Exhibit 10.4
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement"), is executed and
delivered as of the 8th day of April, 2005, by JOEY CANYON ("Debtor"),
in favor of XXXXXXX XXXXXXXX ("Lender").
RECITALS
A. Simultaneously with the execution and delivery of this
Agreement, Debtor shall have become the owner of 60 million of the
issued and outstanding shares of the $.001 par value common stock
("Control Securities") of Compound Natural Foods, Inc., a Nevada
corporation (the "Company"); and
B. Debtor has agreed to execute and deliver this Agreement
pursuant to that certain Note Purchase and Use of Proceeds Agreement
of even date hereof between Debtor, Lender and the Company (the "Note
Purchase Agreement"), and Lender has agreed to extend credit to and
make certain financial accommodations on behalf of Debtor in reliance
on this Agreement.
NOW, THEREFORE, in consideration of the foregoing, Debtor agrees
with Lender as follows:
1. GRANT OF SECURITY. To secure the prompt payment and full and
faithful performance of the Debtor, whether direct, contingent, fixed
or otherwise, now or from time to time arising, with respect to that
certain Convertible Promissory Note of even date hereof ("Note")
referred to the Note Purchase Agreement, Debtor grants to Lender a security
interest in and to, and pledges and assigns to Lender, under Articles
8 and 9 of the Uniform Commercial Code (as defined in Section 14 of
this Agreement, the "UCC"), all of Debtor's now owned and hereafter
acquired right, title, share and interest in, to and under:
(a) the Control Securities;
(b) any interest of Debtor in Pure Nature, LLC, a Colorado
limited liability company ("Pure Nature"); (the Control Securities and
membership interests described in the foregoing paragraphs (a) and
(b) are collectively referred to herein as the "Pledged Interests");
(c) together with any and all distributions, whether in cash
or in kind, upon or in connection with the Pledged Interests, whether
such distributions or payments are dividends, are in partial or
complete liquidation, or are the result of reclassification,
readjustment or other changes in the capital structure of the entity
issuing the same, or otherwise, and any and all subscriptions,
warrants, options and other rights issued upon and/or in connection
therewith;
(e) any and all substitutions, renewals, improvements and
replacements of the Pledged Interests and additions thereto;
(f) all Promissory Notes, Instruments, Chattel Paper, General
Intangibles (including Payment Intangibles), contract rights, and all
other forms of obligations respecting the rights of Debtor to the payment
of money from either the Company or Pure Nature (collectively, the "Company
Obligations"); and
(g) all Proceeds arising from any of the foregoing.
All of the foregoing items are referred to herein individually
and/or collectively as the "Collateral". Capitalized terms not
otherwise defined herein or in the Note Purchase Agreement shall have
the meaning given them in the UCC.
2. PERFECTION. To perfect the Lender's security interest in the
Collateral:
(a) Debtor hereby irrevocably authorizes the Lender at any
time and from time to time to file in any appropriate jurisdiction any
UCC financing statements or amendments thereto.
(b) Debtor is delivering to the Lender, for safekeeping
and administration pursuant to that certain escrow agreement of Xxxxx
X. Xxxxxxx, Esq. ("Escrow Agent") and the other parties thereto
("Escrow Agreement"), the Pledged Interests evidenced by certificated
securities, if any, together with irrevocable stock powers endorsed in
blank.
(c) If at any time any after the date hereof any of the
Pledged Interests which are not evidenced by certificated securities
shall be evidenced or represented by certificates, Debtor shall
promptly deliver any such certificates to Lender, via Escrow Agent,
together with irrevocable stock powers endorsed in blank.
(d) Solely with respect to the Company Obligations, Debtor
is delivering and pledging to the Lender all Instruments (including
Promissory Notes), if any, duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and
substance satisfactory to Lender.
(e) Debtor from time to time hereafter shall deliver to the
Lender any additional Collateral that comes within the possession or
control of the Debtor and, if necessary, irrevocable stock powers
endorsed in blank, and/or duly executed instruments of transfer or
assignment as requested by Lender.
3. VOTING AND TRADING RIGHTS. If no Event of Default (as
hereinafter defined) has occurred and is continuing, Debtor may exercise
any voting rights that Debtor may have as to any of the Collateral. If
an Event of Default has occurred and is continuing, Lender may
exercise, subject to Section 7 of this Agreement, all voting rights as
to any of the Collateral and Debtor shall deliver to Lender all
notices, proxy statements, proxies and other information relating to
the exercise of such rights received by Debtor promptly upon receipt
and, at the request of Lender, shall execute and deliver to Lender any
proxies or other instruments which are, in the judgment of Lender,
necessary for Lender to exercise such voting rights.
4. DUTY OF LENDER. Debtor shall have all risk of loss with respect
to the Collateral. Lender shall have no liability or duty, either
before or after the occurrence of an Event of Default, on account of
loss of or damage to, or to collect or enforce any of its rights
against, the Collateral, to collect any income accruing on the
Collateral, or to preserve or maintain the Collateral or rights against
other parties. If Lender actually receives any notices requiring action
with respect to Collateral in Lender's possession, Lender shall take
reasonable steps to forward such notices to Debtor. Except as provided
in Xxxxxxx 0, Xxxxxx is responsible for responding to notices
concerning the Collateral, voting the Collateral, and exercising rights
and options, calls and conversions of the Collateral. While Lender is
not required to take certain actions, if action is needed, in Lender's
sole discretion, to preserve and maintain the Collateral, Debtor hereby
authorizes Lender to take such actions, but Lender is not obligated to
do so.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Lender that:
a. the foregoing recitation is a complete and accurate
statement of the ownership interests in the Pledged Interests owned by the
Debtor as of the date thereof.
b. This Agreement has been duly executed and delivered by
Debtor, constitute Debtor's valid and legally binding obligations and
are enforceable in accordance with their respective terms against Debtor.
c. The execution, delivery and performance of this
Agreement, the grant of the security interest in the Collateral and the
consummation of the transactions contemplated hereunder will not, with
or without the giving of notice or the lapse of time, (i) violate any
law applicable to Debtor, (ii) violate any judgment, writ, injunction
or order of any court or governmental body or officer applicable to
Debtor, (iii) violate or result in the breach of any agreement to which
Debtor is a party or by which any of Debtor's properties, including the
Collateral, is bound, or (iv) violate any restriction on the transfer of
any of the Collateral.
d. No consent, approval or authorization of any third party
or any governmental body or officer is required for the valid and
lawful execution and delivery of this Agreement, the creation and
perfection of Lender's security interest in the Collateral or the
valid and lawful exercise by Lender of remedies available to it under
this Agreement or applicable law or of the voting and other rights
granted to it in this Agreement, except as may be required for the
offer or sale of securities under applicable securities laws.
e. The address of Debtor's principal residence is set forth in
Section 12 of this Agreement.
f. Debtor is the sole owner of the Collateral, has the right to
grant the security interest provided for herein to Lender and has granted
to Lender a valid and perfected first priority security interest in the
Collateral free of all liens, encumbrances, transfer restrictions and
adverse claims.
6. COVENANTS. Debtor covenants and agrees that so long as this
Agreement shall be in effect:
a. DEFENSE OF TITLE. Debtor shall defend Debtor's title to the
collateral and the security interest of Lender against the claims of
any person claiming rights in the Collateral.
b. SALE OF COLLATERAL. Without the prior written consent of
the Lender, (i) Debtor shall not sell, gift, pledge, exchange or
otherwise transfer any of the Collateral; and (ii) Debtor shall cause
each of the Company and Pure Nature to not sell, exchange or otherwise
transfer any of its material assets other than the sale of inventory
in the ordinary course of business or the sale of obsolete or unused
assets. In the event of any such sale, exchange or transfer consented
to by Lender, Debtor shall cause either of the Company or Pure Nature,
as applicable, to dividend or distribute upon receipt the proceeds of
such sale, exchange or transfer to its shareholders or members,
and, contemporaneously therewith, Debtor shall pay, or cause either the
Company or Pure Nature to pay, any such distribution with respect to
the Pledged Interests to the Lender for application to his obligation
under the Note.
c. NO MODIFICATIONS OR TERMINATIONS. Debtor shall not modify or
terminate the terms of any agreement to which the Company or Pure
Nature may be benefited, and shall not file any amendments,
correction statements or termination statements to financing
statements concerning the Collateral without the prior written consent
of Lender.
d. PAYMENT OF OBLIGATIONS UNDER THE NOTE. The Debtor will, and
will cause each of the Company or Pure Nature to, pay and discharge
when due all of his or its material obligations and liabilities
(including, without limitation, tax liabilities which if unpaid when
due might by law give rise to a lien on any asset of the Debtor or the
Company or Pure Nature), except where the same may be contested in good faith
by appropriate proceedings.
e. INSURANCE. The Debtor will cause each of the Company and
Pure Nature to maintain with, financially sound and responsible insurance
companies: (i) casualty insurance on all tangible personal property
of each of them, in each case naming the Lender as an insured and (ii)
liability insurance on behalf of each of them, in each case naming the
Lender as an insured and in each case in at least such amounts and
against at least such risks (and with such risk retention) as are
usually insured against in the same general area by persons of
established repute of comparable financial standing; and will furnish to
the Lender, upon request from the Lender, information presented in
reasonable detail as to the insurance so carried.
f. COMPLIANCE WITH LAWS. The Debtor will comply, and will
cause each of the Company and Pure Nature to comply, in all material
respects with all laws, ordinances, rules, regulations, and
requirements of any Federal, state, local or foreign court, agency,
authority, instrumentality or regulatory body applicable to it, except
where the necessity of compliance therewith is contested in good
faith by appropriate proceedings.
g. NOTICE OF CERTAIN EVENTS AND CONDITIONS. The Debtor will
give prompt written notice to the Lender, and will cause each of the
Company and Pure Nature to give prompt written notice to the Lender,
of any event of default or any event which with notice or lapse of time
or both would constitute an event of default under any evidence or
evidences of Indebtedness aggregating in excess of $100,000, or under
any indenture, mortgage or other agreement or instrument relating to any
such evidence of such Indebtedness of the Debtor and of each of the
Company and Pure Nature, respectively, or under any material lease for
or in respect of which the Debtor or
either the Company or Pure Nature, respectively, may be liable.
For purposes of this Agreement, "Indebtedness" shall mean (i) all
obligations for borrowed money, (ii) all obligations evidenced by
bonds, debentures, notes or other similar instruments, (iii) all
obligations to pay the deferred purchase price of property or
services, except trade accounts payable in the ordinary course of
business, (iv) all obligations of a lessee which are capitalized
in accordance with generally accepted accounting principles, (v) all
non-contingent obligations to reimburse any bank or other person or
business in respect of amounts paid under a letter of credit or
similar instrument, (vi) all Indebtedness secured by a mortgage,
lien pledge, charge, security interest or encumbrance of any kind on
any asset of the Debtor or the Company or Pure Nature, and (vii) a
guaranty of any Indebtedness of any other person, including without
limitation, a "take or pay" agreement or similar obligation.
h. EXISTENCE. The Debtor, will cause each of the Company and
Pure Nature to, at all times preserve and maintain its existence as a
corporation or limited liability company, as the case may be, and
all rights, permits, licenses, approvals, privileges and franchises
material to its business.
i. FUNDAMENTAL CHANGES. Without the prior written consent of
the Lender, the Debtor shall not permit either the Company or Pure
Nature to merge or consolidate with or into any person or liquidate,
wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution or sell all or substantially all of its assets.
j. CHANGE OF RESIDENCE. Debtor shall notify Lender at least
thirty (30) days before Debtor changes his principal residence.
k. INFORMATION. Debtor will deliver to Lender and cause
each of the Company and Pure Nature to deliver to Lender additional
information regarding the business, property, condition (financial or
otherwise), or prospects of Debtor and each of the Company or Pure Nature
as the Lender may reasonably request from time to time.
l. PROHIBITED LOANS. Without the prior written consent of
Lender, Debtor shall not, and shall cause both the Company and Pure
Nature to not, at any time, create, incur, assume or suffer to exist any
Indebtedness, except (i) Indebtedness of Debtor under any bona fide loan
agreement, (ii) Indebtedness in existence on the date hereof as
previously disclosed in writing to Lender, (iii) any loan or advance
made after the date hereof to either the Company or Pure Nature by
Debtor which is evidenced by an Instrument (including a Promissory Note)
that is delivered and pledged to the Lender in accordance with Section
2(d) of this Agreement, or (iv) any Indebtedness incurred after the date
hereof which, individually or in the aggregate with any other
Indebtedness incurred after the date hereof, is more than $100,000.
m. CAPITAL STRUCTURE. Without the prior written consent of
Lender, Debtor shall not permit either the Company or Pure Nature to make
any change in its capital structure or issue or create any stock,
membership interest, or other equity interest (or any non-equity
interest that is convertible into any stock, membership interest, or
other equity interest in either the Company or Pure Nature).
n. NOTICE OF TRANSACTIONS. Debtor shall give written notice to
the Lender, and will cause both the Company and Pure Nature to give
written notice to the Lender, at least ten (10) days prior to (i)
any sale, transfer, exchange, lease or other disposal of any of the
assets of either the Company and Pure Nature, except the sale of
inventory in the ordinary course of business or the sale of obsolete
or unused assets, or (ii) the payment of any dividends or
distributions to Debtor by either the Company and
Pure Nature.
o. ADDITIONAL REQUESTS. At Debtor's expense, do such further
facts and execute and deliver such additional conveyances, certificates,
instruments, legal opinions and other assurances as Lender may at any
time request or require to protect, assure or enforce its interests,
rights and remedies under this Agreement.
7. EVENT OF DEFAULT; REMEDIES. Upon (a) demand by the Lender
pursuant to the Note or (b) upon the breach by Debtor of any of the
terms of the Note Purchase Agreement, this Agreement (in any such
case, an "Event of Default"), the Lender may exercise the rights and
pursue the remedies provided under Article 9 of the UCC, as currently
effective in or as hereafter amended, including but not limited to
exercising all voting rights with respect to the Collateral, collecting
all dividends and other distributions with respect to the Collateral,
selling the Collateral at any public or private sale, at the Lender's
option, without advertisement, and delivering a notice of exclusive
control under any of the Control Agreements to the respective issuer
named therein; provided, however, that upon any such demand, you shall
have 90 days from the date thereof to make payment; provided, further,
that if such demand is made subsequent to your death or incapacity, your
estate shall have 180 days from the date thereof to make payment; in either
such case, and, until such payment is due, the Lender shall refrain
from exercising the aforementioned rights and remedies. The Lender
may bid and become a purchaser at any such sale, and upon any such sale
the Lender shall collect, receive, and hold and apply the proceeds as
provided herein. If notice of intended disposition is required by law,
such notice, if mailed, shall be deemed reasonably and properly given
if mailed to the address of Debtor appearing on the records of the
Lender at least five days before the time of such disposition. The
proceeds from any such sale or action shall be applied first to the
payment of all legal and other costs and expenses incurred in
connection with the sale or action and next to the payment of the
Liabilities, as determined by the Lender. The balance, if any, of such
proceeds remaining after such application shall be paid to Debtor.
If the proceeds of any such sale or action are insufficient to pay in
full the amounts specified above, Debtor shall remain liable for such
deficiency.
8. APPOINTMENT OF LENDER AS AGENT. Debtor appoints Lender, its
successors and assigns, as Debtor's agent and attorney-in-fact to carry
out this Agreement and take any action or execute any instrument or
assignment that Lender considers necessary or convenient for such
purpose, including the power to endorse and deliver checks, notes and
other instruments for the payment of money in the name of and on behalf
of Debtor, to endorse and deliver in the name of and on behalf of Debtor
securities certificates and such forms, schedules and other documents as
are necessary or desirable in Lender's sole judgment to deliver to
the United States Securities and Exchange Commission. This
appointment is coupled with an interest and is irrevocable and will not
be affected by the death, incapacity or bankruptcy of Debtor nor by the
lapse of time. If Debtor fails to perform any act required by this
Agreement, Lender may perform such act in the name of Debtor and at
Debtor's expense.
9. SECURITIES LAWS. Debtor acknowledges that compliance with the
Securities Act of 1933 and the rules and regulations thereunder, state
securities laws and other laws may impose limitations on the right of
Lender to dispose of the Collateral. Debtor authorizes Lender to sell
the Collateral in such manner and to such persons as, in the judgment
of Lender, would help to ensure that the sale will be given prompt
approval by regulatory authorities and will not require the Collateral
to be registered or qualified under any applicable laws and agrees that
such a sale is commercially reasonable. Such a sale may yield a
substantially lower price than if the Collateral were registered and
sold in the open market. If Lender sells the Collateral at such sale,
Lender shall have the right to rely upon the advice and opinion of a
qualified appraiser or investment banker as to the commercially reasonable
price obtainable on the sale, but Lender is not obligated to obtain
or follow such advice or opinion.
10. EXPENSES. Debtor agrees that Debtor will pay to Lender upon
demand the amount of any out-of-pocket expenses, including the fees and
disbursements of counsel, that Lender incurs in connection with the
enforcement of this Agreement, including expenses incurred to preserve
the value of the Collateral and Lender's security interest, the
collection, sale or other disposition of any of the Collateral, the
exercise by Lender of any of its rights, or any action to enforce its
rights under this Agreement.
11. RELEASE OF COLLATERAL. The security interest granted to Lender
shall not terminate and Lender shall not be required to return the
Collateral to Debtor or to terminate its security interest unless and
until (a) the obligation under the Note has been fully paid and
performed, and (b) Debtor has reimbursed Lender for any expenses of
returning the Collateral and filing any termination statements and other
instruments as are required to be filed in public offices under
applicable laws. After termination of this security interest, within 30
days after Debtor's request, Lender shall release control of any
security interest in the Collateral perfected by control and, in
Lender's sole discretion, shall terminate or send Debtor appropriate
documentation to terminate any financing statements filed by Lender with
respect to the Collateral.
12. NOTICES. Any notices, communications and waivers under this
Agreement shall be in writing and shall be (i) delivered in person,
(ii) mailed, postage prepaid, either by registered or certified mail,
return receipt requested, or (iii) by overnight express carrier,
addressed in each case as follows:
To Lender: Xxxxxxx Xxxxxxxx
000 X. Xxxxxx Xx.
Xxxxxx, XX 00000
To Debtor: Joey Canyon
0000 Xxxxxxxx Xx.
Xxxx Xxxx, XX 00000
13. MISCELLANEOUS. This Agreement shall be interpreted and the
rights and liabilities of the parties hereto shall be determined in
accordance with the internal laws (as opposed to the conflicts of
law provisions) and decisions of the State of Colorado and Debtor
hereby consents to the jurisdiction of the courts of or in the State
of Colorado in connection with any dispute, controversy, action or
other matter relating to or arising out of this Agreement. Whenever
possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Agreement. This Agreement shall be binding upon Debtor and the heirs
and legal representatives of Debtor and shall inure to the benefit
of the Lender and his heirs, legal representatives and assigns. The
powers, rights, and remedies of the Lender under this Agreement are
cumulative and are not exclusive of any other power, right or remedy
that the Lender otherwise may have. Any single or partial exercise
or pursuit of any power, right or remedy under this Agreement by the
Lender shall not preclude other or further exercise or pursuit
thereof or the exercise or pursuit of any other power, right or
remedy. The Lender's rights and remedies under this Agreement shall
be unaffected by any change in the provisions of any agreement,
instrument, or document evidencing or affecting the Note, by any
extension of time for payment or performance of the Note or by any
partial or full release of any security for payment or performance
of the Note. No delay by the Lender in exercising or pursuing any
power, right or remedy under this Agreement shall operate as a
waiver thereof, and no failure by the Lender to exercise or pursue
any power, right or remedy shall prevent the Lender from exercising
the same in the future.
14. UNIFORM COMMERCIAL CODE. For purposes of this Agreement,
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Colorado; provided, however, in
the event that, by reason of mandatory provisions of law, any or all
of the attachment, perfection or priority of Lender's security
interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of Colorado, the
term "UCC" shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes
of definitions related to such provisions.
IN WITNESS WHEREOF, the parties have executed this Pledge and
Security Agreement as of the date first written above.
DEBTOR:
/s/ Joey Canyon
LENDER:
/s/ Xxxxxxx Xxxxxxxx
