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Exhibit 10.44
AMENDED AND RESTATED LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), dated as of January
27, 1998, is made by and between DART GROUP CORPORATION, a Delaware corporation
(the "Borrower"), and TRAK AUTO CORPORATION, a Delaware corporation (the
"Lender") and amended and restated as of April 28, 1998.
WITNESSETH:
WHEREAS, the Lender has made available to the Borrower a
revolving credit facility in the principal amount of FIFTEEN MILLION DOLLARS
($15,000,000) (the "Revolving Credit Facility"); and
WHEREAS, the Lender has made such Revolving Credit Facility
available to the Borrower upon and subject to the provisions of this Agreement
in order to facilitate the settlement of disputes between the Borrower and its
subsidiaries and members of the Haft family; and
WHEREAS, the Borrower and the Lender desire to amend and
restate the Agreement as set forth herein.
NOW, THEREFORE, the parties hereto agree to amend and restate
the Agreement as follows:
SECTION 1 Definitional Provisions.
1.1 Definitions. As used in this Agreement, the
following terms have the following meanings:
"Business Day" means any day other than Saturday, Sunday or
any other day on which commercial banks in the State of
Maryland are required or authorized to close.
"Collateral Coverage Amount" means an amount of collateral
with a "loan value" equal to or in excess of the dollar amount
of the aggregate outstanding Advances. For purposes of
calculating the "loan value" of collateral, (i) "margin stock"
(as defined in Section 4.7) shall be ascribed a value equal to
fifty percent (50%) of the fair market value of such stock at
the time of determination, (ii) all other securities shall be
ascribed a value equal to eighty percent
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(80%) of the fair market value of such stock at the time of
determination and (iii) all other collateral shall be ascribed
a value equal to eighty percent (80%) of the book value of
such collateral at the time of determination.
"Costs and Expenses" means and includes collectively all
expenses, charges, recordation or other taxes, costs and fees
(including reasonable attorneys' fees and expenses) of any
nature whatsoever advanced, paid or incurred by or on behalf
of the Lender in connection with (i) the enforcement or
preservation of any rights or remedies of the Lender under
this Agreement, the Notes or any other Financing Document,
(whether through negotiations, workout discussions, legal
proceedings or otherwise) and (ii) the development,
preparation and execution of this Agreement, the Notes or any
other Financing Document, any amendment, restatement,
supplement or modification to, or any waiver or consent with
respect to, any of the foregoing and the consummation and
administration of the transactions contemplated hereby and
thereby.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services, (iv) obligations as
lessee under leases that are or should be, in accordance with
GAAP, recorded as capital leases, and (v) obligations under
direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iv) above.
"Default Rate" means a per anum rate of interest equal to the
interest rate payable on the Notes pursuant to Section 2.4
plus three percent (3%).
"Financing Documents" means and includes collectively this
Agreement, the Notes (as defined in Section 2.3), the Pledge
Agreement (as defined in Section 3.1(b)), any borrowing
certificate delivered pursuant to Section 3.2(f) and any other
instrument, document or agreement both now and hereafter
executed, delivered or furnished by the Borrower or any other
Person evidencing, guaranteeing, securing or otherwise in
connection with this Agreement, the Revolving Credit Facility
or all or any part of the Obligations.
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"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"Obligations" means and includes collectively all present and
future indebtedness, liabilities and obligations of any kind
and nature whatsoever of the Borrower to the Lender both now
existing and hereafter arising under, as a result of, on
account of, or in connection with, (i) this Agreement and any
and all amendments thereto, restatements thereof, supplements
thereto and modifications thereof made at any time and from
time to time hereafter, (ii) the Notes, any and all
extensions, renewals or replacements thereof, amendments
thereto and restatements or modifications thereof made at any
time or from time to time hereafter, or (iii) the other
Financing Documents, including, without limitation, future
advances, principal, interest, indemnities, fees, late
charges, and any and all Costs and Expenses, whether direct,
contingent, joint, several, matured or unmatured.
"Person" means and includes any natural person, individual,
company, corporation, partnership, limited liability company,
joint venture, unincorporated association, government or
political subdivision or agency thereof, or any other entity
of whatever nature.
"Termination Date" means the earlier of July 31, 1999 or the
date on which this Revolving Credit Facility is terminated
pursuant to Section 8.1.
1.2 Other Definitional Provisions. All terms
defined in this Agreement shall have such defined meanings when used in any of
the other Financing Documents unless otherwise provided therein. Accounting
terms used in this Agreement shall have the respective meanings given to them
under GAAP. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. As used herein, the
singular number includes the plural, the plural includes the singular and the
use of the masculine, feminine or neuter gender includes all genders, as the
context may require. Unless otherwise defined herein, all terms used herein
which are defined by the Maryland Uniform Commercial Code shall have the same
meanings as assigned to them thereby unless and to the extent varied by this
Agreement.
SECTION 2 The Revolving Credit Facility.
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2.1 Advances. Subject to and in accordance with
the provisions of this Agreement and relying upon the representations and
warranties herein set forth, the Lender agrees from time to time upon request
of the Borrower to make advances (each an "Advance" and collectively the
"Advances") to the Borrower from the date hereof until the Termination Date, in
an aggregate principal amount not to exceed at any time outstanding the lesser
of (i) FIFTEEN MILLION DOLLARS ($15,000,000) and (ii) the amount that the
Lender has authorized to be loaned to the Borrower pursuant to this Agreement
(the "Revolving Credit Amount"); provided, however, that once the Lender has
notified the Borrower of the amount of Advances that the Lender has authorized
to be loaned to the Borrower pursuant to this Agreement, the Lender may not
reduce such authorized amount. No Advances shall be made hereunder if after
giving effect thereto the sum of the aggregate principal amount of all
outstanding Advances would exceed the Revolving Credit Amount. In no event
shall the Lender be obligated to make an Advance hereunder if an Event of
Default (as defined in Section 7) has occurred and is continuing. Unless
sooner terminated pursuant to the provisions of this Agreement, this Revolving
Credit Facility and the obligation of the Lender to make Advances hereunder
shall automatically terminate on the Termination Date without further action
by, or notice of any kind from, the Lender. Within the limitations set forth
herein and subject to the provisions of this Agreement, the Borrower may
borrow, repay and reborrow under this Revolving Credit Facility. The fact that
there may be no Advances outstanding at any particular time shall not affect
the continuing validity of this Agreement.
2.2 Making the Advances. The Borrower shall
request each Advance by written notice to the Lender, given not later than
11:00 A.M. (Eastern time) on the Business Day prior to the date of the proposed
Advance (other than the initial Advance), specifying the date of borrowing and
the amount of the Advance. Each Advance shall be in an amount not less than
$500,000 or an integral multiple of $100,000 in excess thereof, except that an
Advance may be in an amount equal to the entire unused Revolving Credit Amount.
Not later than 11:00 A.M. (Eastern time) on the date of the borrowing of an
Advance and upon fulfillment of the conditions set forth in Section 3.2, the
Lender will make such Advance available to the Borrower in same day funds. The
proceeds of each Advance will be deposited by the Lender in a bank account
designated by the Borrower.
2.3 Notes. Each Advance shall be evidenced by,
and repaid in accordance with the terms of, an individual promissory Note (each
a "Note" and collectively, the "Notes") made payable to the Lender, from the
Borrower in the principal amount of such
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Advance, each of which Notes shall be substantially in the form attached hereto
as Exhibit A.
2.4 Interest on and Principal of Advances. Until
maturity (whether at stated maturity, by acceleration or otherwise), the unpaid
principal amount of each Advance shall bear interest from the date of such
Advance until paid in full at an annual rate equal to the "prime rate" as set
forth in the "Money Rates" column of the Wall Street Journal, as such rate may
change from time to time, plus one and one half percent (1.5%). Interest shall
be payable monthly in arrears on the first day of each month. The unpaid
principal balance of each Advance, if not previously repaid, shall be due and
payable on the Termination Date.
2.5 Voluntary Prepayments of Advances; Commitment
Reduction.
(a) The Borrower may, without premium or
penalty, upon at least one Business Day's notice to the Lender stating the
proposed date and principal amount of the prepayment, and if such notice is
given, the Borrower shall, prepay the outstanding principal amounts of the
Advances in whole or in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid.
(b) The Borrower shall have the right,
upon at least one Business Day's notice to the Lender, to terminate in whole or
reduce in part the unused portion of the Commitment; provided that each partial
reduction shall be in the amount of $500,000 or an integral multiple of
$100,000 in excess thereof.
2.6 Mandatory Prepayments; Additional Collateral.
(a) On February 3, 1999, the Borrower
shall prepay Advances in an aggregate amount equal to the lesser of (i)
$7,500,000 or (ii) the aggregate amount of all Advances then outstanding.
(b) The Borrower hereby agrees that it
shall maintain at all times with the Lender collateral subject to the Pledge
Agreement (as defined in Section 3.1(b)) equal to or in excess of the
Collateral Coverage Amount. If at any time the value of such collateral shall
be less than the Collateral Coverage Amount, the Borrower shall immediately (i)
prepay a portion of the principal amount of the Advances, together with accrued
interest to the date of such payment on the principal amount prepaid, so that
the value of the collateral then held by
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the Lender equals or exceeds by ten percent (10%) the Collateral Coverage
Amount in effect after such prepayment or (ii) deliver to the Lender additional
collateral so that the value of the collateral then held by the Lender equals
or exceeds by ten percent (10%) the Collateral Coverage Amount.
2.7 Payments and Computation.
(a) The Borrower shall make each payment
under this Agreement, any Note or any other Financing Document not later than
11:00 a.m. (Eastern time) on the day when due in U.S. dollars to the Lender at
its address referred to in Section 9.2 (or such other office or account as the
Lender may designate by notice to the Borrower) in same day funds.
(b) Whenever any payment to be made by
the Borrower under the provisions of this Agreement, any Note or any other
Financing Document is due on a day which is not a Business Day (as defined
below), the due date thereof shall be extended to the next succeeding Business
Day and, in the case of any payment which bears interest, such extension of
time shall be included in computing interest on such payment.
(c) All payments of principal, interest,
fees or other amounts to be made by the Borrower under the provisions of this
Agreement or the Notes shall be paid to the Lender at the Lender's office
specified herein in lawful money of the United States of America in immediately
available same day funds without setoff, deduction, counterclaim or defense of
any kind.
(d) All computations of interest shall
be made by the Lender on the basis of a year of 365 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable. Each determination by the Lender of
the amount of interest payable shall be conclusive and binding for all
purposes, absent manifest error.
(e) In no event shall the interest rate
and other charges hereunder exceed the highest rate permitted under applicable
law.
2.8 Late Charges. If the Borrower fails to make
any payment of principal, interest, prepayments, fees or any other amount
becoming due pursuant to the provisions of this Agreement (including amounts
payable under Section 9.4), the Notes or any other Financing Document on the
date due and payable (whether at stated maturity, by acceleration or
otherwise), the Borrower shall pay to the Lender, upon demand, interest on the
amount so
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due at the Default Rate from the date such amount is due until the date on
which such amount is paid in full.
SECTION 3 Conditions Precedent.
3.1 Initial Advance. The obligation of the
Lender to make the initial Advance hereunder is subject to the conditions
precedent that the Lender shall have received on or before the date of such
Advance, the following documents, in form and substance satisfactory to the
Lender:
(a) Borrower's Corporate Documents. The
Lender shall have received (i) a copy, certified as of a recent date by the
Delaware Secretary of State of the Certificate of Incorporation of the
Borrower, (ii) a long form Certificate of Good Standing for the Borrower issued
by the Delaware Secretary of State, and (iii) a certificate of the Secretary of
the Borrower certifying to the Lender as true and correct (A) the Certificate
of Incorporation and by-laws of the Borrower, (B) the resolutions of the
Borrower's board of directors authorizing the execution, delivery and
performance of this Agreement, the Notes and the other Financing Documents to
which the Borrower is a party and (C) the names, titles and signatures of the
officers of the Borrower who are authorized to sign this Agreement, the Notes
and such other Financing Documents for and on behalf of the Borrower and to
make the borrowings hereunder;
(b) Financing Documents. Duly executed
copies of each of this Agreement, any Notes, the Pledge Agreement in the form
attached hereto as Exhibit B (the "Pledge Agreement") and any other Financing
Documents required by the Lender to be executed and delivered prior to the
making of the initial Advance; and
(c) Additional Documents. Any
additional documents, agreements, certifications, record searches, insurance
policies or opinions that the Lender may deem necessary or desirable.
3.2 All Advances. The obligation of the Lender
to make each Advance (including the initial Advance) shall be subject to the
further conditions precedent that (a) on or prior to the date of the Advance,
the Lender shall have authorized an aggregate amount up to which the Lender is
committed to make Advances to the Borrower pursuant to this Agreement which is
equal to or in excess of the amount of Advances outstanding (giving effect to
the requested Advance) and (b) on the date of such Advance each of the
following statements shall be true (and
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each of the giving of the applicable notice requesting such Advance and the
acceptance by the Borrower of the proceeds of such Advance shall constitute a
representation and warranty by the Borrower that on the date of such Advance
such statements are true):
(a) Representations and Warranties.
Each representation or warranty made in or in connection with this Agreement,
the Notes and the other Financing Documents is true, correct and complete in
all material respects on and as of the date of such Advance as if made on such
date both before and after giving effect to such Advance and the application of
the proceeds thereof (other than representations and warranties which expressly
speak only as of a different date, and other than for changes permitted or
contemplated by this Agreement);
(b) Revolving Credit Amount Exceeded.
The total of the aggregate amount of all outstanding Advances (giving effect to
the requested Advance) does not exceed the Revolving Credit Amount;
(c) Event of Default or Default. No
Default or Event of Default has occurred and is continuing both before and
after giving effect to such Advance and the application of the proceeds
thereof;
(d) Note. The Borrower has executed and
delivered to the Lender a Note dated the day of such Advance in the form
attached hereto as Exhibit A evidencing the Borrower's obligation to pay the
Advance;
(e) Pledge Agreement. The Borrower has
delivered to the Lender collateral subject to the Pledge Agreement with a value
equal to or in excess of the Collateral Coverage Amount required after giving
effect to the requested Advance;
(f) Borrowing Certificate. The Borrower
has executed and delivered to the Lender a borrowing certificate in
substantially the form attached hereto as Exhibit C;
(g) Authorization. The taking of the
requested Advance by the Borrower has been duly authorized and approved by the
Board of Directors of the Borrower;
(h) Margin Stock. In the event the
collateral provided for any Advance is, or the proceeds of any borrowing are to
be used to acquire or carry or to extend credit to others for the purpose of
acquiring or carrying, "margin stock" (as defined
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in Section 4.7) the Borrower has executed and delivered to the Lender Federal
Reserve Form G-1; and
(i) Additional Documents. Any
additional documents, agreements, certifications, record searches, insurance
policies or opinions which the Lender may deem necessary or desirable.
SECTION 4 Representations and Warranties. The Borrower
represents and warrants to the Lender that the following statements are true,
correct and complete as of the date hereof and as of each date an Advance is or
is to be made hereunder:
4.1 Authority, Etc. Each of the Borrower and
each of its subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation. Each
of the Borrower and each of its subsidiaries is qualified to do business in all
jurisdictions where the failure to be qualified would have a material adverse
effect on the business, financial condition, operations or properties of the
Borrower individually or the Borrower and its subsidiaries taken as a whole.
The Borrower has the full power and authority to execute, deliver and perform
this Agreement, the Notes and any other Financing Documents to which the
Borrower is a party. The execution, delivery and performance of this
Agreement, the Notes and all other Financing Documents to which the Borrower is
a party have been duly authorized and approved by all necessary corporate
action by the Borrower and constitute the legal, valid and binding obligations
of the Borrower enforceable in accordance with their respective terms.
4.2 Conflicts; Consents. Neither the execution,
delivery and performance, nor compliance by the Borrower with the provisions of
this Agreement, the Notes and the other Financing Documents to which the
Borrower is a party will conflict with or result in a breach or violation of
the Borrower's certificate of incorporation or by-laws, or any judgment, order,
regulation, ruling or law to which the Borrower is subject or any contract or
agreement to which the Borrower is a party or to which any of the Borrower's
assets and properties is subject, or constitute a default thereunder. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of this Agreement, the
Notes or any other Financing Document except for such as may be required under
federal and state securities laws as a condition to the sale or other transfer
by the Lender of securities pledged under the Pledge Agreement.
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4.3 Litigation. Except as disclosed in the
reports which the Borrower and its subsidiaries have filed with the Securities
and Exchange Commission, there is no litigation, action or proceeding pending
or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its subsidiaries which (i) might materially adversely affect
the business, financial condition, operations or properties of the Borrower
individually or the Borrower and its subsidiaries taken as a whole or the
ability of the Borrower to perform and comply with this Agreement, the Notes or
any other Financing Document to which the Borrower is a party or (ii) which
purports to affect the legality, validity or enforceability of this Agreement,
the Notes or any other Financing Document.
4.4 Financial Condition. The Borrower has
heretofore furnished to the Lender certain financial statements and other
financial information. Such financial statements and all other financial
statements and information furnished or to be furnished to the Lender hereunder
have been and will be prepared in accordance with GAAP consistently applied and
fairly present or will fairly present the financial condition of the Borrower
and its subsidiaries on a consolidated basis at such date and the results of
the operations of the Borrower and its subsidiaries on a consolidated basis for
the period then ended, and since January 31, 1995, there has been no material
adverse change in such financial condition or results of operation.
4.5 Taxes. The Borrower and each of its
subsidiaries have filed all federal, state and local income, excise, property
and other tax returns which are required to be filed and have paid all taxes as
shown on such returns or assessments received by the Borrower and its
subsidiaries (including, without limitation, all F.I.C.A. payments and
withholding taxes, if appropriate), except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided.
No tax liens have been filed and no claims are being asserted with respect to
such taxes or assessments.
4.6 Title to Properties. The Borrower and each
of its subsidiaries have good and marketable title to all of their respective
assets and properties that are material to the operation of their respective
businesses.
4.7 Margin Requirements. Unless otherwise noted
in a borrowing certificate delivered pursuant to Section 3.2(f), no proceeds of
any Advance will be used to acquire or carry or to extend credit to others for
the purpose of acquiring or carrying any equity security of a class that is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended
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("margin stock"). The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation G issued by the Board of Governors of the Federal Reserve
System).
4.8 Material Agreements. Neither the Borrower
nor any of its subsidiaries is in default or breach in the performance,
observance or fulfillment or any of the terms, conditions or provisions of any
instrument, agreement or document to which the Borrower or any such subsidiary
is a party (including, without limitation, any instrument or agreement
evidencing or made in connection with any indebtedness or liabilities) which
default or breach might have a material adverse effect on the business,
financial condition, operations or properties of the Borrower individually or
the Borrower and its subsidiaries taken as a whole.
4.9 Licenses, etc. The Borrower and each of its
subsidiaries have obtained and now holds all licenses, permits, franchises,
patents, trademarks, copyrights and trade names that are necessary to the
conduct of their respective businesses as now conducted.
4.10 Accuracy of Information. No written
information, exhibit, report, statement or document furnished by the Borrower
or any other Person to the Lender in connection with the Advances, this
Agreement, the Notes or the other Financing Documents or the negotiation
thereof contains any material misstatement of fact or omits to state a material
fact or any fact necessary to make the statements contained herein or therein
not misleading.
SECTION 5 Affirmative Covenants. The Borrower
covenants and agrees with the Lender that so long as any of the Obligations are
outstanding or the Lender has any commitment to make Advances hereunder, the
Borrower shall:
5.1 Financial Statements. Maintain, and cause its
subsidiaries to maintain, at all times true and complete books and records in
conformity with GAAP consistently applied and deliver, or cause to be
delivered, to the Lender (a) as soon as available but in no event more than 45
days after the end of each fiscal quarter in each fiscal year of the Borrower
(other than the last fiscal quarter of any fiscal year), the Borrower's Form
10-Q statements, and (b) as soon as available, but in no event more than 90
days after the end of each fiscal year of the Borrower, the Borrower's Form
10-K statements.
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5.2 Reporting Requirements. Deliver, or cause to
be delivered, to the Lender:
(a) as soon as possible and in any event
within five (5) days after the occurrence of each Default or Event of Default,
a statement of the chief financial officer of the Borrower setting forth
details of such Default or Event of Default and the action that the Borrower or
any of its subsidiaries has taken and proposes to take with respect thereto;
(b) promptly after the sending or filing
thereof, copies of all reports that the Borrower or any of its subsidiaries
sends to any of its security holders, and copies of all reports and
registration statements which the Borrower or any of its subsidiaries files
with the Securities and Exchange Commission or any national securities
exchange;
(c) promptly after the filing or
receiving thereof, copies of all reports and notices that the Borrower or any
of its subsidiaries files under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation ("PBGC") or the U.S. Department of Labor ("DOL")
or that the Borrower or any of its subsidiaries receives from PBGC or DOL and;
(d) promptly upon request of the Lender
such other information, reports or documents in the possession of the Borrower,
any of its subsidiaries or the Borrower's or such subsidiaries' agents,
respecting the business, financial condition, operations or properties of the
Borrower or any of its subsidiaries as the Lender may at any time and from time
to time reasonably request.
5.3 Conduct of Business and Maintenance of
Existence. Continue to engage in business of the same general type as being
conducted by the Borrower and its subsidiaries as of the date hereof, and do
and cause to be done all things necessary to maintain and keep in full force
and effect the corporate existence in good standing of the Borrower and each of
its subsidiaries in each jurisdiction in which the Borrower and each such
subsidiary continues to conduct business.
5.4 Compliance with Laws. Comply with, and cause
its subsidiaries to comply with, all laws, rules, regulations, orders and
decrees to which the Borrower,its subsidiaries or their respective properties
may be subject, the violation of which may have a material adverse effect on
the business, financial
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condition, operations or properties of the Borrower individually or the
Borrower and its subsidiaries taken as a whole.
5.5 Payment of Liabilities and Taxes. Pay, and
cause its subsidiaries to pay, when due, all indebtedness and liabilities
(including, without limitation, the Obligations), and pay and discharge, and
cause its subsidiaries to pay and discharge, promptly all taxes, assessments
and governmental charges and levies (including, without limitation. F.I.C.A.
payments and withholding taxes) imposed upon the Borrower or any of its
subsidiaries or upon the income, profits or property of the Borrower or any of
its subsidiaries, except to the extent the amount or validity of any tax or
other governmental charge is contested in good faith or the amount of any other
indebtedness or liability is contested in good faith by appropriate proceedings
and, so long as reserves in conformity with GAAP have been set aside therefor.
5.6 Contractual Obligations. Comply with, and
cause its subsidiaries to comply with, any agreement or undertaking to which
the Borrower or any such subsidiary is a party and maintain in full force and
effect all contracts and leases to which the Borrower or any such subsidiary is
or becomes a party unless the failure to do so would not have a material
adverse effect on the business, financial condition, operations or properties
of the Borrower individually or the Borrower and its subsidiaries taken as a
whole.
5.7 Maintenance of Properties. Do all things,
and cause its subsidiaries to do all things, necessary to maintain, preserve,
protect and keep their respective properties in good repair, working order and
condition, and make all necessary and proper repairs, renewals and replacements
so that the business of the Borrower and its subsidiaries may be properly
conducted at all times, unless the failure to do so would not have a material
adverse effect on the business, financial condition, operations or properties
of the Borrower individually or the Borrower and its subsidiaries taken as a
whole.
5.8 Insurance. Maintain, and cause its
subsidiaries to maintain, with financially sound, well rated and reputable
insurance companies insurance in such amounts and covering such risks as is
consistent with sound business practice, and in any event as is ordinarily and
customarily carried by companies similarly situated and in the same or similar
businesses as the Borrower and such subsidiaries (as the case may be). The
Borrower will pay, and will cause its subsidiaries to pay, when due, all
premiums on such insurance and will furnish to the Lender, upon request,
evidence of payment of such premiums and
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other information as to the insurance carried by the Borrower and its
subsidiaries. Such insurance shall include, without limitation, comprehensive
fire and extended coverage insurance on the physical assets and properties of
the Borrower and its subsidiaries against such risks, with such loss deductible
amounts and in such amounts not less than those which may be satisfactory to
the Lender but in all events conforming to prudent business practices.
5.9 Inspection. Permit, and cause its
subsidiaries to permit, the Lender, upon reasonable notice to the Borrower or
any such subsidiary, by the Lender's representatives and agents, to inspect any
of the properties, books and financial records of the Borrower and any such
subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and any such subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and any such subsidiary with,
and to be advised as to the same by, the Borrower and any such subsidiary at
such reasonable times and intervals as the Lender may designate.
5.10 Net Worth. As of the end of any fiscal
quarter or year of the Borrower, maintain a Consolidated Net Worth (defined
below) equal to or in excess of the sum, as of such date, of the outstanding
principal balance under the Revolving Credit Facility plus interest thereon.
"Consolidated Net Worth" means, as of the end of any fiscal quarter or year of
the Borrower, (i) the total consolidated assets of the Borrower that would be
shown as assets on a consolidated balance sheet of the Borrower as of such time
prepared in accordance with generally accepted accounting principles, after
eliminating all amounts properly attributable to minority interests, if any, in
the stock and surplus of its subsidiaries, minus (ii) the total consolidated
liabilities of the Borrower that would be shown as liabilities on a
consolidated balance sheet of the Borrower as of such time prepared in
accordance with generally accepted accounting principles.
SECTION 6 Negative Covenants. The Borrower covenants
and agrees with the Lender that so long as any of the Obligations are
outstanding or the Lender has any commitment to make Advances hereunder, the
Borrower shall not, directly or indirectly:
6.1 Mergers Etc. Merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets of, any Person unless, in the case of a merger
or consolidation, the Borrower shall be the continuing person, or the person or
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15
persons (if other than the Borrower) formed by such consolidation or into which
the Borrower is merged or to which such sale, conveyance, transfer, lease or
other disposition or assignment shall have been made shall be a corporation or
corporations organized and existing under the laws of the United States or any
State thereof or the District of Columbia and shall expressly assume the
Obligations and all terms and conditions of this Agreement including the net
worth requirement in Section 5.10.
6.2 Liquidation. Take any action to liquidate,
dissolve or wind up the Borrower, any of its subsidiaries or their respective
businesses.
6.3 Dividends, Etc. Declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of capital stock of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit any of
its subsidiaries to do so) any shares of any class of capital stock of the
Borrower or any warrants, rights or options to acquire any such shares, now or
hereafter outstanding, except that the Borrower may (i) declare and make any
dividend payment or other distribution payable in common stock of the Borrower,
(ii) purchase, redeem or otherwise acquire shares of its common stock or
warrants, rights or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock, (iii) declare or pay cash dividends to its stockholders in an amount not
to exceed $0.15 per share per year, (iv) purchase, redeem or otherwise acquire
shares of its capital stock or warrants, rights or options to acquire any such
shares for cash as a part of any transactions relating to the settlement of
disputes between the Borrower and its subsidiaries and members of the Haft
family, provided, that, immediately after giving effect to any such proposed
action, no Default or Event of Default would exist and (v) declare the rights
dividend contemplated by that certain Rights Agreement dated as of February 17,
1998 between the Borrower and The Bank of New York.
SECTION 7 Default. The occurrence of any one or more
of the following events shall constitute a default under this Agreement, and
the term "Event of Default" means, whenever it is used in this Agreement, any
one or more of the following events (and the term "Default" as used herein
means one or more of the following events, regardless of notice, the lapse of
time, or both):
7.1 Payment of Obligations. The failure of the
Borrower to pay the principal of any Note as and when due, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise, if such failure
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16
is not cured within one (1) Business Day or the failure of the Borrower to pay
any other Obligation as and when due and payable in accordance with the
provisions of this Agreement, the Notes, and/or any of the other Financing
Documents, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise, if such failure is not cured
within three (3) Business Days after written notice by the Lender to the
Borrower of such failure;
7.2 Performance of Negative Covenants. The
failure of the Borrower or any of its subsidiaries to perform, observe or
comply with any of the provisions of Section 6;
7.3 Performance of Other Provisions of this
Agreement and the Financing Documents. The failure of the Borrower or any of
its subsidiaries to perform, observe or comply with any of the provisions of
this Agreement (other than those covered by Sections 7.1 and 7.2), the Notes or
any other Financing Document, and such failure is not cured to the satisfaction
of the Lender within a period of thirty (30) days after the date of written
notice thereof by the Lender to the Borrower;
7.4 Representations and Warranties. If any
representation and warranty contained herein or any statement or representation
made in any certificate or any other information at any time given by or on
behalf of the Borrower or any of its subsidiaries or furnished in connection
with this Agreement, the Notes or any other Financing Document proves to be
false, incorrect or misleading in any material respect on the date as of which
made;
7.5 Default under Other Financing Documents. The
occurrence of a default (as defined and described therein) under the provisions
of any Note or any other Financing Document which is not cured within
applicable grace or cure periods (if any);
7.6 Liquidation, Termination, Dissolution, etc..
If the Borrower, Shoppers Food Warehouse Corp. or Trak Auto Corporation shall
liquidate, dissolve or terminate its existence;
7.7 Default under Other Indebtedness. If the
Borrower or any of its subsidiaries (other than Crown Books Corporation) shall
fail to pay any principal of or premium or interest on any Debt of the Borrower
or such subsidiary (as the case may be) which is outstanding in a principal
amount of at least $250,000 in the aggregate (but excluding Debt evidenced by
the Notes) when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure continues after the applicable grace or cure period (if
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17
any) specified in the agreement or instrument relating to such Debt; or any
other event occurs or condition exists under any agreement or instrument
relating to any such Debt and continues after the applicable grace or cure
period (if any) specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof;
7.8 Bankruptcy. The Borrower or any of its
subsidiaries (other than Crown Books Corporation) shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its subsidiaries (other than Crown Books Corporation) seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of sixty (60)
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of its
subsidiaries (other than Crown Books Corporation) shall take any corporate
action to authorize any of the actions set forth above;
7.9 Judgments, Etc.. Any judgment or order for
the payment of money in excess of $250,000 is rendered against the Borrower or
any of its subsidiaries (other than Crown Books Corporation) and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of ten (10) consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
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18
7.10 Pledge Agreement. Any provision of the
Pledge Agreement for any reason ceases to be valid and binding on the Borrower
or the Borrower so states in writing or the Borrower fails to maintain with the
Lender collateral subject to the Pledge Agreement with a value equal to or in
excess of the Collateral Coverage Amount or the Borrower fails to comply with
the requirements of Section 2.6(b).
SECTION 8 Rights and Remedies.
8.1 Rights and Remedies. If any Event of Default
occurs and is continuing, the Lender may, by notice to the Borrower (i) declare
the Revolving Credit Facility hereunder to be terminated, whereupon the same
shall forthwith terminate, and (ii) declare the unpaid principal amount of the
Notes, together with all accrued and unpaid interest thereon, and all other
Obligations then outstanding to be immediately due and payable, whereupon the
same shall become and be forthwith due and payable by the Borrower to the
Lender, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, that, in the
case of any Event of Default referred to in Section 7.8, the Revolving Credit
Facility hereunder and any obligation or commitment of the Lender hereunder to
make Advances to the Borrower shall immediately and automatically terminate and
the unpaid principal amount of the Notes, together with all accrued and unpaid
interest thereon, and all other Obligations then outstanding, shall be
automatically and immediately due and payable by the Borrower to the Lender
without any notice, presentment, demand, protest or other action of any kind,
all of which are hereby expressly waived by the Borrower.
8.2 Default Rate. Notwithstanding the entry of
any decree, order, judgment or other judicial action, upon the occurrence of an
Event of Default hereunder, the unpaid principal amount of the Notes and all
other monetary Obligations outstanding or becoming outstanding while such Event
of Default exists shall bear interest from the date of such Event of Default
until such Event of Default has been cured to the satisfaction of the Lender,
at the Default Rate.
8.3 Remedies, Etc. Cumulative. Each right, power
and remedy of the Lender as provided for in this Agreement, the Notes or any
other Financing Document or now or hereafter existing under applicable laws or
otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for in this Agreement, the Notes or any
other Financing Document or now or hereafter existing under applicable
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19
laws or otherwise. The single or partial exercise or beginning of the exercise
by the Lender of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by the Lender of any or all such
other rights, powers or remedies.
8.4 No Waiver, Etc.. No failure or delay by the
Lender to insist upon the strict performance of any term, condition, covenant
or agreement of this Agreement, the Notes or any other Financing Document, or
to exercise any right, power or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, condition, covenant or agreement or of
any such breach, or preclude the Lender from exercising any such right, power
or remedy at any later time or times. By accepting payment after the due date
of any amount payable under this Agreement, the Notes or any other Financing
Document, the Lender shall not be deemed to waive the right either to require
prompt payment when due of all other amounts payable under this Agreement, the
Notes or any other Financing Document, or to declare an Event of Default for
failure to effect such prompt payment of any such other amount. The payment by
the Borrower or any other Person and the acceptance by the Lender of any amount
due and payable under the provisions of this Agreement, the Notes or any other
Financing Document at any time during which any Default or Event of Default
exists shall not in any way or manner be construed as a waiver of such Default
or Event of Default by the Lender or preclude the Lender from exercising any
right of power or remedy consequent upon such Default or Event of Default.
SECTION 9 Miscellaneous.
9.1 Course of Dealing; Amendment; Waivers. No
course of dealing between the Lender and the Borrower shall be effective to
amend, modify or change any provision of this Agreement, the Notes or any other
Financing Document. No amendment or waiver of any provision of this Agreement,
the Notes or any other Financing Document, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same is in
writing and signed by the Lender, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Any such consent or waiver shall be for such period and subject to such
conditions as are specified in any such instrument and no such consent or
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereto.
9.2 Notices. All notices and other communications
provided for hereunder shall be in writing (including telecopier,
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20
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered to it, if to the Borrower or the Lender, at their
respective addresses and telecopier numbers specified below, or, as to either
party, at such other address as such party designates in a written notice to
the other party. All such notices and other communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited in the
mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, except in cases
where it is expressly herein provided that such notice, request or demand is
not effective until received by the party to whom it is addressed.
Borrower: Dart Group Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Lender: Trak Auto Corporation
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
9.3 Right to Perform. If the Borrower shall fail to make
any payment or to otherwise perform, observe or comply with the provisions of
this Agreement, the Notes or any other Financing Documents within any
applicable notice or cure period, then and in each such case, the Lender may
(but shall be under no obligation whatsoever to) without notice to or demand
upon the Borrower remedy any such failure by advancing funds or taking such
action as it deems appropriate for the account and at the expense of the
Borrower. The advance of any such funds or the taking of any such action by
the Lender shall not be deemed or construed to cure a Default or Event of
Default or waive performance by the Borrower of any provisions of this
Agreement, the Notes or any other Financing Document. The Borrower shall pay
to the Lender on demand, together with interest thereon from the date advanced
or incurred until paid in full at a per annum rate of interest equal at all
times to the Default Rate, any such funds so advanced by the Lender and any
Costs and Expenses advanced or incurred by or on behalf or the Lender in taking
any such action, all of which shall be a part of the Obligations hereunder.
9.4 Costs and Expenses. The Borrower hereby agrees (i)
to pay, indemnify, and hold the Lender harmless for all Costs
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21
and Expenses paid, incurred or advanced by or on behalf of the Lender, (ii) to
pay, indemnify, and hold the Lender harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Notes and other Financing Document, and
(iii) to pay, indemnify, and hold the Lender and its officers, directors and
agents (each, an "indemnified person") harmless from and against any and all
liabilities, obligations, losses, damages, judgments, penalties, costs,
expenses or disbursements of any kind or nature whatsoever arising out of
claims, actions, suits or proceedings brought by third parties with respect to
the execution, delivery, enforcement, performance and administration of this
Agreement or the use of the proceeds of the Advances (all the foregoing,
collectively, the "indemnified liabilities"); provided, that the Borrower shall
have no obligation hereunder to any indemnified person with respect to
indemnified liabilities arising from (A) the gross negligence or willful
misconduct of such indemnified person or (B) legal proceedings commenced
against such indemnified person by any creditor thereof arising out of and
based upon rights afforded any such creditor solely in its capacity as such.
The agreements in this subsection shall survive repayment of the Obligations.
The Borrower agrees to pay to the Lender on demand all amounts payable pursuant
to this Section 9.4, all of which shall be a part of the Obligations hereunder.
9.5 Binding Effect. This Agreement, the Notes and all
other Financing Documents shall be binding upon and inure to the benefit of the
Borrower and the Lender and their successors and assigns, except that the
Borrower shall not have the right to assign their rights hereunder or any
interest herein without the prior written consent of the Lender.
9.6 Severability. Whenever possible, each provision of
this Agreement, the Notes and the other Financing Documents shall be
interpreted in such manner as to be effective and valid under applicable law,
but, if any provision of this Agreement, the Notes or any other Financing
Document shall be held under applicable law to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective only to the
extent of such prohibition or invalidity, and the validity, legality and
enforceability of the remaining provisions of this Agreement, the
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22
Notes and the other Financing Documents shall not in any way be affected or
impaired.
9.7 Survival. All representations, warranties and
covenants contained in this Agreement shall survive the execution and delivery
of this Agreement, the Notes and all other Financing Documents.
9.8 Further Assurances. The Borrower agrees that it will
cooperate with the Lender and shall execute and deliver, or cause to be
executed and delivered, all such instruments and documents, and will take all
such other actions, including, without limitation, the execution and filing of
financing statements, as the Lender may reasonably request from time to time in
order to carry out the provisions and purposes of this Agreement.
9.9 Headings. The section headings herein, and the
headings in the Exhibits attached hereto, are solely for convenience of
reference, and shall not affect in any way the interpretation of any of the
provisions hereof. Unless otherwise specified, references in this Agreement to
Sections or Exhibits are references to Sections of, or Exhibits to, this
Agreement.
9.10 Entire Agreement. This Agreement (including the
Exhibits hereto), the Notes and the other Financing 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, the Notes and
the other Financing 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.
9.11 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, BOTH IN INTERPRETATION AND
PERFORMANCE, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.12 Consent to Jurisdiction; Counterclaims; Forum Non
Conveniens; Service of Process.
(a) Exclusive Jurisdiction. EXCEPT AS PROVIDED
IN SECTION 9.12(B), THE LENDER AND THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREE THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF OR RELATED
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR ANY
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23
OTHER FINANCING DOCUMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED IN
MARYLAND, AND THE APPELLATE COURTS FROM ANY THEREOF.
(b) Other Jurisdictions. THE LENDER SHALL HAVE
THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS REAL OR PERSONAL PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE THE LENDER TO OBTAIN PERSONAL JURISDICTION OVER
THE BORROWER, TO REALIZE ON ANY COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE LENDER. THE BORROWER SHALL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY THE LENDER ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE NOTES OR ANY OTHER FINANCING DOCUMENT.
(c) Venue; Forum Non Conveniens. EACH OF THE
BORROWER AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION THAT IT MAY HAVE (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS) TO THE LOCATION OF THE COURT
IN WHICH ANY PROCEEDING IS COMMENCED IN ACCORDANCE WITH THIS SECTION 9.12.
(d) Service of Process. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT
AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING SUBJECT TO
THIS SECTION 9.12 MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
THE BORROWER AT ITS ADDRESS AS PROVIDED IN SECTION 9.2. THE BORROWER FURTHER
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
9.13 WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE
LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY
IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE
LENDER AND THE BORROWER ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE NOTES, ANY OTHER FINANCING DOCUMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THEREWITH. EITHER THE BORROWER OR THE LENDER MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
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9.14 Advice of Counsel. The Borrower represents and
warrants to the Lender that it has discussed this Agreement and, specifically,
the provisions of Sections 9.11 through 9.13 hereof, with the Borrower's
lawyers.
9.15 Execution in Counterparts. This Agreement may be
executed in any number of duplicate originals or counterparts, each of such
duplicate originals or counterparts shall be deemed to be an original and all
taken together shall constitute but one and the same instrument.
[Remainder of page intentionally left blank]
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25
IN WITNESS WHEREOF, each of the parties hereto has executed and
delivered this Agreement as of the day and year first written above.
WITNESS/ATTEST: DART GROUP CORPORATION
/s/ XXXXXX XXXXXXX By: /s/ XXXXXXX X. XXXXX
---------------------- --------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
WITNESS/ATTEST: TRAK AUTO CORPORATION
/s/ XXXX X. XXXXX By: /s/ R. XXXXX XXXXX
------------------------ -----------------------
Name: R. Xxxxx Xxxxx
Title: President
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26
EXHIBIT A
PROMISSORY NOTE
$15,000,000 Dated: January 29, 1998
FOR VALUE RECEIVED, the undersigned, Dart Group Corporation, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
Trak Auto Corporation, a Delaware corporation (the "Lender"), the principal
amount of FIFTEEN MILLION DOLLARS ($15,000,000) [amount of the Advance]
outstanding on the Termination Date.
The Borrower promises to pay interest on the principal amount of each
Advance from the date of such Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Loan Agreement referred to below.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at 0000 00xx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000
(or such other office or account as the Lender may designate by notice to the
Borrower) in same day funds.
The Borrower hereby waives presentment, demand, protest and any notice
of any kind and agrees to pay all amounts of principal of and interest on this
Note without setoff, deduction, counterclaim or defense of any kind.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of, the Loan Agreement dated as of January 27, 1998 (the "Loan
Agreement"; capitalized terms used herein but not defined herein shall have the
meanings set forth in the Loan Agreement), between the Borrower and the Lender,
and the Pledge Agreement and the other Financing Documents referred to therein
and entered into pursuant thereto. The Loan Agreement, among other things, (i)
provides, subject to the conditions set forth therein, for the making of
advances (the "Advances") by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding FIFTEEN MILLION DOLLARS
($15,000,000.00), the indebtedness of the Borrower resulting from any such
Advance being evidenced by a promissory note, (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified
27
and (iii) provides for the Advances to be secured by collateral in accordance
with the provisions of the Loan Agreement and the other Financing Documents.
DART GROUP CORPORATION
By /s/XXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Interim C.E.O.
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PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
January 27, 1998, is made by DART GROUP CORPORATION, a Delaware corporation
(the "Pledgor"), in favor of TRAK AUTO CORPORATION, a Delaware corporation (the
"Lender"). Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the "Loan
Agreement" (as defined below).
WITNESSETH:
WHEREAS, the Pledgor has entered into the Loan Agreement dated
as of January 27, 1998, with the Lender (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement"), pursuant to which
the Lender has agreed, subject to certain conditions precedent, to make loans
and other financial accommodations to the Pledgor from time to time;
WHEREAS, the Pledgor owns shares of the issued and outstanding
common stock of the Lender (sometimes referred to herein as the "Subject
Corporation"); and
WHEREAS, the Lender has required, as a condition to its
entering into the Loan Agreement and extending the Advances thereunder, that
the Pledgor execute and deliver this Pledge Agreement;
NOW, THEREFORE, for and in consideration of the foregoing and
of any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise) heretofore, now or hereafter
made to or for the benefit of the Pledgor pursuant to the Loan Agreement or any
other agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Lender hereby
agree as follows:
1. Pledge. The Pledgor hereby pledges to the Lender, and grants
to the Lender, a security interest in, the following (collectively, the
"Pledged Collateral"):
(a) The shares of the common stock of the Subject
Corporation, now or at any time or times hereafter owned by
29
the Pledgor, and the certificates representing the shares of
such capital stock identified from time to time on Exhibit A
attached hereto and made a part hereof, being hereinafter
collectively referred to as the "Pledged Stock"), stock powers
with respect to the Pledged Stock in the form of Exhibit B
attached hereto and made a part hereof (the "Powers") duly
executed in blank, and all dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of, or in exchange for, any
or all of the Pledged Stock;
(b) All 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 the Pledged Stock;
(c) The property and interests in property
described in Section 3 below; and
(d) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged
Collateral secures the prompt payment, performance and observance of (i) the
Obligations under the Loan Agreement, the Notes and the other Financing
Documents and (ii) the Pledgor's obligations and liabilities under this Pledge
Agreement and each agreement, document or instrument executed pursuant to or in
connection with this Pledge Agreement (all such obligations and liabilities of
the Pledgor described in clauses (i) and (ii) whether now or hereafter existing
being hereinafter referred to as the "Liabilities").
3. Pledged Collateral Adjustments. If, during
the term of this Pledge Agreement:
(a) Any stock dividend, reclassification,
readjustment or other change is declared or made in the
capital structure of the Subject Corporation, or any option or
warrant included within the Pledged Collateral is exercised,
orboth, or
(b) Any subscription, warrants or any other
rights or options shall be issued in connection with the
Pledged Collateral,
then all new, substituted and additional shares, warrants, rights, options or
other securities, issued by reason of any of the foregoing shall be immediately
delivered to and held by a Collateral Agent (as identified in Section 31), as
agent for the
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Lender, under the terms of this Pledge Agreement and shall constitute Pledged
Collateral hereunder.
4. Subsequent Changes Affecting Pledged
Collateral. The Pledgor represents and warrants that the Pledgor has made its
own arrangements for keeping informed of changes or potential changes affecting
the Pledged Collateral (including, but not limited to, the capital structure of
the Subject Corporation, rights to convert, rights to subscribe, payment of
dividends, reorganization or other exchanges, tender offers and voting rights),
and the Pledgor agrees that the Lender shall not have any obligation to inform
the Pledgor of any such changes or potential changes or to take any action or
omit to take any action with respect thereto. The Lender may, after the
occurrence of an Event of Default, without notice and at its option, 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, the Lender may at any
time exchange certificates or instruments representing or evidencing Pledged
Shares for certificates or instruments of smaller or larger denominations.
5. Delivery of Pledged Collateral. On or prior
to the date of any Advance the Pledgor shall deliver to (a) the Lender, a new
Exhibit A to this Agreement identifying the Pledged Stock to be held by a
Collateral Agent on behalf of Lender as security for the Liabilities after
giving effect to such Advance, and (b) a Collateral Agent identified pursuant
to Section 31, as agent for the Lender, all certificates or instruments
representing or evidencing additions to the Pledged Collateral, accompanied by
Powers in the form of Exhibit B duly executed in blank, and any and all Pledged
Collateral hereafter obtained or received by the Pledgor shall be delivered to
such Collateral Agent, as agent for the Lender, pursuant hereto, accompanied by
Powers in the form of Exhibit B duly executed in blank; provided that the
Pledgor shall not be required to deliver any Pledged Stock to such Collateral
Agent prior to February 12, 1998. 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 the Lender.
6. Representations and Warranties. The Pledgor
represents and warrants as follows:
(a) The Pledgor has the complete and
unconditional authority to pledge and grant a
security interest in the Pledged Stock. Exhibit C
attached hereto sets
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forth the capitalization of the Subject Corporation
and all of the Pledgor's interest in the Subject
Corporation. The Pledgor is the sole legal and
beneficial owner of the interests in the Subject
Corporation identified on Exhibit C as being owned by
the Pledgor, free and clear of any lien, security
interest, pledge, hypothecation, claim, charge, tax
assessment, encumbrance or other restriction of any
kind or character (a "Lien") except for the security
interest created by this Pledge Agreement;
(b) The Pledgor has full corporate power and
authority to enter into this Pledge Agreement;
(c) There are no restrictions upon the voting
rights associated with, or upon the transfer of, or
upon the grant of Lien on, any of the Pledged
Collateral;
(d) The Pledgor has the right to vote, pledge,
assign and grant a security interest in or otherwise
transfer such Pledged Collateral free of any Liens,
without the necessity of obtaining any consents or
authorizations from any third parties;
(e) No authorization, approval, or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required either (i)
for the pledge of the Pledged Collateral pursuant to
this Pledge Agreement or for the execution, delivery
or performance of this Pledge Agreement by the
Pledgor or (ii) for the exercise by the 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 the Lender, securing
the payment and performance of the Liabilities; and
(g) When executed the Powers will be duly
executed and give the Lender the authority they
purport to confer.
7. Voting Rights. During the term of this
Pledge Agreement, and except as provided in this Section 7, the Pledgor
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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 Loan
Agreement and any other Financing Document executed pursuant thereto or in
connection therewith. After the occurrence of an Event of Default, the Lender
may, at the Lender's option and following written notice from the Lender to the
Pledgor, exercise all voting powers pertaining to the Pledged Collateral,
including the right to take action by shareholder consent.
8. Dividends and Other Distributions. (a) So
long as no Default or Event of Default shall have occurred:
(i) The 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 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 the Lender, as Pledged Collateral and shall, if received by
the Pledgor, be received in trust for the Lender, be
segregated from the other property or funds of the Pledgor,
and shall be paid over or delivered immediately to the Lender
as Pledged Collateral in the same form as so received (with
any necessary endorsements); and
(ii) The Lender shall execute and deliver (or
cause to be executed and delivered) to the Pledgor all such
proxies and other instruments as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to receive the
dividends or interest payments which it is authorized to
receive and retain pursuant to clause (i) above.
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(b) After the occurrence of a Default or an Event of
Default:
(i) All rights of the Pledgor to receive the
dividends, interest payments and other distributions which it
would otherwise be authorized to receive and retain pursuant
to Section 8(a)(i) hereof shall cease, and all such rights
shall thereupon become vested in the Lender, which shall
thereupon have the sole right to receive and hold as Pledged
Collateral such dividends, interest payments and other
distributions;
(ii) All dividends, interest payments and other
distributions which are received by the Pledgor contrary to
the provisions of Section 8(b)(i) shall be received in trust
for the Lender, shall be segregated from other funds of the
Pledgor and shall be paid over or delivered immediately to the
Lender as Pledged Collateral in the same form as so received
(with any necessary endorsements);
(iii) The Pledged Collateral may be sold or
otherwise disposed of by the Lender as provided in Section 10;
(iv) The Pledgor shall, upon the request of the
Lender, at the Pledgor's expense, do or cause to be done all
such other acts and things as may be necessary to make any
assignment or sale of the Pledged Collateral or any part
thereof valid and binding and in compliance with applicable
law.
The Pledgor will reimburse the Lender for all expenses incurred by the Lender,
including, without limitation, reasonable attorneys' and accountants' fees and
expenses in connection with the foregoing.
9. Transfers and Other Liens. The Pledgor
agrees that the Pledgor will not (i) sell, assign, transfer, pledge or
otherwise dispose of, encumber, or grant any option with respect to, all or any
portion of the Pledged Collateral without the prior written consent of the
Lender, (ii) create or permit to exist any Lien upon or with respect to any of
the Pledged Collateral, except for the Lien under this Pledge Agreement or
(iii) consent or approve the authorization of any additional shares of capital
stock of the Subject Corporation. The Pledgor shall defend the title to the
Pledged Collateral against claims by any other Person.
10. Remedies. (a) The Lender shall have, in
addition to any other rights given under this Pledge Agreement or by law,
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34
all of the rights and remedies with respect to the Pledged Collateral of a
secured party under the Uniform Commercial Code as in effect in the State of
Maryland. In addition, after the occurrence of an Event of Default, the 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 the Lender or which the Lender shall otherwise have the ability to transfer
under applicable law, the Lender may, in the 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 the 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. The Lender 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. The Pledgor hereby agrees to pay to the Lender 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. The Lender agrees to distribute any proceeds of the
sale of the Pledged Collateral in accordance with Section 10(i) and the 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, the Lender will give the 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, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in Section 17 below at least five (5) Business Days before the time of
the sale or disposition; provided, however, that the 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.
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(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, the
Pledgor agrees that after the occurrence of an Event of Default, the Lender
may, from time to time, attempt to sell all or any part of the Pledged
Collateral (i) by means of an underwritten public offering as provided in
Section 10(d) or (ii) by private placement as provided in Section 10(e).
(d) The Lender may, at the Pledgor's expense,
attempt to sell the Pledged Collateral in an underwritten public offering. In
such event the Pledgor shall, upon the request of the 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 the Lender,
the Pledgor or the Lender's or the Pledgor's counsel, advisable to assist the
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 the Lender in making all amendments and supplements thereto and to the
related prospectus which, in the opinion of the Lender, the Pledgor or the
Lender's or the Pledgor's counsel, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations thereunder. The Pledgor shall, upon the request of the Lender, at
the Pledgor's expense, cause the Subject Corporation to make available to the
holders of its securities, as soon as practicable, earning statements that
satisfy the provisions of Section 11(a) of the Securities Act.
The Pledgor shall, upon the request of the Lender, at
the Pledgor's expense, do or cause to be done all such other acts and things as
may be necessary to permit the 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.
The Pledgor will reimburse the Lender for all
expenses incurred by the Lender including, without limitation, reasonable
attorneys' and accountants' fees and expenses in connection with the foregoing.
Upon or at any time after the occurrence of an Event
of Default, if the Lender determines that, prior to any public offering of any
securities constituting part of the Pledged Collateral, such securities should
be registered under the
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36
Securities Act and/or registered or qualified under any other federal or state
law and such registration and/or qualification is not practicable, then the
Pledgor agrees that it will be commercially reasonable if a private sale, upon
at least five (5) Business Days' notice to the 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) The Lender may, at the Pledgor's expense,
attempt to sell the Pledged Collateral in a private placement restricting the
bidders and prospective purchasers to those who are qualified and will
represent and agree that they are purchasing for investment only and not for
distribution. In so doing, the Lender may solicit offers to buy the Pledged
Collateral, or any part of it, from a limited number of investors deemed by the
Lender, in its reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Pledged Collateral. If the Lender
solicits such offers from not less than three (3) such investors, then the
acceptance by the 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 the Lender solicit offers from three or more investors in order for the
sale to be commercially reasonable.
(f) The Pledgor agrees that (i) in the event the
Lender shall, upon any Event of Default, sell the Pledged Collateral or any
portion thereof at a private sale or sales, the Lender shall have the right to
rely upon the advice and opinion of investment bankers engaged by the 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 the
Lender handled such matter in a commercially reasonable manner under applicable
law.
(g) Each right, power and remedy of the Lender or
any collateral agent, bailee or escrow agent acting on behalf of the Lender (a
"Collateral Agent") provided for in the Loan Agreement, this Pledge Agreement
or any other Financing 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 the Loan
Agreement, this Pledge Agreement or in any other Financing Document, or now or
hereafter existing at law or in equity, by statute or otherwise. The exercise
or the beginning of the exercise by the Lender or any Collateral Agent of any
one or more of such rights, powers or remedies shall not preclude the
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37
simultaneous or later exercise by any of them of any or all such other rights,
powers or remedies. The Lender or any Collateral Agent may exercise any such
right, power or remedy against the Pledgor without exercising such rights,
powers or remedies against any other obligor.
(h) The Pledgor hereby agrees that after the
occurrence of an Event of Default, the Lender or any Collateral Agent 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 Liabilities in such order, and at such times, as the
Lender or any Collateral Agent may elect in its sole discretion. No such
action shall be deemed to release, relinquish, alter or impair any rights of
the Lender hereunder. The Pledgor hereby waives all rights which the Pledgor
may have under the doctrines of marshalling of assets or marshalling of Liens.
(i) Upon the occurrence of any Event of Default
and the sale of any or all of the Pledged Collateral, the proceeds from such
sale shall be applied by the Lender as follows:
First: to payment of the costs and expenses of such
sale, including the expenses of the Lender and the fees and expenses of counsel
employed in connection therewith;
Second: to the payment of the remainder of the
Liabilities in such order as the 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 the Pledgor, the Pledgor's successor and assigns, or as a court of
competent jurisdiction may direct.
11. Security Interest Absolute. All rights of
the Lender and the Liens hereunder, and all obligations of the Pledgor
hereunder, shall be absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the
Loan Agreement, the Notes, this Pledge Agreement, any
Financing 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
Liabilities, or any other amendment or waiver of or any
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38
consent to any departure from the Loan Agreement, the Notes,
this Pledge Agreement or any other Financing 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 Liabilities; or
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor in respect of the Liabilities or of the Loan
Agreement, the Notes, this Pledge Agreement or any other
Financing Document.
12. Lender Appointed Attorney-in-Fact. The
Pledgor hereby appoints the Lender as its attorney-in-fact, with full
authority, in the name of the Pledgor or otherwise, after the occurrence of an
Event of Default, from time to time in the Lender's sole discretion, to take
any action and to execute any instrument which the 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 the 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 the Subject Corporation to the
name of the Lender or the Lender's nominee. After the occurrence of an Event
of Default, the Lender may in the 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, the
Lender may at any time exchange certificates or instruments representing or
evidencing any Pledged Collateral for certificates or instruments of smaller or
larger denominations.
13. Waivers by the Pledgor. The Pledgor waives
presentment and demand for payment of any of the Liabilities, protest and
notice of dishonor or Event of Default with respect to any of the Liabilities
and all other notices to which the Pledgor might otherwise be entitled except
as otherwise expressly provided herein or in the Loan Agreement.
14. Indemnity and Expenses. (a) The Pledgor
hereby agrees to indemnify the Lender and any Collateral Agent from and against
any and all claims, losses and liabilities (including reasonable attorneys'
fees) arising out of or resulting from this
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39
Pledge Agreement (including, without limitation, enforcement of this Pledge
Agreement), except claims, losses or liabilities resulting from the Lender's or
the Collateral Agent's gross negligence or willful misconduct.
(b) The Pledgor shall upon demand pay to the
Lender and any Collateral Agent 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 the Lender hereunder or (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.
15. Reinstatement; Liens. This Pledge Agreement
and the Liabilities 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
Liabilities, 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 Liabilities, 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 Liabilities shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
The 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 Financing Document by the
Pledgor or any other obligor to the Lender or any Collateral Agent.
16. Term. This Pledge Agreement shall remain in
full force and effect until the Liabilities have been fully and indefeasibly
paid in cash and the Loan Agreement has terminated pursuant to its terms. Upon
the termination of this Pledge Agreement as provided above (other than as a
result of the sale of the Pledged Collateral), the Lender will release the
security interest created hereunder and, if it then has possession of the
Pledged Stock, will deliver the Pledged Stock and the Powers to the Pledgor.
17. Notices. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic, telex or cable communication) and mailed, telecopied,
telegraphed, telexed, cabled or delivered to it, if
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40
to the Pledgor or the Lender, at their respective addresses and telecopier
numbers specified in the Loan Agreement, or, as to either party, at such other
address as any party designates in a written notice to the other party. All
such notices and other communications shall, when mailed, telecopied,
telegraphed, telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex answerback
or delivered to the cable company, respectively.
18. Binding Effect. This Pledge Agreement shall
be binding upon and inure to the benefit of the Pledgor, the Lender and their
respective successors and assigns, except that the Pledgor shall not have the
right to assign any of its rights or duties hereunder or any interest herein
without the prior written consent of the Lender. The Pledgor's successors and
assigns shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for the Pledgor.
19. Severability. Whenever possible, each
provision of this Pledge Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this Pledge
Agreement or any other Financing Document shall be held under applicable law to
be invalid, illegal or unenforceable in any respect, such provision shall be
ineffective only to the extent of such prohibition or invalidity, and the
validity, legality and enforceability of the remaining provisions of this
Pledge Agreement shall not in any way be affected or impaired.
20. Survival. All representations, warranties
and covenants contained in this Pledge Agreement shall survive the execution
and delivery of this Agreement, the Loan Agreement, the Notes and all other
Financing Documents.
21. Further Assurances. The Pledgor agrees that
it will cooperate with the Lender and shall execute and deliver, or cause to be
executed and delivered, all such other stock powers, proxies, instruments and
documents, and will take all such other actions, including, without limitation,
the execution and filing of financing statements, as the Lender may reasonably
request from time to time in order to carry out the provisions and purposes of
this Pledge Agreement.
22. The Lender's Duty of Care. The Lender shall
not 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 the Lender's (i) gross negligence or willful misconduct, or
(ii) failure to use
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41
reasonable care with respect to the safe custody of the Pledged Collateral in
the Lender's possession. Without limiting the generality of the foregoing, the
Lender shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other Persons but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Liabilities secured
hereby.
23. Definitions. The singular shall include the
plural and vice versa and any gender shall include any other gender as the
context may require.
24. Course of Dealing; Amendment; Waivers. No
course of dealing between the Lender and the Pledgor shall be effective to
amend, modify or change any provision of this Pledge Agreement. No amendment
or waiver of any provision of this Pledge Agreement, nor consent to any
departure by the Pledgor therefrom, shall in any event be effective unless the
same is in writing and signed by the Lender, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. Any such waiver shall be for such period and subject
to such conditions as are specified in any such instrument and no such waiver
shall extend to any subsequent or other Default or Event of Default, or impair
any right consequent thereto.
25. Section Headings. The section headings
herein, and the headings in the Exhibits attached hereto, are solely for
convenience of reference, and shall not affect in any way the interpretation of
any of the provisions hereof. Unless otherwise specified, references in this
Pledge Agreement to Sections or Exhibits are references to Sections of, or
Exhibits to, this Pledge Agreement.
26. Entire Agreement. This Pledge Agreement
(including the Exhibits hereto) and the other Financing 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 Financing 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.
27. Governing Law. THIS PLEDGE AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. ANY DISPUTE
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42
BETWEEN THE LENDER AND THE PLEDGOR ARISING OUT OF OR RELATED TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT,
AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
28. Consent to Jurisdiction; Counterclaims; Forum
Non Conveniens; Service of Process. (a) Exclusive Jurisdiction. EXCEPT AS
PROVIDED IN SECTION 28(B), THE LENDER AND THE PLEDGOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREE THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF OR RELATED
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE
AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED IN MARYLAND, AND THE APPELLATE
COURTS FROM ANY THEREOF.
(b) Other Jurisdictions. THE LENDER SHALL HAVE
THE RIGHT TO PROCEED AGAINST THE PLEDGOR OR ITS REAL OR PERSONAL PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE THE LENDER TO OBTAIN PERSONAL JURISDICTION OVER
THE PLEDGOR, TO REALIZE ON THE PLEDGED COLLATERAL OR ANY OTHER SECURITY FOR THE
LIABILITIES OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE LENDER. THE PLEDGOR SHALL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY THE LENDER ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT.
(c) Venue; Forum Non Conveniens. EACH OF THE
PLEDGOR AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION THAT IT MAY HAVE (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS) TO THE LOCATION OF THE COURT
IN WHICH ANY PROCEEDING IS COMMENCED IN ACCORDANCE WITH THIS SECTION 28.
(d) Service of Process. THE PLEDGOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT
AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING SUBJECT TO
THIS SECTION 28 MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
THE PLEDGOR AT ITS ADDRESS AS PROVIDED IN SECTION 17. THE PLEDGOR FURTHER
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
29. WAIVER OF JURY TRIAL. EACH OF THE PLEDGOR
AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL
BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN THE LENDER AND THE PLEDGOR ARISING
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OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS PLEDGE AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EITHER THE PLEDGOR OR THE LENDER MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS PLEDGE AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
30. Advice of Counsel. The Pledgor represents
and warrants to the Lender that the Pledgor has discussed this Pledge Agreement
and, specifically, the provisions of Sections 27 through 29 hereof, with the
Pledgor's lawyers.
31. Appointment of Collateral Agent/Escrow
Agreement. No later than February 12, 1998, the Lender shall appoint a
Collateral Agent, who shall be reasonably satisfactory to the Pledgor, as agent
for the Lender for the purpose of (a) retaining physical possession of the
certificates representing the Pledged Stock, which may be held (subject to
Section 4 hereof) in the name of the Pledgor, duly endorsed in blank or in
favor of the Lender or any nominee or nominees of the Lender or an agent
appointed by the Lender, (b) holding and applying other Pledged Collateral in
accordance with the terms of this Agreement, and (c) at the written direction
of the Lender, exercising rights of the Lender under this Agreement in the
manner identified by the Lender in such written direction. The agreement by
which a Collateral Agent agrees to serve in such capacity, and any amendments
thereof, shall be in form and substance mutually satisfactory to both the
Pledgor and the Lender, and neither the Pledgor nor the Lender shall enter into
any other agreement with the Collateral Agent with respect to the subject
matter hereof without the prior written consent of the other.
32. 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.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the Pledgor and the Lender has
executed this Pledge Agreement as of the date set forth above.
DART GROUP CORPORATION
By: XXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Interim CEO
TRAK AUTO CORPORATION
By: R. XXXXX XXXXX
---------------------------
Name: R. Xxxxx Xxxxx
Title: President
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