Exhibit 10.2
The Xxxxxxx Master Limited Partnership
AMENDED AND RESTATED PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") is
made and entered into as of the 1st day of January, 2002, by and between The
Xxxxxxx Master Limited Partnership, a Delaware limited partnership ("Xxxxxxx
MLP" or "Pledgor"), and Administrator LLC, a Delaware limited liability company,
for itself ("Administrator") and as agent for the parties listed on Schedule A
attached hereto (the "Selling Group"; Administrator and the Selling Group
sometimes hereinafter collectively referred to as "Pledgee").
W I T N E S S E T H:
WHEREAS, Apollo Real Estate Investment Fund II, L.P., a Delaware
limited partnership ("Fund II"), and the Selling Group entered into a Purchase
and Sale Agreement, dated July 2, 1997, as amended and supplemented (the
"Purchase Agreement"), relating to the sale of the Xxxxxxx Assets (as defined in
the Purchase Agreement) to Fund II, on the terms, and subject to the conditions,
set forth therein;
WHEREAS, Fund II assigned its rights to acquire the Xxxxxxx Assets
to Apollo Real Estate Investment Fund III, L.P., a Delaware limited partnership
("Fund III"), pursuant to that certain Assignment, dated November 20, 1997,
between Fund II, as assignor, and Fund III, as assignee;
WHEREAS, Fund III assigned its rights to acquire (i) a portion of
the Xxxxxxx Assets to Xxxxxxx XX LLC (f/k/a Brynmawr Associates LLC), a Delaware
limited liability company ("Xxxxxxx XX"), pursuant to that certain Assignment,
dated as of November 20, 0000, xxxxxxx Xxxxxxx XX Holdings LLC (f/k/a Brynmawr
NL Holdings LLC), a Delaware limited liability company ("Holdings"), as
assignor, and Xxxxxxx XX, as assignee, and (ii) the balance of the Xxxxxxx
Assets to Xxxxxxx Capital LLC (f/k/a Brynmawr Capital LLC), a Delaware limited
liability company ("Capital"), pursuant to that certain Assignment, dated as of
November 20, 1997, between Holdings, as assignor, and Capital, as assignee; and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Purchase Agreement, which occurred on November 20, 1997, and
as security for certain obligations of Holdings, Holdings and Administrator
entered into a Pledge Agreement, dated November 20, 1997 (the "Original Pledge
Agreement"), under which Holdings pledged to the benefit of Administrator the
following membership interests: (i) a 100% membership interest in Xxxxxxx XX,
(ii) a 100% membership interest in Xxxxxxx Xxxxx LLC (f/k/a Brynmawr Xxxxx LLC),
a Delaware limited liability company ("Xxxxx"), and (iii) a 50.01% membership
interest in Capital (collectively, the "Membership Interests");
WHEREAS, Holdings transferred its entire membership interest in
Xxxxxxx XX to Xxxxxxx RE Holdings LLC, a Delaware limited liability company
("Xxxxxxx RE"), which in turn pledged that interest to Pledgee as security for
certain obligations of Xxxxxxx RE pursuant to a Pledge Agreement, dated June 30,
1998 ( the "Xxxxxxx RE Pledge Agreement");
WHEREAS, Xxxxxxx RE later transferred its entire interest in Xxxxxxx
XX to Xxxxxxx Stock LLC, a Delaware limited liability company ("Stock"), which
in turn absolutely and irrevocably assumed and agreed, jointly and severally
with Xxxxxxx RE, to pay, honor, perform and discharge, when due and owing, all
of the obligations, commitments, agreements and liabilities of Xxxxxxx RE under
the Xxxxxxx RE Pledge Agreement pursuant to that certain Assumption Agreement,
dated as of July 8, 1998 ("Assumption Agreement I");
WHEREAS, Holdings transferred its entire interest in Xxxxx to
Xxxxxxx Associates LLC, a Delaware limited liability company ("Associates"),
which in turn absolutely and irrevocably assumed and agreed, jointly and
severally with Holdings, to pay, honor, perform and discharge, when due and
owing, all of the obligations, commitments, agreements and liabilities of
Holdings under the Original Pledge Agreement pursuant to that certain Assumption
Agreement, dated as of July 8, 1998 ("Assumption Agreement II");
WHEREAS, under an Agreement, dated January 1, 2000, Holdings
transferred its entire interest in Capital to Stock, which in turn absolutely
and irrevocably assumed and agreed, jointly and severally with Holdings and
Associates, to pay, honor, perform and discharge, when due and owing, all of the
obligations, commitments, agreements and liabilities of Holdings under the
Original Pledge Agreement pursuant to that certain Assumption and Ratification
Agreement, dated as of January 1, 2000, by and among Holdings, Stock and
Associates ("Assumption Agreement III", and collectively with Assumption
Agreement I and Assumption Agreement II, the "Assumption Agreements");
WHEREAS, Pledgor and certain of its Affiliates (as defined below)
propose to enter into a series of transactions (the "MLP Transaction") pursuant
to which, among other things, certain of the assets of those Affiliates (as
defined below) will be transferred to or merged into Xxxxxxx MLP, all as more
fully described in that certain Consent Solicitation Statement/Offering Circular
dated October 23, 2001, a copy of which is attached to the Amended and Restated
Cash Participation Agreement (as defined below);
WHEREAS, as part of the MLP Transaction, Stock shall transfer its
entire interest in Xxxxxxx XX and in Capital, and Associates shall transfer its
entire interest in Xxxxx, to Pledgor and Pledgor shall acquire such interests
subject to Pledgee's existing liens;
WHEREAS, in connection with the MLP Transaction, Administrator and
certain Affiliates (as defined below) of Pledgor are entering into certain
agreements, instruments and other documents, including, without limitation, (i)
a transaction agreement dated the date hereof (the "Transaction Agreement"),
(ii) an amendment and restatement of the Cash Participation Agreement dated
November 27, 1997 (such agreement as so amended and restated, the "Amended and
Restated Cash Participation Agreement"), (iii) an amendment, restatement and
combination of the Guaranty Agreements, dated November 27, 1997 and June 30,
1998, and (iv) an amendment and restatement of the Guaranty Letter of Credit
Agreement, dated November 27, 1997;
WHEREAS, Xxxxxxx MLP, pursuant to an Assumption Agreement of even
date herewith, assumed and agreed, jointly and severally with Holdings, Xxxxxxx
RE, Stock and Associates, to pay, honor, perform and discharge, when due and
owing, all of the obligations of such entities under the Original Pledge
Agreement, the Xxxxxxx RE Pledge Agreement and the Assumption Agreements;
WHEREAS, in consideration of Administrator granting the consent
contained in the Transaction Agreement, Xxxxxxx MLP has agreed to acknowledge
that it is acquiring its interest in each of Xxxxxxx XX, Capital and Xxxxx
subject to Pledgee's previously existing liens and, accordingly, to amend,
restate and combine the Original Pledge Agreement and the Xxxxxxx RE Pledge
Agreement; and
WHEREAS, Holdings, Xxxxxxx RE, Stock and Associates additionally
desire to acknowledge and ratify their obligations under the Assumption
Agreements.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereby
amend, restate and combine the Original Pledge Agreement and the Xxxxxxx RE
Pledge Agreement to read in their entirety as set forth in this Agreement:
1. Definitions. For the purposes of this Agreement, the following terms shall
have the following meanings:
"Acceleration Premium" has the meaning assigned to it in that
certain Loan Agreement, dated November 20, 1997, between Administrator and
Xxxxx, as amended, restated, supplemented or otherwise modified from time to
time.
"Affiliate" has the meaning assigned to it in the Amended and
Restated Cash Participation Agreement.
"Amended and Restated Cash Participation Agreement" has the meaning
assigned to it in the Recitals to this Agreement and shall include any
amendment, restatement, supplement or other modification to such Amended and
Restated Cash Participation Agreement.
"Amended and Restated Guaranty Agreement" means that certain Amended
and Restated Guaranty Agreement, dated as of the date hereof, among Fund III,
Fund II, Holdings, Xxxxxxx XX, Xxxxxxx RE, Capital, Xxxxx, Xxx LLC ("Xxx"), Xxxx
LLC ("Xxxx"), SkiKid LLC ("SkiKid"), the Selling Group and Administrator for
itself and as agent for the Selling Group, as amended, restated, supplemented or
otherwise modified from time to time.
"Associates" has the meaning assigned to it in the Recitals of this
Agreement.
"Buyers" means Xxxxx, Capital, Xxxxxxx XX, Xxxxxxx RE, Jess, Sue,
SkiKid, Fund II, Fund III, Holdings, Stock, Associates, VNK Corp., Vornado
Xxxxxxx LLC, Vornado Realty L.P. and their respective Affiliates.
"Cash Participation" has the meaning ascribed thereto in the Amended
and Restated Cash Participation Agreement.
"Capital" has the meaning assigned to it in the Recitals of this
Agreement.
"Xxxxx" has the meaning assigned to it in the Recitals of this
Agreement.
"Fund II" has the meaning assigned to it in the Recitals of this
Agreement.
"Fund III" has the meaning assigned to it in the Recitals of this
Agreement.
"Future Financing Agreement" means that certain Future Financing
Agreement, dated as of November 20, 1997, among the Administrator for itself and
as agent for the Selling Group, Fund III, Holdings, Xxxxxxx XX, Capital and
Xxxxx, as amended, restated, supplemented or otherwise modified from time to
time.
"Guaranty Letter of Credit" means has the meaning assigned to it in
that certain Amended and Restated Guaranty of Letter of Credit Agreement, dated
of even date herewith, among Fund III, Capital and Administrator LLC for itself
and as agent for the Selling Group as acknowledged and agreed to by Xxxxx, as
amended, restated, supplemented or otherwise modified from time to time.
"Indemnification Agreement" means that certain Indemnification
Agreement, dated November 20, 1997, among Fund III, Fund II, Holdings, Xxxxxxx
XX, Capital, Xxxxx, the Selling Group, Administrator for itself and as agent for
the Selling Group, as amended, restated, supplemented or otherwise modified from
time to time.
"Pledged Interests" means the Membership Interests, together with
all certificates, options, rights or other distributions issued as an addition
to, in substitution or in exchange for, or on account of, any such interests and
all income therefrom, and any proceeds of any of the foregoing.
"Purchase Agreement" has the meaning assigned to it in the Recitals
of this Agreement.
"Secured Obligations" shall mean any and all of the liabilities
and/or obligations of Pledgor, any of the Buyers and any of their respective
Affiliates and any of their respective successors and/or permitted assigns under
the Indemnification Agreement, the Amended and Restated Guaranty Agreement, this
Agreement or any other Transaction Document to which it is a party, including,
without limitation, obligations of any such person or entity (whether direct, as
obligor, or indirect, as guarantor) with respect to (i) providing Pledgee with
the Transfer Letter of Credit or the Guaranty Letter of Credit, (ii) the
Acceleration Premium, and (iii) the Cash Participation.
"Transaction Documents" shall have the meaning ascribed to it in the
Amended and Restated Cash Participation Agreement.
"Transfer Letter of Credit" has the meaning assigned to it in that
certain Transfer of Letter of Credit Agreement, dated November 20, 1997, among
Fund III, Capital and Administrator LLC for itself and as agent for the Selling
Group as acknowledged and agreed to by Xxxxx, as amended, restated, supplemented
or otherwise modified from time to time.
2. Pledge and Creation of Security Interest. As security for the full, prompt
and complete payment, whether at stated maturity, by acceleration or otherwise
and performance of each of the Secured Obligations, Pledgor hereby pledges,
assigns, hypothecates, transfers and delivers to Pledgee, and grants to Pledgee
a security interest in and to, the Pledged Interests.
3. Delivery of Pledged Interests. Pledgor represents and warrants that it has
delivered physical possession of the Pledged Interests (to the extent the
Pledged Interests are evidenced by a certificate or other written document) to
Pledgee and that Pledgee's security interest is fully and properly perfected by
such possession, and Pledgor further represents and warrants that it has
delivered to Pledgee any other documentation such that Pledgee's security
interest is fully and properly perfected. Upon an Event of Default (as
hereinafter defined) which has occurred and is continuing, Pledgee shall have
the right, at any time in its discretion and without notice to Pledgor, to
transfer to or to register in the name of Pledgee or any of its nominees any or
all of the Pledged Interests. Simultaneously with the execution and delivery of
this Agreement, each of Xxxxxxx XX, Xxxxx and Capital has executed and delivered
a Control Agreement of even date herewith (each, a "Control Agreement" and,
collectively, the "Control Agreements"), with Pledgee and Pledgor, for the
purpose of perfecting the security interest granted by Pledgor in the Pledged
Interests to Pledgee, such that Pledgee's security interest is fully and
properly perfected. Pledgee shall not provide a direction to Capital, Xxxxx and
Xxxxxxx XX under the Control Agreements unless an Event of Default has occurred
and is continuing.
4. Representations and Warranties. Pledgor represents, warrants and confirms to
Pledgee that:
4.1 Pledgor is, and at the time of delivery of the Pledged Interests
to Pledgee pursuant to Section 2 hereof will be, the sole holder of record and
the sole beneficial owner of the Pledged Interests, free and clear of any lien
thereon or affecting the title thereto, except for the lien created by this
Agreement.
4.2 Schedule B attached hereto sets forth a true and complete list
of all of the interests of Pledgor in the Membership Interests.
4.3 All of the Pledged Interests have been duly authorized and
validly issued.
4.4 None of the Pledged Interests have been issued or transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be subject.
4.5 The pledge, assignment and delivery of the Pledged Interests
pursuant to this Agreement is effective to create, and/or confirm, as the case
may be, and does create and/or confirm, as the case may be, a valid and
continuing first priority lien on and a first priority perfected security
interest in the Pledged Interests and the proceeds thereof, securing the payment
of the Secured Obligations, subject to no other lien of any kind.
4.6 No security agreement, effective financing statement or
equivalent security or lien instrument or continuation statement covering all or
any part of the Pledged Interests is on file or of record in any public office,
except as may have been filed pursuant to this Agreement.
4.7 The description of the various transfers of the Membership
Interests after November 20, 1997 through and including the date of this
Agreement set forth in the recitals to this Agreement is true and complete.
4.8 Pledgor acquired the Membership Interests subject to Pledgee's
existing liens that were granted and existing pursuant to the Original Pledge
Agreement.
5. Covenants. Pledgor covenants and agrees that until such time as the Secured
Obligations are fully satisfied:
5.1 Pledgor, without the written consent of Pledgee, shall not
create or knowingly permit the existence of any lien or security interest on the
Pledged Interests other than that created hereby or as permitted in accordance
with the Future Financing Agreement.
5.2 Without the prior written consent of Pledgee, Pledgor will not
vote to enable, or take any other action to permit, the issuer of the Pledged
Interests to issue to Pledgor or any other person and/or entity any membership
interests or other equity securities of any nature or to issue to Pledgor any
other securities convertible into or granting the right to purchase or exchange
for any partnership interests or other equity securities of the issuer of the
Pledged Interests unless such membership interests or securities are pledged to
Pledgee as Pledged Interests hereunder.
5.3 Pledgor will, at its expense, promptly and duly execute,
acknowledge and deliver all such instruments and documents and take all such
actions as Pledgee from time to time may request in order to ensure to Pledgee
the benefits of the liens on and to the Pledged Interests intended to be created
by this Agreement, including the filing of any necessary Uniform Commercial Code
financing statements, which may be filed by Pledgee with or without the
signature of Pledgor, and will cooperate with Pledgee, at Pledgor's expense, in
obtaining all necessary approvals and making all necessary filings under federal
or state law in connection with such liens or any sale or transfer of the
Pledged Interests.
5.4 Pledgor has and will defend the title to the Pledged Interests
and the liens of Pledgee thereon against the claim or claims of any person
and/or entity and will maintain and preserve such liens.
5.5 If any amount payable under or in connection with the Pledged
Interests shall be or become evidenced by any promissory note, other instrument
or chattel paper, such note, instrument or chattel paper shall be immediately
delivered to Pledgee duly endorsed in a manner satisfactory to Pledgee to be
held as collateral pursuant to this Agreement.
5.6 Pledgor agrees to pay, and to save Pledgee harmless from, any
and all liabilities with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other taxes which may be payable or determined
to be payable with respect to the Pledged Interests or in connection with any of
the transactions contemplated by this Agreement, except for liabilities arising
out of Pledgee's willful misconduct or bad faith or breach of this Agreement.
5.7 If Pledgor shall, as a result of its ownership of the Pledged
Interests, become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights, whether in addition to, in substitution of, as a conversion of, or in
exchange for any of the Pledged Interests, or otherwise in respect thereof,
Pledgor shall accept the same as Pledgee's agent, hold the same in trust for
Pledgee and deliver the same forthwith to Pledgee in the exact form received,
duly endorsed by Pledgor to Pledgee and, if required, together with an undated
assignment separate from certificate covering such certificate duly executed in
blank to be held by Pledgee hereunder as additional security for the Secured
Obligations.
5.8 If Pledgor shall, on account of or in exchange for the Pledged
Interest, become entitled to receive or shall receive any additional interest in
any issuer of a Pledged Interest such interest shall become and be held as
additional security for the Secured Obligations. If Pledgor shall, as a result
of its ownership of such additional interest in any issuer of a Pledged
Interest, become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights, whether in addition to, in substitution of, as a conversion of, or in
exchange for any of such additional interest, or otherwise in respect thereof,
Pledgor shall accept the same as Pledgee's agent, hold the same in trust for
Pledgee and deliver the same forthwith to Pledgee in the exact form received,
duly endorsed by Pledgor to Pledgee and, if required, together with an undated
assignment separate from certificate covering such certificate duly executed in
blank to be held by Pledgee hereunder as additional security for the Secured
Obligations.
6. Pledgor's Rights. 6.1 As long as no default or Event of Default shall have
occurred and be continuing, Pledgor shall have the right, from time to time, to
vote and give consents with respect to the Pledged Interests or any part thereof
for all purposes not inconsistent with the provisions of this Agreement or the
other Transaction Documents; provided, however, that no vote shall be cast by
Pledgor, and no consent shall be given or action taken by Pledgor, which would
have the effect of impairing the position or interest of Pledgee in respect of
the Pledged Interests or which would authorize or effect the dissolution or
liquidation, in whole or in part, of the issuer of the Pledged Interests. No
vote shall be cast by Pledgor, and no consent shall be given or action taken by
Pledgor, which would authorize or effect any change in the rights of any
interest issued by the issuer of the Pledged Interests or the issuance of any
additional interests unless such changed interests or such additional interests
are pledged to Pledgee pursuant to a Pledge Agreement in the form of this
Agreement.
6.2 Unless and until an Event of Default shall have occurred and be
continuing, Pledgor shall be permitted to control the direction of and/or
receive all cash distributions paid to it or its designees by issuers of Pledged
Interests in accordance with the governing documents of the issuers of Pledged
Interests. At such time as an Event of Default has occurred and is continuing,
Pledgee shall control the direction of and/or receive the cash distributions to
be paid by the issuers of Pledged Interests in accordance with the governing
documents of the issuers of Pledged Interests.
7. Limitation on Duties Regarding Pledged Interests. Pledgee shall not be liable
for failure to demand, collect or realize upon any of the Pledged Interests or
for any delay in doing so and shall not be under any obligation to sell or
otherwise dispose of any Pledged Interests upon the request of Pledgor or
otherwise.
8. Powers Coupled with an Interest. All authorizations and agencies herein
contained with respect to the Pledged Interests are irrevocable and powers
coupled with an interest.
9. Waivers by Pledgor. Pledgor hereby:
9.1 Waives, with respect to the Secured Obligations, grace, demand,
presentment, notice of dishonor and protest;
9.2 Agrees that Pledgee, before proceeding against Pledgor under
this Agreement, shall not be bound to exhaust its recourse or take any action
against the Buyers or against any other person or entity, but Pledgee may make
such demands and take such actions as it deems advisable; and
9.3 Agrees that Pledgee, without affecting the liability of Pledgor
under this Agreement, may with or without notice or consideration, release any
or all of the other Buyers or any person and/or entity liable for the Secured
Obligations.
10. Expenses Incurred by Pledgee. Pledgee is not required to, but may at its
option, pay any tax or other charge or expense payable by Pledgor with respect
to the Pledged Interests and any filing or recording fees, and any amounts so
paid shall be repayable by Pledgor upon demand. The pledge and security interest
granted by this Agreement shall also secure all of Pledgee's reasonable expenses
incurred in collecting, conserving, or protecting the Pledged Interests.
11. Events of Default. "Event of Default" means (a) an occurrence of a default
by Pledgor or any of the Buyers or any of their respective Affiliates in the due
performance, payment or observance of any term, covenant or agreement required
to be performed, paid or observed pursuant to the Indemnification Agreement, the
Amended and Restated Guaranty Agreement, this Agreement or the other Transaction
Documents, and any such person or entity fails to comply with the determination
and/or award of the arbitrator pursuant to arbitration as set forth in Section
24 of this Agreement or in any other Transaction Document in connection with
such default within fifteen (15) days after notice of such determination and/or
award, or (b) if any representation or warranty made by Pledgor or any Buyer or
any of their respective Affiliates in the Indemnification Agreement, the Amended
and Restated Guaranty Agreement, this Agreement, any other Transaction Document
or in any document, certificate or statement furnished pursuant to any such
document shall be false or misleading in any material respect, and Pledgor or
any Buyer or any of their respective Affiliates fails to comply with the award
of the arbitrator pursuant to arbitration as set forth in Section 24 of this
Agreement or in any such other documents with respect to such false or
misleading representation or warranty within fifteen (15) days after notice of
such award. For the purposes hereof, upon full satisfaction and compliance with
the award rendered by the arbitrator in accordance with Section 24 herein or
such other document with respect to (i) any default as described in this Section
11 (a) above, or (ii) false or misleading representation or warranty as
described in this Section 11 (b) above, such default or false or misleading
representation or warranty shall be deemed cured.
If an Event of Default shall occur and be continuing and Pledgee
shall give prior notice of its intent to exercise such rights to Pledgor
(provided such notice is not rescinded by Pledgee): (a) Pledgee shall have the
right to receive any and all cash distributions paid in respect of the Pledged
Interests and make application thereof to the Secured Obligations in such order
as it may determine, (b) Pledgee shall become the managing member of the issuer
of the Pledged Interests and otherwise the holder of all voting and management
rights of the issuer of the Pledged Interests, and shall receive the rights and
obligations in connection therewith, and (c) all of the Pledged Interests shall
thereafter be registered in the name of Pledgee or its nominee, and Pledgee or
its nominee may thereafter exercise (i) all voting, partnership, membership,
consensual and other rights pertaining to the Pledged Interests at any meeting
of the issuer of the Pledged Interests or otherwise and all other interests in
the issuer of the Pledged Interests that are not then owned by Pledgee shall
cease to be voting interests, and (ii) any and all rights of conversion,
exchange, subscription and any other rights, privileges or options pertaining to
the Pledged Interests as if it were the absolute owner thereof (including,
without limitation, the right to exchange, at its discretion, any and all of the
Pledged Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the structure of the issuer of
the Pledged Interests, or upon the exercise by Pledgor or Pledgee of any right,
privilege or option pertaining to the Pledged Interests, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Interests
with any committee, depository, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), Pledgor hereby
irrevocably constituting and appointing Pledgee as the proxy and
attorney-in-fact of Pledgor, with full power of substitution to do so, and which
shall remain in effect until the Secured Obligations are fully satisfied.
12. Remedies. 12.1 If an Event of Default shall occur and be continuing, Pledgee
may exercise, in addition to all other rights and remedies granted in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the Uniform Commercial Code of the State of New York.
12.2 Without limiting the generality of the foregoing, Pledgee
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law or
referred to below or in Section 11 (Events of Default)) to or upon Pledgor or
the issuer of the Pledged Interests, may in such circumstance, forthwith
collect, receive, appropriate and, realize upon the Pledged Interests, or any
part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Pledged Interests or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any exchange
broker's board or at Pledgee's offices or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
Pledgee shall have the right upon any such public sale or sales and, to the
extent permitted by law, upon any such private sale or sales to purchase the
whole or any part of the Pledged Interests so sold, free and clear of any right
or equity of redemption in Pledgor, which right or equity is hereby waived or
released to the extent not prohibited by law. To the extent permitted by
applicable law, Pledgor waives all claims, damages and demands it may acquire
against Pledgee arising out of the good faith exercise by Pledgee of any of its
rights hereunder. If any notice of a proposed sale or other disposition of
Pledged Interests shall be required by law, notice shall be deemed reasonable
and proper if given at least ten (10) days before such sale or other
disposition.
12.3 Pledgor recognizes that Pledgee may be compelled to resort to
one or more private sales of the Pledged Interests to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view to the
distribution or resale thereof. Pledgor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to Pledgee than
if such sale were a public sale and, notwithstanding such circumstances, agrees
that any such private sale made in accordance with the requirements of the
applicable sections of the Uniform Commercial Code of the State of New York as
in effect shall not be deemed to have been made in a commercially unreasonable
manner merely because it was a private sale.
12.4 Pledgor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make any sale or sales of all or
any portion of the Pledged Interests valid and binding and in compliance with
any and all applicable requirements of law. Pledgor further agrees that a breach
of any of the covenants contained herein will cause irreparable injury to
Pledgee, that Pledgee has no adequate remedy at law in respect of such breach
and, as consequence, agrees that each and every covenant contained herein shall
be specifically enforceable against Pledgor, and Pledgor hereby waives and
agrees not to assert any defense against an action for specific performance of
such covenants, except for a defense that no default with respect to the Secured
Obligations has occurred.
13. Application of Proceeds. From and after the occurrence of an Event of
Default, Pledgee shall apply the net proceeds of any collection, recovery,
receipt, appropriation, realization or sale of any of the Pledged Interests as
Pledgee may determine.
14. No Waiver, Cumulative Remedies. No delay on Pledgee's part in exercising any
power of sale, lien, option or other right hereunder, and no notice or demand
which may be given to or made upon Pledgor by Pledgee with respect to any power
of sale, lien, option or other right hereunder, shall constitute a waiver
thereof, or limit or impair Pledgee's right to take any action or to exercise
any power of sale, lien, option, or any other right hereunder, without notice or
demand, or prejudice Pledgee's rights as against Pledgor in any respect. The
rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies
provided by law.
15. Continuing Agreement and Security Interest. This Agreement shall be a
continuing agreement and shall irrevocably apply to all the dealings and
transactions heretofore or hereafter had between Pledgee and Pledgor relating to
the subject matter hereof unless Pledgor and Pledgee shall otherwise expressly
agree in writing signed by Pledgor and Pledgee. Pledgee may assign or transfer
the whole or any part of the Secured Obligations, and may transfer therewith as
collateral security the whole or any part of the Pledged Interests; all
obligations, rights, powers and privileges herein provided shall inure to the
benefit of the assignee and shall bind the heirs, executors, administrators,
successors or assigns of the parties hereto.
16. Irrevocable Authorization. Pledgor hereby authorizes and instructs the
issuer of the Pledged Interests to comply with any instruction received by it
from Pledgee in writing that (a) states that an Event of Default has occurred
hereunder and (b) is otherwise in accordance with the terms of this Amended and
Restated Pledge Agreement, without any other or further instructions from
Pledgor, and Pledgor agrees that the issuer of the Pledged Interests shall be
fully protected in so complying.
17. Termination. Immediately following the later to occur of (i) November 20,
2007, (ii) full satisfaction of the Cash Participation, and (iii) full
satisfaction of the Acceleration Premium, and subject to the provisions of this
Agreement, Pledgee shall deliver to pledgor the Pledged Interests to the extent
such Pledged Interests are in Pledgee's possession at such time, and all
instruments of assignment executed in connection therewith, free and clear of
the liens hereof and, except as otherwise provided herein, all of Pledgor's
obligations hereunder shall at such time terminate.
18. Lien Absolute. All rights of Pledgee hereunder, and all obligations of
Pledgor hereunder, shall be absolute and unconditional irrespective of:
18.1 any lack of validity or enforceability of the Transaction
Documents;
18.2 any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Transaction
Documents;
18.3 any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Secured Obligations; or
18.4 any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
19. Release. Pledgor consents and agrees that Pledgee may at any time, or from
time to time, in its discretion (a) renew, extend or change the time of payment,
and/or the manner, place or terms of payment of all or any part of the Secured
Obligations and (b) exchange, release and/or surrender all or any of the Pledged
Interests, or any part thereof, by whomsoever deposited, which is now or may
hereafter be held by Pledgee in connection with all or any of the Secured
Obligations; all in such manner and upon such terms as Pledgee may deem proper,
and without notice to or further assent from Pledgor, it being hereby agreed
that Pledgor shall be and remain bound upon this Agreement, irrespective of the
existence, value or condition of any of the Pledged Interests, and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, renewal or extension. Pledgor hereby waives notice of acceptance of
this Agreement, and also presentment, demand, protest and notice of dishonor of
any and all of the Secured Obligations, and promptness in commencing suit
against any party hereto or liable hereon, and in giving any other notice to or
of making any claim or demand hereunder upon any Pledgor. No act or omission of
any kind on Pledgee's part shall in any event affect or impair this Agreement.
20. Indemnification. Pledgor agrees to indemnify and hold Pledgee harmless from
and against any and all costs and expenses, including, without, limitation,
taxes and reasonable attorney's fees and disbursements, in connection with the
foreclosure of the lien on and security interest in each and all of the Pledged
Interests provided for herein. Pledgor agrees to pay any and all costs and
expenses incurred by Pledgee, but not in excess of $5,000, in connection with
any filings necessary to perfect the lien on and security interest in each and
all of the Pledged Interests, or to maintain the effectiveness of such perfected
security interests, in accordance with those certain Pledge Agreements set forth
on Schedule C attached hereto. The obligations of Pledgor under this Section 20
shall survive the termination of this Agreement.
21. Reinstatement. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against Pledgor for
liquidation or reorganization, should Pledgor or any obligor in respect of
Secured Obligations become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of such Pledgor's assets, and shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Secured Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the Secured Obligations, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
22. Future Financing Agreement. Notwithstanding anything to the contrary
contained herein, this Agreement shall be subject to the terms and conditions of
the Future Financing Agreement and any subordination agreement to be entered
into in connection therewith.
23. Notice. Any notice or other communication under this Agreement shall be in
writing and shall be considered given when (a) sent by telecopier, with receipt
confirmed, (b) delivered personally, or (c) one business day after being sent by
recognized overnight courier, to the parties at the addresses set forth below
(or at such other address as a party may specify by notice to the other):
(a) If to Pledgor:
The Xxxxxxx Master Limited Partnership
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopier: 000-000-0000
And
c/o Winthrop Financial Services
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: 000-000-0000
with a copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
and
Apollo Advisors, L.P.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq., General Counsel
Telecopier: 000-000-0000
(b) If to Pledgee:
Administrator LLC
c/o Millennium Capital Management LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxxxxx
Telecopier: 000-000-0000
and
Administrator LLC
c/o Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopier: 000-000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: 000-000-0000
However, the parties hereto shall have the right from time to time
and at any time to change their respective addresses or the persons to which
such notice shall be sent, and each shall have the right to specify as the
person to which notice shall be sent or its address any other person or address
within the United States by at least ten (10) days' written notice to the other
party.
24. Arbitration. (a) Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration to be held in
the City of New York in accordance with the rules of the American Arbitration
Association then in effect, subject to Section 24(b) below. There shall be one
arbitrator appointed in accordance with those rules. As part of his award, the
arbitrator shall make a fair allocation between the parties of the fee and
expenses of the American Arbitration Association and the cost of any transcript,
taking into account the merits of their claims and defenses. The arbitrator
shall render his award within thirty (30) days after the commencement of the
arbitration; provided, however, no failure on the part of the arbitrator to
render his award within such thirty (30) day period shall constitute a release
from liability or otherwise affect the liability of any party hereto. Failure by
either party to submit to arbitration under this paragraph shall result in the
arbitrator ruling in favor of the other party if such other party has submitted
to arbitration under this paragraph. Judgment may be entered on the arbitrator's
award in any court having jurisdiction, and the parties irrevocably consent to
the jurisdiction of the New York courts for that purpose. The arbitrator may
grant injunctive or other relief. Nothing in this Section 24(a) shall preclude
any party from seeking temporary injunctive relief from a court of competent
jurisdiction pending appointment of an arbitrator pursuant to this Section
24(a).
(b) In connection with any arbitration under the preceding Section
24(a), to the extent that the subject of the arbitration is the determination of
an amount that is due by any party, each party shall submit to the arbitrator
its estimate of such amount within ten (10) days after the appointment of the
arbitrator. The arbitrator shall be charged solely with determining, within ten
(10) days after expiration of the period during which the parties are to submit
their respective estimates, which estimate is closest to the amount that is due
and shall award the amount of that estimate to the party to whom it is due;
except that, if the larger of the two estimates is equal to or less than 120% of
the smaller of the two estimates, the amount to be awarded by the arbitrator
shall be the average of the two estimates. No failure on the part of the
arbitrator to make such determination within such ten (10) days shall constitute
a release from liability or otherwise affect the liability of any party hereto.
If either party fails to timely submit an estimate under this 24(b), the
estimate of the other party shall be awarded by the arbitrator to the party to
whom it is due.
25. Non-Recourse. Notwithstanding anything to the contrary contained in this
Agreement, any other Transaction Document or any other document referred to
herein or therein, recourse for any breach of any and all obligations and duties
hereunder by the Selling Group or Administrator LLC, for itself, and as agent
for the Selling Group, shall be had only against those individuals of the
Selling Group set forth on Schedule D attached hereto (the "Protecting
Partners"). Each of the Protecting Partners shall be jointly and severally
liable for any and all obligations and duties of the Selling Group and
Administrator LLC, for itself and as agent for the Selling Group hereunder.
Pledgor hereby agrees that those individuals of the Selling Group who are not
also Protecting Partners shall not be liable for any of the obligations or
duties hereunder and shall be absolved or any and all liabilities relating
thereto.
26. Miscellaneous.
26.1 Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto relating to the subject matter
hereof and supercedes all prior agreements and understandings to the extent it
relates to that subject matter, and it is agreed that there are no terms,
understandings, representations, or warranties, express or implied, other than
those set forth herein.
26.2 No Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or privilege under this Agreement, any other
Transaction Document or any document referred to herein or therein or
contemplated hereby or thereby and no course of dealing between the parties
hereto shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege under this Agreement, or any other
Transaction Document or any document referred to herein or therein or
contemplated hereby or thereby preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies under this Agreement, or any other Transaction
Document or any document referred to herein or therein or contemplated hereby or
thereby expressly provided are cumulative with and not exclusive of any rights,
powers or remedies which any party hereto would otherwise have. No notice to or
demand on any party hereto in any case shall, ipso facto, entitle such party to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the other party to any other or further
action in any circumstances without notice or demand where notice or demand is
not otherwise required.
26.3 Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
26.4 Partial Invalidity. If any provision of this Agreement, or the
application thereof to any particular party or circumstance, shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the application
of such provision to any other particular party or circumstance, shall not be
affected thereby and each remaining provision of this Agreement, or the
application of such provision to any particular party or circumstance, shall be
valid and enforceable.
26.5 Gender. All pronouns and any variations of pronouns herein
shall be deemed to refer to the masculine, feminine, or neuter, singular or
plural, as the identity of the parties may require. Whenever the terms herein
are singular, the same shall be deemed to mean the plural, as the identity of
the parties or the context requires and vice versa.
26.6 Captions. The captions or titles given to any provision of this
Agreement are for convenience and reference only and shall in no way define,
limit or describe the scope or intent of this Agreement and in no way affect or
constitute a part of this Agreement.
26.7 Schedules and Exhibits. All schedules and exhibits attached
hereto are hereby incorporated herein by this reference and made a part hereof
for all purposes.
26.8 Third Party Beneficiary. This Agreement is for the purpose of
defining the respective rights and obligations of the parties hereto and is not
for the benefit of any creditor or other third party.
26.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute a duplicate original, but all of
which together shall constitute one and the same instrument.
26.10 Successors and Assigns; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns. Each party to this
Agreement may assign all or any portion of its interest hereunder, provided that
(i) each assignment shall expressly be made subject to the provisions of this
Section 26.10, and (ii) simultaneously with such assignment, the assignee shall
expressly assume all duties, obligations and liabilities relating to the
assigned interests. The assignee shall execute, acknowledge (when applicable)
and deliver to each other party to this Agreement an agreement whereby the
assignee (x) assumes all obligations, duties and liabilities of the assigning
party to the extent of the interest being assigned pursuant to such assignment,
(y) to the extent of the interests being assigned, agrees to be personally bound
by and upon all covenants, agreements, terms, provisions and conditions hereof
on the part of the assigning party to be performed or observed, and (z) agrees
that the provisions of this Section 26.10 shall continue in full force and
effect and be binding upon the assignee. Any assignment of interests in this
Agreement made without full compliance with the preceding sentence shall be null
and void for all purposes. Notwithstanding anything contained herein, in any
other Transaction Document or any document referred to herein or therein or
contemplated hereby or thereby (including without limitation, the assumption
requirements of the second sentence of this Section 26.10), in no event shall
any assignment by any party hereto of its interests (or any part thereof) under
this Agreement (i) modify or limit any right or power of any other party
hereunder or (ii) affect or reduce any obligation, duty or liability of the
assigning party, and all obligations, duties and liabilities of the assigning
party under this Agreement shall continue in full force and effect as
obligations, duties and liabilities of a principal and not of a guarantor or
surety, enforceable against the assigning party as a principal, as though no
assignment or assumption had been made. Nothing in this Section 26.10 shall be
construed to modify the non-recourse provisions of Section 25 of this Agreement.
26.11 Further Assurances. At any time, and from time to time after
the date hereof, each of the parties hereto shall, without further consideration
and at their own cost and expense, execute and deliver such additional
agreements, instruments, documents or certificates as shall reasonably be
requested by any other party in order to carry out the provisions of this
Agreement.
26.12 No Oral Modification. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated unless such change,
waiver, discharge or termination is in writing and signed by each of the parties
hereto.
26.13 Release. Any party liable under or in respect of this
Agreement, any other Transaction Document or any document referred to herein or
therein or contemplated hereby or thereby may be released without affecting the
liability of any party not so released.
26.14 No Offset. Without limiting any other provision of this
Agreement, Pledgors shall have no right of offset for any default, breach or
other non-performance of any obligation under that certain Loan Agreement, dated
as of November 20, 1997, as amended, between Xxxxx and Administrator (the "Loan
Agreement"), the Promissory Note (as defined in the Loan Agreement), the
Tri-Party Agreement (as defined in the Loan Agreement) or that certain Pledge
Agreement, dated November 20, 1997, as amended, made by Administrator in favor
of Xxxxx (the "Administrator Pledge Agreement") (including, without limitation,
the non-payment of any principal of, or interest on, the Loan (as defined in the
Loan Agreement)). Accordingly, all amounts payable in respect of this Agreement,
any other Transaction Document or any agreement, instrument or other document
executed in connection herewith or therewith, shall be paid in full without any
deduction or offset on account of any default, breach or other non-performance
of any obligation under the Loan Agreement, the Promissory Note, the Tri-Party
Agreement or the Administrator Pledge Agreement (including, without limitation,
the non-payment of any principal of, or interest on, the Loan). Nothing in this
Section 26.14 shall modify or otherwise affect any right of offset that any
party to this Agreement (or any Affiliate of any party to this Agreement) may
otherwise have against any other party to this Agreement (or any Affiliate of
any other party to this Agreement) for any default, breach or other
non-performance of any obligation under any Transaction Document other than the
Loan Agreement, the Promissory Note, the Tri-Party Agreement and the
Administrator Pledge Agreement.
27. Pledgor hereby represents and warrants to Pledgee that Pledgor
is an entity organized under the laws of the State of Delaware and that
Pledgor's name as set forth in the signature page to that certain Omnibus
Amendment and Termination Agreement dated as of January 1, 2001, among Pledgor,
Pledgee and certain other parties named therein is its full legal name. Pledgor
covenants and agrees that it shall not change its name or permit its
jurisdiction of organization to be any jurisdiction other than the State of
Delaware by operation of law, by merger or consolidation or otherwise without
first giving Pledgee at least 30 days' prior written notice of such change.
[End of Text]
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Pledge Agreement to be duly executed as of the date first written
above.
PLEDGEE: ADMINISTRATOR LLC, a Delaware
limited liability company, for itself and as
agent for the parties listed on Schedule A attached hereto
By: /s/
------------------------------------
Name:
Title:
PLEDGOR: THE XXXXXXX MASTER LIMITED PARTNERSHIP
By: MLP GP LLC
General Partner
By: XXXXXXX MLP CORP.
MANAGER
By: /s/ Xxxxx Xxxxxxxxx
-------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
ACKNOWLEDGEMENT AND RATIFICATION
Each of Holdings, Xxxxxxx RE, Stock and Associates covenants and agrees for the
benefit of Pledgee, as follows:
1. All references in any Assumption Agreement to the Original Pledge
Agreement or the Xxxxxxx RE Pledge Agreement shall mean and refer to the Amended
and Restated Pledge Agreement to which this Acknowledgment and Ratification is
attached.
2. All terms, conditions, duties and obligations contained in any
Assumption Agreement, as such terms, conditions, duties and obligations are
applicable to any of the undersigned parties, shall remain in full force and
effect.
3. All the terms, conditions, duties and obligations contained in any
Assumption Agreement, as such terms, conditions, duties and obligations are
applicable to any of the undersigned parties, are hereby ratified and
reaffirmed.
XXXXXXX XX HOLDINGS LLC
XXXXXXX RE HOLDINGS LLC
By: XXXXXXX MANAGER (NV) CORP.
MANAGER
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
XXXXXXX STOCK LLC
XXXXXXX ASSOCIATES LLC
By: XXXXXXX MANAGER CORP.
MANAGER
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
Schedule A
SELLING GROUP
Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx-Xxxxx
Xxxxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx Xxxxxx X. Xxxxx
Xxx Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx Kes Narbutas
Xxxxx Xxxxx Xxxxxx Xxxxx
Xxxxxx X. Xxxxx Xxxx Xxxxxxx
Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxx, Xx. Xxxxxx X. Xxxxx
Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx Xxxx Xxxxxx
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxx
Xxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxx Xxxxx
Xxxxxx Xxxxxxxxxx Xxxxx X. Xxxxx
Xxxx X. Xxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Schedule B
PLEDGOR'S INTERESTS IN THE MEMBERSHIP INTERESTS
100% Membership Interest in Xxxxxxx XX LLC
100% Membership Interest in Xxxxxxx Xxxxx LLC
50.01% Membership Interest in Xxxxxxx Capital LLC
Schedule C
PLEDGE AGREEMENTS
Pledge Agreement, dated November 20, 1997, from Apollo Real Estate Investment
III, L.P. to Administrator LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from WEM-Brynmawr Associates to
Administrator LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from Xxxxxxx XX LLC to Administrator
LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from Xxxxxxx Capital LLC to
Administrator LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from Xxx LLC to Administrator LLC,
for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from Jess LLC to Administrator LLC,
for itself and as agent for the Selling Group.
Pledge Agreement, dated November 20, 1997, from SkiKid LLC to Administrator LLC,
for itself and as agent for the Selling Group.
Pledge Agreement, dated June 30, 1998, from Xxxxxxx RE Holdings LLC to
Administrator LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated the date hereof, from The Xxxxxxx Master Limited
Partnership, to Administrator LLC, for itself and as agent for the Selling
Group.
Pledge Agreement, dated the date hereof, from VNK Corp. to Administrator LLC,
for itself and as agent for the Selling Group.
Pledge Agreement, dated the date hereof, from Xxxxxxx XX Holdings LLC to
Administrator LLC, for itself and as agent for the Selling Group.
Pledge Agreement, dated the date hereof, from Vornado Xxxxxxx L.L.C. to
Administrator LLC, for itself and as agent for the Selling Group.
Schedule D
PROTECTING PARTNERS
Xxxxxxx Xxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxx Xxxxxx X. Xxxxx
Xxxxxx Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxx Xxxxxxx X. Xxxx
Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxxx Xxx Xxxxx
Xxxxx X. Xxxxxx Xxxxx X. Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx X. Xxxx
