EXHIBIT 99.5
SECURITIES ACCOUNT CONTROL AGREEMENT
This Securities Account Control Agreement (this "Agreement") dated
as of September 26, 2000 among Primestone Investment Partners L.P. (the
"Debtor"), P-B Finance Ltd., (the "Secured Party") and Prudential Securities
Incorporated (the "Securities Intermediary"). Capitalized terms used but not
defined herein shall have the meaning assigned in the Amended and Restated
Pledge and Security Agreement, dated as of September 26, 2000 between the Debtor
and the Secured Party (the "Security Agreement"). All references herein to the
"UCC" shall mean the Uniform Commercial Code as in effect in the State of New
York
SECTION 1. ESTABLISHMENT OF SECURITIES ACCOUNT. The Securities
Intermediary hereby confirms and agrees that:
(a) The Securities Intermediary has established account number 084
953016 in the name "Primestone Investment Partners L.P." (such account and any
successor account, the "Securities Account") and the Securities Intermediary
shall not change the name or account number of the Securities Account without
the prior written consent of the Secured Party;
(b) All securities or other property underlying any financial assets
credited to the Securities Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary and in no case will any financial asset credited to the Securities
Account be registered in the name of the Debtor, payable to the order of the
Debtor or specially indorsed to the Debtor except to the extent the foregoing
have been specially indorsed to the Securities Intermediary or in blank;
(c) All property delivered to the Securities Intermediary pursuant
to the Security Agreement will be promptly credited to the Securities Account;
and
(d) The Securities Account is an account to which financial assets
are or may be credited, and the Securities Intermediary shall, subject to the
terms of this Agreement, treat the Debtor as entitled to exercise the rights
that comprise any financial asset credited to the account.
SECTION 2. "FINANCIAL ASSETS" ELECTION. The Securities Intermediary
hereby agrees that each item of property (including, without limitation, any
investment property, financial assets, securities, instruments, general
intangibles or cash) credited to the Securities Account shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the UCC.
SECTION 3. ENTITLEMENT ORDERS. If at any time the Securities
Intermediary shall receive any order from the Secured Party directing transfer
or redemption of any financial asset relating to the Securities Account, the
Securities Intermediary shall comply with such entitlement order without further
consent by the Debtor or any other person. The Debtor shall not be entitled to
issue any orders or instructions with respect to the Securities Account, any
financial assets
credited thereto or any security entitlement with respect to any of the
foregoing.
SECTION 4. SUBORDINATION OF LIEN; WAIVER OF SET-OFF. In the event
that the Securities Intermediary has or subsequently obtains by agreement, by
operation of law or otherwise a security interest in the Securities Account or
any security entitlement credited thereto, the Securities Intermediary hereby
agrees that such security interest shall be subordinate to the security
interests of the Secured Party. The financial assets and other items deposited
to the Securities Account will not be subject to deduction, set-off, banker's
lien, or any other right in favor of any person other than the Secured Party
(except that the Securities Intermediary may set off (i) all amounts due to the
Securities Intermediary in respect of customary fees and expenses for the
routine maintenance and operation of the Securities Account and (ii) the face
amount of any checks which have been credited to the Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
SECTION 5. CHOICE OF LAW. Both this Agreement and the Securities
Account shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without regard to the conflicts of law provisions
thereof. Regardless of any provision in any other agreement, for purposes of the
UCC, New York shall be deemed to be the Securities Intermediary's jurisdiction
and the Securities Account (as well as the security entitlements related
thereto) shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without regard to the conflicts of law provisions
thereof.
SECTION 6. CONFLICT WITH OTHER AGREEMENTS.
(a) In the event of any conflict between this Agreement (or any
portion thereof) and any other agreement relating to the Securities Account now
existing or hereafter entered into, the terms of this Agreement shall prevail;
(b) No amendment or modification of this Agreement or waiver of any
right hereunder shall be binding on any party hereto unless it is in writing and
is signed by all of the parties hereto;
(c) The Securities Intermediary hereby confirms and agrees that:
(i) There are no other agreements entered into between the
Securities Intermediary and the Debtor with respect to the
Securities Account;
(ii) It has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person
relating to the Securities Account and/or any financial assets
credited thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of
such other person; and
(iii) It has not entered into, and until the termination of this
Agreement
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will not enter into, any agreement with the Debtor or the Secured
Party purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as set
forth in Section 3 hereof.
SECTION 7. ADVERSE CLAIMS. Except for the claims and interests of
the Secured Party and of the Debtor in the Securities Account, the Securities
Intermediary does not know of any claim to, or interest in, the Securities
Account or in any "financial asset" (as defined in Section 8-102(a) of the UCC)
credited thereto. If any person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Securities Account or in any financial asset
carried therein, the Securities Intermediary will promptly notify the Secured
Party and the Debtor thereof.
SECTION 8. PLEDGED SHARES HELD BY SECURED PARTY. Secured Party
acknowledges that it is holding the Pledged Shares and any proceeds thereof as
secured party on its own behalf and on behalf of Vornado PS, L.L.C. ("Vornado"),
provided, however, that Vornado agrees and acknowledges that Secured Party will
only exercise reasonable care in the custody and preservation of the Pledged
Shares and any proceeds thereof and that none of Secured Party nor any of its
officers, directors, employees or agents shall have any responsibility for any
action taken or omitted to be taken with respect to the Pledged Shares and any
proceeds thereof except for their gross negligence or wilful misconduct. At such
time as the Obligations have been indefeasibly paid in full in cash and Secured
Party is not holding the Pledged Shares and any proceeds thereof for its own
benefit, upon the request of Vornado, it shall turn over the Pledged Shares and
any proceeds thereof to Vornado.
SECTION 9. MAINTENANCE OF SECURITIES ACCOUNT. In addition to, and
not in lieu of, the obligation of the Securities Intermediary to honor
entitlement orders as agreed in Section 3 hereof, the Securities Intermediary
agrees to maintain the Securities Account as follows:
(a) Voting Rights. The Secured Party shall direct the Securities
Intermediary with respect to the voting of any financial assets credited to the
Securities Account.
(b) Permitted Investments. The Secured Party shall direct the
Securities Intermediary with respect to the selection of investments to be made;
provided, however, that the Securities Intermediary shall not honor any
instruction to purchase any investments other than investments of a type
describe on Exhibit A hereto.
(c) Statements and Confirmations. The Securities Intermediary will
promptly send copies of all statements, confirmations and other correspondence
concerning the Securities Account and/or any financial assets credited thereto
simultaneously to each of the Debtor and the Secured Party at the address for
each set forth in Section 12 of this Agreement.
(d) Tax Reporting. All items of income, gain, expense and loss
recognized in the Securities Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the name and taxpayer
identification number of the Debtor.
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SECTION 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SECURITIES INTERMEDIARY. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(a) The Securities Account has been established as set forth in
Section 1 above and the Securities Account will be maintained in the manner set
forth herein until termination of this Agreement; and
(b) This Agreement is the valid and legally binding obligations of
the Securities Intermediary.
SECTION 10. INDEMNIFICATION OF SECURITIES INTERMEDIARY. The Debtor
and the Secured Party hereby agree that (a) the Securities Intermediary is
released from any and all liabilities to the Debtor and the Secured Party
arising from the terms of this Agreement and the compliance of the Securities
Intermediary with the terms hereof, except to the extent that such liabilities
arise from the Securities Intermediary's negligence and (b) the Debtor, its
successors and assigns shall at all times indemnify and save harmless the
Securities Intermediary from and against any and all claims, actions and suits
of others arising out of the terms of this Agreement or the compliance of the
Securities Intermediary with the terms hereof, except to the extent that such
arises from the Securities Intermediary's negligence, and from and against any
and all liabilities, losses, damages, costs, charges, counsel fees and other
expenses of every nature and character arising by reason of the same, until the
termination of this Agreement.
SECTION 11. SUCCESSORS; ASSIGNMENT. The terms of this Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective corporate successors or heirs and personal representatives who
obtain such rights solely by operation of law. The Secured Party may assign its
rights hereunder only with the express written consent of the Securities
Intermediary and by sending written notice of such assignment to the Debtor.
SECTION 12. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Debtor:
The Primestone Investment Partners, L.P.
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
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Telecopier No.: (000) 000-0000
With a copy to:
The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With copies also to:
Vornado PS, L.L.C.
c/o Vornado Realty Trust
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, Xxxxxx Xxxxxx, and Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Israel, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Secured Party:
P-B Finance Ltd.
Xxx Xxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxx
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Telecopier No.: (000) 000-0000
With copies to:
Prudential Securities Incorporated
One Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
With additional copies to:
Prudential Securities Incorporated
One Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Skadden, Arps, Slate Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Securities Intermediary:
Prudential Securities Incorporated
One Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Any party may change his address for notices in the manner set forth
above.
SECTION 13. TERMINATION. The obligations of the Securities
Intermediary to the Secured Party pursuant to this Agreement shall continue in
effect until the security interests of the Secured Party in the Securities
Account have been terminated pursuant to the terms of the Security Agreement and
the Secured Party has notified the Securities Intermediary of such termination
in writing. The Secured Party agrees to provide Notice of Termination in
substantially the form of Exhibit B hereto to the Securities Intermediary upon
the request of the Debtor on or after the termination of the Secured Party's
security interests in the Securities Account pursuant to the terms of the
Security Agreement. The termination of this Agreement shall not
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terminate the Securities Account or alter the obligations of the Securities
Intermediary to the Debtor pursuant to any other agreement with respect to the
Securities Account.
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SECTION 14. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
Primestone Investment Partners, L.P
By: PG/Primestone, L.L.C., its general partner
By: The Prime Group, Inc., its Administrative Member
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
P-B Finance Ltd.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
Prudential Securities Incorporated
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Exhibit A
Permitted Investments
Money market funds
Exhibit B
[Letterhead of P-B Finance Ltd.]
[Date]
Prudential Securities Incorporated
One Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Re: Termination of Control Agreement
You are hereby notified that the Securities Account Control
Agreement between you, Primestone Investment Partners L.P. and the undersigned
(a copy of which is attached) is terminated and you have no further obligations
to the undersigned pursuant to such Agreement. Notwithstanding any previous
instructions to you, you are hereby instructed to accept all future directions
with respect to Securities Account number 084 953016 from Primestone Investment
Partners L.P. This notice terminates any obligations you may have to the
undersigned with respect to such account, however nothing contained in this
notice shall alter any obligations which you may otherwise owe to Primestone
Investment Partners L.P. pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to Primestone Investment Partners L.P.
Very truly yours,
P-B Finance Ltd.
By:
----------------------
Name:
Title:
cc: Primestone Investment Partners L.P.
