LOAN MODIFICATION AND REINSTATEMENT AGREEMENT (COMM 2015-CCRE26; Loan No. 440-20)
Execution Version
LOAN MODIFICATION AND REINSTATEMENT AGREEMENT (COMM 2015-CCRE26; Loan No. 440-20)
(“Agreement”) is entered into and effective as of August 10, 2022 (the “Effective Date”), among WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE, FOR THE BENEFIT OF THE HOLDERS OF COMM 2015-CCRE26 MORTGAGE TRUST COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES (“Lender”), having an
address at c/o CWCapital Asset Management, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Re: COMM 2015-CCRE26; Loan No 440-20; HIGH DESERT INVESTORS, LP, a
Delaware limited partnership (“Borrower”), having an address at c/o High Desert Garden Holdings, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and LODGING FUND REIT III OP LP, a Delaware limited partnership (“New Investor”), having an address at c/o Legendary Capital, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with (i) if executed, the Joinder by and Agreement, Consent and Acknowledgement of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual (collectively, “Original Indemnitor”), having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and (ii) Joinder by and Agreement, Consent and Acknowledgement of ▇▇▇▇▇ ▇. MAPLE, an individual (“New Indemnitor”), having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Borrower, Original Indemnitor, New Investor and New Indemnitor are sometimes collectively referred to as “Borrower Parties”.
— El Paso” located in the City of El Paso, County of El Paso, State of Texas, more particularly described in Exhibit A attached hereto and made a part hereof (the Land and the Improvements are collectively referred to as the “Project”).
L.P., a Delaware limited partnership (“Original Lender”), to Borrower pursuant to the terms of a Loan Agreement dated as of July 29, 2015 (the “Origination Date”), between Borrower and Original Lender (together with any and all amendments, modifications, substitutions, replacements, and/or restatements thereof, the “Loan Agreement”), as evidenced and/or secured by the documents described in the Loan Agreement (the Loan Agreement together with any and all other agreements, documents, and instruments evidencing, securing or in any manner relating to the Loan, including, without limitation, documents defined as “Loan Documents” in
the Loan Agreement, together with any and all amendments, modifications, substitutions, replacements, and/or restatements thereof, collectively, “Loan Documents”). The Loan is secured in part by the Project, which Project is described in and encumbered by the “Security Instrument” defined and described in the Loan Agreement. The Security Instrument encumbers the Project and all other collateral described in the Security Instrument (collectively, the “Property”). Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed to them in the Loan Agreement.
(i) and (ii), collectively, the “Existing Events of Default”).
| H. | Borrower Parties have requested ▇▇▇▇▇▇’s consent to the Requested Actions. |
In consideration of $10.00 paid by each of the parties to the other, the mutual covenants set forth below, and other good and valuable consideration, receipt and sufficiency of which are acknowledged, the parties agree as follows:
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
| (e) | Ground Lease; Franchise Agreement. |
by any party thereunder. The Ground Lease has not been assigned, amended, supplemented, or modified in any way from and after the Origination Date in violation of the Loan Documents and in any manner which would directly and materially affect the value or operation of the Project. All rents and other amounts due under the Ground Lease have been paid in full. No consent of any ground lessor under the Ground Lease is required in connection with the execution and delivery of this Agreement or the consummation of the Requested Actions, except for such as have been obtained.
(i) that certain Interim Operating Agreement, dated as of the Effective Date, among Borrower, New Manager and License Holder, and (ii) that certain Assignment, Recognition, and Cooperation Agreement Regarding Beverage Services, dated as of the Effective Date, among Borrower, Lender, New Manager, and License Holder (the “Assignment of Beverage Agreement”).
| (p) | Management of Property. |
executed by ▇▇▇▇▇▇▇▇ and New Manager in form and substance acceptable to ▇▇▇▇▇▇, and (2) a new Assignment of Management Agreement and Subordination of Management Fees with respect to the New Management Agreement, executed by ▇▇▇▇▇▇▇▇ and New Manager, in form and substance acceptable to Lender (the “New Assignment of Management Agreement”). Borrower represents and warrants that neither the base management fee nor the incentive management fee payable under the New Management Agreement is higher than the base management or incentive management fee, respectively, payable under the Original Management Agreement.
(ii) own 100% of the legal and beneficial interest in New Manager, directly or indirectly. New Manager shall not be deemed a Qualified Manager if each of the foregoing conditions are not at all times met.
(ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated Nationals and Blocked Persons” (which list may be published from time to time in various media including, but not limited to, the OFAC website, ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇▇.▇▇▇, (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224, or
(iv) who, to the knowledge of Borrower, is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) – (iv) above are collectively referred to as a “Prohibited Person”). None of Borrower Parties or any of their respective officers, directors, shareholders, partners, members or affiliates (including other holders of indirect equity interests in Borrower) will (a) knowingly conduct any business, or engage in any transaction or
dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or
(b) knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. Borrower covenants and agrees to deliver (from time to time) to Lender any such certification as may be requested by Lender in its reasonable discretion, confirming that, based on reasonable inquiry (x) none of Borrower Parties or any of their respective officers, directors,
shareholders, partners, members or affiliates (including other holders of indirect equity interests in Borrower) is a Prohibited Person and (y) none of Borrower, or to the best of Borrower’s knowledge, any of the other Borrower Parties, or their respective officers, directors, shareholders, partners, members or affiliates (including the holders of indirect equity interests in Borrower) has
(a) knowingly conducted any business, or engaged in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person or (b) knowingly engaged in or conspired to engage in any transaction that evaded or avoided, or had the purpose of evading or avoiding, or attempted to violate, any of the prohibitions set forth in EO13224.
Section 5.1.11 of the Loan Agreement. New Investor acknowledges that the Financial Statements have been provided to Lender to induce Lender to enter into this Agreement and are being relied upon by Lender for such purposes. To the extent that the REIT files a tax return instead of New Investor, New Investor will provide Lender with the tax returns for the REIT. Similarly, to the extent that the balance sheets and financial statement of New Investor are consolidated with those of the REIT, the consolidated balance sheets and financial statements will clearly identify the assets and liabilities of New Investor as belonging to New Investor, and New Investor will provide Lender with copies of said consolidated balance sheets and financial statements.
(iii) the Loan Documents, or (iv) the Property. To the extent New Investor or New Indemnitor would be deemed to have any such defenses, affirmative defenses, setoffs, claims, counterclaims, crossclaims or causes of action as of the Effective Date, each of New Investor and New Indemnitor knowingly waives and relinquishes them. Each of New Investor and New Indemnitor acknowledges that it has received copies of all of the Loan Documents.
ACKNOWLEDGMENTS AND COVENANTS OF BORROWER PARTIES
As a material inducement to Lender to enter into this Agreement and to consent to the Requested Actions, each of Borrower Parties, as to itself only, acknowledges, warrants, represents, covenants and agrees to and with ▇▇▇▇▇▇ as follows:
(iii) provide a detailed written confirmation of such timely completion to Lender (the foregoing (i) through (iii), collectively, the “New PIP Obligations”). In connection therewith, New Indemnitor shall execute and deliver to Lender on the Effective Date an absolute and unconditional guaranty of the New PIP Obligations in form satisfactory to Lender (the “New PIP Guaranty”, and together with the A&R Guaranty and the A&R Environmental Indemnity, the “New Indemnities”). In addition to the New PIP Guaranty, Borrower shall deposit with Lender, on the Effective Date, cash in immediately available funds in the amount set forth in Section 2.2(a) for deposit into the FF&E Reserve Account (the “New FF&E Deposit”).
| (iv) | amount of the New FF&E Deposit is $337,500.00; |
In the event of any error in, or omission from, the foregoing, Lender shall not be prejudiced, limited, or estopped, in any way in its right to charge, collect and receive any and all monies lawfully due Lender under the Loan Documents.
Each Borrower Party agrees that the foregoing fees are for new consideration and are not interest charged in connection with the Loan. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ hereby acknowledge and agree that the Application Fee, the Transfer Fee and the Guarantor Change Fee are fully earned in consideration for Lender’s consent to the Requested Actions and are not and shall not constitute a partial payment of interest or any other amounts due Lender under the Note and the other Loan Documents (except that the Lender shall credit the Application Fee against the Lender Expenses).
The Application Fee, the Transfer Fee and the Guarantor Change Fee shall not be applied by Lender against the indebtedness outstanding under the Loan Documents, either now or in the future. Furthermore, ▇▇▇▇▇▇▇▇ acknowledges and agrees that none of the Application Fee, the Transfer Fee and the Guarantor Change Fee constitutes a charge imposed by ▇▇▇▇▇▇ for the use of money or for any agreement by ▇▇▇▇▇▇ to forbear from collecting any sums owed Lender by Borrower under the Loan Documents.
(iii) the monthly deposit to the Tax and Insurance Escrow Account in the amount of $38,815.10 (which amount is computed based on an updated escrow analysis prepared by ▇▇▇▇▇▇), and (iv) the FF&E Monthly Deposit of $17,236.01. In the event of any error in, or omission from, the foregoing, Lender shall not be prejudiced, limited, or estopped, in any way in its right to charge, collect and receive any and all monies lawfully due Lender under the Loan Documents. Notwithstanding receipt of the monthly payment for the Next Payment Date on the Effective Date or otherwise prior to the Next Payment Date, such payment will be applied by Lender on the Next Payment Date.
(x) any breach or inaccuracy of the NI Disclosure Representations, or (y) any fraudulent or tortious conduct of New Investor and/or New Indemnitor in connection with the Requested Actions, this
Agreement or the contemplated transactions, or the Property, including any misrepresentation of financial data presented to Lender and/or Servicer.
| (a) | er shall have received: |
(i)all organizational documentation reasonably requested by ▇▇▇▇▇▇ in form and substance reasonably required by ▇▇▇▇▇▇;
(ii)each of the DOT Amendment and the ALR Amendment (each as
defined below);
(iii)each of the New Indemnities;
(iv)the New Assignment of Management Agreement;
(v)the Assignment of Beverage Agreement; and
(vi)all other certificates, agreements, resolutions, covenants and legal
opinions reasonably required by ▇▇▇▇▇▇ in form and substance reasonably required by ▇▇▇▇▇▇.
| 3.1. | Modifications to Loan Documents. From and after the Effective Date, the parties |
agree that the Loan Documents are modified as set forth on Schedule 3.1 attached hereto and made a part hereof.
3.6 and occurs reasonably promptly following the Effective Date (and in any case within 90 days from the Effective Date), and provided that any and all costs of Lender are paid or reimbursed in connection therewith (including without limitation any title insurance costs, legal fees and special servicing fees) such that the Post-Closing Restructuring is absolutely cost-neutral to Lender, and without prejudice to Lender in any manner whatsoever, including without limitation Lender’s rights and remedies under the Loan Documents or otherwise, ▇▇▇▇▇▇ agrees to consider in good faith a waiver of any loan modification fee in connection with the related modifications to the Loan Documents. Lender shall have no liability or obligation to Borrower Parties or any other person if the Post-Closing Restructuring is not approved or such waiver of any loan modification fee is not ultimately granted. Borrower understands that the Loan will remain in special servicing until the Post-Closing Structuring is complete (or such longer period as may be required under the applicable pooling and servicing agreement or the policies and procedures of Lender).
| 4.1. | No Limitation of Remedies. No right, power or remedy conferred upon or |
reserved to or by Lender in this Agreement is intended to be exclusive of any other right, power or remedy conferred upon or reserved to or by Lender under this Agreement, the Loan Documents or at law, but each and every remedy shall be cumulative and concurrent, and shall be in addition to each and every other right, power and remedy given under this Agreement, the Loan Documents or now or subsequently existing at law.
may in writing expressly waive any of such party's rights under this Agreement without invalidating this Agreement.
Wilmington Trust, National Association, as Trustee, for the benefit of the Holders of COMM 2015-CCRE26
Mortgage Trust Commercial Mortgage Pass-Through Certificates c/o CWCapital Asset Management LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
CWCapital Asset Management LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
and a copy to:
▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
and, if given to ▇▇▇▇▇▇▇▇, must be addressed as follows, notwithstanding any other address set forth in the Loan Documents to the contrary, subject to change as provided above:
If to Borrower:
High Desert Investors, LP
c/o High Desert Garden Holdings ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Denver, CO 80203
Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
And a copy to:
Lodging Fund REIT III OP, LP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
And a copy to:
Durellaw, PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Email: ▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
and, if given to New Investor, must be addressed as follows, subject to change as provided above:
Lodging Fund REIT III OP, LP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Durellaw, PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Email: ▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
The parties have executed and delivered this Agreement as of the day and year first above written.
LENDER:
WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE, FOR THE BENEFIT OF THE HOLDERS OF COMM 2015-CCRE26 MORTGAGE TRUST COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES
By:CWCapital Asset Management LLC, solely in its capacity as Special Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
The parties have executed and delivered this Agreement as of the day and year first above written.
BORROWER:
IDGH DESERT INVESTORS, LP
a Delaware limited partnership
By: High Desert GP Holding, LLC Its: General Partner
By: High Desert Garden Holdings, LLC Its: Sole Member
By: ASI Capital, LLC Its: Manager
By: The Convergence G oup Its: Manager:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
The parties have executed and delivered this Agreement as of the day and year first above written.
NEW INVESTOR:
LODGING FUND REIT III OP, LP
By: Lodging Fund REIT III, Inc.
Its: General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Its: Chief Operating Officer
The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual (collectively, “Original Indemnitor”) being the guarantor/indemnitor under the Guaranty and the Environmental Indemnity (each as defined in the Loan Agreement (as defined in, but immediately prior to the effectiveness of, the Loan Modification and Reinstatement Agreement (“Agreement”) to which this Joinder by and Agreement, Consent and Acknowledgment of Original Indemnitor (“Original Indemnitor Joinder”) is attached)), hereby joins into the Agreement and represents and warrants to, consents to, and acknowledges, covenants and agrees with, ▇▇▇▇▇▇ the following:
The undersigned Original Indernnitor has executed a d e Ied this Original lndemnitor Joinder to be effective as of the Effective Date of the Agreement.
ORIGINAL INDEMNITOR:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an individual
The undersigned, ▇▇▇▇▇ ▇. MAPLE, an individual (“New Indemnitor”), being the New Indemnitor referred to in the Loan Modification and Reinstatement Agreement (“Agreement”) to which this Joinder By and Agreement, Consent and Acknowledgement of New Indemnitor is attached (the “New Indemnitor Joinder”), intending to be legally bound under the terms and provisions of the Guaranty and the Environmental Indemnity pursuant to the provisions of this New Indemnitor Joinder, hereby joins into the Agreement and represents and warrants to, consents to, and acknowledges to, covenants to and agrees with, ▇▇▇▇▇▇ the following:
(ii) has, or has been given the opportunity to have, the Agreement reviewed by competent legal counsel of its choosing, (iii) understands, agrees to and accepts the provisions thereof, (iv) is entering into this New Indemnitor Joinder with respect to the Agreement freely, voluntarily, with full knowledge, and without duress, (v) in executing this New Indemnitor Joinder with respect to the Agreement, is relying on no representations either written or oral, express or implied, made to New Indemnitor by any other party hereto, and (vi) as of the Effective Date, New Indemnitor has no offsets or defenses against any of its obligations under the Guaranty, as amended pursuant to the A&R Guaranty (as hereinafter defined), the Environmental Indemnity, as amended pursuant to the A&R Environmental Indemnity, the New PIP Guaranty, or any other Loan Documents to which it is a party.
in the manner and otherwise in all respects as therein provided. From and after the Effective Date, the Guaranty is amended to provide that all references to the term “Guarantor” used in the Guaranty shall mean and refer to New Indemnitor, and if applicable, Original Indemnitor. The foregoing assumption by New Indemnitor is absolute and unconditional. As a condition precedent to ▇▇▇▇▇▇’s consent to the Requested Actions and ▇▇▇▇▇▇’s execution and delivery of this Agreement, in order to further evidence the foregoing, New Indemnitor shall execute and deliver to Lender on the Effective Date the A&R Guaranty.
former tenants or occupants, former leases, and former conditions at the Property that are no longer existing. New Indemnitor represents and warrants that, prior to the Effective Date, New Indemnitor received copies of the Guaranty and the Environmental Indemnity from Original Indemnitor, which copies were warranted by Original Indemnitor as being true, correct and complete copies of such documents.
▇▇▇▇▇ ▇. Maple
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Durellaw, PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Email: ▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
All notices to be sent by New Indemnitor to Lender under this New Indemnitor ▇▇▇▇▇▇▇, the New Indemnities and the other Loan Documents shall be sent to Lender in the manner set forth in and at the address shown in Section 4.6 of the Agreement.
The undersigned New Indemnitor has executed and delivered this New Indemnitor Joinder to be effective as of the Effective Date of the Agreement.
NEW INDEMNITOR:
/s/ ▇▇▇▇▇ ▇. Maple
▇▇▇▇▇ ▇. Maple, an individual
Signature Page to New lndernnitor Joinder - HGI El Paso
See attached.
Section 3.1From and after the Effective Date, the Loan Documents are modified as follows:
(a)References to Loan Documents; Loan Parties; Certain Defined Terms.
(i) All references to the term “Loan Documents” in the Loan Agreement, Security Instrument and the other Loan Documents are modified to include this Agreement. All references to any Loan Document or Loan Documents shall mean and refer to such Loan Document or Loan Documents, as modified by the terms of this Agreement, the Original Indemnitor Joinder and the New Indemnitor Joinder attached hereto. All references to Loan in the Loan Documents shall mean the Loan as modified pursuant to this Agreement.
(ii) Subject to the terms of this Agreement, all references to the term “Guarantor” used in the Loan Documents shall include New Indemnitor, and from and after the Effective Date shall refer only to New Indemnitor, and any successor to and/or replacement of any of the foregoing Person, in each case, pursuant to and in accordance with the applicable terms and conditions of the Loan Documents.
(iii) From and after the Effective Date, all references to the term “Guaranty” used in the Loan Documents shall refer only to the A&R Guaranty (as defined in the Modification Agreement).
(iv) From and after the Effective Date, all references to the term “Environmental Indemnity” used in the Loan Documents shall refer only to the A&R Environmental Indemnity.
(v) From and after the Effective Date, all references to the term “Manager” used in the Loan Documents shall refer only to New Manager, and from and after the Effective Date shall exclude Original Manager with respect to matters arising from and after the Effective Date.
(vi) From and after the Effective Date, all references to the term “Management Agreement” used in the Loan Documents shall refer only to New Management Agreement and from and after the Effective Date shall exclude the Original Management Agreement with respect to matters arising from and after the Effective Date.
(vii) From and after the Effective Date, all references to the term “Assignment of Management Agreement” used in the Loan Documents shall refer only to the New Assignment of Management Agreement and from and after the Effective Date shall exclude the Assignment of
Management Agreement executed by ▇▇▇▇▇▇▇▇ and Original Manager with respect to matters arising from and after the Effective Date.
(viii) All references to “Schedule III” used in the Loan Agreement shall refer to Schedule 1.2(f) attached to this Agreement from and after the Effective Date.
(ix) All references to “Schedule II” and “Schedule IV” in the Loan Agreement are hereby deleted and the contents of “Schedule II” and “Schedule IV” of the Loan Agreement are replaced with the following text: “Intentionally Deleted”.
(b)Loan Agreement
(i)Section 1.1 Definitions is amended as follows:
(1)The following terms are added in the appropriate alphabetical location:
“MCR” shall mean Morningstar Credit Ratings LLC (formerly known as Realpoint LLC)
“Modification Agreement” shall mean that certain Loan Modification and Reinstatement Agreement, dated as of the Modification Effective Date, among Borrower, Original Guarantor, Guarantor, New Investor and Lender.
“Modification Effective Date” shall mean August 10, 2022. “New Indemnitor” shall mean ▇▇▇▇▇ ▇. Maple, an individual.
“New Investor” shall mean Lodging Fund REIT III OP, a Delaware limited partnership.
“Original Guarantor” shall mean, jointly and severally, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
“Original Guaranty” shall mean that certain Guaranty of Recourse Obligations, dated as of the Origination Date, from Original Guarantor in favor of ▇▇▇▇▇▇.
“Origination Date” shall mean July 29, 2015.
(2)The following terms and all references to such terms in the Loan Documents are hereby deleted: “Cantor” and “Realpoint”.
(3)The following terms are amended and restated in their entirety as follows:
“Assignment of Leases” shall mean that certain Assignment of Leases and Rents, dated as of the Origination Date, by ▇▇▇▇▇▇▇▇ (as successor-in-
interest to the original named borrower therein) in favor of ▇▇▇▇▇▇, as amended by that certain First Amendment to Assignment of Leases and Rents, dated as of the Modification Effective Date, as the same may be further amended, restated, replaced, supplemented or otherwise modified from time to time.
“Approved Rating Agencies” shall mean each of S&P, ▇▇▇▇▇’▇, Fitch and MCR or any other nationally-recognized statistical rating agency which has been approved by Lender and designated by Lender to assign a rating to the Securities.
“Assignment of Management Agreement” shall mean that certain Assignment of Management Agreement and Subordination of Management Fees, dated as of the Modification Effective Date, among Lender, Operating
▇▇▇▇▇▇ and Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Environmental Indemnity” shall mean that certain ▇▇▇▇▇▇▇ and Restated Environmental Indemnity Agreement, dated as of the Modification Effective Date, executed by ▇▇▇▇▇▇▇▇ and Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Guarantor” shall mean Core R. Maple, an individual.
“Guaranty” shall mean that certain ▇▇▇▇▇▇▇ and Restated Guaranty of Recourse Obligations, dated as of the Modification Effective Date, from Guarantor in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Loan Documents” shall mean, collectively, this Agreement, the Modification Agreement and the joinders attached thereto, the Note, the Security Instrument, the Environmental Indemnity, the New PIP Guaranty, the Assignment of Management Agreement, the Original Guaranty, the Guaranty, the Clearing Account Agreement, the Cash Management Agreement and all other documents executed and/or delivered in connection with the Loan, as each of the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from time to time.
“Manager” shall mean Aimbridge Hospitality, LLC or, if the context requires, a Qualified Manager who is managing the Property in accordance with the terms and provisions of this Agreement pursuant to a Replacement Management Agreement.
“New PIP Guaranty” shall mean that Completion Guaranty Agreement, dated as of the Modification Effective Date, from Guarantor in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Security Instrument” shall mean that certain Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Fixture Filing, dated as of the Origination Date, by ▇▇▇▇▇▇▇▇ (as successor-in-interest to the original named borrower therein) in favor of ▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee, for the benefit of ▇▇▇▇▇▇, as amended by that certain First Amendment to
Leasehold Deed of Trust, Security Agreement, Assignment of Leases and Fixture Filing, as the same may be further amended, restated, replaced, supplemented or otherwise modified from time to time.
“Title Insurance Policy” shall mean, individually and/or collectively as the context may require, that certain ALTA mortgage title insurance policy issued with respect to the Property and insuring the lien of the Security Instrument delivered to Lender in connection with the closing of the Loan,
as modified by an endorsement dated on or about the Modification Effective Date.
Leasehold rights pursuant to that certain Lease dated 12/06/2004, as amended by First Amendment to Ground Lease dated effective 12/06/2004, between THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, for the use and benefit of the UNIVERSITY OF TEXAS AT EL PASO, Lessor and HIGH DESERT INVESTORS, L.P., ▇▇▇▇▇▇, as referenced by memorandum of Lease dated 12/06/2004, filed 05/25/2005, in Clerk's File No. 20050046315, Real Property Records, El Paso County, Texas, said Lease covering the following described property:
All of Block 162 and a portion of Block 161, and the portions of vacated streets and alleys included therewith, all in ALEXANDER ADDITION, an addition to the city of El Paso, El Paso County, Texas and being more particularly described as follows: 3.121-acre portion of vacated Kerbey and El Paso Streets and Blocks 161 and 162 and the vacated alleys included therein, Alexander Addition, El Paso, El Paso County, Texas.
Metes and Bounds Description
The parcel of land herein is more particularly described by metes and bounds as follows:
COMMENCING at a city monument at the intersection of the monument lines of Kansas Street (70 Foot right-of-way) and University Avenue (70 foot right-of-way), said monument lines lying 10 feet east and 10 feet north of the respective centerlines of Kansas Street and University Avenue, from which a city monument at the intersection of the monument lines of Kansas Street and Cincinnati Avenue (70 foot right-of-way) bears North 37 degrees 00 minutes 20 seconds West, distance of 1650.46 feet;
THENCE, South 52 degrees 59 minutes 40 seconds West, along the monument line of University Avenue at 1320.92 feet passing a city monument on the monument line of El Paso Street, a total distance of 1330.92 feet;
THENCE, North 37 Degrees 00 minutes 20 second West, distance of 25.00 feet to a chiseled “X” set on the northerly right of way of University Avenue for the point of BEGINNING of this description.
THENCE, North 52 degrees 59 minutes 40 seconds East, along said right-of-way, a distance of
295.23 feet to a 5/8 rebar with cap marked “RPLS 4178” set on the westerly right-of-way of Oregon Street (70 foot right-of-way);
THENCE, North 37 degrees 00 minutes 20 seconds West, along said right-of-way, a distance of
329.94 feet to a chiseled “X” set on the northerly right-of-way of vacated Kerbey Street (70 foot right-of-way vacated May 22, 2001, City of El Paso Ordinance No. 014855);
THENCE, South 52 degrees 59 minutes 40 seconds West, along said right-of-way, a distance of
85.00 feet to a set 5/8 rebar with cap marked “RPLS 4178”;
THENCE, South 37 degrees 00 minutes 20 seconds East, a distance of 70.00 feet to a 5/8 rebar with cap marked “RPLS 4178” set on the southerly right-of-way of vacated Kerbey Street;
THENCE, South 52 degrees 59 minutes 40 seconds West, along said right-of-way, a distance of
389.23 feet to a set 5/8 rebar with cap marked “RPLS 4178”;
THENCE, South 52 degrees 59 minutes 40 seconds West, a distance of 36.00 feet to a set 5/8 rebar with cap marked “RPLS 4178”;
THENCE, South 14 degrees 07 minutes 00 seconds East, a distance of 48.85 feet to a set 5/8 rebar with cap mark “RPLS 4178”;
THENCE, South 37 degrees 00 minutes 20 seconds East, a distance of 85.00 feet to a chiseled “X” set on the northerly right-of-way of University Avenue;
THENCE, North 52 degrees 59 minutes 40 seconds East, along said right-of-way, a distance of
234.00 feet to the point of BEGINNING.
Amount to be Wired to ▇▇▇▇▇ Fargo Commercial Mortgage Servicing | ||
Category | Section | Amount |
Accrued Monthly Debt Service | 2.2(a)(ii) | $460,604.22 |
Tax and Insurance Escrow Payment | 2.2(a)(iii) | $271,705.70 |
New FF&E Deposit | 2.2(a)(iv) | $337,500.00 |
Interest on Advances | 2.2(a)(v) | $34,357.94 |
Accrued Default Interest | 2.2(a)(vi) | $1,113,820.55 |
Accrued Late Charges | 2.2(a)(vii) | $80,604.69 |
Accrued Lender Expenses | 2.2(a)(vii) | $435,351.58 |
Accrued SS Fees | 2.2(a)(ix) | $38,199.04 |
Suspense Funds | 2.2(a)(x) | $(40,389.44) |
Total | | $2,731,754.28 |
| | |
| | |
Amount to be Wired to CWCapital Asset Management LLC | ||
Category | Section | Amount |
Transfer Fee | 2.2(b)(ii) | $64,369.45 |
Guarantor Change Fee | 2.2(b)(iii) | $64,369.45 |
Total | | $128,738.90 |
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1901HaniaonSi..2nd Floot
Oak nd,CJ:. 94612
T,l 800986 9111
March 19, 2013
NOTICE OF WIRING INSTRUCTIONS
▇▇▇▇▇ FARGO COMMERCIAL MORTGAGE SERVICING
To WhomIt MayConcern:
Below are the wiring instructions for ▇▇▇▇▇ Fargo Commercial Mortgage Servicing {CMS). No other wiring instructionsshould be used when wiring fund.s.
Bank: ▇▇▇▇▇ Fargo Bank,N.A.
Account Name: ▇▇▇▇ as Trustee for Various Investors- Incoming Wires
ASA:
Account#:
Reference: Well:< Fargo CMS LoanNum r 407000523
It is unlikely that these wiringInstructions will change. Anychanges may only be made by formal notice with notarized signature.sof two WellsFargo CMSsenior officers.
We appreciate yourattention to this matter.
/DaEniel E.CBober -'---
Executive Vice President
Usa ▇. ▇▇▇▇▇▇▇
Managing Director
State of Californi3}
County ofA-<.cuu < d-"'--)
On ll,/,,u;:;y1 1q Z.or1>oofore me, J/u'c/, v/e,s,d..., <,, personally appeared,
12: ,r1;: I lie fuf-:y•U:;,,, 1- co Il,"' <,whoproved 10 me on the basis or
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within Instrument and acknowledged tc me that he/she/they executed the same in his/her/their autl\orited capacity(ies), and that by his/her/1.fleir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acred, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
- Together we'll go far
@cwcapital
WIRING INSTRUCTIONS
CWCapital Asset Management LLC:
Bank:
Citibank. NA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
wYork. NY 10022
Account Name:CWCapital Asset Management LLC- Operating ABA Number: (Wire/ACH)
Bank Account Number:
Reference:(iufonnation to apply funds)
gham- Chief Financial Officer
900 19••Street NW ( 8"' Floor IWashington, OC 20006