Contract
EXECUTION
VERSION
This
Stock Pledge 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 Stock Pledge 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.
THIS
STOCK PLEDGE AGREEMENT (as may be amended, restated, supplemented or otherwise
modified from time to time, this “Agreement”)
is
dated and made as of July 17, 2007 by Pacific CMA International, LLC, a Colorado
limited liability company (the “Pledgor”),
in
favor of BHC Interim Funding II, L.P., a Delaware limited partnership (the
“Lender”).
WITNESSETH:
WHEREAS,
the Pledgor is entering into that certain Loan and Security Agreement, dated
as
of the date hereof (as may be amended, restated, supplemented or otherwise
modified from time to time, the “Loan
and Security Agreement”),
by
and among Airgate International Corporation, a New York corporation, as borrower
(“Borrower”),
certain Guarantors (as defined in the Loan and Security Agreement), and Lender,
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 shares of common
stock of each of Borrower, Paradigm International, Inc., a Florida corporation
and AGI Freight Singapore Pte. Ltd., a Singapore corporation (collectively,
the
“Issuers”),
which
shares are listed on Schedule
2(A)
opposite
the Issuers’ name attached hereto and made a part hereof (the “Pledged
Stock”);
and
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.
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.
2. Pledge
of
the Pledged Stock; Power of Attorney.
(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 (the “Pledged
Collateral”):
(i) all of the Pledged Stock, (ii) all additional shares of stock or
other securities at any time issued by the Issuers to the Pledgor,
(iii) the certificates evidencing all such shares and securities, (iv)
subject to Section
6
hereof,
all dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for all or
any
part of the Pledged Stock and such shares and securities and (v) all proceeds
of
any of the foregoing (including, without limitation, proceeds constituting
any
property of the types described above). The Pledgor has delivered to the Senior
Lender original stock certificates for all of the Pledged Stock, each
accompanied by an undated stock power executed in blank by the Pledgor, and
the
Senior Lender is holding such certificates and stock power for the benefit
of
itself and the Lender. Upon payment in full of the Senior Indebtedness (as
defined in the Intercreditor Agreement) the Pledgor shall deliver, or cause
Senior Lender to deliver to the Lender such certificates and stock
power.
(b) The
Lender shall have no obligation with respect to any of 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 Issuers, 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 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.
(a) During
the term of this Agreement, and so long as no Voting Notice (as defined below)
is received from 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
corporate 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 such Pledged Collateral,
unless the Lender consents thereto. The Pledgor shall not suffer or permit
any
such action to be taken by any 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 stockholders or directors of the Issuers convened for any purpose
and
(B) any written consent which the Pledgor proposes to execute as the stockholder
of the Issuers or which any of the representatives of the Pledgor proposes
to
execute as a director of the Issuers, and (ii) in connection with the foregoing,
the Pledgor hereby authorizes the Lender to send its agents and representatives
to any such meeting of stockholders or directors of the Issuers that the Lender
wishes to attend, and agrees to take such steps as may be necessary to confirm
and effectuate such authority, including, without limitation, causing the
Issuers 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, and
(iii) the Pledgor hereby irrevocably authorize and instruct the Issuers to
comply with any instruction received by it from the Lender in writing that
(A)
states that an Event of Default has occurred and (B) 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 Issuers 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 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 of the release of such rights. 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 any of the Pledged Stock except
for
such restrictions imposed by operation of law, that there are no options,
warrants or rights pertaining thereto, and that the Pledgor has the right to
transfer the Pledged Stock free of any Lien, preemptive right, claim and legend
and without the consent of the creditors of the Pledgor or the consent of the
Issuers, or any other Person or 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.
-3-
5. No
Transfer or Liens; Additional Securities; Release of Lien. The Pledgor agrees
that, except as set forth on Schedule 5 hereto, it will not sell, transfer
or
convey any interest in, or suffer or permit any Lien to be created upon or
with
respect to, any of the Pledged Collateral during the term of this Agreement,
except to or in favor of the Lender. The Pledgor shall not cause, suffer or
permit any Issuer to issue any common or preferred stock, 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).
6. Adjustments
of Pledged Stock; Payment and Application of Dividends. In the event that during
the term of this Agreement any stock dividend, reclassification, readjustment
or
other change is declared or made in the capital structure of the Issuers or
if
any other or additional shares of stock of the Issuers are issued to the
Pledgor, all new, substituted and additional shares or other securities issued
by reason of any such change or acquisition shall immediately be delivered
by
the Pledgor to the Lender or, if Senior Indebtedness (as defined in
Intercreditor Agreement) has not been paid in full, to the Senior Lender for
the
benefit of itself and the Lender, and
shall
be deemed to be part of the “Pledged Collateral” under the terms of this
Agreement in the same manner as the shares of stock originally pledged
hereunder. Any additional shares of stock received by the Pledgor as a result
of
the Pledgor’s record ownership of the Pledged Stock shall immediately be
delivered by the Pledgor to the Lender, or, if Senior Indebtedness (as defined
in Intercreditor Agreement) has not been paid in full, to the Senior Lender
for
the benefit of itself and the Lender, as Pledged Collateral hereunder. Upon
the
occurrence and during the continuance of an Event of Default, the Pledgor will
not demand or 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, or, if Senior Indebtedness (as defined in Intercreditor Agreement)
has not been paid in full, to the Senior Lender for the benefit of itself and
the Lender, as Pledged Collateral.
7. Warrants
and Options. In the event that during the term of this Agreement, any
subscription warrants or other rights or options shall be issued in connection
with any of the Pledged Collateral, all such stock warrants, rights and options
shall forthwith be assigned to the Lender by the Pledgor, and said stock
warrants, rights and options shall be, and, if exercised by the Pledgor, all
new
stock issued pursuant thereto shall be, pledged by the Pledgor to the Lender
and
shall immediately be delivered by Pledgor to the Lender or, if Senior
Indebtedness (as 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 shares of capital stock
originally pledged hereunder.
8. Return
of
Pledged Collateral Upon Payment or Termination. Upon the full payment and
satisfaction of all of the Obligations and the termination of the Loan and
Security Agreement, the Lender shall 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 stock powers and all other documents reasonably required by the
Pledgor to evidence termination of the pledge contemplated hereby.
-4-
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) Without
limiting the foregoing, in the event that the Lender elects to sell all or
any
part of the Pledged Stock (such term including, for purposes of this
Section
9,
the
Pledged Stock and all other shares of stock or securities at any time forming
part of the Pledged Collateral), the Lender shall have the power and right
in
connection with any such sale, exercisable at its option and in its absolute
discretion, to sell, assign, and deliver all or any part of the Pledged Stock
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
sale
of any collateral 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
Stock, 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 Stock,
the
Lender may, at Lender’s option, disclaim any and all warranties regarding the
Pledged Stock 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 Stock 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 Stock 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 Stock. 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 any 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 Stock 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
Stock 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 Stock 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 Stock
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 (e) below,
covenants), except as set forth on Schedule 10 hereto, to the Lender that:
(a) All
shares of Pledged Stock 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 granted to the Senior Lender
and the
Lender, and the Pledged Stock constitutes all of the outstanding securities
of
any class or kind of the Issuers owned by the Pledgor.
(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 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 Stock by laws
affecting the offering and sale of securities generally).
-6-
(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) The
Pledged Stock listed on Schedule
2(a)
to this
Agreement, as may be amended pursuant to this Agreement from time to time,
constitutes 100% of the issued and outstanding common stock of the Issuers.
11. Indemnity
and Expenses.
(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.
(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.
13. Waivers
and Amendment. The rights and remedies given hereby are 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 action, failure to act or knowledge of the Lender shall be deemed to
constitute a waiver of any power, right or remedy hereunder, nor shall any
single or partial exercise thereof preclude any further exercise thereof or
the
exercise of any other power, right or remedy. Any right or power of the Lender
hereunder regarding 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.” This Agreement shall not be amended nor shall any right
hereunder be deemed waived except by a written agreement signed by the Lender
expressly setting forth the amendment or waiver. Each amendment, modification
or
waiver shall be effective only in the specific instance and for the specific
purpose for which it was given.
-7-
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 the Pledged Collateral is released in accordance herewith,
(ii)
be binding upon the Pledgor and its successors and assigns, 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,
and such other Person 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.
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.
16. Notices.
Unless otherwise specifically provided herein, all notices hereunder shall
be in
writing addressed to the respective party as 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.
(a)
If
to
Pledgor, to:
PACIFIC
CMA INTERNATIONAL, LLC
000-00
Xxxxxxxx Xxxxxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxx
Facsimile:
000-000-0000
-8-
With
a copy to:
|
Gusrae,
Xxxxxx, Xxxxx & Xxxxxxx PLLC
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
Xxxxxxxx Xxxxxxx, Esq.
|
|
Facsimile:
(000) 000-0000
|
(b) If
to
Lender, to:
BHC
Interim Funding, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 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,
XX 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, given in accordance with this Section
16.
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 THE LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE 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 OR THE OTHER LOAN DOCUMENTS. 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 HEREOF OR AS MOST RECENTLY NOTIFIED BY THE PLEDGOR TO THE
LENDER IN WRITING AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER
THE
SAME HAS BEEN POSTED AS AFORESAID.
-9-
18. WAIVER
OF
JURY TRIAL.
EACH OF
THE PLEDGOR AND THE 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. EACH OF 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 OR THE
OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH OF THE PLEDGOR AND THE LENDER FURTHER WARRANTS
AND
REPRESENTS 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. Severability;
Entire Agreement. (a)
The
invalidity, illegality or unenforceability in any jurisdiction of any provision
in or obligation under this Agreement shall, as to such jurisdiction, not affect
or impair the validity, legality or enforceability of the remaining provisions
or obligations under this Agreement or of such provision or obligation in any
other jurisdiction.
(b) This
Agreement constitutes the entire understanding and agreement between the
parties, and replaces any other or prior agreements or undertakings, with
respect to the subject matter hereof, and there are no other agreements or
undertakings, oral or written, respecting such subject matter which are intended
to have any force or effect after the execution hereof.
20. Termination.
This
Agreement shall remain in full force and effect until the date upon which the
Lender shall have received 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-10-
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 INTERNATIONAL, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx Xxx | |
|
Name: Xxxxxx Xxx |
||
| Title: Manager | ||
ACKNOWLEDGEMENT
The
undersigned hereby acknowledges all of the rights granted to the Lender under
the foregoing Agreement and agrees to take 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.
| AIRGATE INTERNATIONAL CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
Title:
Vice President
|
||
| PARADIGM INTERNATIONAL, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx Xxxxxx |
||
| Title: Vice President | ||
Signature
Page to Stock Pledge Agreement
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
Xxxxxx
X.
Xxxxxxxx
Managing
Member
Signature
Page to Stock Pledge Agreement
SCHEDULE
2(A)
(Description
of Pledged Stock)
|
Issuer
|
|
Jurisdiction
of Incorporation
|
|
Capital
Stock
|
|
Certificate
No.
|
|
Record
and Beneficial Owner
|
|
Ownership
Percentage
|
|
Number
of Shares
|
|
Airgate
International Corporation
|
Common
Shares
|
C-1
& C-2
|
Pacific
CMA
International, LLC
|
99.11%
|
2,106
|
|||||||
|
Paradigm
International, Inc.
|
Florida
|
Common
Shares
|
2
|
Pacific
CMA
International, LLC
|
100%
|
100
|
SCHEDULE
4
Restrictions
on Transfer
The
securities that are the subject of this instrument are subject to restrictions
on their disposition imposed upon them by the Securities Act of 1933, as
amended.
SCHEDULE
5
Liens
The
securities that are the subject of this instrument are subject to a collateral
pledge agreement dated April 10, 2007, granted to Xxxxx Fargo Bank, National
Association, granting said bank a lien on subject securities.
SCHEDULE
10
Exceptions
to Representations and Warranties
