Attached files
| file | filename |
|---|---|
| 8-K - FLORHAM CONSULTING CORP | v204773_8k.htm |
| EX-10.5 - FLORHAM CONSULTING CORP | v204773_ex10-5.htm |
| EX-99.1 - FLORHAM CONSULTING CORP | v204773_ex99-1.htm |
| EX-10.1 - FLORHAM CONSULTING CORP | v204773_ex10-1.htm |
| EX-10.7 - FLORHAM CONSULTING CORP | v204773_ex10-7.htm |
| EX-10.4 - FLORHAM CONSULTING CORP | v204773_ex10-4.htm |
| EX-10.6 - FLORHAM CONSULTING CORP | v204773_ex10-6.htm |
| EX-10.2 - FLORHAM CONSULTING CORP | v204773_ex10-2.htm |
| EX-10.9 - FLORHAM CONSULTING CORP | v204773_ex10-9.htm |
| EX-10.3 - FLORHAM CONSULTING CORP | v204773_ex10-3.htm |
| EX-10.10 - FLORHAM CONSULTING CORP | v204773_ex10-10.htm |
PLEDGE
AGREEMENT
THIS
PLEDGE AGREEMENT (as amended, restated, or supplemented from time to time,
this “Agreement”)
is executed as of November 30, 2010 (the “Closing
Date”), by Oak Tree Educational Partners, Inc., a Delaware corporation
formerly known as Florham Consulting Corp. (the “Company”), each of the other
“Pledgors” listed on the signature pages hereto or joining this Agreement in the
capacity of “Pledgor” following the Closing Date (together with the Company,
each a “Pledgor”
and collectively, “Pledgors”),
and Deerpath Funding, LP, a Delaware limited partnership (“Deerpath”),
as Agent (in such capacity, together with any successor Agent under the Loan
Agreement, “Agent”)
for the ratable benefit of Lenders (defined below).
RECITALS
A. Pledgors
are party to that certain Loan Agreement dated as of the date hereof (as
amended, restated or supplemented from time to time, the “Loan
Agreement”), by and among Pledgors and each of the other Subsidiaries of
the Company, current and future, as borrowers (each a “Borrower”
and collectively, the “Borrowers”),
the lenders party thereto (collectively, “Lenders”),
and Agent, together with certain other Loan Documents, pursuant to which Lenders
have agreed, subject to the terms and conditions therein, to make a
senior-secured term loan to Borrowers in a single advance on the Closing Date in
an amount equal to $3,000,000.
B. Pledgors
are the sole owners, directly or indirectly, of 100% of the issued and
outstanding equity interests of the Pledged Issuers (defined below), as
indicated on Schedule
1.
C. Pledgors
have agreed to grant to Agent (for the ratable benefit of the Lenders) a
security interest in, and pledge and assign to Agent (for the ratable benefit of
Lenders), the Collateral described herein, to secure the payment and performance
of the Obligation when due.
D. It
is expressly understood among Pledgors, Agent and Lenders that the execution and
delivery of this Agreement is a condition precedent to Lenders’ obligations to
extend credit under the Loan Agreement.
NOW,
THEREFORE, for valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Certain
Definitions. CAPITALIZED
TERMS USED BUT NOT DEFINED IN THIS AGREEMENT HAVE THE MEANINGS GIVEN THEM IN THE
LOAN AGREEMENT OR IN THE UCC. If the definition given a term in the
Loan Agreement conflicts with the definition given that term in the UCC, the
Loan Agreement definition shall control to the extent allowed by
Law. Terms used in this Agreement which are not capitalized but which
are defined in the UCC shall have the meanings given them in the
UCC. If the definition given a term in Chapter 9 of the UCC conflicts
with the definition given that term in any other chapter of the UCC, the Chapter
9 definition shall control. As used in this Agreement:
“Agent” is
defined in the introductory paragraph hereto.
1
“Agreement”
means this Pledge Agreement together with all schedules, exhibits, and annexes
attached to this Pledge Agreement, and all amendments, restatements, and
supplements to this Pledge Agreement, the schedules, exhibits, and
annexes.
“Borrower”
and “Borrowers”
are defined in the Recitals.
“Closing
Date” is defined in the introductory paragraph hereto.
“Collateral”
is defined in Section
3.
“Company”
is defined in the introductory paragraph hereto.
“Deerpath”
is defined in the introductory paragraph hereto.
“Default”
means a “Default” under, and as defined in, the Loan Agreement.
“Equity
Power” means a stock power or equity power, as applicable, substantially
in the form of Annex A to
this Agreement, executed and delivered by a Pledgor to Agent (for the ratable
benefit of Lenders) pursuant to the terms of this Agreement.
“Equity
Securities” is defined in the Loan Agreement.
“Fraudulent
Conveyance” is defined in Section 5
of this Agreement.
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government and includes a private mediation or
arbitration board or panel.
“Lender”
and “Lenders”
are defined in the Recitals, and also include any other Person that becomes a
“Lender” under, and as defined in, the Loan Agreement.
“Loan
Agreement” is defined in the Recitals.
“Obligation”
means the “Obligation” under, and as defined in, the Loan
Agreement.
“Pledged
Interests” is defined Section
3.
“Pledgor”
and “Pledgors”
are defined in the introductory paragraph hereto and include, without
limitation, each Pledgor as a debtor-in-possession, and any receiver, trustee,
liquidator, conservator, custodian, or similar party hereafter appointed for any
Pledgor or all or substantially all of any Pledgor’s assets pursuant to any
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar Law from time to time in
effect affecting the rights of creditors generally.
“Securities
Act” means the “Securities Act” under, and as defined in, the Loan
Agreement.
2
“Security
Interest” means the security interests granted and the transfers, pledges
and collateral assignments made under Section 3
of this Agreement.
“Term Loan”
is defined in the Loan Agreement.
“UCC” means
(a) generally, and with respect to the definitions above, the Uniform Commercial
Code, as adopted in New York, as amended from time to time, and (b) with respect
to rights in states other than New York, the Uniform Commercial Code as enacted
in the applicable state, as amended from time to time.
2. Loan
Agreement. This
Agreement is being executed and delivered pursuant to the terms and conditions
of the Loan Agreement and related Loan Documents. Each Security
Interest is a “Lien” referred to in the Loan Agreement.
3. Security
Interest. In
order to secure the full and complete payment and performance of the Obligation
when due, each Pledgor hereby grants to Agent, for the ratable benefit of
Lenders, a continuing security interest in, and pledges and collaterally assigns
to Agent, for the ratable benefit of Lenders, all of its rights, title and
interest in and to the following (collectively, the “Collateral”):
(a) the
Equity Securities described in attached Schedule 1
(the “Pledged
Interests”), whether or not evidenced or represented by any stock
certificate, unit certificate, certificated security or other instrument, issued
by the “Issuer(s)” set forth on Schedule 1
(each a “Pledged
Issuer” and, collectively, the “Pledged
Issuers”), the certificates representing the Pledged Interests, all
options and other rights, contractual or otherwise, in respect thereof and all
dividends, distributions, cash, instruments, investment property and other
property (including, but not limited to, any stock or other equity dividends and
any distributions in connection with a stock or other equity split) from time to
time received, receivable or otherwise distributed in respect of, or in exchange
for, any or all of the Pledged Interests;
(b) any
other Equity Securities of any Borrower or any other Person at any time and from
time to time acquired by such Pledgor, the certificates representing such Equity
Securities, all options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments, investment property
and other property (including, but not limited to, any stock or other equity
dividends and any distributions in connection with a stock or other equity
split) from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(c) all
investment property, financial assets, securities, capital stock, other equity
interests, stock options and commodity contracts of such Pledgor, all notes,
debentures, bonds, promissory notes or other evidences of indebtedness of such
Pledgor, and all other assets now or hereafter received or receivable with
respect to the foregoing;
(d) all
security entitlements of such Pledgor in any and all of the foregoing;
and
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(e) all
proceeds (including proceeds of proceeds) of any and all of the
foregoing;
in each
case, whether now owned or hereafter acquired by such Pledgor and howsoever its
interest therein may arise or appear (whether by ownership, security interest,
Lien, claim or otherwise).
Notwithstanding
the foregoing, if any such Person described above is organized or formed under
the laws of a jurisdiction other than the District of Columbia or any State or
territory of the United States of America, then the applicable Pledgor shall
pledge not more than 66% of its equity interests in such Person.
4. No Assumption or
Modification. The
Security Interest is given to secure the prompt, unconditional and complete
payment and performance of the Obligation when due, and is given as security
only. Neither Agent nor any Lender hereby assumes or shall be liable
for any Pledgor’s liabilities, duties, or obligations under or in connection
with the Collateral. Neither Agent’s acceptance of this Agreement nor
its taking any action in carrying out this Agreement shall constitute Agent’s or
any Lender’s approval of the Collateral or Agent’s or any Lender’s assumption of
any obligation under or in connection with the Collateral. This
Agreement does not affect or modify any Pledgor’s obligations with respect to
the Collateral.
5. Fraudulent
Conveyance. Notwithstanding
anything contained in this Agreement to the contrary, each Pledgor agrees that
if, but for the application of this Section 5,
the Obligation or any Security Interest would constitute a preferential transfer
under 11 U.S.C. § 547, a fraudulent conveyance under 11 U.S.C. § 548 (or
any successor section) or a fraudulent conveyance or transfer under any state’s
fraudulent conveyance or fraudulent transfer Law or similar Law in effect from
time to time (each a “Fraudulent
Conveyance”), then the Obligation and each affected Security Interest
will be enforceable against such Pledgor to the maximum extent possible without
causing the Obligation or any Security Interest to be a Fraudulent Conveyance,
and shall be deemed to have been automatically amended to carry out the intent
of this Section 5.
6. Representations and
Warranties. Pledgors
hereby represent and warrant to Agent, jointly and severally, for the ratable
benefit of Lenders, as follows:
(a) The
execution, delivery and performance by each Pledgor of this Agreement and each
Pledgor’s performance of its obligations under this Agreement (i) are
within its corporate, company or partnership power, (ii) have been duly
authorized by the board of directors, board of managers, general partner,
managing member or other applicable governing body of such Pledgor, and no other
corporate or company action on the part of any Pledgor is necessary to authorize
this Agreement, (iii) do not require action by, or filing with, any
Governmental Authority or any action by any other Person (other than any action taken
or filing made on or before the Closing Date), (iv) do not violate any
provision of any Pledgor’s organizational documents, (v) do not violate any
material provision of Law or any order of any Governmental Authority, in each
case applicable to any Pledgor, (vi) do not materially violate, or
constitute a material breach of, any material agreements to which it is a party
(and no default exists on the part of such Pledgor under any agreement to which
it is a party), and (vii) will not result in the creation or imposition of
any Lien on any asset of any Pledgor other than Liens in favor of Agent and
Permitted Liens.
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(b) This
Agreement has been duly executed and delivered by each Pledgor and constitutes
the legal, valid, and binding obligation of such Pledgor, enforceable against
such Pledgor in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance, and similar
laws affecting creditors’ rights generally and by general principles of equity
(whether considered in a proceeding in equity or at law), and except to the
extent the indemnification provisions contained herein may be limited by
applicable federal or state securities laws.
(c) Each
Pledgor has received and will receive the benefits of the Term Loan, and such
benefits constitute good and valuable consideration for the Security
Interest.
(d) The
Pledged Interests are duly authorized, validly issued, fully paid and
non-assessable, and transfer thereof is not subject to any restrictions other
than restrictions imposed by applicable securities and corporate
laws.
(e) Each
Pledgor owns the Collateral contained in attached Schedule 1
(as indicated with respect to such Pledgor on attached Schedule
1) free and clear of all Liens except for the Liens created
hereunder.
(f) The
information contained in attached Schedule 1
is true and accurate and sufficiently describes all of the
Collateral.
(g) Each
Pledgor has reviewed this Agreement and the other Loan Documents and has had the
opportunity to review its rights and responsibilities thereunder with
counsel. Each Pledgor understands these rights and responsibilities
and shall comply fully therewith.
(h) Each
Pledgor represents and warrants that Agent has a perfected first priority
security interest in all uncertificated Pledged Interests pledged by it
hereunder.
7. Covenants. Pledgors
shall:
(a) Promptly
notify Agent of any material change in any fact or circumstances represented or
warranted by any Pledgor with respect to any of the Collateral.
(b) Promptly
notify Agent of any Equity Securities of any Person that are acquired by any
Pledgor subsequent to the execution of this Agreement.
(c) Promptly
notify Agent of any claim, action or proceeding materially affecting the
security interest granted and the pledge and assignment made under Section 3
or title to any of the Collateral and, at the request of Agent, appear in and
defend, at Pledgors’ expense, any such action or proceeding.
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(d) Not
sell, assign or otherwise dispose of any Collateral, except as permitted in the
Loan Agreement.
(e) Not
create, incur or suffer to exist any other Lien upon any of the
Collateral.
(f) At
Pledgors’ expense and Agent’s reasonable request, file or cause to be filed such
applications and take such other actions to obtain the consent or approval of
any Governmental Authority to Agent’s rights hereunder, including, without
limitation, the right to sell all the Collateral upon a Default without
additional consent or approval from such Governmental Authority (and, because
each Pledgor agrees that Agent’s remedies at law for failure of Pledgors to
comply with this provision would be inadequate and that such failure would not
be adequately compensable in damages, each Pledgor agrees that its covenants in
this provision may be specifically enforced).
(g) From
time to time promptly execute and deliver to Agent all such other Equity Powers,
assignments, certificates, supplemental documents, and financing statements (if
appropriate) and amendments thereto, and do all other acts or things as Agent
may reasonably request in order to more fully create, evidence, perfect,
continue and preserve the priority of the Security Interest.
(h) Each
Pledgor hereby agrees that if any of the Pledged Interests are at any time not
evidenced by certificates of ownership, then Pledgors shall cause the issuer of
such Pledged Interests to record such pledge on the equityholder register or the
books of the issuer and, upon Agent’s request, shall cause the issuer to execute
and deliver to Agent an acknowledgment of the pledge of such Pledged Interests
in a form reasonably satisfactory to Agent.
8. Default;
Remedies. Should
a Default occur and be continuing, Agent may, at its election, exercise any and
all rights available to a secured party under the UCC, in addition to any and
all other rights afforded by the Loan Documents, at law, in equity, or
otherwise, including, without limitation, exercising any or all Equity Powers
delivered to Agent with respect to the Pledged Interests or applying by
appropriate judicial proceedings for appointment of a receiver for all or part
of the Collateral (and each Pledgor hereby consents to any such
appointment).
9. Notice. Reasonable
notification of the time and place of any public sale of the Collateral, or
reasonable notification of the time after which any private sale or other
intended disposition of the Collateral is to be made, shall be sent to Pledgors
and to any other person entitled to notice under the UCC; provided, that if any of the Collateral
threatens to decline speedily in value or is of the type customarily sold on a
recognized market, Agent may sell or otherwise dispose of the Collateral without
notification, advertisement, or other notice of any kind. It is
agreed that notice sent or given not less than ten (10) calendar days prior to
the taking of the action to which the notice relates is reasonable for the
purposes of this Section
9.
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10. Sales of
Securities. Each
Pledgor recognizes that the Agent may deem it impracticable to effect a public
sale of all or any part of the Pledged Interests or any other securities
constituting Collateral. Agent is authorized, but not obligated, to
limit prospective purchasers to the extent deemed necessary or desirable by
Agent to render such sale exempt from the registration requirements of the
Securities Act, and any applicable state securities laws, and no sale so made in
good faith by Agent shall be deemed not to be “commercially reasonable” because
so made. Agent may make one or more private sales of any such
securities to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale
thereof. Each Pledgor acknowledges that any such private sale may be
at prices and on terms less favorable to the seller than the prices and other
terms which might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that such private sales shall be deemed to have been made in a
commercially reasonable manner and that the Agent shall have no obligation to
delay the sale of any such securities for the period of time necessary to permit
the issuer of such securities to register such securities for public sale under
the Securities Act. Each Pledgor further acknowledges and agrees that
any offer to sell such securities which has been (i) publicly advertised on
a bona fide basis in a newspaper or other publication of general circulation in
the financial community of New York, New York (to the extent that such an offer
may be so advertised without prior registration under the Securities Act) or
(ii) made privately in the manner described above to not less than fifteen (15)
bona fide offerees
shall be deemed to involve a “public disposition” for the purposes of Section
9-610(c) of the UCC, notwithstanding that such sale may not constitute a “public
offering” under the Securities Act, and that the Agent and/or any Lender or
Lenders may, in such event, bid for the purchase of such
securities.
11. Application of
Proceeds. Agent
shall apply the proceeds of any sale or other disposition of the Collateral in
the following order: first, to the payment
of all its expenses incurred in retaking, holding and preparing any of the
Collateral for sale(s) or other disposition, in arranging for such sale(s) or
other disposition, and in actually selling or disposing of the same (all of
which are part of the Obligation); second, toward
repayment of amounts expended by Agent or any other Lender under this Agreement;
and third, toward payment
of the balance of the Obligation in accordance with the Loan
Agreement. Any surplus remaining shall be delivered to Pledgors or as
a court of competent jurisdiction may direct. If the proceeds are
insufficient to pay the Obligation in full, Pledgors shall remain liable for any
deficiency.
12. Other Rights of
Agent.
(a) Performance. In
the event any Pledgor shall fail to perform any of its obligations hereunder
with respect to the Collateral, then Agent may, at its option, but without being
required to do so, take such action which such Pledgor is required, but has
failed or refused, to take. Any sum which may be expended or paid by
Agent under this Section 12(a)
(including, without limitation, court costs and attorneys’ fees) shall
bear interest from the dates of expenditure or payment at the Maximum Rate (as
defined in the Loan Agreement) until paid and, together with such interest,
shall be payable by Pledgors upon demand and shall be part of the
Obligation.
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(b) Collection. Upon
notice from Agent, each Person obligated with respect to any of the Collateral,
whether as an issuer, account debtor or otherwise (an “Obligor”)
is hereby authorized and directed by each Pledgor to make payments on any of the
Collateral (including, without limitation, dividends and other distributions)
directly to Agent, regardless of whether such Pledgor was previously making
collections thereon. Subject to Section
12(e) hereof, until such notice is given, each Pledgor is authorized to
retain and expend all payments made on Collateral. Agent shall have
the right in its own name or in the name of a Pledgor to compromise or extend
time of payment with respect to all or any portion of the Collateral for such
amounts and upon such terms as Agent may determine; to demand, collect, receive,
receipt for, sue for, compound and give acquittances for any and all amounts due
or to become due with respect to Collateral; to take control of cash and other
proceeds of any Collateral; to endorse the name of any Pledgor on any notes,
acceptances, checks, drafts, money orders or other evidences of payment on
Collateral that may come into the possession of Agent; to send requests for
verification of obligations to any Obligor; and to do all other acts and things
necessary to carry out the intent of this Agreement. If any Obligor
fails or refuses to make payment on any Collateral when due, Agent is
authorized, in its sole reasonable discretion, either in its own name or in the
name of a Pledgor, to take such action as Agent shall deem appropriate for the
collection of any such amounts. The foregoing rights granted to Agent
under this Section 12(b)
may only be exercised while a Default has occurred and is
continuing. Regardless of any other provision hereof, neither Agent
nor any Lender shall ever be liable for its failure to collect, or for its
failure to exercise diligence in the collection of, any amounts owed with
respect to Collateral, nor shall Agent be under any duty whatsoever to anyone
except Pledgors to account for funds that Agent shall actually receive
hereunder. Without limiting the generality of the foregoing, Agent
shall have no responsibility for ascertaining any maturities, calls,
conversions, exchanges, offers, tenders or similar matters relating to any
Collateral, or for informing Pledgors with respect to any of such matters
(irrespective of whether Agent actually has, or may be deemed to have, knowledge
thereof). The receipt of Agent to any Obligor shall be a full and
complete release, discharge and acquittance to such Obligor, to the extent of
any amount so paid to Agent.
(c) Record Ownership of
Securities. When a Default has occurred and is continuing,
Agent at any time may have the Collateral registered in its name, or in the name
of its nominee or nominees, as pledgee. Each Pledgor shall execute
and deliver to Agent all such proxies, powers of attorney, dividend coupons or
orders and other documents as Agent may reasonably request for the purpose of
enabling Agent to exercise the voting rights and powers which it is entitled to
exercise hereunder and to receive the dividends and other payments which it is
authorized to receive and retain hereunder. Nothing in this Agreement
shall prohibit the issuance of cash dividends by any Borrower if such
distribution is permitted under the Loan Agreement.
(d) Voting of
Securities. So long as no Default has occurred and is then
continuing, Pledgors shall be entitled to exercise all voting rights pertaining
to the Collateral. After the occurrence and during the continuance of
a Default, the right to vote the Collateral shall be vested exclusively in
Agent. To this end, each Pledgor irrevocably appoints Agent the proxy
and attorney-in-fact of such Pledgor, with full power of substitution, to vote
and to act with respect to the Collateral, subject to the understanding that
such proxy may not be exercised unless a Default has occurred and is
continuing. The proxy herein granted is coupled with an interest, is
irrevocable, and shall continue until the Obligation has been paid and performed
in full.
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(e) Certain
Proceeds. Any and all stock dividends or distributions in
property made on or in respect of the Collateral, and any proceeds of the
Collateral, whether such dividends, distributions, or proceeds result from a
subdivision, combination or reclassification of the outstanding capital stock of
any Person or as a result of any merger, consolidation, acquisition or other
exchange of assets to which any Pledgor may be a party, or otherwise, shall be
part of the Collateral hereunder, shall, if received by a Pledgor or Pledgors,
be held in trust for the benefit of Agent, and shall, except to the extent
consisting of cash proceeds, forthwith be delivered to Agent (accompanied by
proper instruments of assignment and/or stock and/or bond powers executed by the
Pledgor in accordance with Agent’s instructions) to be held subject to the terms
hereof. Prior to the occurrence and continuation of a Default, any
cash proceeds of Collateral which come into the possession of Agent may, at
Pledgors’ option, be applied in whole or in part to the Obligation, or be
released in whole or in part to or on the written instructions of Pledgors for
any general or specific purpose not in violation of the Loan Agreement, or be
retained in whole or in part by Agent as additional Collateral. Upon
the occurrence and during the continuance of a Default, any cash proceeds of
Collateral shall be applied to the Obligation.
(f) Financing
Statements. Each Pledgor hereby irrevocably authorizes Agent
at any time, and from time to time, to file in any jurisdiction any initial
financing statements and amendments thereto that (i) (A) indicate the Collateral
as “the Collateral described in the Pledge Agreement,” (B) describe the
Collateral in terms similar to those used in Section 3, or (C) otherwise
describe the Collateral as being of an equal or lesser scope or with greater
detail, regardless of whether any particular asset comprised in the Collateral
falls within the scope of Article 9 of the UCC of the jurisdiction wherein such
financing statement or amendment is filed, and (ii) contain any other
information required by Article 9 of the UCC of the jurisdiction wherein such
financing statement or amendment is filed regarding the sufficiency or filing
office acceptance of any financing statement or amendment. Each
Pledgor further ratifies and affirms its authorization for any financing
statements and/or amendments thereto that Agent has filed in any jurisdiction
prior to the date of this Agreement.
13. Arbitration. The
parties acknowledge and agree that this Agreement is a Loan Document, and that
the arbitration provisions of the Loan Agreement shall apply to all disputes,
claims and controversies arising out of this Agreement.
14. Miscellaneous.
(a) Term. Upon
full and final payment of the Obligation and final termination of Lenders’
commitment to lend under the Loan Agreement without Agent having exercised its
rights under this Agreement, this Agreement shall terminate; provided, that no Obligor on any of
the Collateral shall be obligated to inquire as to the termination of this
Agreement, but shall be fully protected in making payment directly to
Agent.
(b) Notice. Any
notice or communication required or permitted under this Agreement must be given
as prescribed in the Loan Agreement.
9
(c) Governing
Law. This Agreement is to be construed, and its performance
enforced, under New York law, without regard to conflict of law
principles.
(d) Loan
Agreement. In the event of any conflict or inconsistency
between the terms hereof and the Loan Agreement, the terms of the Loan Agreement
shall control.
(e) Multiple Counterparts and
Facsimile Signatures. This Agreement may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document. All counterparts must be construed together to
constitute one and the same instrument. This Agreement may be
transmitted and signed by electronic mail and facsimile, and (.pdf) and
facsimile copies of manually-signed originals shall have the same effect as
manually-signed originals and shall be binding on Pledgors and
Agent.
(f) Binding Effect;
Survival. This Agreement is binding upon, and inures to the
benefit of, the parties hereto and their respective successors and permitted
assigns. Unless otherwise provided, all covenants, agreements,
indemnities, representations and warranties made in any of the Loan Documents
survive and continue in effect as long as the Obligation is outstanding or the
Lenders’ commitment to lend under the Loan Agreement is in effect.
(g) Amendments. This
Agreement may be amended, modified, supplemented or be the subject of a waiver
only by a writing executed by Agent and Pledgors.
(h) Entirety. THIS AGREEMENT, THE LOAN AGREEMENT
AND THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT), INCLUDING BUT
NOT LIMITED TO, THE PROVISIONS RELATING TO GOVERNING LAW, JURY WAIVER, VENUE,
SERVICE OF PROCESS, AND ARBITRATION, REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.
[Signatures appear on the following
pages.]
10
IN
WITNESS WHEREOF, the parties have executed and delivered this Pledge Agreement
as of the date first written above.
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AGENT:
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Deerpath
Funding, LP
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a
Delaware limited partnership,
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as
Agent
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By:
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Deerpath
Funding General Partner, Inc.,
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its
general partner
|
||
|
By:
|
/s/ James H. Kirby
|
|
|
Name:
James H. Kirby
|
||
|
Title:
President
|
||
[Signature
Page 1 of 2 to Pledge Agreement]
|
PLEDGORS:
|
||
|
Oak
Tree Educational Partners, Inc.
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/ Joseph J. Bianco
|
|
|
Name:
Joseph J. Bianco
|
||
|
Title:
Chief Executive Officer
|
||
|
Educational
Investors, Inc.
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/ Joseph J. Bianco
|
|
|
Name:
Joseph J. Bianco
|
||
|
Title:
Chief Executive Officer
|
||
|
Educational
Training Institute, Inc.
|
||
|
a
New York corporation
|
||
|
By:
|
/s/ Joseph Monaco | |
|
Name:
Joseph Monaco
|
||
|
Title:
President
|
||
[Signature
Page 2 of 2 to Pledge Agreement]
SCHEDULE
1
Pledged
Interests
|
Pledgor
|
Issuer
|
Pledged Interests
|
||
|
Oak
Tree Educational Partners, Inc.
|
Educational
Investors, Inc.
|
1,000
shares (100% of capital stock)
|
||
|
Oak
Tree Educational Partners, Inc.
|
Educational
Training Institute, Inc.
|
100
shares (100% of capital stock)
|
||
|
Educational
Investors, Inc.
|
Valley
Anesthesia, Inc.
|
1,000
shares (100% of capital stock)
|
||
|
Educational
Investors, Inc.
|
Training
Direct, LLC
|
100%
of the
membership
interests
|
||
|
Educational
Training Institute, Inc.
|
Culinary
Tech Center LLC
|
100%
of the
membership
interests
|
||
|
Educational
Training Institute, Inc.
|
|
Professional
Culinary Institute LLC
|
|
100%
of the
membership
interests
|
[Schedule
1]
ANNEX
A
TO
PLEDGE
AGREEMENT
FORM OF
EQUITY POWER
(See
attached.)
Annex A
to Pledge Agreement
EQUITY
POWER
FOR VALUE
RECEIVED, the undersigned does hereby sell, assign and transfer unto
____________________________________, (________) ______________________ of
_____________________, a __________________ (the “Company”),
registered in its name on the books of the Company, and does hereby irrevocably
constitute and appoint ____________________________ as its attorney to transfer
said shares on the books of the Company with full power of substitution in the
premises.
Dated:
_______________,_____
|
a
_______________________
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
IN THE
PRESENCE OF
|
[WITNESS]
|
Annex A
to Pledge Agreement