PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
November 3, 2003, made by FIREHOUSE REALTY CORP., a Pennsylvania corporation
("Firehouse"), XXXX DEVELOPMENT ASSOCIATES, INC., a Pennsylvania corporation
("Xxxx"), SOUTH RIVER VIEW PLAZA, INC., a Pennsylvania corporation ("South"),
RIVER VIEW DEVELOPMENT CORP., a Pennsylvania corporation ("Development"),
RIVERVIEW COMMONS, INC., a Pennsylvania corporation ("Commons"; and together
with Firehouse, Reed, South and Development, "Pledgor"), each having an address
c/o Tower Investments, Inc., Xxx Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
in favor of CEDAR LENDER LLC, a Delaware limited liability company having an
address at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Pledgee").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Agreement of Limited Partnership of
Cedar Riverview LP, dated as of the date hereof (as the same may be amended from
time to time, the "Partnership Agreement"), Pledgor is the holder of preferred
limited partnership interests in Cedar-Riverview LP (the "Partnership") in an
amount equal to $26,993,000 (such interests being known as the "Partnership
Interests");
WHEREAS, pursuant to that certain Loan Agreement, dated as of the date
hereof, between Pledgee and Pledgor (the "Loan Agreement"), Pledgee has made or
is about to make a loan to Pledgor (the "Loan") in the original principal sum of
Twenty Six Million Seven Hundred Forty-Three Thousand ($26,743,000.00) Dollars,
which Loan is evidenced by that certain Promissory Note, dated as of the date
hereof, made by Pledgor to the order of Pledgee, in the principal amount of
Twenty Six Million Seven Hundred Forty-Three Thousand ($26,743,000.00) Dollars
(as the same may be amended from time to time, the "Note"); and
WHEREAS, as a condition of making the Loan to Pledgor and to secure the
obligations of Pledgor under the Note, Pledgor agrees to pledge and grant to
Pledgee, subject to the terms and conditions of this Agreement, a security
interest in and to (i) the Partnership Interests and (ii) distributions to
Pledgor under the Partnership Agreement (each, a "Pledged Interest" and,
collectively, the "Pledged Interests").
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto hereby
covenant and agree as follows:
SECTION 1. Pledge.
(a) Pledgor hereby pledges, assigns, hypothecates, delivers, sets
over and grants to Pledgee a lien on and security interest in and to (x) all
right, title and interest of Pledgor in (i) the Pledged Interests, (ii) any
certificates, instruments or documents representing the Pledged Interests, (iii)
all options and other rights, contractual or otherwise, in respect of the
Pledged Interests (including, without limitation, any registration rights) and
(iv) all dividends, distributions, liquidation proceeds, cash, instruments and
other property (including, without limitation, additional stock or securities
distributed in respect of any Pledged Interest by way of
stock splits, spin-offs, reclassification, combination, consolidation, merger or
similar arrangement) to which Pledgor is entitled with respect to the Pledged
Interests, whether or not received by or otherwise distributed to Pledgor,
whether such dividends, distributions, liquidation proceeds, cash, instruments
and other property are paid or distributed by the Partnership in respect of
operating profits, sales, exchanges, refinancing, condemnations or insured
losses of the assets of the Partnership, the liquidation of such, the
Partnership's assets and affairs, management fees, guaranteed payments,
repayment of loans, reimbursement of expenses or otherwise (the items set forth
in this clause (x) collectively referred to herein as the "Distributions"), and
(y) subject to the provisions of Section 4 below, Pledgor's rights, remedies,
powers and benefits under the Partnership Agreement or under law, including,
without limitation (i) all rights of Pledgor to vote on any matter specified
therein or under law, (ii) all rights of Pledgor to cause an assignee to be
substituted as a partner in the Partnership in the place and stead of Pledgor,
(iii) all rights, remedies, powers, privileges, security interests, liens, and
claims of Pledgor for damages arising out of or for breach of or default under
the Partnership Agreement, (iv) all present and future claims, if any, of
Pledgor against the Partnership under or arising out of the Partnership
Agreement for monies loaned or advanced, for services rendered or otherwise, (v)
all rights of Pledgor to access to the books and records of the Partnership and
to other information concerning or affecting the Partnership, (vi) all rights of
Pledgor to terminate the Partnership Agreement, to perform thereunder, to compel
performance and otherwise to exercise all remedies thereunder, and (vii) all
rights of Pledgor to acquire the rights or interests of any other partner in the
Partnership and all increases and profits of any of the foregoing and all
proceeds thereof. The security interests, rights, remedies and benefits of
Pledgee granted by this Section 1(a) and all proceeds thereof are hereinafter
collectively referred to as the "Pledged Collateral". Pledgor irrevocably and
unconditionally waives all rights, if any, which may exist in its favor to
purchase or acquire any of the Pledged Collateral from and after the date on
which Pledgee or any assignee thereof or successful bidder at a foreclosure sale
of the Pledged Collateral acquires the Pledged Collateral pursuant to the rights
and remedies afforded Pledgee hereunder or any exercise thereof.
(b) Concurrently herewith, Pledgor shall cause the Partnership to
execute and deliver to Pledgee an "Agreement and Acknowledgment of Pledge"
substantially in the form of EXHIBIT A annexed hereto and made a part hereof.
SECTION 2. Security for Obligations. This Agreement secures (a) the
prompt payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations and any other amounts due or to become due under
the Note, whether for principal, interest, fees, expenses or otherwise, (b) the
due and punctual performance or satisfaction of all obligations of Pledgor under
the Note, (c) any and all obligations of Pledgor now or hereafter existing under
this Agreement, and (d) any and all other obligations of Pledgor to Pledgee now
or hereafter existing (all such obligations being hereinafter collectively
referred to as the "Obligations").
SECTION 3. Delivery of Pledged Collateral and Related Evidence. (a) On
the date hereof, Pledgor shall deliver to Pledgee (i) evidence satisfactory to
Pledgee in its sole discretion that (x) Pledgor is the legal and beneficial
owner of the Partnership Interests and (y) the pledges created hereby have been
duly reflected upon the books of the Partnership as provided in the Agreement
and Acknowledgment of Pledge executed by the Partnership, (ii) such Uniform
Commercial Code financing statements (the "UCCs"), in a form ready for filing,
as may
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be necessary or desirable to perfect and/or evidence the security interests in
the Pledged Collateral granted to Pledgee pursuant to this Agreement, and (iii)
satisfactory evidence to Pledgee in its sole discretion that all other filings,
recordings, registrations and other actions Pledgee deems necessary or desirable
to establish, preserve and perfect the security interests and other rights
granted to Pledgee pursuant to this Agreement, and Pledgee's priority with
respect to same, shall have been made.
(b) Pledgee shall have the right to appoint one or more agents for
the purpose of retaining physical possession of any of the Pledged Collateral,
which may be held (in the discretion of Pledgee) in the name of Pledgor, or
endorsed or assigned in blank or in favor of Pledgee or any nominee or nominees
of Pledgee or any agent appointed by Pledgee in accordance herewith.
SECTION 4. Voting Power, Etc. Notwithstanding anything to the contrary
contained in Section 1 hereof, provided that no Event of Default (as that term
is defined in the Loan Agreement) shall have occurred and be continuing, but
subject in all respects to the terms, conditions, prohibitions or limitations on
the following actions of Pledgor as a partner of the Partnership provided in the
Partnership Agreement, the Agreement and Acknowledgment of Pledge annexed
hereto, the Loan Agreement or the Note, Pledgor shall be entitled to exercise
all voting, consensual and other powers of ownership pertaining to the Pledged
Collateral (including, without limitation, to receive distributions from the
Partnership, to make determinations, to exercise any election (including,
without limitation, election of remedies) or option, and to give or receive any
notice, consent, amendment, waiver, approval or other rights described in
Section 1 hereof), provided that no ratification shall be given, nor any power
pertaining to the Pledged Collateral exercised, nor any other action taken,
which would violate or be inconsistent with the terms of this Agreement, the
Loan Agreement or the Note, or which would have the effect of impairing the
position or interests of Pledgee, or, in each case, in such a manner as would
reasonably be expected to have a material adverse effect on the ability of
Pledgor to perform its obligations hereunder. From and after the occurrence of
an Event of Default and for so long as such Event of Default is continuing,
Pledgee shall have the right to exercise all voting, consensual and other powers
of ownership pertaining to the Pledged Collateral.
SECTION 5. No Assumption. Notwithstanding anything contained herein to
the contrary, whether or not an Event of Default shall have occurred, and
whether or not Pledgee elects to foreclose or otherwise realize on its security
interests in the Pledged Collateral, or any part thereof, as set forth herein or
exercise any of its rights under this Agreement, the Loan Agreement or the Note
or otherwise, neither this Agreement, receipt by Pledgee of any Distributions,
the foreclosure or other realization by Pledgee of the security interests in the
Pledged Collateral nor any exercise by Pledgee of any of its rights under this
Agreement, the Loan Agreement or the Note or otherwise, shall in any way be
deemed to obligate Pledgee to assume any of Pledgor's obligations, duties,
expenses or liabilities with respect to the Pledged Collateral or any agreement
relating thereto, and in the event of any such foreclosure, realization or other
exercise of rights, Pledgor shall remain bound and obligated to perform such
obligations and Pledgee shall not be deemed to have assumed any of such
obligations.
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SECTION 6. Representations, Warranties and Covenants. Pledgor
represents and warrants to, and covenants and agrees with, Pledgee as follows:
(a) Each of Commons, Firehouse, Xxxx, South and Development is a
duly formed corporation under the laws of the Commonwealth of Pennsylvania,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, and has full power and authority to execute and deliver to Pledgee
this Agreement, to own its properties and to perform the obligations and carry
out the duties imposed upon it by this Agreement.
(b) Pledgor is, and at all times will be, the only record and
beneficial owner of the Pledged Collateral. The Pledged Interests and the
Pledged Collateral are and, at all times, will be, fully paid and
non-assessable, free and clear of any lien, security interest, option or other
charge or encumbrance, whether statutory, judicial, consensual or otherwise.
Pledgor will defend Pledgee's right, title and interest in and to the Pledged
Collateral pledged by it pursuant hereto against the claims and demands of any
third party at no cost or expense whatsoever to Pledgee.
(c) Pledgor's rights to Distributions, if any, under the Partnership
Agreement are not subject to any defense, offset, counterclaim or contingency
whatsoever. Giving effect to the aforesaid grants and pledges to Pledgee and the
deliveries required hereunder, and upon the filing of the UCCs in the public
records of the Office of the Secretary of State of the Commonwealth of
Pennsylvania, Pledgee has, as of the date of this Agreement, and, as to any
Pledged Collateral acquired from time to time after such date, shall have, a
valid, perfected and continuing lien upon and security interest in the Pledged
Collateral; provided, however, that no representation or warranty is made with
respect to the perfected status of the security interests of Pledgee in the
proceeds of the Pledged Collateral consisting of "cash proceeds" or "non-cash
proceeds" as defined in the Uniform Commercial Code in effect in the
Commonwealth of Pennsylvania (the "Code") except if, and to the extent, the
provisions of Section 9-315 of the Code shall be complied with.
(d) Pledgor shall pay, and save Pledgee 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 which may be payable or determined to be
payable with respect to any of the Pledged Collateral or in connection with any
of the transactions contemplated by this Agreement or the exercise by Pledgee of
any right or remedy granted to it hereunder or under the Loan Documents.
(e) Pledgor shall not transfer any of the Pledged Collateral until
payment or satisfaction in full of the Obligations.
(f) This Agreement, and each provision herein, has been duly
authorized, executed and delivered by Pledgor and constitutes the legal, valid
and binding obligation of Pledgor, enforceable against Pledgor in accordance
with its terms.
(g) Pledgor will not change its state of organization unless it
shall provide Pledgee with at least thirty (30) days' prior written notice
thereof and there shall have been taken such action, satisfactory to Pledgee, as
may be necessary to maintain the security interest of Pledgee hereunder at all
times fully perfected and in full force and effect. Pledgor shall not change its
name unless it shall have given Pledgee at least thirty (30) days' prior written
notice
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of any such proposed change and shall have taken such action, satisfactory to
Pledgee, as may be necessary to maintain the security interest of Pledgee in the
Pledged Collateral at all times fully perfected and in full force and effect.
(h) Pledgor has delivered to Pledgee true, correct and complete, in
all material respect, copies of all of the organizational documents of each of
Commons, Firehouse, Xxxx, South and Development, and Pledgor shall not permit or
consent to any amendments thereto without the prior written consent of Pledgee.
The organizational documents of Commons, Firehouse, Xxxx, South and Development
have been duly executed and delivered by the partners, members, shareholders,
directors, incorporators, or organizers, as the case may be, of Commons,
Firehouse, Xxxx, South and Development, as applicable, and constitute the legal,
valid and binding obligations of such parties enforceable in accordance with
their respective terms. Pledgor is not in material default under or with respect
to, nor has Pledgor received any notice alleging any material default under or
with respect to, any of its obligations under the Partnership Agreement. Pledgor
has the full power and authority to own its property and to carry on its
business as now being conducted, and has the power and authority to execute and
deliver and to perform its Obligations hereunder and under the Loan Documents.
(i) None of the Pledged Collateral is, or will be, evidenced by any
instrument, note or chattel paper, except such as have been or will be endorsed,
assigned or pledged and delivered to Pledgee by Pledgor, simultaneously with the
creation thereof and in accordance with any and all applicable requirements of
the Code.
(j) Pledgor shall, at its sole cost and expense, keep, observe,
perform and discharge, duly and punctually all and singular the material
obligations, terms, covenants, conditions, representations and warranties of the
Partnership Agreement on the part of Pledgor to be kept, observed, performed and
discharged, and shall hold Pledgee harmless and indemnify it against any loss or
expense (other than consequential, incidental, exemplary, or punitive damage),
including reasonable attorneys' fees and disbursements, that Pledgee may incur
or sustain by reason of any failure to so perform and observe the Partnership
Agreement or to satisfy, perform and observe such conditions thereunder.
(k) There is no suit, action, proceeding, arbitration, investigation
or inquiry pending or, to the best of Pledgor's knowledge, threatened against
Pledgor with respect to this Agreement or the transactions contemplated by this
Agreement or which, if adversely determined, would have a material adverse
impact on the ability of Pledgor to consummate the transactions contemplated
hereby, and no consent of any Person (as hereinafter defined), license, permit
or approval, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained by
Pledgor in connection with the execution, delivery or performance of this
Agreement. For purposes of this Agreement, the term "Person" shall mean any
individual, partnership, limited liability company, corporation, trust or other
entity.
(l) The Partnership Interests are not represented by any instrument
issued in bearer or registered form. None of the Partnership Interests
constitutes or will constitute certificated or uncertificated securities as
defined in Article 8 of the Code. None of the Partnership Interests is or will
be dealt in or traded on any securities exchanges or securities
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markets or is or will be held in any securities account as defined in Article 8
of the Code. The Partnership Interests constitute general intangibles as defined
in Article 9 of the Code.
The representations, warranties and covenants set forth in this Section
6 shall survive the execution and delivery of this Agreement and remain in full
force and effect until four (4) months after the Loan is repaid in full. Pledgor
shall have no liability to Pledgee in respect of said representations,
warranties and covenants unless Pledgee shall have delivered to Pledgor, within
such four (4) month period, a claim specifying the alleged breach of any one or
more of such representations, in which case Pledgee's liability shall survive
with respect to the matters alleged in such claim until resolution thereof. For
purposes of this Agreement the term "material" shall mean (unless the context
clearly indicates otherwise) any fact or condition, the presence or absence of
which, has or could have a significant adverse effect on the financial condition
or value of the Collateral or the Property or the continued use and enjoyment
thereof.
SECTION 7. [INTENTIONALLY OMITTED]
SECTION 8. Distributions. (a) Upon the occurrence and continuation of
an Event of Default:
(i) All rights of Pledgor to receive Distributions and any
and all proceeds from the sale or other disposition of the Pledged Collateral
(or any portion thereof) which Pledgor would otherwise be authorized to receive
and retain shall cease, and all such rights shall thereupon become vested in
Pledgee, who shall thereupon have the right to receive and hold as Pledged
Collateral such Distributions and proceeds.
(ii) All Distributions and proceeds which are received by
Pledgor contrary to the provisions of paragraph (a) of this Section 8 shall be
received in trust for the benefit of Pledgee, shall be segregated from other
funds of Pledgor and shall be forthwith paid over to Pledgee as Pledged
Collateral in the same form as so received (with any necessary endorsement).
(iii) All Distributions received by Pledgor in a partial or
total liquidation of the Partnership shall, in the event that any of the
Obligations remain outstanding at the time of such partial or total liquidation,
be paid to Pledgee and applied by Pledgee to such outstanding Obligations.
(b) Unless and until an Event of Default shall have occurred and be
continuing, but subject to the provisions of the Partnership Agreement, Pledgor
shall be entitled to receive and retain any and all Distributions.
SECTION 9. Transfers and Other Liens, Additional Interests. Pledgor
agrees, so long as any of the Obligations are outstanding, not to:
(a) sell or otherwise dispose of, or grant any option or similar
right with respect to, any of the Pledged Collateral; or
(b) create or permit to exist any lien (other than the Loan),
security interest or other charge or encumbrance upon or with respect to any of
the Pledged Collateral.
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The foregoing shall not be deemed to prohibit any shareholder or partner
of Pledgor from entering into any agreement pursuant to which such shareholder
or partner personally guaranties the obligations of a third party with respect
to a transaction other than the transaction contemplated by the Loan Documents.
SECTION 10. Appointment of Attorney-in-Fact. Pledgor hereby appoints
Pledgee the attorney-in-fact for Pledgor, with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time in
Pledgee's discretion to take any action and to execute any instrument which
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
Distributions and any instruments made payable to Pledgor representing any
dividend, interest payment or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same. Pledgor
agrees that each of the foregoing powers constitutes a power coupled with an
interest which may not be revoked and which shall survive until all of the
Obligations shall have been indefeasibly paid in full and satisfied, provided
that except with respect to the execution and filing of the UCCs, the foregoing
shall not be effective until the occurrence of an Event of Default.
SECTION 11. Pledgee to Perform. If Pledgor fails to perform any
agreement contained herein, Pledgee may, following the occurrence of an Event of
Default, itself perform, or cause performance of, such agreement, and the
expenses of Pledgee incurred in connection therewith shall be payable by Pledgor
in accordance with Section 16 hereof.
SECTION 12. Remedies Upon Default. Upon the occurrence of any Event of
Default:
(a) Pledgee may, without any notice to Pledgor of the occurrence of
such Event of Default, except as otherwise expressly provided under the Loan
Documents, exercise in respect of the Pledged Collateral, in addition to the
other rights and remedies provided for herein or otherwise available to Pledgee,
all the rights and remedies of a secured party under the Code in effect at that
time, and Pledgee may also, without notice except as specified below, sell the
Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of Pledgee's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms
as Pledgee may deem commercially reasonable. Pledgor agrees that at least
twenty-one (21) days notice to Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. Pledgee shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. Pledgee may
adjourn any public or private sale from time to time to a date specified by
Pledgee, such date to be not less than five (5) Business Days after the date
upon which Pledgee notifies Pledgor of such adjourned sale date, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(b) Pledgee may, upon the exercise of its rights under Section 12(a)
hereof, transfer all or any part of the Pledged Collateral into Pledgee's name
or the name of its nominees.
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(c) Pledgee may vote all or any part of the Pledged Collateral
(whether or not transferred into the name of Pledgee) and give all consents,
waivers and ratifications in respect of the Pledged Collateral and otherwise act
with respect thereto as though it were the outright owner thereof (Pledgor
hereby irrevocably constituting and appointing Pledgee the proxy and
attorney-in-fact of Pledgor, with full power of substitution to do so).
(d) Any Pledged Collateral or proceeds thereof held by Pledgee as
Pledged Collateral and all proceeds thereof received by Pledgee in respect of
any sale of, collection from or other realization upon all or any part of the
Pledged Collateral may, in the discretion of Pledgee, be held by Pledgee as
collateral for, and/or then or at any time thereafter, be applied (after payment
of any amounts payable to Pledgee pursuant to Section 16 hereof), in whole or in
part by Pledgee for the benefit of Pledgor, against all or any part of the
Obligations and in such order as Pledgee shall elect. Any surplus of such
Pledged Collateral or proceeds thereof held by Pledgee and remaining after
payment or satisfaction in full of all of the Obligations and the expenses
referred to in Section 16 hereof shall be delivered or paid over to Pledgor or
to whomsoever may be lawfully entitled to receive such surplus.
(e) Each right, power and remedy of Pledgee provided for in this
Agreement or the other Loan Documents or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in addition
to every other such right, power or remedy. The exercise or beginning of the
exercise by Pledgee of any one or more of the rights, powers or remedies
provided for in this Agreement or the other Loan Documents or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Pledgee of all such other rights, powers or
remedies, and no failure or delay on the part of Pledgee to exercise any such
right, power or remedy shall operate as a waiver thereof.
SECTION 13. ARBITRATION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, THE LOAN AGREEMENT OR THE NOTE SHALL BE BROUGHT, AT PLEDGEE'S
OPTION, IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA, PHILADELPHIA COUNTY
OR OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. PLEDGOR
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS AS SET FORTH
ABOVE. PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF PLEDGEE
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
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LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST PLEDGOR IN ANY
OTHER JURISDICTION.
SECTION 14. Jury Trial Waiver/Arbitration.
(a) PLEDGOR AND PLEDGEE HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY DISPUTE BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT, THE LOAN AGREEMENT OR THE NOTE, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF PLEDGOR
OR PLEDGEE RELATING TO THE LOAN, AND THE LENDING RELATIONSHIP WHICH IS THE
SUBJECT OF THE NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR PLEDGEE
ENTERING INTO THIS AGREEMENT.
(b) In the event of a dispute under this Agreement; party shall have
the right to submit such dispute to binding arbitration under the Expedited
Procedures provisions (Rules E-1 through E-10 in the current edition) of the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"). In
cases where the parties utilize such arbitration: (i) the dispute shall be heard
by three (rather than one) arbitrators in Philadelphia, Pennsylvania, (ii) all
of the arbitrators on the list submitted by the AAA shall have reasonable
expertise and experience with respect to the commercial real estate market in
the Philadelphia, Pennsylvania area, (iii) the parties will have no right to
object if the appointed arbitrators were on the list submitted by the AAA and
were not objected to in accordance with Rule E-5, (iv) the arbitrators shall be
selected within three (3) Business Days following submission of such dispute to
arbitration, (v) the arbitrators shall render their final decision not later
than three (3) Business Days after the last hearing, (vi) the first hearing
shall be held within five (5) Business Days after the completion of discovery,
and the last hearing shall be held within fifteen (15) Business Days after the
appointment of the arbitrators, (v) any finding or determination of the
arbitrators shall be deemed final and binding (except that the arbitrators shall
not have the power to add to, modify or change any of the provisions of this
Agreement), and (vi) the losing party in such arbitration shall pay the
arbitration costs charged by AAA and/or the arbitrators.
SECTION 15. Appointment of Agent for Service of Process. Pledgor hereby
irrevocably appoints Xxxx Xxxxxxxxx, having an address of 0000 Xxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Process Agent", which has consented thereto),
as process agent to receive for and on behalf of Pledgor service of process in
the Commonwealth of Pennsylvania relating to this Agreement. Service of process
in any action or proceeding against Pledgor may be made on Process Agent by
registered or certified mail, return receipt requested, or by any other method
of service provided for under applicable laws in effect in the Commonwealth of
Pennsylvania. Process Agent is hereby authorized and directed to accept such
service for and on behalf of Pledgor and to admit service with respect thereto.
Such service upon Process Agent shall be deemed effective personal service on
Pledgor sufficient for personal jurisdiction three (3) days after mailing, and
shall be legal and binding upon Pledgor for all purposes, notwithstanding any
failure of Process Agent to mail copies of such legal process to Pledgor, or any
failure on the part of Pledgor to receive the same. Pledgor confirms that it has
instructed the applicable Process Agent to mail to Pledgor, upon service of
process being made on the
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applicable Process Agent pursuant hereto, a copy of the summons and complaint or
other legal process served upon them by registered mail, return receipt
requested, at Pledgor's address hereinabove set forth, or to such other address
as to which Pledgor may notify Process Agent in writing. Pledgor agrees that
Pledgor will at all times maintain a Process Agent to receive service of process
in the Commonwealth of Pennsylvania with respect to this Agreement. If for any
reason the Process Agent or any successor thereto shall no longer serve as such
Process Agent or shall have changed its address without notification thereof to
Pledgee, Pledgor, immediately after gaining knowledge thereof, irrevocably shall
appoint a substitute process agent acceptable to Pledgee in the Commonwealth of
Pennsylvania and advise Pledgee thereof.
SECTION 16. Expenses. Upon demand, Pledgor will pay to Pledgee the
amount of any and all expenses, including the reasonable fees and expenses of
Pledgee's counsel and of any experts and agents, which Pledgee may incur in
connection with (a) the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (b) the exercise or enforcement of any of Pledgee's
rights hereunder, or (c) the failure by Pledgor to perform or observe any of the
provisions hereof.
SECTION 17. Amendments, Waivers, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by Pledgor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by Pledgee, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 18. Notices. All notices or other written communications
hereunder shall be delivered in accordance with the terms of the Loan Agreement.
SECTION 19. Continuing Security Interest; Transfer. This Agreement shall
create a continuing security interest in the Pledged Collateral and shall (a)
remain in full force and effect until the indefeasible payment or satisfaction
in full of the Obligations, (b) be binding upon Pledgor, its respective
permitted transferees, representatives, successors and assigns, and (c) inure,
together with the rights and remedies of Pledgee hereunder, to the benefit of
Pledgee and its permitted transferees, representatives, successors and assigns.
Without limiting the generality of the foregoing clause (c), Pledgee, but not
Pledgor, may assign or otherwise transfer this Agreement together with the
Pledged Collateral, the Note and any other Obligations to any other Persons, and
such other Persons shall thereupon become vested with all the benefits in
respect thereof granted to Pledgee herein or otherwise. Upon the indefeasible
payment or satisfaction in full of the Obligations, (i) Pledgor shall be
entitled to the return, upon its request and at its expense, of such portion of
the Pledged Collateral as shall not have been sold or otherwise applied or
forfeited pursuant to the terms hereof, and (ii) this Agreement shall be of no
further force or effect.
SECTION 20. Severability. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement which are valid.
SECTION 21. Governina Law, Terms. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the Commonwealth of
Pennsylvania
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(without giving effect to principles of conflicts of law). Unless otherwise
defined herein, (a) terms defined in Article 9 of the Code are used herein as
therein defined, and (b) terms defined in the Loan Agreement are used herein as
therein defined.
SECTION 22. Recitals. The Recitals at the beginning of this Agreement
are hereby incorporated into the substantive provisions of this Agreement.
SECTION 23. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement. The failure of any party
to execute this Agreement, or any counterpart hereof, shall not relieve the
other signatories from their obligations hereunder.
SECTION 24. Certificated Securities. Pledgor has not and Pledgor will
not request the Partnership to issue or consent to the Partnership's issuance of
a certificate representing Pledgor's partnership interest in the Partnership.
[Signature Page Follows]
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IN WITNESS WHEREOF, Pledgor has caused this Agreement to be executed and
delivered by its duly authorized representative as of the date first set forth
above.
FIREHOUSE REALTY CORP.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
RIVER VIEW DEVELOPMENT CORP.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
SOUTH RIVER VIEW PLAZA, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
XXXX DEVELOPMENT ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
RIVERVIEW COMMONS, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
ACCEPTED AND AGREED TO:
CEDAR LENDER LLC
By: CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P.,
ITS MEMBER
By: CEDAR SHOPPING CENTERS,
INC.
ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGMENTS
COMMONWEALTH OF PENNSYLVANIA )
)
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003 before me, the undersigned Notary
Public, personally appeared Xxxx Xxxxxxxxx, who acknowledged himself to be the
President of FIREHOUSE REALTY CORP., a Pennsylvania corporation, and that he, as
such President, being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the corporation by himself
as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
---------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003, before me, the undersigned Notary
Public, personally appeared Xxxx Xxxxxxxxx, who acknowledged himself to be the
President of RIVER VIEW DEVELOPMENT CORP., a Pennsylvania corporation, and that
he, as such President, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
---------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003, before me, the undersigned Notary
Public, personally appeared Xxxx Xxxxxxxxx, who acknowledged himself to be the
President of SOUTH RIVER VIEW PLAZA, INC., a Pennsylvania corporation, and that
he, as such President being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
---------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003, before me, the undersigned Notary
Public, personally appeared Xxxx Xxxxxxxxx, who acknowledged himself to be the
President of XXXX DEVELOPMENT ASSOCIATES, INC., a Pennsylvania corporation, and
that he, as such President, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
---------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
)
COUNTY OF PHILADELPHIA )
AND NOW, this 31st day of October, 2003, before me, the undersigned Notary
Public, personally appeared Xxxx Xxxxxxxxx, who acknowledged himself to be the
Vice President of the RIVERVIEW COMMONS, INC., a Pennsylvania corporation, and
that he, as such Vice President, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by herself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
---------------------------------
Notary Public
My commission expires:
