EXHIBIT 10.3
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GUARANTEE AND COLLATERAL AGREEMENT
made by
RSVP HOLDINGS, LLC,
RECKSON STRATEGIC VENTURE PARTNERS, LLC,
RECKSON ASSET PARTNERS, LLC,
RECKSON OPERATING PARTNERSHIP, L.P.,
RSI FUND MANAGEMENT, LLC,
NEW WORLD REALTY, LLC
NEW WORLD REALTY MANAGEMENT, LLC
MELVILLE-CATSKILL, LLC
RAP-SH HOLDINGS, LLC
RSVP ALI BABA, LLC
RSVP RETAIL, LLC
RSVP-SH HOLDINGS, LLC
in favor of
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Lender
Dated as of September __, 2003
TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS.................................................................................1
1.1 Definitions..........................................................................1
1.2 Other Definitional Provisions........................................................3
SECTION 2. GUARANTEE.....................................................................................4
2.1 ROP Guarantee........................................................................4
2.2 RAP Guarantee of RSIFM...............................................................4
2.3 RSIFM Guarantee......................................................................5
2.4 New World Guarantee..................................................................5
2.5 Subsidiary Guarantors Guarantee......................................................7
2.6 No Duplication.......................................................................8
2.7 Guarantees to Remain in Effect.......................................................8
2.8 No Subrogation.......................................................................8
2.9 Amendments, etc. with Respect to the Obligations.....................................8
2.10 Guarantee Absolute...................................................................9
2.11 Reinstatement.......................................................................10
2.12 Payments............................................................................10
SECTION 3. GRANT OF SECURITY INTEREST...................................................................10
SECTION 4. REPRESENTATIONS AND WARRANTIES...............................................................11
4.1 Organization; Authority.............................................................11
4.2 Intentionally Omitted...............................................................12
4.3 Title; No Other Liens...............................................................12
4.4 Perfected First Priority Liens......................................................12
4.5 Locations of Grantors...............................................................13
4.6 Intentionally Omitted...............................................................13
4.7 Pledged Securities..................................................................13
4.8 Additional Representations of ROP...................................................13
SECTION 5. COVENANTS....................................................................................13
5.1 Delivery of Instruments, Promissory Notes, Chattel Paper,
Pledged Securities and Certain Funds................................................13
5.2 Payment of Obligations..............................................................15
5.3 Maintenance of Perfected Security Interest; Further Documentation...................15
5.4 Changes in Locations, Name, etc.....................................................15
5.5 Notices.............................................................................16
5.6 Limitation on Liens etc.............................................................16
5.7 Further Assurances..................................................................16
5.8 Covenants upon an Event of Default..................................................17
5.9 Borrowers' Limited Liability Company Agreements.....................................17
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Page
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5.10 Board of Directors of RSIFM.........................................................17
5.11 Pledged Notes.......................................................................17
5.12 Intentionally Omitted...............................................................17
5.13 RSIFM and New World Covenants......................................................17
5.14 Limitation on Fundamental Changes and Sale of Assets................................19
SECTION 6. REMEDIAL PROVISIONS..........................................................................19
6.1 Pledged Stock.......................................................................19
6.2 Proceeds to be Turned Over to Lender................................................20
6.3 Application.........................................................................20
6.4 Code and Other Remedies.............................................................21
6.5 Right to Private Sale...............................................................21
6.6 Waiver; Deficiency..................................................................22
SECTION 7. THE LENDER...................................................................................22
7.1 Lender's Appointment as Attorney-in-Fact, etc.......................................22
7.2 Duty of Lender......................................................................24
7.3 Execution of Financing Statements...................................................24
7.4 No Waiver...........................................................................25
SECTION 8. MISCELLANEOUS................................................................................25
8.1 Amendments in Writing...............................................................25
8.2 Notices.............................................................................25
8.3 No Waiver by Course of Conduct; Cumulative Remedies.................................25
8.4 Intentionally Omitted...............................................................25
8.5 Successors and Assigns..............................................................25
8.6 Counterparts........................................................................26
8.7 Severability........................................................................26
8.8 Section Headings....................................................................26
8.9 Integration.........................................................................26
8.10 GOVERNING LAW.......................................................................26
8.11 Submission To Jurisdiction; Waivers.................................................26
8.12 Acknowledgments.....................................................................27
8.13 WAIVER OF JURY TRIAL................................................................27
8.14 Releases............................................................................27
8.15 New World Right of First Offer......................................................28
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GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of September __,
2003, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
GMAC COMMERCIAL MORTGAGE CORPORATION as lender in respect of the Loan (in such
capacity, the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement, dated as
of the date hereof (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lender and RSVP Holdings, LLC, a
Delaware limited liability company ("RSVP Holdings"), Reckson Strategic Venture
Partners, LLC, a Delaware limited liability company ("RSVP") and Reckson Asset
Partners, LLC, a Delaware limited liability company ("RAP", collectively,
jointly and severally, with RSVP Holdings and RSVP, the "Borrowers"), the Lender
has agreed to make the Loan to the Borrowers upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrowers and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the
Lender to make the Loan to the Borrowers under the Credit Agreement that the
Grantors shall have executed and delivered this Agreement to the Lender;
NOW, THEREFORE, in consideration of the premises and to induce
the Lender to enter into the Credit Agreement and to induce the Lender to make
the Loan to the Borrowers, each Grantor hereby agrees with the Lender, as
follows:
SECTION 1.
DEFINED TERMS
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1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the New York
UCC are used herein as so defined: Accounts, Chattel Paper, Deposit Accounts,
Documents, Equipment, Instruments, Inventory, Investment Property, Promissory
Note and Security Entitlements.
(b) The following terms shall have the following
meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 3.
"Collateral Accounts": collectively, any collateral account
established by the Lender as provided in Section 6.2 and any Deposit Accounts.
"Event of Default": an Event of Default under the Credit
Agreement.
"General Intangibles": all "general intangibles" as such term
is defined in the New York UCC and, in any event, including, without limitation,
with respect to any Grantor, all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which such Grantor is a party
or under which such Grantor has any right, title or interest or to which such
Grantor or any property of such Grantor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (ii) all rights of such Grantor
to damages arising thereunder and (iii) all rights of such Grantor to perform
and to exercise all remedies thereunder, in each case to the extent the grant by
such Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is not
prohibited by an effective provision of such contract, agreement, instrument or
indenture requiring the consent of any other party thereto or which would give
any other party to such contract, agreement, instrument or indenture the right
to terminate its obligations thereunder, unless all necessary consents to such
grant of a security interest have been obtained from the other parties thereto
(it being understood that the foregoing shall not be deemed to obligate such
Grantor to obtain such consents); provided, that the foregoing limitation shall
not affect, limit, restrict or impair the grant by such Grantor of a security
interest pursuant to this Agreement in any receivable or any money or other
amounts due or to become due under any such contract, agreement, instrument or
indenture.
"Guarantors": the collective reference to each of the Limited
Recourse Guarantors and the Subsidiary Guarantors.
"Issuers": the collective reference to each issuer of a
Pledged Security.
"Limited Recourse Guarantors": all Grantors other than the
Subsidiary Guarantors and the Borrowers.
"New World": New World Realty, LLC, a Delaware limited
liability company.
"New World Management": New World Realty Management, LLC, a
Delaware limited liability company.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Pledge Amendment": as defined in Section 5.1.
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"Pledged Notes": the promissory notes due September 2006
issued to FrontLine by principals of New World in the aggregate original
principal amount of $2,801,036 secured by Capital Stock of Reckson, the interest
of FrontLine having been assigned by FrontLine to RSIFM pursuant to an
assignment, dated September 2003.
"Pledged Securities": the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock": all Capital Stock of the Borrowers owned by
the Limited Recourse Guarantors, all Capital Stock of the Subsidiary Guarantors
and all Capital Stock of the Platform Affiliates owned by any Grantor, including
but not limited to, the Capital Stock of the Borrowers, Subsidiary Guarantors
and Platform Affiliates listed on Schedule 1.1(a), together with any other
shares, certificates, options or rights of any nature whatsoever in respect of
the Capital Stock of the Borrowers, Subsidiary Guarantors or the Platform
Affiliates that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in the New
York UCC and, in any event, shall include, without limitation, all dividends,
interest, principal, cash, other income or other collections thereon or
distributions or payments with respect thereto and any instruments, options,
rights, securities, or other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Securities as a result of a merger, reorganization, stock split,
reclassification, recapitalization or other similar change relating to the
Pledged Securities or otherwise.
"Reckson": Reckson Associates Realty Corp.
"Recourse Losses": as defined in Section 2.1(a).
"ROP": Reckson Operating Partnership, L.P.
"ROP Asset": as defined in the Environmental Indemnity
Agreement.
"Securities Act": the Securities Act of 1933, as amended.
"Subsidiary Guarantors": the wholly owned Subsidiaries of the
Borrowers listed on Schedule 1.1(b) hereto.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein," "hereto" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such terms.
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(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2.
GUARANTEE
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2.1 ROP Guarantee.
(a) ROP severally and not jointly with any other
Guarantor hereunder irrevocably guarantees to the Lender and its successors and
assigns, without duplication, any loss, damage, cost, expense, liability claim
or obligation actually incurred by the Lender (including reasonable attorneys'
fees and costs reasonably incurred) (collectively, "Recourse Losses") to the
extent directly arising out of or in connection with: (i) willful misconduct or
intentional waste by ROP with respect to the Collateral pledged by it or any ROP
Asset (ii) intentional misrepresentation by ROP hereunder or in any other Loan
Document, (iii) fraud by ROP with respect to the Collateral pledged by it or any
ROP Asset, (iv) gross negligence or criminal acts by ROP resulting in
forfeiture, seizure or loss of any material portion of a Property or the Capital
Stock of a Person who owns, directly or indirectly, a Property or (v)
misapplication or misappropriation by ROP of any proceeds, rents, security
deposits or other revenues from a Property, dividends or distributions from a
Subsidiary or a Platform Affiliate or the Proceeds of the Collateral (including
proceeds paid under any insurance policies or condemnation proceedings and
proceeds subject to any Assignment of Proceeds).
(b) ROP also, severally (and not jointly with any
other guarantor hereunder), irrevocably, guarantees to the Lender and its
successors and assigns, without duplication, any amounts guaranteed to the
Lender by RAP pursuant to the terms and conditions set forth in Section 2.2
hereof.
(c) ROP severally (and not jointly with any other
guarantor hereunder) agrees to pay or reimburse the Lender for all its
reasonable costs and expenses incurred in collecting against ROP under the
guarantee of ROP contained in this Section 2.1 or otherwise enforcing or
preserving any rights of the Lender against ROP under this Agreement, including,
without limitation, the reasonable fees and disbursements of counsel to the
Lender in connection therewith.
2.2 RAP Guarantee of RSIFM.
(a) Subject to the terms and conditions of Section
2.1(c) hereof, RAP also, jointly and severally with RSIFM (but not jointly with
any other guarantor hereunder), irrevocably, guarantees to the Lender and its
successors and assigns, without duplication, any amounts guaranteed to the
Lender by RSIFM pursuant to the terms and conditions set forth in Section 2.3
hereof expressly, excluding, however, any amounts guaranteed to the Lender by
RSIFM arising in connection with environmental covenants, issues, liabilities
and concerns, including, without limitation, to the extent such environmental
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covenants, issues, liabilities and concerns arise under the Environmental
Indemnity Agreement or under Section 2.3(a).
(b) RAP severally (and not jointly with any other
guarantor hereunder) agrees to pay or reimburse the Lender for all its
reasonable costs and expenses incurred in collecting against RAP under the
guarantee of RAP contained in this Section 2.2 or otherwise enforcing or
preserving any rights of the Lender against RAP under this Agreement, including,
without limitation, the reasonable fees and disbursements of counsel to the
Lender in connection therewith.
(c) The maximum liability of RAP to the Lender under
Section 2.2(a) hereof shall be $6,000,000, in the aggregate.
2.3 RSIFM Guarantee.
(a) RSIFM, severally (and not jointly with any other
guarantor hereunder), irrevocably, guarantees to the Lender and its successors
and assigns, without duplication, any Recourse Losses to the extent directly
arising out of or in connection with: (i) the willful misconduct or intentional
waste by RSIFM with respect to the Collateral or any other Property, (ii)
intentional misrepresentation by RSIFM hereunder or in any other Loan Document,
(iii) fraud by RSIFM with respect to the Collateral or any other Property, (iv)
gross negligence or criminal acts by RSIFM resulting in forfeiture, seizure or
loss of any material portion of a Property or the Capital Stock of a Person who
owns, directly or indirectly, a Property, (v) the misapplication or
misappropriation by RSIFM of any proceeds, rents, security deposits or other
revenues from a Property, dividends or distributions from a Subsidiary or a
Platform Affiliate or the Proceeds of the Collateral (including proceeds paid
under any insurance policies or condemnation proceedings and proceeds subject to
any Assignment of Proceeds) or (vi) the occurrence of any event with respect to
a Borrower described in Sections 7.1(f)(i) or (iv) of the Credit Agreement.
(b) RSIFM severally (and not jointly with any other
guarantor hereunder) agrees to pay or reimburse the Lender for all its
reasonable costs and expenses incurred in collecting against RSIFM under the
guarantee of RSIFM contained in this Section 2.3 or otherwise enforcing or
preserving any rights of the Lender against RSIFM under this Agreement,
including, without limitation, the reasonable fees and disbursements of counsel
to the Lender in connection therewith.
2.4 New World Guarantee.
(a) (i) Subject to the terms and conditions of
Section 2.4(a)(iii) hereof, New World, severally (and not jointly with
any other guarantor hereunder), irrevocably, guarantees to the Lender
and its successors and assigns, without duplication, any Recourse
Losses to the extent directly arising out of or in connection with: (i)
the willful misconduct or intentional waste by New World with respect
to the Collateral or any other Property, (ii) intentional
misrepresentation by New World hereunder or in any other Loan Document,
(iii) fraud by New World with respect to the Collateral or any other
Property, (iv) gross negligence or criminal acts by New World resulting
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in forfeiture, seizure or loss of any material portion of a Property or
the Capital Stock of a Person who owns, directly or indirectly, a
Property or (v) misapplication (provided that any misapplication will
be deemed cured if within three Business Days of becoming aware of such
misapplication any misapplied amounts are returned) or misappropriation
by New World of any proceeds, rents, security deposits or other
revenues from a Property, dividends or distributions from a Subsidiary
or a Platform Affiliate or the Proceeds of the Collateral (including
proceeds paid under any insurance policies or condemnation proceedings
and proceeds subject to any Assignment of Proceeds).
(ii) Subject to the terms and conditions of
Section 2.4(a)(iii) hereof, New World severally (and not jointly with
any other guarantor hereunder) agrees to pay or reimburse the Lender
for all its reasonable costs and expenses incurred in collecting
against New World under the guarantee of New World contained in this
Section 2.4 or otherwise enforcing or preserving any rights of the
Lender against New World under this Agreement, including, without
limitation, the reasonable fees and disbursements of counsel to the
Lender in connection therewith.
(iii) Notwithstanding any provision to the
contrary contained herein, New World shall not be liable to the Lender
for any amounts hereunder, including without limitation pursuant to
Section 2.4(a)(i), hereof if New World is directed to take any action
or refrain from taking any action by RSIFM.
(b) (i) Subject to the terms conditions of
Section 2.4(b)(iii) hereof, New World Management, severally (and not
jointly with any other guarantor hereunder), irrevocably, guarantees to
the Lender and its successors and assigns, without duplication, any
Recourse Losses (excluding, so long as New World Management has not
failed to comply with the terms of any insurance policy with respect to
employees obtained by the Lender, Recourse Losses due to independent
acts of employees other than ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) to the
extent directly arising out of or in connection with: (i) the willful
misconduct or intentional waste by New World Management, (ii)
intentional misrepresentation by New World Management hereunder or in
any other Loan Document, (iii) fraud by New World Management with
respect to the Collateral or any Property, (iv) gross negligence or
criminal acts by New World Management resulting in forfeiture, seizure
or loss of any material portion of a Property or the Capital Stock of a
Person who owns, directly or indirectly, a Property or (v)
misapplication (provided that any misapplication will be deemed cured
if within three Business Days of becoming aware of such misapplication
any misapplied amounts are returned) or misappropriation by New World
Management of any proceeds, rents, security deposits or other revenues
from a Property, dividends or distributions from a Subsidiary or a
Platform Affiliate or the Proceeds of the Collateral (including
proceeds paid under any insurance policies or condemnation proceedings
and proceeds subject to any Assignment of Proceeds).
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(ii) Subject to the terms and conditions of
Section 2.4(b)(iii) hereof, New World Management severally (and not
jointly with any other guarantor hereunder) agrees to pay or reimburse
the Lender for all its reasonable costs and expenses incurred in
collecting against New World Management (excluding costs and expenses
incurred due to independent acts of employees other than ▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) under the guarantee of New World Management
contained in this Section 2.4 or otherwise enforcing or preserving any
rights of the Lender against New World Management under this Agreement,
including, without limitation, the reasonable fees and disbursements of
counsel to the Lender in connection therewith.
(iii) Notwithstanding any provision to the
contrary contained herein, New World shall not be liable to the Lender
for any amounts hereunder, including without limitation pursuant to
Section 2.4(b)(i), hereof if New World Management is directed to take
any action or refrain from taking any action by the Borrowers.
(c) Notwithstanding anything in this Section 2.4 or
the Back Stop Guarantee Agreement to the contrary, the maximum
aggregate liability of New World and New World Management under
Sections 2.4(a)(i) and 2.4(b)(i) and the Principals under Section
1(a)(i) of the Back Stop Guarantee Agreement shall not in any event
exceed $2,000,000 in the aggregate.
2.5 Subsidiary Guarantors Guarantee.
(a) Subject to the terms and conditions of Section 2.5 (c)
hereof, the Subsidiary Guarantors jointly and severally with each other,
irrevocably, guarantee to the Lender and its successors and assigns the
Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents.
(b) Subject to the terms of Section 2.5(c) hereof, the
Subsidiary Guarantors jointly and severally with each other (and not jointly
with any other guarantor hereunder) agree to pay or reimburse the Lender for all
its reasonable costs and expenses incurred in collecting against New World under
the guarantee of the Subsidiary Guarantors contained in this Section 2.5 or
otherwise enforcing or preserving any rights of the Lender against the
Subsidiary Guarantors under this Agreement, including, without limitation, the
reasonable fees and disbursements of counsel (including the allocated reasonable
fees and expenses of in-house counsel) to the Lender in connection therewith.
(c) Notwithstanding anything to the contrary contained in this
Agreement including without limitation the provisions of Sections 2.5 (a) and
(b) hereof, the maximum liability of each Subsidiary Guarantor hereunder shall
be $1.00 less than the minimum amount which, under applicable federal and state
laws, including those relating to the insolvency of debtors, and after giving
effect to all applicable rights of contribution, would result in the avoidance
or illegality of the obligations of such Subsidiary Guarantors hereunder.
Nothing herein shall be construed to shift to the Lender the burden of proof
with respect to the maximum liability of any Subsidiary Guarantor hereunder.
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2.6 No Duplication. Notwithstanding anything contained
herein to the contrary, to the extent that any Recourse Loss arises out of or in
connection with the occurrence of one or more events specified in Section 2.1,
2.2, 2.3 or 2.4 by more than one Limited Recourse Guarantor (such Limited
Recourse Guarantor being a "Defaulting LRG"), no individual Defaulting LRG shall
be, and the Defaulting LRGs collectively shall not be, responsible for paying
more than the aggregate amount of such Recourse Loss.
2.7 Guarantees to Remain in Effect. The foregoing
guarantees shall remain in full force and effect until all of the Obligations
shall have been satisfied in full. No payment made by the Borrowers, any of the
Guarantors, any other guarantor or any other Person or received or collected by
the Lender from the Borrowers, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by such Guarantor
in respect of the Obligations or any payment received or collected from such
Guarantor in respect of the Obligations), remain liable up to the maximum
liability of such Guarantor hereunder until the Obligations are paid in full.
2.8 No Subrogation. Notwithstanding any payment made by
any Guarantor hereunder or any set-off or application of funds of any Guarantor
by the Lender, no Guarantor shall be entitled to be subrogated to any of the
rights of the Lender against the Borrowers or any other Guarantor or any
collateral security or guarantee or right of offset held by the Lender for the
payment of the Obligations, nor shall any Guarantor seek or be entitled to seek
any contribution or reimbursement from the Borrowers or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Lender by the Borrowers on account of the Obligations are paid in full. If
any amount shall be paid to any Guarantor on account of such subrogation rights
at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Lender, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Lender in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Lender, if required), to be
applied against the Obligations, whether matured or unmatured, in the order and
priority as set forth in Section 2.4 of the Credit Agreement. Notwithstanding
the foregoing, any Grantor may file a proof of claim in any bankruptcy
proceeding of any other Grantor in respect of its subrogation rights or take any
action necessary to toll the statute of limitations or perfect any claim within
the statute.
2.9 Amendments, etc. with Respect to the Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Lender may be rescinded by the Lender and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
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offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Lender, and the Credit Agreement and the other
Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the Lender may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by the Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. The Lender shall not have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the Obligations or for
the guarantee contained in this Section 2 or any property subject thereto.
2.10 Guarantee Absolute. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Lender upon the guarantee contained in
this Section 2 or acceptance of the guarantee contained in this Section 2; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Borrowers and any of the Guarantors, on the one hand, and the Lender, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrowers or any of the Guarantors with
respect to the Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a continuing and
absolute guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the Lender,
or (b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrowers or any other Person against the Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrowers for the Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against the Borrowers, any other Guarantor or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by the Lender to make
any such demand, to pursue such other rights or remedies or to collect any
payments from the Borrowers, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrowers, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Lender against any Guarantor. For the
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purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.11 Reinstatement. Each of the guarantees contained in
this Section 2 shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrowers or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrowers or any Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
2.12 Payments. Each Guarantor hereby agrees that payments
due under its respective guarantee hereunder will be paid to the Lender without
set-off or counterclaim in Dollars at the office of the Lender set forth in the
Credit Agreement.
SECTION 3.
GRANT OF SECURITY INTEREST
--------------------------
Each Grantor hereby assigns and transfers to the Lender, and
hereby grants to the Lender, a security interest in, all of the following
property now owned or at any time hereafter acquired by such Grantor or in which
such Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), in each case, as its interest
therein may arise or appear (whether by ownership, security interest, claim or
otherwise) as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations:
(a) The Accounts set forth on Schedule 3 maintained
by the Borrowers with PNC Bank, National Association pursuant to the Cash
Collateral Agreement (together with any successor or replacement accounts) and
all Deposit Accounts;
(b) all Pledged Securities owned by such Grantor;
provided, however, that notwithstanding any provision to the contrary contained
herein the Pledged Note is granted as collateral hereunder to the Lender solely
to secure the obligations by RSIFM under Section 2.3 hereof and New World and
New World Management under Section 2.4 hereof;
(c) all Accounts, Chattel Paper, Documents, General
Intangibles, Instruments, Investment Property and Security Entitlements of the
Grantors (other than ROP, RSIFM and New World Management);
(d) to the extent of each Grantor's Collateral, all
books and records in each case pertaining to the foregoing clauses (a) through
(c) and other rights and obligations of any kind, arising out of or in
connection with any and all of the foregoing; and
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(e) to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Lender to enter into the Credit Agreement and to
induce the Lender to make their respective extensions of credit to the Borrowers
thereunder, each Grantor hereby represents and warrants to the Lender with
respect to itself only (and not with respect to any other Grantor) that:
4.1 Organization; Authority.
(a) Such Grantor (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the limited liability company, partnership or corporate
power, as applicable, and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (iii) is duly qualified as a foreign
corporation, partnership or limited liability company and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except to
the extent that the failure to qualify could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect and (iv) is, to the actual
knowledge of such Grantor, in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Such Grantor has the partnership or limited
liability company power and authority, and the legal right, to make, deliver and
perform under each of the Loan Documents to which it is a party and has taken
all necessary partnership or limited liability company action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party.
(c) Subject to and in reliance on the Consents and
the Recognition Agreements, except as shown on Schedule 4.1(c) and except for
bankruptcy court approval obtained in connection with the FrontLine Bankruptcy
which is in full force and effect (and in the case of ROP, the filing by it of a
report on Form 8-K, which filing the failure to make will not have an adverse
effect on the validity or enforceability of this Agreement), no consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with such
Grantor's execution, delivery, performance, validity or enforceability of this
Agreement or each other Loan Document to which it is a party when executed and
delivered, or if such consent is required, the same has been received or waived
by the Lender. This Agreement, and each other Loan Document to which it is a
party will be, duly executed and delivered on behalf of such Grantor. This
Agreement constitutes, and each other Loan Document to which it is a party when
executed and delivered will constitute a legal, valid and binding obligation of
such Grantor enforceable against such Grantor, by the Lender, in accordance with
11
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) Except as set forth on Schedule 4.1(d), and in
the case of Contractual Obligations subject to and in reliance on the Consents
and the Recognition Agreements, the execution, delivery and performance of the
Loan Documents by such Grantor will not violate any Requirement of Law
applicable to such Grantor or Contractual Obligation of such Grantor and will
not result in, or require, the creation or imposition of any Lien on any of such
Grantor's properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than pursuant to this Agreement or any of the
other Loan Documents).
(e) No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the actual
knowledge of each Grantor, threatened by or against each Grantor or any of its
Subsidiaries or against any of its or their respective properties or revenues
(x) with respect to any of the Loan Documents, (y) other than as set forth on
Schedule 4.1(e), with respect to any of the transactions contemplated hereby or
under the Loan Documents, or (z) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(f) RSIFM (and only RSIFM) represents that ▇▇▇▇▇
▇▇▇▇▇▇▇ is the sole director of FrontLine, and that FrontLine, together with an
independent manager, are the sole managers of RSIFM.
4.2 Intentionally Omitted.
4.3 Title; No Other Liens. Except for the security
interest granted to the Lender pursuant to this Agreement and the other Liens
permitted to exist on the Collateral by the Credit Agreement and in the case of
ROP, immaterial non-consensual liens incurred in the ordinary course of business
which do not present any current risk of foreclosure, such Grantor owns each
item of the Collateral purported to be owned by it free and clear of any and all
Liens or claims of others. No financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Lender, pursuant
to this Agreement or as are permitted by the Credit Agreement.
4.4 Perfected First Priority Liens. The security
interests granted pursuant to this Agreement (a) upon completion of the filings
and other actions specified on Schedule 4.4 (which, in the case of all filings
and other documents referred to on said Schedule, have been delivered to the
Lender in completed and duly executed form) will constitute valid perfected
security interests in all of the Collateral in favor of the Lender, as
collateral security for the Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons purporting to
purchase any Collateral from such Grantor and (b) are prior to all other Liens
on the Collateral in existence on the date hereof.
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4.5 Locations of Grantors. On the date hereof, (i) the
jurisdictions of organization of such Grantor are specified on Schedule 4.5 and
such jurisdictions and locations listed on Schedule 4.5 provide accurate
information as to the location of such Grantor within the meaning of Section
9-307 of the New York UCC.
4.6 Intentionally Omitted.
4.7 Pledged Securities.
(a) The shares of Pledged Stock pledged by such
Grantor hereunder constitute (i) all the issued and outstanding shares of all
classes of the Capital Stock of the Borrowers owned by such Grantor, (ii) all of
the issued and outstanding shares of all classes of the Capital Stock of the
Joint Ventures owned by such Grantor and (iii) all of the issued and outstanding
shares of all classes of the Capital Stock of the Subsidiary Guarantors.
(b) All the shares of the Pledged Stock pledged by
such Grantor have been duly and validly issued and are fully paid and
nonassessable.
(c) In the case of RSIFM to its actual knowledge,
each of the Pledged Notes constitutes the legal, valid and binding obligation of
the obligor with respect thereto, enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
4.8 Additional Representations of ROP. ROP represents and
warrants that: (a) the aggregate amount reflected on the proof of claims filed
by it in the FrontLine Bankruptcy case as of the petition date was $183,000,000,
(b) it has not transferred any of such claims other than as may be deemed to
have occurred under the Allocation Agreement, dated as of April 29, 2003,
between ROP and BT Holdings (NY), Inc., (c) it owns more than 50% of the amount
of the claims of the creditor class in which its claims are included (which is
the general class of unsecured claims) and (d) the disclosure under Related
Party Transactions relating to ROP's investment in FrontLine and the Borrowers
in ROP's 10-Q for the quarter ended June 30, 2003 is accurate in all material
respects.
SECTION 5.
COVENANTS
---------
Each Grantor, with respect to itself and the Collateral
pledged by it to the Lender hereunder only (and not with respect to any other
Grantor or any other Collateral pledged to the Lender hereunder), covenants and
agrees with the Lender that, from and after the date of this Agreement until the
Obligations shall have been paid in full:
5.1 Delivery of Instruments, Promissory Notes, Chattel
Paper, Pledged Securities and Certain Funds.
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(a) If any amount payable under or in connection with
any of the Collateral pledged by such Grantor shall be or become evidenced by
any Instrument, Promissory Note or Chattel Paper, such Instrument, Promissory
Note or Chattel Paper shall be promptly delivered to the Lender together with a
Pledge Amendment substantially in the form of Exhibit A hereto (a "Pledge
Amendment"), duly indorsed in a manner satisfactory to the Lender, to be held as
the Collateral pursuant to this Agreement. Such Grantor hereby authorizes the
Lender to attach each schedule constituting part of a Pledge Amendment to the
applicable schedule of this Agreement and agrees that all Instruments,
Promissory Notes, Chattel Paper listed on any Pledge Amendment delivered to the
Lender shall for all purposes hereunder constitute the Collateral, and such
Grantor shall be deemed upon delivery thereof to have made the representations
and warranties, as applicable, set forth in Section 4 with respect to such
Collateral. Such Grantor further agrees to execute and deliver such other
documents and to take such other actions as are reasonably necessary to create
and perfect the security interests intended to be created hereunder, to effect
the foregoing and to permit the Lender to exercise any of its rights and
remedies hereunder.
(b) If such Grantor shall become entitled to receive
or shall receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock pledged by
such Grantor, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Lender, hold the same in trust for the Lender and
promptly deliver the same forthwith to the Lender, together with a Pledge
Amendment, in the exact form received, duly indorsed by such Grantor to the
Lender, if required, together with an undated stock power covering such
certificate duly executed in blank by such Grantor and with, if the Lender so
requests, signature guaranteed, to be held by the Lender, subject to the terms
hereof, as additional collateral security for the Obligations. Such Grantor
hereby authorizes the Lender to attach each schedule constituting part of a
Pledge Amendment to the applicable schedule of this Agreement and agrees that
all such stock certificates, options or rights listed on any Pledge Amendment
delivered to the Lender shall for all purposes hereunder constitute Collateral,
and such Grantor shall be deemed upon delivery thereof to have made the
representations and warranties, as applicable, set forth in Section 4 with
respect to such Collateral. Such Grantor further agrees to execute and deliver
such other documents and to take such other actions as are reasonably necessary
to create and perfect the security interests intended to be created hereunder,
to effect the foregoing and to permit the Lender to exercise any of its rights
and remedies hereunder.
(c) Any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Lender to be held by it hereunder as additional collateral security for
the Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Securities or any property shall be distributed upon or
with respect to the Pledged Securities, pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property or capital so distributed shall be delivered to the Lender
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to be held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or distributed in respect
of the Pledged Securities shall be received by such Grantor, such Grantor shall,
until such money or property is paid or delivered to the Lender, hold such money
or property in trust for the Lender, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
5.2 Payment of Obligations. Such Grantor will pay and
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, assessments and governmental charges
or levies imposed upon the Collateral pledged by such Grantor or in respect of
income or profits therefrom, as well as all claims of any kind (including,
without limitation, claims for labor, materials and supplies) against or with
respect to such Collateral, except that no such charge need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor and such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any material
portion of such Collateral or any interest therein.
5.3 Maintenance of Perfected Security Interest; Further
Documentation.
(a) Such Grantor shall not take any action that would
result in the security interest created by this Agreement not to be maintained
as a perfected priority security interest and shall defend such security
interest against the claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Lender from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Lender may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the
written request of the Lender, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the Lender
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby.
5.4 Changes in Locations, Name, etc. Such Grantor will
not, except upon 10 days' prior written notice to the Lender and delivery to the
Lender of all additional executed financing statements and other documents
reasonably requested by the Lender to maintain the validity, perfection and
priority of the security interests provided for herein:
15
(a) change the location of its jurisdiction of
organization from those referred to in Section 4.5; or
(b) change its name, identity or corporate,
partnership or limited liability company structure to such an extent that any
financing statement filed by the Lender in connection with this Agreement would
become misleading.
5.5 Notices. Such Grantor will advise the Lender
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created
hereby or Liens permitted under the Credit Agreement) on any of the Collateral
pledged by such Grantor which would adversely affect the ability of the Lender
to exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate value
of the Collateral pledged by such Grantor or on the security interests on such
Collateral created hereby.
5.6 Limitation on Liens etc.(a) Without the prior written
consent of the Lender, except in the case of the Borrowers and the Subsidiary
Guarantors as permitted by the Credit Agreement and in the case of ROP,
immaterial non-consensual liens incurred in the ordinary course of business
which do not present any risk of foreclosure, such Grantor will not (i) vote to
enable, or take any other action to permit, any Issuer to (A) issue any stock or
other equity securities of any nature, (B) issue any other securities
convertible into, or granting the right to purchase, or exchange for, any stock
or other equity securities of any nature of any Issuer, or (C) have any Capital
Stock of the Borrowers, the Platform Affiliates and Subsidiary Guarantors
represented by any certificates (other than Platform Affiliates which are
corporations), (ii) sell, assign, transfer, exchange, or otherwise dispose of,
or grant any option with respect to, the Collateral or Proceeds thereof, (iii)
create, incur or permit to exist any Liens on the Collateral or option in favor
of, or any claim of any Person with respect to, any of the Collateral or
Proceeds thereof except for the security interest created by the Loan Documents,
or (iv) enter into any agreement or undertaking restricting the right or ability
of such Grantor or the Lender to sell, assign or transfer any of the Pledged
Securities or Proceeds thereof.
5.7 Further Assurances. In the case of each Grantor which
is an Issuer, such Issuer agrees that (a) it will be bound by the terms of this
Agreement relating to the Pledged Securities issued by it and will comply with
such terms insofar as such terms are applicable to it, (b) it will notify the
Lender promptly in writing of the occurrence of any of the events described in
Section 5.1(b) with respect to the Pledged Securities issued by it and (c) it
will comply with the terms of Sections 6.1(c) and 6.5, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.1(c) or
6.5 with respect to the Pledged Securities issued by it.
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5.8 Covenants upon an Event of Default. Upon the
occurrence and continuance of an Event of Default, and the exercise by the
Lender of remedies under this Agreement, the Borrowers and Limited Recourse
Guarantors will upon request of the Lender take all reasonable actions to
facilitate the transfer of the Pledged Stock to the Lender.
5.9 Borrowers' Limited Liability Company Agreements. Such
Grantor shall not except as permitted by the Credit Agreement permit the
agreement of limited liability company of the Borrowers to be materially
amended, without the consent of the Lender.
5.10 Board of Directors of RSIFM. RSIFM (and only RSIFM)
agrees that there shall be, as applicable, at least one duly appointed manager
or member of the board of directors of RSIFM (in either case, an "Independent
Director"), who shall not be at the time of such individual's appointment, or
during the term of such individual's appointment at any time during the two
years preceding his or her appointment (A) a member, stockholder, partner,
director, officer or employee of any Borrower or Limited Recourse Guarantor or
Platform Affiliate or any of their respective Affiliates; (B) affiliated with a
significant customer or supplier of any Borrower, Limited Recourse Guarantor or
Platform Affiliate or any of their respective Affiliates; (C) any other Person
receiving a material portion of his or her compensation or other financial
remuneration from or who is otherwise financially dependent on, any Borrower,
Limited Recourse Guarantor or Platform Affiliate, an officer, director or
employee of any Borrower, Limited Recourse Guarantor or Platform Affiliate or
any of their respective Affiliates or an officer's, director's or employee's
family member by blood or marriage or a business entity owned or controlled by
any of the foregoing; or (D) a spouse, parent, sibling or child of any person
described by (A), (B) or (C) above. The Amended and Restated Operating Agreement
of RSIFM shall provide that the consent of the Independent Director shall be
required for any of RSIFM or any Person for which RSIFM acts directly or through
another entity as managing member to do any of the acts set forth in Section
7(f) of the Credit Agreement.
5.11 Pledged Notes. RSIFM (and only RSIFM) agrees that it
will not amend, modify, terminate or waive any provision of any Pledged Note.
5.12 Intentionally Omitted.
5.13 RSIFM and New World Covenants. (a) RSIFM agrees to
comply with the provisions of Sections 5.2 and 5.3 of its operating agreement
and (b) New World covenants and agrees that, so long as any amount is owing to
the Lender hereunder or under any other Loan Document, New World shall not,
directly or indirectly:
(a) Own any property or any other assets other than
(i) the Company's membership interest in RSVP Holdings, LLC, a Delaware limited
liability company, and (ii) incidental personal and intangible property relating
to the foregoing membership interest (including cash or Cash Equivalents in
connection with such membership interests).
17
(b) Engage in any business, other than as specified
in clause (a) above.
(c) Incur liabilities, contingent or otherwise, other
than (i) those normal and incidental to its business as specified in clause (a)
above and (ii) those incurred hereunder.
(d) Hold itself out to be responsible for the debts
or obligations of any other Person other than hereunder;
(e) Acquire obligations or securities of its
partners, members, or shareholders.
(f) Make any loans or advances to any entity.
(g) Except as otherwise permitted by the Loan
Agreement, enter into any transaction, contract or agreement with any of its
Affiliates, any of its constituent parties or any Affiliate of any constituent
party, except upon terms and conditions that are substantially similar to those
that would be available on an arm's-length basis with third parties.
(h) Except as otherwise permitted by the Loan
Agreement, commingle its funds and other assets with those of any Affiliate or
constituent party or any Affiliate of any constituent party or any other Person.
(i) Amend, modify or otherwise change or suffer any
constituent party to amend, modify or otherwise change the provisions of its
certificate of incorporation or partnership agreement or operating agreement, if
such amendment could materially adversely affect any of the requirements of this
Section 5.13 applicable to it.
(j) Fail to observe each of the following:
(i) remain solvent and pay its debts and
liabilities (including employment and overhead expenses) from its
assets as the same shall become due;
(ii) do all things necessary to observe
limited liability company formalities and preserve its existence;
correct any known misunderstanding regarding its separate identity.
(iii) maintain books and records and bank
accounts separate from those of any other Person (including its
Affiliates, any constituent party and any Affiliate of any constituent
party) and file its own tax returns (except to the extent consolidation
or inclusion is required as a matter of law);
(iv) hold itself out to the public as a
legal entity separate and distinct from any other entity (including any
of its Affiliates, any of its constituent parties or any Affiliate of
any constituent party);
(v) maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
(vi) maintain its assets in such a manner
that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any Affiliate or
constituent party or any Affiliate of any constituent party or any
other Person;
18
(vii) pay the salaries of its own employees
and maintain a sufficient number of employees in light of its
contemplated business operations;
(viii) use separate invoices and checks; and
(ix) allocate fairly and reasonably any
overhead for shared office space.
5.14 Limitation on Fundamental Changes and Sale of Assets.
Enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, the Collateral, or any Capital
Stock of a Borrower, or all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business.
SECTION 6.
REMEDIAL PROVISIONS
-------------------
6.1 Pledged Stock.
(a) Unless an Event of Default shall have occurred
and be continuing and the Lender shall have given notice to the relevant Grantor
of the Lender's intent to exercise its corresponding rights pursuant to Section
6.1(b), each relevant Grantor shall be permitted to receive into the Cash
Collateral Account and be paid all cash dividends paid in respect of the Pledged
Stock and all payments made in respect of the Pledged Notes, in each case paid
in the normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the Credit Agreement, and to exercise all
voting limited liability company, partnership or corporate rights with respect
to the Pledged Securities; provided, however, no vote shall be cast or limited
liability company, partnership or corporate right exercised or other action
taken which, in the Lender's reasonable judgment, would impair the Collateral or
which would be inconsistent with or result in any violation of any provision of
the Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be
continuing and the Lender shall give notice of its intent to exercise such
rights to the relevant Grantor or Grantors, (i) the Lender shall have the right
to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Lender may determine, and (ii) any or all of
19
the Pledged Securities may be registered in the name of the Lender or its
nominee, and the Lender or its nominee may thereafter exercise (x) all voting,
limited liability company, partnership, corporate and other rights pertaining to
such Pledged Securities at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the limited liability company, partnership or
corporate structure of any Issuer, or upon the exercise by any Grantor or the
Lender of any right, privilege or option pertaining to such Pledged Securities,
and in connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Lender may
determine), all without liability except to account for property actually
received by it, but the Lender shall have no duty to any Grantor to exercise any
such right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply
with any instruction received by it from the Lender in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Lender.
6.2 Proceeds to be Turned Over to Lender. If an Event of
Default shall occur and be continuing, all Proceeds received by any Grantor
during the continuance of such Event of Default consisting of cash, checks and
other near-cash items shall be held by such Grantor in trust for the Lender,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Lender in the exact form received by such
Grantor (duly indorsed by such Grantor to the Lender, if required). All Proceeds
received by the Lender hereunder shall be held by the Lender in a Collateral
Account maintained under its sole dominion and control. If such Proceeds consist
of cash, the Lender will hold such proceeds in the Cash Collateral Account. All
such Proceeds shall be held by the Lender in such Collateral Account (or by such
Grantor in trust for the Lender) during the continuance of such Event of Default
as collateral security for all the Obligations and shall not constitute payment
thereof until applied toward the payment of such Obligations as provided in
Section 6.3.
6.3 Application. At such intervals as may be agreed upon
by the Borrowers and the Lender, or, if an Event of Default shall have occurred
and be continuing, at any time at the Lender's election, the Lender may apply
all or any part of any Collateral Account towards the payment of the Obligations
in such order as the Lender may elect, and any part of such funds which the
Lender elects not so to apply and deems not required as collateral security for
the Obligations shall be paid over from time to time by the Lender to the
Borrowers or to whomsoever may be lawfully entitled to receive the same. Funds
20
in the Cash Collateral Account shall be released to the Borrowers in accordance
with the Credit Agreement and the Cash Collateral Agreement. Any balance in the
Collateral Accounts remaining after the Obligations shall have been paid in full
shall be paid over to the Borrowers or to whomsoever may be lawfully entitled to
receive the same.
6.4 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Lender, may exercise, in addition to all other
rights and remedies granted to them in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Lender,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Lender or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The Lender shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Lender's request, to assemble the Collateral and make it
available to the Lender at places which the Lender shall reasonably select,
whether at such Grantor's premises or elsewhere. The Lender shall apply the net
proceeds of any action taken by it pursuant to this Section 6.4, after deducting
all reasonable costs and expenses of every kind incurred in connection therewith
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Lender hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Lender may elect,
and only after such application and after the payment by the Lender of any other
amount required by any provision of law, including, without limitation, Sections
9-608(a)(1)(C) and 9-615(a)(3) of the New York UCC, need the Lender account for
the surplus, if any, to any Grantor. To the extent permitted by applicable law,
each Grantor waives all claims, damages and demands it may acquire against the
Lender arising out of the exercise by them of any rights hereunder except as to
the Lender's gross negligence or willful misconduct. If any notice of a proposed
sale or other disposition of the Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition.
6.5 Right to Private Sale.
(a) Each Grantor recognizes that the Lender may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
21
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Lender shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(b) Each Grantor, with respect to itself only, agrees
to use its best efforts to do or cause to be done all such other acts as may be
necessary to make such sale or sales of all or any portion of the Pledged Stock
pursuant to this Section 6.5 valid and binding and in compliance with any and
all other applicable Requirements of Law. Each Grantor further agrees, with
respect to itself only, that a material breach of any of the material covenants
contained in this Section 6.5 will cause irreparable injury to the Lender, that
the Lender has no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.5 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
6.6 Waiver; Deficiency. Each Borrower and Subsidiary
Guarantor shall remain severally liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Lender to collect such deficiency.
SECTION 7.
THE LENDER
----------
7.1 Lender's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and
appoints the Lender and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to, upon 10 days' prior notice to such Grantor, take any and all
reasonably necessary action and to execute any and all documents and instruments
which are reasonably necessary to accomplish the purposes of this Agreement,
and, without limiting the generality of the foregoing, each Grantor hereby gives
the Lender the power and right, on behalf of such Grantor, without assent by
such Grantor, to do any or all of the following if required to reasonably
accomplish the foregoing:
22
(i) in the name of such Grantor or its own
name, or otherwise, take possession of and indorse and collect any
checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Collateral and file any claim or take any other
action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Lender for the purpose of collecting any and all
such moneys due under any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied
or placed on or threatened against the Collateral, effect any repairs
or any insurance called for by the terms of this Agreement and pay all
or any part of the premiums therefor and the costs thereof;
(iii) execute, in connection with any sale
provided for in Section 6.4 or 6.5, any endorsements, assignments or
other instruments of conveyance or transfer with respect to the
Collateral;
(iv) direct any party liable for any payment
under any of the Collateral to make payment of any and all moneys due
thereunder directly to the Lender or as the Lender shall direct;
(v) ask or demand for, collect, and receive
payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out
of any Collateral;
(vi) sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral;
(vii) commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral;
(viii) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral;
(ix) settle, compromise or adjust any such
suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Lender may deem appropriate; and
(x) generally, sell, transfer, pledge and
make any reasonable agreement with respect to the Collateral as fully
and completely as though the Lender were the absolute owner thereof for
all purposes, and do, at the Lender's reasonable option and such
Grantor's reasonable expense, at any time, or from time to time, all
acts and things which are reasonably necessary to protect, preserve or
realize upon the Collateral and the Lender's security interests therein
and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
23
Anything in this Section 7.1(a) to the contrary notwithstanding, the Lender
agrees that it will not exercise any rights under the power of attorney provided
for in this Section 7.1(a) unless an Event of Default shall have occurred and be
continuing.
(b) If any Grantor unreasonably fails to perform or
comply with any of its agreements contained in this Section 7.1(a), the Lender,
at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance therewith.
(c) The reasonable expenses of the Lender incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Loans under the Credit Agreement,
from the date of payment by the Lender to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Lender on demand.
(d) Each Grantor hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated and the security
interests created hereby are released.
7.2 Duty of Lender. The Lender's sole duty with respect
to the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the New York UCC or otherwise, shall be to
deal with it in the same manner as the Lender deals with similar property for
its own account. Neither the Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Lender and the Lender hereunder are solely to protect the
Lender' interests in the Collateral and shall not impose any duty upon the
Lender to exercise any such powers. Notwithstanding any provision to the
contrary contained herein, the Lender shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers, and neither the
Lender nor any of its officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except that
the Lender shall be responsible for its own gross negligence or willful
misconduct.
7.3 Execution of Financing Statements. Each Grantor
authorizes the Lender to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral pledged by
such Guarantor without the signature of such Grantor in such form and in such
offices as the Lender reasonably determines appropriate to perfect the security
interests of the Lender under this Agreement. A photographic or other
reproduction of this Agreement shall be sufficient as a financing statement or
other filing or recording document or instrument for filing or recording in any
jurisdiction.
24
7.4 No Waiver. Nothing herein shall be construed to
relieve the Lender of any actual damages caused by its gross negligence or
willful misconduct.
SECTION 8.
MISCELLANEOUS
-------------
8.1 Amendments in Writing. None of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by each affected Grantor and
the Lender, provided that any provision of this Agreement imposing obligations
on any Grantor may be waived by the Lender in a written instrument executed by
the Lender in accordance with Section 9.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon
the Lender or any Grantor hereunder shall be effected in the manner provided for
in Section 9.2 of the Credit Agreement; provided that any such notice, request
or demand to or upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on Schedule 8.2.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Lender shall by any act (except by a written instrument pursuant to
Section 8.1), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default. No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Lender would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
8.4 Intentionally Omitted.
8.5 Successors and Assigns.
(a) This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Lender and their successors and assigns; provided that no Grantor may assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Lender.
(b) In accordance with and subject to Section 8.1 of
the Credit Agreement, this Agreement is being entered into by the Lender
individually and as agent for all present and future Assignees, and privity of
contract is hereby created among the Lender and all present and future
Assignees, on the one hand, and the Grantors, on the other hand.
25
8.6 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.7 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.8 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.9 Integration. This Agreement and the other Loan
Documents represent the agreement of the Grantors and the Lender with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Lender relative to subject matter hereof
and thereof not expressly set forth or referred to herein or in the other Loan
Documents.
8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
8.11 Submission To Jurisdiction; Waivers. Each Grantor, by its
acceptance hereof, and the Lender hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non exclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail, postage prepaid, to, as applicable, such Grantor at its address
referred to in Section 8.2 or at such other address of which the Lender shall
have been notified pursuant thereto and to the Lender at its address referred to
in Section 8.2 or at such other address of which the Grantors shall have been
notified pursuant thereto;
26
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or consequential
damages.
8.12 Acknowledgments. Each Grantor hereby acknowledges
that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents to which it is a party;
(b) the Lender does not have any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Lender, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lender or among the Grantors and the Lender.
8.13 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ITS
ACCEPTANCE HEREOF, THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.14 Releases.
(a) At such time as the Loans and the other
Obligations shall have been paid in full, the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Lender and each
Grantor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Grantors. At the request and sole expense of any Grantor following
any such termination, the Lender shall promptly deliver to such Grantor any
Collateral of such Grantor held by the Lender hereunder, and promptly execute
and promptly deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold,
transferred or otherwise disposed of by any Grantor in a transaction permitted
by the Credit Agreement, then the Lender, at the request and sole expense of
such Grantor, shall promptly deliver to such Grantor any such Collateral of such
Grantor held by the Lender hereunder and the Lender shall promptly execute and
deliver to such Grantor all releases or other documents reasonably necessary or
desirable for the release of the Liens created hereby on such Collateral;
provided that the Borrowers shall have delivered to the Lender, ten (10) days
prior to the date of the proposed release, a revocable written request for
release identifying the relevant Collateral and the terms of the sale or other
27
disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a certification by the Borrowers stating
that such transaction is in compliance with the Credit Agreement and the other
Loan Documents.
8.15 New World Right of First Offer. New World confirms
that the ROFO (as defined in the Amended and Restated Limited Liability Company
Agreement of RSVP Holdings, "RSVP Holdings LLC Agreement") in Section 3.06 of
the RSVP Holdings LLC Agreement does not apply to the pledge of any Collateral
or any foreclosure or other exercise of remedies in respect thereof.
28
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
RSVP HOLDINGS, LLC,
by its Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee Member and
not individually
RECKSON STRATEGIC VENTURE PARTNERS, LLC
By: RSVP Holdings, LLC, its Managing Member,
by its Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee Member and
not individually
RECKSON ASSET PARTNERS, LLC
By: Reckson Strategic Venture Partners,
LLC, a Member
By: RSVP Holdings, LLC, its
Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a Management
Committee Member and not
individually
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its general partner
By:
------------------------------------
Name:
Title:
RSI FUND MANAGEMENT, LLC
By: FrontLine Capital Group,
its Managing Member
By:
----------------------------------------
Name:
Title:
NEW WORLD REALTY, LLC
By: New World Realty Holdings, LLC,
its sole member
By:
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Authorized Signatory
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Authorized Signatory
NEW WORLD REALTY MANAGEMENT, LLC
By:
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
Authorized Signatory
By:
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Authorized Signatory
MELVILLE-CATSKILL, LLC
By: Reckson Strategic Venture Partners,
LLC, its sole member
By: RSVP Holdings LLC,
its Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a Management
Committee Member and not individually
RAP-SH HOLDINGS, LLC
By: Reckson Asset Partners,
its sole member
By: Reckson Strategic Venture
Partners, LLC, a Member
By: RSVP Holdings, LLC, its
Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee
Member and not
individually
RSVP ALI BABA, LLC
By: Reckson Strategic Venture Partners,
LLC, a Member
By: RSVP Holdings, LLC, its
Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee
Member and not individually
RSVP RETAIL, LLC
By: Reckson Strategic Venture Partners,
LLC, a Member
By: RSVP Holdings, LLC, its
Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee
Member and not individually
RSVP-SH HOLDINGS, LLC
By: Reckson Strategic Venture Partners,
LLC, its sole member
By: RSVP Holdings, LLC, its
Managing Member, by its
Management Committee
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Management
Committee member and not
individually
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a
Management Committee
Member and not individually
Accepted and Agreed:
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
-----------------------------------------
Name:
Title:
SCHEDULE 3
----------
ACCOUNTS
--------------------------------------------------------------------------------
Account No. Tax ID No. Account Title
----------- ---------- -------------
--------------------------------------------------------------------------------
8606086052 ▇▇-▇▇▇▇▇▇▇ Reckson Asset Partners LLC RSVP Overhead
Reserve SHP Assets and Titan JV
--------------------------------------------------------------------------------
8606086044 ▇▇-▇▇▇▇▇▇▇ Reckson Asset Partners LLC GMACCM as Lender
--------------------------------------------------------------------------------
8606086036 ▇▇-▇▇▇▇▇▇▇ Reckson Strategic Ventures Partners LLC
Catskills Environmental Reserve
--------------------------------------------------------------------------------
8606086028 ▇▇-▇▇▇▇▇▇▇ Reckson Strategic Venture Partners LLC
Operating Deficit Reserve
--------------------------------------------------------------------------------
8606086001 ▇▇-▇▇▇▇▇▇▇ Reckson Strategic Venture Partners LLC Tollway
Construction Reserve
--------------------------------------------------------------------------------
8606085973 ▇▇-▇▇▇▇▇▇▇ Reckson Strategic Venture Partners LLC GMACCM
as Lender
--------------------------------------------------------------------------------
EXHIBIT A
TO
GUARANTEE AND COLLATERAL AGREEMENT
FORM
OF
PLEDGE AMENDMENT
----------------
This Pledge Amendment, dated ____________, is delivered
pursuant to Section 5.1 of the Guarantee and Collateral Agreement referred to
below. The undersigned hereby agrees that the Schedules attached hereto may be
attached to the Guarantee and Collateral Agreement, dated ____ ___, 2003 (as
amended or otherwise modified from time to time, the "Guarantee and Collateral
Agreement"), by RSVP Holdings, LLC, Reckson Strategic Venture Partners, LLC,
Reckson Asset Partners, LLC, Reckson Operating Partnership, L.P., RSI Fund
Management, LLC, New World Realty, LLC and New World Realty Management, LLC and
any other Grantors that become parties from time to time in favor of GMAC
Commercial Mortgage Corporation, as Lender, and that the property and assets
listed on the Schedules attached to this Pledge Amendment shall be and become
part of the relevant schedule to the Guarantee and Collateral Agreement and
become part of the Collateral referred to in the Guarantee and Collateral
Agreement and shall secure all of the Obligations referred to in the Guarantee
and Collateral Agreement.
[GRANTOR]
By:
----------------------------------
Name:
Title: