COMMERCIAL PLEDGE AGREEMENT
EXHIBIT
10.7
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Principal
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Loan
Date
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Maturity
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Loan
No.
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Call/Coll
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Account
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Officer
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Initials
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$8,000,000.00
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03-18-2008
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03-18-2018
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7004400
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Stock
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References
in the boxes above are for Lender's use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing "***" has been omitted due to text length
limitations.
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Borrower:
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Lender:
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PACIFIC
COAST BANKERS' BANK
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Xxx
Xxxxxxxx Xxxxx, Xxxxx 000
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000
Xxxx Xxxxxx, Xxxxx 000
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Xxx
Xxxxxxxxx, XX 00000
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Xxx
Xxxxxxxxx, XX 00000
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THIS
COMMERCIAL PLEDGE AGREEMENT (this "Agreement") dated March 18, 2008, is made and
executed by BELVEDERE SOCAL, California corporation ("Grantor"), to and in favor
of PACIFIC COAST BANKERS' BANK ('Lender").
GRANT
OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender a
security interest in the Collateral to secure the indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights that Lender may have by
law.
COLLATERAL DESCRIPTION. The
word "Collateral" as used In this Agreement means all of Grantor's right, title,
and interest in and to the following described property, whether existing now or
later existing and whether tangible or intangible in character:
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(A)
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100%
of the capital stock of each of Professional and Spectrum (collectively,
the "Bank Stock").
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(B)
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All
records relating to any of the property described in this "Collateral"
section, whether in the form of a writing, microfilm, microfiche, or
electronic media.
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(C)
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All
Income and
Proceeds from any of the property described in this "Collateral"
section.
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REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE COLLATERAL. Grantor represents and warrants to Lender
that:
Ownership. Grantor is the
lawful owner of the Collateral free and clear of all security interests, liens,
encumbrances, and claims of others except as disclosed to and accepted by Lender
in writing prior to execution of this Agreement.
Authority; Right to Pledge.
Grantor has the full right, power, and authority to enter into this
Agreement and to pledge and grant a security interest in the Collateral to
Lender.
Binding Effect This Agreement
is binding upon Grantor as well as Grantor's successors and assigns, and is
legally enforceable In accordance with its terms. The foregoing representations
and warranties, and all other representations and warranties contained in this
Agreement are and shall be continuing in nature and shall remain in full force
and effect until such time as this Agreement is terminated or cancelled as
provided herein.
No Further Assignment Grantor
has not, and shall not, sell, assign, transfer, encumber, or otherwise dispose
of any of Grantor's rights in the Collateral except as expressly provided in
this Agreement or in the Loan Agreement.
No Defaults. There are no
defaults existing under the Collateral, and there are no offsets or
counterclaims to the same. Grantor will strictly and promptly perform each of
the terms, conditions, covenants, and agreements, if any, contained in the
Collateral that are to be performed by Grantor.
No Violation. The execution
and delivery of this Agreement will not violate any law, regulation, or
agreement governing Grantor or either Bank or to which Grantor or either Bank is
a party, and neither Grantor's nor either Bank's certificate or articles of
incorporation and bylaws prohibit any term or condition of this
Agreement.
Financing Statements. Grantor
authorizes Lender to file a UCC financing statement or, alternatively, a copy of
this Agreement to perfect Lender's security interest in the Collateral. At
Lender's request, Grantor additionally agrees to sign all other documents that
are necessary or desirable in Lender's sole discretion to perfect, protect, and
continue Lender's security interest in the Collateral. Grantor will pay all
filing fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. Grantor irrevocably appoints Lender to execute documents necessary to
transfer title if there is a default. If Grantor changes Grantor's name or
address, or the name or address of any person granting a security interest under
this Agreement changes, Grantor will promptly notify the Lender of such
change.
LENDER'S RIGHTS AND OBLIGATIONS WITH
RESPECT TO THE COLLATERAL. Lender may hold the Collateral until all
Indebtedness has been paid and satisfied. Thereafter Lender may deliver the
Collateral to Grantor or to any other owner of the Collateral. Lender shall have
the following rights in addition to all other rights Lender may have by
law:
Maintenance and Protection of
Collateral. Lender may, but shall not be obligated to, take such steps as
it deems necessary or desirable to protect, maintain, insure, store, or care for
the Collateral, including paying of any liens or claims against the Collateral.
This may include such things as hiring other people, such as attorneys,
appraisers or other experts. Lender may charge Grantor for any cost incurred in
so doing.
Income and Proceeds from the
Collateral. Lender may receive all Income and Proceeds and add it to the
Collateral; provided, however, that so long as no Event of Default exists, or,
with the passage of time or the giving of notice, would exist, Grantor may
receive and retain dividends paid on the Bank Stock as and to the extent
necessary to enable Grantor (1) to make payments of interest and principal under
the Note; and (2) to make payments of reasonable management fees for Grantor to
Grantor's managers on the same general terms as the same are being paid as of
the date hereof, Except as expressly permitted by the preceding sentence,
Grantor will to deliver to Lender immediately upon receipt, in the exact form
received and without commingling with other property, all Income and Proceeds
from the Collateral that may be received by, paid, or delivered to Grantor or
for Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
Application of Cash. Except as
expressly permitted under clause (2) of the 'Income and Proceeds from the
Collateral' subsection above, at Lender's option, Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds or through
liquidation, sale, or retirement, of the Collateral, to the satisfaction of the
Indebtedness or such portion thereof as Lender shall choose, whether or not
matured.
Transactions with Others.
Lender may (1) extend time for payment or other performance, (2) grant a
renewal or change In terms or conditions, or (3) compromise, compound or release
any obligation, with any one or more Obligors, endorsers, or Guarantors of the
Indebtedness as Lender
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(Continued)
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deems
advisable, without obtaining the prior written consent of Grantor, and no such
act or failure to act shall affect Lenders rights against Grantor or the
Collateral.
All Collateral
Secures Indebtedness. All Collateral shall be security for the
indebtedness, whether the Collateral is located at one or more offices or
branches of Lender. This will be the case whether or not the office or branch
where Grantor obtained Grantor's loan knows about the Collateral or relies upon
the Collateral as security.
Collection
of Collateral. Lender at Lender's option may, but need not, collect the
Income and Proceeds directly from the Obligors. Grantor authorizes and directs
the Obligors, if Lender decides to collect the Income and Proceeds, to pay and
deliver to Lender all Income and Proceeds from the Collateral and to accept
Lender's receipt for the payments.
Power
of Attorney. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (1) to demand, collect,
receive, receipt for, xxx and recover all Income and Proceeds and other sums of
money and other property which may now or hereafter become due, owing or payable
from the Obligors in accordance with the terms of the Collateral; (2) to
execute, sign and endorse any and all instruments, receipts, checks, drafts and
warrants issued in payment for the Collateral; (3) to settle or compromise any
and all claims arising under the Collateral, and in the place and stead of
Grantor, execute and deliver Grantor's release and acquittance for Grantor;
(4)
to file any claim or claims or to take any action or institute or take
part in any proceedings, either in Lender's own name or In the name of Grantor,
or otherwise, which in the discretion of Lender may seem to be necessary or
advisable, and (5) to execute in Grantor's name and to deliver to the Obligors
on Grantor's behalf, at the time and in the manner specified by the Collateral,
any necessary instruments or documents.
Perfection
of Security Interest. Upon Lender's request, Grantor will deliver to
Lender any and all of the documents evidencing or constituting the Collateral.
When applicable law provides more than one method of perfection of Lender's
security interest, Lender may choose the method(s) to be used. Upon Lender's
request, Grantor will sign and deliver any writings necessary to perfect
Lender's security interest. If any of the Collateral consists of securities or
other investment property for which no certificate has been issued, Grantor
agrees, at Lender's option, either to request issuance of an appropriate
certificate or to execute appropriate instructions on Lender's forms instructing
the issuer, transfer agent, mutual fund company, or broker, as the case may be,
to record on its books or records, by book-entry or otherwise, Lender's security
interest in the Collateral. Grantor hereby appoints Lender as Grantor's
Irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect, amend, or to continue the security interest granted in
this Agreement or to demand termination of filings of other secured parties.
Grantor also will execute any additional documents, including a control
agreement or blank stock or bond powers, necessary to perfect Lender's security
interest as Lender may desire.
LENDER'S
EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
Borrower's failure to discharge or pay when due any amounts Borrower is required
to discharge or pay under this Agreement or any Related Documents, Lender on
Borrower's behalf may (but shall not be obligated to) take any action that
Lender deems appropriate, including discharging or paying all taxes, liens,
security interests, encumbrances and other claims, at any time levied or placed
on any Collateral and paying all costs for insuring, maintaining and preserving
any Collateral. All such expenditures Incurred or paid by Lender for such
purposes will then bear interest at the rate charged under the Note from the
date incurred or paid by Lender to the date of repayment by Borrower. All such
expenses will become a part of the Indebtedness and, at Lender's option, will
(A) be payable on demand; (B) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (1) the term of any applicable insurance policy; or (2) the
remaining term of the Note; or (C) be treated as a balloon payment that will be
due and payable at the Note's maturity.
LIMITATIONS
ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care in
the physical preservation and custody of the Collateral in Lender's possession,
but shall have no other obligation to protect the Collateral or its value. In
particular, but without limitation, Lender shall have no responsibility for (A)
any depreciation in value of the Collateral or for the collection or protection
of any Income and Proceeds from the Collateral; (B) preservation of rights
against parties to the Collateral or against third persons; (C) ascertaining any
maturities, calls, conversions, exchanges, offers, tenders, or similar matters
relating to any of the Collateral; or (0) informing Grantor about any of the
above, whether or not Lender has or is deemed to have knowledge of such matters.
Except as provided above, Lender shall have no liability for depreciation or
deterioration of the Collateral.
DEFAULT.
Each of the following shall constitute an event of default (an "Event of
Default') under this Agreement:
Payment
Default. Grantor fails to make any payment when due under the
Indebtedness.
Other
Defaults. Grantor fails to comply with or to perform, or defaults under
or breaches, any other term, obligation, covenant, or condition contained in
this Agreement, in the Loan Agreement, or in any of the other Related Documents,
or fails to comply with or to perform, or defaults under or breaches, any term,
obligation, covenant or condition contained in any other agreement between
Lender and Grantor.
Cure
Provisions. If any default, other than a default in payment, is curable
and if Grantor has not been given a notice of a similar default within the
preceding twelve (12) months, such default may be cured if Grantor, after
receiving written notice from Lender demanding cure of such default (1) cures
such default within thirty (30) days; or (2) if the cure of such default
requires more than thirty (30) days, immediately initiates steps that Lender
deems in Lender's sole discretion to be sufficient to cure such default and
thereafter diligently continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
RIGHTS
AND REMEDIES ON DEFAULT. If an Event of Default, at any time thereafter,
Lender may exercise any one or more of the following rights and
remedies:
Accelerate
Indebtedness. Declare all indebtedness, including any prepayment penalty
which Grantor would be required to pay, immediately due and payable, without
notice of any kind to Grantor.
Collect
the Collateral. Collect any of the Collateral and, at Lender's option and
to the extent permitted by applicable law, retain possession of the Collateral
while suing on the Indebtedness.
Sell
the Collateral. Sell the Collateral, at Lender's discretion, as a unit or
in parcels, at one or more public or private sales. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Lender shall give or mail to Grantor, and other
persons as required by law, notice at least ten (10) days in advance of the time
and place of any public sale, or of the time after which any private sale may be
made. However, no notice need be provided to any person who, after an Event of
Default occurs, enters into and authenticates an agreement waiving that person's
right to notification of sale. Grantor agrees that any requirement of reasonable
notice as to Grantor is satisfied if Lender mails notice by ordinary mail
addressed to Grantor at the last address Grantor has given Lender in writing. If
a public
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sale is
held, there shall be sufficient compliance with all requirements of notice to
the public by a single publication in any newspaper of general circulation in
the county where the Collateral is located, setting forth the time and place of
sale and a brief description of the property to be sold. Lender may be a
purchaser at any public sale.
Sell
Securities. Sell any securities included in the Collateral in a manner
consistent with applicable federal and state securities laws. If, because of
restrictions under such laws, Lender is unable, or believes Lender is unable, to
sell the securities in an open market transaction, Grantor agrees that Lender
will have no obligation to delay sale until the securities can be registered.
Then Lender may make a private sale to one or more persons or to a restricted
group of persons, even though such sale may result in a price that is less
favorable than might be obtained in an open market transaction. Such a sale will
be considered commercially reasonable. If any securities held as Collateral are
'restricted securities' as defined in the Rules of the Securities and Exchange
Commission (such as Regulation D or Rule 144)
or the rules of state securities departments under state "Blue Sky" laws,
or if Grantor or any other owner of the Collateral is an affiliate of the issuer
of the securities, Grantor agrees that neither Grantor, nor any member of
Grantor's family, nor any other person signing this Agreement will sell or
dispose of any securities of such issuer without obtaining Lender's prior
written consent.
Rights
and Remedies with Respect to Investment Property, Financial Assets and Related
Collateral. In addition to other rights and remedies granted under this
Agreement and under applicable law, Lender may exercise any or all of the
following rights and remedies: (1) register with any issuer or broker or other
securities intermediary any of the Collateral consisting of investment property
or financial assets (collectively herein, Investment property") in Lender's sole
name or in the name of Lender's broker, agent or nominee; (2) cause any issuer,
broker or other securities intermediary to deliver to Lender any of the
Collateral consisting of securities, or investment property capable of being
delivered; (3) enter Into a control agreement or power of attomey with any
issuer or securities intermediary with respect to any Collateral consisting of
investment property, on such terms as Lender may deem appropriate, in its sole
discretion, including without limitation, an agreement granting to Lender any of
the rights provided hereunder without further notice to or consent by Grantor,
(4) execute any such control agreement on Grantor's behalf and in Grantor's
name, and hereby irrevocably appoints Lender as agent and attorney-in-fact,
coupled with
an interest, for the purpose of executing such control agreement on
Grantor's behalf; (5) exercise any and all rights of Lender under any such
control agreement or power of attorney; (6) exercise any voting, conversion,
registration, purchase, option, or other rights with respect to any Collateral;
(7) collect, with or without legal action, and issue receipts concerning any
notes, checks, drafts, remittances or distributions that are paid or payable
with respect to any Collateral consisting of investment property. Any control
agreement entered with respect to any investment property shall contain the
following provisions, at Lender's discretion, Lender shall be authorized to
instruct the issuer, broker or other securities intermediary to take or to
refrain from taking such actions with respect to the investment property as
Lender may instruct, without further notice to or consent by Grantor. Such
actions may include without limitation the issuance of entitlement orders,
account instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled to
instruct the issuer, broker or securities intermediary to sell or to liquidate
any investment property, or to pay the cash surrender or account termination
value with respect to any and all investment property, and to deliver all such
payments and liquidation proceeds to Lender. Any such control agreement shall
contain such authorizations as are necessary to place Lender in "control" of
such investment collateral, as contemplated under the provisions of the Uniform
Commercial Code, and shall fully authorize Lender to issue "entitlement orders"
concerning the transfer, redemption, liquidation or disposition of investment
collateral, In conformance with the provisions of the Uniform Commercial
Code.
Foreclosure.
Maintain a judicial suit for foreclosure and sale of the
Collateral.
Transfer
Title. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact to execute endorsements, assignments and instruments in the
name of Grantor and each of them (if more than one) as shall be necessary or
reasonable.
Other
Rights and Remedies. Have and exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform Commercial
Code, at law, in equity, or otherwise.
Application
of Proceeds. Apply any cash which is part of the Collateral, or which is
received from the collection or sale of the Collateral, to reimbursement of any
expenses, including any costs for registration of securities, commissions
Incurred in connection with a sale, attorneys' fees and court costs, whether or
not there is a lawsuit and including any fees on appeal, incurred by Lender in
connection with the collection and sale of such Collateral and to the payment of
the Indebtedness of Grantor to Lender, with any excess funds to be paid to
Grantor as the interests of Grantor may appear. Grantor agrees, to the extent
permitted by law, to pay any deficiency after application of the proceeds of the
Collateral to the Indebtedness.
Election
of Remedies. Except as may be prohibited by applicable law, all of
Lender's rights and remedies, whether evidenced by this Agreement, the Related
Documents, or by any other writing, shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Grantor under this Agreement, after
Grantor's failure to perform, shall not affect Lender's right to declare a
default and exercise its remedies.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part of this
Agreement:
Applicability
of Certain Provisions of Loan Agreement_ Various provisions of the Loan
Agreement apply to and govern this Agreement, including the "Right of Setoff,
"Amendments", "Arbitration", "Attorneys' Fees and Lender's Expenses", "Governing
Law", 'Choice of Venue", 'No Waiver by Lender, 'Notices", "Severability,
"Successors and Assigns", and "Time Is of the Essence"
sections or subsections thereof, all as more specifically set forth
therein.
Preference
Payments. Any monies Lender pays because of an asserted preference claim
in Grantor's bankruptcy will become a part of the Indebtedness and, at Lender's
option, shall be payable by Grantor as provided in this Agreement.
Waiver
of Co-Obligor's Rights. If more than one person is obligated for the
Indebtedness, Grantor irrevocably waives, disclaims and relinquishes all claims
against such other person which Grantor has or would otherwise have by virtue of
payment of the Indebtedness or any pad thereof, specifically including but not
limited to all rights of indemnity, contribution or exoneration,
DEFINITIONS,
The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used In the singular shall include
the plural, and the plural shall include the singular, as the context may
require. "Including' and the like are not limiting; and "or is not exclusive,
Words and terms not otherwise defined in this Agreement shall have the meanings
attributed to such terms in the Uniform Commercial Code:
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(Continued)
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Agreement The word 'Agreement"
means this Commercial Pledge Agreement, as this Commercial Pledge Agreement may
be amended or modified from time to time, together with all exhibits and
schedules attached to this Commercial Pledge Agreement from time to
time.
Banks. The word "Banks" means
(i) until Spectrum has been merged with and into Professional, Spectrum and
Professional; and (ii) thereafter, Professional. For the avoidance of doubt,
after such merger, references herein to each of the Banks', "each Bank", and the
like shall be deemed to mean Professional alone.
Borrower. The word "Borrower'
means BELVEDERE SOCAL, a California corporation, and includes all co-signers and
co-makers signing the Note and all their successors and assigns.
Collateral. The word "Collateral" means all of
Grantors right, title and interest in and to all the Collateral as described in
the "Collateral Description' section above.
Event of Default. The words
"Event of Default" mean any of the events of default set forth In the "Default"
section above. Grantor.
The word "Grantor' means Borrower.
Guaranty. The word "Guaranty"
means the guaranty from a guarantor, endorser, surety, or accommodation party to
Lender, including a guaranty of all or part of the Note.
Income and Proceeds. The words
"Income and Proceeds' mean all present and future income, proceeds, earnings,
increases, and substitutions from or for the Collateral of every kind and
nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends,
stock splits, stock rights, regulatory dividends, subscriptions, monies, claims
for money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value Issued
in substitution or exchange for shares included in the Collateral, and all other
property Grantor is entitled to receive on account of such Collateral, including
accounts, documents, instruments, chattel paper, and general
intangibles.
Indebtedness. The word
indebtedness' means the indebtedness evidenced by the Note or Related Documents,
including all principal and interest together with alt other indebtedness and
costs and expenses for which Grantor is responsible under this Agreement or
under any of the Related Documents.
Lender. The word "Lender"
means PACIFIC COAST BANKERS' BANK, its successors and assigns.
Loan Agreement. The words
'Loan Agreement" mean the certain Business Loan Agreement of even date herewith
made by Borrower and Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions for such
loan agreement.
Note. The word "Note" means
the Note executed by Borrower of even date herewith in the principal amount of
$8,000,000.00 to the order of Lender, together with all renewals of, extensions
of, modifications of refinancings of, consolidations of, and substitutions for
such note.
Obligor. The word "Obligor"
means without limitation any and all persons obligated to pay money or to
perform some other act under the Collateral.
Professional. The word
"Professional' means Professional Business Bank, a California banking
corporation.
Related Documents. The words
'Related Documents' mean all promissory notes, credit agreements, loan
agreements, environmental agreements, security agreements, mortgages, deeds of
trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in
connection with the Indebtedness.
Spectrum. The word "Spectrum"
means Spectrum Bank, a California banking corporation,
GRANTOR
HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE AGREEMENT
AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MARCH 18,
2008.
BORROWER:
California
corporation
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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By:
/s/ Xxxxxxx
XxXxxx
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Xxxxxxx
Xxxxxxxxx, Chief Executive Officer
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Xxxxxxx
XxXxxx, Chief Financial Officer
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