Exhibit 10.12 | ||
STOCK PLEDGE AGREEMENT | ||
This Stock Pledge Agreement (as amended, modified, restated or supplemented from | ||
time to time, this “Agreement”), dated as of September 28, 2007, among LV | ||
ADMINISTRATIVE SERVICES, INC., as administrative and collateral agent for the Creditor | ||
Parties (as defined below) (the “Pledgee”), eLEC Communications Corp., a New York | ||
corporation (the “Company”), and each of the other undersigned parties (the Company and each | ||
such other undersigned party, a “Pledgor” and collectively, the “Pledgors”). | ||
BACKGROUND | ||
The Company has entered into a Securities Purchase Agreement, dated as of the date | ||
hereof (as amended, modified, restated or supplemented from time to time, the “Securities | ||
Purchase Agreement”) pursuant to which the Creditor Parties (as defined in the Securities | ||
Purchase Agreement) party thereto provide or will provide certain financial accommodations to | ||
the Company. | ||
In order to induce the Pledgee and the other Creditor Parties to provide or continue to | ||
provide the financial accommodations described in the Securities Purchase Agreement, each | ||
Pledgor has agreed to pledge and grant a security interest in the collateral described herein to the | ||
Pledgee on the terms and conditions set forth herein. | ||
NOW, THEREFORE, in consideration of the premises and for other good and valuable | ||
consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: | ||
1. | Defined Terms. All capitalized terms used herein which are not defined shall | |
have the meanings given to them in the Securities Purchase Agreement. | ||
2. | Pledge and Grant of Security Interest. To secure the full and punctual payment | |
and performance of (the following clauses (a) and (b), collectively, the “Obligations”) (a) all | ||
obligations owing to Pledgee and the other Creditor Parties under the Securities Purchase | ||
Agreement and the Related Agreements, as each may be amended, restated, modified and/or | ||
supplemented from time to time, collectively, the “Documents”) and (b) all other indebtedness, | ||
obligations and liabilities of each Pledgor to the Pledgee and the other Creditor Parties, whether | ||
now existing or hereafter arising, direct or indirect, liquidated or unliquidated, absolute or | ||
contingent, due or not due and whether under, pursuant to or evidenced by a note, agreement, | ||
guaranty, instrument or otherwise (in each case, irrespective of the genuineness, validity, | ||
regularity or enforceability of such Indebtedness, or of any instrument evidencing any of the | ||
Indebtedness or of any collateral therefor or of the existence or extent of such collateral, and | ||
irrespective of the allowability, allowance or disallowance of any or all of such in any case | ||
commenced by or against any Pledgor under Title 11, United States Code, including, without | ||
limitation, indebtedness, obligations of each Pledgor for post-petition interest, fees, costs and | ||
charges that would have accrued or been added to the Indebtedness but for the commencement of | ||
such case), each Pledgor hereby pledges, assigns, hypothecates, transfers and grants a security |
interest to the Pledgee, for the ratable benefit of the Creditor Parties, in all of the following (the |
“Collateral”): |
(a) the shares of stock or other equity interests set forth onSchedule A |
annexed hereto and expressly made a part hereof (together with any additional shares of stock or |
other equity interests acquired by any Pledgor, the “Pledged Stock”), the certificates representing |
the Pledged Stock and all dividends, cash, instruments and other property or proceeds from time |
to time received, receivable or otherwise distributed in respect of or in exchange for any or all of |
the Pledged Stock; |
(b) all additional shares of stock or other equity interests of any issuer (each, |
an “Issuer”) of the Pledged Stock from time to time acquired by any Pledgor in any manner, |
including, without limitation, stock dividends or a distribution in connection with any increase or |
reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares, |
stock split, spin-off or split-off (which shares shall be deemed to be part of the Collateral), and |
the certificates representing such additional shares, and all dividends, cash, instruments and other |
property or proceeds from time to time received, receivable or otherwise distributed in respect of |
or in exchange for any or all of such shares; and |
(c) all options and rights, whether as an addition to, in substitution of or in |
exchange for any shares of any Pledged Stock and all dividends, cash, instruments and other |
property or proceeds from time to time received, receivable or otherwise distributed in respect of |
or in exchange for any or all such options and rights. |
3. Delivery of Collateral. All certificates representing or evidencing the Pledged |
Stock shall be delivered to and held by or on behalf of Pledgee pursuant hereto and shall be |
accompanied by duly executed instruments of transfer or assignments in blank, all in form and |
substance satisfactory to the Pledgee. Each Pledgor hereby authorizes the Issuer upon demand |
by the Pledgee to deliver any certificates, instruments or other distributions issued in connection |
with the Collateral directly to the Pledgee, in each case to be held by the Pledgee, subject to the |
terms hereof. If an Event of Default (as defined below) has occurred and is continuing beyond |
any applicable grace period, the Pledgee shall have the right, during such time in its discretion |
and without notice to the Pledgor, to transfer to or to register in the name of the Pledgee or any |
of its nominees any or all of the Pledged Stock. In addition, the Pledgee shall have the right at |
such time to exchange certificates or instruments representing or evidencing Pledged Stock for |
certificates or instruments of smaller or larger denominations. Notwithstanding anything |
contained herein to the contrary, Pledgee acknowledges that all certificates representing or |
evidencing the Pledged Stock have been previously delivered to Laurus Master Fund, Ltd. |
(“Laurus”) as collateral security for the Pledgor’s obligations to Laurus. The Pledgee hereby |
agrees that, so long as the Pledged Stock is pledged to Laurus and Laurus is in possession of |
such certificates, such certificates shall not be required to be delivered to the Pledgee;provided, |
however, that once Laurus terminates its security interest in such Pledged Stock the certificates |
shall be delivered to the Pledgee to be held by the Pledgee in accordance with the terms of this |
Agreement. |
4. Representations and Warranties of each Pledgor. Each Pledgor jointly and |
severally represents and warrants to the Pledgee (which representations and warranties shall be |
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deemed to continue to be made until all of the Indebtedness has been paid in full and each |
Document and each agreement and instrument entered into in connection therewith has been |
irrevocably terminated) that: |
(a) the execution, delivery and performance by each Pledgor of this |
Agreement and the pledge of the Collateral hereunder do not and will not result in any violation |
of any agreement, indenture, instrument, license, judgment, decree, order, law, statute, ordinance |
or other governmental rule or regulation applicable to any Pledgor; |
(b) this Agreement constitutes the legal, valid, and binding obligation of each |
Pledgor enforceable against each Pledgor in accordance with its terms; |
(c) (i) all Pledged Stock owned by each Pledgor is set forth onSchedule A |
hereto and (ii) each Pledgor is the direct and beneficial owner of each share of the Pledged |
Stock; |
(d) all of the shares of the Pledged Stock have been duly authorized, validly |
issued and are fully paid and non-assessable; |
(e) no consent or approval of any person, corporation, governmental body, |
regulatory authority or other entity, is or will be necessary for (i) the execution, delivery and |
performance of this Agreement, (ii) the exercise by the Pledgee of any rights with respect to the |
Collateral or (iii) the pledge and assignment of, and the grant of a security interest in, the |
Collateral hereunder; |
(f) there are no pending or, to the best of Pledgor’s knowledge, threatened |
actions or proceedings before any court, judicial body, administrative agency or arbitrator which |
may materially adversely affect the Collateral; |
(g) each Pledgor has the requisite power and authority to enter into this |
Agreement and to pledge and assign the Collateral to the Pledgee, for the ratable benefit of the |
Creditor Parties, in accordance with the terms of this Agreement; |
(h) each Pledgor owns each item of the Collateral pledged by it hereunder |
and, except for the pledge and security interest granted to Laurus and to the Pledgee hereunder, |
immediately following the closing of the transactions contemplated by the Documents, the |
Collateral shall be free and clear of any other security interest, pledge, claim, lien, charge, |
hypothecation, assignment, offset or encumbrance whatsoever (collectively, “Liens”); |
(i) there are no restrictions on transfer of the Pledged Stock contained in the |
certificate of incorporation or by-laws (or equivalent organizational documents) of the Issuer or |
otherwise which have not otherwise been enforceably and legally waived by the necessary |
parties; |
(j) none of the Pledged Stock has been issued or transferred in violation of |
the securities registration, securities disclosure or similar laws of any jurisdiction to which such |
issuance or transfer may be subject; |
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(k) the pledge and assignment of the Collateral and the grant of a security |
interest under this Agreement vest in the Pledgee, for the ratable benefit of the Creditor Parties, |
all rights of each Pledgor in the Collateral as contemplated by this Agreement; and |
(l) the Pledged Stock includes one hundred percent (100%) of the issued and |
outstanding shares of capital stock of each Pledgor (other than the Company). |
5. Covenants. Each Pledgor jointly and severally covenants that, until the |
Indebtedness shall be satisfied in full and each Document and each agreement and instrument |
entered into in connection therewith is irrevocably terminated: |
(a) No Pledgor will sell, assign, transfer, convey, or otherwise dispose of its |
rights in or to the Collateral or any interest therein; nor will any Pledgor create, incur or permit to |
exist any Lien whatsoever with respect to any of the Collateral or the proceeds thereof other than |
that created hereby. |
(b) Each Pledgor will, at its expense, defend the Pledgee’s right, title and |
security interest in and to the Collateral against the claims of any other party. |
(c) Each Pledgor shall at any time, and from time to time, upon the written |
request of the Pledgee, execute and deliver such further documents and do such further acts and |
things as the Pledgee may reasonably request in order to effect the purposes of this Agreement |
including, but without limitation, delivering to the Pledgee, upon the occurrence of an Event of |
Default, irrevocable proxies in respect of the Collateral in form satisfactory to the Pledgee. Until |
receipt thereof, upon an Event of Default that has occurred and is continuing beyond any |
applicable grace period, this Agreement shall constitute each Pledgor’s proxy to the Pledgee or |
its nominee to vote all shares of Collateral then registered in such Pledgor’s name. |
(d) No Pledgor will consent to or approve the issuance of (i) any additional |
shares of any class of capital stock or other equity interests of the Issuer; or (ii) any securities |
convertible either voluntarily by the holder thereof or automatically upon the occurrence or |
nonoccurrence of any event or condition into, or any securities exchangeable for, any such |
shares, unless, in either case, such shares are pledged as Collateral pursuant to this Agreement. |
6. Voting Rights and Dividends. In addition to the Pledgee’s rights and remedies set |
forth in Section 8 hereof, in case an Event of Default shall have occurred and be continuing, |
beyond any applicable cure period, the Pledgee shall (i) be entitled to vote the Collateral, (ii) be |
entitled to give consents, waivers and ratifications in respect of the Collateral (each Pledgor |
hereby irrevocably constituting and appointing the Pledgee, with full power of substitution, the |
proxy and attorney-in-fact of each Pledgor for such purposes) and (iii) be entitled to collect and |
receive for its own use cash dividends paid on the Collateral. Unless and until there shall have |
occurred and be continuing an Event of Default, each Pledgor shall be permitted to exercise or |
refrain from exercising any voting rights or other powers; provided that, in each case, no vote |
shall be cast or any consent, waiver or ratification given or any action taken or omitted to be |
taken if, in the reasonable judgment of the Pledgee, such action would have a material adverse |
effect on the value of the Collateral or any part thereof; and,provided,further, that each Pledgor |
shall give at least five (5) days’ written notice of the manner in which such Pledgor intends to |
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exercise, or the reasons for refraining from exercising, any voting rights or other powers other |
than with respect to any election of directors and voting with respect to any incidental matters. |
Following the occurrence of an Event of Default, all rights of each Pledgor to vote and to give |
consents, waivers and ratifications shall cease and all dividends and all other distributions in |
respect of any of the Collateral, shall be delivered to the Pledgee to hold as Collateral and shall, |
if received by any Pledgor, be received in trust for the benefit of the Pledgee, be segregated from |
the other property or funds of any other Pledgor, and be forthwith delivered to the Pledgee as |
Collateral in the same form as so received (with any necessary endorsement). |
7. Event of Default. An “Event of Default” under this Agreement shall be deemed |
to have occurred and may be declared by the Pledgee upon the happening of any of the following |
events: |
(a) An “Event of Default” under any Document or any agreement or note |
related to any Document shall have occurred and be continuing beyond any applicable cure |
period; or |
(b) Any portion of the Collateral is subjected to a levy of execution, |
attachment, distraint or other judicial process or any portion of the Collateral is the subject of a |
claim (other than by the Pledgee) of a Lien or other right or interest in or to the Collateral and |
such levy or claim shall not be cured, disputed or stayed within a period of fifteen (15) business |
days after the Pledgee or any of its subsidiaries has knowledge thereof. |
8. Remedies. In case an Event of Default shall have occurred and is declared by the |
Pledgee, the Pledgee may (subject to the rights of Laurus): |
(a) Transfer any or all of the Collateral into its name, or into the name of its |
nominee or nominees; |
(b) Exercise all corporate rights with respect to the Collateral including, |
without limitation, all rights of conversion, exchange, subscription or any other rights, privileges |
or options pertaining to any shares of the Collateral as if it were the absolute owner thereof, |
including, but without limitation, the right to exchange, at its discretion, any or all of the |
Collateral upon the merger, consolidation, reorganization, recapitalization or other readjustment |
of the Issuer thereof, or upon the exercise by the Issuer of any right, privilege or option |
pertaining to any of the Collateral, and, in connection therewith, to deposit and deliver any and |
all of the Collateral with any committee, depository, transfer agent, registrar or other designated |
agent upon such terms and conditions as it may determine, all without liability except to account |
for property actually received by it; and |
(c) Subject to any requirement of applicable law, sell, assign and deliver the |
whole or, from time to time, any part of the Collateral at the time held by the Pledgee, at any |
private sale or at public auction, with or without demand, advertisement or notice of the time or |
place of sale or adjournment thereof or otherwise (all of which are hereby waived, except such |
notice as is required by applicable law and cannot be waived), for cash or credit or for other |
property for immediate or future delivery, and for such price or prices and on such terms as the |
Pledgee in its sole discretion may determine, or as may be required by applicable law. |
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Each Pledgor hereby waives and releases any and all right or equity of |
redemption, whether before or after sale hereunder. At any such sale, unless prohibited by |
applicable law, the Pledgee may bid for and purchase the whole or any part of the Collateral so |
sold free from any such right or equity of redemption. All moneys received by the Pledgee |
hereunder, whether upon sale of the Collateral or any part thereof or otherwise, shall be held by |
the Pledgee and applied by it as provided in Section 10 hereof. No failure or delay on the part of |
the Pledgee in exercising any rights hereunder shall operate as a waiver of any such rights nor |
shall any single or partial exercise of any such rights preclude any other or future exercise |
thereof or the exercise of any other rights hereunder. The Pledgee shall have no duty as to the |
collection or protection of the Collateral or any income thereon nor any duty as to preservation of |
any rights pertaining thereto, except to apply the funds in accordance with the requirements of |
Section 10 hereof. The Pledgee may exercise its rights with respect to property held hereunder |
without resort to other security for or sources of reimbursement for the Indebtedness. In addition |
to the foregoing, Pledgee shall have all of the rights, remedies and privileges of a secured party |
under the Uniform Commercial Code of New York (the “UCC”) regardless of the jurisdiction in |
which enforcement hereof is sought. |
9. Private Sale. Each Pledgor recognizes that the Pledgee may be unable to effect |
(or to do so only after delay which would adversely affect the value that might be realized from |
the Collateral) a public sale of all or part of the Collateral by reason of certain prohibitions |
contained in the Securities Act, and may be compelled to resort to one or more private sales to a |
restricted group of purchasers who will be obliged to agree, among other things, to acquire such |
Collateral for their own account, for investment and not with a view to the distribution or resale |
thereof. Each Pledgor agrees that any such private sale may be at prices and on terms less |
favorable to the seller than if sold at public sales and that such private sales shall be deemed to |
have been made in a commercially reasonable manner. Each Pledgor agrees that the Pledgee has |
no obligation to delay sale of any Collateral for the period of time necessary to permit the Issuer |
to register the Collateral for public sale under the Securities Act. |
10. Proceeds of Sale. The proceeds of any collection, recovery, receipt, |
appropriation, realization or sale of the Collateral shall be applied by the Pledgee as follows: |
(a) First, to the payment of all costs, reasonable expenses and charges of the |
Pledgee and to the reimbursement of the Pledgee for the prior payment of such costs, reasonable |
expenses and charges incurred in connection with the care and safekeeping of the Collateral |
(including, without limitation, the reasonable expenses of any sale or any other disposition of any |
of the Collateral), the expense of any taking, attorneys’ fees and reasonable expenses, court |
costs, any other fees or expenses incurred or expenditures or advances made by the Pledgee in |
the protection, enforcement or exercise of its rights, powers or remedies hereunder; |
(b) Second, to the payment of the Indebtedness, in whole or in part, in such |
order as the Pledgee may elect, whether or not such Indebtedness is then due; |
(c) Third, to such persons, firms, corporations or other entities as required by |
applicable law including, without limitation, Section 9-615(a)(3) of the UCC; and |
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(d) Fourth, to the extent of any surplus to the Pledgors or as a court of |
competent jurisdiction may direct. |
In the event that the proceeds of any collection, recovery, receipt, appropriation, |
realization or sale are insufficient to satisfy the Indebtedness, each Pledgor shall be jointly and |
severally liable for the deficiency plus the costs and fees of any attorneys employed by the |
Pledgee to collect such deficiency. |
11. Waiver of Marshaling. Each Pledgor hereby waives any right to compel any |
marshaling of any of the Collateral. |
12. No Waiver. Any and all of the Pledgee’s rights with respect to the Liens granted |
under this Agreement shall continue unimpaired, and Pledgor shall be and remain obligated in |
accordance with the terms hereof, notwithstanding (a) the bankruptcy, insolvency or |
reorganization of any Pledgor, (b) the release or substitution of any item of the Collateral at any |
time, or of any rights or interests therein, or (c) any delay, extension of time, renewal, |
compromise or other indulgence granted by the Pledgee in reference to any of the Indebtedness. |
Each Pledgor hereby waives all notice of any such delay, extension, release, substitution, |
renewal, compromise or other indulgence, and hereby consents to be bound hereby as fully and |
effectively as if such Pledgor had expressly agreed thereto in advance. No delay or extension of |
time by the Pledgee in exercising any power of sale, option or other right or remedy hereunder, |
and no failure by the Pledgee to give notice or make demand, shall constitute a waiver thereof, or |
limit, impair or prejudice the Pledgee’s right to take any action against any Pledgor or to exercise |
any other power of sale, option or any other right or remedy. |
13. Expenses. The Collateral shall secure, and each Pledgor shall pay to the Pledgee |
on demand, from time to time, all reasonable costs and expenses, (including but not limited to, |
reasonable attorneys’ fees and costs, taxes, and all transfer, recording, filing and other charges) |
of, or incidental to, the custody, care, transfer, administration of the Collateral or any other |
collateral, or in any way relating to the enforcement, protection or preservation of the rights or |
remedies of the Pledgee under this Agreement or with respect to any of the Indebtedness. |
14. The Pledgee Appointed Attorney-In-Fact and Performance by the Pledgee. Upon |
the occurrence of an Event of Default, each Pledgor hereby irrevocably constitutes and appoints |
the Pledgee as such Pledgor’s true and lawful attorney-in-fact, with full power of substitution, to |
execute, acknowledge and deliver any instruments and to do in such Pledgor’s name, place and |
stead, all such acts, things and deeds for and on behalf of and in the name of such Pledgor, which |
such Pledgor could or might do or which the Pledgee may deem necessary, desirable or |
convenient to accomplish the purposes of this Agreement, including, without limitation, to |
execute such instruments of assignment or transfer or orders and to register, convey or otherwise |
transfer title to the Collateral into the Pledgee’s name. Each Pledgor hereby ratifies and confirms |
all that said attorney-in-fact may so do and hereby declares this power of attorney to be coupled |
with an interest and irrevocable. If any Pledgor fails to perform any agreement herein contained, |
the Pledgee may itself perform or cause performance thereof, and any costs and expenses of the |
Pledgee incurred in connection therewith shall be paid by the Pledgors as provided in Section 10 |
hereof. |
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15. Waivers. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY |
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF |
ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, |
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION |
HEREWITH OR THEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED |
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR THERETO OR |
ANY OTHER AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION |
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH |
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER |
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HERETO |
HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR |
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND |
THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS |
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH |
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. |
16. Recapture. Notwithstanding anything to the contrary in this Agreement, if the |
Pledgee or any other Creditor Party receives any payment or payments on account of the |
Indebtedness, which payment or payments or any part thereof are subsequently invalidated, |
declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, |
receiver, or any other party under the United States Bankruptcy Code, as amended, or any other |
federal or state bankruptcy, reorganization, moratorium or insolvency law relating to or affecting |
the enforcement of creditors’ rights generally, common law or equitable doctrine, then to the |
extent of any sum not finally retained by the Pledgee or such other Creditor Party, each Pledgor’s |
obligations to the Pledgee and the other Creditor Parties shall be reinstated and this Agreement |
shall remain in full force and effect (or be reinstated) until payment shall have been made to the |
Pledgee and the other Creditor Parties, which payment shall be due on demand. |
17. Captions. All captions in this Agreement are included herein for convenience of |
reference only and shall not constitute part of this Agreement for any other purpose. |
18. Miscellaneous. |
(a) This Agreement constitutes the entire and final agreement among the |
parties with respect to the subject matter hereof and may not be changed, terminated or otherwise |
varied except by a writing duly executed by the parties hereto. |
(b) No waiver of any term or condition of this Agreement, whether by delay, |
omission or otherwise, shall be effective unless in writing and signed by the party sought to be |
charged, and then such waiver shall be effective only in the specific instance and for the purpose |
for which given. |
(c) In the event that any provision of this Agreement or the application thereof |
to any Pledgor or any circumstance in any jurisdiction governing this Agreement shall, to any |
extent, be invalid or unenforceable under any applicable statute, regulation, or rule of law, such |
provision shall be deemed inoperative to the extent that it may conflict therewith and shall be |
deemed modified to conform to such statute, regulation or rule of law, and the remainder of this |
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Agreement and the application of any such invalid or unenforceable provision to parties, |
jurisdictions, or circumstances other than to whom or to which it is held invalid or unenforceable |
shall not be affected thereby, nor shall same affect the validity or enforceability of any other |
provision of this Agreement. |
(d) This Agreement shall be binding upon each Pledgor, and each Pledgor’s |
successors and assigns, and shall inure to the benefit of the Pledgee and its successors and |
assigns for the ratable benefit of the Creditor Parties. |
(e) Any notice or other communication required or permitted pursuant to this |
Agreement shall be given in accordance with the Securities Purchase Agreement. |
(f) This Agreement shall be governed by and construed and enforced in all |
respects in accordance with the laws of the State of New York applied to contracts to be |
performed wholly within the State of New York. |
(g) EACH PLEDGOR EXPRESSLY CONSENTS TO THE JURISDICTION |
AND VENUE OF EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE |
STATE OF NEW YORK FOR ALL PURPOSES IN CONNECTION WITH THIS |
AGREEMENT. ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR |
INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED |
TO OR CONNECTED WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A |
STATE COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. |
EACH PLEDGOR FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR |
OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE |
OR MOTION OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED |
COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY |
PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE |
OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR |
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE |
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH |
OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. |
EACH PLEDGOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY |
ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON |
LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS. |
(h) It is understood and agreed that any person or entity that desires to become |
a Pledgor hereunder, or is required to execute a counterpart of this Agreement after the date |
hereof pursuant to the requirements of any Document, shall become a Pledgor hereunder by (x) |
executing a Joinder Agreement in form and substance satisfactory to the Pledgee, (y) delivering |
supplements to such exhibits and annexes to such Documents as the Pledgee shall reasonably |
request and (z) taking all actions as specified in this Agreement as would have been taken by |
such Pledgor had it been an original party to this Agreement, in each case with all documents |
required above to be delivered to the Pledgee and with all documents and actions required above |
to be taken to the reasonable satisfaction of the Pledgee. |
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(i) This Agreement may be executed in one or more counterparts, each of |
which shall be deemed an original and all of which when taken together shall constitute one and |
the same agreement. Any signature delivered by a party by facsimile or electronic transmission |
shall be deemed an original signature hereto. |
[Remainder of Page Intentionally Left Blank] |
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day |
and year first written above. |
eLEC COMMUNICATIONS CORP. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: Chief Executive Officer |
VOX COMMUNICATIONS CORP. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: Chief Executive Officer |
AVI HOLDING CORP. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: Chief Executive Officer |
TELCOSOFTWARE.COM CORP. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: Chief Executive Officer |
LINE ONE, INC. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: Chief Executive Officer |
Additional Signatures Appear on Following Page] |
LV ADMINISTRATIVE SERVICES, INC., | ||
as Agent | ||
By: Valens Capital Management, LLC, as | ||
investment manager | ||
By: /s/ Pat Regan | ||
Name: Pat Regan | ||
Title: Authorized Signatory |