Exhibit 10.3
CASH MANAGEMENT AGREEMENT
THIS CASH MANAGEMENT AGREEMENT, dated as of April 30, 2002 (as amended,
restated, extended, consolidated, supplemented, replaced or otherwise modified
from time to time, this "Agreement"), by and among EACH OF THE PARTIES SET FORTH
ON SCHEDULE I (each, a "Borrower", and collectively, jointly and severally, the
"Borrowers"), BAYERISCHE HYPO UND VEREINSBANK AG, NEW YORK BRANCH, a banking
corporation organized under the laws of the Federal Republic of Germany, as
agent for the ratable benefit of the Lenders (as defined below), its successors
and assigns ("Agent"), and FLEET NATIONAL BANK, a national banking association
("Deposit Bank").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Revolving Credit Agreement, dated as of
the date hereof, by and among the Borrowers, the lenders from time to time party
thereto (the "Lenders") and Agent, as agent for itself and the other Lenders (as
amended, restated, extended, consolidated, supplemented, replaced or otherwise
modified from time to time, the "Credit Agreement"), the Lenders have agreed to
make a loan to the Borrowers, subject to the terms and conditions therein set
forth, in the maximum principal amount of $75,000,000 (the "Loan");
WHEREAS, certain of the Borrowers are party to property management
agreements with Manager pursuant to which Manager has agreed to manage the
Properties on behalf of such Borrowers; and
WHEREAS, it is a condition precedent to the obligations of the Lenders to
make the Loan to the Borrowers under the Credit Agreement, that the Borrowers
and Deposit Bank shall have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, and to induce Agent and the Lenders to
execute and deliver the Credit Agreement and the other Loan Documents and to
make the Loan thereunder, the Borrowers and Deposit Bank hereby represent,
warrant, covenant and agree as follows:
Section 1. Defined Terms. Capitalized terms used herein without definition
shall have the respective meanings ascribed to such terms in the Credit
Agreement. The words "hereof", "herein" 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, subsection,
schedule and exhibit references are to this Agreement unless otherwise
specified. The word "including" when used in this Agreement shall be deemed to
be followed by the words "without limitation". As used in this Agreement, the
following terms shall have the meanings set forth below:
"Accounts" means, collectively, the Deposit Accounts, the Tax Accounts, the
Insurance Accounts and the Operating Accounts.
"Agreement" has the meaning given to such term in the preamble to this
Agreement.
"Approved Operating Expenses" as defined in Section 3.2(a).
"Borrower" has the meaning given to such term in the preamble to this
Agreement.
"Cash Management Period" means a period of time (a) commencing on the first
day of the calendar quarter next succeeding any calendar quarter in which the
Debt Yield Maintenance Ratio, as determined by Agent, shall have been less than
the Minimum Debt Yield and (b) ending on the first day of the calendar quarter
next succeeding two (2) consecutive quarters in which the Debt Yield Maintenance
Ratio shall be equal to or exceed the Minimum Debt Yield.
"Collateral" as defined in Section 5.1(a).
"Deposit Account" or "Deposit Accounts" as defined in Section 2.1.
"Deposit Bank" has the meaning given to such term in the preamble to this
Agreement.
"Disbursement Request" as defined in Section 3.2(a).
"Distribution Date" as defined in Section 3.2(a).
"Initial Deposits" as defined in Section 3.1(d).
"Insurance Account" or "Insurance Accounts" as defined in Section 2.1.
"Lenders" has the meaning given to such term in the preamble to this
Agreement.
"Manager" means Kestrel Management, L.P., a Delaware limited partnership.
"Monthly Insurance Amount" as defined in Section 3.1(b)(iii).
"Monthly Tax Amount" as defined in Section 3.1(b)(ii).
"Obligations" as defined in Section 5.1(a).
"Operating Account" or "Operating Accounts" as defined in Section 2.1.
"Tax Account" or "Tax Accounts" as defined in Section 2.1.
"Tenant Direction Letter" as defined in Section 2.2(a).
"UCC" as defined in Section 5.1(a)(iii).
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Section 2. The Accounts.
2.1 Establishment of Accounts. The Borrowers and Agent acknowledge and
confirm that the Borrowers have established with Deposit Bank on or prior to the
date hereof each of the following accounts with respect to the Properties: (i)
the accounts identified as Deposit Accounts on Schedule II (each, a "Deposit
Account," and collectively, the "Deposit Accounts") into which the Borrowers
shall deposit, or shall cause to be deposited, all Rent and other revenue from
the Properties owned by the Borrowers, (ii) the accounts identified as Tax
Accounts on Schedule II into which Borrowers shall deposit, or cause to be
deposited (upon the occurrence and during the continuance of a Cash Management
Period), the Monthly Tax Amount pursuant to Section 3.1(b)(ii) (each, a "Tax
Account," and collectively the "Tax Accounts"), (iii) the accounts identified as
Insurance Accounts on Schedule II into which the Borrowers shall deposit, or
cause to be deposited (upon the occurrence and during the continuance of a Cash
Management Period), the Monthly Insurance Amount pursuant to Section 3.1(b)(iii)
(each, an "Insurance Account," and collectively, the "Insurance Accounts"), and
(iv) the accounts identified as Operating Accounts on Schedule II with respect
to the Properties (each, an "Operating Account," and collectively, the
"Operating Accounts"). Except to the extent inconsistent with any term or
provision of this Agreement, the Accounts shall be subject to the Deposit Bank's
standard terms and conditions applicable to such accounts, as amended from time
to time, and the Deposit Bank is hereby authorized to follow its usual operating
procedures in connection with the Accounts. Borrower and Agent shall promptly
review all statements, reports, advices and other materials provided to them
with respect to the Accounts. Deposit Bank shall not be liable to any party for
any error (other than any error caused by the gross negligence or willful
misconduct of Deposit Bank) if Borrower or Agent fail, within thirty (30)
calendar days after receipt of any report, statement or other material
reflecting such error, to advise the Deposit Bank of such error.
2.2 Deposits into the Deposit Accounts. The Borrowers represent, warrant
and covenant that:
(a) The Borrowers shall cause all Rents to be deposited directly into
the Deposit Accounts. Without limitation of the foregoing, the Borrowers
shall notify and advise each Tenant under each Lease (whether such Lease is
presently effective or executed after the date hereof) to send directly to
the applicable Deposit Account all payments of Rent pursuant to an
instruction letter in the form of Exhibit 2.2 attached hereto (a "Tenant
Direction Letter").
(b) If, notwithstanding the provisions of this Section 2.2, any
Borrower receives any Rents or other income from the Properties, then (i)
such amounts shall be deemed to be Collateral and shall be held in trust
for the benefit, and as the property, of Agent, (ii) such amounts shall not
be commingled with any other funds or property of such Borrower, and (iii)
such Borrower shall, or shall cause to be deposited such amounts in the
applicable Deposit Account within one (1) Business Day of receipt.
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(c) Without the prior written consent of Agent, no Borrower shall, nor
shall any Borrower permit Manager to (i) terminate, amend, revoke or modify
any Tenant Direction Letter in any manner whatsoever, or (ii) direct or
cause any Tenant to pay any amount in any manner other than as provided in
the related Tenant Direction Letter.
(d) There are no other accounts maintained by the Borrowers, Manager,
any Borrower Affiliate or any other Person into which revenues from the
ownership and operation of the Properties are deposited. So long as any
Note shall be outstanding, neither the Borrowers, Manager, the Borrower
Affiliates nor any other Person shall open any other such account for the
deposit of Rent or revenues from the Properties.
2.3 Account Name. The Accounts shall each be exclusively in the name of
Agent as the Deposit Bank's "customer" (within the meaning of Section 4-104 of
the UCC) with respect thereto; provided, however, that in the event Agent
transfers or assigns the Loan, Deposit Bank, at Agent's request, shall change
the name of each Account to the name of such transferee or assignee.
2.4 Eligible Accounts/Characterization of Accounts. The Borrowers and
Deposit Bank shall maintain each Account as an Eligible Account, and funds on
deposit in the Accounts shall bear interest (to the extent permitted by law) but
shall not be invested. Each Account is and shall be treated as a "deposit
account" as such term is defined in Section 9 102(a)(29) of the UCC. The
respective account number of, and the federal tax identification number assigned
to each of the Accounts is as set forth on Schedule II.
Section 3. Deposits.
3.1 Disbursements from the Deposit Accounts. (a) Provided no Event of
Default shall have occurred and be continuing and no Cash Management Period
shall be ongoing, Agent shall direct Deposit Bank to (i) transfer all funds on
deposit in the Deposit Accounts on each Business Day to the Operating Accounts,
and (ii) in the event that any funds shall remain on deposit in the Tax
Accounts, Insurance Accounts or are otherwise held by Agent as a result of any
Cash Management Period which has ended, to transfer all such funds (if any) to
the Operating Accounts.
(b) From and after the occurrence and during the continuance of a Cash
Management Period, Agent shall have the right to apply funds in, and to
direct Deposit Bank to withdraw funds from, the respective Deposit Accounts
as follows:
(i) First, on each Interest Payment Date, funds sufficient to pay
accrued and unpaid interest in respect of the Notes and all accrued
and unpaid Lender Expenses and all other amounts due to Agent or any
Lender under the Credit Agreement or the other Loan Documents;
(ii) Second, on each Interest Payment Date, an amount (the
"Monthly Tax Amount") to be deposited in the Tax Accounts equal to
one-twelfth of the Taxes in respect of each Property that Agent
estimates will be payable during the next ensuing twelve (12) months
in order to accumulate
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sufficient funds to pay all such Taxes at least ten (10) days prior to
their respective due dates;
(iii) Third, on each Interest Payment Date, an amount (the
"Monthly Insurance Amount") to be deposited in the Insurance Accounts
equal to one-twelfth of the Insurance Premiums in respect of the
Policies required to be maintained by each Borrower that Agent
estimates will be payable for the renewal of the coverage afforded by
such Policies upon the expiration thereof, in order to accumulate
sufficient funds to pay all such Insurance Premiums at least thirty
(30) days prior to the expiration of such Policies; and
(iv) Fourth, funds sufficient to pay the Approved Operating
Expenses in accordance with Section 3.2.
(c) Agent shall, to the extent of available funds in the applicable
Account, apply funds in the Tax Accounts and the Insurance Accounts to the
payment of Taxes and Insurance Premiums, respectively. In making any
payment of Taxes pursuant to this Section 3.1(c), Agent may do so according
to any xxxx, statement or estimate procured from the appropriate public
office without inquiry into the accuracy of such xxxx, statement or
estimate or into the validity of any tax, assessment, sale, forfeiture, tax
lien or title or claim thereof. In making any payment of Insurance Premiums
pursuant to this Section 3.1(c), Agent may do so according to any xxxx,
statement or estimate procured from any issurer or its agent, without
inquiry into the accuracy of such xxxx, statement or estimate.
(d) Notwithstanding the foregoing, upon the occurrence of a Cash
Management Period, the Borrowers shall be required, within one (1) Business
Day of demand by Agent therefor, to make an initial deposit to the Tax
Accounts and/or the Insurance Accounts (the "Initial Deposits") in an
amount, as determined by Agent, that when added to the deposits projected
by Agent to be made to the Tax Accounts and the Insurance Accounts from the
Deposit Accounts pursuant to Section 3.1(b)(ii) and Section 3.1(b)(iii),
respectively, are sufficient to make the next installment of Taxes due in
respect of each Property and/or Insurance Premiums due in respect of the
Policies for each Borrower. Failure by the Borrowers to make the Initial
Deposits in the amounts and within the time period provided herein shall
constitute an Event of Default.
(e) Upon and during the continuance of an Event of Default (other than
an Event of Default which occurred solely as the result of the breach by
the Borrowers of their covenants set forth in Section 6.1(u) of the Credit
Agreement), Agent may apply amounts in the Deposit Accounts for payment of
the Loan or for any of the purposes set forth in Section 3.1(b), in such
order as Agent shall elect in its sole discretion.
3.2 Approved Operating Expenses. (a) From and after the occurrence and
during the continuance of a Cash Management Period, each Borrower shall deliver
to Agent with respect to each Property owned by it a request for disbursement
from the Deposit Accounts (a "Disbursement Request") on or before the twentieth
day of each month. Each Disbursement Request shall be acceptable to Agent in its
reasonable discretion and
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shall set forth (i) such Borrower's good faith estimate of the Operating
Expenses (exclusive of Taxes and Insurance Premiums if and to the extent that
Agent shall have withdrawn funds therefor pursuant to Sections 3.1(b)(ii) and
(iii)) for such Property to be incurred during and properly allocable to the
following month, which estimate shall be consistent with the most recently
submitted Budget with respect to such Property, (ii) the actual Operating
Expenses for the month in which the Disbursement Request is submitted (to the
extent then determinable, but if not determinable, such information shall be
provided by such Borrower as soon as determinable and in no event later than the
last day of such month), together with evidence in support thereof, in both form
and detail acceptable to Agent and (iii) any amounts retained by such Borrower
from previous disbursements from the Deposit Accounts which were to be used to
pay Operating Expenses. The amount of the Disbursement Request may not exceed
the excess of the amounts described in the preceding clause (i) over the amounts
described in the preceding clause (iii). Agent shall have the right to review
such Borrower's check register before approving any Disbursement Request. Agent
shall either approve, deny or reasonably request further information with regard
to the Disbursement Request within ten (10) Business Days after receipt thereof.
On the first Business Day of the calendar month following submission of such
Disbursement Request or, if later, on the third (3rd) Business Day after Agent's
approval of such Disbursement Request (the "Distribution Date"), Agent shall
disburse to the applicable Operating Accounts, the amount of such Disbursement
Request in respect of Operating Expenses reasonably approved by Agent (the
"Approved Operating Expenses"), to the extent such funds are available in the
Deposit Accounts. Upon receipt of such funds, if any, the applicable Borrower
shall pay the Operating Expenses for the current month.
(b) Notwithstanding the foregoing, if at any time the funds on deposit
in the Deposit Accounts are insufficient to pay in full any of the amounts
set forth in Sections 3.1(b)(i), (ii), (iii) and (iv) above, the Borrowers
shall deposit into the Deposit Accounts the full amount of any such
deficiency notwithstanding any inadequacy of Rents to make such payment,
and any failure by the Borrowers to deposit the full amount of such
deficiency into the Deposit Accounts within one (1) Business Day shall
constitute an Event of Default. Nothing contained herein shall be deemed to
relieve any Borrower from its obligation to pay, or to cause to be paid,
any and all Taxes, Insurance Premiums and Operating Expenses with respect
to the Properties prior to the respective due dates thereof.
3.3 Cash Management Period. Subject to Section 3.1(a)(ii), any funds
remaining on deposit in the Deposit Accounts after application of the amounts
set forth in Sections 3.1(b)(i), (ii), (iii) and (iv) above, shall be retained
by Agent as additional collateral security for the Loan.
Section 4. Withdrawals.
4.1 Sole Dominion and Control. Each Borrower acknowledges and agrees that
the Accounts (other than the Operating Accounts) are subject to the sole
dominion, control and discretion of Agent, its authorized agents or designees,
including Deposit Bank, subject to the terms hereof. The Borrowers shall not
have the right of withdrawal
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with respect to any Account (other than the Operating Accounts) except with the
prior written consent of Agent. Deposit Bank shall have the right and agrees to
comply with instructions originated by Agent with respect to the disposition of
the funds in the Accounts (other than the Operating Accounts) without the
further consent of the Borrowers or any other Person.
Section 5. Pledge of Accounts.
5.1 Security for Obligations. (a) To secure the full and punctual payment
and performance of all obligations of the Borrowers now or hereafter existing
with respect to the Loan, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Borrowers now or hereafter existing under
the Credit Agreement, the Notes, the Pledge Agreement, this Agreement and all
other Loan Documents (all such obligations, collectively, the "Obligations"),
the Borrowers hereby grant to Agent for the ratable benefit of the Lenders a
first priority continuing security interest in and to the following property of
the Borrowers, whether now owned or existing or hereafter acquired or arising
and regardless of where located (all of the same, collectively, the
"Collateral"):
(i) the Accounts and all cash, checks, drafts, certificates and
instruments, if any, from time to time deposited or held in the
Accounts, including, without limitation, all deposits or wire
transfers made to the Accounts;
(ii) all interest, dividends, cash, instruments, investment
property and other property from time to time received, receivable or
otherwise payable in respect of, or in exchange for, any or all of the
foregoing; and
(iii) to the extent not covered by clauses (i) or (ii) above, all
"proceeds" (as defined under the Uniform Commercial Code as in effect
in the State of New York (the "UCC")) of any or all of the foregoing.
(b) Agent and Deposit Bank, as agent for Agent, shall have with
respect to the Collateral, in addition to the rights and remedies herein
set forth, all of the rights and remedies available to a secured party
under the UCC, as if such rights and remedies were fully set forth herein.
5.2 Rights on Default. Upon the occurrence and during the continuance of an
Event of Default, without notice from Deposit Bank or Agent, Agent may apply any
Collateral to any Obligations in such order of priority as Agent may determine.
5.3 Cash Management Period. If at any time Agent determines that a Cash
Management Period shall have occurred, the Borrowers shall have the right,
within twenty (20) Business Days of Agent's determination, to prepay the Loan
within twenty (20) Business Days (and subject to Section 2.5.1(a)(D) of the
Credit Agreement) in an amount such that the Cash Management Period would not
have occurred. If the Borrowers shall prepay the Loan as aforesaid, then as of
the date of such prepayment, the Cash Management Period shall be deemed to have
expired on such date notwithstanding that the requirement in clause (b) of the
definition of Cash Management Period has not been satisfied.
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5.4 Financing Statement; Further Assurances. Simultaneously herewith, the
Borrowers shall deliver to Agent for filing a financing statement or statements
in connection with the Collateral in the form required by Agent to properly
perfect Agent's security interest therein. The Borrowers agree that at any time
and from time to time, at the expense of the Borrowers, the Borrowers will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be reasonably necessary or that Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral.
5.5 Termination of Agreement. This Agreement shall create a continuing
security interest in the Collateral and shall remain in full force and effect
until payment in full of the Obligations. Upon payment and performance in full
of the Obligations, this Agreement shall terminate and the Borrowers shall be
entitled to the return, upon their request and at their expense, of such of the
Collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof, and Deposit Bank and/or Agent shall execute such instruments and
documents as may be reasonably requested by the Borrowers to evidence such
termination and the release of the Lien hereof.
Section 6. Rights and Duties of Agent and Deposit Bank.
6.1 Reasonable Care. Beyond the exercise of reasonable care in the custody
thereof or as otherwise expressly provided herein, neither Deposit Bank nor
Agent shall have any duty as to any Collateral in its possession or control or
any income thereon or the preservation of rights against any Person or otherwise
with respect thereto. Deposit Bank and Agent each shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which Deposit Bank or Agent accords its own property, it being understood
that Agent and Deposit Bank shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in value thereof, by
reason of the act or omission of Deposit Bank or Agent, its Affiliates, agents,
employees or bailees, except to the extent that such loss or damage results from
Agent's or Deposit Bank's respective gross negligence or willful misconduct;
provided that nothing in this Section 6 shall be deemed to relieve Deposit Bank
from the duties and standard of care which, as a commercial bank, it generally
owes to depositors.
6.2 Information. Deposit Bank shall provide to the Borrowers or, at the
direction of the Borrowers, to Property Manager such information with respect to
cleared funds received by Deposit Bank and deposited into the Deposit Account as
is customarily prepared by Deposit Bank and provided to other account holders.
6.3 Indemnity. Deposit Bank, in its capacity as Deposit Bank hereunder,
shall be responsible for the performance only of such duties as are specifically
set forth herein, and no duty shall be implied from any provision hereof, and no
implied covenants or obligations shall be read into this Agreement against the
Deposit Bank. In no event shall Deposit Bank be liable for losses or delays
resulting (i) from any act of God, epidemic, war, governmental regulation, fire,
power failure, computer malfunction, interruption of
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communication facilities, labor difficulties or other causes beyond Deposit
Bank's reasonable control or (ii) from Deposit Bank's reasonable belief that any
action taken by it would violate any guideline, rule, order, decree, or
regulation of any governing authority or court. Deposit Bank shall not be under
any obligation or duty to perform any act which would involve it in expense or
liability or to institute or defend any suit in respect hereof, or to advance
any of its own monies. The Borrowers shall indemnify and hold Deposit Bank,
Agent and the Lenders, their respective employees and officers harmless from and
against any loss, cost or damage (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by any such party in connection with
the transactions contemplated hereby, except to the extent that such loss or
damage results from such party's gross negligence or willful misconduct.
6.4 Reliance. Deposit Bank shall be protected in acting upon any notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
paper, document or signature believed by it to be genuine, and it may be assumed
that any Person purporting to act on behalf of any Person giving any of the
foregoing in connection with the provisions hereof has been duly authorized to
do so. Deposit Bank may consult with counsel, and the opinion of such counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by it hereunder and in good faith in accordance therewith.
Deposit Bank shall not be liable for any act or omission done or omitted to be
done by Deposit Bank in reliance upon any instruction, direction or
certification received by Deposit Bank and without gross negligence or willful
or reckless misconduct.
6.5 Resignation of Deposit Bank. (a) Deposit Bank shall have the right to
resign as Deposit Bank hereunder upon thirty (30) days' prior written notice to
the Borrowers and Agent, and in the event of such resignation, the Borrowers
shall appoint a successor deposit bank which must be an Eligible Institution. No
such resignation by Deposit Bank shall become effective until a successor
deposit bank shall have accepted such appointment and executed an instrument by
which it shall have assumed all of the rights and obligations of Deposit Bank
hereunder. If no such successor deposit bank is appointed within sixty (60) days
after receipt of the Deposit Bank's notice of resignation, the Deposit Bank may
deliver all funds and materials held hereunder to Agent, or pursuant to Agent's
written instructions, and it shall have no further obligations hereunder.
(b) In connection with any resignation by Deposit Bank, (i) Deposit
Bank shall, at the sole cost of the Borrowers, (A) duly assign, transfer
and deliver to the successor deposit bank this Agreement and all cash held
by it hereunder, (B) execute and/or authorize such financing statements and
other instruments as may be necessary to assign to the successor deposit
bank the security interest in the Collateral existing in favor of the
Deposit Bank hereunder and to otherwise give effect to such succession and
(C) take such other actions as may be reasonably required by Agent or the
successor deposit bank in connection with the foregoing and (ii) the
successor deposit bank shall establish exclusively in Agent's name, as such
deposit bank's customer and as secured party, cash collateral accounts,
which shall become the Accounts for purposes of this Agreement upon the
succession of such deposit bank.
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(c) Agent at its reasonable discretion shall have the right, upon
thirty (30) days' notice to Deposit Bank, to substitute Deposit Bank with a
successor deposit bank that satisfies the requirements of an Eligible
Institution or to have one or more of the Accounts held by another Eligible
Institution, provided that such successor deposit bank shall perform the
duties of Deposit Bank pursuant to the terms of this Agreement.
6.6 Agent Appointed Attorney-In-Fact. Each Borrower hereby irrevocably
constitutes and appoints Agent as its true and lawful attorney-in-fact, with
full power of substitution, to execute, acknowledge and deliver any instruments
and to exercise and enforce every right, power, remedy, option and privilege of
such Borrower with respect to the Collateral, and do in the name, place and
stead of such Borrower, all such acts, things and deeds for and on behalf of and
in the name of such Borrower, which such Borrower could or might do or which
Deposit Bank or Agent may deem necessary or desirable to more fully vest in
Agent the rights and remedies provided for herein and to accomplish the purposes
of this Agreement. The foregoing powers of attorney are irrevocable and coupled
with an interest. Agent agrees that it will not take any action pursuant to this
Section 6.6 unless and until a Cash Management Period or an Event of Default
shall have occurred and is continuing.
6.7 Acknowledgment of Lien/Offset Rights. Deposit Bank hereby acknowledges
and agrees that (a) the Accounts shall be held by Deposit Bank exclusively in
the name of Agent as customer, (b) all funds held in the Accounts shall be held
for the benefit of Lender, (c) the Borrowers have granted to Agent for the
ratable benefit of the Lenders a first priority security interest in the
Collateral, (d) Deposit Bank shall not disburse any funds from the Accounts
except as provided herein, and (e) Deposit Bank hereby waives any right of
offset, banker's lien or similar rights against, any assignment in favor of
Deposit Bank of, or security or other interest in, the Collateral.
Notwithstanding the foregoing, the Deposit Bank may debit the Accounts for the
Deposit Bank's fees and charges applicable to the Accounts and for any items
deposited in the Accounts that are subsequently returned unpaid. If there are
not sufficient available and collected funds in the Accounts to cover such fees
and charges and returned deposited items, the Deposit Bank shall give written
notice thereof to Borrower, with a copy to Agent, and the Borrowers shall pay
the Deposit Bank the full amount of such unpaid fees and charges and returned
items.
Section 7. Remedies.
7.1 Remedies. Upon the occurrence and during the continuance of an Event of
Default, Agent or Deposit Bank, as agent for Agent, may:
(a) without notice to any Borrower, except as required by law, and at
any time or from time to time, charge, set-off and otherwise apply all or
any part of the Collateral against the Obligations or any part thereof;
(b) in its sole discretion, at any time and from time to time,
exercise any and all rights and remedies available to it under this
Agreement, and/or as a secured party under the UCC and/or under any other
applicable law; and
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(c) demand, collect, take possession of, receive, settle, compromise,
adjust, xxx for, foreclose or realize upon the Collateral (or any portion
thereof) as Agent may determine in its sole discretion.
7.2 Waiver. Each Borrower hereby expressly waives, to the fullest extent
permitted by law, presentment, demand, protest or any notice of any kind in
connection with this Agreement or the Collateral. Each Borrower acknowledges and
agrees that ten (10) days' prior written notice of the time and place of any
public sale of the Collateral or any other intended disposition thereof shall be
reasonable and sufficient notice to such Borrower within the meaning of the UCC.
Section 8. Miscellaneous.
8.1 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
8.2 Headings. The headings used in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
8.3 Transfers and Other Liens. Each Borrower agrees that it will not (i)
sell or otherwise dispose of any of the Collateral or (ii) create or permit to
exist any Lien upon or with respect to all or any of the Collateral, except for
the Lien granted under this Agreement.
8.4 Agent's Right to Perform Borrowers' Obligations; No Liability of Agent.
If any Borrower fails to perform any of the covenants or obligations contained
herein, and such failure shall continue for a period five (5) Business Days
after such Borrower's receipt of written notice thereof from Agent, Agent may
itself perform, or cause performance of, such covenants or obligations, and the
expenses of Agent or any Lender incurred in connection therewith shall be
payable by the Borrowers to Agent. Notwithstanding Agent's right to perform
certain obligations of such Borrower, it is acknowledged and agreed that such
Borrower retains control of the Properties and operation thereof and
notwithstanding anything contained herein or Deposit Bank's or Agent's exercise
of any of its rights or remedies hereunder, under the Loan Documents or at law,
in equity or otherwise, neither Deposit Bank nor Agent or any Lender shall be
deemed to be a mortgagee-in-possession nor shall Agent or any Lender be subject
to any liability with respect to the Properties or otherwise based upon any
claim of lender liability.
8.5 No Waiver. The rights and remedies provided in this Agreement and the
other Loan Documents are cumulative and may be exercised independently or
concurrently, and are not exclusive of any other right or remedy provided at
law, in equity or otherwise.
-11-
No failure to exercise or delay by Agent in exercising any right or remedy
hereunder or under the Loan Documents shall impair or prohibit the exercise of
any such rights or remedies in the future or be deemed to constitute a waiver or
limitation of any such right or remedy or acquiescence therein. Every right and
remedy granted to Agent hereunder or by law may be exercised by Agent at any
time and from time to time, and as often as Agent may deem it expedient. Any and
all of Agent's rights with respect to the Lien granted hereunder shall continue
unimpaired, and the Borrowers shall be and remain obligated in accordance with
the terms hereof, notwithstanding (a) any proceeding of any Borrower under the
Bankruptcy Code or any bankruptcy, insolvency or reorganization laws or statutes
of any state, (b) the release or substitution of Collateral at any time, or of
any rights or interests therein or (c) any delay, extension of time, renewal,
compromise or other indulgence granted by Agent in the event of any default,
with respect to the Collateral or otherwise hereunder. No delay or extension of
time by Agent in exercising any power of sale, option or other right or remedy
hereunder, and no notice or demand which may be given to or made upon any
Borrower by Agent, shall constitute a waiver thereof, or limit, impair or
prejudice Agent's right, without notice or demand, to take any action against
any Borrower or to exercise any other power of sale, option or any other right
or remedy.
8.6 Waivers and Amendments; Successors and Assigns. None of the terms or
provisions of this Agreement may be waived, amended, or otherwise modified
except by a written instrument executed by the party against which enforcement
of such waiver, amendment, or modification is sought. This Agreement shall be
binding upon and shall inure to the benefit of the Borrowers, Deposit Bank and
their respective successors and permitted assigns and shall inure to the benefit
of Agent and its successors and assigns; provided neither Borrower nor Deposit
Bank shall have any right to Transfer any of its rights hereunder, and any
attempted assignment shall be null and void. The rights of Agent under this
Agreement shall automatically be transferred to any transferee to which Agent
transfers the Notes and Credit Agreement.
8.7 Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and shall be given in accordance with
Section 12.5 of the Credit Agreement. Any notices or other communications to
Deposit Bank shall be addressed as follows (or to such other address and person
shall be designated by Deposit Bank from time to time in accordance herewith):
If to Deposit Bank:
Fleet National Bank
000 Xxxxxxx Xxxxxx, XX DE 10009A
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
-12-
With a copy to:
Fleet National Bank
000 Xxxxxxx Xxxxxx, XX DE 10009A
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
and
Fleet National Bank
1133 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx-Xxxxxx
Facsimile No.: (000) 000-0000
and
Fleet National Bank
100 Federal Street, MA DE 10019A
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
8.8 Agents. Agent may employ agents and attorneys-in-fact in connection
herewith and shall not be responsible for their actions except for the gross
negligence or willful misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
8.9 Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
8.10 Governing Law, Submission to Jurisdiction.
(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS
MADE BY AGENT AND ACCEPTED BY BORROWERS AND DEPOSIT BANK IN THE STATE OF NEW
YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO WERE DISBURSED
FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY,
AND IN ALL MATERIAL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS
-13-
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT HERETO SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE APPLICABLE STATE IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAWS OF SUCH APPLICABLE STATE, THE LAWS OF THE
STATE OF NEW YORK SHALL GOVERN THE VALIDITY AND ENFORCEABILITY OF THIS AGREEMENT
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY
LAW, THE BORROWERS AND DEPOSIT BANK HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT AND THE NOTES, AND THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST AGENT, THE BORROWERS AND
DEPOSIT BANK ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE INSTITUTED IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, PURSUANT TO SECTION 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND EACH OF THE BORROWERS AND DEPOSIT BANK
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON THE LAYING OF
VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH OF THE BORROWERS AND DEPOSIT BANK HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH OF THE
BORROWERS AND DEPOSIT BANK DO HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF
ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO THE BORROWERS AND DEPOSIT BANK IN THE MANNER PROVIDED
HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE
BORROWERS AND DEPOSIT BANK IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE
OF NEW YORK. THE
-14-
BORROWERS AND DEPOSIT BANK (I) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED
ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO
TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW
YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND
ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A
SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW
YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
(i) WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, DEPOSIT BANK AND
AGENT HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT
THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH OF THE BORROWERS, DEPOSIT BANK AND AGENT, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH OF THE BORROWERS,
DEPOSIT BANK AND AGENT ARE HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
8.11 Expenses. The Collateral shall secure, and the Borrowers shall pay to
Deposit Bank and Agent and/or Deposit Bank's and Agent's counsel on demand, from
time to time, all costs and expenses (including, with limitation, reasonable
attorneys' fees and disbursements, and transfer, recording and filing fees,
taxes and other charges) of, or incidental to, the creation or perfection of any
Lien granted or intended to be granted hereby, the custody, care, sale,
transfer, administration, collection of or realization on the Collateral, or in
any way relating to the enforcement, protection or preservation of the rights or
remedies of Deposit Bank and/or Agent under this Agreement, the Credit
Agreement, the Note, or the other Loan Documents. Standard and customary fees
and charges associated with the Accounts shall be included on a monthly
consolidated account analysis statement which Deposit Bank shall submit to the
Borrowers for payment. This statement shall set forth the fees and charges
payable for such month, including, without limitation, reasonable fees and
reasonable expenses incurred in connection with this Agreement and be
accompanied by reasonably detailed supporting documentation. Deposit Bank shall
be entitled to charge the Accounts for such fees and expenses as indicated by
the analysis statement.
-15-
8.12 Entire Agreement. This Agreement constitutes the entire and final
agreement between the parties with respect to the subject matter hereof and may
not be changed, terminated or otherwise varied, except by a writing duly
executed by the parties.
8.13 Exculpation. The provisions of Section 11.1 of the Credit Agreement
are incorporated herein by this reference.
[SIGNATURE PAGE FOLLOWS]
-16-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
BORROWERS:
SHELBOURNE PROPERTIES I L.P.,
a Delaware limited partnership
By: Shelbourne Properties I GP LLC, a
Delaware limited liability company
By: Shelbourne Properties I, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE PROPERTIES II L.P.,
a Delaware limited partnership
By: Shelbourne Properties II GP LLC, a
Delaware limited liability company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE PROPERTIES III L.P.,
a Delaware limited partnership
By: Shelbourne Properties III GP, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE RICHMOND COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC, a
Delaware limited liability company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE XXXXXXXX COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC, a
Delaware limited liability company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE MELROSE CROSSING I COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC, a
Delaware limited liability company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE MELROSE CROSSING II COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership
By: Shelbourne Properties III GP, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE RALEIGH COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC, a
Delaware limited liability company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE LAS VEGAS COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership
By: Shelbourne Properties III GP, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE LIVONIA COMPANY
LLC, a Delaware limited liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership
By: Shelbourne Properties III GP, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE I CENTURY PARK
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties I L.P., a
Delaware limited partnership
By: Shelbourne Properties I GP LLC,
a Delaware limited liability company
By: Shelbourne Properties I, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE I SEATTLE LANDMARK
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties I L.P., a
Delaware limited partnership
By: Shelbourne Properties I GP LLC,
a Delaware limited liability company
By: Shelbourne Properties I, Inc.,
a Delaware corporation
SHELBOURNE I 000 XXXXXXXX
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties I L.P., a
Delaware limited partnership
By: Shelbourne Properties I GP LLC,
a Delaware limited liability company
By: Shelbourne Properties I, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE II SEATTLE LANDMARK
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC,
a Delaware limited liability company
By: Shelbourne Properties II, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE II CENTURY PARK
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC,
a Delaware limited liability company
By: Shelbourne Properties II, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE II 000 XXXXXXXX
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC,
a Delaware limited liability company
By: Shelbourne Properties II, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE II TRI-COLUMBUS
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership
By: Shelbourne Properties II GP LLC,
a Delaware limited liability company
By: Shelbourne Properties II, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE III 000 XXXXXXXX
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership
By: Shelbourne Properties III GP, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SHELBOURNE III TRI-COLUMBUS
COMPANY LLC, a Delaware limited
liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership
By: Shelbourne Properties III GP, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CENTURY PARK I JOINT VENTURE,
a Delaware general partnership
By: Shelbourne I Century Park Company
LLC, a Delaware limited liability
company
By: Shelbourne Properties I L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties I GP LLC
a Delaware limited liability
company
By: Shelbourne Properties I, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
By: Shelbourne II Century Park Company
LLC, a Delaware limited liability
company
By: Shelbourne Properties II L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties II GP LLC
a Delaware limited liability
company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SEATTLE LANDMARK JOINT VENTURE,
a Delaware general partnership
By: Shelbourne I Seattle Landmark
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties I L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties I GP LLC,
a Delaware limited liability
company
By: Shelbourne Properties I, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
By: Shelbourne II Seattle Landmark
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties II GP LLC,
a Delaware limited liability
company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
TRI-COLUMBUS ASSOCIATES, a
Delaware general partnership
By: Shelbourne II Tri-Columbus
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties II GP LLC,
a Delaware limited liability
company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
By: Shelbourne III Tri-Columbus
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties III GP, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
000 XXXXXXXX JOINT VENTURE,
a Delaware general partnership
By: Shelbourne I 000 Xxxxxxxx
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties I L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties I GP LLC,
a Delaware limited liability
company
By: Shelbourne Properties I, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
By: Shelbourne II 000 Xxxxxxxx
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties II L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties II GP LLC,
a Delaware limited liability
company
By: Shelbourne Properties II, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
By: Shelbourne III 000 Xxxxxxxx
Company LLC, a Delaware limited
liability company
By: Shelbourne Properties III L.P., a
Delaware limited partnership, its
general partner
By: Shelbourne Properties III GP, Inc.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
AGENT:
BAYERISCHE HYPO UND
VEREINSBANK AG, NEW YORK
BRANCH, as agent
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
DEPOSIT BANK:
FLEET NATIONAL BANK
By:
----------------------
Name:
Title:
SCHEDULE I
Borrowers
Shelbourne Properties I L.P., a Delaware limited partnership
Shelbourne Properties II L.P., a Delaware limited partnership
Shelbourne Properties III L.P., a Delaware limited partnership
Shelbourne Richmond Company LLC, a Delaware limited liability company
Shelbourne Xxxxxxxx Company LLC, a Delaware limited liability company
Shelbourne Melrose Crossing I Company LLC, a Delaware limited liability company
Shelbourne Melrose Crossing II Company LLC, a Delaware limited liability company
Shelbourne Raleigh Company LLC, a Delaware limited liability company
Shelbourne Las Vegas Company LLC, a Delaware limited liability company
Shelbourne Livonia Company LLC, a Delaware limited liability company
Shelbourne I Century Park Company LLC, a Delaware limited liability company
Shelbourne II Century Park Company LLC, a Delaware limited liability company
Shelbourne I Seattle Landmark Company LLC, a Delaware limited liability company
Shelbourne II Seattle Landmark Company LLC, a Delaware limited liability company
Shelbourne II Tri-Columbus Company LLC, a Delaware limited liability company
Shelbourne III Tri-Columbus Company LLC, a Delaware limited liability company
Shelbourne I 000 Xxxxxxxx Company LLC, a Delaware limited liability company
Shelbourne II 000 Xxxxxxxx Company LLC, a Delaware limited liability company
Shelbourne III 000 Xxxxxxxx Company LLC, a Delaware limited liability company
Century Park I Joint Venture, a Delaware general partnership
Seattle Landmark Joint Venture, a Delaware general partnership
Tri-Columbus Associates, a Delaware general partnership
000 Xxxxxxxx Joint Venture, a Delaware general partnership
Sch. I-1
SCHEDULE II
Accounts
Account Account Number FEIN ABA #
------------------------------------- -------------- ---------- ---------
Deposit Account - Shelbourne
Properties I L.P. 9420374798 00-0000000 011000138
Deposit Account - Shelbourne
Properties II L.P. 0000000000 00-0000000 011000138
Deposit Account - Shelbourne
Properties III L.P. 9420374819 00-0000000 011000138
Deposit Account - Tri-Columbus
Associates 9420374878 00-0000000 011000138
Deposit Account - 568 Broadway
Joint Venture 9420374827 00-0000000 011000138
Deposit Account - Century Park I
Joint Venture 9420374835 00-0000000 011000138
Deposit Account - Seattle Landmark
Joint Venture 9420374851 00-0000000 011000138
Tax Account - Shelbourne
Properties I L.P. 94203-75029 00-0000000 011000138
Tax Account - Shelbourne
Properties II L.P. 94203-75045 00-0000000 011000138
Tax Account - Shelbourne
Properties III L.P. 94203-75061 00-0000000 011000138
Insurance Account - Shelbourne
Properties I L.P. 94203-75037 00-0000000 011000138
Insurance Account - Shelbourne
Properties II L.P. 94203-75053 00-0000000 011000138
Insurance Account - Shelbourne
Properties III L.P. 94203-75088 00-0000000 011000138
Operating Account - Shelbourne
Properties I L.P. 0038452273 00-0000000 011000138
Sch. II-1
Operating Account - Shelbourne
Properties II L.P. 0000000000 00-0000000 011000138
Operating Account - Shelbourne
Properties III L.P. 0038452325 00-0000000 011000138
Operating Account - Tri-Columbus
Associates 0036666863 00-0000000 011000138
Operating Account - 568 Broadway
Joint Venture 0027774829 00-0000000 011000138
Operating Account - Century Park I
Joint Venture 0038452095 00-0000000 011000138
Operating Account - Seattle Landmark
Joint Venture 0036666669 00-0000000 011000138
Sch. II-2
EXHIBIT 2.2
Form of Tenant Direction Letter
[BORROWER LETTERHEAD]
____________ ___, 200__
[Tenants under Leases]
Re: Lease dated ___________ between _____________________,
as Landlord, and ____________________________, as Tenant,
concerning premises known as _____________(the "Lease")
Gentlemen:
This letter shall constitute notice to you that the undersigned has entered
into a financing transaction with Bayerische Hypo Und Vereinsbank AG, New York
Branch, as agent ("Agent") for itself and certain other lenders (the
"Financing"). Pursuant to the Financing, the undersigned has agreed that (i) all
rents, additional rent and all other monetary obligations to landlord under the
Lease (collectively, "Rent") shall be paid and applied as set forth in the
Financing, and (ii) upon the occurrence of certain events, the undersigned shall
grant to Agent a security interest in the Lease and the Rents to further secure
its obligations under the Financing. Accordingly, the undersigned hereby
irrevocably instructs and authorizes you to disregard any and all previous
notices sent to you in connection with Rent and hereafter to deliver all Rent to
the following address:
[Bank with Deposit Account]
[Bank's Address]
Account No. ______________
Attention: _________________
ABA# ____________________
Exh. 2.2-1
The instructions set forth herein are irrevocable and are not subject to
modification in any manner, except that Agent, or any successor lender so
identified by Agent, may by written notice to you rescind the instructions
contained herein.
Sincerely,
[BORROWER]
ACKNOWLEDGMENT AND AGREEMENT
The undersigned acknowledges notice of the Financing by, and upon the
occurrence of certain events, the security interest in favor of Agent, and
hereby confirms that the undersigned has received no notice of any other pledge
or assignment of the Rent and will honor the above instructions.
[Tenant]
By:
--------------------------------
Name:
Its:
Dated as of: __________ ___, 200__
Exh. 2.2-2
