Exhibit 99.4
FINAL EXECUTION COPY
GUARANTEE AND COLLATERAL AGREEMENT
made by
XXXXXX X. XXXXXXXX,
XXXXXX X. XXXXXXXX,
G & L REALTY CORP.
and
G&L REALTY PARTNERSHIP, L.P.
in favor of
GMAC COMMERCIAL MORTGAGE CORPORATION
as Agent
Dated as of October 29, 2001
TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS........................................................................... 2
1.1 Definitions...................................................................... 2
1.2 Other Definitional Provisions.................................................... 5
SECTION 2. GUARANTEE............................................................................... 5
2.1 Guarantee........................................................................ 5
2.2 No Subrogation................................................................... 5
2.3 Amendments, etc. with Respect to the Obligations................................. 6
2.4 Guarantee Absolute and Unconditional............................................. 6
2.5 Reinstatement.................................................................... 7
2.6 Payments......................................................................... 7
2.7 Limitations on Guarantee......................................................... 7
SECTION 3. GRANT OF SECURITY INTEREST.............................................................. 8
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................... 9
4.1 Organization; Authority.......................................................... 9
4.2 Representations in Credit Agreement.............................................. 10
4.3 Title; No Other Liens............................................................ 10
4.4 Perfected First Priority Liens................................................... 10
4.5 Locations of Grantors............................................................ 11
4.6 Farm Products.................................................................... 11
4.7 Pledged Securities............................................................... 11
4.8 Hedging Agreement................................................................ 11
SECTION 5. COVENANTS............................................................................... 12
5.1 Delivery of Instruments, Promissory Notes, Chattel Paper, Pledged Securities
and Certain Funds................................................................ 12
5.2 Payment of Obligations........................................................... 13
5.3 Maintenance of Perfected Security Interest; Further Documentation................ 13
5.4 Changes in Locations, Name, etc.................................................. 14
5.5 Notices.......................................................................... 14
5.6 Limitation on Liens etc.......................................................... 14
5.7 Hedging Agreements............................................................... 15
5.8 Further Assurances............................................................... 15
5.9 Covenants upon an Event of Default............................................... 15
5.10 Company Limited Partnership Agreement............................................ 16
5.11 Capital Stock of the Company..................................................... 16
5.12 Board of Directors of the REIT................................................... 16
5.13 Pledged Notes.................................................................... 16
SECTION 6. ADDITIONAL COVENANTS.................................................................... 16
6.1 Covenants in Credit Agreement.................................................... 16
6.2 Payments, Existence, Etc......................................................... 16
6.3 Indebtedness; Liens, Structure, Etc.............................................. 17
6.4 Limitation on Restrictions on the Subsidiaries of the REIT....................... 21
SECTION 7. REMEDIAL PROVISIONS..................................................................... 21
7.1 Pledged Stock.................................................................... 21
7.2 Proceeds to be Turned Over to Agent.............................................. 22
7.3 Application...................................................................... 22
7.4 Code and Other Remedies.......................................................... 23
7.5 Registration Rights.............................................................. 24
7.6 Waiver; Deficiency............................................................... 25
SECTION 8. THE AGENT............................................................................... 25
8.1 Agent's Appointment as Attorney-in-Fact, etc..................................... 25
8.2 Duty of Agent.................................................................... 27
8.3 Execution of Financing Statements................................................ 27
8.4 Authority of Agent............................................................... 27
SECTION 9. MISCELLANEOUS........................................................................... 27
9.1 Amendments in Writing............................................................ 27
9.2 Notices.......................................................................... 28
9.3 No Waiver by Course of Conduct; Cumulative Remedies.............................. 28
9.4 Enforcement Expenses; Indemnification............................................ 28
9.5 Successors and Assigns........................................................... 29
9.6 Set-Off.......................................................................... 29
9.7 Counterparts..................................................................... 29
9.8 Severability..................................................................... 29
9.9 Section Headings................................................................. 29
9.10 Integration...................................................................... 29
9.11 GOVERNING LAW.................................................................... 30
9.12 Submission To Jurisdiction; Waivers.............................................. 30
9.13 Acknowledgments.................................................................. 30
9.14 WAIVER OF JURY TRIAL............................................................. 31
9.15 Releases......................................................................... 31
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 29, 2001, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Grantors"), in favor of GMAC COMMERCIAL
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MORTGAGE CORPORATION, as Agent (in such capacity, the "Agent") for the banks and
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other financial institutions (the "Lenders") from time to time parties to the
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Credit Agreement, dated as of October 29, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among G&L REALTY
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PARTNERSHIP, L.P. (the "Company"), G&L Partnership, LLC, the Lenders and the
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Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Company upon the terms and subject to
the conditions set forth therein;
WHEREAS, the Company is a member of an affiliated group of companies and
individuals that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Company to make valuable transfers
to one or more of the other Grantors in connection with the Mergers (as defined
in the Credit Agreement);
WHEREAS, the Company and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Company under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the Agent
and the Lenders to enter into the Credit Agreement and to induce the Lenders to
make their respective extensions of credit to the Company thereunder, each
Grantor hereby agrees with the Agent, for the ratable benefit of the Lenders, as
follows:
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SECTION 1.
DEFINED TERMS
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1.1 Definitions.
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(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement, and the following terms which are defined in the New York UCC
are used herein as so defined: Accounts, Chattel Paper, Deposit Accounts,
Documents, Equipment, Farm Products, Instruments, Inventory, Investment
Property, Promissory Note and Security Entitlements.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may
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be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 3.
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"Collateral Accounts": collectively, any collateral account
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established by the Agent as provided in Section 7.2 and the Deposit Accounts.
"General Intangibles": all "general intangibles" as such term is defined
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in the New York UCC and, in any event, including, without limitation, with
respect to any Grantor, all contracts, agreements, instruments and indentures in
any form, and portions thereof, to which such Grantor is a party or under which
such Grantor has any right, title or interest or to which such Grantor or any
property of such Grantor is subject, as the same may from time to time be
amended, supplemented or otherwise modified, including, without limitation, (i)
all rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform and
to exercise all remedies thereunder, in each case to the extent the grant by
such Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is not
prohibited by an effective provision of such contract, agreement, instrument or
indenture requiring the consent of any other party thereto or which would give
any other party to such contract, agreement, instrument or indenture the right
to terminate its obligations thereunder, unless all necessary consents to such
grant of a security interest have been obtained from the other parties thereto
(it being understood that the foregoing shall not be deemed to obligate such
Grantor to obtain such consents); provided, that the foregoing limitation shall
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not affect, limit, restrict or impair the grant by such Grantor of a security
interest pursuant to this Agreement in any Receivable or any money or other
amounts due or to become due under any such contract, agreement, instrument or
indenture.
"Guarantors": the collective reference to each Grantor other than the
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Company.
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"Hedging Agreements": as to any Person, all interest rate
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swaps, caps or collar agreements or similar arrangements entered into by such
Person providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Issuers": the collective reference to each issuer of a
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Pledged Security.
"MOB Subsidiary": the Subsidiaries listed on Schedule 1
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hereto.
"New York UCC": the Uniform Commercial Code as from time to
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time in effect in the State of New York.
"Pledge Amendment": as defined in subsection 5.1.
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"Pledged G&L Interests": all Capital Stock of the Company
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owned by the REIT or by any of the Key Principals or their Affiliates, including
the Capital Stock of the Company listed on Schedule 2, together with any other
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shares, certificates, options or rights of any nature whatsoever in respect of
the Capital Stock of the Company that may be issued or granted to, or held by,
any Grantor while this Agreement is in effect.
"Pledged Notes": all promissory notes listed on Schedule 2 and
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all other promissory notes at any time made by any of (i) the REIT, (ii) the
Company (iii) any MOB Subsidiary or (iv) a Key Principal or an Affiliate of a
Key Principal in favor of the REIT or the Company.
"Pledged REIT Stock": all common stock of the REIT owned by
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any of the Key Principals or their Affiliates, including the Capital Stock of
the REIT listed on Schedule 2, together with any other shares, stock
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certificates, options or rights of any nature whatsoever in respect of the
common stock of the REIT that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect.
"Pledged Securities": the collective reference to the Pledged
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Notes and the Pledged Stock.
"Pledged Stock": the collective reference to the Pledged G&L
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Interests and the Pledged REIT Stock.
"Proceeds": all "proceeds" as such term is defined in the New
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York UCC and, in any event, shall include, without limitation, all dividends,
interest, principal, cash, other income or other collections thereon or
distributions or payments with respect thereto and any instruments, options,
rights, securities, or other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Securities as a result of a merger, reorganization, stock split,
reclassification, recapitalization or other similar change relating to the
Pledged Securities or otherwise.
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"Recourse Amounts": the sum of, without duplication, (a)
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collectively, the amount of any loss, damage, cost, expense, liability, claim or
obligation incurred by the Agent on behalf of the Lenders, or any Lender
(including attorneys' fees and costs reasonably incurred) arising out of or in
connection with (but only to the extent of) the following: (i) misrepresentation
or fraud by a Guarantor or an Affiliate thereof who holds Capital Stock of the
REIT or the Company, including the non-disclosure of liabilities of the REIT or
the Company, (ii) gross negligence or criminal acts of a Credit Party resulting
in forfeiture, seizure or loss of any portion of an MOB Property or the Capital
Stock of a Person who owns, directly or indirectly, an MOB Property, (iii) the
misapplication or misappropriation by a Credit Party of any proceeds, rents or
other revenues from an MOB Property, dividends or distributions from a
Subsidiary or the Proceeds of Collateral, (iv) the breach by the Company of
Section 6.4 of the Credit Agreement, (v) the collection of the Obligations or
the enforcement of the Agent's and the Lenders' rights and remedies under the
Loan Documents, (vi) the protection of the Agent's right in, or the value of,
the Collateral, the Capital Stock of a Subsidiary or any MOB Property and (vii)
the occurrence of an event of default of any Indebtedness owed to Nomura Asset
Capital Corporation or Tokai Bank of California as a direct result of the
execution and delivery of the Loan Documents or the assertion by such Lenders
that such event of default has occurred, (b) as of the date any claim is made
pursuant to Section 2, the aggregate outstanding principal amount and any other
amount due and owing to the Company or the REIT pursuant to the Pledged Notes
made by any of the Key Principals or their Affiliates, (c) as of the date any
claim is made pursuant to Section 2, the aggregate amount due and owing by the
Company pursuant to subsections 2.4(b), 2.4(c), 2.4(d) and 2.4(e) of the Credit
Agreement, (d) any amounts due and owing pursuant to the Environmental Indemnity
Agreement and (e) the aggregate amount expended by the REIT or the Company on or
after the Closing in respect of, without duplication, (i) liabilities of the
REIT relating to assets or operations other than that of the REIT Subsidiaries,
the Company, the Company's Subsidiaries or an MOB Property, including amounts
contributed to, loaned to or used to purchase Capital Stock of, a Spin Off
Entity or a Subsidiary of a Spin Off Entity (other than contributions made to
effectuate the Spin Off) and (ii) liabilities (whether incurred prior or
subsequent to the Spin Off) related to the operations conducted by or assets or
properties owned by, as of the date hereof after giving effect to the Spin Off,
a Spin Off Entity or any of its Subsidiaries.
"REIT Indirect Subsidiaries": collectively, G&L Realty
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Financing Partnership II,L.P., a Delaware limited partnership and G&L Medical
Partnership, L.P., a Delaware limited partnership.
"Securities Act": the Securities Act of 1933, as amended.
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1.2 Other Definitional Provisions.
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(a) The words "hereof," "herein," "hereto" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and Schedule references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2.
GUARANTEE
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2.1 Guarantee.
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(a) Subject to Section 2.7, each of the Guarantors hereby,
jointly and severally, unconditionally and irrevocably, guarantees to the Agent,
for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by each Credit Party when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations of such Credit Party (other than
the applicable Guarantor).
(b) The guarantee contained in this Section 2 shall remain
in full force and effect until all the Obligations shall have been satisfied by
payment in full and the Commitments shall be terminated.
(c) No payment made by the Company, any of the Guarantors,
any other guarantor or any other Person or received or collected by the Agent or
any Lender from the Company, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by such Guarantor
in respect of the Obligations or any payment received or collected from such
Guarantor in respect of the Obligations), remain liable for the Obligations up
to the maximum liability of such Guarantor hereunder until the Obligations are
paid in full and the Commitments are terminated.
2.2 No Subrogation. Notwithstanding any payment made by any
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Guarantor hereunder or any set-off orapplication of funds of any
Guarantor by the Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Agent or any Lender against the Company
or any other Guarantor or any collateral
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security or guarantee or right of offset held by the Agent or any Lender for the
payment of the Obligations, nor shall any Guarantor seek or be entitled to seek
any contribution or reimbursement from the Company or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Agent and the Lenders by the Company on account of the Obligations are paid
in full and the Commitments are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Agent and the Lenders, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Agent in the exact form received by such Guarantor (duly indorsed by
such Guarantor to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the Agent may
determine.
2.3 Amendments, etc. with Respect to the Obligations. Each
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Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Agent or any Lender may be rescinded by the Agent or such Lender and any
of the Obligations continued, and the Obligations, or the liability of any other
Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Agent (or the Majority Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the Agent
or any Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for the guarantee contained in this Section 2
or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. Each Guarantor waives
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any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
the guarantee contained in this Section 2 or acceptance of the guarantee
contained in this Section 2; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between the Company and any of the Guarantors, on
the one hand, and the Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Company or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that the guarantee contained in this
Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan
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Document, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Company or any other Person against the Agent
or any Lender, or (c) any other circumstance whatsoever (with or without notice
to or knowledge of the Company or such Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Company for the
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Agent or any Lender may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
the Company, any other Guarantor or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Agent or any Lender to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Company, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Agent or any Lender against any Guarantor. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.5 Reinstatement. The guarantee contained in this Section 2 shall
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continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.6 Payments. Each Guarantor hereby guarantees that payments
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hereunder will be paid to the Agent without set-off or counterclaim in Dollars
at the office of the Agent set forth in the Credit Agreement.
2.7 Limitations on Guarantee. Notwithstanding anything to the
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contrary contained in this Agreement, other than with respect to Recourse
Amounts, unless at the time that the Agent, for the ratable benefit of the
Lenders, asserts a claim hereunder or at any time thereafter (the occurrence of
any such event or state of facts, a "Recourse Event"): (a) any event or act
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described in Section 7(f) of the Credit Agreement shall have occurred, (b) the
Company shall have breached any covenant contained in Section 5.1(a) or Section
5.2 of the Credit Agreement and, if the same is susceptible of cure, the same
shall not have been cured within thirty (30) days after written notice thereof
from the Agent, (c) any representation or warranty made or deemed made by a
Guarantor herein or in any other Loan Document or which is contained in any
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certificate, document or financial or other statement furnished by it at any
time under or in connection this Agreement or any such other Loan Document shall
prove to have been incorrect in any material respect on or as of the date made
or deemed made; or (d) any Credit Party shall default in the observance or
performance of any agreement contained in Section 5 of this Agreement; the
recourse of the Agent, on behalf of the Lenders pursuant to this Section 2,
shall be limited to the Collateral hereunder pledged by the Company and the
REIT, the Pledged G&L Interests, the Capital Stock of the REIT Subsidiaries and
related Collateral.
SECTION 3.
GRANT OF SECURITY INTEREST
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Each Grantor hereby assigns and transfers to the Agent, and hereby
grants to the Agent, for the ratable benefit of the Lenders, a security interest
in, all of the following property now owned or at any time hereafter acquired by
such Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"), in each
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case, as his interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise) as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) Account No. 8606073382 maintained by the Company with PNC
Bank, National Association pursuant to the MOB Cash Collateral Account Agreement
(together with any successor or replacement accounts), Account No. 055700508
maintained by the Company with United California Bank pursuant to the Rent
Collection Cash Collateral Account Agreement (together with any successor or
replacement accounts) (collectively, the "Perfected Deposit Accounts"), the MOB
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Cash Collateral Account, the Cigna Cash Collateral Account, the Rent Collection
Cash Collateral Account and all Deposit Accounts containing funds required to be
deposited pursuant to Section 5.3 of the Credit Agreement (collectively, with
the Perfected Deposit Accounts, "the Deposit Accounts");
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(b) all Hedging Agreements entered into by a Grantor with respect
to Indebtedness under the Loans;
(c) all Pledged Securities;
(d) all Accounts, Chattel Paper, Documents, General Intangibles,
Instruments, Investment Property and Security Entitlements of the Company and
the REIT;
(e) all books and records in each case pertaining to the
foregoing clauses (a) through (d) and other rights and obligations of any kind,
arising out of or in connection with any and all of the foregoing; and
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(f) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding any other provision of this Agreement, prior to the
occurrence of a Recourse Event, the Agent, on behalf of the Lenders, shall not
exercise remedies (other than in respect of Recourse Amounts) against the
Pledged REIT Stock.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
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To induce the Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to the
Company thereunder, each Grantor hereby represents and warrants to the Agent and
each Lender that:
4.1 Organization; Authority.
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(a) The REIT (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (iv) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each of the Grantors other than the Key Principals has the
corporate, partnership or limited liability company power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party and has taken all necessary corporate, partnership or limited liability
company action to authorize the execution, delivery and performance of the Loan
Documents to which it is a party.
(c) Each Key Principal has the legal capacity and the legal right
to make, deliver and perform the Loan Documents to which he is a party.
(d) No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which any Grantor is a party. This
Agreement has been, and each other Loan Document to which it is a party will be,
duly executed and delivered on behalf of such Grantor. This Agreement
constitutes, and each other Loan Document to which it is a party when executed
and delivered will constitute, a legal, valid and binding obligation of such
Grantor enforceable against such Grantor, by each other party thereto, in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent
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conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(e) The execution, delivery and performance of the Loan Documents
to which each Grantor is a party will not violate any Requirement of Law or
Contractual Obligation of such Grantor or of any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien on any of its
or their respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation (other than pursuant to this Agreement).
(f) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of each
Grantor, threatened by or against each Grantor or any of its Subsidiaries or
against any of its or their respective properties or revenues (x) with respect
to any of the Loan Documents, (y) other than as set forth on Schedule 4.1, with
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respect to any of the transactions contemplated hereby or under the Loan
Documents, or (z) which could reasonably be expected to have a Material Adverse
Effect.
4.2 Representations in Credit Agreement. In the case of each
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Guarantor, the representations and warranties set forth in subsections 3.7,
3.12, 3.13 and 3.16 of the Credit Agreement as they relate to such Guarantor or
such Guarantor's Subsidiary or to the Loan Documents to which such Guarantor is
a party, each of which is hereby incorporated herein by reference, are true and
correct, and the Agent and each Lender shall be entitled to rely on each of them
as if they were fully set forth herein, provided that each reference in each
such representation and warranty to the Company's knowledge shall, for the
purposes of this Section 4.2, be deemed to be a reference to such Guarantor's
knowledge.
4.3 Title; No Other Liens. Except for the security interest granted
---------------------
to the Agent for the ratable benefit of the Lenders pursuant to this Agreement
and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral purported to be owned
by it free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Agent, for the ratable benefit of the Lenders,
pursuant to this Agreement or as are permitted by the Credit Agreement.
4.4 Perfected First Priority Liens. The security interests granted
------------------------------
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 4.4 (which, in the case of all filings and other documents
------------
referred to on said Schedule, have been delivered to the Agent in completed and
duly executed form) will constitute valid perfected security interests in all of
the Collateral in favor of the Agent, for the ratable benefit of the Lenders, as
collateral security for such Grantor's Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor and (b) are prior to all
other Liens on the Collateral in existence on the date hereof.
11
4.5 Locations of Grantors. On the date hereof, (i) the jurisdictions
---------------------
of organization of each Grantor except for the Key Principals and (ii) the
locations of each residence of each Key Principal are specified on Schedule 4.5
------------
and such jurisdictions and locations listed on Schedule 4.5 provide accurate
------------
information as to the location of each Grantor within the meaning of Section
9-307 of the New York UCC.
4.6 Farm Products. None of the Collateral constitutes, or is the
-------------
roceeds of, Farm Products.
4.7 Pledged Securities.
------------------
(a) The shares of Pledged Stock pledged by such Grantor hereunder
constitute all the issued and outstanding shares of all classes of the Capital
Stock of the Company owned by such Grantor and all of the issued and outstanding
shares of the common stock of the REIT owned by such Grantor. The Pledged G&L
Interests constitutes at least 95% of the outstanding Capital Stock of the
Company. The Pledged REIT Stock constitutes all of the outstanding common stock
of the REIT.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
4.8 Hedging Agreement.
-----------------
(a) No consent of any party (other than such Grantor) to any
Hedging Agreement is required, or purports to be required, in connection with
the execution, delivery and performance of this Agreement.
(b) Each Hedging Agreement is in full force and effect and
constitutes a valid and legally enforceable obligation of the parties thereto,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
12
(c) Each Grantor has delivered to the Agent a complete and
correct copy of each Hedging Agreement, including all amendments, supplements
and other modifications thereto.
SECTION 5.
COVENANTS
---------
Each Grantor covenants and agrees with the Agent and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full and the Commitments shall have terminated:
5.1 Delivery of Instruments, Promissory Notes, Chattel Paper, Pledged
----------------------------------------------------------------------
Securities and Certain Funds.
----------------------------
(a) If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument, Promissory Note or
Chattel Paper, such Instrument, Promissory Note or Chattel Paper shall be
immediately delivered to the Agent together with a Pledge Amendment
substantially in the form of Exhibit A hereto (a "Pledge Amendment"), duly
----------------
indorsed in a manner satisfactory to the Agent, to be held as Collateral
pursuant to this Agreement. Such Grantor hereby authorizes the Agent to attach
each schedule constituting part of a Pledge Amendment to the applicable schedule
of this Agreement and agrees that all Instruments, Promissory Notes, Chattel
Paper listed on any Pledge Amendment delivered to the Agent shall for all
purposes hereunder constitute Collateral, and such Grantor shall be deemed upon
delivery thereof to have made the representations and warranties, as applicable,
set forth in Section 4 with respect to such Collateral. Such Grantor further
agrees to execute and deliver such other documents and to take such other
actions as the Agent deems reasonably necessary or desirable to create and
perfect the security interests intended to be created hereunder, to effect the
foregoing and to permit the Agent to exercise any of its rights and remedies
hereunder.
(b) If such Grantor shall become entitled to receive or shall
receive any stock certificate (including, without limitation, any certificate
representing a stock 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 in respect of the Capital
Stock of any Issuer (other than preferred stock of the Company), whether in
addition to, in substitution of, as a conversion of, or in exchange for, any
shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall
accept the same as the agent of the Agent and the Lenders, hold the same in
trust for the Agent and the Lenders and immediately deliver the same forthwith
to the Agent, together with a Pledge Amendment, in the exact form received, duly
indorsed by such Grantor to the Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such Grantor and
with, if the Agent so requests, signature guaranteed, to be held by the Agent,
subject to the terms hereof, as additional collateral security for the
Obligations. Such Grantor hereby authorizes the Agent to attach each schedule
constituting part of a Pledge Amendment to the applicable
13
schedule of this Agreement and agrees that all such stock certificates, options
or rights listed on any Pledge Amendment delivered to the Agent shall for all
purposes hereunder constitute Collateral, and such Grantor shall be deemed upon
delivery thereof to have made the representations and warranties, as applicable,
set forth in Section 4 with respect to such Collateral. Such Grantor further
agrees to execute and deliver such other documents and to take such other
actions as the Agent deems reasonably necessary or desirable to create and
perfect the security interests intended to be created hereunder, to effect the
foregoing and to permit the Agent to exercise any of its rights and remedies
hereunder.
(c) Any sums paid upon or in respect of the Pledged Securities
upon the liquidation or dissolution of any Issuer shall be paid over to the
Agent to be held by it hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Securities or any property shall be distributed upon or
with respect to the Pledged Securities, pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property or capital so distributed shall be delivered to the Agent
to be held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or distributed in respect
of the Pledged Securities shall be received by such Grantor, such Grantor shall,
until such money or property is paid or delivered to the Agent, hold such money
or property in trust for the Lenders, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
5.2 Payment of Obligations. Such Grantor will pay and discharge or
----------------------
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.3 Maintenance of Perfected Security Interest; Further
---------------------------------------------------
Documentation.
-------------
(a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.4 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Agent and the Lenders from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the Agent
may reasonably request, all in reasonable detail.
14
(c) At any time and from time to time, upon the written request
of the Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted, including,
without limitation, the filing of any financing or continuation statements under
the Uniform Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created hereby.
5.4 Changes in Locations, Name, etc. Such Grantor will not, except
-------------------------------
upon 15 days' prior written notice to the Agent and delivery to the Agent of all
additional executed financing statements and other documents reasonably
requested by the Agent to maintain the validity, perfection and priority of the
security interests provided for herein:
(a) change the location of its jurisdiction of organization or
utilize an additional residence, as applicable, from those referred to in
Section 4.5; or
(b) change its name, identity or corporate, partnership or
limited liability company structure to such an extent that any financing
statement filed by the Agent in connection with this Agreement would become
misleading.
5.5 Notices. Such Grantor will advise the Agent and the Lenders
-------
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Agent to exercise any of its remedies
hereunder; and
(b) of the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.6 Limitation on Liens etc.
------------------------
(a) Without the prior written consent of the Agent, such Grantor
will not (i) vote to enable, or take any other action to permit, any Issuer to
(A) issue any stock or other equity securities of any nature, (B) issue any
other securities convertible into, or granting the right to purchase, or
exchange for, any stock or other equity securities of any nature of any Issuer,
or (C) have any Capital Stock of the Company represented by any certificates,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Collateral or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement and, in the case of the
Pledged Stock held by a Key Principal to an Acceptable Affiliate), (iii) create,
incur or permit to exist any Lien or option in favor of, or any claim of any
Person with respect to, any of the Collateral or Proceeds thereof except for the
security interest created by the Loan Documents, or (iv) enter into any
agreement or undertaking restricting the right or ability of such Grantor or the
Agent to sell, assign or transfer any of the Pledged Securities or Proceeds
thereof.
15
5.7 Hedging Agreements.
------------------
(a) Such Grantor will perform and comply in all material respects
with all its obligations under the Hedging Agreements.
(b) Such Grantor will not amend, modify, terminate or waive any
provision of any Hedging Agreement other than the replacement of such Hedging
Agreement with another Hedging Agreement meeting the requirements of Section 5.4
of the Credit Agreement.
(c) Such Grantor will deliver to the Agent a copy of each
material demand, notice or document received by it relating in any way to any
Hedging Agreement that questions the validity or enforceability of such Hedging
Agreement.
(d) Such Grantor shall not change the payment instructions
delivered to counterparty of the Hedging Agreement for its use in sending
payments to the Grantor under the Hedging Agreement without the Agent's prior
written consent to each new payment instruction.
(e) Such Grantor will deposit and instruct any counterparty to a
Hedging Agreement to deposit, as applicable, amounts owed to the Company
pursuant to such Hedging Agreement into the MOB Cash Collateral Account.
(f) Such Grantor, at Grantor's expense, shall take all actions
reasonably requested by the Agent to enforce Grantor's rights under the Hedging
Agreement in the event of a default by the counterparty thereto.
5.8 Further Assurances. In the case of each Grantor which is an
------------------
Issuer, such Issuer agrees that (a) it will be bound by the terms of this
Agreement relating to the Pledged Securities issued by it and will comply with
such terms insofar as such terms are applicable to it, (b) it will notify the
Agent promptly in writing of the occurrence of any of the events described in
Section 5.1(b) with respect to the Pledged Securities issued by it and (c) it
will comply with the terms of Sections 7.1(c) and 7.5, mutatis mutandis, with
------- --------
respect to all actions that may be required of it pursuant to Section 7.1(c) or
7.5 with respect to the Pledged Securities issued by it.
5.9 Covenants upon an Event of Default.
----------------------------------
(a) Upon an Event of Default, the Key Principals and the REIT
will cause the REIT Subsidiaries, to manage the REIT Indirect Subsidiaries as
directed by the Agent, including using their reasonable best efforts to cause
the independent director of the REIT Subsidiaries and the REIT to take such
actions as may be necessary to manage the REIT Indirect Subsidiaries as directed
by the Agent, provided that it shall not be a breach of this covenant if one of
--------
the REIT Indirect Subsidiaries does not take an action which the Agent has
directed to be taken, if such action was not taken solely because such action
requires that unanimous consent of the board of directors of the REIT and the
consent of the independent director of the REIT was, despite the reasonable best
efforts of the Key Principals and the REIT, not obtained.
16
(b) Upon an Event of Default and an exercise of remedies
under this Agreement, the Key Principals and the REIT will take any and all
actions to facilitate the transfer of the Pledged G&L Interest to the Agent or
its transferee, including but not limited to, consenting to the admission of
such Persons as the general partner or, substitute limited partner of the
Company.
5.10 Company Limited Partnership Agreement. Such Grantor shall
-------------------------------------
not permit the agreement of limited partnership of the Company to be amended,
without the consent of the Majority Lenders.
5.11 Capital Stock of the Company. Such Grantor shall cause any
----------------------------
put of the Capital Stock of the Company to the Company by the Key Principals or
the REIT to be paid in Capital Stock of the REIT, rather than in cash.
5.12 Board of Directors of the REIT. Such Grantor shall cause
------------------------------
there to be at least one duly appointed member of the board of directors of the
REIT (an "Independent Director"), who shall not be at the time of such
individual's appointment, or during the term of such individual's appointment at
any time during the two years preceding his or her appointment (A) a member,
stockholder, partner, director, officer or employee of any Credit Party (other
than a REIT Subsidiary) or any of their respective Affiliates (other than a REIT
Subsidiary); (B) affiliated with a significant customer or supplier of any
Credit Party or any of their respective Affiliates; (C) any other Person
receiving a material portion of his or her compensation or other financial
remuneration from or who is otherwise financially dependent on, any Credit
Party, an officer, director or employee of any Credit Party (other than a REIT
Subsidiary) or any of their respective Affiliates or an officer's, director's or
employee's family member by blood or marriage or a business entity owned or
controlled by any of the foregoing; or (D) a spouse, parent, sibling or child of
any person described by (A), (B) or (C) above.
5.13 Pledged Notes. Such Grantor will not amend, modify,
-------------
terminate or waive any provision of any Pledged Note.
SECTION 6.
ADDITIONAL COVENANTS
6.1 Covenants in Credit Agreement. The REIT covenants and agrees
-----------------------------
with the Agent and the Lenders that, from and after the date of this Agreement
until the Obligations shall have been paid in full and the Commitments shall
have terminated, the REIT shall take, or shall refrain from taking, as the case
may be, and shall cause the Subsidiaries of the REIT and the REIT Indirect
Subsidiaries to take or refrain from taking each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action.
6.2 Payments, Existence, Etc. The REIT hereby agrees with the
-------------------------
Agent and the Lenders that, from and after the date of this Agreement until the
Obligations shall
17
have been paid in full and the Commitments shall have terminated, the REIT shall
and shall cause each of the REIT Subsidiaries and REIT Indirect Subsidiaries to:
(a) Pay, discharge or otherwise satisfy, at or before
maturity or before they become delinquent, as the case may be, all of its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
such Person;
(b) Continue to preserve, renew and keep in full force and
effect its corporate, or limited partnership existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
6.3 Indebtedness; Liens, Structure, Etc. The REIT hereby agrees
-----------------------------------
with the Agent and the Lenders that, from and after the date of this Agreement
until the Obligations shall have been paid in full and the Commitments shall
have terminated, the REIT will not and will not permit the REIT Subsidiaries and
the REIT Indirect Subsidiaries to, directly or indirectly:
6.3.1 Limitation on Indebtedness. Create, incur, assume or suffer
--------------------------
to exist any Indebtedness, including any Indebtedness secured by a Lien on an
Nomura Property, except:
(a) Indebtedness under this Agreement or the Credit
Agreement;
(b) Indebtedness of the REIT Indirect Subsidiaries to the
REIT or the REIT Subsidiaries;
(c) Indebtedness of the REIT Indirect Subsidiaries
outstanding on the date hereof and listed on Schedule 6.3.1(c);
-----------------
(d) any refinancings, refundings, renewals or extensions of
Indebtedness permitted pursuant to Section 6.3.1(c), (i) for which a Right of
First Offer has been made and (ii) which has been provided for in an Approved
Annual Budget or approved by the Agent, in its reasonable discretion, provided
that any payments required to be made pursuant to Sections 2.4(d) and 2.4(e) of
the Credit Agreement have been made in respect of such refinancing, refundings,
renewals or extension;
(e) Indebtedness of the REIT outstanding as of the date
hereof related to the lines of credit of the Subsidiaries of the REIT with
Healthcare Business Credit Corp. secured by the accounts receivable of such
Subsidiaries of the REIT provided that the aggregate principal amount of such
--------
Indebtedness shall not exceed $3,100,000 at any time;
18
(f) refinancings, refundings, renewals, replacements or
extensions of Indebtedness permitted pursuant to Section 6.3.1(e) above,
provided that the aggregate principal amount of the Indebtedness permitted to be
--------
incurred pursuant to Section 6.3.1(e) above and such refinancings, refundings,
renewals, replacements or extensions permitted pursuant to this clause (f) shall
not exceed $3,100,000 at any time;
(g) other Indebtedness of the REIT outstanding on the date
hereof and listed on Schedule 6.3.1(g); and
----------------
(h) other Indebtedness of the REIT in an aggregate
principal amount not to exceed $2,000,000 consisting of a line of credit or
Guarantee Obligations or any combination thereof, provided that the terms and
--------
documentation of such Indebtedness shall be reasonably satisfactory to the
Agent.
6.3.2 Limitation on Liens. Create, incur, assume or suffer
-------------------
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, including any Lien on any Nomura Property, except
for:
(a) Liens for Taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the applicable
Person in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the such Person;
(f) Liens in existence on the date hereof listed on
Schedule 6.3.2, securing Indebtedness permitted by subsection 6.3.1(c),
--------------
provided that no such Lien is spread to cover any additional property after the
Closing and that the amount of Indebtedness secured thereby is not increased;
19
(g) Liens securing Indebtedness permitted by subsection 6.3.1
(d), provided that the property encumbered by such Lien was encumbered by a Lien
securing the Indebtedness refinanced, refunded, renewed or extended pursuant to
Section 6.3.1(d) prior to such refinancing, refunding, renewal or extension and
that such Lien, after giving effect to such refinancing, refunding, renewal or
extension does not spread to cover any additional property not encumbered prior
to such refinancing, refunding, renewal or extension;
(h) Liens created hereunder;
(i) Liens, if any, for Other Charges not yet payable; and
(j) the Leases.
6.3.3 Limitation on Guarantee Obligations. Other than as permitted by
-----------------------------------
Section 6.3.1 above, create, incur, assume or suffer to exist any Guarantee
Obligation.
6.3.4 Limitation on Structure and Operation of Business.
-------------------------------------------------
With respect to the REIT Subsidiaries and the REIT Indirect
Subsidiaries only,
(a) Own any property or any other assets other than (i) its fee
interest in a Nomura Property or the Capital Stock of a Subsidiary of the REIT
and (ii) incidental personal and intangible property relating to the foregoing
respective interests.
(b) Engage in any business other than business related to its
respective interest, as specified in clause (a) above, with respect to the
applicable Nomura Properties.
(c) Incur liabilities, contingent or otherwise, other than (i)
those normal and incidental to its interest in the applicable Nomura Properties
as stated in clause (a) above and (ii) those permitted under Section 6.3.1.
(d) Hold itself out to be responsible for the debts or
obligations of any other Person (other than, in the case of the REIT
Subsidiaries, a REIT Indirect Subsidiary of which it is a general partner).
(e) Enter into any transaction, contract or agreement with any
of its Affiliates, any of its constituent parties or any Affiliate of any
constituent party, except upon terms and conditions that are substantially
similar to those that would be available on an arm's-length basis with third
parties.
(f) Commingle it funds and other assets with those of any
Affiliate or constituent party or any Affiliate of any constituent party or any
other Person (other than the Company, the Company's Subsidiaries, its general
partner's, if any, or a REIT Subsidiary).
20
(g) Without the unanimous consent of the board of directors of
the REIT (including in all instances the Independent Director), dissolve or
liquidate, in whole or in part.
(h) Amend, modify or otherwise change or suffer any constituent
party to amend, modify or otherwise change the provisions of its certificate of
incorporation or partnership agreement or operating agreement, if such amendment
could materially adversely affect any of the requirements of this Section
applicable to it.
(i) Fail to observe each of the following:
(i) remain solvent and pay its debts and liabilities
(including employment and overhead expenses) from its assets as the same
shall become due;
(ii) do all things necessary to observe corporate,
partnership or limited liability company formalities, as the
case may be, and
preserve its existence;
(iii) maintain books and records and bank accounts separate
from those of any other Person (including its Affiliates, any constituent
party and any Affiliate of any constituent party but excluding, the
Company, the Company's Subsidiaries, its general partner's, if any, or a
REIT Subsidiary) and file its own tax returns (except to the extent
consolidation or inclusion is required as a matter of law);
(iv) hold itself out to the public as, a legal entity
separate and distinct from any other entity (including any of its
Affiliates, any of its constituent parties or any Affiliate of any
constituent party but excluding the Company, the Company's Subsidiaries,
its general partner's, if any, or a REIT Subsidiary);
(v) maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light
of its contemplated business operations;
(vi) maintain its assets in such a manner that it will not
be costly or difficult to segregate, ascertain or identify its individual
assets from those of any Affiliate or constituent party or any Affiliate of
any constituent party or any other Person; and
(j) permit any Person, including but not limited to, the REIT,
the Key Principals or the Spin Off Entities to conduct the REIT Subsidiaries',
or the REIT Indirect Subsidiaries' businesses in the name of such other Person;
or utilize the stationery, invoices or checks of any other Person, including but
not limited to, the REIT, the Key Principals, or the Spin Off Entities.
21
6.3.5 Limitation on Fundamental Changes and Sale of Assets. Enter
----------------------------------------------------
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, Collateral, a Nomura Property,
or any Capital Stock of a REIT Subsidiary or a REIT Indirect Subsidiary, or all
or substantially all of its property, business or assets, or make any material
change in its present method of conducting business, except:
(a) pursuant to a Lease in compliance with Section 6.16 of the
Credit Agreement;
(b) pursuant to Liens permitted by Section 6.2; or
(c) an MOB Property Sale consented to by the Agent in its
reasonable discretion, provided that, any payments required to be made pursuant
to Section 2.4 of the Credit Agreement have been made in respect of such sale or
transfer.
6.4 Limitation on Restrictions on the Subsidiaries of the REIT.
----------------------------------------------------------
Notwithstanding anything herein to the contrary, any Subsidiary of the REIT
other than the REIT Subsidiaries, the REIT Indirect Subsidiaries, the Company or
the Company's Subsidiaries shall not be prohibited hereunder from taking any
action including, but not limited to, the incurrence of Indebtedness, or the
encumbrance, sale, transfer or other disposition of its assets.
SECTION 7.
REMEDIAL PROVISIONS
-------------------
7.1 Pledged Stock.
-------------
(a) Unless an Event of Default shall have occurred and be
continuing and the Agent shall have given notice to the relevant Grantor of the
Agent's intent to exercise its corresponding rights pursuant to Section 7.1(b),
each Grantor shall be permitted to receive all cash dividends paid in respect of
the Pledged Stock and all payments made in respect of the Pledged Notes, in each
case paid in the normal course of business of the relevant Issuer and consistent
with past practice, to the extent permitted in the Credit Agreement, and to
exercise all voting and corporate rights with respect to the Pledged Securities;
provided, however, that with respect to the Pledged G&L Interests, no vote shall
be cast or corporate right exercised or other action taken which, in the Agent's
reasonable judgment, would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of the Credit Agreement, this
Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and
the Agent shall give notice of its intent to exercise such rights to the
relevant Grantor or Grantors, (i) the Agent shall have the right to receive any
and all cash dividends, payments or other Proceeds paid in respect of the
Pledged Securities and make application thereof to the Obligations in such order
as the Agent may determine, and
22
(ii) any or all of the Pledged Securities may be registered in the name of the
Agent or its nominee, and the Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Securities at
any meeting of shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to such Pledged Securities as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by any
Grantor or the Agent of any right, privilege or option pertaining to such
Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Agent may determine), all without liability except to account
for property actually received by it, but the Agent shall have no duty to any
Grantor 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) Each Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply
with any instruction received by it from the Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Agent.
7.2 Proceeds to be Turned Over to Agent. If an Event of Default
-----------------------------------
shall occur and be continuing, all Proceeds received by any Grantor during the
continuance of such Event of Default consisting of cash, checks and other
near-cash items shall be held by such Grantor in trust for the Agent and the
Lenders, segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the Agent in the exact form received
by such Grantor (duly indorsed by such Grantor to the Agent, if required). All
Proceeds received by the Agent hereunder shall be held by the Agent in a
Collateral Account maintained under its sole dominion and control. If such
Proceeds consist of cash, the Agent will hold such proceeds in the MOB Cash
Collateral Account. All such Proceeds shall be held by the Agent in such
Collateral Account (or by such Grantor in trust for the Agent and the Lenders)
during the continuance of such Event of Default as collateral security for all
the Obligations and shall not constitute payment thereof until applied toward
the payment of such Obligations as provided in Section 7.3.
7.3 Application. At such intervals as may be agreed upon by the
-----------
Company and the Agent, or, if an Event of Default shall have occurred and be
continuing, at any time at the Agent's election, the Agent may apply all or any
part of any Collateral Account towards the payment of the Obligations in such
order as the Agent may elect, and any part of such funds which the Agent elects
not so to apply and deems not required as collateral security for the
Obligations shall be paid over from time to time by the Agent to the Company or
to whomsoever may be lawfully entitled to receive the same.
23
Funds in the MOB Cash Collateral Account and the Cigna Cash Collateral Account
shall be released to the Company in accordance with the Credit Agreement and the
Cash Collateral Agreements. Any balance in the Collateral Accounts remaining
after the Obligations shall have been paid in full and the Commitments shall
have terminated shall be paid over to the Company or to whomsoever may be
lawfully entitled to receive the same.
7.4 Code and Other Remedies. If an Event of Default shall occur and
-----------------------
be continuing, the Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted to them in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Agent,
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 any Grantor or any other Person (all and each of which
demands, defenses, advertisements and 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, lease, 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, at any exchange, broker's
board or office of the Agent or any Lender 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 Agent or any Lender 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 any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Agent's request, to assemble the
Collateral and make it available to the Agent at places which the Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The Agent
shall apply the net proceeds of any action taken by it pursuant to this Section
7.4, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith 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 Agent
and the Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in such order as the Agent may elect, and only after such application and after
the payment by the Agent of any other amount required by any provision of law,
including, without limitation, Sections 9-608(a)(1)(C) and 9-615(a)(3) of the
New York UCC, need the Agent account for the surplus, if any, to any Grantor. To
the extent permitted by applicable law, each Grantor waives all claims, damages
and demands it may acquire against the Agent or any Lender arising out of the
exercise by them of any rights hereunder. 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.
24
7.5 Registration Rights.
-------------------
(a) If the Agent shall determine to exercise its right to sell
any or all of the Pledged Stock pursuant to Section 7.4, and if in the opinion
of the Agent it is necessary or advisable to have the Pledged Stock, or that
portion thereof to be sold, registered under the provisions of the Securities
Act, the relevant Grantor will cause the Issuer thereof to (i) execute and
deliver, and cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts, and in the case of
the Key Principals, commercially reasonable efforts, to cause the registration
statement relating thereto to become effective and to remain effective for a
period of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold, and (iii) make all amendments thereto
and/or to the related prospectus which, in the opinion of the Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Grantor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a 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. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall be
under no obligation to delay a sale of any of the Pledged Stock for the period
of time necessary to permit the Issuer thereof to register such securities for
public sale under the Securities Act, or under applicable state securities laws,
even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts, and in the case
of the Key Principals, commercially reasonable efforts, to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 7.5 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 7.5 will cause irreparable injury to the Agent and the Lenders,
that the Agent and the Lenders have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section 7.5 shall be specifically enforceable against such Grantor, and such
Grantor hereby waives and agrees not to assert any defenses against an action
for specific
25
performance of such covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
7.6 Waiver; Deficiency. Subject to Section 2.7, each Grantor shall
------------------
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the Agent or any Lender to
collect such deficiency.
SECTION 8.
THE AGENT
---------
8.1 Agent's Appointment as Attorney-in-Fact, etc.
--------------------------------------------
(a) Each Grantor hereby irrevocably constitutes and appoints the
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Agent the power and right, on behalf of such Grantor,
without notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any checks, drafts,
notes, acceptances or other instruments for the payment of moneys due
under any Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate
by the Agent for the purpose of collecting any and all such moneys due
under any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on
or threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iii) execute, in connection with any sale provided for in
Section 7.4 or 7.5, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral;
(iv) direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Agent or as the Agent shall direct;
(v) ask or demand for, collect, and receive payment of and
receipt for, any and all moneys, claims and other amounts due or to become
due at any time in respect of or arising out of any Collateral;
26
(vi) sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral;
(vii) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other
right in respect of any Collateral;
(viii) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral;
(ix) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases
as the Agent may deem appropriate; and
(x) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral as
fully and completely as though the Agent were the absolute owner thereof
for all purposes, and do, at the Agent's option and such Grantor's
expense, at any time, or from time to time, all acts and things which the
Agent deems necessary to protect, preserve or realize upon the Collateral
and the Agent's and the Lenders' security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 8.1(a) to the contrary notwithstanding, the
Agent agrees that it will not exercise any rights under the power of attorney
provided for in this Section 8.1(a) unless an Event of Default shall have
occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Agent incurred in connection with
actions undertaken as provided in this Section 8.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Loans under the Credit Agreement, from the date of
payment by the Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
27
8.2 Duty of Agent. The 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 New York UCC or otherwise, shall be to
deal with it in the same manner as the Agent deals with similar property for its
own account. Neither the Agent, any Lender nor any of their respective officers,
directors, 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 any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agent and the Lenders hereunder are solely to protect the
Agent's and the Lenders' interests in the Collateral and shall not impose any
duty upon the Agent or any Lender to exercise any such powers. The Agent and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
8.3 Execution of Financing Statements. Each Grantor authorizes
---------------------------------
the Agent to file or record financing statements and other filing or recording
documents or instruments with respect to the Collateral without the signature of
such Grantor in such form and in such offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this Agreement.
A photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
8.4 Authority of Agent. Each Grantor acknowledges that the
------------------
rights and responsibilities of the Agent under this Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Grantors, the Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 9.
MISCELLANEOUS
-------------
9.1 Amendments in Writing. None of the terms or provisions of
---------------------
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by each affected Grantor and the Agent,
provided that any provision of this Agreement imposing obligations on any
Grantor may be waived by the Agent in a written instrument executed by the Agent
in accordance with subsection 9.1 of the Credit Agreement.
28
9.2 Notices. All notices, requests and demands to or upon the Agent
-------
or any Grantor hereunder shall be effected in the manner provided for in
subsection 9.2 of the Credit Agreement; provided that any such notice, request
or demand to or upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on Schedule 9.2.
-------------
9.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
---------------------------------------------------
Agent nor any Lender shall by any act (except by a written instrument pursuant
to Section 9.1), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Agent or any Lender, 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 Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Agent or such Lender 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 other rights or remedies provided by law.
9.4 Enforcement Expenses; Indemnification.
-------------------------------------
(a) Each Guarantor agrees to pay or reimburse each Lender and
the Agent for all its costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing or
preserving any rights under this Agreement and the other Loan Documents to which
such Guarantor is a party, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Agent.
(b) Each Guarantor agrees to pay, and to save the Agent and the
Lenders 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 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 Agreement.
(c) Each Guarantor agrees to pay, and to save the Agent and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Company would
be required to do so pursuant to subsection 9.5 of the Credit Agreement.
(d) The agreements in this Section 9.4 shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Loan Documents.
29
9.5 Successors and Assigns. This Agreement shall be binding
----------------------
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Agent and the Lenders and their successors and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Agent.
9.6 Set-Off. Each Grantor hereby irrevocably authorizes the
-------
Agent and each Lender at any time and from time to time while an Event of
Default shall have occurred and be continuing, without notice to such Grantor or
any other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Agent or such Lender may
elect, against and on account of the obligations and liabilities of such Grantor
to the Agent or such Lender hereunder and claims of every nature and description
of the Agent or such Lender against such Grantor, in any currency, whether
arising hereunder, under the Credit Agreement, any other Loan Document or
otherwise, as the Agent or such Lender may elect, whether or not the Agent or
any Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Agent and each Lender
shall notify such Grantor promptly of any such set-off and the application made
by the Agent or such Lender of the proceeds thereof, provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent and each Lender under this Section 9.6 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Agent or such Lender may have.
9.7 Counterparts. This Agreement may be executed by one or more
------------
of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
9.8 Severability. Any provision of this 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.
9.9 Section Headings. The Section headings used in this
----------------
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
9.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Grantors, the Agent and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings,
30
representations or warranties by the Agent or any Lender relative to subject
matter hereof and thereof not expressly set forth or referred to herein or in
the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
------------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 9.2 or at such other address of
which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or consequential
damages.
9.13 Acknowledgments. Each Grantor hereby acknowledges that:
---------------
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to which
it is a party;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Agent and Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
31
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Grantors and the Lenders.
9.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ITS ACCEPTANCE
--------------------
HEREOF, THE AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Releases.
--------
(a) At such time as the Loans and the other Obligations
shall have been paid in full, the Collateral shall be released from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantors. At the request and sole expense of any Grantor following any such
termination, the Agent shall deliver to such Grantor any Collateral held by the
Agent hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Company, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Company shall have delivered to the Agent, at least ten
Business Days prior to the date of the proposed release, a written request for
release identifying the relevant Subsidiary Guarantor and the terms of the sale
or other disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a certification by the Company
stating that such transaction is in compliance with the Credit Agreement and the
other Loan Documents.
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxx
G & L REALTY CORP.
/s/ Xxxxxx X. Xxxxxxxx
By:-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
G&L REALTY PARTNERSHIP
By: G & L Realty Corp.,
Its General Partner
/s/ Xxxxxx X. Xxxxxxxx
By:---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
