PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement") dated as of
---------
March 20, 1998, is made by and between XX XXXXX OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "Partnership") having its principal
-----------
place of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
XXXXXX BROTHERS HOLDINGS INC. d/b/a XXXXXX CAPITAL, A DIVISION OF XXXXXX
BROTHERS HOLDINGS INC., a Delaware corporation having its principal place of
business at Three World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Lender").
------
R E C I T A L S:
A. The Partnership, by that certain Consolidated Amended and
Restated Promissory Note of even date herewith, is indebted to the Lender in
the principal sum of $275,000,000.00, or so much thereof as may be advanced
and unpaid, in lawful money of the United States of America (the note,
together with all extensions, renewals, modifications, substitutions and
amendments thereof shall collectively be referred to as the "Note"), with
----
interest from the date thereof at the rates set forth in the Note, principal
and interest to be payable in accordance with the terms and conditions
provided in the Note and that certain Loan Agreement dated as of the date
hereof between the Partnership and the Lender (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement").
--------------
B. The Partnership has a Membership Interest (as hereinafter
defined) equal to one hundred percent (100%) of SLG Graybar 2 LLC (the
"Company").
-------
C. As a condition to the Lender's making the loan as evidenced by
the Note, the Partnership is required to pledge and grant a security interest
in the Collateral (as hereinafter defined) as security for the Secured
Obligations (as hereinafter defined).
NOW THEREFORE, to induce the Lender to enter into the Loan
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used herein and not
-----------
otherwise defined herein have the meanings assigned to them in the Loan
Agreement. In addition, as used herein:
"Collateral" shall have the meaning assigned to such term in
----------
Section 3 hereof.
"Distribution" shall mean, with respect to the Company, a transfer
------------
of Property to a Member on account of a Membership Interest.
"Economic Interest" shall mean, with respect to the Company, the
-----------------
right to receive allocations of Profit and Loss, Distributions, returns of
capital and distributions of assets upon a dissolution of the Company.
"Event of Default" shall mean the occurrence of an Event of Default
----------------
under the Loan Agreement and any breach of representation or warranty or
violation or noncompliance with any term, covenant or condition of this
Agreement including, without limitation, Sections 2, 5 and 6 hereof.
"Management Right" shall mean, with respect to the Company, the
----------------
right of a Member to participate in the management of the Company, to vote on
any matter, and to grant or withhold consent or approval of action on behalf
of the Company.
"Member" shall mean, with respect to the Company, the members
------
executing the Operating Agreement.
"Membership Interest" shall mean, with respect to the Company, a
-------------------
Member's Economic Interest and Management Right.
"Operating Agreement" shall mean, with respect to the Company, the
-------------------
Operating Agreement of the Company as the same may have been modified or
amended.
"Profit and Loss" shall mean, with respect to the Company, the net
---------------
profit and net loss of the Company as computed in accordance with GAAP with
respect to any fiscal period of the Company.
"Property" shall many any property, real or personal, tangible or
--------
intangible, including money, and any legal or equitable interest in such
property.
"Records" shall have the meaning assigned to such term in Section
-------
2(a) hereof.
"Secured Obligations" shall mean all of the obligations under the
-------------------
Note, the Loan Agreement, the Security Instrument and all of the other Loan
Documents.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
-----------------------
as in effect from time to time in the State of New York or, as the context
may require, in effect in the state or states where any of the Collateral is
located.
Section 2. Representations and Warranties. The Partnership
------------------------------
represents and warrants to the Lender that:
(a) The chief place of business and chief executive office of the
Partnership and the office where the Partnership keeps its records
concerning the Collateral (hereinafter, collectively the "Records") and
-------
the original copies of the Operating Agreement are located, is at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) The Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business and is in good standing in
all other places where necessary in light of the business it conducts
and the property it owns and intends to conduct and own and in light of
the transactions contemplated by this Agreement. No filing, recording,
publishing or other act that has not been made or done is necessary or
desirable in connection with the existence or good standing of the
Partnership or the conduct of its business.
(c) The Partnership has the full power, authority and legal right
to execute, deliver and perform its obligations under this Agreement and
the Operating Agreement. The execution, delivery and performance by the
Partnership of this Agreement and the Operating Agreement and the
consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary partnership action. Each of this
Agreement and the Operating Agreement has been duly executed and
delivered by the Partnership, has not been amended or otherwise
modified, is in full force and effect and is the legal, valid and
binding obligation of the Partnership, enforceable against the
Partnership in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and to the
application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without
limitation, (i) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (ii) concepts of
materiality, reasonableness, good faith and fair dealing. The
Partnership is not in default in the performance of any covenant or
obligation set forth in the Operating Agreement or, to the best of the
Partnership's knowledge, in any Loan Document to which it is a party.
(d) The Partnership is the sole beneficial owner of the Collateral
pledged by it under Section 3 hereof, free and clear of all claims,
mortgages, pledges, liens, security interests and other encumbrances of
any nature whatsoever (and no right or option to acquire the same exists
in favor of any other person or entity), except for the assignment,
pledge and security interest in favor of the Lender created or provided
for herein, and agrees that it will not encumber or grant any security
interest in or with respect to the Collateral or permit any of the
foregoing.
(e) The pledge and security interest hereunder in favor of the
Lender constitutes a first priority pledge and security interest in and
to all of the Collateral pledged by the Partnership hereunder.
(f) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein will conflict with
or result in a breach of, or require any consent under, any applicable
law or regulation, or any order, writ, injunction or decree of any court
or governmental authority or agency, or any agreement or instrument to
which the Partnership is a party or by which the Partnership or the
Partnership's property is bound or to which the Partnership is subject,
or constitute a default under any such agreement or instrument, or
(except for the liens created pursuant hereto) result in the creation or
imposition of any lien or encumbrance upon any of the Partnership's
revenues or assets pursuant to the terms of any such agreement or
instrument.
(g) No authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency
are necessary for the execution, delivery or performance by the
Partnership of this Agreement or the Operating Agreement.
(h) There is no action, suit or proceeding at law or in equity by
or before any government authority, arbitral tribunal or other body now
pending, or to the best knowledge of the Partnership, threatened against
or affecting the Company, the Partnership or any of their respective
property or the Collateral which could have a material adverse effect on
such party's condition, financial or otherwise.
(i) The Partnership is not (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, or an "investment advisor" within
the meaning of the Investment Company Act of 1940 or (ii) an "electric
utility company", a "holding company" or either a "subsidiary company"
or an "affiliate" of a "holding company" as such terms are defined in
the Public Utility Holding Company Act of 1935.
(j) The sole Member of the Company is the Partnership.
Section 3. Collateral. As collateral security for the prompt
----------
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, the Partnership hereby pledges,
assigns, hypothecates and transfers to the Lender, and hereby grants to the
Lender, a lien on and security interest in, all of the Partnership's right,
title and interest in, to and under the following, whether now owned by the
Partnership or hereafter acquired and whether now existing or hereafter
coming into existence and wherever located (all being collectively referred
to herein as "Collateral"):
----------
(a) its Membership Interest in the Company, including, without
limitation, all of its right, title and interest in, to and under
the Operating Agreement of the Company, including, without
limitation, (i) all rights of the Partnership to receive moneys due
but unpaid and to become due under or pursuant to the Operating
Agreement, (ii) all rights of the Partnership to participate in the
operation or management of the Company and to take actions or
consent to actions in accordance with the provisions of the
Operating Agreement, (iii) all rights of the Partnership to
property of the Company, (iv) all rights of the Partnership to
receive proceeds of any insurance, bond, indemnity, warranty or
guaranty with respect to the Operating Agreement, (v) all claims of
the Partnership for damages arising out of or for breach of or
default under the Operating Agreement and (vi) all rights of the
Partnership to terminate, amend, supplement, modify or waive
performance under the Operating Agreement, to perform thereunder
and to compel performance and otherwise to exercise all remedies
thereunder;
(b) all certificates, if any, representing the Partnership's
Membership Interest or a distribution or return of capital upon or
with respect to its interest in the Company or resulting from a
split-up, revision, reclassification or other like change of the
Membership Interest or otherwise received in exchange therefor, and
any subscription warrants, rights or options issued to the holders
of, or otherwise in respect of, the Membership Interest;
(c) to the extent not included in the foregoing, all proceeds,
products, rents, revenues, issues, profits, royalties, income,
benefits, accessions, additions, substitutions and replacements of
and to any and all of the foregoing.
Section 4. Provisions Concerning Uncertificated Securities
-----------------------------------------------
Collateral. With respect to any portion of the Collateral (including without
----------
limitation any Membership Interest) which may now or hereafter be deemed to
be "uncertificated securities" under the Uniform Commercial Code, it is the
Partnership's intent to grant to Lender a perfected security interest in such
Collateral both by filing and by "control," as contemplated by Section
47-9115 of the Uniform Commercial Code. Accordingly, the Partnership, the
Lender and the Company hereby agree as follows:
(a) New York law and the provisions of the Uniform Commercial Code
shall govern the pledge of and security interest granted in such Collateral,
the perfection of the security interest, the effect of perfection, the
priority of the security interest, and all related matters concerning this
Agreement.
(b) The Company hereby agrees to honor any directives or instructions
received from the Lender with respect to the transfer or other disposition of
any Membership Interest without the need for any authorization or consent
from the Partnership, to the same extent as if the Lender, rather than
Partnership, was the actual owner of the Membership Interest. The
Partnership hereby expressly consents to Lender's receipt and exercise of
such rights.
(c) Nothing in the foregoing subsection (b) shall limit or reduce any
rights of the Partnership with respect to any Membership Interest, subject in
all respects to the other terms and provisions of this Agreement.
(d) The parties agree that the Company shall deliver to the Lender a
"Transaction Statement" acceptable to the Lender evidencing the notation of
the pledge of such Company's Membership Interests purusant to this Agreement.
Section 5. Covenants. The Partnership covenants and agrees:
---------
(a) The Partnership shall not (i) cancel or terminate the
Operating Agreement or consent to or accept any cancellation or
termination thereof, (ii) amend, supplement or otherwise modify the
Operating Agreement (as in effect on the date hereof and as thereafter
amended, modified or supplemented with the consent of the Lender) or
consent to same or (iii) petition, request or take any other legal or
administrative action that seeks, or may reasonably be expected, to
rescind, terminate, amend, modify or suspend the Operating Agreement or
consent to same.
(b) The Partnership shall preserve and maintain its existence as a
Delaware limited partnership and all of its licenses, rights, privileges
and franchises that are necessary or desirable for the fulfillment of
its obligations under this Agreement, the Operating Agreement and each
other Loan Document to which it is or is intended to be a party.
(c) The Partnership shall pay and discharge all taxes now or
hereafter imposed on it, on its income or profits, on any of its
property or upon the liens provided for herein prior to the date on
which penalties attach thereto; the Partnership shall promptly pay any
valid, final judgment enforcing any such tax and cause the same to be
satisfied of record and it shall also pay, or cause to be paid, when due
all claims for labor, material, supplies or services that, if unpaid,
could by law result in a mechanics' lien.
(d) The Partnership shall not create, incur, assume or suffer to
exist any lien upon any of the Collateral.
(e) The Partnership shall notify the Lender promptly upon
obtaining knowledge of any action, suit or proceeding at law or in
equity by or before any government authority, arbitral tribunal or other
body pending or threatened against the Company or the Partnership which
could result in a Material Adverse Effect (as defined in the Loan
Agreement) on the Company's or the Partnership's condition, financial or
otherwise.
(f) The Partnership shall not sell, assign, transfer or otherwise
dispose of all or any part of its Membership Interest in the Company, or
consent to the creation of any Membership Interest in the Company
without the prior consent of the Lender.
(g) The Partnership shall not without the prior consent of the
Lender voluntarily withdraw as the managing member of the Company.
(h) The Partnership shall not take or consent to any action to
terminate, dissolve or liquidate the Company or commence or consent to
the commencement of any proceeding seeking the termination, dissolution
or liquidation of the Company.
(i) Promptly after the Partnership knows or has reason to believe
that any Default or Event of Default has occurred, the Partnership shall
deliver to the Lender notice of such event describing the same in
reasonable detail together with, or as soon thereafter as possible, a
written description of the action that the Partnership has taken or
proposes to take with respect thereto.
Section 6. Further Assurances; Remedies. In furtherance of the
----------------------------
grant of the pledge and security interest pursuant to Section 3 hereof, the
Partnership hereby agrees with the Lender as follows:
6.1 Delivery and Other Perfection. The Partnership shall:
-----------------------------
(a) if any of the above-described ownership interests, shares,
securities, moneys, property or Membership Interests required to be
pledged by the Partnership under Section 3 hereof is received by the
Partnership after the occurrence and during the continuance of an Event
of Default, forthwith either (i) transfer and deliver to the Lender such
interests, money and property so received by the Partnership, all of
which thereafter shall be held by the Lender, pursuant to the term of
this Agreement, as part of the Collateral or (ii) take such other action
as the Lender shall deem necessary or appropriate to duly record the
Lien created hereunder in such ownership interests, moneys, property or
Membership Interests in said clauses;
(b) give, execute, deliver, file and/or record any financing
statement, continuation statement, notice, instrument, document,
agreement or other papers that may be necessary or desirable (in the
reasonable judgment of the Lender) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to enable the
Lender to exercise and enforce its rights hereunder with respect to such
pledge and security interest, including, without limitation, after the
occurrence and during the continuance of an Event of Default, causing
any or all of the Collateral to be transferred of record into the name
of the Lender or its nominee (and the Lender agrees that if any
Collateral is transferred into its name or the name of its nominee, it
will thereafter promptly give to the Partnership copies of any notices
and communications received by it with respect to the Collateral).
Without limiting the generality of the foregoing, the Partnership shall,
after the occurrence and during the continuance of an Event of Default,
if any Collateral shall be evidenced by a promissory note or other
instrument, deliver and pledge to the Lender such note or instrument
duly endorsed or accompanied by duly executed instruments of transfer or
assignment, all in form and substance reasonably satisfactory to the
Lender;
(c) maintain, hold and preserve full and accurate Records, and
stamp or otherwise xxxx such Records in such manner as the Lender may
reasonably require in order to reflect the security interests granted by
this Agreement; and
(d) permit representatives of the Lender, upon reasonable notice,
at any time during normal business hours to inspect and make abstracts
from its Records, and permit representatives of the Lender to be present
at the Partnership's place of business to make copies of all
communications and remittances relating to the Collateral, and forward
copies of any notices or communications received by the Partnership with
respect to the Collateral, all in such manner as the Lender may require.
6.2 Other Financing Statements and Liens. Without the prior
------------------------------------
consent of the Lender, the Partnership shall not file or suffer to be on
file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Lender is not named as the sole Lender.
6.3 Preservation of Rights. The Lender shall not be required to
----------------------
take any steps necessary to preserve any rights against prior parties to any
of the Collateral.
6.4 Collateral.
----------
(a) So long as no Event of Default shall have occurred and be
continuing, the Partnership shall have the right to (i) exercise all
voting, consensual and other powers of ownership pertaining to the
Collateral for all purposes not inconsistent with the terms of this
Agreement, the Loan Agreement and other Loan Documents, provided that
--------
the Partnership agrees that it will not vote the Collateral in any
manner that is inconsistent with the terms of this Agreement, the Loan
Agreement and other Loan Documents; and the Lender shall execute and
deliver to the Partnership or cause to be executed and delivered to the
Partnership all such proxies, powers of attorney, dividend and other
orders, and all such instruments, without recourse, as the Partnership
may reasonably request for the purpose of enabling the Partnership to
exercise the rights and powers which it is entitled to exercise pursuant
to this Section 6.4(a), and (ii) receive and retain any and all cash
(and cash equivalents) dividends or distributions paid on the
Collateral, provided that any liquidating distributions resulting from
the sale, exchange or disposition of any of the Property owned by the
Company shall become part of the Collateral and, if received by the
Partnership, shall be held for the benefit of Lender, subject to the
terms of this Agreement and the Loan Agreement.
(b) Any provisions of the Operating Agreement restricting the
transferability of the Membership Interests in the Company shall not
apply to the exercise by the Lender of any of its rights and remedies
under any Loan Document or to any sale, assignment, transfer or other
disposition by the Lender of all or any part of any Membership Interest
in the Company. The Partnership hereby consents to the admission of the
Lender as a Member in the Company pursuant to the exercise of the
Lender's rights and remedies pursuant to this Agreement or any other
Loan Document.
6.5 Events of Default. During the period during which an Event of
-----------------
Default shall have occurred and be continuing:
(a) the Lender shall (i) have all of the rights and remedies with
respect to the Collateral of a Lender under the Uniform Commercial Code
(whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted) and such additional rights and
remedies to which a Lender is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Lender were the sole
and absolute owner thereof (and the Partnership agrees to take all such
action as may be appropriate to give effect to such right) and (ii)
receive and retain any and all cash (and cash equivalents) dividends or
distributions paid on the Collateral, provided that any liquidating
distributions resulting from the sale, exchange or disposition of any of
the Property owned by the Company shall become part of the Collateral
and, if received by the Partnership, shall be held for the benefit of
Lender, subject to the terms of this Agreement and the Loan Agreement.
(b) the Lender may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may modify
the terms of, any of the Collateral;
(c) the Lender may, in its name or in the name of the Partnership
or otherwise, demand, xxx for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so; and
(d) the Lender may, upon ten days' prior notice to the Partnership
of the time and place, with respect to the Collateral or any part
thereof which shall then be or shall thereafter come into the
possession, custody or control of the Lender or any of its agents, sell,
lease, assign or otherwise dispose of all or any part of such
Collateral, at such place or places as the Lender deems best, and for
cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance
or notice of intention to effect any such disposition or of the time or
place thereof (except such notice as is required above or by applicable
statute and cannot be waived), and any Person may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so
disposed of at any public sale (or, to the extent permitted by law, at
any private sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or equity of
redemption (statutory or otherwise), of the Partnership, any such
demand, notice and right or equity being hereby expressly waived and
released. The Lender may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the sale may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
6.5 shall be applied in accordance with Section 6.8 hereof.
The Partnership recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Lender may be compelled, with respect to any sale of all
or any part of the Collateral which constitutes a "security" under the
Securities Act of 1933, as amended, to limit purchasers to those who will
agree, among other things, to acquire tment and not with a view to the
distribution or resale thereof. The Partnership acknowledges that any such
private sale may be at prices and on terms less favorable to the Lender than
those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that
Lender shall not have any obligation to engage in public sales and no
obligation to delay the sale of any such Collateral for the period of time
necessary to permit the respective issuer thereof to register it for public
sale.
6.6 Removals. Without at least 30 days' prior notice to the
--------
Lender, the Partnership shall not maintain any of its books and records with
respect to the Collateral pledged by it hereunder at any office or maintain
its principal place of business at any place other than at the address set
forth in Section 2(a).
6.7 Private Sale. Lender shall not incur any liability as a result
------------
of the sale of the Collateral, or any part thereof, at any private sale
pursuant to Section 6.5 hereof conducted in a commercially reasonable manner.
The Partnership hereby waives any claims against Lender by reason of the fact
that the price at which the Collateral may have been sold at such a private
sale was less than the price which might have been obtained at a public sale
or was less than the aggregate amount of the Secured Obligations.
6.8 Application of Proceeds. Except as otherwise herein expressly
-----------------------
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time
held by the Lender under this Section 6, shall be applied by the Lender in
accordance with the Loan Agreement. As used in this Section 6, "proceeds"
--------
of Collateral shall mean cash, securities and other property realized in
respect of, and distributions in kind of, Collateral, including any thereof
received under any reorganization, liquidation or adjustment of debt of the
Partnership or any issuer of or obligor on any of the Collateral.
6.9 Attorney-in-Fact. Without limiting any rights or powers
----------------
granted by this Agreement to the Lender while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default, the Lender is hereby appointed the attorney-in-fact of
the Partnership for the purpose of carrying out the provisions of this
Section 6 and taking any action and executing any instruments which the
Lender may deem necessary or advisable to accomplish the purposes hereof,
which appointment as attorney-in-fact is irrevocable and coupled with
interest. Without limiting the gs in respect of the Collateral, the Lender
shall have the right and power to receive, endorse and collect all checks
made payable to the order of the Partnership representing any distribution or
other payment in respect of the Collateral or any part thereof and to give
full discharge for the same.
6.10 Termination. When all of the Secured Obligations shall have
-----------
been paid in full, this Agreement shall terminate and the Lender shall
forthwith cause to be assigned, transferred and delivered, against receipt
but without any recourse, warranty or representation whatsoever, any
remaining Collateral and money received in respect thereof, to or on the
order of the Partnership.
6.11 Expenses. The Partnership agrees to pay to Lender all
--------
out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to, the enforcement of any of the provisions of
this Section 6, or performance by the Lender of any obligations of the
Partnership in respect of the Collateral which the Partnership has failed or
refused to perform, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Lender in respect thereof, by litigation or
otherwise, and all such expenses shall be Secured Obligations to the Lender
secured under Section 3 hereof.
6.12 Intentionally Deleted.
---------------------
Section 7. Miscellaneous.
-------------
7.1 No Implied Waiver. No failure on the part of Lender or any of
-----------------
its agents to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or remedy hereunder shall operate as a
waiver thereof, and no single or partial exercise by Lender or any of its
agents of any right, power or remedy hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided herein are cumulative and are not exclusive of any
remedies provided by law.
7.2 Notices. All notices, requests and other communications
-------
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in
accordance with the provisions of the Loan Agreement.
7.3 Amendments. This Agreement may be amended or modified only by
----------
an instrument in writing signed by the Partnership and the Lender, and any
provision of this Agreement may be waived, in writing, by the Lender. Any
waiver shall be effective only in the specific instance and for the specified
purpose for which it was given.
7.4 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of the
Partnership and the Lender (provided, however, that the Partnership shall not
-------- -------
assign or transfer its rights and obligations hereunder without the prior
written consent of the Lender).
7.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which when taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
7.6 Agents. The Lender may employ agents and attorneys-in-fact in
------
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good
faith.
7.7 Severability. If any provision hereof is invalid or
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of Lender in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (b) the invalidity or unenforceability of any provision hereof
in any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
7.8 Headings. Headings appearing herein are used solely for
--------
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
7.9 Further Assurances. The Partnership agrees to do such further
------------------
acts and things and to pay the reasonable costs and expenses in connection
with such acts, and to execute and deliver or cause to be executed and
delivered such additional documentation, additional conveyances, assignments,
and similar instruments, as the Lender may at any time reasonably request in
connection with the administration and enforcement of this Agreement or with
respect to the Collateral or any part thereof or in order better to assure
and confirm unto the Lender its rights and remedies hereunder or to further
effectuate the purposes of this Agreement, including without limitation to
perfect or maintain the perfection or first priority nature of the assignment
and security interest granted hereby and to grant and to perfect a security
interest in any additional interest the Partnership acquires in the Company
during the term of the Loan Agreement. The Partnership agrees that, where
permitted under applicable law, a carbon, photographic, or other reproduction
of this Agreement or of a financing statement is sufficient as a financing
statement.
7.10 Acknowledgement by the Company. The Company by executing this
------------------------------
Agreement, hereby acknowledges the security interest of and the rights of the
Lender under this Agreement and agree to the transfers of the Partnership's
interest in the Company to Lender made or to be made under or pursuant to
this Agreement.
7.11 Submission to Jurisdiction. Any legal action or proceeding
--------------------------
with respect to this Agreement and any action for enforcement of any judgment
in respect thereof may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, and,
by execution and delivery of this Agreement, the Partnership hereby accepts
for itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from
any thereof. The Partnership hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement
brought in the courts referred to above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of Lender to serve process in
any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Partnership in any other jurisdiction.
7.12 Governing Law. This Agreement shall be deemed to be a contract
-------------
entered into pursuant to the laws of the State of New York and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
XX XXXXX OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership
By: XX XXXXX REALTY CORP., a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President
XXXXXX BROTHERS HOLDINGS INC. D/B/A XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
SLG GRAYBAR 2 LLC, a New York limited liability company
By: XX XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership, its sole member
By: XX XXXXX REALTY CORP., a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President
