PARENT PLEDGE AGREEMENT
This PARENT PLEDGE AGREEMENT (this " Agreement" ) is dated as of May 1, 2004 and entered into by and between ASCENDANT SOLUTIONS, INC. , a Delaware corporation (" Pledgor" ), and KEVIN J. HAYES (" Hayes" ), as administrative agent for and representative of (in such capacity herein called " Secured Party" ) the Noteholders (as hereinafter defined).
A. Pledgor is the legal and beneficial owner of the shares of stock of ASDS of Orange County, Inc., a Delaware corporation and the successor corporation of the merger of Orange County Acquisition Corp. and CRESA Partners of Orange County, Inc. (" Company" ), described in Schedule I annexed hereto.
B. Pursuant to the Stock Purchase Agreement dated as of March 23, 2004 (said Stock Purchase Agreement, as it may hereafter be amended, restated, supplemented or otherwise modified from time to time, being the " Stock Purchase Agreement" ) between Company' s predecessor, Orange County Acquisition Corp., a Delaware corporation (" Purchaser" ), and Hayes. The Purchaser has agreed to issue that certain promissory note dated as of the date hereof in the aggregate principal amount of $6,900,000 in favor of Hayes in his capacity as a Noteholder (the " Initial Noteholder" ) (said note, as amended, restated, supplemented or otherwise modified from time to time, the " Initial Note" and the Initial Note and any and all other promissory notes issued from time to time as contemplated by the Initial Note and the other Note Documents (as defined herein), as amended, restated, supplemented or otherwise modified from time to time, the " Notes" )). Purchaser has been merged with CRESA Partners of Orange County, Inc., with Company as the surviving corporation, and Company is obligated to issue the Notes. Each holder of a Note from time to time is referred to herein individually as a Noteholder and collectively as the " Noteholders" .
C. Pledgor has executed and delivered that certain Parent Guaranty dated as of the date hereof (said Parent Guaranty, as it may hereafter be amended, restated, supplemented, or otherwise modified from time to time, the " Parent Guaranty" ), in favor of Secured Party for the benefit of Noteholders, pursuant to which Pledgor has guaranteed the prompt payment and performance when due of all obligations of Company under the Notes and the other Note Documents.
D. It is a condition precedent to the acceptance of the Initial Note by the Initial Noteholder that Pledgor shall have granted the security interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE , in consideration of the agreements set forth herein and in order to induce the Initial Noteholder to accept the Initial Note, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. Pledge of Security . Pledgor hereby pledges and assigns to Secured Party, and hereby grants to Secured Party a security interest in, all of Pledgor' s right, title and interest in and to the following (the " Pledged Collateral" ):
(a) all shares of stock of Company owned on the date hereof and described in Schedule I , and the certificates or other instruments representing any of the foregoing (the " Pledged Shares" ), and all dividends, distributions, returns of capital, cash, warrants, options, rights, instruments, right to vote or manage the business of Company pursuant to organizational documents governing the rights and obligations of the stockholders, 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 Pledged Shares;
(b) to the extent not covered by clause (a) above, all proceeds of any or all of the foregoing Pledged Collateral. For purposes of this Agreement, the term " proceeds" includes whatever is receivable or received when Pledged Collateral or proceeds are sold, exchanged, collected or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes, without limitation, proceeds of any indemnity or guaranty payable to Pledgor or Secured Party from time to time with respect to any of the Pledged Collateral.
SECTION 2. Security for Obligations . This Agreement secures, and the Pledged Collateral is collateral security for, the prompt payment in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. a7362(a)), of all obligations and liabilities of every nature of Pledgor now or hereafter existing under this Agreement or the Parent Guaranty (including without limitation interest that, but for the filing of a petition in bankruptcy with respect to Pledgor, would accrue on such obligations, whether or not a claim is allowed against Pledgor for such interest in the related bankruptcy proceeding), whether voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from Secured Party or any Noteholder as a preference, fraudulent transfer or otherwise, and all obligations of every nature of Pledgor now or hereafter existing under this Agreement (all such obligations of Pledgor being the " Secured Obligations" ); provided , however , upon the exercise by Secured Party of the voting rights granted to Secured Party pursuant to Section 8(c), the Secured Obligations will not be increased by any subsequent increase in the principal balance of the Notes or any new indebtedness for borrowed money.
SECTION 3. No Assumption . Notwithstanding any of the foregoing, this Agreement shall not in any way be deemed to obligate Secured Party or any purchaser at a foreclosure sale under this Agreement to assume Pledgor' s obligations, duties, expenses or liabilities under the Notes or any other Note Document or under any and all other agreements now existing or hereafter drafted or executed (collectively, the " Grantor Obligations" ) unless Secured Party or any such purchaser otherwise expressly agrees to assume any or all of said Grantor Obligations in writing. In the event of foreclosure by Secured Party, Pledgor shall remain bound and obligated to perform the Grantor Obligations and Secured Party shall not be deemed to have assumed any of such Grantor Obligations except as provided in the preceding sentence.
SECTION 4. Delivery of Pledged Collateral . All certificates or instruments representing or evidencing the Pledged Collateral shall be delivered to and held by or on behalf of Secured Party pursuant hereto and shall be in suitable form for transfer by delivery or, as applicable, shall be accompanied by Pledgor' s endorsement, where necessary, or duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to Secured Party. Upon the occurrence and during the continuation of an Event of Default (as defined in Section 12), Secured Party shall have the right, without notice to Pledgor, to transfer to or to register in the name of Secured Party or any of its nominees any or all of the Pledged Collateral, subject to the revocable rights specified in Section 8(a). In addition, Secured Party shall have the right at any time to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties . Pledgor represents and warrants as follows:
(a) Due Authorization, etc. of Pledged Collateral . All of the Pledged Shares have been duly authorized and validly issued and are fully paid and non-assessable.
(b) Description of Pledged Collateral . The Pledged Shares constitute the percentage of the issued and outstanding shares of stock of each issuer thereof indicated on Schedule I hereto, and there are no outstanding warrants, options or other rights to purchase, or other agreements outstanding with respect to, or property that is now or hereafter convertible into, or that requires the issuance or sale of, any Pledged Shares. Schedule I sets forth all of the Pledged Shares owned by Pledgor on the date hereof.
(c) Ownership of Pledged Collateral . Pledgor is the legal, record and beneficial owner of the Pledged Collateral free and clear of any Lien except for Permitted Liens.
(d) Due Authorization, etc . Pledgor is duly formed, validly existing and in good standing under the law of its jurisdiction of organization and has full entity power and authority to execute, deliver and perform this Agreement. The execution, delivery and performance of this Agreement has been duly authorized by all necessary entity action. This Agreement constitutes a legally valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles.
(e) Governmental Authorizations . No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for either (i) the pledge by Pledgor of the Pledged Collateral pursuant to this Agreement and the grant by Pledgor of the security interest granted hereby, (ii) the execution, delivery or performance of this Agreement by Pledgor, or (iii) the exercise by Secured Party
of the voting or other rights, or the remedies in respect of the Pledged Collateral, provided for in this Agreement (except as may be required in connection with a disposition of Pledged Collateral by laws affecting the offering and sale of securities generally).
(f) Perfection . The pledge of the Pledged Collateral pursuant to this Agreement creates a valid and perfected first priority security interest in the Pledged Collateral, securing the payment of the Secured Obligations.
SECTION 6. Transfers and Other Liens; Additional Pledged Collateral; etc.
(a) not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral, (ii) create or suffer to exist any Lien upon or with respect to any of the Pledged Collateral, except for Liens permitted by the Notes, or (iii) permit any issuer of Pledged Shares to merge or consolidate unless a percentage of the outstanding capital stock of the surviving or resulting corporation equal to or greater than the percentage of outstanding shares the issuer thereof pledged hereunder is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding shares of any other constituent corporation;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other securities in addition to or in substitution for the Pledged Shares issued by such issuer, except to Pledgor, and (ii) pledge hereunder, immediately upon its acquisition (directly or indirectly) thereof, any and all additional shares of stock or other securities of each issuer of Pledged Shares; and
(c) pay promptly when due all material taxes, assessments and governmental charges or levies imposed upon, and all claims against, the Pledged Collateral, except to the extent the validity thereof is being contested in good faith; provided that Pledgor shall in any event pay such taxes, assessments, charges, levies or claims not later than five days prior to the date of any proposed sale under any judgement, writ or warrant of attachment entered or filed against Pledgor or any of the Pledged Collateral as a result of the failure to make such payment.
SECTION 7. Further Assurances; Pledge Amendments .
(a) Pledgor agrees that from time to time, at the expense of Pledgor, Pledgor will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary, or as Secured Party may reasonably 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 its rights and remedies hereunder with respect to any Pledged Collateral. Without limiting the generality of the foregoing, Pledgor will: (i) execute (if necessary) and file such financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary, or as Secured Party may reasonably request, in order to perfect and preserve the security interests granted or purported
to be granted hereby and (ii) at Secured Party' s request, appear in and defend any action or proceeding that may affect Pledgor' s title to or Secured Party' s security interest in all or any part of the Pledged Collateral. 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 Pledged Collateral without the signature of Pledgor.
(b) Pledgor further agrees that it will, upon obtaining any additional shares of stock or other securities required to be pledged hereunder as provided in Section 6(b), promptly (and in any event within five Business Days) deliver to Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially the form of Schedule II annexed hereto (a " Pledge Amendment" ), in respect of the additional Pledged Shares to be pledged pursuant to this Agreement. Upon each delivery of a Pledge Amendment to Secured Party