EXHIBIT 10.5
PLEDGE AND ASSIGNMENT OF MEMBERSHIP INTERESTS
(ESSEX HOTELS LLC)
This PLEDGE AND ASSIGNMENT OF MEMBERSHIP INTERESTS (this "PLEDGE"),
dated as of July 7, 1997, is executed by and between ESSEX HOSPITALITY
ASSOCIATES IV L.P., a New York limited partnership, having an address at c/o
Essex Partners, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx, 00000 (
"PLEDGOR") and GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation,
having an address at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000-0000 ("PLEDGEE").
WITNESSETH:
WHEREAS, Pledgee is this day making a loan to Solon Hotel LLC, a New
York limited liability company ("BORROWER") in the original principal amount of
Four Million Five Hundred Thousand and No/100 Dollars ($4,500,000.00) (the
"LOAN"); and
WHEREAS, the Loan is evidenced by a certain Mortgage Note dated as of
the date hereof made by Borrower in favor of Pledgee (the "NOTE"), and is
secured by, among other things, a certain Open-End Mortgage, Assignment of
Leases and Profits, Security Agreement and Fixture Filing dated as of the date
hereof (the "MORTGAGE"; the Note, the Mortgage, this Pledge and all other
documents executed or delivered in connection with the Loan, collectively, the
"LOAN DOCUMENTS"); and
WHEREAS, Pledgor owns one hundred percent (100%) of the equity
interests in Borrower and expects to derive a substantial economic benefit from
the Loan; and
WHEREAS, as a material condition to making the Loan, Pledgee has
required Pledgor, and Pledgor has agreed, to secure unto Pledgee the full and
punctual payment and performance of all obligations which may become owing in
accordance with the Note.
NOW, THEREFORE, for and in consideration of the foregoing, One Dollar
($1.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. PLEDGE AND ASSIGNMENT. Pledgor hereby pledges, grants and assigns to
Pledgee a security interest in the following (collectively, the "PLEDGED
COLLATERAL"):
(a) all of the right, title and interest of Pledgor as a member in
Essex Hotels LLC (the "COMPANY"), including but not limited to:
(i) Pledgor's right to his share of the profits and losses
of the Company and the right as a member to receive distributions of the
Company's assets,
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whether now existing or hereafter arising, whether arising under the terms of
the operating agreement of the Company (as such operating agreement heretofore
has been or hereinafter may be amended, restated, supplemented or otherwise
modified from time to time, the "OPERATING AGREEMENT") or otherwise, or at law
or in equity, and any and all proceeds therefrom;
(ii) all options and warrants for the purchase of membership
interests of the Company now or hereafter held in the name of Pledgor;
(iii) all dividends, distributions, cash, income,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, or in exchange for, any or all of the
Pledged Collateral;
(iv) all voting rights of Pledgor with respect to the
Company now or hereafter acquired; and
(vi) any other interest, right or privilege that Pledgor
presently has, is entitled to, may be entitled to, or shall acquire pursuant to
the Operating Agreement, or conferred by statute, law, rule, regulation, or
decision (all of the items set forth in THIS SECTION 1(A) are hereinafter
collectively referred to as the "ASSIGNED INTERESTS").
(b) all additional membership interests of the Company from time
to time acquired by Pledgor in any manner (any such additional membership
interests shall constitute part of the Assigned Interests), including, without
limitation, those covered in SECTION 5 below.
(c) the property and interests in property described in SECTION 3
below.
(d) all proceeds of the foregoing.
Notwithstanding the foregoing, so long as no Event of Default (defined below)
has occurred and continues beyond any applicable cure period, Pledgee shall not
be entitled to exercise its rights to the Pledged Collateral.
2. SECURITY FOR OBLIGATIONS. The Pledged Collateral secures the prompt
payment, performance and observance of Borrower's obligations under the Loan
Documents and Pledgor's obligations under this Pledge, in each case as hereafter
amended, supplemented or otherwise modified.
3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral, if any, shall be delivered to
and held by Pledgee pursuant hereto and either shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Pledgee. Any such executed instruments of transfer or assignment in blank shall
be updated, revised or replaced from time to time if circumstances change so
that they shall be in usable, current, form.
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4. REGISTRATION AND ACKNOWLEDGMENTS. Pledgor hereby agrees to register
in the books and records of the Company the pledges of the Assigned Interests to
Pledgee. Pledgor, as a partner of the Company, does hereby acknowledge and agree
that Pledgee or its designee shall be treated as an "assignee" for all purposes
under the Operating Agreement of the Company.
5. PLEDGED COLLATERAL ADJUSTMENTS. If, during the term of this
Pledge:
(a) any reclassification, readjustment or other change is
declared or made in the membership or other organizational structure of the
Company, or any option included within the Pledged Collateral is exercised, or
both, or
(b) any subscription warrants or any other rights or options shall
be issued in connection with the Pledged Collateral,
then all new, substituted and additional membership interests, warrants, rights,
options or other securities issued by reason of any of the foregoing shall be
immediately delivered to and held by Pledgee under the terms of this Pledge and
shall constitute Pledged Collateral hereunder.
6. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL.
(a) Pledgor shall not amend, supplement, terminate or otherwise
modify the Operating Agreement, as amended to the date hereof, of the Company or
permit the same to be amended, supplemented, terminated or otherwise modified,
and
(b) Pledgor shall not amend, supplement, terminate or otherwise
modify the agreement of limited partnership, certificate of limited partnership,
articles of incorporation, certificate of incorporation, bylaws, declaration of
trust, articles of organization, operating agreement or other organizational
documents of Pledgor, or permit the same to be amended, supplemented, terminated
or otherwise modified, except to the extent that such amendment, supplement,
termination or other modification does not adversely affect Pledgee's security
interest in the Pledged Collateral.
7. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants,
as of the date hereof, to Pledgee as follows:
(a) Pledgor is the sole member of the Company and holds a one
hundred percent (100%) interest as such member in the Company. Pledgor is the
sole legal and beneficial owner of such membership interests, free and clear of
any lien, security interest, claim, tax assessment, encumbrance or other
restriction except for the security interest created by this Pledge.
(b) Pledgor has full power and authority to enter into this
Pledge.
(c) There are no restrictions upon the voting rights associated
with, or upon the transfer of, any of the Pledged Collateral.
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(d) Pledgor has the right to vote, pledge, assign and grant a
security interest in or otherwise transfer the Pledged Collateral free of any
liens, security interests, claims, tax assessments, encumbrances or other
restrictions, without the necessity of obtaining any consents or authorizations
from any third parties.
(e) No authorization, approval, or other action by, and no notice
to or filing with, any governmental authority is required either (i) for the
pledge and assignment of the Pledged Collateral pursuant to this Pledge or for
the execution, delivery or performance of this Pledge by Pledgor, or (ii) for
the exercise by Pledgee of the voting or other rights provided for in this
Pledge or the remedies in respect of the Pledged Collateral pursuant to this
Pledge (except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally).
(f) The pledge and assignment of the Pledged Collateral
pursuant to this Pledge creates a valid and perfected first priority security
interest in the Pledged Collateral in favor of Pledgee securing the payment and
performance of the obligations under the Note.
(g) This Pledge has been duly executed and delivered by and on
behalf of Pledgor and constitutes the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally and except
as to limitations under general equitable principles on the availability of
specific relief.
(h) Pledgor has delivered to Pledgee a true, accurate and complete
copy of the Operating Agreement.
8. VOTING RIGHTS. During the term of this Pledge, and except as
otherwise provided in this Section, Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to the Pledged Collateral
on all corporate, limited liability company, membership or other entity
questions in a manner not inconsistent with the terms of this Pledge. After the
occurrence of a default (after the expiration of any applicable notice and cure
period) under the Note (an "EVENT OF DEFAULT"), Pledgee may, at Pledgee's option
and without further notice, exercise all voting and other consensual rights
pertaining to the Pledged Collateral, including the right to take action by
consent of partners.
9. DIVIDENDS AND OTHER DISTRIBUTIONS. Upon the occurrence of an Event
of Default and its continuation beyond any applicable cure period, any and all
dividends, interest and distributions paid in respect of the Pledged Collateral,
including, but not limited to, any and all:
(a) dividends, interest and distributions paid or payable other
than in cash with respect to, and instruments and other property received,
receivable or otherwise distributed with respect to, or in exchange for, any of
the Pledged Collateral;
(b) dividends and other distributions paid or payable in cash with
respect to
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any of the Pledged Collateral on account of a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in surplus; and
(c) cash paid, payable or otherwise distributed with respect to
principal of, or in redemption of, or in exchange for, any of the Pledged
Collateral;
shall be delivered to Pledgee and shall, if received by Pledgor, be received in
trust for Pledgee, be segregated from the other property or funds of Pledgor,
and be delivered immediately to Pledgee in the same form as so received (with
any necessary endorsement). Pledgor shall execute and deliver (or cause to be
executed and delivered) to Pledgee all such proxies and other instruments as
Pledgee may reasonably request for the purpose of enabling Pledgee to receive
the dividends or interest payments which it is authorized to receive and retain
pursuant to the preceding sentence. Pledgor will reimburse Pledgee for all
expenses incurred by Pledgee, including, without limitation, reasonable
attorneys' and accountants' fees and expenses, in connection with the foregoing.
10. TRANSFERS AND OTHER LIENS. Pledgor agrees that he will not (a)
sell, transfer or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral, (b) create or permit to exist any lien upon or with
respect to any of the Pledged Collateral, except for the security interest under
this Pledge or (c) consent or approve the creation of any other membership
interest in the Company. Pledgor further covenants to maintain its existence and
the existence of the Company.
11. REMEDIES.
(a) If an Event of Default occurs, Pledgee shall have, in addition
to any other rights given under this Pledge, the Note or by law, all of the
rights and remedies with respect to the Pledged Collateral of a secured party
under the Uniform Commercial Code as in effect in the State of Ohio. In
addition, after the occurrence of such an Event of Default, Pledgee shall have
such powers of sale and other powers as may be conferred by applicable law. With
respect to the Pledged Collateral or any part thereof which shall then be in or
shall thereafter come into the possession or custody of Pledgee or which Pledgee
shall otherwise have the ability to transfer under applicable law, Pledgee may,
in his sole discretion, without notice except as specified below, after the
occurrence of an Event of Default, sell or cause the same to be sold at any
exchange, broker's board or at public or private sale, in one or more sales or
lots, at such price as Pledgee may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk, and the purchaser of any
or all of the Pledged Collateral so sold shall thereafter own the same,
absolutely free from any claim, encumbrance or right of any kind whatsoever.
Pledgee may, in his own name, or in the name of a designee or nominee, buy the
Pledged Collateral at any public sale and, if permitted by applicable law, buy
the Pledged Collateral at any private sale. Pledgor will pay to Pledgee all
expenses (including, without limitation, court costs and reasonable attorneys'
and paralegals' fees and expenses) of, or incident to, the enforcement of any of
the provisions hereof. To the extent permitted by applicable law, Pledgee agrees
to distribute any proceeds of the sale of the Pledged Collateral in accordance
with SECTION 11(D) hereof and Pledgor shall remain liable for any deficiency
following the sale of the Pledged Collateral.
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(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized market,
Pledgee will give Pledgor reasonable notice of the time and place of any public
sale thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Pledged Collateral conducted in
conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein,
Pledgor agrees that any requirements of reasonable notice shall be met if such
notice is received by Pledgor at least ten (10) days before the time of the sale
or disposition; provided, however, that Pledgee may give any shorter notice that
is commercially reasonable under the circumstances. Any other requirement of
notice, demand or advertisement for sale is waived, to the extent permitted by
law.
(c) In view of the fact that federal and state securities laws may
impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after an Event of Default, Pledgor agrees that after
the occurrence of an Event of Default Pledgee may, from time to time, attempt to
sell all or any part of the Pledged Collateral by means of a private placement
restricting the bidders and prospective purchasers to those who are qualified
and will represent and agree that they are purchasing for investment only and
not for distribution. In so doing, Pledgee may solicit offers to buy the Pledged
Collateral, or any part of it, from a limited number of investors deemed by
Pledgee, in his reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Pledged Collateral. If Pledgee solicits
such offers from not less than three (3) such investors, then the acceptance by
Pledgee of the highest offer obtained therefrom shall be deemed to be a
commercially reasonable method of disposing of the Pledged Collateral; provided,
however, that this Section does not impose a requirement that Pledgee solicit
offers from three or more investors in order for the sale to be commercially
reasonable.
(d) Upon the occurrence of an Event of Default and the sale of any
or all of the Pledged Collateral, the proceeds from such sale shall be applied
by Pledgee as follows:
FIRST: to payment of the costs and expenses of such sale,
including the expenses of Pledgee and the fees and expenses of counsel employed
in connection therewith;
SECOND: to the payment of the remainder of Pledgor's
obligations under the and the Loan Documents;
THIRD: to the payment of any other amounts required by
applicable law;
FOURTH: the balance, if any, of such proceeds shall be paid
to Pledgor, its successors and assigns, or as a court of competent jurisdiction
may direct.
12. SECURITY INTEREST ABSOLUTE. All rights of Pledgee and security
interests hereunder, and all obligations of Pledgor hereunder, shall be absolute
and unconditional irrespective of:
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(a) any lack of validity or enforceability of the Loan Documents
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of the cash
flow and other economic benefits encumbered by this Pledge;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any part of the obligations set forth in the Loan
Documents or any other agreement or instrument relating thereto; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor in respect of the obligations
under the Loan Documents or of this Pledge or any other agreement or instrument
relating thereto.
13. CONTINUING SECURITY INTEREST. This Pledge shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the payment in full of all amounts payable under
this Pledge, (b) be binding upon Pledgor, his successors and assigns, and (c)
inure, together with the rights and remedies of Pledgee hereunder, to the
benefit of, and be enforceable by, Pledgee and his successors, transferees and
assigns. Upon the payment in full of all amounts payable under this Pledge, the
security interest granted hereby shall terminate and all rights to the Pledged
Collateral shall revert to Pledgor. Upon any such termination, Pledgee will, at
Pledgor's expense, return to Pledgor such of the Pledged Collateral as shall not
have been sold or otherwise applied pursuant to the terms hereof and execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination.
14. REINSTATEMENT; LIENS. This Pledge and the obligations and security
interests hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the obligations under this
Pledge, the Loan Documents and/or under any agreement or instrument related
hereto (collectively, the "OBLIGATIONS") by Pledgor or any other obligor, or any
part thereof (including the receipt of any collateral or proceeds thereof), is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Obligations, whether as a "voidable
preference," "fraudulent conveyance," or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned. Pledgor shall not contest or support any other
person or entity in contesting, in any actions or proceedings, the priority or
validity of any security interest or other claim in any collateral or other
interest granted under any agreement or document by Pledgor or any other obligor
to Pledgee.
15. PLEDGEE APPOINTED ATTORNEY-IN-FACT. Pledgor hereby appoints
Pledgee his attorney-in-fact, with full authority in the name of Pledgor or
otherwise, from time to time in Pledgee's sole discretion, to take any action
and to execute any instrument which Pledgee may deem necessary or advisable to
accomplish the purposes of this Pledge, including, without
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limitation, to receive, endorse and collect all instruments made payable to
Pledgor representing any dividend, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge
for the same and to arrange for the transfer of all or any part of the Pledged
Collateral on the books of the Company to the name of Pledgee or Pledgee's
nominee; provided, however, that so long as no Event of Default has occurred and
continues beyond any applicable cure period, Pledgee shall not be entitled to
exercise the foregoing power.
16. PLEDGEE'S DUTY OF CARE. Pledgee shall not be liable for any acts,
omissions, errors of judgment or mistakes of fact or law including, without
limitation, acts, omissions, errors or mistakes with respect to the Pledged
Collateral, except for those arising out of or in connection with Pledgee's (a)
gross negligence or willful misconduct, or (b) failure to use reasonable care
with respect to the safe custody of the Pledged Collateral in Pledgee's
possession. Without limiting the generality of the foregoing, Pledgee shall be
under no obligation to take any steps necessary to preserve rights in the
Pledged Collateral against any other parties but may do so at his option. All
expenses incurred in connection therewith shall be for the sole account of
Pledgee, and shall constitute part of the obligations secured hereby.
17. NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be given in the manner set forth in the
Mortgage.
18. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Pledgee from and against any and
all claims, losses and liabilities (including reasonable attorneys' fees)
growing out of or resulting from this Pledge (including, without limitation,
enforcement of this Pledge), except claims, losses or liabilities resulting from
Pledgee's gross negligence or willful misconduct.
(b) Pledgor will upon demand pay to Pledgee the amount of any and
all expenses, including the reasonable fees and expenses of his counsel and of
any experts and agents, which Pledgee may incur in connection with (i) the
administration of this Pledge, (ii) the custody, preservation, use or operation
of, or the sale of, collection from or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
Pledgee hereunder or (iv) the failure by Pledgor to perform or observe any of
the provisions hereof.
19. TERM. This Pledge shall remain in full force and effect until all
obligations under the Loan Documents have been fully and indefeasibly performed.
Upon the termination of this Pledge as provided above (other than as a result of
the sale of the Pledged Collateral), Pledgee will promptly, and without
condition or delay, release the security interest created hereunder, and, upon
the request of Pledgor, will promptly, and without condition or delay, execute
and deliver in recordable form all necessary UCC-3 termination statements to
accomplish such release.
20. JOINT AND SEVERAL OBLIGATIONS. The obligations of Pledgor
hereunder and of other pledgors under certain other pledge agreements similar
hereto and of even or approximate date herewith (as they may be amended from
time to time) are joint and several. If any other
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pledgor is added to this Pledge at any time, the obligations of Pledgor and such
other pledgor under this Pledge shall be joint and several.
21. FURTHER ASSURANCES. Pledgor agrees that at any time and from time
to time, at the expense of Pledgor, Pledgor will promptly execute and deliver
all further instruments and documents, and take all further action, that may be
necessary or desirable, or that Pledgee may request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable Pledgee to exercise and enforce his rights and remedies hereunder with
respect to any Pledged Collateral.
22. SUCCESSORS AND ASSIGNS. This Pledge shall be binding upon and
inure to the benefit of Pledgor, Pledgee and their respective heirs, personal
administrators, successors and assigns. Pledgor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for Pledgor or any representative, executor or administrator of Pledgor's
estates. Pledgee may designate other beneficiaries of his rights and remedies
hereunder from time to time without assigning his position as Pledgee, and, if
and when so notified to do so by Pledgee, Pledgor shall make payments hereunder
directly to such designees.
23. AMENDMENTS, WAIVERS AND CONSENTS. No amendment or waiver of any
provision of this Pledge nor consent to any departure by Pledgor herefrom shall
in any event be effective unless the same shall be in writing and signed by
Pledgee, and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
24. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The covenants,
agreements, representations and warranties of the parties hereto made in this
Pledge shall survive the closing of the transactions contemplated hereby for a
period of one (1) year from the date hereof.
25. SECTION HEADINGS. The section headings herein are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Pledge. Unless otherwise specified, references in this
Pledge to Sections are references to Sections of this Pledge.
26. DEFINITIONS. The singular shall include the plural and vice versa
as the context may require. All genders shall include all other genders
(including the neuter gender for any entity).
27. ENTIRE AGREEMENT. This Pledge, the Loan Documents and all other
documents or instruments related thereto set forth the entire understanding of
the parties hereto and supersede all prior agreements between them with respect
to the subject matter hereof and all prior negotiations between the parties are
merged in this Pledge and such other documents and there are no promises,
agreements, conditions, undertakings, warranties or representations, oral or
written, express or implied, between them other than as herein set forth.
28. SEVERABILITY. If this Pledge or any one or more of the provisions
contained in this Pledge should be held to be invalid, illegal or unenforceable
in any respect, the validity, legality
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and enforceability of all remaining provisions shall not in any way be affected
or impaired.
29. GOVERNING LAW. This Pledge shall be construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
principles.
30. WAIVER OF TRIAL BY JURY. PLEDGOR HEREBY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO WHICH IT AND PLEDGEE MAY BE PARTIES ARISING OUT OF
OR IN ANY WAY PERTAINING TO (A) THIS PLEDGE, (B) THE NOTE OR THE LOAN DOCUMENTS
OR (C) ANY DOCUMENT RELATED TO ANY OF THE FOREGOING. IT IS AGREED AND UNDERSTOOD
THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO THIS PLEDGE.
31. SUBMISSION TO JURISDICTION. PLEDGOR AND PLEDGEE EACH HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY OHIO STATE OR FEDERAL COURT
SITTING IN CUYAHOGA COUNTY OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE AND HEREBY AGREE NOT TO ASSERT THAT IT IS NOT SUBJECT TO
THE JURISDICTION OF THE FOREGOING COURTS. EITHER PLEDGOR OR PLEDGEE MAY, AT ITS
SOLE DISCRETION, ELECT THE STATE OF OHIO, CUYAHOGA COUNTY, OR THE UNITED STATES
OF AMERICA FEDERAL DISTRICT COURT HAVING CUYAHOGA COUNTY AS THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING. PLEDGOR AND PLEDGEE EACH HEREBY IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE TO SUCH VENUE AS BEING AN INCONVENIENT FORUM OR IMPROPER VENUE.
32. REPRESENTATIONS OF PLEDGOR. PLEDGOR REPRESENTS AND WARRANTS THAT
THE WAIVER OF TRIAL BY JURY CONTAINED HEREIN IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY PLEDGOR, AND PLEDGOR HEREBY REPRESENTS THAT NO
REPRESENTATIONS OF FACT OR AGREEMENTS HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THE WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
PLEDGOR FURTHER REPRESENTS THAT HE HAS BEEN REPRESENTED IN THE SIGNING OF THIS
PLEDGE AND IN THE MAKING OF THE WAIVER OF TRIAL BY JURY AND BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF HIS OWN FREE WILL, AND THAT HE HAS HAD THE OPPORTUNITY TO
DISCUSS THE WAIVER OF TRIAL BY JURY WITH SUCH COUNSEL.
33. EXECUTION IN COUNTERPARTS. This Pledge may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, Pledgor and Pledgee have executed this
Pledge as of the date first set forth above.
PLEDGOR:
ESSEX HOSPITALITY ASSOCIATES IV L.P.,
a New York limited partnership
By: Essex Partners Inc., a New York
corporation, its general partner
By: /S/ XXXXXXX X. XXXXXX (SEAL)
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
PLEDGEE:
GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation
By: /S/ XXXXXX X. XXXXXXX, XX (SEAL)
Xxxxxx X. Xxxxxxx, XX
Senior Vice President
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