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EXHIBIT 10.12
PARTNERSHIP STOCK PLEDGE AGREEMENT
This PARTNERSHIP STOCK PLEDGE AGREEMENT (this "Pledge
Agreement"), dated as of October 6, 1995, is made by Xxxxxx X. Xxxx ("Pledgor")
in favor of Dart Group Corporation, a Delaware corporation ("Lender"), as
collateral agent and bailee (in such capacity, "Collateral Agent") for Lender
and Xxxxx-Xxxxxx Real Estate Company, a Delaware corporation ("Xxxxx-Xxxxxx").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Master Agreement (defined
below) except that an "Event of Default" shall have the meaning set forth in
the Promissory Notes (defined below).
WITNESSETH:
WHEREAS, Lender and Pledgor are adverse parties in the
lawsuits captioned, Xxxxxx X. Xxxx v. Dart Group Corporation, Delaware Xxxxxxxx
Xxxxx, XX-00000 and Xxxx X. Xxxx and the Tudor Trust v. Xxxxxxx Xxxx, Del. Ch.
C.A. No. 13154 and, simultaneously with the execution and delivery of this
Pledge Agreement, have entered into that certain Settlement Agreement of even
date herewith pursuant to which Lender and Pledgor have agreed to settle such
lawsuits on the terms, and subject to the conditions, set forth therein (the
"Settlement Agreement");
WHEREAS, in connection with the Settlement Agreement Pledgor,
Lender and certain of their respective affiliates have entered into certain
other agreements and documents, including the Real Estate Master Agreement of
even date herewith among Pledgor, Lender and Xxxxx-Xxxxxx (the "Master
Agreement") and this Pledge Agreement, which, together with the Settlement
Agreement, are collectively referred to herein as the "Settlement Documents"
(as such term is defined in the Master Agreement);
WHEREAS, on the date hereof, Lender has made certain loans to
Pledgor and Pledgor has executed and delivery to Lender the $37 Million Note,
the $27.4 Million Note and the $11.6 Million Note (as such terms are defined in
the Settlement Agreement; (collectively, the "Promissory Notes") to evidence
such loans;
WHEREAS, Pledgor is the legal and beneficial owner of 400
shares of capital stock of CP/Greenbriar Retail, Inc., a Virginia corporation,
400 shares of capital stock of CP/Greenbriar Office, Inc., a Virginia
corporation, and 300 shares of capital stock of Bull Run, Inc., a Maryland
corporation (the "Subject Corporations");
NOW, THEREFORE, for and in consideration of Lender and
Xxxxx-Xxxxxx entering into the Settlement Documents and Lender making the loans
evidenced by the Promissory Notes, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Collateral Agent and Pledgor hereby agree as follows:
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1. Pledge. Pledgor hereby pledges to Collateral Agent,
for the benefit of Lender and Xxxxx-Xxxxxx, a security interest in the
following (collectively, the "Pledged Collateral"):
(a) Any and all shares of the capital stock of the
Subject Corporations, now or at any time or times hereafter, owned by
Pledgor, the certificates representing the shares of such capital
stock (such now-owned shares being identified on Exhibit A attached
hereto and made a part hereof), all options and warrants for the
purchase of shares of the capital stock of the Subject Corporations,
now or hereafter held in the name of Pledgor (all of said capital
stock, options and warrants and all capital stock held in the name of
Pledgor as a result of the exercise of such options or warrants being
hereinafter collectively referred to as the "Pledged Stock"), stock
powers with respect to the Pledged Stock in the form of Exhibit B
attached hereto and made a part hereof (the "Powers") duly executed in
blank, and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect
of, or in exchange for, any or all of the Pledged Stock;
(b) All additional shares of the capital stock of the
Subject Corporations from time to time acquired by Pledgor in any
manner and the certificates representing such additional shares (any
such additional shares and voting certificates shall constitute part
of the Pledged Stock and Collateral Agent is irrevocably authorized to
amend Exhibit A from time to time to reflect such additional shares),
and all options, warrants, dividends, cash, instruments and other
rights and options from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
shares;
(c) The property and interests in property described in
Section 3 below; and
(d) All proceeds of the foregoing.
2. Security for Obligations. The Pledged Collateral
secures the prompt payment, performance and observance of all present and
future debts, obligations and liabilities of Pledgor or of any other obligor
under the Settlement Documents which is controlled by Pledgor (collectively
with Pledgor, the "RSH Obligors") to Lender (on its own behalf and as an agent
and bailee for itself and Xxxxx-Xxxxxx) and Xxxxx-Xxxxxx arising pursuant to,
or on account of this Pledge Agreement and the other Settlement Documents,
including, without limitation, the obligations of the RSH Obligors to
Xxxxx-Xxxxxx, Lender (on its own behalf and as an agent and bailee for itself
and Xxxxx-Xxxxxx) and/or any collateral agent, bailee or escrow agent acting on
behalf of Lender or Xxxxx-Xxxxxx (i) to pay any indemnification obligation
under this Pledge Agreement or any
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other Settlement Document, and any and all other sums due (including applicable
interest thereon) at any time thereunder, (ii) to pay principal of, interest
on, and all other amounts payable pursuant to, the Promissory Notes, including
any amendment, extension or renewal thereof, or any exchange or substitution
therefor, and (iii) to pay all other amounts, and perform, observe and comply
with all of the terms, covenants and conditions which are to be performed,
observed or complied with by the RSH Obligors under this Pledge Agreement, the
Promissory Notes or any other Settlement Document (collectively, the
"Obligations").
3. Pledged Collateral Adjustments. If, during the term
of this Pledge Agreement:
(a) Any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of Lender,
or any option or warrant included within the Pledged Collateral is
exercised, or both, or
(b) Any subscription, warrants or any other rights or
options shall be issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options or
other securities, issued by reason of any of the foregoing shall be immediately
delivered to and held by Collateral Agent under the terms of this Pledge
Agreement and shall constitute Pledged Collateral hereunder.
4. Subsequent Changes Affecting Pledged Collateral.
Pledgor represents and warrants that Pledgor has made Pledgor's own
arrangements for keeping informed of changes or potential changes affecting the
Subject Corporations or the capital structure of the Subject Corporations
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, reorganization or other exchanges, tender offers and voting
rights), and Pledgor agrees that none of Collateral Agent, Lender or
Xxxxx-Xxxxxx shall have any obligation to inform Pledgor of any such changes or
potential changes or to take any action or omit to take any action with respect
thereto.
5. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral held by Pledgor
on the date hereof have herewith been delivered to Collateral Agent,
accompanied by Powers in the form of Exhibit B duly executed in blank, and any
and all hereafter obtained or received by Pledgor shall be delivered to
Collateral Agent pursuant hereto, accompanied by Powers in the form of Exhibit
B duly executed in blank. All of the foregoing certificates shall be
accompanied by Powers in the form of Exhibit B duly executed in blank and shall
bear legends indicating that such Pledged Shares are subject to the lien and
security interest created under this Pledge Agreement. All certificates or
instruments shall be in suitable form for transfer by delivery, or shall be
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accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to Collateral Agent.
6. Representations and Warranties. Pledgor represents
and warrants to Collateral Agent, Lender and Xxxxx-Xxxxxx as follows:
(a) Pledgor is the sole legal and beneficial owner of,
and Pledgor has the complete and unconditional authority to pledge and
grant a security interest in, the Pledged Stock, as set forth in
Exhibit A, free and clear of any lien, security interest, pledge,
hypothecation, claim, charge, tax assessment, encumbrance or other
restriction of any kind or character ("Lien") except for the Lien
created by this Pledge Agreement, and the Pledged Collateral
constitutes 100% of Pledgor's interests in the Subject Corporations
except for the First Union Pledged Shares;
(b) Pledgor has full power and authority to enter into
this Pledge Agreement;
(c) There are no restrictions upon the voting rights
associated with, or upon the transfer of, or upon the grant of Lien
on, any of the Pledged Collateral;
(d) Pledgor has the right to vote, pledge, assign and
grant a security interest in or otherwise transfer such Pledged
Collateral free of any Liens, without the necessity of obtaining any
consents or authorizations from any third parties;
(e) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or regulatory
body is required either (i) for the pledge of the Pledged Collateral
pursuant to this Pledge Agreement or for the execution, delivery or
performance of this Pledge Agreement by Pledgor or (ii) for the
exercise by Collateral Agent of the voting or other rights provided
for in this Pledge Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Pledge Agreement (except as may be
required in connection with such disposition by laws affecting the
offering and sale of securities generally);
(f) The pledge of the Pledged Collateral pursuant to this
Pledge Agreement creates a valid and perfected first priority security
interest in the Pledged Collateral, in favor of Collateral Agent for
the benefit of Lender and Xxxxx- Xxxxxx, securing the payment and
performance of the Obligations;
(g) This Pledge and the Powers have been executed and
delivered by Pledgor and constitute the legal, valid and binding
obligation of Pledgor, enforceable against Pledgor in accordance with
their respective terms, except as
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enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' right
generally and except as to limitations under general equitable
principles on the availability of specific relief;
(h) The Powers are duly executed and give Collateral
Agent the authority they purport to confer;
(i) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, or before or by any
governmental authority, pending, or to the knowledge of Pledgor,
threatened against Pledgor or any property or assets of Pledgor that
will materially and adversely affect the ability of Pledgor to perform
Pledgor's obligations under this Pledge Agreement;
(j) The execution, delivery and performance of this
Pledge Agreement by Pledgor does not violate (i) any instrument or any
indenture, mortgage, or any other agreement to which Pledgor is a
party or by which any of the properties or assets of Pledgor may be
bound; or (ii) any restriction on the transfer or encumbrance of such
Pledged Collateral;
(k) Pledgor does not have any liabilities, obligations or
commitments, including, without limitation, those for taxes of any
kind, which, if adversely determined or not discharged or performed by
Pledgor, will create any Lien in or against any of the Pledged
Collateral or the Subject Corporations in which Pledgor holds any
direct or indirect interest or any direct or indirect interest of such
Pledgor therein. To the best knowledge of Pledgor there is no
liability, commitment or obligation of Pledgor or any Pledged
Collateral or the Subject Corporations in which Pledgor holds any
direct or indirect interest which is not disclosed in this Agreement
or any schedule hereto, which liability, commitment or obligation
could have a material adverse effect on the value of the Pledged
Collateral, any Subject Corporation or any interest of Pledgor
therein; and
7. Voting Rights. During the term of this Pledge
Agreement, and except as provided in this Section 7, Pledgor shall have the
right to vote the Pledged Stock on all corporate questions in a manner not
inconsistent with the terms of this Pledge Agreement, the Promissory Notes and
the other Settlement Documents.
8. Dividends and Other Distributions. (a) Subject to
Section 8(b) and so long as no Event of Default shall have occurred:
(i) Pledgor shall be entitled to receive and retain any
and all dividends and interest paid in respect of the Pledged
Collateral; provided, however, that any and all:
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(A) dividends and interest paid or payable other
than in cash with respect to, and instruments and other
property received, receivable or otherwise distributed with
respect to, or in exchange for, any of the Pledged Collateral;
(B) dividends and other distributions paid or
payable in cash with respect to any of the Pledged Collateral
on account of a partial or total liquidation or dissolution or
in connection with a reduction of capital, capital surplus or
paid-in surplus; and
(C) cash paid, payable or otherwise distributed
with respect to principal of, or in redemption of, or in
exchange for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to
Collateral Agent to hold as Pledged Collateral and shall, if received
by Pledgor, be received in trust for Collateral Agent, be segregated
from the other property or funds of Pledgor, and shall be paid over or
delivered immediately to Collateral Agent as Pledged Collateral in the
same form as so received (with any necessary endorsements); and
(ii) Collateral Agent shall execute and deliver (or cause
to be executed and delivered) to Pledgor all such proxies and other
instruments as Pledgor may reasonably request for the purpose of
enabling Pledgor to receive the dividends or interest payments which
it is authorized to receive and retain pursuant to clause (i) above.
(b) Notwithstanding the provisions of Section 8(a) and
subject to the limitations set forth below, Collateral Agent shall at all times
have the sole right to receive and retain any and all dividends, interest and
distributions paid in respect of the Pledged Collateral which, directly or
indirectly, constitute dividends, interest and distributions from the Joint
Ventures to the CP/Partnerships or JV Management, L.L.C., paid pursuant to
Sections 3.06 and/or 8.02 of the respective Amended and Restated Joint Venture
Agreements of the Joint Ventures. All dividends, interest and distributions
received by Pledgor contrary to the provisions of this Section 8(b), shall be
received in trust for Collateral Agent, be segregated from the other property
or funds of Pledgor, and shall be paid over or delivered immediately to
Collateral Agent as Pledged Collateral in the same form as so received (with
any necessary endorsements).
The foregoing obligation shall apply to any funds which are
directly or indirectly receivable by any RSH Obligor upon any sale of any Joint
Venture or Property which occurs after at least any two of the Joint Ventures
or Properties have been sold (including that such obligation applies to any
group or series of sales after which the number of Joint Ventures or Properties
sold would exceed two). Upon any such sale Pledgor shall pay into the
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RSH Escrow Account the portion of the funds receivable by Pledgor that is equal
to the product of $5.0 million multiplied by the quotient of the Stipulated
Value (as defined in Exhibit K to the Master Agreement) with respect to the
Joint Venture or Property being sold divided by the Stipulated Value of the
Joint Ventures or Properties not yet sold (including any Joint Venture or
Property then being sold) multiplied by ten percent (10%); provided, however,
that upon the sale of the last Property to be sold Pledgor shall pay into the
RSH Escrow Account such amount as is necessary so that the aggregate proceeds
deposited into the RSH Escrow Account is at least $5.0 million; provided,
further, that in the event the pledge pursuant to the Pledge Agreements by any
RSH Obligor shall become wholly or partially invalid or unenforceable, upon the
sale of any Joint Venture or Property, Pledgor shall deposit all such
distributions or sales proceeds into the RSH Escrow Account until the aggregate
proceeds deposited into the RSH Escrow Account is at least $5.0 million (taking
into account, if applicable, reductions in the amount on deposit as a
consequence of any refund or repayment arising in connection with any
invalidation or unenforceability).
Subject to the second proviso of the second sentence of the
immediately preceding paragraph, the obligation of Pledgor to make payments
into the RSH Escrow Account pursuant to this Section 8(b) shall be limited to a
cumulative $5.0 million and the obligation to make any further payments shall
terminate on the earlier to occur of (i) such time as the cumulative
distributions deposited into the RSH Escrow Account equal $5.0 million, (ii)
the date on which the Reserved Obligation described under Section 4.1(a)(iv) of
the Master Agreement shall cease in its entirety to be a Reserved Obligation
pursuant to Section 4.1(b)(iv) of the Master Agreement and (iii) the date on
which the Escrow Funds, plus Attributed Interest (as defined below) exceeds the
aggregate amount of the sum of (A) the Reserved Obligations and (B) the
Warehouse Reserve. For purposes of this Section 8(b) "Attributed Interest"
shall mean a projected amount of interest which would accrue at a simple rate
of interest of 6.0% per annum on (i) the Escrow Funds in the C-M Escrow Account
from the date of calculation through the Termination Date and (ii) the Escrow
Funds in the RSH Escrow Account from the date of calculation through the date
which is 30 months after the date of calculation. The calculation of the
amount of the Retained Distributions, Escrow Funds, the Reserved Obligations
and the Attributed Interest shall be determined as provided in Section 11.2 of
the Master Agreement.
Each Pledgor agrees to notify each Subject Corporation in
which such Pledgor holds an interest to pay such dividends, interests and
distributions directly to the RSH Escrow Account in accordance with this
Pledge.
(c) Notwithstanding any other provision of this Section
8, (A) after the occurrence of an Event of Default or (B) upon any Revocation
Closing (as defined in the Settlement Agreement) pursuant to Section 1.5 of the
Settlement Agreement:
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(i) All rights of Pledgor to receive the dividends and
interest payments that Pledgor would otherwise be authorized to
receive and retain pursuant to Section 8(a)(i) hereof shall cease, and
all such rights shall thereupon become vested in Collateral Agent
which shall thereupon have the sole right to receive and hold as
Pledged Collateral such dividends and interest payments and other
distributions, and any funds so received following a Revocation
Closing shall be immediately applied to the prepayment of the $37
Million Note, and upon payment in full thereof, prepayment of the
$11.7 Million Note;
(ii) All dividends, interest payments and other
distributions which are received by Pledgor contrary to the provisions
Section 8(c)(i) shall be received in trust for Collateral Agent, shall
be segregated from other funds of Pledgor and shall be paid over or
delivered immediately to Collateral Agent as Pledged Collateral in the
same form as so received (with any necessary endorsements);
(iii) The Pledged Collateral may be sold or otherwise
disposed of by Collateral Agent as provided in Section 10;
(iv) Pledgor shall, upon the request of Collateral Agent,
at Pledgor's expense, do or cause to be done all such other acts and
things as may be necessary to make such assignment of the Pledged
Collateral or any part thereof valid and binding and in compliance
with applicable law.
Pledgor will reimburse Collateral Agent for all expenses
incurred by Collateral Agent, including, without limitation, reasonable
attorneys' and accountants' fees and expenses in connection with the foregoing.
9. Transfers and Other Liens. Pledgor agrees that
Pledgor will not (i) sell, assign, transfer, pledge or otherwise dispose of or
encumber, or grant any option with respect to, all or any portion of the
Pledged Collateral without the prior written consent of Collateral Agent, (ii)
create or permit to exist any Lien upon or with respect to any of the Pledged
Collateral, except for the Lien under this Pledge Agreement or (iii) consent or
approve the authorization of any additional shares of capital stock of Lender.
Pledgor shall defend the title to the Pledged Collateral against all persons.
10. Remedies. (a) Collateral Agent shall have, in
addition to any other rights given under this Pledge Agreement or by law, all
of the rights and remedies with respect to the Pledged Collateral of a secured
party under the Uniform Commercial Code as in effect in the State of Delaware.
In addition, after the occurrence of an Event of Default, Collateral Agent
shall have such powers of sale and other powers as may be conferred by
applicable law. With respect to the Pledged Collateral or any part thereof
which shall then be in or shall thereafter come into the possession or custody
of Collateral
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Agent or which Collateral Agent shall otherwise have the ability to transfer
under applicable law, Collateral Agent may, in Collateral Agent's sole
discretion, without notice except as specified below, after the occurrence of
an Event of Default, sell or cause the same to be sold at any exchange,
broker's board or at public or private sale, in one or more sales or lots, at
such price as Collateral Agent may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk, and the purchaser of
any or all of the Pledged Collateral so sold shall thereafter own the same,
absolutely free from any claim, encumbrance or right of any kind whatsoever.
Lender or Xxxxx-Xxxxxx may, in its own name, or in the name of a designee or
nominee, buy the Pledged Collateral at any public sale and, if permitted by
applicable law, buy the Pledged Collateral at any private sale. Pledgor agrees
to pay to Collateral Agent, Lender and Xxxxx-Xxxxxx all reasonable expenses
(including, without limitation, court costs and reasonable attorneys' and
paralegals' fees and expenses) of, or incident to, the enforcement of any of
the provisions hereof. Collateral Agent agrees to distribute any proceeds of
the sale of the Pledged Collateral in accordance with Section 10(i) and Pledgor
shall remain liable for any deficiency following the sale of the Pledged
Collateral.
(b) Unless any of the Pledged Collateral threatens to
decline speedily in value or is or becomes of a type sold on a recognized
market, Collateral Agent will give Pledgor reasonable notice of the time and
place of any public sale thereof, or of the time after which any private sale
or other intended disposition is to be made. Any sale of the Pledged
Collateral conducted in conformity with reasonable commercial practices of
banks, commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, Pledgor agrees that any requirements of reasonable
notice shall be met if such notice is received by Pledgor at least five (5)
Business Days before the time of the sale or disposition; provided, however,
that Collateral Agent may give any shorter notice that is commercially
reasonable under the circumstances. Any other requirement of notice, demand or
advertisement for sale is waived, to the extent permitted by law.
(c) In view of the fact that federal and state securities
laws may impose certain restrictions on the method by which a sale of the
Pledged Collateral may be effected after an Event of Default, Pledgor agrees
that after the occurrence of an Event of Default, Collateral Agent may, from
time to time, attempt to sell all or any part of the Pledged Collateral (i) by
means of an underwritten public offering as provided in Section 10(d) or (ii)
by private placement as provided in Section 10(e).
(d) Collateral Agent may, at Pledgor's expense, attempt
to sell the Pledged Collateral in an underwritten public offering. In such
event Pledgor shall, upon the request of
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Collateral Agent, execute and deliver all such instruments and documents, and
do or cause to be done all such other acts and things, as may be necessary or,
in the opinion of Collateral Agent, Pledgor or Collateral Agent's or Pledgor's
counsel, advisable to assist Collateral Agent in registering the applicable
Pledged Collateral under the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), to qualify the Pledged Collateral under state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, and to assist Collateral
Agent in making all amendments and supplements thereto and to the related
prospectus which, in the opinion of Collateral Agent, Pledgor or Collateral
Agent's or Pledgor's counsel, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations
thereunder.
Pledgor shall, upon the request of Collateral Agent, at
Pledgor's expense, do or cause to be done all such other acts and things as may
be necessary to permit Collateral Agent to make such sale of the Pledged
Collateral or any part thereof valid and binding and in compliance with
applicable law and the requirements of any underwriter, including the execution
and delivery of any underwriting agreement.
Pledgor will reimburse Collateral Agent for all expenses
incurred by Collateral Agent including, without limitation, reasonable
attorneys' and accountants' fees and expenses in connection with the foregoing.
Upon or at any time after the occurrence of an Event of Default, if Collateral
Agent determines that, prior to any public offering of any securities
constituting part of the Pledged Collateral, such securities should be
registered under the Securities Act and/or registered or qualified under any
other federal or state law and such registration and/or qualification is not
practicable, then Pledgor agrees that it will be commercially reasonable if a
private sale, upon at least five (5) Business Days' notice to Pledgor, is
arranged so as to avoid a public offering, even though the sales price
established and/or obtained at such private sale may be substantially less then
prices which could have been obtained for such security on any market or
exchange or in any other public sale.
(e) Collateral Agent may, at Pledgor's expense, attempt
to sell the Pledged Collateral in a private placement restricting the bidders
and prospective purchasers to those who are qualified and will represent and
agree that they are purchasing for investment only and not for distribution.
In so doing, Collateral Agent may solicit offers to buy the Pledged Collateral,
or any part of it, from a limited number of investors deemed by Collateral
Agent, in its reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Pledged Collateral. If Collateral Agent
solicits such offers from not less than three (3) such investors, then the
acceptance by Collateral Agent of the highest offer obtained therefrom shall be
deemed to be a commercially reasonable method
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of disposing of such Pledged Collateral; provided, however, that this Section
does not impose a requirement that Collateral Agent solicit offers from three
or more investors in order for the sale to be commercially reasonable.
(f) Pledgor agrees that (i) in the event Collateral Agent
shall, upon any Event of Default, sell the Pledged Collateral or any portion
thereof at a private sale or sales, Collateral Agent shall have the right to
rely upon the advice and opinion of investment bankers engaged by Collateral
Agent as to the best price reasonably obtainable upon such a private sale and
(ii) in the absence of fraud, such reliance shall be conclusive evidence that
Collateral Agent handled such matter in a commercially reasonable manner under
applicable law.
(g) Each right, power and remedy of Collateral Agent,
Lender, Xxxxx-Xxxxxx or any collateral agent, bailee or escrow agent acting on
behalf of Lender or Xxxxx-Xxxxxx provided for in this Pledge Agreement, the
Promissory Notes or any other Settlement Document, or now or hereafter existing
at law or in equity, by statute or otherwise, shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy
provided for in this Pledge Agreement, the Promissory Notes or in any of the
other Settlement Documents, or now or hereafter existing at law or in equity,
by statute or otherwise. The exercise or the beginning of the exercise by
Collateral Agent, Lender, Xxxxx-Xxxxxx or any collateral agent, bailee or
escrow agent acting on behalf of Lender or Xxxxx-Xxxxxx of any one or more of
such rights, powers or remedies shall not preclude the simultaneous or later
exercise by any of them of any or all such other rights, powers or remedies.
Collateral Agent, Lender, Xxxxx-Xxxxxx or any collateral agent, bailee or
escrow agent acting on behalf of Lender or Xxxxx-Xxxxxx may exercise any such
right, power or remedy against Pledgor without exercising such rights, powers
or remedies against any other RSH Obligor.
(h) Pledgor hereby agrees that after the occurrence of an
Event of Default, Collateral Agent, Lender, Xxxxx-Xxxxxx or any collateral
agent, bailee or escrow agent acting on behalf of Lender or Xxxxx-Xxxxxx may
proceed to foreclose the security interest in, or exercise any rights of any of
them against, any or all collateral which any of them may hold as a security
for repayment of the Obligations in such order, and at such times, as
Collateral Agent, Lender, Xxxxx-Xxxxxx or any collateral agent, bailee or
escrow agent acting on behalf of Lender or Xxxxx-Xxxxxx may elect in its sole
discretion. No such action shall be deemed to release, relinquish, alter or
impair any rights of Collateral Agent, Lender or Xxxxx-Xxxxxx hereunder.
Pledgor hereby waives all rights which Pledgor may have under the doctrines of
marshalling of assets or marshalling of Liens.
(i) Upon the occurrence of any Event of Default and the
sale of any or all of the Pledged Collateral, the proceeds from such sale shall
be applied by Collateral Agent as follows:
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First: to payment of the costs and expenses of such sale,
including the expenses of Collateral Agent and the fees and expenses of counsel
employed in connection therewith;
Second: to the payment of the remainder of the Obligations in
such order as Collateral Agent shall determine;
Third: to the payment of any other amounts required by
applicable law;
Fourth: the balance, if any, of such proceeds shall be paid
to Pledgor, Pledgor's successor and assigns, or as a court of competent
jurisdiction may direct.
In addition, notwithstanding any other provision of this Section 10,
Lender hereby agrees that if Pledgor, promptly after the occurrence of an Event
of Default, delivers written notice to Borrower that it authorizes Lender to
forebear, for a specified period not in excess of six months, the exercise of
any remedy to sell the Pledged Collateral, Lender will not initiate any public
or private sale of the Pledged Stock during such period; provided, that at the
end of each specified period the Pledgor may extend such forbearance for an
additional period not to exceed six months.
11. Security Interest Absolute. All rights of Collateral
Agent and Xxxxx-Xxxxxx and the security interests created hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) Any lack of validity or enforceability of this Pledge
Agreement, the Promissory Notes or any other Settlement Document;
(ii) Any change in the time, manner or place of payment
of, or in any other term of, all or any part of the Promissory Notes
or any other Obligation, or any other amendment or waiver of or any
consent to any departure from this Pledge Agreement, the Promissory
Notes or any other Settlement Document;
(iii) 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 part of the Obligations;
or
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Pledgor in
respect of the Obligations or of this Pledge Agreement, the Promissory
Notes or any other Settlement Document.
12. Collateral Agent Appointed Attorney-in-Fact. Pledgor
hereby appoints Collateral Agent Pledgor's attorney-in-fact, with full
authority, in the name of Pledgor or
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13
otherwise, after the occurrence of an Event of Default, from time to time in
Collateral Agent's sole discretion, individually or jointly to take any action
and to execute any instrument which Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Pledge Agreement, including,
without limitation, to receive, endorse and collect all instruments made
payable to Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same and to arrange for the transfer of all or any
part of the Pledged Collateral on the books of Lender to the name of Collateral
Agent or Collateral Agent's nominee. After the occurrence of an Event of
Default, Collateral Agent may in Collateral Agent's sole discretion and without
notice to Pledgor, transfer or register the Pledged Collateral or any part
thereof into its or its nominee's name with or without any indication that such
Pledged Collateral is subject to the security interest hereunder. In addition,
Collateral Agent may at any time exchange certificates or instruments
representing or evidencing any Pledged Collateral for certificates or
instruments of smaller or larger denominations.
13. Duty of Care. None of Collateral Agent, Lender or
Xxxxx-Xxxxxx shall be liable for any acts, omissions, errors of judgment or
mistakes of fact or law including, without limitation, acts, omissions, errors
or mistakes with respect to the Pledged Collateral, except for those arising
out of or in connection with Collateral Agent's, Lender's or Xxxxx-Xxxxxx'x (i)
gross negligence or willful misconduct, or (ii) failure to use reasonable care
with respect to the safe custody of the Pledged Collateral in Collateral
Agent's possession. Without limiting the generality of the foregoing, none of
Collateral Agent, Lender or Xxxxx-Xxxxxx shall be under any obligation to take
any steps necessary to preserve rights in the Pledged Collateral against any
other parties but may do so at its option. All expenses incurred in connection
therewith shall be for the sole account of Pledgor, and shall constitute part
of the Obligations secured hereby.
14. Notices. All notices and other communications
provided for hereunder shall be in writing and shall be deemed given if
delivered in person or if sent by certified mail, postage prepaid, return
receipt requested, or by facsimile (answerback required), if to Collateral
Agent or Pledgor, at the addresses specified from time to time in accordance
with the Promissory Note.
15. Indemnity and Expenses. (a) Pledgor agrees to
indemnify Collateral Agent, Lender and Xxxxx-Xxxxxx from and against any and
all claims, losses and liabilities (including reasonable attorneys' fees)
arising out of or resulting from this Pledge Agreement (including, without
limitation, enforcement of this Pledge Agreement), except claims, losses or
liabilities resulting from Collateral Agent's, Lender's or Xxxxx-Xxxxxx'x xxxxx
negligence or willful misconduct.
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14
(b) Pledgor will upon demand pay to Collateral Agent,
Lender and Xxxxx-Xxxxxx the amount of any and all reasonable expenses,
including the reasonable fees and expenses of counsel to any of them and of any
experts and agents, which any of them may incur in connection with (i) the
administration of this Pledge Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Pledged Collateral, (iii) the exercise or enforcement of any of the rights
of Collateral Agent, Lender or Xxxxx-Xxxxxx hereunder or (iv) the failure by
Pledgor to perform or observe any of the provisions hereof.
16. Specific Performance. Pledgor acknowledges and
agrees that in the event of any breach of this Pledge Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that Collateral Agent, Lender and
Xxxxx-Xxxxxx, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance (including
temporary restraining orders) of this Pledge Agreement in any action instituted
in the Delaware Court of Chancery or the United States District Court for the
District of Delaware, or, in the event neither of said courts would have
jurisdiction over such action, in any court of the United States or any state
having subject matter jurisdiction. Pledgor consents to personal jurisdiction
in any such action brought in the Delaware Court of Chancery or the United
States District Court for the District of Delaware.
17. Term; Releases. This Pledge Agreement shall remain
in full force and effect until the Obligations have been fully and indefeasibly
paid in cash whether as direct payment to Lender or Xxxxx-Xxxxxx or as provided
by Article 6 of the Master Agreement. Upon the termination of this Pledge
Agreement as provided above (other than as a result of the sale of the Pledged
Collateral), Collateral Agent will release the security interest created
hereunder. This Pledge Agreement shall continue in effect notwithstanding the
occurrence of any Revocation Closing (as defined in the Settlement Agreement)
pursuant to Section 1.5 of the Settlement Agreement.
18. Cross Default. The Settlement Agreement, this Pledge
Agreement and the other Settlement Documents constitute one integrated whole.
Pledgor acknowledges and agrees that a material breach under any of the
Settlement Documents by Pledgor or any other RSH Obligor shall constitute a
material breach under each other Settlement Document including this Pledge
Agreement. Lender and Xxxxx-Xxxxxx acknowledge and agree that a material
breach under any of the Settlement Documents by Lender, Xxxxx-Xxxxxx or any
Person controlled by Lender shall constitute a material breach under each other
Settlement Document including this Pledge Agreement.
19. Reinstatement; Liens. This Pledge Agreement and the
Obligations and Liens hereunder shall continue to be
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15
effective or be reinstated, as the case may be, if at any time payment and
performance of the 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 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 Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned. Pledgor shall not contest or support any other
Person in contesting, in any actions or proceedings, the priority or validity
of any Lien or other claim in any collateral or other interest granted under
any Settlement Document by Pledgor, or any other RSH Obligor to Collateral
Agent, Lender, Xxxxx-Xxxxxx, or any collateral agent, bailee or escrow agent
acting on behalf of Lender or Xxxxx Xxxxxx.
20. Further Assurances. Pledgor agrees that Pledgor will
cooperate with Collateral Agent, Lender and Xxxxx-Xxxxxx and will execute and
deliver, or cause to be executed and delivered, all such other powers, proxies,
instruments and documents, and will take all such other actions, including,
without limitation, the execution and filing of financing statements, as
Collateral Agent may reasonably request from time to time in order to carry out
the provisions and purposes of this Pledge Agreement.
21. Survival of Representations and Warranties. The
covenants, agreements, representations and warranties of the parties hereto
made in this Pledge Agreement shall survive the closing of the transactions
contemplated hereby.
22. Successors and Assigns. This Pledge Agreement shall
be binding upon and inure to the benefit of Pledgor, Collateral Agent, Lender,
Xxxxx-Xxxxxx and their respective heirs, executors, administrators, successors
(including any representative, executor or administrator of Pledgor's estate)
and assigns. Pledgor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession of or for Pledgor.
23. Amendments, Waivers and Consents. No amendment or
waiver of any provision of this Pledge Agreement nor consent to any departure
by Pledgor from this Pledge Agreement, shall in any event be effective unless
the same shall be in writing and signed by Collateral Agent, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
24. Exhibits. The Exhibits attached to this Pledge
Agreement are incorporated herein and shall be part of this Pledge Agreement
for all purposes.
25. Section Headings. The section headings herein, and
the headings in the Exhibits hereto, are solely for
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16
convenience of reference and shall not be given any effect in the construction
or interpretation of this Pledge Agreement. Unless otherwise specified,
references in this Pledge Agreement to Sections or Exhibits are references to
Sections of, or Exhibits to, this Pledge Agreement.
26. Definitions. The singular shall include the
plural and vice versa as the context may require. Notwithstanding a Revocation
Closing (as defined in the Settlement Agreement) pursuant to Section 1.5 of the
Settlement Agreement, terms defined herein by reference to agreements which do
not survive the Revocation Closing shall continue to have the meanings ascribed
to such terms in such agreements.
27. Entire Agreement. This Pledge Agreement (including
the Exhibits hereto) and the other Settlement Documents set forth the entire
understanding of the parties hereto and supersede all prior agreements between
them with respect to the subject matter hereof and all prior negotiations
between the parties are merged in this Pledge Agreement and the other
Settlement Documents, and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth.
28. Severability. If this Pledge Agreement or any other
Settlement Document or any one or more of the provisions contained in this
Pledge Agreement or any other Settlement Document, should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of all remaining provisions shall not in any way be affected or
impaired.
29. Governing Law. THIS PLEDGE AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO ITS CONFLICT OF LAWS PRINCIPLES, EXCEPT WITH RESPECT TO THE PERFECTION OF
SECURITY INTERESTS GRANTED UNDER THIS PLEDGE AS TO WHICH THE LAWS OF THE
DISTRICT OF COLUMBIA SHALL APPLY.
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17
30. Consent to Jurisdiction, Waiver of Jury Trial.
(a) PLEDGOR, TO THE EXTENT THAT PLEDGOR MAY LAWFULLY DO
SO, HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
DELAWARE AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AS
WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM
SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING
OUT OF ANY OF PLEDGOR'S OBLIGATIONS HEREUNDER OR WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS
PLEDGOR MAY HAVE AS TO VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE
OF SUCH FORUM, IN ANY OF SUCH COURTS. IN ADDITION, TO THE EXTENT THAT PLEDGOR
MAY LAWFULLY DO SO, PLEDGOR CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL
SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
ADDRESSED TO PLEDGOR AT THE ADDRESS SPECIFIED PURSUANT TO SECTION 14 OF THIS
PLEDGE AGREEMENT. TO THE EXTENT PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE WITH RESPECT TO PLEDGOR OR PLEDGOR'S PROPERTY, PLEDGOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF PLEDGOR'S OBLIGATIONS
UNDER THIS PLEDGE AGREEMENT.
(b) PLEDGOR HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS PLEDGE
AGREEMENT.
31. Execution in Counterparts. This Pledge Agreement may
be executed in any number of counterparts, each of which shall be an original,
but all of which shall together constitute one and the same agreement.
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18
IN WITNESS WHEREOF, Pledgor and Collateral Agent have executed
this Pledge Agreement as of the date set forth above.
PLEDGOR:
/s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx
COLLATERAL AGENT:
DART GROUP CORPORATION, as
Collateral Agent and Bailee
for Dart Group Corporation and
Xxxxx-Xxxxxx Realty Company
By:/s/ Xxxxxx X. Xxxxxx
--------------------------
Name:
Title:
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19
EXHIBIT A
to
PLEDGE AGREEMENT
Pledged Stock
Name and Address Description of Certificate
of Pledgor Pledged Stock Numbers
---------------- -------------- -----------
Xxxxxx X. Xxxx 400 Shares of Common Stock, par 1
0000 Xxxxxxxxxx Xxxxxx, X.X. value $1.00 per share, of
Xxxxxxxxxx, X.X. 00000 CP/Greenbriar Retail, Inc.
400 shares of Common Stock, par 1
value $1.00 per share, of
CP/Greenbriar Office, Inc.
300 shares of Common Stock, par Not Numbered
value $1.00 per share of Bull Run,
Inc.
20
EXHIBIT B
to
PLEDGE AGREEMENT
Form of Irrevocable Stock Power
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer to _____________________________________ _____ shares of Common Stock,
$1.00 par value per share, of __________________________________, a
___________________ corporation, (the "Corporation"), represented by
Certificate No. ____ (the "Stock"), standing in the name of the undersigned on
the books of said corporation and does hereby irrevocably constitute and
appoint ___________________________________ as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Stock, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated:
----------------------------
------------------------------------------
Xxxxxx X. Xxxx
