PLEDGE AND SECURITY AGREEMENT
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PLEDGE AND SECURITY AGREEMENT (hereinafter, the "Pledge Agreement"),
dated as of March ___, 2004, by and between CEDAR SHOPPING CENTERS PARTNERSHIP,
L.P., a Delaware limited partnership having an address at c/o Cedar Shopping
Centers, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (hereinafter, the "Borrower"), and FLEET NATIONAL BANK, a national banking
association having an address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as agent under that certain Loan Agreement (hereinafter,
the "Loan Agreement") dated January 30, 2004, by and among Borrower, Fleet
National Bank and the other lending institutions which are or become parties to
the Loan Agreement (Fleet National Bank and the other lending institutions which
are or become parties to the Loan Agreement are hereinafter, collectively,
referred to as the "Lenders" and individually as the "Lender"), and Fleet
National Bank, as Agent (hereinafter, the "Agent").
W I T N E S S E T H
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WHEREAS, pursuant to the Loan Agreement, the Agent and the Lenders have
agreed to make a loan (hereinafter, the "Loan") to the Borrower in the aggregate
principal amount of up to One Hundred Million Dollars ($100,000,000.00) upon the
terms and subject to the conditions set forth therein.
WHEREAS, the Borrower owns, directly, a 100% ownership interest in the
following entity: Cedar ▇▇▇▇▇▇, LLC, a Delaware limited liability company having
an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter, the "Borrower Subsidiary").
WHEREAS, the Borrower Subsidiary has substantial financial dealings
with the Borrower and are affiliated with the Borrower (by ownership and by
contractual relationship and/or other meaningful business relationship), and the
extension of credit and the providing of financial accommodations to the
Borrower will enhance and benefit the business activities and interests of the
Borrower Subsidiary.
WHEREAS, as a condition to extending the Loan to the Borrower, the
Agent and the Lenders have required the Borrower to execute and deliver this
Pledge Agreement to secure the Borrower's obligations under the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make the Loan under the Loan Agreement, the Borrower hereby agrees
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 (which
defined terms are expressly incorporated herein by reference), and the following
terms shall have the following meanings:
"Agent": as defined in the first paragraph of this Pledge
Agreement.
"Borrower": as defined in the first paragraph of this Pledge
Agreement.
"Borrower Subsidiary": as defined in the recitals of this
Pledge Agreement.
"Collateral": means the Pledged Interests, the Pledged
Obligations and all Proceeds thereof.
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"Consent": shall mean that certain Consent from the Borrower
Subsidiary referenced in Section 4 of this Pledge Agreement.
"Lender" or "Lenders": as defined in the first paragraph of
this Pledge Agreement.
"Loan": as defined in the recitals of this Pledge Agreement.
"Loan Agreement": as defined in the first paragraph of this
Pledge Agreement.
"Obligations": means all indebtedness, obligations and
liabilities of the Borrower 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, Note or any other Loan Document; and (iii)
each of the same as hereafter modified, amended, extended or replaced,
including, without limitation, the Obligations (as defined in the Loan
Agreement).
"Pledge Agreement": means this Pledge and Security Agreement,
as amended, supplemented or otherwise modified from time to time.
"Pledged Interests": means all right, title and interest of
the Borrower, whether now owned or hereafter acquired, as the holder of
the direct or indirect interests in the Borrower Subsidiary referred to
in the recitals of this Pledge Agreement, together with all interests,
certificates, options or rights of any nature whatsoever which may be
issued or granted to the Borrower by the Borrower Subsidiary in respect
thereof.
"Pledged Obligations": means all right, title and interest of
the Borrower, whether now owned or hereafter acquired, in and to any
and all obligations owed to the Borrower by the Borrower Subsidiary,
whether now existing or hereafter incurred, and in and to all
collateral granted to the Borrower or for the benefit of the Borrower
as collateral security for such obligations.
"Proceeds": means (i) the Borrower's right, title and interest
in and to all distributions, monies, fees, payments, compensations and
proceeds now or hereafter payable in respect of the Pledged Interests
and the Pledged Obligations, 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(a) of
the UCC; (ii) all books, records, electronically stored data and
information relating to the Pledged Interests and the Pledged
Obligations and all rights of access to such books, records and
information; (iii) all contract rights, general intangibles,
instruments (as each such term is defined in Section 9-102(a) of the
UCC), claims, powers, privileges, benefits and remedies of the Borrower
relating to the foregoing; (iv) all additions to the Pledged Interests
and the Pledged Obligations, all substitutions therefor and all
replacements thereof; and (v) all cash or non-cash proceeds of any of
the foregoing.
"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
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. As security for the full and
punctual payment and performance of the Obligations when due and payable
(whether upon stated maturity, by acceleration or otherwise), Borrower hereby
transfers, assigns, grants, bargains, sells, conveys, hypothecates, pledges,
sets over, endorses over and delivers to Agent, on behalf of the Lenders, all
the Pledged Interests, and Borrower hereby grants, pledges, hypothecates,
transfers and assigns to Agent, on behalf of the Lenders, a continuing lien on
and security interest in all of the Collateral.
3. Delivery of Certificates, Instruments, Etc. The Borrower shall
deliver to Agent:
(a) all original certificates, instruments and other
documents, if any, evidencing or representing the Pledged Interests,
concurrently with the execution and delivery of this Pledge Agreement;
and
(b) the original certificates, instruments or other documents,
if any, evidencing or representing all other Collateral (except for
such Collateral which this Pledge Agreement specifically permits the
Borrower to retain) within five (5) days after the Borrower's receipt
thereof.
4. Powers and Transfer Instruments. Concurrently with the delivery to
the Agent of this Pledge Agreement and each certificate, if any, representing
the Pledged Interests, the Borrower shall deliver a duly executed Consent from
the Borrower Subsidiary.
5. Representations and Warranties. The Borrower represents and warrants
that:
(a) Except for the Consent, and any other consents as may be
required in connection with any disposition of any portion of the
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 the Borrower), 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 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;
(b) The Pledged Interests in the Borrower Subsidiary
constitute all of the ownership interests owned by the Borrower in the
Borrower Subsidiary;
(c) All of the 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 Pledged Interests. None of the
ownership interests comprising the 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);
(d) The Borrower is the sole holder of record and sole
beneficial of, and has good and valid title to, the Pledged Interests
in the Borrower Subsidiary, 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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(e) Upon the filing of the Form UCC-1 Statements referred to
in Section 13 of this Pledge Agreement in the place or office of public
record lawfully required to perfect a security interest therein, the
lien granted pursuant to this Pledge Agreement will constitute a valid,
perfected first priority lien with respect to that portion of the
Collateral in which a security interest is perfected by the filing of a
financing statement, enforceable as such against all creditors of
Borrower and any persons purporting to purchase any of such Collateral
from Borrower, subject to bankruptcy, insolvency, moratorium, and other
similar laws of general applicability affecting creditors rights and
general equity principles; and
(f) There are no restrictions on the transfer of the
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 or consented
to pursuant to the Consent), and, as set forth in the Consent, the
Borrower has obtained all consents needed in connection with any such
transfer or subsequent transfer, subject to matters resulting from the
operation of law.
6. Covenants. The Borrower covenants and agrees with Agent and the
Lenders that from and after the date of this Pledge Agreement until this Pledge
Agreement shall be terminated:
(a) If the Borrower shall, as a result of its ownership of the
Pledged Interests, become entitled to receive or shall receive (i) any
membership 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, (ii)
any stock, (iii) any limited or general 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 Pledged Interests, or otherwise in
respect thereof, the Borrower 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 Borrower to
Agent, if required, and, to the extent the same is in the form of a
certificate, 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 Obligations.
(b) Without the prior written consent of Agent, the Borrower
shall not, directly or indirectly (i) vote to enable, or take any other
action to permit, the issuer(s) of the 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 Pledged Interests, or (ii) sell,
assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, the 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 Collateral, or any interest therein,
except for the lien provided for by this Pledge Agreement and liens
permitted under the Loan Agreement. The Borrower will defend the right,
title and interest of Agent in and to the Collateral against the claims
and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of Agent, and at the sole expense of the Borrower, the Borrower
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
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connection with any of the 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 reasonably satisfactory to Agent, to be held as
Collateral pursuant to this Pledge Agreement.
(d) The Borrower agrees 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 Collateral or in connection with any of the
transactions contemplated by this Pledge Agreement.
(e) The Borrower shall not exercise any right with respect to
the Collateral which would dilute or adversely affect Agent's rights in
the Collateral.
(f) Except as permitted in the Loan Agreement, the Borrower
shall not enter into or consent to any amendment or modification of, or
with respect to, the operating agreements of the Borrower Subsidiary
without Agent's prior written consent in each instance, which consent
shall not be unreasonably withheld, conditioned or delayed.
7. Cash Dividends; Distributions; Voting Rights.
(a) Notwithstanding the preceding terms of this Pledge
Agreement, unless an Event of Default shall have occurred and be
continuing, the Borrower shall be permitted to exercise all voting
rights with respect to the Pledged Interests; provided, however, that
the Borrower shall not, without the prior written consent of Agent in
each instance, which consent shall not be unreasonably withheld,
conditioned or delayed, vote the Collateral in favor of, or consent to,
any resolution or action which does or might:
(i) impose any restrictions upon the sale,
transfer or disposition of the
Collateral other than restrictions, if
any, the application of which is waived
to the full satisfaction of the Agent as
to the Collateral; or
(ii) result in the issuance of any additional
interest in the Borrower Subsidiary, or
of any class or series of security,
which issuance might adversely affect
the value of the Collateral; or
(iii) vest additional powers, privileges,
preferences or priorities to any other
class or series of interest in the
Borrower Subsidiary to the detriment of
the value of, or rights accruing to, the
Collateral; or
(iv) to the extent prohibited in the Loan
Agreement without Agent's consent,
permit the Borrower Subsidiary 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.
(b) Notwithstanding the preceding terms of this Pledge
Agreement, but subject to the terms and provisions hereof relating to
the rights and remedies of the Agent, so long as there is no Event of
Default that is continuing, cash dividends, distributions and other
payments in respect of the Collateral may be made by the to the
Borrower, and may be retained, used and enjoyed by the Borrower.
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8. Rights of Agent.
(a) 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
Collateral and make application thereof to the Obligations, 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 Pledged Interests, and the obligors with respect to the Pledged
Obligations, to pay all such cash dividends or distributions or other
payment directly to the Agent or as otherwise directed by the Agent.
(b) If an Event of Default shall have occurred and be
continuing, then all registered 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 Pledged Interests, and (y) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to such 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 Pledged Interests upon
the merger, consolidation, reorganization, recapitalization or other
fundamental change in the organizational structure of the Borrower, or
upon the exercise by the Borrower or Agent of any right, privilege or
option pertaining to such Pledged Interests, and in connection
therewith, the right to deposit and deliver any and all of the 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.
(c) The rights of Agent hereunder shall not be conditioned or
contingent upon the pursuit by Agent of any right or remedy against the
Borrower or against any other person or entity which may be or become
liable in respect of all or any part of the Obligations or against any
other Collateral, any security therefor, any 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
Collateral or for any delay in doing so, nor shall it be under any
obligation to sell or otherwise dispose of any Collateral upon the
request of the Borrower or any other person or entity or to take any
other action whatsoever with regard to the Collateral or any part
thereof.
9. Actions By Agent. The Borrower hereby designates Agent as the
attorney-in-fact of the Borrower to: (a) endorse in favor of Agent any of the
Collateral following an Event of Default which is continuing; (b) cause the
transfer of any of the Collateral in such name as Agent may from time to time
determine following an Event of Default which is continuing; (c) renew, extend
or roll over any Collateral following an Event of Default which is continuing;
(d) make, demand and initiate actions to enforce any of the Collateral or rights
therein following an Event of Default which is continuing; and (e) take any
other action to effectuate the terms and provisions of this Pledge Agreement
following an Event of Default which is continuing. Following an Event of Default
which is continuing, Agent may take such action with respect to the Collateral
as Agent may reasonably determine to be necessary to protect and preserve its
interest in the 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 Obligations are then due provided
that an Event of Default has occurred and is continuing. 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 or is required to be so
terminated by the terms of the Loan Agreement. The power of attorney shall not
be affected
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by subsequent disability or incapacity of the Borrower. 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, or constitutes gross
negligence or willful misconduct.
10. Remedies.
(a) 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 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 or required by the
Loan Agreement) to or upon the Borrower, 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 Collateral, or any
part thereof, and/or may forthwith sell, assign, give option or options
to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, 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 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 Collateral so sold, free of any right or equity of
redemption in the Borrower, which right or equity is hereby waived or
released. Agent shall apply any 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 Collateral or in any way relating to
the 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 Obligations, 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, and/or turnover, any surplus to the Borrower. To the extent
permitted by applicable law, the Borrower waives all claims, damages
and demands Borrower may acquire against Agent arising out of the
exercise by Agent of any of its rights hereunder, except for any
claims, damages and demands Borrower 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 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. The Borrower shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of Collateral are insufficient to pay the Obligations and
the reasonable fees and disbursements of any attorneys employed by
Agent to collect such deficiency.
(b) If any Event of Default, or other event which would
entitle Agent or any of the Lenders to accelerate the Loan, 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 Agent or FleetBoston
Financial Corporation or any of the Lenders, to the Borrower 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
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and applied by Agent against any or all of the Obligations irrespective
of whether demand shall have been made and although such Obligations
may be unmatured, 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
Borrower 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 LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT
TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
11. Private Sales.
(a) The Borrower recognizes that Agent may be unable to effect
a public sale of any or all the 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. The Borrower
acknowledges and agrees 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
Pledged Interests for the period of time necessary to permit the
Borrower to register such securities for public sale under the
Securities Act of 1933, as amended, or under applicable state
securities laws, even if the Borrower would agree to do so.
(b) From and after the occurrence, and during the
continuation, of an Event of Default, the Borrower further agrees to
use its 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
Pledged Interests pursuant to this Section 11 valid and binding and in
compliance with any and all other applicable requirements of law;
provided, however, that the Borrower shall not be under any obligation
to register the Pledged Interests for public sale under the Securities
Act of 1933, as amended, or under applicable state securities laws. The
Borrower further agrees that a breach of any of the covenants contained
in this Section 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 Section 11
shall be specifically enforceable against the Borrower, subject to
bankruptcy, insolvency, moratorium, and other similar laws of general
applicability affecting creditor's rights and general equity
principles, and the Borrower hereby waives and agrees 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
Obligations.
12. Limitation on Duties Regarding Collateral. Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9- 207 of the 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 Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
the Borrower, or otherwise.
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13. Financing Statements; Other Documents.
(a) This Pledge Agreement constitutes an authenticated record,
and the Borrower hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral, without the signature of
Borrower, in such filing offices as the Agent shall reasonably deem
appropriate, and the Borrower shall pay the Agent's reasonable costs
and expenses incurred in connection therewith.
(b) The Borrower hereby agrees that a carbon, photographic, or
other reproduction of this Pledge Agreement or of a financing statement
signed by the Borrower shall be sufficient as a financing statement and
may be filed as a financing statement in any and all jurisdictions.
(c) The Borrower agrees 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 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 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 Collateral and all obligations of the
Borrower, 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 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 Obligations, or any other amendment or waiver
of or any consent to any departure from the 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 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, the Borrower in respect
of the Obligations or in respect of this Pledge Agreement.
16. Fees and Expenses. To the extent provided in the Loan Agreement,
the Borrower shall be obligated to 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 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.
17. Termination. Upon the payment in full of the Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses, for which the Borrower is responsible, of the Agent and of
each Lender, the Agent shall release the Collateral granted to the Agent as
provided for herein. However, such release by the Agent shall not be deemed to
terminate or release the Borrower from any obligation or liability under this
Pledge Agreement which specifically by its terms survives the payment in full of
the 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
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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 the Borrower 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 the
Borrower and the Borrower's successors and permitted assigns; provided that the
Borrower shall not have any right to (i) assign this Pledge Agreement or any
interest herein, or (ii) assign any interest in the Collateral or any part
thereof, or otherwise pledge, encumber or grant any option with respect to the
Collateral or any part thereof, or any cash or property held by the Borrower as
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 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 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). The Borrower 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, the Borrower hereby agrees and consents that, without limiting
other methods of obtaining jurisdiction, personal jurisdiction over the Borrower
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 the Borrower by
registered or certified mail to or by personal service at the last known address
of the Borrower, whether such address be within or without the jurisdiction of
any such court.
22. Executive Offices. The Borrower 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.
23. Notices. Notices by Agent to the Borrower, 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 the
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Borrower at the address indicated above, with a copy in each instance to Stroock
& Stroock & ▇▇▇▇▇ LLP, Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq., at the address set forth
in 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 the Borrower to Agent may be given in
any manner set forth in the immediately preceding sentence, with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., to the addresses set
forth in the Loan Agreement.
24. Entire Understanding. Agent acknowledges that this Pledge
Agreement, the Note and the other Loan Documents and Security Documents set
forth the entire agreement and understanding of Agent and the Borrower with
respect to the Loan and that no oral or other agreements, understanding,
representation or warranties exist with respect to the Loan, other than those
set forth in this Pledge Agreement, the Note and the other Loan 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.
26. Governing Law. This Pledge Agreement and the rights and obligations
of the parties hereunder shall in all respects be governed by and construed and
enforced in accordance with the internal laws of the Commonwealth of
Massachusetts, without giving effect to principles of conflicts of law, except
insofar as formation of the Borrower under Delaware law requires Delaware law to
apply with respect to matters of authorization to enter into the transaction
contemplated by this Pledge Agreement. In addition, the fact that portions of
the Loan Documents may include provisions drafted to conform to the law of the
Commonwealth of Pennsylvania is not intended, nor shall it be deemed, in any way
to derogate the parties' choice of law as set forth herein. Agent or any Lender
may enforce its rights hereunder and under the other Loan Documents, including,
but not limited to, its rights to ▇▇▇ Borrower or to collect any outstanding
indebtedness in accordance with applicable law. It is understood and agreed that
this Pledge Agreement, and all of the other Loan Documents, were negotiated,
executed and delivered in the Commonwealth of Massachusetts which Commonwealth
the parties agree has a substantial relationship to the parties and to the
underlying transactions embodied by the Loan Documents.
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IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement
to be duly executed and delivered as an instrument under seal as of the date
first above written.
BORROWER: CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: ______________________________
Name: ______________________________
Title: ______________________________
AGENT: FLEET NATIONAL BANK,
a national banking association
By: ______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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