EXHIBIT 10.6
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Pledge Agreement" or the "Agreement"), dated
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as of October 9, 1997 made by T/SF COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Pledgor," which term shall include its successors and
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assigns), in favor of FIRST UNION NATIONAL BANK, as Administrative Agent (in
such capacity, the "Administrative Agent") for the several banks, other
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financial institutions and other investors (collectively, the "Lenders") from
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time to time parties to the Credit Agreement dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Credit
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Agreement"), among T/SF COMMUNICATIONS CORPORATION, a Delaware corporation (the
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"Borrower"), the Lenders and FIRST UNION NATIONAL BANK (the "Administrative
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Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make
Revolving Loans to the Borrower upon the terms and subject to the conditions set
forth therein;
WHEREAS, the Pledgor is the legal and beneficial owner of the shares of Pledged
Stock (as hereinafter defined);
WHEREAS, it is a condition precedent to the obligation of the Lenders to make
their respective Revolving Loans to the Borrower under the Credit Agreement that
the Pledgor shall have executed and delivered this Pledge Agreement to the
Administrative Agent for the ratable benefit of the Lenders; and
WHEREAS, the Pledgor will receive a substantial benefit from the Revolving
Loans and desires that the Lenders make their respective Revolving Loans to the
Borrower pursuant to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Revolving Loans under the Credit
Agreement, the Pledgor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the
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Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement. For purposes of this Agreement, the term "Lender" shall
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include any Affiliate of any Lender which has entered into an Interest
Protection Agreement with the Borrower pursuant to the Credit Agreement with
respect to the obligations thereunder.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended, modified or
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otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in the State
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of North Carolina.
"Collateral": the Pledged Stock and all Proceeds thereof.
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"Collateral Account": any account established to hold money Proceeds,
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maintained under the sole dominion and control of the Administrative Agent,
subject to withdrawal by the Administrative Agent for the account of the Lenders
as provided in Section 8(a).
"Obligations": the collective reference to the unpaid principal of and
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interest on (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the
Revolving Loans and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Revolving Loans and all other obligations and
liabilities of the Borrower, of the Pledgor and of any other Credit Party
executing an agreement similar to the Pledge Agreement, in each case to the
Administrative Agent and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, any
Revolving Notes, this Agreement, the other Credit Documents, any Interest
Protection Agreement entered into by the Borrower with any Lender pursuant to
the Credit Agreement with respect to the obligations thereunder or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower or the Pledgor pursuant to the terms of the
Credit Agreement, this Agreement, any other Credit Document or any Interest
Protection Agreement entered into by the Borrower with any Lender pursuant to
the Credit Agreement with respect to the obligations thereunder).
"Permitted Transfer": any sale, assignment, transfer, exchange or other
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disposition of any Pledged Stock by the Pledgor or any permitted successor or
assign, whether in exchange for money or other property, gift, bequest or
otherwise, expressly permitted under the Credit Agreement and under the terms
of this Agreement.
"Pledged Stock": the shares of the Capital Stock of each Subsidiary of
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Pledgor and of T/SF Holdings, LLC (including without limitation any Capital
Stock containing any preferential rights as to dividends or other distributions)
that are owned by the Pledgor (Schedule 1 hereto setting forth each class of
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Capital Stock of each such Subsidiary and of T/SF Holdings, LLC and the
percentage thereof owned by the Pledgor), together with all stock certificates,
options or rights of any nature whatsoever that may be issued or granted by any
Subsidiary or by T/SF Holdings, LLC to the Pledgor or other Person in respect of
the Pledged Stock while this Agreement is in effect and any other stock or
equity interest obtained by the Pledgor or any Person in any Subsidiary or in
T/SF Holdings, LLC during the term hereof.
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"Proceeds": all "proceeds" as such term is defined in Section 9-306(1) of the
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Uniform Commercial Code in effect in the State of North Carolina and, in any
event, shall include, without
limitation, all dividends or other income from the Pledged Stock, collections
thereon or distributions with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
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(c) 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, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
"Transfer": as defined in Section 5(b).
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2. Pledge; Grant of Security Interest. The Pledgor hereby delivers to the
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Administrative Agent, for the ratable benefit of the Lenders, all of the Pledged
Stock of the Pledgor and hereby grants to the Administrative Agent, for the
ratable benefit of the Lenders, a first security interest in the Collateral of
the Pledgor, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the Administrative Agent
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of each certificate of the Pledgor representing one or more shares of Pledged
Stock of the Pledgor to the Administrative Agent, the Pledgor shall deliver an
undated stock power covering such certificate, duly executed in blank with, if
the Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents and warrants that:
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(a) The shares of Pledged Stock identified in Schedule 1 constitute all of the
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issued and outstanding shares of all classes of Capital Stock and equity
interests of any kind of each Subsidiary and all of the class of Capital
Stock and equity interests of T/SF Holdings, LLC having preferential rights
to dividends or other distributions and provides voting, operational and
management control of T/SF Holdings, LLC.
(b) All the shares of the Pledged Stock have been duly and validly issued and
are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of, and has good and
marketable title to, the Pledged Stock, free of any and all Liens or
options in favor of, or claims of, any other Person, except the security
interests created by this Agreement.
(d) Upon delivery by the Pledgor to the Administrative Agent of the stock
certificates evidencing the Pledged Stock identified in Schedule 1, the
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security interest
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created by this Agreement will constitute a valid, perfected first priority
security interest in the Pledged Stock of the Pledgor and the other
Collateral arising therefrom, enforceable in accordance with its terms
against all creditors of the Pledgor, the Subsidiaries, T/SF Holdings, LLC
or any Persons purporting to purchase any Collateral from the Pledgor, any
Subsidiary or T/SF Holdings, LLC, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law).
5. Covenants. The Pledgor covenants and agrees with the Administrative Agent
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and the Lenders that, from and after the date of this Agreement until this
Agreement is terminated and the security interests created hereby are released:
(a) If the Pledgor shall, as a result of its ownership of any Pledged Stock,
become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock
dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any shares of any
Pledged Stock, or otherwise in respect thereof, the Pledgor shall accept
the same as the agent of the Administrative Agent and the Lenders, hold the
same in trust for the Administrative Agent and the Lenders and deliver the
same forthwith to the Administrative Agent in the exact form received, duly
endorsed by the Pledgor to the Administrative Agent, if required, together
with an undated stock power covering such certificate duly executed in
blank by the Pledgor and with, if the Administrative Agent so requests,
signature guaranteed, to be held by the Administrative Agent, subject to
the terms hereof, as additional collateral security for the Obligations.
Any sums paid upon or in respect of the Pledged Stock as a dividend or
other distribution or upon the liquidation or dissolution of any Subsidiary
or T/SF Holdings, LLC shall be paid over to the Administrative Agent to be
held by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect of
the Pledged Stock or any property shall be distributed upon or with respect
to the Pledged Stock pursuant to the recapitalization or reclassification
of the capital of any Subsidiary or T/SF Holdings, LLC or pursuant to the
reorganization thereof, the property so distributed shall be delivered to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations. If any sums of money or property
so paid or distributed in respect of the Pledged Stock shall be received by
the Pledgor, the Pledgor shall, until such money or property is paid or
delivered to the Administrative Agent, hold such money or property in trust
for the Lenders, segregated from other funds of the Pledgor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent, the Pledgor
will not (1) vote to enable, or take any other action to permit, any
Subsidiary or T/SF Holdings, LLC to issue any stock or other equity
securities of any nature or to issue any other securities convertible into
or granting the right to purchase or exchange for any stock or equity
securities of any nature of any Subsidiary or T/SF Holdings, LLC, (2)
except for any Permitted Transfer, sell, assign, transfer, exchange, or
otherwise dispose of, or grant
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any option with respect to, the Collateral or any portion thereof, (3)
create, incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Collateral, or any interest
therein, except for the security interests created by this Agreement or (4)
enter into any agreement or undertaking restricting the right or ability of
any Subsidiary, T/SF Holdings, LLC or the Administrative Agent to sell,
assign or transfer any of the Collateral. Notwithstanding the foregoing,
any sale, assignment, transfer, exchange or other disposition (specifically
excluding any collateral assignment or other transaction that permits to
exist any Lien) (in each case, a "Transfer"), of any Pledged Stock shall be
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permitted hereunder so long as the following conditions shall be satisfied:
(i) No Default or Event of Default shall exist prior to, and
taking into account, the proposed Transfer, including without
limitation pursuant to Section 7(h) of the Credit Agreement, or
immediately thereafter;
(ii) The transferee with respect to such Transfer shall have
executed and delivered a stock pledge agreement in substance and form
similar in all material respects to this Agreement and shall have
agreed to be bound thereby;
(iii) The Administrative Agent shall have received on
behalf of the Lenders an opinion of counsel (reasonably acceptable to
the Administrative Agent) of the transferee and similar in content to
the opinion of counsel for the Pledgor rendered on the Closing Date in
connection with the closing of the transactions contemplated by the
Credit Agreement;
(iv) The transferee of the Transfer shall have delivered an
undated stock power covering the certificate or certificates to be
issued to such transferee, such undated stock power to be duly
executed in blank and the Administrative Agent shall have received a
written agreement from the transferee pursuant to which such
transferee agrees, immediately upon receipt, to deliver any
certificate or certificates issued to such Person in connection with
the Transfer to the Administrative Agent to be held by it on behalf of
the Lenders pursuant to this Agreement; and
(v) The Administrative Agent shall have received on behalf
of the Lenders such other assurances as it or any Lender shall
reasonably require.
Upon satisfaction by the transferring Pledgor and the transferee of the
conditions set forth herein, in such case, the Administrative Agent shall
deliver the certificate evidencing the Pledged Stock of the transferor
Pledgor that is subject to the Permitted Transfer to an Authorized
Signatory which certificate the Authorized Signatory and the Pledgor shall
cause to be canceled and shall immediately thereafter cause a new
certificate evidencing the shares of the Pledged Stock subject to the
Permitted Transfer to be issued in the name of the transferee and shall
deliver such certificate to the Administrative Agent to be held pursuant to
and under the terms of this Agreement.
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(c) The Pledgor shall maintain the security interest created by this Agreement
as a first, perfected security interest and shall defend such security
interest against claims and demands of all Persons whomsoever. At any time
and from time to time, upon the written request of the Administrative
Agent, and at the sole expense of the Pledgor, the Pledgor will promptly
and duly execute and deliver such further instruments and documents and
take such further actions as the Administrative Agent or any Lender may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted. If
any amount payable under or in connection with any of the Collateral shall
be or become evidenced by any promissory note, other instrument or chattel
paper, such note, instrument or chattel paper shall be immediately
delivered to the Administrative Agent, duly endorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant
to this Agreement.
(d) The Pledgor shall pay, and save the Administrative Agent and the Lenders
harmless from, any and all liabilities (i) with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes
which may be payable or determined to be payable with respect to any of the
Collateral and (ii) in connection with any of the transactions contemplated
by this Agreement, except for any such liabilities which result from the
gross negligence or willful misconduct of the Administrative Agent.
6. Permitted Distributions; Dividends; Voting Rights. Unless an Event of
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Default shall have occurred and be continuing, the Pledgor shall be permitted to
receive all cash dividends and similar distributions paid in the normal course
of business of the Subsidiaries and T/SF Holdings, LLC and to exercise all
voting and corporate rights with respect to the Pledged Stock; provided,
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however, that no vote shall be cast or corporate right exercised or other action
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taken which, in the Administrative Agent's reasonable judgment, would impair the
Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Credit Document.
7. Rights of the Lenders and the Administrative Agent.
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(a) All money Proceeds received by the Administrative Agent hereunder shall be
held by the Administrative Agent for the benefit of the Lenders in a
Collateral Account. All Proceeds while held by the Administrative Agent in
a Collateral Account (or by the Pledgor in trust for the Administrative
Agent and the Lenders) shall continue to be held as collateral security for
all the Obligations and shall not constitute payment thereof until applied
as provided in Section 8(a).
(b) If an Event of Default shall occur and be continuing, (1) the
Administrative Agent shall have the right to receive any and all cash
dividends and other distributions permitted to be made under the Credit
Agreement (including without limitation Restricted Payments permitted under
Section 6.12 of the Credit Agreement) paid in respect of the Pledged Stock
and make application thereof to the Obligations in such order as the
Administrative Agent may determine, and (2) all shares of the Pledged Stock
shall be registered in the name of the Administrative Agent or its nominee,
and the Administrative Agent or its nominee may thereafter exercise (A) all
voting, corporate and other rights
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pertaining to such shares of the Pledged Stock at any meeting of
shareholders of any Subsidiary or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Subsidiary or T/SF
Holdings, LLC, or upon the exercise by the Pledgor or the Administrative
Agent of any right, privilege or option pertaining to such shares of the
Pledged Stock, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock with any committee, depository,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without
liability except to account for property actually received by it, but the
Administrative Agent shall have no duty to the Pledgor to exercise any such
right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing.
8. Remedies.
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(a) If an Event of Default shall have occurred and be continuing, at any time
at the Administrative Agent's election, the Administrative Agent may apply
all or any part of Proceeds held in any Collateral Account in payment of
the Obligations in such order as the Administrative Agent may elect.
(b) If an Event of Default shall have occurred and be continuing, the
Administrative Agent, on behalf of the Lenders, may exercise, in addition
to all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Administrative Agent,
without resort to any other collateral or remedy under any Credit Document
or demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Pledgor or any other Person (including
without limitation the Borrower) (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or
any part thereof, and/or may forthwith sell, assign, give an option or
options to purchase or otherwise dispose of and deliver the Collateral or
any part thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, in the over-the-counter market,
at any exchange, broker's board or office of the Administrative Agent or
any Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The
Administrative Agent or any Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such
private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Pledgor, which
right or equity of redemption is hereby waived or released. The
Administrative Agent shall apply any Proceeds from time to time held by it
and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs
and expenses of every kind incurred in respect thereof or
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incidental to the care or safekeeping of any of the Collateral or in any
way relating to the Collateral or the rights of the Administrative Agent
and the Lenders hereunder, including, without limitation, reasonable
attorneys' fees and disbursements of counsel to the Administrative Agent,
to the payment in whole or in part of the Obligations, in such order as the
Administrative Agent may elect, and only after such application and after
the payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to the
Pledgor. To the extent permitted by applicable law, the Pledgor waives all
claims, damages and demands it may acquire against the Administrative Agent
or any Lender arising out of the exercise by it of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given
at least 10 days before such sale or other disposition. The Borrower shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Administrative
Agent or any Lender to collect such deficiency.
9. [Intentionally Omitted]
10. Irrevocable Authorization and Instruction to Subsidiaries. The Pledgor
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hereby authorizes and instructs the Subsidiaries (and each of them) and T/SF
Holdings, LLC to comply with any instruction received by the Pledgor from the
Administrative Agent in writing that (a) states that an Event of Default has
occurred and (b) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from the Pledgor, and the Pledgor
agrees that each Subsidiary and T/SF Holdings, LLC shall be fully protected in
so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
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(a) The Pledgor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power
of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Pledgor and
in the name of the Pledgor or in the Administrative Agent's own name, from
time to time in the Administrative Agent's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement,
including, without limitation, any financing statements, endorsement,
assignment or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall lawfully do or
cause to be done pursuant to the power of attorney granted in Section
11(a). All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until this Agreement is
terminated and the security interests created hereby are released.
12. Duty of Administrative Agent. The Administrative Agent's sole duty with
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respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under
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Section 9-207 of the Code or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar securities and property
for its own account, except that the Administrative Agent shall have no
obligation to invest funds held in any Collateral Account and may hold the same
as demand deposits. Neither the Administrative Agent, any Lender nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Pledgor or any other Person or to take
any other action whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402 of the
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Code, the Pledgor authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of the Pledgor
in such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement. A carbon, photographic or other reproduction of
this Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
14. Authority of Administrative Agent. The Pledgor acknowledges that the
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rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Pledgor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither the Pledgor, any
Subsidiary nor T/SF Holdings, LLC shall be under any obligation, or entitlement,
to make any inquiry respecting such authority.
15. Notices. All notices shall be given or made in accordance with Section
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9.2 of the Credit Agreement.
16. Severability. Any provision of this Agreement which is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
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(a) None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by the Pledgor and the Administrative Agent, provided that any provision of
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this Agreement may be waived by the Administrative Agent and the Majority
Lenders (or such greater number or percentage of Lenders as provided in the
Credit Agreement) in a letter or agreement executed by the Administrative
Agent or by facsimile transmission from the Administrative Agent.
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(b) Neither the Administrative Agent nor any Lender shall by any act (except by
a written instrument pursuant to Section 17(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to
exercise, nor any delay in exercising on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which
the Administrative Agent or such Lender would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Agreement are for
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convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon the
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successors and assigns of the Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns, provided
that the Pledgor may not assign its rights or obligations under this Agreement,
except as otherwise expressly provided in Section 5(b) hereof, without the prior
written consent of the Administrative Agent and any such purported assignment
shall be null and void.
20. Arbitration; Consent to Jurisdiction and Service of Process.
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(a) Upon demand of any party hereto, whether made before or after institution
of any judicial action, any dispute, claim or controversy arising out of or
connected with the Credit Documents ("Disputes") shall be resolved by
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binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort
claims, counterclaims, claims brought as class actions and claims arising
from Credit Documents executed in the future. Arbitration shall be
conducted under the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association and Title 9 of
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the U.S. Code. All arbitration hearings shall be conducted in Charlotte,
Mecklenburg County, North Carolina or any place agreed to in writing by the
parties. A judgment upon the award may be entered in any court having
jurisdiction, and all decisions shall be in writing. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys
having at least ten years' experience representing parties in lending
transactions. Notwithstanding the foregoing, this arbitration provision
does not apply to disputes under or related to Interest Protection
Agreements.
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(b) Notwithstanding the preceding binding arbitration provision, the
Administrative Agent and Lenders preserve certain remedies that may be
exercised during a Dispute. The Administrative Agent and Lenders shall
have the right to proceed in any court of proper jurisdiction or by self
help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other
security by exercising a power of sale granted in the Credit Documents or
under applicable law, (ii) all rights of self help including peaceful
occupation of real property and collection of rents, set-off and peaceful
possession of personal property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment,
attachment and appointment of receiver, (iv) when applicable, a judgment by
confession of judgment and (v) other remedies. Preservation of these
remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
(c) By execution and delivery of this Agreement, the Pledgor accepts, for
itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction relating to any arbitration
proceedings conducted under the Arbitration Rules in Charlotte, Mecklenburg
County, North Carolina and irrevocably agree to be bound by any final
judgment rendered thereby in connection with this Agreement from which no
appeal has been taken or is available. The Pledgor irrevocably agrees that
all process in any such arbitration proceedings or otherwise may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its address
set forth in Section 15 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto, such
service being hereby acknowledged by the Pledgor to be effective and
binding service in every respect. The Pledgor, the Administrative Agent
and the Lenders irrevocably waive any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have to the bringing of
any such action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner permitted by
law or shall limit the right of the Administrative Agent or the Lenders to
bring proceedings against the Pledgor in any court or pursuant to
arbitration proceedings in any other jurisdiction.
22. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
FIRST UNION NATIONAL BANK
as Administrative Agent
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
[Signatures continued on the following page]
PLEDGOR:
T/SF COMMUNICATIONS CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
ACCEPTED AND AGREED TO BY:
CASINO PUBLISHING COMPANY
CORSEARCH, INC.
NEW YORK COMMUNITY NEWSPAPER, INC.
TRANSPORTATION INFORMATION SERVICES, INC.
T/SF INVESTMENT CO.
T/SF NEW JERSEY, INC.
T/SF NEW YORK, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
T/SF HOLDINGS, LLC
By: T/S COMMUNICATIONS CORPORATION,
as Managing Member
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
SCHEDULE 1 - DESCRIPTION OF PLEDGED STOCK
Total
Percentage
Certificate No. of of
Subsidiary * Class No. Shares Ownership
---------- ----- --- ------ ---------
* T/SF Holdings, LLC, although not a Subsidiary of the Pledgor, is listed in
this column for convenience
SCHEDULE 2
----------
to
Stock Pledge Agreement
Irrevocable Stock Power
-----------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
following shares of Capital Stock of [ ], a
---------------- --------------------
corporation:
Certificate No. No. of Shares
--------------- -------------
and irrevocably appoints
--------------------------------------------------------------------------------
its agent and attorney-in-fact to transfer all or any part of such Capital Stock
and to take all necessary and appropriate action to effect any such transfer.
The agent and attorney-in-fact may substitute and appoint one or more persons to
act for him. The effectiveness of a transfer pursuant to this stock power shall
be subject to any and all transfer restrictions referenced on the face of the
certificates evidencing such interest or in the certificate of incorporation or
bylaws of the subject corporation, to the extent they may from time to time
exist.
Date: PLEDGOR:
------------
By:
--------------------
Name:
--------------------