EXHIBIT 10.4
SECURITY AND PLEDGE AGREEMENT
THIS AGREEMENT, dated May 29, 2009, made by Infinity Capital Group,
Inc., and GHL Group Ltd ("Pledgors") to ___________________ ("Lender")
PRELIMINARY STATEMENTS:
Pledgors have agreed to secure a Promissory Note for $125,000 from
Infinity Capital Group, Inc. to Lender dated as of even date herewith (said
Promissory Note, as it may hereafter be amended or otherwise modified from time
to time, being interchangeable with the words "Loan" or "Loan Agreement" herein
with the Pledgors). It is a condition precedent to the making of a loan by
Lender under the Agreement that Pledgors shall have made the pledge contemplated
by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to make the Loan under the Agreement, Pledgors hereby agrees as follows:
SECTION 1. Pledge. Pledgors hereby pledge, transfer and assign to
Lender and any assigns and grants to Lender a security interest in, the
following (the "Pledged Collateral"):
a) 200,000 shares of common stock of Strategic Energy and Environmental
Resources, Inc., a Nevada corporation; represented in Cert. #1173, owned by
Infinity Capital Group, Inc. and
b) 250,000 shares of Infinity Capital Group, Inc. owned by GHL Group,
Ltd. from Cert. #1257.
SECTION 2. Security for Obligations. This Security and Pledge Agreement
secures the payment of all obligations present or future, direct or indirect,
absolute or contingent, matured or not, of either of Pledgors to Lender under
the Loan Agreement, or this Agreement the note evidencing the loan made
thereunder (the "Note"), whether for principal, fees, expenses or otherwise, and
all obligations present or future, direct or indirect, absolute or contingent,
matured or not of either of Pledgors to Lender under this Agreement and
Promissory Note (all such obligations of Pledgors being the "Obligations").
SECTION 3. Delivery of Pledged Collateral.
(a) All certificates or instruments representing or evidencing any
Pledged Collateral shall be delivered to and held by or on behalf of Lender
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to Lender. Ten day after Notice of
Default, if not cured, Lender shall have the right, at any time in its
discretion and without notice to Pledgors, to transfer to or to register in the
name of Lender or any of its nominees any or all of the Pledged Collateral. In
addition, Lender shall have the right at any time to exchange certificates or
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instruments representing or evidencing Pledged Collateral for Certificates or
instruments of smaller or larger denominations.
(b) Pledgors shall, upon the request of Lender, deliver, or cause to be
delivered to Lender any or all of the Pledged Collateral not referred to in
Section 3(a) or (b) if Lender determines in its sole discretion that such
delivery will enhance, protect, maintain, create or otherwise aid Lender in the
perfection or maintenance of the security interests created hereby.
SECTION 4. Perfecting Security Interest.
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(a) Pledgors shall cause a UCC-1 to be filed with the Secretary of
State of Maryland evidencing the pledge of the assets described in Section 1,
and Pledgors shall cause any filings to be made and assist Lender in giving any
notice as may be required to perfect or maintain Lender's security interest in
Pledgors's property. In addition, Pledgors shall deposit the Pledged stock
shares in escrow, together with duly executed and guaranteed stock powers for
the Pledged shares.
(b) Upon delivery in escrow, Lender security interest is deemed
perfected.
SECTION 5. Representations and Warranties. Pledgors represents and
warrants as follows:
(a) Pledgors are the full and legal owners of the Pledged Shares, and
no other person has or will have any superior right, title, interest or claim in
or to the Pledged Shares or to the proceeds thereof, or any part thereof. The
Pledged Shares have been duly authorized and validly issued and are fully paid
and nonassessable.
(b) Pledgors are, and as to the Pledged Collateral acquired after the
date hereof, will be, the legal and beneficial owner of the Pledged Collateral
free and clear of any lien, security interest, option or other charge or
encumbrance, except for the security interest created by this Agreement.
(c) 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 Obligations.
(d) Pledgors are duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all requisite
corporate power, capacity and authority (i) to own, lease and operate its
assets, properties and business and to carry on its business as now being
conducted, and (ii) to execute, deliver and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement, the
Financial Agreement and the consummation of the transactions contemplated hereby
and therein have been duly authorized by all necessary corporate action by
Pledgors.
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(e) The execution, delivery and performance by Pledgors of this
Agreement do not and will not violate or conflict with or result in a breach of
or constitute (or with notice or lapse of time or both constitute) a default
under (a) the incorporating documents or by-laws, (b) any indenture, mortgage,
bond, license, permit or loan or credit agreement or any other agreement or
instrument to which Pledgors are a party or by which Pledgors or any of its
properties may be bound or affected or (c) any statute or law or judgment,
decree, order, writ, injunction, regulation or rule of any court or governmental
authority of any state or of the United States or any political subdivision of
the foregoing. The execution, performance and delivery by Pledgors of this
Agreement will not result in the creation of any lien with respect to the assets
of Pledgors except for the lien created hereby with respect to the Pledged
Collateral.
(f) This Agreement constitutes a legal, valid and binding obligation of
Pledgors enforceable against Pledgors in accordance with its terms except as
enforceability may be limited by (i) any applicable bankruptcy, insolvency,
reorganization, winding up, moratorium or other similar laws now or hereafter in
effect relating to the enforcement of creditors' rights and (ii) general
equitable principles including rules governing the granting of specific
performance and injunctive relief, which are within the discretion of the court
having jurisdiction.
(g) No authorization, consent, validation, approval, license,
qualification or forma exemption from, and no filing, declaration or
registration with, any court, governmental agency or regulatory authority or any
securities exchange or any other person, whether located in the United States or
elsewhere, is required (i) in connection with the authorization, execution,
delivery or performance by Pledgors of this Agreement, the Agreement and the
transactions contemplated thereby other than the Regulatory Approvals (ii) for
the pledge by Pledgors of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance by Pledgors of this Agreement, the
Agreement, (ii) for the pledge by Pledgors of the Collateral pursuant to this
Agreement or for the execution, delivery or performance of the Financial
Agreement by Pledgors, or (iii) for the exercise by Lender of the voting or
other rights provided for in this Agreement or the remedies in respect of the
Pledged Collateral pursuant to this Agreement (except as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally).
(h) Complete and correct copies of the incorporating documents and
by-laws of Pledgors as of the date hereof have been provided to the Lender on or
prior to the date hereof and are in full force and effect.
(i) Except as disclosed herein there is no action, suit, inquiry,
litigation, arbitration or administrative or legal proceeding presently pending
or, to the best knowledge of Pledgors, threatened against Pledgors before any
court or administrative agency of any country or subdivision thereof.
(j) Neither Pledgors nor any portion of Pledgors' property is immune or
exempt from the exercise of jurisdiction, whether arising through service or
notice of judicial process, attachment or seizure prior to judgment, attachment
or seizure in aid of execution following judgment or otherwise, by the courts of
the State of Maryland or any other state, province, country, nation or other
territorial jurisdiction in which any portion of Pledgors' property is located
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or business is conducted except to the extent, if any, that jurisdiction may be
limited by bankruptcy, insolvency, reorganization and other similar laws now or
hereinafter in effect relating to the enforcement of creditors' rights
generally.
(k) The representations and warranties set forth herein hereof shall
survive the execution of this Agreement and shall continue as long as there
shall be any Indebtedness outstanding under this Agreement as if repeated and
given again to Lender on each day during the term hereof.
SECTION 6. Further Assurances. Pledgors agree that at any time and from
time to time, at the expense of Pledgors, Pledgors will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that Lender may request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Lender to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral, including without limitation filing one or
more UCC-1s to protect Lender's security interest in Pledgors Rights and making
any filing statement or appearance before or with any insurance commission or
other regulatory authority. Pledgors authorize Lender to file, in jurisdictions
where this authorization will be given effect, a financing statement signed only
by Lender covering the Pledged Collateral. Pledgors will join Lender at its
request in executing all financial statements in form satisfactory to Lender and
Pledgors will pay the cost of filing or recording any such financial statement
or of this Agreement if it is deemed by Lender to be necessary or desirable.
SECTION 7. Lender Appointed Attorney-in-Fact. Pledgors hereby appoint
Lender as Pledgors' attorney-in-fact, with full authority in the place and stead
of Pledgors and in the name of Pledgors or otherwise, from time to time in
Lender's discretion to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instrument made payable to Pledgors representing any dividend or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
SECTION 8. Lender May Perform. If Pledgors fail to perform any
agreement contained herein, Lender may itself perform, or cause performance of,
such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Pledgors under Section 11.
SECTION 9. Reasonable Care. Lender shall exercise reasonable care in
the custody of the Pledged Collateral in its possession or control hereunder at
any time. Lender shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged collateral in its possession if the
Pledged Collateral is accorded treatment substantially equal to that which
lender accords its own property, it being understood that Lender shall not have
any responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not Lender has or is deemed to have knowledge of
such matters, or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral.
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SECTION 10. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
(a) Lender may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") in effect in the State of Maryland, except
as required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Maryland, at that time, and
Lender may also, without notice except as specified below, exercise any voting
or other consensual rights with respect to the Pledged Collateral, sell the
Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of Lender's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms
as Lender may deem commercially reasonable. Pledgors agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to Pledgors
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. Lender shall not be
obligated to make any sale of Pledged Collateral regardless of notice of sale
having been given. Lender may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by Lender as Pledged Collateral and all cash proceeds
received by Lender in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of Lender, be held by Lender as collateral for, and then or at any
time thereafter applied (after payment of any amounts payable to Lender) in
whole or in part by Lender against, all or any part of the Obligations in such
order as Lender shall elect. Any surplus of such cash or cash proceeds and
interest accrued thereon, if any, held by Lender and remaining after payment in
full of all the Obligations shall be paid over to Pledgors or to whomsoever may
be lawfully entitled to receive such surplus, provided that Lender shall have no
obligation to invest or otherwise pay interest on any amounts held by him in
connection with or pursuant to this Agreement.
(c) All rights and remedies of Lender expressed herein are in addition
to all other rights and remedies possessed by Lender in the Financial Agreement,
all third party guaranties and any other agreement or instrument relating to the
Obligations.
SECTION 11. Expenses. Pledgors will upon demand pay to Lender the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Lender may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of Lender hereunder of (iv) the failure by Pledgors to perform or observe
any of the provisions hereof.
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SECTION 12. Security Interest Absolute. All rights of Lender and
security interests hereunder, and all obligations of Pledgors hereunder, shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Financial
Agreement, or any other agreement or instrument relating thereto;
(ii) any change in the time, manner, place or terms of payment
of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Financial
Agreement;
(iii) any sale, exchange, release, surrender or nonperfection
of any other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations or any setoff
against all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or a third-party Pledgors.
SECTION 13. Amendments, etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by Pledgors herefrom, shall in any
event be effective unless the same shall be in writing and signed by Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 14. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic
communication), mailed or telegraphed or delivered to it, addressed to it at
such party's address specified in the Financial Agreement; or as to either party
at such other address as shall be designated by such party in a written notice
to each other party complying as to delivery with the terms of this Section. All
such notices and other communications shall, when mailed or telegraphed,
respectively, be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid.
SECTION 15. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (i) remain in
full force and effect until payment in full of the Obligations, (ii) be binding
upon Pledgors, its successors and assigns and (iii) inure to the benefit of
Lender and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), Lender may assign or otherwise
transfer the Financial Agreement to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to Lender herein or otherwise. Upon the payment in full of the
Obligations, Pledgors shall be entitled to the return, upon its request and at
its expense, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
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SECTION 16. Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of Maryland, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Maryland. Unless otherwise
defined herein, terms defined in the Uniform Commercial Code in the State of
Maryland are used herein as therein defined.
IN WITNESS WHEREOF, Pledgors has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PLEDGORS:
Infinity Capital Group, Inc.
By:_________________________________________
Xxxxxxx X. Xxxxxxx, President
GHL Group, Ltd.
By: _____________________________________
Xxxxxxx X. Xxxxxxx, Manager
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STOCK POWER
FOR VALUE RECEIVED, ____________________ hereby sells, assigns,
transfers and waives any claim whatsoever, to 200,000 shares of Strategic Energy
and Environmental Resources, Inc. the Common Stock represented by the within
Certificate and does hereby irrevocably constitute and appoint
________________________________ to transfer the said stock on the books of the
within-named corporation with full power of substitution in the premises.
Dated: _____________________, 20___
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SSN: _________________________
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SSN: _________________________
Signature Guaranteed:
By: ____________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
SEC Rule 17Ad-15.
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STOCK POWER
FOR VALUE RECEIVED, ____________________ hereby sells, assigns,
transfers and waives any claim whatsoever, to 250,000 shares of Infinity Capital
Group, Inc. the Common Stock represented by the within Certificate and does
hereby irrevocably constitute and appoint ________________________________ to
transfer the said stock on the books of the within-named corporation with full
power of substitution in the premises.
Dated: _____________________, 20___
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SSN: _________________________
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SSN: _________________________
Signature Guaranteed:
By: ____________________
The signature(s) should be guaranteed by an eligible guarantor institution
(Banks, Stockbrokers, Savings and Loan Associations and Credit Unions with
membership in an approved signature guarantee Medallion Program), pursuant to
SEC Rule 17Ad-15.
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