Exhibit 4.7
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of __________, ____ (this "Agreement"),
among Prime Group Realty Trust, a Maryland real estate investment trust (the
"Company"), ______________________________, as collateral agent (in such
capacity, together with its successors in such capacity, the "COLLATERAL
AGENT"), and _________________________________, as Purchase Contract Agent and
as attorney-in-fact of the Holders (as hereinafter defined) from time to time of
the Securities (as hereinafter defined) (in such capacity, together with its
successors in such capacity, the "PURCHASE CONTRACT AGENT") under the Purchase
Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "PURCHASE CONTRACT
AGREEMENT"), pursuant to which there will be issued Automatic Common Exchanged
Securities (the "SECURITIES").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) [type and description of underlying securities] ("UNDERLYING
SECURITIES") having a principal amount equal to $__________ (the "STATED
AMOUNT") and maturing on __________, ____ (the "FINAL SETTLEMENT DATE"), subject
to the pledge of such Underlying Securities created hereby.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract Agreement)
from time to time of the Securities have irrevocably authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided hereby of the Underlying Securities constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"ACT" has the meaning specified in the Purchase Contract Agreement.
"AGREEMENT" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"APPLICABLE TREASURY REGULATIONS" means Subpart O-Book-Entry
Procedure of Title 31 of the Code of Federal Regulations (31 CFR Section 306.115
et. seq.) and any other regulations of the United States Treasury Department
from time to time applicable to the transfer or pledge of book-entry U.S.
Treasury Securities.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order to
be closed.
"COLLATERAL AGENT" has the meaning specified in the first paragraph of
this instrument.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"EARLY SETTLEMENT" has the meaning specified in the Purchase Contract
Agreement.
"EARLY SETTLEMENT AMOUNT" has the meaning specified in the Purchase
Contract Agreement.
"FINAL SETTLEMENT DATE" has the meaning specified in the Recitals.
"HOLDER" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"OPINION OF COUNSEL" has the meaning specified in the Purchase
Contract Agreement.
"OUTSTANDING SECURITIES" has the meaning specified in the Purchase
Contract Agreement.
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"OUTSTANDING SECURITY CERTIFICATES" has the meaning specified in the
Purchase Contract Agreement.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLEDGE" has the meaning specified in SECTION 2.
"PLEDGED UNDERLYING SECURITIES" has the meaning specified in
SECTION 2.
"PURCHASE CONTRACT" has the meaning specified in the Purchase Contract
Agreement.
"PURCHASE CONTRACT AGENT" has the meaning specified in the first
paragraph of this instrument.
"SECURITY" has the meaning specified in the Recitals.
"SECURITY CERTIFICATE" has the meaning specified in the Purchase
Contract Agreement.
"STATED AMOUNT" has the meaning specified in the Recitals.
"TERMINATION EVENT" has the meaning specified in the Purchase Contract
Agreement.
"UNDERLYING SECURITIES" has the meaning specified in the Recitals.
Section 2. THE PLEDGE. As collateral security for the performance
when due by the Holders from time to time of the Securities of their respective
obligations under the Purchase Contracts constituting part of such Securities,
such Holders acting through the Purchase Contract Agent, as their
attorney-in-fact, hereby pledge and grant to the Collateral Agent, for the
benefit of the Company, a security interest in all of the right, title and
interest of such Holders in the Underlying Securities constituting a part of
such Securities. Prior to or concurrently with the execution and delivery of
this Agreement, the initial Holders shall (i) cause the Underlying Securities to
be delivered to the Collateral Agent [by Federal Reserve Bank-Wire to the
account of the Collateral Agent designated by it for such purpose] and
(ii) [take appropriate action so that the applicable Federal Reserve Bank
through which such Underlying Securities have been purchased will reflect such
transfer and the Pledge by appropriate entries in its records in accordance with
Applicable Treasury Regulations] [take appropriate action to reflect such
transfer and the Pledge by appropriate entries in its records]. In addition,
the execution and delivery hereof by the Purchase Contract Agent and
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the Collateral Agent shall constitute (i) the notification to the Collateral
Agent (as bailee or otherwise) of the Pledge and (ii) an acknowledgment by the
Collateral Agent (as third party in possession or otherwise) of the Pledge and
of its holding of such Underlying Securities subject to the Pledge, in each
case, for purposes of perfecting the Pledge under [Applicable Treasury
Regulations and other] applicable law, including, to the extent applicable, the
Uniform Commercial Code as adopted and in effect in any applicable jurisdiction.
The pledge provided in this SECTION 2 is herein referred to as the "PLEDGE" and
the Underlying Securities subject to the Pledge, excluding any Underlying
Securities released from the Pledge as provided in SECTION 4, are hereinafter
referred to as the "PLEDGED UNDERLYING SECURITIES." Subject to the Pledge, the
Holders from time to time of the Securities shall have full beneficial ownership
of the Underlying Securities constituting a part of such Securities.
Section 3. DISTRIBUTION OF PRINCIPAL AND INTEREST. (a) All payments
of principal of, or interest on, any Underlying Securities constituting part of
the Securities received by the Collateral Agent shall be paid by the Collateral
Agent by wire transfer in same day funds no later than ____________, [New York
City] time on the Business Day such interest payment is received by the
Collateral Agent (provided that in the event such interest payment is received
by the Collateral Agent on a day that is not a Business Day or after
____________, [New York City] time, on a Business Day, then such payment shall
be made no later than ____________, [New York City] time, on the next succeeding
Business Day) (i) in the case of (A) interest payments and (B) any principal
payments with respect to any Underlying Securities that have been released from
the Pledge pursuant to SECTION 4 hereof, to the Purchase Contract Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Underlying Securities, to the Company, in full
satisfaction of the respective obligations of the Holders of the Securities of
which such Pledged Underlying Securities are a part under the Purchase Contracts
forming a part of such Securities. All such payments received by the Purchase
Contract Agent as provided herein shall be applied by the Purchase Contract
Agent pursuant to the provisions of the Purchase Contract Agreement. If,
notwithstanding the foregoing, the Purchase Contract Agent shall receive any
payments of principal on account of any Pledged Underlying Securities, the
Purchase Contract Agent shall hold the same as trustee of an express trust for
the benefit of the Company (and promptly deliver over to the Company) for
application to the obligations of the Holders of the Securities of which such
Underlying Securities are a part under the Purchase Contracts relating to the
Securities of which such Underlying Securities are a part, and such Holders
shall acquire no right, title or interest in any such payments of principal so
received.
Section 4. RELEASE OF PLEDGED UNDERLYING SECURITIES. (a) Upon
notice to the Collateral Agent by the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall release
all Pledged Underlying Securities from the Pledge and shall transfer all such
Underlying Securities, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
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(b) Upon notice to the Collateral Agent by the Purchase Contract
Agent that one or more Holders of Securities have elected to effect Early
Settlement of their respective obligations under the Purchase Contracts forming
a part of such Securities in accordance with the terms of the Purchase Contracts
and the Purchase Contract Agreement, and that the Purchase Contract Agent has
received from such Holders, and paid to the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early Settlement
have been satisfied, then the Collateral Agent shall release from the Pledge
Pledged Underlying Securities with a principal amount equal to the product of
(i) the Stated Amount TIMES (ii) the number of such Purchase Contracts as to
which such Holders have elected to effect Early Settlement.
(c) Transfers of Underlying Securities pursuant to SECTION 4(a) or
(b) shall be by Federal Reserve Bank-Wire or in another appropriate manner,
(i) if the Collateral Agent shall have received such notification at or prior to
____________, [New York City] time, on a Business Day, then no later than
____________,[ New York City] time, on such Business Day and (ii) if the
Collateral Agent shall have received such notification on a day that is not a
Business Day or after ____________, [New York City] time, on a Business Day,
then no later than ____________, [New York City] time, on the next succeeding
Business Day.
Section 5. RIGHTS AND REMEDIES. (a) The Collateral Agent shall
have all of the rights and remedies with respect to the Pledged Underlying
Securities of a secured party under the Uniform Commercial Code as in effect in
the State of [New York] (the "CODE") (whether or not said Code is in effect in
the jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Underlying Securities as provided in SECTION 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Underlying
Securities are a part under the Purchase Contracts forming a part of such
Securities, the Collateral Agent shall have and may exercise, with reference to
such Pledged Underlying Securities and such obligations of such Holder, any and
all of the rights and remedies available to a secured party under the Code after
default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Underlying Securities.
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(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
Section 6. THE COLLATERAL AGENT. The Collateral Agent and the
Company hereby agree between themselves as follows (it being understood and
agreed that neither the Purchase Contract Agent nor any Holder of Securities
shall have any rights under this SECTION 6):
6.01. APPOINTMENT, POWERS AND IMMUNITIES. The Collateral Agent shall
act as agent for the Company hereunder with such powers as are specifically
vested in the Collateral Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. The Collateral Agent:
(a) shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against the Collateral Agent, nor shall the Collateral Agent be
bound by the provisions of any agreement by any party hereto beyond the specific
terms hereof; (b) shall not be responsible to the Company for any recitals
contained in this Agreement, or in any certificate or other document referred to
or provided for in, or received by it under, this Agreement, the Securities or
the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract Agreement
or any other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under SECTION 6.02);
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith or therewith, except for its own negligence;
and (e) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities or
other property deposited hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Underlying
Securities.
6.02. INSTRUCTIONS OF THE COMPANY. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to
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direct the taking or refraining from taking of any action authorized by this
Agreement; PROVIDED, HOWEVER, that (i) such direction shall not conflict with
the provisions of any law or of this Agreement and (ii) the Collateral Agent
shall be adequately indemnified as provided herein. Nothing in this SECTION
6.02 shall impair the right of the Collateral Agent in its discretion to take
any action or omit to take any action which it deems proper and which is not
inconsistent with such direction.
6.03. RELIANCE BY COLLATERAL AGENT. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.
6.04. RIGHTS IN OTHER CAPACITIES. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to the
Company, PROVIDED that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Underlying Securities.
6.05. NON-RELIANCE ON COLLATERAL AGENT. The Collateral Agent
shall not be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Securities of this
Agreement, the Purchase Contract Agreement, the Securities or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Purchase Contract Agent or any Holder of Securities. The
Collateral Agent shall not have any duty or responsibility to provide the
Company with any credit or other information concerning the affairs, financial
condition or business of the Purchase Contract Agent or any Holder of Securities
(or any of their affiliates) that may come into the possession of the Collateral
Agent or any of its affiliates.
6.06. COMPENSATION AND INDEMNITY. The Company agrees: (i) to pay
the Collateral Agent from time to time reasonable compensation for all services
rendered by its hereunder and (ii) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of
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or in connection with the acceptance or administration of its powers and duties
under this Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
such powers and duties.
6.07. FAILURE TO ACT. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the undersigned and/or any other person or entity with respect to any
funds or property deposited hereunder, the Collateral Agent shall be entitled,
at its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the undersigned for its failure or refusal to comply with
such conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
6.08. RESIGNATION OF COLLATERAL AGENT. Subject to the appointment
and acceptance of a successor Collateral Agent as provided below, (a) the
Collateral Agent may resign at any time by giving notice thereof to the Company
and the Purchase Contract Agent, (b) the Collateral Agent may be removed at any
time by the Company and (c) if the Collateral Agent fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than 20 days after receiving notice of such failure by the Purchase Contract
Agent and such failure shall be continuing, the Collateral Agent may be removed
by the Purchase Contract Agent. The Purchase Contract Agent shall promptly
notify the Company of any removal of the Collateral Agent pursuant to clause (c)
of the immediately preceding sentence. Upon any such resignation or removal,
the Company shall have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or such removal, then the retiring Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring
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Collateral Agent shall take all appropriate action to transfer any money and
property held by it hereunder (including the Pledged Underlying Securities) to
such successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this SECTION 6 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
6.09. RIGHT TO APPOINT AGENT OR ADVISOR. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by such agents or advisors selected in good faith.
The provisions of this SECTION 6 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
Section 7. AMENDMENT.
7.01. AMENDMENT WITHOUT CONSENT OF HOLDERS. Without the consent
of any Holders, the Company, the Collateral Agent and the Purchase Contract
Agent, at any time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent; or
(4) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other such provisions herein, or
to make any other provisions with respect to such matters or questions
arising under this Agreement, PROVIDED such action shall not adversely
affect the interests of the Holders.
7.02. AMENDMENT WITH CONSENT OF HOLDERS. With the consent of the
Holders of not less than a majority of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Agent and the Collateral Agent, the
Company, when authorized by a Board Resolution, the Agent and the Collateral
Agent may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or
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the rights of the Holders in respect of the Securities; PROVIDED, HOWEVER, that
no such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the amount or type of Underlying Securities underlying a
Security, impair the right of the Holder of any Security to receive
interest payments on the Underlying Securities or otherwise adversely
affect the Holder's rights in or to such Underlying Securities; or
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Security affected thereby pursuant to the
Purchase Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(3) reduce the percentage of Outstanding Securities the consent of
whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
7.03. EXECUTION OF AMENDMENTS. In executing any amendment
permitted by this Section, the Collateral Agent and the Purchase Contract Agent
shall be entitled to receive and (subject to SECTION 6.01, with respect to the
Collateral Agent, and SECTION 701 of the Purchase Contract Agreement, with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement.
7.04. EFFECT OF AMENDMENTS. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered under the Purchase Contract
Agreement shall be bound thereby.
7.05. REFERENCE TO AMENDMENTS. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any amendment pursuant to this Section may, and shall if required
by the Collateral Agent or the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent and the Collateral Agent as to any
matter provided for in such amendment. If the Company shall so determine, new
Security Certificates so modified as to conform, in the opinion of the
Collateral Agent, the Purchase Contract Agent and the Company, to any such
amendment may be prepared and executed by the Company and authenticated,
executed on behalf of the
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Holders and delivered by the Purchase Contract Agent in accordance with the
Purchase Contract Agreement in exchange for Outstanding Security Certificates.
Section 8. MISCELLANEOUS.
8.01. NO WAIVER. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
8.02. GOVERNING LAW. [THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company,
the Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.]
8.03. NOTICES. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
8.04. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent and the Purchase Contract Agent, and the Holders
from time to time of the Securities, by their acceptance of the same, shall be
deemed to have agreed to be bound by the provisions hereof and to have ratified
the agreements of, and the grant of the Pledge hereunder by, the Purchase
Contract Agent.
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8.05. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.06. SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
8.07. EXPENSES, ETC. The Company agrees to reimburse the
Collateral Agent for: (a) all reasonable out-of-pocket costs and expenses of
the Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the Collateral Agent
(including, without limitation, reasonable fees and expenses of counsel) in
connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this SECTION 8.07; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred to
herein and all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby.
8.08. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time of the Securities hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PRIME GROUP REALTY TRUST
By:
----------------------------
Name:
Title:
Address for Notices:
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Telecopy: ( ) ___-_____
,
----------------------------------
as Purchase Contract Agent and as
attorney-in-fact of the Holders
from time to time of the Securities
By:
----------------------------
Name:
Title:
Address for Notices:
[Address]
Attention:
,
----------------------------------
as Collateral Agent
By:
----------------------------
Name:
Title:
Address for Notices:
[Address]
Attention:
13
