COLLATERAL PLEDGE AGREEMENT Date: April 6, 2007
Exhibit
10.39
Date:
April 6, 2007
| DEBTOR: | Pacific CMA, Inc. |
| 000-00 Xxxxxxxx Xxxxxxxxx | |
| Xxxxxxx, Xxx Xxxx 00000 | |
| Telecopier No. 000-000-0000 | |
| SECURED PARTY: |
Xxxxx Fargo Bank, National Association, acting
through
its Xxxxx Fargo
Business Credit operating division
|
| 000 Xxxx 00xx Xxxxxx 00xx Xxxxx | |
| Xxx Xxxx, Xxx Xxxx 00000-0000 |
1. Security
Interest and Collateral.
To
secure the payment and performance of the Indebtedness (as defined below) which
Airgate International Corporation, a New York corporation, Airgate International
Corporation (Chicago), an Illinois corporation, and Paradigm International
Inc.,
a Delaware corporation (collectively and individually referred to as the
“Borrowers”) may
now
or at any time hereafter owe to the Secured Party, the Debtor hereby grants
the
Secured Party a security interest (herein called the “Security Interest”) in
all
property of any kind now or at any time hereafter owned by the Debtor, or in
which the Debtor may now or hereafter have an interest, which may now be or
may
at any time hereafter (i) come into the possession or control of the
Secured Party or into the possession or control of the Secured Party’s agents or
correspondents, whether such possession or control is given for collateral
purposes or for safekeeping; or (ii) be transferred or assigned to the
Secured Party by any means permitted under Article 8 of the Uniform Commercial
Code including, but not limited to, (A) those shares of stock held by Debtor
and
listed on Schedule 1 hereto and any certificates representing such shares,
(B)
the limited liability company membership interests held by Debtor and listed
on
Schedule 1 hereto and any certificates representing such interests and all
of
Debtor’s rights, powers and remedies under each operating agreement or limited
liability company agreement relating to such interests, and (C) all dividends,
distributions, cash, instruments and other property of proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all such shares or interests, together with all rights in connection
with such property (the “Collateral”). "Indebtedness" is used herein in its most
comprehensive sense and means any and all advances, debts, obligations and
liabilities of the Borrowers to
the
Secured Party, heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, including
under any swap, derivative, foreign exchange, hedge, deposit, treasury
management or other similar transaction or arrangement at any time entered
into
by the Borrowers with
the
Secured Party, and whether the Borrowers may
be
liable individually or jointly with others, or whether recovery upon such
Indebtedness may be or hereafter becomes unenforceable.
2. Representations,
Warranties and Covenants.
The
Debtor represents, warrants and covenants that:
(a) The
Debtor will duly endorse, in blank, each and every instrument constituting
Collateral by signing on said instrument or by signing a separate document
of
assignment or transfer, if required by the Secured Party.
(b) The
Debtor is the owner of the Collateral free and clear of all liens, encumbrances,
security interests and restrictions, except the Security Interest, a security
interest granted by Debtor to BHC Interim Funding, L.P. and any restrictive
legend appearing on any instrument constituting Collateral.
(c) The
Debtor will keep the Collateral free and clear of all liens, encumbrances and
security interests, except the Security Interest, the security interest granted
by Debtor to BHC Interim Funding, L.P. and any restrictive legend appearing
on
any instrument constituting Collateral.
(d) The
Debtor will pay, when due, all taxes and other governmental charges levied
or
assessed upon or against any Collateral.
(e) At
any
time, upon request by the Secured Party, the Debtor will deliver to the Secured
Party all notices, financial statements, reports or other communications
received by the Debtor as an owner or holder of the Collateral.
(f) The
Debtor will upon receipt deliver to the Secured Party in pledge as additional
Collateral all securities distributed on account of the Collateral such as
stock
dividends and securities resulting from stock splits, reorganizations and
recapitalizations.
3. Rights
of the Secured Party.
The
Debtor agrees that the Secured Party may at any time, whether before or after
the occurrence of an Event of Default and without notice or demand of any kind,
(i) notify the obligor on or issuer of any Collateral to make payment to
the Secured Party of any amounts due or distributable thereon; (ii) in the
Debtor’s name or the Secured Party’s name enforce collection of any Collateral
by suit or otherwise, or surrender, release or exchange all or any part of
it,
or compromise, extend or renew for any period any obligation evidenced by the
Collateral; (iii) receive all proceeds of the Collateral; and
(iv) hold any increase or profits received from the Collateral as
additional security for the Indebtedness, except that any money received from
the Collateral shall, at the Secured Party’s option, be applied in reduction of
the Indebtedness, in such order of application as the Secured Party may
determine, or be remitted to the Debtor.
4. Events
of Default.
Each of
the following occurrences shall constitute an event of default under this
Agreement (herein called “Event of Default”): (i) the Debtor shall
fail to observe or perform any covenant or agreement herein binding on it;
(ii)
any representation or warranty by the Debtor set forth in this Agreement or
made
to the Secured Party in any financial statements or reports submitted to the
Secured Party by or on behalf of the Debtor shall prove materially false or
misleading; (iii) an “Event of Default”, as defined in any credit agreement or
other instrument or agreement evidencing or governing any or all of the
Indebtedness, shall occur.
-2-
5. Remedies
upon Event of Default.
Upon
the occurrence of an Event of Default and at any time thereafter, the Secured
Party may exercise any one or more of the following rights or remedies: (i)
exercise all voting and other rights as a holder of the Collateral; (ii)
exercise and enforce any or all rights and remedies available upon default
to a
secured party under the Uniform Commercial Code as in effect from time to time
in the state of New York, including the right to offer and sell the Collateral
privately to purchasers who will agree to take the Collateral for investment
and
not with a view to distribution and who will agree to the imposition of
restrictive legends on the certificates representing the Collateral, and the
right to arrange for a sale which would otherwise qualify as exempt from
registration under the Securities Act of 1933; and if notice to the Debtor
of
any intended disposition of the Collateral or any other intended action is
required by law in a particular instance, such notice shall be deemed
commercially reasonable if given at least 10 calendar days prior to the date
of
intended disposition or other action; and (iii) exercise or enforce any or
all
other rights or remedies available to the Secured Party by law or agreement
against the Collateral, against the Debtor or against any other person or
property.
-3-
6. Miscellaneous.
Any
disposition of the Collateral in the manner provided in Section 5 shall be
deemed commercially reasonable. This Agreement can be waived, modified, amended,
terminated or discharged, and the Security Interest can be released, only
explicitly in a writing signed by the Secured Party. A waiver signed by the
Secured Party shall be effective only in the specific instance and for the
specific purpose given. Mere delay or failure to act shall not preclude the
exercise or enforcement of any of the Secured Party’s rights or remedies. All
rights and remedies of the Secured Party shall be cumulative and may be
exercised singularly or concurrently, at the Secured Party’s option, and the
exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise or enforcement of any other. All notices
to be
given to the Debtor shall be deemed sufficiently given if delivered or mailed
by
registered or certified mail, postage prepaid, or by telecopier to the Debtor
at
its address or telecopier number, as the case may be, set forth above or at
the
most recent address or telecopier number shown on the Secured Party’s records.
All requests under Section 9-210 of the Uniform Commercial Code (i) shall
be made in a writing signed by a person duly authorized by Debtor,
(ii) shall be personally delivered, sent by registered or certified mail,
return receipt requested, or by overnight courier of national reputation,
(iii) shall be deemed to be sent when received by the Secured Party, and
(iv) shall otherwise comply with the requirements of Section 9-210. The Debtor
requests that the Secured Party respond to all such requests which on their
face
appear to come from an authorized individual and releases the Secured Party
from
any liability for so responding. The Debtor shall pay Secured Party the maximum
amount allowed by law for responding to such requests. The Secured Party’s duty
of care with respect to Collateral in its possession (as imposed by law) shall
be deemed fulfilled if the Secured Party exercises reasonable care in physically
safekeeping such Collateral or, in the case of Collateral in the custody or
possession of a bailee or other third person, exercises reasonable care in
the
selection of the bailee or other third person, and the Secured Party need not
otherwise preserve, protect, insure or care for any Collateral. The Secured
Party shall not be obligated to preserve any rights the Debtor may have against
prior parties, to exercise at all or in any particular manner any voting rights
which may be available with respect to any Collateral, to realize on the
Collateral at all or in any particular manner or order, or to apply any cash
proceeds of Collateral in any particular order of application. The Debtor will
reimburse the Secured Party for all expenses (including reasonable attorneys’
fees and legal expenses) incurred by the Secured Party in the protection,
defense or enforcement of the Security Interest, including expenses incurred
in
any litigation or bankruptcy or insolvency proceedings. This Agreement shall
be
binding upon and inure to the benefit of the Debtor and the Secured Party and
their respective heirs, representatives, successors and assigns and shall take
effect when signed by the Debtor and delivered to the Secured Party, and the
Debtor waives notice of the Secured Party’s acceptance hereof. If any provision
or application of this Agreement is held unlawful or unenforceable in any
respect, such illegality or unenforceability shall not affect other provisions
or applications which can be given effect, and this Agreement shall be construed
as if the unlawful or unenforceable provision or application had never been
contained herein or prescribed hereby. All representations and warranties
contained in this Agreement shall survive the execution, delivery and
performance of this Agreement and the creation and payment of the Indebtedness.
If this Agreement is signed by more than one person as the Debtor, the term
“Debtor” shall refer to each of them separately and to both or all of them
jointly; all such persons shall be bound both severally and jointly with the
other(s); and the Indebtedness shall include all debts, liabilities and
obligations owed to the Secured Party by any Debtor solely or by both or several
or all Debtors jointly or jointly and severally, and all property described
in
Section 1 shall be included as part Collateral, whether it is owned jointly
by
both or all Debtors or is owned in whole or in part by one (or more) of them.
This Agreement shall be governed by the internal laws (other than conflict
laws)
of the state of New York and, unless the context otherwise requires, all terms
used herein which are defined in Articles 1 and 9 of the Uniform Commercial
Code, as in effect in New York, shall have the meanings therein stated. Each
party consents to the personal jurisdiction of the state and federal courts
located in the State of New York in connection with any controversy related
to
this Agreement, waives any argument that venue in any such forum is not
convenient, and agrees that any litigation initiated by any of them in
connection with this Agreement may be venued in either the state and federal
courts located in New York County, New York. THE
PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
ON OR
PERTAINING TO THIS AGREEMENT.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
IN
WITNESS WHEREOF, this Agreement has been executed by the Debtor as of the date
set forth above.
|
PACIFIC
CMA, INC.
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx Xxxxxx |
||
| Title: President | ||
Pacific
CMA International, LLC, a Colorado limited liability company (“Company”)
hereby
(i) acknowledges receipt of a fully executed copy of this Collateral Pledge
Agreement (“Agreement”);
(ii)
consents and agrees to the pledge by Debtor of the Collateral pursuant to the
Agreement and to all of the other terms and provisions of the Agreement; (iii)
agrees to comply with all instructions received by it from Secured Party without
further consent by Debtor; (iv) irrevocably waives any breach or default under
the Operating Agreement of the Company dated April 11, 2002 as a result of
the
execution, delivery and performance by Debtor and Secured Party of the
Agreement; (v) advises Debtor and Secured Party that a pledge of the Collateral
set forth on Schedule 1 to the Agreement has been registered on the books of
Company and in the name of the Secured Party and agrees to so register any
additional Collateral; (vi) represents and warrants that, except for the pledge
in favor of Secured Party and the pledge in favor of BHC Interim Funding, L.P.,
there are no liens, restrictions or adverse claims to which the Collateral
is or
may be subject as of the date hereof; (vii) except with the prior written
consent of Secured Party, agrees not to admit any new members to Company or
to
permit any transfer of any membership interest in Company; and (viii) consents
and agrees to any transfer of the Collateral pursuant to Section 5 of the
Agreement.
|
PACIFIC
CMA INTERNATIONAL, LLC.
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxx | |
|
Name: Xxxxxx Xxx |
||
| Title: Manager | ||
Schedule
1
Pledged
Interests
|
Pledged
Entity
|
Description
of Pledged Interest and Operating Agreement
|
Number
of Interest
|
%
of Outstanding Interests
|
|||
|
Pacific
CMA International, LLC
|
Ownership
Units; Operating Agreement dated as of April 11, 2002
|
100%
|
