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Exhibit 10.63
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of February 23, 1998 (as amended,
modified or supplemented from time to time, this "Agreement"), made by each of
the undersigned (each a "Pledgor", and together with any entity that becomes a
party hereto pursuant to Section 24 hereof, the "Pledgors"), in favor of BANKERS
TRUST COMPANY, as Collateral Agent (the "Pledgee"), for the benefit of the
Secured Creditors (as defined below). Except as otherwise defined herein, terms
used herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Starwood Hotels & Resorts ("Starwood REIT"), SLT Realty
Limited Partnership ("SLT RLP"), Starwood Hotels & Resorts Worldwide, Inc. (the
"Corporation"), ITT Corporation (as successor in interest to Chess Acquisition
Corp., "ITT"), each Alternate Currency Revolving Loan Borrower from time to time
party thereto (together with Starwood REIT, SLT RLP, the Corporation and ITT,
each a "Borrower" and collectively, the "Borrowers"), various lenders from time
to time party thereto (the "Lenders"), Bankers Trust Company and The Chase
Manhattan Bank, as Administrative Agents (in such capacity and together with any
successor agent, the "Administrative Agents,"), and Xxxxxx Commercial Paper Inc.
and Bank of Montreal, as Syndication Agents (in such capacity, the "Syndication
Agents" and, together with the Pledgee, the Administrative Agents, and the
Lenders and their respective successors and assigns, and together with any other
lenders from time to time party to the Credit Agreement hereinafter referred to,
the "Lender Creditors"), have entered into a Credit Agreement, dated as of
February 23, 1998, providing for the making of Loans to the Borrowers and the
issuance of, and participation in, Letters of Credit for the account of the
Dollar Revolving Loan Borrowers, all as contemplated therein (as used herein,
the term "Credit Agreement" means the Credit Agreement described above in this
paragraph, as the same may be amended, modified, extended, renewed, replaced
restated, supplemented or refinanced from time to time, and including any
agreement extending the maturity of, or refinancing or restructuring (including,
but not limited to, the inclusion of additional borrowers or guarantors
thereunder or any increase in the amount borrowed) all or any portion of, the
indebtedness under such agreement or any successor agreement, whether or not
with the same agent, trustee, representative, lenders or holders; provided that,
with respect to any agreement providing for the refinancing or replacement of
indebtedness under the Credit Agreement, such agreement shall only be treated
as, or as part of, the Credit Agreement hereunder if (i) either (A) all
obligations under the Credit Agreement being refinanced or replaced shall be
paid in full at the time of such refinancing or replacement, and all commitments
and letters of credit issued pursuant to the refinanced or replaced Credit
Agreement shall have terminated in accordance with their terms or (B) the
Required Lenders shall have consented in writing to the refinancing or
replacement indebtedness being treated as indebtedness pursuant to the Credit
Agreement, and (ii) a notice to the effect that the refinancing or replacement
indebtedness shall be treated as issued under the Credit Agreement shall be
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delivered by the Parent Companies to the Pledgee);
WHEREAS, each Borrower may from time to time be party to (or guaranty the
obligations of one or more of its Subsidiaries under) one or more Interest Rate
Protection Agreements with a Lender Creditor or an affiliate of a Lender
Creditor (each such Lender Creditor or affiliate, even if the respective Lender
Creditor subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender Creditor's or affiliate's successors and
assigns, collectively, the "Interest Rate Protection Creditors");
WHEREAS, pursuant to the Guaranty, the Guarantors have jointly and
severally guaranteed to the Lender Creditors and the Interest Rate Protection
Creditors the payment when due of all obligations and liabilities of each
Borrower under or with respect to (x) the Credit Documents (as used herein, the
term "Credit Documents" shall have the meaning provided in the Credit Agreement
and shall include any documentation executed and delivered in connection with
any replacement or refinancing Credit Agreement) and (y) each Interest Rate
Protection Agreement with one or more Interest Rate Protection Creditors;
WHEREAS, ITT has, prior to the date hereof, issued $2,000,000,000 in
aggregate principal amount of ITT Notes (with the holders from time to time of
such ITT Notes being herein called the "ITT Noteholders") pursuant to the ITT
Indenture;
WHEREAS, to the extent permitted pursuant to the Credit Agreement, various
of the Pledgors may issue, or enter into, guarantees of the payment when due of
the obligations and liabilities of ITT under or with respect to the ITT Notes
and the ITT Indenture (with any such guarantees, together with the ITT Notes and
ITT Indenture being herein collectively called "ITT Note Documents");
WHEREAS, Permitted Refinancing Indebtedness may from time to time be
incurred in accordance with the requirements of the Credit Agreement in respect
of the ITT Notes or Permitted Refinancing Indebtedness which previously
refinanced the ITT Notes, and any such Permitted Refinancing Indebtedness (such
Permitted Refinancing Indebtedness being herein called "Qualified Permitted
Refinancing Indebtedness") may be (in accordance with the terms thereof and to
the extent permitted pursuant to the Credit Agreement) (x) guaranteed by various
of the Pledgors and (y) secured hereunder on an equal and ratable basis as with
the Credit Document Obligations (as defined below) as provided herein (with any
holders or lenders of such Qualified Permitted Refinancing Indebtedness from
time to time being herein collectively called the "Permitted Refinancing
Creditors" and with all documentation evidencing any Qualified Permitted
Refinancing Indebtedness or any guarantees thereof being herein called the
"Permitted Refinancing Documents");
WHEREAS, the Corporate Borrowers may in the future issue Senior Secured
Notes as provided in Section 9.04(viii) of the Credit Agreement that may be (in
accordance with the terms thereof and to the extent permitted pursuant to the
Credit Agreement as same is in effect on the date of the respective issuance)
(x) guaranteed by various of the Pledgors and (y) equally and ratably secured
hereunder with the Credit Document Obligations as hereinafter provided (with any
holders of Senior Secured Notes from time to time being herein collectively
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called "Senior Secured Noteholders" and with all documentation evidencing any
Senior Secured Notes or any guarantees thereof being herein called "Senior
Secured Note Documents");
WHEREAS, it is a condition precedent to the extensions of credit under the
Credit Agreement that each Pledgor shall have executed and delivered to the
Pledgee this Agreement;
WHEREAS, each Pledgor desires to execute this Agreement to satisfy the
conditions described in the immediately preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each Pledgor,
the receipt and sufficiency of which are hereby acknowledged, each Pledgor
hereby makes the following representations and warranties to the Pledgee and
hereby covenants and agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS; CERTAIN EXCLUDED OBLIGATIONS; SUBORDINATION
OF CERTAIN SECURITY INTERESTS. (a) Subject to the provisions of the following
clauses (b) and (c) of this Section 1, this Agreement is made by each Pledgor
for the benefit of the Lender Creditors and, to the extent from time to time
holding Obligations (as defined below) of such Pledgor secured hereunder, each
of the Interest Rate Protection Creditors, the ITT Noteholders, the Permitted
Refinancing Creditors and the Senior Secured Noteholders (collectively, together
with the Pledgee, the "Secured Creditors"), to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, Fees and interest thereon) of such Pledgor to the
Lender Creditors, now existing or hereafter incurred under, arising out of
or in connection with each Credit Agreement and all other Credit Document
to which it is at any time a party (including, without limitation, all
such obligations and liabilities of such Pledgor under each Credit
Agreement (if a party thereto) and under the Guaranty or under any other
guarantee by it of obligations pursuant to any Credit Agreement) and the
due performance and compliance by such Pledgor with the terms of each such
Credit Document (all such obligations and liabilities under this clause
(i) being herein collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of such Pledgor to the
Interest Rate Protection Creditors, now existing or hereafter incurred
under, arising out of or in connection with any Interest Rate Protection
Agreement (including, without limitation, all such obligations and
liabilities of such Pledgor under the Guaranty with respect thereto or
under any other guarantee by it of obligations pursuant to any Interest
Rate Protection Agreement) and the due performance and compliance by such
Pledgor with the terms of each such Interest Rate Protection Agreement
(all such obligations and liabilities under this clause (ii) being herein
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collectively called the "Interest Rate Protection Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of such Pledgor (as
obligor or guarantor, as the case may be) to the ITT Noteholders, whether
now existing or hereafter incurred under, arising out of or in connection
with the ITT Notes and the other ITT Note Documents to which such Pledgor
is at any time a party and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements on its part
contained in the ITT Note Documents (all such obligations and liabilities
under this clause (iii) being herein collectively, called the "ITT Note
Obligations");
(iv) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of such Pledgor (as
obligor or guarantor, as the case may be) to the Permitted Refinancing
Creditors, whether now existing or hereafter incurred under, arising out
of or in connection with the Permitted Refinancing Documents to which such
Pledgor is at any time a party and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements on its part
contained in the Permitted Refinancing Documents (all such obligations and
liabilities under this clause (iv) being herein collectively, called the
"Permitted Refinancing Obligations");
(v) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of such Pledgor (as
obligor or guarantor, as the case may be) to the Senior Secured
Noteholders, whether now existing or hereafter incurred under, arising out
of or in connection with the Senior Secured Notes and the other Senior
Secured Note Documents to which such Pledgor is at any time a party and
the due performance and compliance by such Pledgor with all of the terms,
conditions and agreements on its part contained in the Senior Secured Note
Documents (all such obligations and liabilities under this clause (v)
being herein collectively, called the "Senior Secured Note Obligations");
(vi) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(vii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities referred to
in clauses (i) through (vi) above, after an Event of Default (such term,
as used in this Agreement, shall mean any Event of Default at any time
under, and as defined in, any of the Credit Agreement and, if the related
Obligations (as defined below) are secured hereunder at such time, the ITT
Note Documents, the Permitted Refinancing Documents and the Senior Secured
Note Documents and any payment default (after the expiration of any
applicable grace period)
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on any of the Obligations secured hereunder at such time) shall have
occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing or realizing
on the Collateral, or of any exercise by the Pledgee of its rights
hereunder, together with reasonable attorneys' fees and court costs; and
(viii) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (viii) of this Section 1, subject to the provisions of following clause
(b), being herein collectively called the "Obligations," it being acknowledged
and agreed that the "Obligations" shall include extensions of credit of the type
described above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
(b) Notwithstanding anything to the contrary contained above in this
Section 1 or elsewhere in this Agreement, (i) obligations and liabilities which
would otherwise constitute Obligations as defined in clauses (iii) through (v)
inclusive, of Section 1(a) shall not constitute Obligations for purposes of (or
be secured pursuant to) this Agreement if same were incurred (or guaranteed) in
violation of the provisions of Section 9.04 of the Credit Agreement as same is
in effect on the date of the incurrence of the respective obligations or
liabilities (or, in the case of ITT Note Obligations, as same is in effect on
the Initial Borrowing Date), (ii) no Obligations as otherwise described in
clauses (iii) through (v) inclusive, of Section 1(a) of this Agreement shall be
secured pursuant hereto if the respective security interests are prohibited by
the terms of Section 9.01 of the Credit Agreement as same is in effect on the
date of the incurrence of the respective obligations or liabilities (or, in the
case of ITT Note Obligations, as same is in effect on the Initial Borrowing
Date) and (iii) no obligations of the types described in clauses (iii) through
(v), inclusive, of Section 1(a) of this Agreement shall constitute Obligations
secured pursuant to this Agreement unless, within 30 days of the date of the
incurrence of the respective Indebtedness (or within 30 days after the Initial
Borrowing Date in the case of Indebtedness outstanding on the Initial Borrowing
Date), the following condition is satisfied:
A written notice from the Parent Companies, stating that it is a
"Notice of Pledge Agreement Entitlement" (each a "Notice of Pledge
Agreement Entitlement") shall be delivered to the Pledgee, which
written notice shall describe the respective Obligations (and which
shall describe the Pledgors obligated, as obligors or guarantors, with
respect thereto) to be secured hereby. Each Notice of Pledge Agreement
Entitlement shall state that it is delivered pursuant to Section 1(b)
of this Pledge and Security Agreement and shall reference the aggregate
principal amount of the respective Indebtedness constituting
Obligations hereunder and shall specify the sub-clause of Section 1(a)
pursuant to which same constitute Obligations. At the option of the
Parent Companies, a Notice of Pledge Agreement Entitlement may also
contain an election as described in the immediately succeeding
sentence.
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Notwithstanding anything to the contrary contained in Section 1 or elsewhere in
this Agreement, if the Parent Companies elect, in the respective Notice of
Pledge Agreement Entitlement, that any Pledgor's or Pledgors' obligations with
respect to any Indebtedness of the type described in clauses (iii) through (v)
inclusive, of Section 1(a) of this Agreement shall not be secured pursuant to
this Agreement, then any obligations of the respective Pledgor or Pledgors so
designated shall not be secured pursuant to this Agreement.
2. DEFINITION OF STOCK, LIMITED LIABILITY COMPANY INTERESTS, PARTNERSHIP
INTERESTS, SECURITIES, ETC. (a) As used herein: (i) the term "Stock" shall mean
(x) with respect to corporations incorporated under the laws of the United
States or any State or territory thereof (each a "Domestic Corporation"), all of
the issued and outstanding shares of capital stock of any Domestic Corporation
at any time owned by any Pledgor and (y) with respect to corporations that are
not Domestic Corporations (each a "Foreign Corporation"), all of the issued and
outstanding shares of capital stock of any Foreign Corporation at any time owned
by any Pledgor, provided that, (A) except as provided in the last sentence of
this Section 2(a), such Pledgor shall not be required to pledge hereunder more
than 65% of the total combined voting power of all classes of capital stock
entitled to vote for the directors of such Foreign Corporation (herein called
"Voting Stock") owned by such Pledgor of any Foreign Corporation, (B) the
Pledgor shall be required to pledge hereunder 100% of the issued and outstanding
shares of all capital stock which is not Voting Stock (herein called "Non-Voting
Stock") at any time owned by the Pledgor of any Foreign Corporation, (C) to the
extent provided in Section 8.16 of the Credit Agreement, such Pledgor shall not
be required to pledge hereunder any Margin Stock owned by such Pledgor
(although, to the extent required by Section 8.16 of the Credit Agreement,
Margin Stock may be required to be pledged hereunder from time to time) (and (D)
to the extent provided in Section 13.19 of the Credit Agreement, such Pledgor
shall not be required to pledge hereunder any outstanding shares of ITT MSG,
Inc. capital stock (although, to the extent required by Section 13.19 of the
Credit Agreement, the capital stock of ITT MSG, Inc. shall be required to be
pledged hereunder); (ii) the term "Limited Liability Company Interest" shall
mean the entire limited liability company interests at any time owned by each
Pledgor in any limited liability company; (iii) the term "Partnership Interest"
shall mean the entire partnership interests (whether general and/or limited
partnership interests) at any time owned by each Pledgor in any Person; and (iv)
the term "Securities" shall mean all of the Stock, Limited Liability Company
Interests and Partnership Interests. Each Pledgor represents and warrants that
on the date hereof (i) the Stock held by such Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex A hereto;
(ii) such Stock constitutes that percentage of the issued and outstanding
capital stock of the issuing corporation as is set forth in Annex A hereto;
(iii) the Limited Liability Interests held by such Pledgor consist of the number
and type of interest of the issuing Person as described in Annex B hereto; (iv)
such Limited Liability Company Interests constitute that percentage of the
issued and outstanding equity interests of the issuing Person as set forth in
Annex B hereto; (v) the Partnership Interests held by such Pledgor constitute
that percentage of the entire Partnership Interest of the respective Pledged
Partnership as is set forth in Annex C hereto for such Pledgor; and (vi) on the
date hereof, such Pledgor owns no other Securities. In the circumstances and to
the extent provided in Section 8.14 of the Credit Agreement, the limitation set
forth in part (A) of the proviso to clause (i)(y) of this Section 2(a) and in
Section 3.2 hereof shall no longer be applicable and such
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Pledgor shall duly pledge and deliver to the Pledgee such of the Securities not
theretofore required to be pledged hereunder.
(b) All Stock at any time pledged or required to be pledged hereunder is
hereinafter called the "Pledged Stock," all Limited Liability Company Interests
at any time pledged or required to be pledged hereunder are hereinafter called
the "Pledged Limited Liability Company Interests," all Partnership Interests at
any time pledged or required to be pledged hereunder are hereinafter called the
"Pledged Partnership Interests," all of the Pledged Stock, Pledged Limited
Liability Interests and Pledged Partnership Interests together are hereinafter
called the "Pledged Securities," which together with all proceeds thereof,
including any securities and moneys received and at the time held by the Pledgee
hereunder and all rights under Section 3.1(a)(iv) and (v) are hereinafter called
the "Collateral".
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. (a) To secure all Obligations of such Pledgor and for the
purposes set forth in Section 1 hereof, each Pledgor hereby: (i) grants to the
Pledgee a security interest in all of the Collateral owned by such Pledgor; (ii)
pledges and deposits as security with the Pledgee the Securities owned by such
Pledgor on the date hereof, and delivers to the Pledgee certificates or
instruments therefor, accompanied by undated stock powers duly executed in blank
by such Pledgor in the case of Stock, or such other instruments of transfer as
are reasonably acceptable to the Pledgee; (iii) assigns, transfers,
hypothecates, mortgages, charges and sets over to the Pledgee all of such
Pledgor's right, title and interest in and to such Securities (and in and to all
certificates or instruments evidencing such Securities), to be held by the
Pledgee, upon the terms and conditions set forth in this Agreement; (iv)
transfers and assigns to the Pledgee all of such Pledgor's Limited Liability
Company Interests and all of such Pledgor's right, title and interest in each
limited liability company to which such interests relate, whether now existing
or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits, losses,
Limited Liability Company Assets (as defined below) and other
distributions to which such Pledgor shall at any time be entitled in
respect of such Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any limited
liability company agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any limited
liability company agreement or operating agreement, or at law or otherwise
in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor against
any such limited liability company for moneys loaned or advanced, for
services rendered or otherwise;
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(E) all of such Pledgor's rights under any limited liability company
agreement or operating agreement or at law to exercise and enforce every
right, power, remedy, authority, option and privilege of such Pledgor
relating to such Limited Liability Company Interests, including any power
to terminate, cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of such Pledgor in respect of
such Limited Liability Company Interest and any such limited liability
company, to make determinations, to exercise any election (including, but
not limited to, election of remedies) or option or to give or receive any
notice, consent, amendment, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce or
execute any checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing;
(F) all other property hereafter delivered in substitution for or in
addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(G) to the extent not otherwise included, all proceeds of any or all
of the foregoing;
and (v) transfers and assigns to the Pledgee such Pledgor's Partnership
Interests (and delivers any certificates or instruments evidencing such
partnership interests, duly endorsed in blank) and all of such Pledgor's right,
title and interest in each Pledged Partnership including, without limitation:
(A) all of the capital thereof and its interest in all profits,
losses, Partnership Assets (as defined below) and other distributions to
which such Pledgor shall at any time be entitled in respect of any such
Collateral;
(B) all other payments due or to become due to such Pledgor in
respect of any such Collateral, whether under any partnership agreement or
otherwise, whether as contractual obligations, damages, insurance proceeds
or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interest, liens and remedies, if any, under any
partnership or other agreement or at law or otherwise in respect of any
such Collateral;
(D) all present and future claims, if any, of such Pledgor against
any Pledged Partnership for moneys loaned or advanced, for services
rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement or
at law to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to any Partnership Interest,
including any power, if any, to terminate,
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cancel or modify any general or limited partnership agreement, to execute
any instruments and to take any and all other action on behalf of and in
the name of such Pledgor in respect of such Partnership Interest and any
Pledged Partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to give
or receive any notice, consent, amendment, waiver or approval, together
with full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Partnership Asset, to enforce
or execute any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing;
(F) all other property hereafter delivered in substitution for or in
addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all thereof; and
(G) to the extent not otherwise included, all proceeds of any or all
of the foregoing.
(b) As used herein, the term "Limited Liability Company Assets"
shall mean all assets, whether tangible or intangible and whether real, personal
or mixed (including, without limitation, all limited liability company capital
and interests in other limited liability companies), at any time owned or
represented by any Limited Liability Company Interest.
(c) As used herein, the term "Partnership Assets" shall mean all
assets, whether tangible or intangible and whether real, personal or mixed
(including, without limitation, all partnership capital and interests in other
partnerships), at any time owned by any Pledged Partnership or represented by
any Partnership Interest.
3.2. Subsequently Acquired Securities. If any Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional Securities at any time
or from time to time after the date hereof, such Securities shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1(a) and,
furthermore, such Pledgor will forthwith deliver and deposit such Securities (or
certificates or instruments representing such Securities) as security with the
Pledgee and deliver to the Pledgee certificates therefor or instruments thereof,
and accompanied by undated stock powers duly executed in blank in the case of
Stock, Limited Liability Company Interests or Partnership Interests or such
other instruments of transfer as are reasonably acceptable to the Pledgee, and
will promptly thereafter deliver to the Pledgee a certificate executed by any
Authorized Officer of such Pledgor describing such Securities and certifying
that the same have been duly pledged with the Pledgee hereunder. Subject to the
last sentence of Section 2(a) hereof, any pledge of Voting Stock of any Foreign
Corporation shall be subject to the provisions of part (A) of the proviso to
clause (i)(y) of Section 2(a) hereof.
3.3. Uncertificated Securities. If any Securities (whether now owned
or hereafter acquired) are uncertificated securities, the respective Pledgor
shall promptly notify the Pledgee
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thereof, and shall promptly take all actions required to perfect the security
interest of the Pledgee under applicable law (including, in any event, under
Sections 8-106 and 9-115 of the New York UCC, if applicable). Each Pledgor
further agrees to take such actions as the Pledgee deems reasonably necessary or
desirable to effect the foregoing and to permit the Pledgee to exercise any of
its rights and remedies hereunder, and agrees to provide an opinion of counsel
reasonably satisfactory to the Pledgee with respect to any such pledge of
uncertificated Securities promptly upon request of the Pledgee.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. (a) The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Pledged Securities, which may be held (in
the discretion of the Pledgee) in the name of such Pledgor, endorsed or assigned
in blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or
a sub-agent appointed by the Pledgee. The Pledgee agrees to promptly notify the
relevant Pledgor after the appointment of any sub-agent; provided, however, that
the failure to give such notice shall not affect the validity of such
appointment.
(b) In the case of any Pledgor's grant to the Pledgee of Securities
of any corporation, partnership or limited liability company that holds a Nevada
gaming license, such Securities shall be held by a sub-agent of the Pledgee
residing in the state of Nevada.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until an
Event of Default shall have occurred and be continuing, each Pledgor shall be
entitled to (i) exercise any and all voting and other consensual rights
pertaining to the Pledged Stock and to give all consents, waivers or
ratification's in respect thereof; and (ii) exercise any and all voting,
consent, administration, management and other rights and remedies under (x) any
limited liability company agreement or operating agreement or otherwise with
respect to the Pledged Limited Liability Interests of such Pledgor and (y) any
partnership agreement or otherwise with respect to the Pledged Partnership
Interests of such Pledgor; provided, that no vote shall be cast or any consent,
waiver or ratification given or any action taken which would violate or be
inconsistent with any of the terms of this Agreement or any other Credit
Document, or which would have the effect of impairing the rights, priorities or
remedies of the Pledgee or any other Secured Creditor under this Agreement or
any other Credit Documents. All such rights of such Pledgor to vote and to give
consents, waivers and ratification's shall cease in case an Event of Default
shall occur and be continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless an Event of Default
shall have occurred and be continuing, all cash dividends and other cash
distributions payable in respect of the Pledged Securities shall be paid to the
respective Pledgor; provided, that all cash dividends and other cash
distributions payable in respect of any Pledged Security which are determined by
the Pledgee to represent in whole or in part an extraordinary, liquidating or
other distribution in return of capital shall be paid, to the extent so
determined to represent an extraordinary, liquidating or other distribution in
return of capital, to the Pledgee and retained by it as part of the Collateral.
The Pledgee shall also be entitled to receive directly, and to retain as part of
the Collateral:
(i) all other or additional stock or other securities or
property (other than cash)
11
paid or distributed by way of dividend or otherwise in respect of
the Pledged Stock, Pledged Limited Liability Company Interests and
Pledged Partnership Interests;
(ii) all other or additional stock or other securities or
property (including cash) paid or distributed in respect of the
Pledged Stock, Pledged Limited Liability Company Interests or
Pledged Partnership Interests by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock or other securities or
property (including cash) which may be paid in respect of the
Collateral by reason of any consolidation, merger, exchange of
stock, conveyance of assets, liquidation or similar corporate
reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by the Pledgor contrary to the provisions of this Section 6
and Section 7 below shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of the Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF EVENT OF DEFAULT. In case an Event of
Default shall have occurred and be continuing, the Pledgee shall be entitled to
exercise all of the rights, powers and remedies (whether vested in it by this
Agreement or by any other Credit Document or, to the extent then in effect and
secured hereby, any Interest Rate Protection Agreement, any ITT Note Document,
any Permitted Refinancing Document, any Senior Secured Note Document (with all
of the Documents listed above being herein collectively called the "Senior
Documents" or the "Secured Debt Agreements") or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Pledgee shall be
entitled to exercise all the rights and remedies of a secured party under the
UCC and also shall be entitled, without limitation, to exercise the following
rights, which each Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral payable to such Pledgor under Section 6 hereof;
(ii) to transfer all or any part of the Pledged Securities
into the Pledgee's name or the name of its nominee or nominees (the
Pledgee agrees to promptly notify the relevant Pledgor after such
transfer; provided, however, that the failure to give such notice
shall not affect the validity of such transfer);
(iii) to vote all or any part of the Pledged Stock, Pledged
Limited Liability Company Interests or Pledged Partnership Interests
(whether or not transferred into the name of the Pledgee) and give
all consents, waivers and ratification's in respect of the
Collateral and otherwise act with respect thereto as though it were
the outright owner thereof (each Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of substitution to
do so); and
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(iv) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention
to sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each
Pledgor), for cash, on credit or for other property, for immediate
or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its
absolute discretion may determine; provided, that at least 10
Business Days' notice of the time and place of any such sale shall
be given to such Pledgor. Each Pledgor hereby waives and releases to
the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after
sale hereunder, and all rights, if any, of marshalling the
Collateral and any other security for the Obligations or otherwise.
At any such sale, unless prohibited by applicable law, the Pledgee
on behalf of the Secured Creditors may bid for and purchase all or
any part of the Collateral so sold free from any such right or
equity of redemption. Neither the Pledgee nor any Secured Creditor
shall be liable for failure to collect or realize upon any or all of
the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard
thereto.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or any other Secured Debt Agreement
or now or hereafter existing at law or in equity or by statute shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. The Secured Creditors
agree that this Agreement may be enforced only by the action of the
Administrative Agents or the Pledgee, in each case acting upon the instructions
of the Required Secured Creditors (as defined in Annex G hereto) and that no
other Secured Creditor shall have any right individually to seek to enforce or
to enforce this Agreement or to realize upon the security to be granted hereby,
it being understood and agreed that such rights and remedies may be exercised by
the Administrative Agents or the Pledgee, as the case may be, for the benefit of
the Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent upon any sale or other disposition of the Collateral of each
Pledgor, together with all other moneys received by the Collateral Agent
hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to the
Collateral Agent of the type provided in clauses (vii) and (viii) of
the definition of Obligation;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations of the respective Pledgor shall
be paid to the Secured Creditors (with such Secured Creditors
13
being herein called the "Senior Secured Creditors") as provided in
Section 9(e) hereof, with each Senior Secured Creditor receiving an
amount equal to its outstanding Primary Obligations of such Pledgor
or, if the proceeds are insufficient to pay in full all such Primary
Obligations, its Pro Rata Share of the amount remaining to be
distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an
amount equal to the outstanding Secondary Obligations of the
respective Pledgor shall be paid to the Senior Secured Creditors as
provided in Section 9(e) hereof, with each Senior Secured Creditor
receiving an amount equal to its outstanding Secondary Obligations
of such Pledgor or, if the proceeds are insufficient to pay in full
all such Secondary Obligations, its Pro Rata Share of the amount
remaining to be distributed; and
(iv) fifth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant
to Section 18 hereof, to the relevant Pledgor or to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, of the respective
Pledgor and the denominator of which is the then outstanding amount of all
Primary Obligations or Secondary Obligations, as the case may be, of the
respective Pledgor, (y) "Primary Obligations" of any Pledgor shall mean (i) in
the case of the Credit Document Obligations, all Obligations of such Pledgor
arising out of or in connection with (including, without limitation, as obligor
or guarantor, as the case may be) the principal of, and interest on, all Loans,
all Unpaid Drawings theretofore made (together with all interest accrued
thereon), and the aggregate Stated Amounts of all Letters of Credit issued under
the Credit Agreement, and all regularly accruing Fees, (ii) in the case of the
ITT Note Obligations, all Obligations of such Pledgor secured hereby arising out
of or in connection with (including, without limitation, as obligor or
guarantor, as the case may be) the principal of, and interest on, the ITT Notes,
(iii) in the case of Qualified Permitted Refinancing Obligations, all
Obligations of such Pledgor secured hereby arising out of or in connection with
(including, without limitation, as obligor or guarantor, as the case may be) the
principal of, and interest on, the Qualified Permitted Refinancing Indebtedness,
(iv) in the case of the Senior Secured Note Obligations, all Obligations of such
Pledgor secured hereby arising out of or in connection with (including, without
limitation, as obligor or guarantor, as the case may be) the principal of, and
interest on, the Senior Secured Notes and (v) in the case of the Interest Rate
Protection Obligations, all Obligations of such Pledgor arising out of or in
connection with (including, without limitation, as a direct obligor or a
guarantor, as the case may be) Interest Rate Protection Agreements (other than
indemnities, fees (including, without limitation, attorneys' fees) and similar
obligations and liabilities), and (z) "Secondary Obligations" of any Pledgor
shall mean all Obligations of such Pledgor secured hereby other than Primary
Obligations.
(c) When payments to Senior Secured Creditors are based upon
their respective
14
Pro Rata Shares, the amounts received by such Senior Secured Creditors hereunder
shall be applied (for purposes of making determinations under this Section 9
only) (i) first, to the Primary Obligations of the respective Pledgor and (ii)
second, to the Secondary Obligations of the respective Pledgor.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Lender Creditors are to receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued under the Credit Agreement,
such amounts shall be paid to the Paying Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Lender Creditors as such.
If any amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Lender Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be returned by the Paying Agent to the Collateral Agent for
distribution in accordance with Section 9(a) hereof.
(e) Except as set forth in Section 9(d) hereof, all payments
required to be made hereunder shall be made (i) if to the Lender Creditors, to
the Paying Agent under the Credit Agreement for the account of the Lender
Creditors, and (ii) if to any other Secured Creditors (other than the Collateral
Agent), to the trustee, paying agent or other similar representative (each a
"Representative") for such Secured Creditors or, in the absence of such a
Representative, directly to the other Secured Creditors.
(f) For purposes of applying payments received in accordance
with this Section 9, the Collateral Agent shall be entitled to rely upon (i) the
Paying Agent under the Credit Agreement and (ii) the Representative for any
other Secured Creditors or, in the absence of such a Representative, upon the
respective Secured Creditors for a determination (which the Paying Agent, each
Representative for any other Secured Creditors and the Secured Creditors agree
(or shall agree) to provide upon request of the Collateral Agent) of the
outstanding Primary Obligations and Secondary Obligations owed to the Secured
Creditors. Unless it has actual knowledge (including by way of written notice
from a Representative for any Secured Creditor or directly from a Secured
Creditor) to the contrary, the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Interest Rate Protection Agreements are in existence.
(g) It is understood and agreed that each Pledgor shall remain
liable to the extent of any deficiency between the amount of the proceeds of the
Collateral pledged by it hereunder and the aggregate amount of the Obligations
of such Pledgor.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
15
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify and hold harmless the Pledgee in such capacity and each other
Secured Creditor from and against any and all claims, demands, losses, judgments
and liabilities of whatsoever kind or nature, and (ii) to reimburse the Pledgee
and each other Secured Creditor for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case to the extent growing out of or
resulting from the exercise by the Pledgee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement except, with respect to
clauses (i) and (ii) above, to the extent arising from the Pledgee's or such
other Secured Creditor's gross negligence or willful misconduct. In no event
shall the Pledgee be liable, in the absence of gross negligence or willful
misconduct on its part, for any matter or thing in connection with this
Agreement other than to account for moneys actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of the Pledgors
under this Section 11 are unenforceable for any reason, each Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. FURTHER ASSURANCES; POWER OF ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the applicable UCC or such other law such
financing statements, continuation statements and other documents in such
offices as the Pledgee may reasonably deem necessary or appropriate and wherever
required or permitted by law in order to perfect and preserve the Pledgee's
security interest in the Collateral and hereby authorizes the Pledgee to file
financing statements and amendments thereto relative to all or any part of the
Collateral without the signature of such Pledgor where permitted by law, and
agrees to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and instruments as
the Pledgee may reasonably deem necessary or advisable to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee its
rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time after the
occurrence and during the continuance of an Event of Default in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed that the obligations of the
Pledgee as holder of the Collateral and interests therein and with respect to
the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement. The Pledgee shall act hereunder on the
terms and conditions set forth in Annex G hereto, the terms of which shall be
deemed incorporated herein by reference as fully as if same were set forth
herein in their entirety.
14. TRANSFER BY PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except in accordance
with the terms of this Agreement and as permitted
16
by the terms of the Credit Agreement).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, record and beneficial owner of, and has
good title to, all Pledged Securities purported to be owned by such
Pledgor (including as shown on Annexes A, B and C hereof), subject
to no Lien, except the Liens created by this Agreement and Liens
permitted under Section 9.01 of the Credit Agreement;
(ii) it has full power, authority and legal right to pledge
all the Pledged Securities;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes the legal, valid and
binding obligation of such Pledgor enforceable in accordance with
its terms, except to the extent that the enforceability hereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) no consent of any other party (including, without
limitation, any stockholder or creditor of such Pledgor or any of
its Subsidiaries and any other partners or members of such Pledgor's
partnerships or limited liability companies) and no consent,
license, permit, approval or authorization of, exemption by, notice
or report to, or registration, filing (except any filings required
under the UCC, which filings have been made) or declaration with,
any governmental authority is required to be obtained by such
Pledgor in connection with the execution, delivery or performance of
this Agreement, or in connection with the exercise of its rights and
remedies pursuant to this Agreement, except those which have been
obtained or made or as may be required by laws affecting the offer
and sale of securities generally in connection with the exercise by
the Pledgee of certain of its remedies hereunder or which may be
required to be obtained by the Pledgee pursuant to Section 22 or 23
hereof in connection with the exercise of its rights and remedies
hereunder;
(v) the execution, delivery and performance of this Agreement
by such Pledgor does not violate any provision of any applicable law
or regulation or of any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority, domestic or
foreign, or of the certificate of incorporation or by-laws (or
analogous organizational documents) of such Pledgor or of any
securities issued by such Pledgor or any of its Subsidiaries, or of
any mortgage, indenture, lease, deed of trust, credit agreement or
loan agreement, or any other material agreement, contract or
instrument to which such Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon such Pledgor or any of
its Subsidiaries or upon any of their respective assets and will not
result in the creation or imposition (or the obligation to create or
impose) of any lien or encumbrance on any of the assets of such
Pledgor or any of its Subsidiaries except as contemplated by this
Agreement;
17
(vi) all the shares of Stock and all Pledged Limited Liability
Company Interests have been duly and validly issued, are fully paid
and nonassessable and subject to no options to purchase or similar
rights;
(vii) the pledge, assignment and delivery (which delivery has
been made) to the Pledgee of the Pledged Stock creates a valid and
perfected first security interest in such Stock, subject to no prior
lien or encumbrance or to any agreement purporting to grant to any
third party a lien or encumbrance on the property or assets of such
Pledgor which would include the Securities;
(viii) each Pledged Partnership Interest has been validly
acquired and is fully paid for (to the extent applicable) and is
duly and validly pledged hereunder;
(ix) each partnership agreement is the legal, valid and
binding obligation of the applicable Pledgor, enforceable in
accordance with its terms;
(x) no Pledgor is in default in the payment of any portion of
any mandatory capital contribution, if any, required to be made
under any general or limited partnership agreement to which such
Pledgor is a party, and no Pledgor is in violation of any other
material provisions of any partnership agreement to which such
Pledgor is a party, or otherwise in default or violation
thereunder;
(xi) no Pledged Partnership Interest is subject to any
defense, offset or counterclaim, nor have any of the foregoing been
asserted or alleged against such Pledgor by any Person with respect
thereto;
(xii) the pledge and assignment of the Pledged Partnership
Interests and/or Pledged Limited Liability Company Interests
pursuant to this Agreement, together with the relevant filings or
recordings under the UCC (which filings and recordings have been or
will be made), create a valid perfected and continuing first
priority security interest in such Partnership Interests and/or
Limited Liability Company Interests and the proceeds thereof,
subject to no prior lien or encumbrance or to any agreement
purporting to grant to any third party a lien or encumbrance on the
property or assets of such Pledgee or which would include the
collateral;
(xiii) there are no currently effective financing statements
in respect of the UCC covering property which is now or hereafter
may be included in the Collateral and such Pledgor will not, without
the prior written consent of the Pledgee, execute and, until the
Termination Date (as hereinafter defined), there will not ever be on
file in any public office any enforceable financing statement or
statements covering any or all of the Collateral, except financing
statements filed or to be filed in favor of the Pledgee as secured
party;
(xiv) each Pledgor shall give the Pledgee prompt notice of any
written claim it receives relating to the Collateral; and
(xv) each Pledgor shall deliver to the Pledgee a copy of each
other demand, notice
18
or document received by it which may adversely affect the Pledgee's
interest in the Collateral promptly upon, but in any event within 10
days after, such Pledgor's receipt thereof.
Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
such Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
(b) Each Pledgor hereby further represents, warrants and
covenants that as of the date hereof, the chief executive office of such Pledgor
is located at the address indicated on Annex F hereto for such Pledgor. Such
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
15(b). No Pledgor shall establish new locations for such offices until (i) it
shall have given to the Pledgee not less than 30 days' prior written notice of
its intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Pledgee may reasonably request,
(ii) it shall have delivered to the Pledgee a written supplement to Annex F
hereto in the form of Exhibit A-1 hereto as provided in clause (c) below showing
the new location of its chief executive office and (iii) with respect to such
new location, it shall have taken all action, reasonably satisfactory to the
Pledgee, to maintain all security interest of the Pledgee in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect.
(c) Without in any way limiting Section 3.2 hereof, at any
time and from time to time that any Pledgor (x) determines that the information
with respect to it contained on Annex A, B, C and/or F, as the case may be, is
inaccurate or (y) acquires any additional Securities which have not already been
pledged hereunder and reflected on Annexes A through C, as appropriate, such
Pledgor shall deliver a supplement to this Agreement, substantially in the form
of Exhibit A-1 hereto (each a "Pledge and Security Agreement Supplement") adding
(or, in the case of any Securities released pursuant to Section 18(b) hereof,
deleting) such Securities to (from) Annexes A through C hereto, as appropriate.
The execution and delivery of any such supplement shall not require the consent
of any Pledgor hereunder. It is understood and agreed that the pledge and
security interests granted hereunder shall apply to all Collateral as provided
in Section 3.1 regardless of the failure of any Pledgor to deliver, or any
inaccurate information stated in, the Pledge and Security Agreement Supplement
as otherwise provided above.
(d) Each Pledgor hereby covenants and agrees that with respect
to all Partnership Interests or Limited Liability Company Interests, in each
case required to be pledged by it hereunder, such Pledgor will deliver to the
respective Pledged Partnerships or Pledged Limited Liability Companies, as the
case may be (with copies to the Collateral Agent) a notice (appropriately
completed) in the form of Annex D attached hereto and by this reference made a
part hereof (each such notice a "Partnership/LLC Notice") and such Pledgor will
use its reasonable best efforts to cause to be delivered to the Collateral Agent
an acknowledgment in the form set forth as Annex E attached hereto (each such
acknowledgment, a "Pledge
19
Acknowledgment"), duly executed by the relevant Pledged Partnership and/or
Pledged Limited Liability Company, as the case may be, in each case within
forty-five days following the date of any pledge of any Pledged Partnership
Interests or Pledged Limited Liability Company Interests hereunder.
16. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument or this Agreement; (iii) any furnishing of any
additional security to the Pledgee or its assignee or any acceptance thereof or
any release of any security by the Pledgee or its assignee; (iv) any limitation
on any party's liability or obligations under any such instrument or agreement
or any invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof; (v) any limitation on any other
Pledgor's liability or obligations under this Agreement, the Guaranty or any
other Credit Document or any invalidity or unenforceability, in whole or in
part, of this Agreement, the Guaranty or any other Credit Document or any term
thereof; or (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Pledgor or any Subsidiary of such Pledgor, or any action taken with respect to
this Agreement by any trustee or receiver, or by any court, in any such
proceeding, whether or not such Pledgor shall have notice or knowledge of any of
the foregoing.
17. REGISTRATION, ETC. (a) If an Event of Default shall have
occurred and be continuing and any Pledgor shall have received from the Pledgee
a written request or requests that such Pledgor cause any registration,
qualification or compliance under any Federal or state securities law or laws to
be effected with respect to all or any part of the Pledged Securities, such
Pledgor as soon as practicable and at its expense will use its best efforts to
cause such registration to be effected (and be kept effective) and will use its
best efforts to cause such qualification and compliance to be effected (and be
kept effective) as may be so requested and as would permit or facilitate the
sale and distribution of such Pledged Securities, including, without limitation,
registration under the Securities Act as then in effect (or any similar statute
then in effect), appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with any other government
requirements; provided, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may request in writing and as
shall be required in connection with any such registration, qualification or
compliance. Such Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or
compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of the Pledged Securities against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related
20
registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same may have been caused by an untrue statement or omission based upon
information furnished in writing to such Pledgor by the Pledgee or such other
Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Pledged Securities pursuant to
Section 6 hereof, such Pledged Securities or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the Securities
Act, as then in effect, the Pledgee may, in its sole and absolute discretion,
sell such Pledged Securities or part thereof by private sale in such manner and
under such circumstances as the Pledgee may deem necessary or advisable in order
that such sale may legally be effected without such registration; provided, that
at least 10 Business Days' notice of the time and place of any such sale shall
be given to such Pledgor. Without limiting the generality of the foregoing, in
any such event the Pledgee, in its sole and absolute discretion: (i) may proceed
to make such private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Securities or part thereof shall have been
filed under such Securities Act; (ii) may approach and negotiate with a single
possible purchaser to effect such sale; and (iii) may restrict such sale to a
purchaser who will represent and agree that such purchaser is purchasing for its
own account, for investment, and not with a view to the distribution or sale of
such Pledged Securities or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility or liability for selling all or any part
of the Pledged Securities at a price which the Pledgee, in its sole and absolute
discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
18. TERMINATION, RELEASE. (a) After the Termination Date (as
defined below), this Agreement shall terminate (provided that all indemnities
set forth herein including, without limitation, in Section 11 hereof shall
survive any such termination) and the Pledgee, at the request and expense of the
respective Pledgor, will promptly execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Pledgee and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement. As used in this
Agreement, "Termination Date" shall mean the date upon which the Total
Commitments and all Interest Rate Protection Agreements have been terminated, no
Note or Letter of Credit is outstanding and all other Obligations (excluding
normal continuing indemnity obligations which survive in accordance with their
terms, so long as no amounts are then due and payable in respect thereof) have
been indefeasibly paid in full.
(b) So long as no ITT Note Event (as defined below) has
occurred and is continuing, in the event that any part of the Collateral is sold
(but not to any Borrower or a Subsidiary thereof) in connection with a sale
permitted by Section 9.02 of the Credit Agreement or is otherwise released at
the direction of the Required Secured Creditors), the Pledgee, at the request
and expense of such Pledgor will duly assign, transfer and deliver to such
Pledgor
21
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
possession of the Pledgee and has not theretofore been released pursuant to this
Agreement. Any proceeds of Collateral sold as contemplated by the immediately
preceding sentence may be applied in accordance with the requirements of the
Credit Agreement. As used herein, an "ITT Note Event" shall mean the
acceleration of the maturity of any ITT Notes or the failure to pay at maturity
any ITT Notes, or the occurrence of any default or event of default of the types
specified in Section 6.1(f) or (g) of the ITT Indenture; provided that no ITT
Note Event shall be deemed to exist (x) at any time when no ITT Note Obligations
are secured hereunder or (y) after all ITT Note Obligations have been repaid in
full.
(c) At any time that a Pledgor desires that Collateral be
released as provided in the foregoing Section 18(a) or (b), it shall deliver to
the Pledgee a certificate signed by an Authorized Officer of such Pledgor
stating that the release of the respective Collateral is permitted pursuant to
Section 18(a) or (b), and the Pledgee shall be entitled (but not required) to
conclusively rely thereon.
19. NOTICES, ETC. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed as follows:
(a) if to any Pledgor, at:
c/o Starwood Hotels & Resorts
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to the Pledgee, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000)000-0000
(c) if to any Lender Creditor (other than the Pledgee), (x) to
the Paying Agent, at the address of the Paying Agent specified in
the Credit Agreement or (y) at such address as such Lender Creditor
shall have specified in the Credit Agreement;
22
(d) if to any other Secured Creditor, (x) to the
Representative for such Secured Creditor or (y) if there is no such
Representative, at such address as such Secured Creditor shall have
specified in writing to each Pledgor and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby (it being understood that additional Pledgors may be added as parties
hereto from time to time in accordance with Section 24 and Pledgors may be
released as parties hereto in accordance with Section 21, and that no consent of
any other Pledgor or of the Secured Creditors shall be required in connection
therewith) and the Pledgee (with the written consent of either (x) the Required
Lenders (or all the Lenders if required by Section 13.12 of the Credit
Agreement) at all times prior to the time at which all Credit Document
Obligations have been paid in full and all commitments pursuant to the Credit
Agreement have terminated (with such date being herein called the "Credit
Document Obligations Termination Date") or (y) the holders of at least a
majority of the then outstanding Obligations secured hereby at all times after
the Credit Document Obligations Termination Date provided, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below), with outstanding Obligations of the respective Class
secured hereby at such time, of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall require the written consent of the Requisite
Creditors (as defined below) of such Class. Notwithstanding anything to the
contrary contained above, it is understood and agreed that the Required Lenders
may agree to modifications to this Agreement for the purpose, among other
things, of securing additional extensions of credit (including, without
limitation, pursuant to the Credit Agreement or any refinancing or extension
thereof), with such changes not being subject to the proviso to the immediately
preceding sentence. Furthermore, the proviso to the second preceding sentence
shall not apply to any release of collateral effected in accordance with the
requirements of Section 18 of this Agreement, or any other release of collateral
or termination of this Agreement so long as the Parent Companies certify that
such actions will not violate the terms of any Secured Debt Agreement then in
effect. For the purpose of this Agreement, the term "Class" shall mean each
class of Secured Creditors with outstanding Obligations secured hereby at such
time, i.e., whether (i) the Lender Creditors as holders of the Credit Document
Obligations, (ii) the ITT Noteholders as holders of ITT Note Obligations secured
hereby, (iii) the Permitted Refinancing Creditors as holders of Permitted
Refinancing Obligations secured hereby, (iv) the Senior Secured Noteholders as
the holders of Senior Secured Note Obligations secured hereby and (v) the
Interest Rate Protection Creditors as holders of the Interest Rate Protection
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (i) with respect to the Credit Document
Obligations, the Required Lenders and (ii) with respect to any other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the respective Secured Debt Agreement.
21. RELEASE OF GUARANTORS. In the event any Pledgor which is a
Subsidiary of any Borrower party to the Guaranty is released from the Guaranty,
such Pledgor (so long as not a Borrower) shall be released from this Agreement
and this Agreement shall, as to
23
such Pledgor only, have no further force or effect.
22. GAMING APPROVALS. (a) Unless approved in advance by the
Nevada Gaming Commission (the "NGC"), the Pledged Securities issued by ITT
Corporation, a Nevada corporation ("ITT"), and ITT Sheraton Corporation, a
Nevada Corporation ("ITTSC"), shall not be subject to the pledge under this
Pledge Agreement, and the grant of any security interest shall not be effective
for any purpose as to any Pledged Securities issued by ITT or ITTSC, nor shall
any interest in any Pledged Securities issued by ITT or ITTSC be transferred in
any manner whatsoever to the Pledgee or any other Person.
(b) No Pledged Securities issued by ITT or ITTSC shall be
otherwise sold, assigned, transferred, pledged or otherwise disposed of, whether
pursuant to the Pledge Agreement or the exercise of any right, power or remedy
provided for therein or otherwise, unless the grant of the security interest or
such other disposition as the case may be, has been approved in advance by the
NGC, and unless the transferee of the Pledged Securities issued by ITT and ITTSC
disposed of shall have first obtained any and all licenses, findings of
suitability or approvals required by the Nevada Gaming Control Act and the
regulations thereunder, or shall have been found to be individually qualified to
be licensed, as appropriate. Without limiting the generality of foregoing,
approval of the Pledge Agreement by the NGC shall not constitute permission to
foreclose on the same or make any other disposition of the Pledged Securities
issued by ITT or ITTSC without a further order of the NGC.
(c) Unless the Pledgee or any other Person required to do so,
has obtained any and all licenses, findings of suitability or approvals required
by the Nevada Gaming Control Act and the regulations thereunder, such Pledgee or
other Person shall not receive any dividend, payment or other distribution from
or exercise any right in respect to, any Pledged Securities issued by ITT or
ITTSC.
(d) Unless approved in advance by the NGC, no restriction on
the transfer of any Pledged Securities issued by ITT or ITTSC, or any covenant
or agreement not to encumber any Pledged Securities issued by ITT or ITTSC,
shall be effective for any purpose whatsoever.
(e) If at any time after the Pledgee or any other Person
becomes the owner of any Pledged Securities issued by ITT or ITTSC, whether
pursuant to the Pledge Agreement or the exercise of any right, power or remedy
provided for therein or otherwise, the NGC finds that such Pledgee or other
Person is unsuitable to continue as a gaming licensee or otherwise to be
associated with a gaming licensee in the state of Nevada (hereinafter referred
to as an "Unsuitable Person"), such Unsuitable Person shall immediately offer
any and all Pledged Securities of ITT and ITTSC owned by such Unsuitable Person
to ITT or ITTSC, respectively, for purchase and shall allow ITT and ITTSC,
respectively, to purchase such Pledged Securities for cash at fair market value
thereof, as determined by the NGC, within ten (10) days after the date of the
offer or upon such other terms and conditions for such acquisition of such
Pledged Securities as may be prescribed by the NGC.
(f) The Pledgee and any such other Person hereby acknowledge,
understand and agree and each other person that concurrently with the execution
and delivery of the Pledge
24
Agreement or at any time thereafter, acquires any right, title or interest in
any Pledged Securities of ITT or ITTSC, pursuant to the Pledge Agreement or the
exercise of any right, power or remedy provided for therein by virtue of such
acquisition of the Pledged Securities, shall be deemed to have acknowledged.
understood and agreed that:
(i) Beginning upon the date on which the NGC serves upon ITT
or ITTSC, respectively, notice of the determination of unsuitability
pursuant to Section 2 of Nevada Revised Statutes ("NRS") 463.510, it
will be unlawful for the Unsuitable Person owning any Pledged
Securities issued by ITT or ITTSC:
(A) To receive any dividend or interest upon any such
securities;
(B) To exercise, directly or through any Pledgee or
nominee, any voting right conferred by such
security;
(C) To receive any remuneration in any form from ITT or
ITTSC, for services rendered or otherwise; or,
(D) To receive any other payment or distribution, of
any kind whatsoever, in respect of any such
security, by way of or pursuant to payment of
principal, redemption, conversion, exchange or
liquidation or any other transaction.
(ii) Each certificate evidencing one or more of the Pledged
Securities issued by ITT or ITTSC shall bear a statement on both
sides of the certificate of the restrictions described in subsection
(f) (i) above, to the extent required by Nevada law or any order of
the NGC.
(iii) The physical location of each certificate evidencing one
or more of the Pledged Securities issued by ITT or ITTSC shall at
all times remain within the territory of the state of Nevada, and
each of such certificates shall be made available for inspection by
agents of the NGC or the Nevada State Gaming Control Board ("SGCB"),
immediately upon request during normal business hours. Except as
permitted by the NGC for the purpose of perfecting the Pledge
Agreement, the holder of any such certificate shall not surrender or
transfer possession of the same without the prior approval of the
NGC. The person located within the territory of the state of Nevada
designated to hold the Pledged Securities on behalf of the Pledgee
for the purpose of perfecting the Pledge Agreement is FIRST SECURITY
TRUST COMPANY OF NEVADA.
(g) No covenant or provision in the Pledge Agreement shall
preclude ITT or ITTSC from satisfying any financial obligation or requirement
imposed by the Nevada Gaming Control Act or regulations thereunder, including
but not limited to minimum casino bankroll requirements, mandatory game security
reserves, redemption of casino chips and tokens, or payment of winning xxxxxx to
gaming patrons.
(h) The Pledgee and any other Person who becomes the owner of
any Pledged
25
Securities issued by ITT or ITTSC, each severally agree to cooperate with the
NGC and the SGCB in connection with the administration of their regulatory
jurisdiction over ITT, ITTSC and their affiliated companies, including the
provision of such documents or other information as may be reasonably requested
by the NGC or SGCB relating to ITT, ITTSC or any of their affiliated companies
or to the Pledge Agreement.
(i) The Pledgee or any other Person who becomes the owner of
any Pledged Securities issued by ITT or ITTSC, each severally agree to comply
with any order or directive of the NGC or SGCB requiring such person or persons
to submit an application for any license, finding of suitability or other
approval pursuant to the Nevada Gaming Control Act and the regulations
thereunder.
(j) The provisions of this Section 22 of this Pledge Agreement
shall not modify or restrict the rights and remedies of the Pledgee or any other
Person under the Pledge Agreement in any other pledged collateral except for the
Pledged Securities of ITT or ITTSC; provided, the Pledgee and other Persons
acknowledge, understand and agree that the Nevada Gaming Control Act and the
regulations thereunder impose certain licensing or transaction approval
requirements prior to the exercise of such rights and remedies under the Pledge
Agreement with the respect to the Pledged Securities and other pledged
collateral subject to the Nevada Gaming Control Act and the regulations
thereunder.
(k) Notwithstanding any provision contained in this Pledge
Agreement to the contrary, if the granting of a security interest in the capital
stock of any Subsidiary shall conflict with or violate any Gaming Laws, the
Pledgee agrees to (i) release such capital stock from the pledge of this Pledge
Agreement to the extent necessary to avoid such conflict or violation or, (ii)
take any other action, including filing for applicable Approvals, sufficient to
avoid such conflict or violation. The Pledgee further acknowledges and agrees
that, prior to exercising any remedies set forth in the Pledge Agreement with
respect to the Pledged Securities of ITT or ITTSC subject to or affected by any
Gaming Laws, the Pledgee shall obtain any and all Approvals as may be required
by applicable Gaming Laws.
23. ACTIONS REQUIRING FCC APPROVAL. (a) Notwithstanding
anything to the contrary contained in this Agreement, or any of the documents
executed pursuant hereto, the Pledgee will not take any action pursuant to this
Agreement, or any such documents, which would constitute or result in any
assignment of any FCC license or any transfer of control of the holder of any
FCC license if such assignment of such license or such transfer of control would
require under then existing law (including the Communications Act and the
written rules and regulations promulgated by the FCC), the prior approval of the
FCC, without first obtaining such approval. In connection with this Section
23(a), the Pledgee shall be entitled to rely in good faith upon an opinion of
outside FCC counsel of the Pledgee's choice with respect to such assignment or
transfer whether or not the advice rendered is ultimately determined to have
been accurate. To the extent such an opinion is requested, a copy of such
opinion shall be delivered to the Pledgor. The Pledgee specifically agrees that
to the extent required by the Communications Act (i) even after an Event of
Default shall have occurred, voting rights in the Collateral will remain with
the respective Pledgor until any and all required approval of the FCC shall be
obtained to the transfer of such voting rights, (ii) after an Event of Default
and a foreclosure on the Collateral by the
26
Pledgee, there will be either a private or public sale of the Collateral, and
(iii) pursuant to Section 310(d) of the Communications Act, prior to the
exercise of stockholder rights by a purchaser at such sale, the prior consent of
the FCC will be obtained to such exercise.
(b) If an Event of Default shall have occurred and be
continuing, the Pledgors shall take any action which the Pledgee may reasonably
request in the exercise of its rights and remedies under this Agreement in order
to transfer or assign the Collateral to the Pledgee or to such one or more third
parties as the Pledgee may designate, or to a combination of the foregoing. To
enforce the provisions of this Section 23, upon an Event of Default the Pledgee
is empowered to seek from the FCC and any other governmental authority, to the
extent required, consent to or approval of any involuntary transfer of control
of any entity whose Collateral is subject to this Agreement for the purpose of
seeking a bona fide purchaser to whom control will ultimately be transferred.
Each Pledgor agrees to cooperate with any such purchaser and with the Pledgee in
the preparation, execution and filing of any forms and providing any information
that may be necessary or helpful in obtaining the FCC's consent to the
assignment to such purchaser of the Collateral. Each Pledgor hereby agrees to
consent to any such an involuntary transfer of control upon the request of the
Pledgee after and during the continuation of an Event of Default and, without
limiting any rights of the Pledgee under this Agreement, to authorize the
Pledgee to nominate a trustee or receiver to assume control of the Collateral,
subject only to required judicial, FCC or other consent required by governmental
authorities, in order to effectuate the transactions contemplated in this
Section 23. Such trustee or receiver shall have all the rights and powers as
provided to it by law or court order, or to the Pledgee under this Agreement.
Each Pledgor shall cooperate fully in obtaining the consent of the FCC and the
approval or consent of each other governmental authority required to effectuate
the foregoing.
(c) Each Pledgor shall use its best efforts to assist in
obtaining consent or approval of the FCC and any other governmental authority,
if required, for any action or transactions contemplated by this Agreement,
including, without limitation, the preparation, execution and filing with the
FCC of the transferor's or assignor's portion of any application or applications
for consent to the transfer of control or assignment necessary or appropriate
under the FCC's rules and regulations for approval of the transfer or assignment
of any portion of the Collateral. Anything herein to the contrary
notwithstanding, the Pledgors shall not be obligated to sign any such document
which such Pledgor has reasonable cause to believe contains any inaccuracy or to
make any statements concerning the qualifications of any transferee or assignee.
(d) Each Pledgor hereby acknowledges and agrees that the
Collateral is a unique asset and that a violation of the Pledgor's covenant to
cooperate with respect to any regulatory consents would result in irreparable
harm to the Pledgee for which monetary damages are not readily ascertainable.
The Pledgor further agrees that, because of the unique nature of its undertaking
in this Section 23, the same may be specifically enforced, and it hereby waives,
and agrees to waive, any claim or defense that the Pledgee would have an
adequate remedy at law for the breach of this undertaking.
(e) Without limiting the obligations of the Pledgors hereunder
in any respect, each Pledgor further agrees that if such Pledgor, upon or after
the occurrence of an Event of Default, should fail or refuse for any reason
whatsoever, without limitation, including any refusal
27
pursuant to Section 23(c), to execute any application necessary or appropriate
to obtain any governmental consent necessary or appropriate for the exercise of
any right of the Pledgee hereunder, such Pledgor agrees that such application
may be executed on such Pledgor's behalf by the clerk of any competent
jurisdiction without notice to such Pledgor pursuant to court order.
24. ADDITIONAL PLEDGORS. Pursuant to Section 8.15 of the
Credit Agreement, certain Subsidiaries of a Borrower may after the date hereof
be required to enter into this Agreement as a Pledgor. Upon execution and
delivery, after the date hereof, by the Collateral Agent and such Subsidiary of
an instrument in the form of Exhibit A-2, such Subsidiary shall become a Pledgor
hereunder with the same force and effect as if originally named as a Pledgor
hereunder. Each Subsidiary which is required to become a party to this Agreement
shall so execute and deliver a copy of Exhibit A-2 to the Collateral Agent and,
at such time, shall execute a Pledge and Security Agreement Supplement in the
form of Exhibit A-1 to this Agreement with respect to all Collateral of such
Pledgor required to be pledged hereunder, which Supplement shall be completed in
accordance with Exhibit A-1. The execution and delivery of any such instrument
shall not require the consent of any other Pledgor hereunder. Upon the execution
and delivery by the Collateral Agent and such Subsidiary of an instrument in the
form of Exhibit A-2 as provided above, it is understood and agreed that the
pledge and security interests hereunder shall apply to all Collateral of such
additional Pledgor as provided in Section 3.1 hereof regardless of any failure
of any additional Pledgor to deliver, or any inaccurate information stated in,
the Pledge and Security Agreement Supplement.
25. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all representations, warranties, covenants and
agreements on the part of the Pledgors contained herein and otherwise in writing
in connection herewith.
26. LIMITATION BY LAW; SEVERABILITY. All rights, remedies and
powers in this Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable law and may be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable,
in whole or in part.
27. PLEDGEE NOT BOUND. (a) Nothing herein shall be construed
to make the Pledgee or any other Secured Creditor liable as a member of any
limited liability company or any partnership and the Pledgee or any other
Secured Creditor by virtue of this Agreement or otherwise (except as referred to
in the following sentence) shall not have any of the duties, obligations or
liabilities of a member of any limited liability company or partnership. The
parties hereto expressly agree that, unless the Pledgee shall become the
absolute owner of the respective Pledged Limited Liability Interest or Pledged
Partnership Interest pursuant hereto, this Agreement shall not be construed as
creating a partnership or joint venture among the Pledgee, any other Secured
Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)
of this Section, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or partnership or otherwise be
deemed to be a co-venturer with respect to any Pledgor or any limited liability
company or partnership either before or after an Event of Default shall have
occurred. The Pledgee shall have only those powers set forth herein and shall
assume none
28
of the duties, obligations or liabilities of a member of any limited liability
company or partnership or any Pledgor.
(c) The Pledgee shall not be obligated to perform or discharge
any obligation of any Pledgor as a result of the collateral assignment hereby
effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee to appear in or defend any action or
proceeding relating to the Collateral to which it is not a party, or to take any
action hereunder or thereunder, or to expend any money or incur any expenses or
perform or discharge any obligation, duty or liability under the Collateral.
28. CONTINUING PLEDGORS. The rights and obligations of each
Pledgor (other than the respective released Pledgor in the case of following
clause (y)) hereunder shall remain in full force and effect notwithstanding (x)
the addition of any new Pledgor as a party to this Agreement as contemplated by
preceding Section 24 or otherwise and/or (y) the release of any Pledgor under
this Agreement as contemplated by Section 21 or otherwise.
29. NO FRAUDULENT CONVEYANCE. Each Pledgor hereby confirms
that it is its intention that this Agreement not constitute a fraudulent
transfer or conveyance for purposes of any bankruptcy, insolvency or similar
law, the Uniform Fraudulent Conveyance Act or any similar Federal, state or
foreign law. To effectuate the foregoing intention, each Pledgor hereby
irrevocably agrees that its obligations and liabilities hereunder shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities of such Pledgor that
are relevant under such laws, result in the obligations and liabilities of such
Pledgor hereunder in respect of such maximum amount not constituting a
fraudulent transfer or conveyance.
30. ALTERNATE CURRENCY REVOLVING LOAN BORROWERS. The Pledgors
hereby acknowledge that pursuant to the terms of the Credit Agreement various
Alternate Currency Revolving Loan Borrowers may become a party to the Credit
Agreement from time to time and incur Loans thereunder. The Pledgors further
acknowledge and agree that all obligations and liabilities of any Alternate
Currency Revolving Loan Borrower under the Credit Agreement shall be fully
secured hereunder as provided in Section 3.1 and no consent of the Pledgors is
required to effect the same.
31. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of each Pledgor and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns; provided that no
Pledgor may assign any of its rights or obligations hereunder without the prior
written consent of the Pledgee (with the consent of the Required Secured
Creditors and, if required by Section 13.12 of the Credit Agreement, all
Lenders). THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS). The headings in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which
29
shall be an original, but all of which shall constitute one instrument.
32. STARWOOD REIT. Each Lender acknowledges and agrees that
the name "Starwood Hotels & Resorts" is a designation of Starwood REIT and its
Trustees (as Trustees but not personally) under a Declaration of Trust dated
August 25, 1969, as amended and restated as of June 6, 1988, as further amended
on February 1, 1995 and as further amended on June 19, 1995 and as the same may
be further amended from time to time, and all persons dealing with Starwood REIT
shall look solely to Starwood REIT's assets for the enforcement of any claims
against Starwood REIT, as the Trustees, officers, agents and security holders of
Starwood REIT assume no personal liability for obligations entered into on
behalf of Starwood REIT, and their respective individual assets shall not be
subject to the claims of any person relating to such obligations.
30
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to
be duly executed and delivered by its duly authorized officer on the date first
above written.
STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a
Maryland corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
STARWOOD HOTELS & RESORTS
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
SLT REALTY LIMITED PARTNERSHIP
By: Starwood Hotels & Resorts, a Maryland real estate
investment trust, its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
ITT CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
W&S SEATTLE CORP.,
31
a Delaware corporation
By: SLT Realty Limited Partnership,
a Delaware limited partnership, its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust, its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title:Senior Vice President and Chief Financial Officer
W&S REALTY CORPORATION OF DELAWARE
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
XXXXXXXX XXXXXXXX HOTEL, INCORPORATED, a
Washington corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
W&S LAUDERDALE CORPORATION, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
LAUDERDALE HOTEL COMPANY, a Delaware corporation
32
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
WESTIN BAY HOTEL CO., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
CINCINNATI PLAZA CO., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
SOUTH COAST WESTIN HOTEL CO., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
TOWNHOUSE MANAGEMENT INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
WESTIN PREMIER INCORPORATED, a Delaware corporation
33
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN VACATION MANAGEMENT CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
WVC RANCHO MIRAGE, INCORPORATED, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN VACATION EXCHANGE COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN ASSET MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
34
Title: Senior Vice President and Chief Financial Officer
MIDLAND BUILDING CORPORATION, an Illinois corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN HOTEL COMPANY, a Delaware company
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
W&S ATLANTA CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN ONTARIO (LONDON) HOTEL COMPANY, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN ASIA MANAGEMENT HOLDING COMPANY, a
Delaware corporation
35
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN ASIA MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN CANADA MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
WESTIN OTTAWA MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN MEXICO MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
36
XXXXXX XXXXXXXXX MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN RIVER NORTH MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN HILTON HEAD MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN KANSAS CITY MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN MAUI MANAGEMENT COMPANY, a Delaware
corporation
37
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN BOSTON MANAGEMENT HOLDING COMPANY, a
Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN BOSTON MANAGEMENT COMPANY, a Delaware
corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN CENTURY CITY MANAGEMENT HOLDING
COMPANY, a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN CENTURY CITY MANAGEMENT COMPANY, a
Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
38
WESTIN NEW ORLEANS MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN NEW ORLEANS MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating Officer
WESTIN SANTA XXXXX MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN TUCSON MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN INTERNATIONAL MANAGEMENT COMPANY,
a Delaware corporation
39
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN INNISBROOK MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN PITTSBURGH MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN PITTSBURGH MANAGEMENT HOLDING
COMPANY,
a Delaware Corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN PEACHTREE MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
40
WESTIN DALLAS MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN RIVERWALK MANAGEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN REPRESENTATION COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN LICENSE COMPANY SOUTH,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
41
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN LICENSE COMPANY NORTH,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN LICENSE COMPANY EAST,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN LICENSE COMPANY WEST,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN LICENSE COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
WESTIN INTERNATIONAL SERVICES COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
SHERATON FLORIDA CORPORATION,
42
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON HARBOR ISLAND CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON HARTFORD CORPORATION,
a Connecticut corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON HAWAII HOTELS CORPORATION,
a Hawaii corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
43
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON INTER-AMERICAS, LTD.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON INTERNATIONAL DE MEXICO, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON OVERSEAS MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON WARSAW CORPORATION,
a Delaware corporation
44
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
SHERATON MARKETING CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
ITT SHERATON CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
DESTINATION SERVICES OF SCOTTSDALE, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
GENERAL FIDUCIARY CORPORATION,
a Massachusetts corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Secretary
45
GLOBAL CONNECTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
XXXXXX SHERATON LLC,
a New York corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
ITT SHERATON RESERVATIONS CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
MANHATTAN SHERATON CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SAN DIEGO SHERATON CORPORATION,
a Delaware corporation
46
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SAN XXXXXXXX SHERATON CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON 45 PARK CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON ARIZONA CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON ASIA-PACIFIC CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
47
SHERATON BLACKSTONE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON BOSTON CORPORATION,
a Massachusetts corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON CALIFORNIA CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON CAMELBACK CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON MIAMI CORPORATION,
a Delaware corporation
48
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON MIDDLE EAST MANAGEMENT
CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON NEW YORK CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON X'XXXX CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON OVERSEAS TECHNICAL SERVICES
CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
49
SHERATON PEACHTREE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON PHOENICIAN CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON SAVANNAH CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SOUTH CAROLINA SHERATON CORPORATION,
a Delaware corporation
50
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
ST. REGIS SHERATON CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
SHERATON VERMONT CORPORATION,
a Vermont corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
WORLDWIDE FRANCHISE SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President & Secretary
ITT BROADCASTING CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
51
CHARLESTON HOTEL ASSOCIATES L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
CRYSTAL CITY HOTEL ASSOCIATES, L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
52
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
LONG BEACH HOTEL ASSOCIATES L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
53
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
PRUDENTIAL-HEI JOINT VENTURE,
a Georgia general partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
54
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SANTA XXXX HOTEL ASSOCIATES, L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
55
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT ALLENTOWN LLC,
a Delaware limited liability company
By: SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership,
its managing member
By: STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT ARLINGTON L.L.C.,
a Delaware limited liability company
By: SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership,
its managing member
By: STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust,
56
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT ASPEN XXXX STREET, LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels and Resorts,
a Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT BLOOMINGTON LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels and Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
57
Officer
SLT CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels and Resorts,
a Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT DANIA LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels and Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT DC MASSACHUSETTS AVENUE, LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
58
a Delaware limited partnership,
its managing member
By: Starwood Hotels and Resorts,
a Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT INDIANAPOLIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
59
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT KANSAS CITY L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT LOS ANGELES L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
60
Officer
SLT MINNEAPOLIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT PALM DESERT L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT PHILADELPHIA L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
61
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT REALTY COMPANY, L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT SAN DIEGO L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
62
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT SOUTHFIELD L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
63
SLT ST. LOUIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT TUCSON L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STARLEX L.L.C.,
a New York limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
64
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STARWOOD ATLANTA L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STARWOOD ATLANTA II L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
65
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STARWOOD MISSION HILLS, L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its member
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
66
STARWOOD XXXXXXX L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
STARWOOD WALTHAM L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
OPERATING PHILADELPHIA L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
67
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC ALLENTOWN L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC ARLINGTON L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
68
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC ATLANTA L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC ATLANTA II L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC BLOOMINGTON L.L.C.,
69
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC CENTRAL PARK SOUTH, L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
SLC DANIA L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
70
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC DC MASSACHUSETTS AVENUE, L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its managing general partner
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
SLC KANSAS CITY L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
71
Officer
SLC LOS ANGELES L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC MINNEAPOLIS L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC XXXXXXX L.L.C.,
72
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC PALM DESERT L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC SAN DIEGO L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
73
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC SOUTHFIELD L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC ST. LOUIS L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
74
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC TUCSON L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC WALTHAM L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
75
Officer
STARWOOD MANAGEMENT COMPANY, L.L.C.,
a Delaware limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its managing member
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
BW HOTEL REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
By: SLT Realty Limited Partnership,
76
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
CP HOTEL REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
EDISON HOTEL ASSOCIATES LIMITED PARTNERSHIP,
a New Jersey limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
77
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
NOVI HOTEL ASSOCIATES, L.P.
a Delaware limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
78
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
PARK RIDGE HOTEL ASSOCIATES L.P.
a Delaware limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
79
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT FINANCING PARTNERSHIP,
a Delaware partnership
By: SLT Realty Limited Partnership,
a Delaware partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its managing general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its managing general partner
80
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
VIRGINIA HOTEL ASSOCIATES, L.P.,
a Delaware limited partnership
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: SLT Financing Partnership,
a Delaware general partnership,
its limited partner
By: SLT Realty Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
81
Officer
MOORLAND HOTEL LIMITED PARTNERSHIP,
a Wisconsin limited liability company
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC-CALVERTON LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLT Operating Limited Partnership,
a Delaware limited partnership,
its general partner
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
SLC HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership
By: SLT Operating Limited Partnership,
82
a Delaware limited partnership,
its managing general partner
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Corporate Controller
SLC OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Operating
Officer
WESTIN SEATTLE HOTEL COMPANY,
a Washington general partnership
By: W&S Realty Corp. of Delaware,
a Delaware corporation, its general partnership
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
By: Xxxxxxxx Xxxxxxxx Hotel, Inc.,
a Washington corporation
83
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
SLT REALTY LIMITED PARTNERSHIP
By: Starwood Hotels & Resorts, a Maryland real estate
investment trust, its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
ACCEPTED AND AGREED TO:
BANKERS TRUST COMPANY
as Collateral Agent and Pledgee
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
84
ANNEX A
to
PLEDGE AND SECURITY AGREEMENT
LIST OF STOCK
85
Annex C
Page 34
LIST OF LIMITED LIABILITY COMPANY INTERESTS
86
Annex D
Page 35
LIST OF PARTNERSHIP INTERESTS
87
ANNEX D
Page 36
FORM OF PARTNERSHIP/LLC NOTICE
[Letterhead of Pledgor]
-------- --, ----
TO: [Name of Pledged Partnership/Limited Liability Company]
Notice is hereby given that pursuant to a Pledge Agreement (a
true and correct copy of which is attached hereto), dated as of February 23,
1998 (as amended, modified or supplemented from time to time in accordance with
the terms thereof, the "Pledge Agreement"), among [NAME OF PLEDGOR] (the
"Pledgor"), the other pledgors from time to time party thereto and Bankers Trust
Company (the "Pledgee"), as Collateral Agent on behalf of the Secured Creditors
described therein, the Pledgor has pledged and assigned to the Pledgee for the
benefit of the Secured Creditors, and granted to the Pledgee for the benefit of
the Secured Creditors, a continuing security interest in, all right, title and
interest of the Pledgor, whether now existing or hereafter arising or acquired,
[as a [limited] [general] partner in [NAME OF PLEDGED PARTNERSHIP] (the
"Partnership"), and in, to and under the [TITLE OF APPLICABLE PARTNERSHIP
AGREEMENT] (the "Partnership Agreement"),] [as a member in [Name of Pledged
Limited Liability Company] (the "LLC"), and into and under its Articles of
Organization (the "Articles")] including, without limitation:
(i) the Pledgor's interest in all of the capital of the
Partnership/LLC and the Pledgor's interest in all profits, losses, (as
defined in the Pledge Agreement) and other distributions to which the
Pledgor shall at any time be entitled in respect of such
partnership/limited liability company interest;
(ii) all other payments due or to become due to the Pledgor in
respect of such partnership/limited liability company interest, whether
under the Partnership Agreement/Articles or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of the Pledgor's claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if any,
under the Partnership Agreement/Articles or at law or otherwise in
respect of such partnership/membership interest;
(iv) all present and future claims, if any, of the Pledgor
against the Partnership/LLC for moneys loaned or advanced, for services
rendered or otherwise;
(v) all of the Pledgor's rights under the Partnership
Agreement/Articles or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of the Pledgor relating
to the partnership/limited liability company interest, including any
power to terminate, cancel or modify the Partnership
Agreement/Articles, to execute any instruments and to take any and all
other action on behalf of and in the name of the
88
ANNEX D
Page 37
Pledgor in respect of the partnership/limited liability company
interest and the Partnership/LLC, to make determinations, to
exercise any election (including, but not limited, election of
remedies) or option or to give or receive any notice, consent,
amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in
connection with any of the foregoing;
(vi) all other property hereafter delivered to the Pledgor in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such other
property and all cash, securities, interest, dividends,
distributions, rights and other property at any time and from time
to time received, receivable or otherwise distributed in respect of
or in exchange for any or all thereof; and
(vii) to the extent not otherwise included, all proceeds of
any or all of the foregoing.
Pursuant to the Pledge Agreement, the Partnership/LLC is
hereby authorized and directed to register the Pledgor's pledge to the Pledgee
on behalf of the Secured Creditors of the interest of the Pledgor on the
Partnership/LLC's books.
The Pledgor hereby irrevocably agrees and authorizes and
directs the Partnership/LLC that instructions originated by the Pledgee on
behalf of the Secured Creditors with respect to the Pledgor's claims, rights,
interests, powers, remedies, authorities, options and privileges set forth above
shall, unless written notice to the contrary is given by the Pledgee to the
Partnership/LLC, be complied with by the Partnership/LLC, without further
consent by the Pledgor.
The Pledgor hereby requests the Partnership/LLC to indicate
its acceptance of this Notice and consent to and confirmation of its terms and
provisions by signing a copy hereof where indicated on the attached page and
returning the same to the Pledgee on behalf of the Secured Creditors.
[NAME OF PLEDGOR]
By:
Name:
Title:
89
ANNEX E
to
PLEDGE AND SECURITY AGREEMENT
FORM OF ACKNOWLEDGMENT
[NAME OF PLEDGED PARTNERSHIP/LIMITED LIABILITY COMPANY] (the
"Partnership"/"LLC") hereby acknowledges receipt of a copy of the assignment by
[NAME OF PLEDGOR] ("Pledgor") of its interest under the [TITLE OF APPLICABLE
PARTNERSHIP AGREEMENT/ARTICLES OF ORGANIZATION] (the "Partnership
Agreement"/"Articles") pursuant to the terms of the Pledge Agreement, dated as
of February 23, 1998 (as amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Pledge Agreement"), among the Pledgor,
the other pledgors from time to time party thereto and Bankers Trust Company
(the "Pledgee"), as Collateral Agent on behalf of the Secured Creditors
described therein. The undersigned hereby further confirms the registration of
the Pledgor's pledge of its interest to the Pledgee on behalf of the Secured
Creditors on the Partnership's/LLC's books.
The Partnership/LLC hereby acknowledges the rights of and
remedies available to the Secured Creditors under the Pledge Agreement.
The Partnership/LLC hereby irrevocably agrees to comply with
the instructions originated by the Pledgee, on behalf of the Secured Creditors,
of the type referred to in the penultimate paragraph of the Partnership/LLC
Notice dated ___________ __, ____ signed by the Pledgor, without further consent
by the Pledgor. The undersigned further hereby irrevocably agrees, except upon
the prior written consent of the Pledgee, not to honor any such instructions
given by any other person or entity.
Dated: ___________ __, ____
[NAME OF PLEDGED PARTNERSHIP/LLC]
By:
Name:
Title:
90
ANNEX F
to
PLEDGE AND SECURITY AGREEMENT
CHIEF EXECUTIVE OFFICE
1. Starwood Hotels and Resorts
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
2. Starwood Hotels & Resorts Worldwide, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
3. Westin Hotel Company
The Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
4. ITT Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
5. ITT Sheraton Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
6. Sheraton International, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attached to this Annex F to the Pledge and Security Agreement is a list
of entities whose ownership is being pledged with the legal address at such
noted alongside; such address corresponds entity with the address set forth
above.
91
ANNEX G
Page 40
THE PLEDGEE
1. Appointment. The Secured Creditors, by their acceptance of
the benefits of the Pledge and Security Agreement to which this Annex G is
attached (the "Pledge Agreement") hereby irrevocably designate Bankers Trust
Company (and any successor Pledgee) to act as specified herein and therein.
Unless otherwise defined herein, all capitalized terms used herein (x) and
defined in the Pledge Agreement, are used herein as therein defined and (y) not
defined in the Pledge Agreement, are used herein as defined in the Credit
Agreement referenced in the Pledge Agreement. Each Secured Creditor hereby
irrevocable authorizes, and each holder of any Obligation by the acceptance of
such Obligation and by the acceptance of the benefits of the Pledge Agreement
shall be deemed irrevocably to authorize, the Pledgee to take such action on its
behalf under the provisions of the Pledge Agreement and any instruments and
agreements referred to therein and to exercise such powers and to perform such
duties thereunder as are specifically delegated to or required of the Pledge
Agreement by the terms thereof and such other powers as are reasonably
incidental thereto. The Pledgee may perform any of its duties hereunder or
thereunder by or through its authorized agents, sub-agents or employees.
2. Nature of Duties. (a) The Pledgee shall have no duties or
responsibilities except those expressly set forth herein or in the Pledge
Agreement. The duties of the Pledgee shall be mechanical and administrative in
nature; the Pledgee shall not have by reason of this Agreement, any other Credit
Document or any other Secured Debt Agreement a fiduciary relationship in respect
of any Secured Creditor; and nothing in this Agreement, any other Credit
Document or any other Secured Debt Agreement, expressed or implied, is intended
to or shall be so construed as to impose upon the Pledgee any obligations in
respect of the Pledge Agreement except as expressly set forth herein and
therein.
(b) The Pledgee shall not be responsible for insuring the
Collateral or for the payment of taxes, charges or assessments or discharging of
Liens upon the collateral or otherwise as to the maintenance of the Collateral.
(c) The Pledgee shall not be required to ascertain or inquire
as to the performance by any Pledgor of any of the covenants or agreements
contained in the Pledge Agreement, any other Credit Document or any other
Secured Debt Agreement.
(d) The Pledgee shall be under no obligation or duty to take
any action under, or with respect to, the Pledge Agreement if taking such action
(i) would subject the Pledgee to a tax in any jurisdiction where it is not then
subject to a tax or (ii) would require the Pledgee to qualify to do business, or
obtain any license, in any jurisdiction where it is not then so qualified or
licensed or (iii) would subject the Pledgee to in personam jurisdiction in any
locations where it is not then so subject.
(e) Notwithstanding any other provision of this Annex G,
neither the Pledgee nor any of its officers, directors, employees, affiliates or
agents shall, in its individual capacity, be personally liable for any action
taken or omitted to be taken by it in accordance with, or pursuant to this Annex
G or the Pledge Agreement except for its own gross negligence or willful
92
ANNEX G
Page 41
misconduct.
3. Lack of Reliance on the Pledgee. Independently and without
reliance upon the Pledgee, each Secured Creditor, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Pledgor and its
Subsidiaries in connection with the making and the continuance of the
Obligations and the taking or not taking of any action in connection therewith,
and (ii) its own appraisal of the creditworthiness of each Pledgor and its
Subsidiaries, and the Pledgee shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Secured Creditor with any
credit or other information with respect thereto, whether coming into its
possession before the extension of any Obligations or the purchase of any notes
or at any time or times thereafter. The Pledgee shall not be responsible in any
manner whatsoever to any Secured Creditor for the correctness of any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of the Pledge Agreement or the security
interests granted hereunder or the financial condition of any Pledgor or any
Subsidiary of any Pledgor or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
the Pledge Agreement, or the financial condition of any Pledgor or any
Subsidiary of any Pledgor, or the existence or possible existence of any default
or event of default. The Pledgee makes no representations as to the value or
condition of the Collateral or any part thereof, or as to the title of any
Pledgor thereto or as to the security afforded by the Pledge Agreement.
4. Certain Rights of the Pledgee. (a) No Secured Creditor
shall have the right to cause the Pledgee to take any action with respect to the
Collateral, with only the Required Secured Creditors having the right to direct
the Pledgee to take any such action. If the Pledgee shall request instructions
from the Required Secured Creditors, with respect to any act or action
(including failure to act) in connection with the Pledge Agreement, the Pledgee
shall be entitled to refrain from such act or taking such action unless and
until it shall have received instructions from the Required Secured Creditors
and to the extent requested, appropriate indemnification in respect of actions
to be taken, and the Pledgee shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Secured Creditor shall have
any right of action whatsoever against the Pledgee as a result of the Pledgee
acting or refraining from acting hereunder in accordance with the instructions
of the Required Secured Creditors. As used herein, the term "Required Secured
Creditors" shall mean (i) the Required Lenders (or, to the extent required by
Section 13.12 of the Credit Agreement, each of the Lenders) at all times prior
to the occurrence of the Credit Document Obligations Termination Date (as
defined in the Pledge and Security Agreement) and (ii) the holders of at least
the majority of the then outstanding Obligations secured hereby at all times
after the Credit Document Obligations Termination Date and prior to the
repayment in full, in cash, of all outstanding Obligations secured hereby.
Notwithstanding anything to the contrary contained in clause (i) or (ii) of the
immediately preceding sentence, if at any time the principal of any Obligations
secured hereby has been accelerated, or the final maturity date with respect to
any such principal Obligations has occurred, and as a result thereof one or more
payment Events of Default (where the aggregate
93
ANNEX G
Page 42
principal amount of such Obligations accelerated or not paid at final maturity
equals or exceeds $100,000,000), which payment Events of Default shall have
continued in existence for at least 90 consecutive days after the date of such
acceleration or final maturity, and the Required Secured Creditors at such time
(determined without regard to this sentence) have not directed the Pledgee to
commence enforcement proceedings pursuant to the Pledge Agreement, then so long
as such payment Event of Default is continuing the Secured Creditors holding at
least a majority of the outstanding Obligations secured hereby subject to such
payment Event of Default shall constitute the Required Secured Creditors for
purposes of causing the Pledgee to commence enforcement proceedings pursuant to
the Pledge Agreement, provided that in such event the Secured Creditors who
would constitute the Required Secured Creditors in the absence of this sentence
shall have the right to direct the manner and method of enforcement so long as
such directions do not materially delay or impair the taking of enforcement
action.
(b) Notwithstanding anything to the contrary contained herein,
the Pledgee is authorized, but not obligated, (i) to take any action reasonably
required to perfect or continue the perfection of the liens on the Collateral
for the benefit of the Secured Creditors and (ii) when instructions from the
Required Secured Creditors have been requested by the Pledgee but have not yet
been received, to take any action which the Pledgee, in good faith, believes to
be reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; provided that once instructions have been received,
the actions of the Pledgee shall be governed thereby and the Pledgee shall not
take any further action which would be contrary thereto.
(c) Notwithstanding anything to the contrary contained herein
or in the Pledge Agreement, the Pledgee shall not be required to take any action
that exposes or, in the good faith judgment of the Pledgee may expose, the
Pledgee or its officers, directors, agents or employees to personal liability,
unless the Pledgee shall be adequately indemnified as provided herein, or that
is, or in the good faith judgment of the Pledgee may be, contrary to the Pledge
Agreement, any Secured Debt Agreement or applicable law.
5. Reliance. The Pledgee shall be entitled to rely, and shall
be fully protected in relying, upon, any note, writing, resolution, notice,
statement, certificate, telex, teletype or telescopes message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person or entity, and, with respect to all legal matters pertaining
hereto or to the Pledge Agreement and its duties thereunder and hereunder, upon
advice of counsel selected by it.
6. Indemnification. To the extent the Pledgee is not
reimbursed and indemnified by the Pledgors under the Pledge Agreement, the
Secured Creditors will reimburse and indemnify the Pledgee, in proportion to
their respective outstanding principal amounts (including, for this purpose, the
Stated Amount of outstanding Letters of Credit, as well as any unpaid Primary
Obligations in respect of Interest Rate Protection Agreements, as outstanding
principal) of Obligations, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature
94
ANNEX G
Page 43
whatsoever which may be imposed on, incurred by or asserted against the Pledgee
in performing its duties hereunder, or in any way relating to or arising out of
its actions as Pledgee in respect of the Pledge Agreement except for those
resulting solely from the Pledgee's own gross negligence or willful misconduct.
The indemnities set forth in this Section 6 shall survive the repayment of all
Obligations, with the respective indemnification at such time to be based upon
the outstanding principal amounts (determined as described above) of Obligations
at the time of the respective occurrence upon which the claim against the
Pledgee is based or, if same is not reasonably determinable, based upon the
outstanding principal amounts (determined as described above) of Obligations as
in effect immediately prior to the termination of the Pledge Agreement. The
indemnities set forth in this Section 6 are in addition to any indemnities
provided by the Lenders to the Pledgee pursuant to the Credit Agreement, with
the effect being that the Lenders shall be responsible for indemnifying the
Pledgee to the extent the Pledgee does not receive payments pursuant to this
Section 6 from the Secured Creditors (although in such event, and upon the
payment in full of all such amounts owing to the Pledgee by the Lenders, the
Lenders shall be subrogated to the rights of the Pledgee to receive payment from
the Secured Creditors).
7. The Pledgee in its Individual Capacity. With respect to its
obligations as a lender under the Credit Agreement and any other Credit
Documents to which the Pledgee is a party, and to act as agent under one or more
of such Credit Documents, the Pledgee shall have the rights and powers specified
therein and herein for a "Lender", or an "Agent", as the case may be, and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the terms "Lenders," "Required Lenders," "holders of
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Pledgee in its individual capacity. The Pledgee and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, investment banking, trust or other business with any Pledgor or
any Affiliate or Subsidiary of any Pledgor as if it were not performing the
duties specified herein or in the other Credit Documents, and may accept fees
and other consideration from the Pledgors for services in connection with the
Credit Agreement, the other Credit Documents and otherwise without having to
account for the same to the Secured Creditors.
8. Holders. The Pledgee may deem and treat the payee of any
note as the owner thereof for all purposes hereof unless and until written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Pledgee. Any request, authority or consent of any
person or entity who, at the time of making such request or giving such
authority or consent, is the holder of any note, shall be final and conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such note or of any note or notes issued in exchange therefor.
9. Resignation by the Pledgee. (a) The Pledgee may resign from
the performance of all of its functions and duties hereunder and under the
Pledge Agreement at any time by giving 15 Business Days' prior or written notice
to the Parent Companies and the Secured Creditors. Such resignation shall take
effect upon the appointment of a successor Pledgee pursuant to clause (b) or (c)
below.
95
ANNEX G
Page 44
(b) If a successor Pledgee shall not have been appointed
within said 15 Business Day period by the Required Secured Creditors, the
Pledgee, with the consent of the Parent Companies, which consent shall not be
unreasonably withheld or delayed, shall then appoint a successor Pledgee who
shall serve as Pledgee hereunder or thereunder until such time, if any, as the
Required Secured Creditors appoint a successor Pledgee as provided above.
(c) If no successor Pledgee has been appointed pursuant to
clause (b) above by the 15th Business Day after the date of such notice of
resignation was given by the Pledgee, as a result of a failure by the Parent
Companies to consent to the appointment of such a successor Pledgee, the
Required Secured Creditors shall then appoint a successor Pledgee who shall
serve as Pledgee hereunder or thereunder until such time, if any, as the
Required Secured Creditors appoint a successor Pledgee as provided above.
96
EXHIBIT A-1
to
PLEDGE AND SECURITY AGREEMENT
FORM OF
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
PLEDGE AND SECURITY SUPPLEMENT, dated as of [ ] (this
"Supplement"), made by , a [ ] corporation (the
"Pledgor"), in favor of BANKERS TRUST COMPANY, as pledgee and as collateral
agent (in such capacities, the "Pledgee") for the Secured Creditors (such term
and each other capitalized term used but not defined having the meaning given in
the Pledge and Security Agreement referred to below).
1. Reference is hereby made to that certain Pledge and Security
Agreement, dated as of February 23, 1998 (as amended, supplemented or otherwise
modified as of the date hereof, the "Pledge and Security Agreement"), made by
the Pledgors party thereto in favor of the Pledgee for the benefit of the
Secured Creditors described therein.
2. The Pledgor hereby confirms and reaffirms the security
interest in the Collateral granted to the Pledgee for the benefit of the Secured
Creditors under the Pledge and Security Agreement, and, as additional collateral
security for the prompt and complete payment when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations and in order to
induce the Secured Creditors to make loans and other extensions of credit
constituting Obligations, the Pledgor hereby delivers to the Pledgee, for the
benefit of the Secured Creditors, [(i) all of the issued and outstanding shares
of capital stock listed in Schedule I hereto, together with all stock
certificates, options, or rights of any nature whatsoever which may be issued or
granted in respect of such stock while the Pledge and Security Agreement, as
supplemented hereby, is in force (the "Additional Pledged Stock"; as used in the
Pledge and Security Agreement as supplemented by this Supplement, "Pledged
Stock" shall be deemed to include the Additional Pledged Stock)], [(ii) all
limited liability company interests listed on Schedule II hereto (the
"Additional Pledged Limited Liability Company Interests" as used in the Pledge
and Security Agreement as supplemented by this Supplement, "Pledged Limited
Liability Company Interests" shall be deemed to include the Additional Pledged
Limited Liability Company Interests)], [(iii) all partnership interests listed
on Schedule III here to (the "Additional Pledged Partnership Interests"; as used
in the Pledged and Security Agreement as supplemented by this Supplement,
"Pledged Partnership Interests" shall be deemed to include Additional Pledged
Partnership Interests)], and hereby grants to the Pledgee, for the benefit of
the Secured Creditors, a first security interest in the Additional Pledged
Stock, Additional Pledged Partnership Interests and/or Additional Pledged
Limited Liability Company Interests, as the case may be, and all Proceeds
thereof.
3. The Pledgor hereby represents and warrants that the
representations and warranties contained in Section 15 of the Pledge and
Security Agreement are true and correct on the date of this Supplement [with
references therein with the "Pledged Stock" to include the Additional Pledged
Stock,] [with references to the "Pledged Partnership Interests" to include the
Additional Pledged Partnership Interests,] [with references to the "Pledged
Limited Liability Company Interests" to include the Additional Pledged Limited
Liability Company Interests,] and with references to the "Pledge and Security
Agreement" to mean the Pledge and Security Agreement as supplemented by this
Supplement.
97
EXHIBIT A-1
Page 46
4. The Pledgor hereby represents and warrants that, as of the
date hereof, the chief executive office of the Pledgor is located at the address
indicated on Schedule IV hereto.
5. This Supplement is supplemental to the Pledge and Security
Agreement, forms a part thereof and is subject to the terms thereof and the
Pledge and Security Agreement is hereby supplemented as provided herein. Without
limiting the foregoing, Annex A to the Pledge and Security Agreement shall
hereby be deemed to include each item listed on Schedule I to this Supplement
and Annexes B and C to the Pledge and Security Agreement shall hereby be deemed
to include each item listed on Schedule II to this Supplement. Annex C to the
Pledge and Security Agreement shall hereby be deemed to include each term listed
on Schedule III to this Supplement and Annex F to the Pledge and Security
Agreement shall be deemed to include the location listed on Schedule IV to this
Supplement.
98
EXHIBIT A-1
Page 47
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this Supplement to
be duly executed and delivered on the date first set forth above.
[PLEDGOR]
By:_______________________
Name:
Title:
BANKERS TRUST COMPANY, as Pledgee
By:________________________
Name:
Title:
99
SCHEDULE I
to
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
PLEDGED STOCK
Pledgor Issuer Pledged Stock Ownership
Interest
100
EXHIBIT A-2
Page 49
PLEDGED LIMITED LIABILITY COMPANY INTERESTS
Pledged Limited Percentage Owned
Liability Interests
101
EXHIBIT A-2
Page 50
PLEDGED PARTNERSHIP INTERESTS
Pledged Partnership Percentage Owned Type of Partnership
102
EXHIBIT A-2
Page 51
CHIEF EXECUTIVE OFFICE
103
ANNEX 1
Page 52
SUPPLEMENT NO. dated as of [ ],
to the Pledge and Security Agreement dated as of
February 23, 1998 (the "Pledge and Security
Agreement"), among the Pledgors party thereto
(immediately before giving effect to this Supplement)
and BANKERS TRUST COMPANY as collateral agent and as
pledgee (in such capacities, the "Pledgee") for the
Secured Creditors (such term and each other
capitalized term used but not defined having the
meaning given it in the Pledge and Security Agreement
referred to below).
A. The Pledgors have entered into the Pledge and Security
Agreement in order to induce the Secured Creditors to make loans and other
extensions of credit constituting Obligations as defined in the Pledge and
Security Agreement. Pursuant to Section 8.15 of the Credit Agreement, certain
Subsidiaries of the Borrowers are, after the date of the Pledge and Security
Agreement, required to enter into the Pledge and Security Agreement as a
Pledgor. Section 24 of the Pledge and Security Agreement provides that
additional Subsidiaries may become Pledgors under the Pledge and Security
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned (the "New Pledgor") is a Subsidiary of a Borrower
and is executing this Supplement in accordance with the requirements of the
Credit Agreement and/or the Pledge and Security Agreement to become a Pledgor
under the Pledge and Security Agreement in order to induce the Secured Creditors
to extend, or maintain, Obligations.
Accordingly, the Pledgee and the New Pledgor agree as follows:
SECTION 1. The New Pledgor by its signature below becomes a
Pledgor under the Pledge and Security Agreement with the same force and effect
as if originally named therein as a Pledgor and the New Pledgor hereby agrees to
all the terms and provisions of the Pledge and Security Agreement applicable to
it as a Pledgor thereunder. Each reference to a "Pledgor" in the Pledge and
Security Agreement shall be deemed to include the New Pledgor. The Pledge and
Security Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the
Secured Creditors that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but
104
ANNEX 1
Page 53
one instrument. This Supplement shall become effective when the Pledgee shall
have received counterparts of this Supplement that, when taken together, bear
the signatures of the New Pledgor and the Pledgee.
SECTION 4. Except as expressly supplemented hereby, the Pledge
and Security Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such provision
for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein and in the Pledge and Security Agreement shall not in any way
be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in the Pledge and Security Agreement. All
communications and notices hereunder to the New Pledgor shall be given to it at
the address set forth under its signature, with a copy to the Parent Companies.
105
ANNEX 1
Page 54
IN WITNESS WHEREOF, the New Pledgor and the Pledgee have duly
executed this Supplement to the Pledge and Security Agreement as of the day and
year first above written.
[NAME OF NEW PLEDGOR]
By:_______________________
Name:
Title:
Address:
BANKERS TRUST COMPANY,
as Pledgee
By:_________________________
Name:
Title:
106
Annex F
TO
PLEDGE AND SECURITY AGREEMENT
1. Starwood Hotels and Resorts
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
2. Starwood Hotels & Resorts Worldwide, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
3. Westin Hotel Company
The Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
4. ITT Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
5. ITT Sheraton Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
6. Sheraton International, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
ATTACHED TO THIS ANNEX F TO THE PLEDGE AND SECURITY AGREEMENT IS A LIST
OF ENTITIES WHOSE OWNERSHIP IS BEING PLEDGED WITH THE LEGAL ADDRESS OF SUCH
ENTITY NOTED ALONGSIDE; SUCH ADDRESS CORRESPONDS WITH THE ADDRESS SET FORTH
BELOW.
