PLEDGEAND CONTROL AGREEMENT

 

THIS PLEDGE AND CONTROL AGREEMENT dated as of SEPTEMBER 17, 2008 (as amended, modified or restated from time to time, this “Agreement”), is by and among (a) THERMO CREDIT, LLC, a Colorado limited liability company (together with its successors and assigns, “Lender”); and (b) LEON NOWALSKY, an individual residing in the State of Louisiana (“Nowalsky”), and ROBERT SORRENTINO, an individual residing in the State of Florida (“Sorrentino” and together with Nowalsky, jointly, severally and in solido, “Pledgor”).

 

WHEREAS, Lender has extended certain financial accommodations to UNITED ESYSTEMS, INC., a Nevada corporation (“ESystems”), NETCOM DATA SOUTHERN CORP., a Georgia corporation (“Southern”), NETCOM DATA CORP., a Georgia corporation (“Netcom”) and UNITED CHECK SERVICES, L.L.C., a Louisiana limited liability company (“Check Services” and together with ESystems, Southern and Netcom, jointly, severally and in solido, “Debtor”) on the terms and conditions of that certain LOAN, PLEDGE AND SECURITY AGREEMENT dated as of even date herewith (as amended, modified or restated from time to time, the “Loan Agreement”), between Debtor and Lender in the (terms not otherwise defined herein shall have the same meanings as in the Loan Agreement);

WHEREAS, it is expressly understood among Pledgor and Lender that the execution and delivery of this Agreement is a condition precedent to Lender’s obligation to make the Loans under the Loan Agreement and is an integral part of the transactions contemplated thereby; and

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1.           Grant of Security Interest.  Pledgor pledges, assigns and grants to Lender a first lien security interest and lien in all right, title and interest in and to all of the Capital Stock of ESystems (including but limited to all of the Capital Stock listed on Schedule 1(a) attached hereto) now owned by Pledgor and all Capital Stock of ESystems hereafter acquired in connection with the Subordinate Indebtedness (as such term is defined in that certain SUBORDINATION AGREEMENT dated as of even date herewith, by and among Sorrentino, Lender and Debtor). , regardless of class or designation, and all substitutions therefor and replacements thereof, all proceeds thereof and all rights relating thereto, including, without limitation, any certificates representing the Capital Stock, the right to request after the occurrence and during the continuation of an Event of Default that such Capital Stock be registered in the name of Lender or any of its nominees, the right to receive any certificates representing any of the Capital Stock and the right to require that such certificates be delivered to Lender together with undated powers or assignments of investment securities with respect thereto, duly endorsed in blank by such Pledgor, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect of such Capital Stock and of all dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in cash or in kind, and cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing (the foregoing being, the “Collateral”) as collateral for the Indebtedness.

 

2.           Pledgor's Warranties.  Pledgor hereby represents and warrants to Lender as follows:

 

(a)           Financing Statements; Liens and Security Interests.  No financing statement covering the Collateral is or will be on file in any public office, except the financing statements relating to this security interest, and no security interest, other than the one herein created, has attached or been perfected in the Collateral or any part thereof.  This Agreement creates a valid first priority security interest in favor of Lender in the Collateral.  The taking possession by the Lender of the certificates representing the Capital Stock (if any) and all other certificates and instruments constituting Collateral will perfect and establish the first priority of the Lender's security interest in the Capital Stock.

 

(b)           Ownership.  Pledgor owns the Collateral free from any setoff, claim, restriction, lien, security interest or encumbrance except for taxes not yet due and payable and the security interest hereunder.  Except as set forth in the Organizational Documents of ESystems (a true and correct copy of which is attached hereto as Exhibit A), there are no options or other rights, contractual or otherwise, with respect to the Capital Stock in favor of any third party and no such options or rights shall be created until full payment and performance of all of the Indebtedness and termination or expiration of any obligation or commitment of Lender to make advances or loans to Debtor.

 

(c)           Power and Authority.  Pledgor has full power and authority to make this Agreement, and all necessary consents and approvals of any persons, entities, governmental or regulatory authorities and securities exchanges have been obtained to effectuate the validity of this Agreement.

3.           Pledgor's Covenants.  Until full payment and performance of all of the Indebtedness and termination or expiration of any obligation or commitment of Lender to make advances or Loans to, unless Lender otherwise consents in writing:

 

4.           Rights and Powers of Lender.  Lender, after an Event of Default and during the continuation thereof, without liability to Pledgor may: take control of proceeds, including securities received as dividends or by reason of splits; release the Collateral in its possession to any Pledgor, temporarily or otherwise; take control of funds generated by the Collateral, such as cash dividends, interest and proceeds, and use same to reduce any part of the Indebtedness; exercise all other rights which an owner of such Collateral may exercise; and transfer any of the Collateral or evidence thereof into its own name or that of its nominee.  Lender shall not be liable for failure to collect any account or instruments, or for any act or omission on the part of Lender, its officers, agents or

employees, except for its or their own willful misconduct or gross negligence.  The foregoing rights and powers of Lender will be in addition to, and not a limitation upon, any rights and powers of Lender given by law or elsewhere in this Agreement.

5.           Indebtedness.  Upon maturity of the Indebtedness or an Event of Default, Lender may:

6.           Limitation of Liability.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY THE OBLIGATION OR OBLIGATIONS OF PLEDGOR WITH RESPECT TO THE INDEBTEDNESS OF DEBTOR SHALL BE SOLELY LIMITED TO THE COLLATERAL.  SHOULD THE COLLATERAL BE INSUFFICIENT TO REPAY THE INDEBTEDNESS, PLEDGOR SHALL HAVE NO OBLIGATION TO REPAY LENDER FOR ANY SHORTFALL.  IT IS FURTHER AGREED THAT, NOTWITHSTANDING ANYTHING CONTAINED WITHIN THIS AGREEMENT TO THE CONTRARY AND SPECIFICALLY BUT NOT LIMITED TO SECTION 3(C), LENDER AGREES THAT IN THE EVENT IT IS REQUIRED TO EXERCISE ITS REMEDIES WITH RESPECT TO THE COLLATERAL, PLEDGORS SHALL HAVE NO PERSONAL OBLIGATION TO LENDER FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, BROKER’S COMMISSIONS, TAXES, COURT COSTS, ATTORNEY FEES, WHETHER ASSOCIATED EITHER DIRECTLY OF INDIRECTLY WITH THE ACTIONS TAKEN BY LENDER IN ORDER TO EFFECT THE EXERCISE OF ITS RIGHTS WITH RESPECT TO THE COLLATERAL.  ALL SUCH COSTS ARE TO BE PAID OUT OF THE PROCEEDS, IF ANY, DERIVED FROM THE SALE OF THE COLLATERAL OR ADDED TO THE INDEBTEDNESS OF DEBTOR.

7.           General.

 

 

 

 

 

 

 

EXECUTED as of the date first written above.

ESYSTEMS acknowledges, confirms and agrees to the terms and conditions of the foregoing Agreement and that the lien of Lender on the Collateral has been recorded on the books and records of ESystems as of the date first written above.  ESystems hereby confirms and agrees that (i) Pledgor is the registered owner of the Capital Stock, (ii) Pledgor not shall change the registered owner of the Capital Stock without the prior written consent of Lender, and (iii) the Agreement constitutes a “control agreement” under the Code.  If ESystems shall receive instructions originated by Lender relating to the Capital Stock, ESystems shall immediately comply with such instructions without further consent by Pledgor or any other Person.

PLEDGE AND CONTROL AGREEMENT – PAGE 5

THERMO CREDIT, LLC - UNITED ESYSTEMS, INC.