Exhibit 8
AMENDED AND RESTATED
PLEDGE AGREEMENT
Between
GOLD & XXXXX TRANSFER, S.A.,
REVISION LLC,
FOUNDATION FOR THE INTERNATIONAL
NON-GOVERNMENTAL DEVELOPMENT OF SPACE,
ENTREE INTERNATIONAL LIMITED, and
XXXXXX X. XXXXXXXX,
as Pledgors,
and
XXXXXX X. XXXXX,
as Pledgee
Dated as of November 1, 2001
Table of Contents
Page
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SECTION 1. CERTAIN DEFINITIONS..............................................................2
SECTION 2. SECURITY FOR OBLIGATIONS.........................................................5
SECTION 3. PLEDGE OF SHARES, ETC............................................................6
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................................6
SECTION 5. VOTING RIGHTS, DIVIDENDS AND OTHER DISTRIBUTIONS, ETC............................8
5.1 Prior to Default or Event of Default................................................8
5.2 After Default or Event of Default...................................................8
SECTION 6. COVENANTS OF THE PLEDGORS........................................................9
6.1 Sale of Collateral, Etc.............................................................9
6.2 Delivery of Stock Certificates, Etc.................................................9
6.3 Other Distributions................................................................10
6.4 Records; Inspection................................................................10
6.5 Costs, Expenses and Certain Taxes..................................................10
6.6 Priority of Security Interest; Further Assurances..................................11
6.7 Registration of Covista Pledged Stock..............................................12
6.8 Shareholder Demand Relating to Epoch Shares........................................13
6.9 Post-Closing Conditions............................................................13
SECTION 7. RIGHTS OF THE PLEDGEE...........................................................14
7.1 No Obligations or Liability to Pledgors............................................14
7.2 Right of Pledgee to Perform Pledgor's Covenants, Etc...............................14
7.3 Right of Pledgee to Demand Additional Pledged Shares...............................15
7.4 Release of the Pledge and Security Interest Created Hereby.........................15
7.5 Partial Release of Pledged Shares Under Certain Circumstances......................15
SECTION 8. REMEDIES AND ENFORCEMENT........................................................16
8.1 Remedies in Case of an Event of Default............................................16
8.2 Application of Proceeds Following an Event of Default..............................18
8.3 Purchase of Collateral by Pledgee..................................................19
8.4 Purchaser to Acquire Good Title....................................................19
8.5 Sale of Pledged Stock or LLC Interest Without Registration; Private Sale of
Pledged Stock at a Discount to Market Price........................................19
8.6 Appointment as Attorney-in-Fact....................................................20
8.7 No Waiver; Cumulative Remedies.....................................................20
8.8 Restoration of Rights and Remedies.................................................20
SECTION 9. PLEDGOR'S OBLIGATIONS NOT AFFECTED..............................................21
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Table of Contents
(continued)
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SECTION 10. MISCELLANEOUS..................................................................21
10.1 Amendments, Etc....................................................................21
10.2 Survival of Agreements, Representations and Warranties.............................21
10.3 Successors and Assigns.............................................................21
10.4 Entire Agreement...................................................................21
10.5 Severability.......................................................................21
10.6 WAIVER OF JURY TRIAL...............................................................22
10.7 Agreement May Constitute Financing Statement.......................................22
10.8 Miscellaneous......................................................................22
10.9 GOVERNING LAW......................................................................22
10.10 Notices, Etc.......................................................................22
10.11 Submission to Jurisdiction; Waiver of Immunity; Agent for Service of Process.......22
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AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of November 1,
2001, by and among Gold & Xxxxx Transfer, S.A., a corporation organized and
existing under the laws of the British Virgin Islands ("Gold & Xxxxx"), Revision
LLC, a limited liability company organized and existing under the laws of the
State of Delaware ("Revision"), Foundation for the International
Non-governmental Development of Space, a corporation organized and existing
under the laws of the State of Delaware ("FINDS"), Entree International Limited,
a corporation organized and existing under the laws of the State of Delaware
("Entree"), and Xxxxxx X. Xxxxxxxx, an individual ("Xxxxxxxx") (each of Gold &
Xxxxx, Revision, FINDS, Entree and Xxxxxxxx, individually, a "Pledgor," and
collectively, the "Pledgors"), and Xxxxxx X. Xxxxx, an individual (the
"Pledgee").
R E C I T A L S
A. Pursuant to the Note (as defined herein), on August 7, 2001, the
Pledgee loaned to Gold & Xxxxx, Revision and Xxxxxxxx (the "Borrowers") the
aggregate principal amount of $13,000,000.00, which principal amount was
increased to $14,310,000.00 on March 1, 2001, and which principal amount was
decreased to $13,895,488.20 on the date hereof.
B. As a condition to the obligation of the Pledgee to make such loan,
certain of the Pledgors pledged certain shares of capital stock of Covista (as
defined herein) to the Pledgee as security for the performance of the
obligations of the Borrowers under the Note, pursuant to that certain Stock
Pledge Agreement, dated as of August 7, 2000, by and among Gold & Xxxxx,
Revision, FINDS and Xxxxxxxx, as pledgors, and the Pledgee, as pledgee. On
October 20, 2000, as a result of a decrease in the Market Price (as defined
herein) of Covista shares, such agreement was amended and restated to reflect
certain amendments, including the pledge by Gold & Xxxxx of certain shares of
capital stock of Capsule (as defined herein) to the Pledgee as additional
security for the performance of the obligations of the Borrowers under the Note.
On March 1, 2001, as a result of a subsequent decrease in the Market Prices of
Covista and Capsule shares, such agreement was further amended and restated to
reflect certain additional amendments, including the pledge by Gold & Xxxxx of
certain shares of capital stock of Epoch (as defined herein) to the Pledgee as
additional security for the performance of the obligations of the Borrowers
under the Note and the agreement by Entree to become a party to the agreement
and to pledge its entire limited liability company interest (the "LLC Interest",
which term includes all of Entree's (or, if applicable, any other Pledgor's)
rights in, to and under the Red Tulip Operating Agreement, as hereinafter
defined) in Red Tulip, LLC, a Delaware limited liability company ("Red Tulip"),
to the Pledgee as additional security for the performance of the obligations of
the Borrowers under the Note (as so amended and restated, the "Existing Pledge
Agreement").
C. The parties hereto wish to effect certain additional amendments to
the Existing Pledge Agreement.
NOW, THEREFORE, to induce the Pledgee to refrain from exercising
any rights it may have resulting from a Default or Event of Default under the
Existing Pledge Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Pledgors hereby agree
with the Pledgee, and amend and restate the Existing Pledge Agreement in its
entirety, as follows:
SECTION 1. CERTAIN DEFINITIONS.
The following capitalized terms are used herein with the respective
meanings set forth below.
BANKRUPTCY EVENT: shall occur when, with respect to any party, (i) such
party shall commence any case, proceeding or other action (a) under any existing
or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (b) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or such party shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against such party any case,
proceeding or other action of a nature referred to in clause (i) above which (a)
results in the entry of an order for relief or any such adjudication or
appointment or (b) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against such party any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) such party shall take any action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) such
party shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due.
BORROWERS: the meaning given in the recitals to this Agreement.
CAPSULE: Capsule Communications Inc., a Delaware corporation.
COMBINED MARKET VALUE: at any point in time, the sum of the Pledged
Share Market Values for each type (as identified by the issuer and class
thereof) of stock (other than the shares of any entity not publicly traded on a
market or exchange) and previously pledged to the Pledgee by any Pledgor and
held at such time by the Pledgee pursuant to such pledge.
COLLATERAL: the meaning given in the first paragraph of Section 3.
COVISTA: Covista Communications, Inc., a New Jersey corporation
(formerly known as Total-Tel USA Communication, Inc.).
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COVISTA PLEDGED STOCK: the shares of common stock of Covista
constituting a portion of the Pledged Stock.
DEFAULT: shall have the meaning ascribed to such term in the Note.
DEMANDED SHARES: the meaning given in Section 7.3.
EPOCH: Epoch Networks, Inc., a California corporation.
EPOCH SHARES: a total of (i) 5,889,032 shares of Series A preferred
stock of Epoch owned of record and beneficially by Gold & Xxxxx and represented
in certificated form by stock certificate numbers 12 (884,955 shares), 18
(305,157 shares), 19 (4,424,779 shares) and 37 (274,141 shares) of Epoch, (ii)
882,353 shares of Series B preferred stock of Epoch owned of record and
beneficially by Gold & Xxxxx and represented in certificated form by stock
certificate number PB-15 of Epoch, and (iii) 1,741,041 shares of common stock of
Epoch, owned of record and beneficially by Gold & Xxxxx and represented in
certificated form by stock certificate numbers C-339 (313,102 shares), C-612
(700,000 shares) and C-613 (727,939 shares) of Epoch.
EVENT OF DEFAULT: shall have the meaning ascribed to such term in the
Note.
EXISTING PLEDGE AGREEMENT: the meaning given in the recitals to this
Agreement.
EXISTING PLEDGED SHARES: a total of 1,883,261 Shares of Covista, owned
of record and beneficially by one or more of the Pledgors, as more specifically
set forth on Exhibit A attached hereto.
EXISTING SECURED OBLIGATIONS: all of the Secured Obligations except for
(i) the amount of $2,387,281.53, which amount constitutes additional principal
under the Note resulting from a cancellation of certain existing notes and
certain other transactions effected by the parties on the date hereof, and (ii)
interest under the Note on the portion of principal set forth in the immediately
preceding clause (i).
FINDS SHARES: a total of 703,529 Shares of Covista, owned of record and
beneficially by FINDS, as more specifically set forth on Exhibit A attached
hereto.
LIEN: shall have the meaning ascribed to such term in the Note.
LLC INTEREST: the meaning given in the recitals to this Agreement.
LLC INTEREST VALUE: $4,400,000, until such time as the Pledgee no longer
has a valid perfected first priority security interest in the LLC Interest, at
which time the LLC Interest Value shall immediately, without any further action
by any of the parties hereto, be deemed zero.
MARKET PRICE: at any point in time, the last reported sale price of the
shares of common stock of Covista or another entity, as applicable, on The
Nasdaq Stock Market
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(or other market or exchange on which such securities are traded) on the
preceding business day or, if there were no reported sales of such shares on The
Nasdaq Stock Market (or such other market or exchange) on the immediately
preceding business day, on the most recent business day on which there were such
sales.
NOTE: the Promissory Note, dated August 7, 2000, entered into by Gold &
Xxxxx, Revision and Xxxxxxxx, jointly and severally, in favor of Pledgee, as
amended and restated as of March 1, 2001, as further amended as of November 1,
2001 pursuant to Note Amendment No. 1, and as the same may be hereafter from
time to time amended, modified or supplemented.
NOTE AMENDMENT NO. 1: the Amendment No. 1 to the Note, dated as of
November 1, 2001, by and among Gold & Xxxxx, Revision, Xxxxxxxx and Xxxxx.
PERMITTED SALE: the meaning given in Section 7.5(c).
PERSON: natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
PLEDGED SHARE MARKET VALUE: at any point in time, with respect to a
particular type (as identified by the issuer and class thereof) of stock
previously pledged to the Pledgee, the product of (i) the total number of shares
of such stock previously pledged to the Pledgee pursuant to this Agreement and
held at such time by the Pledgee pursuant to such pledge and (ii) the Market
Price of such stock, provided that, with respect to any shares of stock pledged
pursuant to Section 7.3 of this Agreement that are not publicly traded on a
market or exchange, the Pledged Share Market Value shall be the value agreed
upon in writing by the Pledgee, the relevant Pledgor and (if other than the
Pledgor) Xxxxxxxx.
PLEDGED STOCK: the Shares and all other securities constituting part of
the Collateral; any securities issued or issuable with respect to the Pledged
Stock by way of dividend, stock split, conversion, exchange, in a merger,
recapitalization, consolidation, contribution or otherwise; and any other
securities delivered to the Pledgee by any Pledgor in substitution for any
existing Pledged Stock (if permitted pursuant to this Agreement or otherwise
consented to in writing by the Pledgee).
PRIVATE COMPANY STOCK VALUE: the sum of the values, as agreed in writing
between the Pledgee, the relevant Pledgor and (if other than the Pledgor)
Xxxxxxxx, of any shares of stock of an entity not publicly traded on a market or
exchange, which shares have been pledged after the date hereof by one or more of
the Pledgors to Pledgee in accordance with Section 7.3 hereof, if any.
RED TULIP: the meaning given in the recitals to this Agreement.
RED TULIP OPERATING AGREEMENT: the Operating Agreement of Red Tulip,
dated as of June 20, 1999, between Entree and Xxxxx Xxxxx Neiva, an individual.
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RELEASE NOTICE: the meaning given in Section 7.5(a).
SECURED OBLIGATIONS: the meaning given in Section 2.
SEC: the meaning given in Section 6.7.
SECURITIES ACT: the meaning given in Section 6.7.
SHARES: 1,883,261 shares of common stock of Covista, par value $0.05 per
share, owned of record and beneficially by one or more of the Pledgors, as more
specifically identified on Exhibit A attached hereto. In addition, the term
"Shares" shall include any Demanded Shares; any securities issued or issuable
with respect to the Shares or Demanded Shares by way of dividend, stock split,
conversion, exchange, in a merger, recapitalization, consolidation, contribution
or otherwise; and any other securities delivered to the Pledgee by any Pledgor
in substitution for any existing Shares or Demanded Shares (if permitted
pursuant to the terms of this Agreement or otherwise consented to in writing by
the Pledgee).
SPECIFIED RELEASE SHARES: the meaning given in Section 7.5(a).
UCC: the Uniform Commercial Code as in effect in the State of New York
or in any other appropriate jurisdiction.
SECTION 2. SECURITY FOR OBLIGATIONS.
This Agreement is entered into:
(a) to secure the full and timely payment by Pledgors of (i) all
amounts the payment of which is required by Pledgors under the Note,
including, without limitation, the principal of and interest on the Note
(including, without limitation, interest accruing after the date of any
filing by any Pledgor of any petition in bankruptcy or the commencement
of any bankruptcy, insolvency or similar proceeding with respect to any
Pledgor) as and when the same become due and payable in accordance with
the terms thereof, whether at maturity or by prepayment, acceleration,
declaration of default or otherwise, and (ii) all other indebtedness and
other amounts payable by the Pledgors hereunder or under the Note, and
(b) to secure the due and punctual performance by Pledgors of (i)
all obligations of the Pledgors under the Note and (ii) all other
obligations of Pledgors hereunder.
(all of the payment and performance obligations referred to in this Section 2
being referred to collectively as the "Secured Obligations").
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SECTION 3. PLEDGE OF SHARES, ETC.
As security for the prompt payment and performance of the Secured
Obligations when due (whether at stated maturity, by acceleration or otherwise),
each of the Pledgors hereby conveys, assigns, grants, hypothecates, mortgages,
pledges, transfers and delivers to the Pledgee a lien and charge upon, and a
security interest in, all the following property, whether now owned by such
Pledgor or hereafter acquired by such Pledgor and whether now or in the future
existing and wherever located (collectively, the "Collateral"):
(a) the Shares;
(b) all right, title and interest in the LLC Interest;
(c) all dividends, instruments, cash and other property or rights
of any kind at any time received, receivable or otherwise distributed or
distributable with respect to any of the foregoing;
(d) all certificates or other writings representing or evidencing
any of the foregoing;
(e) all proceeds of any of the property described in clauses (a)
through (d) above; and
(f) all books, correspondence, credit files, electronic data,
records, invoices and other papers and documents relating to any of the
foregoing;
provided, however, that the FINDS Shares, and all items described in paragraphs
(c) through (f) above that relate exclusively to or arise exclusively out of the
FINDS Shares, shall serve as security for the prompt payment and performance of
only the Existing Secured Obligations.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each Pledgor represents and warrants to the Pledgee, as of the
date of this Agreement and at the time of each subsequent pledge of Demanded
Shares or any other additional Shares delivered to the Pledgee pursuant hereto,
as follows:
(a) With respect to each of the Shares, including, without
limitation, each of the Existing Pledged Shares and any other Demanded
Shares (but excluding any Specified Release Shares that, as of the date
of such representation and warranty, have been released from the pledge
of this Agreement), Gold & Xxxxx or Revision or FINDS is the record and
beneficial owner of such Shares, free and clear of any Lien except for
the Lien created by this Agreement (or by the Existing Pledge
Agreement). Entree has good and marketable title to the LLC Interest,
free and clear of any Lien except for the Lien created by this Agreement
(or by the Existing Pledge Agreement). No effective financing statement
or other instrument of similar effect covering all or any part of the
Collateral is on file in
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any recording office, except such as may have been filed in favor of the
Pledgee relating to this Agreement (or the Existing Pledge Agreement).
(b) The Shares have been duly and validly issued and are fully
paid and nonassessable.
(c) The security interest granted pursuant to this Agreement
constitutes a valid perfected first priority security interest in the
Existing Pledged Shares (excluding any Specified Release Shares that, as
of the date of such representation and warranty, have been released from
the pledge of this Agreement) and the LLC Interest, enforceable as such
against all creditors of each Pledgor and any Persons purporting to
purchase any of such Shares or LLC Interest from any Pledgor. Upon
delivery to the Pledgee, if applicable, of the certificates evidencing
Demanded Shares or any other additional Shares delivered to the Pledgee
pursuant hereto, the security interest granted pursuant to this
Agreement will constitute a valid perfected first priority security
interest in such Shares, enforceable as such against all creditors of
each Pledgor and any Persons purporting to purchase any of such Shares
from any Pledgor.
(d) Gold & Xxxxx is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin
Islands and has all requisite corporate power and authority to enter
into and carry out the terms of this Agreement and the Note (including
Note Amendment No. 1). Revision is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite limited liability company power
and authority to enter into and carry out the terms of this Agreement
and the Note (including Note Amendment No. 1). FINDS is a not-for-profit
corporation duly organized, validly existing and in good standing under
the laws of Delaware and has all requisite corporate power and authority
to enter into and carry out the terms of this Agreement. Entree is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power
and authority to enter into and carry out the terms of this Agreement.
(e) The execution, delivery and performance of this Agreement and
the Note (including Note Amendment No. 1) will not result in any
violation of or be in conflict with or constitute a default under any
term of any Pledgor's certificate of incorporation or by-laws (or
similar constitutive documents) or any agreement or instrument to which
any Pledgor is a party or by which any Pledgor is bound or any term of
any applicable law, ordinance, rule or regulation of any governmental
authority or any term of any applicable order, judgment or decree of any
court, arbitrator or governmental authority.
(f) No consent, approval or authorization of, or declaration or
filing with, any governmental authority or regulatory body is required
for the valid execution, delivery and performance of this Agreement and
the Note (including Note Amendment No. 1).
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(g) This Agreement and the Note (including Note Amendment no. 1)
have been duly authorized, executed and delivered by each Pledgor and
constitute each Pledgor's legal, valid and binding obligation,
enforceable against such Pledgor in accordance with its terms, except to
the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws of
general application relating to or affecting the rights and remedies of
creditors, and by general equitable principles.
SECTION 5. VOTING RIGHTS, DIVIDENDS AND OTHER DISTRIBUTIONS, ETC.
5.1 Prior to Default or Event of Default. So long as no Default or Event
of Default has occurred and is continuing, Pledgors will remain entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Stock and the LLC Interest, as the case may be, and to receive and use
cash dividends or distributions, in either case for any purpose not inconsistent
with the terms of this Agreement or the Note.
5.2 After Default or Event of Default. For so long as a Default or an
Event of Default is continuing, (i) no Pledgor may exercise any voting or other
consensual rights pertaining to the Pledged Stock or the LLC Interest without
the prior written consent of the Pledgee, (ii) the right, if any, of any Pledgor
to receive cash dividends in respect of the Pledged Stock or distributions in
respect of the LLC Interest will cease and all such dividends or distributions
must be paid directly to the Pledgee (or if received by any Pledgor will be
deemed held in trust by such Pledgor for the benefit of, and must be turned over
immediately by such Pledgor to, the Pledgee) and thereafter will be held and
disposed of by the Pledgee as part of the Collateral, and (iii) if the Pledgee
has notified the Pledgors that it elects to exercise the Pledgee's right to
exercise voting and other consensual rights hereunder, all rights of each
Pledgor to exercise the voting and other consensual rights which such Pledgor
would otherwise be entitled to exercise pursuant to Section 5.1 will cease, all
such rights will thereupon become vested in the Pledgee, who during the
continuance of such Default or Event of Default will have (directly or through
its nominee) the sole right to exercise such voting and other consensual rights,
including, without limitation, (A) all voting, corporate, limited liability
company and other rights pertaining to any of the Pledged Stock or the LLC
Interest, (B) all rights to give consents, waivers and ratifications in respect
thereof and (C) any and all rights of conversion, exchange, registration,
subscription and any other rights, privileges or options pertaining to any of
the Pledged Stock or the LLC Interest as if it were the absolute owner thereof,
and in connection therewith, the right to deposit and deliver any and all of the
Pledged Stock with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may determine, all
without liability except to account for property actually received by it (each
Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution, to do or take
any of the above actions described in the preceding clauses (A), (B) and (C).
The Pledgee will have no duty to Pledgors to exercise any such right, privilege
or option and will not be responsible for any failure to do so or delay in so
doing. In order to permit the Pledgee to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to this Section
5.2, and to receive all
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dividends and distributions which it may be entitled to receive under this
Section 5.2, each Pledgor will, upon written notice from the Pledgee, from time
to time execute and deliver to the Pledgee or other third party appropriate
notices, assignments, proxies, dividend payment orders and other documents and
instruments as the Pledgee may reasonably request.
SECTION 6. COVENANTS OF THE PLEDGORS.
6.1 Sale of Collateral, Etc. (a) No Pledgor will (i) sell, assign,
transfer, convey, or otherwise dispose of, or grant any option with respect to,
any of the Collateral, or (ii) create or permit to exist any Lien upon or with
respect to any of the Collateral, except for the lien and security interest
created by this Agreement.
(b) Without the prior written consent of the Pledgee, Entree will not,
and Xxxxxxxx will insure that Entree does not, do any of the following: amend,
cancel, terminate or otherwise modify the Red Tulip Operating Agreement; give
any consent, waiver or other approval thereunder; waive any default under or
breach of the Red Tulip Operating Agreement; designate Managers (as such term is
defined in the Red Tulip Operating Agreement) of Red Tulip other than Entree and
Xxxxxxxx; or take any other action in connection with such agreement or the LLC
Interest that would materially impair the value of the interests or rights of
any Pledgor thereunder or with respect thereto.
(c) Notwithstanding the foregoing clause (b), Entree may, without the
prior written consent of the Pledgee, cause Red Tulip to incur indebtedness and
in connection with such indebtedness to cause to be executed and delivered by
Red Tulip a mortgage on the real estate property owned by Red Tulip, known as
000-000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, securing such loan, provided that the
proceeds from such loan are used by Red Tulip exclusively for the purpose of
making improvements to such property.
6.2 Delivery of Stock Certificates, Etc. (a) Each of the Pledgors will
immediately deliver to the Pledgee all certificates or other writings
representing or evidencing any other "securities" or "instruments" (as such
terms are defined in the UCC) included in the Collateral at any time acquired or
received by any Pledgor, directly or indirectly, either in suitable form for
transfer by delivery, or issued in the name of a Pledgor and accompanied by
stock powers or other appropriate instruments of transfer or assignment, duly
executed by the relevant Pledgor in blank and undated, and in either case having
attached thereto all requisite federal or state stock transfer tax stamps, all
in form and substance satisfactory to the Pledgee.
(b) Each Pledgor authorizes the Pledgee to file, in the Pledgee's
discretion and at such Pledgor's expense, in jurisdictions where this
authorization will be given effect, financing statements and continuation
statements covering the Collateral signed only by the Pledgee, and hereby
appoints the Pledgee as such Pledgor's attorney-in-fact to sign and file any
such financing statements, continuation statements and any other filings or
recordations covering the Collateral of such Pledgor. Such Pledgor shall, at its
expense, execute, deliver, file and record any such documents, assignments,
agreements, or
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statements (including, without limitation, financing and continuation statements
under the UCC) and take any other action that from time to time may be necessary
or desirable, or that the Pledgee may request, in order to create, preserve,
perfect, confirm or validate the security interests granted hereunder or to
enable the Pledgee to obtain the full benefits of, or to enforce its rights,
powers and remedies under, this Agreement.
(c) Within 10 business days after the date of a demand by the Pledgee
for Demanded Shares, the Pledgors will deliver to the Pledgee all certificates
or other writings representing or evidencing such Demanded Shares, either in
suitable form for transfer by delivery, or issued in the name of a Pledgor and
accompanied by stock powers or other appropriate instruments of transfer or
assignment, duly executed by the relevant Pledgor in blank and undated, and in
either case having attached thereto all requisite federal or state stock
transfer tax stamps, all in form and substance satisfactory to the Pledgee.
6.3 Other Distributions. Except for cash dividends or distributions, as
the case may be, permitted to be paid to Pledgors pursuant to Section 5.1,
Pledgors will cause all dividends and distributions of any kind on the Pledged
Stock or the LLC Interest (including any sums paid upon or in respect of the
Pledged Stock or the LLC Interest upon the liquidation or dissolution of Covista
or Red Tulip, as the case may be, or upon the recapitalization or
reclassification of the capital of Covista or Red Tulip, as the case may be, or
upon the reorganization of Covista or Red Tulip, as the case may be) to be paid
directly to the Pledgee (and if any such dividends or distributions are received
by any Pledgor, such Pledgor will hold them in trust for the benefit of, and
will immediately turn them over to, the Pledgee) and the Pledgee will hold and
dispose of all such dividends and distributions as part of the Collateral.
6.4 Records; Inspection. Each Pledgor will keep full and accurate books
and records relating to the Collateral, and stamp or otherwise xxxx such books
and records in such manner as is required in order to reflect the pledge and
security interest granted pursuant hereto. Each Pledgor will permit
representatives of the Pledgee at any time upon reasonable advance notice to
inspect and make abstracts from its books and records pertaining to the
Collateral and to discuss matters relating to the Collateral with officers of
each Pledgor that is a corporation or other entity and with each Pledgor that is
an individual.
6.5 Costs, Expenses and Certain Taxes. Pledgors (a) will pay to the
Pledgee from time to time on demand any and all costs and expenses, including
reasonable attorneys' fees and expenses, paid or incurred by or on behalf of the
Pledgee in connection with this Agreement, the Existing Pledge Agreement or the
Note or in connection with any modification, amendment, alteration or
enforcement of this Agreement, the Existing Pledge Agreement or the Note or the
collection of any amount payable by any Pledgor hereunder or under the Existing
Pledge Agreement or the Note, whether or not any legal proceeding is commenced
hereunder or thereunder and whether or not any Default or Event of Default has
occurred and is continuing, and (b) will jointly and severally indemnify the
Pledgee on demand against any loss, liability or expense incurred by the Pledgee
(other than any such loss, liability or expense directly attributable
10
to gross negligence or willful misconduct of the Pledgee) arising out of or in
connection with any action or omission of the Pledgee hereunder or under the
Existing Pledge Agreement or the Note, including the costs and expenses of
defending itself against any claim or liability (including any claim by any
Pledgor) in connection with the exercise or performance of any of its powers or
duties hereunder or thereunder. All amounts payable to the Pledgee under this
Section accrue interest until paid in full at the rate of 18% per annum, from
the date of demand therefor. All such amounts shall constitute additional
indebtedness of the Pledgors secured hereunder and shall be payable on demand.
Pledgors will also pay, and will hold the Pledgee harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamps, excise, sales or other taxes or assessments which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Agreement or the Existing
Pledge Agreement or the Note. All expenses incident to the Pledgors' and
Covista's performance of or compliance with Section 6.7, including, without
limitation, all registration and filing fees, all fees and expenses of complying
with securities or blue sky laws, National Association of Securities Dealers'
fees, all printing expenses, the fees and disbursements of counsel for Covista
and of its independent public accountants, and the expenses of any special
audits made by such accountants required by or incident to such performance and
compliance, shall be paid by the Pledgors; provided, however, that Covista
agrees that it will complete the registrations, qualifications and compliance
required pursuant to Section 6.7 even if it does not receive payment or
reimbursement of such expenses from the Pledgors.
6.6 Priority of Security Interest; Further Assurances. (a) Each Pledgor
will at all times cause the security interest granted pursuant to this Agreement
to constitute a valid perfected first priority security interest in the
Collateral, enforceable as such against all creditors of such Pledgor and any
Persons purporting to purchase any Collateral from such Pledgor.
(b) Each Pledgor will at any time and from time to time, at its own
expense, promptly execute and deliver all further instruments and documents, and
take all further actions, as may be necessary or desirable, or that the Pledgee
may reasonably request, in order to (i) grant more effectively a security
interest in favor of the Pledgee in all or any portion of the Collateral, (ii)
maintain, preserve, or perfect the security interest and lien created or
purported to be created by this Agreement and the first priority status of such
security interest and lien, (iii) preserve and defend against any Person such
Pledgor's title to the Collateral and the rights purported to be granted therein
by this Agreement, (iv) enable the Pledgee to exercise and enforce its rights
and remedies hereunder, or (v) carry out more effectively the purposes of this
Agreement. If the issuer of Pledged Stock is incorporated in a jurisdiction
which does not permit the use of certificates to evidence equity ownership of
such Pledged Stock or permit a lien in favor of the Pledgee to be perfected by
the possession by the Pledgee of the certificates representing such Pledged
Stock, then the Pledgors will to the extent permitted by applicable law, record
such lien on the stock register of such issuer, execute any customary stock
pledge forms or other documents necessary to create, evidence or provide for the
perfection of such lien and give the Pledgee the right to transfer such Pledged
Stock under the terms hereof and provide to the Pledgee an opinion of counsel of
such jurisdiction, in form and
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substance satisfactory to it, confirming the effectiveness, perfection and
priority of such lien.
6.7 Registration of Covista Pledged Stock. The Pledgors and Covista
acknowledge and agree that a currently effective registration statement on Form
S-3 (No. 333-46954) has been filed with the Securities and Exchange Commission
pursuant to the U.S. Securities Act of 1933, as amended (the "Securities Act")
and that such registration statement permits the sale and distribution of the
Covista Pledged Stock by the Pledgee under Federal and state securities laws.
Pledgors, at their sole cost and expense, will procure (and Covista agrees) that
such registration and qualification of the Covista Pledged Stock shall be kept
continuously effective in compliance with such laws for up to one year after the
Maturity Date as set forth in the Note so as to continue to permit or facilitate
the sale and distribution of such securities. Pledgors, at their sole cost and
expense, will further procure (and Covista further agrees) that any further
registration and other qualification of the Covista Pledged Stock under Federal
and state securities laws that may be necessary or desirable so as to permit or
facilitate the sale and distribution of such securities, including, without
limitation, appropriate qualifications under applicable "blue sky" or other
state securities laws and appropriate compliance with any other governmental
requirements, shall be effected by Covista (and kept continuously effective in
compliance with such laws for up to one year after the Maturity Date as set
forth in the Note). The Pledgors (and Covista) shall ensure that any such
further registration is declared effective under the Securities Act and all
other such qualifications and compliance are completed prior to the Maturity
Date as set forth in the Note. To the extent necessary to allow the Covista
Pledged Stock to be traded on the Nasdaq Stock Market, Pledgors shall cause
Covista to agree (and Covista agrees) to list the Covista Pledged Stock on the
Nasdaq Stock Market. Pledgors will cause the Pledgee to be kept advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will give the Pledgee, any
underwriter and their counsel reasonable opportunity to review and comment on
the registration statement and other documents incident thereto, to conduct due
diligence on Covista and to participate in the process, will furnish to the
Pledgee such number of prospectuses, preliminary prospectuses, prospectus
supplements or amendments or other documents incident thereto as the Pledgee
from time to time may reasonably request, and will indemnify the Pledgee and all
others participating in the distribution of such securities against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other document (including
any related registration statement, notification or the like) incident to such
registration or by any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except (as to the Pledgee) insofar as the same may have
been caused by an untrue statement or omission based upon information furnished
in writing to Pledgor by the Pledgee expressly for use therein. The registration
statement filed with respect to the Covista Pledged Stock and the prospectus
contained therein shall cover only the Covista Pledged Stock and no other
securities. The Pledgors will cause Covista (and Covista agrees) to comply with
all applicable rules and regulations of the Securities and Exchange Commission
(hereinafter called "SEC") or similar federal commission, and of the Nasdaq
Stock Market or any other national
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securities exchange on which any of the Covista Pledged Stock is listed, if any,
for so long as the registration is effective, to make available to its security
holders, as soon as practicable, an earnings statement covering a period of at
least 12 months, but not more than 18 months, beginning with the first month
after the effective date of the registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of and Rule 158 under the
Securities Act, and to make timely filing of all reports with the SEC to enable
the holders of the Covista Pledged Stock, if they so elect, to utilize Rule 144
of the Securities Act in disposing of said securities. Pledgors (and Covista)
agree that, at Pledgee's request, Covista shall enter into an underwriting
agreement, which shall include, without limitation, indemnification and
contribution provisions and a "hold-back" or "lock-up" provision covering at
least 90 days and shall otherwise be in form and substance reasonably
satisfactory to Pledgee, with an underwriter for the Covista Pledged Stock
chosen by Pledgee in its sole discretion, and furnish or cause to be furnished
to such underwriter and Pledgee a customary opinion of counsel and accountant's
comfort letter.
6.8 Shareholder Demand Relating to Epoch Shares. The parties acknowledge
that on September 19, 2001, Gold & Xxxxx demanded payment in cash for all of the
Epoch Shares by letter addressed to Epoch in response to a Notice of Approval of
Agreement and Plan of Merger and Dissenters Rights dated October 24, 2001 and
transmitted to Gold & Xxxxx by Epoch. The Pledgors agree and acknowledge that
(i) Gold & Xxxxx has instructed Epoch to pay directly to the Pledgee the amount
of any and all cash (including interest) paid by Epoch in consideration of the
Epoch Shares and (ii) in the event that Epoch makes such payment(s) directly to
Gold & Xxxxx rather than to the Pledgee, Gold & Xxxxx shall promptly pay over to
the Pledgee any and all such amounts. Amounts paid to the Pledgee pursuant to
clause (i) or (ii) above shall be deemed prepayment by Gold & Xxxxx or principal
due under the Note. The Pledgors further agree and acknowledge that, in the
event that the Epoch Shares are not purchased by Epoch for cash and shares of
Epoch Holdings, Inc. are issued (or any other consideration is issued) to Gold &
Xxxxx in consideration of the Epoch Shares, the certificates representing such
shares (either in suitable form for transfer by delivery, or issued in the name
of Gold & Xxxxx and accompanied by stock powers or other appropriate instruments
of transfer or assignment, duly executed by Gold & Xxxxx in blank and undated,
and in either case having attached thereto all requisite federal or state stock
transfer tax stamps, all in form and substance satisfactory to the Pledgee) or
such other consideration shall be delivered to a custodian of the Pledgee in
accordance with the Pledgee's instructions and held by such custodian in
connection with this Agreement. Any such shares delivered to the Pledgee shall
be deemed to be Shares and Pledged Stock for the purposes of this Agreement.
6.9 Post-Closing Conditions. The Pledgors hereby agree to take the
following actions, or to cause Covista or other relevant Persons to take the
following actions, as applicable, by no later than the earlier of (i) the date
that is 10 business days after the date on which any additional Collateral is
delivered or otherwise pledged, whether by execution of a security agreement or
otherwise, to Pledgee and (ii) the date that is 10 business days before the
Maturity Date (as defined in the Note):
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(a) Corporate Proceedings of Pledgors and Covista. With respect to each
Pledgor that is a corporation, limited liability company or similar entity, the
Pledgee shall be provided with a copy of the resolutions (or comparable
authorizing document), in form and substance satisfactory to the Pledgee, of the
Board of Directors (or comparable governing body) of each such Pledgor
authorizing and ratifying (i) the execution, delivery and performance of the
Note (if such Pledgor is a Borrower) and this Agreement and (ii) the granting by
it of the Liens created pursuant to this Agreement, certified by the Secretary
or an Assistant Secretary (or comparable officer) of such Pledgor, which
certificate shall be in form and substance reasonably satisfactory to the
Pledgee and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded and were in effect as of the date of
this Agreement.
(b) Signature Guaranties. To the extent that any stock power provided to
the Pledgee on or after the date of this Agreement does not contain a signature
guaranty at the time that it is delivered to the Pledgee, the Pledgee shall be
provided with replacement stock powers containing a signature guaranteed by a
participant of the Securities Transfer Agents Medallion Program or another
approved signature guaranty program acceptable to the Securities and Exchange
Commission, the Securities Transfer Association and the transfer agent of
Covista or any other issuer, as and if applicable.
SECTION 7. RIGHTS OF THE PLEDGEE.
7.1 No Obligations or Liability to Pledgors. The rights and powers of
the Pledgee hereunder are not contingent upon the pursuit by the Pledgee of any
right or remedy against any Pledgor or against any other Person which may be or
become liable in respect of any of the Secured Obligations or against any other
collateral security or guarantee therefor or right of offset with respect
thereto, but are solely to protect its interest in the Collateral. The Pledgee
will not be liable for any failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so, nor is the Pledgee under
any obligation to sell or otherwise dispose of any Collateral upon the request
of any Pledgor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. No action or inaction on the part
of the Pledgee hereunder or under the Note will release any Pledgor from any of
its obligations hereunder or under the Note, or constitute an assumption of any
such obligations on the part of the Pledgee, or cause the Pledgee to become
subject to any obligation or liability to any Pledgor. The Pledgee has no
obligation to perform any of the obligations or duties of any Pledgor as a
shareholder of Covista or Epoch.
7.2 Right of Pledgee to Perform Pledgor's Covenants, Etc. If any Pledgor
fails to make any payment or to perform any agreement required to be made or
performed hereunder, the Pledgee may (but need not) at any time thereafter make
such payment or perform such act, or otherwise cause such payment or
performance. No such action will create any liability to any Pledgor on the part
of the Pledgee. All amounts so paid by the Pledgee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) incurred by the
Pledgee in any such performance shall accrue interest from the date paid or
disbursed until reimbursed to the Pledgee in full by or on behalf of the
Pledgors at the rate established in Section 6.5. All such amounts shall
constitute
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additional indebtedness of the Pledgors secured hereunder and shall be payable
on demand.
7.3 Right of Pledgee to Demand Additional Pledged Shares. The Pledgee
shall have the right at any time, at its sole discretion, to demand by written
notice to the Pledgors that the Pledgors pledge to the Pledgee additional shares
of common stock of Covista (or, subject to the approval of the Pledgee in its
sole discretion, shares of stock of one or more other entities) owned of record
and beneficially by one or more of the Pledgors if, at such time, the sum of (i)
the Combined Market Value plus (ii) the Private Company Stock Value plus (iii)
the LLC Interest Value is less than $13,000,000. The number of shares that may
be demanded pursuant to the preceding sentence shall, at the time of any such
demand, be a number of shares such that the sum of the preceding clauses (i),
(ii) and (iii), after accounting for such additional shares, is equal to
$13,000,000. All shares at any time demanded pursuant to the provisions of this
Section 7.3 shall be "Demanded Shares." Unless otherwise agreed in writing by
the Pledgee, all Demanded Shares, to the extent that they would not be freely
transferable by the Pledgee if sold by the Pledgee in a manner consistent with
the provisions of this Agreement, shall be subject to registration requirements
equivalent to those set forth in Section 6.7 of this Agreement with respect to
Covista Pledged Stock. The Pledgee and the Pledgors agree that, except as
otherwise expressly set forth in this Agreement, Pledgee shall at no time be
required to release from the pledge or return to the Pledgors any Collateral.
7.4 Release of the Pledge and Security Interest Created Hereby. Upon
payment in full of the outstanding principal amount of and accrued interest on
the Note in accordance with its terms and payment or satisfaction of all other
Secured Obligations, the Pledgee will, upon the written request of all Pledgors,
return to the Pledgors all Collateral held by the Pledgee. Upon such payment or
satisfaction, Pledgee will execute and deliver to the Pledgors such documents as
the Pledgors may reasonably request to evidence the payment or satisfaction of
the Secured Obligations or the release of the Collateral, as the case may be.
7.5 Partial Release of Pledged Shares Under Certain Circumstances. (a)
So long as no Default or Event of Default is continuing at such time, the
Pledgors, by a written request executed by each Pledgor and delivered to the
Pledgee, shall have the right to request, from time to time prior to the
Maturity Date (as set forth in the Note), that the Pledgee release from the
pledge and permit a sale (in accordance with the provisions of this Section 7.5)
of, specified shares of Covista Pledged Stock previously pledged to the Pledgee
and held at such time by the Pledgee ("Specified Release Shares"). Such notice
(a "Release Notice") shall specify the number of Specified Release Shares
proposed to be sold, the price (net of sales commissions) at which such
Specified Release Shares are to be sold, and the proposed acquiror of such
Specified Release Shares. The Release Notice shall also certify that the
proposed sale of Specified Release Shares will constitute a Permitted Sale (as
defined below) and that the proposed sale will not result in any violation of or
be in conflict with or constitute a default under any term of any Pledgor's
certificate of incorporation or by-laws (or similar constitutive documents) or
any agreement or instrument to which any Pledgor is a party or by which any
Pledgor is bound or any term of any applicable law, ordinance, rule or
regulation of
15
any governmental authority or any term of any applicable order, judgment or
decree of any court, arbitrator or governmental authority.
(b) Upon receipt of a valid Release Notice (as determined in the sole
discretion of the Pledgee), the Pledgee will use its good faith efforts to
release promptly from the pledge the Specified Release Shares identified in such
Release Notice and to cooperate with the Pledgors in facilitating, at the sole
cost and expense of the Pledgors, a sale of such Specified Release Shares in
accordance with the terms specified in such Release Notice; provided that under
no circumstances shall the Pledgee be liable to any Pledgor or any other Person
for any loss, liability or expense resulting from any delay in consummating a
Permitted Sale (whether as a result of actions required to prepare the Specified
Release Shares for sale by a Pledgor or otherwise). The Pledgors shall have the
right to receive and retain the net proceeds of each Permitted Sale.
(c) For the purposes of this Section 7.5, a "Permitted Sale" is a sale
of Specified Release Shares that: (i) is effected at a price per share (net of
commissions) equal to or exceeding $8.00 and (ii) results in net proceeds
(individually for such sale and aggregated with all prior Permitted Sales) of
$500,000 or less.
SECTION 8. REMEDIES AND ENFORCEMENT.
8.1 Remedies in Case of an Event of Default. If an Event of Default has
occurred and is continuing, then in addition to the actions referred to in
Section 5.2 the Pledgee may take any or all of the following actions, without
demand of performance or other demand, advertisement or notice of any kind to or
upon Pledgors or any other Person (except as specified in Section 8.1(b)) all
and each of which are hereby expressly waived by Pledgors:
(a) The Pledgee may, in its own name or at its sole option in the
name of any Pledgor, exercise any or all of the rights, powers and
privileges of, and pursue any or all of the remedies accorded to, any
Pledgor under the Collateral and may exclude such Pledgor and all
Persons claiming by, through or under such Pledgor wholly or partly
therefrom, including in such rights, privileges and remedies, but
without limitation, all rights of such Pledgor to demand, receive, xxx
for, compromise and settle all payments in respect of the Collateral,
and in connection therewith to exercise all rights and remedies
thereunder which such Pledgor could enforce if this Agreement had not
been made.
(b) The Pledgee may forthwith collect, recover, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or
may forthwith sell, assign, give an option or options to purchase,
contract to sell or otherwise dispose of and deliver the Collateral, or
any part thereof, in one or more parcels at public or private sale or
sales, at any exchange, broker's board or at any of the Pledgee's
offices or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The
Pledgee need not make any sale of Collateral even if notice thereof has
been given, may reject any and all bids that in
16
its commercially reasonable discretion it shall deem inadequate, and may
adjourn any public or private sale. Pledgors hereby acknowledge that the
Collateral (other than the LLC Interest) is of a type that could decline
speedily in value and is also of a type customarily sold on a recognized
market, in each case within the meaning of Section 9-504 of the UCC as
in effect in any applicable jurisdiction, and that the Pledgee need not
give any notice to Pledgors prior to any sale of the Collateral at any
exchange, broker's board or in any other recognized market. Without
limiting the foregoing, each Pledgor agrees that, with respect to any of
the Collateral, the Pledgee need not give more than five days notice of
the time and place of any public sale or of the time after which a
private sale or other intended disposition is to take place and that
such notice is reasonable notification of such matters, and waives all
other demands or notices of any kind.
(c) In addition to the rights described in the foregoing clauses
(a) and (b), with respect to the LLC Interest, the Pledgee may (i) use,
operate, store, control or manage the LLC Interest, including without
limitation carrying on the business of Red Tulip and exercising all
rights and powers of Entree relating to the LLC Interest, and (ii)
transfer all rights in and under the Red Tulip Operating Agreement,
including without limitation (but subject to the terms of the Red Tulip
Operating Agreement) the right to become a substitute Member (as such
term is defined in the Red Tulip Operating Agreement) of Red Tulip. At
the request of the Pledgee, Entree and Xxxxxxxx shall promptly execute
and deliver all instruments of title and other documents as the Pledgee
may deem necessary or advisable to permit the Pledgee to fully exercise
its rights hereunder.
(d) The Pledgee may, as a matter of right and without notice to
any Pledgor or any Person claiming by, through or under any Pledgor,
cause the appointment of a receiver for all or any part of the
Collateral.
(e) In addition to all other rights and remedies granted to it in
this Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the Secured Obligations, the Pledgee
will have and may exercise with respect to any or all of the Collateral
all of the rights and remedies of a secured party under the UCC and all
other legal and equitable remedies allowed under applicable law.
Each Pledgor consents to and ratifies any action which the Pledgee may
take to enforce its rights under this Section 8.1. Each Pledgor waives to the
full extent permitted by law the benefit of all appraisement, valuation, stay,
extension, moratorium and redemption laws now or hereafter in force and all
rights of marshaling in the event of the sale of the Collateral or any part
thereof or any interest therein. Each Pledgor will execute and deliver such
documents as the Pledgee deems advisable or necessary in order that any such
sale or disposition be made in compliance with applicable law.
Any sale or other disposition of the Collateral or any part thereof or
interest therein in the exercise of any remedy hereunder will constitute a
perpetual bar against each Pledgor and any Persons claiming by, through or under
any Pledgor. Upon any such
17
sale or other disposition, the receipt of the officer or agent making the sale
or other disposition or of the Pledgee is a sufficient discharge to the
purchaser for the purchase money, and such purchaser will have no duty to see to
the application thereof.
8.2 Application of Proceeds Following an Event of Default. All amounts
held or collected by the Pledgee as part of the Collateral (including, without
limitation, all amounts realized as a result of the exercise of any rights and
remedies hereunder) following the occurrence of any Event of Default will be
applied forthwith by the Pledgee as follows:
FIRST: to the payment of all costs and expenses of such exercise
(including, without limitation, the cost of evidence of title and the
costs and expenses, if any, of taking possession of, retaining custody
over and preserving the Collateral or any part thereof, or any interest
therein prior to such exercise), all costs and expenses of any receiver
of the Collateral or any part thereof, or any interest therein, any
taxes, assessments or charges with respect to any of the Collateral,
whether or not prior to the lien of this Agreement, which the Pledgee
may consider it necessary or desirable to pay and all amounts due and
payable to the Pledgee under Section 6.5 and unpaid;
SECOND: to the payment of the accrued and unpaid interest
(including interest on unpaid principal and, to the extent permitted by
applicable law, unpaid interest) of the Note in accordance with the
provisions of the Note;
THIRD: if the Note has not become due and payable in full, to the
payment of all outstanding principal then due and payable on the Note;
FOURTH: if the Note has become due and payable in full whether at
maturity, by prepayment, acceleration, declaration of default or
otherwise, to the payment of the outstanding principal of the Note in
accordance with the provisions of the Note;
FIFTH: to the ratable payment to the Persons entitled thereto of
all other obligations secured hereunder for which moneys have not
theretofore been applied; and
SIXTH: at such time as all of the obligations of the Pledgors
under the Note have been paid in full in cash or in stock in accordance
with the terms of the Note and all other Secured Obligations have been
paid or performed to the satisfaction of the Pledgee, the remainder, if
any, will be paid over to Pledgors, their successors or assigns, or to
whomsoever may be lawfully entitled to receive the same, as determined
by a court of competent jurisdiction.
Notwithstanding anything to the contrary set forth above, the Pledgee
and the Pledgors agree and acknowledge that amounts held or collected by the
Pledgee with respect to the FINDS Shares will not be applied to the payment of
principal of and interest on the Note to the extent that all of the Existing
Secured Obligations have already been satisfied. Nothing herein shall require
the Pledgee to exercise rights against any
18
portion of the Collateral before exercising rights against any other portion of
the Collateral or to apply amounts held or collected by the Pledgee with respect
to the Collateral other than the FINDS Shares in satisfaction of any part of the
Secured Obligations before satisfaction of any other part of the Secured
Obligations.
8.3 Purchase of Collateral by Pledgee. The Pledgee may be a purchaser of
the Collateral or any part thereof or any interest therein at any sale or other
disposition hereunder and may apply against the purchase price the indebtedness
secured hereby.
8.4 Purchaser to Acquire Good Title. Any purchaser of the Collateral at
any sale or other disposition thereof pursuant to this Section 8 will, upon any
such purchase, acquire good title to the Collateral so purchased free of the
lien and security interest created by this Agreement and free of all rights of
equity or redemption in any Pledgor, which rights each Pledgor hereby expressly
waives and releases to the full extent permitted by law, and each Pledgor will
warrant and defend the title of such purchaser against all claims arising by,
through or under the Pledgors. Nevertheless, if so requested by the Pledgee or
any such purchaser, each Pledgor will ratify and confirm any exercise of
remedies by the Pledgee hereunder by executing and delivering to the Pledgee or
such purchaser all bills of sale, assignments, releases and other proper
instruments to effect such ratification and confirmation as may be designated in
any such request. In addition, each Pledgor will do or cause to be done all such
other acts and things as may be reasonably necessary to make such exercise of
remedies valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such exercise, all at such Pledgor's expense.
8.5 Sale of Pledged Stock or LLC Interest Without Registration; Private
Sale of Pledged Stock at a Discount to Market Price. Pledgor recognizes that,
under certain circumstances, (i) the Pledgee may be unable to effect a public
sale of any or all of the Pledged Stock and/or the LLC Interest by reason of the
Securities Act and applicable state or foreign securities laws or otherwise, but
may be compelled to resort to one or more private sales thereof to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such property for their own account for investment and not with a view to the
distribution or resale thereof and who otherwise satisfy the requirements of any
such applicable law, and (ii) any such private sale may result in prices and
other terms less favorable to the seller than if such sale were a public sale.
No such sale will be deemed to have been made in a commercially unreasonable
manner for the reason that it was made as a private sale rather than a public
sale, and the Pledgee will be under no obligation to delay a sale of any of the
Pledged Stock and/or the LLC Interest for the period of time necessary to permit
the registration of any securities for public sale under the Securities Act, or
under applicable state securities laws, or otherwise comply with applicable law,
even if the issuer thereof would agree or has agreed to do so and would be able
to do so.
Pledgor further recognizes that the market for the Pledged Stock is
illiquid and that a public sale of the Pledged Stock in a significant quantity
could have an adverse
19
effect on the market price for the Pledged Stock. Therefore, Pledgor
acknowledges and agrees that, to the fullest extent permitted by applicable law,
no private sale of the Pledged Stock (whether such sale is to the Pledgee or to
a third party) will be deemed to have been made in a commercially unreasonable
manner for the reason that it was made at a price that reflects a discount from
the then current market price of such Pledged Stock. Pledgor further
acknowledges and agrees that, to the fullest extent permitted by applicable law,
any such discount that is calculated in accordance with an appraisal of the
Pledged Stock by an independent appraiser, investment bank, accounting firm or
other qualified consultant shall be deemed to be commercially reasonable.
8.6 Appointment as Attorney-in-Fact. Each Pledgor hereby irrevocably
constitutes and appoints the Pledgee, with full power of substitution, as such
Pledgor's attorney-in-fact, with full irrevocable power and authority in the
place and stead of such Pledgor and in the name of such Pledgor or otherwise,
from time to time in the Pledgee's discretion, to execute and deliver any and
all bills of sale, assignments, instruments of title or other instruments which
the Pledgee may deem necessary or advisable in its exercise of any of the
remedies hereunder, and to take any other action to accomplish the purposes of
this Agreement, including, without limitation, to ask, demand, collect, xxx for,
recover, compound, receive and give acquittance and receipt for moneys due and
to become due under or in connection with the Collateral, to receive, endorse,
and collect any drafts or other instruments, documents and chattel paper in
connection therewith, and to file any claims or take any action or institute any
proceedings which the Pledgee may deem to be necessary or desirable for the
collection thereof, such Pledgor hereby ratifying and confirming all that such
attorney or any substitute may lawfully do by virtue hereof. This power of
attorney is a power coupled with an interest and is irrevocable.
8.7 No Waiver; Cumulative Remedies. No action or inaction of the Pledgee
will be deemed to waive any of the rights, powers or remedies of the Pledgee
hereunder except pursuant to a writing, signed by the Pledgee, and then only to
the extent expressly set forth therein. A waiver by the Pledgee of any right,
power or remedy on any one occasion will not bar the exercise of any right,
power or remedy hereunder on any future occasion. No failure of the Pledgee to
exercise nor delay of the Pledgee in exercising any right, power or remedy will
preclude the exercise of any other right, power or remedy. If the Pledgee
accepts payment of any amount secured hereby after its due date, it will not
thereby be deemed to have waived its right to require prompt payment when due of
all other amounts payable hereunder. Each right, power and remedy of the Pledgee
provided for in this Agreement or now or hereafter existing at law or equity or
by statute or otherwise is cumulative and concurrent and is in addition to every
other such right, power or remedy of the Pledgee, and the exercise of any one or
more of any such rights, powers or remedies with respect to any of the
Collateral will not preclude the simultaneous or later exercise by the Pledgee
of any other right, power or remedy with respect to any other Collateral.
8.8 Restoration of Rights and Remedies. If the Pledgee has instituted
any proceeding to enforce any right, power or remedy under this Agreement and
such proceeding has been discontinued or abandoned for any reason, with or
without notice to Pledgors, or has been determined adversely to the Pledgee,
then and in every such case
20
Pledgors and the Pledgee will be restored to their former positions hereunder,
and thereafter all rights, powers and remedies of the Pledgee will continue as
though no such proceeding had been instituted.
SECTION 9. PLEDGOR'S OBLIGATIONS NOT AFFECTED.
The covenants and agreements of each Pledgor set forth herein are
primary obligations of such Pledgor. All such obligations are absolute and
unconditional, are not subject to any counterclaim, set-off, deduction,
diminution, abatement, recoupment, suspension, deferment, reduction or defense
(other than full and strict compliance by such Pledgor with its obligations
hereunder) based upon any claim any Pledgor, Covista, Red Tulip or any other
Person may have against the Pledgee or any other Person. All such obligations
will remain in full force and effect without regard to, and will not be
released, discharged or in any way affected by, any unenforceability, invalidity
or other infirmity with respect to the Note, or any other circumstance,
condition or occurrence whatsoever, whether foreseeable or unforeseeable and
without regard to whether the Pledgee, any Pledgor, Covista, Red Tulip or any
other entity the capital stock of which (or an equivalent equity interest in
which) has been pledged to Pledgee to secure the Borrowers' obligations under
the Note shall have any knowledge or notice thereof.
SECTION 10. MISCELLANEOUS.
10.1 Amendments, Etc. Any amendment, modification or waiver of any term
or provision of this Agreement must be in writing and signed by the Pledgee. Any
such waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
10.2 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained in this Agreement or the
Note or made in writing by or on behalf of any Pledgor in connection with the
transactions contemplated by this Agreement or the Note will survive the
execution and delivery of this Agreement, any investigation at any time made by
or on behalf of the Pledgee, the purchase of any Note or any payment of any Note
or any disposition of any Note.
10.3 Successors and Assigns. This Agreement is binding upon and will
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, whether so expressed or not.
10.4 Entire Agreement. This Agreement and the Note embody the entire
agreement and understanding between Pledgors and the Pledgee with respect to the
transaction referred to herein and therein and supersede all prior agreements
and understandings, written or oral, relating to the pledge of collateral to the
Pledgee to secure the obligations of the Pledgors under the Note.
10.5 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction is, as to such jurisdiction, ineffective
only to the extent made necessary by such prohibition or unenforceability. Any
such prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable (i) the
21
remaining provisions hereof or (ii) such provision in any other jurisdiction.
There shall be substituted for any such provision so rendered ineffective a
provision which, as far as legally possible, most nearly reflects the intent of
the parties hereto.
10.6 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR THE SUBJECT MATTER OF
ANY OF THE FOREGOING.
10.7 Agreement May Constitute Financing Statement. Each Pledgor consents
to the filing of this Agreement or a photocopy thereof as a financing statement
under the Uniform Commercial Code as in effect in any jurisdiction in which the
Pledgee may determine such filing to be necessary or desirable.
10.8 Miscellaneous. This Agreement may be executed in any number of
counterparts, each of which is an original, but all of which together constitute
but one instrument. Except as otherwise indicated, references herein to any
"Section" means a "Section" of this Agreement. The table of contents and the
section headings in this Agreement are for purposes of reference only and shall
not limit or define the meaning hereof.
10.9 GOVERNING LAW. THIS AGREEMENT AND (UNLESS OTHERWISE EXPRESSLY
PROVIDED) ALL AMENDMENTS AND SUPPLEMENTS TO, AND ALL CONSENTS AND WAIVERS
PURSUANT TO, THIS AGREEMENT WILL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
10.10 Notices, Etc. All notices and other communications provided for
hereunder must be in writing (including telegraphic, telex, telecopy or cable
communication) and must be sent (a) if to any Pledgor, at its address listed on
Exhibit B attached hereto, (b) if to Pledgee, at 000 Xxxxx Xxxx Xxx, Xxxxx 000,
Xxxx Xxxxx, XX 00000, Telephone: 000-000-0000, Facsimile: 000-000-0000, or (c)
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties. All such notices and communications are
effective when received.
10.11 Submission to Jurisdiction; Waiver of Immunity; Agent for Service
of Process. For the purpose of assuring that the Pledgee may enforce its rights
under this Agreement, each Pledgor, for itself and its successors and assigns,
hereby irrevocably (a) agrees that any legal or equitable action, suit or
proceeding against any Pledgor arising out of or relating to this Agreement or
any transaction contemplated hereby or the subject matter of any of the
foregoing may be instituted, at the election of the Pledgee, in any state or
federal court in the Commonwealth of Virginia (including, without limitation,
the
00
X.X. Xxxxxxx Xxxxxxxx Xxxxx for the Eastern District of Virginia) or in any
state or federal court in the State of Florida, (b) waives any objection which
it may now or hereafter have to the venue of any action, suit or proceeding, (c)
irrevocably submits itself to the nonexclusive jurisdiction of any state or
federal court of competent jurisdiction in the Commonwealth of Virginia or the
State of Florida, and (d) irrevocably waives any immunity from jurisdiction to
which it might otherwise be entitled in any such action, suit or proceeding
which may be instituted in any state or federal court of the Commonwealth of
Virginia or the State of Florida, and any immunity from the maintaining of an
action against it to enforce any judgment for money obtained in any such action,
suit or proceeding and, to the extent permitted by applicable law, any immunity
from execution. Each Pledgor acknowledges that it has irrevocably designated and
appointed CT Corporation System (or any successor corporation), at its office in
Virginia and its office in Florida, as its authorized agent to accept and
acknowledge on its behalf service of any and all process which may be served in
any such action, suit or proceeding with respect to any matter as to which it
has submitted to jurisdiction as set forth in this Section 10.11 and agrees that
service upon such authorized agent shall be deemed in every respect service of
process upon such Pledgor or its successors or assigns, and, to the extent
permitted by applicable law, shall be taken and held to be valid personal
service upon it. Each Pledgor will take all action necessary to ensure that such
Pledgor shall at all times have an agent for service of process for the above
purposes in the Commonwealth of Virginia and the State of Florida. This Section
10.11 does not affect the right of the Pledgee to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Pledgor in any jurisdiction.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered personally or by their representative officers
or agents duly authorized as of the date first above written.
Pledgors:
GOLD & XXXXX TRANSFER, S.A.
By: s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx,
Attorney-in-Fact
REVISION LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx,
Manager
FOUNDATION FOR THE INTERNATIONAL
NON-GOVERNMENTAL DEVELOPMENT
OF SPACE
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx,
President
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
ENTREE INTERNATIONAL LIMITED
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx,
President
Pledgee:
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
AGREED AND ACCEPTED (as to Sections 6.5 and 6.7 of the Agreement):
COVISTA COMMUNICATIONS, INC. (formerly known as TOTAL-TEL USA COMMUNICATIONS,
INC.)
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary/Treasurer
Exhibit A
SHARES:
The Shares consist of:
1,179,732 shares of common stock of Covista owned of record and beneficially by
Revision, and represented in certificated form by stock certificate number
CU0008823 of Covista (the "Revision Shares");
703,529 shares of common stock of Covista owned of record and beneficially by
FINDS, and represented in certificated form by stock certificate number
CU0008825 of Covista (the "FINDS Shares"); and
Any and all Demanded Shares pledged pursuant to Section 7.3.
EXISTING PLEDGED SHARES
The Existing Pledged Shares consist of the Revision Shares and the FINDS Shares.
Exhibit B
NOTICE ADDRESSES FOR PLEDGORS
The notice addresses for the respective Pledgors are as follows:
(a) If to Gold & Xxxxx:
Xxxx Xxxxx Building
Wickams Cay
Road Town, Tortolla
British Virgin Islands
with copies to:
Xxxx X. XxXxxxxxxx
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
and
Xxxxxx X. Xxxxxxxx
Revision LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
(b) If to Revision:
Revision LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxx X. XxXxxxxxxx
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
(c) If to FINDS:
0000 X Xxxxxx XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
with copies to:
Xxxx X. XxXxxxxxxx
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
and
Xxxxxx X. Xxxxxxxx
Revision LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
(d) If to Xxxxxxxx:
c/o Revision LLC
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxx X. XxXxxxxxxx
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
(e) if to Entree International:
0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
ii
with a copy to:
Xxxx X. XxXxxxxxxx
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: 000-000-0000
iii
