EXHIBIT 4.7
FORM OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of [_______________ ___, _____] (this
"Agreement"), among Forest City Enterprises, Inc., an Ohio corporation (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 Shares (as defined in the Purchase Contract
Agreement, and as used herein, 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 "Stock Purchase 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:
(a) 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
(b) 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 (S) 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.
"Code" has the meaning specified in Section 5(a) hereof.
"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.
"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 Units" has the meaning specified in the Purchase Contract
Agreement.
"Outstanding Unit 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 hereof.
"Pledged Securities" has the meaning specified in Section 2 hereof.
"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.
"Stated Amount" has the meaning specified in the Recitals.
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"Stock Purchase Date" 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.
"Unit Certificate" has the meaning specified in the Purchase Contract
Agreement.
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 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 hereof, are hereinafter referred to as the "Pledged
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.
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 Securities, to the Company, in full
satisfaction of the respective obligations of the Holders
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of the Securities of which such Pledged 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 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 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 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.
(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 the Pledged 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 4(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 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
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account of principal payments of any Pledged Securities as provided in Section 3
hereof in satisfaction of the obligations of the Holder of the Securities of
which such Pledged 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 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 Securities.
(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):
(a) 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: (i) 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; (ii) 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; (iii) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6(b) hereof);
(iv) 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 (v) 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 Securities.
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(b) 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 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(b) 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.
(c) 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.
(d) 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 Securities.
(e) 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.
(f) 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 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.
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(g) 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.
(h) Resignation of Collateral Agent. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (i) the Collateral
Agent may resign at any time by giving notice thereof to the Company and the
Purchase Contract Agent, (ii) the Collateral Agent may be removed at any time by
the Company and (iii) 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
(iii) 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 Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged 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.
(i) 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.
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(j) Survival. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent.
Section 7. Amendment.
(a) 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:
(i) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company; or
(ii) 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
(iii) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent; or
(iv) 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.
(b) Amendment with Consent of Holders. With the consent of the Holders
of not less than a majority of the Outstanding Units, 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 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 Unit affected thereby,
(i) 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
(ii) otherwise effect any action that would require the consent of the
Holder of each Outstanding Unit affected thereby pursuant to the Purchase
Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(iii)reduce the percentage of Outstanding Units 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.
(c) 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(a) hereof, with respect to the
Collateral Agent, and Section 7(a) of the Purchase Contract
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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.
(d) 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 Unit Certificates theretofore or thereafter authenticated, executed on behalf
of the Holders and delivered under the Purchase Contract Agreement shall be
bound thereby.
(e) Reference to Amendments. Unit 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 Unit 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 Holders and delivered by
the Purchase Contract Agent in accordance with the Purchase Contract Agreement
in exchange for Outstanding Unit Certificates.
Section 8. Miscellaneous.
(a) 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.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(c) 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.
(d) 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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(e) 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.
(f) 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.
(g) 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(g);
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.
(h) 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:
(i) any lack of validity or enforceability of any provision of the
Purchase Contracts or the Securities or any other agreement or instrument
relating thereto;
(ii) 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
(iii) 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.
FOREST CITY ENTERPRISES, INC.
By:
----------------------------------------------
Name:
Title:
Address for Notices:
0000 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention:
Telecopy: ( ) ___-____
-------------------------------------------------
as Purchase Contract Agent and as
attorney-in-fact of the Holders from
time to time of the Units
By:
----------------------------------------------
Name:
Title:
Address for Notices:
[address]
Attention:
Telecopy: ( ) ___-____
-------------------------------------------------
as Collateral Agent
By:
----------------------------------------------
Name:
Title:
Address for Notices:
[address]
Attention:
Telecopy: ( ) ___-____
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