Exhibit 99.2
Principal
$540,800.90
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Loan Date
04-30-2003
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Maturity
05-15-2005
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Loan No.
XXXXXX
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Call / Coll |
Account |
Officer
XXXX
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Initials |
References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any
particular loan or item. Any item above containing “***” has been omitted due to text length limitations.
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| Borrower: |
XXXX X. XXXXXX |
Xxxxxx: |
U.S. BANK NATIONAL ASSOCIATION |
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XXXXXXXXXXXX
XXXXX, MN 56127-6506 |
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St. Xxxx Private Client Group 0002356
000 Xxxx 0xx Xx., Xxxxx 0000
Xx. Xxxx, XX 00000 |
THIS
CONSUMER PLEDGE AGREEMENT dated April 30, 2003, is entered into between XXXX X XXXXXX
(referred to below as “I”) and U.S. BANK NATIONAL ASSOCIATION (referred to below
as “Lender”).
GRANT
OF SECURITY INTEREST. To secure the Indebtedness described below (including all
obligations under the Note and this Agreement), I grant to Lender a security interest in
all of the Property described below. I understand that the following statements set forth
my responsibilities, as well as Xxxxxx’s rights concerning the Property. I agree as
follows:
PROPERTY
DESCRIPTION. The word “Property” as used in this Agreement means my present
and future rights, title and interest in and to together with any and all present and
future additions thereto, substitutions therefore, and replacements thereof, together with
any and all present and future certificates and/or instruments evidencing any stock and
further together with all Income and Proceeds as described herein.
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Account
No. XXXXXXXX & XXXXXXXX (and any replacement therefor or renumbering thereof) in the
name of Grantor at U.S. Bank National Association, and any successor thereto, and
all securities, instruments, financial assets, investment property, and other
property held in such account from time to time, all securities entitlements in
and to the foregoing, all books and records relating thereto, and proceeds of the
foregoing.
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RIGHT
OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of
setoff in all my accounts with Lender (whether checking, savings, or some other account).
This includes all accounts I hold jointly with someone else and all accounts I may open in
the future. However, this does not include any IRA or Xxxxx accounts, or any trust
accounts for which setoff would be prohibited by law. I authorize Xxxxxx, to the extent
permitted by applicable law, to charge or setoff all sums owing on the Indebtedness
against any and all such accounts, and, at Xxxxxx’s option, to administratively
freeze all such accounts to allow Lender to protect Xxxxxx’s charge and setoff rights
provided in this paragraph.
10 of 21
Loan No. XXXXXXX
REPRESENTATIONS
AND PROMISES WITH RESPECT TO GRANTOR. I represent and promise to Lender that my
correct legal name and address is: XXXX X. XXXXXX, XXXXX, MN 56127-6506.
REPRESENTATIONS
AND PROMISES WITH RESPECT TO THE PROPERTY. I represent and promise to Lender that:
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Ownership.
I am the lawful owner of the Property. The Property is free of all
loans, liens, mortgages, and claims of others except for those I have disclosed
to Lender in writing, and which have been accepted by Xxxxxx, prior to my
signing of this Agreement.
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Right
to Pledge. I have the full right, power and authority to enter into this Agreement
and to grant a security interest in the Property to Lender.
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Delivery
of Pledged Property. If I am unable to deliver any portion of the Property to Lender
at the time this Agreement is signed, or if I should ever withdraw or obtain temporary
possession of any of the Property while this Agreement remains in effect, whether under a
trust receipt or otherwise, I agree to immediately deliver to Lender such Property or,
alternatively, such substitute or replacement Property that may be then satisfactory to
Lender.
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No
Further Transfer. I have not and will not sell, transfer, mortgage, or otherwise
dispose of any of my rights in the Property except as allowed in this Agreement.
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No
Defaults. There are no defaults existing under the Property, and there are no offsets
or counterclaims to the same. I will strictly and promptly do everything required of me
under all the terms, conditions, promises, and agreements contained in or relating to the
Property.
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Validity;
Binding Effect. This Agreement is binding upon me and my successors and assigns and
is legally enforceable in accordance with its terms.
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Financing
Statements. I authorize Lender to file a UCC-1 financing statement, or alternatively,
a copy of this Agreement to perfect Xxxxxx’s security interest. At Lender’s
request, I additionally agree to sign all other documents that are necessary to perfect,
protect, and continue Xxxxxx’s security interest in the Property. I will pay all
filing fees, title transfer fees, and other fees and costs involved unless prohibited by
law or unless Lender is required by law to pay such fees and costs. I irrevocably appoint
Xxxxxx as my attorney in fact to execute financing statements and documents of title in
my name and to execute all documents necessary to transfer title if there is a default.
Lender may file a copy of this Agreement as a financing statement. If I change my name or
address, or the name or address of any person granting a security interest under this
Agreement changes, I will promptly notify the Lender of such change.
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11 of 21
Loan No. XXXXXXX
XXXXXX’S
RIGHTS AND OBLIGATIONS WITH RESPECT TO THE PROPERTY. Lender may hold the Property
until all Indebtedness has been paid. Thereafter Lender may deliver the Property to me or
to any other owner of the Property. Xxxxxx will have the following rights in addition to
all other rights Lender may have by law:
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Maintenance
and Protection of Property. Lender may do such things as it thinks necessary or
desirable to protect, maintain, insure, store, or care for the Property, including paying
of any liens or claims against the Property. This may include such things as hiring other
people, such as attorneys, appraisers or other experts. Xxxxxx may charge me for any cost
incurred in so doing. When applicable law provides more than one method of perfection of
Xxxxxx’s security interest, Xxxxxx may choose the method(s) to be used. If the
Property consists of stock, bonds or other investment property for which no certificate
has been issued, I agree, at Xxxxxx’s request, either to request issuance of an
appropriate certificate or to give instructions on Xxxxxx’s forms to the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to record on its
books or records Xxxxxx’s security interest in the Property.
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Income
and Proceeds from the Property. Lender may receive all Income and Proceeds and add it
to the Property held by Lender under this Agreement. If I receive any Income and Proceeds
from the Property, and if Lender requires me to do so, I immediately will advise Lender.
If Lender requests, I will deliver the Income and Proceeds to Lender immediately upon my
receipt in the exact form received. Unless permitted by Xxxxxx, I will not mix the Income
and Proceeds with any of my accounts or other property, and if required by Lender, I will
deliver the Income and Proceeds to Lender whether the Income and Proceeds are an addition
to, in discharge of, in substitution of, or in exchange for any of the Property.
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Application
of Cash. Lender, at its option, may apply any cash (whether included in the Property
or received as Income or proceeds of a sale of any of the Property) to the payment of
part or all of the Indebtedness, whether or not the Indebtedness is then due.
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Modifying
the Indebtedness. Lender may (a) extend time for payment or other performance, (b)
grant a renewal or change, or (c) compromise or release any obligation, with any one or
more Borrowers, endorsers, or guarantors of the Indebtedness, as Xxxxxx deems advisable,
without obtaining my prior written consent. No such act or failure to act will affect
Xxxxxx’s rights against me or the Property.
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All
Property Secures Indebtedness. All Property will be security for the Indebtedness,
whether the Property is located at one or more offices or branches of Lender. This will
be the case whether or not the office or branch where I obtained my loan knows about the
Property or relies upon the Property as security.
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Collection
of Property. I agree that Lender may, at any time and for any reason, whether or not
I am then in default under any Indebtedness, collect the Income and Proceeds directly
from the Obligors. I authorize and direct the Obligors, if Xxxxxx decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and Proceeds from the
Property and to accept Xxxxxx’s receipt for the payments.
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12 of 21
Loan No. XXXXXXX
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Power
of Attorney. I appoint Xxxxxx as my attorney-in-fact, with full power to act for me.
This power of attorney will remain in effect until all Indebtedness is paid in full.
Lender, as my attorney-in-fact, may among other things: (1) demand, collect, receive,
receipt for, sue and recover all Income and Proceeds and other sums and other property
which may now or hereafter become due, owing or payable from the Obligors in accordance
with the terms of the Property; (2) execute, sign and endorse any and all instruments,
receipts, checks, drafts and warrants issued as Income and Proceeds or in payment for the
Property; (3) settle or compromise any and all claims arising under the Property and, in
my place and name, execute and deliver its release and acquittance for me; (4) file any
claim or claims or take any action or institute or take part in any proceedings, either
in Xxxxxx’s own name or in my name, or otherwise, which in Xxxxxx’s opinion may
seem to be necessary or advisable; and (5) execute in my name and deliver to the Obligors
on my behalf, at the time and in the manner specified by the Property, any necessary
instruments or documents.
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XXXXXX’S
EXPENDITURES. If I fail (A) to keep the Property free of all taxes, liens, security
interests, encumbrances, and other claims, (B) to provide any required insurance on the
Property, or (C) to make repairs to the Property then Lender may do so. If any action or
proceeding is commenced that would materially affect Xxxxxx’s interests in the
Property, then Lender on my behalf may, but is not required to, take any action that
Xxxxxx believes to be appropriate to protect Xxxxxx’s interests. All expenses
incurred or paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Xxxxxx to the date of repayment by me.
All such expenses will become a part of the Indebtedness and, at Lender’s option,
will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned
among and be payable with any installment payments to become due during either (1) the
term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note’s maturity.
The Agreement also will secure payment of these amounts. The rights provided for in this
paragraph shall be in addition to any other rights or any remedies to which Lender may be
entitled on account of any default. Any such action by Xxxxxx shall not be construed as
curing the default so as to bar Lender from any remedy that it otherwise would have had.
LIMITATIONS
ON OBLIGATIONS OF LENDER. Lender will use ordinary reasonable care in the physical
preservation and custody of the Property in Xxxxxx’s possession, but will have no
other obligation to protect the Property or its value. Lender will not be responsible for
(A) collecting or protecting any Income from the Property; (B) preserving rights against
parties to the Property or against third persons; (C) ascertaining any maturities, calls,
conversions, exchanges, offers, tenders, or similar matters relating to any of the
Property; or (D) informing me about any of these matters, whether or not Lender has nor is
deemed to have knowledge of such matters. Except as provided above, Lender will have no
responsibility or liability whatsoever to me or to anyone else for any deterioration or
decrease in the value of the Property.
13 of 21
Loan No. XXXXXXX
DEFAULT.
I will be in default if any of the following happens:
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Payment
Default. I fail to make any payment when due under the Indebtedness.
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Break
Other Promises. I break any promise made to Lender or fail to perform promptly at the
time and strictly in the manner provided in this Agreement or in any agreement related to
this Agreement.
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False
Statements. Any representation or statement made or furnished to Lender by me or on
my behalf, or made by Guarantor, or any other guarantor, endorser, surety, or
accommodation party, under this Agreement or the Related Documents in connection with the
obtaining of the Indebtedness evidenced by the Note or any security document directly or
indirectly securing repayment of the Note is false or misleading in any material respect,
either now or at the time made or furnished.
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Death
of Insolvency. I die or become incompetent or insolvent, a receiver is appointed for
any part of my property, I make an assignment for the benefit of creditors, or any
proceeding is commenced either by me or against me under any bankruptcy or insolvency
laws.
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Taking
of the Property. Any creditor or governmental agency tries to take any of the
Property or any other of my property in which Xxxxxx has a lien. This includes taking of,
garnishing of or levying on my accounts with Xxxxxx. However, if I dispute in good faith
whether the claim on which the taking of the Property is based is valid or reasonable,
and if I give Lender written notice of the claim and furnish Lender with monies or a
surety bond satisfactory to Lender to satisfy the claim, then this default provision will
not apply.
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Defective
Collateralization. This Agreement or any of the Related Documents ceases to be in
full force and effect (including failure of any collateral document to create a valid and
perfected security interest or lien) at any time and for any reason.
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Property
Damage or Loss. The Property is lost, stolen, substantially damaged, sold, or
borrowed against.
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Events
Affecting Guarantor. Any of the preceding events occurs with respect to any
Guarantor, or any other guarantor, endorser, surety, or accommodation party of any of the
Indebtedness or any Guarantor, or any other guarantor, endorser, surety, or accommodation
party dies or becomes incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
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RIGHTS
AND REMEDIES ON DEFAULT. If I am in default under this Agreement, Lender may do any
or all of the following:
14 of 21
Loan No. XXXXXXX
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Accelerate
Indebtedness. Lender may, subject to any cure and notice provisions required by
law, declare all Indebtedness immediately due and payable, without notice.
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Collect
the Property. Collect any of the Property, and, at Xxxxxx’s option and to the
extent permitted by applicable law, retain possession of the Property while suing on the
Indebtedness.
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Sell
the Property. Sell the Property, at Xxxxxx’s discretion, as a unit or in
parcels, at one or more public or private sales. Unless the Property is perishable or
threatens to decline speedily in value or is of a type customarily sold on a recognized
market, Lender shall give or mail to me, and other persons as required by law, reasonable
notice of the time and place of any public sale, or of the time after which any private
sale may be made. I agree that any requirement of reasonable notice is satisfied if
Lender mails notice by ordinary mail addressed to me in the last address I have given
Lender in writing. I further agree that such notice is sent within a reasonable time if
it is sent at least ten (10) days in advance of the time of sale or disposition, except
as otherwise required by applicable law. If public sale is held, there will be sufficient
compliance with all requirements of notice to the public by a single publication in any
newspaper of general circulation in the county where the Property is located. The notice
will set forth the time and place of sale and a brief description of the property to be
sold. Lender may be a purchaser at any public sale.
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Rights
and Remedies with Respect to Investment Property, Financial Assets and Related Collateral. In
addition to other rights and remedies granted under this Agreement and under applicable
law, Lender may exercise any or all of the following rights and remedies: (1) register
with any issuer or broker or other securities intermediary any of the Property consisting
of investment property or financial assets (collectively herein, “investment property”)
in Lender’s sole name or in the name of Xxxxxx’s broker, agent or nominee; (2)
cause any issuer, broker or other securities intermediary to deliver to Lender any of the
Property consisting of securities, or investment property capable of being delivered; (3)
enter into a control agreement or power of attorney with any issuer or securities
intermediary with respect to any Property consisting of investment property, on such
terms as Lender may deem appropriate, in its sole discretion, including without
limitation, an agreement granting to Lender any of the rights provided hereunder without
further notice to or consent by me; (4) execute any such control agreement on my behalf
and in my name, and hereby irrevocably appoint Xxxxxx as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control agreement on my
behalf; (5) exercise any and all rights of Lender under any such control agreement or
power of attorney; (6) exercise any voting, conversion, registration, purchase, option,
or other rights with respect to any Property; (7) collect, with or without legal action,
and issue receipts concerning any notes, checks, drafts, remittances or distributions
that are paid or payable with respect to any Property consisting of investment property.
Any control agreement entered with respect to any investment property shall contain the
following provisions, at Xxxxxx’s discretion. Lender shall be authorized to instruct
the issuer, broker or other securities intermediary to take
or to refrain from taking such actions with respect to the investment property as
Lender may instruct, without further notice to or consent by me.
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15 of 21
Loan No. XXXXXXX
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Such actions may include
without limitation the issuance of entitlement orders, account instructions, general
trading or buy or sell orders, transfer and redemption orders, and stop loss orders.
Lender shall be further entitled to instruct the issuer, broker or securities
intermediary to sell or to liquidate any investment property, or to pay the cash
surrender or account termination value with respect to any and all investment property,
and to deliver all such payments and liquidation proceeds to lender. Any such control
agreement shall contain such authorizations as are necessary to place Lender in “control” of
such investment collateral, as contemplated under the provisions of the Uniform
Commercial Code, and shall fully authorize Lender to issue “entitlement orders” concerning
the transfer, redemption, liquidation or disposition or investment collateral, in
conformance with the provisions of the Uniform Commercial Code.
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Sell
Securities. Sell any securities include in the Property in a manner consistent with
applicable federal and state securities laws. If, because of restrictions under such
laws, Lender is unable, or believes Xxxxxx is unable, to sell the securities in an open
market transaction, I agree that Lender will have no obligation to delay sale until the
securities can be registered. Then Lender may make a private sale to one or more persons
or to a restricted group of persons, even though such sale may result in a price that is
less favorable than might be obtained in an open market transaction. Such a sale will be
considered commercially reasonable. If any securities held as Property are “restricted
securities” as defined in the Rules of the Securities and Exchange Commission (such
as Regulation D or Rule 144) or the rules of state securities departments under state
“Blue Sky” laws, or if I or any other owner of the Property is an affiliate of
the issuer of the securities, I agree that neither I, nor any member of my family, nor
any other person signing this Agreement will sell or dispose of any securities of such
issuer without obtaining Lender’s prior written consent.
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Transfer
Title. Transfer title to the Property upon the sale of all or part of the Property.
For this purpose, I irrevocably appoint Xxxxxx as my attorney-in-fact to execute such
endorsements, assignments and instruments in my name as Xxxxxx in Xxxxxx’s judgment
may think to be necessary or reasonable.
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Other
Rights and Remedies. Exercise any or all of the rights and remedies of a secured
creditor under the provisions of the Uniform Commercial Code, at law, in equity or
otherwise.
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Application
of Proceeds. Apply any cash which is part of the Property or Income or which is
received from the collection or sale of the Property as follows: (a) to reimbursement of
Xxxxxx’s expenses incurred in connection with costs of securities registration or
commissions incurred in connection with a sale, and other costs of sale; (b) to the
payment of the Indebtedness; and (c) any excess funds to be paid to me or to any other
Borrower as our interests may appear. I agree, to the extent permitted by law, to pay any
deficiency remaining after application of the proceeds of the Property to the
Indebtedness.
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16 of 21
Loan No. XXXXXXX
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Election
of Remedies. All of Xxxxxx’s rights and remedies will be cumulative and may be
exercised alone or together. An election by Xxxxxx to choose any one remedy will not bar
Lender from using any other remedy. If Xxxxxx decides to spend money or to perform any of
my obligations under this Agreement, after my failure to do so, that decision by Xxxxxx
will not affect Xxxxxx’s right to declare me in default and to exercise Xxxxxx’s
remedies.
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PLEDGED
BROKERAGE ACCOUNTS. “Intermediary” means the broker, bank, trust company or
other entity maintaining a Brokerage Account. “Control agreement” means any
agreement between an intermediary and Lender giving Lender control over any assets held in
a Brokerage Account. “Brokerage Account” means any securities account (as
defined in the Uniform Commercial Code) or similar account at any time containing some or
all of the Property. If any of the Property is either a Brokerage Account or assets held
in a Brokerage Account, then Grantor consents to any control agreement between the
intermediary and Lender. Xxxxxxx also agrees to consent in writing on any such control
agreement. Xxxxxxx agrees not to withdraw any Property from any Brokerage Account unless
any control agreement in effect for that Property contains Xxxxxx’s consent to any
withdrawal. But in such event, Grantor may only withdraw Property from the Brokerage
Account to the extent permitted and upon the conditions set forth in the control agreement
and only until Lender notifies Grantor or the intermediary otherwise. Grantor may not
trade in the Brokerage Account unless any control agreement in effect for any of the
Property contains Xxxxxx’s consent to any trading in the Brokerage Account. In such
event, Grantor may only trade in the Brokerage Account to the extent permitted and upon
the conditions set forth in the control agreement and only until Lender notifies Grantor
or the intermediary otherwise. “Trading” with respect to a Brokerage Account
means the sale or loan of any asset held in the account or the purchase of any asset using
funds held in the account, and only so long as the proceeds of any sale or loans or any
asset purchased is held in the account. “Trading” does not include the
withdrawal of any assets (including proceeds) from the Brokerage Account. If Lender has
consented to trading in a Brokerage Account constituting or containing Property, but
Lender has not specifically approved the assets Grantor acquired in all such trades, and
if Lender evaluates the assets held in the Brokerage Account at any time and find those
assets to be unsatisfactory to Lender for any reason in its sold discretion then it shall
constitute an Event of Default under this Agreement, in addition to the events described
in the section headed “DEFAULT”. Xxxxxx’s reasons for finding the assets
not to be satisfactory may include but are not limited to the maturity of any debt assets
or the average maturity of any portfolio of debt assets, the potential volatility of the
value of any asset or portfolio of assets, the limited market for one or more assets, the
financial or other condition of any issuer of any asset, or any other reason. Grantor
acknowledges that Grantor can avoid so being deemed in default by not trading in the
Brokerage Account without Lender’s specific consent to each trade, or by trading
solely within guidelines approved by Lender.
17 of 21
Loan No. XXXXXXX
To
the extent the market value of any of the Property must be determined under this
Agreement, the “market value” of Property shall be determined as follows: As to
securities traded on an exchange, the “market value” shall equal the closing
price (the price of the last exchange trade) on the most recent complete day such exchange
was open, multiplied by the number of shares of such security pledged to the Lender under
this Agreement. If a security is traded in more than one exchange, its “market
value” or “price” shall be the lowest such closing price on any exchange
for that security. If no closing price is available, the “market value” of the
security shall be determined by using the lowest trading price or bid price for the
security on the last complete day an exchange on which such security is traded was open.
As to all other Property, the “market value” shall be a value determined by the
Lender in its sole discretion but in good faith and in a reasonable manner.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part of this Agreement.
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Amendments
and Interpretation. (1) What is written in this Agreement is my entire agreement with
Lender concerning the Property. This Agreement may not be changed except by another
written agreement between us. (2) If more than one person signs below, our obligations
are joint and several. This means that the words “I,” “me,” and “my” mean
each and every person or entity signing this Agreement, and that, if Xxxxxx brings a
lawsuit, Lender may sue any one or more of us. I also understand Xxxxxx need not sue
Borrower first, and that Xxxxxxxx need not be joined in any lawsuit. (3) The names given
to paragraphs or sections in this Agreement are for convenience purposes only. They are
not to be used to interpret or define the provisions of this Agreement. (4) I agree that
this Agreement is the best evidence of my agreements with Xxxxxx.
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Attorneys’
Fees; Expenses. I agree to pay all of Xxxxxx’s costs and expenses, including Xxxxxx’s
reasonable attorneys’ fees and Xxxxxx’s legal expenses, incurred in connection
with the enforcement of this Agreement. Lender may hire or pay someone else to help
enforce this Agreement or to collect the Indebtedness, and I shall pay the costs and
expenses of such enforcement. Costs and expenses include Xxxxxx’s reasonable
attorneys’ fees and legal expenses whether or not there is a lawsuit, including
reasonable attorneys’ fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. I also shall pay all court costs, in
addition to all other sums provided by law. This Agreement also secures all of these
amounts.
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Caption
Headings. Caption headings in this Agreement are for convenience purposes only and
are not to be used to interpret or define the provisions of this Agreement.
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Governing
Law. This Agreement will be governed by and interpreted in accordance with federal law
and the laws of the State of Minnesota. This Agreement has been accepted by Xxxxxx in the
State of Minnesota.
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Choice
of Venue. If there is a lawsuit, I agree upon Xxxxxx’s request to submit to the
jurisdiction of the courts of Hennepin County, State of Minnesota.
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18 of 21
CONSUMER PLEDGE
AGREEMENT
(Continued)
Loan No. XXXXXXX
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Notices.
Any notice required to be given under this Agreement shall be given in
writing, and shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Agreement. Any person may change his or her address for
notices under this Agreement by giving formal written notice to the other person or
persons, specifying that the purpose of the notice is to change the person’s
address. For notice purposes, I agree to keep Xxxxxx informed at all times of my current
address. Unless otherwise provided or required by law, if there is more than one Grantor,
any notice given by Lender to any Grantor is deemed to be notice given to all Grantors.
It will be my responsibility to tell the others of the notice from Xxxxxx.
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No
Waiver by Xxxxxx. I understand Xxxxxx will not give up any of Xxxxxx’s rights
under this Agreement unless Xxxxxx does so in writing. The fact that Lender delays or
omits to exercise any right will not mean that Lender has given up that right. If Xxxxxx
does agree in writing to give up one of Xxxxxx’s rights, that does not mean I will
not have to comply with the other provisions of this Agreement. I also understand that if
Xxxxxx does consent to a request, that does not mean that I will not have to get Xxxxxx’s
consent again if the situation happens again. I further understand that just because
Xxxxxx consents to one or more of my requests, that does not mean Lender will be required
to consent to any of my future requests. I waive presentment, demand for payment,
protest, and notice of dishonor.
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Severability.
If a court finds that any provision of this Agreement is not valid
or should not be enforced, that fact by itself will not mean that the rest of
this Agreement will not be valid or enforced. Therefore, a court will enforce
the rest of the provisions of this Agreement even if a provision of this
Agreement may be found to be invalid or unenforceable.
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Successors
and Assigns. Subject to any limitations stated in this Agreement on transfer of my
interest, this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns. If ownership of the Property becomes vested in a person
other than me, Lender, without notice to me, may deal with my successors with reference
to this Agreement and the Indebtedness by way of forbearance or extension without
releasing me from the obligations of this Agreement or liability under the Indebtedness.
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Non-Liability
of Lender. The relationship between me and Xxxxxx created by this Agreement is
strictly a debtor and creditor relationship and not fiduciary in nature, nor is the
relationship to be construed as creating any partnership or joint venture between Lender
and me. I am exercising my own judgment with respect to my business. All information
supplied to Lender is for Xxxxxx’s protection only and no other party is entitled to
rely on such information. There is no duty for Lender to review, inspect, supervise or
inform me of any matter with respect to my business. Xxxxxx and I intend that Lender may
reasonably rely on all information supplied by me to Lender, together with all
representations and warranties given by me to Lender, without investigation or
confirmation by Xxxxxx and that any investigation or failure to investigate will not
diminish Lender’s right to so rely.
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CONSUMER PLEDGE
AGREEMENT
(Continued)
Loan No. XXXXXXX
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Time
is of the Essence. Time is of the essence in the performance of this Agreement.
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DEFINITIONS.
The following words shall have the following meanings when used in
this Agreement.
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Agreement.
The word “Agreement” means this Consumer Pledge Agreement,
as this Consumer Pledge Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Consumer Pledge
Agreement from time to time.
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Borrower.
The word “Borrower” means XXXX X. XXXXXX, and all other
persons and entities signing the Note.
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Grantor.
The word “Grantor” means XXXX X. XXXXXX.
|
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Guarantor.
The word “Guarantor” means any guarantor, surety, or
accommodation party of any or all of the Indebtedness, and, in each case, my
successors, assigns, heirs, personal representatives, executors and
administrators of any guarantor, surety, or accommodation party.
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Guaranty.
The word “Guaranty” means the guaranty from Guarantor or
any other guarantor, endorser, surety or accommodation party to Lender,
including without limitation, a guaranty of all or part of the Note.
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Income
and Proceeds. The words “Income and Proceeds” mean all present and future
income, proceeds, earnings, increases, and substitutions from or for the Property of
every kind and nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends, stock
splits, stock rights, regulatory dividends, subscriptions, monies, claims for money due
and to become due, proceeds of any insurance on the Property, shares of stock of
different par value or no par value issued in substitution or exchange for shares
included in the Property, and all other property I am entitled to receive on account of
such Property, including accounts, documents, instruments, chattel paper, and general
intangibles.
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Indebtedness.
The word “Indebtedness” means the Indebtedness evidenced
by the Note or Related Documents, including all principal and interest together
with all other Indebtedness and costs and expenses for which I am responsible
under this Agreement or under any of the Related Documents.
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20 of 21
CONSUMER PLEDGE
AGREEMENT
(Continued)
Loan No. XXXXXXX
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Lender.
The word “Lender” means U.S. BANK NATIONAL ASSOCIATION,
its successors and assigns. The words “successors or assigns” mean any
person or company that acquires any interest in the Note.
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Note.
The word “Note” means the note or credit agreement dated
April 30, 2003, in the principal amount of $540,800.90 from XXXX X. XXXXXX to
Lender, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of and substitutions for the note or credit
agreement.
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Obligor.
The word “Obligor” means each and every person or company
that is obligated to pay money or to perform some other act under the Property
such as the person who pays dividends on stock.
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Property.
The word “Property” means all of my right, title and
interest in and to all the Property as described in the “Property
Description” section of this Agreement.
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Related
Documents. The words “Related Documents” mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter existing, executed in
connection with the Indebtedness.
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I HAVE READ AND
UNDERSTOOD ALL THE PROVISIONS OF THIS CONSUMER PLEDGE AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED APRIL 30, 2003.
GRANTOR:
| x |
/s/Xxxx X. Xxxxxx |
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XXXX X. XXXXXX, Individually |
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