EXHIBIT IV
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FORM OF
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PLEDGE AND SECURITY AGREEMENT
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THIS PLEDGE AND SECURITY AGREEMENT dated as of _________ is between
__________ (the "Pledgor"), and Healthcare Realty Trust Incorporated, a Maryland
real estate investment trust with its principal place of business and chief
executive office at 0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000
(the "Secured Party").
RECITALS:
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A. Prime Group VI, L.P., an Illinois limited partnership (the
"Borrower") and affiliate of the Pledgor, and the Secured Party are parties to
that certain Credit Agreement dated as of the date hereof (as amended, restated,
modified or supplemented from time to time, the "Credit Agreement"), pursuant to
which the Secured Party has made a loan to the Borrower in the principal amount
of $18,000,000.00.
B. It is a condition precedent to the Secured Party making such loan
to the Borrower under the Credit Agreement that the Pledgor concurrently
herewith executes and delivers a certain Guaranty dated as of the date hereof in
favor of the Secured Party (as amended, restated, modified or supplemented from
time to time, the "Guaranty").
C. It is a further condition precedent to the Secured Party making
such loan to the Borrower under the Credit Agreement that the Pledgor executes
and delivers this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein, and not
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otherwise defined herein, shall have the respective meanings specified in the
Credit Agreement.
"Agreement" shall mean this Pledge and Security Agreement, as amended,
restated, modified or supplemented from time to time.
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy" as now or hereafter in effect, or any successor thereto.
"Borrower" shall mean Prime Group VI, L.P., an Illinois limited
partnership.
"Brookdale" shall mean Brookdale Living Communities, Inc., a Delaware
corporation.
"Brookdale Shares" shall mean the common stock, par value $0.01 per
share, of Brookdale.
"Collateral" shall have the meaning assigned to such term in Section
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3.1 of this Agreement.
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"Distributions" shall have the meaning assigned to such term in
Section 3.1(iii) of this Agreement.
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"Federal Securities Laws" shall have the meaning ascribed to such term
in Section 5.7 of this Agreement.
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"Pledged Stock" shall mean that number of Brookdale Shares set forth
on Schedule A attached hereto which are pledged hereunder to the Secured Party
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as collateral security for the Loan.
"UCC" shall mean the Uniform Commercial Code as the same may from time
to time be in effect in the State of Illinois or any other applicable
jurisdiction.
Section 1.2 Principles of Construction. All references to articles
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and sections are to articles and sections in this Agreement unless otherwise
specified. Unless otherwise specified, 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.
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ARTICLE II
OBLIGATIONS SECURED
Section 2.1 Obligations Secured. This Agreement is made by the
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Pledgor for the benefit of the Secured Party to secure the payment or
performance in full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise of the Guaranteed
Obligations (as defined in the Guaranty) and its obligations hereunder (the
"Secured Obligations"), including, without limitation, obligations that would
be owed by the Borrower to the Secured Party under any Basic Document but for
the fact that they are not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower under any applicable
bankruptcy, reorganization, moratorium or similar law, ordinance, regulation,
rule, order, writ, injunction, or decree of any tribunal, or under principles of
equity affecting the enforcement of creditors' rights generally.
ARTICLE III
GRANT OF SECURITY INTEREST
Section 3.1 Collateral Assignment, Pledge and Grant of Security
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Interest. To secure the payment and performance of all the Secured Obligations,
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the Pledgor does hereby collaterally assign, convey, mortgage, pledge,
hypothecate and transfer, and does hereby grant a continuing security interest
in, all of the Pledgor's rights, title and interest in the following, whether
now existing or hereafter from time to time acquired (collectively, the
"Collateral") to, and for the benefit of, the Secured Party:
(i) the Pledged Stock;
(ii) all payments due or to become due to the Pledgor after
the date hereof arising out of, as a result of or in connection with the
Pledged Stock, whether as dividends or distributions of stock, cash or
property or otherwise (collectively, the "Distributions"), and all of the
Pledgor's rights arising out of, as a result of or in connection with the
Pledged Stock, whether now existing or hereafter arising or acquired, to
exercise all voting, consensual and other powers of ownership pertaining to
the Pledged Stock (including, without limitation, to make determinations,
to exercise any election (including, without limitation, election of
remedies) or option, to give or receive any notice, consent, amendment,
waiver or approval), together with full power and authority to demand,
receive, enforce, collect or give receipt for any of the foregoing, to
enforce or execute any checks or other instruments or orders, to file any
claims and to take any action which, in the reasonable
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opinion of the Secured Party, may be necessary or advisable in connection
with any of the foregoing;
(iii) all rights and interests of Pledgor, relating to the
Pledged Stock, under the Registration Rights Agreement; and
(iv) all proceeds of any and all of the foregoing and all
increases, substitutions, replacements, additions and accessions thereto.
Section 3.2 Delivery of Collateral and Related Evidence. On the
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date hereof, the Pledgor has delivered to the Secured Party certificates
representing the Pledged Stock, together with an undated stock power covering
such certificates, duly executed in blank.
Section 3.3 Distributions. Unless an Event of Default shall have
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occurred and be continuing, the Pledgor shall be entitled to receive all
Distributions (other than any liquidating, or partially liquidating,
Distributions) that are paid on the Pledged Stock by Brookdale.
Section 3.4 Voting Power. Unless an Event of Default shall have
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occurred and be continuing, the Pledgor shall be entitled to exercise all
voting, consensual and other powers of ownership pertaining to the Pledged Stock
(including, without limitation, to make determinations, to exercise any election
or option, to give or receive any notice, consent, amendment, waiver or
approval); provided, however, that no vote shall be cast nor any approval,
consent, waiver or ratification given, nor any power pertaining to the Pledged
Stock exercised, nor any other action taken, which would violate or be
inconsistent with the terms of this Agreement or any of the other Basic
Documents, or which would have the effect of materially impairing the position
or interests of the Secured Party, or could reasonably be expected to have a
material adverse effect on the ability of the Pledgor to perform its obligations
hereunder or under any other Basic Document.
Section 3.5 No Assumption. Notwithstanding any of the foregoing,
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whether or not an Event of Default shall have occurred, and whether or not the
Secured Party elects to foreclose or otherwise realize on its security interest
in the Collateral as set forth herein or exercise any of its rights under this
Agreement or any of the other Basic Documents or otherwise, neither this
Agreement, receipt by the Secured Party of any Distributions, the foreclosure or
other realization by the Secured Party of the security interest in the
Collateral nor any exercise by the Secured Party of any of its rights under this
Agreement or the other Basic Documents or otherwise, shall in any way be deemed
to obligate the Secured Party to assume any of the Pledgor's obligations,
duties, expenses or liabilities with respect to the Collateral or any agreement
relating thereto, and in the event of any such foreclosure, realization or other
exercise of rights, the Pledgor shall remain bound and obligated to perform such
obligations and the Secured Party shall not be deemed to have assumed any of
such obligations. Notwithstanding anything to the contrary herein, the Secured
Party agrees that, upon any
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foreclosure or other realization by the Secured Party of the security interest
in the Collateral or any exercise by the Secured Party of any of its rights
under this Agreement or the other Basic Documents or otherwise, the Secured
Party shall be subject in all respects to the terms and conditions of the
Brookdale Documents.
Section 3.6 Securities Laws. Nothing herein is intended, or shall
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be interpreted, to require or permit any sale of the Collateral in violation of
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, or any rule or regulation of the United States Securities and Exchange
Commission or any state "blue sky" laws.
ARTICLE IV
REMEDIES
Section 4.1 Remedies. Upon the occurrence and during the
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continuance of an Event of Default, the Secured Party may declare all Secured
Obligations to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice (except in the case of
notice which is expressly required to be given hereunder or under the other
Basic Documents), all of which are hereby waived by the Pledgor to the extent
permitted by applicable law, and the Secured Party may exercise all the rights,
powers and remedies vested in it (whether vested in it by this Agreement or any
other Basic Document or by law) for the protection and enforcement of its rights
in respect of the Collateral, including, without limitation, the following
rights, which the Pledgor hereby agrees to be commercially reasonable:
(i) to receive directly all amounts payable in respect of
the Collateral;
(ii) to transfer all or any part of the Pledged Stock into
the Secured Party's name or the name of its nominee(s) or designee(s);
(iii) subject to the terms and conditions of the Brookdale
Documents, to vote all or any part of the Pledged Stock (whether or not
transferred into the name of the Secured Party) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof; and
(iv) subject to the terms and conditions of the Brookdale
Documents, at any time or from time to time, to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell (or of the time
or place of sale or adjournment thereof) or to redeem or otherwise (all of
which are, to the extent
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permitted by applicable law, hereby waived by the Pledgor), for cash or
credit or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on such terms
as the Secured Party in its absolute discretion may determine. The Pledgor
hereby waives and releases to the fullest extent permitted by applicable
law any right or equity of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the Secured
Obligations or otherwise. At any such sale, unless prohibited by applicable
law, the Secured Party may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption. To the
fullest extent permitted by applicable law, the Secured Party shall not be
liable for failure to collect or realize upon any or all of the Collateral
or for any delay in so doing nor shall it be under any obligation to take
any action whatsoever with regard thereto.
Section 4.2 Sale. The Secured Party shall not be obligated to make
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any sale of Collateral regardless of notice of sale having been given. The
Secured Party may adjourn any public or private sale from time to time and such
sale may be made at the time and place to which it was so adjourned. The
Pledgor agrees that to the extent notice of any such sale or an adjournment
thereof is required by law (notwithstanding the waiver of such notice herein)
and the applicable statutes do not specify the minimum notice period required,
the Secured Party need not give more than ten (10) days' notice of the time and
place of any public sale or of the time after which a private sale may take
place and that such notice is reasonable notification of such matters.
Section 4.3 Appointment of Attorney-in-Fact. The Pledgor hereby
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appoints the Secured Party, effective upon an Event of Default (but only for so
long as such Event of Default is continuing), as the Pledgor's attorney-in-fact,
with full power of substitution for the purposes specified in, or contemplated
by, this Agreement. Such appointment is irrevocable and coupled with an
interest. As attorney-in-fact, the Secured Party may (in addition to the
actions specified in other provisions of this Agreement), in the name, place and
stead of the Pledgor, make and execute all conveyances, assignments and
transfers of the Collateral sold pursuant hereto, and the Pledgor hereby
ratifies and confirms all that the Secured Party, as attorney-in-fact, shall do
by virtue hereof. Nevertheless, the Pledgor shall, if so requested by the
Secured Party, ratify and confirm any sale or sales by executing and delivering
to the Secured Party, or to such purchaser or purchasers, all such instruments
as may, in the reasonable judgment of the Secured Party, be advisable for the
purpose.
Section 4.4 Limitation of Secured Party's Liability. The Secured
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Party shall incur no liability as a result of the manner or terms of sale of the
Collateral, or any part thereof, at any public or private sale conducted during
the continuance of an Event of Default in a manner and on terms that are
commercially reasonable. The Pledgor hereby waives, to the fullest extent
permitted by applicable law, any claims against the Secured Party arising by
reason of the fact that the price at which the Collateral, or any part thereof,
may have been sold at a private sale was less than the price
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which might have been obtained at public sale or was less than the aggregate
amount of the Secured Obligations, even if the Secured Party accepts the first
offer received which the Secured Party in good xxxxx xxxxx to be commercially
reasonable under the circumstances and does not offer the Collateral to more
than one offeree. To the extent permitted by applicable law, the Pledgor shall
have the burden of proving that any such sale of the Collateral was conducted in
a commercially unreasonable manner.
Section 4.5 Waiver of Rights. The Pledgor hereby waives to the
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fullest extent permitted by applicable law: (i) presentment, demand, protest or
any notice (except in the case of notice which is expressly required to be given
under this Agreement or the other Basic Documents) of any kind in connection
with this Agreement, the other Basic Documents and the Collateral; (ii) notice
in connection with the Secured Party's retention, taking possession or
disposition of any of the Collateral, including, without limitation, any and all
prior notice for any prejudgment remedy or remedies; (iii) all claims, damages
and demands occasioned by such retention, taking of possession or disposition;
(iv) all other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Secured Party's rights
hereunder; and (v) all rights, if any, of redemption, appraisal, valuation,
marshalling, stay, extension or moratorium now or hereafter in force under any
applicable law in order to prevent or delay the enforcement of this Agreement or
any of the other Basic Documents or the absolute sale of the Collateral or any
portion thereof.
Section 4.6 Recourse. Anything contained herein, in the Note or in
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any other Basic Document to the contrary notwithstanding, no recourse shall be
had for the Secured Obligations against any shareholder, agent, director,
officer, or employee of the Pledgor. It is understood that the preceding
sentence shall not (A) apply to the obligations of the Guarantors set forth in
the Guarantees, and (B) in the event of any malfeasance, such as fraud,
misappropriation of funds or intentional material misrepresentation, estop the
Secured Party from instituting or prosecuting a legal action or proceeding or
otherwise making a claim against the Person committing such malfeasance.
Section 4.7 Securities Restrictions. In view of the Pledgor's
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position in relation to Brookdale, or because of other present or future
circumstances, a question may arise under the Securities Act of 1933, as
amended, as now or hereafter in effect, or any similar statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being hereinafter called, the "Federal Securities Laws")
with respect to any disposition of the Collateral permitted hereunder. Each of
the Pledgor and the Secured Party understands that compliance with the Federal
Securities Laws may very strictly limit the course of the Secured Party's
conduct if the Secured Party were to attempt to dispose of all or any part of
the Collateral and may also limit the extent to which or the manner in which any
subsequent transferee of any Collateral may dispose of the same. Similarly,
there may be other legal restrictions or limitations affecting the Secured Party
in any attempt to dispose of all or any part of the Collateral under applicable
"blue sky" or other state securities laws or similar laws analogous in purpose
or effect. The Pledgor and the
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Secured Party acknowledge that some or all of the shares of the Pledged Stock
are "restricted securities" (within the meaning of Rule 144 under the Federal
Securities Laws). Accordingly, the Pledgor agrees that if the Secured Party is
entitled hereunder to sell Collateral, (i) the Secured Party shall be entitled,
subject to the Federal Securities Laws, to place all or any part of such
Collateral for private placement by an investment banking firm or other
financial institution, that any such investment banking firm or other financial
institution may purchase all or any part of such Collateral for its own account,
and that the Secured Party shall be entitled to place all or any part of such
Collateral privately with a purchaser or purchasers who shall represent and
agree that such Collateral is being purchased for its or their own account and
not with a view to the distribution thereof within the meaning of the Federal
Securities Laws, notwithstanding the existence of a public or private market for
any unrestricted shares of common stock of Brookdale (the "Registered Shares")
upon which the quotations or sales prices may exceed the price at which the
Secured Party sells Pledged Stock, and (ii) the Secured Party shall have the
right, but not the obligation, to register, or cause the registration of, the
Pledged Stock under the Registration Rights Agreement (to the extent permitted
by the Registration Rights Agreement) and/or otherwise cause the Pledged Stock
to be sold or placed in a public or private sale.
Section 4.8 Application of Proceeds. The proceeds of any
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Distributions received by the Secured Party during the continuation of an Event
of Default, and the proceeds of any collection, recovery, receipt,
appropriation, realization or sale pursuant to this Agreement shall be applied
as follows, without duplication:
First, to the costs and expenses actually incurred in connection
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therewith (including, without limitation, reasonable attorneys' fees and
disbursements, court costs and other expenses);
Second, to the payment of any and all Secured Obligations then due and
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owing; and
Third, after the payment of all Secured Obligations then outstanding,
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any surplus then remaining shall be paid to the Pledgor.
Section 4.9 Remedies Cumulative. No right, power or remedy herein
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or in the other Basic Documents conferred upon or reserved to the Secured Party
is intended to be exclusive of any other right, power or remedy; every such
right, power and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right, power and remedy given hereunder, under the
other Basic Documents or now or hereafter existing at law or in equity or
otherwise; and the assertion or employment of any such right, power or remedy
shall not prevent the concurrent assertion or employment of any other such
right, power or remedy. No delay by or failure of the Secured Party, to
exercise any such right, power or remedy following the occurrence of an Event of
Default shall impair any such right, power or remedy or be construed to be a
waiver of such Event of Default or an acquiescence therein, and every such
right, power and remedy may be
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exercised from time to time, and as often as shall be deemed expedient, by the
Secured Party. In case the Secured Party shall have instituted any action or
proceeding to enforce any such right, power or remedy by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Secured
Party, then and in every such case the Pledgor and the Secured Party shall be
restored to their former positions and rights hereunder with respect to the
Collateral and all rights, powers and remedies of the Secured Party shall
continue as if no such action or proceeding had been instituted.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Pledgor. In
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order to induce the Secured Party to enter into this Agreement, the Pledgor
represents and warrants to the Secured Party as follows:
(i) the Pledgor is the legal, record and beneficial owner
of the Pledged Stock, subject to no Lien other than the Liens created by
this Agreement and the terms and conditions of the Brookdale Documents;
(ii) the Pledgor has full corporate power, authority and
legal right to execute and deliver this Agreement and the other Basic
Documents to which it is a party and to pledge the Collateral to the
Secured Party pursuant to this Agreement;
(iii) this Agreement creates, in favor of the Secured Party
and as security for the Secured Obligations, a valid, enforceable and (so
long as the Secured Party maintains possession of the Pledged Stock)
perfected Lien on all of the Collateral, subject to no Lien in favor of any
other Person but subject to the terms and conditions of the Brookdale
Documents;
(iv) no consent, filing, recording or registration is
required to perfect the Lien purported to be created by this Agreement,
except as have been obtained and/or effected;
(v) each of this Agreement and the other Basic Documents to
which the Pledgor is a party constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles; and
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(vi) the Pledgor's principal place of business and chief
executive office is at the address as set forth in the introductory
paragraph of this Agreement.
ARTICLE VI
COVENANTS
Section 6.1 Covenants of the Pledgor. In order to induce the
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Secured Party to enter into this Agreement, the Pledgor covenants and agrees as
follows:
(i) the Pledgor will defend the Secured Party's right,
title, claim of possession and Lien in and to the Collateral against the
claims and demands of all Persons, subject in all events to the applicable
terms and conditions of the Brookdale Documents;
(ii) the Pledgor will not create or permit to exist any Lien
on the Collateral (other than the Lien created by this Agreement and the
Basic Documents) and will pay and discharge all Liens, charges, claims,
taxes and other governmental charges, and all contractual obligations
requiring the payment of money, before such become overdue, that may affect
the Collateral or any portion thereof, unless (but only to the extent that)
(a) such payment is being contested in good faith and in accordance with
law, and (b) the failure to make such payment cannot result in the loss of
the Collateral or any portion thereof;
(iii) upon demand by the Secured Party, the Pledgor shall
pay, or cause to be paid, all reasonable fees and expenses actually
incurred by the Secured Party in connection with the preparation and
negotiation of the Basic Documents, the amendment or modification of the
Basic Documents and the prosecution or defense of any action or proceeding
or other litigation affecting or relating to the Basic Documents
(including, without limitation, reasonable attorneys' fees and
disbursements); and any amounts so paid shall be secured by this Agreement;
(iv) the Pledgor agrees that it will join with the Secured
Party in executing and, at its own expense, file and refile under the UCC
such financing statements, continuation statements and other documents in
such offices as the Secured Party may reasonably deem necessary or
desirable and wherever required or permitted by law in order to perfect and
preserve the Secured Party's first priority perfected security interest in
the Collateral and hereby authorizes the Secured Party to file financing
statements and amendments thereto relative to all or any part of the
Collateral without the signature of the Pledgor where permitted by law, and
agrees to do such further acts and things and to make, execute and deliver
to the Secured Party such additional conveyances, assignments, agreements,
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instruments and financing statements as the Secured Party may reasonably
require or deem advisable to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Secured Party its
rights, powers and remedies hereunder, and if the Pledgor shall fail to
execute any such additional conveyances, assignments, agreements,
instruments or financing statements, the Secured Party, as attorney-in-fact
for the Pledgor, may in the name, place and stead of the Pledgor, make,
execute and deliver any of the foregoing; provided, however, that none of
the foregoing shall relieve the Pledgor of its responsibility for such
filings and perfection;
(v) upon demand by the Secured Party, the Pledgor shall
furnish to the Secured Party such proof or evidence as the Secured Party
may reasonably request from time to time with respect to (a) the continuing
correctness of the representations and warranties set forth herein as of
the date made, (b) compliance with and performance by the Pledgor of the
covenants contained herein, and (c) such other matters with respect to the
transactions contemplated hereby as the Secured Party shall reasonably
request;
(vi) the Pledgor shall promptly, upon becoming aware
thereof, notify the Secured Party in writing of any condition or event that
constitutes a Default or an Event of Default;
(vii) the Pledgor shall notify the Secured Party in writing
within not more than 30 days following the date the Pledgor changes its
principal place of business or chief executive office, which notice shall
set forth the full and complete new address of the principal place of
business or chief executive office of the Pledgor; and
(viii) except as permitted under the Credit Agreement and
except as provided in the Brookdale Documents, the Pledgor will not,
directly or indirectly, sell, convey, transfer, assign, encumber or
otherwise dispose of, grant rights with respect to, or mortgage or create a
security interest in any of the Collateral (or any associated options,
rights or interests).
ARTICLE VII
MISCELLANEOUS
Section 7.1 Duties of the Secured Party. (a) The Secured Party
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shall be obligated to perform such duties and only such duties as specifically
are set forth in this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Secured Party.
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(b) The Secured Party may consult with counsel, and any
advice or written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it, in the absence of bad faith on its part, in reliance on such
advice or opinion.
(c) Any corporation into which the Secured Party may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which it shall be a party, or any corporation
succeeding to its business, shall succeed to all rights, obligations and
immunities hereunder without the execution or filing of any document or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
(d) No provision of this Agreement shall require the
Secured Party to advance, expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights and powers hereunder.
Section 7.2 Notices. All notices and other communications provided
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for herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made by telecopy, or in
writing and telecopied (with confirmation), mailed, sent by overnight courier or
delivered to the intended recipient at the address specified below; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly given when transmitted by
telecopier (with confirmation of receipt), or personally delivered or, in the
case of a mailed or couriered notice, upon receipt, in each case given or
addressed as aforesaid. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice.
If to the Secured Party, at:
Healthcare Realty Trust Incorporated
0000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy Number: (000) 000-0000
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With a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx
Nashville City Center
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
Telecopy Number: (000) 000-0000
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If to the Pledgor, at:
With a copy to:
The Prime Group, Inc.
00 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
With a copy to:
Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy Number: (000) 000-0000
Section 7.3 Severability. Any provision of this Agreement which is
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prohibited or 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 or invalidate any other
provision of this Agreement in such or any other jurisdiction.
Section 7.4 Separate Counterparts. This Agreement may be executed
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by the parties hereto in counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 7.5 Successors and Assigns. Neither the Pledgor nor the
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Secured Party may assign its rights or obligations hereunder without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, however, that the Secured Party may at any
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time assign all (but not less than all) of its rights and obligations hereunder
to a Specified Subsidiary, without the consent of the Pledgor.
Section 7.6 Amendments and Waivers. This Agreement may be amended,
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and compliance with any provision hereof may be waived, but only in a written
instrument signed by the Pledgor and the Secured Party.
Section 7.7 Headings. The headings of the sections herein are for
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convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 7.8 GOVERNING LAW. THE TERMS OF THIS AGREEMENT SHALL BE
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GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF ILLINOIS (EXCLUSIVE OF ANY RULES AS TO CONFLICT OF LAWS).
Section 7.9 References to Other Documents. All defined terms used
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in this Agreement which refer to other documents shall be deemed to refer to
such other documents as they may be amended from time to time, provided such
documents were not amended in breach of a covenant contained in this Agreement
or any of the other Basic Documents.
Section 7.10 Indemnity. The Pledgor shall indemnify the Secured
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Party (including its directors, officers, employees and agents) and hold it (and
them) harmless from and against any and all losses, liability, penalties,
actions, suits, judgments, demands, damages, costs and expenses, including
reasonable attorneys' fees and expenses, arising out of or in connection with
the failure by the Pledgor to perform its obligations under this Agreement,
unless arising from the gross negligence, bad faith or willful misconduct of the
Secured Party or the Person seeking indemnification. This indemnity shall
survive the termination of this Agreement.
Section 7.11 Termination. At such time as the Secured Obligations
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have been paid in full, this Agreement shall terminate and the Secured Party, at
the request and expense of the Pledgor, will execute and deliver to the Pledgor
instruments prepared by the Pledgor (including UCC-3 termination statements)
acknowledging the termination of this Agreement, and will duly assign, transfer
and deliver to the Pledgor (without recourse and without any representation or
warranty, other than a representation that the Collateral is free from any Liens
attributable to the Secured Party) such of the Collateral as may be in
possession of the Secured Party and has not theretofore been sold or otherwise
applied or released pursuant to this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, this Pledge and Security Agreement has been duly
signed and delivered as of the date first written above.
By:___________________________________
Name:_________________________________
Title:________________________________
HEALTHCARE REALTY TRUST INCORPORATED
By:___________________________________
Name:_________________________________
Title:________________________________
SCHEDULE A
Pledged Stock
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