Exhibit 10.4
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") dated as of November 20, 2001
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between BRE/HV HOLDINGS L.L.C. ("Holdco") and SECURITY CAPITAL LODGING
INCORPORATED (the "Lender") .
W I T N E S S E T H:
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WHEREAS, the Lender has agreed to make a loan (the "Loan") in the original
principal amount of $115,000,000 to Holdco pursuant to a term note (the "Note")
dated the date hereof by Holdco in favor of the Lender and may from time to time
make additional loans pursuant to PIK Notes, as defined in the Note; and
WHEREAS, as a condition precedent to such Loan, Holdco is required to
execute and deliver this Agreement to grant a security interest to the Lender in
certain limited liability company membership interests of BRE/Homestead Village
L.L.C., a wholly-owned subsidiary of Holdco;
NOW, THEREFORE, for and in consideration of the Loan and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, (a) the terms used herein and not
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otherwise defined herein shall have the meanings assigned to such terms in the
Note, and (b) the following terms have the following meanings (such definitions
to be applicable to both the singular and plural forms of such terms):
Collateral means all property and rights of Holdco in the Investment
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Property, the Collection Account, the investments and funds in the Collection
Account and all proceeds, rents, profits and returns in connection therewith.
Collection Account has the meaning set forth in Section 5.
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Default means the occurrence of any of the following events: (a) any Event
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of Default; (b) any representation or warranty of Holdco herein is untrue in any
material respect; or (c) Holdco fails to comply with or perform any covenant or
other agreement under this Agreement in any material respect and such failure
shall continue for 30 days after written notice from the Lender.
Investment Property shall mean all of Holdco's present or hereafter
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acquired right, title and interest in any membership interest in the Pledged
Subsidiary, any and all payments or dividends of whatever kind or character,
whether in cash or other rights or property, at any time made, owing or payable
to Holdco in respect of or on account of its present or hereafter acquired
interests in the Pledged Subsidiary, whether due or to become due and whether
representing profits, distributions pursuant to any complete or partial
liquidation or withdrawal of any interest
in any of the foregoing, repayment or other return of capital contributions, and
the right to receive, receipt for, use and enjoy all such payments and
distributions.
Issuer Agreement shall mean the Limited Liability Company Agreement of the
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Pledged Subsidiary.
Pledged Subsidiary shall mean BRE/Homestead Village, L.L.C., a Delaware
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limited liability company.
Secured Obligations means (i) all obligations (monetary or otherwise) of
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Holdco to the Lender arising under the Note and the PIK Notes, (ii) all
reasonable and actual expenses and charges, legal or otherwise, incurred by the
Lender in collecting any of such obligations or realizing upon, protecting or
preserving the Collateral or perfecting its interest therein or enforcing the
payment of the obligations of Holdco to the Lender under the Note and the PIK
Notes, and (iii) all advances made by the Lender under the Intercreditor
Agreement dated the date hereof between Bear, Xxxxxxx Funding, Inc. and the
Lender.
UCC shall mean the Uniform Commercial Code as in effect in the State of New
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York from time to time.
2. Grant of Security Interest. As security for the payment of all
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Secured Obligations, Holdco hereby assigns to the Lender, and grants to the
Lender a security interest in and Lien on, the following, whether now or
hereafter existing or acquired:
(i) the Investment Property; and
(ii) the Collection Account and all investments and funds therein; and
(iii) all proceeds, rents, profits and returns of and from any of the
foregoing.
3. Warranties. As of the date hereof, Holdco represents and warrants
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that:
(a) no financing statement (other than any which may have been filed
on behalf of the Lender) covering any of the Collateral is on file in any
public office;
(b) Holdco is and will be the lawful owner of all Collateral, free
of all Liens and claims whatsoever, other than the Lien hereunder;
(c) Holdco is a limited liability company validly organized and
existing and in good standing under the laws of Delaware and has full power
and authority and holds all requisite governmental licenses, permits and
other approvals to enter and to perform its obligations under this
Agreement;
(d) no authorization, approval or other action by, no notice to or
filing w ith any governmental authority, regulatory body or any other e
ntity is required either with respect to the pledge by Holdco of the
Collateral pursuant to this Agreement or for the execution, delivery and
performance of this Agreement by Holdco, or for the exercise by Holdco of
the voting, or other rights provided for in this Agreement;
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(e) the copy of the limited liability company agreement of the
Pledged Subsidiary delivered to the Lender is a true and correct copy and
has not been altered or amended;
(f) the chief executive office and principal place of business of
Holdco is 000 Xxxx Xxx., Xxx Xxxx, Xxx Xxxx and Holdco has had no other
chief executive office or principal place of business in the last six
months;
(g) this Agreement is a legal, valid and binding obligation of
Holdco, enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights and general principles of equity; the execution, delivery
and performance of this Agreement will not constitute a breach or default
by Holdco under the Issuer Agreement; and all consents of any other Persons
(including, without limitation, the Pledged Subsidiary) which are required
for the grant or perfection of the Lien hereunder in any Collateral or the
exercise by the Lender of its rights hereunder have been obtained;
(h) no interest in the Pledged Subsidiary is dealt in or traded on
any securities exchange or securities market, is a security the terms of
which expressly provide that it is governed by Article 8 of the Uniform
Commercial Code as in effect in the State of New York (the "Applicable
UCC"), constitutes an "investment company security" (as defined under
Section 8-103(b) or the equivalent thereof of any of the Applicable UCC) or
is held in a "securities account" (as defined in the Applicable UCC); and
(i) Holdco, as sole member of the Pledged Subsidiary, hereby consents
to this Agreement notwithstanding any limitations in the Issuer Agreement.
4. Agreements of Holdco. Holdco:
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(a) will, upon request of the Lender, execute such financing
statements and other documents (and pay the cost of filing or recording the
same in all public offices deemed appropriate by the Lender) and do such
other acts and things, all as the Lender may from time to time reasonably
request, to establish and maintain a valid perfected Lien on the Collateral
(free of all other Liens, claims and rights of third parties whatsoever) to
secure the payment of the Secured Obligations;
(b) will not agree to any material waiver, amendment or modification
of the Issuer Agreement without the prior written consent of the Lender,
not to be unreasonably withheld, delayed or conditioned;
(c) will promptly furnish to the Lender in reasonable detail (i)
written notice of any Lien, encumbrance or claim made or asserted against
any of the Collateral, and (ii) written notice of the occurrence of any
other event which would have a material adverse effect on the aggregate
value of the Collateral or on the Lien created hereunder;
(d) will not sell, lease, assign or permit to exist any Lien on any
of Holdco's interests in any Collateral other than Liens in favor of the
Lender;
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(e) will pay all documentary, stamp or other taxes or fees owing in
connection with the Collateral as such become due and payable provided,
that Holdco may contest by appropriate legal proceedings, promptly
initiated and conducted in good faith with due diligence, the amount of any
tax or fee; and
(f) will reimburse the Lender for all expenses, including without
limitation reasonable attorneys' fees and legal expenses, incurred by the
Lender in seeking to collect or enforce any rights in respect of the
Collateral during the existence of a Default.
5. Distributions, Collections, Collection Account. Upon receipt of a
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notice from the Lender that a Default has occurred and is continuing (upon which
notice the Pledged Subsidiary is hereby authorized to rely) Holdco hereby
authorizes and directs the Pledged Subsidiary to make all distributions,
redemption payments and other payments of any kind whatsoever then due or
thereafter to become due to Holdco in respect of the Collateral directly to such
account, as may be designated in writing by the Lender from time to time (the
"Collection Account"). All distributions or payments in respect of or
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constituting a part of the Collateral, any proceeds from any of the foregoing at
any time received by the Lender and all other deposits in the Collection Account
may be retained by the Lender in the Collection Account as additional Collateral
and may at the discretion of the Lender if a Default then exists, at such time
or times as the Lender may deem proper, or, shall at the request of Holdco, be
applied by the Lender to the reduction of the Secured Obligations, whether or
not the same be then due or the Lender may be otherwise adequately secured;
provided that in any case the Lender shall have full discretion as to the order
of application of any such distribution, payment or proceeds to the Secured
Obligations, if due and payable.
If a Default then exists and is continuing, the Lender may notify any
parties obligated on any of the Collateral to make payment to the Collection
Account of any amount due or to become due thereunder and enforce collection of
any of the Collateral by suit or otherwise and surrender, release or exchange
all or any part thereof, or compromise or extend or renew for any period
(whether or not longer than the original period) any indebtedness thereunder or
evidenced thereby.
Upon request by the Lender after the occurrence and during the continuation
of an Event of Default, Holdco will forthwith, upon receipt, transmit and
deliver to the Collection Account, in the form received, all cash, checks,
drafts and other instruments or writings for the payment of money (properly
endorsed, where required, so that such items may be collected by the Lender)
which may be received by Holdco after the occurrence and during the continuation
of an Event of Default, at any time in full or partial payment or otherwise as
proceeds of any of the Collateral. Except as the Lender may otherwise consent in
writing, any such items which may be so received by Holdco will not be
commingled with any of its funds or property, but will be held separate and
apart from its own funds or property and upon express trust for the Lender until
delivery is made to the Lender.
The Lender is authorized, after the occurrence and during the continuation
of a Default, to endorse, in the name of Holdco, any item, howsoever received by
the Lender, representing any payment on, or other proceeds of, any of the
Collateral; provided, however, that such payment or proceeds shall be deposited
in the Collection Account.
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Holdco authorizes the Lender to take all action necessary to cause the
Lender to have a first priority security interest in the Collection Account and
all funds and investments therein, including without limitation, causing the
Collection Account to be held in the name of the Lender. Holdco shall have no
right to withdraw any funds or investments from the Collection Account, until
payment in full of the Secured Obligations.
Holdco may from time to time prior to a Default require all or part of
moneys on deposit in the Collection Account to be invested and re-invested into,
and switched between, any Cash Equivalent Investments by giving written notice
(specifying the relevant amount and investment) to the Lender, provided always
that at all times the Lender's security over and in respect of such moneys and
investments is maintained and all proper fees and costs arising out of such
investments are paid by Holdco.
The Lender shall apply the proceeds of the realization of any Permitted
Investment:
(i) into the Collection Account; or
(ii) in purchasing other Permitted Investments to be held in the Collection
Account.
Upon the occurrence of a Default, the Lender shall be authorized to sell
any such investments and apply the proceeds thereof to payment of the Secured
Obligations in such order of application as the Lender may elect.
6. Lender's Option to Perform. The Lender may from time to time, during
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an occurrence and continuation of a Default, perform any obligation to be
performed by Holdco hereunder which Holdco shall fail to perform and take any
other action which the Lender reasonably deems necessary for the maintenance or
preservation of any of the Collateral or its Lien on the Collateral. All moneys
advanced by the Lender in connection with the foregoing shall bear interest at
the rate per annum applicable under the Note and shall be repaid together with
such interest by Holdco to the Lender upon the latter's demand and shall be
secured hereby prior to any other indebtedness or obligation secured hereby, but
the making of any such advance by the Lender shall not relieve Holdco of any
default hereunder.
Notwithstanding the foregoing except as specifically set forth herein, the
Lender shall have no obligation or liability regarding the Collateral or any
thereof by reason of, or arising out of, this Agreement. This Agreement
constitutes an assignment of the rights of Holdco described herein with respect
to the Collateral and not an assignment of any duties or obligations of Holdco
with respect thereto; and the Lender does not undertake to perform or discharge
and shall not be responsible or liable for the performance or discharge of any
such duties or responsibilities. Holdco hereby agrees to indemnify and hold the
Lender free and harmless from and against any and all loss, damage, liability,
cost and expense, including reasonable attorneys' fees and costs, incurred by
the Lender by reason of the Lender's acceptance of this Agreement or any efforts
to impose any liability upon the Lender for the obligations of Holdco under the
Issuer Agreement.
7. Power of Attorney. Holdco hereby appoints the Lender, with full power
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substitution, as Holdco's attorney-in-fact for the purpose of carrying out the
provisions of this Agreement during the existence of a Default or other failure
by Holdco to perform hereunder and taking any action and executing any
instrument which the Lender may deem necessary or
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advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
Holdco hereby grants the Lender, during the existence of a Default, the power
and right, on behalf of Holdco, without prior notice to or assent by Holdco (but
with prompt notice after any of the following), until all of Holdco's
obligations under this Agreement and the Note are satisfied, to do the
following:
(a) to collect and otherwise take possession of and title to any and
all distributions of cash or other property due or distributable at any
time after the date hereof to Holdco from the Pledged Subsidiary or in
respect of any Collateral, whether in complete or partial liquidation or
otherwise, and to prosecute or defend any action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Lender for the
purpose hereof;
(b) to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under any Collateral
and, in the name of Holdco or its own name or otherwise, to take possession
of and endorse, sign and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Collateral and to
file any claim or to take any other action or proceeding in any court of
law or equity or otherwise, either in its own name or in the name of
Holdco, or otherwise, deemed appropriate by the Lender for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable;
(c) to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(d) (i) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due and to become due
thereunder directly to the Lender; (ii) to receive payment of and receipt
for any and all moneys, claims and other amounts due and to become due at
any time in respect of or arising out of any Collateral; (iii) to take
control of any proceeds of the Collateral; (iv) to commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof and
to enforce any other right in respect of any Collateral; (v) to defend any
suit, action or proceeding brought against Holdco with respect to any
Collateral; (vi) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Lender may deem appropriate; and (vii)
generally to sell, transfer, or otherwise deal with any of the Collateral
as fully and completely as though the Lender were the absolute owner
thereof for all purposes, and to do, at the option of the Lender at
Holdco's expense, at any time, or from time to time, all acts and things
which such attorney-in-fact reasonably deems necessary to maintain or
preserve the Collateral and the Lien of the Lender thereon, in order to
effect the intent of this Agreement, all as fully and effectively as Holdco
might do.
Holdco hereby ratifies, to the extent permitted by law, all that the Lender
shall lawfully do or cause to be done by virtue hereof.
8. Default.
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(a) Whenever a Default exists, the Lender may exercise from time to time
any rights and remedies available to it under applicable law. Without limiting
the foregoing, whenever a Default exists the Lender, in addition to the rights,
powers and authorities to collect the sums assigned hereunder or any other
remedies or rights it may have, (i) shall have the right to cause all or any
part of the interest of Holdco in the Pledged Subsidiary to be withdrawn and
(ii) shall have all the rights and remedies of a secured party under the UCC and
any other applicable law with respect to the Collateral.
(b) Whenever a Default exists and until such Default is cured, the Lender
may, by written notice to Holdco, cause all (i) voting rights, (ii) consent
rights and (iii) powers, in each case of Holdco arising from or relating to
Holdco's interest in the Pledged Subsidiary, to thereupon become vested in the
Lender which shall thereafter have the sole and exclusive right and authority to
exercise such voting rights and powers.
(c) To the extent permitted by applicable law, Holdco hereby waives the
right to object to the manner or sufficiency of advertising or solicitation of
bids in connection with any sales or other disposition of the Collateral. Any
sale by the Lender may be made at any broker's board or public or private sale,
with or without notice or advertisement (except any notice or advertisement
required by law referred to below), for cash or credit, and for present or
future delivery. At any such public or private sale or other disposition of
Collateral, the Lender may, to the extent permissible under applicable law,
purchase the whole or any part of any Collateral sold, free from any right of
redemption on the part of Holdco, which right is hereby waived and released.
Holdco hereby expressly waives, to the fullest extent permitted by applicable
law, any and all notices, advertisements, hearings, or process of law in
connection with the exercise by the Lender of any of its rights and remedies
during the existence of a Default. If any notification of intended disposition
of any of the Collateral is required by law, such notification shall be deemed
reasonably and properly given, if given in the manner set forth in Section 9(b)
below at least 10 days before such disposition, postage prepaid, addressed to
Holdco either at the address shown below or at any other address of Holdco
appearing in the records of the Lender. Any proceeds of any disposition by the
Lender of any of the Collateral will be applied by the Lender to the payment of
expenses in connection with the Collateral, including reasonable attorneys' fees
and legal expenses, and any balance of such proceeds will be applied by the
Lender toward the payment of such of the Secured Obligations, and in such order
of application, as the Lender may from time to time elect; provided that, after
such application, the Lender shall account for the surplus, if any, to Holdco.
(d) Holdco agrees that in any sale of any of the Collateral whenever a
Default exists, the Lender is hereby authorized to comply with any limitation or
restriction in connection with such sale as it may be advised by counsel is
necessary in order to avoid any violation of applicable law (including, without
limitation, compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and Holdco further agrees that such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor
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shall the Lender be liable nor accountable to Holdco for any discount allowed by
the reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction. In lieu of exercising the power of sale conferred
upon it by this Agreement, the Lender may proceed by a suit or suits at law or
in equity to foreclose and sell the Collateral. Holdco agrees that the Lender
shall not be liable to Holdco for any loss in the value of the Collateral by
reason of any delay in the sale of the Collateral.
(e) In order to sell, dispose or otherwise realize upon the Lien herein
granted and exercise the rights granted the Lender hereunder and under
applicable law, there shall be no obligation on the part of the Lender at any
time to first resort for payment to any guaranty of the Secured Obligations or
any part thereof or to resort to any collateral security, property, Liens or
other rights or remedies whatsoever, and the Lender shall have the right to
enforce the Lien herein granted irrespective of whether or not other proceedings
or steps are pending seeking resort to or realization upon or from any of the
foregoing.
9. General.
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(a) The Lender shall be deemed to have exercised reasonable care in the
custody and preservation of any of the Collateral in its possession if it takes
such action for that purpose as Holdco requests in writing, but failure of the
Lender to comply with any such request shall not of itself be deemed a failure
to exercise reasonable care, and no failure of the Lender to preserve or protect
any rights with respect to such Collateral against prior parties, or to do any
act with respect to the preservation of such Collateral not so requested by
Holdco, shall be deemed a failure to exercise reasonable care in the custody or
preservation of such Collateral.
(b) Any notice, request, instruction or other document to be given
hereunder by a party hereto shall be in writing and shall be deemed to have been
given, (a) when received if given in person or by courier or a courier service,
or (b) on the date of transmission if sent by telex, facsimile or other wire
transmission so long as a copy is delivered by overnight courier the next
Business Day:
(a) If to Lender, addressed as follows:
Security Capital Lodging Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(b) If to Holdco, addressed as follows:
BRE/HV Holdings L.L.C.
c/o Blackstone Real Estate Acquisitions III L.L.C.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx
Senior Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) Holdco agrees to pay all reasonable and actual expenses (including,
without limitation, reasonable attorney's fees and legal expenses) paid or
incurred by the Lender in endeavoring to collect the Secured Obligations, or any
part thereof, during the existence of a Default and in enforcing this Agreement
against Holdco during the existence of a Default, and such obligations will
themselves be Secured Obligations.
(d) No delay on the part of the Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
(e) No release from the Lien created by this Agreement of any part of the
Collateral by the Lender shall in any way alter, vary or diminish the force or
effect of the Lien created by this Agreement against the balance or remainder of
the Collateral.
(f) This Agreement shall remain in full force and effect until all Secured
Obligations have been paid in full, at which time the Lender shall execute and
deliver to Holdco all instruments and other documents as may be necessary or
proper to release the Lien on the Collateral which has been granted hereunder.
If at any time all or any part of any payment theretofore applied by the Lender
to any of the Secured Obligations is or must be rescinded or returned by the
Lender for any reason whatsoever (including, without limitation, the insolvency
or bankruptcy of Holdco), such Secured Obligations shall, for the purposes of
this Agreement, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by the Lender, and this Agreement shall continue to be effective or
be reinstated, as the case may be, as to such Secured Obligations, all as though
such application by the Lender had not been made.
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(g) This Agreement shall be construed in accordance with and governed by
the internal laws of the State of New York. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
(h) The rights and privileges of the Lender hereunder shall inure to the
benefit of its successors and assigns.
(i) This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement.
(j) No amendment to, modification or waiver of, or consent with respect
to, any provision of this Agreement shall in any event be effective unless the
same shall be in writing and signed and delivered by Holdco and the Lender, and
then any such amendment, modification, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(k) At the option of the Lender, this Agreement, or a carbon, photographic
or other reproduction of this Agreement or of any Uniform Commercial Code
financing statement covering the Collateral or any portion thereof, shall be
sufficient as a Uniform Commercial Code financing statement and may be filed as
such.
(l) The section headings in this Agreement are inserted for convenience of
reference and shall not be considered a part of this Agreement or used in its
interpretation.
(m) Jurisdictions. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER OR
HOLDCO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF
NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; HOLDCO AND THE LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY CONSENT TO PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF NEW YORK. EACH OF HOLDCO AND THE LENDER HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
HOLDCO OR THE LENDER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
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JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, HOLDCO AND THE LENDER HEREBY
IRREVOCABLY WAIVE SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
(n) Waiver of Jury Trial. HOLDCO AND THE LENDER WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, AND HOLDCO AND THE LENDER AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT A JURY.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
BRE/HV HOLDINGS L.L.C.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Senior Managing Director
SECURITY CAPITAL LODGING INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
CONSENT
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The undersigned BRE/HOMESTEAD VILLAGE L.L.C. (the "Pledged Subsidiary")
hereby consents to the pledge of membership interests in the Pledged Subsidiary
by BRE/HV Holdings L.L.C. to Security Capital Lodging Incorporated ("Lodging")
pursuant to the terms of the Pledge Agreement attached hereto.
The undersigned further agrees that it shall not unreasonably withhold its
consent upon a transfer under the Pledge Agreement of membership interests of
Holdco to any transferee and specifically agrees that in the event of a transfer
to Lodging, it hereby consents thereto.
BRE/Homestead Village, L.L.C.
By: /s/ Xxxxxxxx Xxxx
Title: Senior Managing Director
Dated: November 20, 2001
S-1
