EXHIBIT 10.18
AGREEMENT
THIS AGREEMENT (this "AGREEMENT"), dated as of __________, 2005, is made
and entered into by iSTAR FINANCIAL INC., a Maryland corporation ("iSTAR"), with
an address for notice hereunder of 1114 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, _________, a ___________ ("BORROWER"), with an address for
notice hereunder of ______________, and ________________ ("LENDCO"), with an
address for notice hereunder of _____________________________.
RECITALS:
A. Borrower and Lendco have entered into a Loan Agreement dated ___, 2005
(the "LENDCO LOAN AGREEMENT") whereby Lendco agreed to loan to Borrower up to
$275,000,000 (the "LENDCO LOAN") on the terms and conditions set forth in the
Lendco Loan Agreement. The Lendco Loan is evidenced by a Promissory Note dated
___, 2005 in the amount of the Loan executed by Borrower (the "LENDCO NOTE").
B. Lendco, as borrower, and iStar, as lender, entered into a Loan
Agreement dated ___, 2005 (the "iSTAR LOAN AGREEMENT") whereby iStar agreed to
loan Lendco $275,000,000 (the "iSTAR LOAN") on the terms and conditions set
forth in the iStar Loan Agreement. The purpose of the iStar Loan is to make
funds available to Lendco to loan to Borrower under the Lendco Loan Agreement.
As security for the iStar Loan, Lendco has granted iStar a first lien security
interest in the Lendco Loan and all collateral and security for the Lendco Loan.
The iStar Loan is evidenced by a Promissory Note dated ___, 2005 in the amount
of the iStar Loan executed by Lendco (the "iSTAR NOTE").
C. Borrower has requested that iStar agree to fund amounts due to Borrower
under the Lendco Loan Agreement should Lendco fail to satisfy its funding
obligations under the Lendco Loan Agreement.
D. iStar has requested that Borrower and Lendco enter into certain
agreements with respect to the Lendco Loan.
NOW, THEREFORE, in consideration for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, iStar does
hereby unconditionally, absolutely and irrevocably agree to perform for the
benefit of Borrower, its successors and assigns, the "FUNDING OBLIGATIONS" (as
hereinafter defined) upon the following terms and conditions:
1. Definitions. All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Lendco Loan Agreement. As
used herein, the term "FUNDING OBLIGATIONS" means the disbursement to Borrower
of amounts required under the Lendco Loan Agreement if, after all of the terms
and conditions for Lendco funding a Loan
under the Lendco Loan Agreement have been satisfied, Lendco has failed to fund
such amounts by the date required for such funding under the Lendco Loan
Agreement.
2. Agreements With Respect to Lendco Loan. Borrower acknowledges that the
Lendco Loan has been collaterally assigned to iStar as security for the iStar
Loan. Accordingly, Borrower, Lendco and iStar agree as follows: (a) Borrower
will submit reports, requests and other materials called for under the Lendco
Loan, including, without limitation, all submissions called for under Section 3
and Section 5.1, to iStar simultaneously with submission to Lendco, (b) all
consents, approvals, waivers and other responses to submissions must be approved
in writing by iStar to be effective under the Lendco Loan Agreement, (c) Lendco
unconditionally and irrevocably authorizes iStar to make all determinations on
the part of Lender as to whether conditions for disbursement of the Lendco Loan
have been satisfied, (d) none of the terms or provisions of the Lendco Loan
Agreement or the Loan Documents may be modified, terminated or waived without
the prior written consent of iStar, (e) Borrower, Lendco and iStar agree that
for convenience, (i) all disbursements of the Lendco Loan shall be made directly
by iStar to Borrower, and in such case, all such amounts will be deemed
disbursed by iStar to Lendco under the iStar Loan and evidenced by the iStar
Note and shall also be deemed disbursed by Lendco to Borrower and evidenced by
the Lendco Note and (ii) all payments by Borrower to Lendco of the Lendco Loan
will be made by Borrower directly to iStar, and (f) iStar shall have the right
to unilaterally enforce all of Lendco's rights and remedies under the Lendco
Loan Agreement and shall have the right to delegate the servicing of the Lendco
Loan.
3. Continuing Agreement. This is an irrevocable, absolute, continuing
agreement. This Agreement may not be revoked by iStar and shall continue to be
effective with respect to the Funding Obligations arising or created after any
attempted revocation by iStar and after iStar's dissolution (in which event this
Agreement shall be binding upon iStar's successors and assigns). Each and every
default in payment of any amounts due or performance of any obligation required
under this Agreement shall give rise to a separate cause of action hereunder,
and separate suits may be brought hereunder as each cause of action arises, or,
in the discretion of Borrower, may be brought as a consolidated suit or suits.
4. Events and Circumstances Not Reducing or Discharging iStar's
Obligations. iStar hereby consents and agrees to each of the following, and
agrees that iStar's obligations under this Agreement shall not be released,
diminished, impaired, reduced or adversely affected by the occurrence of any
event or circumstance, including, without limitation, any of the following, and
waives any rights and defenses (excluding the rights to notice, if any, as
herein provided or as required by law) which iStar might have otherwise as a
result of or in connection therewith:
(a) any default or event of default by Lendco under the iStar Loan
Agreement or the Lendco Loan Agreement (the foregoing waiver being operative
only with respect to iStar's obligations to Borrower and not limiting or
impairing any rights or remedies of iStar against Lendco under the iStar Loan
Agreement or any of the loan documents evidencing or securing the iStar Loan);
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(b) the insolvency, bankruptcy, rearrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of Lendco or
any other party at any time liable for the payment of all or part of the
indebtedness evidenced by the iStar Note;
(c) any dissolution, consolidation or merger of Lendco, or any sale,
lease or transfer of any or all of the assets of Lendco, or any changes in the
ownership, partners or members of Lendco;
(d) the invalidity, illegality or unenforceability of all or any
part of the indebtedness evidenced by the iStar Note, or any document or
agreement executed in connection with the indebtedness evidenced by the iStar
Note, for any reason whatsoever;
(e) any release, surrender or exchange of any collateral, property
or security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the indebtedness evidenced by the Lendco Note in
accordance with the Lendco Loan Agreement and Loan Documents and Section 2 of
this Agreement;
(f) the failure of Lendco or any other party to exercise diligence
or reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or
security; and
(g) the fact that any collateral, security, security interest or
lien contemplated or intended to be given, created or granted as security for
the repayment of the indebtedness evidenced by the Lendco Note shall not be
properly perfected or created, or shall prove to be unenforceable.
5. Payment by iStar. If the Funding Obligations, or any part thereof, are
not punctually performed by Lendco, iStar shall, upon five (5) Business Days
notice from Borrower to iStar, disburse the amount of the Lendco Loan that
Lendco is then obligated to disburse, to Borrower as designated in writing by
Borrower. Such notice shall be deemed made if given in accordance with Section 9
hereof. It shall not be necessary for Borrower, in order to enforce such
performance by iStar, first to institute suit or exhaust its remedies against
Lendco.
6. Indebtedness or Other Obligations of iStar. The exercise by Borrower of
any right or remedy hereunder or under any other instrument or at law or in
equity shall not preclude the concurrent or subsequent exercise of any other
instrument or remedy at law or in equity and shall not preclude the concurrent
or subsequent exercise of any other right or remedy.
7. Warranties Representations. iStar warrants and represents, as follows:
(i) iStar has received, or will receive, direct or indirect
benefit from the making of this Agreement; and
(ii) iStar is familiar with, and has independently reviewed
the financial condition of Lendco, and iStar assumes full responsibility for
keeping fully informed as to such matters in the future.
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8. GOVERNING LAW. PURSUANT TO SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, EACH PARTY AGREES THAT THIS AGREEMENT AND ALL
RIGHTS, OBLIGATIONS AND LIABILITIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. Notices. Unless otherwise specifically provided herein, any notice or
other communication required or permitted to be given shall be in writing
addressed to the respective party as set forth below and may be personally
served, telecopied (with request for confirmation) or sent by overnight courier
service or United States registered mail return receipt requested, postage
prepaid. Any notice so given shall be deemed effective upon delivery or on
refusal or failure of delivery during normal business hours. Notices shall be
addressed to the parties at the following addresses or to such other address as
the party addressed shall have previously designated by written notice to the
serving party, given in accordance with this Section 9.
If to iStar: iStar Financial Inc.
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Operating Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: iStar Financial Inc.
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq./General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: iStar Asset Services Inc.
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxx Xxxxxx Rosenman LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
208972-00402
Telephone: 000-000-0000
Facsimile: 000-000-0000
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If to Borrower: ____________________________________________
____________________________________________
____________________________________________
Attn: ______________________________________
Telephone: _________________________________
Facsimile: _________________________________
With a copy to: ____________________________________________
____________________________________________
____________________________________________
Attn: ______________________________________
Telephone: _________________________________
Facsimile: _________________________________
If to Lendco: ____________________________________________
____________________________________________
____________________________________________
Attn: ______________________________________
Telephone: _________________________________
Facsimile: _________________________________
____________________________________________
____________________________________________
____________________________________________
Attn: ______________________________________
Telephone: _________________________________
Facsimile: _________________________________
10. Consent of Jurisdiction/Service of Process. EACH PARTY HEREBY CONSENTS
TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
XXXX, STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL
BE LITIGATED IN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT OR SUCH OBLIGATION. EACH PARTY ACKNOWLEDGES AND AGREES THAT
SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING WILL BE DEEMED
EFFECTIVE.
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11. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO
WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS
WAIVER, BE REQUIRED OF SUCH PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL BY THE COURT.
12. Expenses. iStar agrees to fully and punctually pay all costs and
expenses, including, without limitation, reasonable attorneys' fees, court costs
and costs of appeal, which Borrower may incur in enforcing its rights hereunder
and collecting the Funding Obligations.
13. Third Party Beneficiary. Lendco shall be obligated by its agreements
under this Agreement but shall not be a third party beneficiary of the agreement
to fund by iStar set forth in this Agreement.
[Remainder of Page Intentionally Left Blank;
Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
iSTAR:
iSTAR FINANCIAL INC., a Maryland corporation
By: ________________________________________
Name: __________________________________
Title: _________________________________
BORROWER:
____________________________________________
By: ________________________________________
Name: __________________________________
Title: _________________________________
LENDCO:
By: ________________________________________
Name: __________________________________
Title: _________________________________
