STOCK PLEDGE AGREEMENT
Exhibit
10.6
This
Stock Pledge Agreement (this “Agreement”),
dated
as of September 18, 2007, among Valens U.S. SPV I, LLC (the “Pledgee”),
as
agent for Purchasers (as defined in the Securities Purchase Agreement (as
defined below)), True North Energy Corporation, a Nevada corporation
(“TNEC”),
and
each of the other undersigned parties, if any, (other than the Pledgee and
TNEC)
(TNEC and each such other undersigned party, a “Pledgor”
and
collectively, the “Pledgors”).
BACKGROUND
TNEC
and
ICF Energy Corporation (“ICF,”
and
together with TNEC, the “Borrowers”
and
each a “Borrower”)
have
entered into a Securities Purchase Agreement, dated as of the date hereof (as
amended, modified, restated or supplemented from time to time, the “Securities
Purchase Agreement”),
pursuant to which the Agent and the other Purchasers provide or will provide
certain financial accommodations to the Borrowers.
In
order
to induce the Agent and the other Creditor Parties to provide or continue to
provide the financial accommodations described in the Securities Purchase
Agreement, each Pledgor has agreed to pledge and grant a security interest
in
the collateral described herein to the Pledgee, for the ratable benefit of
the
Creditor Parties, on the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Defined
Terms.
All
capitalized terms used herein which are not defined shall have the meanings
given to them in the Securities Purchase Agreement.
2. Pledge
and Grant of Security Interest.
To
secure the full and punctual payment and performance of (the following clauses
(a) and (b), collectively, the “Obligations”)
(a)
the obligations owing to the Pledgee and other Creditor Parties under the
Securities Purchase Agreement and the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and the Related
Agreements, as each may be amended, restated, modified and/or supplemented
from
time to time, collectively, the “Documents”)
and
(b) all other obligations and liabilities of each Pledgor and ICF to the Pledgee
and the other Creditor Parties, whether now existing or hereafter arising,
direct or indirect, liquidated or unliquidated, absolute or contingent, due
or
not due and whether under, pursuant to or evidenced by a note, agreement,
guaranty, instrument or otherwise (in each case, irrespective of the
genuineness, validity, regularity or enforceability of such Obligations, or
of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of such in any case
commenced by or against any Pledgor and/or ICF under Xxxxx 00, Xxxxxx Xxxxxx
Code, including, without limitation, obligations of each Pledgor and ICF for
post-petition interest, fees, costs and charges that would have accrued or
been
added to the Obligations but for the commencement of such case), each Pledgor
hereby pledges, assigns, hypothecates, transfers and grants a security interest
to Pledgee, for the ratable benefit of the Creditor Parties, in all of the
following (the “Collateral”):
(a) the
shares of stock set forth on Schedule
A
annexed
hereto and expressly made a part hereof (together with any additional shares
of
stock or other equity interests acquired by any Pledgor, the “Pledged
Stock”),
the
certificates representing the Pledged Stock and all dividends, cash, instruments
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 the Pledged
Stock;
(b) all
additional shares of stock of any issuer (each, an “Issuer”)
of the
Pledged Stock from time to time acquired by any Pledgor in any manner,
including, without limitation, stock dividends or a distribution in connection
with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off
or
split-off (which shares shall be deemed to be part of the Collateral), and
the
certificates representing such additional shares, and all dividends, cash,
instruments 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 shares; and
(c) all
options and rights, whether as an addition to, in substitution of or in exchange
for any shares of any Pledged Stock and all dividends, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all such options and
rights.
3. Delivery
of Collateral.
All
certificates representing or evidencing the Pledged Stock shall be delivered
to
and held by or on behalf of Pledgee, pursuant hereto and shall be accompanied
by
duly executed instruments of transfer or assignments in blank, all in form
and
substance satisfactory to Pledgee. Each Pledgor hereby authorizes the Issuer
upon demand by the Pledgee to deliver any certificates, instruments or other
distributions issued in connection with the Collateral directly to the Pledgee,
in each case to be held by the Pledgee, subject to the terms hereof. Upon the
occurrence and during the continuance of an Event of Default (as defined below),
the Pledgee shall have the right, during such time in its discretion and without
notice to the Pledgor, to transfer to or to register in the name of the Pledgee,
or any of its nominees any or all of the Pledged Stock. In addition, the Pledgee
shall have the right at such time to exchange certificates or instruments
representing or evidencing Pledged Stock for certificates or instruments of
smaller or larger denominations.
4. Representations
and Warranties of each Pledgor.
Each
Pledgor jointly and severally represents and warrants to the Pledgee (which
representations and warranties shall be deemed to continue to be made until
all
of the Obligations have been paid in full and each Document and each agreement
and instrument entered into in connection therewith has been irrevocably
terminated) that:
(a) the
execution, delivery and performance by each Pledgor of this Agreement and the
pledge of the Collateral hereunder do not and will not result in any violation
of any agreement, indenture, instrument, license, judgment, decree, order,
law,
statute, ordinance or other governmental rule or regulation applicable to any
Pledgor;
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(b) this
Agreement constitutes the legal, valid, and binding obligation of each Pledgor
enforceable against each Pledgor in accordance with its terms;
(c) (i)
all
Pledged Stock owned by each Pledgor is set forth on Schedule
A
hereto
and (ii) each Pledgor is the direct and beneficial owner of each share of the
Pledged Stock;
(d) all
of
the shares of the Pledged Stock have been duly authorized, validly issued and
are fully paid and nonassessable;
(e) no
consent or approval of any person, corporation, governmental body, regulatory
authority or other entity, is or will be necessary for (i) the execution,
delivery and performance of this Agreement, (ii) the exercise by the Pledgee
of
any rights with respect to the Collateral or (iii) the pledge and assignment
of,
and the grant of a security interest in, the Collateral hereunder;
(f) there
are
no pending or, to the best of Pledgor’s knowledge, threatened actions or
proceedings before any court, judicial body, administrative agency or arbitrator
which may materially adversely affect the Collateral;
(g) each
Pledgor has the requisite power and authority to enter into this Agreement
and
to pledge and assign the Collateral to the Pledgee, for the ratable benefit
of
the Creditor Parties, in accordance with the terms of this
Agreement;
(h) each
Pledgor owns each item of the Collateral and, except for the pledge and security
interest granted to Pledgee, for the ratable benefit of Creditor Parties,
hereunder, the Collateral shall be, immediately following the closing of the
transactions contemplated by the Documents, free and clear of any other security
interest, mortgage, pledge, claim, lien, charge, hypothecation, assignment,
offset or encumbrance whatsoever (collectively, “Liens”);
(i) there
are
no restrictions on transfer of the Pledged Stock contained in the certificate
of
incorporation or by-laws (or equivalent organizational documents) of the Issuer
or otherwise which have not otherwise been enforceably and legally waived by
the
necessary parties;
(j) none
of
the Pledged Stock has been issued or transferred in violation of the securities
registration, securities disclosure or similar laws of any jurisdiction to
which
such issuance or transfer may be subject;
(k) the
pledge and assignment of the Collateral and the grant of a security interest
under this Agreement vest in the Pledgee, for the ratable benefit of the
Creditor Parties all rights of each Pledgor in the Collateral as contemplated
by
this Agreement; and
(l) the
Pledged Stock constitutes one hundred percent (100%) of the issued and
outstanding shares of capital stock of each Issuer.
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5. Covenants.
Each
Pledgor jointly and severally covenants that, until the Obligations shall be
indefeasibly satisfied in full and each Document and each agreement and
instrument entered into in connection therewith is irrevocably
terminated:
(a) No
Pledgor will sell, assign, transfer, convey, or otherwise dispose of its rights
in or to the Collateral or any interest therein; nor will any Pledgor create,
incur or permit to exist any Lien whatsoever with respect to any of the
Collateral or the proceeds thereof other than that created hereby.
(b) Each
Pledgor will, at its expense, defend Pledgee’s right, title and security
interest in and to the Collateral, for the ratable benefit of the Creditor
Parties, against the claims of any other party.
(c) Each
Pledgor shall at any time, and from time to time, upon the written request
of
Pledgee, execute and deliver such further documents and do such further acts
and
things as Pledgee may reasonably request in order to effectuate the purposes
of
this Agreement including, but without limitation, delivering to Pledgee, upon
the occurrence of an Event of Default, irrevocable proxies in respect of the
Collateral in form satisfactory to Pledgee. Until receipt thereof, upon an
Event
of Default that has occurred and is continuing beyond any applicable grace
period, this Agreement shall constitute Pledgor’s proxy to Pledgee or its
nominee to vote all shares of Collateral then registered in each Pledgor’s
name.
(d) No
Pledgor will consent to or approve the issuance of (i) any additional shares
of
any class of capital stock or other equity interests of the Issuer; or (ii)
any
securities convertible either voluntarily by the holder thereof or automatically
upon the occurrence or nonoccurrence of any event or condition into, or any
securities exchangeable for, any such shares, unless, in either case, such
shares are pledged as Collateral pursuant to this Agreement.
6. Voting
Rights and Dividends.
In
addition to the Pledgee’s rights and remedies set forth in Section 8 hereof, in
case an Event of Default shall have occurred and be continuing, beyond any
applicable cure period, the Pledgee shall (i) be entitled to vote the
Collateral, (ii) be entitled to give consents, waivers and ratifications in
respect of the Collateral (each Pledgor hereby irrevocably constituting and
appointing the Pledgee, with full power of substitution, the proxy and
attorney-in-fact of each Pledgor for such purposes) and (iii) be entitled to
collect and receive for its own use cash dividends paid on the Collateral to
pay
in full or in part the Obligations. Unless and until there shall have occurred
and be continuing an Event of Default, each Pledgor shall be permitted to
exercise or refrain from exercising any voting rights or other powers; provided
that, in each case, no vote shall be cast or any consent, waiver or ratification
given or any action taken or omitted to be taken if, in the reasonable judgment
of the Pledgee, such action would have a material adverse effect on the value
of
the Collateral or any part thereof; and, provided,
further,
that
each Pledgor shall give at least five (5) days prior written notice of the
manner in which such Pledgor intends to exercise, or the reasons for refraining
from exercising, any voting rights or other powers other than with respect
to
any election of directors and voting with respect to any incidental matters.
Following the occurrence of an Event of Default, all rights of each Pledgor
to
vote and to give consents, waivers and ratifications shall cease and all
dividends and all other distributions in respect of any of the Collateral,
shall
be delivered to the Pledgee to hold as Collateral and shall, if received by
any
Pledgor, be received in trust for the benefit of the Pledgee, for the ratable
benefit of the Creditor Parties, be segregated from the other property or funds
of any other Pledgor, and be forthwith delivered to the Pledgee as Collateral
in
the same form as so received (with any necessary endorsement).
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7. Event
of Default.
An
“Event of Default” under this Agreement shall occur upon the happening of any of
the following events:
(a) An
“Event
of Default” under any Document or any agreement or note related to any Document
shall have occurred and be continuing beyond any applicable cure
period;
(b) Any
Pledgor and/or ICF shall default in the performance of any of its obligations
under any Document, including, without limitation, this Agreement, and such
default shall not be cured during the cure period applicable
thereto;
(c) Any
representation or warranty of any Pledgor and/or ICF made herein, in any
Document or in any agreement, statement or certificate given in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false or
misleading in any material respect;
(d) Any
portion of the Collateral is subjected to a levy of execution, attachment,
distraint or other judicial process or any portion of the Collateral is the
subject of a claim (other than by the Pledgee) of a Lien or other right or
interest in or to the Collateral and such levy or claim shall not be cured,
disputed or stayed within a period of fifteen (15) business days after the
occurrence thereof; or
(e) Any
Pledgor and/or ICF shall (i) apply for, consent to, or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or other fiduciary of itself or of all or a substantial part of
its
property, (ii) make a general assignment for the benefit of creditors, (iii)
commence a voluntary case under any state or federal bankruptcy laws (as now
or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file
a
petition seeking to take advantage of any other law providing for the relief
of
debtors, (vi) acquiesce to, or fail to have dismissed, within thirty (30) days,
any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of the
foregoing.
8. Remedies.
In case
an Event of Default shall have occurred and is continuing, the Pledgee
may:
(a) Transfer
any or all of the Collateral into its name, or into the name of its nominee
or
nominees;
(b) Exercise
all corporate rights with respect to the Collateral including, without
limitation, all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any shares of the Collateral as
if
it were the absolute owner thereof, including, but without limitation, the
right
to exchange, at its discretion, any or all of the Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
Issuer thereof, or upon the exercise by the Issuer of any right, privilege
or
option pertaining to any of the Collateral, and, in connection therewith, to
deposit and deliver any and all of the Collateral with any committee,
depository, transfer agent, registrar or other designated agent upon such terms
and conditions as it may determine, all without liability except to account
for
property actually received by it; and
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(c) Subject
to any requirement of applicable law, sell, assign and deliver the whole or,
from time to time, any part of the Collateral at the time held by the Pledgee,
at any private sale or at public auction, with or without demand, advertisement
or notice of the time or place of sale or adjournment thereof or otherwise
(all
of which are hereby waived, except such notice as is required by applicable
law
and cannot be waived), for cash or credit or for other property for immediate
or
future delivery, and for such price or prices and on such terms as the Pledgee
in its sole discretion may determine, or as may be required by applicable
law.
Each
Pledgor hereby waives and releases any and all right or equity of redemption,
whether before or after sale hereunder. At any such sale, unless prohibited
by
applicable law, the Pledgee may bid for and purchase the whole or any part
of
the Collateral so sold free from any such right or equity of redemption. All
moneys received by the Pledgee hereunder, whether upon sale of the Collateral
or
any part thereof or otherwise, shall be held by Pledgee and applied by it as
provided in Section 10 hereof. No failure or delay on the part of the Pledgee
in
exercising any rights hereunder shall operate as a waiver of any such rights
nor
shall any single or partial exercise of any such rights preclude any other
or
future exercise thereof or the exercise of any other rights hereunder. Pledgee
shall have no duty as to the collection or protection of the Collateral or
any
income thereon nor any duty as to preservation of any rights pertaining thereto,
except to apply the funds in accordance with the requirements of Section 10
hereof. Pledgee may exercise its rights with respect to property held hereunder
without resort to other security for or sources of reimbursement for the
Obligations. In addition to the foregoing, Pledgee shall have all of the rights,
remedies and privileges of a secured party under the Uniform Commercial Code
of
New York (the “UCC”)
regardless of the jurisdiction in which enforcement hereof is
sought.
9. Private
Sale.
Each
Pledgor recognizes that the Pledgee may be unable to effect (or to do so only
after delay which would adversely affect the value that might be realized from
the Collateral) a public sale of all or part of the Collateral by reason of
certain prohibitions contained in the Securities Act, and may be compelled
to
resort to one or more private sales to a restricted group of purchasers who
will
be obliged to agree, among other things, to acquire such Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof. Each Pledgor agrees that any such private sale may be at prices and
on
terms less favorable to the seller than if sold at public sales and that such
private sales shall be deemed to have been made in a commercially reasonable
manner. Each Pledgor agrees that the Pledgee has no obligation to delay sale
of
any Collateral for the period of time necessary to permit the Issuer to register
the Collateral for public sale under the Securities Act.
10. Proceeds
of Sale.
The
proceeds of any collection, recovery, receipt, appropriation, realization or
sale of the Collateral shall be applied by the Pledgee as follows:
(a) First,
to
the payment of all costs, reasonable expenses and charges of each Creditor
Party
and to the reimbursement of each Creditor Party for the prior payment of such
costs, reasonable expenses and charges incurred in connection with the care
and
safekeeping of the Collateral (including, without limitation, the reasonable
expenses of any sale or any other disposition of any of the Collateral),
reasonable attorneys’ fees and reasonable expenses, court costs, any other fees
or expenses incurred or expenditures or advances made by any Creditor Party
in
the protection, enforcement or exercise of its rights, powers or remedies
hereunder;
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(b) Second,
to the payment of the Obligations, in whole or in part, in such order as the
Pledgee may elect, whether or not such Obligations are then due;
(c) Third,
to
such persons, firms, corporations or other entities as required by applicable
law including, without limitation, Section 9-615(a)(3) of the UCC;
and
(d) Fourth,
to the extent of any surplus to the Pledgors or as a court of competent
jurisdiction may direct.
In
the
event that the proceeds of any collection, recovery, receipt, appropriation,
realization or sale are insufficient to satisfy the Obligations, each Pledgor
shall be jointly and severally liable for the deficiency plus the reasonable
costs and fees of any attorneys employed by each Creditor Party to collect
such
deficiency.
11. Waiver
of Marshaling.
Each
Pledgor hereby waives any right to compel any marshaling of any of the
Collateral.
12. No
Waiver.
Any and
all of the Pledgee’s rights with respect to the Liens granted under this
Agreement shall continue unimpaired, and Pledgor shall be and remain obligated
in accordance with the terms hereof, notwithstanding (a) the bankruptcy,
insolvency or reorganization of any Pledgor, (b) the release or substitution
of
any item of the Collateral at any time, or of any rights or interests therein,
or (c) any delay, extension of time, renewal, compromise or other indulgence
granted by the Pledgee in reference to any of the Obligations. Each Pledgor
hereby waives all notice of any such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby consents to be bound hereby
as fully and effectively as if such Pledgor had expressly agreed thereto in
advance. No delay or extension of time by Pledgee in exercising any power of
sale, option or other right or remedy hereunder, and no failure by Pledgee
to
give notice or make demand, shall constitute a waiver thereof, or limit, impair
or prejudice Pledgee’s right to take any action against any Pledgor or to
exercise any other power of sale, option or any other right or
remedy.
13. Expenses.
The
Collateral shall secure, and each Pledgor shall pay to Pledgee on demand, from
time to time, all reasonable costs and expenses (including but not limited
to,
reasonable attorneys’ fees and costs, taxes, and all transfer, recording, filing
and other charges) of, or incidental to, the custody, care, transfer,
administration of the Collateral or any other collateral, or in any way relating
to the enforcement, protection or preservation of the rights or remedies of
the
Pledgee under this Agreement or with respect to any of the
Obligations.
14. The
Pledgee Appointed Attorney-In-Fact and Performance by the
Pledgee.
Upon
the occurrence of an Event of Default, each Pledgor hereby irrevocably
constitutes and appoints the Pledgee as such Pledgor’s true and lawful
attorney-in-fact, with full power of substitution, to execute, acknowledge
and
deliver any instruments and to do in such Pledgor’s name, place and stead, all
such acts, things and deeds for and on behalf of and in the name of such
Pledgor, which such Pledgor could or might do or which the Pledgee may deem
necessary, desirable or convenient to accomplish the purposes of this Agreement,
including, without limitation, to execute such instruments of assignment or
transfer or orders and to register, convey or otherwise transfer title to the
Collateral into the Pledgee’s name. Each Pledgor hereby ratifies and confirms
all that said attorney-in-fact may so do and hereby declares this power of
attorney to be coupled with an interest and irrevocable. If any Pledgor fails
to
perform any agreement herein contained, the Pledgee may itself perform or cause
performance thereof, and any costs and expenses of Pledgee incurred in
connection therewith shall be paid by the Pledgors as provided in Section 10
hereof.
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15. Waivers.
THE
PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING
APPLICABLE LAWS, THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE BETWEEN ANY CREDITOR PARTY AND/OR
ANY PLEDGOR ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, ANY
OTHER DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
16. Recapture.
Notwithstanding anything to the contrary in this Agreement, if any Creditor
Party receives any payment or payments on account of the Obligations, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to
a
trustee, receiver, or any other party under the United States Bankruptcy Code,
as amended, or any other federal or state bankruptcy, reorganization, moratorium
or insolvency law relating to or affecting the enforcement of creditors’ rights
generally, common law or equitable doctrine, then to the extent of any sum
not
finally retained by such Creditor Party, each Pledgor’s obligations to each such
Creditor Party and the other Purchasers, shall be reinstated and this Agreement
shall remain in full force and effect (or be reinstated) until payment shall
have been made to each such Creditor Party, which payment shall be due on
demand.
17. Captions.
All
captions in this Agreement are included herein for convenience of reference
only
and shall not constitute part of this Agreement for any other
purpose.
18. Miscellaneous.
(a) This
Agreement constitutes the entire and final agreement among the parties with
respect to the subject matter hereof and may not be changed, terminated or
otherwise varied except by a writing duly executed by the parties
hereto.
(b) No
waiver
of any term or condition of this Agreement, whether by delay, omission or
otherwise, shall be effective unless in writing and signed by the party sought
to be charged, and then such waiver shall be effective only in the specific
instance and for the purpose for which given.
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(c) In
the
event that any provision of this Agreement or the application thereof to any
Pledgor or any circumstance in any jurisdiction governing this Agreement shall,
to any extent, be invalid or unenforceable under any applicable statute,
regulation, or rule of law, such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
to
such statute, regulation or rule of law, and the remainder of this Agreement
and
the application of any such invalid or unenforceable provision to parties,
jurisdictions, or circumstances other than to whom or to which it is held
invalid or unenforceable shall not be affected thereby, nor shall same affect
the validity or enforceability of any other provision of this
Agreement.
(d) This
Agreement shall be binding upon each Pledgor, and each Pledgor’s successors and
assigns, and shall inure to the benefit of the Pledgee, and its successors
and
assigns.
(e) Any
notice or other communication required or permitted pursuant to this Agreement
shall be given in accordance with the Securities Purchase
Agreement.
(f) THIS
AGREEMENT AND THE OTHER DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(g) EACH
PLEDGOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN
THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY PLEDGOR, ON THE ONE HAND,
AND THE PLEDGEE OR ANY OTHER CREDITOR PARTY, ON THE OTHER HAND, PERTAINING
TO
THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR TO ANY MATTER ARISING OUT OF
OR
RELATED TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS, PROVIDED,
THAT
EACH PLEDGOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK;
AND FURTHER PROVIDED,
THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PLEDGEE
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
COLLECT THE INDEBTEDNESS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR
THE INDEBTEDNESS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
THE
PLEDGEE. EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PLEDGOR
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
EACH
PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH IN THE SECURITIES PURCHASE
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER
OF
SUCH PLEDGOR’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID.
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(h) It
is
understood and agreed that any person or entity that desires to become a Pledgor
hereunder, or is required to execute a counterpart of this Agreement after
the
date hereof pursuant to the requirements of any Document, shall become a Pledgor
hereunder by (i) executing a Joinder Agreement in form and substance
satisfactory to the Pledgee, (ii) delivering supplements to such exhibits
and annexes to such Documents as the Pledgee shall reasonably request and/or
set
forth in such Joinder Agreement and (iii) taking all actions as specified in
this Agreement as would have been taken by such Pledgor had it been an original
party to this Agreement, in each case with all documents required above to
be
delivered to the Pledgee and with all documents and actions required above
to be
taken to the reasonable satisfaction of the Pledgee.
(i) This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which when taken together shall constitute one
and
the same agreement. Any signature delivered by a party by facsimile transmission
shall be deemed an original signature hereto.
[Remainder
of Page Intentionally Left Blank]
10
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and
year first written above.
|
TRUE
NORTH ENERGY CORPORATION
|
||
| |
|
|
| By: | /s/ Xxxx X. Folnovic | |
|
Name: Xxxx
X. Folnovic
|
||
|
Title: President
and CEO
|
||
|
VALENS
U.S. SPV I, LLC, as Agent
|
||
| By: |
Valens
Capital Management, LLC, as investment manager
|
|
| |
|
|
| By: |
/s/
Xxxxxx Grin
|
|
|
Name:
Xxxxxx Grin
|
||
|
Title:
Authorized
Signatory
|
||
SCHEDULE
A to the Stock Pledge Agreement
Pledged
Stock
|
Pledgor
|
Issuer
|
Class
of
Stock
|
Stock
Certificate
Number
|
Par
Value
|
Number
of
Shares
|
%
of
outstanding
Shares
|
|||||||||||||
|
True
North Energy Corporation
|
ICF
Energy Corporation
|
Common
|
1
|
$
|
0.01
|
10,000
|
100
|
||||||||||||
