EXHIBIT 10.29.01
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement") dated as of
April 24, 2003, among FELCOR/JPM HOLDINGS, L.LC., a Delaware limited liability
company having its principal place of business c/o FelCor Lodging Trust
Incorporated, 545 East John Carpenter Freeway, Suite 1300, Irving, Texas 75062
("Pledgor"), and JPMORGAN CHASE BANK, a New York banking corporation, having an
address at 270 Park Avenue, New York, New York 10017 ("Lender").
W I T N E S S E T H:
WHEREAS, Pledgor is the sole member of, and owner of all of the
membership interests in, FELCOR/JPM HOTELS, L.L.C., a Delaware limited liability
company ("Property Owner"; such membership interests in Property Owner together
with all membership interest certificates, shares, claims, powers, privileges,
benefits, remedies, options, or rights of any nature whatsoever (including,
without limitation, all voting rights) which may currently exist or be issued or
granted by Property Owner to Pledgor with respect to or on account of such
membership interests are collectively referred to in this Agreement as, the
"Pledged Interests");
WHEREAS, Lender pursuant to that Mezzanine Loan Agreement of even
date herewith (as amended, supplemented or otherwise modified from time to time,
the "Loan Agreement"), by and between the Pledgor and Lender, has agreed to make
a loan to Pledgor in the aggregate principal amount of $10,000,000.00 (the
"Loan"), which Loan is evidenced by a certain Secured Promissory Note (Mezzanine
Loan) executed by Pledgor (the "Note") and secured by this Agreement and certain
other loan documents (collectively, the "Loan Documents"); and
WHEREAS, as a condition to making the Loan, Lender has required that
Pledgor collaterally pledge and assign to Lender, and grant to Lender a first
priority security interest in, the Collateral (as such term is hereinafter
defined), as security for Pledgor's due and timely observance and performance of
all of its obligations and covenants under the Note.
NOW, THEREFORE, in consideration of the Loan, and for other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. COLLATERAL PLEDGE AND GRANT OF SECURITY INTEREST. Subject to the
terms and conditions of this Agreement, Pledgor hereby collaterally pledges and
assigns to Lender, and grants to Lender a first priority security interest in,
all of the Collateral, to secure Pledgor's due and timely observance and
performance of all of its obligations and covenants under the Note (all of the
foregoing, collectively, the "Obligations"). The term "Collateral" as used in
this Agreement means the Pledged Interests and all Proceeds relating thereto.
The term "Proceeds" as used in this Agreement means all "proceeds" as such term
is defined in Section 9-102(a)(46) of the Uniform Commercial Code (hereinafter
defined) and in any event shall include, without limitation, all dividends or
other income from the Pledged Interests, collections thereon or distributions
with respect thereto.
(a) This Agreement shall constitute a security agreement under the
Uniform Commercial Code as adopted and enacted in the State of New York, as
amended from time to time (the "Uniform Commercial Code").
2. BOOKS AND RECORDS.
(a) Pledgor shall keep or cause to be kept accurate and complete
books, records and accounts in accordance with generally accepted accounting
principles, consistently applied, with respect to the financial affairs of
Pledgor which relate to the Collateral. Pledgor represents and warrants to
Lender that:
(i) it is a registered organization under the state of Delaware; and
(ii) all books and records with respect to the financial affairs of
Property Owner which relate to the Collateral are presently kept either at
the offices of Pledgor in Dallas County, Texas or at the Properties (as
defined in the Loan Agreement).
(b) Pledgor shall notify Lender at least 30 days prior to:
(i) any change of address of any entity comprising Pledgor;
(ii) any change in the location where Property Owner's books and
records are kept;
(iii) any change of the name under which any entity comprising
Pledgor conducts its business.
(c) Pledgor shall, from time to time, within five Business Days (as
defined in the Loan Agreement) after written request and at its sole cost and
expense, deliver to Lender certified copies of any of such books and records of
Pledgor as may be reasonably requested by Lender. Lender shall have the right
from time to time, upon reasonable prior notice, at all times during normal
business hours to examine such books, records and accounts at Pledgor's office
and to make copies or extracts therefrom as Lender shall desire. Pledgor shall,
from time to time, within five Business Days after written request and at its
sole cost and expense, deliver to Lender such information, reports and
additional available financial information with respect to the financial affairs
of Property Owner and with respect to the Collateral as Lender shall reasonably
request.
3. INTENTIONALLY OMITTED.
4. PROTECTION OF SECURITY INTEREST. Pledgor shall take any and all
steps necessary or required to preserve and protect the priority of the security
interest granted herein, and in furtherance of this obligation Pledgor agrees
that:
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(a) Pledgor shall not sell, assign, pledge, transfer or otherwise
dispose of any of the Collateral or any interest therein, or offer to do so,
without the prior written consent of Lender, or permit anything to be done that
shall impair the value of any of the Collateral;
(b) Pledgor hereby authorizes Lender to execute and file (as the
case may be) financing statements under the Uniform Commercial Code, and Pledgor
shall execute and deliver to Lender, upon Lender's request, any other documents
reasonably requested by Lender, describing the Collateral and evidencing and/or
perfecting the security interest in the Collateral and to otherwise effectively
implement the purposes of this Agreement;
(c) Lender may from time to time, at its option, and upon notice to
Pledgor, perform any agreement or obligation of Pledgor hereunder which Pledgor
fails to perform and take any action which Lender deems reasonably necessary or
appropriate for the maintenance or preservation of any of the Collateral or its
security interest therein; and
(d) Any amounts incurred by Lender for costs and expenses
(including, without limitation, reasonable attorney's fees and expenses) in
connection with any action taken by Lender during an Event of Default to enforce
or protect its rights hereunder, shall, at Lender's option, become part of the
principal amount due under the Note and part of the Obligations and Pledgor
shall pay any such amount to Lender together with interest thereon at the
Default Rate (as such term is defined in the Loan Agreement).
5. REPRESENTATIONS AND WARRANTIES.
Pledgor represents and warrants that:
(a) except as expressly permitted by the Loan Agreement, no other
security agreement or financing statement covering the Collateral or any part
thereof has been made or filed and no security interest, other than the one
herein created, has been created, attached or perfected in the Collateral or in
any part thereof;
(b) no dispute, set-off, counterclaim or defense exists on the part
of Pledgor or any other party in respect of any part of the Collateral;
(c) all information supplied and statements made to Lender by or on
behalf of Pledgor in connection with the identification and description of the
Collateral are true and correct; and
(d) except for (i) the liens and security interests created pursuant
to the Loan Documents or (ii) such other liens and security interests expressly
permitted thereby, Pledgor's title to the Collateral is absolute and
unencumbered.
6. PLEDGOR COVENANTS.
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Pledgor shall:
(a) promptly furnish Lender with any information or documents which
Lender may reasonably request in writing concerning the Collateral;
(b) Intentionally Omitted;
(c) promptly notify Lender, upon Pledgor becoming aware, of any
claim, action or proceeding affecting title, or any other matter relating to the
Collateral, or any part thereof, or the security interest created herein, and at
Lender's written request, appear in and defend, at Pledgor's expense, any such
claim, action or proceeding;
(d) promptly make such further assurances as may be reasonably
necessary to establish proof of Pledgor's title to the Collateral;
(e) promptly furnish Lender with true copies of all notices
(including notices of default) sent or received by Pledgor with respect to any
material agreements relating to the Collateral;
(f) not, without Lender's prior written consent, create any other
security interest in, assign, pledge or otherwise encumber the Collateral or any
part thereof, or permit any part of the Collateral to be or become subject to
any lien (other than as expressly permitted in the Loan Agreement), attachment,
execution, sequestration, other legal or equitable process, or encumbrance of
any kind or character other than the security interests created by this
Agreement;
(g) After the occurrence of and during the continuance of an Event
of Default (as such term is defined in Section 7 hereof), if Pledgor receives
any Proceeds, Pledgor shall accept the same as Lender's agent and hold the same
in trust on behalf of and for the benefit of Lender and shall promptly deliver
the same forthwith to Lender, together with appropriate forms of assignment,
UCC-1 financial statements, and other appropriate instruments indicating the
security interest of Lender in such Proceeds, duly executed by Pledgor as
additional collateral security for the Obligations. Pledgor authorizes and
directs Lender to apply any cash Proceeds received by Lender after the
occurrence of and during the continuance of an Event of Default to the payment
of the Obligations in accordance with the Loan Agreement; and
(h) Lender shall not have any liability whatsoever to Pledgor with
respect to any Proceeds so received (except as otherwise provided in the Loan
Agreement or this Agreement), nor shall Lender be liable to Pledgor in any
manner with respect to the holding by Lender of any Collateral pursuant to and
in accordance with this Agreement. Additionally, Lender shall not have any
obligations, except as otherwise expressly set forth in this Agreement and for
any state of facts determined by a final, judgment of a court of competent
jurisdiction, arbitration or mediation to be caused by Lender's gross
negligence, bad faith or willful misconduct, to take any action with respect to
any Collateral held by it.
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7. INTENTIONALLY DELETED.
8. REMEDIES. If an Event of Default (as defined in the Loan
Agreement) shall occur and be continuing, Lender may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Uniform Commercial Code in
effect in each applicable jurisdiction. Without limiting the generality of the
foregoing, Lender, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice or procedure
required by the Loan Agreement or applicable law or referred to herein) to or
upon Property Owner or any other person or entity (all and each of which
demands, presentments, protests, advertisements or notices or other defenses,
are hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange, broker's board or office of Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Lender shall have the right upon any such public
sale or sales, and, to the extent permitted by law, to purchase the whole or any
part of the Collateral so sold, free of any right or equity of redemption in
Property Owner, which right or equity is hereby waived or released. Lender shall
apply any Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of Lender hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in such order as Lender may elect, and only
after such application and after the payment by Lender of any other amount
required by any provision of applicable law, including, without limitation, the
Uniform Commercial Code in effect in each applicable jurisdiction, need Lender
account for the surplus, if any, to Pledgor. To the extent permitted by
applicable law, Pledgor waives all claims, damages and demands they may acquire
against Lender arising out of the exercise by Lender of any of its rights
hereunder, except for any claims, damages and demands they may have against
Lender arising from the gross negligence or willful misconduct of Lender. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition. Pledgor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Obligations and the reasonable fees and disbursements of
any attorneys employed by Lender to enforce its rights and remedies hereunder.
Lender may comply with any applicable state or federal law requirements in
connection with a disposition of the Collateral and compliance therewith will
not be considered adversely to affect the commercial reasonableness of any sale
of the Collateral. Lender may sell the Collateral without giving any warranties
as to the Collateral. Lender may specifically disclaim any warranties of title
or the like. The
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foregoing will not be considered adversely to affect the commercial
reasonableness of any sale of the Collateral. If Lender sells any of the
Collateral upon credit, Pledgor will be credited only with payments actually
made by the purchaser received by Pledgor and applied to the indebtedness of the
purchaser. In the event the purchaser fails to pay for the Collateral, Lender
may recall the Collateral and Pledgor shall be credited with the proceeds of the
resale. In the event Lender purchases any of the Collateral being sold, Lender
may pay for the Collateral by crediting some or all of the Obligations.
9. PRIVATE SALES. Property Owner and Pledgor recognize that Lender
may be unable to effect a public sale of any or all the Pledged Interests, by
reason of certain prohibitions contained in the Securities Act of 1933, as
amended and applicable state securities laws or otherwise, and may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view to the
distribution or resale thereof. Property Owner and Pledgor acknowledge and agree
that any such private sale may result in prices and other terms less favorable
to Lender than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. Lender shall be under no obligation to
delay a sale of any of the Pledged Interests for the period of time necessary to
permit Property Owner to register such securities for public sale under the
Securities Act of 1933, as amended, or under applicable state securities laws,
even if Borrower would agree to do so.
(a) Pledgor further agree to do or cause to be done all such other
acts as may be reasonably requested to make any sale or sales of all or any
portion of the Pledged Interests pursuant to this paragraph 9 valid and binding
and in compliance with any and all other applicable requirements of law. Pledgor
further agrees that a breach of any of the covenants contained in this paragraph
9 will cause irreparable injury to Lender, that Lender has no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this paragraph 9 shall be specifically enforceable against
Pledgor, and to the maximum extent permitted by applicable law, Pledgor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no default has occurred
under the Loan Agreement.
10. CERTAIN UNDERSTANDINGS OF PARTIES; REGISTRATION OF PLEDGE;
CONTROL OF PLEDGED COLLATERAL, ETC. (i) The parties acknowledge and agree that
the Pledged Interests constitute "general intangibles" (as defined in Section
9-102 of the Uniform Commercial Code); and (ii) Pledgor therefore covenants and
agrees that (A) the Pledged Interests are not and will not be traded, dealt in
or traded on securities exchanges or securities markets, (B) the terms of the
Property Owner's operating agreement (the "LLC Agreement") does not and will not
provide that the Pledged Interests are securities governed by the Uniform
Commercial Code as in effect in any jurisdiction and (C) the Pledged Interests
are not and will not be investment company securities within the meaning of
Section 8-103 of the Uniform Commercial Code as in effect in any jurisdiction.
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11. REGISTRATION OF PLEDGE; CONTROL OF COLLATERAL. Notwithstanding
the foregoing, to better assure the perfection of the security interest of
Lender in the Pledged Interests, concurrently with the execution and delivery of
this Agreement, Pledgor shall send written instructions in the form of Exhibit A
hereto to each issuer thereof (the "Issuer"), and shall cause the Issuer to, and
the Issuer shall, deliver to Lender the Confirmation Statement and Instruction
Agreement in the form of Exhibit B hereto pursuant to which the Issuer will
confirm that it has registered the pledge effected by this Agreement on its
books and agrees to comply with the instructions of Lender in respect of the
Pledged Interests without further consent of Pledgor or any other Person.
Notwithstanding anything in this paragraph neither the written instructions nor
the Confirmation Statement and Instruction Agreement shall be construed as
expanding the rights of Lender to give instructions with respect to the
Collateral beyond such rights set forth in this Agreement. From time to time,
Pledgor shall promptly provide replacement written instructions in the form of
Exhibit A hereto to each Issuer and shall cause the Issuer to, and the Issuer
shall, deliver to Lender the Confirmation Statement and Instruction Agreement in
the form of Exhibit B to each assignee or collateral assignee of Lender, as
requested by Lender. Pledgor agrees that the foregoing provisions of this
Section 11 shall inure to the benefit of Lender's successors and assigns and any
collateral assignees of Lender.
12. RIGHTS OF LENDER.
(a) subject to the terms of this Pledge, Pledgor authorizes Lender,
without notice or demand and without affecting Pledgor's liability or Lender's
rights hereunder or with respect to the Obligations, from time to time:
(i) to take and hold security other than the Collateral for the
payment or performance of the Obligations or any part thereof, and to
exchange, enforce, waive and release the Collateral or any part thereof or
any such other security; and
(ii) to apply the Collateral or any other security and to direct the
order or manner of sale thereof as Lender in its discretion may determine.
(b) If an Event of Default shall occur and be continuing, Lender
shall have the right to receive any and all distributions of property and any
and all amounts paid in respect of the Pledged Interests and make application
thereof to the Obligations, in such order as Lender, in its sole discretion, may
elect. If an Event of Default shall occur and be continuing, then all such
Pledged Interests at Lender's option shall be registered in the name of Lender
or its nominee, and Lender or its nominee may thereafter exercise (x) all voting
and other rights pertaining to such Pledged Interests and (y) any and all rights
of conversion, exchange, subscription and any other rights, privileges or
options pertaining to such Pledged Interests as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Interests upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
organizational structure of Property Owner, or upon the exercise by Pledgor or
Lender of any right, privilege or option pertaining to such Pledged Interests,
and in connection therewith, the right to deposit and deliver any and all of the
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Pledged Interests with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as it may determine), all
without liability except to account for property actually received by it, but
Lender shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(c) The rights of Lender hereunder shall not be conditioned or
contingent upon the pursuit by Lender of any right or remedy against Property
Owner or against any other person or entity which may be or become liable in
respect of all or any part of the Obligations or against any other collateral
security therefor, guarantee thereof or right of offset with respect thereto.
Lender shall not be liable for any failure to demand, collect or realize upon
all or any part of the Collateral or for any delay in doing so, nor shall it be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of Property Owner or any other person or entity or to take any other
action whatsoever with regard to the Collateral or any part thereof. Pledgor
waives any right it may have to require Lender to pursue any third party for any
of the Obligations. Pledgor hereby waives any and all requirements that Lender
institute any action or proceeding at law or in equity against Pledgor or
exhaust its remedies in respect of any other security for the Loan as a
condition precedent to the exercise of Lender's rights and remedies with respect
to the Collateral pursuant to the provisions of this Agreement. Pledgor waives
any defenses by reason of any disability or other defense of any person, or by
reason of the cessation from any cause whatsoever of the liability of any other
person.
13. REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved
to Lender, whether exercised or not, is intended to be exclusive of any other
remedy or remedies including, without limitation, those expressly provided in
the Loan Documents and each and every such remedy shall be cumulative and
concurrent and shall be in addition to every other remedy given hereunder, or
now or hereafter existing at law or in equity.
14. STATUTE OF LIMITATIONS. Except as may be set forth herein to the
contrary, until the Loan shall have been paid in full, all rights, powers and
remedies granted to Lender under this Agreement shall continue to exist and may
be exercised by Lender at any time and from time to time irrespective of the
fact that the Loan or any part thereof may have become barred by any applicable
Statute of Limitations or that the liability of Pledgor may have ceased.
Anything herein to the contrary notwithstanding, upon the payment to Lender of
all amounts then payable to Lender under the Loan Documents (including, without
limitation, any accrued and unpaid interest and additional interest), Lender
shall terminate this Pledge.
15. NOTICE. All notices or other communications required or
permitted to be given pursuant hereto shall be given in writing directed to the
parties at their respective addresses as provided in the Loan Agreement.
16. MISCELLANEOUS.
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(a) This Agreement shall be binding upon, and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York and the applicable laws of the United
States of America.
(c) Neither Pledgor nor Lender shall be bound by an undertaking not
in writing signed by the parties hereto.
(d) If any term, covenant or condition of this Agreement is held to
be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.
(e) It is the express intention, understanding and agreement of the
parties hereto that Lender's status with relation to the interests granted and
to be granted to it by Pledgor hereunder is only that of a secured creditor of
Pledgor, and nothing in this Agreement shall be construed as constituting Lender
a mortgagee in possession.
(f) This Agreement may be executed in any number of counterparts and
each such duplicate original shall be deemed to be an original.
(g) Subject to Section 9 above, this Agreement is intended solely
for the benefit of Lender and Pledgor and their respective successors and
assigns and no third party shall any rights or interest in this Pledge. Nothing
contained in this Pledge shall be deemed or construed to create an obligation on
the part of Lender or Pledgor to any third party, nor shall any third party have
a right to enforce against Lender any right that Pledgor may have under this
Pledge or to enforce against Pledgor any right that Lender may have under this
Pledge.
17. EXCULPATION. The provisions of Article 8 of the Note are hereby
incorporated by reference to the fullest extent as if the text of such Article
were set forth in its entirety herein.
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IN WITNESS WHEREOF, Pledgor and Lender have executed this instrument as of
the day and year first above written.
FELCOR/JPM HOLDINGS, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
JPMORGAN CHASE BANK, a New York
banking corporation
By: /s/ Michael Mesard
-----------------------------------
Name: Michael Mesard
Title: Vice President
EXHIBIT A
Form of Instruction to Register Pledge
April 24 , 2003
To: FELCOR/JPM HOTELS, L.L.C.
In accordance with the requirements of that certain Pledge and Security
Agreement, dated as of April 24, 2003 (as amended, supplemented or otherwise
modified from time to time, the "PLEDGE AGREEMENT"), between JPMORGAN CHASE
BANK, a national banking corporation ("LENDER") and FELCOR/JPM HOLDINGS, L.L.C.,
a Delaware limited liability company ("PLEDGOR"), you are hereby instructed,
notwithstanding your and our understanding that the equity interests described
below are not a securities under the Uniform Commercial Code, as a precaution in
the event that such interest was nevertheless held to be a security, to register
the pledge of the Pledged Interests and the Proceeds (both as defined in the
Pledge Agreement).
You are hereby further authorized and instructed to execute and deliver to
Lender a Confirmation Statement and Instruction Agreement, substantially in the
form of Exhibit B to the Pledge Agreement and, to the extent provided more fully
therein, to comply with the instructions of Lender in respect of the Collateral
without further consent of, or notice to, the undersigned. Notwithstanding
anything in this paragraph, this instruction shall not be construed as expanding
the rights of Lender under the Pledge Agreement or the rights of Lender to give
instructions with respect to the Collateral beyond such rights set forth in the
Pledge Agreement.
Very truly yours,
FELCOR/JPM HOLDINGS, L.L.C., a Delaware
limited liability company
By:
-----------------------------------
Joel M. Eastman
Vice President
EXHIBIT B
Form of Confirmation Statement and Instruction Agreement
April 24, 2003
To: FELCOR/JPM HOTELS, L.L.C.
Pursuant to the requirements of that certain Pledge and Security Agreement
dated as of April 24, 2003 (as amended, supplements or otherwise modified from
time to time, the "PLEDGE AGREEMENT"), between JPMORGAN CHASE BANK, a New York
banking corporation ("LENDER") and FELCOR/JPM HOLDINGS, L.LC., a Delaware
limited liability company ("PLEDGOR"), this Confirmation Statement and
Instruction Agreement relates to the Pledged Interests (as defined in the Pledge
Agreement), including, without limitation , those equity interests, as further
described on Schedule 1 hereto, issued by FELCOR/JPM HOTELS, L.L.C., a Delaware
limited liability company ("ISSUER").
The Pledged Interests are not (i) "investment company securities" (within
the meaning of Section 8-103 of the Uniform Commercial Code (the "CODE")) or
(ii) dealt in or traded on securities exchanges or in securities markets. None
of the terms of any Pledged Interest provides that it is a "security" (within
the meaning of Sections 8-102(a)(15) and 8-103 of the Code).
Nevertheless, in the event that the Pledged Interests should be determined
to be "securities" (within the meaning of Sections 8-102(a)(15) and 8-103 of the
Code), for purposes of perfecting the security interest of Lender therein, the
Issuer agrees as follows:
On the date hereof, the registered owner of 100% of the membership
interest of FELCOR/JPM HOTELS, L.L.C. is: FELCOR/JPM HOLDINGS, L.L.C.
The registered pledgee of the Pledged Interests is:
JPMORGAN CHASE BANK
There are no liens of Issuer on the Pledged Interests or any adverse
claims thereto for which the Issuer has a duty under Section 8-403 of the Code.
Issuer has by book-entry registered the Pledged Interests in the name of the
registered pledgee on or before April 24, 2003. No other pledge is currently
registered on the books and records of Issuer respect to the Pledged Interests.
Until the entire outstanding principal and accrued and unpaid interest on
the Note is paid in full (exclusive of provisions which shall survive full
payment), Issuer agrees to: (i) comply with the instructions of Lender, without
any further consent from Pledgor or any other Person, in respect of the Pledged
Interests; and (ii) disregard any request made by Pledgor or any other person
which contravenes the instructions of Lender with respect
to the Pledged Interests. Notwithstanding anything in this paragraph, this
confirmation statement and Instruction Agreement shall not be construed as
expanding the rights of Lender to give instructions with respect to the
Interests beyond such rights set forth in the Pledge Agreement.
Dated: April 24, 2003
Very truly yours,
FELCOR/JPM HOTELS, L.L.C., a Delaware
limited liability company
By:
----------------------------------
Joel M. Eastman
Vice President
ACKNOWLEDGED AND AGREED:
JPMORGAN CHASE BANK, a New York
banking corporation
By:
-----------------------------------
Name:
Title:
FELCOR/JPM HOLDINGS, L.L.C., a Delaware
limited liability company
By:
-----------------------------------
Joel M. Eastman
Vice President
SCHEDULE 1
To Form of Confirmation Statement and Instruction Agreement
DESCRIPTION OF PLEDGED INTERESTS
A. DESCRIPTION OF PLEDGED INTERESTS
MEMBERS PERCENTAGE INTERESTS
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1. FELCOR/JPM HOLDINGS, L.L.C. 100% of the membership interests in FELCOR/JPM HOTELS, L.L.C.