in the Collateral.
(d) Pledgor
agrees to execute and deliver to Calliope such other consents, acknowledgments,
agreements, instruments and documentation as Calliope may reasonably request
from time to time to effectuate the conveyance, transfer, assignment and grant
to Calliope of all of Pledgor’s right, title and interest in and to the
Collateral and any distributions with respect thereto.
4. Transfer
Powers.
If at
any time any equity interest in any Issuer is evidenced by a certificate or
other written instrument or document (a “certificate”),
Pledgor shall immediately deliver such certificate to Calliope and, concurrently
with the delivery to Calliope of each certificate by Pledgor, Pledgor shall
deliver an undated transfer power covering such certificate, duly executed
in
blank with signature guaranteed (if requested by Calliope), in the form attached
hereto in Schedule
2
or such
other form as reasonably acceptable to Calliope to be held as part of the
Collateral pursuant hereto.
5. Representations
and Warranties.
Pledgor
represents and warrants that:
(a) The
Pledged Interests identified in Schedule
1
and set
forth adjacent to Pledgor’s name constitutes all of Pledgor’s limited liability
company interests or other beneficial interests of any kind in
the
issuers as shown thereon (the “Issuers”)
and
accurately reflects the ownership interest of Pledgor in the
Issuers.
(b) All
required equity contributions to Issuers by Pledgor have been made in connection
with Pledgor’s Pledged Interests.
(c) Pledgor
is the record and beneficial owner of, and has good and marketable title to,
the
Pledged Interests of Pledgor, free of any and all liens or options in favor
of,
or claims of, any other Person, except for the security interest created by
this
Pledge Agreement or otherwise pursuant to the LLC Agreement.
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(d) To
the
best of Pledgor’s knowledge, the exercise by Calliope of its rights and remedies
hereunder will not violate any law or governmental regulation or any material
contractual restriction, in each case, binding on or affecting Pledgor or any
of
its property.
(e) No
authorization, approval or action by, and no notice of filing with any
Governmental Authority or with any Issuer is required either (i) for the pledge
made by Pledgor or for the granting of the security interest by Pledgor pursuant
to this Pledge Agreement or (ii) to the best of Pledgor’s knowledge, for the
exercise by Calliope of its rights and remedies hereunder (except as may be
required by the Uniform Commercial Code in the applicable jurisdiction or laws
affecting the offering and sale of securities).
(f) The
interests of Pledgor in each Issuer are as shown on Schedule
1
attached
hereto.
(g) Upon
the
filing of UCC financing statement describing the Collateral, the security
interest created by this Pledge Agreement will constitute a valid, perfected
first-priority security interest in the Pledged Interests of Pledgor and in
the
other Collateral arising therefrom, enforceable in accordance with its terms
against all creditors of Pledgor, each Issuer or any Person purporting to
purchase any Pledged Interests of Pledgor (or any portion thereof) therefrom
or
otherwise claiming by, through or under Pledgor or such Issuer, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally, and general equitable principles (whether considered in a proceeding
in equity or at law).
6. Covenants.
Pledgor
covenants and agrees with Calliope that, from and after the date of this Pledge
Agreement until this Pledge Agreement is terminated and the security interests
created hereby are released, that:
(a) If
Pledgor shall, as a result of its ownership of the Pledged Interests, become
entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in exchange
for any shares of the Pledged Interests, or otherwise in respect thereof,
Pledgor shall accept the same as the agent of Calliope, hold the same in trust
for Calliope and deliver the same forthwith to Calliope in the exact form
received, duly endorsed by Pledgor to Calliope, if required, together with
an
undated transfer power covering such certificate duly executed in blank by
Pledgor and with signature guaranteed (if requested by Calliope), to be held
by
Calliope, subject to the terms hereof, as additional collateral security for
the
Secured Obligations.
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(b) Without
the prior written consent of Calliope, Pledgor will not (i) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Collateral or any portion thereof, (ii) create, incur or permit to
exist
any security interest, encumbrance, lien or option in favor of, or any claim
of
any Person with respect to, any of the Collateral, or any interest therein,
except for the security interests created by this Pledge Agreement or (iii)
enter into any agreement or undertaking restricting the right or ability of
any
Issuer to sell, assign or transfer any of the Collateral.
(c) Pledgor
shall warrant and defend title to and ownership of the Collateral at its own
expense against the claims and demands of all other parties claiming an interest
therein, shall maintain the security interest created by this Pledge Agreement
as a first priority security interest and shall defend such security interest
against claims and demands of all Persons whomsoever. At any time and from
time
to time, upon the written request of Calliope, Pledgor will promptly and duly
execute and deliver such further instruments and documents and take such further
actions at its expense as Calliope may reasonably request for the purposes
of
obtaining or preserving the full benefits of this Pledge Agreement and of the
rights and powers herein granted. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel paper shall
be immediately delivered to Calliope, duly endorsed in a manner satisfactory
to
Calliope, to be held as Collateral pursuant to this Pledge
Agreement.
(d) Pledgor
shall not participate in any amendment to the LLC Agreement or certificate
of
formation of Issuer (i) that would extend any voting rights to any owner of
any
equity interest in Issuer unless such equity interest is subject to the terms
and provisions of this Pledge Agreement or such other pledge agreement as is
reasonably acceptable to Calliope, (ii) that would otherwise impair the
Collateral or adversely affect in any material respect the rights, privileges,
benefits and security interests provided to or intended to be provided to
Calliope or (iii) that in any way adversely affects the perfection of the
security interest of Calliope in the Collateral, including, without limitation,
any amendment electing to treat any membership interest as a security under
Section 8-103 of the Code, or any election to turn any previously uncertificated
membership interest into a certificated membership interest.
(e) From
time
to time, Pledgor will execute and deliver to Calliope such additional documents
and will provide such additional information and perform such additional acts
as
Calliope may require to carry out the terms of this Pledge
Agreement.
7. Voting
Rights.
Unless
an Event of Default shall have occurred and be continuing, Pledgor shall be
permitted to exercise all voting and company rights with respect to the Pledged
Interests; provided,
however,
that no
vote shall be cast or company right exercised or other action taken which,
in
Calliope’s reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of this Pledge
Agreement.
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8. Rights
of Calliope.
(a) All
money
Proceeds received by Calliope hereunder shall be applied as provided in Section
10(a) hereof.
(b) If
an
Event of Default shall occur and be continuing, at Calliope’s option,
(1) Calliope shall have the right to receive any and all cash dividends or
other distributions paid in respect of the Pledged Interests and make
application thereof to the Secured Obligations in such order as Calliope may
determine, and (2) the Pledged Interests shall be registered in the name of
Calliope or its nominee, and Calliope or its nominee may thereafter exercise
(A)
all voting and other rights pertaining to the Pledged Interests at any meeting
of owners of the applicable Issuer or otherwise and (B) any and all rights
of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Interests as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any
and
all of the Pledged Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the company structure of any
Issuer, or upon the exercise by Pledgor or Calliope of any right, privilege
or
option pertaining to such Pledged Interests, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Interests with any
committee, depository, transfer agent, registrar or other designated agency
upon
such terms and conditions as Calliope may determine), all without liability
except to account for property actually received by it, but Calliope shall
have
no duty to Pledgor to exercise any such right, privilege or option and shall
not
be responsible for any failure to do so or delay in so doing.
9. Events
of Default. The
occurrence of an Event of Default under the Security Agreement shall constitute
an event of default (“Event
of Default”)
hereunder.
10. Remedies.
(a) If
an
Event of Default shall have occurred and be continuing, at any time at
Calliope’s election, Calliope may apply all or any part of Proceeds held by
Calliope in payment of the Secured Obligations in such order as Calliope may
elect.
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(b) If
an
Event of Default shall have occurred and be continuing, Calliope may exercise,
in addition to all other rights and remedies granted in this Pledge Agreement
and in any other instrument or agreement securing, evidencing or relating to
the
Secured Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, Calliope, without resort
to
any other collateral or remedy under any Document or demand of performance
or
other demand, presentment, protest, advertisement or notice of any kind (except
any notice required by law referred to below) to or upon Pledgor or any other
Person (including without limitation the Issuers) (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give an
option or options to purchase or otherwise dispose of and deliver the Collateral
or any part thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, in the over-the-counter market,
at
any exchange, broker’s board or office of Calliope or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. Calliope shall apply any Proceeds from time to time held by it and the
net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, after deducting all reasonable costs and expenses of every kind
incurred in respect thereof or incidental to the care or safekeeping of any
of
the Collateral or in any way relating to the Collateral or its rights hereunder,
including, without limitation, actual and reasonable attorneys’ fees and
disbursements of counsel to Calliope, to the payment in whole or in part of
the
Secured Obligations, in such order as Calliope may elect, and only after such
application and after the payment by Calliope of any other amount required
by
any provision of law, including, without limitation, Section 9-615 of the Code,
need Calliope account for the surplus, if any, to Pledgor. To the extent
permitted by applicable law, Pledgor waives all claims, damages and demands
it
may acquire against Calliope arising out of the exercise by it of any rights
hereunder except for any claim, damage or demand arising from the gross
negligence or willful misconduct of Calliope. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale
or
other disposition. The Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are insufficient to
pay
the Secured Obligations and the reasonable fees and disbursements of any
attorneys employed by Calliope to collect such deficiency.
11. Irrevocable
Authorization and Instruction to Issuers.
The
Pledgor hereby authorizes and instructs the Issuers to comply with any
instruction received by Pledgor (or any of them) from Calliope in writing that
(a) states that an Event of Default exists and (b) is otherwise in accordance
with the terms of this Pledge Agreement, without any other or further
instructions from Pledgor (or any of them), and Pledgor agrees that the Issuers
shall be fully protected in so complying.
12. Appointment
as Attorney-in-Fact.
(a) The
Pledgor hereby irrevocably constitutes and appoints Calliope and any officer
or
agent of Calliope, 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 Pledgor and in the name of Pledgor and in Calliope’s own name, from
time to time in Calliope’s discretion, for the purpose of carrying out the terms
of this Pledge Agreement, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Pledge Agreement, including, without limitation,
any financing statements, endorsement, assignment or other instruments of
transfer.
(b) The
Pledgor hereby ratifies all that said attorneys shall lawfully do or cause
to be
done pursuant to the power of attorney granted in Section 12(a) hereof. All
powers, authorizations and agencies contained in this Pledge Agreement are
coupled with an interest and are irrevocable until this Pledge Agreement is
terminated and the security interests created hereby are released.
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13. Duty
of Calliope.
Calliope’s sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as Calliope
deals
with similar securities and property for its own account. Neither Calliope
nor
any of its respective directors, officers, 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 Pledgor or any other Person or to take
any
other action whatsoever with regard to the Collateral or any part
thereof.
14. No
Assumption.
Notwithstanding any of the foregoing, whether or not an Event of Default shall
have occurred hereunder and whether or not Calliope elects to foreclose on
the
security interest in the Collateral as set forth herein, neither the execution
of this Pledge Agreement, receipt by Calliope of any of Pledgor’s rights, title
and interests in and to any distributions, now or hereafter due to Pledgor
from
any Issuer, nor Calliope’s foreclosure of the security interest in the
Collateral, shall in any way be deemed to obligate Calliope to assume any of
Pledgor’s obligations, duties, expenses or liabilities under the LLC Agreement
as presently existing or as hereafter amended, or under any and all other
agreements now existing or hereafter drafted or executed (collectively, the
“LLC
Obligations”),
unless Calliope otherwise expressly agrees to assume any or all of the LLC
Obligations in writing. In the event of foreclosure by Calliope, Pledgor shall
remain bound and obligated to perform the LLC Obligations and Calliope shall
not
be deemed to have assumed any of such LLC Obligations except as provided in
the
preceding sentence.
15. Execution
of Financing Statements.
Pledgor
authorizes Calliope to file financing statements with respect to the Collateral
without the signature of Pledgor in such form and in such filing offices as
Calliope reasonably determines appropriate to perfect the security interests
of
Calliope under this Pledge Agreement. A carbon, photographic or other
reproduction of this Pledge Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
16. Indemnification.
Pledgor
hereby agrees to indemnify, defend and hold Calliope and its respective
successors and assigns harmless from and against any and all damages, losses,
claims, costs or expenses (including reasonable attorneys’ fees) and any other
liabilities whatsoever that Calliope or its respective successors or assigns
may
incur by reason of this Pledge Agreement or by reason of any assignment of
a
Pledgor’s right, title and interest in and to any or all of the Collateral,
except to the extent any such damages, losses, claims, costs, expenses
(including reasonable attorneys’ fees) and other liabilities are caused solely
by the gross negligence or willful misconduct of Calliope.
17. Further
Documentation.
Pledgor
hereby agrees to execute all such instruments as may be required to perfect
and
continue the security interest created hereby and pay the cost of filing or
recording the same in the public records specified by Calliope.
18. Consent
and Waiver.
Pledgor
agrees that, without the prior written consent of Calliope, Pledgor shall not
take any action that would operate to dilute the interest of Pledgor in any
Issuer other than as permitted by this Pledge Agreement. Pledgor also hereby
expressly waives any and all rights under the LLC Agreement of any Issuer which,
whether exercised by Pledgor or not, would prevent, inhibit or interfere with
the granting of a security interest in the Collateral, the foreclosure of such
security interest in the Collateral by Calliope or the full realization by
Calliope of any of its other rights under this Pledge Agreement or
otherwise.
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19.Notices.
Any
notice, request, instruction or other document or communication hereunder shall
be in writing and shall be given in accordance with the terms of the Security
Agreement.
20. Severability.
Any
provision of this Pledge Agreement which is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
21. Amendments
in Writing; No Waiver; Cumulative Remedies.
(a) None
of
the terms or provisions of this Pledge Agreement may be waived, amended,
restated, supplemented or otherwise modified except by a written instrument
executed by Pledgor and Calliope, provided that any provision of this Pledge
Agreement may be waived by Calliope in a letter or agreement executed by
Calliope or by facsimile transmission from Calliope.
(b) Calliope
shall not by any act (except by a written instrument pursuant to Section 21(a)
hereof), delay, indulgence, omission or otherwise be deemed to have waived
any
right or remedy hereunder or to have acquiesced in any Event of Default or
in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising on the part of Calliope, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by Calliope of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which Calliope would otherwise
have on any future occasion.
(c) The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
22. Section
Headings.
The
section headings used in this Pledge Agreement are for convenience of reference
only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
23. Successors
and Assigns.
This
Pledge Agreement shall be binding upon the successors and assigns of Pledgor
and
shall inure to the benefit of Calliope and its successors and assigns, provided
that Pledgor may not assign its rights or obligations under this Pledge
Agreement without the prior written consent of Calliope, and any such purported
assignment shall be null and void.
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24. Governing
Law, Jurisdiction and Waiver of Jury Trial.
(a) THIS
PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
(b) PLEDGOR
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE
COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN PLEDGOR, ON THE ONE HAND, AND
CALLIOPE, ON THE OTHER HAND, PERTAINING TO THIS PLEDGE AGREEMENT OR TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED,
THAT
CALLIOPE AND PLEDGOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO
BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW
YORK; AND FURTHER PROVIDED,
THAT
NOTHING IN THIS PLEDGE AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE CALLIOPE
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR
THE SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF CALLIOPE. PLEDGOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND PLEDGOR
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
PLEDGOR
AND CALLIOPE EACH HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT
AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO PLEDGOR OR CALLIOPE, AS APPLICABLE, AT THE ADDRESS SET FORTH IN
SECTION 29 OF THE SECURITY AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF PLEDGOR’S OR CALLIOPE’S, AS APPLICABLE, ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
(c) THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN CALLIOPE AND PLEDGOR
ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT OR THE
TRANSACTIONS RELATED HERETO.
[Remainder
of Page Intentionally Left Blank]
11
IN
WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be duly
executed and delivered as of the date first above written.
|
By:
|
______________________________________________ | |||
|
Name:
|
||||
|
Title:
|
||||
|
CALLIOPE
CAPITAL CORPORATION
|
||||
|
By:
|
Laurus
Capital Management, LLC, as
investment manager |
|||
| By: ____________________________________________________ | ||||
|
Name:
|
||||
|
Title:
|
||||
SIGNATURE
PAGE TO
SCHEDULE
1
DESCRIPTION
OF PLEDGED SECURITIES
|
Issuer
|
Owner
|
Total
Percentage of
Ownership |
||
|
ProLink
Solutions, LLC
|
100%
|
SCHEDULE
2
IRREVOCABLE
TRANSFER POWER
FOR
VALUE
RECEIVED, ProLink Holdings Corp. hereby sells, assigns and transfers unto
____________________________ ________ percent (___%) of the membership interests
of _____________________ standing in our name on the books of said limited
liability company represented by Certificate(s) No(s). _____ herewith, and
do
hereby irrevocably constitute and appoint ___________________________________
attorney to transfer the said membership interests on the books of said limited
liability company with full power of substitution in the premises.
|
Dated:
___________________
|
|||
|
By: ___________________________________________________________
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
In
presence of:
|
|||
| __________________________________________________ |
