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EXHIBIT 10.9
STOCK AND TRUST CERTIFICATE PLEDGE AGREEMENT
This STOCK AND TRUST CERTIFICATE PLEDGE AGREEMENT (this
"Pledge Agreement"), dated as of October 6, 1995, is made by Xxxxxx X. Xxxx
("Pledgor") in favor of Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx, as
collateral agents and bailees (in such capacity, "Collateral Agent") for Dart
Group Corporation, a Delaware corporation ("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 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 Borrower, 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
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, Pledgor (i) is the legal and beneficial owner of
25,246 shares of Class B Common Stock, $1.00 par value per share, of Lender
(the "Class B Common Stock"), (ii) concurrently with the execution and delivery
of this Pledge Agreement, will become the owner of 197,048 shares of Class B
Common Stock, (iii) is the legal and beneficial owner of and 119,506 shares of
Class A Common Stock, $1.00 par value per share, of Lender ("Class A Common
Stock"), and (iv) pursuant to and subject to the terms and conditions of the
Settlement Agreement, the Board of Directors of Lender may authorize the
issuance to Borrower of the New Class A Shares (as defined in the Settlement
Agreement);
WHEREAS, concurrently with entering into the Settlement
Agreement Pledgor, Lender and Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx, as
initial voting trustees (in such capacity and
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including any additional or substitute voting trustee or trustees appointed
pursuant to the Voting Trust Agreement, the "Voting Trustees"), will enter into
that certain Voting Trust Agreement, of even date herewith (the "Voting Trust
Agreement") pursuant to which Pledgor will transfer, subject to the lien and
security interests created hereunder, all shares of Class A Common Stock and
Class B Common Stock owned by Borrower from time to time (other than the First
Union Pledged Shares (as defined in Section 6(b)) which shall be pledged and
transferred only at such time as any of such shares are no longer encumbered)
to the Voting Trustees to be held under the voting trust created pursuant to
the Voting Trust Agreement, and Lender will register the transfer of such
shares from Pledgor to the Voting Trustees in Lender's stock transfer records
and cause new certificates representing such shares to be issued in the name
of, and delivered to, the Voting Trustees; and
WHEREAS, Pledgor and Lender are parties to that certain
Buy/Sell/Offering Agreement, of even date herewith (the "Buy/Sell/Offering
Agreement"), pursuant to which Pledgor has granted Lender an option to purchase
the Pledged Stock (defined below).
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, Lender and Pledgor hereby agree as follows:
1. Appointment as Collateral Agent. (a) Lender and
Xxxxx-Xxxxxx hereby designate and appoint the Voting Trustees from time to time
in place under the Voting Trust Agreement, and in their capacity as the initial
Voting Trustees, Xx. Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx, Esq., to act
as bailee and collateral agent for Lender and Xxxxx-Xxxxxx for purposes of
perfecting the pledge and assignment of and holding the Pledged Collateral (as
defined below). Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxxxx, in their capacity
as Voting Trustees, hereby accept such appointment. All powers of Collateral
Agent hereunder shall be exercised upon the direction of Lender. Any
additional or substitute voting trustee or trustees appointed in accordance
with the Voting Trust Agreement shall upon the effectiveness of such
appointment under the Voting Trust Agreement be automatically appointed as a
Collateral Agent hereunder. Pledgor hereby acknowledges that Xxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxxxxx and any additional or successor Voting Trustee or
Trustees are acting both as Collateral Agent hereunder and as Voting Trustees
under the Voting Trust Agreement and irrevocably authorizes and consents to
their acting, now and in the future, in both such capacities. The appointment
as Collateral Agent pursuant to this Agreement of the persons serving as Voting
Trustees at the time of any Revocation Closing (as defined in the Settlement
Agreement) shall survive such Revocation Closing. Notwithstanding the
foregoing upon or at any time after a
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Revocation Closing Lender may appoint a substitute collateral agent and bailee
to serve as Collateral Agent hereunder. Upon any such appointment the
Collateral Agent at such time shall immediately deliver to the substitute
collateral agent and bailee any and all Pledged Collateral (as defined in
Section 2).
2. 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 Class A Common Stock, Class B
Common Stock (other than the First Union Pledged Shares as defined in
Section 6(b)) or any other capital stock of Lender, now or at any time
or times hereafter, owned by Pledgor, the certificates representing
the shares of such capital stock and the trust certificates issued by
the Voting Trustees to Pledgor that represent any such shares of
capital stock (such now-owned shares and trust certificates being
identified on Exhibit A attached hereto and made a part hereof), all
options and warrants for the purchase of shares of Class A Common
Stock and Class B Common Stock, now or hereafter held in the name of
Pledgor or the Voting Trustees (all of said capital stock, voting
certificates, options and warrants and all capital stock held in the
name of Pledgor or the Voting Trustees 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 including any funds held by the Voting Trustees in the
Trust Accounts (as defined in the Voting Trust Agreement);
(b) All additional shares of Class A Common Stock or
Class B Common Stock from time to time acquired by Pledgor in any
manner, the certificates representing such additional shares and the
trust certificates issued by the Voting Trustees to Pledgor that
represent any such additional shares of capital stock (any such
additional shares and voting certificates shall constitute part of the
Pledged Stock and Lender is irrevocably authorized to amend Exhibit A
from time to time to reflect such additional shares and voting
certificates), 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) Any and all options to purchase stock of Dart/SFW
Corp. ("Dart/SFW") and any all shares of capital stock of Dart/SFW
acquired upon the exercise of such options, in each case from time to
time acquired by Pledgor in any manner,
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the certificates representing such options or shares (any such options
or shares shall constitute part of the Pledged Stock and Lender is
irrevocably authorized to amend Exhibit A from time to time to reflect
such options or 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;
(d) The property and interests in property described in
Section 4 below; and
(e) All proceeds of the foregoing.
3. 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 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 and/or Lender (i) to pay any indemnification obligation under this
Pledge Agreement 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, 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").
4. 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
Dart/SFW, 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 (including voting
certificates issued by the Voting Trustees), shall be immediately delivered to
and held by Collateral Agent under the terms of this Pledge Agreement and shall
constitute Pledged Collateral hereunder.
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5. 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
Lender or the capital structure of Lender (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 or the Voting Trustees of any such changes or potential changes or to
take any action or omit to take any action with respect thereto.
6. Delivery of Pledged Collateral. (a) 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. Promptly upon the execution and delivery of the
Voting Trust Agreement Collateral Agent will surrender the Pledged Shares to
Lender so that Lender may register in Lender's stock transfer records the
transfer, subject to the lien and security interests created hereunder, of the
Pledged Shares from Pledgor to the Voting Trustees and cause new certificates
representing the Pledged Shares to be issued in the name of, and delivered to,
the Voting Trustees. The new certificates and the Pledged Shares represented
thereby shall be held by Collateral Agent as Pledged Collateral and any voting
trust certificate issued by the Voting Trustees to Pledgor shall by delivered
to Collateral Agent and held as Pledged Collateral. 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
(including the trust certificates) 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 accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to Lender.
(b) In furtherance of the foregoing Pledgor agrees that
at any time (i) any or all of the New Class A Shares are issued to Borrower or
(ii) any or all of the 33,333 shares of Class A Common Stock owned by Pledgor
which are pledged to First Union National Bank (the "First Union Pledged
Shares") no longer are subject to such Lien, such shares shall constitute
Pledged Collateral and Pledgor shall immediately deliver such shares to
Collateral Agent accompanied by Powers in the form of Exhibit B duly executed
in blank. Promptly upon the delivery of any New Class A Shares or First Union
Pledged Shares to Collateral Agent, Collateral Agent will surrender such New
Class A Shares or First Union Pledged Shares to Lender so that Lender may
register in Lender's stock transfer records the transfer, subject to the lien
and security interests created hereunder, of the New Class A
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Shares or First Union Pledged Shares from Pledgor to the Voting Trustees and
cause new certificates to be issued in substitution for the New Class A Shares
or First Union Pledged Shares to be issued in the name of, and delivered to,
the Voting Trustees. The new certificates and the Pledged Shares represented
thereby shall be held by Collateral Agent as Pledged Collateral and any voting
trust certificate issued by the Voting Trustees to Pledgor shall by delivered
to Collateral Agent and held as Pledged Collateral.
(c) In the event that a court of competent jurisdiction
enters a Court Invalidation Order (as defined in the Settlement Agreement) the
effect of which is that Pledgor may not assign and transfer the Redemption
Class B Shares (as defined in the Settlement Agreement) to Lender during the
lifetime of Xxxxxxx X. Xxxx ("HHH") (or until the termination of the proxy
granted by Pledgor to HHH in July 1993 to vote the Redemption Class B Shares),
Pledgor agrees that such shares shall constitute Pledged Collateral and upon
the reissuance of the Redemption Class B Shares, Pledgor shall immediately
deliver such shares to Collateral Agent accompanied by Powers in the form of
Exhibit B duly executed in blank. In addition, Collateral Agent, Lender and
Pledgor shall take all such actions as are necessary to exchange certificates
representing the Pledged Shares in the name of the Voting Trustees for new
certificates representing the Pledged Shares in the name of Pledgor, all of
which shall constitute Pledged Collateral and immediately be delivered to
Collateral Agent accompanied by Powers in the form of Exhibit B duly executed
in blank.
(d) In the event of a Revocation Closing pursuant to
Section 1.5 of the Settlement Agreement, Pledgor agrees that the Redemption
Class B Shares reissued to Pledgor shall constitute Pledged Collateral and upon
the reissuance of the Redemption Class B Shares, Pledgor shall immediately
deliver such shares to Collateral Agent accompanied by Powers in the form of
Exhibit B duly executed in blank.
7. 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 adverse claims of Xxxxxx Xxxx
and Xxxxx Xxxx regarding 58,028 shares of Class A Common Stock (the
"RSH Contested Class A Shares"), and the Pledged Collateral
constitutes 100% of Pledgor's interests in Lender except for the First
Union Pledged Shares;
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(b) Pledgor has full power and authority to enter into
this Pledge Agreement;
(c) Except as provided in the Voting Trust Agreement,
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) Except as provided in the Voting Trust Agreement,
Pledgor and the Voting Trustees have 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 or Lender 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 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; and
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(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.
8. Voting Rights. During the term of this Pledge
Agreement, and except as provided in the Voting Trust Agreement and this
Section 8, 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.
9. Dividends and Other Distributions. (a) Subject to
the terms of the Voting Trust Agreement, 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:
(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
(including the sale of all or substantially all of the capital
stock or assets of any subsidiary of Lender) 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
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dividends or interest payments which it is authorized to receive and
retain pursuant to clause (i) above.
(b) Notwithstanding the provisions of Section 9(a), upon and after
the occurrence of a Revocation Closing:
(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 9(a)(i) shall be limited to
fifty percent (50%) of the amount of all such dividends and interest
payments and the right to receive the remaining fifty percent (50%) of
the amount of all such dividends and interest payment shall thereupon
become vested in Collateral Agent which shall thereupon have the sole
right to receive and hold as Pledged Collateral such portion of the
dividends and interest payments, 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 and interest payments which are
received by Pledgor contrary to the provisions Section 9(b)(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) All amounts in the Trust Accounts on deposit at the
time of the Revocation Closing shall, at the time of the Revocation
Closing, and all amounts received by the Collateral Agent pursuant to
this Section 9(b) shall, at the time received, be applied to the
mandatory prepayment of the $37 Million Note and the $11.6 Million
Note (as such terms are defined in the Settlement Agreement).
(c) Notwithstanding any other provision of this Section 9, after
the occurrence of an Event of Default:
(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 9(a)(i) or 9(b) (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;
(ii) All dividends and interest payments which are
received by Pledgor contrary to the provisions Section 9(b)(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).
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10. 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 Lender, except to the
Voting Trustees as contemplated by Section 6 and as provided in the
Buy/Sell/Offering Agreement, (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 and for the adverse claim of Xxxxxx Xxxx and Xxxxx Xxxx
regarding 58,028 shares of Class A Common Stock 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.
11. Liens on HHH Refunds or Repayments. As security for
the Obligations, Pledgor hereby pledges to Lender, as collateral agent and
bailee for Lender and Xxxxx-Xxxxxx, and grants to Lender, as collateral agent
and bailee for Lender and Xxxxx-Xxxxxx, a security interest in, any claim
Pledgor may have against, or any refund or other return of money or property
that Pledgor may receive or be entitled to receive from, HHH as a refund or
other repayment of payments made on that certain Promissory Note, dated July
28, 1993, executed by Pledgor in favor of HHH (the "HHH Note") (including any
return, or failure by HHH to accept tender, of the prepayment to be made on the
HHH Note by Pledgor concurrently with the transactions contemplated by the
Settlement Agreement) and any refund or other return of money or property that
Pledgor may receive from HHH as the return or refund of any payment by Pledgor
of all or any portion of the purchase price of the Redemption Class B Shares,
including any such refund or other payment arising from any decision,
settlement or compromise of the lawsuit captioned Xxxxxxx X. Xxxx v. Xxxxxx X.
Xxxx, Civ. A. No. 94CA9883 (D.C. Super. Ct. July 17, 1995), and a counterclaim
in the lawsuit captioned Xxxxxx X. Xxxx v. Xxxxxxx X. Xxxx, Civ. A. Xx. 00000
(Xxx. Xx. filed July 18, 1995) (collectively, the "Rescission Action") or
otherwise, which results in the rescission of the sale of the HHH Redemption
Class B Shares (as defined in the Settlement Agreement) or HHH obtaining any
right to own or vote the HHH Redemption Class B Shares or shares issued in
substitution therefor. Pledgor hereby agrees that any payment or instrument
received by Pledgor related to the foregoing claims shall be received in trust
for Lender, as collateral agent and bailee for Lender and Xxxxx-Xxxxxx, shall
be segregated from other funds of Pledgor and shall be paid over immediately to
Lender in the same form as so received (with any necessary endorsements). With
respect to the collateral granted under this Section, Lender shall be entitled
to all the rights, remedies and benefits provided under this Pledge Agreement
to Collateral Agent and Lender as if such collateral constituted Pledged
Collateral hereunder.
12. Remedies. (a) Collateral Agent and Lender shall
have, in addition to any other rights given under this Pledge Agreement or by
law, all of the rights and remedies with respect
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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 and Lender 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 and Lender
or which Collateral Agent and Lender shall otherwise have the ability to
transfer under applicable law, Collateral Agent and Lender may, in Lender'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 Lender 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 and Lender agrees to distribute any proceeds of the
sale of the Pledged Collateral in accordance with Section 12(g) 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, Lender 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 Lender 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, Lender may, from time to
time, attempt to sell
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all or any part of the Pledged Collateral (i) by means of an underwritten
public offering as provided in Section 12(d), (ii) by private placement as
provided in Section 12(e), or (iii) by taking the Pledged Collateral as
treasury stock of Lender as provided in Section 12(f).
(d) Lender 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 Lender, 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 Lender, Pledgor or Lender's or Pledgor's
counsel, advisable to assist Lender 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 Lender in making all amendments and
supplements thereto and to the related prospectus which, in the opinion of
Lender, Pledgor or Lender'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 Lender, at Pledgor's
expense, do or cause to be done all such other acts and things as may be
necessary to permit Lender 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 Lender for all expenses incurred by
Lender including, without limitation, reasonable attorneys' and accountants'
fees and expenses in connection with the foregoing. In the event capital stock
of Lender other than Pledged Collateral is included in any offering pursuant to
this Section 12(d), Pledgor shall bear expenses incurred in connection with the
offering based on the proportion that Pledged Collateral included in such
offering represents all shares of capital stock of Lender included in such
offering. Upon or at any time after the occurrence of an Event of Default, if
Lender 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) Lender may, at Pledgor's expense, attempt to sell
the Pledged Collateral in a private placement restricting the
- 12 -
13
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, Lender may solicit offers to buy the Pledged
Collateral, or any part of it, from a limited number of investors deemed by
Lender, in its reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Pledged Collateral. If Lender solicits
such offers from not less than three (3) such investors, then the acceptance by
Lender 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 Lender
solicit offers from three or more investors in order for the sale to be
commercially reasonable.
(f) In lieu of selling or otherwise disposing of the
Pledged Collateral as permitted by any other provision of this Section 12, by
law or otherwise, in the event Lender in its reasonable discretion determines
that the market value of the Pledged Collateral (including amounts retained in
the Trust Accounts) equals or exceeds the Obligations outstanding under the $37
Million Note and the $27.4 Million Note (as such terms are defined in the
Settlement Agreement) Lender will offer to retain the Pledged Collateral or
such portion of the Pledged Collateral as Lender in its sole discretion
determines in satisfaction of the Obligations of Pledgor under the $37 Million
Note and the $27.4 Million Note, subject to preserving any claims Lender may
have then or at any time in the future arising from or related to the First
Union Pledged Shares and the RSH Contested Class A Shares.
(g) Pledgor agrees that (i) in the event Collateral Agent
and Lender shall, upon any Event of Default, sell the Pledged Collateral or any
portion thereof at a private sale or sales, Lender shall have the right to rely
upon the advice and opinion of investment bankers engaged by Lender 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 Lender
handled such matter in a commercially reasonable manner under applicable law.
(h) 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
- 13 -
14
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.
(i) 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.
(j) 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 Lender as follows:
First: to payment of the costs and expenses of such sale,
including the expenses of Collateral Agent and Lender 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 Lender 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.
13. Security Interest Absolute. All rights of Collateral
Agent, Lender 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
- 14 -
15
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.
14. Collateral Agent and Lender Appointed
Attorney-in-Fact. Pledgor hereby appoints each of Collateral Agent and Lender
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
Lender's sole discretion, individually or jointly to take any action and to
execute any instrument which Lender 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,
Lender or Collateral Agent's or Lender's nominee. After the occurrence of an
Event of Default, Collateral Agent may, at any time upon the direction of
Lender, in Lender'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, upon the
direction of Lender, may at any time exchange certificates or instruments
representing or evidencing any Pledged Collateral for certificates or
instruments of smaller or larger denominations.
15. 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 or Lender'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
- 15 -
16
for the sole account of Pledgor, and shall constitute part of the Obligations
secured hereby.
16. 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 Lender or
Pledgor, at the addresses specified from time to time in accordance with the
Promissory Notes and if to the Voting Trustees or Collateral Agent, at the
address specified for the Voting Trustees from time to time in accordance with
the Voting Trust Agreement.
17. 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.
(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.
18. 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.
19. Term; Releases. This Pledge Agreement shall remain
in full force and effect until (i) the Obligations have been fully and
indefeasibly paid in cash whether as (A) direct payment from RSH to Lender or
Xxxxx-Xxxxxx, (B) the credit
- 16 -
17
against the payment of the $37 Million Note (as defined in the Settlement
Agreement) for the purchase price of shares under the Buy/Sell/Offering
Agreement (as provided in paragraph 5.b. and c. of the $37 Million Note), or
(C) provided by Article 6 of the Master Agreement and (ii) if applicable, the
delivery by Pledgor to Lender of the Redemption Class B Shares (as defined in
the Settlement Agreement) pursuant to Section 5.3(c) of the Settlement
Agreement. This Pledge Agreement shall continue in effect notwithstanding any
Revocation Closing pursuant to Section 1.5 of the Settlement Agreement. Upon
the termination of this Pledge Agreement as provided above (other than as a
result of the sale of the Pledged Collateral), Lender will direct Collateral
Agent to release the security interest created hereunder. Notwithstanding the
foregoing, the Pledged Collateral shall be released by Collateral Agent upon
the sale of any or all of the Pledged Shares pursuant to the Buy/Sell/Offering
Agreement and the release of such Pledged Shares in accordance with Section 5
of the Voting Trust Agreement.
20. 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.
21. Reinstatement; Liens. This Pledge Agreement 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, 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.
22. 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
- 17 -
18
will take all such other actions, including, without limitation, the execution
and filing of financing statements, as Lender may reasonably request from time
to time in order to carry out the provisions and purposes of this Pledge
Agreement.
23. 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.
24. 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 Borrower's estate)
and assigns. Pledgor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession of or for Pledgor.
25. 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 the Lender and 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.
26. Exhibits. The Exhibits attached to this Pledge
Agreement are incorporated herein and shall be part of this Pledge Agreement
for all purposes.
27. Section Headings. The section headings herein, and
the headings in the Exhibits hereto, are solely for 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.
28. 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.
29. 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
- 18 -
19
representations, oral or written, express or implied, between them other than
as herein set forth.
30. 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.
31. 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.
32. 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 16 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.
33. Acknowledgment by Voting Trustees. The Voting
Trustees by their acknowledgment of this Pledge Agreement hereby acknowledges
and agrees that the transfer of any Pledged Collateral by Pledgor to the Voting
Trustees is subject at all times to the Lien created under this Pledge
Agreement and all the terms and conditions of this Pledge Agreement and that
the covenants and agreements of Pledgor hereunder with respect to the Pledged
Collateral are binding upon the Voting Trustees and apply to the Voting
Trustees as if Voting Trustees were Pledgor hereunder.
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20
34. 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.
IN WITNESS WHEREOF, Pledgor, Collateral Agent and Lender have
executed this Pledge Agreement as of the date set forth above.
PLEDGOR:
/s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx
COLLATERAL AGENT:
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
DART GROUP CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name:
Title:
ACKNOWLEDGED AS OF THE
DATE FIRST WRITTEN ABOVE
Voting Trustees under that certain Voting
Trust Agreement of even date herewith among
Pledgor, Lender and the undersigned in their
capacity as voting trustees thereunder:
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
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21
EXHIBIT A
to
PLEDGE AGREEMENT
Pledged Stock and Trust Certificates
Name and Address Description of Certificate
of Pledgor Pledged Stock Numbers
---------------- ------------- -----------
Xxxxxx X. Xxxx Trust certificate
0000 Xxxxxxxxxx Xxxxxx, X.X. representing shares 3, 4
Xxxxxxxxxx, X.X. 00000 of Class A Common Stock,
par value $1.00 per
share, of Dart
Group Corporation
Trust Certificate 1, 2
representing
222,294 shares of
Class B Common
Stock, par value
$1.00 per share, of
Dart Group
Corporation
Xxxxx X. Xxxxxxxx and 86,173 shares of 92705 (85,303
Xxxxxx X. Xxxxxxxxx Class A Common shares held
Voting Trustees Stock in brokerage
par value $1.00 per account)
share, of Dart
Group Corporation
222,294 shares of 92706
Class B Common
Stock, par value
$1.00 per share, of
Dart Group
Corporation
- 21 -
22
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 Class ___ Common
Stock, $1.00 par value per share, of Dart Group Corporation, a Delaware
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
