EXHIBIT 10.37
PLEDGE AND SECURITY AGREEMENT
(MEMBERSHIP INTERESTS)
PLEDGE AND SECURITY AGREEMENT ("PLEDGE AGREEMENT"), dated as of May
13, 2002, made by ▇▇▇▇▇▇▇▇ CENTENNIAL PARTNERS, L.P., a Texas limited
partnership (the "PLEDGOR") in favor of ▇▇▇▇-▇▇▇▇ PROPERTY TRUST, a Maryland
business trust (together with its successors and assigns the "MEZZANINE
LENDER").
W I T N E S S E T H
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company as lender ("SENIOR
LENDER") is making 3 loans in the aggregate principal amount of $27,200,000 (the
"SENIOR LOAN") evidenced by 3 Promissory Notes dated as of the date hereof
(collectively, the "SENIOR NOTE"), made by Brookview Partners, L.P., a Texas
limited partnership (the "PROPERTY OWNER"), which Senior Note is secured by,
among other things, the Mortgage Loan Documents (as such term is defined in the
Mezzanine Loan Agreement);
WHEREAS, pursuant to that certain Mezzanine Loan Agreement of even
date herewith (as amended, supplemented or otherwise modified from time to time
the "MEZZANINE LOAN AGREEMENT"), by and between the Pledgor, ASHWOOD AMERICAN
PARTNERS MC DALLAS, L.P., a Texas limited partnership and Mezzanine Lender,
Mezzanine Lender has agreed to make a loan in the aggregate principal amount of
FIVE MILLION AND 00/100 DOLLARS ($5,000,000) (the "MEZZANINE LOAN") to Mezzanine
Borrower upon the terms and subject to the conditions set forth therein,
evidenced by the Promissory Note executed by Mezzanine Borrower thereunder (the
"NOTE") and secured by this Pledge Agreement and the other Mezzanine Loan
Documents (as such term is defined in the Mezzanine Loan Agreement);
WHEREAS, it is a condition precedent to the obligation of Mezzanine
Lender to make the Mezzanine Loan that Pledgor shall have executed and delivered
this Pledge Agreement to Mezzanine Lender; and
WHEREAS, Pledgor is the legal and beneficial owner of 50% of the
membership interests in Brookview Associates, LLC, a Texas limited liability
company which is the sole general partner of Property Owner ("COMPANY").
NOW, THEREFORE, in consideration of the premises and to induce
Mezzanine Lender to make the Mezzanine Loan, Pledgor hereby agrees with
Mezzanine Lender as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
shall have the meanings given to them in the Mezzanine Loan Agreement. As used
herein the following terms shall have the following meanings:
"CERTIFICATE OF FORMATION": means the certificate of formation of
Company filed on May 2, 2002 with the Secretary of State of Texas.
"CODE": shall have the meaning given to the term "UCC" in the
Mezzanine Loan Agreement.
"COMPANY": as defined in the Recitals of this Agreement.
"MEZZANINE BORROWER": as defined in the Recitals of this Agreement.
"MEZZANINE LENDER": as defined in the first paragraph hereto.
"MEZZANINE LOAN": as defined in the Recitals of this Agreement.
"MEZZANINE LOAN AGREEMENT": as defined in the Recitals of this
Agreement.
"NOTE": as defined in the Recitals of this Agreement.
"OBLIGATIONS": means the unpaid principal of and interest and
additional interest on the Note and all other obligations and liabilities of
Mezzanine Borrower to Mezzanine Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Mezzanine Loan Agreement,
the Note, this Pledge Agreement and any other Mezzanine Loan Document made,
delivered or given in connection therewith or herewith, whether on account of
principal, interest, additional interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all reasonable fees
and disbursements of outside counsel to Mezzanine Lender) or otherwise.
"OPERATING AGREEMENT": means the Limited Liability Company Agreement
of Company dated as of May 2, 2002.
"PERMITTED DISTRIBUTIONS": as defined in Paragraph 4(a) herein.
"PLEDGE AGREEMENT": means this Pledge and Security Agreement, as
amended, supplemented or otherwise modified from time to time.
"PLEDGE COLLATERAL": means the Pledged Interests and all Proceeds.
"PLEDGED INTERESTS": means the Pledged Membership Interests, together
with all interest certificates, options or rights of any nature whatsoever which
may be issued or granted by Company to the Pledgor while this Pledge Agreement
is in effect.
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"PLEDGED MEMBERSHIP INTERESTS": means the membership interests of
Pledgor in Company listed on SCHEDULE 1 hereto, together with all membership
interest certificates, shares, claims, powers, privileges, benefits, remedies,
options or rights of any nature whatsoever which may currently exist or be
issued or granted by Company to Pledgor with respect to or on account of such
membership interests while this Agreement is in effect.
"PLEDGOR": as defined in the first paragraph hereto.
"PROCEEDS": means (i) Pledgor's share, right, title and interest in
and to all distributions, monies, fees, payments, compensations and proceeds now
or hereafter becoming due and payable to Pledgor by Company 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(64) of the Code; (ii) all contract rights, general intangibles, claims,
powers, privileges, benefits and remedies of Pledgor relating to the foregoing;
and (iii) all cash or non-cash proceeds of any of the foregoing; PROVIDED,
HOWEVER, that in no event shall Permitted Distributions be deemed included in
this definition.
"PROPERTY OWNER": as defined in the Recitals of this Agreement.
"SENIOR LENDER": as defined in the Recitals of this Agreement.
"SENIOR LOAN": as defined in the Recitals of this Agreement.
"SENIOR NOTE": as defined in the Recitals of this Agreement.
2. PLEDGE; GRANT OF SECURITY INTEREST. Pledgor hereby pledges and grants
to Mezzanine Lender a first priority continuing security interest in the Pledged
Interests and other Pledge Collateral, as security for the complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations. Company has evidenced its acknowledgment and
consent to the pledge and grant given hereby, by the execution and delivery of
the Acknowledgment and Consent attached hereto as EXHIBIT A.
3. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants as of
the date hereof as follows:
(a) no consent which has not been obtained of any Person (including,
without limitation, any owner or creditor of Pledgor or Company) is
required in connection with the execution, delivery, performance, validity
or enforceability of this Pledge Agreement;
(b) all of the Pledged Membership Interests have been duly and validly
issued and are fully paid and nonassessable;
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(c) the membership interests listed on SCHEDULE 1 hereto constitute all the
issued and outstanding limited liability company membership interests in
Company. SCHEDULE 1 sets forth a complete and accurate list of all the
interests of all of the members of Company;
(d) Pledgor is the record and beneficial owner of, and has good and
marketable title to, the Pledged Membership Interests, in each case free of
any and all liens or options in favor of, or claims of, any other Person,
except the lien created by this Agreement;
(e) upon the filing of all required UCC financing statements referred to in
Section 10, the lien granted pursuant to this Pledge Agreement in the
Pledged Membership Interests and other Pledge Collateral will constitute a
valid, perfected first priority security interest in the Pledged Membership
Interests and Pledge Collateral, enforceable as such against all creditors
of Pledgor and any Persons purporting to purchase any Pledged Membership
Interests or other Pledge Collateral from Pledgor, subject to bankruptcy,
insolvency, and other limitations on creditors' rights generally and to
general equitable principles;
(f) Pledgor is duly organized and 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;
(g) Pledgor 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 Pledgor, enforceable in accordance with its terms subject to bankruptcy,
insolvency, and other limitations on creditors' rights generally and to
general equitable principles;
(h) Pledgor has not received any written notice of material default which
is still outstanding under any agreement or instrument to which it is a
party or by which it or Company may be bound which alleges a default that
would have a materially adverse effect on its business, assets, property or
financial or other condition, except for such matters in respect of the
Property as to which Mezzanine Lender's Affiliate has given the Property
Owner or its Affiliate written notice. Pledgor is not in material default
under any order, judgment, award or decree of any court, arbitrator or
other governmental authority binding upon or affecting it or by which it or
Company may be bound or affected, which alleges a default that would have a
materially adverse effect on its business, assets, property or financial or
other condition;
(i) neither the execution and delivery of this Pledge Agreement nor the
compliance by 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
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constitute, on the part of Pledgor, a violation of or conflict with, or
result in any material breach of, or material default under, the terms,
conditions or provisions of, or require any consent, permit, approval,
authorization, declaration or filing which has not been made or obtained
under or pursuant to, any statute, law, judgment, decree, order, rule or
regulation applicable to Pledgor, the organizational and charter documents
of Pledgor, or any other agreement or instrument to which Pledgor is a
party or by which Pledgor or Company is bound, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever on
any of the assets of Pledgor, in each case which could have a materially
adverse effect on its business, assets, property or financial or other
condition;
(j) there are no judgments presently outstanding and unsatisfied against
Pledgor or Company, and neither Pledgor nor Company is a party to or the
subject of any actions or suits or proceedings in equity or by any
governmental authorities, and no such litigation or proceeding has been
threatened in writing against any Pledgor or against Company, and nor has
Pledgor received written notice that any investigation in contemplation of
such litigation or proceeding has begun or is pending; and
(k) the exact legal name of Pledgor is as set forth on page one hereof; the
state of formation of Pledgor is as set forth on page one hereof; and the
principal place of business of Pledgor is ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
4. COVENANTS. Pledgor covenants and agrees with Mezzanine Lender that,
from and after the date of this Pledge Agreement and until the Obligations are
paid in full:
(a) If Pledgor shall, as a result of its ownership of the Pledged
Interests, become entitled to receive or shall receive any equity or other
ownership interest, option or rights, 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, Pledgor shall accept the same
as Mezzanine Lender's agent, hold the same in trust for Mezzanine Lender
and deliver the same forthwith to Mezzanine Lender in the exact form
received, duly endorsed by Pledgor to Mezzanine Lender, if required,
together with an undated assignment or power covering such certificate,
duly executed in blank and with, if Mezzanine Lender so requests, signature
guaranteed, to be held by Mezzanine Lender hereunder as additional Pledge
Collateral security for the Obligations. Any sums paid upon or in respect
of the Pledged Interests upon the liquidation or dissolution of Company
shall be paid over to Mezzanine Lender to be applied against the
Obligations in such order and priority as may be determined by Mezzanine
Lender (and otherwise subject to the terms of the Mezzanine Loan
Agreement), and in case any distribution of capital shall be made on or in
respect of the Pledged Interests or any property shall be
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distributed upon or with respect to the Pledged Interests pursuant to the
recapitalization or reclassification of the capital of Company or pursuant
to the reorganization of Company, the property so distributed shall be
delivered to Mezzanine Lender to be held by it, subject to the terms
hereof, as additional Pledge Collateral security for the Obligations. If
any sums of money or property so paid or distributed in respect of the
Pledged Interests shall be received by Pledgor, then Pledgor shall, until
such money or property is paid or delivered to Mezzanine Lender, hold such
money or property in trust for Mezzanine Lender, segregated from other
funds of Pledgor as additional Pledge Collateral security for the
Obligations. Notwithstanding anything in this Pledge Agreement to the
contrary, as long as no Event of Default shall have occurred and be
continuing, Mezzanine Borrower shall be permitted to make cash
distributions (collectively, "PERMITTED DISTRIBUTIONS") permitted by the
Mezzanine Loan Agreement.
(b) Without the prior written consent of Mezzanine Lender and except for
the Permitted Transfers under the Mezzanine Loan Agreement, Pledgor will
not, directly or indirectly (i) vote to enable, or take any other
affirmative action to permit, Company 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 Company, or (ii)
Transfer, exchange or otherwise dispose of, or grant any option with
respect to, the Pledge Collateral, or (iii) affirmatively create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Pledge Collateral, or any interest therein,
except for the lien provided for by this Pledge Agreement. Pledgor will
defend the right, title and interest of Mezzanine Lender in and to the
Pledge Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
Mezzanine Lender, Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as
Mezzanine Lender may reasonably request for the purposes of obtaining,
maintaining 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 Pledge Collateral shall be or become evidenced
by any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to Mezzanine
Lender, duly endorsed in a manner satisfactory to Mezzanine Lender, to be
held as Pledge Collateral pursuant to this Pledge Agreement.
(d) Pledgor agrees to pay, and to indemnify and save Mezzanine Lender
harmless from, any and all losses, costs and liabilities (including,
without limitation, attorneys' fees and costs) with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or
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determined to be payable with respect to any of the Pledge Collateral or in
connection with any of the transactions contemplated by this Pledge
Agreement.
(e) Pledgor shall not (and Mezzanine Lender does not authorize Pledgor to)
make any sales, leases or licenses of any of the Pledge Collateral or grant
any other security interest in any of the Pledge Collateral.
(f) Pledgor shall not be permitted to amend the Operating Agreement or the
Certificate of Formation of Pledgor or the Company except as otherwise set
forth in Section 6.1(a) of the Mezzanine Loan Agreement.
(g) Pledgor shall perform all of its obligations under the Operating
Agreement in all material respects.
5. CASH DIVIDENDS; VOTING RIGHTS. (a) Unless an Event of Default shall
have occurred and be continuing, Pledgor shall be permitted to exercise all
voting rights with respect to the Pledged Interests, PROVIDED, HOWEVER, that no
vote shall be cast or other action taken which would result in a material
violation of any provision of this Pledge Agreement or the Mortgage Loan
Documents.
(b) Unless an Event of Default shall have occurred and be continuing,
Pledgor shall be permitted to receive and use (including making distribution of)
Permitted Distributions. Any and all cash dividends or distributions received by
Pledgor after Mezzanine Lender delivers to Pledgor written notice of an Event of
Default, shall be held in trust for Mezzanine Lender as provided herein and,
unless Mezzanine Lender shall otherwise agree in writing, shall be paid to
Mezzanine Lender for application to the Obligations within one (1) Business Day
after receipt of such written notice by Pledgor.
6. RIGHTS OF MEZZANINE LENDER. (a) If an Event of Default shall occur and
be continuing, Mezzanine Lender shall have the right to receive any and all
distributions of property and any and all amounts paid in respect of the Pledged
Interests, in each case, from and after the occurrence of such Event of Default,
and make application thereof to the Obligations, in such order as Mezzanine
Lender, in its sole discretion, may elect. If an Event of Default shall occur
and be continuing, then all such Pledged Interests at Mezzanine Lender's option
shall be registered in the name of Mezzanine Lender or its nominee, and
Mezzanine Lender 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 it 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
Company, or upon the exercise by Pledgor or Mezzanine Lender 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
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such terms and conditions as it may determine), all without liability except to
account for property actually received by it, but Mezzanine Lender 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.
(b) The rights of Mezzanine Lender hereunder shall not be conditioned or
contingent upon the pursuit by Mezzanine Lender of any right or remedy against
Company or against any other Person which may be or become liable in respect of
all or any part of the Obligations or against any other Pledge Collateral
security therefor, guarantee thereof or right of offset with respect thereto.
Mezzanine Lender shall not be liable for any failure to demand, collect or
realize upon all or any part of the Pledge Collateral or for any delay in doing
so, nor shall it be under any obligation to sell or otherwise dispose of any
Pledge Collateral upon the request of Company or any other Person or to take any
other action whatsoever with regard to the Pledge Collateral or any part
thereof. Pledgor waives any right it may have to require Mezzanine Lender to
pursue any third party for any of the Obligations.
7. REMEDIES. If an Event of Default shall occur and be continuing,
Mezzanine Lender may exercise, in addition to all other rights and remedies
granted in this Pledge Agreement, the other Mezzanine Loan Documents and in any
other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, Mezzanine Lender, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by the Mezzanine Loan Agreement or
applicable law or referred to herein) to or upon Pledgor, Company or any other
Person (all and each of which demands, presentments, protests, advertisements or
notices or other defenses, are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Pledge Collateral,
or any part thereof, and/or may forthwith sell, assign, give option or options
to purchase or otherwise dispose of and deliver the Pledge 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 Mezzanine Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. Mezzanine Lender shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Pledge Collateral so sold, free of any
right or equity of redemption in Company, which right or equity is hereby waived
or released. Mezzanine Lender 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 Pledge Collateral or in any way relating to the Pledge Collateral
or the rights of Mezzanine Lender hereunder, including, without limitation,
reasonable attorneys' fees and costs, to the payment in
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whole or in part of the Obligations, in such order as Mezzanine Lender may
elect, and only after such application and after the payment by Mezzanine Lender
of any other amount required by any provision of applicable law, including,
without limitation, the Code, need Mezzanine Lender account for the surplus, if
any, to Pledgor. To the extent permitted by applicable law, Pledgor waives all
claims, damages and demands it may acquire against Mezzanine Lender arising out
of the exercise by Mezzanine Lender of any of its rights hereunder, except for
any claims, damages and demands it may have against Mezzanine Lender arising
from the gross negligence or willful misconduct of Mezzanine Lender. Notice of a
proposed sale or other disposition of Pledge Collateral shall be deemed to be a
reasonable notification if given at least ten (10) days before such sale or
other disposition. Mezzanine Borrower shall remain liable for any deficiency if
the proceeds of any sale or other disposition of Pledge Collateral are
insufficient to pay the Obligations and the reasonable fees and costs of any
attorneys employed by Mezzanine Lender to enforce its rights and remedies
hereunder. Mezzanine Lender may comply with any applicable state or federal law
requirements in connection with a disposition of the Pledge Collateral and
compliance therewith will not be considered adversely to affect the commercial
reasonableness of any sale of the Pledge Collateral. Mezzanine Lender may sell
the Pledge Collateral without giving any warranties as to the Pledge Collateral.
Mezzanine Lender may specifically disclaim any warranties of title or the like,
and such disclaimer shall not be deemed adversely to affect the commercial
reasonableness of any sale of the Pledge Collateral. If Mezzanine Lender sells
any of the Pledge Collateral upon credit, Pledgor will be credited only with
payments actually made by the purchaser received by Pledgor and applied to the
indebtedness of the purchaser. In the event the purchaser fails to pay for the
Pledge Collateral, Mezzanine Lender may recall the Pledge Collateral and Pledgor
shall be credited with the proceeds of any resale thereof following payment by
the new purchaser. In the event Mezzanine Lender purchases any of the Pledge
Collateral being sold, Mezzanine Lender may pay for the Pledge Collateral by
crediting some or all of the Obligations.
8. PRIVATE SALES. If an Event of Default shall have occurred and be
continuing:
(a) Company and Pledgor recognize that Mezzanine Lender 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. Company and Pledgor acknowledge and
agree that any such private sale may result in prices and other terms less
favorable to Mezzanine Lender than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner. Mezzanine
Lender shall be under no obligation to delay a sale of any of the
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Pledged Interests for the period of time necessary to permit Company to
register such securities for public sale under the Securities Act of 1933,
as amended, or under applicable state securities laws, even if Company
would agree to do so.
(b) If an Event of Default shall have occurred and be continuing, Pledgor
further agrees to use reasonable efforts to do or cause to be done all such
other acts as may be reasonably requested to make any sale or sales of all
or any portion of the Pledged Interests pursuant to this paragraph 8 valid
and binding and in compliance with any and all other applicable
requirements of law. Pledgor further agrees that a breach of any of the
covenants contained in this paragraph 8 will cause irreparable injury to
Mezzanine Lender, that Mezzanine Lender has no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this paragraph 8 shall be specifically enforceable against
Pledgor, and to the maximum extent permitted by applicable law, Pledgor
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 under the Mezzanine Loan Agreement.
9. LIMITATION ON DUTIES REGARDING PLEDGE COLLATERAL. Pledgor has the risk
of loss of the Pledge Collateral. Mezzanine Lender's sole duty with respect to
the custody, safekeeping and physical preservation of the Pledge Collateral in
its possession shall be to deal with it in the same manner as Mezzanine Lender
deals with similar securities and property for its own account. Neither
Mezzanine Lender nor any of its directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Pledge
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Pledge Collateral upon the request of Pledgor or
otherwise.
10. UCC FINANCING STATEMENTS. Pledgor authorizes Mezzanine Lender from
time to time to file UCC financing statements, continuation statements and any
and all other financing statements necessary or desirable to evidence, perfect
or continue the lien and security interest in the Pledge Collateral granted by
Pledgor to Mezzanine Lender pursuant to this Pledge Agreement. Such filings
shall be made in any and all jurisdictions required by Mezzanine Lender.
11. CERTAIN UNDERSTANDINGS OF PARTIES; REGISTRATION OF PLEDGE; CONTROL OF
PLEDGED PLEDGE COLLATERAL, ETC. (a) (i) The parties acknowledge and agree that
the Pledged Membership Interests constitute "general intangibles" (as defined in
Section 9-102 of the Code); and (ii) Pledgor therefore covenants and agrees that
(A) the Pledged Membership Interests are not and will not be traded, dealt in or
traded on securities exchanges or securities markets, (B) the terms of the
Pledged Membership Interests do not and will not provide that they are
securities governed by the Code, and (C) the Pledged Membership Interests are
not and will not be investment company securities within the meaning of Section
8-103 of the Code as in effect in any jurisdiction.
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(b) REGISTRATION OF PLEDGE; CONTROL OF PLEDGE COLLATERAL. Notwithstanding
the foregoing, to better assure the perfection of the security interest of
Mezzanine Lender in the Pledged Membership Interests, concurrently with the
execution and delivery of this Agreement, Pledgor shall send written
instructions in the form of EXHIBIT B hereto to each issuer thereof (the
"ISSUER"), and shall cause the Issuer to, and the Issuer shall, deliver to
Mezzanine Lender the Confirmation Statement and Instruction Agreement in the
form of EXHIBIT C hereto pursuant to which the Issuer will confirm that it has
registered the pledge effected by this Agreement on its books and agrees to
comply with the instructions of Mezzanine Lender in respect of the Pledged
Membership Interests without further consent of Pledgor or any other Person.
Notwithstanding anything in this paragraph neither the written instructions nor
the Confirmation Statement and Instruction Agreement shall be construed as
expanding the rights of Mezzanine Lender to give instructions with respect to
the Pledge Collateral beyond such rights set forth in this Agreement. From time
to time, Pledgor shall promptly provide replacement written instructions in the
form of EXHIBIT B hereto to each Issuer and shall cause the Issuer to, and the
Issuer shall, deliver to Mezzanine Lender the Confirmation Statement and
Instruction Agreement in the form of EXHIBIT C to each assignee or Pledge
Collateral assignee of Mezzanine Lender, as reasonably requested by Mezzanine
Lender.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and agencies and
powers herein contained with respect to the Pledge Collateral are irrevocable
and coupled with an interest.
13. 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 prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. PARAGRAPH HEADINGS. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. NO WAIVER; CUMULATIVE REMEDIES. Mezzanine Lender shall not by any act
(except by a written instrument pursuant to paragraph 16 hereof) 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 or granted any right
of indulgence or any right of delay. No failure to exercise, nor any delay in
exercising, on the part of Mezzanine Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by Mezzanine Lender of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Mezzanine Lender
would otherwise have on any future occasion. The rights and remedies herein
provided
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are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
16. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW; VENUE.
This Pledge Agreement shall be binding upon the respective successors and
assigns of Pledgor and all Persons who become bound as a debtor (within the
meaning of the Code) to this Pledge Agreement and shall inure to the benefit of
Mezzanine Lender, its successors and assigns. The rights of Mezzanine Lender
under this Pledge Agreement shall automatically be transferred to any transferee
to which Mezzanine Lender transfers the Note and Mezzanine 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 Indebtedness and the legality of the
interest rate and other charges shall be construed and enforced in accordance
with the internal laws of the State of New Jersey (without regard to conflict of
laws principles) except to the extent that the Code requires the application of
the law of another jurisdiction with respect to the perfection, priority or
enforcement of the security interest granted hereby. Pledgor agrees to submit to
non-exclusive personal jurisdiction in Essex County, in the State of New Jersey
and in any action or proceeding arising out of this Pledge Agreement and, in
furtherance of such agreement, Pledgor hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Pledgor in any such action or proceeding may be obtained within or without the
jurisdiction of any court located in the State of New Jersey 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 Pledgor by registered or
certified mail to or by personal service at the last known address of Pledgor,
whether such address be within or without the jurisdiction of any such court.
17. EXECUTIVE OFFICES. Pledgor shall not change (i) its limited
partnership existence whether by merger, consolidation or otherwise, or (ii) its
name, in any case, unless it shall have given Mezzanine Lender at least thirty
(30) days prior written notice thereof. Under no circumstances shall Pledgor
change its state of formation.
18. NOTICES. Notices by Mezzanine Lender to Company or Pledgor to be
effective shall be given in accordance with the provisions of the Mezzanine Loan
Agreement, and if given to Company shall be addressed to the address set forth
in the Acknowledgment and Consent attached hereto.
19. IRREVOCABLE AUTHORIZATION AND INSTRUCTION. Pledgor hereby authorizes
and instructs Company and any servicer to comply with any instruction received
by it from Mezzanine Lender in writing that (a) states that an Event of Default
has occurred and is continuing and (b) is otherwise in accordance with the terms
of this Pledge Agreement, without any other or further instructions from
Pledgor, and Pledgor agrees that Company shall be fully protected in so
complying.
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20. SPECIAL PURPOSE ENTITY. Mezzanine Borrower hereby represents and
warrants to and covenants and agrees with Mezzanine Lender that it shall observe
and perform with respect to itself all of the representations, warranties and
covenants with respect to Mezzanine Borrower set forth in Sections 5.1(o) and
6.1 of the Mezzanine Loan Agreement, all with the same force and effect as if
fully set forth herein.
21. NO ORAL CHANGE; ENTIRE UNDERSTANDING. This Agreement may be modified,
amended or changed only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought. No waiver of any term, covenant or provision
of this Agreement shall be effective unless given in writing by Mezzanine Lender
and if so given by Mezzanine Lender shall be effective only in the specific
instance in which given. Mezzanine Lender acknowledges that this Pledge
Agreement, the Note, and the other Mezzanine Loan Documents set forth the entire
agreement and understanding of Mezzanine Lender and Mezzanine Borrower with
respect to the Mezzanine Loan and that no oral or other agreements,
understanding, representation or warranties exist with respect to the Mezzanine
Loan, other than those set forth in this Pledge Agreement, the Note, and the
other Mezzanine Loan Documents.
22. NON-RECOURSE. The obligations of Mezzanine Borrower under this
Agreement, and the rights of Mezzanine Lender against Mezzanine Borrower's
constituents and other Persons, shall be limited by the provisions of Section
8.15 of the Mezzanine Loan Agreement, the provisions of which are incorporated
herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
PLEDGOR: ▇▇▇▇▇▇▇▇ CENTENNIAL PARTNERS, L.P.
By: ▇▇▇▇▇▇▇▇ CENTENNIAL, L.L.C.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
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