Exhibit 10.1 (b)
Berche Stock Pledge Agreement
STOCK PLEDGE AGREEMENT
Date: August 13, 2001
TO: THE ▇▇▇▇ ▇▇▇▇▇▇ FAMILY TRUST
Pledge of Stock
To induce you to make a loan of U.S. $180,000.00 to us as evidenced by our
Promissory Note by and between VERTICAl COMPUTER SYSTEMS, INC., a Delaware
corporation ("Company") and you in that amount dated the date of this Stock
Pledge Agreement (the "Agreement"), bearing interest at the rate of twelve
percent (12%) per annum, and payable to your order on February 13, 2002 (the
"Note", which term will include any amendments thereto and substitutions
therefor), and in consideration of your making said loan, and to secure payment
of all amounts owing under the Note and this Agreement and performance of all of
our other obligations under the Note and under this Agreement, the undersigned
hereby pledge to you and grant you a security interest in FOUR HUNDRED THOUSAND
(400,000) shares of EResource Capital Group common stock, represented by
certificate(s) no. ___ and, provided the aforesaid shares have been sold or
exhausted as Collateral prior to timely repayment of the Note, sufficient shares
of Company common stock to account for the amount of the deficiency not yet
paid.
Definition of Collateral; Method of Selling Collateral and Repayment of
Promissory Note
The term "Collateral" means (i) the shares of stock pledged under the
foregoing paragraph (collectively called the "Stock"), and (ii) any cash,
securities or other property paid or otherwise distributed on, with respect to,
or in exchange for any Collateral. Upon default under this Agreement, you may at
any time transfer the stock or any other Collateral into your name or the name
of your nominee. The method of repayment of the Promissory note is to be as
follows: The Company shall open an account and deposit the 400,000 EResource
Capital Group shares with a brokerage firm agreed upon by the parties. The
brokerage firm shall be given instructions which are mutually agreeable to the
parties to sell the 400,000 shares in such manner to timely repay all sums due
the Lender pursuant to the Note.
Warranties
We hereby warrant to you that:
a. The Company is duly incorporated and validly existing under
the laws of the State of Delaware;
b. We have taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement and the
Note, which constitute our legally binding obligations;
c. we are the sole owner of the Stock;
d. the Stock is validly issued, is fully paid and non-assessable,
and is not subject to any claim, restriction, lien or other
encumbrance except as provided in this Agreement;
e. we may pledge and grant a security interest in the Stock
without obtaining the approval of any other person,
corporation, partnership, or other entity, or any governmental
authority,
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Prohibition on Transfer of Collateral
We agree that we will not sell, transfer, assign or encumber any of our
rights in any of the Collateral or grant any rights in or to any of the
Collateral except pursuant to this Agreement.
Further Assurances
We will, at our expense, take or cause to be taken such action and execute
and deliver or cause to be executed and delivered such additional agreements and
documents as you may request in connection with this Agreement or any of the
Collateral or to perfect your security interest in any of the Collateral,
including, without limitation, delivering any Collateral to you and executing
and filing financing and other statements under the Uniform Commercial Code in
effect in any state; and we hereby authorize you to sign any such agreement or
document or statement on our behalf and to file any such statement with or
without our signature.
Default
Upon a default under any of the provisions of the Note, or if any warranty
by us hereunder is incorrect, or if we fail to perform any of our obligations
under this Agreement (any such default or breach of warranty or failure being
herein called "a default under this Agreement"), you may, without notice, take
such action as you deem advisable with respect to the Collateral, including,
without limitation, selling any of the Collateral at public or private sale on
such terms as you deem appropriate; and you are also authorized as our
attorney-in-fact to endorse or otherwise effect the transfer of any of the
Collateral. At any such sale you may be the purchaser.
Remedies; Order of Pursuit
You shall not be required to resort to or pursue any of your rights or
remedies under or with respect to any other agreement or any other collateral
before pursuing any of your rights or remedies under this Agreement. You may
pursue your rights and remedies in such order as you determine, and the exercise
by you of any right or remedy will not preclude your exercising any other right
or remedy.
Delay; Waiver
The failure or delay by you in exercising any of your rights hereunder or
with respect to the Note or any other collateral securing the Note in any
instance shall not constitute a waiver thereof in that or any other instance.
You may waive your rights only by an instrument in writing signed by you.
Expenses
We agree to pay on demand (a) all expenses (including, without limitation,
legal fees and disbursements) incurred by you in connection with the negotiation
and preparation of this Agreement and the perfection of your security interest
in any of the Collateral, and (b) all expenses of enforcing the provisions of
this Agreement and your rights against any of the Collateral, including, without
limitation, expenses and fees of legal counsel, court costs and the cost of
appellate proceedings.
Where to Make Payments
All payments under this Agreement shall be made in lawful currency of the
United States of America in immediately available funds at the address as
provided in the Note, or in such other manner or at such other place as you
shall designate in writing.
Governing Law; Agent for Service of Process
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This Agreement and your rights and our obligations hereunder shall be
governed by and construed in accordance with the law of the State of California.
We agree that any legal action or proceeding with respect to this Agreement or
any of the Collateral may be brought in the courts of the State of California
and of the United States having jurisdiction in the County of Los Angeles and
State of California and for the purpose of any such legal action or proceeding,
we hereby submit to the non-exclusive jurisdiction of such courts and agree not
to raise and waive any objection we may have based upon personal jurisdiction or
the venue of any such court or forum non conveniens. We agree not to bring any
action or other proceeding with respect to this Agreement or any of our
obligations under this Agreement in any other court unless such courts of the
State of California and of the United States determine that they do not have
jurisdiction in the matter. For purposes of any proceeding involving this
Agreement, we hereby irrevocably appoint ▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., #▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, our agent to receive service of process for
us and on our behalf.
We will at all times maintain an agent to receive service of process in
California, on our behalf with respect to this Agreement, and in the event that,
for any reason, the agent named above or any successor agent shall no longer
serve as our agent to receive service of process in California, we shall
promptly appoint a successor and advise you thereof.
Amendment
This Agreement may only be amended by an instrument in writing signed by
you and us.
Very truly yours,
PLEDGEE
THE ▇▇▇▇ ▇▇▇▇▇▇ FAMILY TRUST
-------------------------------------
By
PLEDGOR
AGREED:
VERTICAL COMPUTER SYSTEMS, INC.
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By: ▇▇▇▇▇▇▇ ▇▇▇▇, President
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