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