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EXHIBIT 10.15
ESCROW AND SECURITY AGREEMENT
THIS ESCROW AND SECURITY AGREEMENT (this "Agreement"), dated
as of this 6th day of October, 1995, is made by and among XXXXXX X. XXXX
("RSH"), the entities controlled by RSH set forth on the signature pages hereto
(the "RSH Entities"; and together with RSH, the "RSH Partners"), DART GROUP
CORPORATION, a Delaware corporation ("Dart" ) in its individual capacity and as
collateral agent and bailee for the Dart Parties (defined below)(in such
capacity, the "Secured Party"), XXXXX-XXXXXX REAL ESTATE COMPANY, a Delaware
corporation ("Xxxxx-Xxxxxx"; together with Dart, the "Dart Parties") and
SETTLEMENTCORP, a Maryland corporation ("SettlementCorp").
WHEREAS, Dart and RSH 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
Agreement, have entered into that certain Settlement Agreement as of even date
herewith pursuant to which Dart and RSH 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 RSH, Dart
and certain of their respective affiliates have entered into certain other
agreements and documents, including the Real Estate Master Agreement (the
"Master Agreement"), as of even date herewith among RSH, Dart and Xxxxx-Xxxxxx,
the Pledge Agreements (as defined in the Master Agreement) and this 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, pursuant to the Master Agreement and the Pledge
Agreements, the RSH Partners and the Dart Parties have agreed, among other
things, that (i) certain payments to be made to Xxxxx-Xxxxxx by the Joint
Ventures (as defined in the Master Agreement) and (ii) certain payments to be
made, directly or indirectly, to the RSH Partners by the Joint Ventures, are to
be paid to an escrow agent and to be released by such escrow agent upon the
occurrence of certain specified events as set forth herein;
WHEREAS, the RSH Partners and the Dart Parties desire to
appoint SettlementCorp as the escrow agent under this Agreement upon the terms
and conditions set forth herein;
WHEREAS, the Dart Parties desires to appoint SettlementCorp as
the Dart Parties' collateral agent and bailee under this Agreement upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, the parties do hereby agree as follows:
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1. DEFINITIONS
Capitalized terms used herein without definition shall have
the meanings ascribed thereto in the Master Agreement. 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. As applicable,
singulars used throughout this Agreement shall be considered plurals and
vice-versa.
2. APPOINTMENT AND DUTIES OF SETTLEMENTCORP
(a) The RSH Partners and the Dart Parties hereby appoint
SettlementCorp to act as escrow agent (the "Escrow Agent") on the terms and
conditions hereinafter set forth, and SettlementCorp hereby accepts such
appointment as the Escrow Agent.
(b) The Secured Party hereby appoints SettlementCorp as
Secured Party's collateral agent and bailee (the "Collateral Agent") for
purposes of perfecting and maintaining Secured Party's Liens on the Pledged
Collateral (as defined in Section 5) granted thereon for the benefit of the
Dart Parties, and SettlementCorp hereby accepts such appointment as Collateral
Agent. Each RSH Partner does hereby irrevocably authorize and consent to
SettlementCorp acting as both the Collateral Agent for the Dart Parties and the
Escrow Agent pursuant to the terms of this Agreement.
(c) SettlementCorp's duties and responsibilities, in its
capacity as Escrow Agent and Collateral Agent, shall be limited to those
expressly set forth in this Agreement and SettlementCorp shall not be subject
to, nor obliged to recognize, any other agreement covering the subject matter
hereof.
(d) SettlementCorp is authorized, in its sole discretion,
to disregard any and all notices, claims, instructions, demands or directions
(individually and collectively, "Directions") given by any of the RSH Partners
or the Dart Parties, or by any other Person, except (i) such Directions as are
specifically provided for herein, and (ii) a Final Order (as defined below) of
a court of law. If the delivery of any document subject hereto is at any time
stayed or enjoined by order of a court, or in case the Final Order of a court
shall be made or entered affecting any such document, then and in any of such
events, SettlementCorp is authorized, in its sole discretion, to rely upon and
comply with any such order, writ, judgment or decree of any court which
SettlementCorp determines is not subject to further review or appeal and is
binding upon SettlementCorp (a "Final Order"). In reaching such determination,
SettlementCorp, in its sole discretion, may obtain
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the advice of counsel of its own choosing (which may be counsel for the Dart
Parties).
(e) If SettlementCorp believes it to be reasonably
necessary to consult with counsel concerning any of its duties in connection
with this Agreement, or in case SettlementCorp becomes involved in litigation
on account of being Escrow Agent or Collateral Agent hereunder or on account of
having received property subject hereto, then, in either case, the attorneys'
and accountants' fees incurred by SettlementCorp (including the fair value of
legal services rendered by SettlementCorp), if any, shall be borne half by the
RSH Partners and half by the Dart Parties.
3. LIABILITY AND RELIANCE
(a) SettlementCorp shall not, in its capacity as Escrow
Agent or Collateral Agent hereunder, be personally liable for any act taken or
omitted hereunder absent gross negligence or willful misconduct on its part.
(b) SettlementCorp shall not be responsible for the
sufficiency, form, accuracy, execution, validity or genuineness of any
Direction or document given to SettlementCorp hereunder, nor shall
SettlementCorp be responsible or liable in any respect on account of the
identity, authority or rights of the persons executing or delivering or
purporting to execute or deliver any such Direction or document.
SettlementCorp shall also be fully protected in relying upon any Direction or
document believed by it in good faith to be genuine and valid and shall be
fully protected in acting in accordance with any Direction or document given to
SettlementCorp hereunder.
(c) Upon delivery or return of the Pledged Collateral and
all funds on deposit in the escrow accounts created pursuant to this Agreement,
including any investments of such funds (collectively, the "Escrow Funds"),
pursuant to the terms of this Agreement, SettlementCorp shall have no further
responsibility or liability hereunder.
4. DEPOSIT OF DISTRIBUTIONS; INVESTMENT
(a) (i) Xxxxx-Xxxxxx hereby agrees that all distributions or
sales proceeds required by Section 3.3 of the Master Agreement to be paid to an
escrow account established hereunder (the "C-M Distributions") shall be paid
by Xxxxx-Xxxxxx to the interest-bearing Escrow Account of SettlementCorp at
Xxxxx National Bank of Washington, D.C. ("Bank") designated as Bank Account No.
00000000 and entitled "SettlementCorp, as escrow agent pursuant to the Escrow
and Security Agreement among Dart Parties and RSH Partners" (the "C-M Escrow
Account").
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(ii) Each RSH Partner hereby agrees that all distributions or
sales proceeds required by (A) Section 3.1 of the Master Agreement or (B) the
Pledge Agreements to be paid, after an Event of Default or a Revocation
Closing, to an escrow account established hereunder (the "RSH Partner
Distributions") shall be paid by such RSH Partner to the interest-bearing
Escrow Account of SettlementCorp at Bank designated as Bank Account No.
00000000 and entitled "SettlementCorp, as collateral agent and escrow agent
pursuant to the Escrow and Security Agreement among Dart Parties and RSH
Partners" (the "RSH Escrow Account"; together with the C-M Escrow Account, the
"Escrow Accounts").
(iii) In furtherance of such agreements Xxxxx-Xxxxxx and each
RSH Partner hereby authorizes JV Management, L.L.C., a Delaware limited
liability company and the managing general partner of each Joint Venture, to
pay the C-M Distributions and the RSH Partner Distributions directly to the C-M
Escrow Account and RSH Escrow Account, respectively, and JV Management L.L.C.,
on behalf of the Joint Ventures, hereby agrees to make such payments to the
respective Escrow Accounts in accordance with the requirements of this
Agreement and the Master Agreement. SettlementCorp shall continue to hold all
funds deposited in the Escrow Accounts in escrow until such time as the funds
are either to be delivered to the RSH Partners and/or Xxxxx-Xxxxxx or Dart in
accordance with the terms and conditions of this Agreement.
(b) Unless and until any Escrow Funds in the C-M Escrow
Account are released to the RSH Partners in accordance with this Agreement, the
Escrow Funds in the C-M Escrow Account shall be owned solely by Xxxxx-Xxxxxx.
(c) During the term of this Agreement, the Escrow Funds
shall be continuously invested and reinvested by SettlementCorp in (i) United
States Treasury bills with a maturity of less than one year; and (ii) such
other investments as Dart and RSH may jointly direct SettlementCorp by written
notice. All interest or profit earned on such investments shall be credited to
the Escrow Funds to be disbursed on the terms and subject to the conditions of
this Agreement. All interest or profit earned on investment of funds deposited
in the RSH Escrow Account shall constitute Pledged Collateral.
5. PLEDGE AND ASSIGNMENT
To secure the prompt payment and performance of all
Obligations now existing or hereafter arising, each RSH Partner does hereby
irrevocably transfer, pledge and assign to the Secured Party, for the benefit
of the Dart Parties, and grants to the Secured Party, for the benefit of the
Dart Parties, a security interest in, all of such RSH Partner's right, title
and interest in and to the following (the "Pledged Collateral"):
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i) all RSH Partner Distributions paid or payable to such RSH
Partner at any time and all other funds on deposit at any time in the
RSH Escrow Account;
ii) all notes, certificates and other instruments from time to
time representing the investment of funds in the RSH Escrow Account;
iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of the RSH Escrow Account and the foregoing
investments; and
iv) to the extent not covered by clauses (i) through (iii)
above, all proceeds of any or all of the foregoing collateral.
Collateral Agent shall hold the Pledged Collateral as Secured Party's
collateral agent and bailee for purposes of perfecting and maintaining Secured
Party's Liens on the Pledged Collateral for the benefit of the Dart Parties.
In furtherance of the foregoing, each of the RSH Partners
hereby acknowledges and agrees that, except as specifically provided in this
Agreement, it has divested, and hereby does divest, itself of all dominion and
control over and with respect to the Pledged Collateral and that the Secured
Party shall have exclusive dominion and control over the Pledged Collateral
subject to the provisions of this Agreement. Except as provided in Section 8.1
of the Master Agreement, so long as any Obligation remains in effect or unpaid,
the RSH Partners shall have no right, title or interest from and after the date
hereof in or to the Pledged Collateral.
All rights of the Secured Party in the Pledged Collateral
granted under this Agreement shall, to the maximum extent allowed by applicable
law, be absolute and unconditional irrespective of: (i) any lack of validity or
enforceability of any Obligation or any Settlement Document or any other
agreement or instrument relating thereto; (ii) any change in the time, manner
or place of payment of, or in any other term of, all or any part of the
Obligations, or any other amendment or waiver of or any consent to any
departure from any Settlement Document; (iii) any exchange, release or
nonperfection of any other collateral for all or any part of the Obligations;
or (iv) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any RSH Partner or other obligor in respect of
any of the Obligations or of this pledge and assignment.
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6. DELIVERY OF ESCROW FUNDS
(a) Escrow Agent shall immediately upon receipt deliver to
Dart all funds deposited into the C-M Escrow Account until such time as both
Dart and RSH deliver Directions to Escrow Agent advising Escrow Agent that the
principal of and interest on the $11.6 Million Note is paid in full; provided,
however, upon the receipt of evidence from RSH that the $11.6 Million Note has
been paid in full the Escrow Agent shall terminate such disbursements upon
written notice from RSH. Upon the determination by Dart that funds in any
Escrow Account are payable to Dart and/or Xxxxx-Xxxxxx in accordance with
Section 6.1 and the other provisions of the Master Agreement (other than
payments under the $11.6 Million Note) and the receipt of either (i) a copy of
the RSH Calculation Notice agreeing to all or a portion of such awards or (ii)
a copy of the Final Calculation Notice, Dart shall submit to Escrow Agent and
RSH a notice signed by a duly authorized officer of Dart stating the amount of
Escrow Funds to be released, to whom (the "Escrow Payee") such Escrow Funds
shall be released and the Obligation to which such Escrow Funds will be
applied. Escrow Agent shall deliver all payments to the Escrow Payee not later
than the second Business Day following the date on which Escrow Agent receives
notice from Dart specifying such payment. In the event any obligation to make
payments under the $11.6 Million Note remains outstanding at the time Dart
instructs Escrow Agent to make other payments pursuant to this Section 6(a),
the Dart Parties and the RSH Partners agree that such funds shall be allocated
first to the payment of Obligations other than the payments under the $11.6
Million Note.
(b) Upon the determination by Dart that there are RSH
Available Funds in the Escrow Accounts which should be released to RSH in
accordance with Article 8 of the Master Agreement, Dart shall submit to Escrow
Agent and RSH the Dart Calculation Notice stating the amount of the Escrow
Payment to be made to RSH. Escrow Agent shall deliver all payments to RSH not
later than the second Business Day following the date on which Escrow Agent
receives the Dart Calculation Notice. If either (i) RSH provides to Dart and
Escrow Agent a RSH Calculation Notice disputing Dart's calculation or (ii) Dart
fails to deliver a calculation requested by RSH, the resolution of the amount
due to RSH shall be determined in accordance with Section 11.2 of the Master
Agreement. The Escrow Agent shall pay to RSH the difference between (A) the
amount set forth in the Final Calculation Notice and (B) any amounts previously
distributed to RSH pursuant to the Dart Calculation Notice within 2 Business
Days of its receipt of the Final Calculation Notice.
(c) Upon delivery by Escrow Agent of monies from the
Escrow Funds in the Escrow Account pursuant to Section 6(a) or (b), Escrow
Agent shall have no obligation with respect to the application of such monies
by the recipient thereof or its designee. Escrow Agent shall liquidate any
investments necessary to provide monies in order to make any payments required
by this
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Agreement. Escrow Agent shall not be liable for any loss due to fluctuations
in market value or penalties due to early redemption. Nothing contained herein
shall be deemed to obligate Escrow Agent to pay or transfer any monies
hereunder unless the same have been received by Escrow Agent pursuant to the
provisions of this Agreement. Escrow Agent shall have no duty or obligation to
collect any amounts, which at any time are to be deposited with it and shall
not be responsible for any defaults hereunder by any other party.
(d) Escrow Agent shall immediately deliver the Escrow
Funds to RSH upon receipt by Escrow Agent of written notice from Dart that the
Obligations secured by this Agreement have been paid in full or are no longer
in effect.
(e) All funds released to the Dart Parties by Escrow
Agent to satisfy Obligations shall be released first from the RSH Escrow
Account unless the instructions from Dart specify that all or a portion of a
payment shall be made from the C-M Escrow Account.
7. RIGHTS WITH RESPECT TO PLEDGED COLLATERAL
(a) Defense of Lien. The RSH Partners shall
defend the Pledged Collateral against and take such other action as is
necessary to remove any Lien at any time placed upon the Pledged Collateral
other than the Liens created by this Agreement and the Pledge Agreements. The
RSH Partners shall defend the right, title and interest of the Collateral
Agent, Secured Party and the Dart Parties in and to the Pledged Collateral,
including without limitation, the proceeds thereof, against the claims of all
Persons. The RSH Partners shall indemnify and hold harmless the Collateral
Agent, Dart Parties from and against any claims caused by acts of the RSH
Partners or any of their respective affiliates which result in any Lien being
placed upon the Pledged Collateral.
(b) Secured Party Appointed Attorney-in-Fact. Each RSH
Partner hereby irrevocably appoints the Secured Party such RSH Partners's
attorney-in-fact, with full authority in the place and stead of such RSH
Partner and in the name of such RSH Partner, the Secured Party or otherwise,
from time to time in the Secured Party's discretion, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement relating to the Pledged
Collateral, the foregoing appointment being coupled with an interest. Each RSH
Partner hereby authorizes the Secured Party to bring any appeal or action or to
pursue any claim against any person in the name of such RSH Partner to enforce
any of the rights assigned pursuant to this Agreement. If any RSH Partner
fails to perform any agreement contained in this Agreement, the Secured Party
may itself perform, or cause to be performed, such agreement, and any costs,
fees, expenses, damages or other liabilities incurred by the Secured Party
shall
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be payable by the RSH Partners with interest thereon accrued at the rate of
eight percent (8%) per annum.
(c) Remedies. In addition to the rights and remedies
provided for in this Agreement, the Secured Party and the Dart Parties shall
have all other rights and remedies provided for in any other Settlement
Document or by law, including, without limitation, all of the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
the District of Columbia.
(d) The RSH Partners shall pay to the Secured Party all
costs, fees, expenses, damages or other liabilities incurred by the Secured
Party in connection with the enforcement of any of the provisions of this
Agreement. The Secured Party agrees to distribute any proceeds of the sale of
the Pledged Collateral in accordance with this Agreement and the RSH Partners
shall remain liable for any deficiency following the sale of the Pledged
Collateral.
8. LIMITATIONS
It is intended that the assignments and security interests
created under this Agreement and the Pledge Agreement 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 this Agreement or the Pledge Agreement would allow any
other partner in any Subject Partnership to invoke a right of first offer or
first refusal with respect to such interests and such other partner indicates a
desire to do so, then, without further action by the parties hereto, the
provisions of this Agreement and the Pledge Agreement with respect to such
interests shall be suspended, and, if necessary, null and void, with respect to
that Subject Partnership until such time as such right of first offer or first
refusal is inapplicable or waived.
9. TERMINATION
Upon the final discharge or payment of all Obligations and the
delivery or return of all Escrow Funds (including the Pledged Collateral) in
accordance with Section 6(d), this Agreement shall cease, terminate and be of
no further force or effect. This Agreement shall continue in effect
notwithstanding the occurrence of any Revocation Closing (as defined in the
Settlement Agreement) pursuant to Section 1.5 of the Settlement Agreement.
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10. CONFLICTS
If at any time the SettlementCorp shall receive conflicting
Directions or documents with respect to the Escrow Funds and cannot determine
the proper course of action to take hereunder, or if for any other reason
SettlementCorp shall in good faith be unable to determine the party or parties
entitled to receive the Escrow Funds or any part thereof, it may refuse to make
any delivery or return thereof and retain the Escrow Funds safely in its
possession until it shall have received Directions in writing concurred in by
all parties, or until directed by a Final Order of a court of competent
jurisdiction, whereupon SettlementCorp shall make such disposition of the
Escrow Funds in accordance with such Directions or such Final Order.
11. ESCROW FEES
SettlementCorp shall be entitled to the fees for its services
in acting as Escrow Agent and Collateral Agent and Collateral Agent hereunder
as are agreed to from time to time between SettlementCorp and Dart.
SettlementCorp shall be reimbursed for all expenses reasonably incurred by it
in connection with the performance of its duties and obligations hereunder.
All fees and expenses shall be borne half by the RSH Partners and half by the
Dart Parties.
12. STATEMENTS; INFORMATION Escrow Agent and RSH Partners shall
forward to Secured Party, within five (5) days of receipt of same, copies of
all statements and enclosures received from SettlementCorp in connection with
the Escrow Accounts, including, without limitation, copies of the monthly bank
statements.
13. RESIGNATION BY ESCROW AGENT/COLLATERAL AGENT
If at any time SettlementCorp elects, in its sole discretion,
to no longer serve as the Escrow Agent and Collateral Agent under this
Agreement, SettlementCorp shall notify each of the parties hereto of its desire
to terminate its position and duties hereunder whereupon Dart shall appoint a
successor Escrow Agent and Collateral Agent within thirty (30) days thereof
that shall be subject to the same terms and conditions of this Agreement. Upon
the appointment of a successor Escrow Agent and Collateral Agent, the delivery
by SettlementCorp of the Escrow Funds in the Escrow Accounts to the successor
Escrow Agent and Collateral Agent and the rendering of the accounting required
by Section 15 hereof, SettlementCorp shall be discharged from all of its
obligations hereunder. Upon receipt of the funds in the Escrow Accounts and
any other property, the successor to SettlementCorp as Escrow Agent and
Collateral Agent will thereupon be bound by the provisions as if named herein.
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14. TERMINATION OF APPOINTMENT OF ESCROW AGENT The Secured Party
and/or RSH Partners (with Secured Party's written consent) may terminate the
appointment of SettlementCorp as Escrow Agent hereunder by notifying
SettlementCorp, specifying the date such termination will take effect and the
Secured Party may terminate the appointment of SettlementCorp as Collateral
Agent hereunder by notifying SettlementCorp, specifying the date such
termination will take effect. In the event of such termination pursuant to
this Section, the Secured Party will appoint a successor within twenty (20)
days of such notice and SettlementCorp in its capacity as Escrow Agent and
Collateral Agent will turn over and deliver to its successor all of the Escrow
Funds in the Escrow Accounts and all property held by it pursuant to this
Agreement and render the accounting required by Section 15 hereof. Upon
receipt of the funds in the Escrow Accounts and any other property, the
successor to Escrow Agent will thereupon be bound by the provisions hereof as
fully as if named herein.
15. ACCOUNTING. In the event of the resignation or termination of
Escrow Agent or upon termination of this Agreement, Escrow Agent will render to
the RSH Partners, the Secured Party and to the successor escrow agent, if any,
an accounting in writing of the funds in the Escrow Accounts and all other
property held by it pursuant to this Agreement and all distributions therefrom.
16. INDEMNIFICATION
The RSH Partners and the Dart Parties shall jointly and
severally indemnify and hold SettlementCorp harmless from and against any
damage, cost, liability or expense (including, but not limited to, reasonable
legal fees which it may incur by reason of its acting hereunder, except with
respect to actions or omissions taken or suffered by SettlementCorp in bad
faith, in willful disregard of the terms of this Agreement or involving gross
negligence on SettlementCorp's part), without prejudice to any right which any
party may have to recover from any other party for any such damage, cost,
liability, expense or legal fees.
17. CROSS DEFAULT.
The Settlement Agreement, this Agreement and the other
Settlement Documents constitute one integrated whole. Each RSH Partner agrees
that a material breach under any of the Settlement Documents by RSH or any
other RSH Obligor shall constitute a material breach under each other
Settlement Document including this Agreement. The Dart Parties agree that a
material breach under any of the Settlement Documents by Dart, Xxxxx-Xxxxxx or
any Person controlled by Dart shall constitute a material breach under each
other Settlement Document including this Agreement.
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18. REINSTATEMENT; LIENS.
This 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 by RSH 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. The RSH Partners 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 RSH or
any other RSH Obligor to Dart, Xxxxx-Xxxxxx, SettlementCorp, as the Collateral
Agent under this Agreement, or any other escrow agent, bailee or collateral
agent of any of them.
19. NOTICES
Any notices or consents required or permitted by this
Agreement 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) as follows, unless any such address is changed
by notice hereunder:
If to the Dart Parties:
Dart Group Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
and
Attn: Corporate Secretary
Facsimile: 000-000-0000
with copies to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
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If to any RSH Partner:
c/o Xx. Xxxxxx X. Xxxx
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Blank, Rome, Xxxxxxx & XxXxxxxx
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to SettlementCorp:
c/o Xxxx Xxxxxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
20. GOVERNING LAW; JURISDICTION
This Agreement, and the documents and instruments delivered
pursuant hereto, except as otherwise provided therein, shall be construed in
accordance with and governed by the laws of the District of Columbia, without
giving effect to its conflict of law rules. The parties hereto submit to the
jurisdiction of the U.S. Federal courts situated in the District of Columbia
and the courts of the District of Columbia.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The covenants, agreements, representations and warranties of
the parties hereto made in this Agreement shall survive the closing of the
transactions contemplated hereby.
22. AMENDMENT; WAIVER; REMEDIES
This Agreement may be amended only by a written agreement
executed by SettlementCorp and the other parties hereto. No delay on the part
of any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof. No waiver of any of the provisions of this
Agreement or any other agreement referred to herein shall be valid unless in
writing and signed by the party against whom it is sought to be enforced. The
waiver by any party hereto of any matter provided
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for herein shall not be deemed to be a waiver of any other matter provided for
herein.
23. RIGHT OF SETOFF Escrow Agent does not have nor shall it have
any rights of setoff with respect to the Accounts, any such rights being hereby
expressly waived.
24. ENTIRE AGREEMENT
This Agreement 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 Agreement and the other
Settlement Documents, and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth.
25. SEVERABILITY
If any one or more of the provisions contained in this
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.
26. BINDING EFFECT
This Agreement, and the documents and instruments delivered
pursuant hereto, shall inure to the benefit of, and shall be binding upon, the
respective heirs, executors, administrators, successors (including any
representative, executor or administrator of RSH's estate) and permissible
assigns of the parties. The RSH Partners and Dart Parties may not assign their
respective obligations or delegate their respective duties hereunder.
27. HEADINGS
The headings in this Agreement are solely for convenience of
reference and shall not be given any effect in the construction or
interpretation of this Agreement. Unless otherwise specified, references in
this Agreement to Sections are references to the Sections of this Agreement.
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28. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed, or have caused
this Agreement to be executed on their behalf, as of the date first above
written.
DART GROUP CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name:
Title:
XXXXX-XXXXXX REAL ESTATE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
SETTLEMENTCORP, as Escrow Agent and
Collateral Agent
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Name:
Title:
RSH PARTNERS:
/s/ Xxxxxx X. Xxxx
----------------------------------
XXXXXX X. XXXX
COMBINED PROPERTIES/GREENWAY CENTER
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
General Partner
- 14 -
15
COMBINED PROPERTIES/XXXXXX XXXXXX
PLAZA LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
General Partner
CP/GREENBRIAR RETAIL INVESTMENTS
LIMITED PARTNERSHIP
By: CP/GREENBRIAR RETAIL, INC.
General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
CP/GREENBRIAR OFFICE INVESTMENTS
LIMITED PARTNERSHIP
By: CP/GREENBRIAR OFFICE, INC.
General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
CP/BULL RUN LIMITED PARTNERSHIP
By: BULL RUN, INC.
General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
JV MANAGEMENT, L.L.C.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
Manager
- 15 -
16
CP/GREENBRIAR RETAIL, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
CP/GREENBRIAR OFFICE, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
BULL RUN, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
President
CM/CP GREENBRIAR RETAIL JOINT VENTURE
By: JV MANAGEMENT, L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
Manager
CM/CP GREENBRIAR OFFICE JOINT VENTURE
By: JV MANAGEMENT, L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
Manager
- 16 -
