Exhibit 4.6
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement") dated as of
June 26, 2001, is made by CORUS BANKSHARES, INC., a Minnesota corporation (the
"Pledgor"), whose address is 0000 X. Xxxxxxx Xxx., Xxxxxxx, Xxxxxxxx 00000, for
the benefit of LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(the "Bank"), whose address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000.
R E C I T A L S:
WHEREAS, the Pledgor desires to borrow from the Bank the sum of SEVENTY
MILLION DOLLARS ($70,000,000) (the "Loan"); and
WHEREAS, the Pledgor has agreed, in consideration of the extension by
the Bank of the Loan, the pledge to the Bank 100% of the common stock of CORUS
BANK, NATIONAL ASSOCIATION, a national banking association (the "Subsidiary");
and
WHEREAS, the Bank is willing to extend the Loan in accordance with the
terms, subject to the conditions and in reliance on the representations,
warranties and covenants set forth in the Loan Agreement of even date herewith
between the Pledgor and the Bank (the "Loan Agreement") and in all of the other
documents and instruments entered into or delivered in connection with or
relating to the loan contemplated in the Loan Agreement; and
WHEREAS, the Pledgor has agreed to provide security for the loan
contemplated in the Loan Agreement in accordance with the terms of this Pledge
Agreement,
NOW, THEREFORE, in order to induce the Bank to make the loan
contemplated in the Loan Agreement and in consideration of the mutual
representations, warranties, covenants and agreements hereinafter set forth, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Grant of Security Interest. To secure the Obligations (as
defined below), the Pledgor hereby pledges and grants to the Bank a security
interest in and transfers and delivers to the Bank the following: (a) ________
shares, which constitute one hundred percent (100%) of the issued and
outstanding capital stock of the Subsidiary, and any and all shares of the
capital stock of the Subsidiary that Pledgor subsequently acquires, directly or
indirectly including all substitutions of, and additions to, such stock; (b)
executed and undated stock powers for the capital stock described in (a) above,
in form and content satisfactory to the bank duly executed in blank and all
requisite federal and state stock transfer tax stamps, if any (the items
described in (a) and (b) above may collectively be referred to as the "Pledged
Stock"); (c) all income and profits thereof, all distributions thereon, all
other proceeds thereof and all rights, benefits and privileges pertaining to or
arising from the Pledged Stock; and (d) such other collateral that may be
provided after the date hereof to secure the Obligations. All property at any
time pledged with the Bank hereunder or in which the Bank is granted a security
interest hereunder (whether described herein or not), subject to the provisions
of Paragraph 3(c) below all income therefrom and proceeds thereof, may be
referred to collectively as the "Pledged Security".
2. Obligations. The obligations secured by this Pledge Agreement
are the following (referred to collectively hereafter as the "Obligations"):
(a) all obligations and agreements of Pledgor contained in
(including, without limitation, the payment of all indebtedness of the Pledgor
in respect of) the Loan Agreement and any and all amendments, modifications or
renewals thereof;
(b) all amounts due to the Bank under that certain Revolving
Note in the amount of $20,000,000 and that certain Term Note in the amount of
$50,000,000, each dated even date herewith, from the Pledgor to the Bank and any
and all modifications, extensions, renewals or refinancings thereof (the
"Note"), including, but not limited to, all principal, interest and other
amounts due under the Note;
(c) all sums advanced by, or on behalf of, the Bank in
connection with, or relating to, the Loan Agreement, the Note or the Pledged
Security including, but not limited to, any and all sums advanced to preserve
the Pledged Security, or to perfect the Bank's security interest in the Pledged
Security;
(d) in the event of any proceeding to enforce the
satisfaction of the Obligations, or any of them, or to preserve and protect its
rights under the Loan Agreement, the Note, this Pledge Agreement or any other
agreement, document or instrument relating to the transactions contemplated in
the Loan Agreement, the reasonable expenses of retaking, holding, preparing for
sale, selling or otherwise disposing of or realizing on the Pledged Security, or
of any exercise by the Bank of its rights, together with reasonable attorney's
fees, expenses and court costs; and
(e) any indebtedness, obligation or liability of the Pledgor
or the Subsidiary to the Bank, whether direct or indirect, joint or several,
absolute or contingent, now or hereafter existing, however created or arising
and however evidenced.
3. ADDITIONAL TERMS.
(a) The Pledgor agrees that the Bank, after Default, shall
have full and irrevocable right, power and authority, to collect, withdraw or
receipt for all amounts due or to become due and payable upon, in connection
with, or relating to, the Pledged Security, to execute any withdrawal receipts
respecting the Pledged Security, and to endorse the name of the Pledgor on any
or all documents, instruments or commercial paper given in payment thereof, and
at the Bank's discretion to take any other action, including, without
limitation, the transfer of any Pledged Security into the Bank's own name or the
name of any nominee for the Bank, which the Bank may deem necessary or
appropriate to preserve or protect the Bank's interest in any of the Pledged
Security.
(b) Unless a Default (as hereinafter defined) shall have
occurred, the Pledgor shall be entitled to vote any and all shares of the
Pledged Stock and to give consents, waivers and ratifications in respect
thereof, provided that no vote shall be cast, no consent, waiver or ratification
shall be given and no action shall be taken by the Pledgor which would violate
or be inconsistent with any of the terms of the Loan Agreement, the Note or this
Pledge Agreement, or which would have the effect of impairing the position or
interests of the Pledgor or any holder of the Note. All such rights of the
Pledgor to vote and to give consents, waivers and ratifications shall cease upon
the occurrence of a Default.
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(c) Unless a Default shall have occurred, all dividends and
other distributions payable in respect of the Pledged Security shall be paid to
the Pledgor. Upon the occurrence of a Default, all such dividends and other
distributions and payments shall be paid to the Bank. After a Default shall have
occurred, all such amounts paid in respect of the Pledged Security shall, until
paid or delivered to the Bank, be held in trust for the benefit of the Bank as
additional Pledged Security to secure the Obligations.
4. Representations, Warranties and Covenants. The Pledgor further
represents, warrants and agrees that:
(a) The Pledgor is the legal, record and beneficial owner
of, and has good and marketable title to, the Pledged Security, subject to no
lien, claim, security interest or other encumbrance, except the security
interest created by this Pledge Agreement.
(b) Without the prior written consent of the Bank, the
Pledgor will not sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Pledged Security, nor will it create,
incur or permit to exist any lien, claim, security interest or other encumbrance
with respect to any of the Pledged Security, or any interest therein, or any
proceeds thereof, except for the security interest provided for by this Pledge
Agreement. Without the prior written consent of the Bank, the Pledgor agrees
that it will not and it will cause the Subsidiary to not: (i) issue or reissue
any capital stock or other securities (or warrants therefor or other rights with
respect thereto) in addition to or issue other securities of any nature in
exchange or substitution for any of the Pledged Security; (ii) redeem any of the
Pledged Security, or (iii) declare any stock dividend or split or otherwise
change the capital structure of the Subsidiary.
(c) The Pledged Security is genuine and in all respects
represents what it purports to be and all the shares of the Pledged Stock have
been duly and validly issued, and are fully paid and non-assessable.
(d) The pledge, assignment and delivery of the Pledged
Security pursuant to this Pledge Agreement creates a valid perfected security
interest in the Pledged Security, and the proceeds thereof, subject to no prior
lien, claim, security interest or other encumbrance or to any agreement
purporting to grant to any third party a perfected security interest in the
assets of the Pledgor which would include any of the Pledged Security. The
Pledgor will at all times defend the Bank's right, title and security interest
in and to the Pledged Security and the proceeds thereof against any and all
claims and demands of any person adverse to the claims of the Bank.
(e) The Pledgor will take, and will cause the Subsidiary to
take, such action and to execute such documents as the Bank may from time to
time reasonably request relating to the Pledged Security or the proceeds
thereof.
(f) The Pledgor has full right, power and authority to enter
into, to execute and to deliver this Pledge Agreement and this Pledge Agreement
is binding upon, and enforceable against the Pledgor in accordance with its
terms.
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(g) The Pledgor shall pay any fees, assessments, charges or
taxes arising with respect to the Pledged Security. In case of failure by the
Pledgor to pay any such fees, assessments, charges or taxes, the Bank shall have
the right, but shall not be obligated, to pay such fees, assessments, charges or
taxes, as the case may be, and, in that event, the cost thereof shall be payable
by the Pledgor to the Bank immediately upon demand together with interest at the
rate equal to the Prime Rate (or, after the occurrence of a Default, the Default
Rate, as such terms are defined in the Loan Agreement) from the date of
disbursement by the Bank to the date of payment by the Pledgor.
(h) None of the Pledged Stock constitutes margin stock, as
defined in Regulation U of the Board of Governors of the Federal Reserve System.
5. Events of Default. The Pledgor shall be in default under this
Pledge Agreement upon the occurrence of any one or more of the following events
or conditions (each a "Default")
(a) the nonperformance of any Obligation in any other
instrument, document or agreement relating to the Obligations, including,
without limitation, the Loan Agreement and the Note, which nonperformance
continues beyond the applicable cure period, if any, specifically provided
therefor;
(b) the nonperformance of any Obligation made by the Pledgor
in the Pledge Agreement fifteen (15) days after notice by the Bank;
(c) any breach of any warranty, representation or covenant
made by the Pledgor in this Pledge Agreement fifteen (15) days after notice by
the Bank;
(d) any breach of any warranty, representation or covenant
made by the Pledgor in any other instrument, document or agreement between the
Pledgor and Bank which breach remains uncured beyond any applicable time period,
if any, specifically provided therefor;
(e) any misrepresentation made by the Pledgor in this Pledge
Agreement;
(f) any misrepresentation made by the Pledgor or in any
document furnished by the Pledgor, or in the Pledgor's behalf, to the Bank in
connection with this Pledge Agreement or the Pledged Security, which
misrepresentation remains uncured beyond any applicable time period; if any,
specifically provided therefor;
(g) the claim or creation of any lien, claim, security
interest or ether encumbrance upon any of the Pledged Security or the making of
any levy, judicial seizure, or attachment thereof; or
(h) the dissolution, bankruptcy, insolvency or failure of
the Pledgor or the subsidiary.
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6. Rights of Parties upon Default.
(a) In the event of the occurrence of a Default, in addition
to all the rights, power and remedies the Bank shall be entitled to exercise,
whether vested in the Bank by the terms of this Pledge Agreement, the terms of
the Loan Agreement, the terms of the Note, by law, in equity, by statute
(including, without limitation, Article 9 of the Illinois Uniform Commercial
Code) or
otherwise, for the protection and enforcement of their rights in respect of the
Pledged Security, the Bank may be entitled to, without limitation (but is under
no obligation to the Pledgor so to do):
(i) transfer all or any part of the Pledged Security into
the Bank's name or the name of its nominee or nominees;
(ii) after first obtaining all necessary regulatory
approvals, vote all or any part of the Pledged Security (whether or not
transferred into the name of the Bank or any nominee) and give all consents,
waivers and ratifications in respect of the Pledged Security and otherwise act
with respect thereto as though it were the outright owner thereof;
(iii) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the Pledged Security,
or any interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of which are
hereby waived by the Pledgor) , for cash, on credit or for other property, for
immediate or future delivery without any assumption of credit risk and for such
price or prices and on such terms as the Bank in its absolute discretion may
determine, provided that unless, in the sole discretion of the Bank, any of the
Pledged Security threatens to decline in value or is or becomes a type sold on a
recognized market, the Bank will give the Pledgor reasonable notice of the time
and place of any public sale thereof, or of the time after which any private
sale or other intended disposition is to be made. Any requirements of reasonable
notice shall be met if such notice is mailed to the Pledgor as provided in
Paragraph 14 below, at least fifteen (15) days before the time of the sale or
disposition. Any sale of any of the Pledged Security conducted in conformity
with customary practices of banks, insurance companies or other financial
institutions disposing of property similar to the Pledged Security shall be
deemed to be commercially reasonable. Any remaining Pledged Security shall
remain subject to the terms of this Pledge Agreement; and
(iv) collect any and all money due or to become due and
enforce in the Pledgor's name all rights with respect to the Pledged Security.
(b) Pledgor agrees to cause the Subsidiary, to give the
Bank, any prospective purchaser (pursuant to Section 6 (a) (iii)) of the Pledged
Security and their respective representatives, reasonable access to further
information (including, but not limited to, records, files, correspondence, tax
work papers and audit work papers) relating to or concerning the Pledgor or the
Subsidiary.
7. Remedies Cumulative. Each right, power and remedy of the Bank
provided in this Pledge Agreement or now or hereafter existing at law or in
equity or by statute or otherwise shall be cumulative and concurrent and shall
be in addition to every other right, power or remedy provided for in this Pledge
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise. The exercise or partial exercise by the Bank of any one or more of
such rights, powers or remedies shall not preclude the simultaneous or later
exercise by the Bank of all such other rights, powers or remedies, and no
failure or delay on the part of the Bank to exercise any such right, power or
remedy shall operate as a waiver thereof.
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8. Waiver of Defenses. No renewal or extension of the time of
payment of the Obligations; no release or surrender of, or failure to perfect or
enforce, any security interest for the Obligations; no release of any person
primarily or secondarily liable on the Obligations (including any maker,
endorser, or guarantor); no delay in enforcement of payment of the Obligations;
and no delay or emission in exercising any right or power with respect of the
Obligations or any security agreement securing the Obligations shall affect the
rights of the Bank in the Pledged Security.
9. Waiver. Waiver by the Bank of any Default hereunder, or of any
breach of the provisions of this Pledge Agreement by the Pledgor, or any right
of the Bank hereunder, shall not constitute a waiver of any other Default or
breach or right, or the same Default or breach or right on a future occasion.
10. Law Governing. This Pledge Agreement and the rights and
obligations of the parties hereunder shall be construed and interpreted in
accordance with the law of the State of Illinois applicable to agreements made
and to be wholly performed in such state. 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.
11. Pledgor's Obligations Absolute. The Obligations of the Pledgor
under this Pledge Agreement shall be absolute and unconditional and shall remain
in full force and effect without regard to, and shall not be released,
discharged or in any way impaired by any circumstance whatsoever, including
without limitation: (a) any amendment or modification of the Note, the Loan
Agreement, or any document or instrument provided for herein or therein or
related thereto, or any assignment, transfer or other disposition of any
thereof; (b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such document or instrument or any exercise
or non-exercise of any right, remedy, power or privilege under or in respect of
any such document or instrument or this Pledge Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation,
or similar proceeding with respect to the Pledgor or any of its properties or
creditors; or (d) any limitation on the Pledgor's liabilities or obligations
under any such instrument or any invalidity or lack of enforceability, in whole
or in part, of any such document or instrument or any term thereof, whether or
not the Pledgor shall have notice or knowledge of the foregoing.
12. Termination. This Pledge Agreement shall terminate upon the
receipt by the Bank of evidence satisfactory to the Bank in the Bank's sole and
absolute discretion of the payment in full of the Obligations. At the time of
such termination, the Bank, at the request and expense of the Pledgor, will
execute and deliver to the Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Pledge Agreement, and
will duly assign, transfer and deliver to the Pledgor such of the Pledged
Security as has not yet theretofore been sold or otherwise applied or released
pursuant to this Pledge Agreement.
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13. Further Assurances. The Pledgor, at its expense, will duly
execute, acknowledge and deliver all such instruments and take all such action
as the Bank from time to time may request in order to further effectuate the
purposes of this Pledge Agreement and to carry out the terms hereof. The
Pledgor, at its expense, will at all times cause this Pledge Agreement (or a
proper notice or statement, in respect hereof) to be duly recorded, published
and filed and rerecorded, republished and refiled in such manner and in such
places, if any, and will pay or cause to be paid all such recording, filing and
other taxes, fees and charges, if any, and will comply with all such statutes
and regulations, if any, as may be required by law in order to establish,
perfect, preserve and protect the rights and security interests of the Bank
hereunder.
14. Notices. All communications provided for or related hereto shall
be given in accordance with Paragraph 10(c) of the Loan Agreement.
15. Amendments. Any term of this Pledge Agreement may be amended
only with the written consent of the Pledgor and the Bank. Any amendment
effected in accordance with this Paragraph 15 shall be binding upon (i) each
current holder of the Note; (ii) each future holder of the Note; and (iii) the
Pledgor.
16. Assigns. This Pledge Agreement and all rights and liabilities
hereunder and in and to any and all Pledged Security shall inure to the benefit
of the Bank and its successors and assigns, and shall be binding on the Pledgor
and the Pledgor's successors and assigns; provided, however, the Pledgor may not
assign its rights or liabilities hereunder or to any of the Pledged Security
without the written consent of the Bank.
17. Miscellaneous. This Pledge Agreement embodies the entire
agreement and understanding between the Bank and the Pledgor and supersedes all
prior agreements and understandings relating to the subject matter hereof. The
headings in this Pledge Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
The Pledgor acknowledges that this Pledge Agreement is and shall be
effective upon execution by the Pledgor and delivery to and acceptance hereof by
the Bank, and it shall not be necessary for the Bank to execute any acceptance
hereof or otherwise to signify or express its acceptance hereof to the Pledgor.
CORUS BANKSHARES, INC.
By:
------------------------------------
Its President
Address of Pledgor:
0000 X. Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxxx 00000
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