Exhibit 10.3
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT"), is entered into this
8th day of July, 1998, by and between Tamiya Watanabe, Rabex USA Holdings, Inc.,
a Colorado corporation and Satellite Investment Group, LLC, a Colorado limited
liability company.
1. DEFINITIONS. Throughout this Agreement, and unless the context otherwise
requires, the word or words set forth below within the quotation marks shall be
deemed to mean the words which follow them:
1.1 "Certificate" means any stock certificate representing a Share in the
possession of the Custodian, including, without limitation, the Stock
Certificates and the Replacement Certificates.
1.2 "Collateral" means the Shares, any and all dividends (monetary, stock,
liquidating or otherwise) in respect thereto, and any and all securities,
instruments, documents, contract rights, and other property which Debtor may
become entitled to with respect thereto, and all cash or non- cash proceeds
thereof.
1.3 "Company" means Solar Satellite Communication, Inc., a Colorado
corporation.
1.4 "Creditor" means Tamiya Wataabe and Rabex USA Holdings, Inc., a
Colorado corporation or any successor holder of the Secured Note.
1.5 "Creditor's Address" means ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇, ▇-▇▇▇▇▇,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
1.6 "Custodian" means Pendleton, Friedberg, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
1.7 "Custodian's Address" means ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.8 "Debtor" means Satellite Investment Group, LLC , a Colorado limited
liability company.
1.9 "Debtor's Address" means ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.10 "Dividend" shall mean any dividend or other kind of distribution
hereinafter made to Debtor as a shareholder of the Company.
1.11 "Effective Date" means July 8, 1998.
1.12 "Event of Default" means each and every event specified in Section 6
of this Agreement.
1.13 "Maturity Date" means April 8, 1999 which is the maturity date of the
Secured Note.
1.14 "Obligations" means the indebtedness evidenced by the Secured Note and
any obligations arising under this Security Agreement.
1.15 "Person" means any natural person, corporation, partnership, limited
liability company, trust or other type of legal organization.
1.16 "Purchase Money Loan" means the loan in the amount of Three Hundred
Thousand Dollars ($300,000) made by the Creditor to the Debtor to partially
finance Debtor's purchase of the Shares from Creditor.
1.17 "Replacement Certificate" means a stock certificate that shows on its
face that Debtor is the owner of the Shares, which stock certificate may
hereinafter be issued by the Company to replace the Stock Certificates.
1.18 "RUSAH" means Rabex USA Holdings, Inc., a Colorado corporation.
1.19 "Secured Note" means the promissory note dated the Effective Date
issued to the Creditor by the Debtor in the principal sum of Three Hundred
Thousand Dollars ($300,000) to evidence the Purchase Money Loan.
1.20 "Shares" means the three million eight hundred twenty-five thousand
(3,825,000) shares of common stock of the Company owned by Debtor as evidenced
by the Stock Certificates.
1.21 "Stock Certificate" means the following described Stock Certificate
issued by the Company to RUSAH to evidence its ownership of the Shares, which
stock certificate has been assigned to Debtor by separate stock power:
Certificate Number Date of Issuance Number of Shares Represented
------------------ ---------------- ----------------------------
5089 6/9/97 3,825,000
1.22 "Stock Purchase Agreement" means the Stock Purchase Agreement dated
May 21, 1998 by and among the Creditor, the Debtor, RUSAH and certain other
Individuals described therein.
2. RECITALS.
2.1 On the Effective Date, the Creditor and the Debtor closed the sale of
the Shares from Creditor to the Debtor pursuant to the Stock Purchase Agreement.
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2.2 Pursuant to the Stock Purchase Agreement, the Creditor made the
Purchase Money Loan to Debtor to partially finance Purchaser's purchase of the
Stock.
2.3 To evidence the Purchase Money Loan, the Debtor issued the Secured Note
to the order of the Creditor.
2.4 As required by the Stock Purchase Agreement, and to secure the Debtor's
Obligations to Creditor, the parties are entering into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly confessed and acknowledged, the
parties hereto do hereby covenant and agree as follows:
3. REPRESENTATIONS AND WARRANTIES.
Debtor represents and warrants to Creditor, and such representations and
warranties shall be continuing representations and warranties, so long as any
Obligations shall remain outstanding, this Agreement and any document or
instrument delivered in connection herewith and the transactions contemplated
hereby or thereby have been duly authorized, and/or executed and delivered, as
appropriate; and this Agreement and such other document and instruments
constitute valid and legally binding obligations of Debtor and are enforceable
against Debtor in accordance with their respective terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1 No Prior Pledges or Mortgages. Debtor hereby represents and covenants
that Debtor has not granted any prior security interests, mortgages, charges,
liens, pledges or encumbrances of any nature or kind against the Collateral.
4.2 Validity of Agreement. The Debtor has the legal capacity and authority
to enter into this Agreement. This Agreement is a valid and legally binding
obligation of the Debtor and is fully enforceable against the Debtor in
accordance with its terms, except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium and similar
laws relating to creditors rights generally.
4.3 Agreement Not in Conflict with Other Instruments; Required Approvals
Obtained. The execution, acknowledgment, sealing, delivery, and performance of
this Agreement by the Debtor will not (a) violate or require any registration,
qualification, consent, approval, or filing under, (i) any law, statute,
ordinance, rule or regulation (hereinafter collectively referred to as "Laws")
of any Governments or Governmental Agencies, or (ii) any judgment, injunction,
order, writ or decree of any court, arbitrator, Government or Governmental
Agency by which the Company or any of its assets is bound; (b) conflict with,
require any consent, approval, or filing under, result in the breach or
termination of any provision of, constitute a default under, result in the
acceleration of the performance of the Debtor's obligations under, or result in
the creation of any claim, security interest, lien, charge, or encumbrance upon
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any of the Debtor's properties, assets, or businesses pursuant to, (i) the
Debtor's Articles of Organization or Operating Agreement, (ii) any indenture,
mortgage, deed of trust, license, permit, approval, consent, franchise, lease,
contract, or other instrument or agreement to which the Company is a party or by
which the Debtor or any of the Debtor's assets or properties is bound, or (iii)
any judgment, injunction, order, writ or decree of any court, arbitrator,
Government or Governmental Agency by which the Debtor or any of its assets or
properties is bound.
4.4 Legal Proceedings. There is no action, suit, proceeding, claim,
arbitration, or investigation by any Government, Governmental Agency or other
Person (i) pending to which the Debtor is a party, (ii) threatened against or
relating to the Debtor or any of the Debtor's assets or businesses, (iii)
challenging the Debtor's right to execute, acknowledge, seal, deliver, perform
under or consummate the transactions contemplated by this Agreement, or (iv)
asserting any right with respect to any of the Shares, and there is no basis for
any such action, suit, proceeding, claim, arbitration or investigation.
5. GRANT OF SECURITY INTEREST.
To secure the payment and performance of the Obligations, Debtor hereby
pledges, assigns and transfers to Creditor, and grants to Creditor a continuing
security interest in and to all of the Collateral.
6. GENERAL COVENANTS.
6.1 No Pledge. Debtor covenants and agrees that so long as any Obligations
remain outstanding, the Debtor shall not mortgage, pledge, grant or permit to
exist a security interest in, or a lien or encumbrance upon any of the
Collateral except in favor of Creditor.
6.2 Preservation of Creditor's Security Interest. Debtor shall:
6.2.1 Permit Creditor, through its authorized attorneys, accountants
and representatives, to inspect and examine the books, accounts, records,
ledgers and assets of every kind and description of the Debtor;
6.2.2 Pay to the Creditor, as a payment on the Secured Note, any
Dividends it receives as a result of his ownership of the Shares;
6.2.3 At any time and from time to time upon request of Creditor,
execute and deliver to Creditor, in form and substance satisfactory to
Creditor, such documents as Creditor shall deem necessary or desirable to
perfect or maintain perfected the security interest of Creditor in the
Collateral or which may be necessary to comply with the provisions of the
law of the State of Colorado or the law of any other jurisdiction in which
Debtor may then be conducting business or in which any of the Collateral
may be located;
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6.2.4 To pay or cause to be paid, prior to the date they would become
delinquent if not paid, any and all taxes, assessments and other
governmental charges whatsoever levied upon or assessed or charged against
the Collateral, or any part thereof, including any accrued interest, cost
and/or penalty thereon;
6.2.5 To pay and satisfy or cause to be paid and satisfied as the same
become due and payable all claims, liens and encumbrances affecting or
purporting to affect the title to, or which may be or appear to be liens
on, the Collateral, or any part thereof;
6.2.6 To protect, preserve and defend the Collateral and title thereto
and to notify Creditor of all claims and demands of all persons at any time
claiming the Collateral or any interest therein; and
6.2.7 To do such other acts in a timely and proper manner which may be
reasonably necessary to protect and preserve the Collateral as security
hereunder.
7. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an Event of Default hereunder:
7.1 Note Default. An Event of Default under the Note;
7.2 Default Under This Agreement. The Debtor shall fail to perform or
observe any term, covenant, or agreement contained in this Agreement on its part
to be performed or observed and such failure shall remain unremedied for thirty
(30) calendar days after written notice thereof shall have been given to the
Debtor by the Creditor;
7.3 Misrepresentation. Any representation, warranty, certificate, schedule
or other information made or furnished by any Debtor to Creditor herein or
pursuant hereto is or shall be untrue or materially misleading;
7.4 Default under Renewals and Extensions. Any event of default as defined
in any note, guaranty, or security agreement executed by Debtor as a renewal,
substitute, extension, modification, or amendment to this Security Agreement, or
the Secured Note;
7.5 Bankruptcy. If Debtor shall file a voluntary petition in bankruptcy or
shall be determined to be a "debtor" within the meaning of the United States
Code, or shall be granted an order for relief, adjudicated a bankrupt or
insolvent or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under the present or any future applicable federal, state or
other statute or law relative to bankruptcy, insolvency or other relief for
debtors, or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver, conservator or liquidator of Debtor (as applicable) or of all
or any substantial part of its properties or the Collateral (the term
"acquiesce," as used in this Section 6.1.6, includes, but it is not limited to,
the failure to file a petition or motion to vacate or discharge any order,
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judgment or decree within thirty (30) days after entry of such order, judgment
or decree); or
7.6 Acceleration Right. If any Event of Default shall occur, then or at any
time thereafter, while such Event of Default shall continue, Creditor may
declare all Obligations to be due and payable, without notice, protest,
presentment or demand, all of which are hereby expressly waived by Debtor.
8. RIGHTS AND REMEDIES. Upon the occurrence of an Event of Default,
irrespective of whether Creditor exercises his option to declare all Obligations
secured hereby immediately due and payable, he may, at his option and in his
sole discretion, without any prior notice or demand to or upon Debtors, do one
or more of the following:
8.1 Foreclose. Foreclose or otherwise enforce Creditor's security interest
in any manner permitted by law, or provided for in this Security Agreement;
8.2 Sale of Collateral. Sell, lease or otherwise dispose of any Collateral
at one or more public or private sales, whether or not such Collateral is
present at the place of sale, for cash or credit or future delivery, on such
terms and in such manner as Creditor may determine; in the event of a sale,
lease or other disposition of the Collateral:
8.2.1 Any person, including Debtor and Creditor, may purchase at the
sale;
8.2.2 If in the opinion of Creditor's counsel, a public sale of the
Shares of Stock might require registration under the Securities Act of
1933, as amended, or under any other federal or state statute governing the
registration or qualification of securities being sold to the public,
Creditor and Debtors agree that a private sale of the Shares of Stock will
be commercially reasonable and Creditor, in such circumstances, may sell
the Shares of Stock in a private sale;
8.2.3 In the event Creditor elects to sell or otherwise dispose of the
Shares of Stock, the parties agree that notwithstanding such other
commercially reasonable conduct as may be followed by Creditor, the
following procedures shall comprise and constitute a commercially
reasonable sale (the "Sale"):
(a) Creditor shall mail to Debtor written notice of the Sale not
later than thirty (30) days prior to such Sale;
(b) Once per week during the four (4) weeks immediately
preceding the Sale, Creditor will publish notice of the Sale in:
(i) the Western edition of The Wall Street Journal; (ii) the
Legal Notice section of the Rocky Mountain News; or (iii) the
Legal Notice section of the Denver Post. The notice shall
specify that the Shares of Stock will be sold only to a single
purchaser for his or its own account and not with a view to the
resale or distribution thereof and that the purchaser will be
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restricted from reselling the Shares without compliance with the
Securities Act of 1933 and applicable state securities laws. The
notice will also advise prospective purchasers as to where they
may obtain financial and other information with respect to the
venture;
(c) Upon receipt of any written request to do so, Credit will
make available to any bona fide prospective purchaser for
inspection, within five (5) days following receipt of such
request and during reasonable business hours, such records and
documents as shall be necessary to enable the prospective
purchaser to prepare his or its bid;
(d) The Sale may only be made to a single purchaser who is
financially sophisticated and who can afford the risk of the
highly speculative investment which purchase of the Shares of
Stock would entail. As a condition of sale, Creditor in his
absolute discretion may require the purchaser to represent to
Creditor that the Shares of Stock are being acquired for the
purchaser's own account and not with a view to resale or
distribution, and that the Shares of Stock will not be resold
unless pursuant to the Securities Act of 1933 and/or applicable
state securities laws or under a valid exemption or exemptions
from such registration.
(e) The sale procedures set forth in this subsection 8.2.3 are
not intended to delineate the minimum procedures that must be
followed by Creditor in order to establish that a sale is
commercially reasonable, but rather are only intended to state a
particular procedure which both Debtor and Creditor agree is
commercially reasonable. Under no circumstances shall this
paragraph be deemed to preclude the Creditor from selling the
Collateral in such other commercially reasonable manner as
Creditor may determine.
8.3 Cancellation of Sales. Notwithstanding Paragraph 8.2 hereof, in the
event Creditor offers to sell the Shares, Creditor will be under no obligation
to consummate a sale if, in his reasonable business judgment, none of the offers
received by him reasonably approximates the fair value of the Shares;
8.4 Application of Funds. Creditor shall apply the proceeds of any sale or
disposition hereunder to payment of the following: (a) the expenses of such sale
or disposition together with reasonable attorneys' fees, and the actual cost of
publishing, recording, mailing and posting notice; (b) the cost of any search
and/or other evidence of title procured in connection therewith and any transfer
tax on any deed or conveyance; (c) all sums expended under the terms hereof, not
then repaid, with accrued interest in the amount provided herein; (d) all other
Obligations secured hereby; and (e) the remainder, if any, to the Person or
Persons legally entitle thereto;
8.5 Additional Remedies. The rights, powers and remedies of Creditor as a
secured party under this Security Agreement shall be in addition to all rights,
powers and remedies given to Creditor by virtue of the Colorado Uniform
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Commercial Code or any other statute or rule of law, the Note, or any other
agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Creditor's security
interest in the Collateral. Any forbearance or failure or delay by Creditor in
exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy is specifically waived in a writing
executed by Creditor. Debtor waives any right to require Creditor to proceed
against any person or to exhaust any Collateral or to pursue any remedy in
Creditor's power.
8.6 Cumulative Remedies. No remedy herein conferred upon or reserved to
Creditor is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing, at law or in equity or by
statute or otherwise. Every power or remedy given by this instrument to
Creditor, or to which Creditor may be otherwise entitled, may be exercised from
time to time and as often as may be deemed expedient by Creditor, and Creditor
may pursue inconsistent remedies;
8.7 Costs of Enforcement. The Debtor shall pay to Creditor all costs
incurred by Creditor in enforcing her rights hereunder, including all legal
costs and fees, whether or not legal proceedings are commenced. "Legal costs and
fees" means all reasonable expenses incurred by Creditor, including, travel
expenses, court costs, witness fees and attorneys' fees.
8.8 Acceleration. If any Event of Default shall occur, then or at any time
thereafter, while such Event of Default shall continue, Creditor may declare all
Obligations to be due and payable, without notice, protest, presentment or
demand, all of which are hereby expressly waived by Debtor.
9. ASSIGNMENT BY CREDITOR.
Creditor may, without notice to the Debtor, assign or endorse the Secured
Note to a third party. In such event, each and every immediate and successive
holder of the Secured Note shall have the right to enforce this Agreement, by
legal action or otherwise, for its own benefit as fully as if such holder were
herein by name specifically given such rights. Creditor shall have an unimpaired
right to enforce this Agreement for its benefit to that portion of the
Obligations of Debtor as Creditor has not sold, assigned, transferred or
otherwise disposed of.
10. POSSESSION OF COLLATERAL AND SECURED NOTE.
10.1 Duties of Custodian. Between the Effective Date and the Maturity Date,
the Custodian, as the Creditor's agent, shall hold physical possession of the
Certificates and the Secured Note at the Custodian's Address or at any other
safe place selected by the Custodian.
10.2 Issuance of Replacement Certificate. At Debtor's request, the
Custodian shall cooperate with Debtor in obtaining a Replacement Certificate
from the Company which shows that the Debtor is the owner of the Shares. Said
cooperation shall include delivering the Stock Certificates to the Company or
its transfer agent for surrender and receiving and holding the Replacement
Certificate. Notwithstanding the foregoing, the Custodian will not be required
to take any actions to assist in the issuance of a Replacement Certificate,
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unless the following conditions are satisfied:
(a) The security interest of the Creditor shall continuously be
attached to the Shares; and
(b) The Custodian is paid, in advance, all of its costs and expenses
incurred in obtaining the Replacement Certificate, including, without
limitation, payment to the Custodian for its time spent in obtaining
the Replacement Certificate at its normal hourly rates; and
10.3 Surrender of Secured Note and Stock Certificates. If the Debtor makes
payments to the Custodian on behalf of the Creditor in an aggregate amount of
the Secured Note principal amount on or before the Maturity Date, then the
Custodian shall deliver the Secured Note and Certificates to Debtor.
10.4 Failure To Pay By Maturity Date. If the Debtor fails to makes payments
to the Custodian on behalf of the Creditor in the aggregate amount of the
Secured Note principal amount on or before the Maturity Date, then the Custodian
may deliver the Secured Note and Certificates to the Creditor or may otherwise
act on Creditor's instructions.
11. GENERAL PROVISIONS.
11.1 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated herein
and such understanding shall not be modified except in writing signed by or on
behalf of the parties hereto.
11.2 Interpretation and Severability. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law; should any portion of this Agreement be declared invalid
for any reason in any jurisdiction, such declaration shall have no effect upon
the remaining portions of this Agreement furthermore, the entirety of this
Agreement shall continue in full force and effect in all other jurisdictions and
said remaining portions of this Agreement shall continue in full force and
effect in the subject jurisdiction as if this Agreement had been executed with
the invalid portions thereof deleted.
11.3 Successor and Assigns. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the heirs, administrators,
successors and assigns of Creditor and Debtor, provided, however, Debtor may not
assign any of its rights or delegate any of its obligations hereunder without
the prior written consent of Creditor.
11.4 Colorado Law. This Agreement is and shall be deemed to be a contract
entered into and made pursuant to the laws of the State of Colorado and shall in
all respects be governed, construed, applied and enforced in accordance with the
laws of such state.
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11.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
11.6 Section Headings. The section headings herein are included for
convenience only and shall not be deemed to be a part of this Agreement.
12. ASSIGNMENT BY CREDITOR.
Creditor may, from time to time, without notice to the undersigned, sell,
assign, transfer or otherwise dispose of all or any part of the Obligations
and/or the Creditor's security interest in the Collateral therefor. In such
event, each and every immediate and successive purchaser, assignee, transferee
or holder of all or any part of the Obligations and/or the Collateral shall have
the right to enforce this Agreement, by legal action or otherwise, for its own
benefit as fully as if such purchaser, assignee, transferee or holder were
herein by name specifically given such rights. Creditor shall have an unimpaired
right to enforce this Agreement for its benefit to that portion of the
Obligations of Debtor as Creditor has not sold, assigned, transferred or
otherwise disposed of.
IN WITNESS WHEREOF, the parties hereto have executed this Pledge and
Security Agreement effective as of the date first set forth above.
CREDITOR: RABEX USA HOLDINGS, INC.,
a Colorado corporation
By: /s/ Fukukmitou Takahashi
------------------------------------
Name: Fukumitou Takahashi
Title: Secretary
/s/ Tamiya Watanabe
-------------------------------------
TAMIYA WATANABE
DEBTOR: SATELLITE INVESTMENT GROUP,
LLC, a Colorado limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
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