STOCK PLEDGE AGREEMENT
EXECUTION
COPY
THIS
STOCK PLEDGE AGREEMENT (as may be amended, restated, supplemented or otherwise
modified from time to time, this “Agreement”)
is
dated and made as of July 17, 2007 by Airgate International Corporation, a
New
York corporation (the “Pledgor”),
in
favor of BHC Interim Funding II, L.P., a Delaware limited partnership (the
“Lender”).
WITNESSETH:
WHEREAS,
the Pledgor is entering into that certain Loan and Security Agreement, dated
as
of the date hereof (as may be amended, restated, supplemented or otherwise
modified from time to time, the “Loan
and Security Agreement”),
by
and among Pledgor, certain Guarantors (as defined in the Loan and Security
Agreement), and Lender, pursuant to which the Lender is extending a term loan
to
the benefit of the Pledgor; and
WHEREAS,
the Pledgor is the owner of all of the issued and outstanding shares of common
stock of Airgate International Corporation (Chicago), a New York corporation
(the “Issuer”),
which
shares are listed on Schedule
2(A)
opposite
such Issuer’s name attached hereto and made a part hereof (the “Pledged
Stock”);
and
WHEREAS,
it is a condition precedent to the effectiveness of the Loan and Security
Agreement that the Pledgor shall have executed this Agreement and made the
pledge in favor of the Lender, as contemplated hereby.
NOW,
THEREFORE, in consideration of the premises made herein and to induce the Lender
to enter into the Loan and Security Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Pledgor hereby agrees with the Lender as follows:
| 1. |
Definitions.
Unless the context otherwise requires, all terms used but not expressly
defined herein shall have the meanings given to them in the Loan
and
Security Agreement or, if they are not defined in the Loan and Security
Agreement but are defined in the UCC, they shall have the same meaning
herein as in the UCC.
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| 2. |
Pledge
of the Pledged Stock; Power of
Attorney.
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(a) As
security for the prompt payment and performance when due of the Obligations,
the
Pledgor hereby pledges to the Lender, and grants to the Lender a perfected
lien
on and security interest in, the following (the “Pledged
Collateral”):
(i) all of the Pledged Stock, (ii) all additional shares of stock or
other securities at any time issued by the Issuer to the Pledgor, (iii) the
certificates evidencing all such shares and securities, (iv) subject to
Section
6
hereof,
all dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for all or
any
part of the Pledged Stock and such shares and securities and (v) all proceeds
of
any of the foregoing (including, without limitation, proceeds constituting
any
property of the types described above). The Pledgor has delivered to the Lender
original stock certificates for all of the Pledged Stock, each accompanied
by an
undated stock power executed in blank by the Pledgor, and the Lender is holding
such certificates and stock power for the benefit of itself.
(b) The
Lender shall have no obligation with respect to any of the Pledged Collateral
or
any other property held or received by it hereunder except to use reasonable
care in the custody thereof to the extent required by law. The Lender may hold
the Pledged Collateral in the form in which it is received by it.
(c) The
Pledgor, to the full extent permitted by law, hereby constitutes and irrevocably
appoints the Lender (and any officer or agent of the Lender, with full power
of
substitution and revocation) as the Pledgor’s true and lawful attorney-in-fact,
in the Pledgor’s stead and in the name of the Pledgor or in the name of the
Lender, to transfer, upon the occurrence and during the continuance of an Event
of Default, the Pledged Collateral on the books of the Issuer, in whole or
in
part, to the name of the Lender or such other Person or Persons as the Lender
may designate and, upon the occurrence and during the continuance of an Event
of
Default, to take all such other and further actions as the Pledgor could have
taken with respect to the Pledged Collateral which the Lender in its absolute
discretion determines to be necessary or appropriate to accomplish the purposes
of this Agreement.
(d) The
powers of attorney granted pursuant to this Agreement and all authority hereby
conferred are granted and conferred solely to protect the Lender’s interests in
the Pledged Collateral and shall not impose any duty upon the attorney-in-fact
to exercise such powers. Such powers of attorney shall be irrevocable prior
to
the payment in full of the Obligations and the termination of the Loan and
Security Agreement, and shall not be terminated prior thereto or affected by
any
act of the Pledgor or other Persons or by operation of law.
(e) Each
Person who shall be a transferee of the beneficial ownership of any of the
Pledged Collateral (any such transfer being prohibited under Section
5
unless
the Lender consents thereto) shall be deemed to have irrevocably appointed
the
Lender, with full power of substitution and revocation, as such Person’s true
and lawful attorney-in-fact in such Person’s name and otherwise to do any and
all acts herein permitted and to exercise any and all powers herein
conferred.
| 3. |
Rights
of the Pledgor; Voting.
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(a) During
the term of this Agreement, and so long as no Voting Notice (as defined below)
is received from the Lender following the occurrence of an Event of Default
as
hereinafter provided in this Section
3,
the
Pledgor shall have the right to vote any of the Pledged Collateral in all
corporate matters except those which would contravene this Agreement, the Loan
and Security Agreement or any of the other Loan Documents, or which would be
reasonably likely to materially reduce the value of such Pledged Collateral,
unless the Lender consents thereto. The Pledgor shall not suffer or permit
any
such action to be taken by any Issuer without the prior written approval (which
approval the Lender may withhold in its sole discretion) of the
Lender.
(b) Upon
the
occurrence and during the continuance of an Event of Default: (i) the Pledgor
shall give the Lender at least five (5) days’ prior written notice of (A) any
meeting of stockholders or directors of the Issuer convened for any purpose
and
(B) any written consent which the Pledgor proposes to execute as the stockholder
of the Issuer or which any of the representatives of the Pledgor proposes to
execute as a director of the Issuer, and (ii) in connection with the foregoing,
the Pledgor hereby authorizes the Lender to send its agents and representatives
to any such meeting of stockholders or directors of the Issuer that the Lender
wishes to attend, and agrees to take such steps as may be necessary to confirm
and effectuate such authority, including, without limitation, causing the Issuer
to give reasonable prior written notice to the Lender of the time and place
of
any such meeting and the principal actions to be taken thereat, and (iii) the
Pledgor hereby irrevocably authorize and instruct the Issuer to comply with
any
instruction received by it from the Lender in writing that (A) states that
an
Event of Default has occurred and (B) is otherwise in accordance with the terms
of this Agreement, without any other or further instructions from the Pledgor,
and the Pledgor agrees that the Issuer shall be fully protected in so
complying.
-2-
(c) Notwithstanding
the occurrence of an Event of Default, the Pledgor may continue to exercise
its
voting rights as herein described (and subject to the limitations herein) except
to the extent that the Lender may elect to exercise voting power (as determined
by it in its sole discretion) by a written notice given to the Pledgor at any
time during the continuance of an Event of Default (a “Voting
Notice”),
whereupon the Lender shall have the exclusive right to exercise such rights
to
the extent specified in such Voting Notice, and the Pledgor shall take all
such
steps as may be necessary to effectuate such rights until the Lender notifies
the Pledgor of the release of such rights. The voting rights of the Lender
hereunder shall terminate at such time as the Event of Default in respect of
which the Voting Notice was given shall no longer continue, provided,
that
upon the occurrence of any other Event of Default Lender may at any time give
a
further Voting Notice and exercise its voting power in accordance with the
terms
of this Agreement.
| 4. |
No
Restrictions on Transfer. The Pledgor warrants and represents that,
except
as set forth on Schedule 4 hereto, there are no restrictions on the
transfer of any of the Pledged Stock except for such restrictions
imposed
by operation of law, that there are no options, warrants or rights
pertaining thereto, and that the Pledgor has the right to transfer
the
Pledged Stock free of any Lien, preemptive right, claim and legend
and
without the consent of the creditors of the Pledgor or the consent
of the
Issuer, or any other Person or any governmental agency whatsoever.
Without
limiting the generality of the foregoing, the Pledged Collateral
is not
subject to any voting, “lock-up” or similar
agreement.
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| 5. |
No
Transfer or Liens; Additional Securities; Release of Lien. The Pledgor
agrees that, except as set forth on Schedule 5 hereto, it will not
sell,
transfer or convey any interest in, or suffer or permit any Lien
to be
created upon or with respect to, any of the Pledged Collateral during
the
term of this Agreement, except to or in favor of the Lender. The
Pledgor
shall not cause, suffer or permit any Issuer to issue any common
or
preferred stock, or any other equity security, to any Person, unless
the
Lender otherwise consents in writing (which consent may be withheld
in the
Lender’s sole discretion).
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| 6. |
Adjustments
of Pledged Stock; Payment and Application of Dividends. In the event
that
during the term of this Agreement any stock dividend, reclassification,
readjustment or other change is declared or made in the capital structure
of the Issuer or if any other or additional shares of stock of the
Issuer
are issued to the Pledgor, all new, substituted and additional shares
or
other securities issued by reason of any such change or acquisition
shall
immediately be delivered by the Pledgor to the Lender and shall be
deemed
to be part of the “Pledged Collateral” under the terms of this Agreement
in the same manner as the shares of stock originally pledged hereunder.
Any additional shares of stock received by the Pledgor as a result
of the
Pledgor’s record ownership of the Pledged Stock shall immediately be
delivered by the Pledgor to the Lender, as Pledged Collateral hereunder.
Upon the occurrence and during the continuance of an Event of Default,
the
Pledgor will not demand or be entitled to receive, any cash dividends
or
other income, interest or property in or with respect to the Pledged
Collateral, and if the Pledgor receives any of the same, the Pledgor
shall
immediately deliver it to the Lender, as Pledged Collateral.
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-3-
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7.
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Warrants
and Options. In the event that during the term of this Agreement,
any
subscription warrants or other rights or options shall be issued
in
connection with any of the Pledged Collateral, all such stock warrants,
rights and options shall forthwith be assigned to the Lender by the
Pledgor, and said stock warrants, rights and options shall be, and,
if
exercised by the Pledgor, all new stock issued pursuant thereto shall
be,
pledged by the Pledgor to the Lender and shall immediately be delivered
by
Pledgor to the Lender to be held as, and shall be deemed to be part
of,
the Pledged Collateral under the terms of this Agreement in the same
manner as the shares of capital stock originally pledged
hereunder.
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| 8. |
Return
of Pledged Collateral Upon Payment or Termination. Upon the full
payment
and satisfaction of all of the Obligations and the termination of
the Loan
and Security Agreement, the Lender shall cause to be transferred
or
returned to the Pledgor all of the Pledged Collateral and any money,
property and rights received by the Lender pursuant hereto, to the
extent
the Lender has not taken, sold or otherwise realized upon the same
as
permitted hereunder, together with the related stock powers and all
other
documents reasonably required by the Pledgor to evidence termination
of
the pledge contemplated hereby.
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| 9. |
Events
of Default; Remedies.
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(a) Upon
the
occurrence and during the continuance of an Event of Default, the Lender may
exercise all rights with respect to any of the Pledged Collateral, the proceeds
thereof, and any other property or money held by the Lender hereunder, all
rights and remedies available to it under law, including, without limitation,
those given, allowed or permitted to a secured party by or under the UCC, and
all rights and remedies provided for herein.
(b) Without
limiting the foregoing, in the event that the Lender elects to sell all or
any
part of the Pledged Stock (such term including, for purposes of this
Section
9,
the
Pledged Stock and all other shares of stock or securities at any time forming
part of the Pledged Collateral), the Lender shall have the power and right
in
connection with any such sale, exercisable at its option and in its absolute
discretion, to sell, assign, and deliver all or any part of the Pledged Stock
or
any additions thereto at a private or public sale for cash, on credit or for
future delivery and at such price as the Lender deems to be satisfactory (and
if
permitted by law, the Lender or its nominee may become the purchaser at any
such
sale). Notice of any public sale shall be sufficient if it is published at
least
once not less than ten (10) days prior to the date of sale in any newspaper
then
being circulated in the City of New York, New York as the Lender may elect.
The
Lender shall give written notice of a public sale to the Pledgor. All
requirements of reasonable notice under this Section
9
shall be
met if such notice is mailed, postage prepaid at least ten (10) days before
the
time of such sale or disposition, to the Pledgor at its address set forth in
Section
16
hereto
or such other address as the Pledgor may have, in writing, provided to the
Lender. The Lender may, if it deems it reasonable, postpone or adjourn any
sale
of any collateral from time to time by an announcement at the time and place
of
the sale to be so postponed or adjourned without being required to give a new
notice of sale. The Pledgor further recognizes and agrees that if the Pledged
Stock, or a portion thereof, threatens to decline speedily in value or is of
a
type customarily sold on a recognized market, the Pledgor shall not be entitled
to any prior notice of sale or other intended disposition. The Pledgor agrees
that, in connection with any sale or other disposition of the Pledged Stock,
the
Lender may, at Lender’s option, disclaim any and all warranties regarding the
Pledged Stock and that any such disclaimer shall constitute commercially
reasonable conduct on the part of Lender.
-4-
(c) Because
federal and state securities laws may restrict the methods of disposition of
the
Pledged Stock which are readily available to the Lender, and specifically
because a public sale thereof may be impossible or impracticable by reason
of
certain restrictions under the Securities Act of 1933, as amended, or under
applicable Blue Sky or other state securities laws as now or hereafter in
effect, the Pledgor agrees that the Lender may from time to time attempt to
sell
all or any part of the Pledged Stock by means of a private placement restricting
the offering or sale to a limited number of prospective purchasers who meet
suitability standards the Lender deems appropriate and who agree that they
are
purchasing for their own accounts for investment and not with a view to
distribution, and the Lender’s acceptance of the highest offer obtained
therefrom shall be deemed to be a commercially reasonable disposition of the
Pledged Stock. The Pledgor agrees that any such private placement may be at
prices and on terms less favorable to the Lender or the seller than if sold
at
public sales, and therefore recognizes and confirms that such private sales
shall not be deemed to have been made in a commercially unreasonable manner
solely because they were made privately. The Pledgor agrees that the Lender
has
no obligation to delay the sale of any such securities for the period of time
necessary to permit any Issuer to register such securities for public sale
under
the Securities Act. The Pledgor further agrees to use all reasonable efforts
to
do or cause to be done all such other acts as may be necessary to make any
sale
or sales of all or any portion of the Pledged Collateral pursuant to this
Section
9(c)
valid
and binding and in compliance with any and all other applicable law. The Lender
or its assigns may purchase all or any part of the Pledged Stock and any
purchaser thereof shall thereafter hold the same absolutely free from any right
or claim of any kind. To the fullest extent permitted by law, the Lender shall
not be obligated to make any such sale pursuant to notice (other than notice
to
the Pledgor in the manner described in Section
9(b)
hereof)
and may, without notice or publication, adjourn any public or private sale
by
announcement at the time and place fixed for the sale, and such sale may be
held
at any time or place to which the same may be adjourned. If any of the Pledged
Stock is sold by the Lender upon credit or for future delivery, the Lender
shall
not be liable for the failure of the purchaser to pay for the same and, in
such
event, the Lender may resell such Pledged Stock and the Pledgor shall continue
to be liable to the Lender for the full amount of the Obligations to the extent
the Lender does not receive full and final payment in cash
therefor.
(d) The
Lender shall have the sole right to determine the order in which Obligations
shall be deemed discharged by the application of the proceeds of Pledged Stock
or any other property or money held hereunder or any amount realized
thereon.
-5-
| 10. |
Certain
Representations and Warranties. The Pledgor represents and warrants,
(and,
with respect to clause (e) below, covenants), except as set forth
on
Schedule 10 hereto, to the Lender that:
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(a) All
shares of Pledged Stock are fully paid, duly and properly issued, nonassessable
and owned by the Pledgor free and clear of any Lien, preemptive right, claim
and
legend of any kind whatsoever, except those Liens granted to the Lender, and
the
Pledged Stock constitutes all of the outstanding securities of any class or
kind
of the Issuer owned by the Pledgor.
(b) No
effective financing statement or other instrument similar in effect covering
all
or any part of the Pledged Collateral is on file in any recording office, other
than such financing statement naming the Lender, as a secured
party.
(c) The
pledge of the Pledged Collateral pursuant to this Agreement creates a valid
and
perfected security interest in the Pledged Collateral, securing the payment
of
the Obligations, and all filing and other actions necessary or desirable to
perfect and protect such security interest have been or, concurrently herewith,
will be duly made or taken.
(d) No
authorization, approval or other action by, and no notice to or filing with,
any
governmental authority or regulatory body (other than the UCC-1 financing
statement listed on Schedule
10
attached
hereto) is required for (i) the pledge by the Pledgor of the Pledged Collateral
pursuant to this Agreement, the grant by the Pledgor of the assignment or
security interest granted hereby or the execution, delivery or performance
of
this Agreement by the Pledgor, (ii) the perfection of the Lender’s security
interest in the Pledged Collateral or exercise by the Lender of its rights
and
remedies provided for in this Agreement, or (iii) the exercise by the Lender
of
the voting or other rights provided for in this Agreement or the remedies in
respect of the Pledged Collateral pursuant to this Agreement (except as may
be
required in connection with the disposition of the Pledged Stock by laws
affecting the offering and sale of securities generally).
(e) The
Pledgor has full right, power and authority to enter into this Agreement and
to
grant the security interest in the Pledged Collateral made hereby, and this
Agreement constitutes the legal, valid and binding obligation of the Pledgor
enforceable against the Pledgor in accordance with its terms, except as the
enforceability thereof may be (i) limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of
creditors’ rights generally, and (ii) subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(f) The
Pledged Stock listed on Schedule
2(a)
to this
Agreement, as may be amended pursuant to this Agreement from time to time,
constitutes 100% of the issued and outstanding common stock of the Issuer.
| 11. |
Indemnity
and Expenses. 1)
The Pledgor agrees to indemnify the Lender from and against any and
all
claims, damages, losses, liabilities and expenses incurred by the
Lender
arising out of, or in connection with, or resulting from, a breach
by the
Pledgor of any representation, warranty, covenant or agreement contained
in this Agreement.
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-6-
(b) The
Pledgor agrees promptly upon the Lender’s demand to pay or reimburse the Lender
for all expenses (including, without limitation, reasonable fees and
disbursements of counsel) incurred by the Lender in connection with (i) the
Lender’s enforcement of remedies under this Agreement, (ii) the custody or
preservation of the Pledged Collateral, (iii) any actual or attempted sale
or
exchange of, or any enforcement, collection, compromise or settlement
respecting, the Pledged Collateral or any other property or money held
hereunder, and any other action taken by the Lender hereunder whether directly
or as attorney-in-fact pursuant to the power of attorney herein conferred,
(iv)
the failure by the Pledgor to perform or observe any of the provisions hereof,
or (v) any action taken by the Lender pursuant to this Agreement. All such
expenses shall be deemed a part of the Obligations for all purposes of this
Agreement and the Lender may apply the Pledged Collateral or any other property
or money held hereunder to payment of or reimbursement for such expenses after
notice and demand to the Pledgor.
| 12. |
Lender
May Perform. If the Pledgor fails to perform any agreement contained
herein, the Lender may, but shall not be obligated to, perform, or
cause
performance of, such agreement, and the expenses of the Lender incurred
in
connection therewith shall be payable by the
Pledgor.
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| 13. |
Waivers
and Amendment. The rights and remedies given hereby are in addition
to all
others however arising, but it is not intended that any right or
remedy be
exercised in any jurisdiction in which such exercise would be prohibited
by law. No action, failure to act or knowledge of the Lender shall
be
deemed to constitute a waiver of any power, right or remedy hereunder,
nor
shall any single or partial exercise thereof preclude any further
exercise
thereof or the exercise of any other power, right or remedy. Any
right or
power of the Lender hereunder regarding the Pledged Collateral and
any
other property or money held hereunder may at the option of the Lender
be
exercised as to all or any part of the same and the term the “Pledged
Collateral” wherever used herein, unless the context clearly requires
otherwise, shall be deemed to mean (and shall be read as) “the Pledged
Collateral and any other property or money held hereunder or any
part
thereof.” This Agreement shall not be amended nor shall any right
hereunder be deemed waived except by a written agreement signed by
the
Lender expressly setting forth the amendment or waiver. Each amendment,
modification or waiver shall be effective only in the specific instance
and for the specific purpose for which it was
given.
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| 14. |
Continuing
Security Interest; Assignments. This Agreement shall create a continuing
security interest in the Pledged Collateral and shall (i) remain
in full
force and effect until the Pledged Collateral is released in accordance
herewith, (ii) be binding upon the Pledgor and its successors and
assigns,
and (iii) inure, together with the rights and remedies of the Lender
hereunder, to the benefit of the Lender, its successors and assigns.
Without limiting the generality of the foregoing clause (iii), the
Lender
may assign or otherwise transfer all or any portion of its rights
and
obligations under this Agreement to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect
hereof granted to the Lender herein; the Lender shall, however, retain
all
of its rights and powers with respect to any part of the Pledged
Collateral not transferred. Any agent or nominee of the Lender shall
have
the benefit of this Agreement as if named herein and may exercise
all the
rights and powers given to the Lender
hereunder.
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15.
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APPLICABLE
LAW.
THIS AGREEMENT AND ALL MATTERS RELATING HERETO AND ARISING HEREFROM
(WHETHER ARISING UNDER CONTRACT LAW, TORT LAW OR OTHERWISE) SHALL
BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS
PRINCIPLES.
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| 16. |
Notices.
Unless otherwise specifically provided herein, all notices hereunder
shall
be in writing addressed to the respective party as set forth below
and may
be personally served, telecopied or sent by overnight courier service
or
United States mail and shall be deemed to have been given: (a) if
delivered in person, when delivered; (b) if delivered by telecopy,
on the
date of transmission if transmitted on a Business Day before 4:00
p.m.
Eastern standard time or, if not, on the next succeeding Business
Day; (c)
if delivered by overnight courier, two (2) days after delivery to
such
courier properly addressed; or (d) if by U.S. Mail, four (4) Business
Days
after depositing in the United States mail, with postage prepaid
and
properly addressed.
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| (a) | If to Pledgor, to: |
|
Airgate
International Corporation
000-00
Xxxxxxxx Xxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxx
Facsimile:
(000) 000-0000
|
|
|
With a copy to:
|
|
|
Gusrae,
Xxxxxx, Xxxxx & Xxxxxxx PLLC
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
| (b) |
If
to Lender, to:
|
|
BHC
Interim Funding, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxxxx, Managing Partner
Facsimile:
(000) 000-0000
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With a copy to:
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|
|
Blank
Rome LLP
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
or
at
such other address as the party addressed shall have previously designated
by
written notice to the serving party, given in accordance with this Section
16.
-8-
| 17. |
CONSENT
TO JURISDICTION.
THE PLEDGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND
IRREVOCABLY AGREES THAT, SUBJECT TO THE LENDER’S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER
LOAN
DOCUMENTS, SHALL BE LITIGATED IN SUCH COURTS. THE PLEDGOR ACCEPTS
FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS
AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES
TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS. IF THE PLEDGOR PRESENTLY IS,
OR IN
THE FUTURE BECOMES, A NONRESIDENT OF THE STATE OF NEW YORK, THE PLEDGOR
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES
THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE UPON THE PLEDGOR BY CERTIFIED
OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE PLEDGOR,
AT THE
PLEDGOR’S ADDRESS AS SET FORTH IN SECTION 16 HEREOF OR AS MOST RECENTLY
NOTIFIED BY THE PLEDGOR TO THE LENDER IN WRITING AND SERVICE SO MADE
SHALL
BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED AS
AFORESAID.
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| 18. |
WAIVER
OF JURY TRIAL.
EACH OF THE PLEDGOR AND THE LENDER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH OF THE PLEDGOR AND
THE
LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO
A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER
IN
ENTERING INTO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS AND THAT
EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
EACH
OF THE PLEDGOR AND THE LENDER FURTHER WARRANTS AND REPRESENTS THAT
EACH
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH
LEGAL COUNSEL.
|
| 19. |
Severability;
Entire Agreement. 2)
The invalidity, illegality or unenforceability in any jurisdiction
of any
provision in or obligation under this Agreement shall, as to such
jurisdiction, not affect or impair the validity, legality or
enforceability of the remaining provisions or obligations under this
Agreement or of such provision or obligation in any other
jurisdiction.
|
-9-
(b) This
Agreement constitutes the entire understanding and agreement between the
parties, and replaces any other or prior agreements or undertakings, with
respect to the subject matter hereof, and there are no other agreements or
undertakings, oral or written, respecting such subject matter which are intended
to have any force or effect after the execution hereof.
| 20. |
Termination.
This Agreement shall remain in full force and effect until the date
upon
which the Lender shall have received payment and satisfaction in
full of
the Obligations and the termination of the Loan and Security
Agreement.
|
| 21. |
Miscellaneous.
This Agreement shall be binding upon and shall inure to the benefit
of the
Pledgor and the Lender and their respective successors, trustees,
and
assigns, except that the Pledgor shall not assign its rights or
obligations hereunder without the prior written consent of the Lender.
Section headings used herein are for convenience only and shall not
affect
the meaning or construction of any of the provisions
hereof.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-10-
IN
WITNESS WHEREOF, the Pledgor has caused this Agreement to be executed by its
duly authorized officer as of the day and year first above written.
|
AIRGATE
INTERNATIONAL CORPORATION
|
||
| |
|
|
| By: | /s/Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
|
||
|
Title: Vice
President
|
||
ACKNOWLEDGEMENT
The
undersigned hereby acknowledges all of the rights granted to the Lender under
the foregoing Agreement and agrees to take all actions necessary to effectuate
said rights and the purposes of the Agreement including, without limitation,
performance of any acts requested by the Lender pursuant to the terms
thereof.
|
AIRGATE
INTERNATIONAL CORPORATION (CHICAGO)
|
||
| |
|
|
| By: | /s/Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Vice President
|
||
Accepted
and agreed:
BHC
INTERIM FUNDING II, L.P.
By:
BHC
Interim Funding Management, L.L.C., its General Partner
By:
BHC
Investors II, L.L.C., its Managing Member
By:
GHH
Holdings, L.L.C.
| By: /s/Xxxxxx Xxxxxxxx | |||
|
Xxxxxx
X. Xxxxxxxx
Managing
Member
|
SCHEDULE
2(A)
(Description
of Pledged Stock)
|
Issuer
|
Jurisdiction
of Incorporation
|
Capital
Stock
|
Certificate
No.
|
Record
and Beneficial Owner
|
Ownership
Percentage
|
Number
of Shares
|
||||||
|
Airgate
International Corporation (Chicago)
|
Illinois
|
Common
Shares
|
Airgate International Corporation |
100%
|
500
|
SCHEDULE
4
Restrictions
on Transfer
The
securities that are the subject of this instrument are subject to restrictions
on their disposition imposed upon them by the Securities Act of 1933, as
amended.
SCHEDULE
5
Liens
The
securities that are the subject of this instrument are subject to a collateral
pledge agreement dated April 10, 2007, granted to Xxxxx Fargo Bank, National
Association, granting said bank a lien on subject securities.
SCHEDULE
10
Exceptions
to Representations and Warranties
