EXHIBIT 10.11(d)
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("AGREEMENT"), dated as of October 1, 1999,
made by Xxxxxxx Xxxx, an individual residing at [XXXADDRESS DELETED FOR
PRIVACYXXX](the "PLEDGOR"), to Aames Financial Corporation, a Delaware
corporation ("AAMES").
WHEREAS, on the date hereof, the Pledgor is purchasing
shares of Aames' Series C Convertible Preferred Stock, par value $0.001 per
share ("SERIES C PREFERRED STOCK"), pursuant to a Management Investment
Agreement, dated the date hereof, between Pledgor and Aames (the "MANAGEMENT
INVESTMENT AGREEMENT"); and
WHEREAS, as part of the transactions contemplated by the
Management Investment Agreement, the Pledgor is executing and delivering to
Aames a Secured Promissory Note dated as of the date hereof in favor of Aames
(the "AAMES NOTE") as part of the purchase price for the Series C Preferred
Stock, and in accordance with the terms and conditions set forth herein,
pledging 150,000 shares of the Series C Preferred Stock, together with any
shares of Aames' common stock, par value $0.001 per share that may be
acquired upon conversion of the Series C Preferred Stock (the "UNDERLYING
COMMON SHARES, and, together with the shares of Series C Preferred Stock, the
"PLEDGED SHARES").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, and in order to induce Aames to
accept the Aames Note, the Pledgor hereby agrees as follows:
SECTION 1. PLEDGE. The Pledgor hereby pledges to Aames,
and grants to Aames a security interest in, the following (the
"PLEDGED COLLATERAL"):
(i) the Pledged Shares and the certificates representing
the Pledged Shares, and all dividends, cash, instruments and other property
of any character whatsoever (including, without limitation, shares of Common
Stock) from time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of the Pledged
Shares; and
(ii) all proceeds of any and all of the foregoing
collateral (including, without limitation, proceeds that constitute property
of the types described above).
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures
the payment of all obligations, whether for principal, interest, fees,
expenses or otherwise, now or hereafter existing, of the Pledgor under the
Aames Note and under this Agreement (all such obligations of the Pledgor
being the "OBLIGATIONS"). Without limiting the generality of the foregoing,
this Agreement secures the payment of all amounts which constitute part of
the Obligations and would be owed by the Pledgor to Aames under the Aames
Note or this Agreement but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Pledgor.
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates
or instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Aames pursuant hereto and shall be
in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Aames. Aames shall have the right, at any time in
its discretion and without notice to the Pledgor, to transfer to or to have
registered in the name of Aames or any of its nominees any or all of the
Pledged Collateral, subject only to the revocable rights specified in Section
6(a). For the better perfection of Aames's rights in and to the Pledged
Collateral, the Pledgor shall forthwith, upon the pledge of any Pledged
Collateral hereunder, cause such Pledged Collateral to be registered in the
name of Aames or such nominee or nominees of Aames as Aames shall direct,
subject only to the revocable rights specified in Section 6(a). In addition,
Aames shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The
Pledgor represents and warrants as follows:
(a) Neither the execution nor the delivery by the Pledgor of
this Agreement nor the consummation by the Pledgor of the transactions
contemplated hereby, nor compliance with nor fulfillment by the Pledgor
of the terms and provisions hereof, will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a
default under any lease, contract, instrument, mortgage, deed of trust,
trust deed or deed to secure debt evidencing or securing indebtedness
for borrowed money,
financing lease, law, rule, regulation, judgment, order, award, decree
or other restriction of any kind to which the Pledgor is a party or by
which he is bound.
(b) This Agreement has been duly executed and delivered by the
Pledgor and is the legal, valid and binding obligation of the Pledgor,
enforceable against the Pledgor in accordance with its terms.
(c) There is no action, lawsuit, claim, counterclaim,
proceeding, or investigation (or group of related actions, lawsuits,
claims, proceedings or investigations) pending or, to the knowledge of
the Pledgor, threatened, relating to or challenging the Pledgor's
obligations under this Agreement or the pledge of the Pledged
Collateral hereunder.
(d) The Pledgor is the legal and beneficial owner of the
Pledged Collateral free and clear of any lien, security interest,
option or other charge or encumbrance except for the security interest
created by this Agreement.
(e) The pledge of the Pledged Shares pursuant to this
Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral, securing the payment of the
Obligations.
(f) No consent of any other person or entity and no
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required (i) for
the pledge by the Pledgor of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this
Agreement by the Pledgor, (ii) for the perfection or maintenance of the
security interest created hereby (including the first priority nature
of such security interest) or (iii) for the exercise by Aames of the
voting or other rights provided for in this Agreement or the remedies
in respect of the Pledged Collateral pursuant to this Agreement (except
as may be required in connection with any disposition of any portion of
the Pledged Collateral by laws affecting the offering and sale of
securities generally).
(g) There are no conditions precedent to the effectiveness of
the Pledgor's obligations under this Agreement that have not been
satisfied or waived.
SECTION 5. FURTHER ASSURANCES. (a) The Pledgor agrees that
at any time and from time to time, at the expense of the Pledgor, the Pledgor
will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that Aames
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Aames to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral.
(b) The Pledgor hereby authorizes Aames to file one or more
financing or continuation statements, and amendments thereto, relating to all
or any part of the Pledged Collateral without the signature of the Pledgor
where permitted by law. A photocopy or other reproduction of this Agreement
or any financing statement covering the Pledged Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
SECTION 6. VOTING RIGHTS; DIVIDENDS, ETC. (a) so long as
no Event of Default (as defined in the Aames Note) or event which, with the
giving of notice or the lapse of time, or both, would become such an Event
of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from
exercising any and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the Aames Note;
PROVIDED, HOWEVER, that the Pledgor shall not exercise or refrain from
exercising any such right if, in Aames's judgment, such action would
have a material adverse effect on the value of the Pledged Collateral
or any part thereof.
(ii) The Pledgor shall be entitled to any and all dividends
paid in respect of the Pledged Collateral; PROVIDED, HOWEVER, that any
and all dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral,
shall be, and shall be forthwith delivered to Aames to hold as, Pledged
Collateral and shall, if received by the Pledgor, be received in trust
for the benefit of Aames, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to Aames as Pledged
Collateral in the same form as so received (with any
necessary endorsement or assignment); and PROVIDED, FURTHER, that
the after tax amount of any cash dividends, proceeds, or other
distributions paid in respect of the Pledged Collateral shall be
applied as an immediate prepayment in respect of the Aames Note,
with such prepayments to be applied first to the payment of all
interest accrued on, and then to the payment of unpaid principal of,
the Aames Note.
(iii) Aames shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies and other instruments as
the Pledgor may reasonably request for the purpose of enabling the
Pledgor to exercise the voting and other rights which it is entitled to
exercise pursuant to paragraph (i) above and to receive the dividends
which it is authorized to receive and retain pursuant to paragraph (ii)
above.
(b) Upon the occurrence and during the continuance of an Event
of Default or an event which, with the giving of notice or the lapse of time, or
both, would become an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from
exercising the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 6(a)(i) shall,
upon notice to the Pledgor by Aames, cease and (y) to receive the
dividends payments which it would otherwise be authorized to receive
and retain pursuant to Section 6(a)(ii) shall automatically cease, and
all such rights shall thereupon become vested in Aames (or its
designee), who shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to
receive and hold as Pledged Collateral such dividends.
(ii) All dividends which are received by the Pledgor contrary
to the provisions of paragraph (i) of this Section 6(b) shall be
received in trust for the benefit of Aames, shall be segregated from
other funds of the Pledgor and shall be forthwith paid over to Aames as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
SECTION 7. TRANSFERS AND OTHER LIENS. The Pledgor agrees
that it will not (i) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the Pledged
Collateral or (ii) create or
permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement and except for any such sale the
proceeds from which are used to repay all unpaid principal of, and accrued
interest on, the Aames Note (with such proceeds first being applied to
accrued interest and then to principal).
SECTION 8. APPOINTMENT OF ATTORNEY-IN-FACT. The Pledgor
hereby appoints Aames Financial Corporation the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of
the Pledgor or otherwise, from time to time in Aames's discretion to take any
action and to execute any instrument that Aames may deem necessary or
advisable to accomplish the purposes of this Agreement (subject to the rights
of the Pledgor under Section 6), including, without limitation, to receive,
indorse and collect all instruments made payable to the Pledgor representing
any dividend or other distribution in respect of the Pledged Collateral or
any part thereof and to give full discharge for the same.
SECTION 9. AAMES MAY PERFORM. If the Pledgor fails to
perform any agreement contained herein and does not cure such failure within
10 days after its receipt of written notice from Aames, Aames may itself
perform, or cause performance of, such agreement, and the expenses of Aames
incurred in connection therewith shall be payable by the Pledgor under
Section 12.
SECTION 10. AAMES' DUTIES. The powers conferred on Aames
hereunder are solely to protect its interest in the Pledged Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Pledged Collateral in its possession and the accounting
for moneys actually received by it hereunder, Aames shall have no duty as to
any Pledged Collateral as to ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Collateral, whether or not Aames has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Pledged Collateral. Aames shall be deemed to have exercised reasonable care
in the custody and preservation of any Pledged Collateral in its possession
if such Pledged Collateral is accorded treatment substantially equal to that
which Aames accords its own property.
SECTION 11. REMEDIES UPON DEFAULT. If any Event of
Default shall have occurred and be continuing:
(a) Aames may exercise in respect of the Pledged Collateral,
in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code in effect in the
State of Delaware at that time (the "Code") (whether or not the Code
applies to the affected Collateral), and may also, without notice
except as specified below, sell the Pledged Collateral or any part
thereof in one or more parcels at public or private sale, at any
exchange or broker's board or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Aames may deem
commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least ten days' notice to the
Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. Aames shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. Aames may
adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(b) Any cash held by Aames as Pledged Collateral and all cash
proceeds received by Aames in respect of any sale of, collection from
or other realization upon all or any part of the Pledged Collateral
may, in the discretion of Aames, be held by Aames as collateral for,
and/or then or at any time thereafter be applied (after payment of any
amounts payable to Aames pursuant to Section 12) in whole or in part by
Aames against, all or any part of the Obligations in such order as
Aames shall elect. Any surplus of such cash or cash proceeds held by
Aames and remaining after payment in full of all the Obligations shall
be paid over to the Pledgor or to whomsoever may be lawfully entitled
to receive such surplus.
SECTION 12. EXPENSES. The Pledgor will upon demand pay to
Aames the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, which Aames
may incur in connection with (i) the exercise or enforcement of any of the
rights of Aames
hereunder or (ii) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION 13. SECURITY INTEREST ABSOLUTE. The obligations of
the Pledgor under this Agreement are independent of the Obligations, and a
separate action or actions may be brought and prosecuted against the Pledgor
to enforce this Agreement. All rights of Aames and security interests
hereunder, and all obligations of the Pledgor hereunder, shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of the Aames Note
any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations, or any other
amendment or waiver of or any consent to any departure from the Aames
Note;
(iii) any taking, exchange, release or nonperfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the
Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Obligations
or any other assets of the Pledgor;
(v) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor.
SECTION 14. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed by the parties hereto, and no consent to any
departure by one party herefrom, shall in any event be effective unless the
same shall be in writing and signed by the other party, and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 15. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and
sent by express courier, telecopied, telegraphed, telexed or hand-delivered,
if to the Pledgor, at his address first set forth above; and, if to Aames, at
its address at 2 California Plaza, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, XX
00000, Attention: Xxxx Xxxxxxxx; or, as to each party, at such other address
as shall be designated by such party in a written notice to the other party.
All such notices and communications shall, when sent by express courier, be
effective three days after being sent, when telecopied, telegraphed, telexed
or hand-delivered, be effective when telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered, respectively.
SECTION 16. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER
AAMES NOTE. This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until the
payment in full of the Obligations and all other amounts payable under this
Agreement, (ii) be binding upon the Pledgor, its successors and assigns and
(iii) inure to the benefit of, and be enforceable by, Aames and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), Aames may assign or otherwise transfer all or any
portion of its rights and obligations under the Aames Note to any other
person or entity, and such other person or entity shall thereupon become
vested with all the benefits in respect thereof granted to Aames herein or
otherwise. Upon the payment in full of the Obligations and all other amounts
payable under this Agreement, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to the
Pledgor. Upon any such termination, Aames will, at the Pledgor's expense,
return to the Pledgor such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof and execute and
deliver to the Pledgor such documents as the Pledgor shall reasonably request
to evidence such termination.
SECTION 17. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF DELAWARE. Unless otherwise defined herein or in the Aames Note,
terms defined in Article 9 of the Code are used herein as therein defined.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
/s/ Xxxxxxx Xxxx
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Pledgor
ACKNOWLEDGED AND AGREED:
AAMES FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
