PLEDGE
AGREEMENT
THIS PLEDGE AGREEMENT
(this “ Agreement
”), dated as of August 22, 2008, is made by and between
HYDROGEN CORPORATION , a
Nevada corporation (“the “ Pledgor ”) in
favor of FEDERATED KAUFMANN FUND, a portfolio of
Federated Equity Funds, a Massachusetts business trust, as agent
for the Lenders (as defined below) (in such capacity, together with
its successors and assigns, the “
Pledgee ” ).
RECITALS
A.
The Pledgor, Hydrogen, L.L.C., an
Ohio limited liability company (the “ Borrower
”), Federated Kaufmann Fund, a portfolio of Federated Equity
Funds, a Massachusetts business trust and Samsung C&T
Corporation, a corporation organized under the laws of the Republic
of Korea (collectively, together with their respective successors
and assigns, the “ Lenders ”), and the Pledgee
in its capacity as Agent for the benefit of the Lenders are parties
to that certain Loan and Security Agreement of even date herewith
(as amended, the “ Loan Agreement ”).
Capitalized terms used herein but not defined herein shall have the
meanings ascribed thereto in the Loan Agreement.
B.
Pursuant to the Loan Agreement, the
Lenders are making term loans to the Borrower (the “
Loan” ).
C.
As a condition to the making of the
Loan to the Borrower and pursuant to that certain Guaranty,
dated as of even date herewith, between the Agent and the
Pledgor, the Pledgor is required to execute and deliver this
Agreement and shall have made the pledge contemplated hereunder of
its membership interest in the Borrower to provide security for the
Borrower’s obligations under the Loan Agreement and any and
all other instruments, agreements and documents delivered or
executed in connection therewith (as any of the foregoing may be
amended, supplemented or modified from time to time, collectively,
the “ Loan Documents ”).
NOW,
THEREFORE , in
consideration of the premises hereinabove, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the Pledgor hereby covenants and
agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS, ETC.
This Agreement is for the benefit of
the Pledgee (in its capacity as Agent for the benefit of the
Lenders) and any successor Agents appointed pursuant to the Loan
Agreement to secure the prompt and complete payment and performance
when due of all obligations, liabilities, indebtedness (whether for
principal, interest, charges, or fees), costs, expenses, covenants,
indemnities and agreements of every nature whatsoever of the
Borrower to the Lenders and the Pledgee (in its capacity as Agent
for the benefit of the Lenders) now existing or hereafter arising
under the Loan Agreement, this Agreement, and any and all other
Loan Documents (all of the foregoing being herein collectively
called the “ Secured Obligations ”).
2. DEFINITION OF PLEDGED COLLATERAL.
As used herein, the term “
Pledged Collateral ” shall mean one hundred percent
(100%) of Pledgor’s membership interest in the
Borrower.
3. PLEDGE OF PLEDGED COLLATERAL AND OTHER
COLLATERAL .
3.1 Pledge . To secure the Secured Obligations and for the
purposes set forth in Section 1 hereof, Pledgor hereby
pledges, collaterally assigns and conveys, and grants a security
interest in and lien on, in favor of Pledgee (as Agent for the
benefit of the Lenders), all of Pledgor’s right, title and
interest in, to, and under (A) the Pledged Collateral, (B) any
additional Pledged Collateral acquired pursuant to Section
3.2 below (whether by purchase, dividend, distribution, merger,
consolidation, sale of assets, split, spin-off, or any other
dividend or distribution of any kind or otherwise), (C) all
distributions, dividends, cash, certificates, liquidation rights
and interests, options, rights, warrants, instruments or other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange or substitution for any
and all of the Pledged Collateral, and (D) all proceeds, products,
replacements and substitutions for any of the foregoing, in each
case whether now owned or hereafter acquired by the Pledgor
(collectively, the “ Collateral ”). The Pledgor
shall permit the Pledgee to file a UCC Financing Statement naming
the Pledgor as debtor and the Pledgee as secured party with respect
to the Collateral in any jurisdiction reasonably required by the
Pledgee (including with the Nevada Secretary of State).
3.2 Subsequently Acquired Pledged
Collateral . If at any
time or from time to time after the date hereof, the Pledgor shall
acquire any additional Pledged Collateral, including any further
equity in the Borrower (whether by purchase, dividend,
distribution, merger, consolidation, sale of assets, split,
spin-off, or any other dividend or distribution of any kind or
otherwise), the Pledgor will forthwith pledge additional
Collateral. The Pledgor shall permit the Pledgee to file a UCC
Financing Statement naming the Pledgor as debtor and the Pledgee as
secured party with respect to the additional Collateral in any
jurisdiction reasonably required by the Pledgee (including with the
Nevada Secretary of State).
3.3 Certificated Pledged Collateral
. In addition to anything contained
in Sections 3.1 and 3.2 hereof, if any Pledged Collateral
(whether now owned or hereafter acquired) is or becomes evidenced
by a certificated security, the Pledgor shall promptly notify the
Pledgee thereof and shall promptly take all actions required to
perfect the security interest of the Pledgee (as Agent for the
benefit of the Lenders) under applicable law (including, in any
event, delivery of physical possession of all certificates to the
Pledgee, and take any other action required or appropriate under
this Agreement or the Uniform Commercial Code of the State of New
York or equivalent provisions of any other applicable jurisdiction
(the “ UCC ”)).
4. VOTING, ETC . Unless and until an Event of Default (as
defined in the Loan Agreement) occurs, the Pledgor shall be
entitled to vote any and all of the Pledged Collateral. All such
rights of the Pledgor to vote shall cease in case an Event of
Default shall occur and the Pledgee elects to enforce its rights
and remedies against the Pledged Collateral and so directs and
notifies the Pledgor.
5. PAYMENTS AND OTHER DISTRIBUTIONS
. Unless and until an Event of
Default (as defined in the Loan Agreement) occurs, all cash
distributions payable in respect of the Pledged Collateral shall be
paid to the Pledgor. All such rights of the Pledgor to receive such
cash distributions shall cease in case an Event of Default shall
occur and the Pledgee elects to enforce its rights against the
Pledged Collateral and so directs and notifies the Pledgor. The
Pledgee shall be entitled to receive directly, and to retain as
part of the Collateral:
(a) all other or additional securities or
investment property, or rights to subscribe for or purchase any of
the foregoing, or property (other than cash) paid or distributed by
way of dividend in respect of the Pledged Collateral;
(b) all other or additional securities, investment
property or property (including cash) paid or distributed in
respect of the Pledged Collateral by way of split, spin-off,
split-up, reclassification, combination of shares or similar
rearrangement; and
(c) all other or additional securities, investment
property or property which may be paid in respect of the Collateral
by reason of any consolidation, merger, exchange, dividend, split,
or distribution, conveyance of assets, liquidation or similar
reorganization or other disposition of Collateral.
If at any time
the Pledgor shall obtain or possess any of the foregoing Collateral
described in this Section, the Pledgor shall be deemed to hold such
Collateral in trust for the Pledgee and the Pledgor shall promptly
surrender and deliver such Collateral to the Pledgee.
6. REMEDIES IN CASE OF AN EVENT OF
DEFAULT . In case an
Event of Default occurs or exists, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in
it by this Agreement, the Loan Agreement, any other Loan Documents,
and/or in equity or by law, and including, without limitation, all
rights and remedies of a secured party of a debtor in default under
the UCC) for the protection and enforcement of its rights in
respect of the Collateral, and to the fullest extent permitted by
applicable law, the Pledgee shall be entitled, without limitation,
to exercise the following rights, which the Pledgor hereby agrees
to be commercially reasonable:
(a) to receive all amounts payable in respect of
the Collateral otherwise payable under Section 5 hereof to
the Pledgor;
(b) to transfer all or any part of the Collateral
into the Pledgee’s name or the name of its nominee or
nominees;
(c) to vote all or any part of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof;
(d) at any time or from time to time to sell,
assign and deliver, or grant options to purchase, all or any part
of the Collateral in one or more parcels, or any interest therein,
at any public or private sale at any exchange, broker’s board
or at any of the Pledgee’s offices or elsewhere, without
demand of performance, advertisement or notice of intention to sell
or of time or place of sale or adjournment thereof or to redeem
(all of which, except as may be required by mandatory provisions of
applicable law, are hereby expressly and irrevocably waived by the
Pledgor) for cash, on credit or for other property, for immediate
or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its
absolute discretion may determine. Pledgor agrees that to the
extent that notice of sale shall be required by law that at least
ten (10) calendar days’ notice to the Pledgor of the time
(which shall be during normal business hours) and place of any
public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Pledgee shall not be
obligated to make any sale of Collateral regardless of notice of
sale having been given. The Pledgee may adjourn any public or
private sale from time to time by announcement at the time and
place fixed therefor, and any such sale may, without further
notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives and releases to the fullest extent permitted
by law any right or equity of redemption with respect to the
collateral, whether before or after sale hereunder, and all rights,
if any of marshalling the Collateral and any other security for the
Secured Obligations or otherwise. At any such sale, unless
prohibited by applicable law, the Pledgee may bid for and purchase
all or any part of the Collateral so sold free from any such right
or equity of redemption. The Pledgee shall not be liable for
failure to collect or realize upon any or all of the Collateral or
for any delay in so doing nor shall the Pledgee be under any
obligation to take any action whatsoever with regard
thereto;
(e) to settle, adjust, compromise and arrange all
accounts, controversies, questions, claims and demands whatsoever
in relation to all or any part of the Collateral;
(f) in respect of the Collateral, to execute all
such contracts, agreements, deeds, documents and instruments, to
bring, defend and abandon all such actions, suits and proceedings,
and to take all actions in relation to all or any part of the
Collateral as the Pledgee in its absolute discretion may
determine;
(g) to appoint managers, sub-agents, officers and
servants for any of the purposes mentioned in the foregoing
provisions of this Section and to dismiss the same, all of the
Pledgee in its absolute discretion may determine; and
(h) generally, to take all such other action as the
Pledgee in its absolute discretion may determine as incidental or
conducive to any of the matters or powers mentioned in the
foregoing provisions of this Section and which the Pledgee may or
can do lawfully and to use the name of the Pledgor for the purposes
aforesaid and in any proceedings arising therefrom.
7. REMEDIES, ETC., CUMULATIVE
. Each right, power and remedy of
the Pledgee provided for in this Agreement, the Loan Agreement, any
Loan Document or any other security agreement, mortgage, guaranty
or
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