1
Exhibit 10.20
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of March 7, 2000, made by CONSTRUCTION
PORTFOLIO FUNDING, INC., a Texas corporation (the "PLEDGOR"), in favor of XXXXX
X. XXXXXX (the "SECURED PARTY").
W I T N E S S E T H:
WHEREAS, the Pledgor is the legal and beneficial owner of the Pledged
Notes (as hereinafter defined);
WHEREAS, on the date hereof, Pledgee is making a $300,000 loan to
Pledgor (the "LOAN"), and such loan is evidenced by a certain Promissory Note of
even date herewith in the principal amount of $300,000 issued by Pledgor to
Pledgee (the "NOTE");
WHEREAS, Pledgee is making the Loan in reliance on Pledgor's commitment
to enter into and perform its obligations under this Agreement.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Pledgor
hereby agrees for the benefit of Secured Party, and his successors, transferees,
assigns, heirs and personal representatives, as follows:
1. DEFINED TERMS. Unless otherwise defined herein, the following terms
shall have the following meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of Texas.
"Collateral" means the Pledged Notes, and all Proceeds of the
Pledged Notes.
"Event of Default" shall have the meaning given such term in
the Note.
"Obligations" means the obligations of the Pledgor under the
Note (including, without limitation, interest accruing after the maturity of the
Note and interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Pledgor whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) and all other obligations and liabilities of the
Pledgor to the Secured Party, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Pledge Agreement
(including, without limitation, all fees and disbursements of counsel to the
Secured Party that are required to be paid by the Pledgor pursuant to the terms
of this Pledge Agreement).
2
"Pledge Agreement" means this Pledge Agreement, as amended,
supplemented or otherwise modified form time to time.
"Pledged Notes" means the promissory notes listed on Schedule
A hereto.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(1) of the Code on the date hereof and, in any event, shall
include, without limitation, all interest or other income from the Pledged
Notes, collections thereon or distributions with respect thereto.
2. PLEDGE, GRANT OF SECURITY INTEREST. The Pledgor hereby delivers to
the Secured Party the Pledged Notes and hereby grants to the Secured Party a
first security interest in the Collateral, as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity by
acceleration or otherwise) of the Obligations.
3. ALLONGE; PAYMENTS ON PLEDGED NOTES.
(a) Concurrently with the delivery to the Secured Party of the
Pledged Notes to the Secured Party, the Pledgor shall deliver an undated
Allonges collaterally assigning the Pledged Notes to the Secured Party.
(b) The Secured Party shall (i) be entitled to receive all
principal, interest and other payments made under the Pledged Notes until the
Obligations have been paid in full and (ii) apply the same to the payment of the
Obligations.
4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants
that:
(a) the Pledgor has the power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant the
lien on the Collateral pursuant to, this Pledge Agreement;
(b) this Pledge Agreement constitutes a legal, valid and
binding obligation of the Pledgor enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' right generally, (ii) general equitable principles (whether
enforcement is sought by proceedings in equity or at law), and (iii) by the need
to make filings with or obtain the consent of any governmental authority to
enforce rights under this Pledge Agreement;
2
3
(c) the execution, delivery and, except for filings and
consents necessary for the enforcement of rights under this Pledge Agreement by
the Secured Party, performance of this Pledge Agreement will not violate any
provision of any requirement of law or contractual obligation of the Pledgor and
will not result in the creation or imposition of any lien on any of the
properties or revenues of the Pledgor pursuant to any requirement of law or
contractual obligation, except as contemplated hereby;
(d) no litigation, investigation or proceeding of or before
any arbitrator or governmental authority is pending or, to the knowledge of the
Pledgor, threatened by or against the Pledgor or against any of its properties
or revenues with respect to this Pledge Agreement or any of the transactions
contemplated hereby;
(e) the Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Notes, free of any and all liens or
options in favor of, or claims of, any other person, except the lien created by
this Pledge Agreement; and
(f) upon delivery to the Secured Party of the Pledged Notes,
the lien granted pursuant to this Pledge Agreement will constitute a valid,
perfected first priority lien on the Collateral, enforceable as such against all
creditors of the Pledgor and any persons purporting to purchase any Collateral
from the Pledgor.
5. COVENANTS. The Pledgor covenants and agrees with the Secured Party
that, from and after the date of this Pledge Agreement until the Obligations are
paid in full:
(a) Without the prior written consent of the Secured Party,
which consent shall not be unreasonably withheld, the Pledgor will not (i) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (ii) create, incur or permit to exist any lien or
option in favor of, or any claim of any person with respect to, any of the
Collateral, or any interest therein, except for the lien provided for by this
Pledge Agreement. The Pledgor will defend the right, title and interest of the
Secured Party in and to the Collateral against the claims and demands of all
persons whomsoever.
(b) At any time and from time to time, upon the written
request of the Secured Party, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Secured Party may reasonably
request for the purposes of obtaining or preserving the full benefits of this
Pledge Agreement and of the rights and powers herein granted including, without
limitation, the filing of any financing or continuation statements under the
Uniform Commercial Code in effect in any jurisdiction with respect to the liens
created hereby. The Pledgor also hereby authorizes the Secured Party to file any
such financing or continuation statement without the signature of the Pledgor to
the extent permitted by applicable law. If
3
4
any amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note, other instrument or chattel paper, such
note, instrument or chattel paper shall be immediately delivered to the Secured
Party, to be held as Collateral pursuant to this Pledge Agreement.
6. RIGHTS OF THE SECURED PARTY.
(a) If an Event of Default shall occur and be continuing, the
Secured Party shall be entitled to exercise upon the pledge, lien and security
interest granted hereby with respect to the Collateral in the manner permitted
by law.
(b) The rights of the Secured Party hereunder shall not be
conditioned or contingent upon the pursuit by the Secured Party of any right or
remedy against the Pledgor or against any other person which may be or become
liable in respect of all or any part of the Obligations or against any
collateral security therefor, guarantee therefor or right of offset with respect
thereto. Except as required by applicable law, the Secured Party shall not be
liable for any failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so, nor shall the Secured Party be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of the Pledgor or any other person or to take any other action whatsoever with
regard to the Collateral or any part thereof.
7. REMEDIES. If an Event of Default shall occur and be continuing, the
Secured Party may exercise all rights and remedies of a secured party under the
Code and other applicable law.
8. PRIVATE SALES.
(a) The Pledgor recognizes that the Secured Party may be
unable to effect a public sale of the Pledged Notes, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which 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. The Pledgor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that the private nature of
any such sale shall not render such sale commercially unreasonable. The Secured
Party shall be under no obligation to delay a sale of the Pledged Notes for the
period of time necessary to permit the Pledgor to register such securities for
public sale under the Securities Act, or under applicable state securities laws,
even if the Pledgor would agree to do so.
4
5
(b) Any sale by the Secured Party of any of the Pledged Notes
shall require fifteen (15) business days' prior notice to the Pledgor providing
reasonable details with respect to such sale or, as the case may be, the
procedures for such sale (it being agreed that such notice may run concurrently
with any other notice required by law or hereunder)
(c) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Notes pursuant to this Section 8
valid and binding and in compliance with any and all other applicable
requirements of law.
9. LIMITATION ON DUTIES REGARDING COLLATERAL. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Secured Party deals with
similar securities and property for its own account. The Secured Party shall not
be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or
otherwise.
10. TERMINATION OF AGREEMENT; RETURN OF COLLATERAL. This Agreement
shall terminate upon payment of the Obligations in full. Within three (3)
business days after payment of the Obligations in full, the Secured Party shall
return all of the Collateral and the related Allonges to the Pledgor.
11. POWERS COUPLED WITH AN INTEREST. All authorizations and agencies
herein contained with respect to Allonges delivered pursuant hereto are
irrevocable and powers coupled with an interest.
12. SEVERABILITY. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. SECTION HEADINGS. The section headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14. NO WAIVER; CUMULATIVE REMEDIES. The Secured Party shall not by any
act (except by a written instrument pursuant to Section 15 hereof) be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Secured Party, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall
5
6
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Secured Party would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
15. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW. None
of the terms or provisions of this Pledge Agreement may be amended, supplemented
or otherwise modified except by a written instrument executed by the Pledgor and
the Secured Party, provided that any provision of this Pledge Agreement may be
waived by the Secured Party in a letter or agreement executed by the Secured
Party or by telex or facsimile transmission from the Secured Party. This Pledge
Agreement shall be binding upon the successors and assigns of the Pledgor and
shall inure to the benefit of the Secured Party and his successors, and assigns,
heirs and personal representatives. This Pledge Agreement shall be governed by,
and construed and interpreted in accordance with, the laws of the State of Utah.
16. NOTICES. Notices by the Secured Party may be given by mail, by
private courier by telex or by facsimile transmission, (such facsimile
transmission to be confirmed by telephone) addressed or transmitted to the
Pledgor at his address or transmission number set forth below and shall be
effective upon receipt (which may be evidenced in any customary manner). The
Pledgor may change its address and transmission number by written notice to the
Secured Party.
To Secured Party: Xxxxx X. Xxxxxx
c/o Mortgage Portfolio Services, Inc.
LBJ Financial Center
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Pledgor: Construction Portfolio Funding, Inc.
c/o NAB Asset Corporation
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000)000-0000
Telecopy: (000) 000-0000
6
7
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
PLEDGOR:
CONSTRUCTION PORTFOLIO FUNDING, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Executive Vice-President
SECURED PARTY:
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
7
8
SCHEDULE A
LIST OF PLEDGED NOTES
BORROWER LOAN NUMBER TYPE NOTE DATE MATURITY LOAN AMOUNT PRINCIPAL BAL.
-------- ----------- ---- --------- -------- ----------- --------------
Normandy, Inc. 5802626456 1 3 06/10/99 06/11/00 300,000.00 300,000.00
Desert Communities, Inc. 5802706471 7 Sold 07/13/99 01/13/00 122,962.00 88,844.81
Xxxxxx/The Granada Hills Partnership 5802596436 20 Sold 05/12/99 02/12/00 171,067.00 140,355.25
Xxxxxx/The Granada Hills Partnership 5802596496 6 Spec 08/03/99 02/03/00 223,669.00 213,122.88
Pacific Construction, Inc. 5801496074 1 Spec 10/12/98 10/12/99 203,376.00 164,010.35
Xxxxxx Construction, Inc. 5802496356 1 A&D 01/27/99 01/27/00 261,000.00 99,081.65
1,282,074.00 1,005,414.94
8
