ex10-7.htm


    Exhibit
10.7

    
 


    PLEDGE
AGREEMENT

     

    FOR VALUE
RECEIVED and in consideration of any loan, advance, extension of credit or other
financial accommodations now or hereafter made by FCC, LLC, d/b/a First Capital, a Florida
limited liability company (“Lender”), to AEROGROW INTERNATIONAL, INC.,
a Nevada corporation (“Borrower”), including extensions of credit or financial
accommodations made to Borrower pursuant to that certain Loan and Security
Agreement dated as of June 23, 2008 between Lender and Borrower (as amended,
restated, supplemented or replaced from time to time, the “Loan Agreement”),
which extensions of credit or financial accommodations will be to the direct and
indirect interest, advantage and benefit of WALKER ENTERPRISES, LLLP, a
Colorado limited liability limited partnership (“Pledgor”), and to induce Lender
to make such extensions of credit or financial accommodations to Borrower,
Pledgor does hereby convey and grant a security interest to Lender in accordance
with the terms set forth below in this Pledge Agreement (this “Pledge
Agreement”).

     

    1.           Pledge.  Pledgor
hereby delivers, pledges and grants a continuing security interest to Lender in
all of Pledgor’s right, title and interest in, to and under the following
(collectively, the “Collateral”):  (a) 26.46% of the limited
partnership interests of Buckner Shopping Center, L.P., a Texas limited
partnership (“Issuer”), and any and all additional partnership interests or
other equity interests in Issuer hereafter acquired or obtained by Pledgor to
the extent necessary to cause Lender to have a security interest in 26.46% of
the aggregate outstanding limited partnership interests of Issuer (all such
partnership interests referred to in this clause (a) are collectively referred
to herein as the “Pledged Interest”); (b) any certificates now or hereafter
representing the Pledged Interest; (c) all distributions, dividends, cash,
instruments, options, warrants, rights and other property from time to time
received, receivable or otherwise distributed, in respect of, in exchange for or
upon the conversion, reclassification or other like change of the Pledged
Interest; (d) all rights, privileges, powers, authority, claims and interests of
Pledgor relating to or with respect to the Pledged Interest and the property
referred to in clauses (b) and (c) above, including, without limitation, under
any operating agreement and any other organizational document of Borrower; (e)
all books, records and other documents of Pledgor related to the Pledged
Interests; (f) all general intangibles and investment property constituting,
representing or otherwise evidencing any of the foregoing; and (g) all proceeds
of any of the foregoing.  Pledgor shall forthwith deliver the
Collateral to Lender, together with transfer powers in form and substance
satisfactory to Lender duly executed in blank regarding the
Collateral.  In the event that the Collateral is now or is hereafter
evidenced by any limited partnership interest certificates or other
certificates, Pledgor shall promptly deliver such certificates to
Lender.  Pledgor hereby covenants and agrees that it shall not sell,
transfer or otherwise dispose of, or permit any security interest, lien or other
encumbrance to exist with respect to, any of the Collateral (other than the
security interest of Lender contemplated hereby).

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    2.           Obligations
Secured.

     

    (a)           The
pledge and security interest effectuated hereby shall secure the payment and
performance of all of the debts, obligations and liabilities of Jack J. Walker
(“Guarantor”) to Lender, including, without limitation, all obligations of
Guarantor pursuant to that certain Limited Guaranty of Individual by Guarantor
in favor of Lender dated as of January 1, 2009, as amended, restated or
otherwise modified from time to time (the “Guaranty”).  Pledgor
represents and warrants to Lender that Guarantor owns 49% of the outstanding
equity interests of Pledgor and that, as a result of such ownership, Guarantor
owns, indirectly, 26.46% of the equity interests of Issuer.

     

    (b)           Pledgor
hereby authorizes Lender to file at any time and from time to time financing
statements describing the Collateral, and Pledgor shall execute and deliver to
Lender, and Pledgor hereby authorizes Lender to file (with or without Pledgor’s
signature), at any time and from time to time, all amendments to financing
statements, assignments, continuation financing statements, termination
statements, and other documents and instruments, in form reasonably satisfactory
to Lender, as Lender may reasonably request, to effect a transfer of a perfected
first priority security interest in and pledge of the Collateral to Lender
pursuant to the Uniform Commercial Code of the State of Georgia (the “UCC”) and
to continue perfected, maintain the priority of or provide notice of the
security interest of Lender in the Collateral and to accomplish the purposes of
this Pledge Agreement.  Pledgor will cooperate with Lender in
obtaining control (as defined in the UCC) of the Collateral consisting of
investment property.

     

    (c)           Within
15 days following any request by Lender, Pledgor shall take all actions
necessary to cause each operating agreement relating to the Collateral to
provide specifically at all times that: (i) the Pledged Interest is a security
and shall be governed by Article 8 of the UCC; (ii) each certificate
representing the Pledged Interest shall bear a legend to the effect that such
interest is a security and is governed by Article 8 of the UCC; and (iii) no
consent of any member, manager or other Person shall be a condition to the
admission as a member of Borrower of any transferee (including Lender) that
acquires ownership of the Pledged Interest as a result of the exercise by Lender
of any remedy hereunder or under applicable law.  Pledgor will join
with Lender in notifying any third party who has possession of any Collateral of
Lender’s security interest therein and obtaining an acknowledgment from the
third party that is holding the Collateral for the benefit of
Lender.  Pledgor ratifies and authorizes the filing by Lender of any
financing statements filed prior to the date hereof.

     

    3.           Representations and
Warranties.  Pledgor represents and warrants that: (a) all of
the Pledged Interests are fully paid, non-assessable and validly issued; (b) the
Collateral was not issued in violation of any person’s or entity’s preemptive
rights; (c) the Collateral is owned by Pledgor free and clear of any and all
security interests, pledges, options to purchase or sell, redemptions or liens;
(d) Pledgor has rights in, and full power to transfer rights in the Collateral;
(e) no financing statements covering the Collateral are recorded with any state
official or recording or filing office; (f) 54% of the limited partnership
interests of Issuer are owned by Pledgor, and 49% of such 54% (for a net of
26.46% of all limited partnership interests of Issuer) constitutes Collateral
hereunder; (g) none of the Collateral is held or maintained in the form of a
securities entitlement or credited to any securities account; (h) none of the
Collateral is evidenced by certificates or similar documents; (i) Pledgor’s
exact legal name is as set forth in the first paragraph of this Pledge
Agreement; and (j) Pledgor is a Colorado limited liability limited partnership
with an address of 3100 Arapahoe, Suite 301, Boulder,
Colorado  80303.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    4.           Events Of
Default.  An “Event of Default” under this Pledge Agreement
shall occur upon (a) any Default under and as defined in the Loan Agreement, or
(b) any default on the obligations, representations, warranties, covenants or
agreements hereunder or under the Guaranty or any other agreement, instrument or
document executed by Pledgor, Guarantor or Borrower with or in favor of Lender,
or (c) upon any dissolution of Pledgor or any bankruptcy or similar insolvency
event with respect to Pledgor or Guarantor.  Pledgor hereby appoints
Lender as Pledgor’s attorney-in-fact to arrange, upon an Event of Default (but
subject to the notice and timing requirements set forth in Section 7 of the
Guaranty), for a transfer of the Collateral on the books of Borrower to the name
of Lender or to the name of Lender’s nominee.

     

    5.           Voting
Rights.  During the term of this Pledge Agreement, so long as
no Event of Default exists, Pledgor shall have the right to vote the Collateral
on all limited partnership matters for all purposes not inconsistent with the
terms of this Pledge Agreement.  While an Event of Default exists,
Lender shall have, at its discretion, the option to exercise all voting powers
and other rights pertaining to the Collateral.  Lender may, while an
Event of Default exists (but subject to the notice and timing requirements set
forth in Section 7 of the Guaranty), at Lender’s option, transfer or register
the Collateral or any part thereof into its own or its nominee’s
name.

     

    6.           Distributions and
Readjustments.  If during the term of this Pledge Agreement,
any distribution, reclassification, readjustment or other change is declared or
made in the capital structure of Issuer or any option included within the
Collateral is exercised, or both, all new, substituted and additional limited
partnership interests issued to Pledgor by reason of any such change or exercise
shall be delivered to and held by Lender (to the extent necessary to cause
Lender to have a pledge of 26.46% of the aggregate limited partnership interests
of Issuer) under the terms of this Pledge Agreement in the same manner as the
Collateral originally pledged hereunder.  If during the term of this
Pledge Agreement, any dividend or distribution is made on account of the
Collateral, Pledgor shall hold 49% of such dividend or distribution in trust for
Lender, shall segregate it from other property or funds of Pledgor, and
immediately deliver 49% of all such distributions to Lender in the same form
received and in the same manner as the Collateral pledged hereunder for
application to the obligations of Pledgor under the Guaranty.

    


    7.           Warrants and
Rights.  If during the term of this Pledge Agreement, warrants
or any other rights or options shall be issued in connection with the
Collateral, such warrants, rights and options shall be immediately assigned by
Pledgor to Lender to be held under the terms of this Pledge Agreement in the
same manner as the Collateral originally pledged hereunder.

     

    8.           Remedies Upon
Default.  In addition to the other remedies provided for
herein, in the Loan Agreement and the other Loan Documents, or otherwise
available under applicable law, upon and during the continuance of an Event of
Default (but subject to the notice and timing requirements set forth in Section
7 of the Guaranty),

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (a)           Lender
may:

     

    (i)           exercise
with respect to the Collateral any one or more of the rights and remedies
available under the Uniform Commercial Code and other applicable law;
and

     

    (ii)           exercise
all voting powers and other rights pertaining to the Collateral;
and

     

    (iii)           transfer
or register the Collateral or any part thereof into its own or its nominee’s
name; and

     

    (iv)           sell
or otherwise assign, give an option or options to purchase or dispose of and
deliver the Collateral (or contract to do so), or any part thereof, in one or
more parcels at public or private sale or sales, at any exchange, broker’s board
or at any of Lender’s offices or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash, on credit
or for future delivery without assumption of any credit risk, free of any claim
or right of whatsoever kind (including any right or equity of redemption) of
Pledgor, which claim, right and equity are hereby expressly waived and
released.  Lender shall have the right to the extent permitted by
applicable law, upon any such sale or sales, public or private, to purchase the
whole or any part of the Collateral so sold; provided, however, Pledgor shall
not receive any net proceeds, if any, of any such credit sale or future delivery
until cash proceeds are actually received by Lender (which cash proceeds shall
be applied by Lender to the Obligations) and after all Obligations have been
paid in full the balance shall be paid to Pledgor.  In case of any
sale of all or any part of the Collateral on credit or for future delivery, the
Collateral so sold may be retained by Lender until the selling price is paid by
the purchaser thereof, but Lender shall incur no liability in case of the
failure of such purchaser to pay for the Collateral so sold and, in case of such
failure, the Collateral may again be sold as herein provided.

     

    (b)           Any
notice required to be given by Lender of a sale of the Collateral, or any part
thereof, or of any other intended action by Lender, which occurs not less than
five days prior to such proposed action, shall constitute commercially
reasonable and fair notice to Pledgor thereof.  No notification need
be given to Pledgor if Pledgor has signed, after the occurrence of an Event of
Default, a statement renouncing or modifying any right to notification of sale
or other intended disposition.

     

    (c)           Lender
shall not be obligated to make any sale or other disposition of the Collateral,
or any part thereof unless the terms thereof shall, in its sole discretion, be
satisfactory to it.  Lender may, if it deems it reasonable, postpone
or adjourn the sale of any of the Collateral, or any part thereof, from time to
time by an announcement at the time and place of such sale or by announcement at
the time and place of such postponed or adjourned sale, without being required
to give a new notice of sale.  Pledgor agrees that Lender has no
obligations to preserve rights against prior parties to the
Collateral.

     

    (d)           Pledgor
acknowledges and agrees that Lender may comply with limitations or restrictions
in connection with any sale of the Collateral in order to avoid any violation of
applicable law or in order to obtain any required approval of the sale or of the
purchase thereof by any governmental regulatory authority or official and,
without limiting the generality of the foregoing, Pledgor acknowledges and
agrees that Lender may be unable to effect a public sale of any or all the
Collateral by reason of certain prohibitions contained in the federal securities
laws and applicable state securities laws, but may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale
thereof.  Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable to the seller than if such
sale were a public sale.  Notwithstanding any such circumstances,
Pledgor acknowledges and agrees that such compliance shall not result in any
such private sale for such reason alone being deemed to have been made in a
commercially unreasonable manner.  Lender shall not be liable or
accountable to Pledgor or Borrower for any discount allowed by reason of the
fact that the Collateral is sold in compliance with any such limitation or
restriction.  Lender shall not be under any obligation to delay a sale
of any of the Collateral for the period of time necessary to permit the issuer
of such securities to register such securities for public sale under the federal
securities laws, or under applicable state securities laws, even if the issuer
desires, requests or would agree to do so.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (e)           Any
cash held by Lender as 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 Collateral may, in the discretion of Lender, be held by Lender as
Collateral for the Obligations and then or at any time thereafter applied,
without any marshalling of rights, remedies or assets, and after payment of any
amounts payable to Lender hereunder, and after deducting all reasonable costs
and expenses of every kind in connection with the care, safekeeping, collection,
sale, delivery or otherwise of any or all of the Collateral or in any way
relating to the rights of Lender hereunder (including attorneys’ fees and
disbursements), to the payment or reduction of the Obligations.  Any
surplus of such cash or cash proceeds held by Lender and remaining after payment
in full of all the Obligations shall be paid over to Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.

     

    9.           Term.  This
Pledge Agreement shall remain in full force and effect until all actual and
contingent obligations of Guarantor under the Guaranty have been satisfied and
paid in full in immediately available funds.  At the expiration of the
term of this Pledge Agreement, Lender shall return to Pledgor all limited
partnership interest certificates and transfer powers relating to the Pledged
Interest (to the extent the same have been received by Lender).

     

    10.           Successors And
Assigns.  This Pledge Agreement shall be binding upon and inure
to the benefit of Pledgor, Lender, and their respective successors and
assigns.  Lender may sell, assign, transfer and/or grant
participations in any or all of its rights hereunder to any other person, firm,
association or corporation.  Pledgor may not sell, transfer or assign
any of its rights or obligations hereunder without Lender’s prior written
consent.

    


    11.           Construction.  This
Pledge Agreement shall be governed by and construed in accordance with the laws
of the State of Oklahoma, without reference to applicable conflict of law
principles.  All parties consent to the jurisdiction and venue of
Oklahoma courts in connection with the enforcement of any obligation under this
Pledge Agreement.  EACH PARTY WAIVES ITS RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY PARTY HERETO.  Whenever possible, each
provision of this Pledge Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this Pledge
Agreement shall be held to be prohibited or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Pledge Agreement.

     

    12.           Further
Assurances.  Pledgor covenants and agrees that:  (a)
Pledgor will execute and deliver, or cause to be executed and delivered, all
such other powers of attorney, proxies, instruments and documents as Lender may
reasonably request from time to time in order to carry out the provisions and
purposes hereof; (b) Pledgor will take all such other action as Lender may
reasonably request from time to time in order to carry out the provisions and
purposes hereof; (c) the Collateral will remain free and clear of all security
interests and liens throughout the term hereof (except those in favor of
Lender); and (d) Pledgor will forward to Lender, promptly upon receipt, copies
of any information or documents received by Pledgor in connection with the
Collateral.  For purposes of defining security interest perfection,
Pledgor further agrees that any Collateral that is in transit to Lender shall be
deemed to be in Lender’s possession.  Pledgor warrants and represents
that none of the Collateral constitutes margin securities for the purposes of
Regulations T, U or X, and also warrants and represents that none of the
proceeds of any loans made by Lender to Borrower will be used to purchase or
carry any margin stock.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    13.           No
Modification.  This Pledge Agreement may not be modified except
by a writing signed by Pledgor and Lender.

     

    14.           Counterparts.  This
Pledge Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument and agreement.

     

    15.           Section
Headings.  This section headings herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.

     

    16.           Notices.  All
notices, demands and requests that any party is required or elects to give to
any other shall be in writing, or by a telecommunications device capable of
creating a written record, and any such notice shall become effective
(a) upon personal delivery thereof, including, but not limited to, delivery
by overnight mail and courier service, (b) four (4) days after it shall
have been mailed by United States mail, first class, certified or registered,
with postage prepaid, or (c) in the case of notice by such a
telecommunications device, when properly transmitted, in each case addressed to
the party to be notified as follows:

     

    


    If to
Pledgor:                                                                Walker
Enterprises, LLLP

    c/o Jack J. Walker

    2105
11th
Street

    Boulder,
Colorado  80302

    Facsimile
No.:                                                      

    


    If to
Lender
:                                                                FCC,
LLC, d/b/a First Capital

    3520 NW
58th Street

    Oklahoma
City, OK 73112

    Attn.:  John
A. Curtis, Executive Vice President

    Facsimile
No.:  405-917-9660

    


    With a
copy
to:                                                           Stephen
D. Palmer, Esq.

    Greenberg Traurig, LLP

    The Forum

    3290
Northside Parkway, Suite 400

    Atlanta,
Georgia  30327

    Facsimile
No.:  678-553-2261

    


    or to
such other address or facsimile number as each party may designate for itself by
like notice.

    


    17.           No Limitation on Loan
Agreement or Other Loan Documents.  Pledgor hereby acknowledges
and agrees that the obligations of Pledgor hereunder, and the rights and
remedies of Lender hereunder, are in addition to and not in limitation of the
terms and conditions of the Loan Agreement, the Guaranty and the other Loan
Documents.

    


    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    IN
WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of the 15th day
of February, 2010.

    


    PLEDGOR:

    


    WALKER
ENTERPRISES, LLLP

    


    By:                                                                 

    Jack
Jonas Walker, General Partner

     

     

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    ACKNOWLEDGMENT AND AGREEMENT
OF ISSUER

    


    The
undersigned entity (“Issuer”) hereby acknowledges, represents and agrees that:
(i) Issuer has received a true and correct copy of the within and foregoing
Pledge Agreement (the “Agreement”), dated as of February 15, 2010; (ii) the
Agreement has been duly recorded and noted on the books and records of Issuer
and will be maintained as part of such books and records; (iii) the Agreement
does not violate any term, condition or covenant of the limited partnership
certificate, partnership agreement or other constituent or organizational
documents of Issuer (the “Issuer Agreements”), or of any other agreement to
which Issuer is a party; (iv) Issuer will comply with written instructions
originated by Lender without further consent of Pledgor as the registered owner
of the Collateral; (v) Issuer consents to the execution of the Agreement and to
the assignment, transfer and pledge of the Collateral effected thereby; and (vi)
upon the occurrence and during the continuance of an Event of Default, Issuer
consents to a public or private sale or sales of all or any part of the
Collateral by Lender in accordance with the terms of the Agreement and consents
to each purchaser of all or any part of the Collateral at such sale or sales
becoming a member of Issuer thereby entitled to the same rights and privileges
and subject to the same duties as the owner of such Collateral under the Issuer
Agreements.

    


    Each
capitalized term used herein, unless otherwise defined herein, shall have the
meaning ascribed to such term in the Agreement.

    


    Dated as of February 15,
2010.

     

    


    “ISSUER”:

    


    
      	
               
      

            	
              BUCKNER
      SHOPPING CENTER, L.P.

            


    

    


    
      	
               
      

            	
              By:

            	
              ECPGSeven,
      LLC,

            


    

    a Texas
limited liability company,

    its
General Partner

    


    By:                                                     

    Jack
Jonas Walker, Manager