PLEDGE AGREEMENT
Exhibit (b)(j)
THIS PLEDGE AGREEMENT (this “Agreement”), dated as of May 19, 2011, is entered into by and
between XXXXXXX XXXXXXX-XXXXX (“Pledgor”), and Xxxxxx X. Xxxxx, as Trustee of the XXXXXX X. XXXXX
2009 DECLARATION OF TRUST (“Secured Party”), with reference to the following:
WHEREAS, Pledgor owns Two Thousand Four Hundred (2,400) shares in Oak Lawn Marketing, Inc., a
Japanese company (“Oak Lawn”);
WHEREAS, Pledgor has executed and delivered to Secured Party that certain Promissory Note,
dated as of May 19, 2011, in the principal amount of Thirty-Nine Million and 00/100 Dollars
($39,000,000.00) (the “Note”); and
WHEREAS, to induce Secured Party to make the financial accommodations provided to Pledgor
pursuant to the Note, Pledgor desires to pledge, grant, transfer, and assign to Secured Party a
security interest in the Collateral (as hereinafter defined) to secure the Secured Obligations (as
hereinafter defined), as provided herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations, and
warranties set forth herein and for other good and valuable consideration, the parties hereto agree
as follows:
1. Definitions and Construction.
(a) Definitions. All initially capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed thereto in the Note. As used in this Agreement:
“Bankruptcy Code” means United States Bankruptcy Code (11 U.S.C. Section 101 et
seq.), as in
effect from time to time, and any successor statute thereto.
“Business Day” means any day that is not a Saturday, Sunday, or other day on which
national
banks are authorized or required to close.
“Collateral” shall mean the Pledged Interests and the Proceeds, collectively.
“Code” means the New York Uniform Commercial Code, as in effect from time to time, and any
successor statute thereto.
“Event of Default” shall have the meaning ascribed thereto in the Note.
“Holder” and “Holders” shall have the meanings ascribed thereto in
Section 3 of this
Agreement.
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“Lien” shall mean any lien, mortgage, pledge, assignment (including any assignment of
rights
to receive payments of money), security interest, charge, or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature thereof, or any
agreement to give any security interest).
“Pledged Interests” shall mean Pledgor’s Two Thousand Four Hundred (2,400) shares in
Oak Lawn.
“Proceeds” shall mean all proceeds (including proceeds of proceeds) of the Pledged
Interests,
including all: (a) rights, benefits, distributions, premiums, profits, dividends, interest, cash,
instruments, documents of title, accounts, contract rights, inventory, equipment, general
intangibles, payment intangibles, deposit accounts, chattel paper, and other property from time to
time received, receivable, or otherwise distributed in respect of or in exchange for, or as a
replacement of or a substitution for, the Pledged Interests or proceeds thereof (including any
cash, equity interests, or other securities or instruments issued after any recapitalization,
readjustment, reclassification, merger or consolidation with respect to Oak Lawn and any security
entitlements, as defined in Section 8-102(a)(17) of the Code, with respect thereto); (b)
“proceeds,” as such term is defined in Section 9-102(a)(64) of the Code; (c) proceeds of any
insurance, indemnity, warranty, or guaranty (including guaranties of delivery) payable from time to
time with respect to the Pledged Interests or proceeds thereof; (d) payments (in any form
whatsoever) made or due and payable to Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Pledged
Interests or proceeds thereof; and (e) other amounts from time to time paid or payable under or in
connection with the Pledged Interests or proceeds thereof.
“Registered Organization” shall have the meaning ascribed thereto in
Section 9-102(a)(70) of
the Code.
“Secured Obligations” shall mean all liabilities, obligations, or undertakings owing by
Pledgor to Secured Party of any kind or description arising out of or outstanding under, advanced
or issued pursuant to, or evidenced by this Agreement or the Note, irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to become due,
voluntary or involuntary, whether now existing or hereafter arising, and including all interest
(including interest that accrues after the filing of a case under the Bankruptcy Code) and any and
all costs, fees (including attorneys fees), and expenses which Pledgor is required to pay pursuant
to any of the foregoing, by law, or otherwise.
“Securities Act” shall have the meaning ascribed thereto in Section 9(c) of this
Agreement.
(b) Construction.
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(i) Unless the context of this Agreement clearly requires otherwise, references to the plural
include the singular and to the singular include the plural, the part includes the whole, the term
“including” is not limiting, and the term “or” has, except where otherwise indicated, the inclusive
meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,”
and other similar terms in this Agreement refer to this Agreement as a whole and not exclusively to
any particular provision of this Agreement. Article, section, subsection, exhibit, and schedule
references are to this Agreement unless otherwise specified. All of the exhibits or schedules
attached to this Agreement shall be deemed incorporated herein by reference. Any reference to
either of the following documents includes any and all alterations, amendments, restatements,
extensions, modifications, renewals, or supplements thereto or thereof, as applicable: this
Agreement or the Note.
(ii) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against Secured Party or Pledgor, whether under any rule of construction or otherwise. On
the contrary, this Agreement has been reviewed by both of the parties and their respective counsel
and shall be construed and interpreted according to the ordinary meaning of the words used so as to
fairly accomplish the purposes and intentions of the parties hereto.
(iii) In the event of any direct conflict between the express terms and provisions of this
Agreement and of the Note, the terms and provisions of this Agreement shall control.
2. Pledge. As security for the prompt payment and performance of the Secured
Obligations in full by Pledgor when due, whether at stated maturity, by acceleration, or otherwise
(including amounts that would become due but for the operation of the provisions of the Bankruptcy
Code), Pledgor hereby pledges, grants, transfers, and assigns to Secured Party a security interest
in all of Pledgor’s right, title, and interest in and to the Collateral.
3. Delivery and Registration of Collateral.
(a) All certificates or instruments representing or evidencing the Collateral shall be
promptly delivered by Pledgor to Secured Party or Secured Party’s designee pursuant hereto at a
location designated by Secured Party and shall be held by or on behalf of Secured Party pursuant
hereto, and shall be in suitable form for transfer by delivery, or shall be accompanied by duly
executed indorsement certificate or other instrument of transfer or assignment in blank, in form
and substance satisfactory to Secured Party. Secured Party shall have the right to xxxx any
certificate or instrument representing or evidencing the Collateral with a legend indicating that
such Collateral is subject to the security interest granted hereby.
(b) Upon the occurrence and during the continuance of an Event of Default, Secured Party shall
have the right, at any time in its discretion and without notice to Pledgor, to transfer to or to
register on the books of Oak Lawn (or of any other person maintaining records with respect to the
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Collateral) in the name of Secured Party or any of its nominees any or all of the Collateral. In
addition, Secured Party shall have the right at any time to exchange certificates or instruments
representing or evidencing Collateral for certificates or instruments of smaller or larger
denominations.
(c) If, at any time and from time to time, any Collateral (including any certificate or
instrument representing or evidencing any Collateral) is in the possession of a person other than
Secured Party or Pledgor (a “Holder”), then Pledgor shall immediately, at Secured Party’s option,
either cause such Collateral to be delivered into Secured Party’s possession, or cause such Holder
to enter into a control agreement, in form and substance satisfactory to Secured Party, and take
all other steps deemed necessary by Secured Party to perfect the security interest of Secured Party
in such Collateral, all pursuant to Sections 9-106 and 9-313 of the Code or other applicable law
governing the perfection of Secured Party’s security interest in the Collateral in the possession
of such Holder.
(d) Any and all Collateral (including dividends, interest, and other cash distributions) at
any time received or held by Pledgor shall be so received or held in trust for Secured Party, shall
be segregated from other funds and property of Pledgor and shall be forthwith delivered to Secured
Party in the same form as so received or held, with any necessary indorsements; provided that cash
dividends or distributions received by Pledgor, may be retained by Pledgor in accordance with
Section 4.
(e) If at any time, and from time to time, any Collateral consists of an uncertificated
security or a security in book entry form, then Pledgor shall immediately cause such Collateral to
be registered or entered, as the case may be, in the name of Secured Party, or otherwise cause
Secured Party’s security interest thereon to be perfected in accordance with applicable law.
4. Voting Rights and Dividends.
(a) So long as no Event of Default shall have occurred and be continuing, Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or
any part thereof for any purpose not inconsistent with the terms of this Agreement and the Note and
shall be entitled to receive and retain any cash dividends or distributions paid or distributed in
respect of the Collateral.
(b) Upon the occurrence and during the continuance of an Event of Default, all rights of
Pledgor to exercise the voting and other consensual rights or receive and retain cash dividends or
distributions that it would otherwise be entitled to exercise or receive and retain, as applicable
pursuant to Section 4(a), shall cease, and all such rights shall thereupon become vested in Secured
Party, who shall thereupon have the sole right to exercise such voting or other consensual rights
and to receive and retain such cash dividends and distributions. Pledgor shall execute and deliver
(or cause to be executed and delivered) to Secured Party all such proxies and other instruments as
Secured Party may reasonably request for the purpose of enabling Secured Party to exercise the
voting and other rights which Secured
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Party is entitled to exercise and to receive the dividends and distributions that Secured Party is
entitled to receive and retain pursuant to the preceding sentence.
5. Representations and Warranties. Pledgor represents, warrants, and covenants as
follows:
(a) Pledgor has taken all steps it deems necessary or appropriate to be informed on a
continuing basis of changes or potential changes affecting the Collateral (including rights of
conversion and exchange, rights to subscribe, payment of dividends, reorganizations or
recapitalization, tender offers and voting and registration rights), and Pledgor agrees that
Secured Party shall have no responsibility or liability for informing Pledgor of any such changes
or potential changes or for taking any action or omitting to take any action with respect thereto.
(b) All information herein or hereafter supplied to Secured Party by or on behalf of Pledgor
in writing with respect to the Collateral is, or in the case of information hereafter supplied will
be, accurate and complete in all material respects.
(c) Pledgor is and will be the sole legal and beneficial owner of the Collateral (including
the Pledged Interests and all other Collateral acquired by Pledgor after the date hereof) free and
clear of any adverse claim, Lien, or other right, title, or interest of any party, other than the
Liens in favor of Secured Party.
(d) This Agreement, and the delivery to Secured Party of the Pledged Interests representing
Collateral (or the control agreements referred to in Section 3 of this Agreement), creates a valid,
perfected, and first priority security interest in one hundred percent (100%) of the Pledged
Interests in favor of Secured Party securing payment of the Secured Obligations, and all actions
necessary to achieve such perfection have been duly taken.
(e) Each of the Pledged Interests has been duly authorized and validly issued and is fully
paid and nonassessable.
(f) Neither the pledge of the Collateral pursuant to this Agreement nor the extensions of
credit represented by the Secured Obligations violates Regulation T, U, or X of the Board of
Governors of the Federal Reserve System.
(g) Schedule 1 to this Agreement is true and correct and complete in all material
respects.
6. Further Assurances.
(a) Pledgor agrees that from time to time, at the expense of Pledgor, Pledgor shall promptly
execute and deliver all further instruments and documents, and take all further action that may
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be necessary or reasonably desirable, or that Secured Party may request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to enable Secured Party
to exercise and enforce Secured Party’s rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, Pledgor shall: (i) at the request of
Secured Party, xxxx conspicuously each of Pledgor’s records pertaining to the Collateral with a
legend, in form and substance reasonably satisfactory to Secured Party, indicating that such
Collateral is subject to the security interest granted hereby; (ii) execute and deliver such
instruments or notices, as may be necessary or reasonably desirable, or as Secured Party may
request, in order to perfect and preserve the first priority security interests granted or
purported to be granted hereby; (iii) allow inspection of the Collateral by Secured Party or
persons designated by Secured Party; and (iv) appear in and defend any action or proceeding that
may affect Pledgor’s title to or Secured Party’s security interest in the Collateral.
(b) Pledgor hereby authorizes Secured Party to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the Collateral. A carbon,
photographic, or other reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.
(c) Pledgor shall furnish to Secured Party, upon the request of Secured Party: (i) a
certificate executed by Pledgor, and dated as of the date of delivery to Secured Party, itemizing
in such detail as Secured Party may request, the Collateral which, as of the date of such
certificate, has been delivered to Secured Party by Pledgor pursuant to the provisions of this
Agreement; and (ii) such statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as Secured Party may request.
7. Covenants of Pledgor. Pledgor shall:
(a) Perform each and every covenant in the Note and this Agreement, applicable to Pledgor;
(b) Upon receipt by Pledgor of any material notice, report, or other communication from Oak
Lawn or any Holder relating to all or any part of the Collateral, deliver such notice, report or
other communication to Secured Party as soon as possible, but in no event later than five (5) days
following the receipt thereof by Pledgor.
8. Secured Party as Pledgor’s Attorney-in-Fact.
(a) Pledgor hereby irrevocably appoints Secured Party as Pledgor’s attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured Party, or
otherwise, from time to time at Secured Party’s discretion, to take any action and to execute any
instrument that Secured Party may reasonably deem necessary or advisable to accomplish the purposes
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of this Agreement, including: (i) upon the occurrence and during the continuance of an Event of
Default, to receive, indorse, and collect all instruments made payable to Pledgor representing any
dividend, interest payment, or other distribution in respect of the Collateral or any part thereof
to the extent permitted hereunder and to give full discharge for the same and to execute and file
governmental notifications and reporting forms; (ii) to enter into any control agreements Secured
Party deems necessary pursuant to Section 3 of this Agreement; or (iii) to arrange for the transfer
of the Collateral on the books of Oak Lawn or any other person to the name of Secured Party or to
the name of Secured Party’s nominee.
(b) In addition to the designation of Secured Party as Pledgor’s attorney-in-fact in
subsection (a) above, Pledgor hereby irrevocably appoints Secured Party as Pledgor’s agent and
attorney-in-fact to make, execute and deliver any and all documents and writings which may be
necessary or appropriate for approval of, or be required by, any regulatory authority located in
any city, county, state, or country where Pledgor or Oak Lawn engage in business, in order to
transfer or to more effectively transfer any of the Pledged Interests or otherwise enforce Secured
Party’s rights hereunder.
9. Remedies upon Default. Upon the occurrence and during the continuance of an Event
of Default:
(a) Secured Party may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and remedies of a secured
party on default under the Code (irrespective of whether the Code applies to the affected items of
Collateral), and Secured Party may also without notice (except as specified below) sell the
Collateral or any part thereof in one or more parcels at public or private sale, at any exchange,
broker’s board or at any of Secured Party’s offices or elsewhere, for cash, on credit, or for
future delivery, at such time or times and at such price or prices and upon such other terms as
Secured Party may deem commercially reasonable, irrespective of the impact of any such sales on the
market price of the Collateral. To the maximum extent permitted by applicable law, Secured Party
may be the purchaser of any or all of the Collateral at any such sale and shall be entitled, for
the purpose of bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use and apply all or any part of the
Secured Obligations as a credit on account of the purchase price of any Collateral payable at such
sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim
or right on the part of Pledgor, and Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay, or appraisal that it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. Pledgor agrees that, to the
extent notice of sale shall be required by law, at least ten (10) calendar days notice to Pledgor
of the time and place of any public sale or the time after which a private sale is to be made shall
constitute reasonable notification. Secured Party shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or
private sale from time to time by announcement at
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the time and place fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. To the maximum extent permitted by law, Pledgor hereby
waives any claims against Secured Party arising because the price at which any Collateral may have
been sold at such a private sale was less than the price that might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer such Collateral to
more than one offeree.
(b) Pledgor hereby agrees that any sale or other disposition of the Collateral conducted in
conformity with reasonable commercial practices of banks, insurance companies, or other financial
institutions in the city and state where Secured Party is located in disposing of property similar
to the Collateral shall be deemed to be commercially reasonable.
(c) Pledgor hereby acknowledges that the sale by Secured Party of any Collateral pursuant to
the terms hereof in compliance with the Securities Act of 1933 as now in effect or as hereafter
amended, or any similar statute hereafter adopted with similar purpose or effect (the “Securities
Act”), as well as applicable “Blue Sky” or other state securities laws, may require strict
limitations as to the manner in which Secured Party or any subsequent transferee of the Collateral
may dispose thereof. Pledgor acknowledges and agrees that in order to protect Secured Party’s
interest it may be necessary to sell the Collateral at a price less than the maximum price
attainable if a sale were delayed or were made in another manner, such as a public offering under
the Securities Act. Pledgor has no objection to sale in such a manner and agrees that Secured Party
shall have no obligation to obtain the maximum possible price for the Collateral. Without limiting
the generality of the foregoing, Pledgor agrees that, upon the occurrence and during the
continuation of an Event of Default, Secured Party may, subject to applicable law, from time to
time attempt to sell all or any part of the Collateral by a private placement, restricting the
bidders and prospective purchasers to those who will represent and agree that they are purchasing
for investment only and not for distribution. In so doing, Secured Party may solicit offers to buy
the Collateral or any part thereof for cash, from a limited number of investors reasonably believed
by Secured Party to be institutional investors or other accredited investors who might be
interested in purchasing the Collateral. If Secured Party shall solicit such offers, then the
acceptance by Secured Party of one of the offers shall be deemed to be a commercially reasonable
method of disposition of the Collateral.
(d) If Secured Party shall determine to exercise Secured Party’s right to sell all or any
portion of the Collateral pursuant to this Section, Pledgor agrees that, upon request of Secured
Party, Pledgor shall, at Pledgor’s own expense:
(i) use Pledgor’s best efforts to execute and deliver, and cause Oak Lawn and the
directors
and officers thereof to execute and deliver, all such instruments and documents, and to do or cause
to be done all such other acts and things, as may be necessary or, in the opinion of Secured Party,
advisable to register such Collateral under the provisions of the Securities Act, and to cause the
registration statement relating thereto to become effective and to remain effective for such period
as
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prospectuses are required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectuses which, in the opinion of Secured Party, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto;
(ii) use Pledgor’s best efforts to qualify the Collateral under the state securities laws
or
“Blue Sky” laws and to obtain all necessary governmental approvals for the sale of the Collateral,
as requested by Secured Party;
(iii) cause Oak Lawn to make available to Oak Lawn’s respective security holders, as soon
as
practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the
Securities Act;
(iv) execute and deliver, or cause the officers and directors of Oak Lawn to execute and
deliver, to any person, entity or governmental authority as Secured Party may choose, any and all
documents and writings which, in Secured Party’s reasonable judgment, may be necessary or
appropriate for approval, or be required by, any regulatory authority located in any city, county,
state, or country where Pledgor or Oak Lawn engage in business, in order to transfer or to more
effectively transfer the Pledged Interests or otherwise enforce Secured Party’s rights hereunder;
and
(v) do or cause to be done all such other acts and things as may be necessary to make such
sale of the Collateral or any part thereof valid and binding and in compliance with applicable law.
Pledgor acknowledges that there is no adequate remedy at law for failure by Pledgor to comply
with the provisions of this Section and that such failure would not be adequately compensable in
damages, and therefore agrees that Pledgor’s agreements contained in this Section may be
specifically enforced.
(e) EACH OF PLEDGOR AND SECURED PARTY HEREBY WAIVES TRIAL BY JURY IN ANY COURT AND IN ANY
SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE
FINANCING TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART AND/OR THE ENFORCEMENT OF ANY OF THE
SECURED PARTY’S RIGHTS AND REMEDIES. PLEDGOR ACKNOWLEDGES THAT PLEDGOR MAKES THIS WAIVER
KNOWINGLY, VOLUNTARILY AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER
WITH PLEDGOR’S ATTORNEYS. NO PARTY TO THIS AGREEMENT HAS AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY HERETO THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
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(f) PLEDGOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A
COMMERCIAL TRANSACTION UNDER APPLICABLE LAW, OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW
WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE SECURED PARTY MAY DESIRE TO USE, PLEDGOR’S RIGHTS:
(1) TO NOTICE AND HEARING, (2) TO RAISE SETOFFS, COUNTERCLAIMS, OR DEFENSES IN CONNECTION WITH ANY
PREJUDGMENT REMEDY SOUGHT BY THE SECURED PARTY, (3) TO REQUEST THAT THE SECURED PARTY POST A BOND
IN CONNECTION WITH ANY PREJUDGMENT REMEDY SOUGHT AND (4) TO CONTEST ANY PREJUDGMENT REMEDY ON THE
GROUNDS THAT THE SECURED PARTY’S CLAIM IS ADEQUATELY COVERED BY INSURANCE UNLESS THE SECURED PARTY
IS PROVIDED WITH A COPY OF THE POLICY PROVIDING COVERAGE AND A LETTER FROM THE INSURER SPECIFICALLY
STATING THE DOLLAR AMOUNT OF THE SECURED PARTY’S COVERAGE AND THAT THE SECURED PARTY’S CLAIM IS
COVERED, WITHOUT RESERVATION, UNDER THE POLICY, AND FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT
FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR
EXTENSIONS, AND ALL RIGHTS UNDER ANY STATUTE OF LIMITATIONS.
10. Application of Proceeds. Upon the occurrence and during the continuance of an
Event of Default, any cash held by Secured Party as Collateral and all cash Proceeds received by
Secured Party in respect of any sale of, collection from, or other realization upon all or any part
of the Collateral pursuant to the exercise by Secured Party of Secured Party’s remedies as a
secured creditor as provided in Section 9 shall be applied from time to time by Secured Party in
Secured Party’s discretion.
11. Indemnity and Expenses. Pledgor agrees:
(a) To indemnify and hold harmless Secured Party from and against any and all claims, damages,
demands, losses, obligations, judgments, and liabilities (including, without limitation, reasonable
attorneys’ fees and expenses) in any way arising out of or in connection with this Agreement or the
Secured Obligations, except to the extent the same shall arise as a result of the gross negligence
or willful misconduct of the party seeking to be indemnified; and
(b) To pay and reimburse Secured Party upon demand for all reasonable costs and expenses
(including, without limitation, reasonable attorneys’ fees and expenses) that Secured Party may
incur in connection with (i) the custody, use or preservation of, or the sale of, collection from
or other realization upon, any of the Collateral, including the reasonable expenses of re-taking,
holding, preparing for sale or lease, selling or otherwise disposing of, or realizing on the
Collateral, (ii) the exercise or enforcement of any rights or remedies granted hereunder or under
the Note or otherwise available to Secured Party (whether at law, in equity or otherwise), or (iii)
the failure by Pledgor to perform or observe any of the provisions hereof. The provisions of this
Section shall survive the execution and delivery of this
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Agreement, the repayment of any of the Secured Obligations, or the termination of the commitments
of Secured Party under this Agreement.
12. Duties of Secured Party. The powers conferred on Secured Party hereunder are
solely to protect Secured Party’s interests in the Collateral and shall not impose on Secured Party
any duty to exercise such powers. Except as provided in Section 9-207 of the Code, Secured Party
shall have no duty with respect to the Collateral or any responsibility for taking any necessary
steps to preserve rights against any persons with respect to any Collateral.
13. Choice of Law and Venue; Submission to Jurisdiction; Service of Process.
(a) THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE
RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF).
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL
BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK OR, AT
THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH SECURED PARTY SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY.
(b) PLEDGOR HEREBY SUBMITS FOR PLEDGOR AND IN RESPECT OF PLEDGOR’S PROPERTY, GENERALLY AND
UNCONDITIONALLY, TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES, TO THE EXTENT PERMITTED
UNDER APPLICABLE LAW, ANY RIGHT PLEDGOR MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR
TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
(c) PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT, OR OTHER PROCESS ISSUED
IN ANY ACTION OR PROCEEDING AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT, OR OTHER PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO PLEDGOR AT PLEDGOR’S ADDRESS FOR NOTICES
IN ACCORDANCE WITH THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF PLEDGOR’S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL,
PROPER POSTAGE PREPAID.
(d) NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF SECURED PARTY
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY
SECURED PARTY OF ANY
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JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
14. Amendments; Etc. No amendment or waiver of any provision of this Agreement nor
consent to any departure by Pledgor herefrom shall in any event be effective unless the same shall
be in writing and signed by Secured Party, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. No failure on the part of
Secured Party to exercise, and no delay in exercising any right under this Agreement, the Note, or
otherwise with respect to any of the Secured Obligations, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right under this Agreement, the Note, or otherwise with
respect to any of the Secured Obligations preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided for in this Agreement or otherwise with respect
to any of the Secured Obligations are cumulative and not exclusive of any remedies provided by law.
15. Notices. Unless otherwise specifically provided herein, all notices shall be in
writing addressed to the respective party as set forth below: and may be personally served, faxed,
telecopied, or sent by overnight courier service or United States mail:
If to Pledgor:
c/o
Codan trust Company (Cayman) Islands
Cricket Square, Xxxxxxxx Drive
P.O. Box 2681
Grand Cayman KY1-1111
Cayman Islands
Cricket Square, Xxxxxxxx Drive
P.O. Box 2681
Grand Cayman KY1-1111
Cayman Islands
If to Secured Party:
c/o
OAR Management, Inc.
000 X. Xxxxxxx Xxxx. #0000
Xxx Xxxxx, XX 00000
000 X. Xxxxxxx Xxxx. #0000
Xxx Xxxxx, XX 00000
Any notice given pursuant to this section shall be deemed to have been given: (a) if delivered
in person, when delivered; (b) if delivered by fax, on the date of transmission if transmitted on a
Business
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Day before 4:00 p.m. at the place of receipt or, if not, on the next succeeding Business Day; (c)
if delivered by overnight courier, two (2) days after delivery to such courier properly addressed;
or (d) if by United States mail, four (4) Business Days after depositing in the United States mail,
with postage prepaid and properly addressed. Any party hereto may change the address or fax number
at which it is to receive notices hereunder by notice to the other party in writing in the
foregoing manner.
16. Continuing Security Interest. This Agreement shall create a continuing security
interest in the Collateral and shall: (a) remain in full force and effect until the indefeasible
payment in full of the Secured Obligations, including the cash collateralization, expiration, or
cancellation of all Secured Obligations; (b) be binding upon Pledgor and Pledgor’s successors and
assigns; and (c) inure to the benefit of Secured Party and Secured Party’s successors, transferees,
and assigns. Upon the indefeasible payment in full of the Secured Obligations, including the cash
collateralization, expiration, or cancellation of all Secured Obligations, the security interests
granted herein shall automatically terminate and all rights to the Collateral shall revert to
Pledgor. Upon any such termination, Secured Party shall, at Pledgor’s expense, execute and deliver
to Pledgor such documents as Pledgor shall reasonably request to evidence such termination. Such
documents shall be prepared by Pledgor and shall be in form and substance reasonably satisfactory
to Secured Party.
17. Security Interest Absolute. To the maximum extent permitted by law, all rights of
Secured Party, all security interests hereunder, and all obligations of Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Secured Obligations or any other
agreement or instrument relating thereto;
(b) any change in the time, manner, or place of payment of, or in any other term of, all or
any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure
from the Note, or any other agreement or instrument relating thereto;
(c) any exchange, release, or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to departure from any guaranty for all or any of the Secured
Obligations; or
(d) any other circumstances that might otherwise constitute a defense available to, or a
discharge of, Pledgor.
18. Headings. Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this Agreement or be given any
substantive effect.
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19. Severability. In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
Agreement. Delivery of an executed counterpart of this Agreement by facsimile or e-mail (i.e., via
PDF) shall be equally as effective as delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement by facsimile or e-mail
(i.e., via PDF) also shall deliver an original executed counterpart of this Agreement but the
failure to deliver an original executed counterpart shall not affect the validity, enforceability,
or binding effect hereof.
21. Waiver of Marshaling. Each of Pledgor and Secured Party acknowledges and agrees
that in exercising any rights under or with respect to the Collateral: (a) Secured Party is under
no obligation to marshal any Collateral; (b) may, in Secured Party’s absolute discretion, realize
upon the Collateral in any order and in any manner it so elects; and (c) may, in Secured Party’s
absolute discretion, apply the proceeds of any or all of the Collateral to the Secured Obligations
in any order and in any manner it so elects. Pledgor and Secured Party waive any right to require
the marshaling of any of the Collateral.
[Remainder of Page Intentionally Left Blank — Signature Page Follows]
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IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to be duly executed
and delivered as of the date first written above.
| PLEDGOR: |
||||
| /s/ Xxxxxxx Xxxxxxx-Xxxxx | ||||
| XXXXXXX XXXXXXX-XXXXX | ||||
| SECURED PARTY: XXXXXX X. XXXXX 2009 DECLARATION OF TRUST |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Trustee | |||
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