Attached files
| file | filename |
|---|---|
| 8-K - HII Technologies, Inc. | v190136_8k.htm |
| EX-4.1 - HII Technologies, Inc. | v190136_ex4-1.htm |
| EX-10.5 - HII Technologies, Inc. | v190136_ex10-5.htm |
| EX-10.2 - HII Technologies, Inc. | v190136_ex10-2.htm |
| EX-10.4 - HII Technologies, Inc. | v190136_ex10-4.htm |
| EX-10.1 - HII Technologies, Inc. | v190136_ex10-1.htm |
| EX-10.6 - HII Technologies, Inc. | v190136_ex10-6.htm |
STOCK PLEDGE AND SECURITY
AGREEMENT
This STOCK PLEDGE AND SECURITY
AGREEMENT (“Stock Pledge
Agreement”) is executed effective as of June 30, 2010 by and among
HEMIWEDGE INDUSTRIES, INC. (formerly called Shumate Industries, Inc.), a
Delaware corporation (“Pledgor”),
and EADS INVESTMENTS I, LLC., of 18305 Kitzman Road, Cypress, Texas, 77429,
(“Investments”)
and D. BRADLEY MCWILLIAMS (“McWilliams”),
of 710 North Post Oak Road, Suite 400, Houston, Texas, 77024, (Investments and
McWilliams herein collectively called the (“Secured
Parties”).
RECITALS:
A. The Pledgor and Hemiwedge
Valve Corporation, a Texas corporation (“Hemiwedge
Valve”) (Pledgor and Hemiwedge Valve, collectively “Borrowers”)
are liable to the Secured Parties for the indebtedness and obligations described
in that certain Amended and Restated Loan Agreement (“Loan
Agreement”) and Amended and Restated Promissory Note (Demand Note)
(“Note”) and
all other related loan documents executed by the Grantors in connection with
such Loan Agreement and Note, each of even date herewith (collectively, the
“Loan
Documents”).
B. Pledgor owns one hundred
percent (100%) of the issued and outstanding stock of Hemiwedge
Valve.
C. Pledgor has agreed to
secure payment of the indebtedness and obligations under the Loan Documents and
other indebtedness and obligations described herein (collectively, the “Indebtedness”)
by granting the security interests described in this Stock Pledge
Agreement.
D. The Pledgor has
determined that the execution, delivery and performance of this Stock Pledge
Agreement directly benefits and are in the best interests of the
Pledgor.
WITNESSETH:
NOW,
THEREFORE, in consideration of the premises and covenants contained herein, to
induce Secured Parties to continue the Loan to the Borrowers under the Loan
Documents, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, Pledgor and Secured Parties hereby agree as
follows:
Page 1 of 9
ARTICLE
I
GRANT OF SECURITY INTEREST
AND PLEDGE
Pledgor,
for itself and its successors, assigns, and legal representatives, hereby
pledges and assigns unto Secured Parties for the ratable benefit of each of
them, and grants to Secured Parties, a first lien and security interest in, the
Collateral (described in Article II of this Stock Pledge Agreement) to secure
(a) the punctual payment when due of any and all principal, interest, Fees,
costs, expenses and other sums owed by Borrowers under the Loan Documents,
("Indebtedness"),
and (b) the due and punctual performance and observance of all covenants
required hereunder or required of Borrowers under the Loan Documents, or to be
performed or observed by the Pledgor and Borrowers in respect therewith ("Obligations").
ARTICLE
II
COLLATERAL
The
Collateral subject to this Pledge Agreement (the "Collateral")
is:
(a) Certificate
No. 1, in the name of Excalibur Industries, Inc. (now called Hemiwedge
Industries, Inc.), representing 800,000 shares of common stock, having $0.001
par value each, of Hemiwedge Valve represented thereby, and (hereinafter called
the "Pledged
Shares");
(b) all
dividends, cash, instruments, proceeds, payments, shares, securities, and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares; and
(c) all
stock rights, warrants, right to subscribe for, and additional shares of stock
of Hemiwedge Valve or any successor or assignee of Hemiwedge Valve from time to
time acquired by Pledgor in any manner, and the certificates representing such
additional shares, and all dividends, cash, instruments, securities, and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any and all of such shares;
provided, however, that, notwithstanding
any provision herein to the contrary, unless and until a Default or an Event of
Default (as defined in Article V hereof) has occurred, Pledgor shall, pursuant
to the provisions of the Loan Documents, be entitled to receive, use, consume
and otherwise appropriate to its own use, any and all cash dividends and
distributions permitted by the provisions of the Loan Documents in connection
with the Collateral without any further consent of the Secured Parties or
Lenders; provided, further that immediately upon
the occurrence of an Event of Default or demand for payment by Lenders under the
Note, Pledgor's right to use and take any such permitted cash dividends and
distributions shall cease, and all cash payments shall revert to the Secured
Parties’ possession and control as herein provided.
Page 2 of 9
ARTICLE
III
DELIVERY OF
COLLATERAL
All
certificates or instruments representing or evidencing the Collateral shall be
delivered to and held in trust for the benefit of Secured Parties pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in
blank. Secured Parties shall have the right, at any time following
the occurrence of an Event of Default and without notice to Pledgor, to transfer
to or to register in the name of Secured Parties any or all of the
Collateral.
In the
event that Pledgor receives any property that would constitute Collateral,
Pledgor will hold such property in trust for Secured Parties and will
immediately deliver same to Secured Parties to be held pursuant to this Stock
Pledge Agreement.
All
Collateral is delivered and pledged to Secured Parties by Pledgor hereunder to
be held by Secured Parties as collateral for the Indebtedness.
Page 3 of 9
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
Pledgor
represents, warrants, and agrees that: (a) this Stock Pledge Agreement has been
duly and validly executed and delivered by Pledgor and constitutes a legal,
valid and binding obligation of Pledgor enforceable against it in accordance
with its terms except as the enforceability hereof may be limited by applicable
bankruptcy, moratorium or similar laws relating to the enforcement of creditors'
rights generally; (b) all financial or credit statements relied upon by and
Collateral deposited with Secured Parties prior to, contemporaneously with, or
subsequent to the execution of this Stock Pledge Agreement are or will be true,
correct complete, valid and genuine; (c) Pledgor is not a party to any contract
or agreement or subject to any restriction which materially and adversely
affects the Collateral, and neither the execution nor delivery of this Stock
Pledge Agreement nor compliance with the terms and provisions hereof will be
contrary to the provisions of, or constitute default under, any law or any
regulation, order, writ, injunction or decree of any court or governmental
instrumentality or any agreement (including, but not limited to, any
shareholders' agreement) to which the Pledgor is a party or by which it is bound
or to which it is subject, (d) with respect to all investment securities,
instruments, chattel paper, and any like property delivered to Secured Parties
as Collateral, (i) the same are genuine, free from adverse claims or other
security interests, default, prepayment of defenses with the exception of the
liens granted Second Lien Holders; (ii) all persons appearing to be obligated
thereon have authority and capacity to contract and are bound thereon as they
appear to be from the facts thereof; and (iii) the same comply with applicable
laws concerning form, content, and manner of preparation and execution; (e)
Pledgor owns the Collateral and has the right to transfer any interest therein
and the Pledged Shares constitute one hundred percent (100%) of the issued and
outstanding shares of common voting stock of Hemiwedge Valve, (f) Excalibur
Industries, Inc. named in the Stock Certificate referenced in Article II(a)
above is a former name of Pledgor and is the same corporation now called
Hemiwedge Industries, Inc.; (g) the Collateral is not subject to the interest in
or lien of any third person or entity; (h) Pledgor will not pledge, assign,
encumber or grant a security interest in the Collateral to any person other than
Secured Parties and the Second Lien Holders; (i) Pledgor will defend the
Collateral and its proceeds against the claims and demands of all third persons;
(j) Secured Parties' duty with reference to the Collateral shall be solely to
use reasonable care in the custody and preservation of the Collateral in Secured
Parties' possession, and Secured Parties shall not be responsible in any way for
any depreciation in the value of the Collateral, nor shall any duty or
responsibility whatsoever rest on Secured Parties to take necessary steps to
preserve rights against prior parties or to enforce collection of the
Collateral; (k) any demand, notice, protest, and all demands and notices of any
action taken by Secured Parties under this Stock Pledge Agreement or in
connection with any note or notes, guaranty or other instrument or agreement,
except as otherwise provided in this Stock Pledge Agreement, are hereby waived,
and any indulgence of Secured Parties, substitution for, or exchange or release
of, Collateral, in whole or in part, or addition or release of any person liable
on the Collateral is hereby assented and consented to; and (l) Pledgor shall pay
prior to delinquency all Taxes, charges, Liens, and assessments against the
Collateral, and upon Pledgor's failure to do so, Secured Parties at its option
may pay any of them and shall be the sole judge of the legality or validity
thereof and the amount necessary to discharge the same, and Pledgor shall pay to
Secured Parties on demand all expenses, including reasonable attorneys' fees and
legal expenses incurred or paid by Secured Parties in exercising or protecting
its interests, rights, and remedies hereunder.
ARTICLE
V
DEFAULT
Pledgor
shall be in default (“Default”)
under this Stock Pledge Agreement upon the happening of any of the following
events or conditions (each of which is herein referred to as an "Event of
Default"):
(a) any
Event of Default shall occur under the Loan Documents; or
(b) any
of the Collateral is levied on or seized or attached.
Page 4 of 9
ARTICLE
VI
ASSIGNMENT AND
REMEDIES
This
Stock Pledge Agreement, Secured Parties' rights hereunder, and the Indebtedness
secured hereby may be assigned from time to time, and in any such case the
assignee shall be entitled to all of the rights, privileges, and remedies
granted in this Stock Pledge Agreement to Secured Parties, and Pledgor will
assert no claims or defenses it may have against Secured Parties or Lenders
against such assignee except those expressly granted in this Stock Pledge
Agreement.
Secured
Parties may, at any time following an Event of Default hereunder, on behalf of
the Lenders, transfer the Collateral to itself or its nominees, receive income,
including money, thereon and hold the income as Collateral or apply the income
to any Indebtedness and the manner of said application shall be in the sole
discretion of Secured Parties. Secured Parties may at any time
demand, on behalf of the Lenders, sue for, collect or make any compromise or
settlement with reference to the Collateral as Secured Parties, in its sole
discretion, chooses. Secured Parties may delay exercising or may omit
to exercise any right or remedy under this Stock Pledge Agreement without
waiving that or any other past, present or future right or remedy.
In
protecting, exercising, or assuring their interests, rights, and remedies under
this Stock Pledge Agreement, Secured Parties may execute, sign, and endorse
negotiable and other instruments for the payment, shipment, or storage of any
form of Collateral or proceeds on behalf of and in the name of
Pledgor.
Upon the
occurrence of an Event of Default, and at any time thereafter: (a) Secured
Parties shall have, then or at any time thereafter, the rights and remedies
provided by applicable law, including the rights and remedies of a Secured
Parties on default under the Uniform Commercial Code of Texas; and (b) in
addition to the rights and remedies referred to above, Secured Parties may, in
its discretion, sell, assign, and deliver all or any part of the Collateral at
any exchange, broker's board or at Secured Parties’ office or elsewhere, or at
public or private sale without advertisement, for cash, on credit or for future
delivery, upon such terms as Secured Parties may deem commercially reasonable,
and Secured Parties may bid and become purchaser at any public sale or at any
broker's board, in accordance with applicable securities laws. To the
extent required by law, Secured Parties shall give written notice to Pledgor not
less than five (5) days prior to the date of public sale of the Collateral or
prior to the date after which private sale of the Collateral will be made, by
mailing such notice to Pledgor at the address designated in the Loan Agreement
with a copy to Borrower at its address set forth in the Loan Agreement, which
notice Pledgor agrees shall constitute “reasonable notification” within the
meaning of the Uniform Commercial Code (to the extent
applicable).
Page 5 of 9
All
rights and remedies of Secured Parties expressed in the Stock Pledge Agreement
(including, without limitation, rights and powers granted under Articles VII,
VIII, IX and X hereof) are in addition to all other rights and remedies
possessed by Secured Parties in the Loan Documents and in any other agreement or
instrument relating to the Indebtedness and are granted to and exercisable by
Secured Parties.
ARTICLE
VII
POWER OF
ATTORNEY
Pledgor
hereby irrevocably appoints Secured Parties to be Pledgor's attorney-in-fact,
effective upon and during the continuance of an Event of Default, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Parties or otherwise, from time to time in Secured Parties’ discretion, to take
any action and to execute any instrument which Secured Parties may deem
necessary or advisable to accomplish the purpose of this Stock Pledge Agreement,
including, without limitation:
(a) to
ask, demand, collect, sue 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)
to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (a) above,
and
(c) to
file any claims or take any action or institute any proceedings which Secured
Parties may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of Secured Parties with respect to
any of the Collateral.
ARTICLE
VIII
RIGHTS AND OBLIGATIONS
ABSOLUTE
All
rights of Secured Parties, all obligations of Pledgor hereunder and the security
interest hereunder, shall, to the extent permitted by applicable law, be
absolute and unconditional, irrespective of:
(a) any
lack of validity or enforceability of the Agreement, the Notes or any of the
other Loan Documents or any other agreement or security document relating
thereto or executed in connection with or pursuant to any Loan
Document;
Page 6 of 9
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Indebtedness or any other amendment or waiver of or any consent to
any departure from the Agreement, the Note, any of the other Loan Documents, or
any other agreement or instrument relating thereto or executed in connection
with or pursuant to any Loan Document;
(c) any
exchange, release or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Indebtedness; or
(d) any
other circumstances which might otherwise constitute a defense available to, or
a discharge of, Pledgor or any other person that is a party to any Loan Document
in respect of the Indebtedness.
ARTICLE
IX
CONTINUING SECURITY
INTEREST
This
Stock Pledge Agreement and the delivery of the Collateral to Secured Parties
create a continuing security interest in the Collateral and shall (a) remain in
full force and effect until termination of the obligations of Secured Parties to
continue the Loan and payment in full thereafter of the Indebtedness, (b) be
binding upon Pledgor and its successors and assigns, and (c) inure to the
benefit of Secured Parties and its respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c),
Secured Parties may assign or otherwise transfer any of its rights under this
Stock Pledge Agreement to any other person, and such person shall thereupon
become vested with all the benefits in respect thereof granted herein or
otherwise to Secured Parties. Upon termination of the obligations
under the Loan Documents and the payment in full thereafter of the Indebtedness
and the performance of all of the Obligations, Pledgor shall be entitled to the
return, upon its request and its expense, of such of the Collateral as shall not
have been sold or otherwise applied pursuant to the terms hereof.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
All
rights of marshalling of assets of Pledgor, including any such right with
respect to the Collateral, are hereby waived by Pledgor.
All
rights, remedies and powers provided in this Stock Pledge Agreement may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Stock Pledge
Agreement are intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent necessary so that
they will not render this Stock Pledge Agreement invalid, unenforceable, in
whole or in part, or not entitled to be recorded, registered or filed under the
provisions of any applicable law.
Page 7 of 9
After the
irrevocable and indefeasible cash payment in full of all of the Obligations and
termination of the Loan and Note, the Pledgor shall be entitled to the return of
the Pledged Shares and of all the Collateral which has not been used or applied
toward payment in full of the Obligations.
Should
any clause, sentence, paragraph, subsection or Article of this Stock Pledge
Agreement be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of
this Stock Pledge Agreement, and the parties hereto agree that the part or parts
of this Stock Pledge Agreement so held to be invalid, unenforceable or void will
be deemed to have been stricken here from by the parties hereto, and the
remainder will have the same force and effectiveness as if such stricken part or
parts had never been included herein.
The
pronouns used in this instrument are of neutral gender but shall be construed as
feminine or masculine as the occasion may require. “Secured Parties”,
“Borrowers”, and “Pledgor” as used in this instrument include the heirs,
executors, administrators, successors, representatives, receivers, trustees, and
assigns of those parties.
This
instrument is governed by and is to be governed, construed and interpreted in
accordance with the laws of the State of Texas and applicable federal
law.
The
provisions of the Loan Agreement concerning usury and the Maximum Rate of
interest shall apply to all interest which may be contracted for, paid by or
collected from Pledgor under the provisions of this Stock Pledge
Agreement.
This
Stock Pledge Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Capitalized
terms used but not otherwise defined in this Stock Pledge Agreement shall bear
the meanings assigned to them in the Loan Agreement and other Loan Documents, as
applicable.
THIS
STOCK PLEDGE AND SECURITY AGREEMENT REPRESENTS THE FINAL AGREEMENT AND
OBLIGATION OF THE PARTIES WITH RESPECT TO THE PLEDGE OF THE COLLATERAL AND 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 HERETO.
[The signatures appear on the
following page]
Page 8 of 9
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Stock
Pledge Agreement as of the date first above written.
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PLEDGOR:
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HEMIWEDGE
INDUSTRIES, INC.
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By:
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Name: Matthew
C. Flemming
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Title:
CFO and Secretary
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SECURED
PARTIES:
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EADS
INVESTMENTS I, LLC.
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By:
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Name:
Rodney Eads
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Title:
Member
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By:
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D.
BRADLEY
McWILLIAMS
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Page 9 of 9