Exhibit 99.16
ELEVENTH AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
[LAKE XXXXXX]
This ELEVENTH AMENDMENT TO PLEDGE AND SECURITY AGREEMENT [LAKE XXXXXX]
(this "Amendment") is made and entered into as of the 20th day of December,
1999, by and between PRIME GROUP II, L.P., an Illinois limited partnership
("Pledgor"), and XXXXXX INVESTORS LIFE INSURANCE COMPANY, an Illinois insurance
corporation ("Pledge").
W I T N E S S E T H :
WHEREAS, Pledgor and Pledgee entered into that certain Pledge and
Security Agreement [Lake Xxxxxx], dated as of March 22, 1994 (the "Original
Pledge Agreement"), pursuant to which Pledgor pledged to Pledgee 690,276 Common
Units in Prime Retail, L.P., a Delaware limited partnership, to secure Pledgor's
obligations under the Guaranty; and
WHEREAS, the Original Pledge Agreement was amended (i) by that certain
First Amendment to Pledge and Security Agreement [Lake Xxxxxx], dated as of
August 31, 1994 (the "First Amendment"), between Pledgor and Pledgee; (ii) by
that certain Second Amendment to Pledge and Security Agreement [Lake Xxxxxx],
dated as of June 12, 1995 (the "Second Amendment"), between Pledgor and Pledgee;
(iii) by that certain Third Amendment to Pledge and Security Agreement [Lake
Xxxxxx], dated as of February 19, 1997 (the "Third Amendment"), between Pledgor
and Pledgee; (iv) by that certain Fourth Amendment to Pledge and Security
Agreement [Lake Xxxxxx], dated as of April 9, 1997 (the "Fourth Amendment"),
between Pledgor and Pledgee; (v) by that certain Fifth Amendment to Pledge and
Security Agreement [Lake Xxxxxx] dated as of April 7, 1998 (the "Fifth
Amendment"), between Pledgor and Pledgee; (vi) by the certain Sixth Amendment to
Pledge and Security Agreement [Lake Xxxxxx] dated as of June 15, 1998 (the
"Sixth Amendment"), between Pledgor and Pledgee; (vii) by that certain Seventh
Amendment to Pledge and Security Agreement [Lake Xxxxxx] dated as of September
30, 1998 (the "Seventh Amendment"), between Pledgor and Pledgee; (viii) by that
certain Eighth Amendment to Pledge and Security Agreement [Lake Xxxxxx] dated as
of December 31, 1998 (the "Eighth Amendment"), between Pledgor and Pledgee; (ix)
by that certain Ninth Amendment to Pledge and Security Agreement [Lake Xxxxxx]
dated as of March 31, 1999 (the "Ninth Amendment"), between Pledgor and Pledgee;
and (x) by that certain Tenth Amendment to Pledge and Security Agreement [Lake
Xxxxxx] dated as of September 1, 1999 (the "Tenth Amendment"), between Pledgor
and Pledgee (the Original Pledge Agreement, as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the
Ninth Amendment and the Tenth Amendment, is herein referred to as the "Pledge
Agreement"); and
WHEREAS, pursuant to the Second Amendment, the number of Common Units
pledged by Pledgor to Pledgee was increased from 690,276 to 785,852; and
WHEREAS, pursuant to the Third Amendment, and in accordance with
Section 4.16 (b) of the Pledge Agreement, Pledgee released 40,227 Common Units
pledged by Pledgor to Pledgee; and
WHEREAS, pursuant to the Fourth Amendment Pledgor pledged to Pledgee
an additional 100,000 Common Units to secure Pledgor's obligations under the
Guaranty; and
WHEREAS, pursuant to the Fifth Amendment Pledgee released from the
Pledge Agreement 106,292 Common Units and, following such release, 739,333
Common Units were pledged by Pledgor to Pledgee; and
WHEREAS, pursuant to the Sixth Amendment Pledgor and Pledgee agreed to
certain amendments to the Pledge Agreement, and Pledgor confirmed its pledge and
grant of a security interest in 739,333 Common Units, giving effect to certain
"Merger Transactions" described therein; and
WHEREAS, pursuant to the Seventh Amendment Pledgor pledged to Pledgee
an additional 145,208 Common Units to secure Pledgor's obligations under the
Guaranty; and
WHEREAS, pursuant to the Eighth Amendment, Pledgor pledged to Pledgee,
and Pledgee accepted as collateral, 90,035 shares of Brookdale Common Stock to
secure Pledgor's obligations under the Guaranty; and
WHEREAS, pursuant to the Ninth Amendment, Pledgor pledged to Pledgee,
and Pledgee accepted as collateral, an additional 54,441 shares of Brookdale
Common Stock to secure Pledgor's obligations under the Guaranty; and
WHEREAS, pursuant to the Tenth Amendment, Pledgor pledged to Pledgee,
and Pledgee accepted as collateral, an additional 132,612 shares of Brookdale
Common Stock to secure Pledgor's obligations under the Guaranty; and
WHEREAS, pursuant to Section 4.16(a) of the Pledge Agreement Pledgor
is required to pledge to Pledgee additional Common Units and/or other collateral
acceptable to Pledgee as hereinafter provided.
WHEREAS, Pledgor has requested that Pledgee accept as other collateral
additional shares of Brookdale Common Stock and Pledgee has agreed to accept
such collateral to satisfy a portion of Pledgor's current obligations, subject
to the terms and conditions as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Pledgor and Pledgee hereby agree
as follows:
1. All capitalized terms used in this Amendment which are not
specifically defined in this Amendment but which are defined in the Pledge
Agreement shall have the meanings given such terms in the Pledge Agreement.
2. For purposes of subparagraphs (a), (b) and (c) of Section 4.16 of
the Pledge Agreement, the Market Value of Brookdale Common Stock pledged
hereunder shall be included in the calculation of the Market Value of the
Pledged Interests determined in accordance with the provisions hereof.
2
3. Pledgor hereby pledges, hypothecates, assigns and transfer to
Pledgee, and hereby grants to Pledgee a continuing lien and security interest in
43,545 shares of Brookdale Common Stock (the "Pledged Brookdale Common Stock"),
subject to Section 4.16 of the Pledge Agreement. Pledgor and Pledgee agree that
said Pledged Brookdale Common Stock shall constitute "Pledged Interests"
included in the "Collateral" for purposes of the Pledge Agreement. Nothing
contained in this Amendment shall be construed to require Pledgee to accept
future pledges of Brookdale Common Stock to satisfy Pledgor's obligations under
Section 4.16(a) of the Pledge Agreement.
4. Pledgor represents and warrants to Pledgee that, as of the date
hereof, Pledgor is the sole record, legal and beneficial owner of, and has good
and marketable title to (and has full right and authority to pledge and assign),
the Pledged Brookdale Common Stock pledged hereunder, free and clear of all
liens, security interests, options or other charges or encumbrances. Pledgor
hereby reiterates and incorporates herein by this reference the representations
and warranties set forth in Paragraphs 1, 2, 3 and 4 of Section B of Schedule 1
to Exhibit B to the Pledge Agreement. Contemporaneously with the execution and
delivery of this Amendment, Pledgor has delivered to Pledgee the certificates
evidencing the Pledged Brookdale Common Stock, accompanied by assignments
separate from certificate, duly endorsed in blank for transfer, with signature
guaranty, which is effective to create a valid, perfected, continuing and
enforceable security interest in the "Pledged Brookdale Common Stock" and all
proceeds thereof, securing the Secured Obligations.
5. Pledgor hereby pledges, hypothecates, assigns and transfers to
Pledgee, and hereby grants to Pledgee a continuing lien and security interest in
76,544 Common Units (the "Additional Common Units"), subject to Section 4.16 of
the Pledge Agreement. Pledgor and Pledgee agree that said Common Units shall
constitute "Pledged Interests" included within the "Collateral" for purposes of
the Pledge Agreement.
6. Pledgor represents and warrants to Pledgee that, as of the date
hereof, Pledgor is the sole record, legal and beneficial owner of, and has good
and marketable title to (and has full right and authority to pledge and assign),
the Additional Common Units pledged hereunder, free and clear of all liens,
security interests, options or other charges or encumbrances. Pledgor hereby
reiterates and incorporates herein by this reference the representations and
warranties set forth in Paragraphs 1, 2, 3 and 4 of Section 4 of Schedule 1 to
Exhibit B to the Pledge Agreement. Pledgor will promptly deliver to Pledgee the
certificates evidencing the Additional Common Units, together with duly executed
assignments separate from certificate.
7. Exhibit A to the Pledge Agreement is hereby amended by
substituting (a) 320,633 shares of Brookdale Common Stock for 277,088 shares of
Brookdale Common Stock in the description of Pledged Interests, and (b) 961,085
for 884,541 as the "Number of Common Units Pledged" in the description of
Pledged Interests.
8. All references in the Pledge Agreement to "this Pledge and
Security Agreement" and any and all references in the Loan Documents to the
"Pledge Agreement" shall mean the Pledge Agreement, as amended by this
Amendment.
9. Pledgor hereby ratifies and confirms the Guaranty and the Pledge
Agreement and agrees that the same shall remain in full force and effect except
as heretofore amended and except as amended by this Amendment.
3
10. The provisions of this Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the day and year first above written.
PRIME GROUP II, L.P., an Illinois
limited partnership
By: PGLP, Inc., an Illinois corporation,
general partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Its: Vice President
---------------------------------
XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois insurance corporation
By: Xxxxxx Investors Life Insurance Company
----------------------------------------
Its: Authorized Signatory
By: Xxxxxx Investors Life Insurance Company
---------------------------------------
Its: Authorized Signatory
4
ACKNOWLEDGMENT
Prime Retail, L.P., a Delaware limited partnership (the
"Partnership"), and Prime Retail, Inc., a Maryland corporation (the "General
Partner"), hereby acknowledge receipt of a copy of the foregoing Eleventh
Amendment to Pledge and Security Agreement [Lake Xxxxxx] (the "Eleventh
Amendment"). Notwithstanding anything in the By-laws of the General Partner to
the contrary, the Partnership and the General Partner further acknowledge and
agree that the Acknowledgment and Consent, dated March 22, 1994, entered into by
the undersigned with respect to the Pledge and Security Agreement [Lake Xxxxxx],
dated March 22, 1994, as amended, between Prime Group II, L.P., as Pledgor, and
Xxxxxx Investors Life Insurance Company, as Pledgee, is hereby ratified and
confirmed and shall remain in full force and effect except as heretofore amended
and except as amended by the terms and provisions of the Eleventh Amendment.
Date: December 20, 1999 PRIME RETAIL, L.P., a Delaware limited partnership
By: Prime Retail, Inc., a Maryland
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Chairman of the Board
--------------------------------
PRIME RETAIL, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: Chairman of the Board
------------------------------------
