Pledge And Security Agreement

Ownership Interest Pledge and Security Agreement (S)


Exhibit 10.21

 

OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (S)

 

[NMLP PLEDGE: FINCO, CAPITAL AND GP]

 

OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (this “Pledge Agreement”), dated as of August 11, 2005, by and between THE NEWKIRK MASTER LIMITED PARTNERSHIP, a Delaware limited partnership (“NMLP”), and KEYBANK NATIONAL ASSOCIATION, a national banking association having an address at 101 Federal Street, Boston, Massachusetts 02110, as administrative agent (KeyBank National Association, in such capacity as administrative agent, hereinafter referred to as “Administrative Agent”) for a syndicate of Lenders (singly and collectively, the “Lenders”) as specifically provided in the Loan Agreement (as defined below).

 

W I T N E S S E T H

 

WHEREAS, pursuant to that certain Master Loan Agreement dated as of August 11, 2005 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) entered into by and among (i) NMLP, (ii) T-Two Partners, L.P., a Delaware limited partnership (“T-Two”), (iii) the Administrative Agent, (iv) Bank of America, N.A., as “Deposit Account Co-Agent” (Bank of America, N.A., in such capacity as Deposit Account Co-Agent, hereinafter referred to as “Deposit Account Co-Agent”), and (v) the Lenders, the Administrative Agent and the Lenders have agreed to make a loan to NMLP in the aggregate principal amount of $                          (the “NMLP Loan”) and a loan to T-Two in the aggregate principal amount of $                        (the “T-Two Loan”) (the NMLP Loan and the T-Two Loan sometimes are referred to herein, collectively, as the “Loans”), upon the terms and subject to the conditions set forth therein.

 

WHEREAS, NMLP has substantial financial dealings with T-Two and is affiliated with T-Two (either by ownership, contractual relationship, employment or other meaningful business relationship).

 

WHEREAS, pursuant to the terms of the Call Option Agreement, NMLP has executed and delivered a Guaranty of even date herewith, guaranteeing the payment and performance of all T-Two Obligations arising under or pursuant to the Loan Agreement (the “Guaranty”).

 

WHEREAS, NMLP owns (i) 100.0% of the membership interests in Newkirk GP, LLC, a Delaware limited liability company (“Newkirk GP”), (ii) 100.0% of the membership interests in Newkirk Finco LLC, a Delaware limited liability company (“Newkirk Finco”), and (iii) 50.01% of the membership interests in Newkirk Capital LLC, a Delaware limited liability company (“Newkirk Capital”) (“Newkirk GP”, “Newkirk Finco” and “Newkirk Capital” are hereinafter collectively referred to as the “NMLP Subsidiaries”).

 

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WHEREAS, as a condition to extending the Loans, the Administrative Agent and the Lenders have required NMLP to execute and deliver this Pledge Agreement and certain other NMLP Security Documents to secure NMLP’s obligations under the Guaranty and the Loan Agreement.

 

NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and the Lenders to make the Loans under the Loan Agreement, NMLP hereby agrees with the Administrative Agent and the Lenders as follows:

 

1.             Defined Terms.  Unless otherwise defined herein, terms which are defined in the Loan Agreement and used herein are so used as so defined, and the following terms shall have the following meanings:

 

Administrative Agent”:  as defined in the first paragraph of this Pledge Agreement.

 

Cash Management Agreement”:  shall mean that certain Cash Management Agreement, dated as of August 11, 2005, among NMLP, various subsidiaries of NMLP, the Administrative Agent and the Deposit Account Co-Agent, as amended, supplemented or otherwise modified from time to time.

 

Collateral”:  means the Pledged Interests and all Proceeds thereof.

 

Consents”:  shall mean those certain Consents from the NMLP Subsidiaries referenced in Section 4 of this Pledge Agreement.

 

Deposit Account Co-Agent”:  as defined in the recitals of this Pledge Agreement.

 

Guaranty”:  as defined in the recitals of this Pledge Agreement.

 

Lenders”:  as defined in the first paragraph of this Pledge Agreement.

 

Loan Agreement”:  as defined in the recitals of this Pledge Agreement.

 

Loans”:  as defined in the recitals of this Pledge Agreement.

 

NMLP”:  as defined in the first paragraph of this Pledge Agreement.

 

NMLP Loan”:  as defined in the recitals of this Pledge Agreement.

 

NMLP Obligations”:  means all indebtedness, obligations and liabilities of NMLP to the Administrative Agent and/or any of the Lenders, whether now existing or hereafter arising, direct or indirect, absolute or contingent, under any one or more of: (i) this Pledge Agreement; (ii) the Loan Agreement, NMLP Note or any other NMLP Loan

 

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Document; (iii) the Guaranty; and (iv) each of the same as hereafter modified, amended, extended or replaced, including, without limitation, the NMLP Obligations (as defined in the Loan Agreement) and the T-Two Guaranteed Obligations (as defined in the Guaranty).

 

NMLP Subsidiaries”:  as defined in the recitals of this Pledge Agreement.

 

Pledge Agreement”:  means this Ownership Interest Pledge and Security Agreement, as amended, supplemented or otherwise modified from time to time.

 

Pledged Interests”:  means all right, title and interest of NMLP, whether now owned or hereafter acquired, in and to the NMLP Subsidiaries, as listed on Schedule 1 hereto, together with all interests, certificates, options or rights of any nature whatsoever which may be issued or granted to NMLP by the NMLP Subsidiaries in respect of the foregoing.

 

Proceeds”:  means (i) NMLP’s right, title and interest in and to all Distributions, monies, fees, payments, compensations and proceeds now or hereafter payable in respect of the Pledged Interests, whether payable as profits, Distributions, asset Distributions, repayment of loans or capital or otherwise and including all “proceeds” as such term is defined in Section 9-102(64) of the UCC; (ii) all books, records, electronically stored data and information relating to the Pledged Interests and all rights of access to such books, records and information; (iii) all contract rights, general intangibles, claims, powers, privileges, benefits and remedies of NMLP relating to the foregoing; (iv) all additions to the Pledged Interests, all substitutions therefor and all replacements thereof; and (v) all cash or non-cash proceeds of any of the foregoing.

 

Trigger Event”:  as defined in Section 2(b) of this Pledge Agreement.

 

T-Two”:  as defined in the recitals of this Pledge Agreement.

 

T-Two Loan”:  as defined in the recitals of this Pledge Agreement.

 

UCC”:  means the Uniform Commercial Code from time to time in effect in The Commonwealth of Massachusetts; provided, that if by mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest granted hereunder in the Collateral is governed by the Uniform Commercial Code of a jurisdiction other than Massachusetts, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of provisions hereof relating to such perfection or effect of perfection or non-perfection.

 

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2.             Pledge; Grant of Security Interest.

 

(a)           Subject to the terms and provisions of Section 2(b) below, as security for the full and punctual payment and performance of the NMLP Obligations when due and payable (whether upon stated maturity, by acceleration or otherwise), NMLP hereby transfers, assigns, grants, bargains, sells, conveys, hypothecates, pledges, sets over, endorses over and delivers to the Administrative Agent all the Pledged Interests, and NMLP hereby grants, pledges, hypothecates, transfers and assigns to the Administrative Agent a continuing lien on and security interest in all of the Collateral.

 

(b)           The security interest granted in Section 2(a) shall not become effective until the earlier to occur of the following events, each as reasonably determined by the Administrative Agent: (i) the repayment in full of the Integrated Obligations (as defined in the Loan Agreement); (ii) the release of the lien held by the Integrated Group (as defined in the Loan Agreement) of any of the Collateral, subject to the provisions of Section 2(d) below; or (iii) the acceleration of the NMLP Obligations as a result of an Event of Default under the Loan Agreement or any other NMLP Loan Document, and the election by the Administrative Agent to vest and perfect the security interest granted under Section 2(a), as evidenced by written notice to NMLP (each, a “Trigger Event”).  Immediately upon the occurrence of a Trigger Event, and without the need for further action by NMLP or the Administrative Agent and/or the Lenders, the security interest granted under Section 2(a) and all of the terms and provisions of this Pledge Agreement automatically shall become enforceable against NMLP in accordance with the terms of this Pledge Agreement.

 

(c)           Notwithstanding Section 2(b) above, the following terms, covenants and conditions contained in this Pledge Agreement shall be in full force and effect as of the date hereof: Sections 5(a)-5(e), 6(e), 6(g), 7(a), 7(b), 7(c)(ii) and (iii), 8(c), 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.

 

(d)           If the Integrated Group releases a portion of the Collateral, thereby causing a Trigger Event under Section 2(b)(ii) above, the security interest granted under Section 2(a) and all of the terms and provisions of this Pledge Agreement applicable thereto automatically shall become enforceable against NMLP in accordance with the terms of this Pledge Agreement as to that portion of the Collateral released.

 

3.             Delivery of Certificates, Instruments, Etc.  NMLP shall deliver to the Administrative Agent:

 

(a)           all original certificates, instruments and other documents, if any, evidencing or representing the Pledged Interests as soon as practicable after the occurrence of a Trigger Event; and

 

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(b)           the original certificates, instruments or other documents, if any, evidencing or representing all other Collateral (except for collateral which this Pledge Agreement specifically permits NMLP to retain) within five (5) days after NMLP’s receipt thereof.

 

4.             Powers and Transfer Instruments.  Upon the occurrence of a Trigger Event, NMLP shall deliver a duly executed Consent from each NMLP Subsidiary.

 

5.             Representations and Warranties.  NMLP represents and warrants that:

 

(a)           Except for any consents as may be required in connection with any disposition of any portion of the Collateral by laws affecting the offering and sale of securities generally or as otherwise contemplated by the Loan Agreement, no consent of any other person or entity (including, without limitation, any owner or creditor of NMLP), and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing (other than the filing of financing statements under the UCC in order to perfect a security interest in that portion of the Collateral in which a security interest is perfected by filing) or declaration with any governmental instrumentality is required in connection with (i) the execution, delivery, performance, validity or enforceability of this Pledge Agreement, (ii) the perfection or maintenance of the security interest created hereby (including the first priority nature of such security interest) or (iii) the exercise by the Administrative Agent of any rights provided for in this Pledge Agreement;

 

(b)           The Pledged Interests constitute all of the ownership interests owned by NMLP in each of the NMLP Subsidiaries;

 

(c)           All the Pledged Interests have been duly and validly issued and are fully paid.  No certificate or other instrument has been issued at any time to evidence the Pledged Interests that has not been delivered to the Administrative Agent pursuant to Section 3 of this Pledge Agreement.  None of the limited partnership interests or the membership interests comprising the Collateral are dealt in or traded on securities exchanges or in securities markets, and none by its terms expressly provides that it is a security governed by Article 8 of the UCC or that it is an investment company security, and none is held in a securities account (as defined in Section 8-501 of the UCC);

 

(d)           NMLP is the sole holder of record and sole beneficial owner of, and has good and valid title to, the Pledged Interests, free of any and all liens or options in favor of, or claims of, any other Person, except the liens in existence on the date hereof and described on Schedule 1 hereto (“Permitted Liens”) and the lien created in favor of the Administrative Agent by this Pledge Agreement;

 

(e)           Upon the filing of the Form UCC-1 Statements referred to in Section 13, the lien granted pursuant to this Pledge Agreement will constitute a valid, perfected lien

 

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on such Pledged Interests and related Collateral, subject only to Permitted Liens, with respect to that portion of the Collateral in which a security interest is perfected by the filing of a financing statement, enforceable as such against all creditors of NMLP and any Persons purporting to purchase any Pledged Interests and related Collateral from NMLP; and

 

(f)            There are no restrictions on the transfer of the Collateral to the Administrative Agent hereunder, or with respect to any subsequent transfer thereof or realization thereupon by the Administrative Agent and/or the Lenders (or, if there are any such restrictions, such transfer restrictions have been duly waived by all required parties), and, as set forth in the Consents, NMLP has obtained all consents needed in connection with any such transfer or subsequent transfer, subject to matters resulting from the operation of law.

 

6.             Covenants.   NMLP covenants and agrees with the Administrative Agent and the Lenders that from and after the date of this Pledge Agreement until this Pledge Agreement shall be terminated:

 

(a)           If NMLP shall, as a result of its ownership of the Pledged Interests, become entitled to receive or shall receive (i) any limited liability company certificate (including, without limitation, any certificate representing a dividend or a Distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights, (ii) any stock, (iii) any limited partnership interests (including, without limitation, any certificate representing a dividend or a Distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights, or (iv) any property other than cash, whether in addition to, in substitution of, as a conversion of, or in exchange for any of the Pledged Interests, or otherwise in respect thereof, NMLP shall accept the same as the Administrative Agent’s agent, hold the same in trust for the Administrative Agent and deliver the same forthwith to the Administrative Agent in the exact form received, duly endorsed by NMLP to the Administrative Agent, if required, together with an undated assignment or power covering such certificate, duly executed in blank and with, if the Administrative Agent so requests, signature guaranteed, to be held by the Administrative Agent hereunder as additional security for the NMLP Obligations.

 

(b)           Without the prior written consent of the Administrative Agent, NMLP will not, directly or indirectly (i) vote to enable, or take any other action to permit, the issuer(s) of the Pledged Interests to issue any interests or shares, as applicable, or to issue any other securities convertible into or granting the right to purchase or exchange for any interests of the issuer(s) of the Pledged Interests, or (ii) if prohibited by the Loan Agreement, sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to, the Collateral, or (iii) create, incur or permit to exist any lien or option in favor of, or any claim of any person or entity with respect to, any of the Collateral, or any

 

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interest therein, except for the lien provided for by this Pledge Agreement and liens permitted under the Loan Agreement.  NMLP will defend the right, title and interest of the Administrative Agent in and to the Collateral against the claims and demands of all Persons whomsoever.

 

(c)           At any time and from time to time, upon the written request of the Administrative Agent, and at the sole expense of NMLP, NMLP will promptly and duly execute and deliver such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purposes of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted.

 

(d)           If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to the Administrative Agent, duly endorsed in a manner satisfactory to the Administrative Agent, to be held as Collateral pursuant to this Pledge Agreement.

 

(e)           NMLP agrees to pay, and to indemnify and save the Administrative Agent harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes (other than income taxes on the income of the Administrative Agent or any of the Lenders) which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Pledge Agreement.

 

(f)            NMLP shall, upon request from the Administrative Agent, from time to time, cause the issuer of any securities comprising any of the Collateral which may be, but have not been, certificated, to issue certificates with respect thereto in the name of NMLP or, if so requested by the Administrative Agent, in the name of the Administrative Agent as secured party.

 

(g)           Unless otherwise required pursuant to the Integrated Obligations, NMLP shall not exercise any right with respect to the Collateral which would dilute or adversely affect the Administrative Agent’s rights in the Collateral.

 

7.             Cash Dividends; Distributions; Voting Rights.

 

(a)           Unless an Event of Default shall have occurred and be continuing, NMLP shall be permitted to exercise all voting rights with respect to the Pledged Interests; provided, however, that, unless otherwise required pursuant to the Integrated Obligations, NMLP shall not, without the prior written consent of the Administrative Agent in each instance, which consent shall not be unreasonably withheld, vote the Collateral in favor of, or consent to, any resolution or action which does or might:

 

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(i)                                     impose any restrictions upon the sale, transfer or disposition of the Collateral other than restrictions, if any, the application of which is waived to the full satisfaction of the Administrative Agent as to the Collateral; or

 

(ii)                                  result in the issuance of any additional interest in the NMLP Subsidiaries, or of any class of security, which issuance might adversely affect the value of the Collateral; or

 

(iii)                               vest additional powers, privileges, preferences or priorities to any other class of interest in the NMLP Subsidiaries to the detriment of the value of, or rights accruing to, the Collateral; or

 

(iv)                              except as permitted in the Loan Agreement, permit the NMLP Subsidiaries to sell, transfer, assign, pledge, mortgage or otherwise encumber any property owned by any of them, or to incur any new indebtedness in respect of such property, unless the Administrative Agent has given its prior written consent.

 

(b)           Subject to the terms and provisions hereof relating to the rights and remedies of the Administrative Agent after the occurrence and during the continuance of an Event of Default, and in accordance with the terms and conditions of the Loan Agreement (including, without limitation, Sections 7.1.14, 7.1.15 and 7.1.16 thereof), the Consents, the Payment Direction Letters and the Cash Management Agreement (including, without limitation, Section 2.2 thereof), NMLP agrees that, unless and until NMLP is otherwise required pursuant to the Integrated Obligations, any and all cash dividends or Distributions or any other payments received by NMLP in respect of the Collateral shall be directly deposited in a designated Depository Account in the name of NMLP.

 

(c)           NMLP agrees that, unless and until NMLP is otherwise required pursuant to the Integrated Obligations, to the extent that NMLP receives directly any cash dividends or Distributions or any other payments which are required to be deposited in a designated Depository Account as provided for in the Loan Agreement, the Consents and/or the Cash Management Agreement, then (i) such amounts shall be deemed to be Collateral and shall be held in trust for the benefit of the Administrative Agent, (ii) such amounts shall not be commingled with any other funds or property of NMLP, and (iii) NMLP shall deposit such amounts in the applicable Depository Account within three Business Days of receipt.

 

8.             Rights of Administrative Agent.

 

(a)           If an Event of Default shall have occurred and be continuing, the Administrative Agent shall have the right to receive any and all cash dividends or

 

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Distributions or any other payments paid in respect of the Collateral and make application thereof to the NMLP Obligations, in such order as the Administrative Agent, in its sole discretion, may elect.  In connection therewith, if an Event of Default shall have occurred and be continuing, the Administrative Agent shall have the right to direct the issuer(s) of the Pledged Interests to pay all such cash dividends or Distributions or any other payments directly to the Administrative Agent or as otherwise directed by the Administrative Agent.

 

(b)           If an Event of Default shall have occurred and be continuing, then all such Pledged Interests at the Administrative Agent’s option shall be registered in the name of the Administrative Agent or its nominee, and the Administrative Agent or its nominee may thereafter exercise (x) all voting and other rights pertaining to such Pledged Interests and (y) any and all rights of conversion, exchange, subscription and any other rights, privileges or options pertaining to such Pledged Interests as if the Administrative Agent were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of the Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the organizational structure of NMLP, or upon the exercise by NMLP or the Administrative Agent of any right, privilege or option pertaining to such Pledged Interests, and in connection therewith, the right to deposit and deliver any and all of the Pledged Interests with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as it may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

 

(c)           The rights of the Administrative Agent hereunder shall not be conditioned or contingent upon the pursuit by the Administrative Agent of any right or remedy against NMLP or against any other person or entity which may be or become liable in respect of all or any part of the NMLP Obligations or against any other Collateral security therefor, guarantee thereof or right of offset with respect thereto.  The Administrative Agent shall not be liable for any failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so, nor shall it be under any obligation to sell or otherwise dispose of any Collateral upon the request of NMLP or any other person or entity or to take any other action whatsoever with regard to the Collateral or any part thereof.

 

9.             Actions By Administrative Agent.  NMLP hereby designates the Administrative Agent as the attorney-in-fact of NMLP to: (a) after the occurrence and during the continuance of an Event of Default, endorse in favor of the Administrative Agent any of the Collateral; (b) after the occurrence and during the continuance of an Event of Default, cause the transfer of any of the Collateral in such name as the Administrative Agent may from time to time determine; (c) cause the issuance of certificates for book entry and/or uncertificated securities; (d) renew, extend or

 

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roll over any Collateral; (e) make, demand and initiate actions to enforce any of the Collateral or rights therein; and (f) take any other action to effectuate the terms and provisions of this Pledge Agreement.  The Administrative Agent may take such action with respect to the Collateral as the Administrative Agent may reasonably determine to be necessary to protect and preserve its interest in the Collateral.  Except as otherwise provided herein, all of the rights, remedies, powers, privileges and discretions included in this Section 9 may be exercised by the Administrative Agent whether or not the NMLP Obligations are then due and whether or not an Event of Default has occurred.  The within designation and grant of power of attorney is coupled with an interest, is irrevocable until the lien created by this Pledge Agreement is terminated by a written instrument executed by a duly authorized officer of the Administrative Agent.  The power of attorney shall not be affected by subsequent disability or incapacity of NMLP.  The Administrative Agent shall not be liable for any act or omission to act pursuant to this Section 9, except for any act or omission to act which is in actual bad faith.

 

10.           Remedies.

 

(a)           If an Event of Default shall have occurred and be continuing, the Administrative Agent may exercise, in addition to all other rights and remedies granted in this Pledge Agreement and in any other instrument or agreement securing, evidencing or relating to the NMLP Obligations, all rights and remedies of a secured party under the UCC.  Without limiting the generality of the foregoing, the Administrative Agent, if an Event of Default shall have occurred and be continuing, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon NMLP or any other person or entity (all and each of which demands, presentments, protests, advertisements or notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of the Administrative Agent or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk.  The Administrative Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in NMLP, which right or equity is hereby waived or released.  The Administrative Agent shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Administrative Agent hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the NMLP Obligations, in such order as the Administrative Agent may elect, and

 

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only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including, without limitation, Section 9-615(a) of the UCC, need the Administrative Agent account for the surplus, if any, to NMLP.  To the extent permitted by applicable law, NMLP waives all claims, damages and demands it may acquire against the Administrative Agent arising out of the exercise by the Administrative Agent of any of its rights hereunder, except for any claims, damages and demands it may have against the Administrative Agent arising from the gross negligence or willful misconduct of the Administrative Agent.  If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.  NMLP shall remain liable for any deficiency if the proceeds of any sale or other disposition of Collateral are insufficient to pay the NMLP Obligations and the fees and disbursements of any attorneys employed by the Administrative Agent to collect such deficiency.

 

(b)           If any Event of Default occurs and is continuing, any deposits, balances or other sums credited by or due from the Administrative Agent, the Deposit Account Co- Agent, any affiliate of the Administrative Agent, the Deposit Account Co-Agent or any of the Lenders, or from any affiliate of any of the Lenders, to NMLP may to the fullest extent not prohibited by applicable law at any time or from time to time, without regard to the existence, sufficiency or adequacy of any other collateral, and without notice or compliance with any other condition precedent now or hereafter imposed by statute, rule of law or otherwise, all of which are hereby waived to the fullest extent permitted by law, be set off, appropriated and applied by the Administrative Agent against any or all of the NMLP Obligations irrespective of whether demand shall have been made and although such obligations may be unmatured, in such manner as the Administrative Agent in its sole and absolute discretion may determine.  Within three (3) Business Days of making any such set off, appropriation or application, the Administrative Agent agrees to notify NMLP thereof, provided the failure to give such notice shall not affect the validity of such set off or appropriation or application.  ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT, THE DEPOSIT ACCOUNT CO-AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE NMLP LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF NMLP, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.

 

11.           Private Sales.

 

(a)           NMLP recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Interests, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a

 

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restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof.  NMLP acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the Administrative Agent than if such sale were a public sale.  The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Interests for the period of time necessary to permit NMLP to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws, even if NMLP would agree to do so.

 

(b)           NMLP further agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make any sale or sales of all or any portion of the Pledged Interests pursuant to this Section 11 valid and binding and in compliance with any and all other applicable requirements of law; provided, however, that NMLP shall be under no obligation to register the Pledged Interests for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws.  NMLP further agrees that a breach of any of the covenants contained in this Section 11 will cause irreparable injury to the Administrative Agent, that the Administrative Agent has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 11 shall be specifically enforceable against NMLP, and NMLP hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred with respect to the NMLP Obligations.

 

12.           Limitation on Duties Regarding Collateral.  The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Administrative Agent deals with similar securities and property for its own account.  Neither the Administrative Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of NMLP or otherwise.

 

13.           Financing Statements; Other Documents.  This Pledge Agreement constitutes an authenticated record, and NMLP hereby authorizes the Administrative Agent to file one or more UCC-1 financing statements, continuation statements or other documents with respect to the Collateral, without the signature of NMLP, and in such filing offices as the Administrative Agent shall deem reasonably appropriate.  The Administrative Agent agrees, however, not to file any such UCC-1 financing statement unless and until the occurrence of a Trigger Event.  NMLP agrees that, immediately upon the occurrence of a Trigger Event, the Administrative Agent shall be authorized to file any or all of such UCC-1 financing statements as the Administrative Agent deems reasonably necessary to perfect its security interest in the Collateral.  NMLP agrees to deliver any other document or instrument which the Administrative Agent may reasonably request in connection with the administration and enforcement of this Pledge Agreement or with

 

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respect to the Collateral for the purposes of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted.

 

14.           Powers Coupled with an Interest.  All authorizations and agencies and powers herein contained with respect to the Collateral are irrevocable and coupled with an interest.

 

15.           Security Interest Absolute.  All rights of the Administrative Agent hereunder, the grant of a security interest in the Collateral and all obligations of NMLP hereunder, shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Loan Agreement, any agreement with respect to any of the NMLP Obligations or any other agreement or instrument relating to any of the foregoing, (ii) any change in time, manner or place of payment of, or in any other term of, all or any of the NMLP Obligations, or any other amendment or waiver of or any consent to any departure from the NMLP Note or any other agreement or instrument, (iii) any exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guarantee, for all or any of the NMLP Obligations, or (iv) any other circumstance which might otherwise constitute a defense available to (other than the defense of indefeasible payment), or a discharge of, NMLP in respect of the NMLP Obligations or in respect of this Pledge Agreement.

 

16.           Fees and Expenses.   To the extent provided in the Loan Agreement, NMLP shall be obligated to, upon demand, pay to the Administrative Agent the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts or agents which the Administrative Agent or any Lender may incur in connection with (i) the sale of, collection from, or other realization upon, any of the Collateral, or (ii) during the continuance of an Event of Default, the exercise or enforcement of any of the rights of the Administrative Agent hereunder.  Any such amounts payable as provided hereunder or thereunder shall be additional obligations secured hereby and by the other NMLP Security Documents.

 

17.           Termination.  Upon the payment in full of the NMLP Obligations, in immediately available funds, including, without limitation, all unreimbursed costs and expenses of the Administrative Agent and of each Lender for which NMLP is responsible, the Administrative Agent shall release the Collateral granted to the Administrative Agent as provided for herein.  However, such release by the Administrative Agent shall not be deemed to terminate or release NMLP from any obligation or liability under this Pledge Agreement which specifically by its terms survives the payment in full of the NMLP Obligations.

 

18.           Severability.  Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

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19.           Paragraph Headings.  The paragraph headings used in this Pledge Agreement are for convenience of reference only and are not to affect the construction, or be taken into consideration in interpreting, this Pledge Agreement.

 

20.           No Waiver; Cumulative Remedies.  The Administrative Agent shall not by any act delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any default or in any breach of any of the terms and conditions hereof.  No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  A waiver by the Administrative Agent of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Administrative Agent would otherwise have on any future occasion.  The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law.

 

21.           Waivers and Amendments; Successors and Assigns; Governing Law; Venue.  None of the terms or provisions of this Pledge Agreement may be waived, amended, or otherwise modified except by a written instrument executed by the party against which enforcement of such waiver, amendment, or modification is sought.  This Pledge Agreement shall be binding upon NMLP, the Administrative Agent and the Lenders, and the successors and assigns of each, and shall inure to the benefit of the Administrative Agent and the Lenders and their successors and assigns and to the benefit of NMLP and NMLP’s successors and permitted assigns; provided that NMLP shall not have any right to (i) assign this Pledge Agreement or any interest herein, or (ii) to assign any interest in the Collateral or any part thereof, or otherwise pledge, encumber or grant any option with respect to the Collateral or any part thereof, or any cash or property held by NMLP as Collateral under this Pledge Agreement if any such assignment, pledge, encumbrance or grant would constitute a violation of the Loan Agreement.  The rights of the Administrative Agent under this Pledge Agreement shall automatically be transferred to any transferee to which the Administrative Agent transfers the NMLP Note and Loan Agreement pursuant to the terms thereof.  The construction, interpretation, validity, enforceability and effect of all provisions of this Pledge Agreement including, but not limited to, the payment of the NMLP Obligations and the legality of the interest rate and other charges shall be construed and enforced in accordance with the internal laws of The Commonwealth of Massachusetts (without regard to conflicts of laws).  NMLP agrees to submit to non-exclusive personal jurisdiction in Suffolk County, in The Commonwealth of Massachusetts in any action or proceeding arising out of this Pledge Agreement and, in furtherance of such agreement, NMLP hereby agrees and consents that, without limiting other methods of obtaining jurisdiction, personal jurisdiction over NMLP in any such action or proceeding may be obtained within or without the jurisdiction of any court located in The Commonwealth of Massachusetts and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon NMLP by registered or certified mail to or by

 

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personal service at the last known address of NMLP, whether such address be within or without the jurisdiction of any such court.

 

22.           Executive Offices.  NMLP shall not (i) change the location of its chief executive offices or sole place of business from the location as of the date hereof or remove its books and records from such location, or (ii) change its name, identity or structure if, in either case, such change is prohibited by the Loan Agreement.

 

23.           Notices.  Notices by the Administrative Agent to NMLP, to be effective, shall be in writing and shall be hand-delivered or sent by Federal Express, or other reputable national overnight courier service, or by postage pre-paid registered or certified mail, return receipt requested, addressed to the Borrower at its address set forth below its signature hereto, with a copy in each instance to Post Heymann & Koffler LLP at the address set forth in Section 15.1 of the Loan Agreement, and shall be deemed to have been duly given or made (a) when delivered if hand-delivered or sent by Federal Express, or other reputable national overnight courier service, or (b) when delivered if sent by registered or certified mail.  Any communications by NMLP to the Administrative Agent may be given in any manner set forth in the immediately preceding sentence, with a copy to Riemer & Braunstein LLP, Attention: Steven J. Weinstein, Esq., to the addresses set forth in Section 15.1 of the Loan Agreement.

 

24.           Entire Understanding.  The Administrative Agent acknowledges that this Pledge Agreement, the NMLP Note, the Guaranty and the other NMLP Loan Documents and NMLP Security Documents set forth the entire agreement and understanding of the Administrative Agent and NMLP with respect to the NMLP Loan and that no oral or other agreements, understanding, representation or warranties exist with respect to the NMLP Loan, other than those set forth in this Pledge Agreement, the NMLP Note, the Guaranty and the other NMLP Loan Documents and NMLP Security Documents.

 

25.           Counterpart Signatures.  This Pledge Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument.

 

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IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be duly executed and delivered as of the date first above written.

 

 

NMLP:

THE NEWKIRK MASTER LIMITED PARTNERSHIP,

 

A Delaware limited partnership

 

 

By:

MLP GP LLC, its General Partner

 

 

 

By:

Newkirk MLP Corp., its Manager

 

 

 

 

 

 

By:

 

 

 

 

Name:

John J. Cramer

 

 

Title:

Vice President

 

:

Addresses

 

 

 

1.

Chief Executive Office:

 

 

c/o First Winthrop Corporation

 

 

7 Bulfinch Place, Suite 500

 

 

Boston, Massachusetts 02114

 

 

 

 

2.

Principal Place of Business:

 

 

c/o First Winthrop Corporation

 

 

7 Bulfinch Place, Suite 500

 

 

Boston, Massachusetts 02114

 

 

 

ADMINISTRATIVE

 

AGENT:

KEYBANK NATIONAL ASSOCIATION,

 

A national banking association

 

 

 

 

By:

 

 

 

Name:

Jeffry M. Morrison

 

Title:

Vice President

 

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SCHEDULE 1

To Pledge

Agreement

 

DESCRIPTION OF PLEDGED INTERESTS

 

Issuers of Pledged 
Interests

 

Type of
Interest

 

Percentage
of
 
Issued
Interests

 

Permitted Liens

 

Newkirk GP LLC

 

Membership

 

100.0

%

Integrated Group

 

Newkirk Finco LLC

 

Membership

 

100.0

%

Integrated Group

 

Newkirk Capital LLC

 

Membership

 

50.01

%

Integrated Group

 

 

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