PLEDGE AGREEMENT (the "Pledge Agreement"), entered into as June 29, 2001,
by and between EASY FLYING S.A., a France corporation, 0 Xxx Xxxxxx Xxxxx,
Xxxxxxxx Xxxxxxx 00000 Xxxxxxx, Xxxxxx (the "Pledgor"), and NAVTECH, INC., a
Delaware corporation, c/o Navtech Systems Support Inc., 000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (the "Pledgee").
W I T N E S S E T H:
WHEREAS, concurrently herewith, the Pledgor is borrowing USD $200,000 from
the Pledgee (the "Loan") and has executed and delivered to the Pledgee a
promissory note in the principal amount of the Loan (the "Promissory Note").
WHEREAS, the Pledgor has agreed to pledge 100,000 shares of Common Stock of
the Pledgee (the "Pledged Shares") to the Pledgee to secure performance by the
Pledgor of its obligations under the Promissory Note (the "Obligations").
NOW, THEREFORE, the parties hereto agree as follows:
1. Pledge and Grant of a Security Interest. The Pledgor hereby pledges to
the Pledgee, and grants to the Pledgee a security interest in, all of its right,
title and interest in and to the Pledged Shares, as security for the
Obligations. The Pledgor has delivered simultaneously herewith to the Pledgee,
and the Pledgee hereby acknowledge receipt of, certificates evidencing the
Pledged Shares registered in the name of the Pledgor (the "Pledged
Certificates"), accompanied by (a) appropriate stock powers, in the form
attached hereto as Exhibit A, endorsed by the Pledgor with signatures medallion
guaranteed (the "Stock Powers") and (b) and a corporate resolution of the
Pledgor with respect to the transfer of the Pledged Shares, with signatures
medallion guaranteed. So long as any of the Obligations remain unsatisfied, the
Pledged Shares shall be held by and in the custody of the Pledgee, subject to
and in accordance with the terms and provisions hereof.
2. Representations and Warranties of the Pledgor. The Pledgor represents
and warrants as follows:
(a) No consents of governmental and other regulatory agencies, foreign
or domestic, or of other parties are required to be received by or on the part
of the Pledgor to enable it to enter into and perform the Note and this Pledge
Agreement and the transactions contemplated thereby and hereby.
(b) The Pledgor has the power to enter into the Note and this Pledge
Agreement and to carry out its obligations thereunder and hereunder. The Note
and this Pledge Agreement have been duly authorized by all necessary action on
the part of the Pledgor and constitute the valid and binding obligations of the
Pledgor, enforceable in accordance with their respective terms.
(c) The Pledged Shares are free and clear of any and all security
interests, liens, claims, pledges, hypothecations and other encumbrances of any
kind whatsoever (collectively, "Liens") and are duly and validly pledged to the
Pledgee in accordance with applicable law.
(d) Neither the execution and delivery of the Note or this Pledge
Agreement nor compliance by the Pledgor with any of the provisions thereof or
hereof nor the consummation of the transactions contemplated thereby or hereby,
will:
(i) violate or conflict with any provisions of the Certificate of
Incorporation or By-laws or other organizational documents of the
Pledgor;
(ii) violate or, alone or with notice or the passage of time,
result in the breach or termination of, or otherwise give any
contracting party the right to terminate, or declare a default under,
the terms of any agreement, understanding or arrangement to which the
Pledgor is a party or by which any of its assets or properties may be
bound;
(iii) violate or conflict with any order, decree, judgment,
injunction or award against, or binding upon, the Pledgor or any of
its assets; or
(iv) violate or conflict with any law or regulation relating to
the Pledgor.
3. Covenants.
(a) The Pledgor will defend the Pledgee's security interest in the
Pledged Shares against the claims of any person, firm, corporation or other
entity.
(b) So long as any of the Obligations remain unsatisfied, (i) the
Pledgor will not sell, assign, transfer, dispose of, pledge or encumber in any
manner any of the Pledged Shares, or agree or attempt to do so, or suffer to
exist any Lien on the Pledged Shares, except the lien of this pledge and (ii)
the Pledgor shall, upon request of the Pledgee, furnish to the Pledgee such
stock powers, instruments of assignment and other instruments as may be required
by the Pledgee in order to permit or effect transfer of the Pledged Shares in
accordance with the terms of this Pledge Agreement.
4. Events of Default. An Event of Default under the Note or other event
pursuant to which any of the Obligations shall become due and payable shall
constitute an event of default ("Event of Default") by the Pledgor hereunder.
5. Rights of the Pledgor. Unless and until an Event of Default shall have
occurred:
(a) The Pledgor shall be entitled to exercise all voting powers
pertaining to the Pledged Shares.
(b) The Pledgor shall be entitled to receive and retain all dividends
and distributions (other than liquidating or extraordinary distributions) on the
Pledged Shares. Liquidating and/or extraordinary distributions shall be paid
directly to and shall be held by the Pledgee as additional collateral pledged
under and subject to the terms of this Pledge Agreement.
6. Rights of the Pledgee upon Default. If an Event of Default shall occur,
the Pledgor agrees to the following:
(a) The Pledgee shall have the right to immediately re-register the
Pledged Shares in such names as the Pledgee shall determine.
(b) All dividends and other distributions of every character made upon
or in respect of the Pledged Shares or any part thereof shall be paid directly
to and shall be held by the Pledgee as additional collateral pledged under and
subject to the terms of this Pledge Agreement.
7. Remedies of the Pledgee upon Default. In the event of an Event of
Default, the Pledgee shall have all of the rights and remedies afforded to
secured parties with respect to the Pledged Shares as set forth in the Uniform
Commercial Code from time to time in effect in the State of New York (the
"Code"), as well as all other rights and remedies granted in this Pledge
Agreement. The Pledgee shall have the right upon any public sale or sales, and,
to the extent permitted by law, upon any private sale or sales, to purchase the
whole or any part of the Pledged Shares so sold. The Pledgee shall apply any
proceeds from time to time held by it and the net proceeds of any sale or other
disposition, after deducting all reasonable costs and expenses of every kind
incurred in respect thereof or incidental to the care or safekeeping of any of
the Pledged Shares or in any way relating to the Pledged Shares or the rights of
the Pledgee hereunder including, without limitation, reasonable attorneys' fees
and disbursements of counsel to the Pledgee (provided that such costs, expenses,
and fees do not exceed a total amount of US$ 10,000), to the satisfaction in
whole or in part of the Obligations, in such order as the Pledgee may determine;
and only after such application and after the payment by the Pledgee of any
other amount required by any provision of law, including, without limitation,
Section 9-504 (1)(c) of the Code, need the Pledgee account for the surplus, if
any, to the Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the Pledgee
arising out of the lawful exercise by it of any rights hereunder. Neither the
Pledgee nor any of its successors or assigns shall be liable for failure to sell
or otherwise dispose of the Pledged Shares or for any delay in doing so. If any
notice of a proposed sale or other disposition of the Pledged Shares shall be
required by law, such notice shall be deemed reasonable and proper if given at
least ten (10) days before such sale or other disposition. The Pledgor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Pledged Shares are insufficient to pay all of the
Obligations.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of any or all the Pledged Shares by reason of certain restrictions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner.
The Pledgor agrees to use its best efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any
portion of the Pledged Shares pursuant to this section valid and binding and in
compliance with any and all other applicable requirements of law.
8. Termination of Agreement. Upon (i) the Pledgor's satisfaction of the
Obligations in full (at which time the Pledgee shall deliver the Pledged
Certificates and the Stock Powers to the Pledgor), or (ii) the conclusion of the
actions contemplated by Section 7 hereof, this Pledge Agreement shall terminate.
9. Miscellaneous.
(a) This Pledge Agreement constitutes the entire agreement between the
parties pertaining to the subject matter hereof, and supersedes all prior
agreements or understandings as to such subject matter.
(b) No waiver of any of the provisions of this Pledge Agreement shall
be deemed, or shall constitute, a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
(c) No amendment or modification of this Pledge Agreement shall be
valid unless made in writing and signed by the person(s) to be charged
therewith.
(d) This Pledge Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(e) This Pledge Agreement shall be construed and interpreted and the
rights granted herein governed in accordance with the laws of the state of New
York, without giving effect to conflict of laws principles.
(f) Each of the parties to this Pledge Agreement agrees to execute and
deliver any and all additional papers, documents and other assurances, and shall
perform any and all acts and things, reasonably necessary to effectuate the
purposes and intents of this Pledge Agreement.
(g) This Pledge Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
(h) All notices or other communications or deliveries required or
permitted hereunder shall be sufficiently given if delivered by hand, or sent by
certified mail (return receipt requested, postage prepaid), facsimile
transmission or overnight mail or courier, addressed as follows:
If to the Pledgor, at:
0 Xxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxxxx
00000 Xxxxxxx, Xxxxxx
Telecopier Number: 000 00 (0) 000 000 000
With a copy to:
Foucaud, Tchekhoff, Pochet & Associes
0xxx xxxxxx Xxxx
00000 Xxxxx - Xxxxxx
Telecopier Number: 33 1 45 00 08 19
Attention: Antoine Tchekhoff
If to the Pledgee, at:
c/o Navtech Systems Support Inc.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telecopier Number: (000) 000-0000
With a copy to:
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopier Number: (000) 000-0000
or at such other address as any party or person shall designate by notice to the
other parties in accordance with the provisions hereof.
(i) In the event that the Pledged Shares or any portion thereof are
released to the Pledgor and any payments or proceeds of any security for the
Obligations, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal or other
law, common law or equitable cause, then the Pledgor shall redeliver the Pledged
Shares and the Stock Powers to the Pledgee and, until so redelivered, shall hold
the Pledged Shares and the Stock Powers as agent of, and in trust for, the
Pledgee.
(j) If any provision hereof is declared to be invalid and
unenforceable, then, to the fullest extent permitted by law, the other
provisions hereof shall remain in full force and effect and shall be liberally
construed in favor of the Pledgee in order to carry out the intentions of the
parties hereto as nearly as may be possible.
(k) The Pledgor hereby agrees that the courts of the State of New York
and of the United States of America for the Eastern and Southern Districts of
New York shall have exclusive jurisdiction over any matter relating to this
Pledge Agreement and the venue for any court or other proceeding shall be Nassau
County, New York or New York County, New York. The Pledgor hereby expressly
submits to the personal jurisdiction and venue of such courts for the purposes
thereof and expressly waives any claim of improper venue and any claim that such
courts are an inconvenient forum.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
date first above written.
Pledgor:
EASY FLYING S.A.
By:/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
Pledgee:
NAVTECH, INC.
By:/s/ Dunacan Macdonal
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Name of Authorized Representative
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Title of Authorized Representative
