Pledge and Security Agreement - American Home Mortgage Servicing Inc. f/k/a/ Columbia National Inc., American Home Mortgage Corp. and U.S. Bank NA
SECOND AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as
of September 24, 2004, is made by and between AMERICAN HOME MORTGAGE SERVICING,
INC. f/k/a Columbia National, Incorporated, a Maryland corporation (the "AHMS"),
AMERICAN HOME MORTGAGE CORP. ("AHMC"), a Delaware corporation ("AHMC" and
collectively with AHMS, each a "Company" and collectively the "AHMS") and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as secured party (in
such capacity, the "Bank").
RECITALS
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A. The Companies and the Bank have entered into a Second Amended and
Restated Revolving Credit Agreement dated concurrently herewith (as the same has
been and may hereafter be amended, restated or otherwise modified from time to
time, the "Credit Agreement"), pursuant to which the Bank has extended certain
revolving loan commitments to the Companies.
B. AHMS and Bank are also parties to an Amended and Restated Pledge
and Security Agreement dated as of May 30, 2003 (as amended, the "Existing
Pledge Agreement"). This Agreement amends and restates the Existing Pledge
Agreement in its entirety.
C. The Companies have requested, and the Bank has agreed, that the
Existing Pledge Agreement shall be amended and restated pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Bank to issue, continue or extend Letters of Credit, each Company hereby
agrees with the Bank for the Bank's benefit as follows:
Section 1. Defined Terms.
1(a) As used in this Agreement, the following terms shall have the
meanings indicated:
"Cash Collateral Account": shall have the meaning given to such term
in the Credit Agreement.
"Collateral" shall mean all property and rights in property now
owned or hereafter at any time acquired by any Company in or upon which a
Security Interest is granted to the Bank by any Company under this
Agreement.
"Code" shall mean the Uniform Commercial Code as adopted in the
State of Minnesota.
"Event of Default" shall have the meaning given to such term in
Section 11 hereof.
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"Financing Statement" shall have the meaning given to such term in
Section 4 hereof.
"Investments" shall mean all cash (including, without limitation,
cash held in money market funds or otherwise), securities, instruments,
investment property, financial assets, securities entitlements and other
property (including, without limitation, general intangibles or deposit
accounts) held in, credited to or registered in the name of the Investment
Collateral Account from time to time, including, without limitation, all
such items with may be deposited in the Investment Collateral Account or
registered in the name of the Investment Collateral Account from time to
time hereafter.
"Investment Collateral Account" shall mean the Companies' account
no. 20971260 maintained with the Bank and any sub-accounts, replacement
accounts or successor accounts related thereto.
"Lien" shall mean any security interest, mortgage, pledge, lien,
charge, encumbrance, title retention agreement or analogous instrument or
device (including the interest of the lessors under capitalized leases),
in, of or on any Collateral.
"Note" shall have the meaning given to such term in the Credit
Agreement.
"Obligations" shall mean (a) all indebtedness, liabilities and
obligations of any Company to the Bank of every kind, nature or
description under the Credit Agreement and any note or notes issued
thereunder, (b) all liabilities of any Company under this Agreement, and
(c) in all of the foregoing cases whether due or to become due, and
whether now existing or hereafter arising or incurred.
"Person" shall mean any individual, corporation, partnership,
limited partnership, limited liability company, joint venture, firm,
association, trust, unincorporated organization, government or
governmental agency or political subdivision or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Pledged Investments": shall mean, collectively, at any time, all
Investments purchased with the proceeds of Advances under the Credit
Agreement (with the expectation that such investments shall be Permitted
Investments, as defined by the Credit Agreement, but whether or not such
Pledged Investments comply or continue to comply with the definition of
Permitted Investments).
"Security Interest" shall have the meaning given such term in
Section 2 hereof.
"Termination Date" shall mean the earliest date, if any, on which
each of the following conditions are satisfied: (i) the Obligations
(except for inchoate indemnification obligations) have been paid in full,
and (ii) the obligations, if any, of the Bank to extend credit
accommodations to the Companies have expired.
1(b) All other terms used in this Agreement which are not
specifically defined herein shall have the meaning assigned to such terms in
Revised Article 9 of the Code.
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1(c) Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular, the
plural and "or" has the inclusive meaning represented by the phrase "and/or."
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The words "hereof," "herein," "hereunder"
and similar terms in this Agreement refer to this Agreement as a whole and not
to any particular provision of this Agreement. References to Sections are
references to Sections in this Agreement unless otherwise provided.
Section 2. Grant of Security Interest. As security for the payment and
performance of all of the Obligations, each Company hereby grants to the Bank a
security interest (the "Security Interest") in all of such Company's right,
title, and interest in and to the following, whether now or hereafter owned,
existing, arising or acquired and wherever located:
2(a) The Investment Collateral Account and the Investments;
2(b) The Cash Collateral Account, and all sub-accounts, replacement
accounts or successor accounts related thereto, and all cash or other property
from time to time deposited in or credited to any of the forgoing; and,
2(c) To the extent not otherwise included in the foregoing, all
books, records, and other documents relating to and all proceeds and products of
any of the foregoing items referenced in Section 2(a) and 2(b).
Section 3. Establishment of the Accounts; Title to Collateral; Control
3(a) The Investment Collateral Account and the Cash Collateral
Account shall be subject to (i) the Bank's account agreement, if any, relating
thereto, as amended from time to time, and (ii) the Bank's rules and regulations
that relate to the Investment Collateral Account and the Cash Collateral Account
((i) and (ii) collectively, the "Other Agreements"), provided that, in the event
that any of the terms and provisions of the Other Agreements conflict with or
are inconsistent with any of the terms and provisions of this Agreement, the
terms and conditions of this Agreement shall control.
3(b) The Companies have (or will have at the time they acquires
rights in Collateral hereafter acquired or arising) and will maintain so long as
the Security Interest may remain outstanding, joint title to each item of
Collateral (including the proceeds and products thereof), free and clear of all
Liens except the Security Interest. The Companies will defend the Collateral
against all claims or demands of all Persons (other than the Bank) claiming the
Collateral or any interest therein.
3(c) To the extent that the Cash Collateral Account or the
Investment Collateral Account constitutes a "securities account" within the
meaning of Section 8-501 of the Code, U.S. Bank National Association, in its
capacity as securities intermediary with respect to the Cash Collateral Account
and the Investment Collateral Account agrees to comply with all entitlement
orders originated by the Bank with respect the Collateral, including any orders
to sell, transfer, redeem or reinvest the proceeds of, any or all of the
Collateral or to transfer any or all of the Collateral to Bank, in each case
without the consent of the Companies.
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Section 4. Certain Warranties and Covenants. The Companies makes the
following warranties and covenants to the Bank:
4(a) The Companies have joint title to the Collateral, free of all
Liens except the Security Interest.
4(b) The Companies have full power and authority to execute this
Agreement, to perform the Companies' obligations hereunder and to subject the
Collateral to the Security Interest created hereby.
4(c) As of the date of execution of this Agreement, no effective
financing statement or other similar document used to perfect and preserve a
security interest under the laws of any jurisdiction (a "Financing Statement")
covering all or any part of the Collateral is on file in any recording office,
except such as may have been filed in favor of the Bank relating to this
Agreement or the Existing Pledge Agreement.
4(d) Any time, upon the request of the Bank, the Companies will
deliver to the Bank all notices, financial statements, reports of other
communications received by any Company as owner of the Collateral.
Section 5. Names, Offices, Locations, Jurisdiction of Organization. Each
Company's legal name (as set forth in its constituent documents filed with the
appropriate governmental official or agency) is as set forth in the opening
paragraph hereof. The jurisdiction of organization of AHMS is the state of
Maryland. The jurisdiction of organization of AHMC is the state of New York The
chief place of business and chief executive office of each Company is located at
its address set forth on the signature page hereof.
Section 6. Release and Substitution of Collateral; Additional Collateral,
Etc.
6(a) Release of Collateral. Except as may be permitted by the Bank
in its sole and absolute discretion, the Companies shall have no right to
substitute other Investments for Investments composing all or part of the
Pledged Investments, nor to withdraw such Pledged Investments. Upon the maturity
of any Pledged Investment, and provided that no Event of Default has occurred
which is continuing, the Cash Collateral Account will be credited in the amount
of the proceeds of such Pledged Investment, and such amount will be applied
first to the payment of principal of the Note, and the balance of such proceeds
(i.e., the portion thereof attributable to the discount received upon the
purchase of such Pledged Investment) shall be transferred from the Cash
Collateral Account to such account as shall be designated by the Companies. From
time to time, the Bank may (in its sole and absolute discretion) release Pledged
Investments in contemplation of the sale of those Pledged Investments and the
use of the proceeds of those sales as provided in this Section 6(a). All
proceeds from the sale of Pledged Instruments shall be credited to the Cash
Collateral Account, pending application thereof as provided in this Section
6(a). Except as provided in this Section 6(a) and Section 6(b), the Companies
may not withdraw or apply any funds credited to the Cash Collateral Account.
6(b) Rights With Respect to Collateral. As long as no Event of
Default shall have occurred and be continuing, the Companies shall be entitled
to exercise any voting rights or
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other powers relating to or pertaining to the Investments for any purpose not
inconsistent with the terms of this Agreements. Upon the occurrence and during
the continuance of an Event of Default (after giving effect to any applicable
right to cure), all such rights shall thereupon become vested in the Bank, which
shall have the sole and exclusive right and authority to exercise such voting
rights and other powers and to receive and retain the principal and interest
payments payable thereon or with respect thereto.
6(c) Interest on Investments. Unless there shall have occurred and
be continuing an Event of Default, the Companies shall be entitled to receive
and retain, for its own use and benefit, all interest income from the Pledged
Instruments, and the Companies shall be entitled to withdraw such interest
income from the Cash Collateral Account and deposit such interest income in an
account designated by the Companies. All such interest income shall be carried
in the Cash Collateral Account pending such withdrawal by the Companies. Upon
the occurrence and continuance of an Event of Default, all such rights shall
thereupon become vested in the Bank, which shall have the sole and exclusive
right and authority to receive and retain all income and receipts payable
thereon or with respect thereto, and the Companies shall promptly pay over to
the Bank all income and receipts from the Pledged Instruments received or
collected by the Companies from and after the date of the Event of Default, and
the same shall constitute a part of the Collateral subject to this Pledge
Agreement.
Section 7. Further Assurances; Attorney-in-Fact.
7(a) Each Company agrees that from time to time, at its expense, it
will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or that the Bank may reasonably
request, in order to perfect and protect the Security Interest granted or
purported to be granted hereby or to enable the Bank to exercise and enforce its
rights and remedies hereunder with respect to any Collateral (but any failure to
request or assure that any Company execute and deliver such instrument or
documents or to take such action shall not affect or impair the validity,
sufficiency or enforceability of this Agreement and the Security Interest,
regardless of whether any such item was or was not executed and delivered or
action taken in a similar context or on a prior occasion).
7(b) Each Company hereby authorizes the Bank to file one or more
Financing Statements or continuation statements in respect thereof, and
amendments thereto, relating to all or any part of the Collateral without the
signature of such Company where permitted by law. A photocopy or other
reproduction of this Agreement or any Financing Statement covering the
Collateral or any part thereof shall be sufficient as a Financing Statement
where permitted by law.
7(c) In furtherance, and not in limitation, of the other rights,
powers and remedies granted to the Bank in this Agreement, if an Event of
Default shall have occurred and be continuing, each Company hereby appoints the
Bank such Company's attorney-in-fact, with full authority in the place and stead
of such Company and in the name of such Company or otherwise, from time to time
for so long as such Event of Default shall be continuing in the Bank's good
faith discretion, to take any action (including the right to collect on any
Collateral)
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and to execute any instrument that the Bank may reasonably believe is necessary
or advisable to accomplish the purposes of this Agreement, in a manner
consistent with the terms hereof.
Section 8. Taxes and Claims. Until such time as the Bank has foreclosed
the Collateral, the Companies will promptly pay all taxes and other governmental
charges levied or assessed upon or against any Collateral or upon or against the
creation, perfection or continuance of the Security Interest. Without limiting
the generality of the forgoing, all interest earned upon the Collateral shall be
reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of the Companies.
Section 9. Action by the Bank. If any Company at any time fails to perform
or observe any of the foregoing agreements, the Bank shall have (and each
Company hereby grants to the Bank) the right, power and authority (but not the
duty) to perform or observe such agreement on behalf and in the name, place and
stead of such Company (or, at the Bank's option, in the Bank's name) and to take
any and all other actions which the Bank may reasonably deem necessary to cure
or correct such failure; and each Company shall thereupon pay to the Bank on
demand the amount of all monies expended and all out-of-pocket costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Bank in connection with or as a result of the performance or observance of
such agreements or the taking of such action by the Bank, together with interest
thereon from the date expended or incurred at the highest lawful rate then
applicable to any of the Obligations, and all such monies expended, costs and
expenses and interest thereon shall be part of the Obligations secured by the
Security Interest.
Section 10. The Bank's Duties. The powers conferred on the Bank hereunder
are solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. The Bank shall be deemed to have
exercised reasonable care in the safekeeping of any Collateral in its possession
if such Collateral is accorded treatment substantially equal to the safekeeping
which the Bank accords its own property of like kind. Except for the safekeeping
of any Collateral in its possession and the accounting for monies and for other
properties actually received by it hereunder, the Bank shall have no duty, as to
any Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Bank has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any Persons or any other rights pertaining to any Collateral. The Bank will take
action in the nature of exchanges, conversions, redemption, tenders and the like
requested in writing by the Companies with respect to any of the Collateral in
the Bank's possession if the Bank in its reasonable judgment determines that
such action will not impair the Security Interest or the value of the
Collateral, but a failure of the Bank to comply with any such request shall not
of itself be deemed a failure to exercise reasonable care.
Section 11. Default. Each of the following occurrences shall constitute an
Event of Default under this Agreement: (a) any Company shall fail to comply with
any covenant or agreement applicable to such Company under this Agreement; or
(b) any representation or warranty made by any Company in this Agreement or any
schedule, exhibit, supplement or attachment hereto or in any financial
statements, or reports or certificates heretofore or at any time hereafter
submitted by or on behalf of such Company to the Bank in connection with
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Agreement or the Credit Agreement shall prove to have been false or misleading,
in each case in any material respect, when made; or (c) any Event of Default
shall occur under the Credit Agreement.
Section 12. Remedies upon Default. If any Event of Default shall have
occurred and be continuing:
12(a) The Bank may exercise in respect of the 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 Revised
Article 9 of the Code, and may, without notice except as specified below, sell
the Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Bank's offices or
elsewhere, for cash, on credit or for future delivery and give any entitlement
orders with respect to the Collateral, in each case upon such other terms as the
Bank may reasonably believe are commercially reasonable. Each Company agrees
that, to the extent notice of sale shall be required by law, at least ten days'
prior notice to such Company 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. The Bank shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Bank 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. Each Company hereby waives all requirements
of law, if any, relating to the marshalling of assets which would be applicable
in connection with the enforcement by the Bank of its remedies hereunder, absent
this waiver. The Bank may disclaim warranties of title and possession and the
like.
12(b) The Bank may notify any Person obligated on any of the
Collateral that the same has been assigned or transferred to the Bank and that
the same should be performed as requested by, or paid directly to, the Bank, as
the case may be. Each Company shall join in giving such notice, if the Bank so
requests. The Bank may, in the Bank's name or in any Company's name, demand, sue
for, collect or receive any money or property at any time payable or receivable
on account of, or securing, any such Collateral or grant any extension to, make
any compromise or settlement with or otherwise agree to waive, modify, amend or
change the obligation of any such Person.
12(c) Any cash held by the Bank as Collateral and all cash proceeds
received by the Bank in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion of the
Bank, be held by the Bank as collateral for, or then or at any time thereafter
be applied in whole or in part by the Bank against, all or any part of the
Obligations (including any expenses of the Bank payable pursuant to Section 16
hereof).
Section 13. Waiver of Certain Claims. Each Company acknowledges that
because of present or future circumstances, a question may arise under the
Securities Act of 1933, as from time to time amended (the "Securities Act"),
with respect to any disposition of the Collateral permitted hereunder. Each
Company understands that compliance with the Securities Act may very strictly
limit the course of conduct of the Bank if the Bank were to attempt to dispose
of all or any portion of the Collateral and may also limit the extent to which
or the manner in which
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any subsequent transferee of the Collateral or any portion thereof may dispose
of the same. There may be other legal restrictions or limitations affecting the
Bank in any attempt to dispose of all or any portion of the Collateral under the
applicable Blue Sky or other securities laws or similar laws analogous in
purpose or effect. The Bank may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obliged to agree, among
other things, to acquire such Collateral for their own account for investment
only and not to engage in a distribution or resale thereof. Each Company agrees
that the Bank shall not incur any liability, and any liability of any Company
for any deficiency shall not be impaired, as a result of the sale of the
Collateral or any portion thereof at any such private sale in a manner that the
Bank reasonably believes is commercially reasonable (within the meaning of
Section 9-627 of the Code). Each Company hereby waives any claims against the
Bank arising by reason of the fact that the price at which the Collateral may
have been sold at such sale was less than the price that might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Bank shall accept the first offer received and does not
offer any portion of the Collateral to more than one possible purchaser. Each
Company further agrees that the Bank has no obligation to delay sale of any
Collateral for the period of time necessary to permit the issuer of such
Collateral to qualify or register such Collateral for public sale under the
Securities Act, applicable Blue Sky laws and other applicable state and federal
securities laws, even if said issuer would agree to do so. Without limiting the
generality of the foregoing, the provisions of this Section would apply if, for
example, the Bank were to place all or any portion of the Collateral for private
placement by an investment banking firm, or if such investment banking firm
purchased all or any portion of the Collateral for its own account, or if the
Bank placed all or any portion of the Collateral privately with a purchaser or
purchasers.
Section 14. Application of Proceeds. All cash proceeds received by the
Bank in respect of any sale of, collection from, or other realization upon all
or any part of the Collateral may, in the discretion of the Bank, be held by the
Bank as collateral for, or then or at any time thereafter be applied in whole or
in part by the Bank against, all or any part of the Obligations (including,
without limitation, any expenses of the Bank payable pursuant to Section 16
hereof).
Section 15. [Reserved]
Section 16. Costs and Expenses; Indemnity. Each Company will pay or
reimburse the Bank on demand for all out-of-pocket expenses (including filing
and recording costs and fees, charges and disbursements of outside counsel to
the Bank (determined on the basis of such counsel's generally applicable rates,
which may be higher than the rates such counsel charges the Bank in certain
matters) and/or the allocated costs of in-house counsel incurred from time to
time) incurred by the Bank in connection with the creation, perfection,
protection, satisfaction, foreclosure or enforcement of the Security Interest
and the preparation, administration, continuance, amendment or enforcement of
this Agreement, and all such costs and expenses shall be part of the Obligations
secured by the Security Interest. Each Company shall indemnify and hold the Bank
harmless from and against any and all claims, losses and liabilities (including
reasonable attorneys' fees) growing out of or resulting from this Agreement and
the Security Interest hereby created (including enforcement of this Agreement)
or the Bank's actions pursuant hereto, except claims, losses or liabilities
resulting from the Bank's gross negligence or willful misconduct as determined
by a final judgment of a court of competent jurisdiction. Any liability
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of any Company to indemnify and hold the Bank harmless pursuant to the preceding
sentence shall be part of the Obligations secured by the Security Interest. The
obligations of the Companies under this Section shall survive any termination of
this Agreement.
Section 17. Waivers; Remedies; Marshalling. This Agreement can be waived,
modified, amended, terminated or discharged, and the Security Interest can be
released, only explicitly in a writing signed by the Bank. A waiver so signed
shall be effective only in the specific instance and for the specific purpose
given. Mere delay or failure to act shall not preclude the exercise or
enforcement of any rights and remedies available to the Bank. All rights and
remedies of the Bank shall be cumulative and may be exercised singly in any
order or sequence, or concurrently, at the Bank's option, and the exercise or
enforcement of any such right or remedy shall neither be a condition to nor bar
the exercise or enforcement of any other. Each Company hereby waives all
requirements of law, if any, relating to the marshalling of assets which would
be applicable in connection with the enforcement by the Bank of its remedies
hereunder, absent this waiver.
Section 18. Notices. Any notice or other communication to any party in
connection with this Agreement shall be in writing and shall be sent by manual
delivery, facsimile transmission, overnight courier or United States mail
(postage prepaid) addressed to such party at the address specified on the
signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by facsimile transmission, from the first business
day after the date of sending if sent by overnight courier, or from four days
after the date of mailing if mailed.
Section 19. Company Acknowledgments. Each Company hereby acknowledges that
(a) it has been advised by counsel in the negotiation, execution and delivery of
this Agreement, (b) the Bank has no fiduciary relationship to any Company, the
relationship being solely that of debtor and creditor, and (c) no joint venture
exists between any Company and the Bank.
Section 20. Continuing Security Interest; Assignments under Credit
Agreement. This Agreement shall (a) create a continuing security interest in the
Collateral and shall remain in full force and effect until the Termination Date,
(b) be binding upon each Company, its successors and assigns, and (c) inure to
the benefit of, and be enforceable by, the Bank and its successors, transferees,
and assigns. Without limiting the generality of the foregoing clause (c), the
Bank may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement to any other Persons to the extent and in
the manner provided in the Credit Agreement and may similarly transfer all or
any portion of its rights under this Agreement to such Persons.
Section 21. Termination of Security Interest. Upon the Termination Date,
the Security Interest granted hereby shall terminate. Upon any such termination,
the Bank will return to the Companies such of the Collateral then in the
possession of the Bank as shall not have been sold or otherwise applied pursuant
to the terms hereof and execute and deliver to the Companies such documents as
the Companies shall reasonably request to evidence such termination. Any
reversion or return of Collateral upon termination of this Agreement and any
instruments of
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transfer or termination shall be at the expense of the Companies and shall be
without warranty by, or recourse on, the Bank. As used in this Section,
"Company" includes any assigns of any Company, any Person holding a subordinate
security interest in any of the Collateral or whoever else may be lawfully
entitled to any part of the Collateral.
Section 22. Governing Law and Construction. THE VALIDITY, CONSTRUCTION AND
ENFORCEABILITY OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, EXCEPT
TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
MANDATORILY GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
MINNESOTA. Whenever possible, each provision of this Agreement and any other
statement, instrument or transaction contemplated hereby or relating hereto
shall be interpreted in such manner as to be effective and valid under such
applicable law, but, if any provision of this Agreement or any other statement,
instrument or transaction contemplated hereby or relating hereto shall be held
to be prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement or any other statement, instrument or transaction contemplated hereby
or relating hereto.
Section 23. Consent to Jurisdiction. AT THE OPTION OF THE BANK, THIS
AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING
IN HENNEPIN OR RAMSEY COUNTY; AND EACH COMPANY CONSENTS TO THE JURISDICTION AND
VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT
CONVENIENT. IN THE EVENT ANY COMPANY COMMENCES ANY ACTION IN ANOTHER
JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR
INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE BANK AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
Section 24. Waiver of Notice and Hearing. TO THE EXTENT PERMITTED BY LAW,
EACH COMPANY HEREBY WAIVES ALL RIGHTS TO A JUDICIAL HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY THE BANK OF ITS RIGHTS TO POSSESSION OF THE COLLATERAL WITHOUT
JUDICIAL PROCESS OR OF ITS RIGHTS TO REPLEVY, ATTACH, OR LEVY UPON THE
COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. EACH COMPANY ACKNOWLEDGES THAT IT
HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS PROVISION AND
THIS AGREEMENT.
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Section 25. Waiver of Jury Trial. EACH COMPANY AND THE BANK, BY ITS
ACCEPTANCE OF THIS AGREEMENT, IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 26. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
Section 27. General. All representations and warranties contained in this
Agreement or in the Credit Agreement shall survive the execution, delivery and
performance of this Agreement and the creation and payment of the Obligations.
Each Company waives notice of the acceptance of this Agreement by the Bank.
Captions in this Agreement are for reference and convenience only and shall not
affect the interpretation or meaning of any provision of this Agreement.
Section 28. Effect of Existing Pledge Agreement. This Agreement amends and
replaces in its entirety and restates the Existing Pledge Agreement provided,
however, that the obligations of the Companies incurred under, and the security
interest granted by the Companies under, the Existing Pledge Agreement shall
continue under this Agreement, and shall not in any circumstance be terminated,
extinguished or discharged hereby but shall hereafter be governed by the terms
of this Agreement.
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11
<PAGE>
WITNESS WHEREOF, the Companies and the Bank have caused this Pledge and
Agreement to be duly executed and delivered by its manager thereunto duly
authorized as of the date first above written.
AMERICAN HOME MORTGAGE SERVICING, INC.
f/k/a Columbia National, Incorporated
By /s/ Stephen A. Hozie
-----------------------------
Title EVP & CFO
--------------------------
Address for AHMS:
7142 Columbia Gateway Drive
Columbia, MD 21046
Attn.: President
Tax ID No,: 52-0957267
AMERICAN HOME MORTGAGE CORP.
By /s/ Stephen A. Hozie
-----------------------------
Title EVP & CFO
--------------------------
Address for AHMC:
520 Broadhollow Road
Melville, NY 11747
Attn.: President
Tax ID No.: 13-3461558
U.S. BANK NATIONAL ASSOCIATION
By /s/ Kathleen M. Connor
-----------------------------
Title Vice President
--------------------------
Address for the Bank:
U.S. Bank National Association
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, MN 55402-7020
Attn: Kathleen Connor
S-1
(Signature page to Amended and Restated Pledge and Security Agreement)