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AMENDED AND RESTATED PLEDGE AGREEMENT

Security Agreement

AMENDED AND RESTATED PLEDGE AGREEMENT | Document Parties: PRIME GROUP REALTY TRUST | CITICORP USA, INC | PGRT ESH, INC You are currently viewing:
This Security Agreement involves

PRIME GROUP REALTY TRUST | CITICORP USA, INC | PGRT ESH, INC

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Title: AMENDED AND RESTATED PLEDGE AGREEMENT
Governing Law: Delaware     Date: 3/27/2009
Industry: Real Estate Operations     Sector: Services

AMENDED AND RESTATED PLEDGE AGREEMENT, Parties: prime group realty trust , citicorp usa  inc , pgrt esh  inc
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EXHIBIT 10.4

AMENDED AND RESTATED PLEDGE AGREEMENT

THIS AMENDED AND RESTATED PLEDGE AGREEMENT , dated as of June 6, 2008 (as so amended and restated and as further amended, restated, replaced, supplemented or otherwise modified from time to time, this “ Agreement ”), made by PGRT ESH, INC., a Delaware corporation (the “ Pledgor ”), in favor of CITICORP USA, INC., a Delaware corporation (the “ Lender ”).

W I T N E S S E T H :

WHEREAS , pursuant to a Loan Agreement dated as of June 29, 2007 (the “ 2007 Loan Agreement ”) between the Pledgor and the Lender, the Pledgor borrowed $120,000,000 from the Lender, to be repaid in full on June 10, 2008 (the “ Original Maturity Date ”);

WHEREAS , the Pledgor has requested the Lender to extend the Original Maturity Date for approximately one year, which the Lender has agreed to do, subject to amending certain other terms of the 2007 Loan Agreement and the Pledgor’s meeting certain conditions;

WHEREAS , in furtherance of the foregoing, the Pledgor and the Lender have entered into an Amended and Restated Loan Agreement dated as of June 6, 2008 (as so amended and restated and as further amended, restated, replaced, supplemented or otherwise modified from time to time, the “ Loan Agreement ”; capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement) amending and restating in its entirety the 2007 Loan Agreement;

WHEREAS , in connection with the 2007 Loan Agreement, the Pledgor pledged certain collateral to the Lender pursuant to the Pledge Agreement dated as of November 7, 2007 (the “ Original Pledge Agreement ”) between the Pledgor and the Lender;

WHEREAS , it is a condition precedent to the effectiveness of the Loan Agreement that the Pledgor shall have amended the Original Pledge Agreement;

WHEREAS , in furtherance of the foregoing, the Pledgor and the Lender agree to amend and restate in its entirety the Original Pledge Agreement;

 

 


 

NOW, THEREFORE, in consideration of the promises contained herein and the Lender’s entering into the Loan Agreement, the Pledgor hereby agrees as follows:

SECTION 1. Pledge . The Pledgor hereby continues and reaffirms in its entirety its original pledge to the Lender of, and its original grant to the Lender of a lien on and security interest in, and, for further certainty, hereby pledges to the Lender and grants to the Lender a lien on and security interest in, the following, whether now owned or at any time hereafter acquired by the Pledgor (collectively, the “ Collateral ”):

(a) all of the Series A-2 Units and Common A-2 Units (collectively, the “ Pledged Interests ”) of BHAC Capital IV, L.L.C., a Delaware limited liability company (the “ Issuer ”), and the certificates representing the Pledged Interests, and all distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Interests, and all additional Units (as defined in the Second Amended and Restated Limited Liability Company Agreement of the Issuer dated as of June 29, 2007 (the “ LLC Agreement ”)) of or in the Issuer from time to time acquired in any manner by the Pledgor, and the certificates, if any, representing such additional Units, and all distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such additional Units; and

(b) all proceeds of any of the foregoing (including, without limitation, proceeds constituting any property of the types described above).

The Pledgor delivered to the Lender each of the certificates representing the Pledged Interests, accompanied by an undated transfer power with respect to each such certificate, executed in blank by the Pledgor and an acknowledgment (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “ Acknowledgment ”) of the Chief Financial Officer of the Issuer confirming, among other things, that the Lender’s security interest in the Pledged Interests has been registered in the books and records of the Issuer, that such security interest does not violate any term or provision of the LLC Agreement or any of the Issuer’s other organizational documents and that the Issuer will follow the Lender’s instructions with respect to any distributions payable on account of, or any other proceeds of, the Pledged Interests.

SECTION 2. Security for Obligations . The pledge of, and the grant of a lien on and security interest in, the Collateral hereunder secures the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all of the Obligations.

SECTION 3. Representations and Warranties . The Pledgor represents and warrants as follows:

(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and is in good standing as a foreign corporation in all other states where such qualification is required (except where the failure to be so qualified could not reasonably be expected to have a material adverse effect on the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Pledgor), and has all necessary corporate power and authority to enter into this Agreement.

(b) It has taken all requisite corporate action through its shareholders or directors to authorize the execution and delivery of, and the performance of its obligations under, this Agreement, and this Agreement constitutes the legal, valid and binding obligation of the Pledgor enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally.

 

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(c) It is the legal and beneficial owner of record of the Collateral free and clear of any Lien, except for the Lien created by this Agreement. On the date hereof, no effective financing statement or other instrument similar in effect covering all or any part of the Collateral is on file in any recording office.

(d) The pledge of the Collateral pursuant to this Agreement, together with the delivery to the Lender of the certificate(s) evidencing the Pledged Interests and the related transfer powers, the execution and delivery of the Acknowledgment and the filing of the UCC Financing Statement describing the Pledged Interests as collateral, creates a valid and perfected first priority lien on and security interest in the Collateral, securing the payment and performance of the Obligations, and all filing and other actions necessary or desirable to perfect and protect such lien and security interest have been duly made or taken.

(e) No authorization, approval, or other action by, and no notice to or filing with, any Person is required for (i) the pledge by the Pledgor of the Collateral pursuant to this Agreement, the grant by the Pledgor of the lien and security interest granted hereby or the execution, delivery or performance of this Agreement by the Pledgor, (ii) the perfection of the lien and security interest granted in this Agreement or (iii) the exercise by the Lender of the rights or remedies provided for in this Agreement.

(f) The execution, delivery and performance by the Pledgor of this Agreement, the granting of the lien and security interest hereunder and the exercise by the Lender of any or all of the remedies hereunder do not and will not violate, contravene or constitute a default under any contractual obligation to which the Pledgor or the Issuer is a party.

(g) The Pledged Interests constitute all of the issued and outstanding Series A-2 Units and Common A-2 Units of the Issuer.

(h) All of the Pledged Interests are duly authorized, fully paid and nonassessable. All of the Pledged Interests are represented by certificates.

(i) The exact correct name of the Pledgor and the jurisdiction of organization of the Pledgor are set forth in the introductory paragraph of this Agreement.

(j) The pledge effected and evidenced hereby does not constitute a sale for tax purposes.

(k) A true and complete organization chart in reasonable detail showing David Lichtenstein’s interest, direct and indirect, in the Issuer is attached hereto as Schedule 1, and a list in reasonable detail of all claims and interests, other than those held, directly or indirectly, by David Lichtenstein, entitled to payment or distributions in respect of the Issuer or the Collateral is attached hereto as Schedule 2.

SECTION 4. Further Assurances; Covenants .

(a) The Pledgor covenants and agrees that at any time and from time to time, at the expense of the Pledgor, the Pledgor will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that the Lender may request, in order to perfect and protect any Liens granted or purported to be granted hereby or to enable the Lender to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, the Pledgor will execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Lender may request, in order to perfect and preserve the Liens granted or purported to be granted hereby.

 

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(b) The Pledgor hereby authorizes the Lender to file one or more financing or continuation statements, and amendments thereto, relative to all or any part of the Collateral. A carbon, photographic or other reproduction of this Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.

(c) The Pledgor covenants and agrees that the Pledgor will not (i) sell, convey, Transfer, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, Collateral Entity Properties or Collateral (as defined in the Loan Agreement) or any other property of the Pledgor relating thereto, (ii) create or suffer to exist any Lien upon or with respect to any of the Collateral, Collateral Entity Properties or Collateral (as defined in the Loan Agreement) or any other property of the Pledgor relating thereto, except for the lien and security interest created by this Agreement, (iii) vote to enable, or take any other action to permit, the Issuer to issue any Units or other equity interests in the Issuer or to issue any other securities convertible into or granting the right to purchase or exchange for any Units or other equity interests in the Issuer, in each case which have a preference over the Pledged Interests in right of distribution or in liquidation, or (iv) enter into any agreement or undertaking restricting the right or ability of the Lender to sell, assign or transfer any of the Collateral. Notwithstanding the provisions of this Section 4(c), a transfer to a Restricted Party shall not be deemed to be a Transfer so long as such transfer does not relate to any Collateral, Collateral Entity Properties or Collateral (as defined in the Loan Agreement) without the Lender’s prior written consent and does not impair or limit the first priority Lien in favor of the Lender pursuant to the terms hereof.

(d) The Pledgor covenants that, in furtherance of allowing the Lender to determine from time to time the Collateral Value of the Specified Equity Interests represented by the Collateral and the value of other Collateral (as defined in the Loan Agreement), the Pledgor will (a) permit periodic inspections and appraisals of the Collateral, Collateral Entity Properties, Collateral (as defined in the Loan Agreement) and any other property of the Pledgor by the Lender or its authorized agents and (b) deliver to the Lender, not later than forty-five days after the end of each calendar quarter, such information as to the Issuer, including, without limitation, information as to the real properties owned, directly or indirectly, by the Issuer, the extent and nature of David Lichtenstein’s direct or indirect ownership thereof, and the Appraised Value, Cap Rate Value and EBITDA, as applicable, in respect thereof, as the Lender may reasonably request. Such information shall include (i) a detailed description of the distributions, cash, instruments and other property, if any, received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Interest as well as information as to amounts distributable by the Issuer but not actually distributed, (ii) detailed financial statements as to the Issuer, including, without limitation, a balance sheet, income statement, cash flow statement and equity owner’s account statement, with such other information as the Lender may request in its discretion, and (iii) a detailed description of any changes to Schedule 1 or Schedule 2 since the date hereof.

 

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SECTION 5. Distributions; Voting; Compensation; Etc .

(a) So long as no Default or Event of Default shall have occurred and be continuing, the Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement and in a manner which does not impair any of the Collateral and to receive and retain any and all distributions paid in respect of the Collateral; provided , however , that any and all:

 

(i)

 

distributions paid or payable other than in cash in respect of, and instruments and other


 
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