PLEDGE AGREEMENT (Membership Interests)(Kykuit Resources, LLC)
Exhibit 10.3
PLEDGE AGREEMENT
(Membership Interests)(Kykuit Resources, LLC)
(Membership Interests)(Kykuit Resources, LLC)
THIS PLEDGE AGREEMENT (as the same may from time to time be amended, restated or otherwise
modified, this “Agreement”) is executed and delivered at Cleveland, Ohio effective as of
June 18, 2010, by XXXX X. OIL AND GAS COMPANY, a Maryland corporation, and XXXXXXX X. XXXXXXX,
TRUSTEE OF THE XXXXXXX X. XXXXXXX TRUST UNDER TRUST AGREEMENT OF 1/13/95 (collectively, the
“Pledgor”), to RBS CITIZENS, N.A., dba Charter One (“Lender”).
INTRODUCTION:
A. Xxxx X. Oil And Gas Company, a Maryland corporation (“Xxxx X. Oil”) and Xxxxxxx X.
Xxxxxxx (“Xxxxxxx”) are parties with Lender to that certain First Amended and Restated Loan
and Security Agreement dated as of March 28, 2008.
B. The Xxxxxxx X. Xxxxxxx Trust Under Trust Agreement of 1/13/95 (the “Trust”) is a party with
Lender to that certain Unlimited Guaranty dated as of March 28, 2008.
C. Great Plains Exploration Company, LLC, an Ohio limited liability company (“GPE”)
and Oz Gas Ltd., a Pennsylvania limited liability company (“Oz”) are parties with Lender to
that certain Loan and Security Agreement dated August 2, 2007.
D. Xxxx X. Oil, Xxxxxxx, the Trust, GPE, and Oz are sometimes referred to collectively as the
“Borrowers”.
D. Borrowers and Lender are parties to the Forbearance Agreement dated as of even date hereof
(as the same may from time to time be amended, restated or otherwise modified, the “Forbearance
Agreement”) that sets forth, among other things, the terms and conditions of Lender’s
commitments to forbear pursuant to the terms and conditions of the Forbearance Agreement; and
E. It is a condition precedent to the Lender entering into the Forbearance Agreement that,
among other things, Pledgor shall have executed and delivered to Lender this Agreement.
THEREFORE, in consideration of the premises, to induce Lender to enter into the Forbearance
Agreement, and in consideration of the foregoing recitals (incorporated herein by reference) and
for other valuable considerations hereby acknowledged as having been received, Pledgor hereby
agrees, represents, and warrants as follows:
1. Definitions. As used herein:
1.1. “Collateral” means all of the membership units or other equity interests of
Kykuit Resources, LLC, an Ohio limited liability company (“Kykuit”) owned by Pledgor and
more fully described on Exhibit A attached hereto, all additional membership units or other
equity interest of Borrowers from time to time acquired by Pledgor by reason of splits,
dividends, distributions and similar transactions with respect to the Collateral, and all proceeds,
income, fees, profits, surplus, dividends, distributions, cash, instruments and other property from
time to time received, receivable or otherwise distributed (collectively, “Distributions”) in
respect of or in exchange for any or all of such membership units.
1.2. “Debt” shall mean all obligations, liabilities and indebtedness of Borrowers to
Lender described in and pursuant to the Forbearance Agreement, including but not limited to, the
Judgment.
1.3 Capitalized terms used herein without definition have the meanings ascribed to such terms
in the Forbearance Agreement.
Without limiting the generality of the foregoing, it is hereby specifically understood and
agreed that Pledgor may from time to time hereafter deliver additional securities to Lender as
collateral security for its and Borrowers’ obligations under the Forbearance Agreement. Upon
delivery to Lender, such additional shares of securities shall be deemed to be part of the
Collateral and shall be subject to the terms of this Agreement whether or not Exhibit A is
amended to refer to such additional shares.
2. Security Interest. Pledgor hereby grants to Lender a security interest in the
Collateral as security for the Debt. Pledgor has executed appropriate transfer powers in the form
attached hereto as Exhibit B with respect to the Collateral and concurrently herewith is
depositing the Collateral and the aforesaid transfer powers with Lender. Pledgor has also caused
Borrowers to deliver to Lender the Agreement of LLC attached hereto as Exhibit C. Pledgor
authorizes Lender at any time upon the occurrence of a Termination Event under the Forbearance
Agreement resulting from the failure to pay the Debt or any part thereof when due, to transfer the
Collateral owned by Pledgor into the name of Lender or Lender’s nominee, but Lender shall be under
no duty to do so. Notwithstanding any provision or inference herein or elsewhere to the contrary,
Lender shall have no right to vote the Collateral and no right to receive Distributions at any time
unless and until there shall have occurred a Termination Event under the Forbearance Agreement
which is not remedied within any period of grace provided under the Forbearance Agreement, if any.
3. Pledgor’s Representations and Warranties. Pledgor represents and warrants to
Lender as follows:
3.1. Pledgor is the legal record and beneficial owner of, and has good and marketable title
to, the Collateral, and the Collateral is not subject to any pledge, lien, mortgage, hypothecation,
security interest, charge, option, warrant, or other encumbrance whatsoever, nor to any agreement
purporting to grant to any third party a security interest in the property or assets of Pledgor
which would include the Collateral, except the lien created hereunder and the security interest
created by this Agreement or otherwise securing only Lender.
3.2. All of the Collateral has been duly authorized and validly issued, and is fully paid and
non-assessable.
3.3. Pledgor has full power, authority and legal right to pledge all of the Collateral owned
by Pledgor pursuant to the terms of this Agreement.
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3.4. No consent, license, permit, approval or authorization, filing or declaration with any
governmental authority, domestic or foreign, and no consent of any other party, is required to be
obtained by Pledgor in connection with the pledge of the Collateral hereunder, which has not been
obtained or made, and is not in full force and effect.
3.5. The pledge, assignment and delivery of the Collateral hereunder creates a valid first
lien on, and a first perfected security interest in, the Collateral and/or the proceeds thereof.
3.6. The pledged interests in Kykuit are represented by certificates.
3.7 Pledgor fully anticipates that the Debt will be repaid without the necessity of selling
the Collateral.
3.8. Pledgor has received consideration which is the reasonable equivalent value of the
obligations and liabilities that Pledgor has incurred to Lender.
4. Failure to Pay Debt. If the Debt or any part thereof shall not be paid in full
promptly when due and payable pursuant to the terms of the Forbearance Agreement. Lender, in its
discretion may, upon such terms and in such manner as Lender shall deem advisable, sell, assign,
transfer and deliver the Collateral, or any part thereof, and in each case Lender shall apply the
net proceeds of the sale thereof to the Debt whether or not due, by such allocation as to item and
maturity as Lender in their discretion may deem advisable. No prior notice need be given to
Pledgor or anyone else in the case of any sale of Collateral which Lender in good faith determines
is customarily sold at any securities exchange or in the over-the-counter market or in any other
recognized market; but in any other case Lender shall give Pledgor not fewer than ten days’ prior
notice of either the date after which any intended private sale may be made or the time and place
of any intended public sale. Pledgor waives advertisement of sale and, except to the extent
required by the preceding sentence, waive notice of any kind in respect of any sale. At any public
sale, Lender may purchase the Collateral or any part thereof free from any right of redemption,
which rights are hereby waived and released. Any notice to Pledgor shall be sufficiently given for
all purposes when sent by registered or certified mail to the address hereinafter set forth (or, in
Lender’s discretion to any address of Pledgor contained in Lender’s records) whether or not such
notice is actually received, but no other method of giving notice is hereby precluded.
5. Term of Pledge Agreement. Irrespective of any action, omission or course of
dealing whatever by Lender, but subject to the terms of the Forbearance Agreement, this Agreement
shall remain in full force and effect until the Debt shall have been paid in full. Without
limiting the generality of the foregoing, Pledgor (a) agrees that Lender shall have no duty to make
any presentment or collection or to preserve any right of any kind, with reference to the
Collateral, and (b) agrees that Lender shall at all times have the right to grant any indulgence to
Borrowers and to deal in any other manner with Borrowers, including the granting of any extension,
renewal or increase of the Debt or any part thereof, the increase or decrease of any
rate of interest, the forbearance from exercising any right, power, or privilege, including
any right to demand security, the release of, or forbearance from proceeding against, any security
or any obligor, the effecting of any other release, compromise or settlement, the substitution of
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security (even if of a different character or value), and (c) waives notice of the creation of any
Debt, of any default under any note or other instrument evidencing the Debt or any part thereof, of
any act, omission, or course of dealing by Lender, and any other notice to which Pledgor might be
entitled to but for the within waiver, and (d) acknowledges and agrees that the termination or
dissolution of Borrowers shall not affect the rights of Lender under this Agreement and that this
Agreement, notwithstanding such event, shall remain in full force and effect until the Debt shall
have been paid in full. Upon the payment in full of the outstanding Debt, Lender shall return to
Pledgor all certificates or other instruments in its possession respecting the pledges under this
Agreement.
6. Additional Covenants of Pledgor.
6.1. Pledgor covenants and agrees to defend the right, title and security interest of Lender
in and to the Collateral and the proceeds thereof, and to maintain and preserve the lien and
security interest provided for by this Agreement against the claim and demands of all persons, so
long as this Agreement shall remain in effect.
6.2. Pledgor covenants and agrees not to sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, or create, incur or permit to exist any pledge,
lien, mortgage, hypothecation, security interest, charge, option or any other encumbrance with
respect to any of the Collateral, or any interest therein, or any proceeds thereof, except for the
lien and security interest provided for by this Agreement and any security agreement securing only
Lender.
6.3. Pledgor covenants and agrees (a) to cooperate, in good faith, with Lender and to do or
cause to be done all such other acts as may be necessary to enforce Lender’s rights under this
Agreement, (b) not to take any action, or to fail to take any action which would be adverse to
Lender’s interest in the Collateral and hereunder, and (c) to make any sale or sales of any portion
or all of the Collateral valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or
sales at Pledgor’s expense.
7. Attorney-in-Fact. Pledgor hereby authorizes and empowers Lender to make,
constitute and appoint any officer or agent of Lender as Lender may select, in its exclusive
discretion, as Pledgor’s true and lawful attorney-in-fact, with the power upon the occurrence and
continuance of a Termination Event under the Forbearance Agreement to endorse Pledgor’s name on all
applications, documents, papers and instruments necessary for Lender to take actions with respect
to the Collateral, including, without limitation, actions necessary for Lender to assign, pledge,
convey or otherwise transfer title in or dispose of the Collateral to anyone else. Pledgor
ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof. This power
of attorney shall be irrevocable for the life of this Agreement.
8. Costs and Expenses. If Pledgor fails to comply with any of its obligations
hereunder, Lender may do so in Pledgor’s name or in Lender’s name, but at Pledgor’s expense, and
Pledgor hereby agrees to reimburse Lender in full for all expenses, including reasonable attorney’s
fees, incurred by Lender in protecting, defending and maintaining the Collateral.
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Without limiting
the foregoing, any and all reasonable fees, costs and expenses, of whatever kind or nature,
including the reasonable attorney’s fees and expenses incurred in connection with the filing or
recording of any documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, maintenance fees, encumbrances or otherwise protecting,
maintaining or preserving the Collateral, or in defending or prosecuting any actions or proceedings
arising out of or related to the Collateral, shall be borne and paid by Pledgor on demand by
Lender.
9. Interpretation. Each right, power or privilege specified or referred to in this
Agreement is in addition to any other rights, powers and privileges that Lender may have acquired
by operation of law, by other contract or otherwise. No course of dealing in respect of, nor any
omission or delay in the exercise of, any right, power or privilege by Lender shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any further or other
exercise thereof or of any other, as each right, power or privilege may be exercised by Lender
either independently or concurrently with other rights, powers and privileges and as often and in
such order as Lender may deem expedient. No waiver or consent granted by Lender in respect of this
Agreement shall be binding upon Lender unless specifically granted in writing, which writing shall
be strictly construed.
10. Assignment and Successors. This Agreement shall not be assigned by Pledgor
without the prior written consent of Lender. Any assignment of this Agreement by Pledgor not
consented to by Lender shall be null and void. This Agreement shall bind and benefit the
successors and assigns of Pledgor and Lender.
11. Governing Law. The provisions of this Agreement, and the respective rights and
duties of Pledgor and Lender hereunder, shall be governed by the laws of the State of Ohio, without
regard to principles of conflict of laws.
12. Severability. If at any time one or more provisions of this Agreement is or
becomes invalid, illegal or unenforceable in whole or in part, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
13. Consent to Pledge Agreement. Pledgor hereby consents to the execution and
delivery by Borrowers of the Agreement of LLC set forth below, including, without limitation, the
agreement of Borrowers that it will, without further consent by Pledgor, comply with notifications
communicated by Lender to Borrowers which direct that the transfer of any or all of Pledgor’s
interests in Borrowers be registered or that any or all of such interests be redeemed.
[Remainder of Page Intentionally Left Blank.]
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14. WAIVER. PLEDGOR WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG LENDER AND PLEDGOR ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTES OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY LENDER’S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTES OR OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED AND DELIVERED BY PLEDGOR TO LENDER.
Executed and delivered at Cleveland, Ohio, as of the
18th
day of June, 2010.
| Address: | XXXX X. OIL AND GAS COMPANY | |||||||||||
| Attn: | By: | /s/ Xxxxxxx X. Xxxxxxx | ||||||||||
| Print Name: Xxxxxxx X. Xxxxxxx | ||||||||||||
| Print Title: President | ||||||||||||
| Address: | XXXXXXX X. XXXXXXX TRUST UNDER TRUST AGREEMENT OF 1/13/95 |
|||||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||||||
| Xxxxxxx X. Xxxxxxx, Trustee | ||||||||||||
[Signature Page to __________________ Pledge Agreement]
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EXHIBIT A
Collateral
Kykuit Resources, LLC (the “Company”)
| Pledgor’s Ownership Interest in | Membership Unit | |||
| Name of Pledgor | Collateral | Certificate No. | ||
Xxxx X. Oil and Gas Company
|
100% of its membership interests in the Company | |||
Xxxxxxx X. Xxxxxxx, Trustee
|
100% of its membership interests in the Company |
EXHIBIT B
IRREVOCABLE POWER TO TRANSFER SECURITY
FOR VALUE RECEIVED, the undersigned, Xxxx X. Oil and Gas Company does hereby sell, assign and
transfer unto RBS Citizens, N.A. dba Charter One all interest(s) in Kykuit Resources, LLC (the
“Company”), standing in the name of the undersigned on the books of the Company and does
hereby irrevocably constitute and appoint attorney to transfer said
interest(s) on the books of the Company with full power of substitution in the premises.
| Dated: | XXXX X. OIL AND GAS COMPANY |
|||
| By: | ||||
| Print Name: | Xxxxxxx X. Xxxxxxx | |||
| Print Title: | President | |||
EXHIBIT B
IRREVOCABLE POWER TO TRANSFER SECURITY
FOR VALUE RECEIVED, the undersigned, the Xxxxxxx X. Xxxxxxx Trust Under Trust Agreement of
1/13/95 does hereby sell, assign and transfer unto RBS Citizens, N.A. dba Charter One all
interest(s) in Kykuit Resources, LLC (the “Company”), standing in the name of the
undersigned on the books of the Company and does hereby irrevocably constitute and appoint
attorney to transfer said interest(s) on the books of the Company with
full power of substitution in the premises.
| Dated: | XXXXXXX X. XXXXXXX TRUST UNDER TRUST AGREEMENT OF 1/13/95 |
|||
| By: | ||||
| Xxxxxxx X. Xxxxxxx, Trustee | ||||
EXHIBIT C
AGREEMENT OF LLC
AGREEMENT OF LLC
Reference
is hereby made to the foregoing Pledge Agreement (the “Pledge Agreement”)
made of even date herewith. Each capitalized term used in this Agreement of LLC and defined in the
Pledge Agreement shall have the meaning ascribed thereto in the Pledge Agreement. In order to
induce Lender to execute the Forbearance Agreement, to induce Lender to extend to or for the
account of Borrowers such other credit as Lender may from time to time deem advisable (all upon
such terms and conditions as Lender may from time to time deem advisable), and in consideration of
the foregoing and for other valuable considerations, the undersigned hereby (a) represents and
warrants to Lender that (i) the jurisdiction under the laws of which Xxxx X. Oil is organized is
Maryland; (ii) the jurisdiction under the laws of which GPE is organized is Ohio; (iii) the
jurisdiction under the laws of which Oz is organized is Pennsylvania, (iv) if a transfer of any
Collateral may be registered upon books maintained for that purpose by or on behalf of Borrowers,
then Pledgor is the registered owner of such Collateral, (v) other than the claims of Lender,
KyKuit have no notice of any adverse claim to any Collateral , and (vi) none of the Collateral is
subject to any right of first refusal or other restriction contained in KyKuit’s certificate of
formation or similar organizational documents or operating or similar agreement or any other
agreement by which Borrowers, Pledgor or KyKuit are bound that could restrict transfer of any such
interest to Lender or any nominee thereof or the ability of any purchaser of any such interest to
transfer such interest, and (b) agrees with Lender that KyKuit will (i) not issue any additional
certificate or instrument representing any Collateral, (ii) not, without Lender’s prior written
consent, comply or agree to comply with any notifications which direct the transfer of any
Collateral or which direct that the transfer of any Collateral be registered or that any such
interests be redeemed, except that, KyKuit will, without further consent by Pledgor, comply with
notifications communicated by Lender to KyKuit which direct the transfer of any Collateral or which
direct that the transfer of any or all of the Collateral be registered or that any or all of such
interests be redeemed, (iii) not become bound by any agreement that could restrict transfer of any
Collateral to Lender or any nominee thereof or the ability of any purchaser of any such interest to
transfer such interest, and (iv) give immediate notice to Lender whenever KyKuit has notice of any
claim to any Collateral other than the claims of Lender. Lender shall be entitled to equitable
remedies (including, without limitation, injunctive relief and specific performance) with respect
to each breach or anticipatory repudiation of any provision of this Agreement, and the undersigned
KyKuit hereby waives any defense which might be asserted to bar any such equitable remedy. This
Agreement shall be governed by the law
(excluding conflict of laws rules) of the State of Ohio.
Signed at Cleveland, Ohio, this
_____
day of June, 2010.
| KYKUIT RESOURCES, LLC By Xxxx X. Oil and Gas Company, Managing Member of Kykuit Resources, LLC |
||||
| By: | ||||
| Print Name: | Xxxxxxx X. Xxxxxxx | |||
| Print Title: | President | |||
