OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT
[NMLP PLEDGE: NON-GMAC NMLP PARTNERSHIPS]
OWNERSHIP INTEREST PLEDGE AND SECURITY AGREEMENT (this "PLEDGE
AGREEMENT"), dated as of November 24, 2003, by and among THE NEWKIRK MASTER
LIMITED PARTNERSHIP, a Delaware limited partnership ("NMLP"), NEWKIRK GP HOLDING
LLC, a Delaware limited liability company (the "HOLDING COMPANY"), the DELAWARE
LIMITED LIABILITY COMPANIES described in Schedule 1 attached hereto
(collectively, the "GENERAL PARTNER PLEDGORS"), each being a general partner of
an NMLP Partnership (as defined below) as specified on Schedule 2 attached
hereto, and FLEET NATIONAL BANK, a national banking association having an
address at 100 Federal Street, Boston, Massachusetts 02110, as agent (Fleet
National Bank, in such capacity as agent, hereinafter referred to as "AGENT")
for a syndicate of Lenders (singly and collectively, the "LENDERS") as
specifically provided in the Loan Agreement (as defined below).
W I T N E S S E T H
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WHEREAS, pursuant to that certain Master Loan Agreement dated as of
November 24, 2003 (as amended, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT") entered into by and among NMLP, T-Two Partners,
L.P., a Delaware limited partnership ("T-TWO"), the Agent and the Lenders, the
Agent and the Lenders have agreed to make a loan to NMLP in the aggregate
principal amount of $216,000,000.00 (the "NMLP LOAN") and a loan to T-Two in the
aggregate principal amount of $309,000,000.00 (the "T-TWO LOAN") (the NMLP Loan
and the T- Two Loan sometimes are referred to herein, collectively, as the
"LOANS"), upon the terms and subject to the conditions set forth therein.
WHEREAS, NMLP has substantial financial dealings with T-Two and is
affiliated with T- Two (either by ownership, contractual relationship,
employment or other meaningful business relationship).
WHEREAS, pursuant to the terms of the Call Option Agreement, NMLP has
executed and delivered a Guaranty of even date herewith, guaranteeing the
payment and performance of all T-Two Obligations arising under or pursuant to
the Loan Agreement (the "NMLP GUARANTY").
WHEREAS, the Holding Company and the General Partner Pledgors have
substantial financial dealings with NMLP and are affiliated with NMLP (by
ownership, contractual relationship, employment and/or other meaningful business
relationship), and the extension of credit and the providing of financial
accommodations to NMLP will enhance and benefit the business activities and
interests of the Holding Company and the General Partner Pledgors.
WHEREAS, as a condition to extending the Loans, the Agent and the
Lenders have required the Holding Company to execute and deliver a Guaranty of
even date herewith, guaranteeing the payment and performance of all obligations
of NMLP arising under or pursuant to the Loan Agreement (the "HOLDING COMPANY
GUARANTY").
WHEREAS, NMLP owns 100.0% of the limited partnership interests in each
of the Delaware limited partnerships described in Schedule 2 attached hereto
(the "NMLP PARTNERSHIPS") and
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100.0% of such series of membership interests in the Holding Company as are
specified in Schedule 3 attached hereto.
WHEREAS, the Holding Company owns 100.0% of the membership interests in
each of the General Partner Pledgors.
WHEREAS, each General Partner Pledgor owns 100.0% of the general
partnership interests in such of the NMLP Partnerships as set forth on Schedule
2 attached hereto.
WHEREAS, as a further condition to extending the Loans, the Agent and
the Lenders have required NMLP, the Holding Company and each of the General
Partner Pledgors to execute and deliver this Pledge Agreement and certain other
NMLP Security Documents to secure NMLP's obligations under the NMLP Guaranty and
the Loan Agreement, the General Partner Pledgors' obligations under the Loan
Agreement, and the Holding Company's obligations under the Holding Company
Guaranty.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make the Loans under the Loan Agreement, NMLP, the Holding Company
and each of the General Partner Pledgors hereby agree with Agent and the Lenders
as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Loan Agreement and used herein are so used as so defined, and the
following terms shall have the following meanings:
"Agent": as defined in the first paragraph of this Pledge
Agreement.
"Cash Management Agreement": shall mean that certain Cash
Management Agreement, dated as of November 24, 2003, among NMLP, the
Holding Company, MLP Manager Corp. (the manager of each of the General
Partner Pledgors), the NMLP Partnerships, various other subsidiaries of
NMLP, the Agent and the Lenders, as amended, supplemented or otherwise
modified from time to time.
"Consents": shall mean those certain Consents from the NMLP
Partnerships, the Holding Company and the General Partner Pledgors
referenced in Sections 4(a) and 4(b) of this Pledge Agreement.
"General Partner Pledgors": as defined in the first paragraph of
this Pledge Agreement.
"General Partner Pledgor Collateral": means the General Partner
Pledgor Pledged Interests and all General Partner Pledgor Proceeds
thereof.
"General Partner Pledgor Pledged Interests": means all right,
title and interest of each of the General Partner Pledgors, whether now
owned or hereafter acquired, as the sole general partner of such of the
NMLP Partnerships as listed on Schedule 2 hereto, together with all
interests, certificates, options or rights of any nature whatsoever
which may be issued or granted to the General Partner Pledgors by the
NMLP Partnerships in respect thereof.
"General Partner Pledgor Obligations": means all indebtedness,
obligations and liabilities of NMLP and/or the General Partner Pledgors
to the Agent and/or any of the Lenders, whether now existing or
hereafter arising, direct or indirect, absolute or contingent, under
any one or more of: (i) this Pledge Agreement; (ii) the Loan Agreement,
the NMLP Note or any other NMLP Loan Document; and (iii) each of the
same as hereafter modified,
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amended, extended or replaced, including, without limitation, the NMLP
Obligations (as defined in the Loan Agreement).
"General Partner Pledgor Proceeds": means (i) each General
Partner Pledgor's right, title and interest in and to all
Distributions, monies, fees, payments, compensations and proceeds now
or hereafter payable in respect of the General Partner Pledgor Pledged
Interests, whether payable as profits, Distributions, asset
Distributions, repayment of loans or capital or otherwise and including
all "proceeds" as such term is defined in Section 9-102 of the UCC;
(ii) all books, records, electronically stored data and information
relating to the General Partner Pledgor Pledged Interests and all
rights of access to such books, records and information; (iii) all
contract rights, general intangibles, claims, powers, privileges,
benefits and remedies of the General Partner Pledgors relating to the
foregoing; (iv) all additions to the General Partner Pledgor Pledged
Interests, all substitutions therefor and all replacements thereof; and
(v) all cash or non-cash proceeds of any of the foregoing.
"Guaranteed Obligations": as defined in the Holding Company
Guaranty.
"Holding Company": as defined in the first paragraph of this
Pledge Agreement.
"Holding Company Collateral": means the Holding Company
Pledged Interests and all Holding Company Proceeds thereof.
"Holding Company Guaranty": as defined in the recitals of this
Pledge Agreement.
"Holding Company Obligations": means all indebtedness,
obligations and liabilities of the Holding Company to the Agent and/or
any of the Lenders, whether now existing or hereafter arising, direct
or indirect, absolute or contingent, under any one or more of: (i) this
Pledge Agreement; (ii) the Guaranty; and (iii) each of the same as
hereafter modified, amended, extended or replaced, including, without
limitation, the Guaranteed Obligations.
"Holding Company Pledged Interests": means all right, title
and interest of the Holding Company, whether now owned or hereafter
acquired, as the sole member of each of the General Partner Pledgors,
together with all interests, certificates, options or rights of any
nature whatsoever which may be issued or granted to the Holding Company
by the General Partner Pledgors in respect thereof.
"Holding Company Proceeds": means (i) the Holding Company's
right, title and interest in and to all Distributions, monies, fees,
payments, compensations and proceeds now or hereafter payable in
respect of the Holding Company Pledged Interests, whether payable as
profits, Distributions, asset Distributions, repayment of loans or
capital or otherwise and including all "proceeds" as such term is
defined in Section 9-102 of the UCC; (ii) all books, records,
electronically stored data and information relating to the Holding
Company Pledged Interests and all rights of access to such books,
records and information; (iii) all contract rights, general
intangibles, claims, powers, privileges, benefits and remedies of the
Holding Company relating to the foregoing; (iv) all additions to the
Holding Company Pledged Interests, all substitutions therefor and all
replacements thereof; and (v) all cash or non-cash proceeds of any of
the foregoing.
"Lenders": as defined in the first paragraph of this Pledge
Agreement.
"Loan Agreement": as defined in the recitals of this Pledge
Agreement.
"Loans": as defined in the re citals of this Pledge Agreement.
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"NMLP": as defined in the first paragraph of this Pledge
Agreement.
"NMLP Collateral": means the NMLP Pledged Interests and all
NMLP Proceeds thereof.
"NMLP Guaranty": as defined in the recitals of this Pledge
Agreement.
"NMLP Loan": as defined in the recitals of this Pledge
Agreement.
"NMLP Obligations": means all indebtedness, obligations and
liabilities of NMLP to the Agent and/or any of the Lenders, whether now
existing or hereafter arising, direct or indirect, absolute or
contingent, under any one or more of: (i) this Pledge Agreement; (ii)
the Loan Agreement, NMLP Note or any other NMLP Loan Document; and
(iii) each of the same as hereafter modified, amended, extended or
replaced, including, without limitation, the NMLP Obligations (as
defined in the Loan Agreement).
"NMLP Partnerships": as defined in the recitals of this Pledge
Agreement.
"NMLP Pledged Interests": means all right, title and interest
of NMLP, whether now owned or hereafter acquired, as (i) the sole
limited partner of each of the NMLP Partnerships and (ii) the sole
member and holder of 100.0% of each series of membership interests in
the Holding Company listed on Schedule 3 attached hereto, together with
all interests, certificates, options or rights of any nature whatsoever
which may be issued or granted to NMLP by the NMLP Partnerships or the
Holding Company in respect thereof.
"NMLP Proceeds": means (i) NMLP's right, title and interest in
and to all Distributions, monies, fees, payments, compensations and
proceeds now or hereafter payable in respect of the NMLP Pledged
Interests, whether payable as profits, Distributions, asset
Distributions, repayment of loans or capital or otherwise and including
all "proceeds" as such term is defined in Section 9-102 of the UCC;
(ii) all books, records, electronically stored data and information
relating to the NMLP Pledged Interests and all rights of access to such
books, records and information; (iii) all contract rights, general
intangibles, claims, powers, privileges, benefits and remedies of NMLP
relating to the foregoing; (iv) all additions to the NMLP Pledged
Interests, all substitutions therefor and all replacements thereof; and
(v) all cash or non-cash proceeds of any of the foregoing.
"Pledge Agreement": means this Ownership Interest Pledge and
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"T-Two": as defined in the recitals of this Pledge Agreement.
"T-Two Loan": as defined in the recitals of this Pledge
Agreement.
"UCC": means the Uniform Commercial Code from time to time in
effect in The Commonwealth of Massachusetts; provided, that if by
mandatory provisions of law, the perfection or the effect of perfection
or non-perfection of the security interest granted hereunder in the
NMLP Collateral, Holding Company Collateral or the General Partner
Pledgor Collateral is governed by the Uniform Commercial Code of a
jurisdiction other than Massachusetts, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of
provisions hereof relating to such perfection or effect of perfection
or non-perfection.
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2. Pledge; Grant of Security Interest.
(1) By NMLP. As security for the full and punctual payment and
performance of the NMLP Obligations when due and payable (whether upon
stated maturity, by acceleration or otherwise), NMLP hereby transfers,
assigns, grants, bargains, sells, conveys, hypothecates, pledges, sets
over, endorses over and delivers to Agent all the NMLP Pledged
Interests, and NMLP hereby grants, pledges, hypothecates, transfers and
assigns to Agent a continuing lien on and security interest in all of
the NMLP Collateral.
(2) By Holding Company. As security for the full and punctual
payment and performance of the Holding Company Obligations when due and
payable (whether upon stated maturity, by acceleration or otherwise),
the Holding Company hereby transfers, assigns, grants, bargains, sells,
conveys, hypothecates, pledges, sets over, endorses over and delivers
to Agent all the Holding Company Pledged Interests, and the Holding
Company hereby grants, pledges, hypothecates, transfers and assigns to
Agent a continuing lien on and security interest in all of the Holding
Company Collateral.
(3) By General Partner Pledgors. As security for the full and
punctual payment and performance of the General Partner Pledgor
Obligations when due and payable (whether upon stated maturity, by
acceleration or otherwise), the General Partner Pledgors hereby
transfer, assign, grant, bargain, sell, convey, hypothecate, pledge,
set over, endorse over and deliver to Agent all the General Partner
Pledgor Pledged Interests, and the General Partner Pledgors hereby
grant, pledge, hypothecate, transfer and assign to Agent a continuing
lien on and security interest in all of the General Partner Pledgor
Collateral.
3. Delivery of Certificates, Instruments, Etc. NMLP, the Holding
Company and each General Partner Pledgor shall deliver to Agent:
(1) all original certificates, instruments and other
documents, if any, evidencing or representing the NMLP Pledged
Interests, the Holding Company Pledged Interests and the General
Partner Pledgor Pledged Interests, concurrently with the execution and
delivery of this Pledge Agreement; and
(2) the original certificates, instruments or other documents,
if any, evidencing or representing all other NMLP Collateral, Holding
Company Collateral and General Partner Pledgor Collateral (except for
collateral which this Pledge Agreement specifically permits the
Borrower, the Holding Company or the General Partner Pledgors to
retain) within five (5) days after the NMLP's, the Holding Company's or
the General Partner Pledgor's receipt thereof.
4. Powers and Transfer Instruments.
(1) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the NMLP Pledged
Interests, NMLP shall deliver a duly executed Consent from each NMLP
Partnership and from each General Partner Pledgor.
(2) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the Holding
Company Pledged Interests, the Holding Company shall deliver a duly
executed Consent from each General Partner Pledgor.
(3) Concurrently with the delivery to the Agent of this Pledge
Agreement and each certificate, if any, representing the General
Partner Pledgor Pledged Interests, the
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General Partner Pledgors shall deliver a duly executed Consent from
each NMLP Partnership.
5. Representations and Warranties. NMLP, the Holding Company and each
General Partner Pledgor represent and warrant that:
(1) Except for any consents as may be required in connection
with any disposition of any portion of the NMLP Collateral, the Holding
Company Collateral or the General Partner Pledgor Collateral by laws
affecting the offering and sale of securities generally or as otherwise
contemplated by the Loan Agreement, no consent of any other person or
entity (including, without limitation, any owner or creditor of NMLP,
the Holding Company or the General Partner Pledgors), and no license,
permit, approval or authorization of, exemption by, notice or report
to, or registration, filing (other than the filing of financing
statements under the UCC in order to perfect a security interest in
that portion of the NMLP Collateral, the Holding Company Collateral and
the General Partner Pledgor Collateral in which a security interest is
perfected by filing) or declaration with any governmental
instrumentality is required in connection with (i) the execution,
delivery, performance, validity or enforceability of this Pledge
Agreement, (ii) the perfection or maintenance of the security interest
created hereby (including the first priority nature of such security
interest) or (iii) the exercise by the Agent of any rights provided for
in this Pledge Agreement;
(2) The NMLP Pledged Interests in the NMLP Partnerships
constitute all of the limited partnership interests owned by NMLP in
the NMLP Partnerships and constitute 100.0% of the limited partnership
interests in the NMLP Partnerships;
(3) The NMLP Pledged Interests in the Holding Company
constitute 100.0% of each series of membership interest in the Holding
Company listed on Schedule 3;
(4) The Holding Company Pledged Interests in the General
Partner Pledgors constitute all of the membership interests owned by
the Holding Company in the General Partner Pledgors and constitute
100.0% of the membership interests in the General Partner Pledgors;
(5) The General Partner Pledgor Pledged Interests in the NMLP
Partnerships constitute all of the general partnership interests owned
by the General Partner Pledgors in the NMLP Partnerships and constitute
100.0% of the general partnership interests in the NMLP Partnerships;
(6) All the NMLP Pledged Interests, the Holding Company
Pledged Interests and the General Partner Pledgor Pledged Interests
have been duly and validly issued and are fully paid. No certificate or
other instrument has been issued at any time to evidence the NMLP
Pledged Interests, the Holding Company Pledged Interests or the General
Partner Pledgor Pledged Interests. None of the limited partnership
interests or the membership interests comprising the NMLP Collateral,
none of the membership interests comprising the Holding Company
Collateral, and none of the general partnership interests comprising
the General Partner Pledgor Collateral, are dealt in or traded on
securities exchanges or in securities markets, and none by its terms
expressly provides that it is a security governed by Article 8 of the
UCC or that it is an investment company security, and none is held in a
securities account (as defined in Section 8-501 of the UCC);
(7) NMLP is the sole holder of record and sole beneficial
owner of, and has good and valid title to, the NMLP Pledged Interests,
free of any and all liens or options in favor of, or claims of, any
other Person, except the lien created by this Pledge Agreement;
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(8) The Holding Company is the sole holder of record and sole
beneficial owner of, and has good and valid title to, the Holding
Company Pledged Interests, free of any and all liens or options in
favor of, or claims of, any other Person, except the lien created by
this Pledge Agreement;
(9) Each General Partner Pledgor is the sole holder of record
and sole beneficial owner of, and has good and valid title to, the
General Partner Pledgor Pledged Interests in the applicable NMLP
Partnership, free of any and all liens or options in favor of, or
claims of, any other Person, except the lien created by this Pledge
Agreement;
(10) Upon the filing of the Form UCC-1 Statements referred to
in Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such NMLP Pledged
Interests and related NMLP Collateral with respect to that portion of
the NMLP Collateral in which a security interest is perfected by the
filing of a financing statement, enforceable as such against all
creditors of NMLP and any Persons purporting to purchase any NMLP
Pledged Interests and related NMLP Collateral from NMLP;
(11) Upon the filing of the Form UCC-1 Statements referred to
in Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such Holding
Company Pledged Interests and related Holding Company Collateral with
respect to that portion of the Holding Company Collateral in which a
security interest is perfected by the filing of a financing statement,
enforceable as such against all creditors of the Holding Company and
any Persons purporting to purchase any Holding Company Pledged
Interests and related Holding Company Collateral from the Holding
Company;
(l2) Upon the filing of the Form UCC-1 Statements referred to
in Section 13, the lien granted pursuant to this Pledge Agreement will
constitute a valid, perfected first priority lien on such General
Partner Pledgor Pledged Interests and related General Partner Pledgor
Collateral with respect to that portion of the General Partner Pledgor
Collateral in which a security interest is perfected by the filing of a
financing statement, enforceable as such against all creditors of the
General Partner Pledgors and any Persons purporting to purchase any
General Partner Pledgor Pledged Interests and related General Partner
Pledgor Collateral from any General Partner Pledgor;
(13) The Holding Company is duly organized, validly existing
and in good standing under the laws of the state of its formation and
has all requisite power and authority under the laws of such state and
under its organizational and charter documents to enter into and
perform its obligations under this Pledge Agreement;
(14) Each of the General Partner Pledgors is duly organized,
validly existing and in good standing under the laws of the state of
its formation and has all requisite power and authority under the laws
of such state and under its organizational and charter documents to
enter into and perform its obligations under this Pledge Agreement;
(15) The Holding Company has taken all necessary legal and
other action to authorize the execution, delivery and performance of
this Pledge Agreement, and this Pledge Agreement constitutes the valid
and binding obligation and agreement of the Holding Company,
enforceable in accordance with its terms, except as such may be limited
by the application of bankruptcy, moratorium, reorganization and other
laws affecting the rights of creditors generally or by general
equitable principles;
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(16) Each of the General Partner Pledgors has taken all
necessary legal and other action to authorize the execution, delivery
and performance of this Pledge Agreement, and this Pledge Agreement
constitutes the valid and binding obligation and agreement of each of
the General Partner Pledgors, enforceable in accordance with its terms,
except as such may be limited by the application of bankruptcy,
moratorium, reorganization and other laws affecting the rights of
creditors generally or by general equitable principles;
(17) The Holding Company has not received any notice of
default under any agreement or instrument to which it is a party or by
which its assets may be bound which default would have a Material
Adverse Effect, and the Holding Company is not in default under any
order, judgment, award or decree of any court, arbitrator or other
governmental authority binding upon or affecting it or by which its may
be bound or affected which default would have a Material Adverse
Effect;
(18) None of the General Partner Pledgors has received any
notice of default under any agreement or instrument to which any of
them is a party or by which any of their assets may be bound which
default would have a Material Adverse Effect, and none of the General
Partner Pledgors is in default under any order, judgment, award or
decree of any court, arbitrator or other governmental authority binding
upon or affecting any of them or by which any of their assets may be
bound or affected which default would have a Material Adverse Effect;
(19) Neither the execution and delivery of this Pledge
Agreement nor the compliance by the Holding Company with the terms and
provisions hereof are events which of themselves, or with the giving of
notice or the passage of time, or both, would constitute, on the part
of the Holding Company, a violation of or conflict with, or result in
any breach of, or default under, the terms, conditions or provisions
of, (i) the organizational and charter documents of the Holding
Company, or (ii) any other agreement or instrument to which the Holding
Company is a party or by which the Holding Company, or any of its
assets, are bound;
(20) Neither the execution and delivery of this Pledge
Agreement nor the compliance by any General Partner Pledgor with the
terms and provisions hereof are events which of themselves, or with the
giving of notice or the passage of time, or both, would constitute, on
the part of any General Partner Pledgor, a violation of or conflict
with, or result in any breach of, or default under, the terms,
conditions or provisions of, (i) the organizational and charter
documents of any General Partner Pledgor, or (ii) any other agreement
or instrument to which any General Partner Pledgor is a party or by
which any General Partner Pledgor, or any of its assets, are bound;
(21) Neither the execution and delivery of this Pledge
Agreement nor the compliance by the Holding Company with the terms and
provisions hereof are events which of themselves, or with the giving of
notice or the passage of time, or both, would result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever
on any of the assets of the Holding Company in all cases other than as
contemplated by this Pledge Agreement or the Loan Agreement, and no
such event will result in the acceleration of the due date of any
obligation of the Holding Company;
(22) Neither the execution and delivery of this Pledge
Agreement nor the compliance by any General Partner Pledgor with the
terms and provisions hereof are events which of themselves, or with the
giving of notice or the passage of time, or both, would result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever on any of the assets of any General Partner Pledgor in all
cases other than as
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contemplated by this Pledge Agreement or the Loan Agreement, and no
such event will result in the acceleration of the due date of any
obligation of any General Partner Pledgor;
(23) There are no judgments presently outstanding and
unsatisfied against the Holding Company or any of its assets which
would cause an Event of Default under the Loan Agreement, and, except
for that certain action captioned McCall, et. al. v. Newkirk GP LLC et.
al. brought in the Superior Court of Connecticut, neither the Holding
Company nor any of its assets are a party to, or the subject of, any
actions or suits or proceedings in equity or by any governmental
authorities which, if adversely determined, would have a Material
Adverse Effect, and no such litigation or proceeding has been
threatened in writing against the Holding Company or against any of the
Holding Company's assets, and, to the Holding Company's knowledge, no
investigation in contemplation of such litigation or proceeding has
begun or is pending or has been threatened in writing, any of which it
is probable (within the meaning of Statement of Financial Accounting
Standards No. 5) that there will be an adverse determination and which,
if adversely determined, would have a Material Adverse Effect;
(24) There are no judgments presently outstanding and
unsatisfied against any General Partner Pledgor or any of its assets
which would cause an Event of Default under the Loan Agreement, and,
except for that certain action captioned McCall, et. al. v. Newkirk GP
LLC et. al. brought in the Superior Court of Connecticut, neither the
General Partner Pledgors nor any of their assets are a party to, or the
subject of, any actions or suits or proceedings in equity or by any
governmental authorities which, if adversely determined, would have a
Material Adverse Effect, and no such litigation or proceeding has been
threatened in writing against any General Partner Pledgor or against
any of the General Partner Pledgors' assets, and, to the General
Partner Pledgors' knowledge, no investigation in contemplation of such
litigation or proceeding has begun or is pending or has been threatened
in writing, any of which it is probable (within the meaning of
Statement of Financial Accounting Standards No. 5) that there will be
an adverse determination and which, if adversely determined, would have
a Material Adverse Effect;
(25) The address of the Holding Company's chief executive
office and principal place of business and the location of the Holding
Company's books and records relating to the Holding Company Pledged
Interests is set forth below the Holding Company's signature hereto;
(26) The address of each General Partner Pledgor's chief
executive office and principal place of business and the location of
each General Partner Pledgor's books and records relating to the
General Partner Pledgor Pledged Interests is set forth below each
General Partner Pledgor's signature hereto; and
(27) There are no restrictions on the transfer of the NMLP
Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral to the Agent hereunder, or with respect to any
subsequent transfer thereof or realization thereupon by the Agent
and/or the Lenders (or, if there are any such restrictions, such
transfer restrictions have been duly waived by all required parties),
and, as set forth in the Consents, NMLP, the Holding Company and each
of the General Partner Pledgors have obtained all consents needed in
connection with any such transfer or subsequent transfer, subject to
matters resulting from the operation of law.
6. Covenants. NMLP, the Holding Company and each General Partner
Pledgor covenant and agree with Agent and the Lenders that from and after the
date of this Pledge Agreement until this Pledge Agreement shall be terminated:
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(1) If NMLP shall, as a result of its ownership of the NMLP
Pledged Interests, become entitled to receive or shall receive (i) any
limited liability company certificate (including, without limitation,
any certificate representing a 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, (ii) any stock, (iii) any limited partnership interests
(including, without limitation, any certificate representing a 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, or (iv) any property other than
cash, whether in addition to, in substitution of, as a conversion of,
or in exchange for any of the NMLP Pledged Interests, or otherwise in
respect thereof, NMLP shall accept the same as Agent's agent, hold the
same in trust for Agent and deliver the same forthwith to Agent in the
exact form received, duly endorsed by NMLP to Agent, if required,
together with an undated assignment or power covering such certificate,
duly executed in blank and with, if Agent so requests, signature
guaranteed, to be held by Agent hereunder as additional security for
the NMLP Obligations.
(2) If the Holding Company shall, as a result of its ownership
of the Holding Company Pledged Interests, become entitled to receive or
shall receive (i) any limited liability company certificate (including,
without limitation, any certificate representing a 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, (ii) any stock, (iii) any limited
partnership interests (including, without limitation, any certificate
representing a 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, or
(iv) any property other than cash, whether in addition to, in
substitution of, as a conversion of, or in exchange for any of the
Holding Company Pledged Interests, or otherwise in respect thereof, the
Holding Company shall accept the same as Agent's agent, hold the same
in trust for Agent and deliver the same forthwith to Agent in the exact
form received, duly endorsed by the Holding Company to Agent, if
required, together with an undated assignment or power covering such
certificate, duly executed in blank and with, if Agent so requests,
signature guaranteed, to be held by Agent hereunder as additional
security for the Holding Company Obligations.
(3) If any General Partner Pledgor shall, as a result of its
ownership of the General Partner Pledgor Pledged Interests, become
entitled to receive or shall receive (i) any limited liability company
certificate (including, without limitation, any certificate
representing a 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, (ii)
any stock, (iii) any limited partnership interests (including, without
limitation, any certificate representing a 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, or (iv) any property other than
cash, whether in addition to, in substitution of, as a conversion of,
or in exchange for any of the General Partner Pledgor Pledged
Interests, or otherwise in respect thereof, such General Partner
Pledgor shall accept the same as Agent's agent, hold the same in trust
for Agent and deliver the same forthwith to Agent in the exact form
received, duly endorsed by the General Partner Pledgor to Agent, if
required, together with an undated assignment or power covering such
certificate, duly executed in blank and with, if Agent so requests,
signature guaranteed, to be held by Agent hereunder as additional
security for the General Partner Pledgor Obligations.
(4) Without the prior written consent of Agent, NMLP will not,
directly or indirectly (i) vote to enable, or take any other action to
permit, the issuer(s) of the NMLP Pledged Interests to issue any
interests or shares, as applicable, or to issue any other
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securities convertible into or granting the right to purchase or
exchange for any interests of the issuer(s) of the NMLP Pledged
Interests, or (ii) if prohibited by the Loan Agreement, sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with
respect to, the NMLP Collateral, or (iii) create, incur or permit to
exist any lien or option in favor of, or any claim of any person or
entity with respect to, any of the NMLP Collateral, or any interest
therein, except for the lien provided for by this Pledge Agreement and
liens permitted under the Loan Agreement. NMLP will defend the right,
title and interest of Agent in and to the NMLP Collateral against the
claims and demands of all Persons whomsoever.
(5) Without the prior written consent of Agent, the Holding
Company will not, directly or indirectly (i) vote to enable, or take
any other action to permit, the issuer(s) of the Holding Company
Pledged Interests to issue any interests or shares, as applicable, or
to issue any other securities convertible into or granting the right to
purchase or exchange for any interests of the issuer(s) of the Holding
Company Pledged Interests, or (ii) if prohibited by the Loan Agreement,
sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Holding Company Collateral, or (iii)
create, incur or permit to exist any lien or option in favor of, or any
claim of any person or entity with respect to, any of the Holding
Company Collateral, or any interest therein, except for the lien
provided for by this Pledge Agreement and liens permitted under the
Loan Agreement. The Holding Company will defend the right, title and
interest of Agent in and to the Holding Company Collateral against the
claims and demands of all Persons whomsoever.
(6) Without the prior written consent of Agent, the General
Partner Pledgors will not, directly or indirectly (i) vote to enable,
or take any other action to permit, the issuer(s) of the General
Partner Pledgor Pledged Interests to issue any interests or shares, as
applicable, or to issue any other securities convertible into or
granting the right to purchase or exchange for any interests of the
issuer(s) of the General Partner Pledgor Pledged Interests, or (ii) if
prohibited by the Loan Agreement, sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the General
Partner Pledgor Collateral, or (iii) create, incur or permit to exist
any lien or option in favor of, or any claim of any person or entity
with respect to, any of the General Partner Pledgor Collateral, or any
interest therein, except for the lien provided for by this Pledge
Agreement and liens permitted under the Loan Agreement. The General
Partner Pledgors will defend the right, title and interest of Agent in
and to the General Partner Pledgor Collateral against the claims and
demands of all Persons whomsoever.
(7) At any time and from time to time, upon the written
request of Agent, and at the sole expense of NMLP, NMLP will promptly
and duly execute and deliver such further instruments and documents and
take such further actions as Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of this Pledge
Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the NMLP Collateral shall be
or become evidenced by any promissory note, other instrument or chattel
paper, such note, instrument or chattel paper shall be promptly
delivered to Agent, duly endorsed in a manner satisfactory to Agent, to
be held as NMLP Collateral pursuant to this Pledge Agreement.
(8) At any time and from time to time, upon the written
request of Agent, and at the sole expense of the Holding Company, the
Holding Company will promptly and duly execute and deliver such further
instruments and documents and take such further actions as Agent may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Pledge Agreement and of the rights and powers herein
granted. If any amount payable under or in connection with any of the
Holding Company Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note,
instrument or
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chattel paper shall be promptly delivered to Agent, duly endorsed in
a manner satisfactory to Agent, to be held as Holding Company
Collateral pursuant to this Pledge Agreement.
(9) At any time and from time to time, upon the written
request of Agent, and at the sole expense of the General Partner
Pledgors, the General Partner Pledgors will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Pledge Agreement and
of the rights and powers herein granted. If any amount payable under or
in connection with any of the General Partner Pledgor Collateral shall
be or become evidenced by any promissory note, other instrument or
chattel paper, such note, instrument or chattel paper shall be promptly
delivered to Agent, duly endorsed in a manner satisfactory to Agent, to
be held as General Partner Pledgor Collateral pursuant to this Pledge
Agreement.
(10) NMLP, the Holding Company and each General Partner
Pledgor agree to pay, and to indemnify and save Agent harmless from,
any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes (other than
income taxes on the income of Agent or any of the Lenders) which may be
payable or determined to be payable with respect to any of the NMLP
Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral (as the case may be) or in connection with any of
the transactions contemplated by this Pledge Agreement.
(11) The Holding Company will not merge or consolidate with
any person if prohibited by the Loan Agreement.
(12) None of the General Partner Pledgors will merge or
consolidate with any person if prohibited by the Loan Agreement.
(13) NMLP, the Holding Company and the General Partner
Pledgors shall, upon request from the Agent, from time to time, cause
the issuer of any securities comprising any of the NMLP Collateral, the
Holding Company Collateral or the General Partner Pledgor Collateral
which may be, but have not been, certificated, to issue certificates
with respect thereto in the name of NMLP, the Holding Company or the
General Partner Pledgors (as the case may be) or, if so requested by
the Agent, in the name of the Agent as secured party.
(14) Neither NMLP nor the Holding Company nor any of the
General Partner Pledgors shall exercise any right with respect to the
NMLP Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral which would dilute or adversely affect Agent's
rights in the NMLP Collateral, the Holding Company Collateral and the
General Partner Pledgor Collateral.
(15) Except as permitted in the Loan Agreement, NMLP shall not
enter into or consent to any amendment or modification of, or with
respect to, the limited partnership agreements of the NMLP Partnerships
or the operating agreement of the Holding Company without Agent's prior
written consent in each instance, which consent shall not be
unreasonably withheld.
(16) Except as permitted in the Loan Agreement, the Holding
Company shall not enter into or consent to any amendment or
modification of, or with respect to, the operating agreements of the
General Partner Pledgors without Agent's prior written consent in each
instance, which consent shall not be unreasonably withheld.
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(17) Except as permitted in the Loan Agreement, the General
Partner Pledgors shall not enter into or consent to any amendment or
modification of, or with respect to, the limited partnership agreements
of the NMLP Partnerships without Agent's prior written consent in each
instance, which consent shall not be unreasonably withheld.
7. Cash Dividends; Distributions; Voting Rights.
(1) Unless an Event of Default shall have occurred and be
continuing, NMLP shall be permitted to exercise all voting rights with
respect to the NMLP Pledged Interests; provided, however, that NMLP
shall not, without the prior written consent of Agent in each instance,
which consent shall not be unreasonably withheld, vote the NMLP
Collateral in favor of, or consent to, any resolution or action which
does or might:
(1) impose any restrictions upon the sale,
transfer or disposition of the NMLP
Collateral other than restrictions, if
any, the application of which is waived
to the full satisfaction of the Agent as
to the NMLP Collateral; or
(2) result in the issuance of any additional
interest in the NMLP Partnerships or the
Holding Company, or of any class or
series of security, which issuance might
adversely affect the value of the NMLP
Collateral; or
(3) vest additional powers, privileges,
preferences or priorities to any other
class or series of interest in the NMLP
Partnerships or the Holding Company to
the detriment of the value of, or rights
accruing to, the NMLP Collateral; or
(4) except as permitted in the Loan
Agreement, permit the NMLP Partnerships
or the Holding Company to sell,
transfer, assign, pledge, mortgage or
otherwise encumber any property owned by
any of them, or to incur any new
indebtedness in respect of such
property, unless Agent has given its
prior written consent.
(2) Unless an Event of Default shall have occurred and be
continuing, the Holding Company shall be permitted to exercise all
voting rights with respect to the Holding Company Pledged Interests;
provided, however, that the Holding Company shall not, without the
prior written consent of Agent in each instance, which consent shall
not be unreasonably withheld, vote the Holding Company Collateral in
favor of, or consent to, any resolution or action which does or might:
(1) impose any restrictions upon the sale,
transfer or disposition of the Holding
Company Collateral other than
restrictions, if any, the application of
which is waived to the full satisfaction
of the Agent as to the Holding Company
Collateral; or
(2) result in the issuance of any additional
interest in the General Partner
Pledgors, or of any class of security,
which issuance might adversely affect
the value of the Holding Company
Collateral; or
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(3) vest additional powers, privileges,
preferences or priorities to any other
class of interest in the General Partner
Pledgors to the detriment of the value
of, or rights accruing to, the Holding
Company Collateral; or
(4) except as permitted in the Loan
Agreement, permit the General Partner
Pledgors to sell, transfer, assign,
pledge, mortgage or otherwise encumber
any property owned by any of them, or to
incur any new indebtedness in respect of
such property, unless Agent has given
its prior written consent.
(3) Unless an Event of Default shall have occurred and be
continuing, each General Partner Pledgor shall be permitted to exercise
all voting rights with respect to the General Partner Pledgor Pledged
Interests; provided, however, that no General Partner Pledgor shall,
without the prior written consent of Agent in each instance, which
consent shall not be unreasonably withheld, vote the General Partner
Pledgor Collateral in favor of, or consent to, any resolution or action
which does or might:
(1) impose any restrictions upon the sale,
transfer or disposition of the General
Partner Pledgor Collateral other than
restrictions, if any, the application of
which is waived to the full satisfaction
of the Agent as to the General Partner
Pledgor Collateral; or
(2) result in the issuance of any additional
interest in the NMLP Partnerships, or of
any class of security, which issuance
might adversely affect the value of the
General Partner Pledgor Collateral; or
(3) vest additional powers, privileges,
preferences or priorities to any other
class of interest in the NMLP
Partnerships to the detriment of the
value of, or rights accruing to, the
General Partner Pledgor Collateral; or
(4) except as permitted in the Loan
Agreement, permit the NMLP Partnerships
to sell, transfer, assign, pledge,
mortgage or otherwise encumber any
property owned by any of them, or to
incur any new indebtedness in respect of
such property, unless Agent has given
its prior written consent.
(4) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation,
Sections 7.1.14, 7.1.15 and 7.1.16 thereof), the Consents, the Payment
Direction Letters, and the Cash Management Agreement (including,
without limitation, Section 2.2 thereof), any and all cash dividends or
Distributions or any other payments received by NMLP in respect of the
NMLP Collateral shall be directly deposited in a designated Depository
Account in the name of NMLP. NMLP agrees that, to the extent that NMLP
receives directly any cash dividends or Distributions or any other
payments which are required to be deposited in a designated Depository
Account as provided for in the Loan Agreement, the Consents and/or the
Cash Management Agreement, then (i) such amounts shall be deemed to be
NMLP Collateral and shall be held in trust for the benefit of Agent,
(ii) such amounts shall not be commingled with any other funds or
property of NMLP, and (iii)
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NMLP shall deposit such amounts in the applicable Depository Account
within three Business Days of receipt.
(5) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation,
Sections 7.1.14, 7.1.15 and 7.1.16 thereof), the Consents, the Payment
Direction Letters, and the Cash Management Agreement (including,
without limitation, Section 2.2 thereof), any and all cash dividends or
Distributions or any other payments received by the Holding Company in
respect of the Holding Company Collateral shall be directly deposited
in a designated Depository Account in the name of MLP Manager Corp. or
as otherwise directed by Agent in accordance with the terms of the Loan
Agreement. The Holding Company agrees that, to the extent that the
Holding Company receives directly any cash dividends or Distributions
or any other payments which are required to be deposited in a
designated Depository Account as provided for in the Loan Agreement,
the Consents and/or the Cash Management Agreement, then (i) such
amounts shall be deemed to be Holding Company Collateral and shall be
held in trust for the benefit of Agent, (ii) such amounts shall not be
commingled with any other funds or property of the Holding Company, and
(iii) the Holding Company shall deposit such amounts in the applicable
Depository Account within three Business Days of receipt.
(6) Subject to the terms and provisions hereof relating to the
rights and remedies of the Agent after the occurrence and during the
continuance of an Event of Default, in accordance with the terms and
conditions of the Loan Agreement (including, without limitation,
Sections 7.1.14, 7.1.15 and 7.1.16 thereof), the Consents, the Payment
Direction Letters, and the Cash Management Agreement (including,
without limitation, Section 2.2 thereof), any and all cash dividends or
Distributions or any other payments received by any General Partner
Pledgor in respect of the General Partner Pledgor Collateral shall be
directly deposited in a designated Depository Account in the name MLP
Manager Corp. or as otherwise directed by Agent in accordance with the
terms of the Loan Agreement. Each General Partner Pledgor agrees that,
to the extent that any General Partner Pledgor receives directly any
cash dividends or Distributions or any other payments which are
required to be deposited in a designated Depository Account as provided
for in the Loan Agreement, the Consents and/or the Cash Management
Agreement, then (i) such amounts shall be deemed to be General Partner
Pledgor Collateral and shall be held in trust for the benefit of Agent,
(ii) such amounts shall not be commingled with any other funds or
property of such General Partner Pledgor, and (iii) such General
Partner Pledgor shall deposit such amounts in the applicable Depository
Account within three Business Days of receipt.
8. Rights of Agent.
(1) If an Event of Default shall have occurred and be
continuing, Agent shall have the right to receive any and all cash
dividends or Distributions or other payments paid in respect of the
NMLP Collateral, the Holding Company Collateral and the General Partner
Pledgor Collateral and make application thereof to the NMLP
Obligations, the Holding Company Obligations or the General Partner
Pledgor Obligations (as the case may be), in such order as Agent, in
its sole discretion, may elect. In connection therewith, if an Event of
Default shall have occurred and be continuing, the Agent shall have the
right to direct the issuer(s) of the NMLP Pledged Interests, the
Holding Company Pledged Interests and the General Partner Pledgor
Pledged Interests to pay all such cash dividends or Distributions or
other payment directly to the Agent or as otherwise directed by the
Agent.
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(2) If an Event of Default shall have occurred and be
continuing, then all such NMLP Pledged Interests, Holding Company
Pledged Interests and General Partner Pledgor Pledged Interests at
Agent's option shall be registered in the name of Agent or its nominee,
and Agent or its nominee may thereafter exercise (x) all voting and
other rights pertaining to such NMLP Pledged Interests, Holding Company
Pledged Interests and General Partner Pledgor Pledged Interests and (y)
any and all rights of conversion, exchange, subscription and any other
rights, privileges or options pertaining to such NMLP Pledged
Interests, Holding Company Pledged Interests and General Partner
Pledgor Pledged Interests as if Agent were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion
any and all of the NMLP Pledged Interests, the Holding Company Pledged
Interests and the General Partner Pledgor Pledged Interests upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the organizational structure of NMLP, the Holding
Company or any of the General Partner Pledgors, or upon the exercise by
NMLP, the Holding Company, any of the General Partner Pledgors or Agent
of any right, privilege or option pertaining to such NMLP Pledged
Interests, Holding Company Pledged Interests or General Partner Pledgor
Pledged Interests, and in connection therewith, the right to deposit
and deliver any and all of the NMLP Pledged Interests, Holding Company
Pledged Interests or General Partner Pledgor Pledged Interests with any
committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as it may determine), all without
liability except to account for property actually received by it, but
Agent shall have no duty to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay
in so doing.
(3) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against
NMLP or against any other NMLP Obligations or against any other NMLP
Collateral security therefor, guarantee thereof or right of offset with
respect thereto. Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the NMLP Collateral or for
any delay in doing so, nor shall it be under any obligation to sell or
otherwise dispose of any NMLP Collateral upon the request of NMLP or
any other person or entity or to take any other action whatsoever with
regard to the NMLP Collateral or any part thereof.
(4) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
Holding Company or against any other person or entity which may be or
become liable in respect of all or any part of the Holding Company
Obligations or against any other Holding Company Collateral security
therefor, guarantee thereof or right of offset with respect thereto.
Agent shall not be liable for any failure to demand, collect or realize
upon all or any part of the Holding Company Collateral or for any delay
in doing so, nor shall it be under any obligation to sell or otherwise
dispose of any Holding Company Collateral upon the request of the
Holding Company or any other person or entity or to take any other
action whatsoever with regard to the Holding Company Collateral or any
part thereof.
(5) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
General Partner Pledgors or against any other person or entity which
may be or become liable in respect of all or any part of the General
Partner Pledgor Obligations or against any other General Partner
Pledgor Collateral security therefor, guarantee thereof or right of
offset with respect thereto. Agent shall not be liable for any failure
to demand, collect or realize upon all or any part of the General
Partner Pledgor Collateral or for any delay in doing so, nor shall it
be under any obligation to sell or otherwise dispose of any General
Partner Pledgor Collateral upon the request of any General Partner
Pledgor or any other person or entity or to take any other action
whatsoever with regard to the General Partner Pledgor Collateral or any
part thereof.
-16-
(6) Notwithstanding anything to the contrary contained herein,
at all times, the Agent's sole recourse against the General Partner
Pledgors to enforce the General Partner Pledgor Obligations shall be
limited to the rights and remedies against the General Partner Pledgor
Collateral, and in no event shall the Agent or any of the Lenders have
any other recourse against the General Partner Pledgors with respect to
the General Partner Pledgor Obligations.
9. Actions By Agent. NMLP, the Holding Company and each General Partner
Pledgor hereby designates Agent as the attorney-in-fact of NMLP, the Holding
Company and each General Partner Pledgor to: (a) after the occurrence and during
the continuance of an Event of Default, endorse in favor of Agent any of the
NMLP Collateral, the Holding Company Collateral or the General Partner Pledgor
Collateral; (b) after the occurrence and during the continuance of an Event of
Default, cause the transfer of any of the NMLP Collateral, the Holding Company
Collateral or the General Partner Pledgor Collateral in such name as Agent may
from time to time determine; (c) cause the issuance of certificates for book
entry and/or uncertificated securities; (d) renew, extend or roll over any NMLP
Collateral, Holding Company Collateral or General Partner Pledgor Collateral;
(e) make, demand and initiate actions to enforce any of the NMLP Collateral, the
Holding Company Collateral or the General Partner Pledgor Collateral or rights
therein; and (f) take any other action to effectuate the terms and provisions of
this Pledge Agreement. Agent may take such action with respect to the NMLP
Collateral, the Holding Company Collateral and the General Partner Pledgor
Collateral as Agent may reasonably determine to be necessary to protect and
preserve its interest in the NMLP Collateral, the Holding Company Collateral and
the General Partner Pledgor Collateral. Except as otherwise provided herein, all
of the rights, remedies, powers, privileges and discretions included in this
Section 9 may be exercised by Agent whether or not the NMLP Obligations, the
Holding Company Obligations or the General Partner Pledgor Obligations are then
due and whether or not an Event of Default has occurred. The within designation
and grant of power of attorney is coupled with an interest, is irrevocable until
the lien created by this Pledge Agreement is terminated by a written instrument
executed by a duly authorized officer of Agent. The power of attorney shall not
be affected by subsequent disability or incapacity of NMLP, the Holding Company
or any General Partner Pledgor. Agent shall not be liable for any act or
omission to act pursuant to this Section 9, except for any act or omission to
act which is in actual bad faith.
10. Remedies.
(1) If an Event of Default shall have occurred and be
continuing, Agent may exercise, in addition to all other rights and
remedies granted in this Pledge Agreement and in any other instrument
or agreement securing, evidencing or relating to the NMLP Obligations,
the Holding Company Obligations or the General Partner Pledgor
Obligations, all rights and remedies of a secured party under the UCC.
Without limiting the generality of the foregoing, Agent, if an Event of
Default shall have occurred and be continuing, 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 NMLP, the Holding Company, the General Partner
Pledgors or any other person or entity (all and each of which demands,
presentments, protests, advertisements or notices are hereby waived),
may in such circumstances forthwith collect, receive, appropriate and
realize upon the NMLP Collateral, the Holding Company Collateral and
the General Partner Pledgor Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or otherwise
dispose of and deliver the NMLP Collateral, the Holding Company
Collateral and the General Partner Pledgor 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, in the over-the-counter
market, at any exchange, broker's board or office of Agent 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
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credit or for future delivery without assumption of any credit risk.
Agent 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 NMLP Collateral, the Holding
Company Collateral or the General Partner Pledgor Collateral so sold,
free of any right or equity of redemption in NMLP, the Holding
Company or the General Partner Pledgors, which right or equity is
hereby waived or released. Agent shall apply any NMLP Proceeds, Holding
Company Proceeds or General Partner Pledgor Proceeds from time to time
held by it and the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the NMLP Collateral,
the Holding Company Collateral or General Partner Pledgor Collateral or
in any way relating to the NMLP Collateral, the Holding Company
Collateral or the General Partner Pledgor Collateral or the rights of
Agent hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the NMLP
Obligations, the Holding Company Obligations or the General Partner
Pledgor Obligations (as the case may be), in such order as Agent may
elect, and only after such application and after the payment by Agent
of any other amount required by any provision of law, including,
without limitation, Section 9-615(a) of the UCC, need Agent account for
the surplus, if any, to NMLP, the Holding Company and the General
Partner Pledgors. To the extent permitted by applicable law, NMLP, the
Holding Company and each General Partner Pledgor waive all claims,
damages and demands any of them may acquire against Agent arising out
of the exercise by Agent of any of its rights hereunder, except for any
claims, damages and demands any of them may have against Agent arising
from the gross negligence or willful misconduct of Agent. If any notice
of a proposed sale or other disposition of NMLP Collateral, the Holding
Company Collateral or General Partner Pledgor 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. NMLP and
the Holding Company shall remain liable for any deficiency if the
proceeds of any sale or other disposition of NMLP Collateral or the
Holding Company Collateral (as the case may be) are insufficient to pay
the NMLP Obligations or the Holding Company Obligations and the fees
and disbursements of any attorneys employed by Agent to collect such
deficiency.
(2) If any Event of Default occurs and is continuing, any
deposits, balances or other sums credited by or due from Agent, any
affiliate of Agent or FleetBoston Financial Corporation or any of the
Lenders, or from any affiliate of any of the Lenders, to NMLP or the
Holding Company may to the fullest extent not prohibited by applicable
law at any time or from time to time, without regard to the existence,
sufficiency or adequacy of any other collateral, and without notice or
compliance with any other condition precedent now or hereafter imposed
by statute, rule of law or otherwise, all of which are hereby waived to
the fullest extent permitted by law, be set off, appropriated and
applied by Agent against any or all of the NMLP Obligations or the
Holding Company Obligations irrespective of whether demand shall have
been made, in such manner as Agent in its sole and absolute discretion
may determine. Within three (3) Business Days of making any such set
off, appropriation or application, Agent agrees to notify NMLP or the
Holding Company thereof, provided the failure to give such notice shall
not affect the validity of such set off or appropriation or
application. ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY OF THE LENDERS
TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE NMLP LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF
WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF NMLP OR THE
HOLDING COMPANY, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
11. Private Sales.
-18-
(1) NMLP, the Holding Company and each General Partner Pledgor
recognize that Agent may be unable to effect a public sale of any or
all the NMLP Pledged Interests, the Holding Company Pledged Interests
or the General Partner Pledgor Pledged Interests, by reason of
certain prohibitions contained in the Securities Act of 1933,
as amended, and applicable state securities laws or otherwise, and may
be compelled to resort to one or more private sales thereof to a
restricted group of purchasers which will be obliged to agree, among
other things, to acquire such securities for their own account for
investment and not with a view to the Distribution or resale thereof.
NMLP, the Holding Company and each General Partner Pledgor acknowledge
and agree that any such private sale may result in prices and other
terms less favorable to Agent than if such sale were a public sale.
Agent shall be under no obligation to delay a sale of any of the NMLP
Pledged Interests, the Holding Company Pledged Interests or General
Partner Pledgor Pledged Interests for the period of time necessary to
permit NMLP, the Holding Company or the General Partner Pledgors to
register such securities for public sale under the Securities Act of
1933, as amended, or under applicable state securities laws, even if
NMLP, the Holding Company or the General Partner Pledgors would agree
to do so.
(2) NMLP, the Holding Company and each General Partner Pledgor
further agree to use their best efforts to do or cause to be done all
such other acts as may be necessary to make any sale or sales of all or
any portion of the NMLP Pledged Interests, the Holding Company Pledged
Interests or the General Partner Pledgor Pledged Interests pursuant to
this paragraph 11 valid and binding and in compliance with any and all
other applicable requirements of law; provided, however, that neither
NMLP nor the Holding Company nor any General Partner Pledgor shall be
under any obligation to register the NMLP Pledged Interests, the
Holding Company Pledged Interests or the General Partner Pledgor
Pledged Interests for public sale under the Securities Act of 1933, as
amended, or under applicable state securities laws. NMLP, the Holding
Company and each General Partner Pledgor further agree that a breach of
any of the covenants contained in this paragraph 11 will cause
irreparable injury to Agent, that Agent has no adequate remedy at law
in respect of such breach and, as a consequence, that each and every
covenant contained in this paragraph 11 shall be specifically
enforceable against NMLP, the Holding Company and each General Partner
Pledgor, and NMLP, the Holding Company and each General Partner Pledgor
hereby waive and agree not to assert any defenses against an action for
specific performance of such covenants except for a defense that no
default has occurred with respect to the NMLP Obligations, the Holding
Company Obligations or the General Partner Pledgor Obligations.
12. Limitation on Duties Regarding Collateral. Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the NMLP
Collateral, the Holding Company Collateral and General Partner Pledgor
Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall
be to deal with it in the same manner as Agent deals with similar securities and
property for its own account. Neither Agent nor any of its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the NMLP Collateral, the Holding Company Collateral or the General
Partner Pledgor Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any NMLP Collateral, the Holding
Company Collateral or General Partner Pledgor Collateral upon the request of
NMLP, the Holding Company, any General Partner Pledgor or otherwise.
13. Financing Statements; Other Documents. This Pledge Agreement
constitutes an authenticated record, and NMLP, the Holding Company and each
General Partner Pledgor hereby authorize the Agent to file one or more UCC-1
financing statements, continuation statements or other documents with respect to
the NMLP Collateral, the Holding Company Collateral and the General Partner
Pledgor Collateral, without the signature of NMLP, the Holding Company or any
General
-19-
Partner Pledgor, and in such filing offices as the Agent shall deem
reasonably appropriate. NMLP, the Holding Company and each General Partner
Pledgor agree to deliver any other document or instrument which Agent may
reasonably request in connection with the administration and enforcement of this
Pledge Agreement or with respect to the NMLP Collateral, the Holding
Company Collateral and General Partner Pledgor Collateral for the purposes of
obtaining or preserving the full benefits of this Pledge Agreement and of the
rights and powers herein granted.
14. Powers Coupled with an Interest. All authorizations and agencies
and powers herein contained with respect to the NMLP Collateral, the Holding
Company Collateral and the General Partner Pledgor Collateral are irrevocable
and coupled with an interest.
15. Security Interest Absolute. All rights of the Agent hereunder, the
grant of a security interest in the NMLP Collateral, the Holding Company
Collateral and the General Partner Pledgor Collateral and all obligations of
NMLP, the Holding Company and the General Partner Pledgors hereunder, shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Loan Agreement, any agreement with respect to any of the
NMLP Obligations, the Holding Company Obligations, the General Partner Pledgor
Obligations or any other agreement or instrument relating to any of the
foregoing, (ii) any change in time, manner or place of payment of, or in any
other term of, all or any of the NMLP Obligations, the Holding Company
Obligations or the General Partner Pledgor Obligations, or any other amendment
or waiver of or any consent to any departure from the NMLP Note or any other
agreement or instrument, (iii) any exchange, release or non- perfection of any
other collateral, or any release or amendment or waiver of or consent to or
departure from any guarantee, for all or any of the NMLP Obligations, the
Holding Company Obligations or General Partner Pledgor Obligations, or (iv) any
other circumstance which might otherwise constitute a defense available to
(other than the defense of indefeasible payment), or a discharge of, NMLP, the
Holding Company or the General Partner Pledgors in respect of the NMLP
Obligations, the Holding Company Obligations or the General Partner Pledgor
Obligations or in respect of this Pledge Agreement.
16. Fees and Expenses. To the extent provided in the Loan Agreement and
the Guaranty, NMLP, the Holding Company and the General Partner Pledgors shall
be obligated to, upon demand, pay to the Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel
and of any experts or agents which the Agent or any Lender may incur in
connection with (i) the sale of, collection from, or other realization upon, any
of the NMLP Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral, or (ii) during the continuance of an Event of Default, the
exercise or enforcement of any of the rights of the Agent hereunder. Any such
amounts payable as provided hereunder or thereunder shall be additional
obligations secured hereby and by the other NMLP Security Documents.
17. Termination. Upon the payment in full of the NMLP Obligations, the
Holding Company Obligations or the General Partner Pledgor Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which NMLP, the Holding
Company or the General Partner Pledgors are responsible, the Agent shall release
the NMLP Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral (as the case may be) granted to the Agent as provided for
herein. However, such release by the Agent shall not be deemed to terminate or
release NMLP, the Holding Company or any General Partner Pledgor from any
obligation or liability under this Pledge Agreement which specifically by its
terms survives the payment in full of the NMLP Obligations, the Holding Company
Obligations or the General Partner Pledgor Obligations.
18. Severability. Any provision of this Pledge 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
-20-
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
19. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction, or be taken into consideration in interpreting, this Pledge
Agreement.
20. No Waiver; Cumulative Remedies. Agent shall not by any act delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of Agent, 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 Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent 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 rights or remedies provided by law.
21. Waivers and Amendments; Successors and Assigns; Governing Law;
Venue. None of the terms or provisions of this Pledge Agreement may be waived,
amended, or otherwise modified except by a written instrument executed by the
party against which enforcement of such waiver, amendment, or modification is
sought. This Pledge Agreement shall be binding upon NMLP, the Holding Company,
each General Partner Pledgor and Agent, and the successors and assigns of each,
and shall inure to the benefit of Agent and the Lenders and their successors and
assigns and to the benefit of NMLP, the Holding Company and each General Partner
Pledgor and the NMLP's, the Holding Company's, and each General Partnership
Pledgor's successors and permitted assigns; provided that neither NMLP nor the
Holding Company nor any General Partner Pledgor shall have any right to (i)
assign this Pledge Agreement or any interest herein, or (ii) assign any interest
in the NMLP Collateral, the Holding Company Collateral or the General Partner
Pledgor Collateral or any part thereof, or otherwise pledge, encumber or grant
any option with respect to the NMLP Collateral, the Holding Company Collateral
or the General Partner Pledgor Collateral or any part thereof, or any cash or
property held by NMLP, the Holding Company or the General Partner Pledgors as
NMLP Collateral, Holding Company Collateral or General Partner Pledgor
Collateral under this Pledge Agreement if any such assignment, pledge,
encumbrance or grant would constitute a violation of the Loan Agreement. The
rights of Agent under this Pledge Agreement shall automatically be transferred
to any transferee to which Agent transfers the NMLP Note and the Loan Agreement
pursuant to the terms thereof. The construction, interpretation, validity,
enforceability and effect of all provisions of this Pledge Agreement including,
but not limited to, the payment of the NMLP Obligations, the Holding Company
Obligations and the General Partner Pledgor Obligations and the legality of the
interest rate and other charges shall be construed and enforced in accordance
with the internal laws of The Commonwealth of Massachusetts (without regard to
conflicts of laws). NMLP, the Holding Company and each General Partner Pledgor
agrees to submit to non-exclusive personal jurisdiction in Suffolk County, in
The Commonwealth of Massachusetts in any action or proceeding arising out of
this Pledge Agreement and, in furtherance of such agreement, NMLP, the Holding
Company and each General Partner Pledgor hereby agree and consent that, without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
NMLP, the Holding Company or any General Partner Pledgor in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in The Commonwealth of Massachusetts and that any process or notice of
motion or other application to any such court in connection with any such action
or proceeding may be served upon NMLP, the Holding Company and any General
Partner Pledgor by registered or certified mail to or by personal service at the
last known address of NMLP, the Holding Company and such General Partner
Pledgor, whether such address be within or without the jurisdiction of any such
court.
-21-
22. Executive Offices.
(1) NMLP shall not (i) change the location of its chief
executive offices or sole place of business from the location as of the
date hereof or remove its books and records from such location, or (ii)
change its name, identity or structure if, in either case, such change
is prohibited by the Loan Agreement.
(2) The Holding Company shall not (i) change the location of
its chief executive offices or sole place of business from the location
as of the date hereof or remove its books and records from such
location, or (ii) change its name, identity or structure if, in either
case, such change is prohibited by the Loan Agreement.
(3) No General Partner Pledgor shall (i) change the location
of its chief executive offices or sole place of business from the
location as of the date hereof or remove its books and records from
such location, or (ii) change its name, identity or structure if, in
either case, such change is prohibited by the Loan Agreement.
23. Notices. Notices by Agent to NMLP, the Holding Company and the
General Partner Pledgors, to be effective, shall be in writing and shall be
hand-delivered or sent by Federal Express, or other reputable national overnight
courier service, or by postage pre-paid registered or certified mail, return
receipt requested, addressed to NMLP, the Holding Company or the General Partner
Pledgors at their address set forth below their signatures hereto, with a copy
in each instance to Post & Heymann LLP at the address set forth in Section 14.1
of the Loan Agreement, and shall be deemed to have been duly given or made (a)
when delivered if hand-delivered or sent by Federal Express, or other reputable
national overnight courier service, or (b) when delivered if sent by registered
or certified mail. Any communications by NMLP, the Holding Company or any
General Partner Pledgor to Agent may be given in any manner set forth in the
immediately preceding sentence, with a copy to Riemer & Braunstein LLP,
Attention: Steven J. Weinstein, Esq., to the addresses set forth in Section14.1
of the Loan Agreement.
24. Entire Understanding. Agent acknowledges that this Pledge
Agreement, the NMLP Note, the Guaranty and the other NMLP Loan Documents and
NMLP Security Documents set forth the entire agreement and understanding of
Agent, NMLP, the Holding Company and the General Partner Pledgors with respect
to the NMLP Loan and that no oral or other agreements, understanding,
representation or warranties exist with respect to the NMLP Loan, other than
those set forth in this Pledge Agreement, the NMLP Note, the Guaranty and the
other NMLP Loan Documents and NMLP Security Documents.
25. Counterpart Signatures. This Pledge Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute but one instrument.
[SIGNATURE PAGES FOLLOW]
-22-
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
NMLP: THE NEWKIRK MASTER LIMITED PARTNERSHIP,
A Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Newkirk MLP Corp., its Manager
By: _________________________________
Name: Carolyn Tiffany
Title: Chief Operating Officer
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
2. Principal Place of Business:
c/o First Winthrop Corporation
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
HOLDING COMPANY: NEWKIRK GP HOLDING LLC,
A Delaware limited liability company
By: MLP Manager Corp., its Manager
By: _________________________________
Name: Carolyn Tiffany
Title: Chief Operating Officer
GENERAL PARTNER
PLEDGORS: Newkirk 21 AT GP LLC
Newkirk Alake GP LLC
Newkirk Albeau GP LLC
Newkirk Allia GP LLC
Newkirk Ateb GP LLC
Newkirk Avrem GP LLC
Newkirk Basot GP LLC
Newkirk Bedcar GP LLC
Newkirk Boford GP LLC
Newkirk Calcraf GP LLC
Newkirk Carlane GP LLC
Newkirk Carolion GP LLC
Newkirk Clifmar GP LLC
-23-
Newkirk Colane GP LLC
Newkirk Crostex GP LLC
Newkirk Croydon GP LLC
Newkirk Dautec GP LLC
Newkirk Daytower GP LLC
Newkirk Denport GP LLC
Newkirk Denville GP LLC
Newkirk Feddata GP LLC
Newkirk Flamont GP LLC
Newkirk Gersant GP LLC
Newkirk Hazelport GP LLC
Newkirk Jackson Street GP LLC
Newkirk Jaclane GP LLC
Newkirk Jacway GP LLC
Newkirk Jameslane GP LLC
Newkirk Johab GP LLC
Newkirk Kalan GP LLC
Newkirk Lando GP LLC
Newkirk Lanmar GP LLC
Newkirk Larloosa GP LLC
Newkirk Leyden GP LLC
Newkirk Liroc GP LLC
Newkirk Marbax GP LLC
Newkirk Martall GP LLC
Newkirk Merday GP LLC
Newkirk Mesa GP LLC
Newkirk Midlem GP LLC
Newkirk Montal GP LLC
Newkirk Nevit GP LLC
Newkirk Newal GP LLC
Newkirk Pinmar GP LLC
Newkirk Pinole GP LLC
Newkirk Porto GP LLC
Newkirk Renlake GP LLC
Newkirk Sablemart GP LLC
Newkirk Salistown GP LLC
Newkirk Sandnord GP LLC
Newkirk Santex GP LLC
Newkirk Segair GP LLC
Newkirk Seguine GP LLC
Newkirk Silward GP LLC
Newkirk Skoob GP LLC
Newkirk Spokmont GP LLC
Newkirk Vegpow GP LLC
Newkirk Vegrouge GP LLC
Newkirk Walando GP LLC
Newkirk Walmad GP LLC
Newkirk Washtex GP LLC
-24-
Each, a Delaware limited liability company
By: MLP Manager Corp., their Manager
By: _____________________________________
Name: Carolyn Tiffany
Title: Chief Operating Officer
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
2. Principal Place of Business:
c/o First Winthrop Corporation
7 Bulfinch Place, Suite 500
Boston, Massachusetts 02114
AGENT: FLEET NATIONAL BANK,
A national banking association
By: ______________________________
Scott C. Dow
duly authorized
-25-
SCHEDULE 1
To Pledge
Agreement
GENERAL PARTNER PLEDGORS
26. Newkirk 21 AT GP LLC
27. Newkirk Alake GP LLC
28. Newkirk Albeau GP LLC
29. Newkirk Allia GP LLC
30. Newkirk Ateb GP LLC
31. Newkirk Avrem GP LLC
32. Newkirk Basot GP LLC
33. Newkirk Bedcar GP LLC
34. Newkirk Boford GP LLC
35. Newkirk Calcraf GP LLC
36. Newkirk Carlane GP LLC
37. Newkirk Carolion GP LLC
38. Newkirk Clifmar GP LLC
39. Newkirk Colane GP LLC
40. Newkirk Crostex GP LLC
41. Newkirk Croydon GP LLC
42. Newkirk Dautec GP LLC
43. Newkirk Daytower GP LLC
44. Newkirk Denport GP LLC
45. Newkirk Denville GP LLC
46. Newkirk Feddata GP LLC
47. Newkirk Flamont GP LLC
48. Newkirk Gersant GP LLC
-26-
49. Newkirk Hazelport GP LLC
50. Newkirk Jackson Street GP LLC
51. Newkirk Jaclane GP LLC
52. Newkirk Jacway GP LLC
53. Newkirk Jameslane GP LLC
54. Newkirk Johab GP LLC
55. Newkirk Kalan GP LLC
56. Newkirk Lando GP LLC
57. Newkirk Lanmar GP LLC
58. Newkirk Larloosa GP LLC
59. Newkirk Leyden GP LLC
60. Newkirk Liroc GP LLC
61. Newkirk Marbax GP LLC
62. Newkirk Martall GP LLC
63. Newkirk Merday GP LLC
64. Newkirk Mesa GP LLC
65. Newkirk Midlem GP LLC
66. Newkirk Montal GP LLC
67. Newkirk Nevit GP LLC
68. Newkirk Newal GP LLC
69. Newkirk Pinmar GP LLC
70. Newkirk Pinole GP LLC
71. Newkirk Porto GP LLC
72. Newkirk Renlake GP LLC
73. Newkirk Sablemart GP LLC
74. Newkirk Salistown GP LLC
75. Newkirk Sandnord GP LLC
-27-
76. Newkirk Santex GP LLC
77. Newkirk Segair GP LLC
78. Newkirk Seguine GP LLC
79. Newkirk Silward GP LLC
80. Newkirk Skoob GP LLC
81. Newkirk Spokmont GP LLC
82. Newkirk Vegpow GP LLC
83. Newkirk Vegrouge GP LLC
84. Newkirk Walando GP LLC
85. Newkirk Walmad GP LLC
86. Newkirk Washtex GP LLC
-28-
SCHEDULE 2
To Pledge
Agreement
NMLP PARTNERSHIPS
87. Newkirk 21 AT L.P.
General Partner Pledgor: Newkirk 21 AT GP LLC
-----------------------
88. Newkirk Alake L.P.
General Partner Pledgor: Newkirk Alake GP LLC
-----------------------
89. Newkirk Albeau L.P.
General Partner Pledgor: Newkirk Albeau GP LLC
-----------------------
90. Newkirk Allia L.P.
General Partner Pledgor: Newkirk Allia GP LLC
-----------------------
91. Newkirk Ateb L.P.
General Partner Pledgor: Newkirk Ateb GP LLC
-----------------------
92. Newkirk Avrem L.P.
General Partner Pledgor: Newkirk Avrem GP LLC
-----------------------
93. Newkirk Basot L.P.
General Partner Pledgor: Newkirk Basot GP LLC
-----------------------
94. Newkirk Bedcar L.P.
General Partner Pledgor: Newkirk Bedcar GP LLC
-----------------------
95. Newkirk Boford L.P.
General Partner Pledgor: Newkirk Boford GP LLC
-----------------------
96. Newkirk Calcraf L.P.
General Partner Pledgor: Newkirk Calcraf GP LLC
-----------------------
97. Newkirk Carlane L.P.
General Partner Pledgor: Newkirk Calane GP LLC
-----------------------
98. Newkirk Carolion L.P.
General Partner Pledgor: Newkirk Carolion GP LLC
-----------------------
99. Newkirk Clifmar L.P.
General Partner Pledgor: Newkirk Clifmar GP LLC
-----------------------
100. Newkirk Colane L.P.
General Partner Pledgor: Newkirk Colane GP LLC
-----------------------
101. Newkirk Crostex L.P.
General Partner Pledgor: Newkirk Crostex GP LLC
-----------------------
-29-
102. Newkirk Croydon L.P.
General Partner Pledgor: Newkirk Croydon GP LLC
-----------------------
103. Newkirk Dautec L.P.
General Partner Pledgor: Newkirk Dautec GP LLC
-----------------------
104. Newkirk Daytower L.P.
General Partner Pledgor: Newkirk Daytower GP LLC
-----------------------
105. Newkirk Denport L.P.
General Partner Pledgor: Newkirk Denport GP LLC
-----------------------
106. Newkirk Denville L.P.
General Partner Pledgor: Newkirk Denville GP LLC
-----------------------
107. Newkirk Feddata L.P.
General Partner Pledgor: Newkirk Feddata GP LLC
-----------------------
108. Newkirk Flamont L.P.
General Partner Pledgor: Newkirk Flamont GP LLC
-----------------------
109. Newkirk Gersant L.P.
General Partner Pledgor: Newkirk Gersant GP LLC
-----------------------
110. Newkirk Hazelport L.P.
General Partner Pledgor: Newkirk Hazelport GP LLC
-----------------------
111. Newkirk Jackson Street L.P.
General Partner Pledgor: Newkirk Jackson Street GP LLC
-----------------------
112. Newkirk Jaclane L.P.
General Partner Pledgor: Newkirk Jaclane GP LLC
-----------------------
113. Newkirk Jacway L.P.
General Partner Pledgor: Newkirk Jacway GP LLC
-----------------------
114. Newkirk Jameslane L.P.
General Partner Pledgor: Newkirk Jameslane GP LLC
-----------------------
115. Newkirk Johab L.P.
General Partner Pledgor: Newkirk Johab GP LLC
-----------------------
116. Newkirk Kalan L.P.
General Partner Pledgor: Newkirk Kalan GP LLC
-----------------------
117. Newkirk Lando L.P.
General Partner Pledgor: Newkirk Lando GP LLC
-----------------------
118. Newkirk Lanmar L.P.
General Partner Pledgor: Newkirk Lanmar GP LLC
-----------------------
119. Newkirk Larloosa L.P.
General Partner Pledgor: Newkirk Larloosa GP LLC
-----------------------
-30-
120. Newkirk Leyden L.P.
General Partner Pledgor: Newkirk Leyden GP LLC
-----------------------
121. Newkirk Liroc L.P.
General Partner Pledgor: Newkirk Liroc GP LLC
-----------------------
122. Newkirk Marbax L.P.
General Partner Pledgor: Newkirk Marbax GP LLC
-----------------------
123. Newkirk Martall L.P.
General Partner Pledgor: Newkirk Martall GP LLC
-----------------------
124. Newkirk Merday L.P.
General Partner Pledgor: Newkirk Merday GP LLC
-----------------------
125. Newkirk Mesa L.P.
General Partner Pledgor: Newkirk Mesa GP LLC
-----------------------
126. Newkirk Midlem L.P.
General Partner Pledgor: Newkirk Midlem GP LLC
-----------------------
127. Newkirk Montal L.P.
General Partner Pledgor: Newkirk Montal GP LLC
-----------------------
128. Newkirk Nevit L.P.
General Partner Pledgor: Newkirk Nevit GP LLC
-----------------------
129. Newkirk Newal L.P.
General Partner Pledgor: Newkirk Newal GP LLC
-----------------------
130. Newkirk Pinmar L.P.
General Partner Pledgor: Newkirk Pinmar GP LLC
-----------------------
131. Newkirk Pinole L.P.
General Partner Pledgor: Newkirk Pinole GP LLC
-----------------------
132. Newkirk Porto L.P.
General Partner Pledgor: Newkirk Porto GP LLC
-----------------------
133. Newkirk Renlake L.P.
General Partner Pledgor: Newkirk Renlake GP LLC
-----------------------
134. Newkirk Sablemart L.P.
General Partner Pledgor: Newkirk Sablemart GP LLC
-----------------------
135. Newkirk Salistown L.P.
General Partner Pledgor: Newkirk Salistown GP LLC
-----------------------
136. Newkirk Sandnord L.P.
General Partner Pledgor: Newkirk Sandnord GP LLC
-----------------------
137. Newkirk Santex L.P.
General Partner Pledgor: Newkirk Santex GP LLC
-----------------------
-31-
138. Newkirk Segair L.P.
General Partner Pledgor: Newkirk Segair GP LLC
-----------------------
139. Newkirk Seguine L.P.
General Partner Pledgor: Newkirk Seguine GP LLC
-----------------------
140. Newkirk Silward L.P.
General Partner Pledgor: Newkirk Silward GP LLC
-----------------------
141. Newkirk Skoob L.P.
General Partner Pledgor: Newkirk Skoob GP LLC
-----------------------
142. Newkirk Spokmont L.P.
General Partner Pledgor: Newkirk Spokmont GP LLC
-----------------------
143. Newkirk Vegpow L.P.
General Partner Pledgor: Newkirk Vegpow GP LLC
-----------------------
144. Newkirk Vegrouge L.P.
General Partner Pledgor: Newkirk Vegrouge GP LLC
-----------------------
145. Newkirk Walando L.P.
General Partner Pledgor: Newkirk Walando GP LLC
-----------------------
146. Newkirk Walmad L.P.
General Partner Pledgor: Newkirk Walmad GP LLC
-----------------------
147. Newkirk Washtex L.P.
General Partner Pledgor: Newkirk Washtex GP LLC
-----------------------
-32-
SCHEDULE 3
To Pledge
Agreement
PERCENTAGE
ISSUER OF SERIES OF OF
HOLDER OF PLEDGED PLEDGED TYPE OF MEMBERSHIP ISSUED
INTERESTS INTEREST INTEREST INTEREST INTERESTS
--------- -------- -------- -------- ---------
The Newkirk Master Newkirk GP Membership Series 21 AT 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Alake 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Albeau 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Allia 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Ateb 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Avrem 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Basot 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Bedcar 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Boford 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Calcraf 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Carlane 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Carolion 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Clifmar 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Colane 100.0%
Limited Partnership Holding LLC
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The Newkirk Master Newkirk GP Membership Series Crostex 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Croydon 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Dautec 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Daytower 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Denport 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Denville 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Feddata 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Flamont 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Gersant 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Hazelport 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Jackson 100.0%
Limited Partnership Holding LLC Street
The Newkirk Master Newkirk GP Membership Series Jaclane 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Jacway 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Jameslane 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Johab 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Kalan 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Lando 100.0%
Limited Partnership Holding LLC
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The Newkirk Master Newkirk GP Membership Series Lanmar 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Larloosa 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Leyden 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Liroc 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Marbax 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Martall 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Merday 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Mesa 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Midlem 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Montal 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Nevit 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Newal 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Pinmar 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Pinole 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Porto 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Renlake 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Sablemart 100.0%
Limited Partnership Holding LLC
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The Newkirk Master Newkirk GP Membership Series Salistown 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Sandnord 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Santex 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Segair 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Seguine 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Silward 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Skoob 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Spokmont 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Vegpow 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Vegrouge 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Walando 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Walmad 100.0%
Limited Partnership Holding LLC
The Newkirk Master Newkirk GP Membership Series Washtex 100.0%
Limited Partnership Holding LLC
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