AMENDED AND RESTATED PLEDGE
AGREEMENT
THIS AMENDED AND RESTATED PLEDGE
AGREEMENT , dated as of
June 6, 2008 (as so amended and restated and as further
amended, restated, replaced, supplemented or otherwise modified
from time to time, this “ Agreement ”), made by
PGRT ESH, INC., a Delaware corporation (the “ Pledgor
”), in favor of CITICORP USA, INC., a Delaware corporation
(the “ Lender ”).
WHEREAS , pursuant to a Loan Agreement dated as of
June 29, 2007 (the “ 2007 Loan Agreement ”)
between the Pledgor and the Lender, the Pledgor borrowed
$120,000,000 from the Lender, to be repaid in full on June 10,
2008 (the “ Original Maturity Date
”);
WHEREAS , the Pledgor has requested the Lender to extend
the Original Maturity Date for approximately one year, which the
Lender has agreed to do, subject to amending certain other terms of
the 2007 Loan Agreement and the Pledgor’s meeting certain
conditions;
WHEREAS , in furtherance of the foregoing, the Pledgor
and the Lender have entered into an Amended and Restated Loan
Agreement dated as of June 6, 2008 (as so amended and restated
and as further amended, restated, replaced, supplemented or
otherwise modified from time to time, the “ Loan
Agreement ”; capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such
terms in the Loan Agreement) amending and restating in its entirety
the 2007 Loan Agreement;
WHEREAS , in connection with the 2007 Loan Agreement,
the Pledgor pledged certain collateral to the Lender pursuant to
the Pledge Agreement dated as of November 7, 2007 (the “
Original Pledge Agreement ”) between the Pledgor and
the Lender;
WHEREAS , it is a condition precedent to the
effectiveness of the Loan Agreement that the Pledgor shall have
amended the Original Pledge Agreement;
WHEREAS , in furtherance of the foregoing, the Pledgor
and the Lender agree to amend and restate in its entirety the
Original Pledge Agreement;
NOW, THEREFORE, in consideration of the promises contained
herein and the Lender’s entering into the Loan Agreement, the
Pledgor hereby agrees as follows:
SECTION 1. Pledge . The Pledgor hereby continues and reaffirms in
its entirety its original pledge to the Lender of, and its original
grant to the Lender of a lien on and security interest in, and, for
further certainty, hereby pledges to the Lender and grants to the
Lender a lien on and security interest in, the following, whether
now owned or at any time hereafter acquired by the Pledgor
(collectively, the “ Collateral ”):
(a) all of the Series A-2 Units and
Common A-2 Units (collectively, the “ Pledged
Interests ”) of BHAC Capital IV, L.L.C., a Delaware
limited liability company (the “ Issuer ”), and
the certificates representing the Pledged Interests, and all
distributions, cash, 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 Interests, and all
additional Units (as defined in the Second Amended and Restated
Limited Liability Company Agreement of the Issuer dated as of
June 29, 2007 (the “ LLC Agreement ”)) of
or in the Issuer from time to time acquired in any manner by the
Pledgor, and the certificates, if any, representing such additional
Units, and all distributions, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such additional Units;
and
(b) all proceeds of any of the foregoing
(including, without limitation, proceeds constituting any property
of the types described above).
The Pledgor delivered to the Lender each of the
certificates representing the Pledged Interests, accompanied by an
undated transfer power with respect to each such certificate,
executed in blank by the Pledgor and an acknowledgment (as amended,
restated, replaced, supplemented or otherwise modified from time to
time, the “ Acknowledgment ”) of the Chief
Financial Officer of the Issuer confirming, among other things,
that the Lender’s security interest in the Pledged Interests
has been registered in the books and records of the Issuer, that
such security interest does not violate any term or provision of
the LLC Agreement or any of the Issuer’s other organizational
documents and that the Issuer will follow the Lender’s
instructions with respect to any distributions payable on account
of, or any other proceeds of, the Pledged Interests.
SECTION 2. Security for Obligations
. The pledge of, and the grant of a lien on and
security interest in, the Collateral hereunder secures the prompt
and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of all of the
Obligations.
SECTION 3. Representations and Warranties
. The Pledgor represents and warrants as
follows:
(a) It is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, is duly qualified to do business and is in good
standing as a foreign corporation in all other states where such
qualification is required (except where the failure to be so
qualified could not reasonably be expected to have a material
adverse effect on the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or
otherwise) of the Pledgor), and has all necessary corporate power
and authority to enter into this Agreement.
(b) It has taken all requisite corporate
action through its shareholders or directors to authorize the
execution and delivery of, and the performance of its obligations
under, this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of the Pledgor enforceable against it
in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally.
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(c) It is the legal and beneficial owner of
record of the Collateral free and clear of any Lien, except for the
Lien created by this Agreement. On the date hereof, no effective
financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording
office.
(d) The pledge of the Collateral pursuant
to this Agreement, together with the delivery to the Lender of the
certificate(s) evidencing the Pledged Interests and the related
transfer powers, the execution and delivery of the Acknowledgment
and the filing of the UCC Financing Statement describing the
Pledged Interests as collateral, creates a valid and perfected
first priority lien on and security interest in the Collateral,
securing the payment and performance of the Obligations, and all
filing and other actions necessary or desirable to perfect and
protect such lien and security interest have been duly made or
taken.
(e) No authorization, approval, or other
action by, and no notice to or filing with, any Person is required
for (i) the pledge by the Pledgor of the Collateral pursuant
to this Agreement, the grant by the Pledgor of the lien and
security interest granted hereby or the execution, delivery or
performance of this Agreement by the Pledgor, (ii) the
perfection of the lien and security interest granted in this
Agreement or (iii) the exercise by the Lender of the rights or
remedies provided for in this Agreement.
(f) The execution, delivery and performance
by the Pledgor of this Agreement, the granting of the lien and
security interest hereunder and the exercise by the Lender of any
or all of the remedies hereunder do not and will not violate,
contravene or constitute a default under any contractual obligation
to which the Pledgor or the Issuer is a party.
(g) The Pledged Interests constitute all of
the issued and outstanding Series A-2 Units and Common A-2
Units of the Issuer.
(h) All of the Pledged Interests are duly
authorized, fully paid and nonassessable. All of the Pledged
Interests are represented by certificates.
(i) The exact correct name of the Pledgor
and the jurisdiction of organization of the Pledgor are set forth
in the introductory paragraph of this Agreement.
(j) The
pledge effected and evidenced hereby does not constitute a sale for
tax purposes.
(k) A true and complete organization chart
in reasonable detail showing David Lichtenstein’s interest,
direct and indirect, in the Issuer is attached hereto as
Schedule 1, and a list in reasonable detail of all claims and
interests, other than those held, directly or indirectly, by David
Lichtenstein, entitled to payment or distributions in respect of
the Issuer or the Collateral is attached hereto as
Schedule 2.
SECTION
4. Further Assurances;
Covenants .
(a) The Pledgor covenants and agrees that
at any time and from time to time, at the expense of the Pledgor,
the Pledgor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that the Lender may request, in order to
perfect and protect any Liens granted or purported to be granted
hereby or to enable the Lender to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Pledgor will execute
and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Lender may request, in order to perfect and
preserve the Liens granted or purported to be granted
hereby.
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(b) The Pledgor hereby authorizes the
Lender to file one or more financing or continuation statements,
and amendments thereto, relative to all or any part of the
Collateral. A carbon, photographic or other reproduction of this
Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where
permitted by law.
(c) The Pledgor covenants and agrees that
the Pledgor will not (i) sell, convey, Transfer, assign (by
operation of law or otherwise) or otherwise dispose of, or grant
any option with respect to, any of the Collateral, Collateral
Entity Properties or Collateral (as defined in the Loan Agreement)
or any other property of the Pledgor relating thereto,
(ii) create or suffer to exist any Lien upon or with respect
to any of the Collateral, Collateral Entity Properties or
Collateral (as defined in the Loan Agreement) or any other property
of the Pledgor relating thereto, except for the lien and security
interest created by this Agreement, (iii) vote to enable, or
take any other action to permit, the Issuer to issue any Units or
other equity interests in the Issuer or to issue any other
securities convertible into or granting the right to purchase or
exchange for any Units or other equity interests in the Issuer, in
each case which have a preference over the Pledged Interests in
right of distribution or in liquidation, or (iv) enter into
any agreement or undertaking restricting the right or ability of
the Lender to sell, assign or transfer any of the Collateral.
Notwithstanding the provisions of this Section 4(c), a
transfer to a Restricted Party shall not be deemed to be a Transfer
so long as such transfer does not relate to any Collateral,
Collateral Entity Properties or Collateral (as defined in the Loan
Agreement) without the Lender’s prior written consent and
does not impair or limit the first priority Lien in favor of the
Lender pursuant to the terms hereof.
(d) The Pledgor covenants that, in
furtherance of allowing the Lender to determine from time to time
the Collateral Value of the Specified Equity Interests represented
by the Collateral and the value of other Collateral (as defined in
the Loan Agreement), the Pledgor will (a) permit periodic
inspections and appraisals of the Collateral, Collateral Entity
Properties, Collateral (as defined in the Loan Agreement) and any
other property of the Pledgor by the Lender or its authorized
agents and (b) deliver to the Lender, not later than
forty-five days after the end of each calendar quarter, such
information as to the Issuer, including, without limitation,
information as to the real properties owned, directly or
indirectly, by the Issuer, the extent and nature of David
Lichtenstein’s direct or indirect ownership thereof, and the
Appraised Value, Cap Rate Value and EBITDA, as applicable, in
respect thereof, as the Lender may reasonably request. Such
information shall include (i) a detailed description of the
distributions, cash, instruments and other property, if any,
received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Interest as well as
information as to amounts distributable by the Issuer but not
actually distributed, (ii) detailed financial statements as to
the Issuer, including, without limitation, a balance sheet, income
statement, cash flow statement and equity owner’s account
statement, with such other information as the Lender may request in
its discretion, and (iii) a detailed description of any
changes to Schedule 1 or Schedule 2 since the date
hereof.
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SECTION
5. Distributions;
Voting; Compensation; Etc .
(a) So long as no Default or Event of
Default shall have occurred and be continuing, the Pledgor shall be
entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement and in a manner
which does not impair any of the Collateral and to receive and
retain any and all distributions paid in respect of the Collateral;
provided , however , that any and all:
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(i)
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distributions paid or payable other
than in cash in respect of, and instruments and other
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