EXHIBIT 10.9(d)
PLEDGE AGREEMENT
[BANK ACCOUNT]
THIS PLEDGE AGREEMENT ("AGREEMENT") is made as of the 2ND DAY OF APRIL,
1997, by HOMEOWNERS MORTGAGE & EQUITY, INC., A DELAWARE CORPORATION, D/B/A HOME,
INC. (hereinafter called "PLEDGOR", whether one or more), in favor of GUARANTY
FEDERAL BANK, F.S.B. ("BANK" or "SECURED PARTY"). Pledgor hereby agrees with
Bank as follows:
1. DEFINITIONS. As used in this Agreement, terms not defined herein shall
have the definitions contained in the Loan Agreement executed by and between
Borrower and Bank dated June 1, 1996 (together with all amendments, the "LOAN
AGREEMENT"). The following terms shall have the meanings indicated below:
(a) The term "BORROWER" shall mean HOMEOWNERS MORTGAGE & EQUITY, INC.,
A DELAWARE CORPORATION, D/B/A HOME, INC.
(b) The term "CODE" shall mean the Uniform Commercial Code as in effect
in the State of Texas on the date of this Agreement or as it may hereafter
be amended from time to time.
(c) The term "COLLATERAL" shall mean all THE BANK ACCOUNTS SPECIFICALLY
DESCRIBED ON SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF. The term
Collateral, as used herein, shall also include (i) all certificates,
instruments and/or other documents evidencing the foregoing and all cash or
monies contained in any bank accounts, (ii) all bank accounts and
certificates of deposit which are renewals, replacements and substitutions
of all of the foregoing, (iii) all Additional Property (as hereinafter
defined), (iv) and all PROCEEDS of all of the foregoing. The designation of
proceeds does not authorize Pledgor to sell, transfer or otherwise convey
any of the foregoing property. The delivery at any time by Pledgor to
Secured Party of any property as a pledge to secure payment or performance
of any indebtedness or obligation whatsoever shall also constitute a pledge
of such property as Collateral hereunder.
(d) The term "INDEBTEDNESS" shall mean:
(i) all indebtedness, obligations and liabilities of Borrower to
Secured Party of any kind or character relating to that certain
Promissory Note (together with all modifications and amendments
thereto, the "NOTE") executed by Borrower payable to the order of Bank
dated June 1, 1996 in the stated amount of $2,000,000.00 (INCREASED BY
SUBSEQUENT MODIFICATIONS TO $15,000,000.00), now existing or hereafter
arising, whether direct, indirect, related, fixed, contingent,
liquidated, unliquidated, joint, several or joint and several, (ii) all
accrued but unpaid interest on any of the indebtedness described in (i)
above, (iii) all obligations of Borrower to Secured Party under any
documents evidencing, securing, governing and/or pertaining to all or
any part of the indebtedness described in (i) and (ii) above, (iv) all
costs and expenses incurred by Secured Party in connection with the
collection and administration of all or any part of the indebtedness
and obligations described in (i), (ii) and (iii) above or the
protection or preservation of, or realization upon, the collateral
securing all or any part of such indebtedness and obligations,
including without limitation all reasonable attorneys' fees, and (v)
all renewals, extensions, amendments, modifications, increases and
rearrangements of the indebtedness and obligations described in (i),
(ii), (iii) and (iv) above.
(e) The term "LOAN DOCUMENTS" shall mean all instruments and documents
evidencing, securing, governing, guaranteeing and/or pertaining to the
Indebtedness.
PLEDGE AGREEMENT - PAGE 1
(f) The term "OBLIGATED PARTY" shall mean any party other than
Borrower who secures, guarantees and/or is otherwise obligated to pay all
or any portion of the Indebtedness.
(g) The term "SECURED PARTY" shall mean Bank, its successors and
assigns, including without limitation, any party to whom Bank, or its
successors or assigns, may assign its rights and interests under this
Agreement.
All words and phrases used herein which are expressly defined in Section 1.201,
Chapter 8 or Chapter 9 of the Code shall have the meaning provided for therein.
Other words and phrases defined elsewhere in the Code shall have the meaning
specified therein except to the extent such meaning is inconsistent with a
definition in Section 1.201, Chapter 8 or Chapter 9 of the Code.
2. SECURITY INTEREST. As security for the Indebtedness, Pledgor, for
value received, hereby grants to Secured Party a continuing security interest in
the Collateral and pledges the Collateral to Secured Party.
3. ADDITIONAL PROPERTY. Collateral shall also includes the following
property (collectively, the "ADDITIONAL PROPERTY") which Pledgor becomes
entitled to receive or shall receive in connection with any other Collateral:
(a) any replacement bank accounts or certificates of deposit, the holder's right
to payment of interest, and (b) any interest or principal payments; provided,
however, that until the occurrence of an Event of Default (as hereinafter
defined), Pledgor shall be entitled to receive all interest paid on the
Collateral. All Additional Property received by Pledgor shall be received in
trust for the benefit of Secured Party. All Additional Property and all
certificates or other written instruments or documents evidencing and/or
representing the Additional Property that is received by Pledgor, together with
such instruments of transfer as Secured Party may request, shall immediately be
delivered to or deposited with Secured Party and held by Secured Party as
Collateral under the terms of this Agreement. Secured Party shall be deemed to
have possession of any Collateral in transit to Secured Party or its agent.
4. MAINTENANCE OF COLLATERAL. Other than the exercise of reasonable care
to assure the safe custody of any Collateral in Secured Party's possession from
time to time, Secured Party does not have any obligation, duty or responsibility
with respect to the Collateral. Without limiting the generality of the
foregoing, Secured Party shall not have any obligation, duty or responsibility
to do any of the following: (a) ascertain any maturities, calls, conversions,
exchanges, offers, tenders or similar matters relating to the Collateral or
informing Pledgor with respect to any such matters; (b) fix, preserve or
exercise any right, privilege or option (whether conversion, redemption or
otherwise) with respect to the Collateral unless (i) Pledgor makes written
demand to Secured Party to do so, (ii) such written demand is received by
Secured Party in sufficient time to permit Secured Party to take the action
demanded in the ordinary course of its business, and (iii) Pledgor provides
additional collateral, acceptable to Secured Party in its sole discretion; (c)
collect any amounts payable in respect of the Collateral (Secured Party being
liable to account to Pledgor only for what Secured Party may actually receive or
collect thereon); (d) sell all or any portion of the Collateral to avoid market
loss; (e) sell all or any portion of the Collateral unless and until (i) Pledgor
makes written demand upon Secured Party to sell the Collateral, and (ii) Pledgor
provides additional collateral, acceptable to Secured Party in its sole
discretion; or (f) hold the Collateral for or on behalf of any party other than
Pledgor.
5. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants the following to Secured Party:
(a) DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and all of the other Loan Documents by Pledgor have been duly
authorized by all necessary corporate action of Pledgor, to the extent
Pledgor is a corporation, or by all necessary partnership action, to the
extent Pledgor is a partnership.
PLEDGE AGREEMENT - PAGE 2
(b) ENFORCEABILITY. This Agreement and the other Loan Documents
constitute legal, valid and binding obligations of Pledgor, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the
enforcement of creditors' rights and except to the extent specific remedies
may generally be limited by equitable principles.
(c) OWNERSHIP AND LIENS. Pledgor has good and marketable title to the
Collateral free and clear of all liens, security interests, encumbrances or
adverse claims, except for the security interest created by this Agreement.
No dispute, right of setoff, counterclaim or defense exists with respect to
all or any part of the Collateral. Pledgor has not executed any other
security agreement currently affecting the Collateral and no financing
statement or other instrument similar in effect covering all or any part of
the Collateral is on file in any recording office except as may have been
executed or filed in favor of Secured Party. PLEDGOR SHALL OBTAIN FROM
FROST NATIONAL BANK, AUSTIN, TEXAS THE BAILMENT AGREEMENT IN THE FORM
ATTACHED HERETO AS EXHIBIT "B" WHICH CONTAINS A WAIVER OF LIENS, SECURITY
INTERESTS AND OFFSET RIGHTS.
(d) NO CONFLICTS OR CONSENTS. Neither the ownership, the intended use
of the Collateral by Pledgor, the grant of the security interest by Pledgor
to Secured Party herein nor the exercise by Secured Party of its rights or
remedies hereunder, will (i) conflict with any provision of (A) any
domestic or foreign law, statute, rule or regulation, (B) the articles or
certificate of incorporation, charter, bylaws or partnership agreement, as
the case may be, of Pledgor, or (C) any agreement, judgment, license, order
or permit applicable to or binding upon Pledgor or otherwise affecting the
Collateral, or (ii) result in or require the creation of any lien, charge
or encumbrance upon any assets or properties of Pledgor or of any person
except as may be expressly contemplated in the Loan Documents. Except as
expressly contemplated in the Loan Documents, no consent, approval,
authorization or order of, and no notice to or filing with, any court,
governmental authority or third party is required in connection with the
grant by Pledgor of the security interest herein or the exercise by Secured
Party of its rights and remedies hereunder.
(e) SECURITY INTEREST. Pledgor has and will have at all times full
right, power and authority to grant a security interest in the Collateral
to Secured Party in the manner provided herein, free and clear of any lien,
security interest or other charge or encumbrance. This Agreement creates a
legal, valid and binding security interest in favor of Secured Party in the
Collateral.
(f) LOCATION. Pledgor's residence or chief executive office, as the
case may be, and the office where the records concerning the Collateral are
kept is located at its address set forth on the signature page hereof.
(g) SOLVENCY OF PLEDGOR. As of the date hereof, and after giving
effect to this Agreement and the completion of all other transactions
contemplated by Pledgor at the time of the execution of this Agreement, (i)
Pledgor is and will be solvent, (ii) the fair saleable value of Pledgor's
assets exceeds and will continue to exceed Pledgor's liabilities (both
fixed and contingent), (iii) Pledgor is and will continue to be able to pay
its debts as they mature, and (iv) if Pledgor is not an individual, Pledgor
has and will have sufficient capital to carry on Pledgor's businesses and
all businesses in which Pledgor is about to engage.
(h) NATURE OF OWNERSHIP. Pledgor is the registered owner of the
securities pledged as Collateral and a certificate has been issued in
Pledgor's name to evidence Pledgor's ownership in such securities.
(i) CHATTEL PAPER, DOCUMENTS AND INSTRUMENTS. The security interest
in chattel paper, documents and instruments of Pledgor granted hereunder is
valid and genuine, and all such chattel paper, documents and instruments
have only one original counterpart. No party other than Pledgor or Secured
Party is in actual or constructive possession of any such chattel paper,
documents or instruments.
PLEDGE AGREEMENT - PAGE 3
6. AFFIRMATIVE COVENANTS. Pledgor will comply with the covenants
contained in this Section at all times during the period of time this Agreement
is effective unless Secured Party shall otherwise consent in writing.
(a) OWNERSHIP AND LIENS. Pledgor will maintain good and marketable
title to all Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement and the security interests and other encumbrances expressly
permitted by the other Loan Documents. Pledgor will not permit any dispute,
right of setoff, counterclaim or defense to exist with respect to all or
any part of the Collateral. Pledgor will cause any financing statement or
other security instrument with respect to the Collateral to be terminated,
except as may exist or as may have been filed in favor of Secured Party.
Pledgor will defend at its expense Secured Party's right, title and
security interest in and to the Collateral against the claims of any third
party.
(b) INSPECTION OF BOOKS AND RECORDS. Pledgor will keep adequate
records concerning the Collateral and will permit Secured Party and all
representatives and agents appointed by Secured Party to inspect Pledgor's
books and records of or relating to the Collateral at any time during
normal business hours, to make and take away photocopies, photographs and
printouts thereof and to write down and record any such information.
(c) ADVERSE CLAIM. Pledgor covenants and agrees to promptly notify
Secured Party of any claim, action or proceeding affecting title to the
Collateral, or any part thereof, or the security interest created hereunder
and, at Pledgor's expense, defend Secured Party's security interest in the
Collateral against the claims of any third party. Pledgor also covenants
and agrees to promptly deliver to Secured Party a copy of all written
notices received by Pledgor with respect to the Collateral, including
without limitation, notices received from the issuer of any securities
pledged hereunder as Collateral.
(d) DELIVERY OF INSTRUMENTS AND/OR CERTIFICATES. Contemporaneously
herewith, Pledgor covenants and agrees to deliver to Secured Party any
certificates, documents or instruments representing or evidencing the
Collateral, with Pledgor's endorsement thereon and/or accompanied by proper
instruments of transfer and assignment duly executed in blank with, if
requested by Secured Party, signatures guaranteed by a bank or member firm
of the New York Stock Exchange, all in form and substance satisfactory to
Secured Party. If required by Secured Party, Pledgor also covenants and
agrees to cooperate with Secured Party in registering the pledge of the
securities pledged as Collateral with the issuer of such securities.
(e) FURTHER ASSURANCES. Pledgor will from time to time at its expense
promptly execute and deliver all further instruments and documents and take
all further action necessary or appropriate or that Secured Party may
request in order (i) to perfect and protect the security interest created
or purported to be created hereby and the first priority of such security
interest, (ii) to enable Secured Party to exercise and enforce its rights
and remedies hereunder in respect of the Collateral, and (iii) to otherwise
effect the purposes of this Agreement, including without limitation,
executing and filing such financing or continuation statements, or any
amendments thereto.
(f) GOVERNMENTAL SECURITIES. Pledgor covenants and agrees that with
respect to any securities issued by an agency or department of the United
States pledged as Collateral, Pledgor shall, at Secured Party's request,
cause such securities to be registered in Secured Party's name or with
Secured Party's account maintained with a Federal Reserve Bank.
(g) CHATTEL PAPER, DOCUMENTS AND INSTRUMENTS. Pledgor will take such
action as may be requested by Secured Party in order to cause any chattel
paper, documents or instruments to be valid and enforceable and will
cause all chattel paper to have only one original counterpart. Upon request
by Secured Party, Pledgor will deliver to Secured Party all originals of
chattel paper, documents or instruments and will
PLEDGE AGREEMENT - PAGE 4
xxxx all chattel paper with a legend indicating that such chattel paper is
subject to the security interest granted hereunder.
7. NEGATIVE COVENANTS. Pledgor will comply with the covenants contained
in this Section at all times during the period of time this Agreement is
effective, unless Secured Party shall otherwise consent in writing.
(a) TRANSFER OR ENCUMBRANCE. Pledgor will not (i) sell, assign (by
operation of law or otherwise) or transfer Pledgor's rights in any of the
Collateral, (ii) xxxxx x xxxx or security interest in or execute, file or
record any financing statement or other security instrument with respect to
the Collateral to any party other than Secured Party, or (iii) deliver
actual or constructive possession of any certificate, instrument or
document evidencing and/or representing any of the Collateral to any party
other than Secured Party.
(b) IMPAIRMENT OF SECURITY INTEREST. Pledgor will not take or fail to
take any action which would in any manner impair the value or
enforceability of Secured Party's security interest in any Collateral.
8. RIGHTS OF SECURED PARTY. Secured Party shall have the rights
contained in this Section at all times during the period of time this Agreement
is effective.
(a) POWER OF ATTORNEY. Pledgor hereby irrevocably appoints Secured
Party as Pledgor's attorney-in-fact, such power of attorney being coupled
with an interest, with full authority in the place and stead of Pledgor and
in the name of Pledgor or otherwise, to take any action and to execute any
instrument which Secured Party may from time to time in Secured Party's
discretion deem necessary or appropriate to accomplish the purposes of this
Agreement, including without limitation, the following action: (i) transfer
any securities, instruments, documents or certificates pledged as
Collateral in the name of Secured Party or its nominee; (ii) use any
interest, premium or principal payments, conversion or redemption proceeds
or other cash proceeds received in connection with any Collateral to reduce
any of the Indebtedness; (iii) exchange any of the securities pledged as
Collateral for any other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer
thereof, and, in connection therewith, to deposit and deliver any and all
of such securities with any committee, depository, transfer agent,
registrar or other designated agent upon such terms and conditions as
Secured Party may deem necessary or appropriate; (iv) exercise or comply
with any conversion, exchange, redemption, subscription or any other right,
privilege or option pertaining to any securities pledged as Collateral;
provided, however, except as provided herein, Secured Party shall not have
a duty to exercise or comply with any such right, privilege or option
(whether conversion, redemption or otherwise) and shall not be responsible
for any delay or failure to do so; and (v) file any claims or take any
action or institute any proceedings which Secured Party may deem necessary
or appropriate for the collection and/or preservation of the Collateral or
otherwise to enforce the rights of Secured Party with respect to the
Collateral.
(b) PERFORMANCE BY SECURED PARTY. If Pledgor fails to perform any
agreement or obligation provided herein, Secured Party may itself perform,
or cause performance of, such agreement or obligation, and the expenses of
Secured Party incurred in connection therewith shall be a part of the
Indebtedness, secured by the Collateral and payable by Pledgor on demand.
Notwithstanding any other provision herein to the contrary, Secured Party does
not have any duty to exercise or continue to exercise any of the foregoing
rights and shall not be responsible for any failure to do so or for any delay in
doing so.
9. EVENTS OF DEFAULT. Each of the following constitutes an "EVENT OF
DEFAULT" under this Agreement:
PLEDGE AGREEMENT - PAGE 5
(a) FAILURE TO PAY INDEBTEDNESS. The failure, refusal or neglect of
Borrower to make payment of the Indebtedness or any portion thereof, as the
same shall become due and payable at maturity (whether by acceleration or
otherwise); or
(b) NON-PERFORMANCE OF COVENANTS. The failure of Borrower or any
Obligated Party to timely and properly observe, keep or perform any
covenant, agreement, warranty or condition required herein; provided,
however, with respect to such defaults (other than those specified in
SUBPARAGRAPH 9(a), or 9(c) THROUGH 9(h) for which no notice and opportunity
to cure shall be available unless such opportunity is specifically provided
in such individual subparagraphs), Borrower will have thirty (30) days
after notice of default from Bank within which to cure such default; or
(c) DEFAULT UNDER OTHER LOAN DOCUMENTS. The occurrence of an event of
default under any of the other Loan Documents; or
(d) FALSE REPRESENTATION. Any representation contained herein or in
any of the other Loan Documents made by Borrower or any Obligated Party is
false or misleading in any material respect; or
(e) DEFAULT TO THIRD PARTY. The occurrence of any event which permits
the acceleration of the maturity of any indebtedness owing by Borrower or
any Obligated Party to any third party under any agreement or undertaking;
or
(f) BANKRUPTCY OR INSOLVENCY. If Borrower or any Obligated Party: (i)
becomes insolvent, or makes a transfer in fraud of creditors, or makes an
assignment for the benefit of creditors, or admits in writing its inability
to pay its debts as they become due; (ii) generally is not paying its debts
as such debts become due; (iii) has a receiver or custodian appointed for,
or take possession of, all or substantially all of the assets of such party
or any of the Collateral, either in a proceeding brought by such party or
in a proceeding brought against such party and such appointment is not
discharged or such possession is not terminated within thirty (30) days
after the effective date thereof or such party consents to or acquiesces in
such appointment or possession; (iv) files a petition for relief under the
United States Bankruptcy Code or any other present or future federal or
state insolvency, bankruptcy or similar laws (all of the foregoing
hereinafter collectively called "APPLICABLE BANKRUPTCY LAW") or an
involuntary petition for relief is filed against such party under any
Applicable Bankruptcy Law and such involuntary petition is not dismissed
within sixty (60) days after the filing thereof, or an order for relief
naming such party is entered under any Applicable Bankruptcy Law, or any
composition, rearrangement, extension, reorganization or other relief of
debtors now or hereafter existing is requested or consented to by such
party; (v) fails to have discharged within a period of thirty (30) days any
attachment, sequestration or similar writ levied upon any property of such
party; or (vi) fails to pay within thirty (30) days any final money
judgment against such party; or
(g) EXECUTION ON COLLATERAL. The Collateral or any portion thereof is
taken on execution or other process of law in any action against Pledgor;
or
(h) ACTION BY OTHER LIENHOLDER. The holder of any lien or security
interest on any of the assets of Pledgor, including without limitation, the
Collateral (without hereby implying the consent of Secured Party to the
existence or creation of any such lien or security interest on the
Collateral), declares a default thereunder or institutes foreclosure or
other proceedings for the enforcement of its remedies thereunder.
10. REMEDIES AND RELATED RIGHTS. If an Event of Default shall have
occurred, and without limiting any other rights and remedies provided herein,
under any of the other Loan Documents or otherwise available to Secured Party,
Secured Party may exercise one or more of the rights and remedies provided in
this Section.
PLEDGE AGREEMENT - PAGE 6
(a) REMEDIES. Secured Party may from time to time at its discretion,
without limitation and without notice except as expressly provided in any
of the Loan Documents:
(i) exercise in respect of the Collateral all the rights and
remedies of a secured party under the Code (whether or not the Code
applies to the affected Collateral);
(ii) reduce its claim to judgment or foreclose or otherwise
enforce, in whole or in part, the security interest granted hereunder
by any available judicial procedure;
(iii) sell or otherwise dispose of, at its office, on the
premises of Pledgor or elsewhere, the Collateral, as a unit or in
parcels, by public or private proceedings, and by way of one or more
contracts (it being agreed that the sale or other disposition of any
part of the Collateral shall not exhaust Secured Party's power of
sale, but sales or other dispositions may be made from time to time
until all of the Collateral has been sold or disposed of or until the
Indebtedness has been paid and performed in full), and at any such
sale or other disposition it shall not be necessary to exhibit any of
the Collateral;
(iv) buy the Collateral, or any portion thereof, at any public
sale;
(v) buy the Collateral, or any portion thereof, at any private
sale if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed
standard price quotations;
(vi) apply for the appointment of a receiver for the Collateral,
and Pledgor hereby consents to any such appointment;
(vii) at its option, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Secured Party is
entitled to do so under the Code or otherwise;
(viii) REQUIRE FROST NATIONAL BANK TO WIRE TRANSFER ALL FUNDS IN
SUCH ACCOUNTS TO SECURED PARTY; AND
(ix) NOTIFY ALL MORTGAGORS UNDER NOTES PLEDGED TO SECURED PARTY
TO MAKE ALL FUTURE PAYMENTS DIRECTLY TO SECURED PARTY RATHER THAN TO
BORROWER OR ANY ACCOUNTS OF BORROWER WHETHER OR NOT AT FROST NATIONAL
BANK.
Pledgor agrees that in the event Pledgor is entitled to receive any notice
under the Uniform Commercial Code, as it exists in the state governing any
such notice, of the sale or other disposition of any Collateral, reasonable
notice shall be deemed given when such notice is deposited in a depository
receptacle under the care and custody of the United States Postal Service,
postage prepaid, at Pledgor's address set forth on the signature page
hereof, five (5) days prior to the date of any public sale, or after which
a private sale, of any of such Collateral is to be held. Secured Party
shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. Pledgor further acknowledges and
agrees that the redemption by Secured Party of any certificate of deposit
pledged as Collateral shall be deemed to be a commercially reasonable
disposition under Section 9.504(c) of the Code.
(b) PRIVATE SALE OF SECURITIES. Pledgor recognizes that Secured Party
may be unable to effect a public sale of all or any part of the securities
pledged as Collateral because of restrictions in applicable
PLEDGE AGREEMENT - PAGE 7
federal and state securities laws and that Secured Party may, therefore,
determine to make one or more private sales of any such securities to a
restricted group of purchasers who will be obligated 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 that each any such private sale may be at prices and other
terms less favorable then what might have been obtained at a public sale
and, notwithstanding the foregoing, agrees that each such private sale
shall be deemed to have been made in a commercially reasonable manner and
that Secured Party shall have no obligation to delay the sale of any such
securities for the period of time necessary to permit the issuer to
register such securities for public sale under any federal or state
securities laws. Pledgor further acknowledges and agrees that any offer to
sell such securities which has been made privately in the manner described
above to not less than five (5) bona fide offerees shall be deemed to
involve a "public sale" for the purposes of Section 9.504(c) of the Code,
notwithstanding that such sale may not constitute a "public offering" under
any federal or state securities laws and that Secured Party may, in such
event, bid for the purchase of such securities.
(c) APPLICATION OF PROCEEDS. If any Event of Default shall have
occurred, Secured Party may at its discretion apply or use any cash held by
Secured Party as Collateral, and any cash proceeds received by Secured
Party in respect of any sale or other disposition of, collection from, or
other realization upon, all or any part of the Collateral as follows in
such order and manner as Secured Party may elect:
(i) to the repayment or reimbursement of the reasonable costs
and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Secured Party in connection with (A)
the administration of the Loan Documents, (B) the custody,
preservation, use or operation of, or the sale of, collection from, or
other realization upon, the Collateral, and (C) the exercise or
enforcement of any of the rights and remedies of Secured Party
hereunder;
(ii) to the payment or other satisfaction of any liens and other
encumbrances upon the Collateral;
(iii) to the satisfaction of the Indebtedness;
(iv) by holding such cash and proceeds as Collateral;
(v) to the payment of any other amounts required by applicable
law (including without limitation, Section 9.504(a)(3) of the Code or
any other applicable statutory provision); and
(vi) by delivery to Pledgor or any other party lawfully entitled
to receive such cash or proceeds whether by direction of a court of
competent jurisdiction or otherwise.
(d) DEFICIENCY. In the event that the proceeds of any sale of,
collection from, or other realization upon, all or any part of the
Collateral by Secured Party are insufficient to pay all amounts to which
Secured Party is legally entitled, Borrower and any party who guaranteed or
is otherwise obligated to pay all or any portion of the Indebtedness shall
be liable for the deficiency, together with interest thereon as provided in
the Loan Documents.
(e) NON-JUDICIAL REMEDIES. In granting to Secured Party the power to
enforce its rights hereunder without prior judicial process or judicial
hearing, Pledgor expressly waives, renounces and knowingly relinquishes any
legal right which might otherwise require Secured Party to enforce its
rights by judicial process. Pledgor recognizes and concedes that non-
judicial remedies are consistent with the usage of trade, are responsive to
commercial necessity and are the result of a bargain at arm's length.
Nothing
PLEDGE AGREEMENT - PAGE 8
herein is intended to prevent Secured Party or Pledgor from resorting to
judicial process at either party's option.
(f) OTHER RECOURSE. Pledgor waives any right to require Secured Party
to proceed against any third party, exhaust any Collateral or other
security for the Indebtedness, or to have any third party joined with
Pledgor in any suit arising out of the Indebtedness or any of the Loan
Documents, or pursue any other remedy available to Secured Party. Pledgor
further waives any and all notice of acceptance of this Agreement and of
the creation, modification, rearrangement, renewal or extension of the
Indebtedness. Pledgor further waives any defense arising by reason of any
disability or other defense of any third party or by reason of the
cessation from any cause whatsoever of the liability of any third party.
Until all of the Indebtedness shall have been paid in full, Pledgor shall
have no right of subrogation and Pledgor waives the right to enforce any
remedy which Secured Party has or may hereafter have against any third
party, and waives any benefit of and any right to participate in any other
security whatsoever now or hereafter held by Secured Party. Pledgor
authorizes Secured Party, and without notice or demand and without any
reservation of rights against Pledgor and without affecting Pledgor's
liability hereunder or on the Indebtedness, to (i) take or hold any other
property of any type from any third party as security for the Indebtedness,
and exchange, enforce, waive and release any or all of such other property,
(ii) apply such other property and direct the order or manner of sale
thereof as Secured Party may in its discretion determine, (iii) renew,
extend, accelerate, modify, compromise, settle or release any of the
Indebtedness or other security for the Indebtedness, (iv) waive, enforce or
modify any of the provisions of any of the Loan Documents executed by any
third party, and (v) release or substitute any third party.
(g) INTEREST PAYMENTS. Upon the occurrence of an Event of Default:
(i) all rights of Pledgor to receive and retain the interest
payments which it would otherwise be authorized to receive and retain
pursuant to SECTION 3 shall automatically cease, and all such rights
shall thereupon become vested with Secured Party which shall
thereafter have the sole right to receive, hold and apply as
Collateral such interest payments; and
(ii) all interest payments which are received by Pledgor
contrary to the provisions of clause (i) of this Subsection shall be
received in trust for the benefit of Secured Party, shall be
segregated from other funds of Pledgor, and shall be forthwith paid
over to Secured Party in the exact form received (properly endorsed or
assigned if requested by Secured Party), to be held by Secured Party
as Collateral.
11. INDEMNIFICATION. IN CONSIDERATION OF THE INDEBTEDNESS OWED BY
BORROWER TO SECURED PARTY, PLEDGOR AGREES TO INDEMNIFY AND DEFEND THE SECURED
PARTY AND ANY PERSON DEEMED TO CONTROL THE SECURED PARTY AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, ATTORNEYS, AFFILIATES, AND EMPLOYEES (ANY AND ALL OF WHOM
ARE REFERRED TO AS THE "INDEMNIFIED PARTY") FROM, AND HOLD EACH OF THEM HARMLESS
AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES,
DEFICIENCIES, INTEREST, JUDGMENTS, DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING
BUT NOT LIMITED TO ATTORNEYS' FEES) INCURRED BY THEM OR ANY OF THEM DIRECTLY OR
INDIRECTLY ARISING OUT OF OR BY REASON OF (I) ANY INVESTIGATION, LITIGATION OR
OTHER PROCEEDING BROUGHT OR THREATENED, ARISING OUT OF OR BY REASON OF THE
SECURED PARTY'S EXECUTION OF THIS AGREEMENT OR ANY LOAN DOCUMENT AND THE
TRANSACTION CONTEMPLATED THEREBY, INCLUDING, BUT NOT LIMITED TO, ANY USE
EFFECTED OR PROPOSED TO BE EFFECTED BY BORROWER OF THE PROCEEDS OF ADVANCES,
(II) ANY IMPOUNDMENT, ATTACHMENT OR RETENTION OF ANY OF THE COLLATERAL, AND
(III) ANY REPRESENTATION MADE BY PLEDGOR HEREUNDER OR BORROWER UNDER ANY OF THE
PLEDGE AGREEMENT - PAGE 9
LOAN DOCUMENTS; PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL BE
CONSTRUED AS AN AGREEMENT BY PLEDGOR TO INDEMNIFY AND HOLD THE SECURED PARTY,
ANY PERSON DEEMED TO CONTROL THE SECURED PARTY, OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS OR EMPLOYEES HARMLESS FROM OR AGAINST ANY LOSSES, CLAIMS,
DAMAGES, LIABILITIES, COSTS OR EXPENSES ARISING OUT OF THE GROSS NEGLIGENCE,
WILLFUL MISCONDUCT OR FRAUD OF THE SECURED PARTY, OR ANY OF ITS OFFICERS,
DIRECTORS OR EMPLOYEES. WITHOUT LIMITING ANY PROVISION OF THIS PARAGRAPH, IT IS
THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON OR ENTITY TO BE
INDEMNIFIED HEREUNDER SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY
AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, DEFICIENCIES, INTEREST,
JUDGMENTS, DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO
ATTORNEYS' FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH PERSON OR ENTITY. THE SECURED PARTY SHALL NOT BE RESPONSIBLE
OR LIABLE TO BORROWER, PLEDGOR OR ANY OTHER PERSON OR ENTITY FOR ANY
CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF OR IN CONNECTION WITH
(I), (II) AND (III) LISTED IN THIS PARAGRAPH. PLEDGOR'S OBLIGATIONS UNDER THIS
PARAGRAPH SHALL SURVIVE THE COMMITMENT TERMINATION DATE, NOTWITHSTANDING
ANYTHING TO THE CONTRARY. PLEDGOR SHALL PROVIDE SUCH INDEMNIFICATION AND
DEFENSE UPON WRITTEN NOTICE FROM THE SECURED PARTY.
12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire agreement of
Secured Party and Pledgor with respect to the Collateral. If the parties
hereto are parties to any prior agreement, either written or oral, relating
to the Collateral, the terms of this Agreement shall amend and supersede
the terms of such prior agreements as to transactions on or after the
effective date of this Agreement, but all security agreements, financing
statements, guaranties, other contracts and notices for the benefit of
Secured Party shall continue in full force and effect to secure the
Indebtedness unless Secured Party specifically releases its rights
thereunder by separate release.
(b) AMENDMENT. No modification, consent or amendment of any provision
of this Agreement or any of the other Loan Documents shall be valid or
effective unless the same is in writing and signed by the party against
whom it is sought to be enforced.
(c) ACTIONS BY SECURED PARTY. The lien, security interest and other
security rights of Secured Party hereunder shall not be impaired by (i) any
renewal, extension, increase or modification with respect to the
Indebtedness, (ii) any surrender, compromise, release, renewal, extension,
exchange or substitution which Secured Party may grant with respect to the
Collateral, or (iii) any release or indulgence granted to any endorser,
guarantor or surety of the Indebtedness. The taking of additional security
by Secured Party shall not release or impair the lien, security interest or
other security rights of Secured Party hereunder or affect the obligations
of Pledgor hereunder.
(d) WAIVER BY SECURED PARTY. Secured Party may waive any Event of
Default without waiving any other prior or subsequent Event of Default.
Secured Party may remedy any default without waiving the Event of Default
remedied. Neither the failure by Secured Party to exercise, nor the delay
by Secured Party in exercising, any right or remedy upon any Event of
Default shall be construed as a waiver of such Event of Default or as a
waiver of the right to exercise any such right or remedy at a later date.
No single or partial exercise by Secured Party of any right or remedy
hereunder shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right or remedy hereunder may be exercised
at any time. No waiver of any provision hereof or consent to any departure
by Pledgor therefrom shall be effective unless the
PLEDGE AGREEMENT - PAGE 10
same shall be in writing and signed by Secured Party and then such waiver
or consent shall be effective only in the specific instances, for the
purpose for which given and to the extent therein specified. No notice to
or demand on Pledgor in any case shall of itself entitle Pledgor to any
other or further notice or demand in similar or other circumstances.
(e) COSTS AND EXPENSES. Pledgor will upon demand pay to Secured Party
the amount of any and all reasonable costs and expenses (including without
limitation, attorneys' reasonable fees and expenses), which Secured Party
may incur in connection with (i) the transactions which give rise to the
Loan Documents, (ii) the preparation of this Agreement and the perfection
and preservation of the security interests granted under the Loan
Documents, (iii) the administration of the Loan Documents, (iv) the
custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, the Collateral, (v) the exercise or
enforcement of any of the rights of Secured Party under the Loan Documents,
or (vi) the failure by Pledgor to perform or observe any of the provisions
hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL
LAWS, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR NON-
PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(g) VENUE. This Agreement has been entered into in the county in
Texas where Bank's address for notice purposes is located, and it shall be
performable for all purposes in such county. Courts within the State of
Texas shall have jurisdiction over any and all disputes arising under or
pertaining to this Agreement and venue for any such disputes shall be in
the county or judicial district where this Agreement has been executed and
delivered.
(h) SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable,
shall not impair or invalidate the remainder of this Agreement and the
effect thereof shall be confined to the provision held to be illegal,
invalid or unenforceable.
(i) NO OBLIGATION. Nothing contained herein shall be construed as an
obligation on the part of Secured Party to extend or continue to extend
credit to Borrower.
(j) NOTICES. All notices, requests, demands or other communications
required or permitted to be given pursuant to this Agreement shall be in
writing and given by (i) personal delivery, (ii) expedited delivery service
with proof of delivery, or (iii) United States mail, postage prepaid,
registered or certified mail, return receipt requested, sent to the
intended addressee at the address set forth on the signature page hereof or
to such different address as the addressee shall have designated by written
notice sent pursuant to the terms hereof and shall be deemed to have been
received either, in the case of personal delivery, at the time of personal
delivery, in the case of expedited delivery service, as of the date of
first attempted delivery at the address and in the manner provided herein,
or in the case of mail, upon deposit in a depository receptacle under the
care and custody of the United States Postal Service. Either party shall
have the right to change its address for notice hereunder to any other
location within the continental United States by notice to the other party
of such new address at least thirty (30) days prior to the effective date
of such new address.
(k) BINDING EFFECT AND ASSIGNMENT. This Agreement (i) creates a
continuing security interest in the Collateral, (ii) shall be binding on
Pledgor and the heirs, executors, administrators, personal representatives,
successors and assigns of Pledgor, and (iii) shall inure to the benefit of
Secured Party and its
PLEDGE AGREEMENT - PAGE 11
successors and assigns. Without limiting the generality of the foregoing,
Secured Party may pledge, assign or otherwise transfer the Indebtedness and
its rights under this Agreement and any of the other Loan Documents to any
other party. Pledgor's rights and obligations hereunder may not be assigned
or otherwise transferred without the prior written consent of Secured
Party.
(l) TERMINATION. It is contemplated by the parties hereto that
from time to time there may be no outstanding Indebtedness, but
notwithstanding such occurrences, this Agreement shall remain valid and
shall be in full force and effect as to subsequent outstanding
Indebtedness. Upon (i) the satisfaction in full of the Indebtedness, (ii)
the termination or expiration of any commitment of Secured Party to extend
credit to Borrower, (iii) written request for the termination hereof
delivered by Pledgor to Secured Party, and (iv) written release delivered
by Secured Party to Pledgor, this Agreement and the security interests
created hereby shall terminate. Upon termination of this Agreement and
Pledgor's written request, Secured Party will, at Pledgor's sole cost and
expense, return to Pledgor such of the Collateral as shall not have been
sold or otherwise disposed of or applied pursuant to the terms hereof and
execute and deliver to Pledgor such documents as Pledgor shall reasonably
request to evidence such termination.
(m) CUMULATIVE RIGHTS. All rights and remedies of Secured Party
hereunder are cumulative of each other and of every other right or remedy
which Secured Party may otherwise have at law or in equity or under any of
the other Loan Documents, and the exercise of one or more of such rights or
remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies.
(n) GENDER AND NUMBER. Within this Agreement, words of any gender
shall be held and construed to include the other gender, and words in the
singular number shall be held and construed to include the plural and words
in the plural number shall be held and construed to include the singular,
unless in each instance the context requires otherwise.
(o) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience only and shall in no way enlarge, limit or define the scope or
meaning of the various and several provisions hereof.
(p) MODIFICATION. This Agreement is in modification (but not
extinguishment) of that certain Pledge Agreement [Bank Account] dated as of
February 24, 1997 by and betweeen HomeOwners Mortgage & Equity, Inc., d/b/a
Home, Inc. as Pledgor and Guaranty Federal Bank, F.S.B. as Secured Party.
EXECUTED as of the date first written above.
PLEDGOR'S ADDRESS: PLEDGOR:
HOMEOWNERS MORTGAGE & EQUITY, INC.,
0000 Xxxxxx Xxxxxx Xxxxxxxxx a Delaware corporation, d/b/a HOME, INC.
Xxxxx 000
Xxxxxx, Xxxxx 00000
By:_____________________________________
Xxxxx X. Xxxxxx,
Executive Vice President
SECURED PARTY'S ADDRESS:
Guaranty Federal Bank, F.S.B.
0000 Xxxxxxx Xxxxxx
PLEDGE AGREEMENT - PAGE 00
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: W. Xxxxx Xxxxxxxx
THE STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
This instrument was ACKNOWLEDGED before me on the day of April, 1997,
by Xxxxx X. Xxxxxx, Executive Vice President of HOMEOWNERS MORTGAGE & EQUITY,
INC., a Delaware corporation, d/b/a HOME, INC., on behalf of said corporation.
[S E A L] _______________________
Notary Public, State of Texas
My Commission Expires: _______________________
Printed Name of Notary
_____________
PLEDGE AGREEMENT - PAGE 13
SCHEDULE "A"
TO
PLEDGE AGREEMENT
DATED APRIL 2, 1997
BY AND BETWEEN
GUARANTY FEDERAL BANK, F.S.B.
AND
HOMEOWNERS MORTGAGE & EQUITY, INC.,
A DELAWARE CORPORATION, D/B/A HOME, INC.
1. "Austin Controlled Disbursement Account" shall mean that certain
controlled disbursement account at Frost National Bank, Austin, Texas,
ABA No. 000000000, Credit Home, Inc. Austin Control Disbursement
Account- No. 294018508.
2. "Austin Funding Account - Wires" shall mean that certain account
established by Borrower at Frost National Bank, Austin, Texas, ABA No.
000000000, Credit Home, Inc. Austin Funding Account - Wires No.
591055526.
3. "Austin Funding Account - Checks" shall mean that certain controlled
disbursement account, established by Borrower at Frost National Bank,
Austin, Texas, ABA No. 000000000, Credit Home, Inc. Austin Funding
Account - Checks No. 294038096.
4. "Austin Operating Account" shall mean that certain account established
by Borrower at Frost National Bank, Austin, Texas, ABA No. 000000000,
Credit Home, Inc. Austin Operating Account - No. 591044583.
SCHEDULE "A"
EXHIBIT "B"
BAILMENT AGREEMENT
April 2, 1997
Guaranty Federal Bank, F.S.B.
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: W. Xxxxx Xxxxxxxx
Re: (1)"Austin Controlled Disbursement Account" shall mean that certain
controlled disbursement account at Frost National Bank, Austin, Texas,
ABA No. 000000000, Credit Home, Inc. Austin Control Disbursement
Account- No. 294018508;
(2) "Austin Funding Account - Wires" shall mean that certain account
at Frost National Bank, Austin, Texas, ABA No. 000000000, Credit Home,
Inc. Austin Control Disbursement Account- No. 591055526;
(3) "Austin Funding Account - Checks" shall mean that certain
controlled disbursement account established by Borrower at Frost
National Bank, Austin, Texas, ABA No. 000000000, Credit Home, Inc.
Austin Operating Account - No. 294038096; and
(4) "Austin Operating Account" shall mean that certain account
established by Borrower at Frost National Bank, Austin, Texas, ABA No.
000000000, Credit Home, Inc. Austin Operating Account - No. 591044583
(collectively, the "Accounts").
All of the above, collectively, to be known as the "Collateral".
Gentlemen:
The undersigned, Frost National Bank ("Bank") understands and agrees that
in connection with those certain loans ("Loans") have been made by Guaranty
Federal Bank ("Secured Party") to HomeOwners Mortgage & Equity, Inc., a Delaware
corporation, d/b/a Home, Inc. ("Borrower") which Loans would not be modified
without the execution and delivery of this Bailee Agreement (the "Agreement") by
Bank. Therefore, Bank hereby agrees with Secured Party and Borrower as follows:
1. The Accounts and all sums contained in such Accounts, all renewals,
replacements, substitutions and proceeds of the foregoing
(collectively, the "Collateral") have been pledged to Secured Party by
that certain Pledge Agreement (herein so called) dated as of April 2,
1997 by and between Borrower and Secured Party. Bank hereby agrees to
act as the bailee solely and exclusively on behalf of Secured Party to
allow Secured Party to perfect its first lien security interest in and
to such Collateral which shall be the sole and exclusive security
interest in such Collateral.
2. Bank hereby agrees that upon written notice of an Event of Default
under any of the documents representing, evidencing or securing the
Loans from Secured Party to Bank, Bank shall, upon written demand of
Secured Party, transfer any and all monies contained in the Accounts
immediately to Secured Party.
This Bailment Agreement is executed in modification of (but not in
extinguishment of) that certain Bailment Agreement executed by and between Bank,
Secured Party and Borrower dated as of March 5, 1997.
EXECUTED AND AGREED TO effective as of, although not necessarily on, the
date first written above.
BANK:
FROST NATIONAL BANK
By: _______________________________
Name:__________________________
Title:_________________________
BORROWER:
HOMEOWNERS MORTGAGE & EQUITY, INC.,
a Delaware corporation, d/b/a HOME, INC.
By: _______________________________
Xxxxx X. Xxxxxx,
Executive Vice President
SECURED PARTY:
GUARANTY FEDERAL BANK, F.S.B.,
a federal savings bank
By: _______________________________
W. Xxxxx Xxxxxxxx,
Vice President
STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
This instrument was ACKNOWLEDGED before me on the day of April, 1997,
by ________________________, _______________________ of FROST NATIONAL BANK, a
___________________, behalf of said bank.
[S E A L] _______________________
Notary Public, State of Texas
My Commission Expires: _______________________
Printed Name of Notary
________________
STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
This instrument was ACKNOWLEDGED before me on the day of April, 1997,
by Xxxxx X. Xxxxxx, Executive Vice President of HOMEOWNERS MORTGAGE & EQUITY,
INC., a Delaware corporation, d/b/a HOME, INC., on behalf of said corporation.
[S E A L] _______________________
Notary Public, State of Texas
My Commission Expires: _______________________
Printed Name of Notary
________________
STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
This instrument was ACKNOWLEDGED before me on the day of April, 1997,
by W. Xxxxx Xxxxxxxx, Vice President of GUARANTY FEDERAL BANK, F.S.B., a federal
savings bank, on behalf of said bank.
[S E A L] _______________________
Notary Public, State of Texas
My Commission Expires: _______________________
Printed Name of Notary
________________
