PLEDGE AGREEMENT dated as of May 11, 2007 between TEKOIL & GAS CORPORATION and J. ARON & COMPANY, as Agent, as the Secured Party
Exhibit
10.32
dated
as of May 11, 2007
between
TEKOIL
& GAS CORPORATION
and
▇.
▇▇▇▇ & COMPANY, as Agent,
as
the Secured Party
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Page
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SECTION
1
|
DEFINITIONS
|
1
|
|
1.1
|
General
Definitions
|
1
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|
1.2
|
Definitions;
Interpretation
|
2
|
|
SECTION
2
|
GRANT
OF SECURITY
|
3
|
|
SECTION
3
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SECURITY
FOR OBLIGATIONS; GRANTOR REMAINS LIABLE
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3
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3.1
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Security
for Obligations
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3
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|
3.2
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Continuing
Liability Under Collateral
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3
|
|
3.3
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Limitation
on Liability
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3
|
|
SECTION
4
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REPRESENTATIONS
AND WARRANTIES AND COVENANTS
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4
|
|
4.1
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Representations
and Warranties
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4
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4.2
|
Covenants
|
6
|
|
4.3
|
Additional
Covenants
|
7
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4.4
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Grantor's
Consent
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9
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SECTION
5
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ACCESS;
RIGHT OF INSPECTION AND FURTHER ASSURANCES
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9
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5.1
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Access;
Right of Inspection
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9
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5.2
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Further
Assurances
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9
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SECTION
6
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SECURED
PARTY APPOINTED ATTORNEY-IN-FACT
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10
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6.1
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Power
of Attorney
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10
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6.2
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No
Duty on the Part of Secured Party or Beneficiaries
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10
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SECTION
7
|
REMEDIES
|
11
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7.1
|
Generally
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11
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7.2
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Application
of Proceeds
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12
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7.3
|
Sales
on Credit
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13
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7.4
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Pledged
Membership Interests
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13
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7.5
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Cash
Proceeds
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13
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SECTION
8
|
AGENT
|
14
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SECTION
9
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CONTINUING
SECURITY INTEREST; TRANSFER OF LOANS
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14
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SECTION
10
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STANDARD
OF CARE; SECURED PARTY MAY PERFORM
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15
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SECTION
11
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MISCELLANEOUS
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15
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-i-
TABLE
OF CONTENTS
| SCHEDULES: |
4.1
— General Information
4.3
— Pledged Membership Interests
|
| EXHIBITS: |
A
—
Pledge Supplement
|
-ii-
This
PLEDGE
AGREEMENT,
dated
May 11, 2007 (this "Agreement"),
is
entered into by and between TEKOIL
& GAS CORPORATION, a
Delaware corporation (the "Grantor"),
and
▇.
▇▇▇▇ & COMPANY, as
administrative agent for the Beneficiaries (as herein defined) (in such
capacity, the "Secured
Party").
RECITALS:
WHEREAS,
reference is made to that certain Credit and Guaranty Agreement, dated May
11,
2007 (as it may be amended, restated, supplemented or otherwise modified, the
"Credit
Agreement"),
by
and among
Tekoil and Gas Gulf Coast, LLC, a
Delaware limited liability company ("Company"),
Tekoil
& Gas Corporation,
a
Delaware corporation, and
the
other guarantors party thereto, ▇.
▇▇▇▇ & Company,
individually and in its capacity as Administrative Agent (the "Agent")
for
the benefit the lenders from time to time parties thereto (the "Lenders"),
and
such Lenders;
WHEREAS,
in
consideration of the extensions of credit and other accommodations of Lenders
and Lender Counterparties as set forth in the Credit Agreement and the Hedging
Contracts, respectively, the Grantor has agreed to secure Company's obligations
under the Transaction Documents and the Hedging Contracts as set forth
herein;
WHEREAS,
the
Lenders have required the execution of this Agreement as a condition to entering
into the Credit Agreement; and
WHEREAS,
the
Grantor will receive benefit from Company entering into the Credit
Agreement.
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
herein contained, the Grantor and the Secured Party agree as
follows:
SECTION
1
DEFINITIONS
1.1 General
Definitions.
In this
Agreement, the following terms shall have the following meanings:
"Agreement"
shall
have the meaning set forth in the preamble.
"Beneficiaries"
shall
mean the Agent, the Lenders and the Lender Counterparties and shall include,
without limitation, all former Lenders and Lender Counterparties to the extent
that any Obligations owing to such Persons were incurred while such Persons
were
Lenders or Lender Counterparties and such Obligations have not been paid or
satisfied in full
"Cash
Proceeds"
shall
have the meaning assigned in Section 7.5.
"Collateral"
shall
have the meaning assigned in Section 2.
"Credit
Agreement"
shall
have the meaning set forth in the recitals.
"Grantor"
shall
have the meaning set forth in the preamble.
"Lender"
shall
have the meaning set forth in the recitals.
"Pledge
Supplement"
shall
mean any supplement to this agreement in substantially the form of Exhibit
A.
"Pledged
Membership Interests"
shall
mean all membership interest in Company, whether now outstanding or issued
hereafter including as listed on Schedule 4.3 (as such schedule may be amended
or supplemented from time to time) and the certificates, if any, representing
such membership interests and any interest of the Grantor on the books and
records of such limited liability company or on the books and records of any
securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities 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 membership
interests.
"Proceeds"
shall
mean: (i) all "proceeds" as defined in Article 9 of the UCC, (ii) payments
or
distributions made with respect to any Pledged Membership Interest and (iii)
whatever is receivable or received when Collateral or proceeds are sold,
exchanged, collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
"Record"
shall
have the meaning specified in Article 9 of the UCC.
"Secured
Obligations"
shall
have the meaning assigned in Section 3.1.
"Secured
Party"
shall
have the meaning set forth in the preamble.
"UCC"
shall
mean the Uniform Commercial Code as in effect from time to time in the State
of
New York or, when the context implies, the Uniform Commercial Code as in effect
from time to time in any other applicable jurisdiction.
"United
States"
shall
mean the United States of America.
1.2 Definitions;
Interpretation.
All
capitalized terms used herein (including the preamble and recitals hereto)
and
not otherwise defined herein shall have the meanings ascribed thereto in the
Credit Agreement or, if not defined therein, in the UCC. References to
"Sections," "Exhibits" and "Schedules" shall be to Sections, Exhibits and
Schedules, as the case may be, of this Agreement unless otherwise specifically
provided. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any
other purpose or be given any substantive effect. Any of the terms defined
herein may, unless the context otherwise requires, be used in the singular
or
the plural, depending on the reference. The use herein of the word "include"
or
"including", when following any general statement, term or matter, shall not
be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation"
or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
If
any conflict or inconsistency exists between this Agreement and the Credit
Agreement, the Credit Agreement shall govern. All references herein to
provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.
-2-
SECTION
2
GRANT
OF SECURITY
The
Grantor hereby grants to the Secured Party a security interest and continuing
lien on all of the Grantor's right, title and interest in, to and under the
following, in each case whether now owned or existing or hereafter acquired
or
arising and wherever located (all of which being hereinafter collectively
referred to as the "Collateral"):
(a) Pledged
Membership Interests; and
(b) all
Proceeds, products, accessions, and profits of or in respect of any of the
foregoing.
SECTION
3
SECURITY
FOR OBLIGATIONS; GRANTOR REMAINS LIABLE
3.1 Security
for Obligations.
This
Agreement secures, and the Collateral is collateral security for, the prompt
and
complete payment or performance in full when due, whether at stated maturity,
by
required prepayment, declaration, acceleration, demand or otherwise (including
the payment of amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§362(a) (and any successor provision thereof)), of all Obligations (the
"Secured
Obligations").
3.2 Continuing
Liability Under Collateral.
Notwithstanding anything herein to the contrary, (i) the Grantor shall remain
liable for all obligations under this Agreement with respect to the Collateral
owned by the Grantor and nothing contained herein is intended or shall be a
delegation of duties to the Secured Party or any Beneficiary, (ii) the Grantor
shall remain liable under each of the agreements included in the Collateral,
including any agreements relating to the Pledged Membership Interests, to
perform all of the obligations undertaken by him thereunder all in accordance
with and pursuant to the terms and provisions thereof and neither the Secured
Party nor any Beneficiary shall have any obligation or liability under any
of
such agreements by reason of or arising out of this Agreement or any other
document related thereto nor shall the Secured Party or any Beneficiary have
any
obligation to make any inquiry as to the nature or sufficiency of any payment
received by it or have any obligation to take any action to collect or enforce
any rights under any agreement included in the Collateral, including any
agreements relating to the Pledged Membership Interests, and (iii) the exercise
by the Secured Party of any of its rights hereunder shall not release the
Grantor from any of his duties or obligations under the contracts and agreements
included in the Collateral.
3.3 Limitation
on Liability.
Notwithstanding anything in this Agreement to the contrary, the liability of
the
Grantor for the Secured Obligations is limited to the interests of the Grantor
in the Collateral and, upon the occurrence of an Event of Default, any
obligations of the Grantor under this Agreement shall be satisfied by recourse
only to the Collateral and not by recourse directly to the Grantor or any of
its
other assets or property. The Administrative Agent may join the Grantor as
a
defendant in any legal action it undertakes to enforce its rights and remedies
under this Agreement, provided that, except as provided in the immediately
succeeding sentence, any judgment against the Grantor in such action may be
satisfied by recourse only to the Collateral and not by recourse directly to
the
Grantor or any of its other assets or property. The foregoing notwithstanding,
the Administrative Agent shall have full recourse against the Grantor for the
full payment of the amount of any loss suffered by the Administrative Agent
or
any other Beneficiary as a result of any gross negligence, willful misconduct
or
fraud by or on behalf of the Grantor. The provisions of this paragraph shall
apply to this Agreement given by the Grantor only and shall not (a) apply to
any
Security Document given by any other Person, (b) be deemed to be a release
or
impairment of any part of the Obligations or of the liens and security interests
created by the Security Documents, or (c) limit or otherwise prejudice in any
way the rights of the Administrative Agent or any other Person to enforce any
of
its rights and remedies under any other Loan Documents.
-3-
SECTION
4
REPRESENTATIONS
AND WARRANTIES AND COVENANTS
4.1 Representations
and Warranties.
The
Grantor hereby represents and warrants that:
(a) the
Grantor is the record and beneficial owner of the Pledged Membership Interests
free of all Liens, rights or claims of other Persons and it owns all other
Collateral purported to be owned by it or otherwise has the rights it purports
to have in each item of Collateral and, as to all Collateral whether now
existing or hereafter acquired, will continue to own or have such rights in
each
item of the Collateral, in each case free and clear of any and all Liens, rights
or claims of all other Persons;
(b) the
Grantor has indicated on Schedule 4.1(A)(as such schedule may be amended or
supplemented from time to time): (i) the type of organization of the Grantor,
(ii) the jurisdiction of organization of the Grantor, (iii) its organizational
identification number and (iv) the jurisdiction where its chief executive office
or its sole place of business is, and for the one-year period preceding the
date
hereof has been, located;
(c) the
full
legal name of the Grantor is as set forth on Schedule 4.1(A) and the Grantor
has
not done in the last five (5) years, and does not do, business under any other
name (including any trade-name or fictitious business name) except for those
names set forth on Schedule 4.1(B) (as such schedule may be amended or
supplemented from time to time);
(d) except
as
provided on Schedule 4.1(C), the Grantor has not changed its name, jurisdiction
of organization, chief executive office or sole place of business or its
corporate structure in any way (e.g., by merger, consolidation, change in
corporate form or otherwise) within the past five (5) years;
(e) upon
the
filing of all UCC financing statements naming the Grantor as "debtor" and
the
Secured
Party as "secured party" and describing the Collateral in the filing offices
set
forth opposite the Grantor's name on Schedule 4.1(D) hereof (as such schedule
may be amended or supplemented from time to time) and other filings delivered
by
the Grantor, the security interests granted to the Secured Party hereunder
constitute valid and perfected first priority Liens on all of the Collateral
owned by the Grantor;
-4-
(f) all
actions and consents relating to the Grantor, including all filings, notices,
registrations and recordings necessary for the exercise by the Secured Party
of
the voting or other rights provided for in this Agreement
or the
exercise of remedies in respect of the Collateral owned by the Grantor have
been
made or obtained;
(g) other
than the financing statements filed in favor of the Secured Party, no effective
UCC financing statement, fixture
filing
or other instrument similar in effect under any applicable law covering all
or
any part of the Collateral owned by the Grantor is on file in any filing or
recording office except for financing statements for which proper termination
statements have been delivered to the Secured Party for filing;
(h) no
authorization, approval or other action by, and no notice to or filing with,
any
Governmental Authority
or
regulatory body is required for either (i) the pledge or grant by the Grantor
of
the Liens purported to be created in favor of the Secured Party hereunder or
(ii) the exercise by Secured Party of any rights or remedies in respect of
any
Collateral (whether specifically granted or created hereunder or created or
provided for by applicable law), except (A) for the filings contemplated by
Section 4.1(e) above and (B) as may be required, in connection with the
disposition of any Pledged Membership Interests, by laws generally affecting
the
offering and sale of Securities; and
(i) Schedule
4.3 (as such schedule may be amended or supplemented from time to time) sets
forth all of the Pledged Membership Interests owned by the Grantor and such
Pledged Membership Interests constitute the percentage of issued and outstanding
percentage of membership interests or percentage of beneficial interest of
Company owned by the Grantor;
(j) there
are
no outstanding warrants, options or other rights to purchase, or shareholder,
voting trust or similar agreements outstanding with respect to, or property
that
is convertible into, or that requires the issuance or sale of, any Pledged
Membership Interests;
(k) without
limiting any other provision hereof, no consent of any Person, including any
other general or limited partner, any other member of a limited liability
company, any other shareholder or any other trust beneficiary, is necessary
or
desirable in connection with the creation, perfection or first priority status
of the security interest of the Secured Party in any Pledged Membership
Interests owned by the Grantor or the exercise by the Secured Party of the
voting or other rights provided for in this Agreement or the exercise of
remedies in respect thereof; and
(l) none
of
the Pledged Membership Interests owned by the Grantor are or represent interests
in issuers that: (a) are registered as investment companies, (b) are dealt
in or
traded on securities exchanges or markets or (c) have opted to be treated as
securities under the uniform commercial code of any jurisdiction
-5-
4.2 Covenants.
The
Grantor hereby covenants and agrees that:
(a) except
for the security interest created by this Agreement, the Grantor shall not
create or suffer to exist any Lien upon or with respect to any of the Collateral
owned by the Grantor and the Grantor shall defend the Collateral owned by the
Grantor against all Persons at any time claiming any interest
therein;
(b) the
Grantor shall not produce, use or permit any Collateral owned by the Grantor
to
be used unlawfully or in violation of any provision of this Agreement or any
applicable statute, regulation or ordinance or any policy of insurance covering
the Collateral owned by the Grantor;
(c) the
Grantor shall not take or permit any action which could reasonably be expected
to impair the Secured Party's rights in the Collateral owned by the
Grantor;
(d) the
Grantor shall keep and maintain at his own cost and expense satisfactory and
complete records of the Collateral owned by the Grantor;
(e) in
the
event the Grantor acquires rights in any Pledged Membership Interests after
the
date hereof, the Grantor shall deliver to the Secured Party a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto, together
with all Supplements to Schedules thereto, reflecting such new Pledged
Membership Interests and all other Pledged Membership Interests. Notwithstanding
the foregoing, it is understood and agreed that the security interest of the
Secured Party shall attach to all Pledged Membership Interests immediately
upon
the Grantor's acquisition of rights therein and shall not be affected by the
failure of the Grantor to deliver a supplement as required hereby;
(f) except
as
provided in the next sentence, in the event the Grantor receives any dividends,
interest or distributions on any Pledged Membership Interests, or any securities
or other property upon the merger, consolidation, liquidation or dissolution
of
any issuer of any Pledged Membership Interests, then (i) such dividends,
interest or distributions and securities or other property shall be included
in
the definition of Collateral without further action and (ii) the Grantor shall
immediately take all steps, if any, necessary or advisable to ensure the
validity, perfection, priority and, if applicable, control of the Secured Party
over such Pledged Membership Interests (including delivery thereof to the
Secured Party) and pending any such action the Grantor shall be deemed to hold
such dividends, interest, distributions, securities or other property in trust
for the benefit of the Secured Party and shall be segregated from all other
property of the Grantor. Notwithstanding the foregoing, so long as no Event
of
Default shall have occurred and be continuing, the Secured Party authorizes
the
Grantor to retain all ordinary cash dividends and distributions permitted to
be
paid to the Grantor under the Credit Agreement (or the payment of which is
not
otherwise restricted by the Credit Agreement) and all scheduled payments of
interest permitted to be paid to the Grantor under the Credit Agreement (or
the
payment of which is not otherwise restricted by the Credit
Agreement);
(g) without
the prior written consent of the Secured Party, the Grantor shall not vote
to
enable or take any other action to: (i) amend or terminate any partnership
agreement, limited liability company agreement, certificate of incorporation,
by-laws or other organizational documents in any way that materially changes
the
rights of the Grantor with respect to any Pledged Membership Interests or
adversely affects the validity, perfection or priority of the Secured Party's
security interest, (ii) other than as allowed by the Credit Agreement, permit
any issuer of any Pledged Membership Interests to issue any membership interests
or other equity interests of any nature or to issue securities convertible
into
or granting the right of purchase or exchange for any membership interests
or
other equity interest of any nature of such issuer, (iii) other than as
permitted under the Credit Agreement, permit any issuer of any Pledged
Membership Interests to dispose of all or a material portion of their assets,
(iv) waive any default under or breach of any terms of any organizational
document relating to the issuer of any Pledged Membership Interests, or (v)
cause any issuer of any Pledged Membership Interests that are not securities
(for purposes of the UCC) on the date hereof to elect or otherwise take any
action to cause such Pledged Membership Interests to be treated as securities
for purposes of the UCC; provided, however, notwithstanding the foregoing,
if
any issuer of any Pledged Membership Interests takes any such action known
to
the Grantor in violation of the foregoing in this clause (v), the Grantor shall
promptly notify the Secured Party in writing of any such election or action
and,
in such event, shall take all reasonable steps necessary or advisable within
his
power to establish the Secured Party's "control" thereof;
-6-
(h) the
Grantor shall comply with all of his obligations under any limited liability
company agreement relating to Pledged Membership Interests and shall enforce
all
of its rights with respect to any Pledged Membership Interests; and
(i) the
Grantor shall notify the Secured Party of any event, either in any case or
in
the aggregate, known to the Grantor that could reasonably be expected to cause
a
Material Adverse Effect.
4.3 Additional
Covenants.
(a) Delivery
and Control.
The
Grantor agrees that with respect to any Pledged Membership Interests in which
the Grantor currently has rights, it shall comply with the provisions of this
Section on or before the Closing Date and with respect to any Pledged Membership
Interests hereafter acquired by the Grantor, it shall comply with the provisions
of this Section immediately upon acquiring rights therein, in each case in
form
and substance satisfactory to the Secured Party. With respect to any Pledged
Membership Interests that is represented by a certificate or that is an
"instrument" (other than any Pledged Membership Interests credited to a
Securities Account), the Grantor shall cause such certificate or instrument
to
be delivered to the Secured Party, indorsed in blank by an "effective
indorsement" (as defined in Section 8-107 of the UCC), regardless of
whether such certificate constitutes a "certificated security" for purposes
of
the UCC. With respect to any Pledged Membership Interests that is an
"uncertificated security" for purposes of the UCC (other than any
"uncertificated securities" credited to a Securities Account), the Grantor
shall
cause the issuer of such uncertificated security to either (i) register the
Secured Party as the registered owner thereof on the books and records of the
issuer or (ii) execute an agreement in form and substance satisfactory to the
Secured Party, pursuant to which such issuer agrees to comply with the Secured
Party's instructions with respect to such uncertificated security without
further consent by the Grantor.
-7-
(b) Voting
and Distributions.
(i) So
long
as no Event of Default shall have occurred and be continuing:
(A) except
as
otherwise provided under the covenants and agreements relating to Pledged
Membership Interests in this Agreement or elsewhere herein or in the Credit
Agreement, the Grantor shall be entitled to exercise or refrain from exercising
any and all voting and other consensual rights pertaining to the Pledged
Membership Interests or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Credit Agreement; provided, the Grantor
shall
not exercise or refrain from exercising any such right if the Secured Party
shall have notified the Grantor that, in the Secured Party's reasonable
judgment, such action would have a Material Adverse Effect on the value of
the
Pledged Membership Interests or any part thereof; and provided further, the
Grantor shall give the Secured Party at least five (5) Business Days prior
written notice of the manner in which it intends to exercise, or the reasons
for
refraining from exercising, any such right; it being understood, however, that
neither the voting by the Grantor of any Pledged Membership Interests for,
or
the Grantor's consent to, the election of managers (or similar governing body)
at a regularly scheduled annual or other meeting of members or with respect
to
incidental matters at any such meeting, nor the Grantor's consent to or approval
of any action otherwise permitted under this Agreement and the Credit Agreement,
shall be deemed inconsistent with the terms of this Agreement or the Credit
Agreement within the meaning of this Section, and no notice of any such voting
or consent need be given to the Secured Party; and
(B) the
Secured Party shall promptly execute and deliver (or cause to be executed and
delivered) to the Grantor all proxies, and other instruments as the Grantor
may
from time to time reasonably request for the purpose of enabling the Grantor
to
exercise the voting and other consensual rights when and to the extent which
it
is entitled to exercise pursuant to clause (1) above;
(ii) Upon
the
occurrence and during the continuation of an Event of Default:
(A) all
rights of the Grantor to exercise or refrain from exercising the voting and
other consensual rights that it would otherwise be entitled to exercise pursuant
hereto shall cease and all such rights shall thereupon become vested in the
Secured Party who shall thereupon have the sole right to exercise such voting
and other consensual rights; and
(B) in
order
to permit the Secured Party to exercise the voting and other consensual rights
that it may be entitled to exercise pursuant hereto and to receive all dividends
and other distributions that it may be entitled to receive hereunder: (1) the
Grantor shall promptly execute and deliver (or cause to be executed and
delivered) to the Secured Party all proxies, dividend payment orders and other
instruments as the Secured Party may from time to time reasonably request and
(2) the Grantor acknowledges that the Secured Party may utilize the power of
attorney set forth in Section 6.
-8-
4.4 Grantor's
Consent.
The
Grantor consents to the transfer of any Pledged Membership Interest to the
Secured Party or its nominee following an Event of Default and to the
substitution of the Secured Party or its nominee as a member in any limited
liability company with all the rights and powers related thereto.
SECTION
5
ACCESS;
RIGHT OF INSPECTION AND FURTHER ASSURANCES
5.1 Access;
Right of Inspection.
The
Secured Party shall at all times have full and free access during normal
business hours to all the books, correspondence and records of the Grantor,
and
the Secured Party and its representatives may examine the same, take extracts
therefrom and make photocopies thereof,
and
the Grantor agrees to render to the Secured Party, at the Grantor's cost and
expense, such clerical and other assistance as may be reasonably requested
with
regard thereto.
5.2 Further
Assurances.
(a) The
Grantor agrees that from time to time, at the expense of the Grantor, that
it
shall promptly execute and deliver all further instruments and documents, and
take all further action that may be necessary or desirable, or that the Secured
Party may reasonably request, in order to create and/or maintain the validity,
perfection or priority of and protect any security interest granted or purported
to be granted hereby or to enable the Secured Party to exercise and enforce
its
rights and remedies hereunder with respect to any Collateral owned by the
Grantor. Without limiting the generality of the foregoing, the Grantor
shall:
(i) file
such
financing or continuation statements, or amendments thereto, and execute and
deliver such other agreements, instruments, endorsements, powers of attorney
or
notices, as may be necessary or desirable, or as the Secured Party may
reasonably request, in order to perfect and preserve the security interests
granted or purported to be granted hereby; and
(ii) at
the
Secured Party's request, appear in and defend any action or proceeding that
may
affect the Grantor's title to or the Secured Party's security interest in all
or
any part of the Collateral owned by the Grantor.
(b) The
Grantor hereby authorizes the Secured Party to file a Record or Records,
including financing or continuation statements, and amendments thereto, in
any
jurisdictions and with any filing offices as the Secured Party may determine,
in
its sole discretion, are necessary or advisable to perfect the security interest
granted to the Secured Party herein. Such financing statements may describe
the
Collateral in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any other manner
as
the Secured Party may determine is necessary, advisable or prudent to ensure
the
perfection of the security interest in the Collateral granted to the Secured
Party herein.
-9-
SECTION
6
SECURED
PARTY APPOINTED ATTORNEY-IN-FACT
6.1 Power
of Attorney.
The
Grantor hereby irrevocably appoints the Secured Party (such appointment being
coupled with an interest) as the Grantor's attorney-in-fact, with full authority
in the place and stead of the Grantor and in the name of the Grantor, the
Secured Party or otherwise, from time to time in the Secured Party's discretion
to take any action and to execute any instrument that the Secured Party may
deem
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including the following:
(a) upon
the
occurrence and during the continuance of any Event of Default, to ask for,
demand, collect, ▇▇▇ for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Collateral;
(b) upon
the
occurrence and during the continuance of any Event of Default, to receive,
endorse and collect any drafts or other instruments, documents and chattel
paper
in connection with clause (a) above;
(c) upon
the
occurrence and during the continuance of any Event of Default, to file any
claims or take any action or institute any proceedings that the Secured Party
may deem necessary or desirable for the collection of any of the Collateral
or
otherwise to enforce the rights of the Secured Party with respect to any of
the
Collateral;
(d) to
prepare and file any UCC financing statements against the Grantor as debtor
covering the Collateral;
(e) to
take
or cause to be taken all actions necessary to perform or comply or cause
performance or compliance with the terms of this Agreement, including access
to
pay or discharge taxes or Liens levied or placed upon or threatened against
the
Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by the Secured Party in its sole discretion,
any such payments made by the Secured Party to become obligations of the Grantor
to the Secured Party, due and payable immediately without demand;
and
(f) generally
to sell, transfer, pledge, make any agreement with respect to or otherwise
deal
with any of the Collateral as fully and completely as though the Secured Party
were the absolute owner thereof for all purposes, and to do, at the Secured
Party's option and the Grantor's expense, at any time or from time to time,
all
acts and things that the Secured Party deems reasonably necessary to protect,
preserve or realize upon the Collateral and the Secured Party's security
interest therein in order to effect the intent of this Agreement, all as fully
and effectively as the Grantor might do.
6.2 No
Duty on the Part of Secured Party or Beneficiaries.
The
powers conferred on the Secured Party hereunder are solely to protect the
interests of the Beneficiaries in the Collateral and shall not impose any duty
upon the Secured Party or any Beneficiary to exercise any such powers. The
Secured Party and the Beneficiaries shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except
for
their own gross negligence or willful misconduct.
-10-
SECTION
7
REMEDIES
7.1 Generally.
(a) If
any
Event of Default shall have occurred and be continuing, the Secured Party may
exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it at law or in equity,
all the rights and remedies of the Secured Party on default under the UCC
(whether or not the UCC applies to the affected Collateral) to collect, enforce
or satisfy any Secured Obligations then owing, whether by acceleration or
otherwise, and also may pursue any of the following separately, successively
or
simultaneously:
(i) require
the Grantor to, and the Grantor hereby agrees that it shall at its expense
and
promptly upon request of the Secured Party forthwith, assemble all or part
of
the Collateral owned by the Grantor as directed by the Secured Party and make
it
available to the Secured Party at a place to be designated by the Secured Party
that is reasonably convenient to both parties;
(ii) enter
onto the property where any Collateral is located and take possession thereof
with or without judicial process;
(iii) prior
to
the disposition of the Collateral, store, process, repair or recondition the
Collateral or otherwise prepare the Collateral for disposition in any manner
to
the extent the Secured Party deems appropriate; and
(iv) without
notice except as specified below or under the UCC, sell, assign, lease, license
(on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or private sale, at any
of
the Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other
terms as the Secured Party may deem commercially reasonable.
(b) The
Secured Party or any Beneficiary may be the purchaser of any or all of the
Collateral at any public or private sale (to the extent to portion of the
Collateral being privately sold is of a kind that is customarily sold on a
recognized market or the subject of widely distributed standard price
quotations) in accordance with the UCC and the Secured Party, as collateral
agent for and representative of the Beneficiaries, shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such sale made in accordance
with the UCC, to use and apply any of the Secured Obligations as a credit on
account of the purchase price for any Collateral payable by the Secured Party
at
such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the Grantor, and the
Grantor hereby waives (to the extent permitted by applicable law) all rights
of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
The Grantor agrees that, to the extent notice of sale shall be required by
law,
at least ten (10) days notice to the Grantor 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. The Secured Party shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The Secured
Party 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. The Grantor agrees
that it would not be commercially unreasonable for the Secured Party to dispose
of the Collateral or any portion thereof by using Internet sites that provide
for the auction of assets of the types included in the Collateral or that have
the reasonable capability of doing so, or that match buyers and sellers of
assets. The Grantor hereby waives any claims against the Secured Party arising
by reason of the fact that the price at which any Collateral may have been
sold
at such a private sale was less than the price which might have been obtained
at
a public sale, even if the Secured Party accepts the first offer received and
does not offer such Collateral to more than one offeree. The Grantor further
agrees that a breach of any of the covenants contained in this Section will
cause irreparable injury to the Secured Party, that the Secured Party has no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section shall be specifically
enforceable against the Grantor, and the Grantor hereby waives and agrees not
to
assert any defenses against an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured
Obligations becoming due and payable prior to their stated maturities or that
Grantor is not liable because of the limitations on Grantor's liability as
expressly provided in the Credit Agreement and this Agreement. Nothing in this
Section shall in any way alter the rights of the Secured Party
hereunder.
-11-
(c) The
Secured Party may sell the Collateral without giving any warranties as to the
Collateral. The Secured Party may specifically disclaim or modify any warranties
of title or the like. This procedure will not be considered to adversely affect
the commercial reasonableness of any sale of the Collateral.
(d) The
Secured Party shall have no obligation to marshal any of the
Collateral.
7.2 Application
of Proceeds.
Except
as expressly provided elsewhere in this Agreement, all proceeds received by
the
Secured Party in respect of any sale, any collection from, or other realization
upon all or any part of the Collateral shall be applied in full or in part
by
the Secured Party against, the Secured Obligations in the following order of
priority: first, to the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to the
Secured Party and its agents and counsel, and all other expenses, liabilities
and advances made or incurred by the Secured Party in connection therewith,
and
all amounts for which the Secured Party is entitled to indemnification hereunder
(in its capacity as the Secured Party and not as a Lender) and all advances
made
by the Secured Party hereunder for the account of the Grantor, and to the
payment of all costs and expenses paid or incurred by the Secured Party in
connection with the exercise of any right or remedy hereunder or under the
Credit Agreement, all in accordance with the terms hereof or thereof; second,
to
the extent of any excess of such proceeds, to the payment of all other Secured
Obligations for the ratable benefit of the Lenders and the Lender
Counterparties; and third, to the extent of any excess of such proceeds, to
the
payment to or upon the order of the Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.
-12-
7.3 Sales
on Credit.
If the
Secured Party sells any of the Collateral upon credit, the Grantor will be
credited only with payments actually made by purchaser and received by the
Secured Party and applied to indebtedness of the purchaser. In the event the
purchaser fails to pay for the Collateral, the Secured Party may resell the
Collateral and the Grantor shall be credited with proceeds of the
sale.
7.4 Pledged
Membership Interests. The
Grantor recognizes that, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws, the Secured Party may
be
compelled, with respect to any sale of all or any part of the Pledged Membership
Interests conducted without prior registration or qualification of such Pledged
Membership Interests under the Securities Act and/or such state securities
laws,
to limit purchasers to those who will agree, among other things, to acquire
the
Pledged Membership Interests for their own account, for investment and not
with
a view to the distribution or resale thereof. The Grantor acknowledges that
any
such private sale may be at prices and on terms less favorable than those
obtainable through a public sale without such restrictions (including a public
offering made pursuant to a registration statement under the Securities Act)
and, notwithstanding such circumstances, the Grantor agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Secured Party shall have no obligation to engage in public
sales and no obligation to delay the sale of any Pledged Membership Interests
for the period of time necessary to permit the issuer thereof to register it
for
a form of public sale requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would, or should, agree
to
so register it. If the Secured Party determines to exercise its right to sell
any or all of the Pledged Membership Interests, upon written request, the
Grantor shall and shall cause each issuer of any Pledged Membership Interests
to
be sold hereunder to furnish to the Secured Party all such information as the
Secured Party may request in order to determine the number and nature of
interest, shares or other instruments included in the Pledged Membership
Interests that may be sold by the Secured Party in exempt transactions under
the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
7.5 Cash
Proceeds.
Except
those dividends and distributions described in the second sentence of Section
4.2(f) that are permitted to be retained prior to the occurrence and continuance
of an Event of Default, all proceeds of any Collateral received by the Grantor
consisting of cash, checks and other near-cash items (collectively,
"Cash
Proceeds")
shall
be held by the Grantor in trust for the Secured Party, segregated from other
funds of the Grantor, and shall, forthwith upon receipt by the Grantor, be
turned over to the Secured Party in the exact form received by the Grantor
(duly
indorsed by the Grantor to the Secured Party, if required) and held by the
Secured Party. Any Cash Proceeds received by the Secured Party (whether from
the
Grantor or otherwise): (i) if no Event of Default shall have occurred and be
continuing, shall be held by the Secured Party for the ratable benefit of the
Beneficiaries, as collateral security for the Secured Obligations (whether
matured or unmatured) and (ii) if an Event of Default shall have occurred and
be
continuing, may, in the sole discretion of the Secured Party, (A) be held by
the
Secured Party for the ratable benefit of the Beneficiaries, as collateral
security for the Secured Obligations (whether matured or unmatured) and/or
(B)
then or at any time thereafter may be applied by the Secured Party against
the
Secured Obligations then due and owing.
-13-
SECTION
8
AGENT
The
Secured Party has been appointed to act as secured party hereunder by Lenders
and, by their acceptance of the benefits hereof, the other Beneficiaries. The
Secured Party shall be obligated, and shall have the right hereunder, to make
demands, to give notices, to exercise or refrain from exercising any rights,
and
to take or refrain from taking any action (including the release or substitution
of Collateral), solely in accordance with this Agreement and the Credit
Agreement. In furtherance of the foregoing provisions of this Section, each
Beneficiary, by its acceptance of the benefits hereof, agrees that it shall
have
no right individually to realize upon any of the Collateral hereunder, it being
understood and agreed by such Beneficiary that all rights and remedies hereunder
may be exercised solely by the Secured Party for the benefit of Lenders and
Lender Counterparties in accordance with the terms of this Section. Secured
Party may resign at any time by giving thirty (30) days' prior written notice
thereof to Lenders and the Grantor, and Secured Party may be removed at any
time
with or without cause by an instrument or concurrent instruments in writing
delivered to the Grantor and Secured Party signed by the Required Lenders.
Upon
any such notice of resignation or any such removal, Required Lenders shall
have
the right, upon five (5) Business Days' notice to the Secured Party, following
receipt of the Grantor's consent (which shall not be unreasonable withheld
or
delayed and which shall not be required while an Event of Default exists),
to
appoint a successor Secured Party. Upon the acceptance of any appointment as
Administrative Agent under the terms of the Credit Agreement by a successor
Administrative Agent, that successor Administrative Agent shall thereby also
be
deemed the successor Secured Party and such successor Secured Party shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Secured Party under this Agreement, and
the retiring or removed Secured Party under this Agreement shall promptly
(i) transfer to such successor Secured Party all sums, Pledged Membership
Interests and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement
and (ii) execute and deliver to such successor Secured Party such
amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor
Secured Party of the security interests created hereunder, whereupon such
retiring or removed Secured Party shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Secured Party's
resignation or removal hereunder as the Secured Party, the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted to
be
taken by it under this Agreement while it was the Secured Party
hereunder.
SECTION
9
CONTINUING
SECURITY INTEREST; TRANSFER OF LOANS
This
Agreement shall create a continuing security interest in the Collateral and
shall remain in full force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments, be binding
upon
the Grantor, its successors and assigns, and inure, together with the rights
and
remedies of the Secured Party hereunder, to the benefit of the Secured Party
and
its successors, transferees and assigns. Without limiting the generality of
the
foregoing, but subject to the terms of the Credit Agreement, any Lender may
assign or otherwise transfer any Loans held by it to any other Person, and
such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to Lenders herein or otherwise. Upon the payment in full of
all
Secured Obligations and the cancellation or termination of the Commitments,
the
security interest granted hereby shall terminate hereunder and of record and
all
rights to the Collateral shall revert to the Grantor. Upon any such termination
the Secured Party shall, at Grantor's expense, execute and deliver to the
Grantor such documents as the Grantor shall reasonably request to evidence
such
termination.
-▇▇-
▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇; SECURED PARTY MAY PERFORM
Except
for the exercise of reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder,
the
Secured Party shall have no duty as to any Collateral or as to the taking of
any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral. The Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of Collateral in
its
possession if such Collateral is accorded treatment substantially equal to
that
which the Secured Party accords its own property. Neither the Secured Party
nor
any of its directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon all or any part of the Collateral or for
any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Grantor or otherwise. If the Grantor
fails to perform any agreement contained herein, the Secured Party may itself
perform, or cause performance of, such agreement, and the expenses of the
Secured Party incurred in connection therewith shall be payable by the Grantor
under Section 10.2 of the Credit Agreement.
SECTION
11
MISCELLANEOUS
Any
notice required or permitted to be given under this Agreement shall be given
in
accordance with Section 10.1 of the Credit Agreement. No failure or delay on
the
part of the Secured Party in the exercise of any power, right or privilege
hereunder or under any other Transaction Document shall impair such power,
right
or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right
or
privilege preclude other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement and
the other Transaction Documents are cumulative to, and not exclusive of, any
rights or remedies otherwise available. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that
it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default
or
an Event of Default if such action is taken or condition exists. This Agreement
shall be binding upon and inure to the benefit of the Secured Party and the
Grantor and their respective successors and assigns. The Grantor shall not,
without the prior written consent of the Secured Party given in accordance
with
the Credit Agreement, assign any right, duty or obligation hereunder. This
Agreement and the other Transaction Documents embody the entire agreement and
understanding between the Grantor and the Secured Party and supersede all prior
agreements and understandings between such parties relating to the subject
matter hereof and thereof. Accordingly, the Transaction Documents may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no unwritten oral agreements between the parties.
This
Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
-15-
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
[Remainder
of page intentionally left blank.]
-16-
IN
WITNESS WHEREOF, the Grantor and the Secured Party have caused this Agreement
to
be duly executed and delivered as of the date first written above.
|
GRANTOR:
TEKOIL
& GAS CORPORATION
|
||
| |
|
|
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
|
||
|
Title:
CEO and Chairman of the Board of Directors
|
||
Signature
Page to Pledge Agreement
|
SECURED
PARTY:
▇.
▇▇▇▇ & COMPANY,
as Administrative Agent |
||
| |
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
Title:
Managing Director
|
||
Signature Page to Pledge Agreement
SCHEDULE
4.1
GENERAL
INFORMATION
(A) Full
Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business and Organizational Identification Number of each
Grantor:
|
Full
Legal
Name
|
Type
of Organization
|
Jurisdiction
of Organization
|
Chief
Executive Office
|
Organization
I.D.#
|
||||
|
Tekoil
& Gas Corporation
|
Corporation
|
Delaware
|
▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
4286069
|
(B) Other
Names (including any Trade-Name or Fictitious Business Name) under which the
Grantor has conducted business for the past five (5) years:
Trailridge
Holdings, Inc., a Delaware corporation
Glow
Bench Systems International, Inc., a Delaware corporation
Pexcon,
Inc., a Delaware corporation
(C) Changes
in Name, Jurisdiction or Principal Residence within past five (5)
years:
Trailridge
Holdings, Inc., a Delaware corporation
Glow
Bench Systems International, Inc., a Delaware corporation
Pexcon,
Inc., a Delaware corporation
[1580
Sawgrass ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
(D) Filing
Offices:
|
Name
of Grantor
|
Filing
Jurisdiction(s)
|
|
Tekoil
& Gas Corporation
|
Delaware
|
-1-
SCHEDULE
4.3
PLEDGED
MEMBERSHIP INTERESTS
Pledged
Membership Interests:
|
Grantor
|
Limited
Liability Company
|
Certificated
(Y/N)
|
Certificate
No. (if any)
|
No.
of Pledged Units
|
%
of Outstanding Membership Interests of the Limited Liability
Company
|
|||||
|
Tekoil
& Gas Corporation
|
Tekoil
and Gas Gulf Coast, LLC
|
N
|
N/A
|
1
|
100%
|
-1-
EXHIBIT
A
PLEDGE
SUPPLEMENT
This
PLEDGE
SUPPLEMENT,
dated
[mm/dd/yy],
is
delivered pursuant to the Pledge Agreement, dated as of May 11, 2007 (as it
may
be from time to time amended, restated, modified or supplemented, the
"Security
Agreement"),
between TEKOIL
& GAS CORPORATION,
a
Delaware corporation, as the Grantor, and ▇.
▇▇▇▇ & COMPANY,
as
Agent, as the Secured Party. Capitalized terms used herein not otherwise defined
herein shall have the meanings ascribed thereto in the Security
Agreement.
The
Grantor hereby confirms the grant to the Secured Party set forth in the Security
Agreement of, and does hereby grant to the Secured Party, a security interest
in
all of the Grantor's right, title and interest in and to all Collateral to
secure the Secured Obligations, in each case whether now or hereafter existing
or in which the Grantor now has or hereafter acquires an interest and wherever
the same may be located. The Grantor represents and warrants that the attached
Supplements to Schedules accurately and completely set forth all additional
information required pursuant to the Security Agreement and hereby agrees that
such Supplements to Schedules shall constitute part of the Schedules to the
Security Agreement.
IN
WITNESS WHEREOF,
the
Grantor has caused this Pledge Supplement to be duly executed and delivered
by
its duly authorized officer as of [mm/dd/yy].
|
TEKOIL
& GAS CORPORATION
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
|
||
Signature
Page to Pledge Agreement
SUPPLEMENTS
TO SCHEDULES
TO
PLEDGE AND SECURITY AGREEMENT
[Insert
Required Information]
Signature
Page to Pledge Agreement