Exhibit 10.6
JUNIOR MEZZANINE PLEDGE AND
SECURITY AGREEMENT
THIS JUNIOR MEZZANINE PLEDGE AND
SECURITY AGREEMENT (this “ Agreement ”), dated
as of September 29, 2006, made by SW 108 Wagon Wheel JM LLC, a
Delaware limited liability company (“ Pledgor
”), and Behringer Harvard Alexan Nevada, LLC, a Delaware
limited liability company (together with its successors and
assigns, “ Lender ”).
RECITALS
A.
Lender has agreed to make a loan
(the “ Loan ”) to Pledgor in the original
principal amount of Two Million Seven Hundred Seventy-Five Thousand
Eight Hundred Seventy-Two Dollars ($2,775,872) pursuant to the
terms of that certain Loan Agreement, dated of even date herewith,
between Pledgor and Lender (herein, as the same may be amended or
restated from time to time, the “ Loan Agreement
”); and
B.
Pledgor is the sole member and the
legal and beneficial owner of one hundred percent (100%) of the
membership interests in SW 109 Wagon Wheel SM LLC, a Delaware
limited liability company (the “ Senior Mezz Pledgor
”) which is the sole member and the legal and beneficial
owner of one hundred percent (100%) of the membership interests in
SW 106 Wagon Wheel Holdings LLC, a Delaware limited liability
company (the “ Mortgagor ”), which is the owner
in fee simple of the Property (as defined in the Loan Agreement);
and
C.
One of the conditions precedent to
the Lender’s making of the Loan under the Loan Agreement is
Pledgor’s execution and delivery of this Agreement;
and
D.
Pledgor, Senior Mezz Pledgor and
Mortgagor shall derive substantial direct and indirect benefits
from the Loan.
NOW, THEREFORE, for and in
consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1.
Recitals; Definitions
. The recitals set forth above are
true and correct and are incorporated herein by reference.
Capitalized terms not defined herein but which are defined in the
Uniform Commercial Code as in effect from time to time in the State
of Nevada (the “ UCC ”) shall have the meanings
given them in Article 8 or Article 9, as applicable, thereof. Other
capitalized terms used but not defined herein shall have the
meaning ascribed to such term in the Loan Agreement, in each case
unless the context clearly requires otherwise.
2.
Pledge .
(a)
Grant of Security
Interest . As collateral
security for the Indebtedness and the performance of all
obligations under the Loan Documents, Pledgor presently and
irrevocably pledges, hypothecates, assigns, delivers and transfers
to the Lender, and grants to the Lender a continuing first priority
security interest in, all of its right, title and interest in and
under the following property (collectively, the “
Collateral ”) whether now owned or hereafter acquired
or coming into existence:
1
(i)
all of Pledgor’s right, title
and interest, whether direct or indirect, whether legal, beneficial
or economic, and whether fixed or contingent, (i) as the sole
member in and to the Senior Mezz Pledgor, including, without
limitation, Pledgor’s right to vote on Senior Mezz Pledgor
matters and Pledgor’s rights, now existing or hereafter
arising or acquired, to receive from time to time its share of
profits, losses, income surplus, return of capital, proceeds, fees,
preferences, payments or distributions from Senior Mezz Pledgor (
Pledged Interest ”);
(ii)
all Instruments, certificates, or
other writings evidencing Pledgor’s Pledged
Interest;
(iii)
all of Pledgor’s right, title
and interest in, to and under that certain Operating Agreement,
dated as of August 28, 2006 , executed by Pledgor (as
amended in accordance with the terms of the Loan Agreement, the
“ Operating Agreement ”) and the other
organizational documents of Senior Mezz Pledgor;
(iv)
all of Pledgor’s right, title
and interest in, to and under all General Intangibles relating to
or arising out of any of the foregoing; and
(v)
all Proceeds of any of the
foregoing.
(b)
Security for
Obligations . This
Agreement secures (i) the Indebtedness and (ii) all obligations of
Pledgor under the Loan Agreement, the Note and all of the other
Loan Documents (collectively, the “ Secured
Obligations ”).
(c)
Perfection of Security
Interest . In furtherance
of the grant of the pledge and security interest pursuant to
Section 2(a) above, Pledgor hereby agrees with Lender as
follows:
(i)
If the Pledged Interest is not
currently represented or evidenced by certificates or Instruments,
Pledgor shall, upon the execution of this Agreement (A) cause the
Senior Mezz Pledgor to create a registration book for the
registration of all ownership interests in Senior Mezz Pledgor and
cause Senior Mezz Pledgor to register in such book Pledgor’s
pledge of the Pledged Interest to Lender together with the notation
that all distributions are to be disbursed to Lender as required
under this Agreement, and (B) cause the Senior Mezz Pledgor to
agree to comply with any and all unilateral directions and other
Instructions from Lender concerning such Pledged Interest given in
accordance with this Agreement, without any further consent of (or
regardless of contrary instructions of) Pledgor or any other
person.
(ii)
Concurrently with the execution and
delivery of this Agreement, Pledgor is delivering to Lender an
assignment of membership
interest in blank (the “
Assignment of Interest ”), in the form set forth on
Exhibit A hereto, for the Pledged Interest, transferring all
of the Pledged Interest in blank, duly executed by Pledgor and
undated. Lender shall have the right, at any time in its discretion
upon the occurrence and during the continuance of an Event of
Default pursuant to Section 6(a) below, to transfer to, and
to designate on the Assignment of Interest, any Person to whom the
Pledged Interest is sold in accordance with the provisions
hereof.
(iii)
To the extent the Pledged Interest
hereafter is represented or evidenced by certificates, Instruments
or other writings (other than the Operating Agreement) whether in
bearer or registered form, Pledgor shall within three (3) days of
receipt of any such certificates, Instruments or other writings
(A) deliver to Lender such certificates, Instruments or other
writings, as applicable and (B) deliver to Lender all
necessary powers, instruments of transfer or assignment, each
undated and duly executed in blank.
(iv)
Regardless of whether the Collateral
is represented or evidenced by certificates, Instruments or other
writings, Pledgor shall do all other acts and deliver such other
documents, and cause Senior Mezz Pledgor to do the same, as Lender
reasonably deems necessary or desirable (or as are otherwise
required by the laws of the jurisdiction governing perfection, the
effect of perfection or nonperfection or the priority of
Lender’s security interest) in order to perfect such security
interest in the Collateral. In furtherance of the foregoing,
Pledgor hereby authorizes Lender to file such UCC financing
statements against Pledgor as Lender shall deem necessary or
desirable containing a description of the Collateral pledged by
Pledgor sufficient to satisfy the requirements of Article 9 of the
UCC (the “ UCC Financing Statements
”).
(d)
Continuing Security
Interest . This Agreement
shall create a continuing security interest in the Collateral and
shall remain in full force and effect until payment in full of all
Indebtedness. Upon the payment in full of all Indebtedness, the
security interests granted herein shall terminate and all rights to
the Collateral shall revert to Pledgor. Upon any such termination,
the Lender shall, at Pledgor’s sole expense, deliver to
Pledgor, without any representations, warranties or recourse of any
kind whatsoever, all certificates, Instruments and other writings
representing or evidencing all Collateral then held by the Lender
hereunder, if any, and execute and deliver to Pledgor such
documents as Pledgor shall reasonably request to evidence such
termination.
3.
Representations and
Warranties . As of the
date hereof Pledgor represents and warrants as follows:
(a)
Organization;
Authorization . Pledgor
is a limited liability company which has been duly formed and is
validly existing and in good standing under the laws of
the
State of Delaware and is qualified
to do business in the State of Nevada. Pledgor has full limited
liability company power and authority to execute this Agreement and
to undertake and consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed by or on behalf
of Pledgor and constitutes the legal, valid and binding obligation
of Pledgor and is enforceable against Pledgor in accordance with
its terms, subject, as to enforceability, to the effect of
applicable bankruptcy, insolvency and other similar laws limiting
the enforcement of creditors’ rights generally and to general
principles of equity.
(b)
Agreement Will Cause No
Defaults . The execution,
delivery and performance of this Agreement by Pledgor does not and
will not violate, or contravene (i) any term or provision of the
organizational documents of Pledgor or any resolution or vote of
Pledgor, (ii) any existing license, indenture or other material
contract or agreement binding upon Pledgor or (iii) any existing
law, statute, regulation, order, decree or judgment applicable to
Pledgor or its property.
(c)
Ownership, No Liens,
etc . Pledgor is the
legal, record and beneficial owner of, and has good and marketable
title to the Collateral in which it grants a security interest to
Lender under this Agreement, free and clear of all liens, security
interests, options or other charges or encumbrances, other than the
security interest granted pursuant hereto. Pledgor is the sole
member of Senior Mezz Pledgor.
(d)
As to Pledged Interest
. The Pledged Interest is duly
authorized and validly issued, and are fully paid and
non-assessable and constitute all of the issued and outstanding
membership interests in Senior Mezz Pledgor. The Pledged Interest
(i) is not “financial assets” (within the meaning of
Section 8-102(a)(9) of the UCC) and (ii) is not credited to a
“securities account” within the meaning of
Section 8-501(a) of the UCC.
(e)
Perfection
. Upon the filing of the UCC
Financing Statements referred to in Section 2(c)(iv), the security
interest granted pursuant to this Agreement will constitute a
valid, perfected first priority security interest in the Collateral
and related proceeds, enforceable against all creditors of Pledgor
and any persons purporting to purchase any Collateral or receive
any related proceeds from Pledgor, subject to the limitations in
the UCC.
(f)
Authorization, Approval,
etc . No authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other person is
required either:
(i)
for the execution, delivery, and
performance of this Agreement by Pledgor (other than any
authorizations and approvals that have already been received or
actions that have already been taken), or
(ii)
for the exercise by the Lender of
(1) the voting and other rights provided for in this Agreement or
(2) except as may be required in connection with a disposition of
the Pledged Interest by laws relating to the offering and sale of
securities generally, the
remedies provided for in respect of
the Collateral pursuant to this Agreement.
4.
Covenants .
(a)
Protect Collateral
. Pledgor agrees that it will own at
all times during the term of the Loan one hundred percent (100%) of
the ownership interests in Senior Mezz Pledgor. Pledgor agrees that
it shall not sell, assign, transfer, pledge or encumber in any
other manner the Collateral (except for the pledge to Lender
hereunder or an assignment to Lender or its designee pursuant to
the Assignment of Membership Interests). Pledgor shall warrant and,
at Pledgor’s expense, defend the right and title herein
granted unto the Lender in and to the Collateral (and all right,
title and interest represented by the Collateral) against the
claims and demands of all persons whomsoever.
(b)
Further Assurances
. Pledgor shall, at Pledgor’s
expense (i) promptly execute and deliver, and cause the Senior Mezz
Pledgor to promptly execute and deliver, all further writings
(including instruments of transfer or control) reasonably requested
by Lender, and (ii) promptly take all further action, and cause the
Senior Mezz Pledgor to promptly take all further action, that the
Lender may reasonably request; in each case, in order to perfect
and protect and maintain the perfection and priority of any
security interest 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, including the rights and
remedies under Section 7(b) .
(c)
Organizational
Documents . Pledgor
agrees that it shall not amend or restate the operating agreement
or certificate of formation of Senior Mezz Pledgor without
Lender’s consent including but not limited to changing the
location of its principal place of business or chief executive
office, its name or reorganizing under the laws of another
jurisdiction.
(d)
Consents . Pledgor shall execute and deliver to Lender,
upon its request at the time Lender exercises its remedies, any
document required under the organizational documents of Pledgor or
otherwise reasonably deemed necessary by Lender in order to
evidence Pledgor’s consent to the Lender’s exercising
of its remedies under this Agreement, including those set forth in
Section 7(a) hereof wherein Lender becomes the record, legal
and beneficial owner of the Collateral pledged under this
Agreement.
(e)
Pledged Inter
