PLEDGE AGREEMENT
EXHIBIT
10.5
This
Pledge Agreement dated as of September 28, 2006, is made and entered into by and
among Buckeye Ventures, Inc., a Michigan corporation ("Pledgor"), and Xxxx
Xxxxxxxx, Xxxxx Xxxxxx and Xxxxxx Xxxxxx (collectively, the "Lenders"), and
Xxxxx Xxxxxx, as the agent for the Lenders (the "Agent").
WETNESSTH:
WHEREAS,
in connection with the closing of the transactions contemplated by the Merger
Agreement (as defined below), the Pledgor is indebted to the Lenders pursuant to
certain nonrecourse Notes (as defined below);
WHEREAS,
pursuant to the Merger Agreement, the Pledgor agreed to pledge all of the shares
of common stock (the "Pledged Stock"), of Energy King, Inc., a California
corporation (the "Company"), owned by Pledgor as security for the repayment of
the Notes;
NOW
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Pledgor
hereby agrees as follows:
1. Definitions and
Interpretation.
(a) In addition to the
terms defined elsewhere in this Agreement, the following terms
shall
have the meanings indicated below for purposes of this Agreement (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Default"
shall mean the occurrence of any of the following events, unless cured or
waived: (i) a "Default" as defined in the Notes; (ii) any representation,
warranty or statement made by the Pledgor in this Agreement is untrue in any
material respect; or (iii) any material breach by Pledgor of this Agreement
which breach is not cured within sixty (60) days (or if such breach reasonably
requires more than sixty (60) days to cure, such longer period of time as may be
reasonable under the circumstances provided Pledgor has commenced and is
diligently pursuing such cure) after Pledgor's receipt of notice from the Agent
specifying such breach or default in reasonable detail.
"Documents"
shall mean the Notes and this Agreement, in each case as amended, restated,
modified or supplemented from time to time.
"Liabilities"
shall mean all obligations of the Pledgor under each of the Documents and under
Section 10.4 of the Merger Agreement, in each case whether now or hereafter
existing or arising.
"Merger
Agreement" means that certain Agreement and Plan of Merger dated as of
September, 2006 among the Pledgor, EK Acquisition Corp., the Company, and the
Lenders, as amended, restated, modified or supplemented from time to
time.
"Notes"
means those certain Promissory Notes Secured by Pledge Agreement dated September
28, 2006 made by the Company in favor of each of Xxxx Xxxxxxxx in the initial
principal amount of $975,000, and Xxxxx Xxxxxx and Xxxxxx Xxxxxx in the initial
principal amount of $2,925,000, in each case as amended, restated, modified or
supplemented from time to time.
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"Person"
shall mean and include any individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization, any federal,
state or local government or regulatory body, agency or authority, or any other
entity.
"Pledged
Collateral" shall mean and include (i) the Pledged Stock, (ii) any other
securities, cash or other property that may be distributed, issued or otherwise
received with respect to or for the Pledged Stock, whether on account of or as a
result of any stock split, conversion, exchange, merger, other transaction or
otherwise, and (iii) any and all dividends, distributions and other rights on or
with respect to, and substitutions for, and proceeds or products of any of the
foregoing.
"Uniform
Commercial Code" shall mean the California Uniform Commercial Code as in
effect from time to time.
(b)Any
reference in this Agreement to a Section is, unless otherwise stated,
a
reference
to a section hereof. Section captions used in this Agreement are for convenience
only, and shall not affect the construction of this Agreement. The words
"hereof," "herein," "hereto" and "hereunder" and words of similar purport when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
2. Representations and
Warranties.
(a) Pledgor
represents, warrants and covenants to the Agent and Lenders as follows:
(i)
Pledgor is duly organized, validly existing, and in good standing under the laws
of
the State
of Michigan, and has all necessary corporate authority to conduct its business
wherever it is conducted.
(ii) Pledgor
has full power and authority and legal right to execute and deliver this
Agreement
and to pledge, hypothecate, assign, transfer, set over and deliver the Pledged
Collateral, all as provided in this Agreement. This Agreement has been duly
executed and delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor, enforceable against Pledgor in accordance with its
terms.
(iii) Pledgor
is, and at the time of delivery of the Pledged Collateral to the Agent and at
all times
thereafter will be, the sole legal and beneficial owner of the Pledged
Collateral, free and clear of any lien, charge or other encumbrance, other than
the security interests in such Pledged Collateral created by this Agreement. The
Agent shall have a continuing and valid first priority, perfected security
interest in the Pledged Collateral securing payment of the Liabilities and will
be a "bona fide purchaser" (as such term is defined in the Uniform Commercial
Code) of the Pledged Collateral. Pledgor covenants and agrees that it will not
sell, assign or otherwise dispose of the Pledged Collateral, nor will it create
or permit to exist any security interest in, or other encumbrance on, the
Pledged Collateral, except pursuant to this Agreement.
(iv) The
Pledged Collateral represents as of the date of this Agreement, and will
represent
at all times thereafter, all of the outstanding and issued capital stock of the
Company.
(v) As of the
date this Agreement is executed there are no discussions, negotiations or
agreements
by Pledgor concerning the sale of the stock of the Company or the sale of all or
substantially all of the assets of the Company, the merger or consolidation of
the Company into or with any
other Person, or any similar type of transaction, other than the merger
contemplated by the Merger Agreement.
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(vi) Neither the
execution and delivery of this Agreement, nor the taking of any action in
compliance
with it, will (1) violate or breach any law, regulation, rule, order or judicial
action binding on Pledgor, any agreement to which Pledgor is a party, Pledgor's
articles of incorporation or Bylaws; or (2) result in the creation of a lien
against the collateral (except that lien created by this
Agreement).
(b) All of the
representations, warranties and covenants made in this Section 2 shall
survive
the execution and delivery of this Agreement and also shall be deemed to be
repeated and confirmed each time any additional Pledged Collateral becomes
subject to pledge under this Agreement.
3. Pledge; Delivery of Pledged
Collateral.
(a) As
security for the prompt and complete payment and performance when due
(whether
at stated maturity, by acceleration or otherwise) of the Liabilities, Pledgor
pledges, hypothecates, assigns, transfers, sets over and grants to the Agent a
first lien on and first security interest in the Pledged
Collateral.
(b) Concurrently
with the execution and delivery of this Agreement, Pledgor shall deliver
to the Agent all of the now existing Pledged Collateral, in suitable form for
transfer by delivery and accompanied by duly executed instruments of transfer,
instructions or assignments in blank. The Agent shall maintain possession and
custody of the Pledged Collateral so delivered. In the event that any Pledged
Collateral shall at any time consist of certificated securities, the Agent shall
be permitted following the occurrence and during the continuance of any Default
to transfer all or any part of such Pledged Collateral into the name of the
Agent or its nominee, with or without disclosing that such Pledged Collateral is
subject to the lien and security interest under this Agreement.
(c) During the
term of this Agreement, Pledgor immediately shall deliver or cause to be
delivered
to the Agent to hold as part of the Pledged Collateral, and, if received by
Pledgor, shall be received in trust for the benefit of the Agent and immediately
delivered to the Agent as so received:
(i) all cash,
securities, interest, dividends, distributions, rights and other property
at any time and from time to time declared or distributed in respect of or in
redemption of, or in exchange for or attached to or issued with respect to any
or all of the Pledged Collateral; and
(ii) all
other property delivered in substitution for or in addition to any of the
fore-going,
all certificates and instruments representing or evidencing such property and
all cash, securities, interest, dividends, distributions, rights and other
property at any time and from time to time declared or distributed in respect
of, in exchange for or attached to or issued with respect to any or all of such
property.
All such
Pledged Collateral shall be in suitable form for transfer by delivery and
accompanied by duly executed instruments of transfer, instructions, or
assignments in blank all in form and substance acceptable to the
Agent.
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Notwithstanding
the foregoing, until a Default shall have occurred and be continuing and until
written notice shall be given to Pledgor by the Agent that a Default has
occurred and is continuing and the following rights have been suspended
during the continuance of such Default, the Pledgor may retain any and all cash
dividends declared and paid on the Pledged Collateral free and clear of the lien
and security interest granted by this Agreement, provided that such cash
dividends are not being paid or distributed in connection with any partial or
total liquidation or dissolution of the issuer of the Pledged Collateral or in
exchange for or in redemption of any part of the Pledged Collateral.
(d)
Any cash delivered to the Agent pursuant to Section 3(c) or Section 8(a) of this
Agreement
which Pledgor is not entitled to retain shall be held by the Agent as cash
collateral security for the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of all Liabilities.
The Agent may at any time during the continuance of any Default apply any or all
of such cash or cash collateral to the payment of any or all of the Liabilities,
whether or not then due. Pending such application, the Agent promptly shall
invest the same in an account, under which deposits are available for immediate
withdrawal, with such bank or other financial institution as the Agent may, in
its reasonable discretion select. Any interest payable on any such account
described in the foregoing sentence shall be collected by the Agent and shall be
deposited and held as additional cash collateral in such account.
4. Voting
Rights. During the term of this Agreement until a Default shall have
occurred and be continuing and written notice shall be given to Pledgor by the
Agent that a Default has occurred and is continuing and the following voting
rights of Pledgor have been suspended during the continuance of such Default,
Pledgor shall be entitled to vote and consent and attend all meetings and
otherwise exercise all rights as a shareholder or owner with respect to the
Pledged Collateral in any manner not inconsistent with this Agreement. Pledgor
grants to the Agent an irrevocable proxy to vote the Pledged Collateral, which
proxy shall be effective only upon the occurrence and during the continuance of
a Default and following receipt by the Piedgor of notice from the Agent
suspending the Pledgor's voting rights as provided above, and shall be deemed
coupled with an interest. During the continuance of a Default, Pledgor agrees to
deliver to the Agent such further evidence of such irrevocable proxy or such
further irrevocable proxies to vote the Pledged Collateral as the Agent may
request.
5. Further
Assurances. At any time and from time to time, at the sole cost and
expense of Pledgor, Pledgor will promptly execute and deliver all further
instruments and documents, and take all further action (including without
limitation the filing of Uniform Commercial Code financing statements), that may
be necessary or desirable, or that the Agent may reasonably request, in order to
perfect and protect any security interest granted by Piedgor to the Agent under
this Agreement or to enable the Agent to exercise and enforce its rights and
remedies with respect to any Pledged Collateral under this Agreement. Pledgor
hereby agrees to pay all reasonable expenses, including reasonable attorneys'
fees, incurred by the Agent after the date of this Agreement, in the perfection
preservation, realization, enforcement and exercise of its rights under this
Agreement. Pledgor hereby authorizes the Agent to file any and all Uniform
Commercial Code financing statements with respect to the Pledged Collateral as
the Agent reasonably determines to deem to be necessary.
6.
Attorney-in-Fact.
Upon and during the continuance of a Default, Pledgor appoints the Agent and any
agent of the Agent as Pledgor's attorney-in-fact, with full power of
substitution and full authority in the place and stead of Pledgor and in the
name of Pledgor or otherwise, from time to time in such Person's discretion to
take any action and to execute any instrument which such Person may reasonably
deem necessary, advisable or desirable to accomplish the purposes of this
Agreement in the event Pledgor refuses to take such action or execute such
instrument promptly following the Agent's request.
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7. Reasonable
Care. The Agent 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 a
financial lending institution accords similar securities, it being understood
that the Agent shall not have any responsibility under any circumstances
whatsoever for taking any necessary steps to preserve rights of Pledgor or any
other Person against any parties with respect to any Pledged Collateral. The
Agent shall further be deemed to have exercised reasonable care in the custody
and preservation of any of the Pledged Collateral in its possession if it takes
such action for that purpose as Pledgor shall request in writing, but failure by
the Agent to comply with any such request shall not of itself be deemed a
failure to exercise reasonable care, and no failure by the Agent to do any act
with respect to the preservation of such Pledged Collateral not so requested by
Pledgor, shall of itself be deemed a failure to exercise reasonable care in the
custody or preservation of such Pledged Collateral.
8. Remedies.
(a) Pledgor
agrees that from time to time upon and during the continuance of a Default,
the Agent
or its agent or agents shall have the right: (I) to require Pledgor to deliver
to the Agent such further evidence of the irrevocable proxy granted to the Agent
pursuant to Section 4 of this Agreement and such further irrevocable proxies to
vote the Pledged Collateral pursuant to Section 4 as the Agent may reasonably
request; (ii) to transfer all or any part of the Pledged Collateral into the
name of the Agent or its nominee, with or without disclosing that such Pledged
Collateral is subject to the lien and security interest under this Agreement;
(iii) to enforce collection of any of the Pledged Collateral by suit or
otherwise, and surrender, release or exchange all or any part of the Pledged
Collateral or compromise or extend or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party with
respect to the Pledged Collateral; (iv) to sell all or any part of the Pledged
Collateral at a price and using such methods (including public or private sale)
as may be reasonably determined by the Agent upon at least ten (10) days'
written notice (which Pledgor agrees is reasonable notification within the
meaning of the Uniform Commercial Code); (v) to bid on or purchase any of the
Pledged Collateral at any sale and reasonably restrict the eligibility of
prospective buyers at any sale; (vi) to conduct, adjourn, or cancel any public
or private sale; (vii) to sell the Pledged Collateral on credit; and (viii) if
such sale is upon credit, (A) to defer any delivery of excess proceeds to
Pledgor until full payment for the Pledged Collateral so sold is collected, and
(B) to retain the Pledged Collateral or a security interest in the Pledged
Collateral.
(b) The
Agent shall apply the net proceeds of the sale of the Pledged Collateral
pursuant
to Section 8(a), after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the safekeeping or otherwise of any and all of
the Pledged Collateral or in any way relating to the rights of the Agent under
this Agreement, including reasonable attorneys' fees and expenses, to the
payment, in whole or in part, of the Liabilities in such order as the Agent may
elect, and only after so applying such net proceeds and after the payment by the
Agent of the Liabilities in full need the Agent account for the surplus, if any,
to Pledgor.
(c) Any
purchaser of the Pledged Collateral at any such sale shall after such sale hold
the same
absolutely free from any claim or right of any kind, including any equitable
right of redemption of Pledgor. Pledgor specifically waives all rights of
redemption, stay or appraisal which Pledgor has or may have under any rule of
law or statute now existing or hereafter adopted. Pledgor will at the request of
the Agent execute any and all documents or instruments which the Agent
reasonably deems desirable to evidence the Agent's rights as set forth
above.
(d) Subject
to the nonrecourse provisions contained in this Agreement and the Notes,
Pledgor
further agrees that the Agent shall be entitled to exercise all of the rights
and remedies available
to a secured party under the Uniform Commercial Code and all rights and remedies
available to the Agent under this Agreement and the Notes.
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(e)
Pledgor recognizes that the Agent may effect one or more private sales of the
Pledged
Collateral to a restricted group of offerees and purchasers who fulfill certain
suitability standards and who agree, among other things, to acquire the Pledged
Collateral for their own account for investment and not for distribution or
resale. Pledgor consents to private sales so made even though such sales may be
at prices and upon other terms less favorable than if the Pledged Collateral
were sold at public sales. Pledgor agrees that the Agent shall have no
obligation to delay sale of the Pledged Collateral for the period of time
necessary to permit the offering and sale of the Pledged Collateral to be
registered for sale under applicable laws. Pledgor consents that private sales
made under the foregoing circumstances will be deemed to have been made in a
commercially reasonable manner, and that the Agent shall not be liable or
accountable to Pledgor for any discount allowed by reason of the fact that such
Pledged Collateral is sold in compliance with any such limitation or
restriction. In lieu of exercising the power of sale conferred upon it by this
Agreement, the Agent may proceed by a suit or suits at law or in equity to
foreclose and sell the Pledged Collateral. Pledgor agrees that the Agent shall
not be liable to Pledgor for any loss in the value of the Pledged Collateral by
reason of any delay in the sale of the Pledged Collateral.
9. Nonrecourse.
Notwithstanding anything to the contrary contained in this Agreement, the Notes
or any other agreement or instrument between or among the parties hereto or
executed in connection herewith or therewith, the Agent and the Lenders
acknowledge and agree that the Notes, this Agreement and all of the Liabilities
are nonrecourse to the Pledgor and limited to the security granted pursuant to
this Agreement and, without limiting the foregoing, that Pledgor shall not be
liable for any deficiency with respect to the Liabilities remaining after any
sale of the Pledged Collateral or any exercise of any remedies of the Agent
under this Agreement or otherwise with respect to the Liabilities.
10. Expenses.
Subject to the nonrecourse provisions contained in this Agreement and the Notes,
the Liabilities shall include the amount of any and all reasonable expenses,
including the reasonable attorneys' and experts' fees and expenses, which the
Agent may incur in connection with the enforcement of this Agreement or any of
the rights and remedies of the Agent under this Agreement, including the sale
of, collection from or other realization upon, any of the Pledged Collateral
under this Agreement.
11. Rights
Absolute. Subject to the nonrecourse provisions contained in this
Agreement and the Notes, the rights of the Agent and the security interests
granted under this Agreement and all obligations of Pledgor under this Agreement
shall be absolute and unconditional irrespective of: (a) any lack of validity or
enforceability of the Notes or any other agreement or instrument related
thereto; (b) any proceeding under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt or receivership having been filed by or
against Pledgor or any other Person; (c) any change in the time, manner or place
of payment of, or in any other term of, all or any of the Liabilities, or any
other amendment or waiver of or consent to any departure from the Notes or any
other agreement or instrument related thereto; (d) any exchange, release or
non-perfection 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 Liabilities or
any other obligations of Pledgor or any other Person; or (e) any other
circumstances which might otherwise constitute a defense available to, or a
discharge of, the Pledgor in respect of the Liabilities or of this Agreement.
Pledgor waives any requirement that the Agent exhaust any right or take any
action against any other Person or any. other collateral security before
proceeding against the Pledged Collateral.
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12. Amendments,
Waivers and Consents. No amendment or waiver of or consent to any
departure by Pledgor from any provision of this Agreement, or release of the
Pledged Collateral, shall in any event be effective unless the same shall be in
writing and signed by the Agent, and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of the Agent to exercise, and no delay
in exercising any right, power or remedy under this Agreement shall operate as a
waiver of such right, power or remedy, nor shall any single or partial exercise
of any such right, power or remedy by the Agent preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy.
13. Successors
and Assigns. This Agreement shall be binding upon and inure to the
benefit of Pledgor, the Agent and the Lenders, and their respective heirs,
personal representatives, successors and assigns.
14. Notices.
All notices, demands and other communications under this Agreement shall be in
writing and shall be given and delivered in the manner provided by the Merger
Agreement for notices to such parties.
15. GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
16. Termination.
This Agreement shall terminate when all the Liabilities of Pledgor have been
fully paid and performed, at which time the Agent shall immediately, at its own
cost and expenses, reassign and redeliver (or cause to be reassigned and
redelivered) to Pledgor, or to such Person or Persons as Pledgor shall designate
such of the Pledged Collateral (if any) as shall not have been sold or otherwise
applied by the Agent pursuant to the terms of this Agreement and shall still be
held by it under this Agreement, together with appropriate instruments of
reassignment and release.
17. Interpretation;
Partial Invalidity. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
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IN WITNESS WHEREOF, the
parties hereto have duly executed and delivered this Pledge Agreement as of the
date first above written.
PLEDGOR:
BUCKEYE
VENTURES, INC.
By: /s/ Xxxx X.
Xxxxx
Xxxx X. Xxxxx
President
LENDERS:
/s/
Xxxx
Xxxxxxxx
Xxxx
Xxxxxxxx
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
/s/ Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx
AGENT:
/s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
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