COMPANY PLEDGE AGREEMENT
This COMPANY PLEDGE AGREEMENT dated as of November ___, 1996 (this
"Agreement") is entered into between Cali Realty Corporation, a Maryland
corporation (the "Company"), and Prudential Securities Credit Corp., as
Administrative Agent (the "Administrative Agent") for the lenders (the
"Lenders") who are or may become parties to the Credit Agreement (as hereinafter
defined) and as custodian of the Collateral (as hereinafter defined) (Prudential
Securities Credit Corp., in its capacity as Administrative Agent and custodian
of the Collateral, is hereafter referred to as the "Collateral Holder", and in
any capacity other than as Administrative Agent or Collateral Holder is referred
to as "PSC").
R E C I T A L S
A. The Lenders, the Administrative Agent and Cali Realty, L.P., a
Delaware limited partnership (the "Operating Partnership") have entered into:
(i) a Revolving Credit Facility Agreement of even date herewith (such Revolving
Credit Facility Agreement, as it may hereafter be amended or otherwise modified
from time to time, being the "Credit Agreement"), and (ii) a Revolving Credit
Facility Agreement dated August 31, 1994 (as amended or otherwise modified from
time to time, the "Existing Credit Agreement").
B. The Company is the sole general partner and a limited partner in the
Operating Partnership and has received and will continue to receive substantial
benefit from the extensions of credit by Lenders to the Operating Partnership
under the Credit Agreement and the Existing Credit Agreement.
C. It is a condition precedent to the effectiveness of the Credit
Agreement, and to the making of Loans by the Lenders under the Credit Agreement
and the Existing Credit Agreement, that the Company shall have granted the
pledge and security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans to the Operating Partnership from time to time under
the Credit Agreement and Existing Credit Agreement, the Company hereby agrees
with the Collateral Holder for its benefit and the ratable benefit of the
Lenders as follows:
SECTION 1. Definitions. Unless specified otherwise, capitalized terms
used but not defined in this Agreement shall have the meanings assigned thereto
under the Credit Agreement. In addition, the following terms shall have the
respective meanings set forth below.
"Collateral" shall have the meaning assigned thereto in Section 2 of
this Agreement.
"Credit Agreement Obligations" shall mean all indebtedness and
obligations of the Operating Partnership to the Administrative Agent and the
Lenders under the Credit Agreement and the Existing Credit Agreement (including,
without limitation, the Obligations (as that term is defined in the Credit
Agreement and the Existing Credit Agreement)).
"Event of Default" shall mean any Event of Default (as defined in the
Credit Agreement).
"Secured Obligations" shall mean: (i) the Company's obligations under
this Agreement, (ii) the Credit Agreement Obligations, and (iii) all other
obligations and liabilities of the Operating Partnership to the Administrative
Agent or the Lenders, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred.
SECTION 2. Grant of Security. As collateral security for payment and
performance in full of all of the Secured Obligations in accordance with the
Credit Facility Documents and the Existing Credit Facility Documents, the
Company hereby pledges, hypothecates, assigns, transfers, sets over and delivers
unto the Collateral Holder, and grants to the Collateral Holder for its benefit
and the ratable benefit of the Lenders a continuing and perfected first priority
security interest in the following (the "Collateral"):
(a) All of the Company's right, title and interest in and to the
securities of each issuer identified on Schedule I, whether now owned or
hereafter acquired;
(b) All shares of capital stock, options, rights and warrants now or
hereafter issued to the Company as an addition to, in substitution or exchange
for, or on account of, any of the shares of capital stock described in
subsection (a) above;
(c) All dividends and distributions, whether cash or property, and all
accounts, contract rights and general intangibles, arising from all of the
foregoing or relating thereto;
(d) All Proceeds of the foregoing.
SECTION 3. Security for Obligations. The assignments, pledges, liens
and security interests granted under this Agreement (collectively, the "Security
Interest") by the Company secure the payment and performance in full of all
Secured Obligations.
SECTION 4. Delivery of Collateral. All certificates or instruments
representing or evidencing the Collateral shall be delivered to and held by the
Collateral Holder pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, and by such other instruments or documents as the
Collateral Holder may reasonably request, all in form and substance reasonably
satisfactory to the Collateral Holder. The Collateral Holder shall have the
right, at any time in its sole discretion and without prior notice to the
Company, to transfer to or to register in the name of the Collateral Holder or
any of its nominees any or all of the Collateral, subject only to the revocable
rights specified in Section 7(a). In addition, the Collateral Holder shall have
the right at any time to exchange certificates or instruments representing or
evidencing the Collateral for certificates or instruments reflecting smaller or
larger ownership interests.
SECTION 5. Representations and Warranties. The Company represents and
warrants as follows:
(a) The Company is the legal, equitable and beneficial owner of the
Collateral, free and clear of any Lien, except for Liens created by this
Agreement, and the Company will make no other assignment, pledge, mortgage,
hypothecation or transfer of the Collateral. The Company has good right and
legal authority to pledge the Collateral in the manner hereby done or
contemplated and will defend its title thereto against the claims of all persons
whomsoever and will maintain and preserve the Security Interest with respect to
the Collateral as long as this Agreement shall remain in full force and effect.
(b) No consent or approval of any governmental body or regulatory
authority or of any securities exchange was or is necessary as a condition to
the validity of the pledge by the Company of the Collateral hereunder.
(c) This Agreement, and the pledge of the Collateral pursuant hereto,
create a valid and perfected first priority Security Interest in the Collateral
to secure the Secured Obligations. The Company has delivered or is delivering,
together with such appropriate endorsements or documentation of assignment
thereof, all Collateral consisting of certificated securities, instruments or
the like.
(d) As of the date of this Agreement, Schedule I is true, complete and
correct in all material respects.
(e) The Company's principal place of business and chief executive
office is located at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
(f) Each issuer of securities identified on Schedule I is a corporation
duly organized and validly existing under the laws of the state of its
incorporation as specified on Schedule I.
(g) The Company has delivered to the Collateral Holder true and correct
copies of the Articles of Incorporation, Bylaws and other organizational
documents of each of the issuers specified on Schedule I, and such Articles of
Incorporation, Bylaws and organizational documents are valid, effective and
enforceable in accordance with their respective terms.
(h) All conditions and requirements under the applicable Articles of
Incorporation, Bylaws, organizational documents and shareholder agreements of
each of the issuers specified on Schedule I with respect to the pledge,
assignment and transfer of the Collateral have been satisfied or obtained.
(i) The securities specified on Schedule I have been duly authorized
and validly issued and are fully paid and non-assessable.
(j) Upon delivery to the Collateral Holder of the certificates
evidencing the securities described on Schedule I, together with stock powers as
required by the Collateral Holder, the pledge hereunder in favor of the
Collateral Holder for the benefit of the Lenders will create a valid, binding
and enforceable (subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally and general principles of equity)
security interest in and lien on the Collateral and constitute a fully perfected
first and prior security interest in and lien upon all right, title and interest
of the Company in the Collateral.
SECTION 6. Further Assurances. The Company agrees that from time to
time, at the expense of the Company, it will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary, or that the Collateral Holder may reasonably request, in order to
perfect and protect the Security Interest granted hereby or to enable the
Collateral Holder to exercise and enforce its rights and remedies hereunder with
respect to the Collateral.
SECTION 7. Voting Rights; Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) The Company shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral or any
part thereof; provided, however, that the Company shall give the
Collateral Holder at least five (5) days' prior written notice of the
manner in which it intends to exercise any such right; provided
further, however, that the Company shall not exercise or refrain from
exercising any such right if, in the Collateral Holder's reasonable
judgment, such action would have a material adverse effect on the value
of the Collateral or any part thereof or is otherwise inconsistent with
the terms of this Agreement, the other Credit Facility Documents or the
Existing Credit Facility Documents (collectively, the "Operative
Documents").
(ii) The Company shall be entitled to receive and retain any
and all dividends, distributions and other payments paid on and in
respect of the Collateral.
(iii) The Collateral Holder shall execute and deliver (or
cause to be executed and delivered) to the Company all such proxies and
other instruments as the Company may reasonably request for the purpose
of enabling it to exercise the voting and other rights that it is
entitled to exercise pursuant to paragraph (i) above and to receive the
dividends, distributions and other payments that it is authorized to
receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Company to exercise the voting and other
consensual rights that it would otherwise be entitled to exercise
pursuant to Section 7(a)(i) and to receive the dividends, distributions
and other payments that it would otherwise be authorized to receive and
retain pursuant to Section 7(a)(ii) shall cease, and all such rights
shall thereupon become vested in the Collateral Holder who shall
thereupon have the sole right to exercise voting and other consensual
rights and to receive and hold as Collateral such dividends,
distributions and other payments.
(ii) All dividends, distributions and other payments that are
received by the Company contrary to the provisions of paragraph (i) of
this Section 7(b) shall be received and held in trust for the benefit
of the Collateral Holder and the Lenders, shall be segregated from
other funds of the Company and shall be forthwith paid over to the
Collateral Holder as Collateral in the same form as so received (with
any necessary endorsement).
SECTION 8. Transfers and Other Liens. The Company shall not (a) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Collateral, or (b) create or suffer to exist
any Lien upon or with respect to any of the Collateral except for Liens created
by this Agreement.
SECTION 9. Collateral Holder Appointed Attorney-in-Fact. The Company
hereby constitutes and appoints the Collateral Holder its attorney-in-fact for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Holder may deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest; provided, however, that the Collateral
Holder shall not exercise any right pursuant to this grant until the occurrence
of an Event of Default. Without limiting the generality of the foregoing, the
Collateral Holder shall have the right, after the occurrence of an Event of
Default hereunder, with full power of substitution, either in the Collateral
Holder's name or in the name of the Company, to ask for, demand, xxx for,
collect, receive, and give acquittance for any and all moneys due or to become
due under and by virtue of any Collateral, to endorse checks, drafts, orders and
other instruments for the payment of money payable to the Collateral Holder or
the Lenders, representing any dividend, distribution or other amount payable in
respect of the Collateral or any part thereof or on account thereof and to give
full discharge for the same, to settle, compromise, prosecute or defend any
action, claim or proceeding with respect thereto, and to sell, assign, endorse,
pledge, transfer and make any agreement respecting, or otherwise deal with, the
same; provided, however, that nothing herein contained shall be construed as
requiring or obligating the Collateral Holder to make any commitment or to make
any inquiry as to the nature or sufficiency of any payment received by it, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any Property covered thereby, and no action taken or omitted to be
taken by the Collateral Holder with respect to the Collateral or any part
thereof shall give rise to any defense, counterclaim or offset in favor of the
Company or to any claim or action against the Collateral Holder.
SECTION 10. Collateral Holder May Perform. If the Company fails to
perform any agreement contained herein, the Collateral Holder may itself
perform, or cause the performance of, such agreement, and the reasonable expense
of the Collateral Holder incurred in connection therewith shall be payable by
the Company under Section 13(b).
SECTION 11. The Collateral Holder's Duties. The powers conferred on the
Collateral Holder hereunder are solely to protect its and the Lenders' interest
in the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for a duty to exercise reasonable care in respect of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Collateral Holder shall have no duty as to any Collateral, as
to ascertaining or taking action with respect to calls, conversions, exchanges,
tenders or other matters relative to any Collateral, whether or not the
Collateral Holder or any Lender has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The Collateral
Holder shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Holder accords its
own Property. The duties of the Collateral Holder under this Agreement shall be
mechanical and administrative in nature; the Collateral Holder shall not have,
by reason of this Agreement, a fiduciary relationship in respect of any Lender,
and nothing herein, express or implied, is intended to or shall be so construed
as to impose upon the Collateral Holder any obligations in respect of this
Agreement except as expressly set forth herein.
SECTION 12. Remedies. If any Event of Default shall have occurred and
be continuing:
(a) The Collateral Holder 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 NYUCC
(whether or not the NYUCC applies to the affected Collateral) and also shall
have the right, as the Collateral Holder may deem necessary or advisable, to do
any of the following:
(i) to foreclose the Security Interest by any available
judicial procedure or without judicial process;
(ii) to notify the issuer of the Collateral that the
Collateral has been assigned to the Collateral Holder and that all
dividends, distributions and other payments thereon are to be made
directly and exclusively to the Collateral Holder;
(iii) to enter into any extension or reorganization agreement
or other agreement relating to or affecting the Collateral and in
consideration therewith, the Collateral Holder may deposit or surrender
control of the Collateral or accept other Property in exchange of the
Collateral;
(iv) to settle, adjust, defend, compromise or release, on
terms acceptable to the Collateral Holder, in whole or in part, any
amounts owing on the Collateral and/or any disputes with respect
thereto; or
(v) to exercise all other rights, powers, privileges and
remedies of an owner of the Collateral.
(b) Without notice except as specified below, the Collateral Holder
may, or shall at the express written direction of (i) so long as any Loans under
the Credit Agreement or the Existing Credit Agreement are outstanding, Lenders
holding at least 25% in aggregate principal amount of the outstanding Loans
under the Credit Agreement and Existing Credit Agreement, and (ii) otherwise,
PSC (the party or parties so entitled to give such direction, the "Controlling
Lenders"), on behalf, and for the ratable benefit, of all of the Lenders, retain
the Collateral or sell, assign, transfer, endorse and deliver the Collateral or
any part thereof in one or more parcels at public or private sale, on any
exchange, over the counter market or at any of the Collateral Holder's offices
or elsewhere, for cash, on credit or for other Property, for immediate or future
delivery, and at such price or prices and upon such other terms as the
Collateral Holder or the Controlling Secured Parties may deem commercially
reasonable. Upon consummation of any such sale, the Collateral Holder shall have
the right to assign, transfer, endorse and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each such purchaser at any such sale
shall hold the Property sold absolutely free from any claim or right on the part
of the Company, and the Company hereby waives (to the fullest extent permitted
by law) all rights of redemption, stay or appraisal which the Company now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted. The Company agrees that ten (10) days' prior written
notice to the Company of the time and place of any public sale or the time after
which any private sale is to be made shall constitute commercially reasonable
notification within the meaning of Section 9-504(3) of the NYUCC. Any such sale
shall be held at such time or times and at such place or places as the
Collateral Holder may fix.
At any such sale, the Collateral, or portion thereof to be sold, may be
sold as an entirety or in separate portions, as the Collateral Holder may, in
its sole and absolute discretion, determine. The Collateral Holder shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Collateral Holder may, without notice or publication, adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned. In case sale of all or any part of
the Collateral is made on credit or for future delivery, the Collateral so sold
may be retained by the Collateral Holder until the sale price is paid by the
purchaser or purchasers thereof, but the Collateral Holder shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any sale made pursuant to this Agreement, the
Collateral Holder and (i) so long as any Loans under the Credit Agreement or the
Existing Credit Agreement are outstanding, any Lender, and (ii) otherwise, PSC,
may bid for or purchase, free from any right of redemption, stay or appraisal on
the part of the Company (all said rights being also hereby waived and released
to the fullest extent permitted by law), any part of or all of the Collateral
offered for sale, and the Collateral Holder and any such Lender may, upon
compliance with the terms of sale, hold, retain and dispose of such Property
without further accountability to the Company therefor. The Collateral Holder
shall not be required to register or qualify any of the Collateral under
applicable state or federal securities laws if the sale is effected in a manner
that complies with all applicable federal and state securities laws. The
Collateral Holder may, at any private sale, if it deems advisable, restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof. If any such Collateral is sold
at private sale in a manner that the Collateral Holder in good faith believes to
be reasonable under the circumstances then existing, then (i) the sale shall be
deemed to be commercially reasonable in all respects, (ii) the Company shall not
be entitled to a credit against the Secured Obligations in an amount in excess
of the purchase price, and (iii) the Collateral Holder shall not incur any
liability or responsibility to the Company in connection therewith,
notwithstanding the possibility that a substantially higher price might have
been realized at a public sale.
The Company recognizes that a ready market may not exist for such
Collateral if it is not regularly traded on a recognized securities exchange,
and that a sale by the Collateral Holder of any such Collateral for an amount
substantially less than the value thereof (whether determined by book value,
appraisal or otherwise) may be commercially reasonable in view of the
difficulties that may be encountered in attempting to sell Collateral that is
privately traded. Until the Collateral Holder is able to effect a sale or other
disposition of the Collateral or any part thereof, the Collateral Holder shall
have the right, but not the obligation, to exercise all rights of an owner of
the Collateral or any part thereof to the extent that it deems appropriate for
the purpose of preserving the Collateral or its value or for any other purpose
deemed by the Collateral Holder to be commercially reasonable in the exercise of
the Collateral Holder's remedies hereunder. The Collateral Holder shall have no
obligation to the Company to maintain or preserve the rights of the Company as
against third parties with respect to the Collateral.
(c) All dividends, distributions and other payments received by the
Collateral Holder under, in connection with, or otherwise in respect of the
Collateral, and all cash proceeds received by the Collateral Holder in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Collateral Holder, be held by the
Collateral Holder as collateral for, and/or then or at any time thereafter
applied (after first payment of any amounts payable to the Collateral Holder
pursuant to Section 13 and then payment of any costs, expenses or indemnities
then due and payable by the Company to any Lender hereunder or under the Credit
Agreement, any other Credit Facility Document or any Existing Credit Facility
Document) in whole or in part by the Collateral Holder for the ratable benefit
of the Lenders, in the following order of priority:
(i) first, ratably among the holders of the Credit Agreement
Obligations until all of the Credit Agreement Obligations are repaid in
full;
(ii) second, ratably among the holders of the other Secured
Obligations (other than those specified in subsection (i) above) until
all of said other Secured Obligations are repaid in full.
Any surplus of such payments or cash proceeds held by the Collateral Holder and
remaining after payment in full of all the Secured Obligations shall be paid
over to the Company or to whomsoever may be lawfully entitled to receive such
surplus. If, however, there remains any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Secured Obligations,
the Operating Partnership shall remain liable to the extent of such deficiency.
SECTION 13. Indemnity and Expenses.
(a) The Company agrees to indemnify the Collateral Holder from and
against any and all claims, losses and liabilities arising out of or resulting
from this Agreement (including, without limitation, enforcement of this
Agreement), except claims, losses or liabilities resulting from the Collateral
Holder's gross negligence or willful misconduct.
(b) The Company, upon demand, shall promptly pay to the Collateral
Holder the amount of any and all reasonable expenses, including the reasonable
fees and disbursements of its counsel and of any experts, that the Collateral
Holder may incur in connection with (i) the custody, preservation, use of, or
the sale of, collection from or other realization upon, any of the Collateral,
(ii) the exercise or enforcement of any of the rights of the Collateral Holder
or the Lenders hereunder, or (iii) the failure by the Company to perform or
observe any of the provisions hereof.
SECTION 14. Amendments, Waivers; Etc.
(a) No amendment or waiver of any provision of this Agreement, and no
consent to any departure by the Company herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Collateral
Holder, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(b) The waiver by the Collateral Holder of any breach of the terms and
conditions of this Agreement, and the consent of any Lender thereto, shall not
prejudice any remedy of the Collateral Holder or any Lender in respect of any
continuing or other breach of the terms and conditions hereof, and shall not be
construed as a bar to any right or remedy that the Collateral Holder or any
Lender would otherwise have on any future occasion under this Agreement.
(c) No failure on the part of the Collateral Holder or any Lender to
exercise, and no delay on any of their parts in exercising, any right, power,
privilege or remedy under this Agreement, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or the further exercise thereof or the exercise of any other right,
power or remedy. All remedies hereunder are cumulative and are not exclusive of
any other remedies provided by law.
SECTION 15. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and shall be mailed, telegraphed, telecopied, telexed, cabled or delivered to
the appropriate party at its address specified in the Credit Agreement (for
Collateral Holder) and in the signature block of this Agreement for the Company
or, as to either party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this Section. All such notices and other communications shall be
effective (a) when received, if mailed or delivered, or (b) when delivered to
the telegraph company, transmitted by telecopier, confirmed by telex
answer-back, or delivered to the cable company, respectively, addressed as
aforesaid.
SECTION 16. Continuing Security Interest, Assignments under the Credit
Agreements. This Agreement shall create a continuing Security Interest in the
Collateral and shall (a) remain in full force and effect until termination in
accordance with the provisions of Section 17, (b) be binding upon the Company,
its successors and assigns, and (c) inure, together with the rights and remedies
of the Collateral Holder hereunder, to the benefit of the Collateral Holder, the
Lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Facility Documents or Existing Credit Facility Documents (including,
without limitation, all or any portion of its Commitments and the Loans owing to
it thereunder) held by it to any other person or entity, and such other person
or entity shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise, subject, however, to the provisions
of Article X (concerning the Administrative Agent and the Collateral Holder) and
Section 11.06 (concerning Assignments and Participations) of the Credit
Agreement and Existing Credit Agreement. The Company shall not be permitted to
assign this Agreement or any interest herein or in the Collateral, or any part
thereof, except as permitted by the Credit Agreement, or otherwise pledge,
encumber or grant any option with respect to the Collateral, or any part
thereof, or any cash or Property held by the Collateral Holder as collateral
under this Agreement. No notice to or demand on the Company shall entitle the
Company to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 17. Termination. The Security Interest granted hereby shall
terminate and all rights to the Collateral shall revert to the Company upon the
first to occur of the following (the "Security Termination Date"): (a) the
Credit Agreement shall have terminated and the Loans and other amounts due
thereunder shall have been paid in full and Lenders have no further commitment
to extend credit to the Operating Partnership under the Credit Agreement, or (b)
all of the Loans and all other amounts due under the Credit Agreement shall have
been refinanced by Lenders as an unsecured interest only term loan or an
unsecured revolving credit facility as provided in Section 2.10 of the Credit
Agreement. Upon any such Security Termination Date, the Collateral Holder shall
reassign and redeliver the Collateral then held by or for the Collateral Holder
and execute and deliver to the Company, at the Company's expense, such documents
as it shall reasonably request to evidence such termination.
SECTION 18. Governing Law.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
(b) The Company hereby expressly and irrevocably agrees and consents
that any suit, action or proceeding arising out of or relating to this Agreement
and the transactions contemplated herein may be instituted by the Collateral
Holder or any Lender in any State or Federal court sitting in the County of New
York, State of New York, United States of America and, by the execution and
delivery of this Agreement, the Company expressly waives any objection that it
may have now or hereafter to the laying of the venue or to the jurisdiction of
any such suit, action or proceeding, and irrevocably submits generally and
unconditionally to the jurisdiction of any such suit, action or proceeding, and
irrevocably submits generally and unconditionally to the jurisdiction of any
such court in any such suit, action or proceeding.
(c) The Company agrees that service of process may be made on the
Company by personal service of a copy of the summons and complaint or other
legal process in any such suit, action or proceeding, or by registered or
certified mail (postage prepaid) to the address of the Company specified in
Section 15, or by any other method of service provided for under the applicable
laws in effect in the State of New York.
(d) Nothing contained in Sections 18(b), 18(c) and 18(d) shall preclude
the Collateral Holder or any Lender from bringing any suit, action or proceeding
arising out of or relating to this Agreement or the other Credit Facility
Documents in the courts of any place where the Company or any of the Company's
Property or assets may be found or located. To the extent permitted by the
applicable laws of any such jurisdiction, the Company hereby irrevocably submits
to the jurisdiction of any such court and expressly waives, in respect of any
such suit, action or proceeding, the jurisdiction of any other court or courts
which now or hereafter, by reason of its present or future domicile, or
otherwise, may be available to it.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, THE COMPANY HEREBY AGREES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND THE COMPANY HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT
SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(f) Unless otherwise defined herein or in the Credit Agreement, terms
used in Article 9 of the NYUCC are used herein as therein defined.
SECTION 19. Waiver of Claims. Except as otherwise provided in this
Agreement, THE COMPANY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE OF JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL
HOLDER'S TAKING POSSESSION OR THE COLLATERAL HOLDER'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICES AND
HEARINGS FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE
COMPANY WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED
STATES OR OF ANY STATE, and the Company hereby further waives:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Holder's gross negligence
or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Collateral Holder's
rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension
or moratorium now or hereafter in force under any applicable law in order to
prevent or delay the enforcement of this Agreement or the absolute sale of the
Collateral or any portion thereof, and the Company, for itself and all who may
claim under it, insofar as it now or hereafter lawfully may, hereby waives the
benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other
realization upon, any Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity, of the Company therein
and thereto, and shall be a perpetual bar both at law and in equity against the
Company and against any and all persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, through and
under the Company.
SECTION 20. Registration In Nominee's or Collateral Holder's Name. The
Collateral Holder shall have the right (in its sole and absolute discretion) to
hold the Collateral in its own name or in the name of its nominee, all in form
and substance satisfactory to the Collateral Holder.
SECTION 21. Separability of Provisions. Any provision of this Agreement
prohibited by the laws of any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, or be modified to conform with
such laws, without invalidating the remaining provisions of this Agreement, and
any such prohibition in any jurisdiction or any impairment or invalidity of this
Agreement under the laws of any jurisdiction as security for any portion of the
Secured Obligations hereunder shall not impair or invalidate this Agreement as
security for any other portion thereof.
SECTION 22. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
SECTION 23. Counterparts. This Agreement may be executed with
counterpart signature pages or in any number of counterparts, each of which
shall be deemed to be an original and all of which when taken together shall
constitute but one in the same instrument.
IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
COLLATERAL HOLDER:
PRUDENTIAL SECURITIES CREDIT CORP.
By: ____________________________________
Name (print): ___________________________
Title: _____________________________________
COMPANY:
CALI REALTY CORPORATION
By: ____________________________________
Name (print): ___________________________
Title: _____________________________________
Notice Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
SCHEDULE I
PLEDGED STOCK
====================================================================================================================
State of Type of Percentage
Issuer Incorporation Security Ownership
------------------------------ ---------------------------- --------------------------- ----------------------------
Cali Sub X, Inc. Delaware Common Stock 100%
------------------------------ ---------------------------- --------------------------- ----------------------------
Cali Sub XI, Inc. Delaware Common Stock 100%
============================== ============================ =========================== ============================
