Preview
FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024
Exhibit K-1
FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated April 22, 2021 (together
with any amendments or modifications hereto in effect from time to time, the “Agreement”),
among CPIF LENDING, LLC, a Washington limited liability company (“Secured Party”),
and 14 VESEY STREET PARTNERS (DEL) LLC, a Delaware limited liability company
(“Debtor”).
Secured Party has made a loan available to JTRE 14 Vesey LLC, a Delaware
limited liability company (the “Borrower”), in the principal amount of up to Eighteen Million
Fifty Thousand and 00/100 Dollars ($18,050,000.00) (the “Loan”). Debtor is the sole member
of the Borrower. The Loan is evidenced by an Acquisition Loan Agreement, Consolidated,
Amended and Restated Promissory Note (Acquisition Loan) and all other documents entered into
on or about the date hereof in connection with the Loan from Borrower in favor of and Secured
Party (as amended, collectively, the “Loan Documents”).
The Secured Party requires this Agreement as a condition to making the Loan
available to Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Secured Party and Debtor, intending to be legally
bound, agree, under seal, as follows:
1. DEFINITIONS.
1.1. “Borrower’s Organizational Documents” means the organizational documents
of Borrower.
1.2. “Collateral” means all of Debtor’s right, title and interest in and to Borrower and
under Borrower’s Organizational Documents, as the same may be amended from time to time,
including, without limitation, any and all cash flow, profits, distributions, dividends, capital
accounts, depreciation, losses, rights of substitution, voting rights, and any document or
certificate representing or evidencing Debtor’s rights and interests in the Borrower, whether now
existing or hereafter acquired, and all proceeds and products thereof; provided however, the
“Collateral” shall not include distributions made to Debtor to pay taxes, insurance, debt service
on the Loan and other carry costs of the Borrower, as approved by Secured Party.
1.3. “Liabilities” means, collectively, as relating to the Loan and the Loan
Documents: (i) the repayment of all sums due under the Loan Documents (and all extensions,
renewals, replacements, substitutions, amendments and modifications thereof); (ii) the
performance of all terms, conditions and covenants set forth in the Loan Documents; and (iii) all
obligations and indebtedness of every kind and description of Borrower to Secured Party,
whether primary or secondary, absolute or contingent, direct or indirect, sole, joint or several,
secured or unsecured, due or to become due, contractual or tortious, arising by operation of law
or otherwise, or now or hereafter existing, and whether incurred by Borrower as principal, surety,
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endorser, guarantor, accommodation party or otherwise, including, without limitation, principal,
interest, fees, late charges and expenses, including attorneys’ fees.
2. PLEDGE AND SECURITY AGREEMENT.
2.1. Generally. As security for the payment and performance of the Liabilities,
Debtor hereby pledges, assigns, transfers, delivers and sets over to Secured Party, and grants to
Secured Party a security interest in, the Collateral. Debtor hereby agrees that this Agreement is a
security agreement and creates in Secured Party a security interest hereunder in the Collateral.
2.2. Financing Statements. Debtor hereby authorizes, at its cost and expense,
Secured Party to file any financing statements, continuation statements and other documents
which Secured Party may reasonably require from time to time to perfect and maintain in favor
of Secured Party a first priority security interest in the Collateral or to obtain the full benefits of
this Agreement. Without limiting the generality of the foregoing, effective only upon the
occurrence of an Event of Default under the Loan Documents, Debtor hereby irrevocably
appoints Secured Party as Debtor’s attorney-in-fact, with full power of substitution or revocation,
to execute any endorsements, assignments, transfers, certificates and any other instruments
necessary to effectuate the intent or purposes of this Agreement.
2.3. Event of Default. So long as no Event of Default exists, Debtor shall have the
right to retain, use and enjoy the benefits of the Collateral, subject at all times to this Agreement.
Debtor at all times shall remain solely liable to perform any and all duties or obligations of
Debtor under any agreement relating to the Borrower or with respect to the Collateral, unless
Secured Party elects in writing, in its sole discretion and during the existence of an Event of
Default, to succeed to Debtor’s right, title and interest thereunder, and following any such
assignment and assumption, Secured Party shall continue to have no liability for any act or
omission occurring prior to the time of such assignment and assumption.
3. REPRESENTATIONS AND WARRANTIES.Debtor represents and warrants as of the
date hereof and, unless otherwise indicated, at all times hereafter until the Liabilities are fully
paid and performed, as follows:
3.1. Organization, Powers. If Debtor is an entity, Debtor (i) is an entity duly formed
or organized, validly existing and in good standing under the laws of its state or commonwealth
of organization, and is authorized to do business in each other jurisdiction wherein its ownership
of property or conduct of business legally requires such authorization; (ii) has the power and
authority to own its properties and assets and to carry on its business as now being conducted
and as now contemplated; and (iii) has the power and authority to perform all of its obligations.
Debtor’s residence appears below its name at the end of this Agreement.
3.2. Execution of this Agreement. This Agreement has been duly executed and
delivered by Debtor. Execution, delivery and performance of this Agreement will not: (i) violate
or contradict Borrower’s Organizational Documents, provision of law, order of any court, agency
or other instrumentality of government, or any provision of any indenture, agreement or other
instrument to which Debtor is a party or by which Debtor or any of its properties is bound; (ii)
result in the creation or imposition of any lien, charge or encumbrance of any nature, other than
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the liens created by this Agreement; and (iii) require any authorization, consent, approval,
license, exemption of, or filing or registration with, any court or governmental authority.
3.3. Obligations. This Agreement is a legal, valid and binding obligation of Debtor,
enforceable against Debtor in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws or equitable principles relating to or
affecting the enforcement of creditors’ rights generally.
3.4. Litigation; Compliance With Laws. There is no action, suit or proceeding at
law or in equity or by or before any governmental authority, agency or other instrumentality now
pending or, to the knowledge of Debtor, threatened against or affecting Debtor or any of its
properties or rights which, if adversely determined, would materially impair or affect: (i) the
value of any collateral securing the Liabilities; (ii) Debtor’s right to carry on its business
substantially as now conducted (and as now contemplated); (iii) Debtor’s financial condition; or
(iv) Debtor’s capacity to consummate and perform its obligations under this Agreement. Debtor
is in material compliance with all laws, ordinances, rules, regulations and requirements which
affect it, its assets or the operation of its business, and is not in violation of or in default with
respect to any order, writ, injunction, decree or demand of any court or governmental authority.
3.5. Payment of Taxes. Debtor has filed or caused to be filed all federal, state and
local tax returns which are required to be filed, and have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by it, to the extent that such taxes or
assessments have become due, except such that are contested in good faith by appropriate
proceedings and for which adequate reserves have been established. Debtor is not aware of any
material unasserted claims for prior taxes against it or the Borrower for which adequate reserves
have not been established.
3.6. No Defaults. Debtor is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained herein or in any material
agreement or instrument to which it is a party or by which it or any of its properties is bound.
3.7. Financial Statements. All financial statements delivered by Debtor to Secured
Party (if any) are true, correct and complete in all material respects, fairly represent Debtor’s
financial condition as of the date hereof and thereof, and no information has been omitted which
would make the information previously furnished misleading or incorrect in any material respect.
3.8. No Material Adverse Change. As of the date hereof, there has been no material
adverse change in the financial condition, operations, affairs, prospects or business of Debtor
from the date of the most recent financial statements provided by Debtor to Secured Party.
3.9. No Untrue Statements. No Loan Document or other document, certificate or
statement furnished to Secured Party by or on behalf of Debtor contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. It is specifically understood by Debtor that all such
statements, representations and warranties shall be deemed to have been relied upon by Secured
Party as an inducement to make the Loan to Borrower.
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3.10. Title to Property. Debtor has good and marketable title to all of its properties
and assets listed in the most recent financial statements delivered to Secured Party on or prior to
the date hereof, except as otherwise expressly described in said financial statements, and except
those properties and assets disposed of since the date of said financial statements in the ordinary
course of business.
3.11. Collateral.
3.11.1. Ownership Interests. Debtor owns the respective percentages and types
of ownership interests in Borrower, as set forth below, and all of such ownership interests are
included in the Collateral being given to Secured Party pursuant to this Agreement:
Percentage
Debtor Ownership Type of Ownership Interest
Interest
14 Vesey Street Partners (Del)
100% Limited liability company interest in Borrower
LLC
3.11.2. No Ownership Certificates. None of Debtor’s ownership interests in
Borrower is certificated and there is no document or instrument evidencing such ownership
interest other than Borrower’s Organizational Documents, true, correct and complete copies of
which have been delivered to Secured Party.
3.11.3. Title. Debtor is the sole legal and beneficial owner of the applicable
Collateral, free and clear of all liens, encumbrances and security interests, except in favor of
Secured Party, and Debtor has not sold, assigned, pledged or encumbered any of its rights in or
with respect to the Collateral except pursuant to this Agreement, and this Agreement constitutes
a first lien on and first priority security interest in the Collateral.
3.11.4. Material Agreements. Debtor has duly and timely performed all of the
obligations, terms, covenants and conditions under any agreement by, between or among Debtor,
Borrower or other person or entity on Debtor’s part to be kept, observed and performed as of the
date hereof.
3.11.5. Power and Authority. Debtor has the power and authority under each of
the Borrower’s Organizational Documents to assign and encumber, as provided in this
Agreement, all of its right, title and interest in the Collateral to Secured Party.
3.11.6. Substitute Member. Subject only to (i) the delivery to Borrower of
Secured Party’s written acceptance of and agreement to be bound by the terms and conditions of
such Borrower’s Organizational Documents and (ii) the exercise by Secured Party of its rights
pursuant to Section 5.2.2 hereof, the Secured Party or its nominee or assignee of the limited
liability company interests of Debtor in Borrower, has the right to become a substitute member
for Debtor in Borrower.
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3.11.7. Right to Exercise Remedies. If Secured Party or its nominee or assignee
becomes a substitute member for Debtor in Borrower, the Secured Party shall have the right to
(i) cause Borrower to liquidate and dissolve and (ii) to sell the Collateral without any restrictions
upon such sale.
4. COVENANTS.Each Debtor covenants and agrees until the Liabilities are fully paid or
performed as follows:
4.1. Merger, Restructure. Debtor shall not permit Borrower to merge into,
consolidate with or into, or refinance, sell, assign, lease or otherwise dispose of (whether in one
transaction or a series of transactions) all or substantially all of its assets (now owned or hereafter
acquired) to any person or entity, or dissolve and liquidate without the prior written consent of
Secured Party which consent shall not be unreasonably withheld.
4.2. Maintenance of Business. Debtor shall cause Borrower to: (i) continue to
remain in and operate substantially the same line of business presently engaged in by it; (ii) not
suspend transaction of its usual business; (iii) conduct its business in an orderly, efficient and
customary manner; (iv) comply with all laws, ordinances, rules, regulations and requirements
and shall maintain its business, properties and assets necessary to conduct its business in
compliance with all applicable governmental laws, ordinances, approvals, rules, regulations and
requirements, including without limitation, zoning, sanitary, pollution, building, environmental
and safety laws and ordinances, and the rules and regulations promulgated thereunder; (v) not
amend Borrower’s Organizational Documents in any material respect; and (vi) except in the
ordinary course of business or with the prior written consent of Secured Party, which consent
shall not be unreasonably withheld, not remove, demolish, materially alter, discontinue the use
of, sell, transfer, assign, hypothecate, pledge or otherwise dispose of any part of its properties or
assets necessary for the continuance of its business, as presently conducted and as presently
contemplated.
4.3. Books and Records. Debtor shall keep, and cause Borrower to keep and
maintain, complete and accurate books and records in accordance with generally accepted
accounting principles consistently applied, reflecting all of the financial affairs of Borrower.
Debtor shall permit representatives of Secured Party, at Secured Party’s sole cost and on at least
ten (10) days prior notice (subject, however, to any greater notice period as may be required by
the terms of the Loan Documents), to examine and audit Borrower’s books and records, to
inspect Borrower’s facilities and properties, and to discuss Borrower’s financial condition and
the contents of Borrower’s financial statements with their respective accountants.
4.4. Financial Statements; Compliance Certificate. Debtor shall furnish to Secured
Party all financial information reasonably requested by Secured Party, in each instance prepared
in accordance with generally accepted accounting principles consistently applied and otherwise
in form and substance reasonably satisfactory to Secured Party in its sole discretion.
4.5. Taxes and Other Charges. Debtor shall prepare and timely file, and cause
Borrower to prepare and timely file, all federal, state and local tax returns required to be filed by
Borrower and promptly pay and discharge, or cause the Borrower to pay and discharge, all taxes,
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assessments, water and sewer rents, and other governmental charges, imposed upon Borrower or
any of its property when due, but in no event after interest or penalties commence to accrue
thereon or become a lien upon such property, except for those taxes, assessments, water and
sewer rents, and other governmental charges then being contested in good faith by appropriate
proceedings and for which there has been established an adequate reserve for the payment
thereof, and so long as such contest: (i) operates to prevent collection, stay any proceedings
which may be instituted to enforce payment of such item, and prevent a sale of the property to
pay such item; (ii) is maintained and prosecuted with due diligence; and (iii) shall not have been
terminated or discontinued adversely to the taxpayer.
4.6. Indemnification.
4.6.1. Debtor hereby indemnifies and agrees to protect, defend and hold harmless
Secured Party, any entity which “controls” Secured Party within the meaning of Section 15 of
the Securities Act of 1933, as amended, or is under common control with Secured Party, and any
member, officer, director, official, agent, employee or attorney of Secured Party, and their
respective heirs, administrators, executors, successors and assigns (collectively, the
“Indemnified Parties”), from and against any and all losses, damages, expenses or liabilities of
any kind or nature and from any suits, claims or demands, including reasonable attorneys’ fees
incurred in investigating or defending such claim, suffered by any of them and caused by,
relating to, arising out of, resulting from, or in any way connected with the Loan Documents or
the transactions contemplated therein (except to the extent caused by or resulting from the gross
negligence or willful misconduct of any of the Indemnified Parties),
4.6.2. In case any action shall be brought against Secured Party or any other
Indemnified Party in respect to which indemnity may be sought against Debtor, Secured Party or
such other Indemnified Party shall promptly notify Debtor and Debtor shall assume the defense
thereof, including the employment of counsel selected by Debtor and reasonably satisfactory to
Secured Party, the payment of all costs and expenses and the right to negotiate and consent to
settlement. The failure of Secured Party to so notify Debtor shall not relieve Debtor of any
liability it may have under the foregoing indemnification provisions or from any liability which it
may otherwise have to Secured Party or any of the other Indemnified Parties, except to the extent
that the delay or failure of Secured Party to notify Debtor materially and adversely affects
Debtor’s ability to defend the Indemnified Parties. Debtor shall not be liable for any settlement
of any such action effected without its consent (unless Debtor fails to defend such claim), but if
settled with Debtor’s consent, or if there be a final judgment for the claimant in any such action,
Debtor agrees to indemnify and save harmless Secured Party from and against any loss or
liability by reason of such settlement or judgment.
4.6.3. The provisions of this Section 4.6. shall survive the repayment or other
satisfaction of the Liabilities.
4.7. Ownership Transfer Restrictions. Debtor shall not, whether voluntarily,
involuntarily or by operation of law, sell, transfer, convey, assign, pledge, encumber or grant a
security interest in, any of its ownership interests in Borrower to or in favor of any person or
entity other than Secured Party, without the prior written consent of Secured Party.
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4.8. Collateral.
4.8.1. Debtor shall cause Borrower to make a notation on its records indicating
the security interests created by this Agreement.
4.8.2. Debtor shall defend its title to and Secured Party’s interest in the Collateral
against all claims, and take any action necessary to remove any encumbrance other than as
created under this Agreement, and defend the right, title and interest of Secured Party in and to
the Collateral.
4.9. Change in Name, Residency or Address. Debtor shall promptly notify Secured
Party of any change in its name, its jurisdiction of residency or in its address or the principal
place of business of Borrower.
4.10. Compliance. Debtor shall and shall cause Borrower to comply with all material
agreements to which he or it are a party to or bound by, including, without limitation, the
Borrower’s Organizational Documents, and shall provide Secured Party with prompt notice of
any default thereunder. Debtor shall not waive, release or compromise any rights or claims
Debtor may have against any person which arise under any of the Borrower’s Organizational
Documents.
5. EVENTS OF DEFAULT AND REMEDIES.
5.1. Each of the following shall constitute a default (each, an “Event of Default”)
hereunder:
5.1.1. An Event of Default under any of the Loan Documents;
5.1.2. A breach by Debtor of any other term, covenant, condition, obligation or
agreement under this Agreement, and the continuance of such breach for a period of thirty (30)
days after written notice thereof shall have been given to a Debtor.
5.2. Upon or at any time after the occurrence of an Event of Default, Secured Party
may exercise any right, power or remedy permitted by law or as set forth in any of the Loan
Documents, including, without limitation:
5.2.1. demand payment in accordance with the terms of the Loan Documents;
5.2.2. receive any and all distributions payable by Borrower on account of or
with respect to the Collateral, whether ordinary distributions (including, without limitation,
periodic distributions of cash flow) or extraordinary distributions (including, without limitation,
distributions from proceeds of refinance, insurance, condemnation, dissolution or sale of any
portion or all of the assets of Borrower), and to apply the distributions on account of the Loan,
including the principal amount of the Loan, accrued and unpaid interest and all other costs and
expenses incurred by Secured Party in connection with the Loan, all in such order and priority as
Secured Party shall determine in its sole discretion. Debtor agrees that Secured Party shall have
the sole right to receive and retain any distributions following the occurrence and during the
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existence of an Event of Default, and agrees that written notice from Secured Party to Debtor of
the existence of an Event of Default shall be the sole authority required in order to authorize
Borrower to pay the distributions to Secured Party, and Debtor hereby agrees to indemnify,
defend and hold harmless Borrower from the payment of distributions to Secured Party in
accordance with the foregoing provisions;
5.2.3. exercise its right to become a member of Borrower and upon becoming a
member, to succeed to and exercise all of Debtor’s rights and powers with respect to or under
Borrower and the Collateral, including without limitation, to require Borrower to liquidate and
dissolve and/or to sell the Collateral or any part thereof;
5.2.4. realize upon the Collateral without the need to institute suit, make demand,
exhaust its remedies, or otherwise proceed to enforce its rights. In so proceeding, Secured Party
shall have all the rights and remedies of a secured party against a debtor in default under the
relevant Uniform Commercial Code. Secured Party may sell, lease or otherwise dispose of the
Collateral at a public or private sale, and upon such terms and in such manner as Secured Party
may determine. Unless the Collateral threatens to decline rapidly in value or are of the type
customarily sold on a recognized market, Secured Party shall give prior written notice to a
Debtor (which, if given within ten days of any sale, shall be deemed to be reasonable) of the time
and place of any public sale of the Collateral or of the time after which any private sale or other
disposition thereof is to be made. Debtor agrees that upon any such sale the Collateral shall be
held by the purchaser thereof free from all claims or rights of every kind and nature, including
any equity of redemption or similar rights, and all such equity of redemption and similar rights
are hereby expressly waived and released by Debtor. In the event any consent, approval or
authorization of any governmental agency is necessary to effectuate such sale, Debtor shall
execute all applications or other instruments as may be required or, if Debtor refuses to execute
such applications or instruments, Secured Party, as Debtor’s attorney-in-fact, may execute such
documents.
6. MISCELLANEOUS.
6.1. Integration. This Agreement and the other Loan Documents constitute the sole
agreement of the parties with respect to the transaction contemplated hereby and supersede all
oral negotiations and prior writings with respect thereto.
6.2. Attorneys’ Fees and Expenses. If Secured Party retains the services of counsel
by reason of a claim of a default or an Event of Default hereunder or under any of the other Loan
Documents, or on account of any matter involving this Agreement, or for examination of matters
subject to Secured Party’s approval under the Loan Documents, all costs of suit and all
reasonable attorneys’ fees and such other reasonable expenses so incurred by Secured Party shall
forthwith, promptly after demand, become due and payable and shall be secured hereby.
6.3. No Implied Waiver. Secured Party shall not be deemed to have modified or
waived any of its rights or remedies hereunder unless such modification or waiver is in writing
and signed by Secured Party, and then only to the extent specifically set forth therein. A waiver
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in one event shall not be construed as continuing or as a waiver of or bar to such right or remedy
on a subsequent event.
6.4. Partial Invalidity. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not render any other provision invalid or unenforceable. In
lieu of any invalid or unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable provision as may be
possible.
6.5. Binding Effect. The covenants, conditions, waivers, releases and agreements
contained in this Agreement shall bind, and the benefits thereof shall inure to, the parties hereto
and their respective heirs, executors, administrators, successors and assigns; provided, however,
that this Agreement cannot be assigned by Debtor without the prior written consent of Secured
Party, and any such assignment or attempted assignment by Debtor shall be void and of no effect
with respect to Secured Party.
6.6. Modifications. This Agreement may not be supplemented, extended, modified or
terminated except by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
6.7. Jurisdiction. Debtor irrevocably agrees that it may be served, by regular or
certified mail at the address set forth below with any notice, process or pleading in any action or
proceeding against it arising out of or in connection with this Agreement or any other Loan
Document; Debtor hereby consents that any action or proceeding against it may be commenced
and maintained in any court within the State of New York or in the United States District Court
for the District of New York; and Debtor agrees that the courts of the State of New York and the
United States District Court for the Southern District of New York shall have jurisdiction with
respect to the subject matter hereof and the person of each Debtor and all collateral securing the
obligations of Debtor. Debtor agrees not to assert any defense to any proceeding initiated by
Secured Party based upon improper venue or inconvenient forum. Debtor agrees that any action
brought by a Debtor against Secured Party shall be commenced and maintained only in a court in
the United States District Court for the Southern District of New York or in a court of the State
of New York.
6.8. Notices. All notices and communications under this Agreement shall be in
writing and shall be given by either (a) hand delivery, (b) first class mail (postage prepaid), or (c)
reliable overnight commercial courier (charges prepaid) to the addresses listed in this
Agreement. Notice shall be deemed to have been given and received: (i) if by hand delivery,
upon delivery; (ii) if by mail, three (3) calendar days after the date first deposited in the United
States mail; and (iii) if by overnight courier, on the date scheduled for delivery. A party may
change its address by giving written notice to the other party as specified herein.
6.9. Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York.
6.10. Waiver of Jury Trial. DEBTOR AND SECURED PARTY AGREE THAT
ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM,
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BROUGHT BY SECURED PARTY OR DEBTOR, ON OR WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A
COURT AND NOT BY A JURY. SECURED PARTY AND DEBTOR EACH HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND INTELLIGENTLY, AND
WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER,
DEBTOR WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY
SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. DEBTOR ACKNOWLEDGES AND AGREES THAT THIS
SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND
THAT SECURED PARTY WOULD NOT EXTEND CREDIT TO DEBTOR IF THE
WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS
AGREEMENT.
6.11. Counterparts. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, Debtor has duly executed, sealed and delivered this Agreement as
of the day and year first above written.
WITNESS: DEBTOR:
14 VESEY STREET PARTNERS (DEL) LLC,
a Delaware lim d 1 ility company
By:
'
JaoÊ Ter
Authorized Signatory
Address:362 Fifth Avenue, Suite 1201
New York, NY 10001
-11-
CPIF/NYC - Pledgeand Security Agreement(LLC Interests)(Acquisition Loan)
6971191v.2
FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024
IN WITNESS WHEREOF, Secured Party has duly executed, sealed and delivered this
Agreement as of the day and year first above written.
WITNESS: CPIF LENDING, LLC,
a Washington limited liability company
By: CPIF Holdings, LLC, its sole member
By: Columbia Pacific Advisors, LLC, its manager
By:
Name:
Title:
-12-
CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan)
6971191v.2
Preview
FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 Exhibit K-1 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 PLEDGE AND SECURITY AGREEMENT PLEDGE AND SECURITY AGREEMENT dated April 22, 2021 (together with any amendments or modifications hereto in effect from time to time, the “Agreement”), among CPIF LENDING, LLC, a Washington limited liability company (“Secured Party”), and 14 VESEY STREET PARTNERS (DEL) LLC, a Delaware limited liability company (“Debtor”). Secured Party has made a loan available to JTRE 14 Vesey LLC, a Delaware limited liability company (the “Borrower”), in the principal amount of up to Eighteen Million Fifty Thousand and 00/100 Dollars ($18,050,000.00) (the “Loan”). Debtor is the sole member of the Borrower. The Loan is evidenced by an Acquisition Loan Agreement, Consolidated, Amended and Restated Promissory Note (Acquisition Loan) and all other documents entered into on or about the date hereof in connection with the Loan from Borrower in favor of and Secured Party (as amended, collectively, the “Loan Documents”). The Secured Party requires this Agreement as a condition to making the Loan available to Borrower. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Secured Party and Debtor, intending to be legally bound, agree, under seal, as follows: 1. DEFINITIONS. 1.1. “Borrower’s Organizational Documents” means the organizational documents of Borrower. 1.2. “Collateral” means all of Debtor’s right, title and interest in and to Borrower and under Borrower’s Organizational Documents, as the same may be amended from time to time, including, without limitation, any and all cash flow, profits, distributions, dividends, capital accounts, depreciation, losses, rights of substitution, voting rights, and any document or certificate representing or evidencing Debtor’s rights and interests in the Borrower, whether now existing or hereafter acquired, and all proceeds and products thereof; provided however, the “Collateral” shall not include distributions made to Debtor to pay taxes, insurance, debt service on the Loan and other carry costs of the Borrower, as approved by Secured Party. 1.3. “Liabilities” means, collectively, as relating to the Loan and the Loan Documents: (i) the repayment of all sums due under the Loan Documents (and all extensions, renewals, replacements, substitutions, amendments and modifications thereof); (ii) the performance of all terms, conditions and covenants set forth in the Loan Documents; and (iii) all obligations and indebtedness of every kind and description of Borrower to Secured Party, whether primary or secondary, absolute or contingent, direct or indirect, sole, joint or several, secured or unsecured, due or to become due, contractual or tortious, arising by operation of law or otherwise, or now or hereafter existing, and whether incurred by Borrower as principal, surety, -1- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 endorser, guarantor, accommodation party or otherwise, including, without limitation, principal, interest, fees, late charges and expenses, including attorneys’ fees. 2. PLEDGE AND SECURITY AGREEMENT. 2.1. Generally. As security for the payment and performance of the Liabilities, Debtor hereby pledges, assigns, transfers, delivers and sets over to Secured Party, and grants to Secured Party a security interest in, the Collateral. Debtor hereby agrees that this Agreement is a security agreement and creates in Secured Party a security interest hereunder in the Collateral. 2.2. Financing Statements. Debtor hereby authorizes, at its cost and expense, Secured Party to file any financing statements, continuation statements and other documents which Secured Party may reasonably require from time to time to perfect and maintain in favor of Secured Party a first priority security interest in the Collateral or to obtain the full benefits of this Agreement. Without limiting the generality of the foregoing, effective only upon the occurrence of an Event of Default under the Loan Documents, Debtor hereby irrevocably appoints Secured Party as Debtor’s attorney-in-fact, with full power of substitution or revocation, to execute any endorsements, assignments, transfers, certificates and any other instruments necessary to effectuate the intent or purposes of this Agreement. 2.3. Event of Default. So long as no Event of Default exists, Debtor shall have the right to retain, use and enjoy the benefits of the Collateral, subject at all times to this Agreement. Debtor at all times shall remain solely liable to perform any and all duties or obligations of Debtor under any agreement relating to the Borrower or with respect to the Collateral, unless Secured Party elects in writing, in its sole discretion and during the existence of an Event of Default, to succeed to Debtor’s right, title and interest thereunder, and following any such assignment and assumption, Secured Party shall continue to have no liability for any act or omission occurring prior to the time of such assignment and assumption. 3. REPRESENTATIONS AND WARRANTIES.Debtor represents and warrants as of the date hereof and, unless otherwise indicated, at all times hereafter until the Liabilities are fully paid and performed, as follows: 3.1. Organization, Powers. If Debtor is an entity, Debtor (i) is an entity duly formed or organized, validly existing and in good standing under the laws of its state or commonwealth of organization, and is authorized to do business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such authorization; (ii) has the power and authority to own its properties and assets and to carry on its business as now being conducted and as now contemplated; and (iii) has the power and authority to perform all of its obligations. Debtor’s residence appears below its name at the end of this Agreement. 3.2. Execution of this Agreement. This Agreement has been duly executed and delivered by Debtor. Execution, delivery and performance of this Agreement will not: (i) violate or contradict Borrower’s Organizational Documents, provision of law, order of any court, agency or other instrumentality of government, or any provision of any indenture, agreement or other instrument to which Debtor is a party or by which Debtor or any of its properties is bound; (ii) result in the creation or imposition of any lien, charge or encumbrance of any nature, other than -2- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 the liens created by this Agreement; and (iii) require any authorization, consent, approval, license, exemption of, or filing or registration with, any court or governmental authority. 3.3. Obligations. This Agreement is a legal, valid and binding obligation of Debtor, enforceable against Debtor in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws or equitable principles relating to or affecting the enforcement of creditors’ rights generally. 3.4. Litigation; Compliance With Laws. There is no action, suit or proceeding at law or in equity or by or before any governmental authority, agency or other instrumentality now pending or, to the knowledge of Debtor, threatened against or affecting Debtor or any of its properties or rights which, if adversely determined, would materially impair or affect: (i) the value of any collateral securing the Liabilities; (ii) Debtor’s right to carry on its business substantially as now conducted (and as now contemplated); (iii) Debtor’s financial condition; or (iv) Debtor’s capacity to consummate and perform its obligations under this Agreement. Debtor is in material compliance with all laws, ordinances, rules, regulations and requirements which affect it, its assets or the operation of its business, and is not in violation of or in default with respect to any order, writ, injunction, decree or demand of any court or governmental authority. 3.5. Payment of Taxes. Debtor has filed or caused to be filed all federal, state and local tax returns which are required to be filed, and have paid or caused to be paid all taxes as shown on said returns or on any assessment received by it, to the extent that such taxes or assessments have become due, except such that are contested in good faith by appropriate proceedings and for which adequate reserves have been established. Debtor is not aware of any material unasserted claims for prior taxes against it or the Borrower for which adequate reserves have not been established. 3.6. No Defaults. Debtor is not in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained herein or in any material agreement or instrument to which it is a party or by which it or any of its properties is bound. 3.7. Financial Statements. All financial statements delivered by Debtor to Secured Party (if any) are true, correct and complete in all material respects, fairly represent Debtor’s financial condition as of the date hereof and thereof, and no information has been omitted which would make the information previously furnished misleading or incorrect in any material respect. 3.8. No Material Adverse Change. As of the date hereof, there has been no material adverse change in the financial condition, operations, affairs, prospects or business of Debtor from the date of the most recent financial statements provided by Debtor to Secured Party. 3.9. No Untrue Statements. No Loan Document or other document, certificate or statement furnished to Secured Party by or on behalf of Debtor contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading. It is specifically understood by Debtor that all such statements, representations and warranties shall be deemed to have been relied upon by Secured Party as an inducement to make the Loan to Borrower. -3- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 3.10. Title to Property. Debtor has good and marketable title to all of its properties and assets listed in the most recent financial statements delivered to Secured Party on or prior to the date hereof, except as otherwise expressly described in said financial statements, and except those properties and assets disposed of since the date of said financial statements in the ordinary course of business. 3.11. Collateral. 3.11.1. Ownership Interests. Debtor owns the respective percentages and types of ownership interests in Borrower, as set forth below, and all of such ownership interests are included in the Collateral being given to Secured Party pursuant to this Agreement: Percentage Debtor Ownership Type of Ownership Interest Interest 14 Vesey Street Partners (Del) 100% Limited liability company interest in Borrower LLC 3.11.2. No Ownership Certificates. None of Debtor’s ownership interests in Borrower is certificated and there is no document or instrument evidencing such ownership interest other than Borrower’s Organizational Documents, true, correct and complete copies of which have been delivered to Secured Party. 3.11.3. Title. Debtor is the sole legal and beneficial owner of the applicable Collateral, free and clear of all liens, encumbrances and security interests, except in favor of Secured Party, and Debtor has not sold, assigned, pledged or encumbered any of its rights in or with respect to the Collateral except pursuant to this Agreement, and this Agreement constitutes a first lien on and first priority security interest in the Collateral. 3.11.4. Material Agreements. Debtor has duly and timely performed all of the obligations, terms, covenants and conditions under any agreement by, between or among Debtor, Borrower or other person or entity on Debtor’s part to be kept, observed and performed as of the date hereof. 3.11.5. Power and Authority. Debtor has the power and authority under each of the Borrower’s Organizational Documents to assign and encumber, as provided in this Agreement, all of its right, title and interest in the Collateral to Secured Party. 3.11.6. Substitute Member. Subject only to (i) the delivery to Borrower of Secured Party’s written acceptance of and agreement to be bound by the terms and conditions of such Borrower’s Organizational Documents and (ii) the exercise by Secured Party of its rights pursuant to Section 5.2.2 hereof, the Secured Party or its nominee or assignee of the limited liability company interests of Debtor in Borrower, has the right to become a substitute member for Debtor in Borrower. -4- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 3.11.7. Right to Exercise Remedies. If Secured Party or its nominee or assignee becomes a substitute member for Debtor in Borrower, the Secured Party shall have the right to (i) cause Borrower to liquidate and dissolve and (ii) to sell the Collateral without any restrictions upon such sale. 4. COVENANTS.Each Debtor covenants and agrees until the Liabilities are fully paid or performed as follows: 4.1. Merger, Restructure. Debtor shall not permit Borrower to merge into, consolidate with or into, or refinance, sell, assign, lease or otherwise dispose of (whether in one transaction or a series of transactions) all or substantially all of its assets (now owned or hereafter acquired) to any person or entity, or dissolve and liquidate without the prior written consent of Secured Party which consent shall not be unreasonably withheld. 4.2. Maintenance of Business. Debtor shall cause Borrower to: (i) continue to remain in and operate substantially the same line of business presently engaged in by it; (ii) not suspend transaction of its usual business; (iii) conduct its business in an orderly, efficient and customary manner; (iv) comply with all laws, ordinances, rules, regulations and requirements and shall maintain its business, properties and assets necessary to conduct its business in compliance with all applicable governmental laws, ordinances, approvals, rules, regulations and requirements, including without limitation, zoning, sanitary, pollution, building, environmental and safety laws and ordinances, and the rules and regulations promulgated thereunder; (v) not amend Borrower’s Organizational Documents in any material respect; and (vi) except in the ordinary course of business or with the prior written consent of Secured Party, which consent shall not be unreasonably withheld, not remove, demolish, materially alter, discontinue the use of, sell, transfer, assign, hypothecate, pledge or otherwise dispose of any part of its properties or assets necessary for the continuance of its business, as presently conducted and as presently contemplated. 4.3. Books and Records. Debtor shall keep, and cause Borrower to keep and maintain, complete and accurate books and records in accordance with generally accepted accounting principles consistently applied, reflecting all of the financial affairs of Borrower. Debtor shall permit representatives of Secured Party, at Secured Party’s sole cost and on at least ten (10) days prior notice (subject, however, to any greater notice period as may be required by the terms of the Loan Documents), to examine and audit Borrower’s books and records, to inspect Borrower’s facilities and properties, and to discuss Borrower’s financial condition and the contents of Borrower’s financial statements with their respective accountants. 4.4. Financial Statements; Compliance Certificate. Debtor shall furnish to Secured Party all financial information reasonably requested by Secured Party, in each instance prepared in accordance with generally accepted accounting principles consistently applied and otherwise in form and substance reasonably satisfactory to Secured Party in its sole discretion. 4.5. Taxes and Other Charges. Debtor shall prepare and timely file, and cause Borrower to prepare and timely file, all federal, state and local tax returns required to be filed by Borrower and promptly pay and discharge, or cause the Borrower to pay and discharge, all taxes, -5- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 assessments, water and sewer rents, and other governmental charges, imposed upon Borrower or any of its property when due, but in no event after interest or penalties commence to accrue thereon or become a lien upon such property, except for those taxes, assessments, water and sewer rents, and other governmental charges then being contested in good faith by appropriate proceedings and for which there has been established an adequate reserve for the payment thereof, and so long as such contest: (i) operates to prevent collection, stay any proceedings which may be instituted to enforce payment of such item, and prevent a sale of the property to pay such item; (ii) is maintained and prosecuted with due diligence; and (iii) shall not have been terminated or discontinued adversely to the taxpayer. 4.6. Indemnification. 4.6.1. Debtor hereby indemnifies and agrees to protect, defend and hold harmless Secured Party, any entity which “controls” Secured Party within the meaning of Section 15 of the Securities Act of 1933, as amended, or is under common control with Secured Party, and any member, officer, director, official, agent, employee or attorney of Secured Party, and their respective heirs, administrators, executors, successors and assigns (collectively, the “Indemnified Parties”), from and against any and all losses, damages, expenses or liabilities of any kind or nature and from any suits, claims or demands, including reasonable attorneys’ fees incurred in investigating or defending such claim, suffered by any of them and caused by, relating to, arising out of, resulting from, or in any way connected with the Loan Documents or the transactions contemplated therein (except to the extent caused by or resulting from the gross negligence or willful misconduct of any of the Indemnified Parties), 4.6.2. In case any action shall be brought against Secured Party or any other Indemnified Party in respect to which indemnity may be sought against Debtor, Secured Party or such other Indemnified Party shall promptly notify Debtor and Debtor shall assume the defense thereof, including the employment of counsel selected by Debtor and reasonably satisfactory to Secured Party, the payment of all costs and expenses and the right to negotiate and consent to settlement. The failure of Secured Party to so notify Debtor shall not relieve Debtor of any liability it may have under the foregoing indemnification provisions or from any liability which it may otherwise have to Secured Party or any of the other Indemnified Parties, except to the extent that the delay or failure of Secured Party to notify Debtor materially and adversely affects Debtor’s ability to defend the Indemnified Parties. Debtor shall not be liable for any settlement of any such action effected without its consent (unless Debtor fails to defend such claim), but if settled with Debtor’s consent, or if there be a final judgment for the claimant in any such action, Debtor agrees to indemnify and save harmless Secured Party from and against any loss or liability by reason of such settlement or judgment. 4.6.3. The provisions of this Section 4.6. shall survive the repayment or other satisfaction of the Liabilities. 4.7. Ownership Transfer Restrictions. Debtor shall not, whether voluntarily, involuntarily or by operation of law, sell, transfer, convey, assign, pledge, encumber or grant a security interest in, any of its ownership interests in Borrower to or in favor of any person or entity other than Secured Party, without the prior written consent of Secured Party. -6- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 4.8. Collateral. 4.8.1. Debtor shall cause Borrower to make a notation on its records indicating the security interests created by this Agreement. 4.8.2. Debtor shall defend its title to and Secured Party’s interest in the Collateral against all claims, and take any action necessary to remove any encumbrance other than as created under this Agreement, and defend the right, title and interest of Secured Party in and to the Collateral. 4.9. Change in Name, Residency or Address. Debtor shall promptly notify Secured Party of any change in its name, its jurisdiction of residency or in its address or the principal place of business of Borrower. 4.10. Compliance. Debtor shall and shall cause Borrower to comply with all material agreements to which he or it are a party to or bound by, including, without limitation, the Borrower’s Organizational Documents, and shall provide Secured Party with prompt notice of any default thereunder. Debtor shall not waive, release or compromise any rights or claims Debtor may have against any person which arise under any of the Borrower’s Organizational Documents. 5. EVENTS OF DEFAULT AND REMEDIES. 5.1. Each of the following shall constitute a default (each, an “Event of Default”) hereunder: 5.1.1. An Event of Default under any of the Loan Documents; 5.1.2. A breach by Debtor of any other term, covenant, condition, obligation or agreement under this Agreement, and the continuance of such breach for a period of thirty (30) days after written notice thereof shall have been given to a Debtor. 5.2. Upon or at any time after the occurrence of an Event of Default, Secured Party may exercise any right, power or remedy permitted by law or as set forth in any of the Loan Documents, including, without limitation: 5.2.1. demand payment in accordance with the terms of the Loan Documents; 5.2.2. receive any and all distributions payable by Borrower on account of or with respect to the Collateral, whether ordinary distributions (including, without limitation, periodic distributions of cash flow) or extraordinary distributions (including, without limitation, distributions from proceeds of refinance, insurance, condemnation, dissolution or sale of any portion or all of the assets of Borrower), and to apply the distributions on account of the Loan, including the principal amount of the Loan, accrued and unpaid interest and all other costs and expenses incurred by Secured Party in connection with the Loan, all in such order and priority as Secured Party shall determine in its sole discretion. Debtor agrees that Secured Party shall have the sole right to receive and retain any distributions following the occurrence and during the -7- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 existence of an Event of Default, and agrees that written notice from Secured Party to Debtor of the existence of an Event of Default shall be the sole authority required in order to authorize Borrower to pay the distributions to Secured Party, and Debtor hereby agrees to indemnify, defend and hold harmless Borrower from the payment of distributions to Secured Party in accordance with the foregoing provisions; 5.2.3. exercise its right to become a member of Borrower and upon becoming a member, to succeed to and exercise all of Debtor’s rights and powers with respect to or under Borrower and the Collateral, including without limitation, to require Borrower to liquidate and dissolve and/or to sell the Collateral or any part thereof; 5.2.4. realize upon the Collateral without the need to institute suit, make demand, exhaust its remedies, or otherwise proceed to enforce its rights. In so proceeding, Secured Party shall have all the rights and remedies of a secured party against a debtor in default under the relevant Uniform Commercial Code. Secured Party may sell, lease or otherwise dispose of the Collateral at a public or private sale, and upon such terms and in such manner as Secured Party may determine. Unless the Collateral threatens to decline rapidly in value or are of the type customarily sold on a recognized market, Secured Party shall give prior written notice to a Debtor (which, if given within ten days of any sale, shall be deemed to be reasonable) of the time and place of any public sale of the Collateral or of the time after which any private sale or other disposition thereof is to be made. Debtor agrees that upon any such sale the Collateral shall be held by the purchaser thereof free from all claims or rights of every kind and nature, including any equity of redemption or similar rights, and all such equity of redemption and similar rights are hereby expressly waived and released by Debtor. In the event any consent, approval or authorization of any governmental agency is necessary to effectuate such sale, Debtor shall execute all applications or other instruments as may be required or, if Debtor refuses to execute such applications or instruments, Secured Party, as Debtor’s attorney-in-fact, may execute such documents. 6. MISCELLANEOUS. 6.1. Integration. This Agreement and the other Loan Documents constitute the sole agreement of the parties with respect to the transaction contemplated hereby and supersede all oral negotiations and prior writings with respect thereto. 6.2. Attorneys’ Fees and Expenses. If Secured Party retains the services of counsel by reason of a claim of a default or an Event of Default hereunder or under any of the other Loan Documents, or on account of any matter involving this Agreement, or for examination of matters subject to Secured Party’s approval under the Loan Documents, all costs of suit and all reasonable attorneys’ fees and such other reasonable expenses so incurred by Secured Party shall forthwith, promptly after demand, become due and payable and shall be secured hereby. 6.3. No Implied Waiver. Secured Party shall not be deemed to have modified or waived any of its rights or remedies hereunder unless such modification or waiver is in writing and signed by Secured Party, and then only to the extent specifically set forth therein. A waiver -8- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 in one event shall not be construed as continuing or as a waiver of or bar to such right or remedy on a subsequent event. 6.4. Partial Invalidity. The invalidity or unenforceability of any one or more provisions of this Agreement shall not render any other provision invalid or unenforceable. In lieu of any invalid or unenforceable provision, there shall be added automatically a valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible. 6.5. Binding Effect. The covenants, conditions, waivers, releases and agreements contained in this Agreement shall bind, and the benefits thereof shall inure to, the parties hereto and their respective heirs, executors, administrators, successors and assigns; provided, however, that this Agreement cannot be assigned by Debtor without the prior written consent of Secured Party, and any such assignment or attempted assignment by Debtor shall be void and of no effect with respect to Secured Party. 6.6. Modifications. This Agreement may not be supplemented, extended, modified or terminated except by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. 6.7. Jurisdiction. Debtor irrevocably agrees that it may be served, by regular or certified mail at the address set forth below with any notice, process or pleading in any action or proceeding against it arising out of or in connection with this Agreement or any other Loan Document; Debtor hereby consents that any action or proceeding against it may be commenced and maintained in any court within the State of New York or in the United States District Court for the District of New York; and Debtor agrees that the courts of the State of New York and the United States District Court for the Southern District of New York shall have jurisdiction with respect to the subject matter hereof and the person of each Debtor and all collateral securing the obligations of Debtor. Debtor agrees not to assert any defense to any proceeding initiated by Secured Party based upon improper venue or inconvenient forum. Debtor agrees that any action brought by a Debtor against Secured Party shall be commenced and maintained only in a court in the United States District Court for the Southern District of New York or in a court of the State of New York. 6.8. Notices. All notices and communications under this Agreement shall be in writing and shall be given by either (a) hand delivery, (b) first class mail (postage prepaid), or (c) reliable overnight commercial courier (charges prepaid) to the addresses listed in this Agreement. Notice shall be deemed to have been given and received: (i) if by hand delivery, upon delivery; (ii) if by mail, three (3) calendar days after the date first deposited in the United States mail; and (iii) if by overnight courier, on the date scheduled for delivery. A party may change its address by giving written notice to the other party as specified herein. 6.9. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York. 6.10. Waiver of Jury Trial. DEBTOR AND SECURED PARTY AGREE THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, -9- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 BROUGHT BY SECURED PARTY OR DEBTOR, ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. SECURED PARTY AND DEBTOR EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, DEBTOR WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. DEBTOR ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND THAT SECURED PARTY WOULD NOT EXTEND CREDIT TO DEBTOR IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT. 6.11. Counterparts. This Agreement may be executed in counterparts. {remainder of page intentionally left blank} -10- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 IN WITNESS WHEREOF, Debtor has duly executed, sealed and delivered this Agreement as of the day and year first above written. WITNESS: DEBTOR: 14 VESEY STREET PARTNERS (DEL) LLC, a Delaware lim d 1 ility company By: ' JaoÊ Ter Authorized Signatory Address:362 Fifth Avenue, Suite 1201 New York, NY 10001 -11- CPIF/NYC - Pledgeand Security Agreement(LLC Interests)(Acquisition Loan) 6971191v.2 FILED: NEW YORK COUNTY CLERK 01/26/2024 05:22 PM INDEX NO. 656413/2023 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/26/2024 IN WITNESS WHEREOF, Secured Party has duly executed, sealed and delivered this Agreement as of the day and year first above written. WITNESS: CPIF LENDING, LLC, a Washington limited liability company By: CPIF Holdings, LLC, its sole member By: Columbia Pacific Advisors, LLC, its manager By: Name: Title: -12- CPIF/NYC - Pledge and Security Agreement (LLC Interests) (Acquisition Loan) 6971191v.2