June 6, 2002
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated June 6, 2002, made by Tonga Capital Corporation
("Pledgors"), to Vaughn L Juhnke., a Colorado corporation ("Lender").
PRELIMINARY STATEMENTS:
Lender has entered into a Loan Agreement dated as of even date herewith
(said Agreement, as it may hereafter be amended or otherwise modified from time
to time, being the "Loan Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with the Pledgors. It is a
condition precedent to the Sale of the Pledged Assets that Pledgors shall have
made the pledge contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to accept the note, Pledgors hereby agree as follows:
SECTION 1. Pledge. Pledgors hereby pledges, transfers and assigns to
Lender and any assigns and grants to Lender a security interest in, the follow-
ing (the "Pledged Collateral"):
All items described on attached Exhibit A and distributions,
cash, instruments and other property, proceeds or benefits
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
Pledged collateral.
SECTION 2. Security for Obligations. This Agreement secures the payment
of all obligations present or future, direct or indirect, absolute or
contingent, matured or not, of Pledgors to Lender under Agreement, the note
evidencing the loan made thereunder (the "Note"), whether for principal,
interest, fees, expenses or otherwise, and all obligations present or future,
direct or indirect, absolute or contingent, matured or not of Pledgors to Lender
under this Agreement or the Promissory Note (all such obligations of Pledgors
being the "Obligations").
SECTION 3. Representations and Warranties. Pledgors represents and
warrants as follows:
(a) Pledgors is the full and legal owners of the collateral, and no
other person has or will have any superior right, title, interest or claim in or
to the collateral or to the proceeds thereof, or any part thereof.
(b) Pledgor is, and as to the Pledged Collateral acquired after the
date hereof, will be, the legal and beneficial owner of the Pledged Collateral
free and clear of any lien, security interest, option or other charge or
encumbrance, except for the security interest created by this Agreement.
(c) The pledge of the Pledged Collateral pursuant to this Agreement
creates a valid and perfected first priority security interest in the Pledged
Collateral securing the payment of the Obligations.
(d) Pledgor is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all requisite
corporate power, capacity and authority (i) to own, lease and operate its
assets, properties and business and to carry on its business as now being
conducted, and (ii) to execute, deliver and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement, and the
Promissory Note and the consummation of the transactions contemplated hereby and
therein have been duly authorized by all necessary corporate action by Pledgors.
(e) The execution, delivery and performance by Pledgors of this
Agreement do not and will not violate or conflict with or result in a breach of
or constitute (or with notice or lapse of time or both constitute) a default
under (a) the incorporating documents or by-laws, (b) any indenture, mortgage,
bond, license, permit or loan or credit agreement or any other agreement or
instrument to which Pledgors is a party or by which Pledgors or any of its
properties may be bound or affected or (c) any statute or law or judgment,
decree, order, writ, injunction, regulation or rule of any court or governmental
authority of any state or of the United States or any political subdivision of
the foregoing. The execution, performance and delivery by Pledgors of this
Agreement will not result in the creation of any lien with respect to the assets
of Pledgors except for the lien created hereby with respect to the Pledged
Collateral.
(f) This Agreement constitutes a legal, valid and binding obligation of
Pledgors enforceable against Pledgors in accordance with its terms except as
enforceability may be limited by (i) any applicable bankruptcy, insolvency,
reorganization, winding up, moratorium or other similar laws now or hereafter in
effect relating to the enforcement of creditors' rights and (ii) general
equitable principles including rules governing the granting of specific
performance and injunctive relief, which are within the discretion of the court
having jurisdiction.
(g) No authorization, consent, validation, approval, license,
qualification or forma exemption from, and no filing, declaration or
registration with, any court, governmental agency or regulatory authority or any
securities exchange or any other person, whether located in the United States or
elsewhere, is required (i) in connection with the authorization, execution,
delivery or performance by Pledgors of this Agreement, the Promissory Note and
the transactions contemplated thereby other than the Regulatory Approvals or the
Consulting Agreement, (ii) for the pledge by Pledgors of the Pledged Collateral
pursuant to this Agreement or for the execution, delivery or performance by
Pledgors of this Agreement, and the Promissory Note (ii) for the pledge by
Pledgors of the Collateral pursuant to this Agreement or for the execution,
delivery or performance of the Promissory Note by Pledgors or (iii) for the
exercise by Lender of the voting or other rights provided for in this Agreement
or the remedies in respect of the Pledged Collateral pursuant to this Agreement.
(h) Complete and correct copies of the incorporating documents and
by-laws of Pledgors as of the date hereof have been provided to the Lender on or
prior to the date hereof and are in full force and effect.
(i) Neither Pledgors nor any portion of Pledgors's property is immune
or exempt from the exercise of jurisdiction, whether arising through service or
notice of judicial process, attachment or seizure prior to judgment, attachment
or seizure in aid of execution following judgment or otherwise, by the courts of
the State of Colorado or any other state, province, country, nation or other
territorial jurisdiction in which any portion of Pledgors's property is located
or business is conducted except to the extent, if any, that jurisdiction may be
limited by bankruptcy, insolvency, reorganization and other similar laws now or
hereinafter in effect relating to the enforcement of creditors' rights
generally.
(j) The representations and warranties set forth herein hereof shall
survive the execution of this Agreement and shall continue as long as there
shall be any Indebtedness outstanding under this Agreement as if repeated and
given again to Lender on each day during the term hereof.
SECTION 4. Further Assurances. Pledgors agree that at any time and from
time to time, at the expense of Pledgors, Pledgors will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that Lender may request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Lender to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral, including without limitation filing one or
more UCC-1s to protect Lender's security interest in Pledgors Rights and making
any filing statement or appearance before or with any insurance commission or
other regulatory authority. Pledgors authorizes Lender to file, in jurisdictions
where this authorization will be given effect, a financing statement signed only
by Lender covering the Pledged Collateral. Pledgors will join Lender at its
request in executing all financial statements in form satisfactory to Lender and
Pledgors will pay the cost of filing or recording any such financial statement
or of this Agreement if it is deemed by Lender to be necessary or desirable.
SECTION 5. Transfers and Other Liens;.
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Pledgors agree that it will not (i) sell or otherwise dispose of, in
bulk, any of the Pledged collateral, (ii) create or permit to exist any lien,
security interest or other charge or encumbrance upon or with respect to any of
the Pledged Collateral, except for the security interest under this Agreement,
except it may make inventory sales and pay proceeds as required by the note.
SECTION 6. Lender May Perform. If Pledgors fail to perform any
agreement contained herein, Lender may itself perform, or cause performance of,
such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Pledgors under the note terms.
SECTION 7. Reasonable Care. Lender shall exercise reasonable care in
the custody of the Pledged Collateral in its possession or control hereunder at
any time. Lender shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged collateral in its possession if the
Pledged Collateral is accorded treatment substantially equal to that which
lender accords its own property.
SECTION 8. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
(a) Lender may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") in effect in the State of Colorado, except
as required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Colorado, at that time, and
Lender may also, without notice except as specified below, exercise any rights
with respect to the Pledged Collateral, sell the Pledged Collateral or any part
thereof in one or more parcels at public or private sale, at any of Lender's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as Lender may deem commercially reasonable. Pledgors agrees that, to
the extent notice of sale shall be required by law, at least ten days' notice to
Pledgors 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. Lender
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. Lender 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.
(b) Any cash held by Lender as Pledged Collateral and all cash proceeds
received by Lender in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of Lender, be held by Lender as collateral for, and then or at any
time thereafter applied (after payment of any amounts payable to Lender pursuant
to Section 13) in whole or in part by Lender against, all or any part of the
Obligations in such order as Lender shall elect. Any surplus of such cash or
cash proceeds and interest accrued thereon, if any, held by Lender and remaining
after payment in full of all the Obligations shall be paid over to Pledgors or
to whomsoever may be lawfully entitled to receive such surplus, provided that
Lender shall have no obligation to invest or otherwise pay interest on any
amounts held by it in connection with or pursuant to this Agreement.
(c) All rights and remedies of Lender expressed herein are in addition
to all other rights and remedies possessed by Lender in the Loan Agreement, all
third party guaranties and any other agreement or instrument relating to the
Obligations.
SECTION 9. Expenses. Pledgors will upon demand pay to Lender the amount
of any and all reasonable expenses, including the reasonable fees and expenses
of its counsel and of any experts and agents, which Lender may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of Lender hereunder of (iv) the failure by Pledgors to perform or observe
any of the provisions hereof.
SECTION 10. Security Interest Absolute. All rights of Lender and
security interests hereunder, and all obligations of Pledgors hereunder, shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of this Agreement,
the Promissory Note, or any other agreement or instrument relating thereto;
(ii) any change in the time, manner, place or terms of payment
of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Loan Agreement
or the Promissory Note;
(iii) any sale, exchange, release, surrender or nonperfection
of any other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations or any setoff
against all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or a third-party pledgors.
SECTION 11. Amendments, etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by Pledgors herefrom, shall in any
event be effective unless the same shall be in writing and signed by Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 12. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic
communication), mailed or telegraphed or delivered to it, addressed to it at
such party's address specified below; or as to either party at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such notices
and other communications shall, when mailed or telegraphed, respectively, be
effective when deposited in the mails or delivered to the telegraph company,
respectively, addressed as aforesaid.
SECTION 13. Continuing Security Interest; Transfer of Note. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until payment in full of the
Obligations, (ii) be binding upon Pledgors, its successors and assigns and (iii)
inure to the benefit of Lender and its successors, transferees and assigns.
Without limiting the generality of the foregoing clause (iii), Lender may assign
or otherwise transfer the Loan Agreement to any other person or entity, and such
other person or entity shall thereupon become vested with all the benefits in
respect thereof granted to Lender herein or otherwise. Upon the payment in full
of the Obligations, Pledgors shall be entitled to the return, upon its request
and at its expense, of such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof.
SECTION 14. Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of Colorado, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of Colorado. Unless otherwise
defined herein or in the Loan Agreement, terms defined in Article 9 of the
Uniform Commercial Code in the State of Colorado are used herein as therein
defined.
IN WITNESS WHEREOF, Pledgors have caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
Tonga Capital Corporation
by: /s/ Roger K. Juhnke
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President