Jimmy Akouri clo Cellular City Inc., Orchard Lake Rd., Farmington Hills, MI 48334

Transcription

1 Jimmy Akouri lo Cellular City In., 2795 Orhard Lake Rd., Farmington Hills, MI To: Birmingham Property LLC You are instruted to register and note on the books and reords of Birmingham Property LLC, a Mihigan limited liability ompany (the "Company") the following pledge of a membership interest in the Company: PLEDGOR SECURED PARTY INTEREST PLEDGED JAMAL KALABAT JIMMY AKOURI All of Pledgor's membership interest l Z' ::::, () 'O ro :i: ro O') u.. Dated: July 2, 27 ACKNOWLEDGMENT AND CONSENT OF PROJECT ENTITIES ENTERPRISES LLC Binningham Property LLC hereby (i) onsents to the above pledge of a membership interest in the Company; and (ii) aknowledges that registration and a notation on the books and reords of the Company of suh pledge bas been made Dated: July 2, 'O (1).2:: ~ (1) ~ Error! Unknown doument property name,

2 MEMBERSHIP INTEREST SECURITY AND PLEDGE AGREEMENT THIS MEMBERSHIP INTEREST SECURITY AND PLEDGE AGREEMENT (this "Agreement") is made as of July 2, 27 by JAMAL KALABAT ("Pledgor"), whose prinipal offie is at 284 Orhard Lake Road, Suite 1, Keego Harbor, Mihigan 4832, in favor of JIMMY AK.OURI, whose address is /o Cellular City In., 2795 Orhard Lake Rd., Farmington Hills, MI ("Seured Party"). RECITALS: A. PJedgor urrently owns the membership interest perentage set forth opposite eah of the entities speified on the attahed Exhibit A (olletively, the "Projet Entities"). B. Eah of the Projet Entities owns the real estate assets set forth opposite eah of Projet Entities in Exhibit A (olletively, the "Projet Portfolio"). ::I "'O o 32 o ) u.. C. Seured Party loaned in one or more loan transations the amount of $25,. (olletively, the "Loan") to Pledgor and/or various Affiliates of Pledgor as referened the promissory note(s) a opy of whih is attahed hereto as Exhibit B (eah or olletively, the "Note"), and Pledger has guarantied suh Loan and the Note pursuant to guaranties, opies of whih are attahed as Exhibit B. D. To seure the prompt satisfation by Pledgor of all of the Obligations (as defined below), Pledgor has agreed to exeute and deliver this Agreement. Now, THEREFORE, the parties agree as follows: 1. GRANT OF SECURI'l'Y INTEREST. To seure payment of the Obligations, Pledger grants to Seured Party a ontinuing seurity interest in and to all of Pledger's right, title and interest as a member (the "Membership Interest") in all the Projet Entities, inluding, without limitation, (i) all of Pledgor's right, title and interest and privilege in and to any and all delarations or payments of any ash, ash flow, dividend or distribution on or in respet of Pledger's interest jn Projet Entities, inluding, without limitation, by way of distnbution, return of apital, purhase, redemption, exhange or other retirement of P1edgor's interest in Projet Entities or otheiwise in respet of Pledger's interest in Projet Entities, (ii) all of Pledgor's right, title, interest and privilege under or arising out of Projet Entities's operating agreements, (iii) all present and future laims, if any, of Pledgor against Projet Entities under or arising out of Projet Entities's operating agreements or for monies loaned or advaned for servies rendered or otherwise, (iv) all of Pledger's rights in Projet Entities to exerise and enfore every right, power, remedy, authority, option and privilege of Pledgor relating to his interests in Projet Entities, inluding, without limitation, any power to tenninate, anel or modify Projet Entities' s operating agreements and to exeute any instruments and to take any and all other ation on behalf of and in the name of Pledgor in respet of his interests in Projet Entities, and (v) to the extent not otherwise inluded, all proeeds of any or all of the foregoing (olletively, the "Co1Iateral 11 ). As used herein, "Obligations" means all loans, advanes, and extensions of redit from Seured Party to Pledger and/or Pledgor' s Affiliates, inluding all renewals and extensions thereof and any and all obligations

3 of every kind whatsoever, whether heretofore, now, or hereafter existing or arising between Seured Party and Pledgor and howsoever inurred or evidened, whether primary, seondary, ontingent, or otherwise, inluding, without limitation: (a) the Note and the Loan; (b) future advanes by Seured Party to Pledgor, if any; ( ) all osts and expenditures made or inurred by Seured Party in the disbursement, administration, olletion or enforement of the Note and the Loan and other indebtedness of Pledger; and ( d) all liabilities of Pledger to Seured Party now existing or inurred in the future, matured or unmatured, diret or ontingent, and any renewals, extensions, and substitutions of those liabilities. For purposes of this Agreement, an II Affiliate" of a person is (i) any person who, diretly or indiretly, ontrols, is ontrolled by or is under ommon ontrol or has any ommon ownership with suh person, (ii) if suh person is an entity, any offier, diretor, member, manager or trustee, (iii) any person who is an offier, diretor, member, manager or trustee, or who, diretly or indiretly, ontrols, is ontrolled by or is under ommon ontrol with any person desribed in lauses (i) or (ii) of this sentene, or (iv) any person related by onsanguinity to any person desribed in lauses (i), (ii) or (iii) of this sentene. For the purposes of this definition, the term "ontrol" means to own or to have power to vote or diret the vote of at least ten perent (1%) of the outstanding voting seurities of another person. i ::, "O u 32 u ) LL 2. DISTRIBUTIONS. Pledgor shall not be entitled to reeive or retain any dividends or distributions paid in respet of the Membership Interest whether paid or payable in ash. whether in redemption of, or in exhange for, the Membership Interest, or whether in onnetion with a partial or total liquidation or dissolution of the Membership Interest (olletively, "Distributions") and an.y and all suh Distributions reeived by Pledgor shall be forthwith delivered to Seured Party and applied to the Obligations and shall be, if reeived by Pledgor, reeived in trust for Seured Party's benefi~ segregated from Pledgor's other property or funds, and forthwith delivered to Seured Party and applied to the Obligations in the same form as so reeived (with any neessary endorsement). Pledgor shall ause all Exess Cash (as defined below) to be promptly distributed to ProjetEntities. For purposes hereof: "Exess Cash" means all ash and ash equivalent assets of the Projet Entities that exeeds the amount of ash needed by the Projet Entities to pay its urrent obligations and liabilities (inluding any required debt servie). 3. REGISTRATION OF PLEDGE. Conurrently with the exeution of this Agreement, Pledgor has sent to eah of the Projet Entities written instrutions in the form of Exlubit C, and has obtained from eah of suh Projet Entities an exeuted aknowledgment and onsent in the fonn of Exhibit C and Seured Party shall reeive and retain in his possession a Certifiate of Membership Interest for all of Pledgor' s Membership Interests in the Projet Entities. 4. VOTING RIGHTS. So long as no Event of Default (as defined below) bas ourred and is ontinuing, Pledgor may exerise all voting and membership rights with respet to the Membership Interest; provided, however, that no vote will be ast or membership right exerised or other ation taken whih would be inonsistent with or result in a breah of any provision of the Note or this Agreement. 5. EVENT OF DEFAULT. For purposes hereof, an "Event of Default" shall be deemed to exist upon the ourrene of any of the following events: (a) Pledgor's failure to make any payment when due under the Obligations; (b) any representation or warranty by Pledgor hereunder shall be inaurate or inomplete in any material respet; or ( ) the material non-ompliane or nonperformane of any of Pledgor' s ovenants or agreements under the Note or this Agreement. If an Event of Default has ourred and is ontinuing, Seured Party may diret Projet Entities to register the Membership Interest in the name of Seured Party or its nominee, and Seured Party or

4 its nominee may thereafter reeive all Distributions with respet to, and exerise all voting, membership and other rights pertaining to, the Membership Interest as if it were the absolute owner of the Membership Interest. Upon an Event of Default, Piedgor shall be deemed to have immediately resigned as the manager of Projet Entities and all Projet Entities and Seured Party ( or its designee) shall beome the sole manager of all Projet Entities. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. Pledgor represents and warrants to Seured Party and ovenants to Seured Party that (a) Pledgor is the reord and benefiial owner of, and- has good and legal title to, the Membership Interest free of any and all liens or options in favor of. or laims of, any other person, exept the lien reated by this Agreement, (b) Pledgor has the legal right to exeute and deliver, to perform his obligations under, and to grant the seurity interest in the Collateral pursuant to, this Agreement, () Pledgorowns all of the equity interests in Projet Entities speified in the attahed Exhibit A and Pledgor shall not sell, assign, transfer, onvey, pledge or hypotheate any equity interest in Projet Entities, or issue any additional equity interests in Projet Entities, without the prior written onsent of Seured Party, (d) Pledgor will not ause Projet Entities to sell, assign, transfer, onvey, pledge or hypotheate any equity interest in any of their assets, or issue any additional equity interests in any of the Projet Entities, without the prior written onsent of Seured Party; (e) the Projet Entities own all their assets free and lear of all liens, laims and enumbranes ( other than the first mortgages of rerord), (±) Pledgor's prinipal residene is the State of Mihigan, and without providing at least thirty (3) days prior written notie to Seured Party, Pledgor will not hange bis legal name or prinipal residene, (g) Pledgor shall not amend, modify, waive, terminate or anel any provision of the operating agreement of any of the Projet Entities without the prior written onsent of Seured Party, (h) Pledgor's exeution and delivery of this Agreement will not reate any breah of, or default under, any provision of any other agreement to whih Pledger is a party, (i) the operating agreements of the Projet Entities provide that the Membership Interest is a seurity for purposes of Artiles 8 and 9 of the Uniform Commerial Code as now or hereafter in effet (the "Code"), and G) None of the Projet Entities shall inur any additional indebtedness for borrowed money after the date hereof without the prior written onsent of Seured Party. 7. AsSIGNMENT OR PLEDGE. Without the prior written onsent of Seured Party, Pledgor will not (a) sell, assign, transfer, exhange or otherwise dispose of, or grant any option with respet to, the Collateral; or (b) reate or permit to exist any lien or option in favor of, or any laim of, any person with respet to any of the Collateral, exept, in either ase, for the Hen reated by this Agreement. Pledger will defend the right, title and interest of Seured Party in and to the Collateral against the laims and demands of all other persons. > a5 (.) ) :: 8. FURTHER AsSURANCES. At any time and from time to time, upon the written request of Seured Party, Pledgor will promptly exeute and deliver suh further instruments and douments and take suh further ations as Seured Party may reasonably request for the purposes of obtaining or preserving the seurity interest reated by this Agreement, inluding, without limitation, the filing of any finaning or ontinuation statements under the Code. By exeution or authentiation of this Agreement, Pledgor aknowledges that the Seured Party is irrevoably authorized to file finaning statements (and amendments thereto) with respet to the Collateral in all jurisditions that Seured Party deems appropriate or neessary. 9. REMEDIES. If an Event of Default has ourred and is ontinuing, Seured Party may exerise, in addition to all rights and remedies granted in the Note and this Agreement, all rights and remedies of a seured party under the Code. The rights and remedies of Seured Party

5 are umulative, may be exerised singly or onurrently, and are not exlusive of any rights or remedies provided by law. In addition, with respet to the Collateral, or any part thereof, Seured Party may sell or ause the same to be sold at any publi or private sale, in one or more sales or lots, at suh prie as Seured Party may deem best, and for ash or on redit or for future delivery, without assumption of any redit risk, and the purhaser of any or all of the Collateral so sold shall thereafter hold the same absolutely, free from any laim. enumbrane or right of any kind whatsoever. The proeeds of sale will be applied to the reasonable expenses of retaking, holding, preparing for disposition, proessing and disposing of the Collateral and, to the extent not prohibited by law, reasonable attorney's fees and legal expenses inurred by Seured Party. All remaining proeeds will be applied to the Obligations. Any surplus remaining, subjet to any rights of the holder of a subordinate seurity interest or lien, will be paid to Pledgor. Pledgor agrees that any transfer or sale of the Collateral onduted in onformity with reasonable ommerial praties of banks, insurane ompanies or other finanial institutions disposing of property similar to the Collateral shall be deemed to be ommerially reasonable. Any requirement of reasonable notie shall be met if suh notie is mailed to Pledgor at the address set forth in this Agreement at least ten (1) business days before the time of the sale or disposition. Pledgor, to the extent permitted by law, waives any other requirement of notie, demand or advertisement for sale. Seured Party may, in its own name, or in the name of a designee or nominee, buy the Collateral at any publi sale of the Collateral. In view of the fat that federal and state seurities laws may impose ertain restritions on the method by whih a sale of the Collateral may be effeted after an Event of Defaul~ Pledger agrees that upon the ourrene of an Event of Default, Seured Party may from time to time attempt to sell all or any part of the Collateral by a private plaement, restriting the bidders and prospetive purhasers to those who will represent and agree that they are "aredited investors" within the meaning of Regulation D promulgated pursuant to the Seurities At of 1933, as amended (the "Seurities At"), and are purhasing for investment only and not for distribution. In so doing, Seured Party may soliit offers to buy the Collateral, or any part of it, for ash from a limited number of investors deemed by Seured Party, in its sole disretion, to be responsible parties who might be interested in purhasing the Collateral. Notwithstandµlg the above, should Seured Party determine that, prior to any publi offering of any seurities ontained in the Collateral, suh seurities should be registered under the Seurities At and/or registered or qualified under any other federal or state law, and that suh registration and/or qualifiation is not pratial, then Pledger agrees that Seured Party's ompliane with any appliable state or federal laws in onnetion with the private sale of the Collateral will not be onsidered to adversely affet the ommerial reasonableness of any sale of the Collateral. 1. ArroRNEY-IN-FACT. Pledgor irrevoably onstitutes and appoints Seured Party and any offier or agent of Seured Party, with full power of substitution, as its true and lawful attorney-in-fat with full irrevoable power and authority in the plae and stead of Pledgor and in the name of Pledgor or in its own name, after an Event of Default has ourred and for so long as it is ontinuing, for the purpose of arrying out the terms of this Agreement. The powers onferred on Se'IJ!'ed Party are solely to protet its interests in the Collateral and will not impose any duty upon it

6 to exerise any suh powers. Seured Party will be aountable only for amounts that it atually reeives as a result of the exerise of suh powers, and neither Seured Party nor any of its offiers, diretors, employees or agents will be responsible to Pledgor or to any other partner of the Partnership for any at or failure to at. 11. LIMITATION ON DUTIES REGARDING COLLATERAL. To the extent pennitted under the Code and the provisions of this Agreement, Seured Party shall have no duty with respet to the Collateral. Without limiting the generality of the foregoing, Seured Party shall be under no obligation to take any steps neessary to preserve rights in the Collateral against any other parties or to exerise any rights represented thereby; provided, however, that Seured Party may, at its option, do so, and any and all expenses inurred in onnetion therewith shall be for Pledgor's sole aount. In addition, Seured Party is not assuming any obligations of Pledgor to Projet Entities. 12. No W AIYER. Seured Party will not by any at, delay, omission or otherwise be deemed to have waived any right or remedy under this Agreement or to have aquiesed in any Event of Default or in any breah of any of the tenns and onditions of this Agreement exept by a written instrument exeuted by Seured Party. No single or partial exerise of any right, power or privilege under this Agreement will prelude any other or further exerise thereof or the exerise of any other right, power or privilege. A waiver by Seured Party of any right or remedy under this Agreement on any one oasion will not be onstrued as a bar to any right or remedy whih Seured Party would otherwise have on any future oasion. 13. AMENDMENTS. The terms and provisions of this Agreement may not be waived or modified exept by a written instrument exeuted by Pledger and Seured Party. 14. BENEFIT AND BINDING EFFECT. This Agreement will be binding upon the suessors and permitted assigns of Pledgor and will inure to the benefit of Seured Party and his suessors and assigns. 15. COUNTERPARTS. This Agreement may be exeuted by the parties in ounterpart, both of whih ounteq,arts taken together will be deemed to onstitute one and the same instrument. Copies (whether fasimile, photostati or otherwise) of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals. 16. GoVERNING LAW; JURISDICTION. The validity of this Agreement., its onstrution, inte:rpretation and enforement and the rights of the parties shall be detennined under, governed by and onstrued in aordane with the internal laws of the State of Mihigan, without regard to priniples of onflits of law. Pledgor hereby irrevoably submits to the exlusive jurisdition and venue of the United States federal and Mihigan state ourts loated in and serving Oakland County, Mihigan in onnetion with any dispute or laim arising under this Agreement, the Obligations or any of the transations ontemplated hereby or thereby. 17. ExPENSES. Pledger shall pay the reasonable legal fees and expenses of Seured Party inurred in onnetion with the negotiation and doumentation of the Obligations, this Agreement and all other seurity agreements between Pledgor and Seured Party. 18. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY. Pledgor aknowledges and agrees that he has been advised to seek independent legal and tax representation in onnetion with the transations ontemplated by this

7 Agreement and the Note. Pledgor who may have been ( or may urrently be ) a lient of Jimmy Akouri, the son of Seured Party, or of any of his prior law firms (inluding Jaffe, Raitt, Heuer & Weiss, P.C., Sarafa & Yaldoo, P.C. or the law offies of David W. Yaldo P.C.) (olletively, the "Attorneys") hereby aknowledges and agrees that: (a) he has read this Agreement and the Note and eah and all agreements, instruments, seurity agreements, mortgages, attahments and douments delivered in onnetion there'with; (b) this Agreement and the Note and all agreements, instruments, seurity agreements, mortgages, attahments and douments delivered in onnetion therewith were prepared on behalf of and for the benefit of Seured Party only; () he has been advised to seek separate legal and tax ounsel to review this Agreement and the Note and all agreements, instruments, seurity agreements, mortgages, attahments and douments delivered in onnetion therewith; and ( d) any laims against any of the Attorneys regarding any possible onflit of interest with regard to all agreements, instruments, seurity agreements, mortgages, attahments and douments delivered in onnetion therewith or any of the transations ontemplated thereby ls hereby expressly waived.. The provisions of this paragraph shall be deemed self operative and effetive for all times without the need or requirement to restate any of its provisions in any other agreement, doument, instrument or amendment relating to this Agreement or the Note or any of the agreements, instruments, seurity agreements, mortgages, attahments and douments dellvered in onnetion therewith or otherwise. IN WITNESS WHEREOF, Pledgor and Seured Party have exeuted this Agreement as of the date first above written. (!) - ( 32 ro ) u:: I... $2 "O (]).2: (]) u (]) :: r~ ~~~ Jamal K.alabat

8 EXHIBIT A PROJECT ENTITY Binningham Property LLC PROJECT Proposed hotel projet MEMBERSHIP INTEREST HELD BY JAMALKALABAT 3% plus any additional membership interest Pledgor may gain or hold in the future

9 EXHIBITB [SEE ATTACHED NOTE AND GUARANTY AGREEMENTS] t!.x: t! O') u..

10 EXHIBITC To: Projet Entities LLC You are instruted to register and note on the books and reords of LLC, a Mihigan limited liability ompany (the "Company") the following pledge of a membership interest in the Company: SECURED PARTY JIMMY AKOURl INTEREST PLEDGED All ofpledgor's membership interest Dated: JAMAL KALABAT ACKNOWLEDGMENT AND CONSENT OF PROJECT ENTITIES ENTERPRISES LLC LLC hereby (i) onsents to the above pledge of a membership interest in the Company; and (ii) aknowledges that registration and a notation on the books and reords of the Company of suh pledge has been made. Dated: By: JAMAL KALABAT, MEMBER /MANAGER