EXHIBIT 10.7
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of December 9, 2004,
is made by EASYLINK SERVICES USA, INC., a Delaware corporation ("Pledgor"), in
favor of XXXXX FARGO FOOTHILL, INC., a California corporation (together with its
successors and assigns, the "Pledgee").
RECITALS:
A. Pledgor is the shareholder of the entity listed on Annex A attached
hereto and made a part hereof (the "Issuer").
B. Pledgor and certain of its Affiliates (each a "Borrower" and
collectively, the "Borrowers") is a party with the Pledgee, to that certain
Credit Agreement of even date herewith (as the same may be amended, supplemented
or modified from time to time, the "Credit Agreement"), pursuant to which the
Pledgor has requested that the Pledgee make certain loans to the Pledgor;
capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Credit Agreement.
C. It is a condition precedent to the making of the loans under and
pursuant to the Credit Agreement that the Pledgor execute and deliver this
Agreement and shall have made the pledge contemplated hereunder in favor of the
Pledgee for the benefit of the Pledgee and the Bank Product Providers.
NOW, THEREFORE, in consideration of the premises hereinabove, and to
induce the Pledgee to make the loans identified hereinabove pursuant to the
Credit Agreement and in consideration of the benefits accruing to the Pledgor,
and for other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Pledgor hereby covenants and
agrees with the Pledgee for the benefit of the Pledgee and the Bank Product
Providers as follows:
1. INCORPORATION OF CREDIT AGREEMENT; SECURITY FOR OBLIGATIONS. The
Credit Agreement and the terms and provisions thereof are hereby incorporated
herein in their entirety by this reference thereto. All terms capitalized but
not otherwise defined herein shall have the same meanings herein as in the
Credit Agreement. This Agreement is for the benefit of the Pledgee and the Bank
Product Providers to secure the prompt and complete payment and performance when
due of all indebtedness, liabilities, obligations (including the Obligations),
or undertakings owing by the Borrowers to the Pledgee or any Bank Product
Provider, of any kind or description arising out of or outstanding under,
advanced or issued pursuant to, or evidenced by the Credit Agreement, this
Agreement, or any of the other Loan Documents, irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, voluntary or involuntary, whether now existing or hereafter arising,
and including all interest, costs, indemnities, fees (including attorneys' fees)
and expenses (including interest, costs, indemnities, fees and expenses that,
but for the provisions of the Bankruptcy Code, would have accrued irrespective
of whether a claim therefore is allowed) and any and all other amounts which any
Borrower is required to pay pursuant to any of the foregoing, by law, or
otherwise owing by a Borrower to the Pledgee and/or the Bank Product Providers,
including, without limitation, the "Obligations," as defined in the Credit
Agreement (collectively, the "Obligations") (all of the foregoing being herein
collectively called the "Secured Obligations").
2. DEFINITION OF PLEDGED COLLATERAL. As used herein, the term "Pledged
Collateral" shall mean the securities and investment property described on Annex
A attached hereto and made a part hereof, and any additional Pledged Collateral
acquired pursuant to Section 3.2 below which Annex A may be supplemented from
time to time pursuant to Section 3.2 below. The Pledgor represents and warrants
to the Pledgee for the benefit of the Pledgee and the Bank Product Providers
that on the date hereof (a) Annex A attached hereto correctly identifies the
Pledged Collateral owned by Pledgor with respect to each of the Issuer; and (b)
the Pledgor is the holder of record and sole beneficial and legal owner of such
Pledged Collateral.
3. PLEDGE OF PLEDGED COLLATERAL AND OTHER COLLATERAL.
3.1 Pledge. To secure the Secured Obligations and for the purposes set
forth in Section 1 hereof, Pledgor hereby pledges, collaterally assigns and
conveys, and grants a security interest in and lien on, in favor of Pledgee for
the benefit of the Pledgee and the Bank Product Providers, all of Pledgor's
right, title and interest in, to, and under (A) the Pledged Collateral, (B) any
additional Pledged Collateral acquired pursuant to Section 3.2 below (whether by
purchase, dividend, merger, consolidation, sale of assets, split, spin-off, or
any other dividend or distribution of any kind or otherwise), (C) all
distributions, dividends, cash, certificates, liquidation rights and interests,
options, rights, warrants, instruments or other property from time to time
received, receivable or otherwise distributed in respect of or in exchange or
substitution for any and all of the Pledged Collateral, (D) the Pledgor's right
to vote the Pledged Collateral, and (E) all proceeds, products, replacements and
substitutions for any of the foregoing, in each case whether now owned or
hereafter acquired by the Pledgor (collectively, the "Collateral"). If the
Pledged Collateral is evidenced by certificates, then the Pledgor shall
concurrently herewith deposit with the Pledgee, the Pledged Collateral owned by
the Pledgor on the date hereof and the certificates representing the Pledge
Collateral accompanied by "stock powers" or an Assignment Separate From
Certificate duly executed in blank by the Pledgor. Whether or not the Pledged
Collateral is evidenced by certificates, the Pledgor hereby permits the Pledgee
to file a UCC Financing Statement naming the Pledgor as debtor and the Pledgee
as secured party with respect to the Pledged Collateral with the Delaware
Secretary of State, in form and substance satisfactory to the Pledgee in its
sole and absolute determination, and without the requirement of the Pledgor's
signature. Notwithstanding anything to the contrary contained in this Agreement,
the Pledgee shall not as a result of this Agreement be responsible or liable for
any obligations or liabilities of the Pledgor in the Pledgor's capacity as a
shareholder, if any, and the Pledgee shall not be deemed to have assumed any of
such obligations or liabilities.
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3.2 Subsequently Acquired Pledged Collateral. If at any time or from
time to time after the date hereof during the term of this Agreement, the
Pledgor shall acquire any additional Pledged Collateral, including any further
stock or equity in each of the Issuer (whether by purchase, dividend, merger,
consolidation, sale of assets, split, spin-off, or any other dividend or
distribution of any kind or otherwise), then the Pledgor will forthwith pledge
and, if applicable, deposit such additional Pledged Collateral with the Pledgee
and deliver to the Pledgee certificates or instruments therefor, endorsed in
blank by the Pledgor or accompanied by "stock powers" or an Assignment Separate
From Certificate duly executed in blank by the Pledgor, and will promptly
thereafter deliver to the Pledgee a certificate (which shall be deemed to
supplement Annex A attached hereto) executed by the Pledgor describing such
Pledged Collateral and the other Pledged Collateral pledged to the Pledgee, and
certifying that the same have been duly pledged with the Pledgee hereunder.
Whether or not such additional Pledged Collateral is evidenced by certificates,
the Pledgor shall permit the Pledgee to file a UCC Financing Statement naming
the Pledgor as debtor and the Pledgee as secured party with respect to the
additional Collateral with the Delaware Secretary of State, in form and
substance satisfactory to the Pledgee in its sole and absolute determination,
and without the requirement of the Pledgor's signature.
3.3 Uncertificated Pledged Collateral. In addition to anything
contained in Sections 3.1 and 3.2 hereof, if any Pledged Collateral (whether now
owned or hereafter acquired) is not certificated or becomes an uncertificated
security, the Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required to perfect the security interest and pledge
in favor of the Pledgee under applicable law (including, in any event, any
action required or appropriate under this Agreement or the Uniform Commercial
Code of the State of New York or equivalent provisions of any other applicable
jurisdiction (the "UCC")). The Pledgor further agrees to take such actions as
the Pledgee deems necessary or desirable to effectuate the foregoing and to
permit the Pledgee to exercise any of its rights and remedies hereunder.
4. VOTING, ETC. Unless and until an Event of Default (as defined in the
Credit Agreement) occurs and is continuing, the Pledgor shall be entitled to
vote any and all of the Pledged Collateral; provided, however, that no vote
shall be cast or any action taken by Pledgor which would violate or be
inconsistent with any of the terms of this Agreement, the Credit Agreement, any
other Loan Document or any other instrument or agreement relating to the Secured
Obligations, or which would have the effect of impairing the position or
interests of the Pledgee or which would authorize or effect actions prohibited
under the terms of the Credit Agreement or any Loan Document. All such rights of
the Pledgor to vote shall cease upon the occurrence of an Event of Default, if
the Pledgee so directs and notifies the Pledgor.
5. PAYMENTS AND OTHER DISTRIBUTIONS. Unless and until an Event of
Default (as defined in the Credit Agreement) shall occur and be continuing, all
cash dividends or distributions payable in respect of the Pledged Collateral (to
the extent such payments shall be permitted pursuant to the terms and provisions
of the Credit Agreement) shall be paid to the Pledgor; provided, however, upon
an Event of Default, all cash dividends or distributions payable in respect of
the Pledged Collateral shall be paid to the Pledgee as security for the Secured
Obligations; provided, further, that all cash dividends and distributions
payable at any time (whether before or after an Event of Default) in respect of
the Pledged Collateral which are determined by Pledgee, in its sole discretion,
to represent in whole or in part an extraordinary, liquidating or other
distribution in return of capital shall be promptly paid and delivered to the
Pledgee and retained by the Pledgee as part of the Collateral. The Pledgee shall
be entitled to receive directly, and to retain as part of the Collateral:
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(a) all other or additional securities or investment property, or
rights to subscribe for or purchase any of the foregoing, or property (other
than cash) paid or distributed by way of dividend in respect of the Pledged
Collateral;
(b) all other or additional securities, investment property or property
(including cash) paid or distributed in respect of the Pledged Collateral by way
of split, spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(c) all other or additional securities, investment property or property
which may be paid in respect of the Collateral by reason of any consolidation,
merger, exchange, dividend, split, or distribution, conveyance of assets,
liquidation or similar reorganization or other disposition of Collateral (to the
extent any of the foregoing actions are permitted under the Credit Agreement).
If at any time the Pledgor shall obtain or possess any of the foregoing
Collateral described in this Section, the Pledgor shall be deemed to hold such
Collateral in trust for the Pledgee for the benefit of the Pledgee and the Bank
Product Providers, and the Pledgor shall promptly surrender and deliver such
Collateral to the Pledgee.
6. REMEDIES IN CASE OF AN EVENT OF DEFAULT. Upon the occurrence and
during the continuance of an Event of Default, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by this
Agreement, the Credit Agreement, any other Loan Documents, and/or in equity or
by law, and including, without limitation, all rights and remedies of a secured
party of a debtor in default under the UCC) for the protection and enforcement
of its rights in respect of the Collateral, and to the fullest extent permitted
by applicable law, the Pledgee shall be entitled, without limitation, to
exercise the following rights, which the Pledgor hereby agrees to be
commercially reasonable:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 5 hereof to the Pledgor;
(b) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees for the benefit of the Pledgee and
the Bank Product Providers;
(c) to vote all or any part of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof;
(d) at any time or from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral in one or more
parcels, or any interest therein, at any public or private sale at any exchange,
broker's board or at any of the Pledgee's offices or elsewhere, without demand
of performance, advertisement or notice of intention to sell or of time or place
of sale or adjournment thereof or to redeem (all of which, except as may be
required by mandatory provisions of applicable law, are hereby expressly and
irrevocably waived by the Pledgor) for cash, on credit or for other property,
for immediate or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its absolute discretion
may determine. Pledgor agrees that to the extent that notice of sale shall be
required by law that at least ten (10) calendar days' notice to the Pledgor of
the time (which shall be during normal business hours) and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Pledgee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Pledgee may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and any such sale may, without further notice, be made
at the time and place to which it was so adjourned. Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any of marshalling the Collateral and any other
security for the Secured Obligations or otherwise. At any such sale, unless
prohibited by applicable law, the Pledgee may bid for and purchase all or any
part of the Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any of the Bank Product Providers shall be liable for
failure to collect or realize upon any or all of the Collateral or for any delay
in so doing nor shall the Pledgee nor any of the Bank Product Providers be under
any obligation to take any action whatsoever with regard thereto;
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(e) to settle, adjust, compromise and arrange all accounts,
controversies, questions, claims and demands whatsoever in relation to all or
any part of the Collateral;
(f) in respect of the Collateral, to execute all such contracts,
agreements, deeds, documents and instruments, to bring, defend and abandon all
such actions, suits and proceedings, and to take all actions in relation to all
or any part of the Collateral as the Pledgee in its absolute discretion may
determine;
(g) to appoint managers, sub-agents, officers and servants for any of
the purposes mentioned in the foregoing provisions of this Section and to
dismiss the same, all as the Pledgee in its absolute discretion may determine;
and
(h) generally, to take all such other action as the Pledgee in its
absolute discretion may determine as incidental or conducive to any of the
matters or powers mentioned in the foregoing provisions of this Section and
which the Pledgee may or can do lawfully and to use the name of the Pledgor for
the purposes aforesaid and in any proceedings arising therefrom.
7. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of the
Pledgee (for the benefit of the Pledgee and the Bank Product Providers) provided
for in this Agreement, the Credit Agreement, any Loan Document (as defined in
the Credit Agreement) or any other security agreement, mortgage, guaranty or now
or hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee (for the benefit of the
Pledgee and the Bank Product Providers) of any one or more of the rights, powers
or remedies provided for in this Agreement, the Credit Agreement, or any other
Loan Document or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
of all such other rights, powers or remedies, and no failure or delay on the
part of the Pledgee to exercise any such right, power or remedy shall operate as
a waiver thereof.
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8. APPLICATION OF PROCEEDS. Subject to any mandatory requirements of
applicable law and the terms of the Credit Agreement, all moneys collected by
the Pledgee (for the benefit of the Pledgee and the Bank Product Providers) upon
sale or other disposition of the Collateral, together with all other moneys
received by the Pledgee hereunder, shall be applied as follows:
(a) To the payment of any and all costs, expenses and fees (including,
without limitation, reasonable attorneys' fees and disbursements) incurred by
the Pledgee directly or indirectly in connection with such sale or other
disposition, the delivery or taking possession of the Collateral or the
collection of any such moneys;
(b) Next, to the payment of the Secured Obligations in accordance with
the Credit Agreement; and
(c) Any surplus then remaining shall be paid to the Pledgor.
9. INDEMNITY. Without duplication of any amounts payable under any
other similar indemnity provision set forth in the Credit Agreement or any other
Loan Documents, the Pledgor shall: (i) pay all out-of-pocket costs and expenses
of the Pledgee incurred in connection with the administration of and in
connection with the preservation of rights under, and enforcement of, and any
renegotiation or restructuring of this Agreement and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of counsel for the Pledgee); (ii) pay and hold the Pledgee and the
Bank Product Providers harmless from and against any and all present and future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to this
Agreement and save the Pledgee and the Bank Product Providers harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay any such taxes, charges or levies; and (iii) indemnify the
Pledgee and each of the Bank Product Providers, and each of their respective
officers, directors, shareholders, employees, representatives and agents from
and hold each of them harmless against any and all costs, losses, liabilities,
claims, obligations, suits, penalties, judgments, damages or expenses incurred
by or asserted against any of them (whether or not any of them is designated a
party thereto) arising out of or by reason of this Agreement or any transaction
contemplated hereby (including, without limitation, any investigation,
litigation or other proceeding related to this Agreement), including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding. If and
to the extent that the obligations of the Pledgor under this Section are
unenforceable for any reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. Notwithstanding anything in this Agreement to
the contrary, the Pledgor shall not be responsible to the Pledgee or any Bank
Product Provider for any costs, losses, damages, liabilities or expenses which
result from the gross negligence or willful misconduct on the part of such
Pledgee or any Bank Product Provider. The Pledgor's obligations under this
Section shall survive any termination of this Agreement.
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10. FURTHER ASSURANCES. Pledgor agrees that, at any time and from time
to time, the Pledgor will join with the Pledgee in executing and, at the
Pledgors' own expense, will file and refile under the UCC such financing
statements, continuation statements and other documents in such offices as the
Pledgee may deem necessary or appropriate and wherever required or permitted by
law in order to perfect and preserve the Pledgee's security interest in the
Collateral, and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of the Pledgor, and agrees to do such further acts and things and to
promptly execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may require or deem
advisable to carry into effect the purpose of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
11. REASONABLE CARE BY PLEDGEE. The Pledgee shall be deemed by the
Pledgor to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Pledgee accords its own similar property.
12. TRANSFER BY THE PLEDGOR. Except with respect to the Infocrossing
Stock Sale and as otherwise permitted hereunder and under the other Loan
Documents, the Pledgor shall not sell, transfer or otherwise dispose of, grant
any option with respect to, or pledge or otherwise encumber any of the
Collateral or any interest therein.
13. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. Pledgor hereby
represents and warrants to the Pledgee for the benefit of the Pledgee and the
Bank Product Providers, which representations and warranties shall survive the
execution and delivery of this Agreement, as follows:
13.1 Validity, Perfection and Priority. The pledge and security
interests in the Collateral granted to the Pledgee constitute valid and
continuing security interests in the Collateral. The security interests in the
Collateral granted to the Pledgee for the benefit of the Pledgee and the Bank
Product Providers hereunder constitute valid and perfected security interests
therein superior and prior to the rights or claims of any other person or entity
therein.
13.2 No Liens; Other Financing Statements.
(a) The Pledgor is the legal and beneficial owner of, and has good and
marketable title to, the Pledged Collateral.
(b) No financing statement or other evidence of lien covering or
purporting to cover any of the Collateral is on file in any public office.
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13.3 Pledged Collateral.
(a) The Pledged Collateral described in Annex A attached hereto is, and
all other Pledged Collateral in which the Pledgor shall hereafter xxxxx x xxxx
or security interest pursuant to Section 2 hereof will be, duly authorized,
validly issued, and fully paid, and, except for the pledge provided in Section
3.1 hereof in favor of Pledgee, none of such Pledged Collateral is or will be
subject to any legal or contractual restriction. The Pledged Collateral is, as
of the date hereof, and shall be at all times hereafter during the term of this
Agreement, freely transferable without restriction or limitation (except as
limited by the terms of this Agreement).
(b) The Pledged Collateral described in Annex A hereto constitutes all
of the issued and outstanding securities and investment property legally and
beneficially owned by the Pledgor on the date hereof in or relating to the
Issuer.
13.4 Power and Authority. The Pledgor has the power and authority to
pledge and assign all of the Collateral pursuant to this Agreement. The Pledgor
has executed and delivered this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of the Pledgor, enforceable against the
Pledgor in accordance with the terms herein, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the enforceability of agreements and by general principles of equity.
13.5 No Violation. Neither the execution, delivery or performance by
the Pledgor of this Agreement, nor compliance with the terms and provisions
hereof by the Pledgor nor the consummation of the transactions contemplated
hereby will conflict or be inconsistent with or result in any breach of, any of
the terms, covenants, conditions or provisions of, or constitute a default under
any agreement or other instrument to which Pledgor is a party.
13.6 Litigation. There are no actions, suits or proceedings pending or,
to the Pledgor's best knowledge, threatened against or involving Pledgor before
any court with respect to any of the transactions contemplated by this Agreement
or the ability of the Pledgor to perform any of the obligations of the Pledgor
hereunder.
13.7 State of Incorporation. The Pledgor's state of incorporation is
Delaware.
13.8 Continued Existence. Until any transfer of the Pledged Collateral
to any Person as permitted after an Event of Default in accordance with Section
6 hereof, the Issuer shall continue in existence.
14. COVENANTS OF THE PLEDGOR. Pledgor covenants and agrees with the
Pledgee that on and after the date hereof and until all of the Secured
Obligations shall have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms:
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14.1 Collateral. (a) The Pledgor will defend the Pledgee's right, title
and security interest in and to the Collateral against the claims and demands of
all Persons whomsoever; (b) the Pledgor will have good and marketable title to
and right to pledge any other property at any time hereafter constituting
Collateral and will likewise defend the right thereto and security interest
therein of the Pledgee; and (c) Pledgor will not without the advance written
consent of the Pledgee, with respect to any Collateral, enter into any
shareholder type agreements, voting agreements, voting trusts, trust deeds,
irrevocable proxies or any other similar agreements or instruments, which would
be inconsistent with the terms of this Agreement or adversely affect the
Pledgee's interest in any of the Collateral.
14.2 Right of Inspection. The Pledgee and its representatives shall
upon reasonable advance notice during normal business hours prior to a Default,
or at any time if a Default (as defined in the Credit Agreement) occurs or
exists, have full and free access to all the books, correspondence and records
of the Pledgor relating to the Collateral, if any, and the Pledgee and its
representatives may examine the same, take extracts therefrom and make
photocopies thereof.
14.3 Compliance with Laws. The Pledgor will comply in all material
respects with all requirements of law applicable to the Collateral or any part
thereof.
14.4 Payment of Obligations. Subject to Permitted Protests, the Pledgor
will pay promptly when due all taxes, assessments and governmental charges or
levies imposed upon the Collateral or in respect of any income or profits
therefrom, as well as all claims of any kind against or with respect to the
Collateral.
14.5 No Impairment. The Pledgor will not take or permit to be taken any
action which could impair the Pledgee's rights in the Collateral. The Pledgor
will not create, incur or permit to exist, will defend the Collateral against
and will take such other action as is necessary to remove, any lien or claim on
or to the Collateral, and will defend the right, title and interest of the
Pledgee in and to any of the Collateral against the claims and demands of all
Persons whomsoever.
14.6 Performance by Pledgee of Pledgor's Obligations; Reimbursement. If
the Pledgor fails to perform or comply with any of the agreements contained
herein, the Pledgee may, without notice to or consent by the Pledgor, perform or
comply or cause performance or compliance therewith, and the expenses of the
Pledgee incurred in connection with such performance or compliance shall be
payable by the Pledgor to the Pledgee on demand, and such reimbursement
obligation shall be secured hereby; provided, however, the Pledgee shall not be
under any obligation to take any such action.
14.7 Further Identification of Pledged Collateral. The Pledgor will
furnish to the Pledgee from time to time such reports in connection with the
Pledged Collateral as the Pledgee may reasonably request from time to time.
14.8 Continuous Perfection. The Pledgor will not change the Pledgor's
name, in any manner which might make any financing or continuation statement
filed hereunder seriously misleading within the meaning of any applicable
provision of Article 9 of the UCC) unless the Pledgor shall have given the
Pledgee at least fifteen (15) days prior written notice thereof and shall have
taken all action necessary or reasonably requested by the Pledgee to amend such
financing statement or continuation statement so that it is not seriously
misleading. The Pledgor will not change the Pledgor's state of organization
unless the Pledgor shall have given the Pledgee at least fifteen (15) days prior
written notice thereof and shall have taken such action as is necessary to cause
the security interest of the Pledgee in the Pledged Collateral to continue to be
perfected.
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14.9 Stay or Extension Laws. The Pledgor will not at any time claim,
take, insist upon or invoke the benefit or advantage of or from any law now or
hereafter in force providing for the valuation or appraisement of the Pledged
Collateral prior to any sale or sales thereof to be made pursuant to the
provisions hereof or pursuant to the decree, judgment, or order of any court of
competent jurisdiction; nor, after such sale or sales, claim or exercise any
right under any statute now or hereafter made or enacted by any state to redeem
the property so sold or any part thereof, and the Pledgor hereby expressly
waives, on behalf of the Pledgor and each and every person or entity claiming
by, through and under the Pledgor, all benefit and advantage of any such law or
laws, and covenants that the Pledgor will not invoke or utilize any such law or
laws or otherwise hinder, delay or impede the execution of any power, right or
remedy herein or hereby granted and delegated to the Pledgee, but will
authorize, allow and permit the execution of every such power, right or remedy
as though no such law or laws had been made or enacted.
14.10 Issuer's Records. The Pledgor shall cause the Issuer to make a
notation on its respective records indicating the interest granted hereby in
favor of the Pledgee.
15. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of the Pledgor
under this Agreement shall be absolute and unconditional in accordance with its
terms and shall remain in full force and effect (except as otherwise provided
herein under Section 19) without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (a) any change in the
time, place or manner of payment of, or in any other term of, all or any of the
Secured Obligations, any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of this Agreement, the Credit
Agreement or any other Loan Document (as defined in the Credit Agreement), or
any of the other documents, instruments or agreements relating to the Secured
Obligations or any other instrument or agreement referred to therein or any
assignment or transfer of any thereof; (b) any lack of validity or
enforceability of the Credit Agreement, or any other Loan Document (as defined
in the Credit Agreement), or any other documents, instruments or agreement
referred to therein or any assignment or transfer of any thereof; (c) any
furnishing of any additional security or collateral to the Pledgee, for the
benefit of the Pledgee and/or the Bank Product Providers; or its assignees or
any acceptance thereof or any release of any security by the Pledgee or its
assignees; (d) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; (e) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to the Pledgor or any other
Person, as applicable, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not the
Pledgor shall have notice or knowledge of any of the foregoing; (f) any
exchange, release or nonperfection of any other collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Secured Obligations; or (g) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, the
Pledgor.
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16. NOTICES, ETC. Except as otherwise expressly provided herein, any
notice required or desired to be served, given or delivered hereunder shall be
in the form and manner specified below, and shall be addressed to the party to
be notified at the address set forth in Section 11 of the Credit Agreement; or
to such other address as each party designates to the other by notice in the
manner herein prescribed. Notice shall be deemed given hereunder if (i)
delivered personally or otherwise actually received, (ii) sent by overnight
delivery service, (iii) mailed by first-class United States mail, postage
prepaid, registered or certified, with return receipt requested, or (iv) sent
via telecopy machine with a duplicate signed copy sent on the same day as
provided in clause (ii) above. Notice mailed as provided in clause (iii) above
shall be effective upon the expiration of three (3) days after its deposit in
the United States mail, and notice telecopied as provided in clause (iv) above
shall be effective upon delivery of such telecopy if the duplicate signed copy
is sent under clause (ii) above. Notice given in any other manner described in
this Section shall be effective upon receipt by the addressee thereof; provided,
however, that if any notice is tendered to an addressee and delivery thereof is
refused by such addressee, such notice shall be effective upon such tender
unless expressly set forth in such notice.
17. POWER OF ATTORNEY. Pledgor hereby absolutely and irrevocably
constitutes and appoints the Pledgee for the benefit of the Pledgee and the Bank
Product Providers as Pledgor's true and lawful agent and attorney-in-fact with
full power of substitution, in the name of Pledgor upon the occurrence and
during the continuance of an Event of Default (as defined in the Credit
Agreement): (a) to execute and do all such assurances, acts and things which the
Pledgor ought to do but has failed to do under the covenants and provisions
contained in this Agreement; (b) to take any and all such action as the Pledgee
or any of its sub-agents, nominees or attorneys may, in its or their sole and
absolute discretion, reasonably determine as necessary or advisable for the
purpose of maintaining, preserving or protecting the security constituted by
this Agreement or any of the rights, remedies, powers or privileges of the
Pledgee under this Agreement; and (c) generally, in the name of the Pledgor,
exercise all or any of the powers, authorities, and discretions conferred on or
reserved to the Pledgee by or pursuant to this Agreement, and (without prejudice
to the generality of any of the foregoing) to deliver or otherwise perfect any
deed, assurance, agreement, instrument or act as the Pledgee may deem proper in
or for the purpose of exercising any of such powers, authorities or discretions.
Pledgor hereby ratifies and confirms, and hereby agrees to ratify and confirm,
whatever lawful acts the Pledgee or any of the Pledgee's sub-agents or attorneys
shall do or purport to do in the exercise of the power of attorney granted to
the Pledgee pursuant to this Section, which power of attorney, being coupled
with an interest and given for security, is irrevocable.
18. MISCELLANEOUS. The Pledgor agrees with the Pledgee that each of the
obligations and liabilities of the Pledgor to the Pledgee under this Agreement
may be enforced against the Pledgor without the necessity of joining any other
Person (as defined in the Credit Agreement) as a party. This Agreement shall
create a continuing security interest in the Collateral and shall be binding
upon the heirs and legal beneficiaries, and permitted successors and assigns, of
the Pledgor, as applicable, and shall inure to the benefit of and be enforceable
by the Pledgee and its successors and assigns. Unless otherwise defined herein,
terms defined in the UCC as in effect in the State of New York are used herein
as therein defined. The headings and titles in this Agreement are for
convenience of reference only and shall not limit or define the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which shall constitute one instrument. If any
provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all parties hereto. The Pledgor shall
have no rights of subrogation as to any of the Pledged Collateral until full and
complete performance and payment of the Secured Obligations. A faxed signature
hereto shall be deemed to be as legally binding as a signed original.
-11-
19. TERMINATION; RECOVERY CLAIM. This Agreement shall terminate after
the Secured Obligations are indefeasibly paid in full and the Credit Agreement
is terminated in accordance with its terms. Notwithstanding the foregoing,
immediately prior to the Infocrossing Stock Sale, the Pledgee agrees to release
its pledge in that portion of the Pledged Collateral constituting the
Infocrossing Stock in order to permit the Pledgor to consummate such transaction
subject in all respects to the terms and provisions contained in the Credit
Agreement. Upon the termination of this Agreement, or as otherwise provided in
the Credit Agreement, the Pledgee, at the request of the Pledgor and at the cost
and expense of the Pledgor, will promptly execute and deliver to the Pledgor the
proper instruments acknowledging the termination of this Agreement and will duly
assign, transfer and deliver to the Pledgor or to whomsoever shall be lawfully
entitled to receive the same (without recourse and without any representation or
warranty of any kind) such of the Collateral as may be in the possession of the
Pledgee and has not theretofore been sold or otherwise applied or released
pursuant to this Agreement. Should a claim ("Recovery Claim") be made upon the
Pledgee or any or all of the Bank Product Providers at any time for recovery of
any amount received by the Pledgee or any or all of the Bank Product Providers
in payment of the Secured Obligations (whether received from Pledgor or
otherwise) and should the Pledgee or any or all of the Bank Product Providers
repay all or part of said amount by reason of (a) any judgment, decree or order
of any court or administrative body having jurisdiction over the Pledgee or any
or all of the Bank Product Providers or any of their respective property; or (b)
any settlement or compromise of any such Recovery Claim effected by the Pledgee
or any or all of the Bank Product Providers with the claimant (including,
without limitation, Pledgor), this Agreement and the security interests granted
to the Pledgee for the benefit of the Pledgee and the Bank Product Providers
hereunder shall continue in effect with respect to the amount so repaid to the
same extent as if such amount had never originally been received by the Pledgee
or any or all of the Bank Product Providers, notwithstanding any prior
termination of this Agreement, the return of this Agreement to the Pledgor, or
the cancellation of any note or other instrument evidencing the Secured
Obligations.
20. AMENDMENTS; MARSHALLING, ETC. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Pledgor and the Pledgee. The Pledgee
shall be under no obligation to marshal any assets or collateral in favor of the
Pledgor or any other person or entity or against or in payment of any or all of
the Secured Obligations. All indemnities set forth herein shall survive the
execution and delivery of this Agreement and the making and repayment of the
Secured Obligations. The Bank Product Providers are the intended third party
beneficiaries of this Agreement.
-12-
21. REVIEW OF AGREEMENT BY PLEDGOR. The Pledgor acknowledges that
Pledgor has thoroughly read and reviewed the terms and provisions of this
Agreement, and that such terms and provisions are clearly understood by the
Pledgor, and has been fully and unconditionally consented to by the Pledgor with
the full benefit and advice of counsel chosen by the Pledgor, and that the
Pledgor has freely and voluntarily signed this Agreement without duress.
22. WAIVER OF CLAIMS. Except as otherwise provided in this Agreement or
prohibited by law, PLEDGOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE PLEDGEE'S
TAKING POSSESSION OR SALE OR THE PLEDGEE'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH PLEDGOR WOULD OTHERWISE
HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
and Pledgor hereby further waives (and releases any cause of action and claim
against the Pledgee as a result of), to the fullest extent permitted by law: (a)
all damages occasioned by such taking of possession, collection or sale except
any damages which are the direct result of the Pledgee's gross negligence or
willful misconduct; (b) all other requirements as to the time, place and terms
of sale or other requirements with respect to the enforcement of the Pledgee's
rights hereunder; (c) demand of performance or other demand, notice of intent to
demand or accelerate, notice of acceleration, presentment, protest,
advertisement or notice of any kind to or upon the Pledgor or any other person
or entity; and (d) all rights of redemption, appraisement, valuation, diligence,
stay, extension or moratorium now or hereafter in force under any applicable law
in order to delay the enforcement of this Agreement.
23. LIMITATION OF LIABILITY. No claim may be made by Pledgor or any
other person or entity against the Pledgee or any of the Bank Product Providers
or the respective officers, employees, affiliates, directors, shareholders,
attorneys or agents of any of them for any special, indirect, punitive or
consequential damages in respect of any claim for breach of contract or any
other theory of liability (other than gross negligence or wilful misconduct)
arising out of or related to the transactions contemplated by this Agreement, or
any act, omission or event occurring in connection therewith; and Pledgor hereby
waives, releases and agrees not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
-13-
24. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
NEW YORK AND THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION
AND ENFORCEMENT, AND THE RIGHTS AND OBLIGATIONS OF PARTIES HEREUNDER, SHALL BE
DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW OR CHOICE OF LAW
PRINCIPLES.
(b) THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH OR RELATED TO THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY
IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE CITY OF NEW YORK, BOROUGH
OF MANHATTAN. THE PLEDGOR WAIVES ANY RIGHT PLEDGOR MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO SUCH VENUE AND HEREBY CONSENTS
TO ANY COURT ORDERED RELIEF. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE
RIGHT OF THE PLEDGEE TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR AFFECT THE RIGHT OF THE PLEDGEE TO BRING ANY ACTION OR PROCEEDING AGAINST THE
PLEDGOR OR PLEDGOR'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
25. WAIVER OF TRIAL BY JURY. THE PLEDGOR AND THE PLEDGEE EACH
KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO
TRIAL BY JURY OF ALL DISPUTES BETWEEN THEM. THE SCOPE OF THIS WAIVER IS INTENDED
TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO OR ARISE OUT OF THIS AGREEMENT OR TO THE SUBJECT MATTER OF
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PLEDGOR AND THE
PLEDGEE EACH 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 THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE PLEDGOR AND THE PLEDGEE 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
EASYLINK SERVICES USA, INC.
By: s/Xxxxxx X. Xxxxxxxx
--------------------
Its: President & Chief Executive Officer
XXXXX FARGO FOOTHILL, INC.
By: s/Xxxxx Xxxx
--------------
Its: Vice President
