MEMBER PLEDGE AGREEMENT
Exhibit
10.6
THIS
MEMBER PLEDGE AGREEMENT (as
the
same may be amended, restated, modified and otherwise supplemented from time
to
time, this “Pledge
Agreement”),
dated
as of August 25, 2006 is made by BLAST
ENERGY SERVICES, INC.,
a
California corporation (“Pledgor”),
in
favor of LAURUS
MASTER FUND, LTD.,
a
Cayman Islands company (“Laurus”).
W
I T N E
S S E T H :
WHEREAS,
pursuant to the terms of (a) that certain Securities Purchase Agreement dated
as
of August 25, 2006 by and between Pledgor and Laurus (including all annexes,
exhibits and schedules thereto, dated as of the date hereof and as otherwise
from time to time amended, restated, supplemented and otherwise modified, the
“Securities
Purchase Agreement”),
and
(b) that certain Secured Term Note executed by Pledgor in favor of Laurus in
the
aggregate principal amount of Forty Million Six Hundred Thousand Dollars
($40,600,000) (as from time to time amended, restated, supplemented and
otherwise modified, the “Note”),
Laurus 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 Laurus to continue to provide financial accommodations to Pledgor
under the Securities Purchase Agreement and the Note, Pledgor agreed to secure
its obligations under the Securities Purchase Agreement, the Note and the
Related Documents (as defined in the Securities Purchase Agreement) by, among
other things, pledging the Pledged Interests to Laurus in accordance
herewith.
NOW,
THEREFORE,
in
consideration of the premises and to induce Laurus to enter into the Securities
Purchase Agreement and to continue to provide financial accommodations to
Pledgor, Pledgor hereby agrees with Laurus as follows:
1. Defined
Terms.
(a)Unless
otherwise defined herein, terms defined in the Securities Purchase Agreement
and
used herein shall have the meanings given to them in the Securities Purchase
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.
“Documents”
means
this Pledge Agreement, the Securities Purchase Agreement, the Note, the other
Related 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 Amended and Restated Regulations
of Eagle Domestic Drilling Operations LLC,
a Texas
limited liability company, dated as of August ___, by and between Eagle Domestic
Drilling Operations LLC and Pledgor, as amended, restated, supplemented and
otherwise modified from time to time in accordance with the terms
thereof.
“Permitted
Transfer”
means
any sale, assignment, transfer, exchange or other disposition of any Pledged
Interests by Pledgor or any permitted successor or assign, whether in exchange
for money or other property, gift, bequest or otherwise, permitted under the
LLC
Agreement and under the terms of this Pledge Agreement.
“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”
means
all unpaid principal of and interest on (including, without limitation, interest
accruing at the then applicable rate provided in the Note after the maturity
of
the Note and interest accruing at the then applicable rate provided in the
Note
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like
proceeding,
relating to the Pledgor, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) all obligations and liabilities of
Pledgor to Laurus under the Note and the other Documents and all other
obligations and liabilities of Pledgor to Laurus, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Note, the
other Documents, or any other document made, delivered or given in connection
herewith or therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to Laurus
that are required to be paid by Pledgor pursuant to the terms of the Note and
the other Documents).
2. Pledge;
Grant of Security Interest.
Pledgor
hereby transfers and assigns to Laurus all of the Pledged Interests of Pledgor
and hereby grants to Laurus 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.
3. Delivery
to Laurus.
(a)Pledgor
shall deliver to Laurus (i) simultaneously with or prior to the execution and
delivery of this Pledge Agreement, all certificates representing the Collateral
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 Laurus, all such certificates and instruments constituting
Collateral of Pledgor shall be held in trust by Pledgor for the benefit of
Laurus 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 Laurus,
duly
endorsed in a manner satisfactory to Laurus, to be held as Collateral pursuant
to this Pledge Agreement.
(c)Pledgor
authorizes Laurus to file such UCC or other applicable financing statements
as
may be reasonably requested by Laurus in order to perfect and protect the
security interest created hereby in the Collateral.
(d)Pledgor
agrees to execute and deliver to Laurus such other consents, acknowledgments,
agreements, instruments and documentation as Laurus may reasonably request
from
time to time to effectuate the conveyance, transfer, assignment and grant to
Laurus 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 Laurus and, concurrently with the
delivery to Laurus of each certificate by Pledgor, Pledgor shall deliver an
undated transfer power covering such certificate, duly
executed
in blank with, upon the request of Laurus, signature guaranteed, in the form
attached hereto in Schedule 2 or such other form as reasonably acceptable to
Laurus 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
equity contributions required to be made under the LLC Agreement or applicable
law 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.
(d)To
the
best of Pledgor’s knowledge, the exercise by Laurus 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 Laurus 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
Pledged Interest are “securities” for purposes of Article 8 of the Code (as
defined below) and “investment property” for the purposes of Article 9 of the
Code, and the terms of the LLC Agreement so provides.
(g)Upon
the
delivery by Pledgor to Laurus of the certificates representing the Collateral
and duly executed transfer powers with respect thereto, 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).
(h)In
the
case of any Pledged Interest that are uncertificated, upon full execution and
delivery of a control agreement by and among Pledgor, Issuer and Laurus, by
virtue of the execution and delivery by the Pledgor of this Pledge Agreement,
Laurus will have a valid and perfected first lien upon and security interest
in
the Pledged Interests as security for the payment and performance of the
Obligations.
6. Covenants.
Pledgor
covenants and agrees with Laurus 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 of Pledgor,
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 of Pledgor, or otherwise in respect
thereof, Pledgor shall accept the same as the agent of Laurus, hold the same
in
trust for Laurus and deliver the same forthwith to Laurus in the exact form
received, duly endorsed by Pledgor to Laurus, if required, together with an
undated transfer power covering such certificate duly executed in blank by
Pledgor and with signature guaranteed, to be held by Laurus, subject to the
terms hereof, as additional collateral security for the Secured Obligations.
Any
sums paid upon or in respect of the Pledged Interests of Pledgor as a dividend
or other distribution or upon the liquidation or dissolution of any Issuer
shall
be paid over to Laurus to be held by it hereunder as additional collateral
security for the Secured Obligations, and in case any distribution of capital
shall be made on or in respect of the Pledged Interests of Pledgor or any
property shall be distributed upon or with respect to the Pledged Interests
of
Pledgor pursuant to any recapitalization, reclassification or reorganization
of
any Issuer, the property so distributed shall be delivered to Laurus to be
held
by it hereunder as additional collateral security for the Secured Obligations.
If any sums of money or property so paid or distributed in respect of the
Pledged Interests of Pledgor shall be received by Pledgor, Pledgor shall, until
such money or property is paid or delivered to Laurus, hold such money or
property in trust for Laurus, segregated from other funds of Pledgor, as
additional collateral security for the Secured Obligations. 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 Laurus, duly
endorsed in a manner satisfactory to Laurus, to be held as Collateral pursuant
to this Pledge Agreement.
(b) Without
the prior written consent of Laurus, Pledgor shall not (1) except for any
Permitted Transfer, sell, assign, transfer, exchange, or otherwise dispose
of,
or grant any option with respect to, the Collateral or any portion thereof,
(2)
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 (3) enter into any agreement or undertaking
restricting the right or ability of any Issuer to sell, assign or transfer
any
of the Collateral. Notwithstanding the foregoing, any Permitted Transfer shall
be further conditioned on the following conditions being
satisfied:
(i) No
Event
of Default shall exist prior to, and taking into account, the proposed transfer,
including without limitation pursuant to the Note, or immediately
thereafter;
(ii) The
transferee with respect to such transfer shall have executed and delivered
a
pledge agreement in substance and form similar in all material respects to
this
Pledge Agreement and shall have agreed to be bound thereby;
(iii) Laurus
shall have received an opinion of counsel of the transferee, in form and
substance reasonably satisfactory to Laurus, if so requested by Laurus;
and
(iv) The
transferee of the transfer shall have delivered to Laurus an undated transfer
power covering any certificate or certificates to be issued to such transferee,
such undated transfer power to be duly executed in blank with signature
guaranteed.
Upon
satisfaction by the Pledgor and the transferee of the conditions set forth
herein, in such case, the applicable Issuer shall cause the certificate (if
any)
evidencing the Pledged Interests of such transferring Pledgor that is subject
to
the Permitted Transfer to be cancelled and shall immediately
thereafter cause a new certificate evidencing the equity interests subject
to
the Permitted Transfer to be issued in the name of the transferee and shall
deliver such certificate to Laurus to be held pursuant to and under the terms
of
this Pledge Agreement.
(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.
(d) Pledgor
acknowledges and agrees that it will not permit the terms of the LLC Agreement
to be amended to change the status of any Pledged Interests as “securities” or
“investment property” as set forth in Section 5(f), without the express written
consent of Laurus. As of the date hereof, the Pledged Interests are represented
by those certificates indicated on Schedule 1.
(e) Pledgor
will not, and Pledgor will not permit Issuer to, (i) change the location of
its
chief executive office or principal place of business, (ii) change its name,
identity or legal status as, in the case of the Pledgor, a corporation, and
in
the case of Issuer, a limited liability company, (iii) reorganize under the
laws
of another jurisdiction, or (iv) issue and new Pledged Interests, except to
Pledgor or as permitted under Section 6(b) hereof.
(f) Pledgor
shall not participate in any amendment to the LLC Agreement of any Issuer (i)
that would extend any voting rights to any owner of any equity interest in
such
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 Laurus, (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 Laurus
or (iii) that in any way adversely affects the perfection of the security
interest of Laurus in the Collateral.
(g) At
any
time and from time to time, upon the written request of Laurus, Pledgor shall
promptly and duly execute and deliver to Laurus such further instruments and
documents, provide such additional information and take such further actions
at
its expense as Laurus 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.
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 Laurus’ reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision of this Pledge Agreement.
8. Rights
of Laurus.
(a) All
money
Proceeds received by Laurus hereunder shall be applied as provided in Section
10(a) hereof.
(b) If
an
Event of Default shall occur and be continuing, at Laurus’ option, (i) Laurus
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 Laurus may determine, and
(ii) the Pledged Interests shall be registered in the name of Laurus or its
nominee, and Laurus 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 Laurus 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 Laurus may determine), all without liability except
to account for property actually received by it, but Laurus 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. Each
of
the following shall constitute an event of default (“Event of Default”)
hereunder:
(a) An
“event
of default” shall occur under any Note, the Securities Purchase Agreement or any
other Document;
(b) Pledgor
shall fail to perform or observe any covenant or condition to be performed
or
observed hereunder within fifteen (15) days of the occurrence thereof or, if
longer, any applicable cure period; or
(c) Any
representation or warranty made by Pledgor herein shall prove to be false or
erroneous in any material respect.
10. Remedies.
(a) If
an
Event of Default shall have occurred and be continuing, at any time at Laurus’
election, Laurus may apply all or any part of Proceeds held by Laurus in payment
of the Secured Obligations in such order as Laurus may elect.
(b) If
an
Event of Default shall have occurred and be continuing, Laurus 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, Laurus, without resort to
any
other collateral or remedy under the Note 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 Laurus 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. Laurus 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 Laurus, to the payment in whole or in part of the
Secured Obligations, in such order as Laurus may elect, and only after such
application and after the payment by Laurus of any other amount required by
any
provision of law, including, without limitation, Section 9-615 of the Code,
need
Laurus 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 Laurus 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 Laurus. 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 ten (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 Laurus 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 Laurus in writing that (a) states that an Event of Default has
occurred 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 Laurus and any officer
or
agent of Laurus, 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 Laurus’ own name, from time
to time in Laurus’ 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.
13. Duty
of Laurus.
Laurus’
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 Laurus deals with similar
securities and property for its own account. Neither Laurus 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 Laurus elects to foreclose on the
security interest in the Collateral as set forth herein, neither the execution
of this Pledge Agreement, receipt by Laurus of any of Pledgor’s rights, title
and interests in and to any distributions, now or hereafter due to Pledgor
from
any Issuer, nor Laurus’ foreclosure of the security interest in the Collateral,
shall in any way be deemed to obligate Laurus 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 Laurus otherwise expressly agrees to assume any or all of
the LLC Obligations in writing. In the event of foreclosure by Laurus, Pledgor
shall remain bound and obligated to perform the LLC Obligations and Laurus
shall
not be deemed to have assumed any of such LLC Obligations except as provided
in
the preceding sentence.
15. Financing
Statements and Further Documentation.
Pledgor
hereby authorizes Laurus to file financing statements with respect to the
Collateral in such
form and
in such filing offices as Laurus reasonably determines appropriate to perfect
the security interests of Laurus under this Pledge Agreement and agrees to
execute all such instruments as may be required to perfect the security interest
created hereby. Pledgor shall pay the cost of filing or recording the same
in
the public records specified by Laurus.
16. Indemnification.
Pledgor
hereby agrees to indemnify, defend and hold Laurus 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 Laurus 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.
17. Consent
and Waiver.
Pledgor
agrees that, without the prior written consent of Laurus, 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 further agrees that,
upon the written request of Laurus after an Event of Default has occurred and
is
continuing, Pledgor may be removed as a member of any Issuer and replaced with
the assignee designated in such request. If Laurus so requests after an Event
of
Default has occurred and is continuing, Pledgor covenants and agrees to execute
an amendment to the LLC Agreement of the relevant Issuer to reflect any such
assignee’s substitution in place of Pledgor as a member of such Issuer, provided
that such assignee shall adopt such LLC Agreement, and agrees to be bound by
the
terms and provisions thereof. In the event that any such assignee is admitted
as
a member of any Issuer in substitution of Pledgor, Pledgor agrees that such
assignee shall not be liable for the obligations of Pledgor with respect to
such
Issuer arising before such assignee’s admission to such Issuer, except to the
extent required by law. Pledgor hereby expressly waives any rights it may have
under the LLC Agreement as a result of the enforcement by Laurus of any of
its
rights hereunder or the transfer (or agreement to transfer) by Laurus of any
of
its rights in any Issuer. 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 Laurus or the full realization by Laurus of any of its other
rights under this Pledge Agreement or otherwise.
18. 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 Securities Purchase
Agreement.
19. 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.
20. 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 Laurus, provided that any provision of this Pledge
Agreement may be waived by Laurus in a letter or agreement executed by Laurus
or
by facsimile transmission from Laurus.
(b) Laurus
shall not by any act (except by a written instrument pursuant to Section 20(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 Laurus, 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 Laurus of any right or remedy hereunder on any one occasion shall
not
be construed as a bar to any right or remedy which Laurus 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.
21. 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.
22. Successors
and Assigns.
This
Pledge
Agreement shall be binding upon the successors and assigns of Pledgor and shall
inure to the benefit of Laurus and its successors and assigns, provided that
Pledgor may not assign its rights or obligations under this Pledge Agreement,
except as otherwise expressly provided in Section 6(b) hereof, without the
prior
written consent of Laurus, and any such purported assignment not expressly
provided for in Section 6(b) hereof or in this section shall be null and
void.
23. 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
LAURUS, ON THE OTHER HAND, PERTAINING TO THIS PLEDGE AGREEMENT OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT;
PROVIDED,
THAT LAURUS 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 LAURUS 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 LAURUS. 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
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 AT THE ADDRESS SET FORTH IN SECTION 11.8 OF THE SECURITIES
PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON
THE
EARLIER OF PLEDGOR’S 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 LAURUS 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]
IN
WITNESS WHEREOF, the undersigned has caused this Member Pledge Agreement to
be
duly executed and delivered as of the date first above written.
By:
/s/
Xxxx X’Xxxxx
Name:
Xxxx X’Xxxxx
Title:
EVP, CFO, and Co-CEO
LAURUS
MASTER FUND, LTD.
By:
/s/
Laurus Master Fund, LTD.
Name:
Title:
SCHEDULE
1
DESCRIPTION
OF PLEDGED SECURITIES
Issuer
|
Owner
|
Certificate
Number
|
Number
of
Units
|
Total
Percentage
of
Ownership
|
Eagle
Drilling Operations LLC
|
1
|
N/A
|
100%
|
SCHEDULE
2
IRREVOCABLE
TRANSFER POWER
FOR
VALUE
RECEIVED, BLAST ENERGY SERVICES, INC., hereby sells, assigns and transfers
unto
__________________________________ ____(___) units of the membership interests
of Energy Domestic Drilling Operations LLC 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:
__________________________S