EXHIBIT 10.13
STOCK PLEDGE AGREEMENT
This agreement entered into as of April 1, 1995, between All American
Group, Inc., a Delaware corporation, Xxxxxxx Xxxxxxxx, Xxx X. Xxxxxxxx, Xxxxx
Xxxxxxxx Xxxx, Xxxxx Xxxxxxx Xxxxxxxx (collectively referred to as
"Pledgor" and sometimes individually referred to as the "Obligors"), and
Host Funding, Inc., a Maryland corporation, ("Pledgee").
1. UNDERLYING FACTS/RECITALS.
1.1 Pursuant to the terms of a Contribution and Assumption
Agreement executed by Pledgor and Pledgee concurrently with this agreement
(the "Contribution and Assumption Agreement"), Pledgor has agreed to
purchase from Pledgee 26.2 fractional shares ("Shares") of the issued and
outstanding voting common stock of Host Funding, Inc., a Maryland corporation
(the "Company").
1.2 As payment for the purchase price of such Shares, each of
the Obligors has agreed to execute and deliver to Pledgee a promissory note
("Note") dated the same date as this agreement, in the principal sum of
$1,805,675.
1.3 In consideration of Pledgee's execution of the Contribution
and Assumption Agreement and acceptance of the Note, Pledgor has agreed to
secure the Note by a pledge of the Shares. Pledgee is willing to secure the
Note by a pledge of the Shares. Pledgee is willing to accept the Note as
payment for the Shares, if payment of the Note is secured by Pledgor's pledge
of the Shares.
2. PLEDGE OF SHARES. Pledgor hereby grants to Pledgee a security
interest in the Shares, together with all additional shares issued to Pledgor
by reason of a stock split or stock dividend, which additional shares are
related to the Shares. Any
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additional shares deposited by Pledgor with the Pledgeholder named below for
the benefit of Pledgee shall be immediately subject to this agreement and
shall be included in the word "Shares" for all purposes of this agreement
with the same force and effect as the original Shares pledged by Pledgor.
3. DEBTS AND OBLIGATIONS. The security interest in the Shares granted
pursuant to this agreement shall secure Pledgor's full and prompt performance
of all terms and payment of all sums required under the Note.
4. PLEDGEHOLDER, DELIVERY OF SHARE CERTIFICATES.
4.1 Pledgor and Pledgee hereby designate Hotel Mortgage
Resources, Inc., a Delaware corporation, to act as the pledgeholder
("Pledgeholder") of the Shares during the term of this agreement. Except as
provided above, Pledgeholder may be changed only upon the mutual consent of
the parties. Concurrently with the execution of the Note and this agreement,
Pledgor shall deliver to Pledgeholder a certificate registered in the name of
Pledgor with a separate stock assignment form endorsed in blank and undated
evidencing the Shares to be held by Pledgeholder in accordance with the terms
of this agreement. Pledgor agrees to deposit with Pledgeholder in the same
manner all additional share certificates evidencing additional Shares which
may from time to time be issued by Company to Pledgor during the term of this
agreement.
4.2 Pledgeholder is not the agent of Pledgee or Pledgor and is
not responsible for knowing or interpreting any provision of the Note or this
agreement. Pledgeholder shall perform its duties and obligations under this
agreement only upon receipt of written instructions of either Pledgee or
Pledgor, as the case may be, or their authorized agents or representatives.
Copies of all instructions delivered to Pledgeholder shall concurrently be
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delivered to the noninstructing party at its address set forth below.
4.3 In the event Pledgeholder receives conflicting instructions
or demands or an objection to any one set of instructions, Pledgeholder shall
immediately notify the parties of such conflict or objection and shall take
no action of any nature whatsoever so long as such conflict or objection
continues. In so doing, Pledgeholder shall not be or become liable for any
damages to the parties for Pledgeholder's failure to comply with conflicting
demands or instructions. Pledgeholder shall continue to refrain from taking
any action until all differences have been resolved by the mutual agreement
of the parties, a copy of which shall be delivered to Pledgeholder, or until
the rights of the parties have been finally adjudicated in a court of proper
jurisdiction. In the event the parties are unable to resolve such differences
within a reasonable period of time, Pledgeholder, at its sole discretion and
at the expense of the parties, shall have the right, but not the obligation,
to file a suit in interpleader or for a declaratory judgment for the purpose
of having the respective rights of the parties adjudicated in respect to this
agreement and Shares held by Pledgeholder. The parties jointly and
severally agree to pay all costs, expenses and reasonable attorneys' fees
incurred by Pledgeholder in connection with the resolution of such
differences, and in any resulting interpleader proceeding; provided, however,
the prevailing party in any such action shall have the right to reimbursement
from the other party for all costs and expenses including attorneys' fees
paid by such prevailing party to the Pledgeholder pursuant to this agreement.
4.4 The parties shall jointly and severally indemnify, defend
and hold the Pledgeholder harmless from and against any and all claims,
losses and liabilities, including attorneys' fees, arising out of or in
connection with serving as Pledgeholder, provided, however, that Pledgeholder
shall not be indemnified for bad faith or intentional misconduct.
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5. DIVIDEND AND VOTING RIGHTS. The parties agree so long as there is
no default in payment of the Note or a default under this agreement, the
dividend and voting rights for the Shares shall be as follows:
a. All cash or property dividends paid with respect to the
Shares shall be paid to Pledgor;
b. The Shares shall be held of record by Pledgor.
6. DEFAULT. The occurrence of any one of the following events shall
constitute an event of default under this agreement:
6.1 Pledgor's failure to pay any indebtedness secured hereby
in accordance with its terms, and such failure continues for a period of more
than thirty (30) days after written notice by Secured Party to Debtor.
6.2 A court of competent jurisdiction enters a decree or order
for relief in favor of Pledgor in any involuntary case under applicable
bankruptcy, insolvency or similar law, state or federal, now or hereinafter
in effect or a decree or order appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of Pledgor or for any
substantial part of the assets or property of Pledgor, or ordering the
winding-up or liquidation of the affairs of Pledgor, and such decree or order
remains unstayed and in effect for a period of sixty (60) consecutive days,
or Pledgor commences a voluntary case under any applicable bankruptcy,
insolvency, or similar law, state or federal, now or hereafter in effect, or
consents to the entry of an order for relief in any involuntary case under
any such law, or consents to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian sequestrator (or similar
official) of Pledgor or for any substantial part of the assets or
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property of Pledgor, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its or his debts in the ordinary
course or as they become due, or shall take any action in furtherance of any
of the foregoing;
6.3 Pledgor's failure to perform or cause to be performed any
term or covenant of this agreement to be performed by Pledgor, or to
discharge or cause to be discharged any liability to Pledgee; or
6.4 The occurrence or any event of default by Pledgor under
the Note.
7. REMEDIES. Upon the occurrence of any event of default, Pledgee may
exercise any and all rights and remedies available to Pledgee under the
California Commercial Code or other applicable laws, except as limited in
this paragraph or the terms of the Note, including without limitation the
right to:
7.1 Accelerate the maturity of any indebtedness secured by
this agreement and any other obligations of Pledgor to Pledgee, regardless of
the terms of any promissory note or instrument evidencing the same; or
7.2 Either in person or by agent with or without bringing any
action or proceeding, or by a receiver to be appointed by a court, take
possession of all or part of the Shares.
Any notice of sale, disposition of other intended action by Pledgee sent
to Pledgor at least five (5) days prior to such action shall constitute
reasonable notice to Pledgor. Pledgor expressly waives all rights to
possession of the Shares after an event of default which has not been cured
within the time allowed by Pledgee, and all claims for injuries suffered as a
result of any damage or loss caused by entry or repossession. Pledgee and
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Pledgor agree that Pledgee's sole remedy with respect to a default by Pledgor
under this agreement shall be retention of the Shares in full satisfaction of
the indebtedness and performance secured by this agreement and that Pledgee
shall not have any rights against Pledgor for any deficiency remaining after
sale or other disposition or repossession of the Shares.
8. TERMINATION. This agreement shall terminate when all obligations of
Pledgor under the terms of the Note have been performed in full and Pledgor
is not otherwise in breach or default under the Note or this agreement.
Immediately upon termination of this agreement, Pledgeholder shall deliver,
or cause to be delivered to Pledgor any share certificates evidencing any
Shares held by Pledgeholder for the benefit of Pledgee pursuant to the terms
of this agreement.
9. MISCELLANEOUS.
9.1 ATTORNEY'S FEES. If either party commences or is made a
party to any litigation, arbitration, mediation or other judicial or
administrative proceeding ("proceeding") for interpleader or to enforce,
interpret or obtain a declaration of rights under this agreement, the
prevailing party in such proceedings shall be entitled to recover from the
other party all attorneys' fees, costs (whether otherwise taxable or
recoverable) and expenses incurred in connection with such proceeding or any
appeal or enforcement of any judgment obtained in any such proceeding,
including, without limitation, fees incurred in connection with post-judgment
motions, contempt proceedings, garnishment, levy, debtor and third party
examinations, discovery and bankruptcy litigation. Any judgment or order
entered in any proceeding shall contain a specific provision providing for
the recovery of attorneys' fees and costs incurred in enforcing such
judgment or order. This attorneys' fees provisions is intended to be
severable from the other provisions of this agreement, shall
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survive any judgment or order entered in any proceeding and shall not be
deemed merged into any such judgment or order.
9.2 NOTICES. All notices, requests, demands and other
communications under this agreement shall be in writing and shall be deemed
duly given (i) on the date of delivery if personally delivered, (ii) one
business day after delivery by overnight courier, telegram or facsimile, or
(iii) three business days after mailing if mailed by first-class mail,
postage prepaid, to the parties at their addresses set forth below, or such
other address designated from time to time in writing by such party to all
other parties.
9.3 AMENDMENT AND WAIVER. This agreement may be amended only
by a written agreement signed by all parties to this agreement. Waiver of
any provision of this agreement shall not be deemed or constitute a waiver of
any other provision, nor shall such waiver constitute a continuing waiver.
9.4 SUCCESSORS AND ASSIGNS. This agreement shall be binding
upon and inure to the benefit of the parties and their respective heirs,
beneficiaries, legal representatives, successors and assigns.
9.5 COUNTERPARTS. This agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument.
9.6 GOVERNING LAW AND SEVERABILITY. This agreement shall be
governed by and construed under the laws of the State of California. If any
provision of this agreement is invalid or contravenes California law, such
provision shall be deemed not to be a part of this agreement and shall not
affect the validity or enforceability of the remaining provisions.
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9.7 ENTIRE AGREEMENT. This agreement represents the entire
agreement between the parties with respect to the subject matter set forth
above, and supersedes all previous oral and written agreements,
communications, representations or commitments.
9.8 FURTHER ASSURANCES. The parties covenant and agree that
they will execute such other and further instruments and documents as are or
may become necessary or convenient to effectuate and carry out this agreement.
9.9 TIME. Time is of the essence under this agreement.
9.10 CONSTRUCTION. This agreement has been negotiated at arms
length and each party has been represented by legal counsel. Accordingly,
any rule of law (including without limitation California Civil code Section
1654) or legal decision that would require interpretation of any ambiguities
in this agreement against the party drafting it is not applicable and is
waived. The provisions of this agreement shall be interpreted in a
reasonable manner to effect the intent of the parties and the purpose of this
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement on
the date first hereinabove written.
PLEDGOR:
THE ALL AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ XXX X. XXXXXXXX
----------------------------------------------------------
XXX X. XXXXXXXX, Its President
/s/ XXXXXXX XXXXXXXX
----------------------------------------------------------------
XXXXXXX XXXXXXXX
/s/ XXX X. XXXXXXXX
----------------------------------------------------------------
XXX X. XXXXXXXX
/s/ XXXXX XXXXXXXX XXXX
----------------------------------------------------------------
XXXXX XXXXXXXX KING
/s/ XXXXX XXXXXXX XXXXXXXX
----------------------------------------------------------------
XXXXX XXXXXXX XXXXXXXX
Address: X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
PLEDGEE:
HOST FUNDING, INC.
a Maryland corporation
By: /s/ XXX X. XXXXXXXX
----------------------------------------------------------
XXX XXXXXXXX, Its President
Address: X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
PLEDGEHOLDER:
HOTEL MORTGAGE RESOURCES, INC.
a Delaware corporation
By: /s/ XXX XXXXXXX-XXXXX
----------------------------------------------------------
XXX XXXXXXX-XXXXX, Chief Executive Officer
Address: 0000 Xxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
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AMENDMENT TO PLEDGE AGREEMENT
THIS AMENDMENT ("Amendment") is entered into and is effective on this
28th day of September, 1995, by and between Host Funding, the Obligor the
Note entered into between the Obligor and Host Funding on April 1, 1995, with
reference to the following facts:
A. On March 31, 1995, Obligor executed the Note in the amount of
$1,805,675, payable to the order of AAG, which Note was subsequently assigned
to Host Funding on April 1, 1995 by AAG in exchange for the Received Shares.
B. Pursuant to the Financing Agreement, effective March 31, 1995,
Obligor caused four (4) Mortgages on the Qualified Real Property to be
conveyed as collateral for the obligations contained in the Financing
Agreement and the Note.
C. The purpose of this Amendment is to amend the Pledge Agreement in
accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as that the Pledge Agreement shall be amended by the addition of
the following new paragraph 1.4:
1.4 Upon closing of the transactions referred to as the "Formation
Transactions" in the Host Funding Form S-4 (Registration No. 33-60011 as
originally filed on June 6, 1995) and the Host Funding Form S-11
(Registration No. 33-92772 as originally filed on May 26, 1995), the term
"Shares" shall no longer mean the 26.2 Fractional Shares as defined above,
but rather shall mean 140,000 shares of Class B Common Stock and 140,000
shares of Class C Common Stock of Host Funding.
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PLEDGOR:
THE ALL AMERICAN GROUP, INC.
a Delaware corporation
By: /s/ XXX X. XXXXXXXX
----------------------------------------------------------
XXX X. XXXXXXXX, Its President
/s/ XXXXXXX XXXXXXXX
----------------------------------------------------------------
XXXXXXX XXXXXXXX
/s/ XXX X. XXXXXXXX
----------------------------------------------------------------
XXX X. XXXXXXXX
/s/ XXXXX XXXXXXXX KING
----------------------------------------------------------------
XXXXX XXXXXXXX XXXX
/s/ XXXXX XXXXXXX XXXXXXXX
----------------------------------------------------------------
XXXXX XXXXXXX XXXXXXXX
Address: X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
PLEDGEE:
HOST FUNDING, INC.
a Maryland corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------------------------
XXXXXXX X. XXXXXXX, Its President
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 7522
PLEDGEHOLDER:
HOTEL MORTGAGE RESOURCES, INC.
a Delaware corporation
By: /s/ XXX XXXXXXX-XXXXX
----------------------------------------------------------
XXX XXXXXXX-XXXXX, Chief Executive Officer
Address: 0000 Xxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
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