Exhibit 10.12
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of August 12, 1997, made by each of Xxx X.
Xxxx, Xxxxx X. Xxxxxxx and Jasmine Trustees Ltd. (collectively the "Pledgors"),
in favor of CONSERVER CORPORATION OF AMERICA ("Pledgee").
W I T N E S S E T H:
WHEREAS, Pledgee has been exploring opportunities with respect to
entering into the casino and hotel business (the "New Line of Business"); and
WHEREAS, Pledgee has entered into that certain agreement (the "Sakhalin
Agreement") dated August 12, 1997 by and between Pledgee, Sakhalin General
Trading and Investments Limited ("SGTI") and Sovereign Gaming and Leisure
Limited ("Sovereign") pursuant to which the Company may acquire certain rights
with respect to the investment in and development of a hotel and casino project
in Sakhalin Island, the Russian Federation (the "Sakhalin Project"); and
WHEREAS, consummation of the transactions relating to the Sakhalin
Project contemplated by the Sakhalin Agreement are subject to the approval of
the stockholders of the Company; and
WHEREAS, Pledgors has agreed that in the event the Company does not
consummate the transactions contemplated with respect to the Sakhalin Project or
the stockholders of the Company disapprove the Company entering into the New
Line of Business at a Special Meeting of Shareholders, the Pledgors agree to
reimburse the Company for certain costs and expenses incurred by the Company in
connection with the Sakhalin Project; and
WHEREAS, in order to secure Pledgors' obligations, Pledgors have agreed
to pledge their respective shares of common stock in the Company (the "Common
Stock") to Pledgee to secure certain obligations made to the Pledgee.
NOW, THEREFORE, in order to induce Pledgee to consummate the
transactions contemplated by the Sakhalin Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgors agrees as follows:
1. Pledge and Security Interest. Pledgors hereby grants to
Pledgee a security interest in the following property (collectively, the
"Pledged Collateral"):
(a) 50,000 shares of Common Stock of Xxx X. Xxxx;
(b) 50,000 shares of Common Stock of Xxxxx X. Xxxxxxx; and
(c) 50,000 shares of Common Stock of Jasmine Trustees Ltd.
(collectively, the "Pledged Shares");
So long as this Agreement is in effect stop transfer instructions
shall be issued to Pledgee's transfer agent, if any, or, if
Pledgee transfers its own securities, a notation shall be made in
the appropriate records of Pledgee with respect to the Pledged
Shares, and so long as required, each of the certificate(s)
representing the Pledged Shares shall bear substantially the
following legend:
"The securities represented by this certificate are
subject to restrictions on transfer and may not (nor may
any interest therein), directly or indirectly,
voluntarily or involuntarily, be sold, exchanged,
mortgaged, pledged, hypothecated, given, bequeathed,
transferred, assigned, encumbered, alienated, or in any
other way whatsoever be disposed of except in accordance
with and subject to all the terms and conditions of a
certain Pledge Agreement dated as of ___________, 1997, a
copy of which is on file at the principal office of
Conserver Corporation of America."
(d) all dividends, interest, cash, instruments, and other
property from time to time received, receivable, or otherwise distributed or
distributable in respect of or in exchange for the Pledged Collateral; and
(e) all proceeds of any of the foregoing, including without
limitation, all investment property or financial assets.
2. Security for Obligations. The security interest granted
by this Agreement secures the reimbursement for certain payments made by the
Pledgee in connection with the Sakhalin Project pursuant to the Sakhalin
Agreement dated August 12, 1997, as subsequently may be amended from time to
time (hereinafter the "Obligations") in the event that the Pledgee does not
receive approval from a majority of the shareholders of the Company
("Shareholder Approval") to enter into the New Line of Business at a Special
Meeting of Shareholders. The Pledgors shall take any and all necessary actions
to reimburse the Company for any and all amounts paid by the Company with
respect to the Sakhalin Project, including any payments made by the Company to
SGTI with respect to the Sakhalin Agreement and any and all expenses relating to
the Company's termination of its rights under the Sakhalin Agreement and the
transfer of any rights and obligations thereunder to the Pledgors. The security
interest granted herein shall continue in full force and effect until the
Shareholder Approval.
3. Delivery of Pledged Collateral.
(a) All certificates or instruments representing or
evidencing the Pledged Collateral shall be held by Pledgee and shall be duly
endorsed to Pledgee or shall be otherwise in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to
Pledgee. Upon the occurrence of an Event of Default, Pledgee shall have the
right to register in its name any or all of the Pledged Collateral.
(b) This Agreement shall terminate and all certificates or
instruments representing or evidencing the Pledged Collateral shall be promptly
delivered to Pledgors upon receipt of Shareholder Approval. Pledgee will
thereafter take all action reasonably requested by Pledgors to transfer the
certificates and instruments representing the Pledged Collateral to Pledgors, to
register the certificates and instruments in Pledgors=s name and any other
action necessary to effectuate this Section.
4. Further Assurances. Pledgors agrees that at any time and
from time to time, at the expense of Pledgors, Pledgors will promptly execute
and deliver all further instruments and documents, and take all further action
that Pledgee may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable Pledgee
to exercise and enforce the rights and remedies hereunder with respect to any of
the Pledged Collateral and to any property subsequently constituting Pledged
Collateral pursuant to the terms hereof.
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5. Representations and Warranties. Each of the Pledgors
represent and warrant to Pledgee with respect to his or its Pledged Collateral
that:
(a) Each Pledgor is the record and beneficial owner of his or
its respective shares of Pledged Stock, and has all right, title and interest in
and to the Pledged Stock, and each Pledgor will have all right, title and
interest in and to any property subsequently constituting Pledged Collateral
pursuant to the terms hereof, in each case free and clear of any liens, claims,
security interests, and other encumbrances and free and clear of any warrants,
options, and other rights of third parties; and
(b) the pledge, assignment and delivery of the respective
Pledged Stock of each Pledgor pursuant to this Agreement creates a valid first
lien on and a first perfected security interest in such Pledged Stock and the
proceeds thereof, subject to no prior lien or any agreement purporting to grant
to any third party a lien on the property or assets of Pledgors which would
include the Pledged Stock.
6. Voting Rights. So long as no Event of Default (as defined
below) shall have occurred and be continuing, each Pledgor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Stock which he or it owns or any part thereof for any purpose not
inconsistent with the terms of this Agreement; provided, however, that each
Pledgor shall give Pledgee at least fifteen (15) days prior written notice of
the manner in which he or it intends to exercise any such right, or the reasons
for refraining from exercising a right to vote on any matter on which each
Pledgor is entitled to vote with respect to such Pledged Collateral, in either
case if such exercise or refrain from exercising such right to vote would have a
material adverse effect on the value of the Pledged Collateral; and, provided
further that each Pledgor shall not exercise any such right or refrain from
exercising such right to vote if Pledgee advise Pledgors, in Pledgee' reasonable
judgment, such action would have a material adverse effect on the value of the
Pledged Collateral or any part thereof.
7. Covenants.
(a) Until Shareholder Approval, each Pledgor agrees that he
or it will not:
(i) sell, assign, transfer, grant any option with
respect to, or otherwise convey any interest in any of the Pledged
Collateral;
(ii) modify in any respect whatsoever any of the terms
of or rights relating to the Pledged Collateral, including
reclassification or recapitalization thereof, without the prior written
consent of Pledgee; or
(iii) create or permit to exist any lien, security
interest, or other charge or encumbrance upon or with respect to any of
the Pledged Collateral.
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8. Events of Default. Pledgors shall be in default under
this Agreement upon the occurrence of one or more of the following (each, an
AEvent of Default@):
(i) If any statement, representation or warranty made in this
Agreement or contained in any exhibit, statement, certificate or other document
executed or delivered pursuant to or in connection with this Agreement shall
have been incorrect in any material respect when made, unless Pledgee shall not
have been materially prejudiced thereby; provided, however, that Pledgee shall
have given three (3) days prior written notice to Pledgors of such incorrect
statement, representation or warranty; or
(ii) If Pledgors shall be in default of, or shall fail to
comply with, in any material respect, any of its covenants, agreements or
obligations contained in this Agreement and, if such default is of a nature that
it is susceptible of being cured, such default shall continue uncured for a
period of ten (10) days after receipt of written notice to Pledgors from Pledgee
stating the specific default or defaults; provided, however, that if Pledgee
determine that such default is not of a nature that it is susceptible of being
cured, then Pledgee shall have given Pledgors three (3) days prior written
notice of such determination.
(iii) Failure of Pledgee to receive Shareholder Approval by
December 31, 1997.
9. Remedies Upon Default. Upon the occurrence of an Event of
Default:
(i) Pledgee may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to them, all the rights and remedies of a secured party on
default under the Uniform Commercial Code as in effect in the State of New York
(the ACode@) or under the applicable laws of any other jurisdiction and
agreements and also may, without notice except as specified below, retire and
cancel the Pledged Collateral as treasury shares, or sell the Pledged
Collateral or any part thereof in one or more parcels at public or private sale.
Pledgors agrees that at least ten days= notice to Pledgors of the time and place
of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Pledgee shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given.
Pledgee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(ii) Any and all cash proceeds received by Pledgee in respect
of any collection from, or other realization upon, all or any part of the
Pledged Collateral, in the discretion of Pledgee, may be held by Pledgee as
collateral for, and/or then or at any time thereafter applied (after payment of
any amounts payable to Pledgee pursuant to this Pledge Agreement hereof) in
whole or in part by Pledgee against, all or any part of the Obligations in such
order as Pledgee shall elect. Any surplus of such cash or cash proceeds held by
Pledgee and remaining after payment in full of all the Obligations shall be paid
over to Pledgors or to whomsoever may be lawfully entitled to receive such
surplus.
10. Private Sale. Pledgors acknowledge and recognize that
Pledgee may be unable to effect a public sale of all or a part of the Pledged
Collateral and may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
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things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. Pledgors acknowledge
that any such private sales may be at prices and on terms less favorable to
Pledgee than those of public sales, and agrees that such private sales shall be
deemed to have been made in a commercially reasonable manner and that Pledgee
have no obligation to delay sale of any Pledged Collateral to permit the issuer
thereof to register it for public sale under the Securities Act of 1933, as from
time to time amended, even if the issuer is willing to do so.
11. Indemnity and Expenses. Pledgors, jointly and severally
agree to indemnify and hold Pledgee harmless from, against and in respect of any
and all loss, liability, damage, cost or expense (including reasonable
attorneys= fees and expenses) suffered or incurred by Pledgee under or by reason
of this Agreement (including, without limitation, enforcement of this
Agreement). Pledgors will, joint and severally, upon demand, pay to Pledgee the
amount of any and all expenses, including the reasonable fees and expenses of
counsel and of any experts and agents, which Pledgee may incur in connection
with (i) the enforcement of this Agreement, (ii) the custody or preservation of,
collection from, or other realization upon, any of the Pledged Collateral, (iii)
the exercise or enforcement of any of the rights of Pledgee hereunder, or (iv)
the failure by Pledgors to perform or observe any of the provisions hereof.
12. No Delay; Single or Partial Exercise Permitted. No delay
or omission on the part of Pledgee in exercising any rights or remedies
contained herein shall operate as a waiver of such right or remedy or of any
other right or remedy, and no single or partial exercise of any right or remedy
shall preclude any other or further exercise thereof, or the exercise of any
other right or remedy. No waiver of any rights and remedies hereunder shall be
deemed made by Pledgee unless in writing and duly executed. A waiver of any
right or remedy on any one occasion shall not be construed as a bar or waiver of
any right or remedy on future occasions, and no delay, omission, waiver or
single or partial exercise of any right or remedy shall be deemed to establish a
custom or course of dealing or performance between the parties hereto.
13. Rights Cumulative. All rights and remedies of Pledgee
pursuant to this Agreement shall be cumulative and non-exclusive, and may be
exercised singularly or concurrently.
14. Severability. In the event that any provision of this
Agreement is deemed to be invalid by reason of the operation of any law, or by
reason of the interpretation placed thereon by any court or any other
governmental body or regulatory authority, this Agreement shall be construed as
not containing such provision and the invalidity of such provision shall not
affect the validity of any other provisions hereof, and any and all other
provisions hereof which otherwise are lawful and valid shall remain in full
force and effect.
15. Notices. Any and all notices or other communications
required or permitted to be given under any of the provisions of this Agreement
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shall be in writing and shall be deemed to have been duly given when personally
delivered or mailed by first class registered mail, return receipt requested, or
by commercial courier or delivery service, addressed to the parties at the
addresses set forth below (or at such other address as any party may specify by
notice to all other parties given as aforesaid):
If to Pledgors, to:
Xxx X. Xxxx
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxxxx
c/o Conserver Corporation of America
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Jasmine Trustees Ltd.
X.X. Xxx 000
Xx. Xxxxxx, Xxxxxx Xxxxxxx Xxxxxxx
If to Pledgee, to:
Conserver Corporation of America
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
16. Continuing Security Interest. This Agreement creates a
continuing security interest in the Pledged Collateral and shall (a) be binding
upon Pledgors and their successors and assigns, and (b) inure to the benefit of
Pledgee and their heirs, personal representatives, successors, transferees and
assigns. The execution and delivery of this Agreement shall in no manner impair
or affect any other security (by endorsement or otherwise) for the payment or
performance of the Obligations and no security taken hereafter as security for
payment or performance of the Obligations shall impair in any manner or affect
this Agreement or the security interest granted hereby, all such present and
future additional security to be considered as cumulative security. Any of the
Pledged Collateral may be released from this Agreement without altering,
varying, or diminishing in any way this Agreement or the security interest
granted hereby as to the Pledged Collateral not expressly released, and this
Agreement and such security interest shall continue in full force and effect as
to all of the Pledged Collateral not expressly released.
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17. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, supersedes
any previous agreements or understandings among the parties with respect to such
subject matter, and may not be modified, amended or terminated except by a
written agreement specifically referring to this Agreement signed by all of the
parties hereto.
18. Captions. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which, when taken together, shall be one and the same instrument.
20. Survival of Agreement. All covenants, agreements,
representations and warranties made herein shall continue in full force and
effect until the Obligations are paid and performed in full.
21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely therein, without regard to conflicts
of law rules or principles.
22. Jurisdiction and Venue. Each party hereby irrevocably
consents to the sole and exclusive jurisdiction and venue of the courts of the
State of New York located in New York County and of any Federal court located in
New York County in connection with any action or proceeding arising out of or
relating to this Agreement, or the breach thereof. Each party hereby irrevocably
waives any objection to the laying of venue in New York County or based on the
grounds of forum non conveniens, which such party may now or hereafter have to
the bringing of any action or proceeding in such jurisdiction in respect of this
Agreement.
23. Waiver of Right to Jury Trial. Pledgee and Pledgors each
acknowledge and agree that any controversy which may arise under this Agreement
would be based upon difficult and complex issues and therefore, Pledgee and
Pledgors each agree that any court proceeding arising out of any such
controversy will be tried in a court of competent jurisdiction by a judge
sitting without a jury.
24. No Construction Against Drafting Party. This Agreement
shall be construed and enforced without the aid of any canon or rule of law
requiring construction against the party drawing or causing this Agreement to be
drawn.
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IN WITNESS WHEREOF, Pledgors, intending to be legally bound, has
executed this Agreement as of the date first above written.
JASMINE TRUSTEES LTD.
By: /s/
-----------------------------
/s/
---------------------------------
Xxx X. Xxxx
/s/
---------------------------------
Xxxxx X. Xxxxxxx
CONSERVER CORPORATION OF AMERICA
By: /s/
----------------------------
Xxxxxxx X. Xxxxx
President
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