PLEDGE AGREEMENT
EXHIBIT
E
THIS PLEDGE AGREEMENT ("Agreement"), dated as
of _________, 2009, is executed by and among (A) Trestle Holdings, Inc., a
Delaware corporation (“Trestle”); (B) MoqiZone Holdings Limited, a
Cayman Island corporation (“MoqiZone Cayman”);
(C) MobiZone Holdings
Limited, a Hong Kong corporation (“MobiZone Hong Kong”);
(D) Shanghai MoqiZone
Information Technology Company Limited, a corporation organized under the
laws of the People’s Republic of China (“MoqiZone”); (E) Xxxxx Xxxxxx Xxxxxxx &
Xxxxxxx, a law firm formed under the laws of the State of New York and
having an office at 00 Xxxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Collateral Agent” or
“LHTT”); and (F) those individuals, corporations, limited liability companies,
or other entities who have executed this Agreement on the signature page hereof
(collectively, the “Investors” or the
“Secured
Parties”).
Trestle, MoqiZone Cayman and
MobiZone Hong Kong are hereinafter sometimes individually referred to as a
“Pledgor” and
collectively referred to as the “Pledgors.” Trestle,
MoqiZone Cayman, MobiZone Hong Kong and MoqiZone and the Investors are
hereinafter sometimes collectively referred to as the “Business
Parties.”
WITNESSETH:
WHEREAS,
Trestle is the owner of 100% of the share capital of MoqiZone Cayman (the “MoqiZone Cayman
Shares”), MoqiZone Cayman is the owner of 100% of the share capital of
MobiZone Hong Kong (the “MobiZone Hong Kong
Shares”), and MobiZone Hong Kong is the owner of 100% of the share
capital of MoqiZone (the “MoqiZone
Shares”);
WHEREAS,
pursuant to the terms of a Securities Purchase Agreement, dated as of June
1, 2009 (the “Purchase Agreement”),
among the Business Parties, certain other Persons and the “Investors” (as
defined therein), such Investors have purchased securities of MobiZone Hong Kong
and Trestle, including 8% exchangeable notes of MobiZone Hong Kong, due March
31, 2011 (the “Notes”);
WHEREAS,
by their stated terms, upon consummation of (a) the “Trestle Reverse Split” (as
defined in the Purchase Agreement), (b) the filing of an amended and restated
certificate of incorporation of Trestle and the Series A Preferred Stock
Certificate of Designations (as defined) of Trestle with the Secretary of State
of the State of Delaware, (c) the payment of accrued interest on the Notes, and
(d) the delivery to each Investor of their respective rights to shares of Series
A Preferred Stock, all as required under the Purchase Agreement (collectively,
the “Performance
Obligations”), such Notes shall be automatically cancelled and exchanged
for a like Stated Value of shares of Series A voting convertible preferred stock
of Trestle (the “Series A Preferred
Stock”);
WHEREAS,
as collateral to secure performance of their respective Performance Obligations
under the Purchase Agreement, each of Trestle, MoqiZone Cayman and MoqiZone have
each guaranteed payment of the Notes and the performance by the Business Parties
of their respective Performance Obligations, all pursuant to a guaranty
agreement, dated of even date herewith (the “Guaranty”);
and
WHEREAS,
in order to secure the payment of the Notes and performance of the Performance
Obligations, (a) Trestle has agreed to pledge to the Investors the MoqiZone
Cayman Shares, (b) MoqiZone Cayman has agreed to pledge to the Investors, the
MobiZone Hong Kong Shares, and (c) MobiZone Hong Kong has agreed to pledge to
the Investors the MoqiZone Shares, all pursuant to this Agreement;
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NOW, THEREFORE, in
consideration of the premises and of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
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1.
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Pledge of the Pledged
Shares.
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(a) Each
of the Pledgors do hereby pledge, as
pledgors, to the Investors, as pledgee, and grants to the Investors a first
priority lien on and security interest in and to (i) all of Trestle’s right,
title and interest in and to all of the MoqiZone Cayman Shares, (ii) all of
MoqiZone Cayman’s right, title and interest in and to all of the MobiZone Hong
Kong Shares, and (iii) all of MobiZone Hong Kong’s right, title and interest in
and to all of the MoqiZone Shares (collectively, the “Shares”), together
with all proceeds from the sale of the Shares, all dividends paid in respect of
the Shares and any property or securities delivered to the holder of the Shares
in respect thereof in the event of a merger or takeover of any of the Pledgors
by a third party (collectively, the "Pledged
Collateral").
(b) Each
of the Pledgors does hereby agree to execute and deliver to the Collateral Agent
(i) assignments separate from the Shares substantially in the form of Exhibit
A hereto, undated and appropriately endorsed in blank, with respect to
the Share comprising the Pledged Collateral and (ii) if legally required, such
financing statements as the Collateral Agent may reasonably request with respect
to the Pledged Collateral (or, if execution by Pledgors is not required pursuant
to the applicable Uniform Commercial Code, each of the Pledgors hereby
authorizes the Collateral Agent to file all financing statements deemed
necessary by the Investors to perfect the security interests granted hereunder),
(iii) take such other steps as the Investors may from time to time reasonably
request to perfect the Investors' security interest in the Pledged Collateral or
any part thereof under applicable law, and (iv) after the occurrence and during
the continuance of an Event of Default, to execute and deliver on behalf of the
Pledgors such other documents of transfer as the Investors or the Collateral
Agent may from time to time reasonably require to enable the Investors to
transfer the Pledged Collateral into the name of the Investors or the name of
its nominee (all of the foregoing are hereinafter collectively referred to as
the "Assignments").
(c) Notwithstanding anything to the
contrary, express or implied, contained in this Agreement or in the Guaranty,
upon consummation and performance of the Performance Obligations, the Notes
shall, for all purposes be deemed to have been fully paid and satisfied, and
this Agreement and the Guaranty shall automatically terminate and be of no
further force or effect.
2. Definition; Security for
Secured Obligations.
(a) Unless
otherwise defined in this Agreement, when used herein all capitalized terms
shall have the same meaning as is defined in the Purchase
Agreement.
(b) The
Pledged Collateral secures the prompt and complete payment, performance and
observance of the Notes and the Performance Obligations.
3. Pledged
Collateral Adjustments. If during
the term of this Agreement:
(a) any
non-cash dividend or distribution, reclassification, readjustment or other
change is declared or made in the capital structure of Company, or any option,
warrant or similar instrument included within the Pledged Collateral is
exercised, or both, or
(b) any
subscription, warrants, options shall be issued in connection with the Pledged
Collateral,
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then the
Pledgors shall (i) promptly deliver new, substituted and additional shares,
warrants, options, or other equity securities, issued by reason of any of the
foregoing, and all certificates and other instruments evidencing the same to the
Investors to be held under the terms of this Agreement and shall constitute
Pledged Collateral hereunder, and (ii) promptly deliver to the Investors or the
Collateral Agent such additional Pledged Collateral.
4. Remedies Following an Event
of Default.
Notwithstanding anything to the
contrary, express or implied, contained in this Agreement (including this
Section 4) or in the Purchase Agreement or any other Exhibit thereto (including
the Guaranty), an “Event of Default” that would otherwise permit the Secured
Parties to exercise any of their rights and remedies under this Agreement shall
not be deemed to have occurred if (i) the consummation of the Performance
Obligations shall be delayed beyond June 16, 2009, (ii) the Pledgors shall then
be responding to comments from the Securities and Exchange Commission and
otherwise seeking, in good faith, to perform such Performance Obligations, and
(iii) the outstanding principal amount of the Notes shall be increased as
provided in the Purchase Agreement.
(a) Following the occurrence and
during the continuance of an “Event of Default” (as that term is defined in the
Purchase Agreement), upon not less than twenty (20) days prior written notice to
the Pledgors and the Collateral Agent, Investors holding a majority in interest
of the outstanding principal amount of the Notes (the “Majority Investors”),
may, at their option, request that the Collateral Agent transfer or register the
Pledged Collateral or any part thereof into its or their nominee's name with or
without any indication that such Pledged Collateral is subject to the lien
created hereunder. In addition, upon the occurrence and during the continuance
of an Event of Default, the Investors may at any time exchange certificates or
other instruments representing or evidencing Pledged Collateral for certificates
or other instruments of smaller or larger denominations.
(b) If
at any time an Event of Default shall have occurred and be continuing, then, in
addition to having the right to exercise any right or remedy of a secured party
upon default under the New York State Uniform Commercial Code or applicable law
or at equity, Secured Parties may, to the extent permitted by law but subject at
all times to the terms of the Purchase Agreement, subject to giving notice to
Pledgor but without being required to take or do any action (except as provided
below):
(i)
apply any cash held by it hereunder to the payment of the Notes;
and
(ii) if
there shall be no such cash or if the cash so applied shall be insufficient to
pay in full the Notes, collect, receive, appropriate and realize upon the
Pledged Collateral or any part thereof, and/or sell, assign, transfer, contract
to sell or otherwise dispose of and deliver the Pledged Collateral or any part
thereof, in its entirety or in portions, at public or private sale or at any
broker's board, on any securities exchange or at any of Secured Parties places
of business or elsewhere, for cash, upon credit or for future delivery, and at
such price or prices as Secured Parties may deem best, and Secured Parties may
(except as otherwise provided by law) be the purchaser of any or all of the
Pledged Collateral so sold and thereafter may hold the same, absolutely, free
from any right or claim of whatsoever kind.
(c) In
the event of a sale as aforesaid, Secured Parties may, at any such sale,
restrict the number of prospective bidders or purchasers and/or further restrict
such prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing for their own account, for investment and not with a
view to the distribution or resale of the Pledged Collateral, and may otherwise
require that such sale be conducted subject to restrictions as to such other
matters as Secured Parties may deem necessary in order that such sale may be
effected in such manner as to comply with all applicable state and federal
securities and other laws. Upon any such sale, Secured Parties shall
have the right to deliver, assign and transfer the Pledged Collateral so sold to
the purchaser thereof.
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(d) Pledgors
hereby acknowledge that, notwithstanding that a higher price might be obtained
for the Pledged Collateral at a public sale than at a private sale or sales, the
making of a public sale of the Pledged Collateral may be subject to registration
requirements under applicable securities laws and other legal restrictions,
compliance with which would make a public sale of the Pledged Collateral
impractical. Accordingly, Pledgors hereby agree that private sales
made by Secured Parties in good faith in accordance with the provisions of this
Section 4 may be at prices
and on other terms less favorable to the seller than if the Pledged Collateral
were sold at a public sale, and that Secured Parties shall not have any
obligation to take any steps in order to permit the Pledged Collateral to be
sold at a public sale.
(e) Each
purchaser at any such sale shall hold the property sold, absolutely free from
any claim or right whatsoever, including any equity or right of redemption of
Pledgors, and Pledgors hereby specifically waive all rights of redemption, stay
or appraisal and other rights that Pledgors has or may have under any law,
regulation or statute now existing or hereafter adopted or
otherwise. Secured Parties shall give Pledgors not less than thirty
(30) calendar days' written notice of its intention to make any such public or
private sale. Such notice, in case of a public sale, shall state the
time and place fixed for such sale, and, in case of a sale at broker's board, on
a securities exchange, at one or more of Secured Parties' places of business or
elsewhere, shall state the board, exchange or other location at which such sale
is to be made and the day on which the Pledged Collateral, or that portion
thereof so being sold, will first be offered for sale at such
location. Such notice, in case of a private sale, shall state only
the date on or after which such sale may be made. Any such notice
given as aforesaid shall be deemed to be reasonable notification.
(f) Any
such public sale shall be held at such time or times within ordinary business
hours and at such place or places as Secured Parties may fix in the notice of
such sale. At any sale the Pledged Collateral may be sold in one lot
as an entirety or in parts, as Secured Parties may determine. Secured
Parties shall not be obligated to make any sale pursuant to any such
notice. Secured Parties may, without notice or publication, adjourn
any sale or cause the same to be adjourned from time to time by announcement at
the time and place fixed for the sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of
all or any part of the Pledged Collateral on credit or for future delivery, the
Pledged Collateral so sold may be retained by Secured Parties until the selling
price is paid by the purchaser thereof, but Secured Parties shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Pledged Collateral so sold and, in case of any such failure, such Pledged
Collateral may again be sold upon like notice.
(g) On
any sale of any part of the Pledged Collateral, Secured Parties is hereby
authorized to comply with any limitation or restriction in connection with such
sale that may be necessary in order to avoid any violation of applicable law or
in order to obtain any required approval of the purchaser(s) by any governmental
authority or officer or court.
(h) Pledgors
hereby acknowledge, understand and agree that compliance with the foregoing
procedures shall satisfy any applicable requirements that such sale or
disposition be made in a commercially reasonable manner.
5. Representations
and Warranties. The
Pledgors hereby represent and warrant to the Investors as follows:
(a) the
Pledgors are the legal and beneficial owner of the Pledged Collateral owned by
the Pledgors, free and clear of any lien, except for the lien created by this
Agreement; and
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(b) The
Pledgors have full power and authority to enter into this Agreement, assign,
deposit, pledge and xxxxx x xxxx on or otherwise transfer all of its rights in
the Pledged Collateral free and clear of any liens;
6. Voting
Rights. During
the term of this Agreement, and except as otherwise provided in this Section 6,
the Pledgors shall have the right to vote any Shares which form all or a portion
of the Pledged Collateral, to the extent such Shares may be voted, on all
questions presented to the holders of ordinary shares of Trestle, and the
Collateral Agent will deliver all necessary documents to allow the Pledgors to
take such action upon the Pledgors' request. After the occurrence and during the
continuance of an Event of Default, the Investors may, at the Investors' option,
exercise all voting and other consensual rights and powers pertaining to the
Pledged Collateral (to the extent it may vote). the Pledgors hereby agree to
execute all proxies or other instruments, documents or agreements deemed
reasonably necessary by the Investors to evidence the right to vote the Pledged
Collateral as provided hereunder, and the Pledgors agree that they shall not be
entitled to rescind, revoke or otherwise modify the Investors' vote executed in
accordance with this Section 6. Any and all proxies executed by the Pledgors
pursuant to this Section 6 shall be deemed for all purposes to be a proxy
coupled with an interest and shall be irrevocable until the payment in full, in
cash, of all amounts due under the Note.
7. Dividends
and Other Distributions. The Collateral Agent shall be entitled to
receive any and all dividends and other distributions paid in respect of the
Pledged Collateral which dividends and/or distributions shall be deemed to be
held in escrow if received by the Investors and shall become part of the Pledged
Collateral upon receipt thereof.
8. Transfers
and Other Liens. The
Pledgors agree that, except as otherwise provided in Section 4 above, until all
of the Obligations are paid in full, it will not (i)
sell or otherwise dispose of, or grant any option or other rights with
respect to, any of the Pledged Collateral without the prior written consent of
the Investors, or (ii) create or permit to exist any lien upon or with respect
to any of the Pledged Collateral, except for the lien created by this
Agreement.
9. Sale
of Pledged Collateral. Subject at all times to the provisions
of Section 10 below, in
view of the fact that federal and state securities laws may impose
certain restrictions on the method by which a sale of the Pledged Collateral may
be effected after an Event of Default, the Pledgors agrees that after the
occurrence and during the continuance of an Event of Default, the Investors may,
from time to time, attempt to sell all or any part of the Pledged Collateral by
means 0f a private
placement restricting the bidders and prospective purchasers to those who are
qualified and will represent and agree that they are purchasing for investment
only and not for distribution. In so doing, the Investors may solicit offers to
buy the Pledged Collateral, or any part of it, from one or more investors deemed
by the Investors, in its reasonable judgment, to be financially responsible
parties who might be interested in purchasing the Pledged Collateral. The
acceptance by the Investors of the highest and best offer obtained therefrom
shall be deemed to be a commercially reasonable method of disposing of such
Pledged Collateral
10. Alternative
Remedy. Notwithstanding the provisions of this Agreement, on and after an
Event of Default, the Investors may (but shall not be obligated to) elect, in
lieu of the remedies specified in Section 10, to retain all of the Pledged
Collateral as full and complete liquidated damages for any amounts then due and
owing by the Pledgors to the Investors under the Note.
11. Termination. This
Agreement shall remain in full force and effect until the Note
shall have been indefeasibly paid in full. Upon the termination of this
Agreement as provided above (other than as a result of the sale of the Pledged
Collateral), this Agreement shall automatically terminate and all liens and
security interests created hereunder shall terminate and be
released. Upon confirmation of payment in full of the Note, the
Collateral Agent shall (a) if any UCC-1 Financing Statements were previously
filed, file any UCC-3 Termination Statements releasing the lien and security
interest created by the Assignments, and (b) to the extent it then has
possession of any of the remaining Pledged Collateral, will deliver such Pledged
Collateral and the Assignments to the Pledgors.
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12. Agreements
with and Duties of the Collateral Agent.
(a) The
Collateral Agent shall be under no duty to give the Pledged Collateral held by
it hereunder any greater degree of care than it gives its own similar
property.
(b) If
the Collateral Agent is permitted or required to deliver any of the Pledged
Collateral or pay money back to any Business Party or Business Parties, such
payment shall be made by check or by wire transfer, at the Collateral Agent's
sole discretion, unless the Collateral Agent shall have received written notice
from such Business Party or Business Parties of a new and/or different postal
address or unless this Agreement shall have provided otherwise. If
payment is made by check or Pledged Collateral is to be delivered, the same
shall be mailed to the address specified by the Business Party(s) in this
Agreement (or to a new or different address subsequently specified to Collateral
Agent by writing from such Business Party(s)).
(c) Whenever
authorization shall be provided by the terms of this Agreement for the payment
or delivery of Pledged Collateral by the Collateral Agent to one or more
Business Parties and there is no express requirement hereunder for written
instructions from the applicable Business Party(s) before such delivery is made,
the Collateral Agent shall notify all Business Parties and, in its sole
discretion, may defer payment or defer return or delivery of Pledged Collateral
until such written requirement or consent is received from all of the Business
Parties (or, depending on the Collateral Agent’s requirements, from less than
all of them). Where Collateral Agent determines to so defer payment
or delivery, the Collateral Agent shall give written notice to the Business
Parties of such determination.
(e) It
is expressly understood and agreed that under no circumstances shall the
Collateral Agent be required to pay or have paid to any Business Party(s) any
sum not representing proceeds from the sale of any Pledged Collateral that may
be delivered to the Collateral Agent.
(f) It
is intended that the duties and responsibilities of the Collateral Agent shall
be limited to ministerial duties and responsibilities to the maximum extent
permitted by law. In keeping with that intent, it is agreed that the
receipt by Collateral Agent of Exhibit
B, or an alternative written instrument containing the substantive
information or content that is in Exhibit
B (whether or not also including other information and content not
inconsistent with the request and approval of delivery or disbursement action
proposed to be taken by the Collateral Agent) shall, in the absence of actual
knowledge by the Collateral Agent of falsehood, fraud or other intentional or
gross misconduct on the part of any of the Business Parties that would render
the proposed action under the written instrument to be inappropriate, be full
and sufficient justification and authorization for the proposed payment or
disbursement action by the Collateral Agent. Notwithstanding anything to the
contrary, express or implied, contained in this Agreement, if the Collateral
Agent shall receive written instructions from the Investors in accordance with
Alternative Instructions 2 of Exhibit
B (or words of similar
import), the Collateral Agent shall: (i) furnish a copy of such instructions to
the Pledgors at the address designated on Exhibit
B (or any alternative
address requested by the Pledgors in writing), and (ii) take no action with
respect to such written request until a date which shall be not less than ten
(10) Business Days following receipt of such written instructions from the
Investors.
(g) The
ministerial reliance by Collateral Agent on the written instrument referred to
in Section
12(f) shall be full and sufficient justification and authorization, as
stated in such Section, notwithstanding a determination that Collateral Agent
had certain specified discretionary inquiry powers and opportunities that
Collateral Agent did not pursue or that, absent the provisions of Section 12(f) above,
Collateral Agent had (or might have had) fiduciary responsibilities to
investigate before making any such payment or disbursement and did not do
so.
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(h) The
Collateral Agent shall have no duty or responsibility to enforce collection of
any check delivered to it and subsequently dishonored, nor shall Collateral
Agent have any duty or responsibility to give notice to any Business Party of
such attempted payment and the subsequent dishonor thereof.
(i) The
Collateral Agent shall be entitled to rely upon the accuracy, act in reliance
upon the contents, and assume the genuineness of any notice, instruction,
certificate, signature (including copies of signature pages), instrument or
other document (in each case, whether a copy, facsimile or original) which is
given to the Collateral Agent pursuant to this Agreement, without the Collateral
Agent being obligated to undertake any action or investigation to verify the
truth or accuracy thereof — unless the Collateral Agent has
actual knowledge that the document or other document, instruction, certificate
or signature is not accurate, truthful, authorized or
genuine. For purposes of this Section 12(i),
“Actual knowledge, or any other instance where “knowledge” would be required
(and, therefore, “actual knowledge” would be required as a standard of
“knowledge”) shall consist of actual and conscious apprehension and
understanding, presently in the mind or consciousness of the person acting for
Collateral Agent (as opposed to knowledge previously known but not currently
remembered or consciously being thought about) and shall be limited to such
“actual knowledge” by an attorney in Collateral Agent’s firm who is currently
actively engaged in the management of the Collateral Agent and who is made aware
of the document, etc. that is the subject of this Section
12(i). For purposes of this Agreement “knowledge” (being
required to be “actual knowledge”) shall not included knowledge of any other
attorney or person in LHTT who is not directly involved in making decisions
regarding, or managing, the LHTT activities as Collateral
Agent. Knowledge by others within LHTT shall not be imputed to the
persons described above for purposes of determining whether “knowledge” or
“actual knowledge” existed. Persons (lawyers) at Collateral
Agent as to whom “actual knowledge” is relevant under this Section 12(i)
currently includes Xxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxxx.
(j) The
Collateral Agent may consult with and act relative hereto upon advice of counsel
of its own selection in reference to any matter connected herewith, and shall
not be liable to any of the parties hereto, or their respective legal
representatives, heirs, successors and assigns, for any action taken in good
faith on the advice of counsel or for any mistake of fact or error of judgment,
or for any acts or omissions of any kind taken or made in good faith unless
caused by its willful misconduct or gross negligence.
(k) The
Collateral Agent shall not be responsible for, or have any duty to inquire into,
or be required to enforce any of the terms and provisions of any document or
agreement other than this Agreement.
(l) Without
limiting the foregoing, the Collateral Agent shall not be responsible for, or
have any duty to inquire into, monitor or enforce obligations between any of the
Business Parties as to (i) whether there was support or justification for any
such Business Party to act in accordance with written instructions of such
Business Party or any other Business Party in attached Exhibit
B or any written alternative acceptable to Collateral Agent that included
(with anything else) the material or content of Exhibit
B, or (ii) whether any Business Party properly uses and applies funds
received by it, whether from the Collateral Agent or third parties, in
accordance with the provisions of this Agreement or other applicable
documents. Notwithstanding anything to the
contrary, express or implied, contained in this Agreement, if the Collateral
Agent shall receive written instructions from the Investors in accordance with
Alternative Instructions 2 of Exhibit
B (or words of similar
import), the Collateral Agent shall: (i) furnish a copy of such instructions to
the Pledgors at the address designated on Exhibit
B (or any alternative
address requested by the Pledgors in writing), and (ii) take no action with
respect to such written request until a date which shall be not less than ten
(10) Business Days following receipt of such written instructions from the
Investors.
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(m) This
Agreement sets forth exclusively the duties of the Collateral Agent with respect
to any and all matters pertinent hereto and no implied duties or obligations
shall be read into this Agreement against the Collateral Agent.
(n) If
the Collateral Agent shall be uncertain as to its duties or rights hereunder or
if it receives instructions with respect to the Pledged Collateral or any funds
that may be derived from the sale or transfer of any Pledged Collateral, which,
in the Collateral Agent’s sole discretion, it determines to be in actual or
potential conflict with this Agreement or other instructions that it has
received, the Collateral Agent shall be excused from taking action that it might
otherwise be required to take, and its sole obligation shall be to keep safely
all property held in escrow until the uncertainty is resolved. Such
uncertainty can be resolved by written and signed agreement among all affected
Business Parties and Investors or by order or judgment of a court of competent
jurisdiction, naming the involved Business Parties as participants in the action
or proceeding brought to obtain judicial determination of the involved uncertain
duties and obligations.
Alternatively,
the Collateral Agent may, in its discretion, seek judicial determination of any
dispute or uncertainty and/or deposit all of the Pledged Collateral and any
funds that may be derived from the sale or transfer of any Pledged Collateral,
in Court pursuant to proceedings under New York law.
(p) The
Collateral Agent makes no representation as to the validity, value, genuineness
or collectability of any portion or all of the Pledged Collateral held by or
delivered to it.
(q) In
the event that:
(i) the
Collateral Agent shall receive any conflicting or inconsistent notices or
instructions from any one or more of the Business Parties, or
(ii) there
shall be any disagreement between or among any of the Business Parties,
resulting in adverse claims or demands being made in connection with the subject
matter of this Agreement, or
(iii) there
shall be any disagreement between or among any of the Business Parties and any
other person, resulting in adverse claims or demands being made in connection
with the subject matter of this Agreement, or
(iv) the
Collateral Agent, in good faith, shall be in doubt as to what action it should
take hereunder,
then, and
in any such event, Collateral Agent may, at its option, refuse to comply with
any notices, instructions, claims or demands on it, or refuse to take any other
action hereunder, so long as such disagreement continues or such doubt exists,
and in any such event, the Collateral Agent shall not become liable in any way
or to any person for its failure or refusal to act. The Collateral
Agent shall be entitled to continue so to refrain from acting until (A) the
rights of all Business Parties or other third person(s) shall have been fully
and finally adjudicated by a court of competent jurisdiction or (B) all
differences shall have been adjusted and all doubt resolved by agreement among
all of the interested persons, and the Collateral Agent shall have been notified
thereof in writing signed by all such persons. The Collateral Agent
shall have the option, after thirty (30) days’ notice to the Business Parties of
its intention to do so, to file an action in interpleader requiring the parties
to answer and litigate any claims and rights among themselves.
The
rights of the Collateral Agent under this Section 12(q) are
cumulative of all other rights which it may have by law or
otherwise.
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(r) The
Collateral Agent does not have and will not have any interest in the Pledged
Collateral or any funds that may be derived from the sale or transfer of any
Pledged Collateral, but is serving only as escrow holder and has only possession
thereof.
(s) The
Collateral Agent’s duties and responsibilities shall be determined only with
reference to this Agreement. The Collateral Agent is not charged with
any duties or responsibilities in connection with any other document or
agreement.
(t) The
Collateral Agent may execute any of its powers or responsibilities hereunder
either directly or by or through its agents or attorneys and the Collateral
Agent shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(u) Each
of Business Parties do hereby release the Collateral Agent from any act done or
omitted to be done by the Collateral Agent in good faith in the performance of
its duties hereunder, and each of Business Parties do hereby jointly and
severally agree to fully indemnify the Collateral Agent and its directors,
officers, employees and agents (the “Collateral Agent Indemnified
Parties”) for, and to hold each of them harmless from and against, any
loss, liability, claim, damage or expense (including reasonable attorneys’ fees
and expenses) incurred by the Collateral Agent Indemnified Parties, arising out
of or in connection with the Collateral Agent entering into this Agreement and
carrying out its duties hereunder, including the reasonable costs and expenses
of defending itself from any claim or liability; provided,
however, that the Collateral Agent Indemnified Parties shall not be
entitled to indemnification hereunder for losses, liabilities and expenses
caused by the willful misconduct, fraud or gross negligence of any of the
Collateral Agent Indemnified Parties. The agreements contained in
this Section
12(u) shall survive despite any termination of this Agreement or the
resignation or removal of the Collateral Agent.
(v) The
Collateral Agent shall not incur any liability for not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of the Collateral Agent (including but not limited
to any act or provision of any present or future law or regulation or
governmental authority, any act of God or war, or the unavailability of the
Federal Reserve Bank wire or telex or other wire or communication
facility).
(w) Anything
in this Agreement to the contrary notwithstanding, in no event shall the
Collateral Agent be liable for consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), regardless of the form
of action.
(x) The
Collateral Agent may resign at any time or be removed by the written mutual
consent of the Business Parties. No resignation or removal of the
Collateral Agent and no appointment of a successor Collateral Agent, however,
shall be effective until the acceptance or removal of the Collateral Agent in
the manner herein provided. In the event of the resignation or
removal of the Collateral Agent, the Business Parties shall in good faith agree
upon a successor Collateral Agent. If the Business Parties are unable
to agree upon a successor Collateral Agent within fourteen (14) days after
receipt of a notice of resignation or removal is given, the Collateral Agent may
deposit the Pledged Collateral and any funds delivered to the Collateral Agent
from the sale or transfer of any Pledged Collateral with a court of competent
jurisdiction and may petition, at the sole expense of the Business Parties, a
court of competent jurisdiction for the appointment of a successor Collateral
Agent. Any successor Collateral Agent shall execute and deliver to
the predecessor Collateral Agent and the Business Parties an instrument
accepting such appointment and the transfer of the Pledged Collateral and any
funds delivered to the Collateral Agent from the sale or transfer of any Pledged
Collateral and agreeing to the terms of this Agreement, and thereupon such
successor Collateral Agent shall, without further act, become vested with all
the estates, properties, rights, powers and duties of the predecessor Collateral
Agent as if originally named herein.
(y) Any
law firm with which the Collateral Agent may merge or consolidate shall be the
successor Collateral Agent without further act.
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(z) At
any time either the Pledgors or the Investors can request the Collateral Agent
to resign, the Collateral Agent agrees to resign and another Collateral Agent
acceptable to both the Pledgors and the Investors shall be appointed as
Collateral Agent.
13. Definitions. The singular shall include
the plural and vice versa and any gender shall include any other gender as the
context may require.
14. Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the Pledgors, the
Investors and their respective successors and assigns. the Pledgors's successors
and assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for the Pledgors.
15.
GOVERNING
LAW. THIS AGREEMENT SHALL
BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANY STATE OTHER THAN THE STATE OF NEW
YORK.
16. Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this
Agreement shall be held to be prohibited or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
17. Further
Assurances. The Pledgors agree that they
will cooperate with the Investors and the Collateral Agent and will execute and
deliver, or cause to be executed and delivered, all such other assignments
separate from certificate, proxies, instruments and documents, and will take all
such other actions, including, without limitation, the execution and filing of
financing statements, as the Investors or the Collateral Agent may reasonably
request from time to time m order to carry out the provisions and purposes of
this Agreement.
18. Notices. Except as otherwise provided
herein, whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communications shall or may be given to
or served upon any of the parties by any other party, or whenever any of the
parties desires to give or serve upon any other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be given (and
deemed to have been given) to the address on record with the sending party and
otherwise in accordance with and subject to the terms of the Note.
19. Amendments,
Waivers and Consents. No
amendment to, modification or waiver of, or consent with respect to, any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed and delivered by the Investors and the Pledgors,
and then any such amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given.
20. Section
Headings. The section
headings in this Agreement are inserted for convenience of reference and shall
not be considered a part of this Agreement or used in its
interpretation.
21. Execution
in Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which shall together constitute one and the same
agreement. Any such counterpart which may be delivered by facsimile transmission
shall be deemed the equivalent of an originally signed counterpart and shall be
fully admissible in any enforcement proceedings regarding this
Agreement.
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22. Merger. This
Agreement represents the final agreement of the Pledgors and the Investors with
respect to the matters contained herein and may not be contradicted by evidence
of prior or contemporaneous agreements, or subsequent oral agreements, between
the Pledgors and the Investors.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
- 11 -
IN WITNESS WHEREOF, the
Pledgors and the Investors have each caused this Agreement to be executed and
delivered by its duly authorized officer as of the date first set forth
above.
PLEDGORS:
(a
Delaware corporation)
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By:
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MOBIZONE
HOLDINGS LIMITED
|
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(a
Hong Kong corporation)
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By:
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MOQIZONE
HOLDINGS LIMITED
|
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(a
Cayman Island corporation)
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BY:
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SHANGHAI
MOQIZONE INFORMATION
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TECHNOLOGY
COMPANY LIMITED
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(a
corporation organized under the laws of the People’s Republic of
China)
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By:
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COLLATERAL AGENT:
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XXXXX
XXXXXX XXXXXXX & XXXXXXX
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By:
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Xxxxx
Xxxxxxx,
Partner
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- 12 -
Signature
pages of Investors/Secured Parties under Pledge Agreement
- 13 -
EXHIBIT
A
FORM OF ASSIGNMENT SEPARATE
FROM CERTIFICATE
FOR VALUE RECEIVED,
the undersigned, ________________________, does hereby sell, assign and
transfer unto _______________________________, shares of capital stock of ____________________________
(the “Shares”),
standing in the name of the undersigned on the books of said corporation and
does hereby irrevocably constitute and appoint
____________________________________, as Agent, as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Shares, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated:
___________________
[_________________________,
a________________, ____________]
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By:
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Name:
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Its:
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- 14 -
EXHIBIT
B
LETTER OF
INSTRUCTION
Leser,
Hunter, Taubman & Taubman
00 Xxxxx
Xxxxxx, Xxxxx 00
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxxxxx
Re: Pledge
Agreement, dated __________ 2009 among Trestle Holdings, Inc., MoqiZone Holdings
Co. Ltd. and MoqiZone Holdings Limited (collectively, the Pledgors”), the
Investors who have executed such Agreement (“the Investors”), and Xxxxxxx Xxxx
LLP (“Collateral
Agent”).
Gentlemen:
Reference
is made to the above captioned Pledge Agreement. Unless otherwise
defined herein, all capitalized terms shall have the same meaning as is defined
in the Pledge Agreement.
Alternative
Instructions 1
[Please
be advised that all of the Performance Obligations have been performed and/or
paid in full and you are hereby instructed to release all of the Pledged
Collateral in your possession to the Pledgors or as otherwise designed by
Trestle Holdings, Inc.]
Alternative
Instructions 2
Please be
advised that an Event of Default under the Purchase Agreement and the Pledge
Agreement has occurred and is continuing, as a result of which you are hereby
instructed to release all of the Pledged Collateral in your possession to the
Investors or as otherwise designed by the Investors’
Representative.]
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Very
truly yours,
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(Investors
Representative)
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By:
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(a
Delaware corporation)
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By:
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MOQIZONE
HOLDINGS LIMITED
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(a
Hong Kong corporation)
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By:
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MOQIZONE
HOLDINGS CO., LTD.
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(a
Cayman Island corporation)
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By:
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Consent —
15
EXHIBIT
C
Names,
Emails and signature(s) for:
Person(s) Designated to give
Instructions to the Collateral Agent
If from
the Pledgors:
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Name
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Email
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Signature
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||
If from
the Investors
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Name
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Email
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Signature
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||||
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or
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||||||
All
instructions must include the signature of the person(s) authorizing said
instructions.
Consent —
16
