EXHIBIT 10.25
PLEDGE AGREEMENT
In order to induce Red Xxxxx International, Inc., a Nevada corporation ("Red
Xxxxx"), to loan Xxxxxxx X. Xxxxxx ("Xxxxxx") the sums referenced in paragraph
3(f), "Loans," of that certain Employment Agreement between Red Xxxxx and
Xxxxxx, dated May 11, 2000, Xxxxxx hereby agrees as follows:
1. Definitions.
When used herein, the terms set forth below shall be defined as follows:
(a) "Collateral" means the 150,000 shares of the common stock of Red
Xxxxx evidenced by certificate No. 154 and all additions thereto and
substitutions therefor and all cash proceeds thereof in excess of any taxes
payable by Xxxxxx thereon.
(b) "Event of default" means: (i) any default with respect to payment or
performance of the Obligations; (ii) insolvency of Xxxxxx; (iii) a creditors
committee is appointed to the business of Xxxxxx; (iv) Xxxxxx makes an
assignment for the benefit of creditors or a petition in bankruptcy or for
reorganization or to affect the plan of arrangement with creditors is filed by
or against Xxxxxx; (v) Xxxxxx applies for or permits the appointment of a
receiver or trustee for any or all of his property or assets, or any such
receiver or trustee has been appointed for any or all of his property or assets;
(vi) any of the above actions or proceedings are commenced by or against Xxxxxx;
(vii) a proceeding is filed or commenced by or against Xxxxxx for dissolution or
liquidation; or (viii) Xxxxxx dies.
(c) "Obligations" means all indebtedness arising under the Promissory
Note and all liabilities of Xxxxxx to Red Xxxxx of every kind and description
arising under said Promissory Note, absolute or contingent, due or to become
due, whether for payment or performance, now existing or hereafter arising,
regardless of how the same arise out of the Promissory Note; including without
limitation, all loans made by Red Xxxxx to Xxxxxx pursuant to the Employment
Agreement (including any renewal or extension thereof), all undertakings to take
or refrain from taking any action, and all interest, taxes, fees, charges,
expenses and attorneys fees chargeable to Xxxxxx or incurred by Red Xxxxx in
connection with any transaction between Xxxxxx and Red Xxxxx arising out of the
Promissory Note.
(d) "Promissory Note" means that certain Promissory Note Secured by
Pledge of Stock executed of even date herewith in consideration of Red Robin's
loan to Xxxxxx of $300,000 pursuant to paragraph 3(f) of the Employment
Agreement mentioned above.
2. Pledge of Collateral.
To secure the payment and performance of the Obligations, Xxxxxx hereby pledges,
assigns and transfers to Red Xxxxx, and grants to Red Xxxxx a continuing
security interest in all of the Collateral.
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3. Representations and Warranties.
The undersigned agrees to reimburse Red Xxxxx on demand for all amounts paid or
advanced by Red Xxxxx for the purpose of preserving the Collateral or any part
thereof and/or any liabilities or expenses incurred by Red Xxxxx as the
transferee or holder of the Collateral. Red Xxxxx shall exercise reasonable care
and custody in preserving the Collateral to the extent required by applicable
statute and use commercially reasonable efforts to take any action in respect to
the Collateral that Xxxxxx reasonably requests in writing. Red Robin's failure
to do any such act, however, shall not be deemed a failure to exercise
reasonable care.
4. General Covenants.
Red Xxxxx shall be under no duty to: (i) collect the Collateral or any proceeds
thereof or give any notice with respect thereto; (ii) preserve the rights of
Xxxxxx with respect to the Collateral against third parties; (iii) sell or
otherwise realize upon the Collateral; or (iv) seek payment of the Obligations
from any particular source. Without limiting the generality of the foregoing,
Red Xxxxx shall not be obligated to take any action in connection with any
conversion, call, rejection, retirement or any other event relating to the
Collateral.
The Collateral also stands as collateral security for that certain Promissory
Note which Xxxxxx gave to Red Xxxxx on June 30, 2000, which is evidenced by a
Pledge Agreement, also dated June 30, 2000. After payment of part of the
Obligations under the Promissory Note and the Promissory Note of June 30, 2000,
Red Xxxxx xxx retain as security for any remaining Obligations a portion of the
Collateral equal to the amounts remaining under both Promissory Notes using a
value of $2.25 per share for said Red Xxxxx common stock, and Red Xxxxx xxx
retain this Agreement as evidence of such security.
5. Rights and Remedies.
Red Xxxxx shall have, among other rights and remedies, those provided in
paragraph 5(a) at all times before and after an event of default occurs, and
shall have all the rights and remedies enumerated in this Section 5 after an
event of default occurs.
(a) Red Xxxxx xxx, at its option, upon thirty days' notice to Xxxxxx: (i)
transfer into its name or the name of its nominee any part of the Collateral;
(ii) demand, xxx for, collect and receive all interest, dividends, including
liquidating dividends, and other proceeds thereof, and hold same as security for
payment of Obligations or, if cash proceeds, apply the portion of the cash
proceeds after deducting the amount of any taxes Xxxxxx owes thereon, as payment
of the Obligations; or (iii) demand, xxx for, collect or make any settlement or
compromise Red Xxxxx xxxxx desirable with respect to any Collateral.
(b) If any event of default occurs, and so long as it continues, Red
Xxxxx xxx declare all Obligations to be due and payable regardless of their
terms, without notice, protest, presentment, or demand, all of which Xxxxxx
hereby expressly waives. While an event of default exists, Red Xxxxx shall have,
in addition to all rights and remedies contained herein and in other existing or
future agreements, guaranties, notes, instruments, and documents executed by
Xxxxxx and
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delivered to Red Xxxxx pertaining to this Agreement or to the Obligations all
rights and remedies available to Red Xxxxx under applicable law. Such additional
rights and remedies shall include those of a secured party under the Uniform
Commercial Code in force in the state of Colorado as of the date hereof. All of
Red Robin's rights remedies shall be cumulative and non-exclusive to the extent
permitted by law.
6. General.
(a) Each reference herein to Red Xxxxx shall be deemed to include the
successors and assigns of Red Xxxxx, and each reference to Xxxxxx shall be
deemed to include the heirs, administrators, legal representatives, successors
and assigns of Xxxxxx, all of whom shall be bound by the provisions hereof.
(b) No delay by Red Xxxxx in exercising any rights or other failure to
exercise the same shall operate as a waiver of such rights. No notice to Xxxxxx
or demand made upon Xxxxxx by Red Xxxxx shall be deemed a waiver of any
Obligations or the right of Red Xxxxx to take other or further action without
notice or demand as provided herein. No modification or waiver of the provisions
hereof shall be effective unless in writing signed by Red Xxxxx, nor shall any
waiver be applicable except in the specific instance or matter for which given.
(c) Xxxxxx certifies and covenants that all acts, conditions and things
required be done or performed as conditions precedent to the creation and
issuance of this Agreement have been done or performed, and this Agreement is
valid and legally binding upon Xxxxxx in accordance with its terms.
(d) This Agreement is and shall be deemed to be a contract entered into
and made under the laws of the state of Colorado. This Agreement shall in all
respects be governed, construed, applied and enforced in accordance with laws of
the state of Colorado. If Red Xxxxx brings any action hereunder in any Colorado
or federal court of record, Xxxxxx consents to personal jurisdiction over him by
such court or courts and agrees that service of process may be made upon him by
delivering a copy of the summons and complaint to him in the manner and at the
address specified in paragraph 6(h) hereof or in any other manner provided by
law.
(e) IN ANY ACTION BROUGHT TO ENFORCE OR TO INTERPRET THIS AGREEMENT,
XXXXXX WAIVES THE RIGHT TO DEMAND TRIAL BY JURY.
(f) Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law. If
any portion of this Agreement is declared invalid for any reason in any
jurisdiction, such declaration shall have no effect upon the remaining portions,
and this Agreement shall continue in effect as if this Agreement had been
executed without the invalid portions.
(g) The section headings herein are included for convenience only and
shall not be deemed to be part of this Agreement.
(h) Any notice that either party may or must give to the other shall
mailed by United
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States Mail, return receipt requested, postage prepaid, or delivered by a
national courier service to the address for the party provided below. If mailed,
the notice shall be deemed received two business days after being deposited in
the United States mail. If delivered via courier service, then the notice shall
be deemed when signed for by the recipient. Either party may change its address
for notices to a new street address (but not a post office box or other address
at which courier service is not accepted) by notifying the other party in
writing of the new street address.
Notices directed to Red Xxxxx: Red Xxxxx International, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Legal Department
Notices directed to Xxxxxx: Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000-0000
7. Assignment by Red Xxxxx.
Red Xxxxx xxx from time to time without notice to Xxxxxx sell, assign, transfer
or otherwise dispose of all or part of the Obligations and/or the Collateral
therefor. In such event, each and every immediate and successive purchaser,
assignee, transferee or holder of all or any part of the Obligations and/or the
Collateral shall have the right to enforce this Agreement by legal action or
otherwise, for its own benefit as fully as if such purchaser, assignee,
transferee or holder were herein by name specifically given such rights. Red
Robin's sale, assignment, transfer or disposal of part of the Obligations or
Collateral shall not impair Red Robin's right to enforce this Agreement for its
benefit as to the portion of the Obligations or Collateral that Red Xxxxx has
not sold, assigned, transferred or otherwise disposed of.
Xxxxxx acknowledges that this Agreement and the Collateral may be transferred to
Finova Capital Corporation or other party to secure a loan to Red Xxxxx. If the
Promissory Note shall be paid prior to the expiration of the security interest
in the Collateral in favor of Finova Capital Corporation or other party, then
Xxxxxx authorizes Red Xxxxx to transfer the Collateral to Finova Capital
Corporation or such other party as may be designated to hold the Collateral
under any present or future pledge agreement between Xxxxxx and Finova Capital
Corporation or other party.
Executed at Greenwood Village, Colorado, this 27/th/ day of February, 2001.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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