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EXHIBIT 10.11
PLEDGE OF DISPUTED PARTNERSHIP INTERESTS
This PLEDGE OF DISPUTED PARTNERSHIP INTERESTS (this "Pledge"),
dated as of October 6, 1995, is executed by and among Xxxxxx X. Xxxx
("Borrower"), and each Affiliate (defined below) 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). Borrower and the Affiliates are referred to herein
individually as "Pledgor" and collectively as "Pledgors."
WITNESSETH:
WHEREAS, Lender and Borrower 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, have entered into that certain Settlement Agreement of even date
herewith pursuant to which Lender and Borrower 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 Borrower,
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 Borrower, Lender and Xxxxx-Xxxxxx (the "Master
Agreement") and this Pledge, 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
Borrower and Borrower has executed and delivered 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, Borrower owns a general and/or limited partner
interest in each of (i) Combined Properties/Greenway Center Limited
Partnership, a District of Columbia limited partnership ("CP/Greenway"), (ii)
Combined Properties/Xxxxxx Xxxxxx Plaza Limited Partnership, a District of
Columbia limited partnership ("CP/Xxxxxx Xxxxxx"), (iii) CP/Greenbriar Retail
Investments Limited Partnership, a Virginia limited partnership ("CP/Greenbriar
Retail"), (iv) CP/Greenbriar Office Investments Limited Partnership, a Virginia
limited partnership ("CP/Greenbriar Office"), and (v) CP/Bull Run Limited
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Partnership, a Maryland limited partnership ("CP/Bull Run"), (collectively, the
"Partnerships");
WHEREAS, each Partnership owns a general partner interest in
the Joint Venture set forth below having the most similar name: (i) CM/XX
Xxxxxxxx Center Joint Venture, a Delaware general partnership, (ii) CM/XX
Xxxxxx Xxxxxx Plaza Joint Venture, a Delaware general partnership, (iii) CM/CP
Greenbriar Retail Joint Venture, a Delaware general partnership, (iv) CM/CP
Greenbriar Office Joint Venture, a Delaware general partnership, and (v) CM/CP
Bull Run Joint Venture, a Delaware general partnership, (collectively, the
"Joint Ventures");
WHEREAS, CM/CP Greenbriar Retail Joint Venture, a Delaware
general partnership, and CM/CP Greenbriar Office Joint Venture, a Delaware
general partnership (collectively, the "Greenbriar Upper Tier Partnerships")
own general partner interests in, respectively, Combined Properties/Greenbriar
Limited Partnership, a District of Columbia limited partnership, and Combined
Properties/Greenbriar Office Limited Partnership, a District of Columbia
limited partnership (collectively, the "Greenbriar Property Partnerships");
WHEREAS, Borrower is the Manager of and owns all the
membership interests in JV Management, L.L.C., a Delaware limited liability
company ("JV Management"), which owns all of the general partner interests in
each of the Joint Ventures which are not owned by the Partnerships or
Xxxxx-Xxxxxx;
WHEREAS, the following entities, owned, directly or
indirectly, by Borrower, own all of the general and limited partnership
interests in each of the Partnerships that are not owned directly by Borrower:
(i) CP Properties Holdings Limited Partnership, a Delaware limited partnership
("CP Holdings"), owns: (A) a 66-2/3% limited partnership interest in
CP/Greenway, (B) a 66% limited partnership interest in CP/Greenbriar Retail,
and (C) a 66% limited partnership interest in CP/Greenbriar Office; (ii) CP
Holdings MD, Inc., a Virginia corporation, owns a 1% limited partnership
interest in CP/Xxxxxx Xxxxxx; (iii) HCP Partner MD, Inc., a Delaware
corporation, owns a 1% limited partnership interest in CP/Xxxxxx Xxxxxx; and
(iv) Bull Run, Inc., a Maryland corporation, owns a 1.94% general partnership
interest in CP/Bull Run (collectively, the "Affiliates"); and
WHEREAS, Lender and Xxxxx-Xxxxxx have required, as a condition
to entering into the Settlement Documents and as a condition of Lender making
the loans evidenced by the Promissory Notes, that Borrower and each other
Pledgor execute and deliver this Pledge.
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
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which are hereby acknowledged, Collateral Agent and each Pledgor hereby agree
as follows:
1. Pledge and Assignment. Each Pledgor hereby pledges,
grants and assigns to Collateral Agent, for the benefit of Lender and
Xxxxx-Xxxxxx, a security interest in the following (collectively, the "Pledged
Collateral"):
(a) All of the right, title and interest of such Pledgor
in, to and under such Pledgor's interest as a general or limited
partner, as the case may be, in CP Holdings and each Partnership (CP
Holdings and the Partnerships collectively referred to as the "Subject
Partnerships") excluding the partnership interests owned by,
respectively, Borrower and Bull Run Inc. which are being pledged
pursuant to the Pledge of Undisputed Partnership Interests delivered
pursuant to the Master Agreement; the "Undisputed Partnership
Interests"), including, but not limited to:
(i) the profits and losses of the Subject
Partnerships and the rights, as a general or limited partner
of any of the Subject Partnerships, as the case may be, to
receive distributions of the assets of any of the Subject
Partnerships, whether now existing or hereafter arising,
whether arising under the terms of the respective partnership
agreement of any of the Subject Partnerships (as any such
agreement, heretofore or hereinafter may be amended, restated,
supplemented or otherwise modified from time to time the
"Organizational Agreements") or otherwise, or at law or in
equity, and any and all proceeds therefrom (such now-owned
member or partnership interests being identified on Exhibit A
attached hereto and made a part hereof),
(ii) all options and warrants for the purchase of
partnership interests of any of the Subject Partnerships now
or hereafter held in the name of such Pledgor (all of said
member or partnership interests, options and warrants under
clauses (i) and (ii) held in the name of any Pledgor,
including as a result of the exercise of options or warrants,
being hereinafter collectively referred to as the "Assigned
Partner Interests"),
(iii) all dividends, distributions, 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 Assigned Partner Interests,
(iv) all voting rights of such Pledgor with respect
to any of the Subject Partnerships, now or hereafter acquired,
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(v) any other right or privilege that such Pledgor
presently has, is entitled to, may be entitled to, or shall
acquire pursuant to the Organizational Agreements of any of
the Subject Partnerships, or conferred by statute, law, rule,
regulation, or decision, and
(vi) any other interest whatsoever of such Pledgor to
which such Pledgor is entitled as owner of member or
partnership interests in any of the Subject Partnerships,
whether now owned or hereafter acquired;
(b) All additional partnership interests of any of the
Subject Partnerships from time to time acquired by Pledgor in any
manner (any such additional member or partnership interests shall
constitute part of the Assigned Partner Interests and Collateral Agent
is irrevocably authorized to amend Exhibit A from time to time to
reflect such additional partnership interests);
(c) The property and interests in property described in
Section 5; 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 Borrower or any other obligor
(including the Pledgors) under the Settlement Documents which is controlled by
Borrower (collectively with Borrower, the "RSH Obligors") arising pursuant to,
or on account of this Pledge, the Promissory Notes and the other Settlement
Documents, including, without limitation, the obligations of the RSH Obligors
to Xxxxx-Xxxxxx, Lender (on its behalf and as 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 or any 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, or (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, the Promissory Notes or any other Settlement Document
(collectively, the "Obligations").
3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral, if any, held by
each Pledgor on the date hereof have herewith been delivered to Collateral
Agent and any and all hereafter obtained or received by each Pledgor shall be
delivered to Collateral Agent pursuant hereto. All certificates or instruments
shall be in suitable form for transfer by delivery,
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or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to Collateral Agent.
4. Registration and Acknowledgments. Each Pledgor who
is a general partner of any of the Subject Partnerships hereby consents to the
pledge and assignment under this Pledge of the Assigned Partner Interests in
the Subject Partnerships, agrees to register in the books and records of any of
the Subject Partnerships, as the case may be, the pledges of the Assigned
Partner Interests to Collateral Agent. Each Pledgor, as a limited partner
and/or general partner in one or more of the Subject Partnerships, does hereby
acknowledge and agree that upon notice by Collateral Agent to any of the
Subject Partnerships, as the case may be, that an Event of Default has occurred
and is continuing, Collateral Agent or its designee shall be treated as an
"assignee" for all purposes under the Organizational Agreement of any of the
Subject Partnerships, as the case may be.
5. Pledged Collateral Adjustments. If, during the term
of this Pledge:
(a) Any reclassification, readjustment or other change is
declared or made in the member or partnership structure of any of the
Subject Partnerships, 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 member or partnership interests,
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 and shall constitute Pledged Collateral hereunder.
6. Subsequent Changes Affecting Pledged Collateral.
Each Pledgor represents and warrants that such Pledgor has independently made
arrangements for keeping such Pledgor informed of changes or potential changes
affecting the Pledged Collateral (including, but not limited to, rights to
convert, rights to subscribe, payment of distributions, reorganization or other
exchanges, offers to purchase and voting rights), and such Pledgor agrees that
none of Collateral Agent, Lender or Xxxxx-Xxxxxx shall have any obligation to
inform such Pledgor of any such changes or potential changes or to take any
action or omit to take any action with respect thereto. Collateral Agent may,
at any time in its discretion and without notice, 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
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Pledged Collateral for certificates or instruments of smaller or larger
denominations.
7. Representations and Warranties. Borrower represents
and warrants to Collateral Agent, Lender and Xxxxx-Xxxxxx as follows with
respect to each Pledgor (including Borrower) and each other Pledgor represents
and warrants to Collateral Agent, Lender, and Xxxxx-Xxxxxx as follows:
(a) Subject to the claims asserted in the action set
forth on Schedule 7(i), such Pledgor is the sole legal and beneficial
owner of the issued and outstanding partnership interests of any of
the Subject Partnerships, as set forth in Exhibit A hereto, 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 and
the Escrow Agreement and the Pledged Collateral constitutes 100% of
such Pledgor's interests in the Subject Partnerships, other than the
Undisputed Partnership Interests;
(b) Subject to the claims asserted in the action set
forth on Schedule 7(i), such Pledgor has full power and authority to
enter into this Pledge and the Escrow Agreement;
(c) Subject to the claims asserted in the action set
forth on Schedule 7(i), 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) Subject to the claims asserted in the action set
forth on Schedule 7(i), such Pledgor has the right to vote, pledge,
assign and grant a security interest in or otherwise transfer such
Pledged Collateral and pledge and assign such Pledgor's interest in
the RSH Escrow Account, in each case 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 is required
either (i) for the pledge and assignment of the Pledged Collateral
pursuant to this Pledge or the pledge and assignment of the RSH Escrow
Account pursuant to the Escrow Agreement or for the execution,
delivery or performance of this Pledge and the Escrow Agreement by
such Pledgor or (ii) for the exercise by Collateral Agent of the
voting or other rights provided for in this Pledge or the remedies in
respect of the Pledged Collateral pursuant to this Pledge (except as
may be required in connection with such disposition by laws affecting
the offering and sale of securities generally) and the Escrow
Agreement;
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(f) Subject to the claims asserted in the action set
forth on Schedule 7(i), the pledge and assignment of the Pledged
Collateral pursuant to this Pledge and the pledge and assignment of
such Pledgor's interest in the RSH Escrow Account pursuant to the
Escrow Agreement each 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) Exhibit B sets forth a complete list of the
Organizational Agreements of each Pledgor (other than Borrower) and
each Pledgor (other than Borrower) has delivered true and complete
copies of its Organizational Agreements to the Dart Parties. Each
Organizational Agreement to which such Pledgor is a party, has been
duly and validly authorized, executed and delivered by such Pledgor
and constitutes the legal, valid and binding obligation of such
Pledgor, enforceable against such Pledgor in accordance with its
terms, except as 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) Subject to the claims asserted in the action set
forth on Schedule 7(i), each of this Pledge and the Escrow Agreement
has been duly and validly authorized, executed and delivered by and on
behalf of such Pledgor and constitutes the legal, valid and binding
obligation of such Pledgor, enforceable against such Pledgor in
accordance with their respective terms, except as 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;
(i) Except as described in Schedule 7(i), (a) there are
no actions, suits, proceedings, investigations or claims pending or,
to the knowledge of such Pledgor, threatened against such Pledgor, or
any other party, or involving or which affect or could affect any of
the Properties which such Pledgor, directly or indirectly, owns or any
direct or indirect interest of such Pledgor in the Subject
Partnerships, in any respect, or which relate to any of the
transactions contemplated by this Pledge or the other Settlement
Documents and which, if successful, could restrain or prohibit the
consummation of such transactions, and (b) none of such Pledgor, any
of the Properties or Subject Partnerships in which such Pledgor owns a
direct or indirect interest or any such interest, is subject to any
order, judgment, writ, decree, decision or award that affects or could
affect in any respect such Pledgor, any
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such Properties or Subject Partnership or any interest of such Pledgor
therein;
(j) Such Pledgor (other than Borrower) (i) is a limited
liability company, partnership or corporation, as the case may be,
duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation, (ii) is duly qualified to do
business and is in good standing under the laws of each jurisdiction
in which it owns or leases real property or in which the nature of
such Pledgor's business requires such Pledgor to be so qualified,
except where the failure to so qualify would not have a material and
adverse effect on the financial condition of such Pledgor, and (iii)
has all requisite power and authority to own, operate and encumber
such Pledgor's property and assets and to conduct such Pledgor's
business as presently conducted;
(k) The execution, delivery and performance of this
Pledge and the Escrow Agreement by such Pledgor does not violate (i)
any charter or organizational agreement (including the Organizational
Agreements) or instrument or any indenture, mortgage, or any other
agreement to which such Pledgor is a party or by which any of such
Pledgor's properties or assets may be bound; or (ii) subject to the
claims asserted in the action set forth on Schedule 7(i), any
restriction on the transfer or encumbrance of such Pledged Collateral;
(l) Borrower is the sole general partner of CP/Greenway
and CP/Xxxxxx Xxxxxx and Borrower, directly or indirectly, controls
CP/Greenbriar Office, Inc., CP/Greenbriar Retail, Inc. and Bull Run,
Inc., (collectively with Borrower, the "Joint Venture General
Partners") which are the sole general partners of, respectively,
CP/Greenbriar Office, CP/Greenbriar Retail and CP/Bull Run;
(m) The Subject Partnerships in which such Pledgor holds
any direct or indirect interest have no debts or liabilities other
than indebtedness under the Underlying Loan Documents in the
outstanding amount set forth on Schedule 7(m), their guaranties of
RSH's and Xxxxxxx X. Xxxx'x obligations as indemnitors of Xxxxxx,
Xxxxx and Xxxxxx Xxxx under that certain Indemnification Agreement
dated as of July 31, 1994 (the "Haft Family Indemnification
Agreement"), and those incurred prior to the date hereof in the
ordinary course of business. Except as noted on Schedule 7(m), the
indebtedness evidenced by the Underlying Loan Documents and all of
such other obligations are in good standing and no situation exists
or, with the passage of time or the giving of notice (or both) could
exist, which would constitute a default thereunder or cause the
acceleration thereof. Borrower has delivered to Collateral Agent
true, accurate and complete copies of the Underlying
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Loan Documents and of the Haft Family Indemnification Agreement;
(n) Except for any Lien granted under the Settlement
Documents or the Underlying Loan Documents (as described in Schedule
7(m)), the Properties in which such Pledgor holds any direct or
indirect interest are free and clear of any and all Liens (other than
such Liens, if any, which may have been placed on the Properties by
action of Xxxxx-Xxxxxx as a general partner of the Joint Ventures of
which Pledgor has no knowledge as of the date hereof), and to the best
of Pledgor's knowledge, there are no claims which could result in a
Lien of any kind thereon;
(o) With respect to each Partnership (or its respective
predecessors-in-interest) in which such Pledgor holds any direct
interest, such Partnership has made all capital contributions to the
Joint Venture in which such Partnership is a partner required of it
and has received all distributions to which it is entitled. Each
Pledgor (or its respective predecessors-in-interest) which holds a
direct interest in any Partnership has made all capital contributions
to such Partnership required of such Pledgor and has received all
distributions to which such Pledgor is entitled. No Pledgor has made
any loan to or otherwise advanced any money to or on behalf of any
Joint Venture, Greenbriar Property Partnership or Partnership. Each
Joint Venture has on or before the date hereof distributed to the
partners in such Joint Venture all "Operating Cash Flow", "Capital
Cash Flow " or "Distributable Cash Flow" (as such terms are defined in
the respective Joint Venture Agreements as in effect prior to the
consummation of the transactions contemplated by this Agreement) as
determined as of September 30, 1995;
(p) Except as set forth in Schedule 7(p), such 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 such Pledgor, will create
any Lien in or against any of the Properties, any of the Subject
Partnerships in which such Pledgor holds any direct or indirect
interest, or any direct or indirect interest of such Pledgor therein.
To the best knowledge of such Pledgor there is no liability,
commitment or obligation of such Pledgor or any Property or any of the
Subject Partnerships in which such Pledgor holds any direct or
indirect interest which is not disclosed in this Agreement or the
Schedules hereto, which liability, commitment or obligation could have
a material adverse effect on the value of the Properties, any Subject
Partnership or any interest of such Pledgor therein;
(q) To the best knowledge of such Pledgor there is no
event or condition affecting any of the Properties, Joint
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Ventures or Greenbriar Property Partnerships, which, if included the
assumptions and facts set forth in the appraisals identified on
Schedule 7(q), could have a material adverse effect on the valuation
of the Properties set forth in such appraisals;
provided, however, that the representations set forth in this Section are
subject to the limitation that they do not address whether, in executing and
delivering this Pledge, any Pledgor has acted within its respective fiduciary
responsibility to other partners of any Subject Partnership.
8. Voting Rights. During the term of this Pledge, and
except as provided in this Section 8, each Pledgor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Collateral on all partnership questions, as the case may be, in a
manner not inconsistent with the terms of this Pledge, the Promissory Notes and
the other Settlement Documents. After the occurrence of an Event of Default,
Collateral Agent may, at Collateral Agent's sole option and following written
notice from Collateral Agent to such Pledgor, exercise all voting and other
consensual rights pertaining to the Pledged Collateral, including the right to
take action by consent of partners.
9. Dividends and Other Distributions. (a) Subject to
Section 9(b) and so long as no Event of Default shall have occurred:
(i) Each Pledgor shall be entitled to receive and retain
any and all dividends, interest and distributions paid in respect of
the Pledged Collateral; provided, however, that any and all dividends,
interest and distributions 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 shall be Pledged Collateral, and shall be forthwith
delivered to Collateral Agent to hold as Pledged Collateral and shall,
if received by such Pledgor, be received in trust for Collateral
Agent, be segregated from the other property or funds of such 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 each Pledgor all such proxies and
other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to receive the dividends,
distributions or interest payments which it is authorized to receive
and retain pursuant to clause (i) above.
(b) Notwithstanding the provisions of Section 9(a) and
subject to the limitations set forth below, Collateral Agent
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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 Partnerships, 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 any
Pledgor contrary to the provisions of this Section 9(b), shall be received in
trust for Collateral Agent, be segregated from the other property or funds of
such 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 the Pledgor or Pledgors entitled to
receive distributions or sale proceeds shall pay into the RSH Escrow Account
the portion of the funds receivable by such Pledgor or Pledgors 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 the Pledgor or Pledgors
entitled to receive distributions or sale proceeds 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, the Pledgors entitled to receive
distributions or sale proceeds as a consequence of any such sale 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 obligations of the Pledgors to make
payments into the RSH Escrow Account pursuant to this Section 9(b) shall be
limited to a cumulative $5.0 million and the obligation to make such 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
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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 sum of the aggregate amount of (A) the Reserved
Obligations and (B) the Warehouse Reserve. For purposes of this Section 9(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 hereby notifies the general partner of each
Subject Partnership 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. The general partner of each Subject Partnership
hereby consents and agrees to make such payments in accordance with this
Pledge.
(c) Notwithstanding any other provision of this Section
9, (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:
(i) All rights of any Pledgor to receive the dividends,
interest payments and other distributions which it would otherwise be
authorized to receive and retain pursuant to Section 9(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, 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
$11.6 Million Note;
(ii) All dividends, interest payments and other
distributions which are received by any Pledgor contrary to the
provisions of Section 9(c)(i) shall be received in trust for
Collateral Agent, shall be segregated from other funds of such 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
(iii) Each Pledgor shall, upon the request of Collateral
Agent, at such 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.
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Each 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.
10. Other Covenants. (a) Transfers and Other Liens.
Each Pledgor agrees that, other than the Lien created hereby, such 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 or (iii) consent or approve the creation of any
other Manager or Member interest in any Subject Partnership or any other
partnership interest in any Subject Partnership. The Joint Venture General
Partners shall at all times remain the sole general partners of the Joint
Ventures.
(b) Further Assurances of Title. Each Pledgor shall
defend the title to the Pledged Collateral against all natural persons,
partnerships, limited liability companies, corporations, joint ventures,
trusts, estates, joint-stock companies, unincorporated organizations or
governments or any agencies or political subdivisions thereof (a "Person") and
shall, upon request of Collateral Agent (i) furnish further assurance of title,
and (ii) execute and deliver to Collateral Agent, in form satisfactory to
Collateral Agent, any financing or continuation statement as Collateral Agent
may reasonably request in order to perfect, preserve, maintain or continue
perfected the Lien created hereunder or its priority.
(c) Preservation of Existence. Each Pledgor shall
perform and observe all of the terms of the Organizational Agreements required
on the part of such Pledgor to be performed or observed. No Pledgor shall
consent to any modification or amendment thereof without the prior written
approval of Collateral Agent. No Pledgor shall take, or shall permit to be
done, any act which might result in the termination, dissolution, liquidation,
merger or consolidation of such Pledgor or any of the Subject Partnerships.
(d) Indebtedness; Contingent Liabilities.
(i) Each Pledgor covenants that it will
insure that none of any Joint Venture, Partnership or Greenbriar
Property Partnership, directly or indirectly (A) incur, assume or
suffer to exist any Indebtedness (hereinafter defined) other than
Indebtedness existing as of the date hereof and renewals, extensions
and replacements thereof not exceeding the outstanding principal
balance of any such Indebtedness on the date hereof, (B) enter into
any operating guarantee, equity investment, commitment or other
instrument, document or obligation which creates any contingent
liability, (C) make any loan or advance or extend
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credit to any Person or (D) permit any Lien to exist on any Property
other than Liens securing Indebtedness permitted by clause (A) above.
(ii) For purposes of this Pledge,
"Indebtedness" shall mean at any time (A) indebtedness of any Person
for borrowed money or for the deferred purchase price of property or
services purchased (other than amounts constituting accrued expenses,
trade payables (payable within 90 days) and incidental debt arising in
the ordinary course of business), (B) obligations of any Person in
respect of letters of credit, acceptance facilities or drafts or
similar instruments issued or accepted by banks and other financial
institutions for the account of such Person, (C) deferred payment
obligations of any Person resulting from the adjudication or
settlement of any claim or litigation, and (D) indebtedness of others
of the type described in clauses (A), (B) and (C) above which any
Person has (1) directly or indirectly assumed from another Person, or
guarantied, or (2) secured by a lien on the assets of any such Person,
whether or not such Person, has assumed such indebtedness.
(e) Changes in Business. No Subject Partnership shall
alter the nature of their respective businesses in any material respect without
the prior written consent of Lender.
(f) Consolidation, Merger, Sale or Purchase of Assets.
Except as otherwise permitted by the provisions of this Section 10(f), without
the prior written consent of Collateral Agent, which consent may be granted or
withheld in the sole and absolute discretion of Collateral Agent, no Pledgor,
nor any of Subject Partnership (in one transaction or series of transactions)
shall (i) wind up, liquidate or dissolve its affairs, (ii) enter into any
transaction of merger or consolidation, (iii) sell or otherwise dispose of all
or any part of its property or assets, (iv) purchase, lease or otherwise
acquire all or any part of the property or assets of any Person if such
purchase, lease or other acquisition would violate the provisions of Section
10(d), or (v) agree to do or suffer any of the foregoing. Notwithstanding the
foregoing, the Joint Ventures (other than the Greenbriar Upper Tier
Partnerships) and the Greenbriar Property Partnerships shall have the right to
sell, in the ordinary course of business, furniture and equipment (other than
equipment integral to their respective businesses) and shall be permitted to
sell the respective Properties which they own if such sale shall have been
consented to, or initiated by, Xxxxx-Xxxxxx in accordance with the provisions
of the respective Joint Venture Agreements.
(g) Taxes and Charges. Each Pledgor shall duly pay and
discharge as to itself, and cause to be paid and discharged as to each Subject
Partnership, before the same shall become delinquent, all federal, state or
local taxes, assessments, levies and other governmental charges imposed upon
any such
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Pledgor and any such Person in which such Pledgor directly or indirectly owns
an interest, or their respective properties, sales and activities or any part
thereof, or upon the income or profits therefrom as well as all claims for
labor, materials, or supplies which if unpaid might by law become a Lien upon
any other property of such Pledgor and any such Person in which such Pledgor
directly or indirectly owns an interest.
(h) Maintenance of Licenses. Each Pledgor will insure
that such Pledgor and the Subject Partnerships maintain all licenses, permits,
charters and registrations which are material to the conduct of their
respective businesses.
(i) Insurance. Each Pledgor shall insure that the Joint
Ventures which own Properties and the Greenbriar Property Partnerships shall
maintain in full force and effect at all times such insurance as is in place on
the date hereof on substantially similar terms and amounts and such other
insurance, if any, as may be required from time to time pursuant to the Joint
Venture Agreements.
11. Remedies. (a) Collateral Agent shall have, in
addition to any other rights given under this Pledge 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 Agent or which Collateral Agent shall otherwise have the ability to
transfer under applicable law, Collateral Agent may, in its 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.
Notwithstanding any other rights or remedies of Collateral
Agent, Lender and Xxxxx-Xxxxxx in view of the fact that the Pledged Collateral
represents an indirect interest in the Properties and that the ability to sell
the Pledged Collateral is limited without the right to sell the Properties, the
Pledgors hereby acknowledge and agree that in addition to any other right and
remedy, Collateral Agent, in its sole discretion, may exercise the voting
rights granted under Section 8 and with the consent of the other partners in
the Joint Venture, may cause
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the sale of the Properties as provided in Section 4.04 of the respective Joint
Venture Agreements.
Each 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 11(f) and each 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 each Pledgor which owns Pledged Collateral
that is to be sold 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,
each Pledgor agrees that any requirements of reasonable notice shall be met if
such notice is received by such 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, each 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 by
means of 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 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.
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(d) 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, 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, 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
any or all of the Pledgors or the Subject Partnerships without exercising such
rights, powers or remedies against any other Pledgor, all of Pledgors or any or
all of the Subject Partnerships.
(e) Each 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 its
rights against, any or all collateral which it 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. Each Pledgor
hereby waives all rights which such Pledgor may have under the doctrines of
marshalling of assets or marshalling of Liens.
(f) 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:
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 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 the Pledgor who owns the Pledged Collateral so
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sold, such Pledgor's successor and assigns, or as a court of competent
jurisdiction may direct.
(g) In addition, notwithstanding any other provision of
this Section 11, Lender hereby agrees that if each Pledgor, promptly after the
occurrence of an Event of Default, delivers written notice to Borrower that
they authorize 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 Assigned Partner Interests
during such period; provided, that at the end of any specified period the
Pledgors may extend such forbearance for one additional period not to exceed
six months.
12. Prospective Economic Benefits; Limits on Pledge and
Assignment. (a) In addition to any other rights granted under this Pledge,
each Pledgor covenants to deliver to the RSH Escrow Account dividends, interest
and distributions and other payments of any sort whatsoever constituting
Pledged Collateral which any such Pledgor may hereafter derive, directly or
indirectly, from distributions paid from the Joint Ventures to the Partnerships
in such amounts, and when and to the extent required to be paid to the RSH
Escrow Account pursuant to Section 9(b) (the "Prospective Economic Benefits").
(b) It is intended that the assignments and security
interests created under the Escrow Agreement and this Pledge are pledges of
general intangibles governed by Section 9-318 of the Uniform Commercial Code,
as adopted in any jurisdiction relevant to this Agreement. However, if and to
the extent the provisions of the Escrow Agreement or this Pledge would allow
any other partner in any Subject Partnership to invoke a right of first offer
or first refusal with respect to any such interest and such other partner
indicates a desire to do so, then, without further action by the parties
hereto, the provisions of the Escrow Agreement and this Pledge shall be
suspended immediately with respect to such interest, and, if necessary, shall
become null and void, with respect to such interest until such time, if any, as
such right of first offer or first refusal is no longer applicable or waived.
13. Security Interest Absolute. All rights of Collateral
Agent, Lender and Xxxxx-Xxxxxx and security interests created hereunder, and
all obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(i) Any lack of validity or enforceability of this
Pledge, 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
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this Pledge, 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, any Pledgor in
respect of the Obligations or of this Pledge, the Promissory Notes or
any other Settlement Document.
14. Collateral Agent Appointed Attorney-in-Fact. Each
Pledgor hereby appoints Collateral Agent Pledgor's attorney-in-fact, with full
authority, in the name of Pledgor or otherwise, after the occurrence of an
Event of Default, from time to time in Collateral Agent's sole discretion, to
take any action and to execute any instrument which Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Pledge, including,
without limitation, to receive, endorse and collect all instruments made
payable to any 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 any of the Subject Partnerships
to the name of Collateral Agent or Collateral Agent's nominee.
15. Consent of Pledgors and Partnerships. By execution
of this Pledge, each Pledgor hereby consents and agrees to all of the terms,
conditions and provisions hereof and waives and relinquishes any and all rights
which it may have with respect to the collateral pledged under this or any
other Pledge Agreement, whether pursuant to any and all Organizational
Agreements or otherwise.
16. 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 the Pledgors, and shall constitute
part of the Obligations secured hereby.
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17. 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) at the address of
Borrower (for notices addressed to Borrower and each other Pledgor) and at the
address of Collateral Agent (for notices to Collateral Agent, Lender and
Xxxxx-Xxxxxx), each as specified from time to time in accordance with the
Promissory Note.
18. Indemnity and Expenses. (a) Each Pledgor agrees to
indemnify Collateral Agent, Lender and Xxxxx-Xxxxxx from and against any and
all claims, losses and liabilities (including reasonable attorneys' fees)
growing out of or resulting from this Pledge (including, without limitation,
enforcement of this Pledge), except claims, losses or liabilities resulting
from Collateral Agent's, Lender's or Xxxxx-Xxxxxx'x gross negligence or willful
misconduct.
(b) Each 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 its counsel and of any experts
and agents, which any of them may incur in connection with (i) the
administration of this Pledge, (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 and Xxxxx-Xxxxxx hereunder or (iv) the failure by any
Pledgor to perform or observe any of the provisions hereof.
19. Specific Performance. Each Pledgor acknowledges and
agrees that in the event of any breach of this Pledge, 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 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. Each 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.
20. Term. This Pledge shall remain in full force and
effect until the first to occur of: (i) the date on which the Obligations
shall have been fully and indefeasibly paid in cash and (ii) the date on which
all the Properties shall have been sold and the distributions related thereto
shall have been distributed in accordance with Section 9. Notwithstanding the
foregoing, upon the sale of any Property, the pledge by any
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Pledgor hereunder of any interests in any Subject Partnership which directly or
indirectly owns an interest in such Property shall be released to the extent of
such interests upon the sale of such Property; provided, however that the
pledge by any such Pledgor of interests in any Subject Partnership which
directly or indirectly own interests in any other Property shall remain in full
force and effect; provided, further, that no release shall relieve any Pledgor
of the obligation, if any at such time, to deposit funds representing the
proceeds of the sale of a Property into the RSH Escrow Account pursuant to
Section 9 or 12. Upon the termination of this Pledge 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 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.
21. Cross Default. The Settlement Agreement, this Pledge
and other Settlement Documents constitute one integrated whole. Each Pledgor
acknowledges and agrees that a material breach under any of the Settlement
Documents by Borrower or any other RSH Obligor (including any Pledgor) shall
constitute a material breach under each other Settlement Document including
this Pledge. Lender and Xxxxx-Xxxxxx each acknowledges and agrees 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.
22. Reinstatement; Liens. This Pledge and the
Obligations and Liens hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Obligations by Borrower or any other RSH Obligor, or any part thereof
(including the receipt of any collateral or proceeds 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. No Pledgor shall 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 Borrower, or any other RSH Obligor (including any
Pledgor) controlled by Borrower to Collateral Agent, Lender, Xxxxx-Xxxxxx or
any collateral agent, bailee or escrow agent acting on behalf of Lender or
Xxxxx-Xxxxxx.
23. Further Assurances. Each 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,
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instruments, agreements 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.
24. Survival of Representations and Warranties. The
covenants, agreements, representations and warranties of the parties hereto
made in this Pledge shall survive the closing of the transactions contemplated
hereby.
25. Successors and Assigns. This Pledge shall be binding
upon and inure to the benefit of each Pledgor, Collateral Agent, Lender,
Xxxxx-Xxxxxx and their respective heirs, executors, administrators, successors
(including any representative, executor or administrator of Borrower's estate)
and assigns. Each Pledgor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession of or for any Pledgor.
26. Amendments, Waivers and Consents. No amendment or
waiver of any provision of this Pledge nor consent to any departure by any
Pledgor from this Pledge, 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.
27. Exhibits and Schedules. The Exhibits and Schedules
attached to this Pledge are incorporated herein and shall be part of this
Pledge for all purposes.
28. Section Headings. The section headings herein, and
the headings in the Exhibits and Schedules hereto, are solely for convenience
of reference and shall not be given any effect in the construction or
interpretation of this Pledge. Unless otherwise specified, references in this
Agreement to Sections, Exhibits or Schedules are references to Sections of, or
Exhibits or Schedules to, this Pledge.
29. 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.
30. Entire Agreement. This Pledge (including the
Exhibits and Schedules 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 and the other
Settlement Documents, and there are no promises, agreements, conditions,
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undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth.
31. Severability. If this Pledge or any other Settlement
Document or any one or more of the provisions contained in this Pledge 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.
32. Governing Law. THIS PLEDGE 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.
33. Consent to Jurisdiction, Waiver of Jury Trial.
(a) EACH PLEDGOR, TO THE EXTENT THAT SUCH 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 SUCH PLEDGOR'S OBLIGATIONS HEREUNDER OR WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS
SUCH 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 SUCH PLEDGOR MAY LAWFULLY DO SO, EACH PLEDGOR CONSENTS TO THE SERVICE OF
PROCESS BY PERSONAL SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO SUCH PLEDGOR AS SPECIFIED PURSUANT TO SECTION
17. TO THE EXTENT ANY 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 SUCH PLEDGOR OR SUCH PLEDGOR'S PROPERTY, SUCH PLEDGOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF SUCH PLEDGOR'S
OBLIGATIONS UNDER THIS PLEDGE.
(b) EACH PLEDGOR HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL
BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS PLEDGE.
34. Execution in Counterparts. This Pledge 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.
IN WITNESS WHEREOF, Borrower, each other Pledgor and
Collateral Agent have executed this Pledge as of the date first set forth
above.
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BORROWER AND PLEDGOR:
/s/ Xxxxxx X. Xxxx
----------------------------------------
Xxxxxx X. Xxxx
ALL OTHER PLEDGORS:
CP PROPERTIES HOLDINGS LIMITED
PARTNERSHIP
By: CP Properties Holdings, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
President
CP HOLDINGS MD, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
President
HCP PARTNER MD, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
President
BULL RUN, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
President
COLLATERAL AGENT:
DART GROUP CORPORATION, as Collateral
Agent and Bailee for Dart Group
Corporation and Xxxxx-Xxxxxx Real
Estate Company
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
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EXHIBIT A
PLEDGE OF DISPUTED PARTNERSHIP INTERESTS
Percentage of
Outstanding
General/Limited
Partnership
Interests owned
Name of Pledgor Name of Partnership by Pledgor
--------------- ------------------- ---------------
Xxxxxx X. Xxxx CP/Bull Run 33% (limited)
Limited
Partnership
CP Properties Holdings
Limited Partnership quitclaim
Combined Properties/ 31.84% (limited)
Brigs Xxxxxx Plaza
Limited Partnership
CP Properties Combined Properties/ 66.66% (limited)
Holdings Limited Greenway Center
Partnership Limited Partnership
CP/Greenbriar 66% (limited)
Office Investments
Limited Partnership
CP/Greenbriar 66% (limited)
Retail Investments
Limited Partnership
CP Holdings MD, Combined Properties/ 1% (limited)
Inc. Xxxxxx Xxxxxx Plaza
Limited Partnership
HCP Partner MD, Combined Properties/ 1% (limited)
Inc. Xxxxxx Xxxxxx Plaza
Limited Partnership
Bull Run, Inc. CP/Bull Run 1.94% (general)
Limited Partnership
