AGREEMENT AND ACKNOWLEDGMENT OF PLEDGE
The undersigned hereby agrees, acknowledges and consents as of the 22 day of
November, 2002, to the execution and delivery to SWH FUNDING CORP., a New Jersey
corporation (together with its successors, assigns and participants, "Lender"),
of that certain Pledge and Security Agreement by CEDAR INCOME FUND PARTNERSHIP,
L.P., a Delaware limited partnership ("Pledgor"), as of even date herewith (the
"Pledge"), as collateral security for the payment and performance of the
Obligations (as defined in the Pledge) under the Pledgor Guaranty (as defined in
the Pledge), and the assignment and pledge under the Pledge to Lender by Pledgor
of all of its right, title and interest in and to the Pledged Collateral (as
defined in the Pledge) which includes, inter alia, the Holdings Collateral (as
defined in the Pledge). All capitalized terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to such terms in the Pledge.
The undersigned shall cause all of its books and records to reflect the pledge
by Pledgor of the Holdings Collateral to Lender and agrees not to consent to or
to permit any transfer of the Holdings Collateral or any other action that may
be taken by Pledgor that might constitute a breach of any term or condition of
the Pledge or any Event of Default so long as any Obligations remain
outstanding, except in accordance with and subject to the terms and conditions
of the Pledge. The undersigned represents and warrants that (a) the execution
and delivery of the Pledge does not violate any of the undersigned's
organizational documents or any other agreement to which the undersigned is a
party or by which any of the property of the undersigned is bound, (b) Pledgor's
ownership interest in the undersigned is as set forth in the Pledge and such
ownership interest in the undersigned is not subject to any claim, lien or
encumbrance whatsoever of any kind or nature, and (c) the undersigned does not
have any claim, right of offset, or counterclaim against Pledgor or with respect
to the Holdings Collateral or otherwise under any of the undersigned's
organizational documents, and Pledgor is not in default to the undersigned or
otherwise under or in respect of any of its obligations under any of the
undersigned's organizational documents. The undersigned agrees that Lender
and/or its representatives may at any time during reasonable business hours
inspect the books, records and properties of the undersigned, and the
undersigned shall, so long as any Obligations remain outstanding, at least five
(5) Business Days prior to the time any Holdings Collateral are proposed to be
made, give written notice thereof to Lender as provided in the Pledge.
Notwithstanding the security interests of Lender in the Holdings Collateral,
Lender shall have no obligation or liability whatsoever to the undersigned, or
any member thereof, or any creditor or other person having any relationship,
contractual or otherwise, with the undersigned, nor shall Lender be obligated to
perform any of the obligations or duties of Pledgor under any of the
undersigned's organizational documents, or to take any action to collect or
enforce any claim for payment due Pledgor arising thereunder. The undersigned
acknowledges that the security interests of Lender in the Holdings Collateral
and all of Lender's rights and remedies under the Pledge may be transferred or
assigned by Lender to the extent permitted by the Pledge. In the event of any
such transfer or assignment, all of the provisions of this Agreement and
Acknowledgment of Pledge shall inure to the benefit of the transferees,
successors, assigns and/or participants of Lender. The provisions of this
Agreement and Acknowledgment of Pledge shall likewise be binding upon any and
all permitted successors and/or assigns of the undersigned.
The undersigned hereby agrees that it shall comply with all written instructions
originated by Lender concerning the Holdings Collateral and the rights of Lender
granted under the Pledge, in accordance with the Pledge, without further consent
of Pledgor and that, during the existence of an Event of Default, (a) all
Distributions with respect to the Holdings Collateral will be paid directly to
Lender until the Obligations have been paid and/or satisfied in full, (b) Lender
shall have the sole and exclusive right to exercise all powers of ownership
pertaining to such Holdings Collateral and the rights of Lender granted under
the Pledge and (c) Lender may take any reasonable action which Lender may deem
necessary for the maintenance, preservation and protection of any of the
Holdings Collateral and the rights of Lender granted under the Pledge or
Lender's security interests therein, including, without inflation, the right to
declare any or all Obligations to be immediately due and payable without demand
or notice and the right to transfer any of the Holdings Collateral and the
rights of Lender granted under the Pledge into Lender's name or the name of any
designee or nominee of Lender.
The undersigned shall, from time to time, at the undersigned's expense, promptly
execute and deliver such further instruments, documents and agreements, and
perform such further acts as may be necessary or proper to carry out and effect
the terms of the Pledge and this Agreement and Acknowledgment of Pledge.
This Agreement and Acknowledgment of Pledge shall constitute a "control
agreement" under the revised Article 9 of the Uniform Commercial Code and is
being given to induce Lender to accept the Pledge and to make the Loan and with
the understanding that Lender will rely hereon. This Agreement and
Acknowledgment of Pledge is being given to induce Lender to accept the Pledge
and to make the Loan and with the understanding that Lender will rely hereon.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has caused this Agreement and Acknowledgment
of Pledge to be duly executed and delivered as of the date first above written.
CEDAR CENTER HOLDINGS, L.L.C. 3,
a Delaware limited liability company
By: Cedar Income Fund Partnership, L.P.,
a Delaware limited partnership,
Managing Member
By: Cedar Income Fund, Ltd.,
a Maryland corporation,
General Partner
By:
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Name: Xxx X. Xxxxxx
Title: President
