CERTIFICATE PLEDGE AGREEMENT
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THIS CERTIFICATE PLEDGE AGREEMENT (together with all amendments,
supplements and other modifications made from time to time, this "Pledge
Agreement"), dated as of December 17, 1997, made by BROOKDALE LIVING COMMUNITIES
OF FLORIDA, INC., a Delaware corporation (the "Pledgor"), in favor of THE
CLASSIC BUSINESS TRUST, a Delaware business trust (the "Pledgee").
W I T N E S S E T H:
WHEREAS, as a condition to the occurrence of the Acquisition Date under the
Lease dated as of the date hereof (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the "Lease"),
among the Pledgor, between Lessee and the Pledgee, as Lessor, the Pledgor is
required to execute and deliver this Pledge Agreement;
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of the Pledgor to execute this Pledge
Agreement inasmuch as the Pledgor will derive substantial benefits from the
transactions contemplated by the Lease;
NOW, THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 Certain Terms. Capitalized terms used but not otherwise
defined in this Pledge Agreement have the respective meanings
specified in Appendix 1 to the Lease; and the rules of
interpretation set forth in Appendix 1 to the Lease shall apply
to this Pledge Agreement.
ARTICLE II
Certificate Plede Agreement
PLEDGE
SECTION II.1 Grant of Security Interest. The Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and
transfers to the Pledgee and hereby grants to the Pledgee a
continuing security interest in, all of its right, title and
interest in, to and under the following property (the
"Collateral"):
(1) Certificate A, a copy of which is annexed hereto as Schedule I,
and any replacement Certificate A to be provided pursuant to
Section 7.13 hereof;
(2) all payments made with respect to and all proceeds (as such term
is defined in the Uniform Commercial Code as in effect in the
State of New York (the "U.C.C.")) of any of the foregoing.
SECTION II.2 Security for Obligations. The security interest granted
by the Pledgor hereunder secures the satisfaction in full of all
the Pledgor's payment and non-payment obligations to Pledgee
under the Operative Documents, including, without limitation, the
obligation to pay FBTC Basic Rent, Lessor Basic Rent, Equity
Balance and Supplemental Rent (to the extent the Lessor is
entitled to receive Supplement Rent) (collectively, the
"Obligations").
SECTION II.3 Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, shall be
delivered to and held by or on behalf of the Pledgee pursuant
hereto, shall be in suitable form for transfer by delivery, and
shall be accompanied by all necessary instruments of transfer or
assignment, duly executed in blank, all in form and substance
satisfactory to the Pledgee.
SECTION II.4 Continuing Security Interest. This Pledge Agreement
shall create a continuing security interest in the Collateral and
shall
(3) remain in full force and effect until payment in full of all
Obligations, payment in full of the Equity Balance or the
Pledgee takes possession of the Collateral in accordance with
Section 6.1,
(4) be binding upon the Pledgor and its successors, transferees and
assigns, and
(5) inure to the benefit of the Pledgee.
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Certificate Pledge Agreement
Upon the payment in full of all Obligations or payment in full of the Equity
Balance, the security interest granted herein shall terminate and all rights to
the Collateral (including all interest or income paid in respect thereto) shall
revert to the Pledgor. Upon any such termination, the Pledgee will, at the sole
expense of the Pledgor, and upon written instruction of the Pledgor, deliver to
the Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Collateral pledged by the Pledgor hereunder (including all such interest or
income), together with all other Collateral held by the Pledgee hereunder and
execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination.
SECTION II.5 Security Interest Absolute. All rights of the Pledgee and
the security interests granted to the Pledgee hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and
unconditional, irrespective of
(6) any lack of validity or enforceability of the Pledge Agreement or
any other Operative Document,
(7) the failure of the Pledgee to assert any claim or demand or to
enforce any right or remedy against the Pledgor or any other
Person under the provisions of any Operative Document or
otherwise,
(8) any change in the time, manner or place of payment of, or in any
other term of, all or any of obligations the Obligations or any
other extension, compromise or renewal of any Obligation,
(9) any reduction, limitation, impairment or termination of any
Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be
subject to (and the Pledgor hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, the Pledgee or
otherwise,
(10) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the any
Operative Document,
(11) any addition, exchange, release, surrender or non-perfection of
any Collateral, or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of
the Obligations, or
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Certificate Pledge Agreement
(12) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Pledgor or Pledgee or any other Person.
SECTION II.6 Waiver of Subrogation. The Pledgor hereby irrevocably
waives any claim or other rights which it may now or hereafter
acquire against the Pledgee or any other Person that arise from
the existence, payment, performance or enforcement of the
Pledgor's obligations under this Pledge Agreement or any other
Operative Document, including any right of subrogation,
reimbursement, exoneration, or indemnification, any right to
participate in any claim or remedy against the Pledgee or any
other Person or any collateral which the Pledgee now has or
hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law,
including the right to take or receive from the Pledgee or any
other Person, directly or indirectly, in cash or other property
or by set-off or in any manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the
Pledgor in violation of the preceding sentence and the
Obligations shall not have been paid in cash in full, such amount
shall be deemed to have been paid to the Pledgor for the benefit
of, and held in trust for, the Pledgee, and shall forthwith be
paid to the Pledgee to be credited and applied upon the
Obligations, whether matured or unmatured. The Pledgor
acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by the Pledge
Agreement and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1 Warranties, etc. The Pledgor represents and warrants for
itself unto the Pledgee as at the date of each pledge and
delivery hereunder by the Pledgor to the Pledgee of any
Collateral pledged by the Pledgor pursuant to this Pledge
Agreement as follows:
(13) Ownership, No Liens, etc. The Pledgor is the legal and beneficial
owner of, and has good and valid title to (and has full right and
authority to pledge and assign) the Collateral, free and clear of
all Liens, security
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Certificate Pledge Agreement
interests, options, or other charges or encumbrances, except any
Lien or security interest granted pursuant hereto in favor of the
Pledgee.
(14) Valid Security Interest. The delivery of the Collateral to the
Pledgee is effective to create a valid, perfected, first priority
security interest in such Collateral and all proceeds thereof,
securing the Obligations. No filing or other action will be
necessary to perfect or protect such security interest.
(15) Authorization, Approval, etc. No authorization, approval, or
other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other Person is
required either
(1) for the pledge by the Pledgor of any Collateral pursuant to
this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by the Pledgor, or
(2) for the exercise by the Pledgee of any of the rights
provided for in this Pledge Agreement, or, except as may be
required in connection with a disposition of any Collateral
by laws affecting the offering and sale of securities
generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
ARTICLE IV
COVENANTS
SECTION IV.1 Certain Covenants. The Pledgor covenants and agrees
that, so long as any portion of the Obligations shall remain
unpaid or unfulfilled:
(16) except as permitted by the Operative Documents, it will not
sell, assign, transfer, pledge, or encumber in any other manner
the Collateral owned by it (except in favor of the Pledgee
hereunder);
(17) the Pledgor will warrant and defend the right and title herein
granted unto the Pledgee in and to the Collateral (and all right,
title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever;
(18) 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 take all further action, that the
Pledgee may reasonably request, in order to
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Certificate Pledge Agreement
perfect and protect any security interest granted or purported to
be granted hereby or to enable the Pledgee to exercise and
enforce its rights and remedies hereunder with respect to any
Collateral.
ARTICLE V
THE PLEDGEE
SECTION V.1 Pledgee Appointed Attorney-in-Fact. The Pledgor hereby
irrevocably appoints the Pledgee the Pledgor=s attorney-in-fact,
with full authority in the place and stead of the Pledgor and in
the name of the Pledgor or otherwise, from time to time upon the
occurrence and during the continuance of any Event of Default
described in Section 6.1, to take any action and to execute any
instrument which the Pledgee may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including
without limitation:
(19) to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(20) to receive, endorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
and
(21) to file any claims or take any action or institute any
proceedings which the Pledgee may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce
the rights of the Pledgee with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION V.2 Pledgee May Perform. If the Pledgor fails to perform any
agreement contained herein, the Pledgee may itself perform, or
cause performance of, such agreement, and the expenses of the
Pledgee incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.3.
ARTICLE VI
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Certificate Pledge Agreement
REMEDIES
SECTION VI.1 Certain Remedies. If any Event of Default shall have
occurred, other than an Event of Default caused by an "Event of
Default" pursuant to the following provisions of the Nomura Loan
Agreement which was caused solely by the Pledgee and not caused
directly, indirectly or proximately by an act or omission of the
Pledgor: (i) Section 7.1(ix) (solely as to representations and
warranties of the Pledgee as of the date hereof pursuant to
Sections 4.1(a)(A), (B) or (C), and Sections 4.1(b)(A), (B), (C),
(G), (H), (I), (J), (L), (N), (Z), (AA) or (AJ) of the Nomura
Loan Agreement, (ii) Section 7.1(x) (solely as to the Pledgee),
(iii) Section 7.1(xi) (solely as to the Pledgee), (iv) Section
7.1(xiii) (solely as to the Pledgee), (v) Section 7.1(xv) (solely
as to Section 5.1(a)(U)) or (vi) Section 7.1(xvi) (solely as to
Section 5.1(a)(T)):
(22) The Pledgee may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the
U.C.C. applies to the affected Collateral) and also may, without
notice except as specified below, sell or redeem, as applicable,
the Collateral or any part thereof (to the extent the Collateral
can be used to satisfy the obligations of the Pledgor pursuant to
Section 2.2 of this Pledge Agreement), for cash, on credit or for
future delivery, and upon such other terms as the Pledgee may
deem commercially reasonable. Further, the Pledgee may distribute
the Collateral in any manner it deems appropriate upon seizing
the Collateral.
(23) The Pledgee may (to the extent the Collateral is necessary to
satisfy the Pledgor=s Obligations pursuant to Section 2.2
hereof):
(1) transfer all or any part of the Collateral into the name of
its nominee, with or without disclosing that such Collateral
is subject to the lien and security interest hereunder,
(2) notify the parties obligated on any of the Collateral to
make payment to the Pledgee of any amount due or to become
due thereunder,
(3) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any
part thereof, or compromise or extend or renew for any
period (whether or not
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Certificate Pledge Agreement
longer than the original period) any obligations of any
nature of any party with respect thereto,
(4) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral,
(5) take control of any proceeds of the Collateral, and
(6) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, instruments of conveyance or
transfer with respect to all or any of the Collateral.
SECTION VI.2 Securities Laws. If the Pledgee shall exercise its right
to sell all or any of the Collateral pursuant to Section 6.1, the
Pledgor agrees that, upon request of the Pledgee, the Pledgor
will, at its own expense do or cause to be done all such acts and
things as may be necessary to make such sale of the Collateral
owned by the Pledgor or any part thereof valid and binding and in
compliance with applicable law.
SECTION VI.3 Indemnity and Expenses. The Pledgor hereby jointly and
severally indemnifies and holds harmless the Pledgee from and
against any and all claims, losses, and liabilities arising out
of or resulting from this Pledge Agreement (including enforcement
of this Pledge Agreement). Upon demand, the Pledgor will pay to
the Pledgee the amount of any and all reasonable expenses,
including the reasonable fees and disbursements of its counsel
and of any experts and agents, which the Pledgee may incur in
connection with:
(24) the administration of this Pledge Agreement;
(25) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the
Collateral;
(26) the exercise or enforcement of any of its rights hereunder; or
(27) the failure by the Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
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Certificate Pledge Agreement
SECTION VII.1 Operative Document. This Pledge Agreement is an Operative
Document executed pursuant to the Lease and shall (unless
expressly indicated herein) be construed, administered and applied
in accordance with the terms and provisions of the Lease.
SECTION VII.2 Successors, Transferees and Assigns. This Pledge
Agreement shall be binding upon the Pledgor and its successors,
transferees and assigns and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and permitted
assigns. Except as provided in the Lessor Pledge Agreement,
without the express written consent of the Pledgor, which shall
not be unreasonably withheld, the Pledgee shall not have the right
to assign this Pledge Agreement to any person or entity which is
not the Lessor under the Lease.
SECTION VII.3 Amendments, etc. No amendment to or waiver of any
provision of this Pledge Agreement, nor consent to any departure
by the Pledgor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Pledgee, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION VII.4 Protection of Collateral. The Pledgee may from time to
time, at its option, perform any act which the Pledgor agrees
hereunder to perform and which the Pledgor shall fail to perform
after being requested in writing so to perform (it being
understood that no such request need be given after the occurrence
and during the continuance of an Event of Default described in
Section 6.1) and the Pledgee may from time to time take any other
action which the Pledgee reasonably deems necessary for the
maintenance, preservation or protection of any of the Collateral
or of its security interest therein.
SECTION VII.5 Addresses for Notices. All notices, demands, requests,
consents, approvals and other communications hereunder shall be in
writing (including by facsimile) and directed to the address or
facsimile number described in, and deemed received in accordance
with the provisions of, Section 33.4 of the Lease.
SECTION VII.6 No Waiver; Remedies. No failure on the part of the
Pledgee to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of
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Certificate Pledge Agreement
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION VII.7 Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not
affect the construction of this Pledge Agreement.
SECTION VII.8 Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Pledge Agreement shall be prohibited by or invalid under such
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Pledge
Agreement.
SECTION VII.9 Governing Law. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION VII.10 Waiver of Jury Trial. THE PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE
AGREEMENT. THE PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PLEDGEE
ENTERING INTO THE LEASE.
SECTION VII.11 Execution in Counterparts. This Pledge Agreement may be
executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement.
SECTION VII.12 Pledge of Interest in Certificate A. The Pledgor hereby
consents to the terms of the Pledge Agreement, dated as of the
date hereof, between the Pledgee and FBTC Leasing Corp., pursuant
to which the Pledgee pledged and granted a security interest to
FBTC Leasing Corp. in all the Pledgee's rights, title and,
interest in and to Certificate A and all payments and proceeds
with respect thereto
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Certificate Pledge Agreement
SECTION VII.13 Replacement of Issuing Bank; Replacement of Certificate
A.
(28) The parties hereto hereby agree that if, at any time, The Fuji
Bank, Limited - New York Branch or a successor provider of the
Certificate A cannot continue to provide the Certificate A, the
parties shall, at Pledgor's cost and expense, arrange for a
substitute financial institution to issue an investment
certificate bearing interest at a rate no less than that of the
Certificate A and having the same maturity date of the
Certificate A.
(29) The Pledgor hereby agrees that upon the maturity of the original
Certificate A (or a replacement provided pursuant to Section
7.13(a)), the Pledgor shall provide the Pledgee with a
replacement Certificate A with a term of five (5) years and in
the amount of the original Certificate A (or a replacement
provided pursuant to Section 7.13(a)) at maturity (inclusive of
all accreted/compounded interest), issued by The Fuji Bank,
Limited - New York Branch or a successor provider in accordance
with the terms of Section 7.13(a). The Pledgor shall provide to
the Pledgee at the time of delivery of the replacement
Certificate A a Responsible Employee's Certificate whereby a
Responsible Employee shall certify that the Pledgor is solvent as
of such date. Upon receipt by the Pledgee of the aforementioned
Responsible Employee's Certificate and the replacement
Certificate A, the Pledgee shall transfer to the Pledgor the
original Certificate A (or a replacement provided pursuant to
Section 7.13(a) in the manner so instructed by the Pledgor. The
parties hereto agree that all references in this Pledge Agreement
to the Certificate A shall include any replacement thereof in
accordance with the terms hereof and all security interests and
rights granted hereunder with respect to the original Certificate
A shall apply to any replacement Certificate A.
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Certificate Pledge Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
BROOKDALE LIVING COMMUNITIES OF FLORIDA,
INC.,
as Pledgor
By _____________________________
Name:
Title:
THE CLASSIC BUSINESS TRUST, as Pledgee
By Wilmington Trust Company, not in its
individual capacity but as Trustee
By _____________________________
Name:
Title:
Certificate Pledge Agreement
SCHEDULE I
TO PLEDGE AGREEMENT
[Copy of Certificate A]
