EXHIBIT 99(d)(8)
draft 11/26/02
STOCK PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of November 29, 2002 between the Pledgors
named below (each, the "Pledgor"), and The Governor and Company of the Bank of
Scotland (the "Pledgee").
NOW, THEREFORE, it is agreed:
For good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, as collateral security for the due and punctual
payment and performance of all the Secured Obligations (as defined below),
Pledgor hereby deposits and pledges with Pledgee the shares of stock indicated
on Annex 1 hereto (all such shares, together with all other shares of stock
required to be deposited hereunder, the "Pledged Shares") and the promissory
notes (if any) indicated on Annex 1 hereto (said notes, to the extent of an
aggregate principal amount equal to the Specified Percentage of each such
promissory note, together any other debt security required to be deposited
hereunder to the extent of an aggregate principal amount equal to the Specified
Percentage of each such other debt security, collectively the "Pledged Debt";
the Pledged Shares and the Pledged Debt being sometimes referred to herein as
the "Pledged Securities") and hereby grants to Pledgee a security interest in
and a lien upon, and hereby assigns, transfers, pledges and sets over to
Pledgee, all of Pledgor's right, title and interest in and to the following (the
"Collateral"):
(a) the Pledged Securities;
(b) all dividends and interest on the Pledged Securities;
(c) all proceeds of the Pledged Securities and any of the other
Collateral;
(d) all collateral, liens and security interests securing the
obligations of any issuer of any of the Pledged Debt in connection with such
Pledged Debt;
(e) all other securities, money and other property required to be
pledged hereunder, and all rights related thereto; and
(f) all other rights of Pledgor with respect to the foregoing
Collateral.
Section 1. Definitions. (a) Unless otherwise specified, all terms
used in this Pledge Agreement shall have the same meaning as used in that
certain promissory note dated December [--], 2002 executed by FirstCity Consumer
Lending Corporation, a Texas corporation ("Borrower"), in favor of Pledgee, as
the same may from time to time be amended, restated, supplemented or otherwise
modified (as so amended, restated, supplemented or otherwise modified from time
to time, the "Note").
(b) Certain Phrases. All references to Sections in this Pledge
Agreement or in any schedule, exhibit or annex hereto shall be deemed references
to Sections in this Pledge Agreement unless otherwise specified. As used in this
Pledge Agreement, the terms "including," "including without limitation" and
"such as" (and like terms) are illustrative and not limitative. No difference
shall be imputed to the use in some places herein of "including" and in others
of "including without limitation." Phrases such as "hereof" and "herein" refer
to the entire Pledge Agreement and not just the section or other portion in
which said reference appears.
(c) Defined Terms. Terms used in this Pledge Agreement which are
defined below shall have the meanings specified below (unless otherwise defined
or the context shall otherwise indicate) and shall include in the singular
number the plural and in the plural number the singular. References to any
gender shall include all genders.
"Aggregate Collateral" shall mean, collectively, the Collateral (as
defined herein) and the Collateral (as defined in the Security Agreement).
"Collateral" shall have the meaning provided for such term in the
third paragraph hereof.
"dividends" shall include distributions on account of partnership,
limited liability company and other equity interests to the extent that the
Pledged Securities include partnership interests, limited liability company
interests or equity securities other than shares of stock.
"Drive Collateral" shall mean the Pledged Drive-GP Membership
Interests and the Pledged Drive Partnership Interests.
"Drive Note" shall mean any indebtedness of Drive, evidenced by a
promissory note or other instrument, that is incurred after the date hereof and
payable (by endorsement or otherwise) to Pledgor.
"Drive-GP Membership Interests" shall mean membership and other
equity interests in Drive-GP.
"Drive Partnership Interests" shall mean the aggregate of all
partnership and other equity interests in Drive and all rights and interests
relating thereto, including all related capital accounts and rights to receive
distributions, dividends, allocations and other amounts from time to time
payable in connection therewith.
"1933 Act" shall have the meaning provided for such term in Section
2(h) hereof.
"Pledged Collateral" shall mean all of the Pledged Securities (as
defined in the Security Agreement) and all of the Pledged Shares (as defined in
this Pledge Agreement).
"Pledged Debt" shall have the meaning provided for such term in the
third paragraph hereof.
"Pledged Drive-GP Membership Interests" shall mean Drive-GP
Membership Interests at any time held by CLC equal to 20% of all Drive Drive-GP
Membership Interests at the time outstanding.
"Pledged Drive Partnership Interests" shall mean Limited Partnership
Interests at any time held by Funding and beneficially owned by CLC equal to 20%
of all Limited Partnership Interests at the time outstanding.
"Pledged Shares" shall have the meaning provided for such term in
the third paragraph hereof.
"Pledged Securities" shall have the meaning provided for such term
in the third paragraph hereof.
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"Secured Obligations" shall mean (i) all obligations of Pledgor
under this Pledge Agreement and the other Loan Documents to which it is a party;
(ii) all obligations of the Borrower, for principal, interest or otherwise,
incurred under or in connection with the Note and the other Loan Documents;
(iii) all obligations of the Guarantor, for principal, interest or otherwise,
incurred under or in connection with the Guarantee Agreement and the other Loan
Documents; and (iv) all obligations of Borrower and Guarantor under the Fee
Letter; in each of the foregoing cases (i.e., clauses (i)-(iv) preceding)
whether such obligations are direct or indirect, joint or several, absolute or
contingent, due or to become due, now existing or hereafter arising.
"Transfer Restrictions" shall have the meaning provided for such
term in Section 2(c) hereof.
"written," "writing" and variations thereof shall refer to any form
of written communication or a communication by means of telecopier.
Section 2. Representations. Pledgor represents, warrants and
covenants as follows:
(a) The Pledged Securities are duly and validly issued, the Pledged
Shares are fully paid and non-assessable and all instruments evidencing any of
the Pledged Debt are the valid and binding obligations of the issuers thereof,
enforceable against such issuers in accordance with their respective terms. No
offsets, defenses or counterclaims by any issuer of Pledged Debt exist against
Pledgor.
(b) When deposited with Pledgee, the Pledged Securities will be duly
and validly pledged hereunder in accordance with applicable law, and Pledgor
warrants and covenants and agrees to defend Pledgee's rights and title in and to
the Pledged Securities against the claims and demands of all persons and
entities.
(c) Each Pledgor is the sole legal and equitable owner of, and has
good title to, all of the Pledged Securities listed on Annex 1 hereto as being
pledged by such Pledgor, free and clear of all claims, security interests,
mortgages, pledges, liens and other encumbrances of every nature whatsoever
except for (in certain instances) Permitted Collateral Liens and restrictions on
transfer of Partnership Interests imposed by the Shareholders Agreement (said
restrictions on transfer, the "Transfer Restrictions"). Pledgor has full power,
authority and legal right to pledge the Pledged Securities being pledged by such
Pledgor as herein provided.
(d) Each certificate evidencing the Pledged Shares is issued in the
name of Pledgor as provided in Annex 1 hereto, and each such certificate has
been duly executed in blank by Pledgor or has attached thereto an instrument of
transfer or assignment duly executed in blank by Pledgor, all in form and
substance satisfactory to Pledgee.
(e) The security interest described in this Pledge Agreement
represents a valid first lien on and security interest in the Collateral
superior and prior to the rights of all third persons or entities except for (in
certain instances) Permitted Collateral Liens and restrictions on transfer of
Partnership Interests imposed by the Shareholders Agreement.
(f) No filings or recordings (including, without limitation, under
the Uniform Commercial Code) are necessary to be made in order to perfect,
protect and preserve the lien on and security interest in the Collateral created
by this Pledge Agreement, except for a UCC-1 financing statement to be filed
with the Secretary of State of (i) Delaware with respect to Collateral pledged
by FC and (ii) Texas with respect to Collateral pledged by CLC.
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(g) Pledgor will not (i) sell, assign, transfer or otherwise dispose
of any of the Collateral, or any rights pertaining thereto, or (ii) create, or
suffer to be created or to exist, any mortgage, pledge, lien, security interest,
charge or encumbrance upon the Collateral or any part thereof, or upon the
income or profits thereof or any other rights related thereto, other than
pursuant to (or as permitted by) this Pledge Agreement, or (iii) subordinate its
right to receive any payment in respect of, or any of its other rights in
connection with, any Pledged Debt to that of any other Person or obligation, or
(iv) directly or indirectly amend, modify, surrender, compromise, accept
prepayment of, or waive any of its rights under, any of the Pledged Securities
(or agree to any of the foregoing) or take any action to enforce same without
the prior written consent of Pledgee. The issuer of the Pledged Securities by
its acknowledgement and consent hereto agrees that such will not be done without
such consent. Pledgor will, from time to time, promptly pay and discharge all
taxes, assessments and other governmental charges, the lien of which would or
might be prior or equal to the lien of this Pledge Agreement, imposed upon the
Collateral or any part thereof or upon the income or profits therefrom, and also
all taxes, assessments and other governmental charges imposed upon the lien or
interest of Pledgee under this Pledge Agreement or in respect of the Collateral,
and at its expense will take all such other action as from time to time may be
necessary or appropriate to preserve the lien of this Pledge Agreement on the
Collateral as a first lien (subject to any Permitted Collateral Lien) thereon.
(h) This Pledge Agreement has been duly authorized by all necessary
action (corporate or otherwise) on the part of Pledgor and Pledgor has obtained
all consents and approvals (governmental, third party or otherwise) necessary in
connection therewith, including without limitation all such consents and
approvals necessary for Pledgee to sell, assign or otherwise transfer any or all
of the Pledged Securities to a third party as provided in Section 8 hereof
(except to the extent that any such sale may require compliance with the
Securities Act of 1933 (the "1933 Act") or comparable provisions of any
applicable state securities laws). This Pledge Agreement is Pledgor's valid and
binding obligation, enforceable against Pledgor in accordance with its terms.
(i) The Pledged Shares now constitute and shall at all times in the
future constitute 100% of the issued and outstanding shares of the issuer
thereof (80% in the case of the shares of Funding-GP).
(j) Pledgor hereby agrees to immediately, upon receipt thereof,
deliver to Pledgee all certificates representing any additional shares of stock
or other equity securities of each issuer of Pledged Securities that are
hereafter acquired by Pledgor, each such certificate to be duly executed in
blank or have attached thereto a stock power duly signed in blank by Pledgor.
(k) Pledgor will cause each Person whose shares are being pledged by
it hereunder and which is a directly or indirectly owned Subsidiary of such
Pledgor to note on its stock and record books the pledge in favor of Pledgee
that is granted hereunder.
Each of the foregoing representations and warranties which is qualified to the
extent set forth in the Disclosure Letter is hereby qualified, for all purposes
of this Agreement, by the qualifications (if any) set forth in the Disclosure
Letter.
Section 3. Transfer of Shares. At any time when a Default or Event
of Default exists, Pledgee may cause all or any of the Pledged Securities to be
transferred into its name or that of a nominee or nominees (to the extent that
any of the Pledged Securities are not already so transferred).
Section 4. Voting Rights Prior to Event of Default. So long as an
Event of Default shall not have occurred and be continuing, Pledgor shall be
entitled, to the extent not inconsistent with this Pledge Agreement, the Note,
the Guarantee Agreement, or any other Loan Document:
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(a) To exercise the voting power with respect to the Pledged
Securities and for that purpose Pledgee shall execute or cause to be executed
from time to time (at the expense of Pledgor) such proxies or other instruments
in favor of Pledgor or its nominee, in such form and for such purposes as shall
be reasonably required by Pledgor and as shall be specified in a written request
therefor, to enable it to exercise such voting power with respect to the Pledged
Securities; provided that such voting power shall not, without Pledgee's prior
written consent, be exercised by Pledgor to (i) adversely affect the maturity,
interest rate, principal amount or any subordination provisions of any of the
Pledged Debt, (ii) subordinate or terminate any of the Pledged Debt, (iii)
commence any foreclosure action or exercise any other remedy under any of the
Pledged Debt, (iv) otherwise adversely affect the interests of Pledgee in
connection with any of the Pledged Securities; or (v) in any manner that is
inconsistent with the terms of this Pledge Agreement, the Note, the Guarantee
Agreement or any other Loan Document;
(b) To receive and retain for its own account (except as otherwise
required by Section 5 below) any and all dividends (other than stock dividends
and liquidating dividends), interest and principal at any time and from time to
time paid, or declared or permitted to be paid, upon any of the Pledged
Securities; and
(c) To exercise any conversion, option or similar right permitted by
the terms of any of the Pledged Securities (subject, however, to Section 6
hereof), but only with the prior written consent of Pledgee.
Section 5. Distributions. (a) Pledgor hereby agrees to pay directly
to Pledgee, for application as provided in Section 9 hereof, the Specified
Percentage of all Distributions paid to it that are directly attributable to
Distributions (other than Tax Distributions) paid by any of the Drive Entities.
(b) Any such Distributions paid to Pledgor that are required by the
terms hereof to be paid to Pledgee shall, until so paid to Pledgee, be received
by Pledgor on behalf of and in trust for Pledgee.
Section 6. Dissolution of Issuer; Stock Dividends. If, upon the
dissolution or liquidation (in whole or in part) of the issuer of any of the
Pledged Securities, any sum shall be paid upon or with respect to any of the
Pledged Securities, such sum shall be promptly paid over to Pledgee, to be
applied as set forth in Section 9 hereof. In case any stock or similar dividend
shall be declared on any of the Pledged Securities, or any shares of stock or
other debt or equity securities shall be issued upon conversion of any of the
Pledged Securities (or the exercise of any option or similar right), or any
shares of stock or fractions thereof shall be issued pursuant to any stock split
or merger involving any of the Pledged Securities, or any distribution of
capital shall be made on any of the Pledged Securities, or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital stock of the issuer of any
of the Pledged Securities or the merger or reorganization thereof or otherwise
(including without limitation as a result of any default by the issuer of any of
the Pledged Debt and any resultant realization upon any collateral therefor),
the shares or other property so distributed shall be delivered promptly to
Pledgee (accompanied, where applicable, by proper instruments of assignment
and/or stock powers executed by Pledgor in accordance with Pledgee's
instructions) to be held by it as collateral security for the Secured
Obligations (or, with respect to distributions of capital or other monies, to be
applied as set forth in Section 9 hereof). No monies shall be required to be
paid to Pledgee under this Section 6 to the extent they do not represent,
directly or indirectly, payments in respect of Drive Collateral.
Section 7. Voting Rights After Event of Default. If any Event of
Default shall have occurred and be continuing:
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(a) Pledgee shall thereafter be entitled (i) to exercise the voting
power with respect to the Pledged Securities (but only, unless ownership of said
securities has been transferred in accordance with the terms of this Pledge
Agreement, insofar as the decisions affect ownership or control of (or other
matters relating to) Funding or a Drive Entity, (ii) to receive and apply as set
forth in Section 9 hereof any and all dividends, principal and interest at any
time and from time to time declared or paid upon any of the Pledged Securities
to the extent such dividends, principal or interest can be traced to the
Specified Percentage of dividends, principal, interest or other payments
declared or made by a Drive Entity, and (iii) to exercise any conversion, option
or similar right permitted by the terms of any of the Pledged Securities; and
(b) any dividends, principal, interest or other sums paid to Pledgor
upon or with respect to any of the Pledged Securities (but not any amounts that
cannot be traced to the Specified Percentage of any dividends, principal,
interest or other payments declared or made by a Drive Entity) shall be received
by Pledgor on behalf of and in trust for Pledgee and shall be paid over promptly
to Pledgee, to be applied as set forth in Section 9 hereof.
Section 8. Certain Rights of Pledgee After Event of Default. (a) If
any Event of Default shall have occurred and be continuing, Pledgee may exercise
all rights of a secured party under the Uniform Commercial Code and, without
obligation to resort to other security, may at any time and from time to time:
(i) sell, resell, assign and deliver, in its discretion, all or any
of the Pledged Securities, in one or more parcels at the same or different
times, and all right, title and interest, claim and demand therein and right of
redemption thereof, on any securities exchange on which the Pledged Securities
or any of them may then be listed, or at public or private sale, for cash, upon
credit or for future delivery, and at such price or prices and on such terms as
Pledgee may determine, Pledgor hereby agreeing that, upon such sale, any and all
equity or right of redemption of Pledgor shall be automatically waived and
released without any further action on the part of Pledgor, and in connection
therewith Pledgee may grant options, all without either demand, advertisement or
notice (except as required by law), all of which (to the extent permitted by
law) are hereby expressly waived. In the event of any such sale, Pledgee shall
give Pledgor ten days prior written notice of its intention to sell . Upon each
such sale, Pledgee may purchase, to the extent permitted by the NYUCC (as
defined in the Security Agreement) all or any of the Pledged Securities being
sold, free from any equity or right of redemption, which, upon each such sale,
shall be waived and released. Any such sale or other disposition shall be made
in a commercially reasonable manner. The proceeds of each such sale shall be
applied as provided in Section 9 hereof, and Pledgor (subject to the provisions
of Section 1.9 of the Note) will continue liable for any deficiency with respect
to any of the Secured Obligations remaining unpaid. The balance, if any,
remaining after indefeasible cash payment in full of the Secured Obligations and
when the Fee Letter is no longer in effect shall be paid over to Pledgor or its
designee. For the purposes of this Section 8, an agreement to sell any or all
the Pledged Securities entered into after the applicable notice period specified
above shall be treated as a sale thereof, and Pledgee shall be entitled to carry
out such sale pursuant to such agreement and Pledgor shall not be entitled to
the return of any of the Pledged Securities subject thereto notwithstanding the
fact that after Pledgee shall have entered into any such agreement Pledgor or
another Loan Party shall have tendered payment in full of the Secured
Obligations; and
(ii) appropriate and apply all money held as part of the Collateral
to the Secured Obligations.
(b) Pledgor recognizes that, by reason of certain prohibitions
contained in the 1933 Act and applicable state securities laws, Pledgee may be
compelled, with respect to any sale of all or any part of the Collateral, to
limit purchasers to those who will agree, among other things, to acquire the
Collateral
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for their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges that any such private sale may be at prices
and on terms less favorable to Pledgee than those obtainable through a public
sale without such restrictions, and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that Pledgee shall have no obligation to engage in public
sales and no obligation to delay the sale of any Collateral for the period of
time necessary to permit the respective issuer thereof to register it for public
sale.
Section 9. Distribution of Proceeds. (a) Except as otherwise
provided herein, all money that Pledgee shall receive, in accordance with the
provisions hereof, whether by sale of the Pledged Securities or otherwise, shall
be applied in the following manner: First, to the payment of all costs and
expenses incurred in connection with the administration and enforcement of, or
the preservation of any rights under, this Pledge Agreement or any of the
reasonable expenses and disbursements of Pledgee (including without limitation
the fees and disbursements of its counsel and agents); Second, to the payment of
the Secured Obligations in such order as Pledgee may determine; and Third, as
provided under clause (b) below. Any surplus monies held by Pledgee and
remaining when the Fee Letter is no longer in effect and all the Secured
Obligations have been indefeasibly paid in full shall be paid over to Pledgor or
to whomsoever may be lawfully entitled to receive such surplus.
(b) If any monies are paid hereunder to Pledgee at any time when the
Fee Letter is in effect but no Secured Obligations are outstanding, 20% of all
monies that can be traced to the Pledged Drive Partnership Interests or Pledged
Drive-GP Membership Interests or Pledged Debt shall be paid to Pledgee pursuant
to and in accordance with the Fee Letter (and the 80% balance shall be delivered
to Pledgor or whomsoever may then be lawfully entitled to receive same).
Section 10. Suretyship Waivers by Pledgor. Pledgor waives demand,
notice, protest, notice of acceptance of this Pledge Agreement, notice of loans
made, credit extended, Collateral received or delivered or other action taken in
reliance hereon and all other demands and notices of any description. With
respect to both the Secured Obligations and the Collateral, Pledgor assents to
any extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of or failure to perfect any security
interest in any Collateral, to the addition or release of any party or person
primarily or secondarily liable, to the acceptance of partial payment thereon
and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as Pledgee may deem advisable. Pledgee shall have no
duty as to the collection or protection of the Collateral or any income thereon,
nor as to the preservation of rights against prior parties, nor as to the
preservation of any rights pertaining thereto. Pledgor further waives any and
all other suretyship defenses.
Section 11. Marshalling. (a) Pledgee shall not be required to
marshal any present or future collateral security (including but not limited to
any of the Aggregate Collateral) for, or other assurances of payment of, the
Secured Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order, and all of its rights
hereunder and under the other Loan Documents and in respect of the collateral
security hereunder and thereunder and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may, each of Guarantor and Pledgor hereby agrees
that it will not invoke any law relating to the marshalling of collateral which
might cause delay in or impede the enforcement of Pledgee's rights under this
Pledge Agreement, the Security Agreement or under any other instrument creating
or evidencing any of the Secured Obligations or under which any of the Secured
Obligations is outstanding or by which any of the Secured Obligations is secured
or payment thereof is otherwise assured, and, to the extent that it lawfully
may, each of Guarantor and Pledgor hereby irrevocably waives the benefits of all
such laws.
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(b) Without limiting the generality of clause Section 11 of this
Section 11, Pledgor acknowledges that Pledgee shall not be required to elect
which of the Pledged Collateral to foreclose or otherwise realize upon but shall
be entitled (subject to applicable law) to foreclose or otherwise realize upon
such of the Pledged Collateral as it chooses.
Section 12. Excess from Foreclosure. Notwithstanding anything to the
contrary contained herein, if Pledgee forecloses or otherwise realizes upon
Pledged Collateral that represent a beneficial interest in more than 20% of all
outstanding Drive Partnership Interests (by itself or in combination with
Drive-GP Membership Interests), Pledgee will make equitable arrangements with FC
or CLC to grant it a record or beneficial interest in such excess (although
Pledgee may retain voting rights in such excess with respect to matters directly
or indirectly relating to the Drive Collateral) or to otherwise provide that the
net proceeds of such excess, when monetized, will be paid to FC or CLC (as the
case may be). Pledgee acknowledges that on the date this Pledge Agreement was
originally executed, the percentage of Drive Partnership Interests owned
beneficially by CLC and of record by Funding (and the percentage of Drive-GP
Membership Interests owned beneficially and of record by CLC) exceeds the amount
of Pledged Drive Partnership Interests and Pledged Drive-GP Memberships.
Section 13. Cumulative Remedies; Standard of Care. The rights,
powers and remedies (collectively, the "Rights") provided herein in favor of
Pledgee shall not be deemed exclusive, but shall be cumulative, and shall be in
addition to all other Rights in favor of Pledgee existing at law or in equity,
including (without limitation) all of the Rights available to a secured party
under the provisions of the Uniform Commercial Code as adopted in any
appropriate jurisdiction. Pledgee shall exercise the same care and diligence in
holding the Pledged Securities that Pledgee would devote to the custody of
securities and certificates owned by Pledgee.
Section 14. Sale of Pledged Shares. If any Event of Default shall
have occurred, Pledgee shall have the right, for and in the name, place and
stead of Pledgor, to execute endorsements, assignments or other instruments of
conveyance or transfer with respect to all or any of the Pledged Securities and
the other Collateral.
Section 15. Delay; Amendment. (a) No delay on the part of Pledgee in
exercising any of its rights, or partial or single exercise thereof, shall
constitute a waiver thereof. No provision of this Pledge Agreement shall (as to
any Pledgor) be waived, amended, supplemented or otherwise modified except by a
written instrument executed by such Pledgor and Pledgee. Notwithstanding the
foregoing, no amendment of Annex 1 hereto to reflect a change of ownership of
any Pledged Securities shall require the signature of any Pledgor other than
that whose securities are being transferred or acquired and no amendment of this
Pledge Agreement or Annex 1 hereto to add any Person as a pledgor hereunder
shall require the signature of any Pledgor other than the Person whose
securities are being pledged.
(b) THIS PLEDGE AGREEMENT (AND THE OTHER LOAN DOCUMENTS) REPRESENTS
THE FINAL AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS COVERED
HEREBY AND THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(c) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 16. Survival of Obligations. The obligations of Pledgor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by: (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of Pledgor or any issuer of
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the Pledged Securities; (b) any exercise or non-exercise, or any waiver, by
Pledgee of any Right under or in respect of the Secured Obligations or any
security for any of the Secured Obligations (other than this Pledge Agreement);
or (c) any amendment to or modification of the Note, the Loan Documents, the
Secured Obligations or any security for any of the Secured Obligations (other
than this Pledge Agreement), whether or not Pledgor shall have notice or
knowledge of any of the foregoing.
Section 17. Return of Pledged Securities. When the Fee Letter is no
longer in effect and all of the Secured Obligations have been indefeasibly paid
in full in cash, Pledgor (except to the extent otherwise contemplated by this
Pledge Agreement) shall be entitled to the return of all of the Pledged
Securities and of all Collateral which have not been used or applied toward the
payment in full of the Secured Obligations, without representation or warranty
of any kind by Pledgee (except a representation that Pledgee has not encumbered
said Pledged Securities).
Section 18. Assignment. This Pledge Agreement is binding upon
Pledgor, Pledgee and their respective executors, administrators, successors and
assigns and shall inure to the benefit of Pledgee and its successors and
assigns. Pledgor may not assign its rights or obligations hereunder without the
prior written consent of Pledgee, and any such purported assignment shall be
void. All agreements, representations and warranties made herein shall survive
the execution, delivery and performance of this Pledge Agreement.
Section 19. Governing Law. THIS PLEDGE AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OF
LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
Section 20. Further Assurances. (a) Pledgor hereby agrees, at its
own expense, to execute and deliver, from time to time, any and all further, or
other, instruments, and to perform such acts, as Pledgee may reasonably request
to effect the purposes of this Pledge Agreement and to secure to Pledgee the
benefits of all rights, authorities and remedies conferred upon Pledgee by the
terms of this Pledge Agreement. In the event that at any time hereafter, due to
any change in circumstances, including without limitation, any change in any
applicable law, or any decision hereafter made by a court construing any
applicable law, it is, in the opinion of counsel for Pledgee, necessary or
desirable to file or record this Pledge Agreement or any financing statement or
other instrument or document respecting this Pledge Agreement or the pledge made
hereunder, Pledgor agrees to pay all fees, costs and expenses of such recording
or filing and to execute and deliver any instruments that may be necessary or
appropriate to make such filing or recording effective. Pledgee shall have the
right to file any such financing statements without the signature of Pledgor to
the extent permitted by applicable law.
(b) Pledgor agrees that if any Drive Notes are issued to it or any
other member of the FC Group after the date hereof, Pledgor shall at its own
expense forthwith (or cause such other Person to forthwith) endorse, assign and
deliver the same to Pledgee, accompanied by such instruments of transfer or
assignment duly executed in blank as Pledgee may from time to time specify.
Section 21. Attorney-in-Fact. Pledgee is hereby appointed the
attorney-in-fact of Pledgor for the purpose of carrying out the provisions
hereof and taking any action and executing any instruments (including without
limitation financing statements, continuation statements, conveyances,
assignments and transfers) which Pledgee may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, if any Event of Default shall have occurred, Pledgee shall have the
right and power to receive, endorse and collect all checks made payable to the
order of Pledgor
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representing any distribution in respect of the Pledged Securities or the other
Collateral or any part thereof and to give full discharge for the same.
Section 22. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
Section 23. Indemnification. (a) Pledgor agrees to indemnify Pledgee
from and against any and all claims, damages, losses, liabilities and expenses
arising out of or in connection with or resulting from this Pledge Agreement
(including without limitation, enforcement of this Pledge Agreement), unless and
to the extent that such claims, damages, losses, liabilities or expenses are
attributable to Pledgee's gross negligence or wilful misconduct as determined by
a final, non-appealable judgment of a court of competent jurisdiction.
(b) Pledgor will upon demand promptly pay to Pledgee the amount of
any and all costs and expenses incurred in connection with the preparation,
administration and enforcement of, or the preservation of any rights under, this
Pledge Agreement and the reasonable expenses and disbursements of Pledgee
(including without limitation the fees and disbursements of its counsel and
agents).
(c) To the extent a Pledgor is also a party to the Note or the
Guarantee Agreement or another Loan Document, the foregoing provisions of this
Section 23 are (with respect to such Pledgor) in furtherance and not in
limitation of Pledgor's obligations under such other Loan Document(s).
(d) The provisions of this Pledge Agreement are subject to those of
Section 1.9 of the Note.
Section 24. Notices; Headings. (a) Any notice or demand upon Pledgor
under this Pledge Agreement shall be deemed to have been sufficiently given or
served for all purposes hereof when mailed, postage prepaid, by registered or
certified mail, return receipt requested, or when telegraphed, telecopied or
telexed or delivered by hand (such term to include delivery by Federal Express
or similar courier service), to Pledgor at its address set forth below or at
such other address as Pledgor may designate in a writing mailed, delivered,
telegraphed, telecopied or telexed to Pledgee, provided that in the case where
Pledgee is required to give only three days' notice of a proposed sale of the
Collateral such notice if delivered by mail shall not be deemed given until
delivered. All notices to Pledgee provided for herein shall be deemed to have
been given when delivered by mail or by hand, or telegraphed, telecopied or
telexed, to Pledgee at its address set forth below or at such other address as
Pledgee may designate in a writing mailed, delivered, telegraphed, telecopied or
telexed to Pledgor.
(b) The descriptive headings of the various provisions of this
Pledge Agreement are inserted for convenience of reference only and shall not
affect the meaning or construction of any of the provisions of this Pledge
Agreement.
Section 25. Jurisdiction. Pledgor hereby agrees that ANY LEGAL
ACTION OR PROCEEDING AGAINST PLEDGOR WITH RESPECT TO THIS PLEDGE AGREEMENT OR
THE OTHER DOCUMENTS CONTEMPLATED HEREBY OR REFERRED TO HEREIN MAY BE BROUGHT IN
ANY COURT IN THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AS PLEDGEE MAY ELECT, AND BY EXECUTION AND
DELIVERY OF THIS PLEDGE AGREEMENT PLEDGOR GENERALLY AND UNCONDITIONALLY ACCEPTS
FOR ITSELF AND IN RESPECT TO ITS PROPERTY,
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GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, unless waived by Pledgee in
writing, with respect to any action or proceeding brought by it against Pledgee
and any questions relating to usury, and further consents (to the extent
permitted by applicable law) to the service of process in any such action or
proceeding being made upon Pledgor by registered or certified mail or by Federal
Express (or other similar overnight courier service) at the address stated
alongside its name on the signature page hereof or at such other address as
Pledgor is notified of in accordance with Section 24 hereof), such service being
hereby acknowledged by Pledgor as being effective and binding service in every
respect. Pledgor waives any right to stay or to dismiss any action or proceeding
brought before any of said courts on the basis of forum non conveniens. Nothing
herein shall affect the right of Pledgee to serve process in any other manner
permitted by applicable law or shall limit the right of Pledgee to bring actions
and proceedings against Pledgor in the courts of any other jurisdiction.
Section 26. Specific Performance. Pledgor agrees that its
obligations and the rights of Pledgee hereunder and under the Secured
Obligations may be enforced by specific performance hereof and thereof and
temporary, preliminary and/or final injunctive relief relating hereto and
thereto, without necessity for proof by Pledgee that Pledgee would otherwise
suffer irreparable harm, and Pledgor hereby consents to the issuance of such
specific injunctive relief.
Section 27. Separate Agreement. This Pledge Agreement is intended to
be a separate agreement between each Pledgor and Pledgee; as such, the consent
of no other Person (including other Pledgors) is required for any waiver,
amendment, supplement or other modification of Pledgee's agreement hereunder
with any particular Pledgor.
Section 28. Waiver of Jury Trial. EACH OF PLEDGEE AND PLEDGOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT, THE NOTES OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF PLEDGEE, PLEDGOR, ANY OTHER PLEDGOR, THE
BORROWER OR ANY OTHER LOAN PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
PLEDGEE ENTERING INTO THIS PLEDGE AGREEMENT, THE LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
Section 29. Counterparts. This Pledge Agreement may be executed in
any number of counterparts, and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Telecopied
signatures hereto shall be of the same force and effect as an original of a
manually signed copy.
IN WITNESS WHEREOF, Pledgor and Pledgee have duly executed and
delivered this Pledge Agreement as of the date first above written.
Address
FirstCity Financial Corporation, Pledgor For Deliveries (including,
e.g., FedEx)
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000
By_____________________________ Attn: Legal Dept.
Name: Xxxxx X. Xxxxxxx
Title: President For Mail
XX Xxx 0000
-00-
Xxxx, Xxxxx 00000-0000
Attn: Legal Dept.
fax: 254/000-0000
FirstCity Consumer Lending Corporation, Pledgor For Deliveries (including,
e.g., FedEx)
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx 00000
By_____________________________ Attn: Legal Dept.
Name: Xxxxx X. Xxxxxxx
Title: Chairman of the Board For Mail
XX Xxx 0000
Xxxx, Xxxxx 00000-0000
Attn: Legal Dept.
fax: 254/000-0000
The Governor and Company
of the Bank of Scotland, Pledgee c/o Bank of Scotland
000 Xxxxx Xxxxxx
Xx_____________________________ Xxx Xxxx, XX 00000
Name: Xxxx X Xxxxx fax: 212/000-0000
Title: Executive Vice President
Acknowledged and Consented to:
[issuer of pledged debt]
By ____________________________
Name:
Title:
[This is a signature page for Stock Pledge Agreement dated as of
November 29, 2002]
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Annex 1 to
Stock Pledge Agreement
Pledged Securities
Pledged Shares
No. of
Pledgor Issuer Class Shares Cert. No.
------- ------ ----- ------ ---------
FC CLC common? [-------] [--------]
CLC Funding-GP common? [-------] [--------]
[Xxxxxx & Xxxxx to complete]
Pledged Debt
Name of Principal
Pledgor Issuer Security Amount Cert. No.
------- ------ -------- --------- ---------
[None at present]
Key to definitions used above
CLC= FirstCity Consumer Lending Corporation, a Texas corporation
FC = FirstCity Financial Corporation, a Delaware corporation
Funding-GP = FirstCity Funding GP Corp., a Texas corporation
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