Exhibit 10.3
INTEREST RATE CAP AGREEMENT
PLEDGE AND SECURITY AGREEMENT
between
RECKSON SERVICE INDUSTRIES, INC.
as Pledgor
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
as Pledgee
Dated as of November 30, 1999
INTEREST RATE CAP AGREEMENT
PLEDGE AND SECURITY AGREEMENT
INTEREST RATE CAP AGREEMENT PLEDGE AND SECURITY AGREEMENT, dated as of
November 30, 1999 (this "Pledge Agreement"), by and between RECKSON SERVICE
INDUSTRIES, INC., a Delaware corporation ("Pledgor"), as pledgor, having an
address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, and UBS AG, STAMFORD
BRANCH, as Administrative Agent, as pledgee (together with its successors and
assigns, "Pledgee"), having an address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
--------------------
WHEREAS, Pledgor, Pledgee and certain Lenders have entered into a
Credit Agreement (the "Credit Agreement") dated as of the date hereof pursuant
to which the Lenders have agreed to make Loans in the aggregate principal amount
of $60,000,000 (the "Loan");
WHEREAS, Pledgor and Warburg Dillon Read (SWAPS) LLC (the
"Counterparty") have entered into an Interest Rate Cap Agreement, dated as of
November 30, 1999 (the "Interest Rate Agreement") and certain Swap Transactions
thereunder (the "Transactions") (a copy of the Interest Rate Agreement,
including the Confirmation (as defined therein) for a Swap Transaction
thereunder, is attached hereto as Exhibit A); and
WHEREAS, Pledgor desires to pledge the Interest Rate Agreement to
Pledgee;
NOW, THEREFORE, in consideration of the foregoing and the Loan to
Pledgor and for other good and valuable consideration, the receipt of which is
hereby acknowledged, Pledgor does hereby agree with Pledgee, as follows:
1. Definitions. Unless the context otherwise requires, capitalized
terms used but not otherwise defined herein shall have the respective meanings
provided therefor in the Credit Agreement, and the following terms shall have
the following meanings:
"Code" shall mean the Uniform Commercial Code, as enacted in the State
of New York, as amended.
"Collateral" shall have the meaning assigned thereto in Section 2
hereof.
2. Grant of Security Interest, Etc. As security for the full and
punctual payment and performance of the Obligations when due (whether upon
stated maturity, by acceleration, early termination or otherwise), Pledgor
hereby pledges, assigns, hypothecates, transfers and delivers to Pledgee and
hereby grants to Pledgee a continuing first priority lien on and security
interest in, to and under all of the following (the "Collateral") whether now
owned or hereafter acquired and whether now existing or hereafter arising: all
of the right, title and interest of Pledgor in and to (i) the Interest Rate
Agreement and the Transactions; (ii) all payments due or to become due to
Pledgor in respect of the Interest Rate Agreement or the Transactions or arising
out of the Interest Rate Agreement or the Transactions, whether as contractual
obligations, damages or otherwise; and (iii) all of Pledgor's claims, rights,
powers, privileges, authority, options, security interests, liens and remedies,
if any, under or arising out of the Interest Rate Agreement or the Transactions,
in each case including all accessions and additions to, substitutions for and
replacements, products and proceeds of any of the foregoing.
3. Powers of Pledgor Prior to an Event of Default. Prior to an Event
of Default, Pledgor shall be entitled to receive and retain all payments
belonging to Pledgor pursuant to the terms of the Interest Rate Agreement and to
exercise all rights, powers and privileges of Pledgor under, and to control the
prosecution of all claims with respect to, the Interest Rate Agreement and the
Transactions and the other Collateral.
4. Representations, Warranties and Covenants. Pledgor hereby covenants
with, and represents and warrants to, Pledgee as follows:
(a) The Interest Rate Agreement is the legal, valid and binding
obligation of Pledgor, enforceable against Pledgor in accordance with its terms.
(b) Pledgor will defend Pledgee's right, title and interest in
and to the Collateral pledged by it pursuant hereto or in which it has granted a
security interest pursuant hereto against the claims and demands of all other
Persons.
(c) The Collateral is free and clear of all Liens of every kind
and nature whatsoever, except such as are created pursuant to this Pledge
Agreement and the other Loan Documents, and Pledgor has the right to pledge and
grant a security interest in the same as herein provided without the consent of
any other Person other than any such consent that has been obtained and is in
full force and effect.
(d) The Collateral has been duly and validly pledged hereunder.
All consents and approvals required for the consummation of the transactions
contemplated by this Pledge Agreement have been obtained.
(e) Pledgor will not sell, assign, or otherwise dispose of, or
mortgage, pledge or grant a security interest in, any of the Collateral or any
interest therein, and any sale, assignment, mortgage, pledge or security
interest whatsoever made in violation of this covenant shall be a nullity and of
no force and effect, and upon demand of Pledgee, shall forthwith be cancelled or
satisfied by an appropriate instrument in writing.
(f) Pledgor covenants and agrees that (i) it will not, without
the prior written consent of Pledgee, modify, amend or supplement the terms of
the Interest Rate Agreement, (ii) it will not, without the prior written consent
of Pledgee, except in accordance with the terms of the Interest Rate Agreement,
cause the termination of the Interest Rate Agreement prior to its stated
maturity date, (iii) it will not, without the prior written consent of Pledgee,
except as aforesaid, waive or release any obligation of the Counterparty (or any
successor or substitute party to the Interest Rate Agreement) under the Interest
Rate Agreement, (iv) it will not, without the prior written consent of Pledgee,
consent or agree to any act or omission to act on the part of the Counterparty
(or any successor or substitute party to the Interest Rate Agreement), which,
without such consent or agreement, would constitute a default under the Interest
Rate Agreement, (v) it will not fail to exercise promptly and diligently each
and every right which it may have under the Interest Rate Agreement, (vi) it
will not take or omit to take any action or suffer or permit any action to be
omitted or taken, the taking or omission of which would result in any right of
offset against sums payable under the Interest Rate Agreement or any defense by
the Counterparty (or any successor or substitute party to the Interest Rate
Agreement), to payment, and (vii) it will give prompt notice to Pledgee of any
notice of default given by or to Pledgor under or with respect to the Interest
Rate Agreement, together with a complete copy of such notice.
(g) The chief executive office of Pledgor is 000 Xxxxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000. Pledgor will not change such chief executive
office unless Pledgor shall provide Pledgee with written notice thereof within
thirty (30) days after such change (but in any event, within the period required
pursuant to the Code in order to maintain the priority and perfection of the
Liens created hereunder) and there shall have been taken such action, reasonably
satisfactory to Pledgee, as may be necessary to maintain the Liens in favor of
Pledgee hereunder at all times fully perfected and in full force and effect as
first priority Liens. Pledgor shall not change its name unless such Pledgor
shall have given Pledgee written notice thereof within thirty (30) days after
such change (but in any event, within the period required pursuant to the Code
in order to maintain the priority and perfection of the Liens created hereunder)
and shall have taken such action, reasonably satisfactory to Pledgee, as may be
necessary to maintain the Liens of Pledgee in the Collateral granted hereunder
at all times fully perfected and in full force and effect as first priority
Liens.
(h) Giving effect to the aforesaid grant and assignment to
Pledgee, Pledgee has, as of the date of this Pledge Agreement, and as to
Collateral acquired from time to time after such date, shall have, a valid, and
upon proper filing, perfected and continuing first priority lien upon and
security interest in the Collateral.
(i) Except for financing statements filed or to be filed in favor
of Pledgee as secured party, there are no financing statements under the Code
covering any or all of the Collateral and Pledgor will not, without the prior
written consent of Pledgee, until payment in full of all of the Obligations,
execute and file in any public office, any enforceable financing statement or
statements covering any or all of the Collateral, except financing statements
filed or to be filed in favor of Pledgee as secured party.
5. Intentionally Omitted.
6. Remedies. (i) Subject to the provisions of the Interest Rate
Agreement, if an Event of Default shall occur and then be continuing:
(a) Pledgee, without obligation to resort to any other security,
right or remedy granted under any other agreement or instrument, shall have the
right to, in addition to all rights, powers and remedies of a secured party
pursuant to the Code, at any time and from time to time, sell, resell, assign
and deliver, in its sole discretion, any or all of the Collateral (in one or
more parcels and at the same or different times) and all right, title and
interest, claim and demand therein and right of redemption thereof, at public or
private sale, for cash, upon credit or for future delivery, and in connection
therewith Pledgee may grant options and may impose reasonable conditions such as
requiring any purchaser to represent that any "securities" constituting any part
of the Collateral are being purchased for investment only, Pledgor hereby
waiving and releasing any and all equity or right of redemption to the fullest
extent permitted by the Code or applicable law. If all or any of the Collateral
is sold by Pledgee upon credit or for future delivery, Pledgee shall not be
liable for the failure of the purchaser to purchase or pay for the same and, in
the event of any such failure, Pledgee may resell such Collateral. It is
expressly agreed that Pledgee may exercise its rights with respect to less than
all of the Collateral, leaving unexercised its rights with respect to the
remainder of the Collateral, provided, however, that such partial exercise shall
in no way restrict or jeopardize Pledgee's right to exercise its rights with
respect to all or any other portion of the Collateral at a later time or times.
(b) Pledgee may exercise, either by itself or by its nominee or
designee, in the name of Pledgor, all of Pledgee's rights, powers and remedies
in respect of the Collateral, hereunder and under law.
(c) Pledgor hereby irrevocably, in the name of Pledgor or
otherwise, authorizes and empowers Pledgee and assigns and transfers unto
Pledgee, and constitutes and appoints Pledgee its true and lawful
attorney-in-fact, and as its agent, irrevocably, with full power of substitution
for Pledgor and in the name of Pledgor, provided that Pledgee shall only
exercise such powers and rights during the continuance of an Event of Default,
(i) to exercise and enforce every right, power, remedy, authority, option and
privilege of Pledgor under the Interest Rate Agreement and the Transaction,
including any power to subordinate or modify the Interest Rate Agreement or the
Transactions, or to give any notices, or to take any action resulting in such
subordination, termination, cancellation or modification, and (ii) in order to
more fully vest in Pledgee the rights and remedies provided for herein, to
exercise all of the rights, remedies and powers granted to Pledgee in this
Pledge Agreement, and Pledgor further authorizes and empowers Pledgee, as
Pledgor's attorney-in-fact, and as its agent, irrevocably, with full power of
substitution for Pledgor and in the name of Pledgor, provided that Pledgee shall
only exercise such powers and rights during the continuance of an Event of
Default, to give any authorization, to furnish any information, to make any
demands, to execute any instruments and to take any and all other action on
behalf of and in the name of Pledgor which in the judgment of Pledgee reasonably
exercised may be necessary or appropriate to be given, furnished, made,
exercised or taken under the Interest Rate Agreement and the Transactions, in
order to comply therewith, to perform the conditions thereof or to prevent or
remedy any default by Pledgor thereunder or to enforce any of the rights of
Pledgor thereunder. This power-of-attorney is irrevocable and coupled with an
interest, and any similar or dissimilar powers heretofore given by Pledgor in
respect of the Collateral to any other Person are hereby revoked.
(d) Pledgee may, without notice to, or assent by, Pledgor or any
other Person (to the extent permitted by law), but without affecting any of the
Obligations, in the name of Pledgor or in the name of Pledgee, notify the
Counterparty, or if applicable, any other party to the Interest Rate Agreement
or the Transactions, to make payment and performance directly to Pledgee; extend
the time of payment and performance of, compromise or settle for cash, credit or
otherwise, and upon any terms and conditions, any obligations owing to Pledgor,
or claims of Pledgor, under the Interest Rate Agreement or the Transactions;
file any claims, commence, maintain or discontinue any actions, suits or other
proceedings deemed by Pledgee necessary or advisable for the purpose of
collecting upon or enforcing the Interest Rate Agreement and the Transactions;
and execute any instrument and do all other things deemed necessary and proper
by Pledgee to protect and preserve and realize upon the Collateral and the other
rights contemplated hereby.
(e) Pursuant to the power-of-attorney provided for above, Pledgee
may take any action and exercise and execute any instrument which it may deem
necessary or advisable to accomplish the purposes hereof; provided, however,
that Pledgee shall not be permitted to take any action pursuant to said
power-of-attorney that would conflict with any limitation on Pledgee's rights
with respect to the Collateral. Without limiting the generality of the
foregoing, Pledgee, after the occurrence of an Event of Default, shall have the
right and power to receive, endorse and collect all checks and other orders for
the payment of money made payable to Pledgor representing: (i) any payment of
obligations owed pursuant to the Interest Rate Agreement or the Transactions,
(ii) interest accruing on any of the Collateral or (iii) any other payment or
distribution payable in respect of the Collateral or any part thereof, and for
and in the name, place and stead of Pledgor, to execute endorsements,
assignments or other instruments of conveyance or transfer in respect of any
property which is or may become a part of the Collateral hereunder.
(f) Pledgee may exercise all of the rights and remedies of a
secured party under the Code.
(g) Without limiting any other provision of this Pledge
Agreement, and without waiving or releasing Pledgor from any obligation or
default hereunder, Pledgee shall have the right, but not the obligation, to
perform any act or take any appropriate action, as it, in its reasonable
judgment, may deem necessary to cure such Event of Default or cause any term,
covenant, condition or obligation required under this Pledge Agreement, the
Interest Rate Agreement or the Transactions to be performed or observed by
Pledgor to be promptly performed or observed on behalf of Pledgor or to protect
the security of this Pledge Agreement. All amounts advanced by, or on behalf of,
Pledgee in exercising its rights under this Section 6 (including, but not
limited to, reasonable legal expenses and disbursements incurred in connection
therewith), together with interest thereon at the Default Rate (as defined in
the Note) (if such advanced amounts have not been reimbursed to Pledgee within
ten (10) days of demand on Pledgor therefor) from the date of each such advance,
shall be payable by Pledgor to Pledgee upon demand and shall be secured by this
Pledge Agreement.
7. Sales of Collateral. No demand, advertisement or notice, all of
which are hereby expressly waived by Pledgor, shall be required in connection
with any sale or other disposition of all or any part of the Collateral, except
that Pledgee shall give Pledgor at least ten (10) days' prior written notice of
the time and place of any public sale or of the time when the place where any
private sale or other disposition is to be made, which notice Pledgor hereby
agrees is reasonable, all other demands, advertisements and notices being hereby
waived. To the extent permitted by law, Pledgee shall not be obligated to make
any sale of the Collateral if it shall determine not to do so, regardless of the
fact that notice of sale may have been given, and Pledgee may without notice or
publication adjourn any public or private sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. Upon each private sale of the Collateral of a type customarily sold
in a recognized market and upon each public sale, unless prohibited by any
applicable statute which cannot be waived, Pledgee (or its nominee or designee)
may purchase any or all of the Collateral being sold, free and discharged from
any trusts, claims, equity or right of redemption of Pledgor, all of which are
hereby waived and released to the extent permitted by law, and may make payment
therefor by credit against any of the Obligations in lieu of cash or any other
obligations. In the case of all sales of the Collateral, public or private,
Pledgor will pay all reasonable costs and expenses of every kind for sale or
delivery, including brokers' and attorneys' fees and disbursements and any tax
imposed thereon. However, the proceeds of sale of Collateral shall be available
to cover such costs and expenses, and, after deducting such costs and expenses
from the proceeds of sale, Pledgee shall apply any residue to the payment of the
Obligations.
8. Public Sales Not Possible. Pledgor acknowledges that the terms of
the Interest Rate Agreement may prohibit public sales, that the Collateral may
not be of the type appropriately sold at public sales, and that such sales may
be prohibited by law. In light of these considerations, Pledgor agrees that
private sales of the Collateral shall not be deemed to have been made in a
commercially unreasonably manner by mere virtue of having been made privately.
9. Receipt of Sale Proceeds. Upon any sale of the Collateral by
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt by Pledgee or the
officer making the sale of the proceeds of such sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to Pledgee or such officer or be answerable
in any way for the misapplication or non-application thereof.
10. Events of Default. An "Event of Default" shall exist if any of the
following shall have occurred:
(a) The failure by Pledgor to comply with any of its covenants or
agreements under this Pledge Agreement, where such failure continues for ten
(10) days after Pledgee delivers written notice thereof to Pledgor. If cure of
such failure cannot be effected within such ten (10) day period despite
Pledgor's diligence in prosecuting such cure, the cure period shall be extended
to such time as may be reasonably necessary to cure such failure; provided,
however, that in no event shall such extended period exceed sixty (60) days.
(b) An Event of Default shall occur under the Credit Agreement.
11. Waivers; Modifications. No delay on the part of Pledgee in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Pledge Agreement may be discharged, changed, waived, modified or varied in
any manner unless in a writing duly signed by the parties hereto.
12. Remedies Cumulative. All rights and remedies afforded to Pledgee
by reason of this Pledge Agreement are separate and cumulative remedies, and
shall be in addition to all other rights and remedies in favor of Pledgee
existing at law or in equity or otherwise. No one of such remedies, whether or
not exercised by Pledgee, shall be deemed to exclude, limit or prejudice the
exercise of any other legal or equitable remedy or remedies available to
Pledgee.
13. Notices. Any notice, election, request or demand which by any
provision of this Pledge Agreement is required or permitted to be given or
served hereunder shall be in writing and shall be given or served in accordance
with the Credit Agreement.
14. Jurisdiction, Etc. Any legal action or proceeding with respect to
this Pledge Agreement and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Pledge Agreement, Pledgor and Pledgee each hereby accepts for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from any
thereof. Pledgor and Pledgee each irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
Pledgor or Pledgee, as the case may be, at its address for notices set forth
herein. Pledgor and Pledgee each hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Pledge
Agreement brought in the courts referred to above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of Pledgee to serve process in any
other manner permitted by law.
15. Successors and Assigns. This Pledge Agreement, and all
representations, warranties and covenants of Pledgor made herein, shall be
binding upon and inure to the benefit of Pledgor and its successors and assigns.
This Pledge Agreement shall be binding upon and shall inure to the benefit of
Pledgee and its successors and assigns.
16. Pledgee Not Bound.
(a) This Pledge Agreement shall not be construed as creating a
partnership or joint venture agreement between Pledgee and Pledgor.
(b) Pledgee shall not be obligated to perform or discharge any
obligation of Pledgor as a result of the collateral assignment hereby effected.
(c) The acceptance by Pledgee of this Pledge Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate Pledgee to appear in or defend any action or proceeding
relating to the Collateral to which it is not a party, or to take any action
hereunder or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral.
17. Acts of Pledgee. All Collateral at any time delivered to Pledgee
pursuant hereto shall be held by Pledgee subject to the terms, covenants and
conditions herein set forth. Neither Pledgee nor any of its respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by such party or parties relative to any of the Collateral,
except for such party's or parties' own gross negligence or willful misconduct
or breach of this Pledge Agreement. Pledgee shall be entitled to rely in good
faith upon any writing or other document, telegram or telephone conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or persons, and, with respect to any legal
matter, Pledgee may rely in acting or in refraining from acting upon the advice
of counsel selected by it concerning all matters hereunder. Pledgor hereby
agrees to indemnify and hold harmless Pledgee and any of its directors,
officers, agents or employees (collectively, the "Indemnified Parties") from and
against any and all claims, demands, losses, judgments and liabilities of
whatsoever kind or nature without limitation, arising out of or resulting from
this Pledge Agreement or the exercise by Pledgee of any right or remedy granted
to it hereunder, such as administering, selling or disposing of the property of
Pledgor, including, without limitation, the Collateral, and to reimburse, within
ten (10) days after demand therefor, Pledgee for all costs and expenses,
including reasonable attorneys' fees and disbursements, together with interest
on such sums at the Default Rate (as defined in the Note), from the date such
expenses were paid by Pledgee and demand for payment made to Pledgor to the date
of payment to Pledgee of such sums (other than those claims, demands, losses,
judgments, liabilities or costs and expenses resulting from Pledgee's gross
negligence or willful misconduct or breach of this Pledge Agreement). In any
action to enforce this Pledge Agreement, the provisions of this Section shall,
to the extent permitted by law, prevail notwithstanding any provision of
applicable law respecting the recovery of costs, disbursements and allowances to
the contrary.
18. Custody of Collateral; Notice of Exercise of Remedies. Pledgee
shall not have any duty as to the collection or protection of the Collateral or
any income thereon or payments with respect thereto, or as to the preservation
of any rights pertaining thereto beyond exercising reasonable care with respect
to the custody of any thereof actually in its possession. Pledgor hereby waives
notice of acceptance hereof. Pledgor hereby acknowledges and agrees that ten
(10) days notice for the scheduling of a sale of the Collateral shall be deemed
to be commercially reasonable and sufficient.
19. Severability. In case any one or more of the provisions contained
in this Pledge Agreement shall be found to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby, and this Pledge Agreement shall continue in full force and effect in
accordance with its remaining terms.
20. Further Assurances. Pledgor agrees to do such further acts and
things and to execute and deliver to Pledgee such additional conveyances,
assignments, agreements and instruments as Pledgee from time to time may
reasonably require to carry into effect this Pledge Agreement or to further
assure and confirm unto Pledgee its rights, powers and remedies hereunder.
Pledgor hereby agrees to sign and deliver to Pledgee such financing statements,
in form reasonably acceptable to Pledgee, as Pledgee may from time to time
reasonably request or as are necessary in the reasonable opinion of Pledgee to
establish and maintain a valid and perfected security interest in the Collateral
and to pay any filing fees relative thereto. Pledgor also authorizes Pledgee, to
the extent permitted by law, to file such financing statements without the
signature of Pledgor and further authorizes Pledgee, to the extent permitted by
law, to file a photographic or other reproduction of this Pledge Agreement or of
a financing statement in lieu of a financing statement.
21. Release. The security interest in the Collateral granted to
Pledgee hereunder shall be released upon satisfaction of all of the following
conditions precedent:
(a) That the principal amount of and interest on the Note and any
costs or fees relative thereto and the other Obligations, shall have been fully
paid and satisfied, and any accrued interest thereon as provided in the Loan
Documents shall have been fully paid; and
(b) That all costs, fees, expenses and other sums paid or
incurred by or on behalf of Pledgee in exercising any of its rights, powers,
options, privileges and remedies hereunder or, with respect to the Obligations,
under any of the Loan Documents, including, without limitation, reasonable
attorneys' fees and disbursements, plus any accrued interest thereon as provided
in the Loan Documents shall have been fully paid.
In connection with any release of Collateral pursuant to this
Section 21, Pledgee shall execute such documents as may be reasonably requested
by Pledgor to acknowledge such release. Any documents delivered to confirm such
release shall be prepared by counsel for Pledgee at the reasonable expense of
Pledgor and shall expressly provide that such confirmation is without recourse
and without any representation or warranty, express or implied (except that
Pledgee shall represent that such document has been and is duly authorized, that
all necessary consents to the execution and delivery thereof have been obtained
and that it has not assigned or encumbered the Collateral). If the Collateral is
released in its entirety, Pledgee, at the request and sole cost and expense of
Pledgor made at the time of any such release, will execute and deliver to
Pledgor a proper instrument or instruments acknowledging the satisfaction and
termination of this Pledge Agreement, and will duly assign and transfer, without
recourse and without any representation or warranty, express or implied (except
that Pledgee shall represent that such termination and such assignment and
transfer has been and is duly authorized, that all necessary consents to the
execution and delivery thereof have been obtained and that it has not assigned
or encumbered the Collateral), the Collateral (and deliver so much thereof as
shall be in its possession and as has not theretofore been sold or otherwise
applied or released pursuant to this Pledge Agreement, together with any monies
at the time held by Pledgee hereunder and not applied to the payment of the
Obligations to Pledgor).
22. Governing Law. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE AND WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAWS RULES OF SUCH STATE.
THIS PLEDGE AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING OF THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS
AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING THERETO.
23. Miscellaneous.
(a) In enforcing any rights hereunder Pledgee shall not be
required to resort to any particular security, right or remedy through
foreclosure or otherwise or to proceed in any particular order of priority, or
otherwise act or refrain from acting, and, to the extent permitted by law,
Pledgor hereby waives and releases any right to a marshaling of assets or a sale
in inverse order of alienation.
(b) Pledgee agrees at any time and from time to time upon not
less than ten (10) days' prior notice by Pledgor to execute, acknowledge and
deliver to Pledgor or any other party specified by Pledgor a statement in
writing certifying that this Pledge Agreement is unmodified and in full force
and effect (or if there have been modifications, that the same, as modified, is
in full force and effect and stating the modifications), and stating whether or
not to the best knowledge of Pledgee there is a continuing Default or Event of
Default, and, if so, specifying each such Default or Event of Default.
(c) Pledgor agrees at any time and from time to time upon not
less than ten (10) days' prior notice by Pledgee to execute, acknowledge and
deliver to Pledgee or any other party specified by Pledgee, a statement in
writing certifying that this Pledge Agreement is unmodified and in full force
and effect (or if there have been modifications, that the same, as modified, is
in full force and effect and stating the modifications) and stating whether or
not to the best knowledge of Pledgor there is a continuing Default or Event of
Default, and, if so, specifying each such Default or Event of Default.
(d) This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Pledge Agreement in the City of New York as of the day and year first above
written.
PLEDGOR:
--------
RECKSON SERVICE INDUSTRIES, INC., a Delaware
corporation
By: ___________________________________
Name:
Title:
PLEDGEE:
--------
UBS AG, STAMFORD BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Exhibit A
Interest Rate Agreement
