LOAN AGREEMENT
This LOAN AGREEMENT dated as of December 11, 1998, between the undersigned
borrowers listed on the signature pages hereto (collectively, "Borrower"), and
SERVICO WINDSOR, INC., listed on the signature pages hereto as "Canadian
Guarantor" ("Canadian Guarantor") each having its principal place of business
▇/▇ ▇▇▇▇▇▇▇, ▇▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., Two Live ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ FINANCIAL CORPORATION, a Pennsylvania
corporation, having an address at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and as Agent for one or more Co-Lenders and
successors ("Lender").
W I T N E S S E T H:
WHEREAS, Lender is concurrently herewith making a loan to Borrower in the
original principal amount of $265,000,000 (the "Loan") secured by a mortgage
lien on, and security interest in, Owner's interest in and to the real and
personal property comprising the hotels listed on the attached Schedule A;
WHEREAS, the Loan is evidenced by the Note (defined below) and secured by,
among other things, (i) those certain instruments titled Mortgage, Deed of
Trust, Assignment of Leases and Rents and Security Agreement, each dated as of
the date hereof from each of the parties constituting Borrower (other than
Servico New York, Inc.) to Lender, which encumber the Mortgage Property except
the Clarion Property (defined in Section 72) and the Mortgaged Property
described on Schedule A attached hereto as Property No. 88 (the "Canadian
Property"), (ii) the Clarion Mortgage (defined in Section 72) by Servico New
York, Inc. which encumbers the Clarion Property, and (iii) that certain
debenture dated the date hereof by Canadian Guarantor (defined below) (the
"Canadian Mortgage"), which encumbers the Canadian Property (as such instruments
in (i), (ii) and (iii) may be subsequently amended, restated, severed and
modified, individually or collectively, as the context may require, the
"Mortgage"; the Note, the Mortgage, this Agreement, the Guaranty, the
Environmental Agreement, the Canadian Loan Documents (defined below) and all
other documents executed or delivered in connection with the Loan, collectively,
the "Loan Documents"); and
WHEREAS, Lender and Owner have agreed to enter into this Loan Agreement to
memorialize their understanding regarding their respective rights and
obligations in respect of the Loan.
NOW, THEREFORE, in consideration of the making of the Loan and the
covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereby covenant, agree, represent and warrant as follows:
1. DEFINED TERMS
The following terms shall have the following meanings:
(a) "Access Laws" has the meaning set forth in Section 39 hereof.
(b) "Accounts Receivable" shall mean all right, title and interest of Owner
arising from the operation of the Land and the Improvements in and to all
payments for goods or property sold or leased or for services rendered, whether
or not yet earned by performance, and not evidenced by an instrument or chattel
paper (hereinafter referred to as "Accounts Receivable") including, without
limiting the generality of the foregoing, (i) all accounts, contract rights,
book debts, and notes arising from the operation of a hotel on the Land and the
Improvements or arising from the sale, lease or exchange of goods or other
property and/or the performance of services, (ii) Owner's rights to payment from
any consumer credit/charge card organization or entities which sponsor and
administer such cards as the American Express Card, the Visa Card and the
MasterCard, (iii) Owner's rights in, to and under all purchase orders for goods,
services or other property, (iv) Owner's rights to any goods, services or other
property represented by any of the foregoing, (v) monies due to or to become due
to Owner under all contracts for the sale, lease or exchange of goods or other
property and/or the performance of services including the right to payment of
any interest or finance charges in respect thereto (whether or not yet earned by
performance on the part of Owner) and (vi) all collateral security and
guaranties of any kind given by any person or entity with respect to any of the
foregoing. Accounts Receivable shall include those now existing or hereafter
created, substitutions therefor, proceeds (whether cash or non-cash, movable or
immovable, tangible or intangible) received upon the sale, exchange, transfer,
collection or other disposition or substitution thereof and any and all of the
foregoing and proceeds therefrom.
(c) "Additional Interest" shall have the meaning set forth in Section 72
hereof.
(d) "Affiliate" shall mean, with reference to a specified Person, any
Person that directly or indirectly through one or more intermediaries Controls
or is Controlled by or is under common Control with the specified Person and any
subsidiaries (including consolidated subsidiaries) of such specified Person.
(e) "Agent" shall have the meaning set forth in Subsection 71(b)(iv)
hereof.
(f) "Aggregate Debt Service Coverage Ratio" shall mean the ratio of (a) the
sum of NOI (defined below) derived from the operation of each of the Mortgaged
Properties, including Rents and Accounts Receivable, other than the Release
Premises (if the calculation is being made in connection with a Property
Release) and any Mortgaged Property which has, prior to any particular Property
Release, been theretofore released, during the applicable period, to (b) the
total Debt Service (defined below) that would be payable under the Note for the
applicable period. For purposes of this calculation, "Debt Service" shall mean,
for any given period during the term of the Loan, an amount equal to the
aggregate amount of interest payable outstanding on the Loan for such period
assuming an interest rate equal to the greater of (i) 8.85% per annum or (ii)
the Applicable Interest Rate (as defined in the Note), together with any
Additional Interest (defined in Section 72), but excluding the Exit Fee.
Notwithstanding the foregoing, the Aggregate Debt Service Coverage Ratio for
Mortgaged Properties owned for less than twelve (12) months as of the date of
the calculation shall be calculated on an annualized basis based on the basis of
the calendar month which is two (2) months immediately preceding the calculation
date."
(g) "Allocated Loan Amount" shall have the meaning with respect to each
Mortgaged Property as set forth on Schedule A.
(h) "Asbestos" has the meaning set forth in Section 36 hereof.
(i) "Assignment" has the meaning set forth in Section 2 hereof.
(j) "Borrower" has the meaning set forth in the preamble to this Agreement.
(k) "Canadian Guarantee" means that certain guarantee of even date herewith
by the Canadian Guarantor to the Lender.
(l) "Canadian Guarantor" has the meaning set forth in the preamble of this
Agreement.
(m) "Canadian Loan Documents" shall mean the Canadian Mortgage, the
debenture pledge agreement dated the date hereof between Canadian Guarantor and
Lender, and the guaranty dated the date hereof by Canadian Guarantor to Lender
and all other documents executed or delivered in connection with the Canadian
Guarantee.
(n) "Canadian Mortgage" has the meaning set forth in the Recitals of this
Agreement.
(o) "Canadian Property" has the meaning set forth in the Recitals of this
Agreement.
(p) "Change in Law" shall have the meaning provided in Subsection
71(j)(ii).
(q) "Co-Lender" shall have the meaning set forth in Subsection 71(b)(v)
hereof.
(r) "Collateral" has the meaning set forth in Section 29 hereof.
(s) "Condemnation" has the meaning set forth in Section 8 hereof.
(t) "Control" shall mean in (a) in the case of a corporation, ownership,
directly or through ownership of other entities, of at least ten percent (10%)
of all the voting stock (exclusive of stock which is voting only as required by
applicable law or in the event of nonpayment of dividends and pays dividends
only on a nonparticipating basis at a fixed or floating rate), and (b) in the
case of any other entity, ownership, directly or through ownership of other
entities, of at least ten percent (10%) of all of the beneficial equity
interests therein (calculated by a method that excludes from equity interests,
ownership interests that are nonvoting (except as required by applicable law or
in the event of nonpayment of dividends or distributions) and pay dividends or
distributions only on a non-participating basis at a fixed or floating rate) or,
in any case, (c) the power directly or indirectly, to direct or control, or
cause the direction of, the management policies of another Person, whether
through the ownership of voting securities, general partnership interests,
common directors, trustees, officers by contract or otherwise. The terms
"controlled" and "controlling" shall have meanings correlative to the foregoing
definition of "Control."
(u) "Debt" means the outstanding principal balance of the Note from time to
time, with all accrued and unpaid interest thereon, the Exit Fee (defined in the
Note), the Extension Fee (defined in the Note) the Breakage Costs (as defined in
the Note), if any, and all other sums now or hereafter due under the Loan
Documents.
(v) "Default Rate" means the rate of interest payable from and after the
occurrence of an Event of Default, as more particularly described in the Note;
provided, however, that with respect to an Event of Default of the type
described in Section 24(a), such rate of interest shall apply from and after the
date on which any such payment is due, without any period of grace or cure, as
more particularly described in the Note.
(w) "Domestic Lending Office" shall mean the office set forth in the
Preamble for
Lender, individually and as Agent for the Co-Lenders, or such other office as
may be designated from time to time by written notice to Owner.
(x) "Eligible Account" shall mean an account that is (i) maintained with an
Eligible Institution; (ii) a segregated trust account or accounts maintained
with a federal or state chartered depository institution or trust company with
trust powers acting in its fiduciary capacity, which in the case of any state
chartered depository institution or trust company is subject to regulations or
has established internal guidelines regarding fiduciary funds on deposit
substantially similar to federal requirements; or (iii) such other account as is
reasonably acceptable to Lender, provided that Lender receives written
confirmation by the Rating Agencies that the selection of such account shall not
result in a downgrade, withdrawal or qualification of the ratings then assigned
to the Securities.
(y) "Eligible Institution" shall mean a depository institution or trust
company the long-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the long-term unsecured debt obligations of which) have been
rated by the Rating Agencies in a rating category of not less than A+ or Aa3, as
applicable, or the short-term deposits or commercial paper of which are rated in
a rating category of not less than A-1 or P1, as applicable, at the time of any
deposit therein.
(z) Eligible Investment" shall have the meaning set forth in Section 7
hereof.
(aa) "Environmental Agreement" has the meaning set forth in Section 2
hereof.
(bb) "Environmental Laws" has the meaning set forth in the Environmental
Agreement.
(cc) "Equipment" means all machinery, furnishings, equipment, fixtures
(including, without limitation, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures), inventory and articles of
personal property and accessions thereof and renewals, replacements thereof and
substitutions therefor (including, without limitation, beds, bureaus,
chiffonniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs,
carpeting, drapes, draperies, curtains, shades, venetian blinds, screens,
paintings, hangings, pictures, divans, couches, luggage carts, luggage racks,
stools, sofas, chinaware, linens, pillows, blankets, glassware, foodcarts,
cookware, dry cleaning facilities, dining room wagons, keys or other entry
systems, bars, bar fixtures, liquor and other drink dispensers, icemakers,
radios, clock radios, television sets, intercom and paging equipment, electric
and electronic equipment, dictating equipment, private telephone systems,
medical equipment, potted plants, heating, lighting and plumbing fixtures, fire
prevention and extinguishing apparatus, cooling and air-conditioning systems,
elevators, escalators, fittings, plants, apparatus, stoves, ranges,
refrigerators, laundry machines, tools, machinery, engines, dynamos, motors,
boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning
systems, floor cleaning, waxing and polishing equipment, call systems, brackets,
electrical signs, bulbs, bells, fuel, conveyors, cabinets, lockers, shelving,
spotlighting equipment, dishwashers, garbage disposals, washer and dryers),
other customary hotel equipment and other property of every kind and nature,
whether tangible or intangible, whatsoever owned by Owner, or in which Owner has
or shall have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Owner, or in which Owner has or shall have an interest, now or hereafter located
upon the Premises and the Improvements, or appurtenant thereto, or usable in
connection with the present or future operation, enjoyment and occupancy of the
Premises and the Improvements.
(dd) "ERISA" has the meaning set forth in Section 40 hereof.
(ee) "Eurodollar Lending Office" shall mean the office of Agent (or any
Co-Lender) designated as such by Agent from time to time by written notice to
Owner.
(ff) "Event of Default" has the meaning set forth in Section 24 hereof.
(gg) "Exit Fee" shall have the meaning set forth in the Note.
(hh) "Expenses" shall mean, with respect to any Mortgaged Property, for any
given period (and shall include the pro rata portion for such period of all such
expenses attributable to, but not paid during, such period), all expenses as
determined in accordance with the Uniform System of Accounts, by Borrower during
that period in connection with the operation of such Mortgaged Property for
which it is to be determined, including without limitation:
A. expenses for cleaning, repair, maintenance, decoration and painting
of the Mortgaged Property (including, without limitation, parking lots and
roadways), net of any insurance proceeds in respect of any of the foregoing;
B. wages (including overtime payments), benefits, payroll taxes and
all other related expenses for Owner's on-site personnel, up to and including
(but not above) the level of the on-site manager, engaged in the repair,
operation and maintenance of the Mortgaged Property and service to tenants and
on-site personnel engaged in audit and accounting functions performed by Owner;
C. management fees equal to the greater of (i) the management fee
pursuant to the Management Agreement and (ii) four percent (4%) of Gross Income.
Such fees shall include all fees for management services whether such services
are performed at such Mortgaged Property or off-site;
D. franchise fees, reservation fees and other royalties or similar
payments equal to the greater of (i) such fees and payments due under the
Franchise Agreement and (ii) four percent (4%) of room revenues (exclusive of
franchisee's share of costs for registration and advertising systems);
E. the cost of all electricity, oil, gas, water, steam, heat,
ventilation, air conditioning and any other energy, utility or similar item and
the cost of building and cleaning supplies;
F. the cost of any leasing commissions and tenant concessions and
improvements payable by Owner pursuant to any Leases which are in effect for
such Mortgaged Property during such period as such amounts are recognized in
accordance with the Uniform System of Accounts; provided, however, that in no
event less than on a straight line basis during the remaining respective base
term (excluding extension, renewal or other option);
G. Insurance Premiums;
H. legal, accounting and other professional fees and expenses;
I. the cost of all equipment to be used in the ordinary course of
business, which is not capitalized in accordance with the Uniform System of
Accounts;
J. Taxes and Other Charges, including, without limitation, the Ground
Rent;
K. advertising and other marketing costs and expenses;
L. casualty losses to the extent not reimbursed by a third party;
M. all amounts that are reserved for hereunder and under the Mortgage,
including those funds which are deposited into the FF&E Replacement Reserve
Account or would be required to be deposited in the FF&E Replacement Reserve
Account in the event the FF&E Replacement Reserve Account is not yet
established; and
N. a furniture, fixtures and equipment reserve equal to the greater of
(i) such reserves required under the Management Agreement and the Franchise
Agreement and (ii) five percent (5%) of Gross Income, to the extent such amounts
are not duplicative of the amounts set forth in clause (M) above.
Notwithstanding the foregoing, Expenses shall not include (i)
depreciation or amortization or any other non-cash item of expense unless
approved by Lender; (ii) interest, principal, fees, costs and expense
reimbursements of Lender in administering the Loan but not in exercising any of
its rights under this Agreement or the other Loan Documents; or (iii) any
expenditure (other than leasing commissions, tenant concessions and improvements
and replacement reserves) which is properly treatable as a capital item under
the Uniform System of Accounts.
(ii) "FF&E Replacement Reserve Account" has the meaning set forth in
Section 7 hereof.
(jj) "FF&E Replacement Reserve Fund" has the meaning set forth in Section 7
hereof.
(kk) "Franchise Agreement" means, collectively, the franchise agreements
set forth on Schedule A hereto pursuant to which Owner has the right to operate
the hotel located on the Mortgaged Property under a name and/or hotel system
controlled by such franchisor.
(ll) "Franchisor" means, for each of the individual hotels comprising the
Mortgaged Property, the franchisor under the respective Franchise Agreement.
(mm) "Gross Income" means The term "Gross Income" as used herein shall mean
with respect to any Mortgaged Property for any given period the gross income
derived from the operation of such Mortgaged Property for such period, including
Rents and Accounts Receivable.
(nn) "Ground Lease" shall mean with respect to any Mortgaged Property in
which Owner owns a leasehold interest, the Ground Lease described in the
applicable Mortgage.
(oo) "Ground Rent" shall mean all ground rent and other charges due
pursuant to a Ground Lease with respect to any Mortgaged Property.
(pp) "Guarantor" means Servico, Inc., Lodgian, Inc., Servico Operations
Corporation, ▇▇▇▇▇▇ Motel Enterprises, KDS Corporation, AMIOP Acquisition Corp.,
Servico Acquisition Corp. and Palm Beach Motel Enterprises, Inc., collectively
as guarantors, under the Guaranty and any other guarantor of all or any part of
the Debt.
(qq) "Guaranty" means that certain guaranty of even date herewith by the
Guarantor to Lender.
(rr) "Hazardous Substances" has the meaning set forth in the Environmental
Agreement.
(ss) "Improvements" means the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter located on the Premises.
(tt) "Insurance Premiums" has the meaning set forth in Section 4(d) hereof.
(uu) "Insured Casualty" has the meaning set forth in Section 4(e)(ii)
hereof.
(vv) "Intangibles" means, without limitation, all of Owner's right, title
and interest in and to all accounts (including, without limiting the generality
of the foregoing, (i) all accounts, contract rights, book debts, and notes
arising from the operation of a hotel on the Land (defined in the Mortgage) and
the Improvements (defined in the Mortgage) or arising from the sale, lease or
exchange of goods or other property and/or the performance of services, (ii)
Owner's rights to payment from any consumer credit/charge card organization or
entities which sponsor and administer such cards as the American Express Card,
the Visa Card and the Mastercard, (iii) Owner's rights in, to and under all
purchase orders for goods, services or other property, (iv) Owner's rights to
any goods, services or other property represented by any of the foregoing, (v)
monies due to or to become due to Owner under all contracts for the sale, lease
or exchange of goods or other property and/or the performance of services
including the right to payment of any interest or finance charges in respect
thereto (whether or not yet earned by performance on the part of Owner) and (vi)
all collateral security and guaranties of any kind given by any person or entity
with respect to any of the foregoing ("Accounts Receivable") (Accounts
Receivable shall include those now existing or hereafter created, substitutions
therefor, proceeds (whether cash or non-cash, movable or immovable, tangible or
intangible) received upon the sale, exchange, transfer, collection or other
disposition or substitution thereof and any and all of the foregoing and
proceeds therefrom)), escrows, documents, instruments, chattel paper, claims,
deposits and general intangibles, as such terms are defined in the Uniform
Commercial Code, and all contract rights, franchises, books, records,
appraisals, architects and engineering plans, specifications, environmental and
other reports relating to the Premises, trademarks, trade names, symbols,
permits, licenses (to the extent assignable), approvals, actions, tenant or
guest lists, correspondence with present and prospective purchasers, tenants,
guests and suppliers, advertising materials and telephone exchange numbers as
identified in such materials, refunds of real estate taxes and assessments and
causes of action which now or hereafter relate to, are derived from or are used
in connection with the Premises, or the use, operation, maintenance, occupancy
or enjoyment thereof or the conduct of any business or activities thereon.
(ww) "Intercreditor Agreement" means in the event that the Loan is
syndicated pursuant to Section 71 hereof, the intercreditor agreement that may
be entered into between Lender, individually as a Co-Lender and as Agent, and
the Co-Lenders, as same be further supplemented,
amended and modified.
(xx) "Leases" means all leases and other agreements affecting the use,
enjoyment or occupancy of the Premises or the Improvements heretofore or
hereafter entered into (including, without limitation, subleases, licenses,
concessions, tenancies and other occupancy agreements covering or encumbering
all or any portion of the Premises), together with any guarantees, supplements,
amendments, modifications, extensions and renewals of any thereof, and all
additional remainders, reversions, and other rights and estates appurtenant
thereto.
(yy) "Lender" has the meaning set forth in the preamble to this Agreement.
(zz) "Licenses" has the meaning set forth in Section 10(e) of this
Agreement.
(aaa) "Loan" has the meaning set forth in the recitals of this Agreement.
(bbb) "Loan Documents" has the meaning set forth in the recitals of this
Agreement.
(ccc) "Loan-to-Value Ratio" means the ratio of: (i) the Debt evidenced by a
portion of the Note equal to the Allocated Loan Amount with respect to such
Mortgaged Property, plus all other debt (or other liquidated economic
obligations) which are then outstanding and secured by the applicable Mortgaged
Property, to (ii) the appraised value of the Mortgaged Property as estimated by
an appraiser acceptable to Lender. Any appraisal for purposes of calculating the
Loan-to-Value Ratio shall be performed in accordance with the then-approved
standards under the Financial Institutions Reform, Recovery and Enforcement Act
of 1989, as amended (FIRREA).
(ddd) "Management Agreement" means, collectively, the Consulting Agreements
and Management Agreements more particularly set forth on Schedule A hereto
pursuant to which the managers identified therein operate the Mortgaged Property
as hotels.
(eee) "Manager" means the Person set forth on Schedule A attached hereto.
(fff) "Material Adverse Effect" shall have the meaning set forth in Section
24(j).
(ggg) "Material Lease" has the meaning set forth in Section 9(b) of this
Agreement.
(hhh) "Maturity Date" means the Maturity Date (as such term is defined in
the Note).
(iii) "Mortgage" has the meaning set forth in the recitals of this
Agreement.
(jjj) "Mortgaged Property" shall mean the Premises, all real and personal
property located on or related to the Premises, including without limitation,
the Collateral, Equipment, Improvements, Intangibles, Rents, Accounts
Receivable, Condemnation awards, insurance proceeds, tradenames, trademarks,
servicemarks, logos, copyrights, goodwill, books and records, all refunds,
rebates or credits in connection with a reduction in real estate taxes and
assessments charged against the Premises as a result of tax certiorari or any
applications or proceedings for reduction, all agreements, contracts,
certificates, instruments, franchises, permits, licenses, including liquor
licenses and hotel business licenses, plans, specifications and other documents,
now or hereafter entered into, and all proceeds, substitutions and replacements
thereof.
(kkk) "NOI" as used herein shall mean, with respect to any Mortgaged
Property, for any given period, the Gross Income for such Mortgaged Property for
such period less Expenses attributable to such Mortgaged Property for such
period, as more particularly described on the operating statements for the
Mortgaged Property delivered by Owner to Lender pursuant to the this Loan
Agreement. NOI shall include, only Rents and Accounts Receivable earned in
accordance with the Uniform System of Accounts and such other income, including
any rent loss or business interruption insurance proceeds, laundry, parking,
vending or concession income, late fees, forfeited security deposits and other
miscellaneous tenant charges and Expenses actually paid or payable on an accrual
basis attributable to such Mortgaged Property on an annualized basis during the
applicable period ending on the last day of the month that is immediately prior
to the month during which the NOI is being calculated, as set forth on operating
statements satisfactory to Lender. NOI shall be calculated on an accrual basis
in accordance with the Uniform System of Accounts. Notwithstanding the
foregoing, NOI shall not include (a) Condemnation or insurance proceeds
(excluding rent or business interruption insurance proceeds); (b) any proceeds
from the sale, exchange, transfer, financing or refinancing of all or any
portion of the Mortgaged Property for which it is to be determined, (c) amounts
received from tenants as security deposits; or (d) any other type of income
otherwise includible in NOI but paid directly by any tenant to a person or
entity other than Owner or its respective agents or representatives, unless such
amounts are included as an Expense.
(lll) "Note" shall collectively mean (i) each of those certain promissory
notes dated the date hereof by each of the borrowers set forth on Schedule C
(collectively, the "Global Note"), (ii) each of those certain amended and
restated promissory notes described on Schedule C-1 (collectively, the "Florida
Note"), (iii) each of those amended and restated promissory notes described on
Schedule C-2 (collectively, the "Maryland Note") and (iv) that certain
consolidated, amended and restated promissory note and the other promissory
notes and bonds described on Schedule C-3 (collectively, the "NY Note"), as such
notes may be subsequently modified, amended, severed and restated.
(mmm) "NY Stub Note" shall mean that certain mortgage note in the principal
amount of $4,278,018.00 by Albany Hotel, Inc., Servico Jamestown, Inc., Servico
Niagara Falls, Inc. and Servico Grand Island, Inc.
(nnn) "NY Consolidated Note" shall mean that certain consolidated, amended
and restated promissory note listed on Schedule C-3 as No. 1, as such
consolidated, amended and restated promissory note may be amended modified,
severed and restated.
(ooo) "Obligations" shall mean Borrower's obligation for the payment of the
Debt and the performance by Owner of the Other Obligations.
(ppp) "Omni Note" shall mean the amended and restated note listed as No. 2
on Schedule C-1.
(qqq) "Other Charges" has the meaning set forth in Section 5 hereof.
(rrr) "Other Obligations" shall mean:
(i) the performance of all other obligations of Owner (other than for
the payment of the Debt) contained herein and the Mortgage;
(ii) the performance of each obligation of Owner contained in any
other agreement given by Owner to Lender which is for the purpose of
further securing the obligations secured by the Mortgage, and any
amendments, modifications and changes thereto; and
(iii) the performance of each obligation of Owner contained in any
renewal, extension, amendment, modification, consolidation, change of, or
substitution or replacement for, all or any part of the Note, this Loan
Agreement, the Mortgage or the other Loan Documents.
(sss) "Owner" shall mean, collectively, Borrower and Canadian Guarantor.
(ttt) "Permitted Exceptions" shall have the meaning set forth in Section 4.
(uuu) "Person" shall mean and include any individual, partnership, joint
venture, firm, corporation, association, limited liability company, association,
company, trust or other enterprise or any government or political subdivision or
agency, department or instrumentality thereof.
(vvv) "Policies" has the meaning set forth in Section 4(d) hereof.
(www) "Premises" means, collectively, the real property comprising the
Mortgaged Property, more particularly described on Exhibit A to each of the
instruments comprising the Mortgage.
(xxx) "Remedial Work" has the meaning set forth in Section 37 hereof.
(yyy) "Rents" means all income, rents, room rates, issues, profits,
revenues (including oil and gas or other mineral royalties and bonuses),
deposits and other benefits from the Mortgaged Property including, without
limitation, all revenues and credit card receipts collected from guest rooms,
restaurants, bars, mini-bars, meeting rooms, banquet rooms and recreational
facilities and otherwise, all receivables, customer obligations, installment
payment obligations and other obligations now existing or hereafter arising or
created out of the sale, lease, sublease, license, concession or other grant of
the right of the possession, use or occupancy of all or any portion of the
Mortgaged Property or personalty located thereon, or rendering of services by
Owner or any operator or manager of the hotel or the commercial space located in
the Improvements or acquired from others including, without limitation, from the
rental of any office space, retail space, commercial space, guest room or other
space, halls, stores or offices, including any deposits securing reservations of
such space (except to the extent such deposits are required to be returned or
refunded to the depositor), exhibit or sales space of every kind, license,
lease, sublease and concession fees and rentals, health club membership fees,
food and beverage wholesale and retail sales, service charges, net vending
machine sales and proceeds, if any, from business interruption or other loss of
income insurance relating to the use, enjoyment or occupancy of the Mortgaged
Property, whether paid or accruing before or after the filing by or against
Owner of any petition for relief under 11 U.S.C. ss.101 et. seq., as the same
may be amended from time to time.
(zzz) "Required Repair Account" has the meaning set forth in Section 64
hereof.
(aaaa) "Required Repair Fund" has the meaning set forth in Section 64
hereof.
(bbbb) "Securities" has the meaning set forth in Section 21 hereof.
(cccc) "Servicer" means the servicer of the Loan designated by Lender, in
its sole and absolute discretion, from time to time.
(dddd) "Tax and Insurance Escrow Fund" has the meaning set forth in Section
6 hereof.
(eeee) "Taxes" has the meaning set forth in Section 5 hereof.
(ffff) "Town Center Note" shall mean the amended and restated promissory
note listed as no. 2 on Schedule C-2.
(gggg) "Uniform Commercial Code" means the Uniform Commercial Code, as
adopted and enacted by the State or States where any of the Mortgaged Property
is located or with respect to any Mortgaged Property located in Louisiana,
Louisiana Commercial Laws (La. R.S. 10:1-101 et seq.).
As to any particular Mortgaged Property, "Uniform Commercial Code" means
the Uniform Commercial Code as adopted and enacted by the State or the States
where that Mortgaged Property is located.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Note.
2. PAYMENT OF DEBT; INCORPORATION OF COVENANTS, CONDITIONS AND AGREEMENTS
(a) Payments made by Borrower to Lender under the Note and hereunder shall
be applied by Lender in the following order of priority: (i) first, to required
deposits to the escrows established in accordance herewith for the payment of
Taxes and Other Charges and Insurance Premiums, if applicable; (ii) next, to
required deposits to the FF&E Replacement Reserve Fund and the Required Repair
Fund as provided in this Loan Agreement; (iii) next, to reimburse Lender for any
unpaid costs and expenses incurred by Lender on Owner's behalf; (iv) next, to
accrued and unpaid interest on the Loan; (v) next, to the Breakage Costs (as
defined in the Note), if any, and to the Exit Fee, if any, and (vi) last, to the
reduction of the principal balance of the Loan; or, upon a Triggering Event
(defined in Section 66), in accordance with the Cash Management Agreement
(defined in Section 66) or upon an Event of Default, in such other order and
priority as Lender shall determine in its sole discretion.
(b) All the covenants, conditions and agreements contained in the Note, the
Mortgage, this Agreement, the Assignment of Leases and Rents dated as of the
date hereof from Owner to Lender (the "Assignment"), the Environmental Indemnity
Agreement dated as of the date hereof between Lender and Borrower (the
"Environmental Agreement"), the Guaranty and the other Loan Documents are hereby
made a part of this Agreement to the same extent and with the same force as if
fully set forth herein.
(c) Notwithstanding anything to the contrary herein, in the Note, the
Mortgage or the other Loan Documents, all payments or prepayments of the
principal balance of the Note, either voluntary or involuntary, shall be applied
to the Debt in the following order and priority: first, to the portion of the
Debt evidenced by the Global Note and the Maryland Note (other than the Town
Center Note) on a pro-rata basis; second, to the portion of the Debt evidenced
by the Florida Note (other than the Omni Note) on a pro-rata basis third, to the
Debt evidenced by the Town Center and the Omni Note on a pro-rata basis and
fourth, to the Debt evidenced by the NY Note on a pro-rata basis;
notwithstanding the foregoing, no sums shall be applied to the NY Note if such
payment would reduce the outstanding principal sum of the NY Note to less than
$39,353,018.00, unless at the time of such application of such sums the
outstanding principal amount of the Global Note, the Florida Note, the Maryland
Note, the Town Center Note and the Omni Note are each $0.00.
3. WARRANTY OF TITLE
Owner represents and warrants that Owner has good, marketable and insurable
fee simple title and/or leasehold title, as applicable, to the Mortgaged
Property (or is the lessee thereof pursuant to leasing arrangements that have
been approved by Lender) and has the full power, authority and right to execute,
deliver and perform its obligations under this Agreement and to encumber,
mortgage, give, grant, bargain, sell, alienate, enfeoff, convey, confirm,
pledge, assign, hypothecate and grant a security interest in the Mortgaged
Property (except with respect to certain municipal permits and licenses, and
certain contracts and franchises the assignability of which, by their terms or
as a matter of law is restricted) and that Owner possesses an unencumbered fee
estate and/or leasehold estate, as applicable, in the Premises and the
Improvements, and subject to Section 13 hereof, that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for those exceptions approved by Lender and shown in the title insurance policy
insuring the lien of the Mortgage (the "Permitted Exceptions"), and that the
Mortgage is and will remain a valid and enforceable first lien on and security
interest in the Mortgaged Property, subject only to such exceptions. Borrower
shall forever warrant, defend and preserve such title and the validity and
priority of the lien of the Mortgage and shall forever warrant and defend such
title, validity and priority to Lender against the claims of all persons
whomsoever.
4. INSURANCE
(a) Owner, at its sole cost and expense, will keep the Mortgaged Property
insured during the entire term of this Agreement for the mutual benefit of Owner
and Lender against loss or damage by fire and against loss or damage by other
risks and hazards covered by a standard extended coverage insurance policy
including, without limitation, riot and civil commotion, vandalism, malicious
mischief, burglary and theft. The insurance policy shall contain option perils
and income loss endorsements and if any of the Improvements or the use of the
Mortgaged Property shall at any time constitute legal non-conforming structures
or uses, a law and ordinance endorsement. Such insurance shall be in an amount:
(i) equal to at least the then full replacement cost of the Improvements and the
Equipment, without deduction for physical depreciation; and (ii) such that the
insurer would not deem Owner a co-insurer under such policies. The deductible in
respect of such insurance shall not be in excess of $25,000, except in the case
of windstorm insurance for which the deductible shall not exceed one percent
(1%) of the "replacement value" of the applicable Mortgaged Property as
determined by Lender (provided with respect to "named windstorm" insurance, the
deductible shall not exceed 2% of the "replacement value" of the
applicable Mortgaged Property provided that Owner delivers a "deductible
buyback" policy for "named windstorm" coverage which shall insure a maximum
deductible of not more than $250,000), and in the case of earthquake insurance,
for which the deductible shall not exceed ten percent (10%) of the Allocated
Loan Amount relating to the applicable Mortgaged Property. From time to time,
upon Lender's request, Owner shall promptly furnish Lender with evidence that
the insurance required hereunder is in full force and effect, and that Lender
shall be given not less than 30 days notice of any cancellation of any such
required coverage. Each policy shall contain the "Replacement Cost Endorsement"
with a waiver of depreciation.
(b) Owner shall also obtain and maintain during the entire term of this
Agreement, at its sole cost and expense, for the mutual benefit of Owner and
Lender, the following policies of insurance:
(i) Flood insurance if any part of the Mortgaged Property is currently
or at any time in the future located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards and in which
flood insurance has been made available under the National Flood Insurance Act
of 1968, the Flood Disaster Act of 1973 or the National Flood Insurance Reform
Act of 1994 (and any amendment or successor act thereto) in an amount at least
equal to the lesser of: (A) the Allocated Loan Amount applicable to the
Mortgaged Property; and (B) the maximum limit of coverage available with respect
to the Improvements and the Equipment under such Act.
(ii) Comprehensive public liability insurance, including broad form
property damage, blanket contractual and personal injuries (including death
resulting therefrom) coverages and "Dram shop" or other liquor liability
coverage if alcoholic beverages are sold from or may be consumed at the
Mortgaged Property, and containing minimum limits per occurrence of
$5,000,000.00 for the Premises and the Improvements, except that if the
Mortgaged Property contains a swimming or health club facility, or if any
buildings at the Mortgaged Property contain 6 or more stories, the minimum
limits per occurrence shall be $10,000,000.00, or such greater amount as may be
required under the Franchise Agreement.
(iii) Rental loss insurance in an amount equal to the aggregate annual
amount of all rents and additional rents payable by all of the tenants under the
Leases (whether or not such Leases are terminable in the event of a fire or
casualty), such rental loss insurance to cover rental losses for a period of at
least eighteen (18) months after the date of the fire or casualty in question.
The amount of such rental loss insurance shall be increased from time to time
during the term of this Agreement as and when new Leases and renewal Leases are
entered into in accordance with the terms of this Agreement, to reflect all
increased rent and increased additional rent payable by all of the tenants under
such renewal Leases and all rent and additional rent payable by all of the
tenants under such new Leases.
(iv) Business income insurance: (A) with loss payable to Lender; (B)
covering all risks required to be covered by the insurance provided for in
Section 4(a); (C) containing an extended period of indemnity endorsement which
provides that after the physical loss to the Improvements and all personal
property has been repaired, the continued loss of income will be insured until
such income either returns to the same level it was at prior to the loss, or the
expiration of 18 months from the date of the completion of the Restoration,
whichever first occurs, and
notwithstanding that the policy may expire prior to the end of such period; and
(D) in an amount equal to the projected gross income less non-continuing
expenses from the operation of the Mortgaged Property as a hotel, including all
Rents and Accounts Receivable, for a period of 18 months. The amount of such
business income insurance shall be determined prior to the date hereof and at
least once each year thereafter based on clause (D) of this subsection. All
insurance proceeds payable to Lender pursuant to this Section shall be held by
Lender and shall be applied to the obligations secured hereunder from time to
time due and payable hereunder and under the Note; provided, however, that after
such application to Borrower's obligations hereunder Lender shall make available
from time to time upon Owner's request such amounts as may be reasonably
necessary to operate and maintain the Mortgaged Property; provided further,
however that nothing herein contained shall be deemed to relieve Borrower of its
obligations to pay the obligations secured hereunder on the respective dates of
payment provided for in the Note except to the extent such amounts are actually
and timely paid out of the proceeds of such business income insurance;
(v) Insurance, in an amount equal to the lesser of $2,000,000, or the
insurable value of the Improvements, against loss or damage from: (A) leakage of
sprinkler systems; and (B) explosion of steam boilers, air conditioning
equipment, high pressure piping, machinery and equipment, pressure vessels or
similar apparatus now or hereafter installed in the Improvements.
(vi) Worker's compensation insurance with respect to any employees of
Owner, as required by any governmental authority or legal requirement.
(vii) Motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits per
occurrence of $5,000,000 or such greater amount as may be required under the
Franchise Agreement.
(viii) A blanket fidelity bond and errors and omissions insurance
coverage insuring against losses resulting from dishonest or fraudulent acts
committed by: (A) Owner's personnel; (B) any employees of outside firms that
provided appraisal, legal, data processing (in lieu of Owner providing the
coverage in (B), Lender shall accept such coverage from a policy delivered by
such outside firms provided such coverage names Lender as an additional insured
and is otherwise acceptable to Lender), or other services for Owner; and (C)
temporary contract employees or student interns.
(ix) Earthquake insurance (including subsidence), if the Mortgaged
Property is located in an earthquake prone region on terms consistent with the
comprehensive all-risk insurance policy referred to in Subsection 4(a) above and
if required by Lender.
(x) Such other insurance as may from time to time be reasonably
required by Lender in order to protect its interests in the Mortgaged Property
or as may be required by the Franchise Agreement.
(c) Owner shall increase the amount of insurance required to be provided
hereunder at the time that each such policy is renewed (but, in any event not
less frequently than once during each 12-month period) by using the an appraiser
or a contractor to determine whether there has been an increase in the
replacement cost of the improvement since the most recent adjustment of any such
policy and, if there has been any such increase, the amount of insurance
required to be provided hereunder shall be adjusted accordingly.
(d) All policies of insurance required pursuant to this Section
(collectively, the "Policies") shall: (i) be issued by an insurer with a claims
paying ability rating of not less than AA or Aa, as applicable, by ▇▇▇▇▇'▇
Investors Service, Inc., Standard & Poor's Rating Group, Fitch Investor Service
and Duff & ▇▇▇▇▇▇, Inc. (the "Rating Agencies"), (ii) contain a standard
noncontributory mortgagee clause naming Lender as the person to which all
payments made by such insurance company shall be paid; (iii) be maintained
throughout the term of this Agreement without cost to Lender; (iv) be assigned
and delivered to Lender (or in lieu of such policies, certificates evidencing
such insurance may be delivered to Lender); (v) contain such provisions as
Lender deems reasonably necessary or appropriate to protect its interest
including, without limitation, endorsements providing that neither Owner, Lender
nor any other party shall be a co-insurer thereunder, and that Lender shall
receive at least 30 days prior written notice of any modification, reduction or
cancellation; and (vi) be reasonably satisfactory in form and substance to
Lender, and be approved by Lender as to amounts, form, risk coverage,
deductible, loss payees and insureds. Owner shall pay the premiums for the
Policies (the "Insurance Premiums") as they become due and payable. Not later
than 30 days prior to the expiration date of each of the Policies, Owner will
deliver to Lender satisfactory evidence of the renewal of each Policy
accompanied by evidence satisfactory to Lender of payment of the Insurance
Premiums then payable.
(e) If the Mortgaged Property shall be damaged or destroyed, in whole or in
part, by fire or other casualty, Owner shall give prompt notice thereof to
Lender.
(i) In the case of a loss covered by Policies, Lender may participate
in the settlement and adjustment of any claim; provided, however, that Owner may
adjust losses aggregating not in excess of $100,000.00 if such adjustment is
carried out in a competent and timely manner, and provided in any case that
Lender shall be, and is hereby, authorized to collect and receipt for any such
insurance proceeds. The expenses incurred by Lender in the adjustment and
collection of insurance proceeds shall become part of the Debt, shall be secured
by the Mortgage and shall be reimbursed by Owner to Lender on demand.
(ii) In the event of any insured damage to or destruction of the
Mortgaged Property or any part thereof (an "Insured Casualty") the insurance
proceeds in respect of which are less than or equal to the lesser of (A)
$1,000,000 or (ii) five percent (5%) of the Allocated Loan Amount applicable to
the Mortgaged Property (the lesser of such amount, the "Threshold Amount") and
the cost of completing the restoration shall be less than or equal to the
Threshold Amount, such proceeds shall be paid to Owner for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or the part
thereof subject to the Insured Casualty, as provided for below; and Owner hereby
covenants and agrees forthwith to commence and diligently to prosecute such
restoring, repairing, replacing or rebuilding. In the event of an Insured
Casualty the insurance proceeds in respect of which equal or exceed the
Threshold Amount where: (A) the proceeds of insurance are sufficient to enable
Owner to fully restore the Mortgaged Property (or Owner deposits with Lender any
shortfall or provides evidence that such sums have been paid toward restoration
of the Mortgaged Property); (B) the term of, and proceeds derived from, Owner's
business interruption insurance (or other similar insurance) shall be sufficient
to fully cover the period that the Mortgaged Property is undergoing restoration
(or Owner deposits with Lender any shortfall or provides evidence that such sums
have been paid toward the operation of the Mortgaged Property); (C) Lender
determines that the restoration is reasonably capable of being completed, at
least 12 months prior to the Maturity Date; (D) the Loan-to-Value Ratio upon
completion of restoration is estimated, by an appraiser acceptable to Lender, to
be no greater than .65 to 1.0; (E) the Franchise Agreement has not been, and
cannot be, terminated as a result of the Insured Casualty; (F) the restoration
can
be completed within 12 months from the date that the Insured Casualty occurred,
or within such shorter time period as may be required by the Franchise
Agreement; (G) the restoration is permitted or required under the Franchise
Agreement and shall be completed in accordance with all applicable federal,
state and local laws; (H) the Aggregate Debt Service Coverage Ratio upon
completion is reasonably anticipated to be at least equal to the greater of (1)
1.42:1.0 and (2) the Aggregate Debt Service Coverage Ratio in effect immediately
prior to the date of the casualty; (I) Owner shall commence the Restoration as
soon as reasonably practicable (but in no event later than forty-five (45) days
after such damage or destruction occurs) and shall diligently pursue the same to
satisfactory completion; (J) the Mortgaged Property and the use thereof after
the Restoration will be in compliance with all applicable zoning laws,
ordinances, rules and regulations; and (K) less than 50% of the total floor area
of the Improvements has been damaged, destroyed or rendered unusable as a result
of such fire or casualty, then, if no Event of Default shall have occurred and
be continuing, the proceeds of insurance shall be paid to Owner for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or the part
thereof subject to the Insured Casualty, as provided for below; and Owner hereby
covenants and agrees forthwith to commence and diligently to prosecute such
restoring, repairing, replacing or rebuilding. NOI for purposes of this
calculation shall be NOI for the 12 calendar month period immediately preceding
the casualty, unless the appraiser referenced in clause (D) above estimates that
NOI after the restoration will be more than ten (10%) percent less than NOI for
such 12 calendar month period, in which case the Aggregate Debt Service Coverage
Ratio shall be calculated using the appraiser's estimate of NOI.
(iii) Except as provided above, the proceeds of insurance collected
upon any Insured Casualty shall, at the option of Lender in its sole discretion,
be applied to the payment of the Debt or paid to Owner for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or the part
thereof subject to the Insured Casualty, in the manner set forth below. In no
case shall any such application reduce or postpone any payments otherwise
required pursuant to the Note, other than the final payment on the Note.
(iv) In the event that proceeds of insurance, if any, shall be made
available to Owner for the restoring, repairing, replacing or rebuilding of the
Mortgaged Property, Owner hereby covenants to restore, repair, replace or
rebuild the Mortgaged Property to be of at least equal value and of
substantially the same character as prior to such damage or destruction, all to
be effected in accordance with applicable law and plans and specifications
approved in advance by Lender and otherwise in accordance with the requirements
of the Franchise Agreement, if any; provided, however, that Owner shall pay all
costs (and if required by Lender, shall deposit the total thereof with Lender in
advance) of such restoring, repairing, replacing or rebuilding in excess of the
net proceeds of insurance made available pursuant to the terms hereof. The net
proceeds of insurance shall be held by Lender and shall be invested in Eligible
Investments as directed by Owner in a manner consistent with the completion of
restoration until disbursed in accordance with this Section 4.
(v) In the event Owner is entitled to insurance proceeds held by
Lender, such proceeds shall be disbursed from time to time upon Lender being
furnished with: (A) evidence satisfactory to it of the estimated cost of
completion of the restoration, repair, replacement and rebuilding; (B) funds,
or, at Lender's option, assurances satisfactory to Lender that such funds are
available, sufficient in addition to the proceeds of insurance to complete the
proposed restoration, repair, replacement and rebuilding; and (C) such
architect's certificates, waivers of lien for work previously performed or
contemporaneously funded, contractor's sworn statements, title insurance
endorsements, bonds, plats of survey and such other evidences of cost, payment
and performance
as Lender may reasonably require and approve. Lender may, in any event, require
that all plans and specifications for such restoration, repair, replacement and
rebuilding be submitted to and approved by Lender prior to commencement of work
(which approval shall not be unreasonably withheld). No payment made prior to
the final completion of the restoration, repair, replacement and rebuilding
shall exceed ninety (90%) percent of the value of the work performed from time
to time. Funds other than proceeds of insurance shall be disbursed prior to
disbursement of such proceeds, and at all times the undisbursed balance of such
proceeds remaining in Lender's possession, together with funds deposited for
that purpose or irrevocably committed to the satisfaction of Lender by or on
behalf of Owner for that purpose, shall be at least sufficient in the reasonable
judgment of Lender to pay for the cost of completion of the restoration, repair,
replacement or rebuilding, free and clear of all liens and claims of lien. Any
surplus which may remain out of insurance proceeds held by Lender after payment
of such costs of restoration, repair, replacement or rebuilding shall be
delivered to Borrower, provided such restoration was performed in accordance
with the provisions of this Section and Owner is not then in default of its
obligations under the Loan Documents.
(vi) Notwithstanding anything to the contrary in this Section 4, the
provisions of Subsection 4(e) are subject to the provisions of any applicable
Ground Lease.
(f) Owner shall not carry separate insurance, concurrent in kind or form or
contributing in the event of loss, with any insurance required under this
Section. Notwithstanding the foregoing, Borrower may carry insurance not
required under this Agreement, provided any such insurance affecting the
Mortgaged Property shall be for the mutual benefit of Owner and Lender, as their
respective interests may appear, and shall be subject to all other provisions of
this Section.
5. PAYMENT OF TAXES
Owner shall pay all taxes and assessments now or hereafter levied, assessed
or imposed against the Mortgaged Property or any part thereof (collectively, the
"Taxes") and all Ground Rents, maintenance charges, water rates and sewer rents,
other governmental impositions, and other charges including, without limitation,
vault charges and license fees for the use of vaults, chutes and similar areas
adjoining the Premises, now or hereafter levied, assessed or imposed against the
Mortgaged Property or any part thereof (collectively, the "Other Charges") as
they become due and payable. Owner will deliver to Lender evidence satisfactory
to Lender that the Taxes and Other Charges have been so paid, or are not then
delinquent, no later than 30 days following the date on which the Taxes and/or
Other Charges would otherwise be delinquent if not paid. Owner shall not suffer,
and shall promptly cause to be paid and discharged, any lien or charge
whatsoever which may be or become a lien or charge against the Mortgaged
Property, and shall promptly pay for all utility services provided to the
Mortgaged Property. Upon Lender's request, Owner shall furnish to Lender or its
designee receipts for the payment of the Taxes prior to the date such
obligations shall become delinquent. Owner shall be entitled to contest by
appropriate legal proceeding, promptly initiated and conducted in good faith and
with due diligence, the amount of any Taxes or Other Charges. Notwithstanding
the preceding sentence, during the pendency of any such contest Owner shall pay
or cause to be paid all Taxes and Other Charges as and when due and payable, or
otherwise in accordance with Section 32 hereof.
6. TAX, INSURANCE AND GROUND RENT ESCROW FUND
(a) Owner shall pay to Lender on the first day of each calendar month: (i)
one-twelfth of an amount which would be sufficient to pay the Taxes payable, or
estimated by Lender to be payable, during the next ensuing 12 months; and (ii)
subject to Subsection 6(b) below, one-twelfth of an amount which would be
sufficient to pay the Insurance Premiums due for the renewal of the coverage
afforded by the Policies upon the expiration thereof (the amounts described in
clauses (i) and (ii) above, collectively, the "Tax and Insurance Escrow Fund"),
which Tax and Insurance Escrow Fund shall be held in an Eligible Account by
Lender. The Tax and Insurance Escrow Fund and the monthly installments of
principal and interest payable under the Note shall be added together and shall
be paid as an aggregate sum by Owner to Lender. Owner hereby pledges to Lender
any and all monies now or hereafter deposited in the Tax and Insurance Escrow
Fund as additional security for the payment of the Debt. Lender will apply the
Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums
required to be made by Owner pursuant to Sections 4 and 5 hereof. Provided that
sufficient funds are then available to pay the current Taxes and Insurance
Premiums, Lender shall discharge such obligations at such time as will effect
the maximum discount available, if any. If the amount of the Tax and Insurance
Escrow Fund shall exceed the amounts due for Taxes and Insurance Premiums
pursuant to Sections 4 and 5 hereof, Lender shall, in its discretion, return any
excess to Owner or credit such excess against future payments to be made to the
Tax and Insurance Escrow Fund. If the Tax and Insurance Escrow Fund is not
sufficient to pay the items set forth in clauses (i) and (ii) above, Owner shall
promptly pay to Lender, upon demand, an amount which Lender shall estimate as
sufficient to make up the deficiency. Upon the occurrence of an Event of
Default, Lender may apply any sums then comprising the Tax and Insurance Escrow
Fund to the payment of the Debt in any order in its sole discretion. Until
expended or applied as above provided, any amounts in the Tax and Insurance
Escrow Fund shall constitute additional security for the Debt. To the extent
permitted by applicable law, the Tax and Insurance Escrow Fund shall not
constitute a trust fund and may be commingled with other monies held by Lender.
The Tax and Insurance Escrow Reserve Fund shall be invested and reinvested by
Lender, at Owner's direction, in one or more Eligible Investments, subject to
the following restrictions: (A) such Eligible Investments and the proceeds
thereof shall be deemed a part of the Tax and Insurance Escrow Reserve Fund; (B)
each such Eligible Investments shall be made in the name of Lender (in its
capacity as such) or in the name of a nominee of Lender under its complete and
exclusive dominion and control or, if applicable law provides for perfection of
pledges of an instrument not evidenced by a certificate or other instrument
through registration of such pledge on books maintained by or on behalf of the
issuer of such investment, such pledge may be so registered; (C) Lender shall
have the sole control over such investment, the income thereon and the proceeds
thereof; (D) other than investments described in clause (B) above, any
certificate or other instrument evidencing such investment shall be delivered
directly to Lender or its agent; (E) the proceeds of each investment shall be
remitted by the purchaser thereof directly to Lender and (F) Lender shall not be
liable for any loss sustained on the investment of any funds constituting a part
of the Tax and Insurance Escrow Reserve Fund (except for losses resulting from
Lender's gross negligences or willful default). No earnings or interest on the
Tax and Insurance Escrow Fund shall be payable to Owner, but shall remain part
of the Tax and Insurance Escrow Fund as set forth above.
(b) Anything to the contrary contained herein notwithstanding, Owner shall
be required to make the payments described in clause (ii) of subsection (a) of
this Section only upon an Event of Default and/or a Triggering Event (as defined
in Section 66 hereof).
(c) (i) Notwithstanding anything to the contrary contained in this
Agreement, upon the occurrence of a Triggering Event, Owner shall pay to Lender
on the first day of each
calendar month one-twelfth of an amount which would be sufficient to pay the
Ground Rent payable pursuant to the Ground Leases, as determined by Lender, for
the next ensuing 12 months (the "Ground Rent Escrow Fund"), which Ground Rent
Escrow Fund shall be held in an Eligible Account by Lender. Owner agrees to pay
or cause to be paid all Ground Rent pursuant to the Ground Leases. At least ten
(10) Business Days prior to the due date of any Ground Rent and not more
frequently than once each month Owner may notify Lender in writing and request
that Lender pay such Ground Rent on behalf of Owner on or prior to the due date
thereof, and provided no Event of Default exists and there are sufficient funds
available in the Ground Rent Escrow Fund, Lender shall make such payments before
same are delinquent. Owner hereby pledges to Lender any and all monies now or
hereafter deposited in the Ground Rent Escrow Fund as additional security for
the Debt. Together with each request for the payment of Ground Rent, Owner shall
deliver to Lender copies of invoices for Ground Rent from the applicable ground
lessor, if so issued, and all other documents necessary, as reasonably
determined by Lender, for the payment of the Ground Rent which are the subject
of such request. If the Ground Rent Escrow Fund is not sufficient to pay the
Ground Rent due pursuant to the Ground Leases, Owner shall pay to Lender
promptly upon demand an amount which Lender shall estimate as sufficient to make
up the deficiency. To the extent permitted by applicable law, the Ground Rent
Escrow Fund shall be commingled with other monies held by Lender. The Ground
Rent Escrow Reserve Fund shall be invested and reinvested by Lender, at Owner's
direction, in one or more Eligible Investments, subject to the following
restrictions: (A) such Eligible Investments and the proceeds thereof shall be
deemed a part of the Ground Rent Escrow Reserve Fund; (B) each such Eligible
Investments shall be made in the name of Lender (in its capacity as such) or in
the name of a nominee of Lender under its complete and exclusive dominion and
control or, if applicable law provides for perfection of pledges of an
instrument not evidenced by a certificate or other instrument through
registration of such pledge on books maintained by or on behalf of the issuer of
such investment, such pledge may be so registered; (C) Lender shall have the
sole control over such investment, the income thereon and the proceeds thereof;
(D) other than investments described in clause (B) above, any certificate or
other instrument evidencing such investment shall be delivered directly to
Lender or its agent; (E) the proceeds of each investment shall be remitted by
the purchaser thereof directly to Lender and (F) Lender shall not be liable for
any loss sustained on the investment of any funds constituting a part of the
Ground Rent Escrow Reserve Fund (except for losses resulting from Lender's gross
negligences or willful default). No earnings or interest on the Ground Rent
Escrow Fund shall be payable to Owner, but shall remain part of the Ground Rent
Escrow Fund as set forth above. (ii) Upon the occurrence of a Triggering Event,
Owner hereby agrees to deposit with Lender the Ground Rent deferred by Owner
pursuant to the Ground Lease applicable to Property No. 57 on Schedule A of the
Loan Agreement (Omni Albany Hotel), in the amount of $1,721,037 (the "Albany
Deferred Rent Payment"). The Owner represents and warrants to Lender that (A)
the amount of the deferred Ground Rent relating to the Omni Hotel is $1,721,037
as shown on Exhibit K attached hereto, (B) the Albany Deferred Rent Payment is
not due and payable pursuant to the applicable Ground Lease in connection with
the Loan by Lender to Owner, (B) the Albany Deferred Rent Payment is due and
payable only upon the occurrence of one of the events in Section 3.01(b) of the
Ground Lease and (c) upon a Foreclosure (as defined in the Ground Lease) of the
Mortgage, neither Lender, its successors and/or assigns, nor a purchaser of the
Mortgaged Property from Lender after Foreclosure would be obligated to pay all
or a part of such Albany Deferred Rent Payment except upon the occurrence of the
events listed in Section 3.01(b) of the Ground Lease. The Albany Deferred Rent
Payment shall be held by Lender as additional security for the Loan and Owner
shall not be entitled to the Albany Deferred Rent Payment until the payment in
full of the Debt. Upon the occurrence of an Event of Default, Lender may apply
the Albany Deferred Rent Payment, in its discretion, to any outstanding amounts
due pursuant to the terms of the Note, the Mortgage or the other Loan
Documents.
7. FF&E REPLACEMENT RESERVE; REPAIR ESCROW
(a) Commencing on the first Payment Date and on each Payment Date
thereafter, Owner shall pay to Lender one twelfth of the amount (the "FF&E
Replacement Reserve Monthly Deposit") equal to five (5) percent (5%) of the
Gross Income for the Mortgaged Properties for the calendar month immediately
preceding the month preceding the due date as shown on the monthly operating
statements delivered pursuant to Section 19(c) hereof, to be applied to maintain
and replace (i) the furniture, fixtures and equipment used in the guest rooms,
hallways, lobbies, restaurants, lounges, meeting and banquet rooms, and other
public interior areas accessible by the public for regular use and (ii) the
furniture, fixtures and equipment located on or about the exterior of the
Improvements or make other improvements to the exterior thereof, if required by
the Franchisor pursuant to a PIP or otherwise, including those items as set
forth in the Approved Capital Budget for each Mortgaged Property (collectively,
the "FF&E Replacements"), and such amounts paid by Owner and so deposited by
Lender shall hereinafter be referred to as the "FF&E Replacement Reserve Fund".
Notwithstanding anything in the preceding sentence to the contrary, (i) a
portion of the FF&E Replacement Reserve in the amount of $4,600,000 (the
"Special FF&E Repair Deposit") shall be disbursed to Owner to reimburse Owner or
to pay for the cost of those work items listed on Schedule D attached hereto
with respect to those fourteen (14) Mortgaged Properties listed under the
heading "Special FF&E Reserve Account" in accordance with the provisions of
Section 64 and as reasonably approved by Lender ("Special FF&E Repairs") and
(ii) Owner shall be obligated to spend such $4,600,000 with respect to such
fourteen (14) Mortgaged Properties and complete those Special FF&E Repairs in
accordance with 64 on or before July 1, 1999. Lender will maintain the FF&E
Replacement Reserve Fund in a segregated account (the "FF&E Replacement Reserve
Account"), which shall be an Eligible Account, and the FF&E Replacement Reserve
Fund shall be invested and reinvested by Lender, at Owner's direction, in one or
more Eligible Investments, subject to the following restrictions: (A) such
Eligible Investments and the proceeds thereof shall be deemed a part of the FF&E
Replacement Reserve Fund; (B) each such Eligible Investments shall be made in
the name of Lender (in its capacity as such) or in the name of a nominee of
Lender under its complete and exclusive dominion and control or, if applicable
law provides for perfection of pledges of an instrument not evidenced by a
certificate or other instrument through registration of such pledge on books
maintained by or on behalf of the issuer of such investment, such pledge may be
so registered; (C) Lender shall have the sole control over such investment, the
income thereon and the proceeds thereof; (D) other than investments described in
clause (B) above, any certificate or other instrument evidencing such investment
shall be delivered directly to Lender or its agent; (E) the proceeds of each
investment shall be remitted by the purchaser thereof directly to Lender and (F)
Lender shall not be liable for any loss sustained on the investment of any funds
constituting a part of the FF&E Replacement Reserve Fund (except for losses
resulting from Lender's gross negligences or willful default).
(b) Owner hereby grants a first priority security interest to Lender, as
security for payment of all sums due under the Loan and the performance of all
other terms, conditions and provisions to be paid and performed, of all Owner's
right, title and interest in and to the FF&E Replacement Reserve Fund and the
FF&E Replacement Reserve Account and shall execute and deliver to Lender such
UCC-1 Financing Statements and other documents or instruments as Lender may
request in order to grant and perfect such security interest. Owner shall not,
without obtaining the prior written consent of Lender, further pledge, assign or
grant any security interest in the FF&E Replacement Reserve Fund or the FF&E
Replacement Reserve Account or permit any lien
or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1
Financing Statements, except those naming Lender as the secured party, to be
filed with respect thereto. Upon the occurrence of an Event of Default, Lender
may apply any sums then present in the FF&E Replacement Reserve Fund to the
payment of the Debt (as defined in the Note) in any order in its sole
discretion. Until expended or applied as above provided, the FF&E Replacement
Reserve Fund shall constitute additional security for the Debt.
(c) (i) After the commencement of Owner's obligation to make the FF&E
Replacement Reserve Monthly Deposit pursuant to Section 7(a), except as provided
for in Subsection (c)(iii) below or otherwise in this Agreement, Lender shall
make disbursements from the FF&E Replacement Reserve Account to pay Owner only
for FF&E Replacements. Lender shall not be obligated to make disbursements from
the FF&E Replacement Reserve Account to pay for or to reimburse Owner for the
costs of routine maintenance (other than the regular replacement of furniture,
fixtures and equipment constituting FF&E Replacements or as permitted pursuant
to Section 7(e) hereof or in the Approved Capital Budget) to an individual
Mortgaged Property or for costs which are to be reimbursed from the Required
Repair Fund (as such term is defined in Section 64 of this Agreement).
(ii) Lender shall, upon written request from Owner and satisfaction of
the requirements set forth in Section 7(a) and Section 7(b) of this Agreement,
disburse to Owner amounts from the FF&E Replacement Reserve Account to pay for
the actual approved costs of FF&E Replacements or to reimburse the Borrower
therefor in accordance with the Approved Capital Budget within ten (10) days of
Lender's receipt of a request for disbursement in accordance with Section 7(d).
In no event shall Lender be obligated to disburse funds from the FF&E
Replacement Reserve Account if an Event of Default exists.
(iii) Notwithstanding anything herein to the contrary, Owner shall not
be entitled to request disbursements from the FF&E Replacement Reserve Fund with
respect to the fourteen (14) Mortgaged Properties under the heading "Special
FF&E Reserve Account" on Schedule D until Owner has completed the Special FF&E
Repairs for the applicable Mortgaged Property and has incurred, received
disbursements for and paid for the cost of such Special FF&E Repairs in an
amount equal to the "Allocated Amount" set forth on the Part of Schedule D
entitled "Special FF&E Reserve Account".
(d) Each request for disbursement from the FF&E Replacement Reserve Account
shall be in a form specified or approved by Lender as more particularly set
forth as Exhibit B and shall certify as to the following matters: (i) the
specific FF&E Replacements for which the disbursement is requested, (ii) the
amounts requested are for the costs of such FF&E Replacements that have been
paid or incurred since the immediately preceding request; (iii) the FF&E
Replacement for which the disbursement is requested is a permitted expenditure
on the current Approved Capital Budget and Subsection (a), (iv) the amount
requested is less than or equal to the amount budgeted for such FF&E Replacement
in the current Approved Capital Budget and (v) that all FF&E Replacements that
were the subject of the prior request for disbursement, if applicable, have been
made in accordance with all applicable Legal Requirements (defined below) of any
Governmental Authority (defined below) having jurisdiction over the applicable
Mortgaged Property to which the FF&E Replacements are being provided and the
cost of such FF&E Replacements has been paid in full or as required under the
applicable contract as set forth in Subsection 7(e) below. Each request for
disbursement shall include copies of invoices for all items or materials to be
purchased and all contracted laborer services to be provided in connection with
the FF&E
Replacements for which the disbursement is requested and a statement setting
forth in reasonable detail the persons or entities to which payments were made
for the FF&E Replacements that were the subject of the prior request for
disbursement and shall set forth the amount paid to such person or entities,
together with evidence satisfactory to Lender of payment of all such amounts for
which the prior request for disbursement was made, which evidence shall include
copies of paid invoices and lien waivers. Prior to Owner's making of the initial
FF&E Replacement Reserve Monthly Deposit in accordance with Section 7(a) or
thereafter with respect to any calendar month during which a request for
disbursement from the FF&E Replacement Reserve Fund is not submitted to Lender
pursuant to this Section 7(d), Owner shall deliver to Lender, as a part of the
monthly reports to be delivered pursuant to Section 19 of this Loan Agreement an
Officer's Certificate setting forth the amounts paid during the preceding
calendar month for FF&E Replacements and setting forth each person to whom such
amounts were paid, the amount paid to each such person and the related FF&E
Replacement provided by each such person.
(e) Except as set forth below in this Subsection (e), each request for
disbursement from the FF&E Replacement Reserve Account shall be made only after
Owner has certified to Lender that the FF&E Replacement for which such
disbursement is requested has been completed. If the cost of any FF&E
Replacement exceeds $10,000.00 and the contract therefor so requires, a request
for disbursement may be made periodically in accordance with such contract;
provided, however, that any materials for which the request for disbursement is
made shall be on site at the individual Mortgaged Property and shall have been
properly secured or installed in the individual Mortgaged Property; and provided
further, however, that funds remain in the FF&E Replacement Reserve Account,
which, together with the FF&E Replacement Reserve Monthly Deposits scheduled to
be made over the balance of the contract term, will be, in Lender's judgment,
sufficient to complete the FF&E Replacement being performed under such contract.
If a contract requires an advance deposit for the delivery of materials to the
site, Owner may request the amount of such deposit to be released from the FF&E
Replacement Reserve Account, to be determined by Lender its sole and absolute
discretion.
(f) Owner shall not make a request for disbursement from the FF&E
Replacement Reserve Account more frequently than once in any calendar month and
(except in connection with the final disbursement) the total cost of all FF&E
Replacements in any request shall not be less than Fifteen Thousand and
No/Dollars ($15,000).
(g) Owner shall make FF&E Replacements when required by sound hotel
management practices in order to keep the Mortgaged Property in condition and
repair consistent with requirements under the Franchise Agreement affecting the
Mortgaged Property and Owner's standards and practices as of the date hereof, at
a minimum in accordance with the prevailing standards for hotel properties of
similar age, size, construction and the then-current Franchisor in the
metropolitan area in which the Mortgaged Property is located, and to keep the
Mortgaged Property from deteriorating. Owner shall complete all FF&E
Replacements in a good and workmanlike manner as soon as practicable following
the commencement of making each such FF&E Replacement.
(h) Lender reserves the right, at its option, to approve all Material
Contracts or Material Work Orders (each defined below) with materialmen,
mechanics, suppliers, subcontractors, contractors or other parties providing
labor or materials in connection with the FF&E Replacements. Upon Lender's
request, Owner shall assign any contract or subcontract to Lender. The term
"Material Contract" and "Material Work Order" as used herein shall mean
contracts or work orders in excess of $100,000.
(i) In the event Lender determines in its reasonable discretion that any
FF&E Replacement is not being performed in a workmanlike or timely manner
(subject to Force Majeure (defined below)) or that any FF&E Replacement has not
been completed in a workmanlike or timely manner, Lender shall have the option
to withhold any further disbursements from the FF&E Replacement Reserve Account
for such Mortgaged Property and, upon ten (10) days prior written notice if not
cured to Lender's reasonable satisfaction, to proceed under existing contracts
or to contract with third parties to complete such FF&E Replacement and to apply
the FF&E Replacement Reserve Fund toward the labor and materials necessary to
complete such FF&E Replacement and, without providing any prior notice to Owner,
to exercise any and all other remedies available to Lender upon an Event of
Default hereunder. The term "Force Majeure" shall have the following meaning
herein: Owner shall be excused for the period of any delay in the performance of
any obligations hereunder when prevented from so doing by cause or causes beyond
Owner's control which shall include, without limitation, all labor disputes,
civil commotion, war, war-like operations, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations or controls, fire
or other casualty, inability to obtain any materials, or services or through
acts of God.
(j) In order to facilitate Lender's completion or making of the FF&E
Replacements pursuant to Section 7(i) above, Owner grants Lender the right to
enter onto any individual Mortgaged Property and perform any and all work and
labor necessary to complete or make the FF&E Replacements and/or employ watchmen
to protect such individual Mortgaged Property from damage. All sums so expended
by Lender (exclusive of sums disbursed from the FF&E Replacement Reserve
Account) shall be deemed to have been advanced under the Loan to Owner and
secured by the Mortgage. For this purpose Owner constitutes and appoints Lender
its true and lawful attorney-in-fact with full power of substitution to complete
or undertake the FF&E Replacements in the name of Owner. Such power of attorney
shall be deemed to be a power coupled with an interest and cannot be revoked.
Owner empowers said attorney-in-fact as follows: (i) to use any funds in the
FF&E Replacement Reserve Account for the purpose of making or completing the
FF&E Replacements; (ii) to make such additions, changes and corrections to the
FF&E Replacements as shall be necessary or desirable to complete the FF&E
Replacements; (iii) to employ such contractors, subcontractors, agents,
architects and inspectors as shall be required for such purposes; (iv) to pay,
settle or compromise all existing bills and claims which are or may become liens
against any individual Mortgaged Property, or as may be necessary or desirable
for the completion of the FF&E Replacements, or for clearance of title; (v) to
execute all applications and certificates in the name of Owner which may be
required by any of the contract documents; (vi) to prosecute and defend all
actions or proceedings in connection with any individual Mortgaged Property or
the rehabilitation and repair of any individual Mortgaged Property; and (vii) to
do any and every act which Owner might do in its own behalf to fulfill the terms
of this Agreement.
(k) Nothing in this Section 7 shall: (i) make Lender responsible for making
or completing the FF&E Replacements; (ii) require Lender to expend funds in
addition to the FF&E Replacement Reserve Fund to make or complete any FF&E
Replacement; (iii) obligate Lender to proceed with the FF&E Replacements; or
(iv) obligate Lender to demand from Owner additional sums to make or complete
any FF&E Replacement.
(l) Upon reasonable prior notice by Lender, Owner shall permit Lender and
Lender's agents and representatives (including, without limitation, Lender's
engineer, architect, or
inspector) or third parties making FF&E Replacements pursuant to this Section 7
to enter onto each individual Mortgaged Property during normal business hours
(subject to the rights of tenants under their Leases) to inspect the progress of
any FF&E Replacements and all materials being used in connection therewith and
to examine all plans and shop drawings relating to such FF&E Replacements which
are or may be kept at each individual Mortgaged Property. Owner shall cause all
contractors and subcontractors to cooperate with Lender or Lender's
representatives or such other persons described above in connection with
inspections described in this Section 7(l), the completion of FF&E Replacements
pursuant to this Section 7(l) or in connection with the inspections described in
Section 7(m) below.
(m) If Lender has determined in its reasonable discretion that any FF&E
Replacements are not being completed in a timely and workmanlike manner (subject
in each instance to delays caused by Force Majeure) or in the event that the
amount disbursed for the completion of a single FF&E Replacement pursuant to a
prior disbursement from the FF&E Replacement Reserve Account exceeded Two
Hundred Thousand and No/100 Dollars ($200,000), Lender may require an inspection
of the applicable individual Mortgaged Property at Owner's expense prior to
making a monthly disbursement from the FF&E Replacement Reserve Account for such
FF&E Replacement in order to verify completion of such FF&E Replacements. Lender
may require that such inspection be conducted by an appropriate independent
qualified professional selected by Lender and/or may require a copy of a
certificate of completion by an independent qualified professional acceptable to
Lender prior to the disbursement of any such amounts from the FF&E Replacement
Reserve Account. Owner shall pay the expense of the inspection as required
hereunder, whether such inspection is conducted by Lender or such third party
(in no event to exceed $1,000).
(n) The FF&E Replacements and all materials, equipment, fixtures, or any
other item comprising a part of any FF&E Replacement shall be constructed,
installed or completed, as applicable, free and clear of all mechanic's,
materialman's or other liens (except for those liens which have been approved in
writing by Lender).
(o) In the event that the prior request for disbursement included any
amount in excess of Two Hundred Thousand and No/100 Dollars ($200,000) for any
single FF&E Replacement requiring construction, installation or completion,
Lender may require Owner to provide Lender with a search of title to the
applicable individual Mortgaged Property prior to making any additional
disbursements from the FF&E Replacement Reserve Account for such FF&E
Replacement only, which search shows that no mechanic's or materialmen's liens
or other liens of any nature have been placed against the applicable individual
Mortgaged Property since the date of recordation of the related Mortgage and
that title to such individual Mortgaged Property is free and clear of all liens
(other than the lien of the related Mortgage and any other liens previously
approved in writing by the Lender, if any).
(p) All FF&E Replacements shall comply in all material respects with all
applicable Legal Requirements of all Governmental Authorities having
jurisdiction over the applicable individual Mortgaged Property and applicable
insurance requirements including, without limitation, applicable building codes,
special use permits, environmental regulations, and requirements of insurance
underwriters.
(q) In addition to any insurance required under the Loan Documents, Owner
shall provide or cause to be provided workmen's compensation insurance,
builder's risk, and public liability insurance and other insurance to the extent
required under applicable law in connection with
a particular FF&E Replacement. All such policies shall be in form and amount
reasonably satisfactory to Lender. All such policies which can be endorsed with
standard Lender clauses making loss payable to Lender or its assigns shall be so
endorsed. Certified copies of such policies or certificates thereof shall be
delivered to Lender.
(r) (i) It shall be an Event of Default under this Agreement if Owner (i)
fails to make the initial FF&E Replacement Reserve Monthly Deposit in accordance
with this Section 7 or (ii) fails to comply with any other provision of this
Section 7 and such failure is not cured within thirty (30) days after notice
from Lender provided that, if such default cannot reasonably be cured within
such 30 day period and Owner shall have commenced to cure such default within
such 30 days period and thereafter diligently and expeditiously proceeds to cure
the same, such thirty (30) day period shall be extended for so long as it shall
require Owner, in the exercise of due diligence to cure such default, it being
agreed that no such extension shall be for a period in excess of 60 days
(subject to Force Majeure). Upon the occurrence of an Event of Default, Lender
may use the FF&E Replacement Reserve Fund (or any portion thereof) for any
purpose, including but not limited to completion of the FF&E Replacements as
provided in Section 7(j), or for any other repair or replacement to any
individual Mortgaged Property or toward payment of the Debt in such order,
proportion and priority as Lender may determine in its sole discretion. Lender's
right to withdraw and apply the FF&E Replacement Reserve Funds shall be in
addition to all other rights and remedies provided to Lender under this
Agreement and the other Loan Documents.
(ii) Nothing in this Agreement shall obligate Lender to apply all or any
portion of the FF&E Replacement Reserve Fund on account of an Event of Default
to payment of the Debt or in any specific order or priority.
(t) The insufficiency of any balance in the FF&E Replacement Reserve
Account shall not relieve Owner from its obligation to fulfill all preservation
and maintenance covenants in the Loan Documents.
(u) Owner shall indemnify Lender and hold Lender harmless from and against
any and all actions, suits, claims, demands, liabilities, losses, damages,
obligations and costs and expenses (including litigation costs and reasonable
attorneys fees and expenses) arising from or in any way connected with the
performance of the FF&E Replacements subject to the provisions of Section 41
hereof. Owner shall assign to Lender all rights and claims Owner may have
against all persons or entities supplying labor or materials in connection with
the FF&E Replacements; provided, however, that Lender may not pursue any such
right or claim unless an Event of Default has occurred and remains uncured.
(v) In the event Owner requests a disbursement from the FF&E Replacement
Reserve Account for labor or materials for FF&E Replacements other than FF&E
Replacements specified in Subsection (a) or the Approved Capital Budget, Owner
shall disclose in writing to Lender why funds in the FF&E Replacement Reserve
Account should be used to pay for such FF&E Replacements not specified in
Subsection (a) or the Approved Capital Budget. If Lender determines that: (i)
such FF&E Replacements are of the type intended to be covered by this Agreement;
(ii) such FF&E Replacement is not covered or of the type intended to be covered
by the Required Repairs Fund; (iii) costs for such FF&E Replacements are
reasonable; (iv) the funds in the FF&E Replacement Reserve Account are
sufficient to pay for such FF&E Replacements; and (v) all other conditions for
disbursement under this Agreement have been met, Lender may disburse funds from
the FF&E Replacement Reserve Account; provided, however, that Lender in its
discretion, may
refuse to disburse funds from the FF&E Replacement Reserve Account for any item
other than a FF&E Replacement specified in Subsection (a) or on the Approved
Capital Budget.
(w) The following capitalized terms shall have the meanings set forth
below:
"Eligible Investments" shall mean any one or more of the following
investments:
(1) Securities that are (x) direct obligations of the United States of
America for the full and timely payment of which its full faith and credit is
pledged, which are not callable or redeemable at the option of the issuer
thereof and may include, but are not limited to, U.S. Treasury Obligations (All
direct or fully guaranteed obligations), Farmers Home Administration
Certificates of Beneficial Ownership, General Services Administration
Participation Certificates, U.S. Maritime Administration Guaranteed Title XI
Financing, Small Business Administration Guaranteed Participation Certificates,
Guaranteed Pool Certificates, U.S. Department of Housing and Urban Development
Local Authority Bonds, and Washington Metropolitan Area Transit Authority
Guaranteed Transit Bonds, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality and not guaranteed as a
full faith and credit obligation of the United States of America, which are not
callable or redeemable at the option of the issuer thereof and may include, but
are not limited to, Federal Housing Administration Debentures, Federal Home Loan
Mortgage Corp. (FHLMC) Debt Obligations, Farm Credit System (formerly: Federal
Land Banks, Federal Intermediate Credit Banks, and Banks for Cooperatives)
Consolidated Systemwide Bonds and Notes, Federal Home Loan Banks (FHL Banks)
Consolidated Debt Obligations, Federal National Mortgage Association (FNMA) Debt
Obligations, Student Loan Marketing Association (SLMA) Debt Obligations;
Financing Corp. (FICO) Debt Obligations, and Resolution Funding Corp. (REFCORP)
Debt Obligations; which such obligations, in either case, if rated, should not
have an "r" highlighter affixed to its rating; interest thereon may accrue at a
fixed or variable rate, but must be tied to a single interest rate index plus a
single fixed spread (if any), and move proportionately with such index; which
obligations, in either case, shall have a predetermined fixed dollar amount of
principal due at maturity that shall not vary or change; and if, in either case,
such obligations may be liquidated prior to their maturity, additional
restrictions may be required by the Rating Agency or Lender, as determined in
their discretion ("Government Securities").
(2) certain federal funds, unsecured certificates of deposit, time
deposits, banker's acceptances and repurchase agreements having maturities of
not more than 365 days issued by any bank, the short-term debt obligations of
which shall have received a rating of at least A-1+ by S&P and such comparable
rating by the Rating Agency; such instrument should not have an "r" highlighter
affixed to its rating and its terms should have a predetermined fixed dollar
amount of principal due at maturity that shall not vary or change; interest on
such instruments may accrue at a fixed or a variable rate, but must be tied to a
single interest rate index plus a single fixed spread (if any), and move
proportionately with such index; and if the investments are permitted to be
liquidated prior to their maturity, additional restrictions may be necessary as
determined by the Rating Agency or Lender, in their discretion;
(3) commercial paper rated not less than A-1+ by S&P and such
comparable rating by the Rating Agency, maturing or redeemable in 365 days or
less; such commercial paper should not have an "r" highlighter affixed to its
rating and by its terms should have a predetermined fixed dollar amount of
principal due at maturity that shall not vary or change; interest on such
commercial paper may accrue at a fixed or variable rate, but must be tied to a
single
interest rate index plus a single fixed spread (if any), and move
proportionately with such index; and if the investments are permitted to be
liquidated prior to their maturity to meet a certain yield, additional
restrictions may be necessary as determined by the Rating Agency or Lender, in
their discretion;
(4) units of taxable money market funds, which funds are regulated
investment companies, seek to maintain a constant net asset value per share and
have either been rated AAAm or AAAm-G by S&P and such comparable rating by the
Rating Agency or have been designated in writing by the Rating Agency as
Eligible Investments with respect to this definition; provided, however, that if
such taxable money market fund is not rated by the Rating Agency, the Rating
Agency confirms in writing that the investment of funds in such taxable money
market fund will not result in the downgrade, withdrawal or qualification of the
ratings then assigned to any class of certificates issued in connection with the
Securitization;
(5) certain deposits that are fully insured by the Federal Deposit
Insurance Corp. (FDIC) with repayment terms that have a predetermined fixed
dollar amount of principal due at maturity that shall not vary or change and if
rated, the deposit should not have an "r" highlighter affixed to its rating;
interest on such deposits may accrue at a fixed or variable rate, but must be
tied to a single interest rate index plus a single fixed spread (if any), and
move proportionately with that index; and if such investments may be liquidated
prior to their maturity to meet a certain yield, additional restrictions may be
necessary as determined by the Rating Agency or Lender, in their discretion;
(6) certain debt obligations maturing in 365 days or less that are
rated AA-or higher by S&P and such other comparable rating by the Rating Agency,
which debt obligations shall not have an "r" highlighter affixed to their rating
and by their terms shall have a predetermined fixed dollar amount of principal
due at maturity that shall not vary or change; interest on such obligations may
accrue at a fixed or variable rate, but must be tied to a single interest rate
index plus a single fixed spread (if any), and move proportionately with such
index; and if such investments may be liquidated prior to their maturity to meet
a certain yield, additional restrictions may be necessary as determined by the
Rating Agency or Lender, in their discretion;
(7) investments in certain short-term debt of issuers rated A-1 by S&P
and such other comparable rating by the Rating Agency may be permitted with the
following restrictions: the total amount of debt from A-1 issuers must be
limited to the investment of monthly principal and interest payments (assuming
fully amortizing collateral), the total amount of A-1 investments should not
represent more than 20% of the rated issue's outstanding principal amount and
each investment shall not mature beyond 30 days; the terms of such debt should
be a predetermined fixed dollar amount of principal due at maturity that shall
not vary or change; interest on such debt may accrue at a fixed or variable
rate, but must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with such index; and if the
investments may be liquidated prior to their maturity, to meet a certain yield,
additional restrictions may be necessary as determined by the Rating Agency or
Lender in their discretion; provided, however, such investments described in
this clause (vii) are not eligible for the Lockbox Account, if applicable;
(8) stripped securities, which are principal-only strips and
interest-only strips of noncallable obligations issued by the U.S. Treasury, and
REFCORP securities stripped by Federal Reserve Bank of New York; and
(9) any other investment selected by Owner and approved by Lender and
which shall not result in a downgrading, withdrawal or qualification of the
then-current rating of securities issued pursuant the Securitization, as
evidenced by a confirmation in writing issued by the Rating Agency;
provided, however, that no instrument or security shall be an Eligible
Investment if such instrument or security (A) evidences either: (i) a right to
receive only interest payments with respect to the obligations underlying such
instrument; or (ii) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity greater than 120% of
the yield to maturity at par of the underlying obligations; or (B) has a
maturity date in excess of 365 days.
"Governmental Authority" shall mean any court, board, agency, commission, office
or authority of any nature whatsoever for any governmental ▇▇▇▇ (▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise) whether now or hereafter in
existence.
"Legal Requirements" shall mean, with respect to each individual Mortgaged
Property, all federal, state, county, municipal and other governmental statutes,
laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions
of Governmental Authorities affecting such individual Mortgaged Property or any
part thereof or the construction, use, alteration or operation thereof, or any
part thereof, whether now or hereafter enacted and in force, and all permits,
licenses and authorizations and regulations relating thereto, and all covenants,
agreements, restrictions and encumbrances contained in any instruments, either
of record or known to Owner, at any time in force affecting such individual
Mortgaged Property or any part thereof, including, without limitation, any which
may (i) require repairs, modifications or alterations in or to such individual
Mortgaged Property or any part thereof, or (ii) in any way limit the use and
enjoyment thereof.
8. CONDEMNATION
(a) Owner shall promptly give Lender written notice of the actual or
threatened commencement of any condemnation or eminent domain proceeding (a
"Condemnation") and shall deliver to Lender copies of any and all papers served
in connection with such proceedings. Lender is hereby irrevocably appointed as
Owner's attorney-in-fact, coupled with an interest, with exclusive power to
collect, receive and retain any award or payment for such Condemnation and to
make any compromise or settlement in connection with such proceeding, subject to
the provisions of this Agreement; provided, however, that Lender shall not
exercise such power of attorney unless and until there occurs an Event of
Default. Notwithstanding any taking by any public or quasi-public authority
through eminent domain or otherwise (including, without limitation, any transfer
made in lieu of or in anticipation of the exercise of such taking), Owner shall
continue to pay the Debt at the time and in the manner provided for in the Note,
the Mortgage, this Agreement, the Assignment, the Environmental Agreement and
the other Loan Documents, and the Debt shall not be reduced until any award or
payment therefor shall have been actually received after expenses of collection
and applied by Lender to the discharge of the Debt. Lender shall not be limited
to the interest paid on the award by the condemning authority but shall be
entitled to receive out of the award interest at the rate or rates provided in
the Note.
(b) If the Mortgaged Property shall be the subject of a Condemnation, in
whole or in part, Borrower shall give prompt notice thereof to Lender.
(i) In the case of a Condemnation, Lender may participate in the
settlement and adjustment of any claim; provided, however, that Owner may
adjust losses aggregating not in excess of $100,000.00 if such adjustment
is carried out in a competent and timely manner, and provided in any case
that Lender shall be, and is hereby, authorized to collect and receipt for
any such Condemnation award or proceeds. The expenses incurred by Lender in
the adjustment and collection of a Condemnation award or proceeds shall
become part of the Debt, shall be secured by the Mortgage and shall be
reimbursed by Borrower to Lender on demand.
(ii) In the event of any Condemnation affecting all or any portion of
the Mortgaged Property the award in respect of which is less than the
Threshold Amount such award shall be paid to Owner for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or the
part thereof subject to the Condemnation, as provided below, and Owner
hereby covenants and agrees forthwith to commence and diligently to
prosecute such restoring, repairing, replacing or rebuilding. In the event
of any Condemnation affecting all or any portion of the Mortgaged Property
the award in respect of which equals or exceeds the Threshold Amount and
the cost of the restoration is less than the Threshold Amount where: (A)
the Condemnation award or proceeds are sufficient to enable Owner to fully
restore the Mortgaged Property (or Owner deposits with Lender any shortfall
or provides evidence that such sums have been paid toward restoration of
the Mortgaged Property); (B) the term of, and proceeds derived from,
Owner's business interruption insurance (or other similar insurance) shall
be sufficient to fully cover the period that the Mortgaged Property is
undergoing restoration (or Owner deposits with Lender any shortfall or
provides evidence that such sums have been paid toward the operation of the
Mortgaged Property); (C) Lender determines that the restoration is
reasonably capable of being completed, at least 12 months prior to the
Maturity Date; (D) the Loan-to-Value Ratio upon completion of restoration
is estimated, by an appraiser acceptable to Lender, to be no greater than
.65:1.0; (E) the Franchise Agreement has not been, and cannot be,
terminated as a result of the Condemnation; (F) the restoration can be
completed within 12 months from the date that the Condemnation occurred, or
within such shorter time period as may be required by the Franchise
Agreement and shall be completed in accordance with all applicable federal,
state and local laws; (G) the restoration is permitted or required under
the Franchise Agreement; (H) the Aggregate Debt Service Coverage Ratio upon
completion is reasonably anticipated to be at least equal to the greater of
(1) 1.42:1.0 and (2) the Aggregate Debt Service Coverage Ratio in effect
immediately prior to the date of the condemnation; (I) Owner shall commence
the Restoration as soon as reasonably practicable (but in no event later
than forty-five (45) days after such damage or destruction occurs) and
shall diligently pursue the same to satisfactory completion; (J) the
Mortgaged Property and the use thereof after the Restoration will be in
compliance with all applicable zoning laws, ordinances, rules and
regulations; and (K) less than 25% of the land constituting the Mortgaged
Property is taken, then, if no Event of Default shall have occurred and be
continuing, the Condemnation award or proceeds shall be paid to Owner for
the cost of restoring, repairing, replacing or rebuilding the Mortgaged
Property or the part thereof subject to the Condemnation, as provided for
below; and Owner hereby covenants and agrees forthwith to commence and
diligently to prosecute such restoring, repairing, replacing or rebuilding.
NOI for purposes of this calculation shall be NOI for the 12 calendar month
period immediately preceding the Condemnation, unless the appraiser
referenced in clause (D) above estimates that NOI after the restoration
will be more than ten (10%) percent less than NOI for such 12 calendar
month period, in which case the
Aggregate Debt Service Coverage Ratio shall be calculated using the
appraiser's estimate of NOI.
(iii) Except as provided above, the award or proceeds collected upon
any Condemnation shall, at the option of Lender in its sole discretion, be
applied to the payment of the Debt or paid to Owner for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or the
part thereof subject to the Condemnation in the manner set forth below. In
no case shall any such application reduce or postpone any payments
otherwise required pursuant to the Note, other than the final payment on
the Note.
(iv) In the event that a Condemnation award or proceeds, if any, shall
be made available to Owner for the restoring, repairing, replacing or
rebuilding of the Mortgaged Property, Owner hereby covenants to restore,
repair, replace or rebuild the Mortgaged Property to be of at least equal
value and of substantially the same character as prior to such
Condemnation, all to be effected in accordance with applicable law and
plans and specifications approved in advance by Lender; provided, however,
that Owner shall pay all costs (and if required by Lender, shall deposit
the total thereof with Lender in advance) of such restoring, repairing,
replacing or rebuilding in excess of the net award or proceeds made
available pursuant to the terms hereof. The net condemnation awards held by
Lender shall be invested in Eligible Investments as directed by Owner
consistent with the completion of the restoration until disbursed in
accordance with this Section 8.
(v) In the event Owner is entitled to proceeds held by Lender, such
proceeds shall be disbursed from time to time upon Lender being furnished
with: (A) evidence satisfactory to it of the estimated cost of completion
of the restoration, repair, replacement and rebuilding; (B) funds, or, at
Lender's option, assurances satisfactory to Lender that such funds are
available, sufficient in addition to the Condemnation award or proceeds to
complete the proposed restoration, repair, replacement and rebuilding; and
(C) such architect's certificates, waivers of lien for work previously
performed or contemporaneously funded, contractor's sworn statements, title
insurance endorsements, bonds, plats of survey and such other evidences of
cost, payment and performance as Lender may reasonably require and approve.
Lender may, in any event, require that all plans and specifications for
such restoration, repair, replacement and rebuilding be submitted to and
approved by Lender prior to commencement of work (which approval shall not
be unreasonably withheld). No payment made prior to the final completion of
the restoration, repair, replacement and rebuilding shall exceed ninety
(90%) percent of the value of the work performed from time to time. Funds
other than the Condemnation award or proceeds shall be disbursed prior to
disbursement of such proceeds, and at all times the undisbursed balance of
such proceeds remaining in Lender's possession, together with funds
deposited for that purpose or irrevocably committed to the satisfaction of
Lender by or on behalf of Owner for that purpose, shall be at least
sufficient in the reasonable judgment of Lender to pay for the cost of
completion of the restoration, repair, replacement or rebuilding, free and
clear of all liens and claims of lien. Any surplus which may remain out of
a Condemnation award or proceeds held by Lender after payment of such costs
of restoration, repair, replacement or rebuilding shall be delivered to
Owner, provided such restoration was performed in accordance with the
provisions of this Section, and Owner is not then in default of its
obligations under the Loan Documents.
(vi) Notwithstanding anything to the contrary herein, the application
of any
condemnation award as set forth in this Subsection 8(b) shall be subject to
the terms of any applicable Ground Lease.
9. LEASES AND RENTS
(a) In connection with the Loan, Owner has absolutely and unconditionally
assigned to Lender all of Owner's right, title and interest in all current and
future Leases and Rents, it being intended by Borrower that such assignment
constitutes a present, absolute assignment and not an assignment for additional
security only. Such assignment to Lender shall not be construed to bind Lender
to the performance of any of the covenants, conditions or provisions contained
in any such Lease or otherwise to impose any obligation upon Lender. Owner shall
execute and deliver to Lender such additional instruments, in form and substance
reasonably satisfactory to Lender, as may hereafter be requested by Lender to
further evidence and confirm such assignment. Nevertheless, subject to the terms
of this Section, Lender has granted to Owner a revocable license to operate and
manage the Mortgaged Property and to collect the Rents and the Accounts
Receivable. Owner shall hold the Rents and the Accounts Receivable, or a portion
thereof sufficient to discharge all current sums due on the Debt, in trust for
the benefit of Lender for use in the payment of such sums. Upon the occurrence
of an Event of Default, the license granted to Owner shall automatically be
revoked, and Lender shall immediately be entitled to possession of all Rents and
the Accounts Receivable, whether or not Lender enters upon or takes control of
the Mortgaged Property. Lender is hereby granted and assigned by Owner the
right, at its option, upon revocation of the license granted herein, to enter
upon the Mortgaged Property in person, by agent or by court-appointed receiver
to collect the Rents and the Accounts Receivable. Any Rents and the Accounts
Receivable collected after revocation of the license may be applied toward
payment of the Debt in such priority and proportions as Lender in its discretion
shall deem appropriate.
(b) Owner shall furnish Lender with executed copies of all Leases for space
in excess of 1,000 square feet at any hotel comprising the Mortgaged Property.
All renewals of Leases and all proposed Leases shall provide for rental rates
comparable to existing local market rates and shall be arms-length transactions.
All proposed Leases shall be subject to the prior approval of Lender except that
proposed Leases which: (i) are for less than 1,000 square feet in the aggregate
at each hotel comprising the Mortgaged Property; (ii) are the result of an
arms-length transaction with a bona fide, independent third-party; (iii) provide
for rental rates comparable to existing market rates; and (iv) do not contain
any terms which would materially affect Lender's rights under the Note, the
Mortgage, this Agreement, the Assignment, the Environmental Agreement or the
other Loan Documents, shall not be subject to the prior approval of Lender. All
Leases, except for the Ground Leases, shall provide that they are subordinate to
the Mortgage and that the lessee agrees to attorn to Lender. Owner shall: (A)
observe and perform in all material respects all the obligations imposed upon
the lessor under the Leases (except with respect to the Ground Leases, it shall
observe and perform all of the obligations imposed upon lessee) and shall not do
or permit to be done anything to impair the value of the Leases as security for
the Debt; (B) promptly send to Lender copies of all notices of default which
Owner shall send or receive thereunder; (C) enforce all of the terms, covenants
and conditions contained in the Lease on the part of the lessee thereunder to be
observed or performed, short of termination thereof, excluding the Ground Lease
(which shall not be effected without prior notice to Lender and otherwise in
accordance with the terms hereof or of the Assignment); (D) not collect any
Rents more than one month in advance, except as may be permitted in the
Assignment (and with respect to any Ground Lease, it shall pay all Ground Rent
to be paid by Owner as tenant pursuant to the terms of the Ground Lease); (E)
not execute any
other assignment of the lessor's interest in the Leases or Rents; (F) other than
de minimis non-financial amendments, not alter, modify or change the terms of
the Leases without the prior written consent of Lender (which consent shall not
be unreasonably withheld), or, except if a lessee is in default, cancel or
terminate the Leases or accept a surrender thereof or convey or transfer or
suffer or permit a conveyance or transfer of the Mortgaged Property or of any
interest therein so as to effect a merger of the estates and rights of, or a
termination or diminution of the obligations of, lessees thereunder; provided,
however, that any Lease may be canceled if at the time of the cancellation
thereof a new Lease is entered into with a bona fide, independent third-party on
substantially the same terms or more favorable terms as the canceled Lease; (G)
not alter, modify or change the terms of any guaranty of the Leases or cancel or
terminate such guaranty without the prior written consent of Lender; (H) not
consent to any assignment of or subletting under the Leases not in accordance
with their terms (or with respect to the Ground Lease, assign or sublet its
interest thereunder), without the prior written consent of Lender; and (I)
execute and deliver at the request of Lender all such further assurances,
confirmations and assignments in connection with the Mortgaged Property as
Lender shall from time to time request. Notwithstanding anything to the contrary
contained in subsection (b) of this Section, the provisions of clauses (B), (C),
(F), (G) and (H) of this subsection (b) shall not apply to any Lease the
rentable square footage of which is for less than 1,000 square feet (a "Material
Lease").
(c) All security deposits of lessees in excess $5,000.00, whether held in
cash or any other form, shall not be commingled with any other funds of Owner
and, if cash, shall be deposited by Owner at such commercial or savings bank or
banks as may be reasonably satisfactory to Lender. Any bond or other instrument
which Owner is permitted to hold in lieu of cash security deposits under any
applicable legal requirements shall be maintained in full force and effect
unless replaced by cash deposits as hereinabove described, shall be issued by an
institution reasonably satisfactory to Lender, shall, if permitted pursuant to
any legal requirements, name Lender as payee or mortgagee thereunder (or at
Lender's option, be fully assignable to Lender) and shall, in all respects,
comply with any applicable legal requirements and otherwise be reasonably
satisfactory to Lender. Owner shall, upon request, provide Lender with evidence
reasonably satisfactory to Lender of Owner's compliance with the foregoing.
Following the occurrence and during the continuance of any Event of Default,
Owner shall, upon Lender's request, if permitted by any applicable legal
requirements, turn over to Lender the security deposits (and any interest
theretofore earned thereon) with respect to all or any portion of the Mortgaged
Property, to be held by Lender subject to the terms of the Leases.
10. REPRESENTATIONS CONCERNING LOAN
Owner represents, warrants and covenants as follows:
(a) The Note, the Mortgage, this Agreement, the Assignment, the
Environmental Agreement and the other Loan Documents are the legal, valid and
binding obligations of Owner, and are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor would the
operation of any of the terms of the Note, the Mortgage, this Agreement, the
Assignment, the Environmental Agreement and the other Loan Documents, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury.
(b) To the best of Owner's knowledge after due inquiry, all certifications,
permits, licenses and approvals required for the legal use, occupancy and
operation of the Mortgaged Property as a hotel including, without limitation,
any applicable liquor license, certificate of completion and occupancy permit,
have been or will be obtained and are in full force and effect. The Mortgaged
Property is free of material damage and is in good repair, and there is no
proceeding pending or, to the best of Owner's knowledge, threatened for the
total or partial condemnation of, or affecting, the Mortgaged Property.
(c) Except as shown on the surveys furnished to Lender in connection with
the Loan, all of the Improvements which were considered in determining the
appraised value of the Mortgaged Property lie wholly within the boundaries and
building restriction lines of the Mortgaged Property, no improvements on
adjoining properties encroach upon the Mortgaged Property, and no easements or
other encumbrances upon the Premises encroach upon any of the Improvements, so
as to affect the value or marketability of the Mortgaged Property. The Mortgaged
Property is contiguous to and has access to a physically and legally open
all-weather public street, has all necessary permits and approvals for ingress
and egress, is adequately serviced by public water, sewer systems and utilities
and is on one or more separate tax parcels, all of which are separate and apart
from any other property owned by Owner or any other person. The Mortgaged
Property has all necessary access by public roads or easements which in each
case are not terminable and are not subordinate to any mortgage other than the
Mortgage. To the best of Owner's knowledge after due inquiry, all of the
Improvements comply with all requirements of applicable building codes, zoning
and subdivision laws and ordinances.
(d) To the best of Owner's knowledge after due inquiry, the Mortgaged
Property is not subject to any leases, licenses or other use or occupancy
agreements other than the Leases described in the rent roll delivered to Lender
in connection with this Agreement. No person has any possessory interest in the
Mortgaged Property or right to occupy any portion thereof except under and
pursuant to the provisions of the Leases or transient hotel guests in the
ordinary course of Owner's business.
(e) To the best of Owner's knowledge after due inquiry, the surveys of the
Mortgaged Property delivered to Lender in connection with this Agreement have
been performed by duly licensed surveyors or registered professional engineers
in the jurisdictions in which the Mortgaged Property are situated, and to the
best of Owner's knowledge after due inquiry, does not fail to reflect any
material matter affecting the Mortgaged Property or the title thereto.
(f) The financial statements, capital budgets, operating budgets and other
financial information (the "Financial Documents") heretofore furnished to Lender
are, as of the date specified therein, complete and correct in all material
respects and fairly present the financial condition of Owner, and are prepared
in accordance with the Uniform Systems of Accounts, consistently applied. Owner
does not have on the date hereof any contingent liabilities, liabilities for
taxes, unusual forward or long-term commitments or unrealized or anticipated
losses from any unfavorable commitments which in each case are known to Owner
and which, in Owner's opinion, are reasonably likely to result in a material
adverse effect on the Mortgaged Property or the operation thereof as a hotel,
except as referred to or reflected or provided for in the Financial Documents
heretofore furnished to Lender or as otherwise disclosed to Lender herein. Since
the last date of such Financial Documents, there has been no material adverse
change in the financial
condition, operations or business of Owner from that set forth in such financial
statements as of the dates thereof.
(g) The Franchise Agreement is in full force and effect and there is no
default, breach or violation existing thereunder by any party thereto and no
event (other than payments due but not yet delinquent) which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a default, breach or violation by any party thereunder.
(h) The Management Agreement is in full force and effect and there is no
default, breach or violation existing thereunder by any party thereto and no
event (other than payments due but not yet delinquent) which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a default, breach or violation by any party thereunder.
(i) Neither the execution and delivery of the Loan Documents, Owner's
performance thereunder, the recordation of the Mortgage, nor the exercise of any
remedies by Lender, will violate or conflict with the terms of (A) the Franchise
Agreement or the Management Agreement, (B) the licenses, registrations, permits,
certificates, authorizations and approvals necessary for the operation of the
Mortgaged Property as a hotel, (C) the provisions of any law, any order or
judgment of any court or governmental authority and (D) the articles of
incorporation, by-laws, partnership or trust agreement, articles of
organization, operating agreement, or other governing instrument of Owner.
(j) The current Leases are in full force and effect, there are no defaults
by Owner and to the best of Owner's knowledge, after due inquiry the tenant
thereunder, there are no conditions which with the passage of time and/or notice
would constitute defaults thereunder, there are no offsets or defenses under the
Leases, no Lease contains an option to purchase (other than in favor of the
Owner), right of first refusal or purchase or any similar provision, each Lease
(other than the Ground Lease) is subordinate to the lien of the Mortgage, none
of the Rents have been collected more than one (1) month in advance (except that
with respect to the Ground Lease, it has paid all Ground Rents and other sums
required to be paid by Owner under the Ground Lease), all security deposits
relating to the Leases reflected on the certified rent roll delivered to Lender
have been collected by Owner and all of the terms of the alterations,
modifications and amendments to the Leases are reflected in the certified
occupancy statement delivered to and approved by Lender.
(k) If requested by Lender from time to time, Owner shall cooperate with
Lender and permit Lender to obtain, at Lender's sole cost and expense, a current
MAI appraisal of the Mortgaged Property.
(l) Owner owns adequate Collateral, including, personal property, Licenses
(defined below) and Food and Beverage Inventory (defined below)) to maintain and
operate the Mortgaged Property as a hotel in accordance with the standards of
this Loan Agreement, the Management Agreement, and, the Franchise Agreement. The
Collateral is not subject to any liens, leases or financing arrangements other
than as previously approved by Lender and as otherwise set forth in Section 13
hereof. "Food and Beverage Inventory" shall mean food and beverages (including
liquor), utensils and china stored at the hotel on the Mortgaged Property for
service to hotel guests. "Licenses" shall mean all material franchises,
trademarks, tradenames, copyrights, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
the Mortgaged
Property and its business as presently conducted, including without limitation,
liquor licenses, as applicable.
(m) There is no action, suit or proceeding, judicial, administrative or
otherwise (including any condemnation or similar proceeding), pending or, to the
best of Owner's knowledge, threatened or contemplated against, or affecting,
Owner or the Mortgaged Property other than those, if adversely determined, would
have no Material Adverse Effect.
(n) Each of the Mortgaged Properties is assessed for real estate tax
purposes as one or more wholly independent tax lot or lots, separate from any
adjoining land or improvements not constituting a part of such lot or lots, and
no other land or improvements is assessed and taxed together with the Mortgaged
Property or any portion thereof.
(o) (i)(A) Owner is solvent, and no bankruptcy, reorganization, insolvency
or similar proceeding under any state or federal law with respect to Owner has
been initiated, and (B) Borrower has received reasonably equivalent value for
the granting of the Mortgage.
(ii) Except as referenced in the substantive non-consolidation opinion
delivered in connection with the Loan, no petition in bankruptcy has ever been
filed by or against Owner, any Guarantor, any indemnitor or any related entity,
or any principal, general partner or member thereof, in the last seven (7)
years, and neither Owner, any Guarantor, any indemnitor nor any related entity,
or any principal, general partner or member thereof, in the last seven (7) years
has ever made any assignment for the benefit of creditors or taken advantage of
any insolvency act or any act for the benefit of debtors.
(p) Except as otherwise disclosed to Lender in writing, Owner, any
Guarantor and any indemnitor have filed all federal, state, county, municipal,
and city income and other tax returns required to have been filed by them and
have paid all taxes and related liabilities which have become due pursuant to
such returns or pursuant to any assessments received by them. Neither Owner, any
Guarantor nor any indemnitor knows of any basis for any additional assessment in
respect of any such taxes and related liabilities for prior years.
(q) Owner has disclosed to Lender all material facts and has not failed to
disclose any material fact that could cause any representation or warranty made
herein to be materially misleading.
(r) No portion of the Mortgaged Property has been or will be purchased,
improved, equipped or furnished with proceeds of any illegal activity and to the
best of Owner's knowledge, there are no illegal activities or activities
relating to any controlled substance at the Mortgaged Property.
(s) As of the date hereof , each Owner's respective principal place of
business is the address of the hotel property owned by such Owner, as set forth
on Schedule A attached.
(t) (i) As of the date hereof and throughout the term of this Mortgage, (A)
Borrower is not and will not be an "employee benefit plan" as defined in Section
3(3) of ERISA, which is subject to Title I of ERISA, and (B) the assets of
Borrower do not and will not constitute "plan assets" of one or more such plans
for purposes of Title I of ERISA;
(ii) As of the date hereof and throughout the term of this Mortgage
(A) Owner is not and will not be a "governmental plan" within the meaning of
Section 3(32) of ERISA and (B) transactions by or with Owner are not and will
not be subject to state statutes applicable to Owner regulating investments of
and fiduciary obligations with respect to governmental plans;
(iii) No accumulated funding deficiency (as defined in Section 412 of
the Code or Section 302 of ERISA) or failure to make required contributions or
reportable event within the meaning of section 4043(c) of ERISA (the reporting
of which has not been waived by the Pension Benefit Guaranty Corporation
("PBGC")) has occurred with respect to any plan within the meaning of section
3(3) of ERISA ("Plan") as to which Owner or any member of its ERISA Controlled
Group has or may have any obligation or liability, direct or indirect. To the
best knowledge of Owner and its ERISA Controlled Group, no Plan which is a
Multiemployer Plan within the meaning of Section 4001(a)(3) of ERISA
("Multiemployer Plan") is or is likely to be in reorganization (within the
meaning of Section 424 of ERISA or Section 418 of the Code) or is insolvent (as
defined in Section 4245 of ERISA). No lien under Section 412(n) of the Code or
302(f) of ERISA or requirement to provide security under Section 401(a)(29) of
the Code or Section 307 of ERISA has been or is reasonably expected by Owner or
any member of its ERISA Controlled Group to be imposed on the assets of Owner or
any member of its ERISA Controlled Group. Owner and each member of its ERISA
Controlled Group have complied in all material respects with the requirements of
ERISA and the Code and plan documents for each Plan and any other applicable
federal or state law with respect to Plans and are not in default (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan;
(iv) Neither Owner nor any member of its ERISA Controlled Group, with
respect to any Plan, is subject to any present or potential liability or
withdrawal liability or annual withdrawal liability payments. No liability to
the PBGC (other than required premium payments), the Internal Revenue Service,
any Plan or any trust established under Title IV of ERISA has been, or is
expected by Owner or any member of its ERISA Controlled Group to be, incurred by
Owner, or any member of its ERISA Controlled Group. As of the Closing Date,
there are no Unfunded Benefit Liabilities. Owner does not have any contingent
liability with respect to any post-retirement benefit under any "welfare plan"
(as defined in Section 3(1) of ERISA) or exit fee or withdrawal fee for a
multiple employer welfare plan, other than liability to make available
continuation coverage under Part 6 of Title I of ERISA to be paid for solely by
covered individuals. Owner has not engaged in any transaction prohibited by
Section 406 of ERISA or Section 4975 of the Code for which there is no statutory
or regulatory exemption. Representations and warranties in this section 10(t)
shall be deemed to be breached only if one or more representations or warranties
is untrue or incorrect and, either individually or in the aggregate, this could
reasonably be expected to result in a material adverse effect to Owner. For
purposes of Sections 11(a)(xvi) and 40 and this section 10(t), material adverse
effect shall mean any condition which has a material adverse effect upon (i) the
business, operations, properties, assets, corporate structure or financial
condition of Owner or (ii) the validity or enforceability of, or the ability of
the Owner to meet any obligations under, any of the Note, this Mortgage or any
of the other Loan Documents; and
(v) For purposes of this Mortgage, "ERISA Controlled Group" means any
corporation or entity or trade or business or person that is a member of any
group described in Section 414(b), (c), (m) or (o) of the Code of which Owner is
a member; provided, that for purposes of Title IV of ERISA such term shall only
include Sections 414(b) and (c) of the Code, and "Unfunded Benefit Liabilities"
means, with respect to any Plan at any time, the amount (if any) by which (1)
the present value of all benefit liabilities under a plan as defined in Section
4001(a)(16) of ERISA, exceeds (2) the fair market value of all plan assets
allocable to such benefits, all
determined as of the then most recent valuation date for such Plan (on the basis
of assumptions prescribed by the PBGC for the purpose of Section 4044 of ERISA).
(u) None of the Permitted Exceptions, individually or in the aggregate,
materially interfere with the benefits of the security intended to be provided
by the Mortgage, the Loan Agreement and the other Loan Documents, materially and
adversely affect the value of the Mortgaged Property, impair the use or the
operation of the Mortgaged Property or impair Owner's ability to pay its
obligations in a timely manner.
(v) All material contracts, agreements, consents, waivers, documents and
writings of every kind or character, including, without limitation, the
Management Agreement, if any, at any time to which Owner is a party to be
delivered to Lender pursuant to any of the provisions of this Agreement are
valid and enforceable against Owner and, to the best knowledge of Owner, are
enforceable against all other parties thereto, and, to Owner's actual knowledge,
in all respects are what they purport to be and, to the best knowledge of Owner,
to the extent that any such writing shall impose any obligation or duty on the
party thereto or constitute a waiver of any rights which any such party might
otherwise have, said writing shall be valid and enforceable against said party
in accordance with its terms, except as such enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally or (ii) general principles of equity.
(w) Owner is not (a) an "investment company" or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended, (b) a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of either a "holding company" or a
"subsidiary company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or (c) subject to any other federal or state law or
regulation that purports to restrict or regulate its ability to borrow money.
(x) Any reprogramming required to permit the proper functioning, in and
following the year 2000, of (i) the Owner's computer systems and (ii) equipment
containing embedded microchips (including systems and equipment supplied by
others or with which Owner's systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by July 1, 1999.
The cost to the Owner of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Owner (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in an Event of Default. Except for such of the
reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Owner are and, with ordinary
course upgrading and maintenance, will continue for the term of the Loan to be,
sufficient to permit the Owner to conduct its business without material adverse
effect.
(y) Attached hereto as Schedule G is a full and complete list of all
properties previously owned by AMI Operating Partners L.P. (other than the
Mortgaged Property) which have been previously or shall be simultaneously
herewith conveyed to entities other than each of the entities compromising the
Owner.
(z) Attached hereto as Schedule H is a list of all of the Mortgaged
Properties subject to Property Improvement Plans ("PIP's") by the Franchisors.
Owner represents and warrants that it is not in default under any PIP and such
PIP's shall be completed on or before the completion dates set forth in the
applicable PIP.
11. SINGLE PURPOSE ENTITY; AUTHORIZATION
(a) Owner covenants and agrees that it has not and shall not and agrees
that its general partner(s), or managing member(s), as the case may be (each, a
"Principal") shall not:
(i) with respect to each Owner, engage in any business or activity
other than the ownership, leasing, operation, use and maintenance of the
applicable Mortgaged Property, if any, and activities incidental thereto,
and with respect to each Principal, engage in any business or activity
other than the ownership of its interest in Owner and such activities as
are directly related to its acting as the Principal of Owner;
(ii) with respect to Owner, acquire or own any material assets other
than (A) the Mortgaged Property, if any, and (B) such incidental Personal
Property as may be necessary for or related to the operation of the
Mortgaged Property, if any, and with respect to each Principal, acquire or
own any material assets other than its ownership interest in the applicable
Owner and such incidental Personal Property as may be necessary in
connection therewith;
(iii) merge into or consolidate with any person or entity or dissolve,
terminate or liquidate in whole or in part, transfer or otherwise dispose
of all or substantially all of its assets or change its legal structure,
without in each case Lender's consent;
(iv) fail to preserve its existence as an entity duly organized,
validly existing and in good standing (if applicable) under the laws of the
jurisdiction of its organization or formation, or without the prior written
consent of Lender, (A) amend, modify, terminate or fail to comply with the
provisions of Owner's partnership agreement, articles or certificate of
incorporation, certificate of organization, operating agreement or similar
organizational documents, as the case may be, or of Principal's partnership
agreement, articles or certificate of incorporation, certificate of
organization, operating agreement or similar organizational documents, as
the case may be, whichever is applicable or (B) violate the assumptions
contained in that certain non-consolidation opinion dated the date hereof
and delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A.
to Lender and the Rating Agencies;
(v) own any subsidiary or make any investment in, any person or entity
without the consent of Lender;
(vi) except as set forth in Section 66(a)(i) hereof, commingle its
assets with the assets of any of its general partners, managing members,
affiliates, principals or of any other person or entity;
(vii) With respect to Owner, incur any debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation), other than
the Debt and the Permitted FF&E Financing except in the ordinary course of
its business of
owning and operating the applicable Mortgaged Property, if any, provided
that such debt (A) is paid within 60 days of the date it is incurred, (B)
does not exceed four percent (4%) of the Allocated Loan Amount with respect
to each individual Mortgaged Property; and (C) is not evidenced by a note,
and with respect to the Principal, incur any debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation) except the
obligations contained in the Guaranty;
(viii) become insolvent or fail to pay its debts and liabilities from
its assets as the same shall become due, other than such debts and
liabilities that Owner is contesting pursuant to and in accordance with the
provisions of Section 32;
(ix) fail to maintain its records, books of account and bank accounts
separate and apart from those of the partners, members, principals and
affiliates of Owner or of Principal, as the case may be, the affiliates of
a general partner or managing member of Owner or of Principal, as the case
may be, and any other person or entity;
(x) enter into any contract or agreement with any partner, member,
principal or affiliate of Owner or of Principal, as the case may be, any
partner, member, principal or affiliate thereof (other than the Management
Agreement), except upon terms and conditions that are intrinsically fair
and substantially similar to those that would be available on an
arms-length basis with third parties other than any partner, member,
principal or affiliate of Owner or of Principal, as the case may be, or any
partner, member, principal or affiliate thereof;
(xi) seek the dissolution or winding up in whole, or in part, of Owner
or of Principal, as the case may be;
(xii) fail to correct any known misunderstandings regarding the
separate identity of Owner or Principal, as the case may be, or any
partner, member, principal or affiliate thereof;
(xiii) hold itself out to be responsible for the debts of another
person;
(xiv) make any loans or advances to any third party, including any
partner, member, principal or affiliate of Owner or of Principal, as the
case may be, or any partner, member, principal or affiliate thereof;
(xv) fail to file its own tax returns except where combined or
consolidated returns are permitted or required by Applicable Law provided
that such combined or consolidated returns shall provide that such entities
are separate legal entities and pay their respective proportionate share of
the taxes shown on such returns;
(xvi) agree to, enter into or consummate any transaction which would
render Owner or Principal, as the case may be, unable to furnish the
certification or other evidence referred to in Section 40 hereof;
(xvii) fail either to hold itself out to the public as a legal entity
separate
and distinct from any other entity or person or to conduct its business
solely in its own name in order not (A) to mislead others as to the
identity with which such other party is transacting business, or (B) to
suggest that Owner or Principal, as the case may be, is responsible for the
debts of any third party (including any partner, member, principal or
affiliate of Owner or of Principal, as the case may be, or any partner,
member, principal or affiliate thereof);
(xviii) reduce its capital below an amount which is adequate for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
(xix) file or consent to the filing of any petition, either voluntary
or involuntary, to take advantage of any applicable insolvency, bankruptcy,
liquidation or reorganization statute, or make an assignment for the
benefit of creditors;
(xx) share any common logo with or hold itself out as or be designated
as a department or division of (A) any partner, member, principal or
affiliate of Owner or of Principal, as the case may be, (B) any affiliate
of a partner or member of Borrower or of Principal, as the case may be, or
(C) any other person or entity;
(xxi) with respect to Owner, if Owner is a corporation, or Principal,
if Owner is a partnership or limited liability company, fail at any time to
have at least one independent director that is not and has not been for at
least five (5) years a director, officer, employee, shareholder or a trade
creditor who derives more than 10% of its gross revenues from the Persons
referred to in (A)-(D) below (or spouse, parent, sibling or child of the
foregoing) of (A) Owner, (B) Principal, (C) any partner, member, principal
or affiliate of Owner or of Principal, or (D) any affiliate of any partner
or member of Owner or of Principal, in each case, other than with respect
to such Person's services as an independent director of Owner or of
Principal, as the case may be, and such Person's service as an Independent
Director for affiliates of Owner or Principal as applicable;
(xxii) with respect to Owner, if Owner is a corporation or Principal,
if Owner is a partnership or limited liability company, cause or allow the
board of directors of Owner or Principal, as the case may be, to take any
action requiring the unanimous affirmative vote of 100% of the members of
the board of directors unless an independent director shall have
participated in such vote; or
(xxiii) file, without the unanimous consent of all of the partners,
directors or members, as applicable, a bankruptcy or insolvency petition or
otherwise institute insolvency proceedings with respect to itself or to any
other entity in which it has a direct or indirect legal or beneficial
ownership interest.
(b) If Owner or Principal is a partnership, (1) its partnership agreement
must provide that the partnership will only dissolve upon the withdrawal,
dissolution or bankruptcy of the last remaining general partner or the
occurrence of any other event that causes the last general partner to cease to
be a general partner of the partnership, but the partnership will not be
dissolved if all of the remaining partners, within ninety (90) days, elect to
continue the partnership and appoint a new general partner, (2) at least one of
its
general partners must at all times be a single purpose entity as described in
Subsection 11(a), (3) its partnership agreement must provide that the
dissolution and winding up or insolvency filing of such partnership requires the
unanimous consent of all general partners, and its partnership agreement must
include provisions substantially similar to those contained in Subsection 11(a).
If Owner or Principal is a limited liability company, (i) its certificate of
organization, operating agreement and other organizational documents must
provide that the limited liability company will only dissolve upon the
withdrawal, dissolution or bankruptcy of the last remaining managing member, but
the limited liability company will not be dissolved if the personal
representative of the last remaining member within ninety (90) days, elects to
continue the limited liability company and appoint a new managing member, and if
such personal representative fails to elect to continue the limited liability
company, the consent of the Investors (defined below) in the Securities (defined
below) shall be required prior to the liquidation of any assets of the limited
liability company, (ii) at least one of its managing members must at all times
be a single purpose entity as described in Subsection 11(a), (iii) its
certificate of organization, operating agreement and other organizational
documents must provide that the dissolution and winding up or insolvency filing
of such limited liability company requires the unanimous consent of all members,
and (iv) its certificate of organization, operating agreement and other
organizational documents must include provisions substantially similar to those
contained in Subsection 11(a). If Owner or Principal is a corporation, such
entity's articles of incorporation must include provisions substantially similar
to those contained in this Subsection 11(a). Any other entity seeking to qualify
as a single purpose entity as described in this Subsection 11(a) shall have
adopted provisions in its governing documents that are substantially similar to
the provisions contained in this Section 11 and described above for partnerships
and corporations.
12. MAINTENANCE OF MORTGAGED PROPERTY
Owner shall cause the Mortgaged Property to be maintained in a good and
safe condition and repair. The Improvements and the Equipment shall not be
removed, demolished or materially altered (except for normal replacement of the
Equipment). Owner shall promptly comply with all laws, orders and ordinances
affecting the Mortgaged Property, or the use thereof, except breaches or
violations which, individually or in the aggregate, shall not cause a material
adverse effect on (i) the Mortgaged Property, (ii) the business, profits,
prospects, management, operations or condition (financial or otherwise) of
Owner, (iii) the enforceability, validity, perfection or priority of the lien of
the Loan Documents, or (iv) the ability of the Owner to perform its obligations
under the Loan Documents. Owner shall promptly repair, replace or rebuild any
part of the Mortgaged Property which may be destroyed by any casualty, or become
damaged, worn or dilapidated, or which may be affected by any proceeding of the
character referred to in Section 8 hereof, and shall complete and pay for any
structure at any time in the process of construction or repair on the Mortgaged
Property; provided, however, that if Lender exercises its right to apply
insurance proceeds other than for repair and restoration, Owner shall have no
independent obligation to fund the cost thereof or to make such repair or
restoration. Except as expressly permitted in writing by Lender, Owner shall not
initiate, join in, acquiesce in, or consent to any change in any private
restrictive covenant, zoning law or other public or private restriction limiting
or defining the uses which may be made of the Mortgaged Property or any part
thereof. If under applicable zoning provisions the use of all or any portion of
the Mortgaged Property is or shall become a nonconforming use, Owner will not
cause or permit such nonconforming use to be discontinued or abandoned without
the prior written consent of Lender. Owner shall not: (a) change the use of the
Mortgaged Property as currently configured and utilized; (b) permit or suffer to
occur any waste on or to the Mortgaged Property or to any portion thereof; or
(c) take any steps whatsoever to convert the Mortgaged Property, or any portion
thereof, to a condominium or cooperative form of ownership. Notwithstanding
anything to the contrary herein, this Section 12 shall be subject to the terms
of any Ground Lease.
13. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY
(a) Owner acknowledges that Lender has examined and relied on the
creditworthiness and experience of Owner and its general partners, principals
and (if Owner is a trust) beneficial owners in owning and operating properties
such as the Mortgaged Property in agreeing to make the loan secured by the
Mortgage, and that Lender will continue to rely on Owner's ownership of the
Mortgaged Property as a means of maintaining the value of the Mortgaged Property
as security for repayment of the Debt. Owner acknowledges that Lender has a
valid interest in maintaining the value of the Mortgaged Property so as to
ensure that, should Owner default in the repayment of the Debt, Lender can
recover the Debt by a sale of the Mortgaged Property. Except as permitted in
Section 61 hereof or otherwise in accordance with the terms of the Loan
Documents, Owner shall not, without the prior written consent of Lender, sell,
convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged
Property or any part thereof, or permit the Mortgaged Property or any part
thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or
otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer within the meaning of this Section shall be deemed to include: (i) an
installment sales agreement wherein Owner agrees to sell the Mortgaged Property
or any part thereof for a price to be paid in installments; (ii) an agreement by
Owner leasing all or a substantial part of the Mortgaged Property for other than
actual occupancy by a space tenant thereunder or a sale, assignment or other
transfer of, or the grant of a security interest in, Owner's right, title and
interest in and to any Leases or any Rents; (iii) if Owner, any Guarantor, or
any general partner of Owner or any Guarantor is a corporation, the voluntary or
involuntary sale, conveyance, pledge or transfer of such corporation's stock (or
the stock of any such corporation directly or indirectly controlling such
corporation by operation of law or otherwise) or the creation or issuance of new
voting stock in one or a series of transactions, where such shares of stock are
not held by parties who are currently shareholders in the same manner and
proportion as such parties currently hold shareholder interests; (iv) if Owner,
any Guarantor or any indemnitor or any general or limited partner or member of
Owner, any Guarantor or any indemnitor is a limited or general partnership or
joint venture, the change, removal or resignation of a general partner or
managing partner or the transfer or pledge of the partnership interest of any
general partner or managing partner or any profits or proceeds relating to such
partnership interest or the voluntary or involuntary sale, conveyance, transfer
or pledge of limited partnership interests (or the limited partnership interests
of any limited partnership directly or indirectly controlling such limited
partnership by operation of law or otherwise), or the creation or issuance of
new limited partnership interests, where such limited partnership interests are
not held by parties who are currently limited partners in the same manner and
proportion as such parties currently hold limited partnership interests; (v) if
Owner, any Guarantor, any indemnitor or any general or limited partner or member
of Owner, any Guarantor or any indemnitor is a limited liability company, the
change, removal or resignation of a managing member or the transfer of the
membership interest of any managing member or any profits or proceeds relating
to such membership interest or the voluntary or involuntary sale, conveyance,
transfer or pledge of
membership interests (or the membership interests of any limited liability
company directly or indirectly controlling such limited liability company by
operation of law or otherwise), or the creation or issuance of new membership
interests where such membership interests are not held by parties who are
currently members in the same manner and proportion as such parties currently
hold membership interests; and (vi) if Owner is not wholly owned and controlled
directly or indirectly by Servico, Inc. (other than Servico Centre Associates
Limited Partnership ("SCALP") which shall be wholly owned and controlled
directly or indirectly by Palm Beach Hotel Enterprises, Inc., the general
partner of SCALP and (vii) if Servico, Inc. is not wholly owned and controlled
directly or indirectly by Lodgian, Inc.
(c) Lender reserves the right to condition the consent required under
Section 13(a) upon a modification of the terms hereof (which such modification
shall not modify or amend the material economic terms hereof) and on assumption
of the Note, the Mortgage, this Loan Agreement and the other Loan Documents as
so modified by the proposed transferee, payment of all of Lender's out-of-pocket
expenses actually incurred in connection with such transfer, the approval by
each of the Rating Agencies that have assigned a rating to the Securities of the
proposed transferee, the proposed transferee's continued compliance with the
covenants set forth in Section 11 and Section 40 hereof, or such other
conditions as Lender shall determine in its sole discretion to be in the
interest of Lender. Lender shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Owner's sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Mortgaged Property without Lender's consent. This provision shall apply to every
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or
transfer of the Mortgaged Property regardless of whether voluntary or not, or
whether or not Lender has consented to any previous sale, conveyance, mortgage,
grant, bargain, encumbrance, pledge, assignment, or transfer of the Mortgaged
Property.
(d) Notwithstanding the foregoing, Lender's consent shall not be required
in connection with the transfer of (i) the publically traded shares of stock in
Lodgian, Inc., or (ii) limited partnership interests in Servico Centre
Associates Limited Partnership (which are not directly or indirectly owned by
Servico, Inc.); provided such limited partners shall never hold equity interests
in Servico Centre Associates Limited Partnership in excess of 50%.
(e) Lender acknowledges that Owner, KDS Corporation, and Servico, Inc. have
each pledged certain Collateral relating to certain of the Mortgaged Properties
to certain leasing and/or financial companies listed on Part I of Schedule I
attached hereto in connection with certain FF&E financings in the respective
original and outstanding principal amounts set forth on Schedule I (the
"Existing FF&E Financing"), which loans shall mature or equipment lease
agreements shall expire on those dates set forth on Schedule I. Owner covenants
and agrees to fully perform or to cause Servico, Inc. and KDS Corporation, as
applicable, to fully perform its obligations under the loan documents and/or
equipment lease agreement, as applicable, evidencing and serving the Existing
FF&E Financing.
(f) Notwithstanding anything contained in this Section 13 to the contrary,
Lender's consent shall not be required for the granting of a security interest
by Owner and/or Servico, Inc. in television sets, washers, dryers, cubers,
dispensers, door locks, air conditioners, filter systems, impress ironers,
refrigerators, microwaves, dish and glass washing machines, vans, phone systems,
microfridges, or computer systems ("Pledged FF&E"), provided Lender has received
prior written notification of such Borrower's and/or Servico, Inc's intent to
pledge such
Pledged FF&E, and provided, further, that (i) any such security agreement or
equipment lease agreement is subject to commercially prudent terms and
conditions, (ii) the Pledged FF&E is readily replaceable without material
interference or interruption to the operation of the Mortgaged Property as
required pursuant to the provisions of the Mortgage and this Loan Agreement, and
(iii) the aggregate annual payments pursuant to the Existing FF&E Financing and
any note(s) secured by the security agreement(s) or equipment lease agreement(s)
relating to the Pledged FF&E located on or used in connection with each
Mortgaged Property is less than $50,000 (the "FF&E Annual Payment Cap"), except
with respect to Property Nos. 13 (Omni West Palm Beach), 39 (Quality Hotel
Metairie), 50 (Holiday Inn St. ▇▇▇▇), 57 (Omni Albany Hotel), and 81 (Holiday
Inn Austin South), the FF&E Annual Payment Cap shall be the amount set forth
under the column entitled "Allocated Annual Payments" on Part II of Schedule I
(collectively; the "Permitted FF&E Financing").
(g) Notwithstanding anything to the contrary in this Section 13, Lender
shall permit the mortgage dated June 8, 1992 and recorded in Official Records
Book 3739, Page 506 of the Public Records of Palm Beach County, Florida, as
modified, amended and assigned (the "Subordinate Mortgage") relating to the
Mortgage Property described as Property No. 13 on Schedule A attached (Omni
Hotel -West Palm Beach) provided simultaneously herewith, (i) Owner executes and
delivers to Lender's form of Subordination and Intercreditor Agreement
acceptable to Lender in all respects and (ii) the holder of the Subordinate
Mortgage pledges and collaterally assigns to Lender the Subordinate Mortgage as
additional collateral for the Loan.
(h) Notwithstanding anything to the contrary contained in this Section 13,
Lender's consent shall not be required pursuant to this Section 13 with respect
to the Condominium Conversion described in Section 61 provided the terms and
provisions of Section 61(l) are satisfied.
(i) Lender's consent to a sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to
be a waiver of Lender's right to require such consent in the future. Any sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property made in contravention of this Section shall be null and void
and of no force or effect.
(j) Owner agrees to bear and shall pay or reimburse Lender on demand for
all reasonable expenses (including, without limitation, Lender's out-of-pocket
attorney's fees and disbursements (including on appeal), title search costs and
title insurance endorsement premiums) incurred by Lender in connection with the
review, approval or disapproval, and documentation of any such sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer.
(k) Anything herein to the contrary notwithstanding, transfers and partial
releases of the Mortgaged Property shall be permitted in accordance with the
terms of Section 61 hereof.
14. ESTOPPEL CERTIFICATES; AFFIDAVITS
(a) Within ten (10) days after request, Owner and Lender shall furnish the
other with a statement, duly acknowledged and certified, setting forth: (i) the
amount of the original principal amount of the Note; (ii) the then outstanding
principal balance of the Note; (iii) the rate of interest of the Note; (iv) the
date on which installments of interest and/or principal were last paid; (v) any
offsets or defenses to the payment of the Debt; and (vi) that the Note, the
Mortgage, this
Agreement, the Assignment, the Environmental Agreement and the other Loan
Documents are valid, legal and binding obligations, which have not been modified
or if modified, giving particulars of such modification; provided, however, that
neither Owner nor Lender shall be required to provide a statement hereunder more
frequently than once in a calendar quarter.
(b) Within ten (10) days after request by Lender, but in no event more
frequently than once in any 12-month period, Owner shall furnish Lender with a
certificate reaffirming all representations and warranties of Owner set forth
herein and in the other Loan Documents as of the date requested by Lender or, to
the extent of any changes to any such representations and warranties, so stating
such changes.
(c) Owner shall deliver to Lender upon request, tenant estoppel
certificates from each tenant under a Lease for more than 1,000 square feet in
form and substance reasonably satisfactory to Lender; provided, however, that
Owner shall not be required to deliver such certificates more frequently than
two times in any calendar year.
(d) Owner upon any transfer or proposed transfer pursuant contemplated by
Section 21(b), at Lender's request, Owner shall provide an estoppel certificate
to the Investor (defined in Subsection 21(b)) or prospective Investor in such
form, substance and detail required pursuant to Section 21.
(e) Owner shall, promptly upon request of Lender, deliver an estoppel
certificate from Manager stating that (i) the Management Agreement, the FF&E
Replacement Management Agreement or such other franchise agreement relating to
the Mortgaged Property is in full force and effect and has not been modified,
amended or assigned, (ii) neither Manager or Qualified Manager, as applicable,
nor, to Manager's or Qualified Manager's knowledge, as applicable, Owner is in
default under any of the terms, covenants or provisions of the Management
Agreement or FF&E Replacement Management Agreement, as applicable, and Manager
or Qualified Manager, as applicable, knows of no event which, but for the
passage of time or the giving of notice or both, would constitute an event of
default under the Management Agreement or FF&E Replacement Management Agreement,
as applicable, (iii) neither Manager or Qualified Manager, as applicable, nor,
to Manager's or Qualified Manager's knowledge, as applicable, Owner has
commenced any action or given or received any notice for the purpose of
terminating the Management Agreement or the FF&E Replacement Management
Agreement, as applicable, and (iv) all sums due and payable to Manager or
Qualified Manager, as applicable, under the Management Agreement or FF&E
Replacement Management Agreement, as applicable, have been paid in full.
15. CHANGES IN THE LAWS REGARDING TAXATION
If any law is enacted, adopted or amended after the date of this Agreement
which deducts the Debt from the value of the Mortgaged Property for the purpose
of taxation, or which
imposes a tax, either directly or indirectly, on the Debt or Lender's interest
in the Mortgaged Property, Owner will pay such tax, with interest and penalties
thereon, if any. In the event Lender or its counsel determines that the payment
of such tax or interest and penalties by Owner would be unlawful or taxable to
Lender or unenforceable or provide the basis for a defense of usury, then in any
such event, Lender shall have the option, by written notice of not less than 180
days, to declare the Debt immediately due and payable, which prepayment shall
not include Default Consideration (as defined in the Note).
16. NO CREDITS ON ACCOUNT OF THE DEBT
Owner will not claim, demand or be entitled to any credit or credits on
account of the Debt for any part of the Taxes or Other Charges assessed against
the Mortgaged Property, or any part thereof, and no deduction shall otherwise be
made or claimed from the assessed value of the Mortgaged Property, or any part
thereof, for real estate tax purposes by reason of the Mortgage or the Debt. In
the event such claim, credit or deduction shall be required by law, Lender shall
have the option, by written notice of not less than 180 days, to declare the
Debt immediately due and payable.
17. DOCUMENTARY STAMPS
If at any time the United States of America, any State thereof or any
subdivision of any such State shall require revenue or other stamps (including,
without limitation, any documentary stamps and mortgage filing privilege tax) to
be affixed to the Note or the Mortgage, or shall impose any other tax or charge
on the same, Owner will pay for the same, with interest and penalties thereon,
if any.
18. CONTROLLING AGREEMENT
It is expressly stipulated and agreed to be the intent of Owner and Lender
at all times to comply with applicable state law or applicable United States
federal law (to the extent that it permits Lender to contract for, charge, take,
reserve, or receive a greater amount of interest than under state law) and that
this Section shall control every other covenant and agreement in this Agreement
and the other Loan Documents. If the applicable law (state or federal) is ever
judicially interpreted so as to render usurious any amount called for under the
Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved, or received with respect to the Debt, or if Lender's exercise
of the option to accelerate the maturity of the Note, or if any prepayment by
Borrower results in Borrower having paid any interest in excess of that
permitted by applicable law, then it is Borrower's and Lender's express intent
that all excess amounts theretofore collected by Lender shall be credited on the
principal balance of the Note and all other Debt (or, if the Note and all other
Debt have been or would thereby be paid in full, refunded to Borrower), and the
provisions of the Note and the other Loan Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new documents, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder. All sums paid or agreed to
be paid to Lender for the use, forbearance, or detention of the Debt shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Debt until
payment in full so that the rate or amount of interest on account of the Debt
does not exceed the maximum lawful rate from time to time in effect and
applicable to the Debt for so long as the Debt is outstanding. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents,
it is not the intention of Lender to accelerate the maturity of any interest
that has not accrued at the time of such acceleration or to collect unearned
interest at the time of such acceleration.
19. BOOKS AND RECORDS
(a) Owner will keep and maintain or cause to be kept and maintained on a
calendar year basis proper books of record and account separate and apart from
any other person or entity, in which accurate and complete entries shall be made
of all dealings or transactions of or in relation to the Mortgaged Property, in
accordance with then applicable United States generally accepted accounting
principles (as in effect from time to time) (the "Uniform System of Accounts").
Lender and its authorized representatives shall have the right at reasonable
times and upon reasonable notice to examine the books and records of Owner
and/or Manager relating to the operation of the Mortgaged Property and to make
such copies or extracts thereof as Lender may reasonably require.
(b) (i) Not later than fifty (50) days following the end of each calendar
quarter of Owner's operations, Owner will deliver to Lender unaudited financial
statements of Owner (on an individual and a consolidated basis) prepared in
accordance with the Uniform System of Accounts (together with reconciliation
schedules setting forth actual cash flow of the Mortgaged Property) on an
accrual basis, including an average daily rate statement for such quarter, a
balance sheet as of the end of such quarter, a statement of revenues and
expenses for such quarter and operating statements of the Mortgaged Property,
detailing the Gross Income received for the Mortgaged Property operations,
including, all Rents and Accounts Receivable, the Expenses incurred at the
Mortgaged Property level and the NOI derived at the Mortgaged Property before
and after debt service (principal and interest) and major capital improvements
for that quarter and containing appropriate year to date information, including
a comparison for such quarter with the annual budget delivered pursuant to
Subsection 19(e). Such statements for each quarter shall be accompanied by a
certificate of Owner signed by a financial officer of Owner or one of its
general partners or members and attesting that, to the signer's actual
knowledge, (A) such statements fairly represent the financial condition and
results of operations of Owner and the Mortgaged Property in accordance with the
Uniform System of Accounts (subject to year end adjustments), (B) as of the date
of such certificate of Owner, no Event of Default exists or, if so, specifying
each such Event of Default and the nature and status thereof and the action then
being taken by Owner or proposed to be taken to remedy such Event of Default,
and (C) the Aggregate Debt Service Coverage Ratio for such calendar quarter.
(ii) Not later than ninety-five (95) days after the end of each
calendar year of Owner's operations, Owner will deliver to Lender audited
financial
statements of Owner (on an individual and a consolidated basis) prepared and
certified by a nationally recognized, independent public accounting firm of
certified public accountants, which firm shall either be a "Big Six" firm or
otherwise acceptable to Lender in its sole discretion (an "Independent
Accountant") in accordance with the Uniform System of Accounts (together with
reconciliation schedules setting forth actual cash flow of the Mortgaged
Property), including an average daily rate statement for such year, a balance
sheet as of the end of such year and a statement of Gross Income and Expenses
relating to the Mortgaged Property for such year and operating statements of the
Mortgaged Property, detailing the Gross Income received, the Expenses incurred
and the NOI derived at the Mortgaged Property before and after debt service
(principal and interest) and major capital improvements for that year and
containing appropriate year to date information, including a comparison for such
year with the annual budget delivered pursuant to Subsection 19(e). Such annual
financial statements shall also be accompanied by a certificate of Owner in the
form required pursuant to Subsection 19(b)(i) and a current monthly rent roll
which satisfies the requirements of Section 19(d) below for the calendar month
immediately previous to the date of the delivery of the financial statements
required by this Subsection.
(c) Not later than thirty (30) days following each calendar month, Owner
will deliver to Lender unaudited monthly operating statements of the Mortgaged
Property (on an individual and a consolidated basis), detailing the Gross Income
received for Mortgaged Property operations, including Rents and Accounts
Receivable, the Expenses incurred at the Mortgaged Property level and the NOI
derived at the Mortgaged Property before and after debt service (principal and
interest) and major capital improvements for that month and containing
appropriate year to date information, including a comparison of such month with
the Approved Capital Budget delivered pursuant to Subsection 19(e). Such
statements for each month shall be accompanied by a certificate of Owner signed
by a financial officer of Owner or one of its general partners or members and
certifying that, to the signer's actual knowledge, (A) such statements fairly
represent the financial condition and results of operations of Owner in
accordance with The Uniform System of Accounts (subject to year end
adjustments), (B) as of the date of such certificate of Owner, no Event of
Default exists or, if so, specifying each such Event of Default and the nature
and status thereof and the action then being taken by Owner or proposed to be
taken to remedy such Event of Default, and (C) the Aggregate Debt Service
Coverage Ratio for such calendar month.
(d) At the written request of Lender, Owner will deliver to Lender a rent
roll for the Mortgaged Property with respect to each Material Lease, dated as of
the end of such calendar month, containing (i) a list of the original tenants
and current tenant, subtenant, licensee or other occupant under each Lease, (ii)
the gross leasable square feet leased by each tenant and the location thereof,
(iii) the annual fixed rent and additional rent currently payable by each tenant
and the date on which each payment thereof is due, (iv) the commencement and the
expiration date of each of the Leases and the renewal terms thereof, (v) the
date through which all Rent has been paid, the amount of any prepaid Rents and
the amount of any delinquencies under each Lease, (vi) the amount of all
concessions, abatements, credits and allowances to which each tenant is entitled
under each Lease, (vii) the amount of security deposits given under each Lease
and the amount of the accrued
interest thereon, (viii) all options and renewal rights that each tenant has
under each Lease, (ix) any guaranty or other security given under any Lease, (x)
any obligations of Owner under the Lease for tenant improvements, construction
and unpaid obligations for brokerage fees and commissions, and (xi) any
termination rights or options contained in each Lease or in such form as may
otherwise be required by Lender; and such rent roll shall be accompanied by a
certificate of Owner certifying that, to Owner's knowledge, such rent roll is
true, correct and complete in all material respects and stating whether Owner,
within the past calendar quarter, has issued a notice of default with respect to
any Material Lease which has not been cured, and the nature of such default.
Owner may deliver the information required under clauses (v)-(xi) above on a
separate schedule, certified by Owner, as true, complete and correct in all
material respects, to Owner's knowledge. Upon request by Lender (such request to
be made no more often than once each calendar quarter), Owner shall deliver to
Lender a certified copy of any Material Lease entered into during the calendar
quarter to which such current report relates, which certification shall include
a statement that each such Lease complies with the provisions of Section 9.
Borrower hereby represents and warrants that the rent roll delivered to Lender
as of the date hereof is true, correct and complete in all material respects.
(e) For each fiscal year commencing on January 1, 1999, and for each fiscal
year thereafter, Owner shall submit to Lender for Lender's written approval an
annual operating budget (a "Capital Budget") not later than thirty (30) days
prior to the commencement of such fiscal year, in form satisfactory to Lender
setting forth in reasonable detail budgeted monthly operating expenses for the
Mortgaged Properties, including all planned capital expenditures in respect of
the Mortgaged Properties for such fiscal year. Notwithstanding the foregoing,
Owner shall submit to Lender for Lender's approval the Capital Budget for the
fiscal year commencing January 1, 1999 on or before January 31, 1999. Lender
shall have the right to approve such Capital Budget and in the event that Lender
objects to the proposed Capital Budget submitted by Owner, Lender shall advise
Borrower of such objections within fifteen (15) days after receipt thereof (and
deliver to Owner a reasonably detailed description of such objections) and
Owner, shall promptly revise such Capital Budget and resubmit the same to
Lender. Lender shall advise Owner of any objections to such revised Capital
Budget within ten (10) days after receipt thereof (and deliver to Owner a
reasonably detailed description of such objections) and Owner, shall promptly
revise the same in accordance with the process described in this subparagraph
until the Lender approves a Capital Budget. Together with the submission of each
Capital Budget, Owner shall deliver to Lender a certification by a third party
engineer, acceptable to Lender, verifying the cost estimates for each repair or
replacement item required (i) pursuant to a PIP or (ii) as a result of a
structural deficiency and the cost of such repair or replacement is in excess of
$500,000. Each such Capital Budget approved by Lender in accordance with terms
hereof shall hereinafter be referred to as an "Approved Capital Budget". Until
such time that Lender approves a proposed Approved Capital Budget, the most
recently Approved Capital Budget shall apply; provided that, such Approved
Capital Budget shall be adjusted to reflect actual increases in real estate
taxes, insurance premiums and utilities expenses. In the event that the Owner
must incur an extraordinary operating expense or capital expense not set forth
in the Approved Capital Budget (each, an "Extraordinary Expense"), then Owner
shall promptly deliver to Lender a reasonably detailed explanation of such
proposed Extraordinary Expense for the Lender's approval.
(f) Owner shall deliver to Lender as soon as reasonably available but in no
event later than thirty (30) days after such items become available to Owner in
final form:
(i) copies of any final engineering or environmental reports prepared
for Owner with respect to the Mortgaged Property;
(ii) notice in the event of any (A) material change in a policy or any
insurance coverage, (B) material tort action against Owner relating to the
Mortgaged Property and not wholly covered by insurance (other than any
deductible thereunder, not to exceed the maximum deductible permitted under
this Loan Agreement), (C) Event of Default under this Loan Agreement, (D)
material casualty to the Mortgaged Property, (E) change in the Manager, or
Qualified Manager, as the case may be, or (F) taking or threatened taking;
(iii) a copy of any notice received by Owner from any environmental
authority having jurisdiction over the Mortgaged Property with respect to a
condition existing or alleged to exist or emanate from or at the Mortgaged
Property; and
(iv) if requested by Lender, a summary report listing only tenants and
square footage occupied by such tenants pursuant to Material Leases.
(g) Owner shall deliver to Lender:
(i) a quarterly comparison of the budgeted total income and total
expenses to the actual total income and total expenses for the subject
quarter with a detailed explanation of any variances of five percent (5%)
or more between budgeted and actual amounts for such quarter and a report
of occupancy for the subject quarter including an average daily room rate,
within fifty (50) days after the end of each fiscal quarter; and
(ii) an annual comparison of the budgeted total income and total
expenses to the actual total income and total expenses with a detailed
explanation of any variances of five percent (5%) or more between budgeted
and actual amounts for such year and an annual occupancy report including
an average daily room rate, within ninety-five (95) days after the close of
each fiscal year of Owner.
(h) Owner shall, at any and all times, within a reasonable time after
written request by Lender, furnish or cause to be furnished to Lender, in such
manner and in such detail as may be reasonably requested by Lender, additional
reasonable information with respect to the Mortgaged Property.
20. PERFORMANCE OF OTHER AGREEMENTS
Owner shall observe and perform each and every term to be observed or
performed by Owner pursuant to the terms of any material agreement or recorded
instrument affecting or pertaining to the Mortgaged Property. Nothing herein
shall operate in derogation of any obligation of Owner under the Loan Documents.
21. FURTHER ASSURANCES; RIGHT TO SPLIT THE LOAN
(a) Owner will, at the cost of Owner, and without expense to Lender, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, Uniform Commercial
Code financing statements or continuation statements, transfers and assurances
as Lender shall, from time to time, require, for the better assuring, conveying,
assigning, transferring, and confirming unto Lender the property and rights
hereby mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and hypothecated or intended now or
hereafter so to be, or which Owner may be or may hereafter become bound to
convey or assign to Lender, or for carrying out the intention or facilitating
the performance of the terms of this Agreement or for filing, registering or
recording the Mortgage. Owner, on demand, will execute and deliver and hereby
authorizes Lender , upon the occurrence of an Event of Default, to execute in
the name of Owner or without the signature of Owner to the extent Lender may
lawfully do so, one or more financing statements, chattel mortgages or other
instruments, to evidence more effectively the security interest of Lender in the
Mortgaged Property. Owner grants to Lender an irrevocable power of attorney
coupled with an interest for the purpose of exercising and perfecting any and
all rights and remedies available to Lender at law and in equity, including
without limitation such rights and remedies available to Lender pursuant to this
Section; provided, however, that so long as Owner is in compliance with the
terms and conditions of this Agreement, Lender will first seek Owner's
assistance in exercising and perfecting such rights and remedies.
(b) Owner acknowledges that Lender intends to either (i) sell, assign or
transfer the Loan evidenced by the Note and the Loan Documents with or without
novation to one or more Co-Lenders (a "Syndication"), (ii) sell, assign or
transfer the Loan to a party who may pool the Loan with a number of other loans
and the holder of such loans may issue one or more classes of Mortgage Backed,
Pass-Through Certificates or other securities evidencing a beneficial interest
in a rated or unrated public offering or private placement (the "Securities");
provided, however, that nothing herein shall require that Owner act as issuer or
depositor, or execute any registration statement, offering circular or
memorandum in connection with the offering of Securities (a "Securitization") or
(iii) grant participations in the Loan (a "Participation"). The Securities may
be rated by one or more national Rating Agencies. Owner agrees to make available
to Lender, at Owner's sole cost and expenses (but Lender shall pay for Lender's
counsel fees), all information concerning its business and operations and the
Mortgaged Property which Lender reasonably requests in connection with a
Syndication, a Securitization or a Participation (provided, however, Owner shall
be responsible for the cost of only one (1) update on the appraisals, the
Environmental Reports and the building condition reports prepared and delivered
in connection with this Loan if requested by Lender in connection with a
Syndication, Securitization or Participation). Lender may share such information
with the investors, participants, investment banking firms, rating agencies,
accounting firms, law firms and other third-party advisory firms involved with
the Loan or the Securities (collectively, the "Investor"). Owner shall cooperate
with Lender in connection with a Syndication, a Securitization or a
Participation, including, without limitation, Owner agrees to deliver an
estoppel certificate required pursuant to Section 14(d) hereof, the necessary
franchisor comfort letters and such other documents reasonably requested by
Lender. In connection with a Securitization, it is understood that the
information provided by Owner to Lender may ultimately be incorporated into the
offering documents for the Securities and thus such information may be disclosed
to various Investors. Anything herein to the contrary notwithstanding, Owner
shall have no liability by reason of the offering or issuance of the Securities;
provided, however, that nothing
herein shall operate in derogation of any obligation of Owner under the Loan
Documents. The terms and provisions of this Section 21(b) are expressly subject
to the terms and provisions of that certain cooperation letter dated the date
hereof.
(c) Lender shall have the right, at any time in its sole and
absolute discretion, to split and sever the Loan and any guaranties executed in
connection therewith resulting in (i) a first and second mortgage on each
Mortgage Property, (ii) individual (uncrossed) mortgage loans, or (iii) subpools
of cross collateralized mortgage loan pools, or any combination of the
foregoing. Owner shall execute and deliver all such instruments, documents and
other papers, and do or cause to be done all such acts and things as Lender may
reasonably request in order to effect such splitter and severance. In no event
shall any such splitter and severance expand or increase Owner's liability or
obligations hereunder, and Owner shall pay all costs and expenses in connection
with this Subsection 21(c), including Owner's attorneys' fees and expenses, but
Lender agrees to pay for Lender's legal counsel costs. Notwithstanding the
foregoing, Owner shall not be obligated to amend or modify any Loan Documents if
same would change the effective Applicable Interest Rate (as defined in the
Note), the Maturity Date, the effective amortization of principal as set forth
in the Note, or otherwise amend or modify any other material economic term of
the Loan Documents.
22. RECORDING OF MORTGAGE
Owner forthwith upon the execution and delivery of this Agreement and
thereafter, from time to time, will cause the Mortgage, and any security
instrument creating a lien or security interest or evidencing the lien thereof
upon the Mortgaged Property and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien or security interest thereof upon, and the interest of Lender
in, the Mortgaged Property. Owner will pay all filing, registration or recording
fees, taxes, and all expenses incident to the preparation, execution and
acknowledgment of the Mortgage, any mortgage supplemental thereto, any security
instrument with respect to the Mortgaged Property and any instrument of further
assurance, and all federal, state, county and municipal taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of the Mortgage, any mortgage supplemental thereto, any security
instrument with respect to the Mortgaged Property or any instrument of further
assurance, except where prohibited by law so to do. Owner shall hold harmless
and indemnify Lender, its successors and assigns, against any liability incurred
by reason of the imposition of any tax on the making and recording of the
Mortgage.
23. REPORTING REQUIREMENTS
Owner agrees to give prompt notice to Lender of the insolvency or
bankruptcy filing of Owner or any constituent thereof, or the death, insolvency
or bankruptcy filing of any Guarantor. Owner covenants and agrees to give Lender
written notice of a change of the principal place of business of Owner within 30
days of the change of the principal place of business set forth in Subsection
10(s) above.
24. EVENTS OF DEFAULT
The term "Event of Default" as used herein shall mean the occurrence or
happening, at any time and from time to time, of any one or more of the
following:
(a) if any portion of the Debt is not paid prior to the date such
payment is due or if the entire Debt is not paid on or before the Maturity Date
pursuant to the Note and the other Loan Documents;
(b) subject to Owner's right to contest as provided herein, if any of
the Taxes are not paid when due and payable, or if any Other Charges are not
paid prior to delinquency;
(c) if the Policies are not kept in full force and effect, or if the
Policies or certificates thereof are not delivered to Lender upon request;
(d) if Owner transfers or encumbers any portion of the Mortgaged
Property in a manner inconsistent with the terms of Section 13 of this Agreement
or if Owner does not comply with the provisions of Sections 7(r), 9, 11 and
64(d) hereof;
(e) if any representation or warranty of Owner, or of any Guarantor,
made herein, in any Loan Document, any guaranty, including the Guaranty, or in
any certificate, report, financial statement or other instrument or document
furnished to Lender shall have been false or misleading in any material respect
when made;
(f) if Owner or any Guarantor shall make an assignment for the benefit
of creditors, or if Borrower shall generally not be paying its debts as they
become due;
(g) if a receiver, liquidator or trustee of Owner or of any Guarantor
shall be appointed, or if Owner or any Guarantor shall be adjudicated a bankrupt
or insolvent, or if any petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy law, or any similar federal or state law, shall
be filed by or against, consented to, or acquiesced in by, Owner or any
Guarantor or if any proceeding for the dissolution or liquidation of Owner or of
any Guarantor shall be instituted; provided, however, that such appointment,
adjudication, petition or proceeding, if involuntary and not consented to by
Owner or such Guarantor, shall constitute an Event of Default only if not being
discharged, stayed or dismissed within 90 days;
(h) if Owner shall be in default under any Ground Lease or if Owner or
Guarantor shall be in default under any other mortgage or security agreement
including, without limitation the loan documents evidencing the Permitted FF&E
Financing or the Subordinate Mortgage or the Subordination and Intercreditor
Agreement executed in connection therewith, covering any part of the Mortgaged
Property, whether it be superior or junior in lien to the Mortgage, which
default continues beyond applicable notice and grace periods, if any;
(i) subject to Owner's right to contest as provided herein, if the
Mortgaged Property becomes subject to any mechanic's, materialman's or other
lien except a lien for local real estate taxes and assessments not then due and
payable and not bonded or dismissed within 30 days;
(j) if Owner fails to cure promptly or to proceed diligently and in
accordance with prudent business practices to cure any violations of laws or
ordinances affecting the Mortgaged
Property, except violations which, individually or in the aggregate, shall not
cause a material adverse effect on (i) the Mortgaged Property, (ii) the
business, profits, prospects, management, operations or condition (financial or
otherwise) of Owner, (iii) the enforceability, validity, perfection or priority
of the lien of the Loan Documents, or (iv) the ability of the Borrower to
perform its obligations under the Loan Documents (a "Material Adverse Effect");
(k) except as permitted in this Agreement, the alteration,
improvement, demolition or removal of any of the Improvements without the prior
written consent of Lender;
(l) if there shall occur any damage to the Mortgaged Property in any
manner which is not covered by insurance solely as a result of Owner's failure
to maintain insurance required in accordance with this Agreement, which damage
is not promptly repaired to Lender's satisfaction at Owner's cost and expense;
(m) if without Lender's prior written consent: (i) the manager under
the Management Agreement (or any succeeding FF&E Replacement Management
Agreement) resigns or is removed; (ii) except as permitted hereunder, the
ownership, management or control of such manager is transferred to any person or
entity; or (iii) there is any material change in or termination of the
Management Agreement (or any succeeding FF&E Replacement Management Agreement);
(n) if without Lender's prior written consent, there is any material
adverse change in the Franchise Agreement (or any succeeding FF&E Replacement
Franchise Agreement);
(o) if a default has occurred and continues beyond any applicable cure
period under the Management Agreement if such default permits a party to
terminate or cancel the Management Agreement or such Management Agreement
expires pursuant to its terms and is not replaced with a FF&E Replacement
Management Agreement in accordance with the terms hereof;
(p) if a default has occurred and continues beyond any applicable cure
period under the Franchise Agreement if such default permits a party to
terminate or cancel the Franchise Agreement, and the franchisor thereunder has
initiated some affirmative action with respect to such default or such Franchise
Agreement expires pursuant to its terms and is not replaced with a FF&E
Replacement Franchise Agreement in accordance with the terms hereof;
(q) if Owner ceases to operate a hotel on the Mortgaged Property or
terminates such business for any reason whatsoever (other than temporary
cessation in connection with any renovations to the Mortgaged Property or
restoration of the Mortgaged Property after casualty or condemnation);
(r) if Owner owns a leasehold interest in the Mortgaged Property, if
Owner shall fail in the payment of any rent, additional rent or other charge
mentioned in or made payable by the Ground Lease when said rent or other charge
is due and payable;
(s) if Owner owns a leasehold interest in the Mortgaged Property, if
there shall occur any default by Owner, as tenant under the Ground Lease, in the
observance or performance of any term, covenant or condition of the Ground Lease
on the part of Owner to be observed or performed and said default is not cured
following the expiration of any applicable grace and notice periods therein
provided, or if the leasehold estate created by the Ground Lease shall be
surrendered or the Ground Lease shall be terminated or cancelled for any reason
or under any circumstances whatsoever, or if any of the terms, covenants or
conditions of the Ground Lease shall in any manner
be modified, changed, supplemented, altered, or amended without the consent of
Lender;
(t) if Owner terminates or cancels the Franchise Agreement or operates
the Mortgaged Property under the name of any hotel chain or system other than
the respective franchises set forth on Schedule A hereto, without Lender's prior
written consent;
(u) if there shall be a breach or a default under the terms and
provisions of the Guaranty or the Canadian Loan Documents;
(v) if a foreclosure action or such other enforcement action is
commenced with respect to the mechanic's liens filed as of the date hereof by
Hospitality Restoration and Builders, Inc. ("HRB") against the following
Mortgaged Properties in the following respective amounts: (i) the Clarion
Property in the amount of $1,641,038, (ii) the Property shown as No. 58 on
Schedule A (the "Jamestown Property") in the amount of $1,137,006, (iii) the
Property shown as No. 61 on Schedule A ("Grand Island Property') in the amount
of $1,773,349.00, (iv) the Property shown as No. 60 on Schedule A (the "HI
Niagara") in the amount of $2,022,060, (v) the Property shown as No. 83 on
Schedule A ("Ramada Houston") in the amount of $1,590,782 and (vi) the Property
shown as No. 29 on Schedule A ("HI Rolling ▇▇▇▇▇▇▇") in the amount of $970,930
(collectively, the "Mechanic's Liens") unless such Mechanic's Liens are released
from the applicable Mortgaged Property by bonding or otherwise on or prior to
the commencement of such foreclosure action or enforcement action;
(w) if there shall be a default under the ▇▇▇▇▇▇ Note and Mortgage
relating to the Cedar Rapids Property; or
(x) if for more than 30 days after receipt of notice from Lender,
Owner shall continue to be in default under any term, covenant, or condition of
this Agreement, the Assignment, the Mortgage, the Environmental Agreement or any
of the other Loan Documents other than as specified in any of subsections (a)
through (v) of this Section; provided, however, that if the cure of any such
default cannot reasonably be cured within such 30 day period and Owner shall
have promptly and diligently commenced to cure such default within such 30 day
period, then the period to cure shall be deemed extended for up to an additional
60 days from Lender's default notice so long as Owner diligently and
continuously proceeds to cure such default to Lender's satisfaction.
Notwithstanding anything to the contrary herein, (i) an Event of Default
under any Note and any Mortgage relating to the Mortgaged Properties (other than
the Clarion Note (defined in Section 72) and the Clarion Mortgage (defined in
Section 72)) shall not trigger an Event of Default under the Clarion Note and
the Clarion Mortgage, (ii) an Event of Default under any Note and any Mortgage
relating to the Mortgaged Properties (other than the Omni Note and the Mortgage
encumbering the Mortgaged Property shown as Property No. 13 on Schedule A (the
"Omni West Palm Beach Mortgage")) shall not trigger an Event of Default under
the Omni Note and the Omni West Palm Beach Mortgage; (iii) an Event of Default
under any Note and any Mortgage relating to the Mortgaged Properties (other than
the Town Center Note and the Mortgage secured thereby encumbering the Mortgaged
Property shown as Property No. 41 on Schedule A (the "Town Center Mortgage"),
shall not trigger an Event of Default under the Town Center Note and the Town
Center Mortgage; further, provided, however, (iv) Lender shall be entitled to
all rights and remedies under the Note, the Mortgage and the Loan Agreement
(other than the Omni Note and the Omni West Palm Beach Mortgage and the Town
Center Note and the Town Center Mortgage) due to an Event
of Default under the Clarion Note and the Clarion Mortgage, (v) Lender shall be
entitled to all rights and remedies under the Note, the Mortgage and the Loan
Agreement (other than the Clarion Note and the Clarion Mortgage and the Town
Center Note and the Town Center Mortgage) due to an Event of Default under the
Omni Note and the Omni West Palm Beach Mortgage, and (vi) Lender shall be
entitled to all rights and remedies under the Note, the Mortgage and the Loan
Agreement (other than the Clarion Note and the Clarion Mortgage and the Omni
Note and the Omni West Palm Beach Mortgage) due to an Event of Default under the
Town Center Note and the Town Center Mortgage and no default under any other
note, deed of trust or Additional Security Instruments (as defined in the Town
Center Mortgage) or any loan agreement (other than a breach or default in the
representations and covenants contained in this Loan Agreement which pertain to
the Town Center Property) shall be considered a default under the Town Center
Note and Town Center Mortgage.
25. LATE PAYMENT CHARGE; SERVICING FEES
(a) If any portion of the Debt is not paid on or prior to the date such
payment is due (but not including the payment of the principal balance due on
the Maturity Date) other the Debt which is evidenced by the Note listed as
number 18 on Schedule C (the "North Carolina Note"), in which case, if any
portion of the Debt evidenced by the North Carolina Note is not paid prior to
the fifteenth (15th) day after the date such payment is due, Borrower shall pay
to Lender upon demand an amount equal to five (5%) percent of such overdue
portion of the Debt, to defray the expense incurred by Lender in handling and
processing such delinquent payment and to compensate Lender for the loss of the
use of such delinquent payment, and such amount shall be secured by the
Mortgage, the Assignment, the Environmental Agreement and the other Loan
Documents.
(b) Owner shall pay all fees to the Servicer in respect of servicing the
Loan not to exceed eight (8) basis points of the Loan.
26. RIGHT TO CURE DEFAULTS
Upon the occurrence of any Event of Default or, upon notice, if Owner fails
to make any payment or to do any act as herein provided, Lender may, but without
any obligation to do so and without releasing Owner from any obligation
hereunder, take such action as Lender may deem necessary to protect its security
for the Loan. Lender is authorized to enter upon the Mortgaged Property for such
purposes or to appear in, defend, or bring any action or proceeding to protect
its interest in the Mortgaged Property or to foreclose the Mortgage or collect
the Debt, and the cost and expense thereof (including Lender's attorneys' fees
(including on appeal) to the extent permitted by law), with interest at the
Default Rate for the period after notice from Lender that such cost or expense
was incurred to the date of payment to Lender, shall constitute a portion of the
Debt, shall be secured by the Mortgage, the Assignment, the Environmental
Agreement and the other Loan Documents and shall be due and payable to Lender
upon demand. Notwithstanding anything to the contrary herein, this Section 26
shall be subject to the provisions of any applicable Ground Lease.
27. REMEDIES
(a) Upon the occurrence of any Event of Default, Lender may take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Owner and in and to the Mortgaged Property by Lender itself
or otherwise including, without limitation, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such order as
Lender may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Lender:
(i) declare the entire Debt to be immediately due and payable;
(ii) institute a proceeding or proceedings, judicial or nonjudicial, by
advertisement or otherwise, for the complete foreclosure of the Mortgage in
which case the Mortgaged Property or any interest therein may be sold for cash
or otherwise in one or more parcels or in several interests or portions and in
any order or manner;
(iii) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of the Mortgage for the portion of the Debt then due and payable,
subject to the continuing lien of the Mortgage for the balance of the Debt not
then due;
(iv) sell for cash or otherwise the Mortgaged Property or any part thereof
and all estate, claim, demand, right, title and interest of Owner therein and
rights of redemption thereof, pursuant to the power of sale contained herein or
otherwise, at one or more sales, as an entity or in parcels, at such time and
place, upon such terms and after such notice thereof as may be required or
permitted by law;
(v) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein, in the
Assignment, the Environmental Agreement, the other Loan Documents or in the
Note;
(vi) recover judgment on the Note and/or the Guaranty either before, during
or after any proceedings for the enforcement of the Mortgage;
(vii) apply for the appointment of a trustee, receiver, liquidator or
conservator of the Mortgaged Property, without notice and without regard for the
adequacy of the security for the Debt and without regard for the solvency of
Owner, any Guarantor or of any person, firm or
other entity liable for the payment of the Debt;
(viii) revoke the license granted to Owner to collect the Rents and other
sums due under the Leases and enforce Lender's interest in the Leases and Rents
and enter into or upon the Mortgaged Property, either personally or by its
agents, nominees or attorneys and dispossess Owner and its agents and servants
therefrom, and thereupon Lender may to the maximum extent permitted, or not
restricted, under applicable law: (A) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and every part of the
Mortgaged Property and conduct the business thereat; (B) complete any existing
or ongoing construction on the Mortgaged Property in such manner and form as
Lender deems advisable; (C) make alterations, additions, renewals, replacements
and improvements to or on the Mortgaged Property; (D) exercise all rights and
powers of Owner with respect to the Mortgaged Property, whether in the name of
Owner or otherwise including, without limitation, the right to make, cancel,
enforce or modify Leases, obtain and evict tenants, and demand, ▇▇▇ for, collect
and receive all earnings, revenues, rents, issues, profits and other income of
the Mortgaged Property and every part thereof; and (E) apply the receipts from
the Mortgaged Property to the payment of the Debt, after deducting therefrom all
expenses (including Lender's attorneys' fees (including on appeal)) incurred in
connection with the aforesaid operations and all amounts necessary to pay the
taxes, assessments insurance and other charges in connection with the Mortgaged
Property, as well as just and reasonable compensation for the services of
Lender, its counsel, agents and employees;
(ix) require Owner to pay monthly in advance to Lender, or any receiver
appointed to collect the Rents, the fair and reasonable rental value for the use
and occupancy of any portion of the Mortgaged Property occupied by Owner and
require Owner to vacate and surrender possession of the Mortgaged Property to
Lender or to such receiver and, in default thereof, evict Owner by summary
proceedings or otherwise;
(x) require a Lockbox Account pursuant to Section 66 hereof and apply all
sums in the Lockbox Account to the payment of the Debt, in such order and
priority as determined by Lender in Lender's sole discretion; and
(xi) pursue such other rights and remedies as may be available at law or in
equity or under the Uniform Commercial Code.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, the Mortgage shall continue as a lien on the remaining
portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of this Section,
together with any other sums which then may be held by Lender under this
Agreement, whether under the provisions of this Section or otherwise, shall be
applied by Lender to the payment of the Debt in such priority and proportion as
Lender in its sole discretion shall deem proper.
(c) Lender may adjourn from time to time any sale by it to be made under or
by virtue of the Mortgage by announcement at the time and place appointed for
such sale or for such adjourned sale or sales; and, except as otherwise provided
by any applicable provision of law, Lender, without further notice or
publication, may make such sale at the time and place to which such sale shall
be so adjourned.
(d) Upon the completion of any sale or sales pursuant hereto, Lender or an
officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers a good and sufficient instrument, or good and
sufficient instruments, conveying, assigning and transferring all estate, right,
title and interest in and to the property and rights sold. Lender is hereby
irrevocably appointed the true and lawful attorney-in-fact of Owner, to act in
its name and stead (such power of attorney being coupled with an interest, and
irrevocable), to make all necessary conveyances, assignments, transfers and
deliveries of the Mortgaged Property and rights so sold and for that purpose
Lender may execute all necessary instruments of conveyance, assignment and
transfer, and may substitute one or more persons with like power, Borrower
hereby ratifying and confirming all that its attorney or such substitute or
substitutes shall lawfully do by virtue hereof. Any sale or sales made under or
by virtue of this Section, whether made under the power of sale herein granted
or under or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, shall operate to divest all the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Owner in
and to the properties and rights so sold, and shall be a perpetual bar both at
law and in equity against Owner and against any and all persons claiming or who
may claim the same, or any part thereof from, through or under Owner.
(e) Upon any sale made under or by virtue of this Section, whether made
under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, Lender may bid
for and acquire the Mortgaged Property or any part thereof and in lieu of paying
cash therefor may make settlement for the purchase price by crediting upon the
Debt the net sales price after deducting therefrom the expenses of the sale and
costs of the action and any other sums which Lender is authorized to deduct
under the Mortgage.
(f) No recovery of any judgment by Lender and no levy of an execution under
any judgment upon the Mortgaged Property or upon any other property of Owner
shall affect in any manner or to any extent the lien of the Mortgage upon the
Mortgaged Property or any part thereof, or any liens, rights, powers or remedies
of Lender hereunder, but such liens, rights, powers and remedies of Lender shall
continue unimpaired as before.
(g) Lender may terminate or rescind any proceeding or other action brought
in connection with its exercise of the remedies provided in this Section at any
time before the conclusion thereof, as determined in Lender's sole discretion
and without prejudice to Lender.
(h) Lender may resort to any remedies and the security given by the Note,
the Mortgage, this Agreement, the Assignment, the Environmental Agreement or the
other Loan Documents in whole or in part, and in such portions and in such order
as determined by Lender's sole discretion. No such action shall in any way be
considered a waiver of any rights, benefits or remedies evidenced or provided by
the Note, the Mortgage, this Agreement, the Assignment, the Environmental
Agreement or the other Loan Documents. The failure of Lender to exercise any
right, remedy or option provided in the Note, the Mortgage, this Agreement, the
Assignment, the Environmental Agreement or the other Loan Documents shall not be
deemed a waiver of such right, remedy or option or of any covenant or obligation
secured by the Note, the Mortgage, this Agreement, the Assignment, the
Environmental Agreement or the other Loan Documents. No acceptance by Lender of
any payment after the occurrence of any Event of Default and no payment by
Lender of any obligation for which Owner is liable hereunder shall be deemed to
waive or cure any Event of Default with respect to Owner, or Owner's liability
to pay such obligation. No sale of all or any portion of the Mortgaged Property,
no forbearance on the part of Lender, and no extension of time for the payment
of the whole or any portion of the Debt or any other indulgence given by Lender
to Owner, shall operate to release or in any manner affect the interest of
Lender
in the remaining Mortgaged Property or the liability of Owner to pay the Debt.
No waiver by Lender shall be effective unless it is in writing and then only to
the extent specifically stated.
(i) The interests and rights of Lender under the Note, the Mortgage, this
Agreement, the Assignment, the Environmental Agreement or the other Loan
Documents shall not be impaired by any indulgence, including: (i) any renewal,
extension or modification which Lender may grant with respect to any of the
Debt; (ii) any surrender, compromise, release, renewal, extension, exchange or
substitution which Lender may grant with respect to the Mortgaged Property or
any portion thereof; or (iii) any release or indulgence granted to any maker,
endorser, guarantor or surety of any of the Debt.
(j) Anything herein to the contrary notwithstanding, if any of the
foregoing remedies conflict or are otherwise inconsistent with any remedies
available under the Mortgage affecting any portion of the Mortgaged Property (or
as a matter of law in the jurisdiction governing such Mortgage), then to the
extent permitted as a matter of law in the jurisdiction in which any such remedy
is being sought such inconsistency shall be resolved in favor of the
interpretation that would grant Lender the broadest possible remedies.
28. RIGHT OF ENTRY
Lender and its agents shall have the right to enter and inspect the
Mortgaged Property during normal business hours upon reasonable notice.
29. SECURITY AGREEMENT
This Agreement is a "security agreement" within the meaning of the Uniform
Commercial Code. The Mortgaged Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Owner in the Mortgaged Property. By executing and delivering this Agreement,
Owner has granted and thereby grants to Lender, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (such portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this Section the "Collateral"). Owner hereby agrees with Lender to execute
and deliver to Lender, in form and substance satisfactory to Lender, such
financing statements and such further assurances as Lender may from time to
time, reasonably consider necessary to create, perfect or preserve Lender's
security interest therein granted. The Mortgage shall also constitute a "fixture
filing" for the purposes of the Uniform Commercial Code. All or part of the
Mortgaged Property are or are to become fixtures. If an Event of Default shall
occur, Lender, in addition to any other rights and remedies which they may have,
shall have and may exercise immediately and without demand, any and all rights
and remedies granted to a secured party upon default under the Uniform
Commercial Code including, without limitation, the right to take possession of
the Collateral or any part thereof, and to take such other measures as Lender
may deem necessary for the care, protection and preservation of the Collateral.
Upon request or demand of Lender, Owner shall at its expense assemble the
Collateral and make it available to Lender at a convenient place acceptable to
Lender. If Lender retains counsel to enforce its rights hereunder, Owner shall
pay to Lender on demand any and all expenses, including Lender's attorneys' fees
(including on appeal), incurred or paid by Lender in protecting the interest in
the Collateral and in enforcing the rights hereunder with respect to the
Collateral. Any notice of sale, disposition or other intended action by Lender
with respect to the Collateral sent to Owner in accordance with the provisions
hereof at least 10 days prior to such action, shall constitute commercially
reasonable notice to Owner. The proceeds of any disposition of the Collateral,
or any part thereof, may be applied by Lender to the payment of the Debt in such
priority and proportions as Lender in its discretion shall deem proper. In the
event of
any change in name, identity or structure of any Owner, such Owner shall notify
Lender thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Lender's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If Lender
shall require the filing or recording of additional Uniform Commercial Code
forms or continuation statements, Owner shall, promptly after request, execute,
file and record such Uniform Commercial Code forms or continuation statements as
Lender shall deem necessary, and shall pay all expenses and fees in connection
with the filing and recording thereof, it being understood and agreed, however,
that no such additional documents shall increase Owner's obligations under the
Note, the Mortgage, this Agreement, the Assignment, the Environmental Agreement
and the other Loan Documents. Owner hereby irrevocably appoints Lender as its
attorney-in-fact, coupled with an interest, to file with the appropriate public
office on its behalf any financing or other statements signed only by Lender, as
secured party, in connection with the Collateral covered by the Mortgage.
30. ACTIONS AND PROCEEDINGS
Lender has the right to appear in and defend any action or proceeding
brought with respect to the Mortgaged Property upon an Event of Default or in
which Owner fails to appear or defend, and upon an Event of Default, to bring
any action or proceeding, in the name and on behalf of Owner, which Lender, in
its discretion, decides should be brought to protect its interest in the
Mortgaged Property. Lender shall, at its option, be subrogated to the lien of
any mortgage or other security instrument discharged in whole or in part by the
Debt, and any such subrogation rights shall constitute additional security for
the payment of the Debt.
31. WAIVER OF SETOFF AND COUNTERCLAIM
All amounts due under the Mortgage, the Note and the other Loan Documents
shall be payable without setoff, counterclaim or any deduction whatsoever. Owner
hereby waives the right to assert a counterclaim (other than compulsory
counter-claims) in any action or proceeding brought against it by Lender, or
arising out of or in any way connected with this Agreement, the Mortgage, the
Note, any of the other Loan Documents, or the Debt.
32. CONTEST OF CERTAIN CLAIMS
Notwithstanding the provisions of Sections 5 and 24(i) hereof, Owner shall
not be in default for failure to pay or discharge Taxes, Other Charges or a
mechanic's or materialman's lien asserted against the Mortgaged Property if, and
so long as: (a) Owner shall have notified Lender of such nonpayment and the
reasons therefor within 10 days of obtaining knowledge thereof; (b) Owner shall
diligently and in good faith contest such Taxes, Other Charges or lien by
appropriate legal proceedings which shall operate to prevent the enforcement or
collection thereof and the sale of the Mortgaged Property or any part thereof,
in satisfaction thereof; (c) Owner shall have furnished to Lender a cash
deposit, or an indemnity bond satisfactory to Lender with a surety satisfactory
to Lender, in the amount of the Taxes, other Charges or mechanic's or
materialman's lien claim, plus a reasonable additional sum to pay all costs,
interest and penalties that may be imposed or incurred in connection therewith,
to assure payment of the matters under contest and to prevent any sale or
forfeiture of the Mortgaged Property or any part thereof (which sums shall be
deposited into an interest-bearing account); (d) Owner shall promptly upon final
determination thereof pay the amount of any such Taxes, Other Charges or claim
so determined, together with all costs, interest and penalties which may be
payable in connection therewith; and (e) the failure to pay the Taxes, Other
Charges or mechanic's or materialman's lien claim does not constitute a default
under any other deed of trust, mortgage or security interest covering or
affecting any part of the Mortgaged Property. Notwithstanding the foregoing,
Owner shall immediately upon request of Lender pay (and if Owner shall fail so
to do, Lender may, but shall not be required to, pay or cause to be discharged
or bonded against) any such Taxes, Other Charges or claim notwithstanding such
contest, if in the reasonable opinion of Lender, the Mortgaged Property or any
part thereof or interest therein may be in danger of being sold, forfeited,
foreclosed, terminated, canceled or lost. Lender may pay over any such cash
deposit or part thereof to the claimant entitled thereto at any time when, in
the judgment of Lender, the entitlement of such claimant is established.
33. RECOVERY OF SUMS REQUIRED TO BE PAID
Lender shall have the right from time to time to take action to recover any
sum or sums which constitute a part of the Debt as they become due, without
regard to whether or not the balance of the Debt shall be due, and without
prejudice to the right of Lender thereafter to bring an action of foreclosure,
or any other action, for a default or defaults by Owner existing at the time
such earlier action was commenced.
34. MARSHALLING AND OTHER MATTERS
(a) Owner hereby waives, to the extent permitted by law, the benefit of all
appraisement, valuation, stay and extension laws now or hereafter in force, and
all rights of marshalling in the event of any sale hereunder of the Mortgaged
Property or any part thereof or any interest therein. Further, to the extent
permitted by applicable law, Owner hereby expressly waives any and all rights of
redemption from sale under any order or decree of foreclosure of the Mortgage on
behalf of Owner, and on behalf of each and every person acquiring any interest
in or title to the Mortgaged Property subsequent to the date of this Agreement
and on behalf of all persons to the extent permitted by applicable law.
(b) With respect to the Mortgaged Properties located in South Carolina
only:
Waiver of Appraisal Rights. The laws of the State of South Carolina provide
that in any real estate foreclosure proceeding, a defendant against whom a
personal judgment is taken or asked may within thirty (30) days after the sale
of the Premises apply to the court for an order of appraisal. The statutory
appraisal value as approved by the court would be substituted for the high bid
and may decrease the amount of any deficiency owing in connection with the
transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE PREMISES.
35. INTENTIONALLY OMITTED
36. INTENTIONALLY OMITTED
37. INTENTIONALLY OMITTED
38. MANAGEMENT OF THE HOTEL
Owner further covenants and agrees with Lender as follows:
(a) Owner shall cause each hotel located on the Mortgaged Property to be
operated pursuant to the applicable Franchise Agreement. The Mortgaged Property
will be operated at all times by the Manager or by a Qualified Manager (defined
below) pursuant to a Management Agreement or a Replacement Management Agreement
(defined below) as in accordance with the Franchise Agreement, Owner's standards
and practices as of the date hereof, and at a minimum in accordance with the
prevailing standards for hotel properties of similar age, site, construction in
the metropolitan area where such hotel is located. For purposes hereof, a
"Qualified Manager" shall mean a reputable and experienced professional
management organization (i) which manages, together with its affiliates, (A) at
least ten (10) full-service hotels, exclusive of the Mortgaged Property, and
(ii) prior to whose employment as manager of the Mortgaged Property (x) such
employment shall have been approved by Lender, and (y) the Owner shall have
obtained and delivered to Lender written confirmation from the Rating Agencies
that the employment of such manager will not result in a downgrade, withdrawal
or qualification of the ratings then assigned to the Securities. Without
limitation of the foregoing, if (i) the Manager shall become insolvent, (ii) the
Manager shall default under the terms of the Management Agreement, (iii) an
Event of Default shall occur and be continuing or (iv) the Aggregate Debt
Service Coverage Ratio shall be equal to or less than the ratio of 1.35 to 1.00,
then Lender, at its option, may require Owner, to terminate the Management
Agreement and to engage a bona-fide, independent third party Qualified Manager
approved by Lender to manage the Mortgaged Property. The Qualified Manager shall
be engaged by Owner pursuant to a written management agreement that complies
with the terms hereof and is otherwise reasonably satisfactory to Lender in all
respects (a "Replacement Management Agreement"), and the Qualified Manager,
Owner shall execute a Conditional Assignment of Management Agreement in the form
then used by Lender.
(b) Owner shall:
(i) pay all sums required to be paid by Owner under the Franchise Agreement
and the Management Agreement and promptly perform and/or observe all of the
covenants and agreements required to be performed and observed by it under the
Franchise Agreement and the Management Agreement and do all things necessary to
preserve and to keep unimpaired its material rights thereunder;
(ii) promptly notify Lender of any default under the Franchise Agreement or
the Management Agreement of which it is aware and provide Lender with copies of
any notices delivered in connection therewith;
(iii) promptly deliver to Lender a copy of each financial statement,
business plan, capital expenditures plan, notice, report and estimate received
by it under the Franchise
Agreement or the Management Agreement;
(iv) promptly enforce the performance and observance of all of the
covenants and agreements required to be performed and/or observed by the
franchisor under the Franchise Agreement and the manager under the Management
Agreement;
(v) assign to Lender any right it may have to modify the Franchise
Agreement (to the extent such rights are assignable) or the Management
Agreement;
(vi) grant Lender the right, but Lender shall be under no obligation, upon
an Event of Default (or otherwise upon notice from Lender) to pay any sums and
to perform any act or take any action as may be appropriate to cause all the
terms, covenants and conditions of the Franchise Agreement on the part of Owner
to be performed or observed to be promptly performed or observed on behalf of
Owner, to the end that the rights of Owner in, to and under the Franchise
Agreement shall be kept unimpaired and free from default;
(vii) shall, from time to time, use its best efforts to obtain from the
Manager or the Franchisor, as applicable, under the Management Agreement or
Franchise Agreement, as applicable, such certificates of estoppel with respect
to compliance by Owner with the terms of the Management Agreement or the
Franchise Agreement, as applicable, as may be reasonably requested by Lender;
(viii) exercise each individual option, if any, to extend or renew the term
of the Franchise Agreement upon demand by Lender made at any time within one
year of the last day upon which any such option may be exercised, and Owner
hereby expressly authorizes and appoints Lender its attorney-in-fact to
exercise, upon an Event of Default, any such option in the name of and upon
behalf of Owner, which power of attorney shall be irrevocable and shall be
deemed to be coupled with an interest.
(c) Owner shall not, without Lender's prior written consent: (i) surrender,
terminate or cancel the Franchise Agreement or the Management Agreement; (ii)
reduce or consent to the reduction of the term of the Franchise Agreement or the
Management Agreement; (iii) increase or consent to the increase of the amount of
any charges under the Franchise Agreement or the Management Agreement; (iv)
otherwise modify, change, supplement, alter or amend, or waive or release any of
its rights and remedies under the Franchise Agreement or the Management
Agreement in any material respect; or (v) operate the Mortgaged Property under
the name of any hotel chain or system other than as set forth on Schedule A with
respect to each hotel comprising the Mortgaged Property. Notwithstanding
foregoing, Owner may replace the Franchisor with a Qualified Franchisor (defined
below) pursuant to a franchise agreement which is otherwise in compliance with
the requirements of this Section 38 and provided that Owner shall have obtained
and delivered to Lender written confirmation from the Rating Agencies that the
employment of such franchisor will not result in a downgrade, withdrawal or
qualification of the ratings then assigned to the Securities (a "Replacement
Franchise Agreement"). For purposes hereof, a "Qualified Franchisor" shall mean
a nationally recognized franchisor under whose flag there are at least fifty
(50) full-service hotels, exclusive of the Mortgaged Property which has been
approved by Lender.
(d) Except as set forth in the Management Agreement, Owner shall not,
without Lender's prior written consent, enter into transactions with any
affiliate including, without limitation, any arrangement providing for the
management of the hotel on the Mortgaged Property,
the rendering or receipt of services or the purchase or sale of inventory,
except any such transaction in the ordinary course of business of Owner if the
monetary or business consideration arising therefrom would be substantially as
advantageous to Owner as the monetary or business consideration which would
obtain in a comparable transaction with a person not an affiliate of Owner.
(e) Owner irrevocably authorizes and directs Franchisor, from and after an
Event of Default, to deliver to Lender: (i) all operating information concerning
the Mortgaged Property submitted by Owner to Franchisor; (ii) the written
results of all quality assurance inspections of the Mortgaged Property performed
by Franchisor's Quality Assurance Directors; and (iii) such other information
that Lender or Lender's agents may reasonably request, from time to time,
including any information in the possession of Franchisor relating to Owner not
included in the reports referred to above; provided, however, that in the
absence of an Event of Default Lender shall obtain any such information only
from Owner.
(f) Notwithstanding anything to the contrary in this Section 38, Lender
acknowledges that the Mortgaged Property listed on Schedule A as Property No. 41
is currently not operated by a Franchisor pursuant to a Franchise Agreement.
Borrower covenants and agrees to enter into a franchise agreement with Crowne
Plaza Hotels, Doubletree Hotels, Radisson Hotels or Sheraton Hotels on or before
March 31, 1999, which franchise agreement and franchisor shall be acceptable to
Lender in all respects and shall otherwise meet the criteria set forth above in
Subsection (c).
(g) Notwithstanding the foregoing, Lender acknowledges that the hotels on
Property Nos. 59, 60 and 83 listed on Schedule A, are currently being converted
into hotels which shall operate under the "flags" listed on Schedule A under the
heading "Franchisor". Owner covenants that such conversion of the respective
hotels shall occur on or before the following dates: (i) Property No. 59, March
31, 1999 (provided during the conversion period, the current "flag" (Clarion)
remains in place until March 31, 1999), (ii) Property No. 60, December 31, 1998,
and (iii) Property No. 83, March 31, 1999 (provided during the conversion period
the current "flag" (Ramada) remains in place until March 31, 1999).
39. HANDICAPPED ACCESS
(a) Owner agrees that the Mortgaged Property shall at all times strictly
comply to the extent applicable with the requirements of the Americans with
Disabilities Act of 1990, all state and local laws and ordinances related to
handicapped access and all rules, regulations, and orders issued pursuant
thereto including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (collectively, "Access
Laws"). Notwithstanding the foregoing, Lender acknowledges that Property No. 41
on Schedule A is not currently in compliance with the Access Laws, but shall
commence the necessary work in order to bring such Mortgaged Property into
compliance with the Access Laws, including without limitation, the creation of
seven (7) ADA compliant rooms and three (3) roll-in showers as set forth on
Schedule D attached hereto on or before October 1, 1999, which work shall be
acceptable to Lender in all respects.
(b) Notwithstanding any provisions set forth herein or in any other
document regarding Lender's approval of alterations of the Mortgaged Property,
Owner shall not alter the
Mortgaged Property in any manner which would increase Owner's responsibilities
for compliance with the applicable Access Laws without the prior written
approval of Lender. The foregoing shall apply to tenant improvements constructed
by Borrower or by any of its tenants. Lender may condition any such approval
upon receipt of a certificate of Access Law compliance from an architect,
engineer or other person acceptable to Lender.
(c) Owner agrees to give prompt notice to Lender of the receipt by Owner of
any complaints related to violation of any Access Laws and of the commencement
of any proceedings or investigations which relate to compliance with applicable
Access Laws.
40. ERISA
(a) Owner covenants and agrees that it shall not engage in any transaction
which would cause any obligation, or action taken or to be taken, hereunder (or
the exercise by Lender of any of its rights under the Note, the Mortgage, this
Agreement and the other Loan Documents) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under the Employee
Retirement Income Security Act of 1974 (or any successor legislation thereto),
as amended ("ERISA").
(b) Owner further covenants and agrees to deliver to Lender such
certifications or other evidence from time to time throughout the term of this
Agreement, as requested by Lender in its sole discretion, that: (i) Owner is not
an "employee benefit plan" as defined in Section 3(3) of ERISA, which is subject
to Title I of ERISA, or a "governmental plan" within the meaning of Section
3(32) of ERISA; (ii) Owner is not subject to state statutes regulating
investments and fiduciary obligations with respect to governmental plans; and
(iii) one or more of the following circumstances is true:
(A) Equity interests in Owner are publicly offered securities, within the
meaning of 29 C.F.R. ss. 2510.3-101(b)(2);
(B) Less than 25 percent of each outstanding class of equity interests in
Owner are held by "benefit plan investors" within the meaning of 29 C.F.R. ss.
2510.3-101(f)(2); or
(C) Owner qualifies as an "operating company" or a "real estate operating
company" within the meaning of 29 C.F.R. ss. 2510.3-101(c) or (e) or an
investment company registered under The Investment Company Act of 1940.
41. INDEMNIFICATION
(a) In addition to any other indemnifications provided herein, in the
Assignment, the Environmental Agreement or in the other Loan Documents, Owner
shall protect,
defend, indemnify and save harmless Lender from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including, without limitation, out-of-pocket
attorneys' fees and expenses (including on appeal)), imposed upon or incurred by
or asserted against Lender by reason of: (i) ownership of the Mortgage, the
Mortgaged Property or any interest therein or receipt of any Rents; (ii) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Mortgaged Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (iii) any use, nonuse or condition in, on or about the Mortgaged
Property or any part thereof or on adjoining sidewalks, curbs, adjacent property
or adjacent parking areas, streets or ways; (iv) any failure on the part of
Owner to perform or comply with any of the terms of this Agreement; (v)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Mortgaged Property or any part thereof; (vi) the
presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release, or threatened release of any Hazardous Substance or Asbestos on, from,
or affecting the Mortgaged Property or any other property; (vii) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Substance or Asbestos; (viii) any lawsuit
brought or threatened, settlement reached, or government order relating to such
Hazardous Substance or Asbestos; (ix) any violation of the Environmental Laws,
which are based upon or in any way related to such Hazardous Substance or
Asbestos including, without limitation, the costs and expenses of any remedial
action, out-of-pocket attorney's and consultant's fees (including on appeal),
investigation and laboratory fees, court costs, and litigation expenses; (x) any
failure of the Mortgaged Property to comply with any Access Laws; (xi) any
representation or warranty made in the Note, the Mortgage, this Agreement, the
Environmental Agreement or the other Loan Documents being false or misleading in
any material respect, or otherwise in any respect if made willfully or
knowingly, as of the date such representation or warranty was made; (xii) any
claim by brokers, finders or similar persons claiming to be entitled to a
commission in connection with any Lease or other transaction involving the
Mortgaged Property or any part thereof under any legal requirement or any
liability asserted against Lender with respect thereto; (xiii) the claims of any
lessee of all or any portion of the Mortgaged Property or any person acting
through or under any lessee or otherwise arising under or as a consequence of
any Lease; (xiv) correcting any prohibited transaction or in the sale of a
prohibited loan, and in obtaining any individual prohibited transaction
exemption under ERISA that may be required, in Lender's sole discretion) that
Lender may incur, directly or indirectly, as a result of a default under
Sections 10(t) or 40; and (xv) any tax in the making and/or recording of the
Mortgage, the Note or the other Loan Documents. Any amounts payable to Lender by
reason of the application of this Section shall be immediately due and payable,
shall be secured by the Mortgage and shall bear interest at the Default Rate
from the date loss or damage is sustained by Lender until paid. The obligations
and liabilities of Owner under this Section shall survive any termination,
satisfaction or assignment of this Agreement or the entry of a judgment of
foreclosure, sale of the Mortgaged Property by nonjudicial foreclosure sale, or
delivery of a deed in lieu of foreclosure. The indemnification provided for
herein shall not apply to liabilities, obligations, claims, demands, damages,
penalties, causes of action, losses, fines, costs and expenses imposed upon or
incurred by or asserted against Lender by reason of Lender's willful acts or
Lender's gross negligence or for any matters arising from a state of facts first
coming into existence after Lender's succession to possession of the Mortgaged
Property.
(b) Any indemnitee making a claim for indemnification hereunder shall
notify Owner of the claim in writing promptly after receiving written notice of
any action, lawsuit, proceedings, investigation or other claim against it
describing the claim, the amount thereof (if known and quantifiable) and the
basis thereof.
(c) Owner shall be entitled to participate in the defense of the action,
lawsuit, proceeding, investigation or other claim giving rise to such claim of
indemnification at its expense and at its option and shall be entitled to
appoint counsel in such defense with such counsel reasonably acceptable to
Lender.
(d) Lender shall be entitled to participate in the defense of such claim
and to employ counsel of its choice for such purpose, the fees and expenses of
such separate counsel to be borne by Lender. Owner shall obtain the prior
written consent of Lender (not to be unreasonably withheld) before entering into
any settlement of a claim or ceasing to defend such claim, if pursuant to or as
a result of such settlement or cessation, injunction or other equitable relief
will be imposed against Lender or if such settlement does not expressly
unconditionally release Lender from all liabilities and obligations with respect
to such claim.
(e) In the event Owner elects not to participate in the defense of such
claim Lender shall have the right to control the defense of such claim and make
any compromise or settlement thereof, which in the sole judgment of Lender is
exercised in a commercially reasonable manner, which shall be binding upon Owner
following Owner's receipt of notice of such settlement and Owner's consent to
such settlement, which shall not be unreasonably withheld.
42. NOTICE
Any notice, demand, statement, request or consent made hereunder shall be
in writing and shall be deemed given on the next business day if sent by Federal
Express or other reputable overnight courier and designated for next business
day delivery, or on the third day following the day such notice is deposited
with the United States postal service first class certified mail, return receipt
requested, addressed to the address, as set forth above, of the party to whom
such notice is to be given, or to such other address or additional party as
Owner or Lender, as the case may be, shall in like manner designate in writing.
43. AUTHORITY
Owner represents and warrants that: (a) it has full power, authority and
right to execute, deliver and perform its obligations pursuant to this
Agreement, and to mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm, warrant, pledge, hypothecate and assign the Mortgaged Property pursuant
to the terms hereof and to keep and observe all of the terms of this Agreement
on Owner's part to be performed; (b) Owner is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended,
and the related Treasury Department regulations, including temporary regulations
and (c) Owner (i) is duly organized, validly existing and in good standing under
the laws of its state of organization or incorporation, (ii) is duly qualified
to transact business and is in good standing in the state where the Mortgaged
Property is located and (iii) has all of the necessary approvals, governmental
and otherwise, and full power and authority to own and operate the Mortgage
Property. Lender represents and warrants that it has full power, authority and
right to execute, deliver and perform its obligations pursuant to this
Agreement.
44. WAIVER OF NOTICE
Owner shall not be entitled to any notices of any nature whatsoever from
Lender
except with respect to matters for which this Agreement specifically and
expressly provides for the giving of notice by Lender to Owner and except with
respect to matters for which Lender is required by applicable law to give
notice, and Owner hereby expressly waives the right to receive any notice from
Lender with respect to any matter for which this Agreement does not specifically
and expressly provide for the giving of notice by Lender to Owner.
45. REMEDIES OF BORROWER
In the event that a claim or adjudication is made that Lender has acted
unreasonably or has unreasonably delayed acting in any case where by law or
under the Note, the Mortgage, this Agreement, the Assignment, the Environmental
Agreement or the other Loan Documents, it has an obligation to act reasonably or
promptly, Lender shall not be liable for any monetary damages, and Owner's
remedies shall be limited to specific performance, injunctive relief or
declaratory judgment.
46. SOLE DISCRETION OF LENDER
Wherever pursuant to this Agreement Lender exercises any right given to it
to approve or disapprove, or any arrangement or term is to be satisfactory to
Lender, the decision of Lender to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the sole
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
47. NON-WAIVER
The failure of Lender to insist upon strict performance of any term hereof
shall not be deemed to be a waiver of any term of this Agreement. Owner shall
not be relieved of Owner's obligations hereunder by reason of: (a) the failure
of Lender to comply with any request of Owner or any Guarantor to take any
action to foreclose the Mortgage or otherwise to enforce any of the provisions
hereof or of the Note, the Assignment, the Guaranty, the Environmental Agreement
or the other Loan Documents; (b) the release, regardless of consideration, of
the whole or any part of the Mortgaged Property, or of any person liable for the
Debt or any portion thereof; or (c) any agreement or stipulation by Lender
extending the time of payment or otherwise modifying or supplementing the terms
of the Note, the Mortgage, this Agreement, the Assignment, the Environmental
Agreement or the other Loan Documents. Lender may resort for the payment of the
Debt to any other security held by Lender in such order and manner as Lender, in
its discretion, may elect. Lender may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Lender thereafter to foreclosure the Mortgage. The rights and remedies
of Lender under this Agreement shall be separate, distinct and cumulative and
none shall be given effect to the exclusion of the others. No act of Lender
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision. Lender shall not be limited exclusively to
the rights and remedies herein stated but shall be entitled to every right and
remedy now or hereafter afforded at law or in equity.
48. NO ORAL CHANGE
This Agreement, and any provisions hereof, may not be modified, amended,
waived, extended, changed, discharged or terminated orally or by any act or
failure to act on the part of Owner or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
49. LIABILITY
If Owner consists of more than one person, the obligations and liabilities
of each such person hereunder shall be joint and several, and any reference to
the "Mortgaged Property" shall refer to each of the individual hotels comprising
the Mortgaged Property, and to all of such hotels, collectively, as the context
may require. Subject to the provisions hereof requiring Lender's consent to any
transfer of the Mortgaged Property, this Agreement shall be binding upon and
inure to the benefit of Owner and Lender and their respective successors and
assigns forever.
50. INAPPLICABLE PROVISIONS
If any term, covenant or condition of the Note, the Mortgage or this
Agreement is held to be invalid, illegal or unenforceable in any respect, the
Note, the Mortgage and this Agreement shall be construed without such provision.
51. SECTION HEADINGS
The headings and captions of the various Sections of this Agreement are for
convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof.
52. COUNTERPARTS
This Agreement may be executed in any number of counterparts and each such
duplicate original shall be deemed to be an original.
53. CERTAIN DEFINITIONS
Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Agreement may be used
interchangeably in singular or plural form and the word "Owner" shall mean "each
Owner, and each constituent party of Owner, individually, as the context may
require, and any subsequent owner or owners of the Mortgaged Property or any
part thereof or any interest therein", the word "Lender" shall mean "Lender and
any subsequent holder of the Note", the word "Debt" shall mean "the Note and any
other evidence of indebtedness secured by the Mortgage", the word "person" shall
include an individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority and any other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property and any interest therein,
and shall refer to each and every property comprising the Mortgaged Property, as
the context may require, and the words "attorneys' fees" shall include any and
all attorneys' fees, paralegal and law clerk fees including, without limitation,
fees at the pretrial, trial and appellate levels incurred or paid by Lender in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
54. HOMESTEAD
Owner hereby waives and renounces all homestead and exemption rights
provided by the constitution and the laws of the United States and of any state,
in and to the Premises as against the collection of the Debt, or any part
thereof.
55. ASSIGNMENTS
Lender shall have the right to assign or transfer its rights under this
Agreement without limitation. Any assignee or transferee shall be entitled to
all the benefits afforded Lender under this Agreement. In no event shall any
such assignment release Lender from its obligations hereunder.
56. INTENTIONALLY OMITTED
57. AGENT FOR RECEIPT OF PROCESS
Owner hereby irrevocably appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, P.A. with an address at Museum Tower, Suite 2200, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., as its authorized agent
to accept and acknowledge, on behalf of Owner, service of any and all process
which may be served in any suit, action or proceeding of the nature referred to
in Section 60(b) hereof in any State or Federal court within the State of New
York as more particulary set forth in Subsection 60(b) or any County and State
where each of the Mortgaged Properties are located. If such agent shall cease so
to act, Owner shall irrevocably designate and appoint without delay another such
agent satisfactory to Lender, and shall promptly deliver to Lender written
evidence of such other agent's acceptance of such appointment.
58. SERVICE OF PROCESS
To the extent permitted by applicable law, process in any suit, action or
proceeding may be served: (a) by registered or certified mail, postage prepaid,
to Owner at the address set forth above or to such other address of which Owner
shall have given Lender written notice; or (b) if Owner shall not have made an
appearance within 21 days after service in accordance with clause
(a) of this Section, by hand delivery to the agent identified in Section 57
hereof, or such successor agent as shall have been identified in accordance with
Section 57 hereof. Nothing in this Section shall affect the Lender's right to
serve process in any manner permitted by law, or limit Lender's right to bring
proceedings against Owner in the courts of any other jurisdiction.
59. WAIVER OF JURY TRIAL
OWNER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE NOTE,
THE MORTGAGE, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY OWNER, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY OWNER.
60. CHOICE OF LAW
(a) This Agreement shall be deemed to be a contract entered into pursuant
to the laws of the State of New York and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of the State of New
York, provided however, that with respect to the creation, perfection, priority
and enforcement of the lien of the Mortgage and the Lockbox Account, and the
determination of deficiency judgments, the laws of the State where the related
Mortgaged Property and the Lockbox Account is located shall apply.
(b) Any legal action or proceeding with respect to this Agreement or any
other Loan Document and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Agreement, Owner hereby accepts, each for itself and in respect
of its property, generally and unconditionally, the non-exclusive jurisdiction
of the aforesaid courts and appellate courts from any thereof. Owner irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Owner at its address set forth on the first
page of this Agreement. Owner hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Loan Document brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of Lender, to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Owner in any other jurisdiction.
61. PROPERTY RELEASES
Subject to the terms and conditions set forth herein, Owner shall have the
right, from time to time, on any Payment Date (as defined in the Note) to obtain
a release (a "Property Release") of a Mortgaged Property from the lien of the
related Mortgage (i) provided that no Event of Default under this Agreement, the
Note, the Mortgage or any other Loan Document has occurred and is continuing and
(ii) subject to compliance with the provisions set forth below in this Section
61, legal, record, economic and beneficial ownership of the Mortgaged Property
for which a Property Release is being requested (the "Release Premises") is
simultaneously with the granting of the Property Release transferred (a "Release
Premises Transfer") to and shall be owned immediately after such Property
Release by a person(s), party(ies) or entity(ies) other than Owner or any
general partner or managing member of Owner or any affiliate of Owner ("Release
Premises Transferee"). In the event that the Owner seeks to release a Mortgaged
Property from the lien of the related Mortgage, Lender shall release such
Mortgaged Property from the lien of the related Mortgage and the Loan Documents,
but only upon receipt by Lender of the following:
(a) At least thirty (30) days but no more than ninety (90) days prior
written notice of Owner's request to obtain a release of the Release Premises;
(b) A certificate of Owner certifying the requirements set forth in
Paragraph 61(h) of this Loan Agreement shall be true after giving effect to such
transfer;
(c) At least three (3) Business Days' prior to such Property Release an
irrevocable notice of prepayment and the Certification from Owner in the form
attached hereto as Exhibit C;
(d) Intentionally Omitted;
(e) A wire transfer of immediately available federal funds in an amount
equal to the sum of (i) the Release Price (defined below) and (ii) all accrued
and unpaid interest with respect to the Note and any other amounts owing to
Lender in connection with the Release Premises pursuant to this Agreement, the
Note, the Mortgage or the other Loan Documents, including without limitation,
the Breakage Costs, the Exit Fee and the Shortfall Interest Payment (each as
defined in the Note);
(f) If applicable, all proposed documents related to the Release Premises
Transferee and such documents, certificates and assurances that Lender shall
reasonably request to evidence and confirm that the Release Premises is
simultaneously with the Property Release being transferred to a Release Premises
Transferee;
(g) Payment of all Lender's costs and expenses, including due diligence
review costs and reasonable counsel fees and disbursements incurred in
connection with the Property Release and the review and approval of the
documents and information required to be delivered in connection therewith
("Property Release Expenses");
(h) Evidence satisfactory to Lender that the Aggregate Debt Service
Coverage Ratio for the twelve (12) month period immediately preceding the
Property Release with respect to the Mortgaged Properties remaining encumbered
by the liens of the Mortgage after giving effect to the Property Release shall
be equal to or greater than the greater of (i) the Aggregate Debt Service
Coverage Ratio with respect to all of the Mortgaged Properties for the twelve
(12) months
immediately preceding the date hereof (1.42 to 1.00; the "Origination DSCR") or
(ii) the Aggregate Debt Service Coverage Ratio with respect to all of the
Mortgaged Properties then encumbered by the liens of the Mortgage immediately
prior to such release for the twelve (12) months immediately preceding the
calendar month prior to the date of the proposed Property Release (the "Current
DSCR"); and
(i) If Securities are then rated by the Rating Agencies, the written
confirmation of the Rating Agencies that the Property Release shall not result
in a downgrade, withdrawal or qualification of the then current ratings by the
applicable Rating Agencies of the Securities and otherwise in form and substance
reasonably satisfactory to Lender and its counsel.
(j) Definitions:
(i) The term "Release Price" shall mean the greater of : (A) the
"Release Price" for the Release Premises as set forth on Schedule A
attached and (B) 100% of the Net Refinancing/Sales Proceeds (defined below)
relating to the Release Premises.
(ii) The term "Net Refinancing/Sales Proceeds shall mean (A) in the
event of a Sale, the Sales Price or (B) in the event of a refinancing of a
portion of the Loan equal to the Allocated Loan Amount applicable to the
Release Premises, the original principal balance of the loan to be made by
the take-out lender with respect to such Release Premises, less customary
and reasonable expenses incurred, or arms-length origination fees and
expenses paid by the Owner, if applicable.
(iii) The term "Sale" shall mean any bona fide, arms length sale,
transfer, assignment, conveyance or encumbrance of the Release Premises
(including, without limitation, any of the events or transfers described in
Section 13 of this Loan Agreement), provided, however, that in no event
shall a "Sale" be deemed to refer to a sale, transfer or conveyance of the
Release Premises pursuant to: (a) a foreclosure of the Mortgage; (b) a deed
in lieu of such foreclosure (to either Lender, a nominee of Lender or an
independent third party); (c) a sale pursuant to a power of sale; (d) a
sale or other disposition of the Mortgaged Property pursuant to Sections
363, 725 or 1129 of the Bankruptcy Code; or (f) a taking or condemnation of
the Release Premises by any public or quasi-public authority through
eminent domain or otherwise.
(iv) The term "Sale Price" shall mean all consideration paid for the
Sale, including, without limitation, the stated purchase price, cash,
notes, any indebtedness assumed or taken subject to (whether directly or
indirectly), and all other consideration (direct or indirect) to whomever
paid, less customary proration, reasonable arms-length brokerage
commissions and reasonable arms-length selling expenses, including
reasonable attorneys' fees and disbursements and any and all transfer
and/or gains taxes (but in no event to include any income taxes) actually
paid by the seller in connection with the Sale.
(v) Notwithstanding the foregoing, in the event of a refinancing of a
Mortgaged Property, the Release Price shall always be calculated pursuant
to Subsection 61(j)(i)(B) above.
(k) The Allocated Loan Amounts set forth on Schedule A attached shall not
be reduced as a result of any principal prepayments made in accordance with this
Section 61.
(l) Notwithstanding anything to the contrary in this Section 61 or Section
13 hereof, Owner may (1) convert the Mortgaged Property identified as Property
No. 46 on Schedule A attached hereto to a condominium (the "Condominium
Conversion) pursuant to and in accordance with Condominium Documents delivered
to and approved by Lender in its sole and absolute discretion, and the
Condominium Act and (2) request a release of a portion of the Mortgaged Property
described as the Office Unit in the Declaration (the "Release"); provided the
conditions of this Subsection 61(l) are met. Lender shall consent to the
Condominium Conversion and the Release provided:
(i) Owner has delivered to Lender at least thirty (30) days' prior
written notice of the date of the Condominium Conversion (the "Conversion
Date") and the Release;
(ii) prior to the Conversion Date and the Release, Owner delivers to
Lender, at Owner's cost and expense (A) an endorsement to the existing
title policy insuring the Mortgaged Property as a condominium subject to no
exceptions other than the Permitted Exceptions and the Condominium
Documents, (B) executed Condominium Documents, (C) a proxy by Owner
appointing Lender to vote on its behalf on all matters in the Declaration,
(D) any other documentation reasonably requested by Lender in connection
with the Condominium Conversion and the Release, (E) such other evidence of
Owner's compliance with the Condominium Act, and (F) if a Securitization
has occurred, written confirmation from the Rating Agencies that the
Condominium Conversion and the Release shall not result in a withdrawal,
downgrade or qualification of the then current ratings by the applicable
Rating Agencies of the Securities and otherwise in form and substance
satisfactory to Lender and its counsel;
(iii) no Event of Default exists;
(iv) ingress to and egress from all portions of the Mortgaged Property
of which the Office Unit forms a part remaining after the Release (the
"Remaining Property") shall be over fully dedicated public roads;
(v) Owner shall have obtained: (1) (x) subdivision, zoning, building
and all other governmental approvals necessary or required so that the
Office Unit and the Remaining Property, shall, upon such Release, together
and separately, satisfy and comply, in all material respects and so that
any immaterial non-compliance does not adversely affect the lien of the
Mortgage or the value or utility of the Mortgaged Property as hotel, with
all the applicable subdivision, zoning, building, environmental protection
and all other applicable laws, rules, regulations and federal, state or
local
requirements, including sewer capacity requirements, or (y) a legal opinion
by counsel reasonably satisfactory to Lender, that the Office Unit and the
Remaining Property are each entitled to be used and occupied as of right
without reference to or reliance on the other parcel (other than the Common
Elements as set forth in the Declaration), and (2) either a legal opinion
by counsel reasonably satisfactory to Lender stating that, or an
endorsement to the title insurance policy insuring the lien of the related
Mortgage insuring that, the Office Unit has been designated, assessed and
taxed as a separate tax lot independent from the Remaining Property;
(vi) prior to the Release, Owner shall prepare and provide to Lender:
(1) condominium plats of all those portions of the Mortgaged Property which
are approved by all governmental and quasi-governmental authorities having
jurisdiction over the Office Unit and/or the Remaining Property, whose
approval as to such plans and maps is required; and (2) copies of each and
all proposed easements and cross-easements and mutual or non-exclusive
easements for ingress, egress, access, pedestrian walkways, parking,
traffic flow, utilities and services and utilities shared by the Remaining
Property and the Office Unit and the like which may be required by any
governmental or quasi-governmental authority having jurisdiction or which
are necessary or advisable;
(vii) such condominium plats shall show such parking structures and
parking layouts as will afford, to the Improvements located on the
Remaining Property, the equivalent of the exclusive use of the aggregate
number of parking spaces to be provided on the Property under all Leases,
if any, affecting the Remaining Property, and the number of parking spaces
required by the then applicable zoning requirements for the Remaining
Property or an opinion of counsel regarding the matters set forth in this
(vii) acceptable to Lender and its counsel in all respects in its
discretion;
(viii) Owner shall provide Lender with such surveys, drawings, plans,
specifications, proposed easements and consents, certificates and
agreements, such legal opinions from attorneys acceptable to Lender and
such other evidence as Lender may reasonably request or require to
determine that the foregoing conditions have been satisfied;
(ix) all Leases, if any, demising any part of the Remaining Property
shall remain in full force and effect and unaffected in any manner as a
result of the Release;
(x) all operating agreements affecting all or any part of the
Remaining Property or the Office Unit shall remain in full force and effect
and remain otherwise unaffected as a result of the Release;
(xi) The applicable Owner shall simultaneously with the Release
transfer title to the Office Unit to a Release Premises Transferee and such
Release Premises Transferee shall assume all obligations and liabilities
(other than those related to the Note, which the Office Unit is being
released from) related to the Office Unit, if any, from and after the date
of such transfer and such third party Release Premises Transferee shall
erect and operate additional structures whose use is integrated and
consistent with the use of the Office Unit;
(xii) Owner shall pay all of Lender's costs and expenses (including
reasonable counsel fees and disbursements) incurred in connection with
Lender's review of the foregoing items, the determination of the
satisfaction of such conditions and otherwise incurred in connection with
the Release and the Condominium Conversion; and
(xiii) Lender shall release such Office Unit from the lien of the
related Mortgage, promptly after: (1) all such easements, consents and
rights as described above shall have been obtained; and (2) all of the
requirements of this paragraph 61(k) have been satisfied.
All instruments of release shall be in duly recordable form and contain
such covenants, conditions and restrictions and shall reserve such rights and
easements with respect to the Office Unit as are necessary to protect and
preserve Lender's interests in the Remaining Property after any such release.
62. INTENTIONALLY OMITTED
63. INTENTIONALLY OMITTED
64. REQUIRED REPAIRS; REQUIRED REPAIR FUNDS
(a) Owner shall perform the repairs at its Mortgaged Properties, including,
without limitation, capital improvements, tenant improvements and leasing
commissions incurred in connection therewith as more particularly set forth on
Schedule D hereto (such repairs hereinafter referred to as "Property Required
Repairs"). Owner shall spend the sums set forth under the column entitled
"Allocated Amount" contained under the headings "Special FF&E Reserve Account"
and "$23,000,000 Escrow Account for Deferred Maintenance" on Schedule D and
complete all of the Property Required Repairs on the following dates (the
"Required Repairs Completion Date"): (1) on or before the earlier of (A)
September 1, 1999 and (B) the required completion date for such work as set
forth in the applicable PIP, if any, with respect to all Mortgaged Properties
(except the Town Center Property) and (2) on or before the Maturity Date, or if
the Loan is extended pursuant to the terms of the Note, March 1, 2000, with
respect to the Town Center Property . On the date hereof, Owner shall deposit
with Lender an amount equal to $23,000,000, representing a portion of the cost
to perform the Property Required Repairs for each Mortgaged Property as set
forth on Schedule D hereto (the "Initial Deposit"). Additionally, upon the
earlier of June 1, 1999 and the first day of the calendar month immediately
following the date Owner commences the renovations at Property No. 41 listed on
Schedule A attached hereto (the "Town Center Property"), as required by the
Franchisor (the "Monthly Deposit Commencement Date"), Owner shall make (i) three
(3) monthly deposits in the amount of $1,300,000 each, commencing on the Monthly
Deposit Commencement Date and on the first day of each calendar month thereafter
through and including the month which is two (2) months after the Monthly
Deposit Commencement Date and (ii) a monthly deposit in the amount of $1,400,000
on the first day of the calendar month which is three (3) months after the
Monthly Deposit Commencement Date (collectively, the "Required Repairs
Monthly Deposits"). The Initial Deposit together with the Required Repairs
Monthly Deposits shall hereinafter be referred to as the "Required Repair Fund".
Notwithstanding the foregoing, Owner acknowledges that it shall spend from its
own funds in order to complete the Property Required Repairs on or before the
Required Repairs Completion Date the positive difference between (1) the sum of
the Required Repair Fund and the Special FF&E Repair Deposit, and (2) the
aggregate amount of the cost estimates for all of the Mortgaged Properties set
forth on Schedule D. Lender will maintain the Required Repair Fund in a
segregated account (the "Required Repair Account"), which shall be an Eligible
Account, and the Required Repair Fund shall be invested and reinvested by
Lender, at Owner's direction, in one or more Eligible Investments, subject to
the following restrictions: (A) such Eligible Investments and the proceeds
thereof shall be deemed a part of the Required Repair Fund; (B) each such
Eligible Investment shall be made in the name of Lender (in its capacity as
such) or in the name of a nominee of Lender under its complete and exclusive
dominion and control or, if applicable law provides for perfection of pledges of
an instrument not evidenced by a certificate or other instrument through
registration of such pledge on books maintained by or on behalf of the issuer of
such investment, such pledge may be so registered; (C) Lender shall have the
sole control over such investment, the income thereon and the proceeds thereof;
(D) other than investments described in clause (B) above, any certificate or
other instrument evidencing such investment shall be delivered directly to
Lender or its agent; (E) the proceeds of each investment shall be remitted by
the purchaser thereof directly to Lender and (F) Lender shall not be liable for
any loss sustained on the investment of any funds constituting a part of the
Required Repair Fund (except for losses resulting from Lender's gross negligence
or wilful misconduct).
(b) Owner hereby grants a first priority security interest to Lender, as
security for payment of all sums due under the Loan and the performance of all
other terms, conditions and covenants on Owner's part to be paid and performed,
in all of Owner's right, title and interest in and to the Required Repair Fund
and the Required Repair Account and shall execute and deliver to Lender such
UCC-1 Financing Statements and other documents or instruments as Lender may
request in order to grant and perfect such security interest. Owner shall not,
without obtaining the prior written consent of Lender, further pledge, assign or
grant any security interest in the Required Repair Fund or the Required Repair
Account or permit any lien or encumbrance to attach thereto, or any levy to be
made thereon, or any UCC-1 Financing Statements, except those naming Lender as
the secured party, to be filed with respect thereto. Upon the occurrence of an
Event of Default, Lender may apply any sums then present in the Required Repair
Fund to the payment of the Debt in any order in its sole discretion. Until
expended or applied as herein provided, the Required Repair Fund shall
constitute additional security for the Debt.
(c) After Owner's Initial Deposit into the Required Repair Account pursuant
to paragraph (a) hereof, Lender shall disburse to Owner the Required Repair
Funds from the Required Repair Account from time to time upon satisfaction by
Owner of each of the following conditions: (a) Owner shall submit a written
request for payment to Lender at least ten (10) days prior to the date on which
Owner requests such payment be made and specifies the Property Required Repairs
to be paid; (b) the request for disbursement for funds for an individual
Mortgaged Property together with all prior disbursements for such individual
Mortgaged Property shall not exceed the aggregate "Allocated Amount" for such
individual Mortgaged Property set forth on Schedule D under the headings
"Special FF&E Reserve Account" and "$23,000,000 Escrow Account for Deferred
Maintenance"; (c) on the date such request is received by Lender and on the date
such payment is to be made, no Event of Default shall exist and remain uncured;
(d) Lender shall have received a certificate from Owner (i) stating that all
Property Required Repairs at the applicable Mortgaged Property funded by the
prior requested disbursement have been completed in
good and workmanlike manner and in accordance with all applicable federal, state
and local laws, rules and regulations, (ii) any license, permit or other
approval by any Governmental Authority required to commence and/or complete the
Property Required Repairs to be funded by the requested disbursement have been
obtained, (iii) identifying each person that will supply materials, labor or
service in connection with the Property Required Repairs to be performed at such
Mortgaged Property and to be funded by the requested disbursement and including
copies of invoices or statements from each such person or entity setting forth
the costs for such materials or labor, and (iv) stating that each person or
entity that supplied materials or labor in connection with the Property Required
Repairs performed at a Mortgaged Property and funded by the prior requested
disbursement has been paid all amounts to be paid to such person or entity as
set forth in the written request with respect to such prior requested
disbursement and setting forth the amount paid to each such person and, if such
requested disbursement includes amounts constituting the final payment to any
person on account of any Property Required Repairs, such certificate shall be
accompanied by lien waivers or other evidence of payment satisfactory to Lender;
(e) at Lender's option if the amount disbursed for Property Required Repairs
with respect to an individual Mortgaged Property under the prior requested
disbursement exceeded a total of Two Hundred Thousand and No/100 Dollars
($200,000), a title search for any such Mortgaged Property indicating that such
Mortgaged Property is free from all liens, claims and other encumbrances not
previously approved by Lender, and (f) Lender shall have received copies of paid
invoices for amounts disbursed to Owner for its previous advance, together with
such other evidence as Lender shall reasonably request that the Property
Required Repairs at any Mortgaged Property funded by the prior requested
disbursement have been completed and the related costs and expenses have been
paid. Lender shall not be required to make disbursements from the Required
Repair Account with respect to any such Mortgaged Property more frequently than
twice per calendar month and unless such requested disbursement is in an amount
greater than Fifteen Thousand and No/100 Dollars ($15,000) (or a lesser amount
if the total amount in the Required Repair Account is less than Fifteen Thousand
and No/100 Dollars ($15,000), in which case only one disbursement of the amount
remaining in the account shall be made) and such disbursement shall be made only
upon satisfaction of each condition contained in this paragraph (c). Prior to
Owner's initial deposit of funds into the Required Repair Fund in accordance
with paragraph (b) hereof or thereafter with respect to any calendar month
during which a request for payment from the Required Repair Fund is not
submitted to Lender pursuant to this paragraph (c), Owner shall deliver to
Lender, as a part of the monthly reports to be delivered pursuant to Section 19
of the Mortgage, a certificate setting forth the amounts paid during the
preceding calendar month for Property Required Repairs and setting forth each
person to whom such amounts were paid, the amount paid to each such person or
entity and the related Property Required Repairs performed by each such person.
Notwithstanding anything contained to the contrary in this Agreement, (i) Owner
shall be entitled to request disbursements for funds for an individual Mortgaged
Property provided (A) the subject request together with all prior disbursements
for such individual Mortgaged Property shall not exceed the aggregate "Allocated
Amount" for such individual Mortgaged Property set forth under both of the
headings "Special FF&E Reserve Account" and "$23,000,000 Escrow Account for
Deferred Maintenance" irrespective of whether the FF&E Replacement Reserve Fund
is applied at the time of the subject request to the disbursement to Owner, and
(B) the disbursement request for certain Property Required Repairs for a
Mortgaged Property is no more than the cost estimate for such Property Required
Repair as set forth in the budget line item for the applicable Mortgaged
Property on Schedule D; (ii) in the event that the Special FF&E Repairs have
been completed and the "Allocated Amount" set forth under the heading "Special
FF&E Reserve Account" has been disbursed to Borrower from the Required Repairs
Fund and spent by Borrower in accordance with this Section 64, Borrower may
reallocate a portion of the FF&E Replacement Reserve Fund earmarked for the
Special FF&E Repairs as set
forth in Section 7 in the amount of the applicable "Allocated Amount" for such
Mortgaged Property to Property Required Repairs set forth on Schedule D for
other Mortgaged Properties, as reasonably approved by Lender, (iii) in the event
that Owner delivers evidence, reasonably satisfactory to Lender, indicating that
the actual cost to complete the Property Required Repairs is less than the cost
set forth under the column "Allocated Amount" under the heading "$23,000,000
Escrow Account for Deferred Maintenance", Owner may reallocate such cost savings
to another Property Required Repair item set forth on Schedule D for such other
Mortgaged Property, (iv) Owner shall not be permitted to request disbursements
from the Required Repair Fund for the Town Center Property until the Owner
deposits the Required Repairs Monthly Deposits into the Property Required Repair
Fund, in which case the Owner may request disbursements from the Property
Required Repair Fund in an amount not to exceed the amount of the Required
Repairs Monthly Deposits deposited to date (less any prior disbursements to
Owner for the Town Center Property).
(d) It shall be an Event of Default under this Agreement if (i) Owner does
not exercise diligent efforts to complete the Property Required Repairs at each
Mortgaged Property by the required deadline for each repair as set forth on
Schedule D or (ii) Owner does not make the Initial Deposit or the Required
Repairs Monthly Deposits into the Required Repair Fund in accordance with
paragraph (a) hereof. Upon the occurrence of an Event of Default, Lender, at its
option, may withdraw all Required Repair Funds from the Required Repair Account
and Lender may apply such funds either to completion of the Property Required
Repairs at one or more of the Mortgaged Properties or toward payment of the Debt
in such order, proportion and priority as Lender may determine in its sole
discretion. Lender's right to withdraw and apply Required Repair Funds shall be
in addition to all other rights and remedies provided to Lender under this
Agreement and the other Loan Documents.
65. SPECIAL CONDOMINIUM RIDER. (a) This Condominium Rider applies, as of
the date hereof, or with respect to the Mortgaged Property identified as
Property No. 46 attached hereto, as of the Condominium Conversion, to the
following Mortgaged Properties listed on Schedule A attached hereto:
(i) Town Center, Silver Spring, Maryland, Property No. 41;
(ii) Holiday Inn Washington, D.C., Silver Spring, Maryland, Property No.
46;
(iii) Comfort Inn Roseville, Roseville, Minnesota, Property No. 51; and
(iv) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Property No. 73.
In the event of any inconsistency between the terms and conditions of this
Section 65 of this Loan Agreement and any other terms of this Loan Agreement,
the terms of this Section 65 shall control.
(b) Section 5 of this Loan Agreement entitled "PAYMENT OF TAXES" is hereby
deleted in its entirety and the following language is hereby inserted as Section
5:
Owner shall pay all taxes and assessments now or hereafter levied, assessed
or imposed against the Mortgaged Property or any part thereof (collectively, the
"Taxes"), all ground rents, maintenance charges, water rates and sewer rents,
other governmental impositions, and other charges including, without limitation,
vault charges and license fees for the use of vaults, chutes and similar areas
adjoining the Premises, now or hereafter levied, assessed or imposed against the
Mortgaged Property or any part thereof (collectively, the "Other Charges"), and
all common charges, assessments and special assessments imposed pursuant to the
Condominium Documents
(collectively, the "Condominium Charges") as they become due and payable. If
requested by Lender, Borrower will deliver to Lender evidence satisfactory to
Lender that the Taxes, Other Charges and Condominium Charges have been so paid,
or are not then delinquent. Owner shall not suffer, and shall promptly cause to
be paid and discharged, any lien or charge whatsoever which may be or become a
lien or charge against the Mortgaged Property, and shall promptly pay for all
utility services provided to the Mortgaged Property. If requested by Lender,
Owner shall furnish to Lender or its designee receipts for the payment of the
Taxes and/or Condominium Charges prior to the date that such obligations shall
become delinquent. Owner shall be entitled to contest by appropriate legal
proceeding, promptly initiated and conducted in good faith and with due
diligence, the amount of any Taxes, Other Charges or Condominium Charges.
Notwithstanding the preceding sentence, during the pendency of any such contest
Owner shall pay or cause to be paid all Taxes, Other Charges and Condominium
Charges as and when due and payable, or otherwise in accordance with Section 32
hereof.
(c) Subject to any provisions of the Condominium Documents with respect
hereto, Lender may apply any condemnation award or payment in accordance with
Section 8 of this Loan Agreement entitled "CONDEMNATION." Notwithstanding
anything to the contrary herein, with respect to the Town Center Property only,
the application of any condemnation award shall be subject to the terms of the
applicable Ground Lease.
(d) The following language is hereby inserted at the end of Section 14 of
this Loan Agreement entitled "ESTOPPEL CERTIFICATES; AFFIDAVITS" as subsection
14(f):
(f) Owner shall use its best efforts to cause to be delivered to
Lender upon request, an estoppel certificate from the Condominium
Association in form and substance reasonably satisfactory to Lender, which
shall include without limitation (i) the amount of the unpaid Condominium
Charges, if any, accrued against the Mortgaged Property, (ii) that the
Condominium Documents have not been modified or amended, (iii) that all
payments due and payable by Owner under the Condominium Documents have been
paid in full, and (iv) that neither Owner nor the Association is in default
under the Condominium Documents.
(e) Section 20 of this Loan Agreement entitled "PERFORMANCE OF OTHER
AGREEMENTS" is hereby deleted in its entirety and the following language is
hereby inserted as Section 20:
Owner shall observe and perform each and every term to be observed or
performed by Owner pursuant to the terms of any material agreement or recorded
instrument affecting or pertaining to the Mortgaged Property, including without
limitation, the Condominium Documents. Nothing herein shall operate in
derogation of any obligation of Owner under the Loan Documents.
(f) The following language is hereby inserted at the end of Section 24 of
this Loan Agreement entitled "EVENTS OF DEFAULT":
(x) if any of the Condominium Charges imposed pursuant to the
Condominium Documents are not paid when the same are due and payable;
(y) if the Condominium Association fails, in accordance with the terms
of the Condominium Documents (a) to maintain the Common Elements and/or the
Mortgaged Property, as applicable, in good condition and repair, (b) to
promptly comply with all laws, orders, and ordinances affecting the Common
Elements and/or the Mortgaged Property, as applicable, or the use thereof,
(c) to promptly repair, replace or rebuild any part of the Common Elements
and/or the Mortgaged Property, as applicable, which may be damaged or
destroyed by any casualty or which may be affected by any proceeding of the
character referred to in Section 8 hereof, (d) to complete and pay for,
within a reasonable time, any structure at any time in the process of
construction or repair on the Common Elements, all to the extent that the
Condominium Association is authorized to so maintain, repair, replace,
rebuild and complete the Common Elements by the Condominium Documents and
such default shall continue for a period of sixty (60) days after written
notice thereof specifying such default and requiring the same to be
remedied shall have been given to the person designated from time to time
in accordance with the Condominium Documents to receive service of process,
(except with respect to a Condominium where Owner does not have control of
the Condominium Association only, excluding such failures in (a) -(d) above
which shall not cause a Material Adverse Effect and which Owner has
promptly commenced an action against the Condominium Association to cause
the Condominium Association to cure such failure);
(z) if the Condominium Association fails in accordance with the terms
of the Condominium Documents, (a) to keep the Common Elements and/or the
Mortgaged Property, as applicable, insured against the hazards specified in
the Condominium Documents in the amounts and pursuant to policies in the
form specified therein, and (b) to pay, as and when the same becomes due
and payable, any charge or encumbrance which, if unpaid, might become a
lien against the Mortgaged Property or any part thereof prior to or on a
parity with the lien of the Mortgage, if such failure shall result in the
imposition of a lien against the Mortgaged Property and such lien shall not
be discharged, dismissed or bonded within 30 days of such imposition;
(aa) if any provision of the Condominium Act or any section, sentence,
clause, phrase or word, or the application thereof in any circumstance is
held invalid wholly or partially and, in the sole judgment of Lender, such
invalidity shall adversely affect the lien of the Mortgage or the rights of
Lender thereunder;
(bb) if, without the prior written consent of Lender, any of the
material terms or provisions of the Condominium Documents are modified,
amended or terminated;
(cc) if, without the prior written consent of Lender, Owner fails to
comply with any terms of the Condominium Documents and the Condominium Act;
(dd) if the Condominium shall become subject to any action for
partition by any unit owner and the action is not dismissed within thirty
(30) days;
(ee) if, without the prior written consent of Lender, the Declarant,
such other party as may in writing be designated by Declarant, or any other
party, as the case may be, expands or causes the expansion of the
Condominium and annexes to the land covered by the Condominium additional
land and improvements thereon;
(ff) if the Condominium Association shall fail to allow Lender to
examine the
books, records and receipts of the Condominium in accordance with the
Condominium Documents; or
(gg) if the Mortgaged Property is withdrawn from the condominium
regime established by the Condominium Act in connection with any
Condemnation, any casualty or otherwise, in accordance with the Condominium
Act.
(g) CONDOMINIUM COVENANTS
(i) Owner shall promptly deliver to Lender a true and full copy of all
notices of default received by the Owner with respect to any obligation or
duty of the Owner under the Condominium Documents.
(ii) Owner shall not, except with the prior written consent of the
Lender (a) institute any action or proceeding for partition of the
Mortgaged Property; (b) vote for or consent to any modification of,
amendment to or relaxation in the enforcement of the Condominium Documents
or the termination of the Condominium; (c) expand or cause the expansion of
the Condominium and annex to the land covered by the Condominium additional
land and improvements thereon; and (d) in the event of damage to or
destruction of the Common Elements or other portions of the Condominium
other than the Mortgaged Property, vote not to repair, restore or rebuild
the Common Elements or other portions of the Condominium other than the
Mortgaged Property if Owner shall have such a voting right.
(h) DEFINED TERMS
The following terms shall have the following meanings, provided, however,
unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used herein which are defined in the
Condominium Act shall have the meanings set forth therein:
(i) "Condominium" shall have the meaning ascribed to it in
Declaration.
(ii) "Condominium Act" shall mean (1) the provisions of Title 11 of
the Real Property Article of the Annotated Code of Maryland (1996), as the
same may hereafter be amended, (2) the Minnesota Uniform Condominium Act,
as the same may hereafter be amended, or (3) the Horizontal Property Act of
the State of South Carolina, Title 27, Chapter 31, Code of Laws of South
Carolina, 1976, as the same may hereafter be amended, as the case may be.
(iii) "By-laws" shall mean (1) the By-laws of the Council of Unit
Owners of Colesville ▇▇▇▇▇▇ Condominium, (2) the By-laws of the Council of
Unit Owners of Silver Spring Plaza Condominium in the form and on the terms
of those certain By-laws attached hereto as Exhibit D, (3) the By-laws of
Rosedale Corporate Condominium, Inc., or (4) the By-laws of Oceanwalk Two
Horizontal Owners' Association, as the case may be.
(iv) "Declaration" shall mean (1) that certain Declaration for
Colesville ▇▇▇▇▇▇ Condominium dated February 18, 1998, (2) that certain
Declaration for Silver Spring Plaza Condominium in the form and on the
terms approved by Lender in accordance with this Agreement, (3) that
certain Declaration of Rosedale Corporate Condominium, Inc. dated August 3,
1997, as amended by that certain First Amendment of the Declaration dated
October 2, 1997 or (4) that certain Master Deed of Oceanwalk Two Horizontal
Property Regime dated February 19, 1991, as amended by that certain First
Amendment to the Master deed dated December 17, 1997, as the case may be.
(v) "Condominium Association" shall mean the organization managing the
Mortgaged Property by virtue of the Condominium Act and the Condominium
Documents, on behalf of all the owners of the units comprising the
Mortgaged Property.
(vi) "Condominium Documents" shall mean collectively the "Declaration"
and the "By-laws".
(vii) "Common Elements" shall have the meaning ascribed to them in the
Declaration.
(viii) "Declarant" shall have the meaning ascribed to it in the
Declaration.
(i) Term Center
Notwithstanding anything to the contrary herein, with respect to the Town
Center Property only, this Section 65 shall be subject to the terms and
conditions of the Condominium Documents and the Ground Lease.
66. LOCK-BOX ACCOUNT.
(a) (i) The parties agree and acknowledge that Servico, Inc., Manager and
the participants listed on Schedule E attached hereto (the "Participants"),
which include the Borrower Participants (which shall include in each instance
when used herein, Canadian Guarantor) and the Non-Borrower Participants,
maintain, and intend to continue to maintain a single cash management system
under which cash receipts of the Participants and credit card receivables from
the operations of the properties listed on Schedule F attached hereto (the
"Properties") and other receipts of Manager and Servico, Inc. are deposited into
accounts in the name of Servico, Inc., which accounts are Eligible Accounts; and
thereafter required disbursements are made on behalf of the Participants,
Manager and Servico, Inc. ("the Cash Management System"); provided, however,
that amounts due pursuant to this Loan Agreement, the Note and the Mortgage
shall be transferred by Servico, Inc. and Manager, as due, to the respective
Owner by deposit into accounts in the names of each respective Owner from which
such required payments to Lender shall be made, which accounts in the name of
the Owner are Eligible Accounts. Upon the occurrence of a Triggering Event
(defined below), the Owner will cease to participate in the Cash Management
System. The Cash Management System shall not be modified or amended by the
Participants in a manner which affects the rights and/or obligations of the
Borrower Participants in any manner whatsoever without the prior written consent
of Lender.
(ii) The parties agree and acknowledge that the use of funds in the Cash
Management System shall not be restricted and no interest is or shall be charged
or collected by or from any Participant or Servico, Inc. or any of their
respective affiliates with respect to funds aggregated in the Cash Management
System.
(iii) Servico, Inc. shall prepare and maintain complete and accurate
accounting records with respect to all transactions under the Cash Management
System, including, without limitation, the deposit of all cash receipts, the
electronic transmittal of credit card receivables, the payment of all expenses,
any earnings on invested funds and amounts disbursed to the Owner for the
payment of amounts due under the Loan Agreement and shall prepare and maintain
for each Participant a running balance of deposits to, withdrawals from and
amounts owing to and from each Participant in the Cash Management System.
(iv) The parties agree and acknowledge that the cash receipts from each
hotel owned by a Owner or a non-Borrower Participant beyond the immediate
on-site ▇▇▇▇▇ cash needs of the Owner are first deposited into a bank account in
the name of such hotel, which account is an Eligible Account, and thereafter
such amounts may be transferred to a bank account, which is an Eligible Account,
in the name of Servico, Inc. (the "Concentration Account"). Receipts from charge
cards are deposited directly into the Concentration Account.
(v) All checks issued in payment of any Owner's expenses shall indicate by
printed or typed identification that Owner is the entity for which payment is
made.
(vi) Whenever a Participant shall have paid or contributed more to the Cash
Management System than had been withdrawn or paid on its behalf (an "Overpaying
Participant"), such Overpaying Participant shall be a creditor of Servico, Inc.
for the amount of the overpayment and every Participant that has withdrawn or
has paid on its behalf more than it paid or contributed to the Cash Management
System (an "Underpaying Participant") shall be obligated to Servico, Inc. for
the amount of such Underpaying Participant's underpayment.
(vii) The parties agree and acknowledge that the Cash Management System
constitutes a lending arrangement between Owner and Servico, Inc., and a
financial accommodation between Owner and Servico, Inc., and that upon any
Triggering Event or if a receiver, liquidator or trustee shall be appointed for
Servico, Inc., Manager or a Non-Borrower Participant or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or
any similar federal or state law, shall be filed by or against Servico, Inc.,
Manager or a Non-Borrower Participant at Lender's option upon notice from
Lender, the Owner shall immediately cease to participate in the Cash Management
System and shall reconcile in cash any underpayments or overpayments existing at
that time and Lender may cause the cash receipts and credit card receivables of
Owner to be paid directly to Lender as if a Triggering Event shall have
occurred until Lender is reasonably satisfied that Owner is no longer
participating in the Cash Management System.
(viii) Claims held against Servico, Inc. pursuant to paragraph (vi) hereof
by a Owner that is an Overpaying Participant and claims held by Servico, Inc.
against a Participant that is an Underpaying Participant shall become
immediately due and payable upon the earlier to occur of: (A) a demand for
payment thereof, (B) the withdrawal by the Owner from the Cash Management System
pursuant to paragraph (vii) hereof or (C) an Event of Default; provided,
however, that any obligation of any Owner hereunder upon such events shall be
paid only from available net income of the Owner, after payment of debt service,
the funding of any required reserves required hereunder and the payment of
Owner's operating expenses in accordance with the terms of this Loan Agreement.
(ix) Lender, and its successors and assigns, shall be a third-party
beneficiary hereto with the ability to enforce same for its own benefit and on
behalf of each Owner.
(x) Any wholly-owned Affiliate of Servico, Inc. may be made a party to this
Cash Management Agreement as a Non-Borrower Participant or, in the case of any
Affiliate that has granted a mortgage to Lender, as a Owner, by a written
amendment executed by such Affiliate, Servico, Inc. and Manager. This Section 66
may not be amended with respect to the rights of any Owner hereunder without the
prior written consent of Lender.
(xi) This Section 66 shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and upon any entity or
person becoming a participant in the Cash Management System subsequent to the
date hereof.
(xii) In the event of any inconsistency between this Section 66 and any
prior cash management agreement executed by the Participants, this Section
controls with respect to Borrower Participants.
(b) (i) Upon the occurrence and continuance of an Event of Default, or (ii)
if at any time the Aggregate Debt Service Coverage Ratio for the twelve (12)
month period immediately preceding the date of the calculation is less than or
equal to 1.35 to 1.0, as tested monthly by Lender (collectively, the "Triggering
Events"), Owner shall establish and maintain a segregated Eligible Account (the
"Lockbox Account") to be held by Lender, pursuant to the Cash Management
Agreement attached hereto as Exhibit E and made a part hereof, which Lockbox
Account shall be under the sole dominion and control of Lender. Owner hereby
grants to Lender a first priority security interest in the Lockbox Account and
all deposits at any time contained therein and the proceeds thereof and will
take all actions
necessary to maintain in favor of Lender a perfected first priority security
interest in the Lockbox Account, including, without limitation, executing and
filing UCC-1 Financing Statements and continuations thereof. Owner will not in
any way alter or modify the Lockbox Account and will notify Lender of the
account number thereof. Lender shall have the sole right to make withdrawals
from the Lockbox Account and all costs and expenses for establishing and
maintaining the Lockbox Account shall be paid by Owner.
(c) Upon the establishment of the Lockbox Account, Owner shall deposit, or
shall cause to be deposited, the Rent and Accounts Receivable directly into the
Lockbox Account, and Owner shall, or shall cause each Manager to deliver written
instructions to all tenants under Leases and credit card companies to deliver
all Rents and Accounts Receivable payable thereunder directly to the Lockbox
Account in the forms attached hereto as Exhibit F and made in part hereof. Owner
shall, and shall cause each Manager, to deposit all amounts received by Owner or
Manager constituting Rents and Accounts Receivable into the Lockbox Account
within one (1) Business Day of receipt thereof. Owner agrees that the fully
executed Cash Management Agreement attached as Exhibit E shall become effective
upon the Triggering Events.
(d) All funds on deposit in the Lockbox Account shall be applied by Lender
to the payment of any amounts then due and payable under the Loan Documents in
accordance with the terms of the Cash Management Agreement.
(e) The insufficiency of funds on deposit in the Lockbox Account shall not
absolve Owner of the obligation to make any payments, as and when due pursuant
to this Agreement and the other Loan Documents, and such obligations shall be
separate and independent, and not conditioned on any event or circumstance
whatsoever.
67. GROUND LEASES. Further supplementing the terms, conditions and
provisions of the Mortgage:
(a) Owner shall (i) pay all rents, additional rents and other sums required
to be paid by Owner, as tenant under and pursuant to the provisions of the
Ground Lease, (ii) diligently perform and observe all of the terms, covenants
and conditions of the Ground Lease on the part of Owner, as tenant thereunder,
and (iii) promptly notify Lender of the giving of any notice by the landlord
under the Ground Lease to Owner of any default by Owner, as tenant thereunder,
and deliver to Lender a true copy of each such notice. Owner shall not, without
the prior consent of Lender, surrender the leasehold estate created by the
Ground Lease or terminate or cancel the Ground Lease or modify, change,
supplement, alter or amend the Ground Lease, in any respect, either orally or in
writing, and if Owner shall default in the performance or observance of any
term, covenant or condition of the Ground Lease on the part of Owner, as tenant
thereunder, Lender shall have the right, but shall be under no obligation, to
pay any sums and to perform any act or take any action as may be appropriate to
cause all of the terms, covenants and conditions of the Ground Lease on the part
of Owner to be performed or observed on behalf of Owner, to the end that the
rights of Owner in, to and under the Ground Lease shall be kept unimpaired and
free from default. If the
landlord under the Ground Lease shall deliver to Lender a copy of any notice of
default under the Ground Lease, such notice shall constitute full protection to
Lender for any action taken or omitted to be taken by Lender, in good faith, in
reliance thereon. Owner shall exercise each individual option, if any, to extend
or renew the term of the Ground Lease upon demand by Lender made at any time
within one (1) year prior to the last day upon which any such option may be
exercised, and Owner hereby expressly authorizes and appoints Lender its
attorney-in-fact to exercise any such option in the name of and upon behalf of
Owner, which power of attorney shall be irrevocable and shall be deemed to be
coupled with an interest.
(b) Notwithstanding anything contained in the Ground Lease to the contrary,
subject to Section 9 hereof, Owner shall not further sublet any portion of the
Mortgaged Property without prior written consent of Lender. Each such
Lender-approved sublease hereafter made shall provide that, (a) in the event of
the termination of the Ground Lease, the lease shall not terminate or be
terminable by the lessee; (b) in the event of any action for the foreclosure of
this Mortgage, the lease shall not terminate or be terminable by the subtenant
by reason of the termination of the Ground Lease unless the lessee is
specifically named and joined in any such action and unless a judgment is
obtained therein against the lessee; and (c) in the event that the Ground Lease
is terminated as aforesaid, the lessee shall attorn to the lessor under the
Ground Lease or to the purchaser at the sale of the Mortgaged Property on such
foreclosure, as the case may be. In the event that any portion of the Premises
shall be sublet pursuant to the terms of this Subsection, such sublease shall be
deemed to be included in the Mortgaged Property.
68. CONTRIBUTION.
(a) Contribution. As a result of the transactions contemplated by this
Agreement, each Owner will benefit, directly and indirectly, from the
Obligations and in consideration therefor desire to enter into an allocation and
contribution agreement among themselves as set forth in this Section 68 to
allocate such benefits among themselves and to provide a fair and equitable
agreement to make contributions among the entities comprising the Owner in the
event any payment is made by any Owner hereunder to the Lender (such payment
being referred to herein as a "Contribution," and for purposes of this
Agreement, includes any exercise of recourse by the Lender against any Mortgaged
Property of a Owner and application of proceeds of such Mortgaged Property in
satisfaction of such Owner's obligations, to the Lender under this Agreement).
The Owner hereby agrees as follows:
(b) Limit of Liability. Each Owner shall be liable under this Agreement
with respect to the Debt only for such total maximum amount (if any) that would
not render its Obligations hereunder or under any of the Loan Documents subject
to avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any state law.
(c) Calculation of Contribution. In order to provide for a fair and
equitable contribution among the entities comprising the Owner in the event that
any Contribution is made by a Owner (a "Funding Owner"), such Funding Owner
shall be entitled to a reimbursement Contribution ("Reimbursement Contribution")
from all other Owners for all payments, damages and expenses incurred by that
Funding Owner in discharging any of the Obligations, in the manner and to the
extent set forth in this Section. The amount of any Reimbursement Contribution
under this Agreement shall be equal to the payment made by the Funding Owner to
the Lender or any other beneficiary pursuant to this Agreement and shall be
determined as of the date on which such payment is made.
(d) Benefit Amount Defined. For purposes of this Agreement, the "Benefit
Amount" of any Owner as of any date of determination shall be the net value of
the benefits to such Owner and its affiliates from extensions of credit made by
the Lender to (A) such Owner and (B) to the other entities comprising the Owner
under this Agreement and the Loan Documents to the extent such other entities
comprising the Owner have guaranteed or mortgaged their Mortgaged Properties to
secure the Obligations of such Owner to the Lender.
(e) Reimbursement Contribution Obligation. Each Owner shall be liable to a
Funding Owner in an amount equal to the greater of (A) the (i) ratio of the
Benefit Amount of such Owner to the total amount of Obligations, multiplied by
(ii) the amount of Obligations paid by such Funding Owner, or (B) 95% of the
excess of the fair saleable value of the property of such Owner over the total
liabilities of such Owner (including the maximum amount reasonably expected to
become due in respect of contingent liabilities) determined as of the date on
which the payment made by a Funding Owner is deemed made for purposes of this
Agreement (giving effect to all payments made by other Funding Owners as of such
date in a manner to maximize the amount of such Contributions).
(f) Allocation. In the event that at any time there exists more than one
Funding Owner with respect to any Contribution (in any such case, the
"Applicable Contribution"), then Reimbursement Contributions from other entities
comprising the Owner pursuant to this Agreement shall be allocated among such
Funding Owners in proportion to the total amount of the Contribution made for or
on account of the other Owners by each such Funding Owner pursuant to the
Applicable Contribution. In the event that at any time any Owner pays an amount
under this Agreement in excess of the amount calculated pursuant to Subsection
(c) above, that Owner shall be deemed to be a Funding Owner to the extent of
such excess and shall be entitled to a Reimbursement Contribution from the other
Owners in accordance with the provisions of this Section.
(g) Asset of Party to Which Reimbursement Contribution is Owing. Each Owner
acknowledges that the right to Reimbursement Contribution hereunder shall
constitute an asset in favor of the Owner to which such Reimbursement
Contribution is owing.
(h) Subordination. No Reimbursement Contribution payments payable by a
Owner pursuant to the terms of this Section 68 shall be paid until all amounts
then due and payable by all of the Owners to the Lender, pursuant to the terms
of the Note, this Agreement and the other Loan Documents, are paid in full in
cash. Nothing contained in this Section 68 shall limit or affect in any way the
Obligations of any Owner to Lender under this Agreement or any other Loan
Documents.
69. RECOURSE.
The Loan, the Obligations and the Other Obligations shall be with full
recourse to the Borrower, Canadian Guarantor and the Guarantor.
70. CONFIDENTIALITY.
Each party hereto shall treat the transactions contemplated hereby and all
financial and other information furnished to it about Owner, Guarantor and the
Mortgaged Properties, as confidential; provided, however, that such confidential
information may be disclosed (a) as required by law or upon request or demand of
any Governmental Authority or pursuant to generally accepted
accounting procedures, (b) to officers, directors, employees, agents, partners,
attorneys, accountants, engineers and other consultants of the parties hereto
who need to know such information, provided such Persons are instructed to treat
such information confidentially, (c) by Agent to any Participant, Co-Lender,
servicer, or assignee ("Transferee"), which disclosure to Transferees and
prospective Transferees may include any and all information which has been
delivered to Agent or by Owner pursuant to this Agreement or the other Loan
Documents or which has been delivered to Agent in connection with Agent's or the
Co-Lenders' credit evaluation of Owner prior to entering into this Agreement,
(d) upon the written consent of the party whose otherwise confidential
information would be disclosed, (e) in response to any order of any court, (f)
if requested or required to do so in connection with any litigation or similar
proceeding, (g) to the National Association of Insurance Commissioners or any
similar organization or any Rating Agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
71. SYNDICATION.
(a) Syndication. The provisions of this Section 71 shall only apply in the
event that the Loan is syndicated in accordance with the provisions of this
Section 71 set forth below.
(b) Sale of Loan, Co-Lenders, Participations and Servicing.
(i) Lender and any Co-Lender may, at their option, without Owner's consent,
sell with novation all or any part of their right, title and interest in, and
to, and under the Loan, to one or more additional Co-Lenders. Each additional
Co-Lender shall enter into an assignment and assumption agreement (the
"Assignment and Assumption") assigning a portion of Lender's or Co-Lender's
rights and obligations under the Loan, and pursuant to which the additional
Co-Lender accepts such assignment and assumes the assigned obligations. From and
after the effective date specified in the Assignment and Assumption (i) each
Co-Lender shall be a party hereto and to each Loan Document to the extent of the
applicable percentage or percentages set forth in the Assignment and Assumption
and, except as specified otherwise herein, shall succeed to the rights and
obligations of Lender and the Co-Lenders hereunder and thereunder in respect of
the Loan, and (ii) Lender, as lender and each Co-Lender, as applicable, shall,
to the extent such rights and obligations have been assigned by it pursuant to
such Assignment and Assumption, relinquish its rights and be released from its
obligations hereunder and under the Loan Documents.
(ii) The liabilities of Lender and each of the Co-Lenders shall be several
and not joint, and Lender's and each Co-Lender's obligations to Owner under this
Agreement shall be reduced by the amount of each such Assignment and Assumption.
Neither Lender nor any Co-Lender shall be responsible for the obligations of any
other Co-Lender. Lender and each Co-Lender shall be liable to Owner only for
their respective proportionate shares of the Loan. If for any reason any of the
Co-Lenders shall fail or refuse to abide by their obligations under this
Agreement, Lender and the other Co-Lenders shall not be relieved of their
obligations, if any, hereunder, including their obligations to make their pro
rata share of any advance; notwithstanding the foregoing, Lender and the
Co-Lenders shall have the right, but not the obligation, at their sole option,
to make the defaulting Co-Lender's pro rata share of such advance pursuant to
the terms of the Intercreditor Agreement.
(iii) Subject to Subsection 21(b) hereof, Owner agrees that it shall, in
connection with any sale of all or any portion of the Loan, whether in whole or
to an additional Co-Lender or Participant, within ten (10) business days after
requested by Agent, furnish Agent with the certificates required under Section
14(d) hereof and such other information as reasonably requested by any
additional Co-Lender or Participant in performing its due diligence in
connection with its purchase of an interest in the Loan.
(iv) Lender (or an Affiliate of Lender) shall act as administrative agent
for itself and the Co-Lenders (together with any successor administrative agent,
the "Agent") pursuant to this Section 71(b). Owner acknowledges that Lender, as
Agent shall have the sole and exclusive authority to execute and perform this
Agreement and each Loan Document on behalf of itself, as Lender and as agent for
itself and the Co-Lenders subject to the terms of the Intercreditor Agreement.
Except as otherwise provided herein, Owner shall have no obligation to recognize
or deal directly with any Co-Lender, and no Co-Lender shall have any right to
deal directly with Owner with respect to the rights, benefits and obligations of
Owner under this Agreement, the Loan Documents or any one or more documents or
instruments in respect thereof. Owner may rely conclusively on the actions of
Lender as Agent to bind Lender and the Co-Lenders, notwithstanding that the
particular action in question may, pursuant to this Agreement or the
Intercreditor Agreement be subject to the consent or direction of the
Co-Lenders. Lender may resign as Agent of the Co-Lenders, in its sole
discretion, without the consent of Owner; provided however, that Lender may only
resign as Agent (i) after an Event of Default has occurred or (ii) if required
to by the Co-Lenders. Upon any such resignation, a successor Agent shall be
determined pursuant to the terms of the Intercreditor Agreement. The term Agent
shall mean any successor Agent.
Notwithstanding any provision to the contrary in this Agreement, the Agent
shall not have any duties or responsibilities except those expressly set forth
herein (and in the Intercreditor Agreement) and no covenants, functions,
responsibilities, duties, obligations or liabilities of Agent shall be implied
by or inferred from this Agreement, the Intercreditor Agreement, or any other
Loan Document, or otherwise exist against Agent.
(v) Except to the extent its obligations hereunder and its interest in the
Loan have been assigned pursuant to one or more Assignments and Assumption,
▇▇▇▇▇▇ Financial Corporation, as Agent, shall have the same rights and powers
under this Agreement as any other Co-Lender and may exercise the same as though
it were not Agent, respectively. The term "Co-Lender" or "Co-Lenders" shall,
unless otherwise expressly indicated, include ▇▇▇▇▇▇ Financial Corporation in
its individual capacity. Lender and the other Co-Lenders and their respective
affili ates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, Owner, or any
Affiliate of Owner and any person or entity who may do business with or own
securities of Owner or any Affiliate of Owner or any Affiliate thereof, all as
if they were not serving in such capacities hereunder and without any duty to
account therefor to each other.
(vi) Intentionally Deleted.
(vii) Lender, as Agent, shall maintain at its domestic lending office or at
such other location as Lender, as Agent, shall designate in writing to each
Co-Lender and Owner a copy of each Assignment and Assumption delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Co-Lenders, the amount of each Co-Lender's proportionate share of the
Facility Amount and the Loan and the name and address of each
Co-Lender's agent for service of process (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and Owner, Lender, as Agent, and the Co-Lenders may treat each person or
entity whose name is recorded in the Register as a Co-Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection and
copying by Owner or any Co-Lender during normal business hours upon reasonable
prior notice to the Agent. A Co-Lender may change its address and its agent for
service of process upon written notice to Lender, as Agent, which notice shall
only be effective upon actual receipt by Lender, as Agent, which receipt will be
acknowledged by Lender, as Agent, upon request.
(viii) Notwithstanding anything herein to the contrary, any financial
institution or other entity may be sold a participation interest in the Loan by
Lender or any Co-Lender without Owner's consent (such financial institution or
entity, a "Participant") (x) if such sale is without novation and (y) if the
other conditions set forth in this paragraph are met. No Participant shall be
considered a Co-Lender hereunder or under the Note or the Loan Documents. No
Participant shall have any rights under this Agreement, the Note or any of the
Loan Documents and the Participant's rights in respect of such participation
shall be solely against Lender or Co-Lender, as the case may be, as set forth in
the participation agreement executed by and between Lender or Co-Lender, as the
case may be, and such Participant. The terms of any participation agreement
between Lender or Co-Lender, as the case may be, and its Participant shall not
grant the Participant any consent rights except for consent to (i) changes in
the interest rate and term of the Loan, (ii) increase in the principal amount of
the Loan (except for protective advances and increases made in accordance with
this Agreement), (iii) release of collateral (except in accordance with Section
61), (iv) release of any party liable for repayment of the Loan, (v)
forbearance, (vi) consents to subordinate financing of the Mortgaged Property
(except in accordance with the terms hereof), (vii) the acceleration of the Loan
or commencement of foreclosure, (viii) the acquisition of foreclosed property
and (ix) the management of, and ultimate sale of, real estate owned. No
participation shall relieve Lender or Co-Lender, as the case may be, from its
obligations hereunder or under the Note or the Loan Documents and Lender or
Co-Lender, as the case may be, shall remain solely responsible for the
performance of its obligations hereunder.
(ix) Notwithstanding any other provision set forth in this Agreement, the
Lender or any Co-Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation,
amounts owing to it in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System), provided
that no such security interest or the exercise by the secured party of any of
its rights thereunder shall release Lender or Co-Lender from its funding
obligations hereunder.
(c) Owner's Assignment. Owner may not assign its rights or obligations
hereunder without the prior written consent of Agent and all of the Co-Lenders.
(d) Payment of Agent's, and Co-Lender's Expenses, Indemnity, etc. Owner
shall:
(i) whether or not the transactions hereby contemplated are consummated,
pay all reasonable out-of-pocket costs and expenses (A) of Agent, Lender and all
Co-Lenders in connection with Agent's and such Co-Lender's due diligence review
of the Mortgaged Property, the negotiation, preparation, execution and delivery
of the Note, this Agreement, the Mortgage, and the other Loan Documents and the
documents and instruments referred to therein, the creation, perfection or
protection of Lender's and Co-Lender's liens on the Mortgaged Property
(including,
without limitation, fees and expenses for title insurance, property inspections,
appraisals, consultants, surveys, lien searches, filing and recording fees, and
escrow fees and expenses), all internal valuations and appraisals of the
Mortgaged Property made by Agent in connection with the administration of the
Loan and any amendment, waiver or consent relating to any of the Loan Documents
including releases, and the addition of new mortgaged properties (but Agent and
the Co-Lender's shall pay their own respective counsel fees) and (B) of Agent
and Co-Lenders in connection with the preservation of rights under, any
amendment, waiver or consent relating to, and enforcement of, the Loan Documents
and the documents and instruments referred to therein or in connection with any
restructuring or rescheduling of the Obligations (including, without limitation,
the reasonable fees and disbursements of counsel for Agent and the Co-Lenders);
(ii) pay, and hold Agent and each Co-Lender harmless from and against, any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and hold Agent and each Co-Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to Agent or such Co-Lender) to
pay such taxes; and
(iii) indemnify Agent, (in its capacity as Lender and as Agent), and each
Co-Lender, its officers, directors, employees, representatives and agents and
any persons or entities owned or Controlled by, owning or Controlling, or under
common Control or Affiliated with Agent, Agent, or each Co-Lender (each an
"Indemnitee") from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitee in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
asserted against or incurred by any Indemnitee as a result of, or arising in any
manner out of, or in any way related to or by reason of, (i) the execution,
delivery or performance of any Loan Document, (ii) the breach of any of Owner's
or Guarantor's representations and warranties or of any of Owner's Obligations,
(iii) a default under Sections 10(x) or 40, including, without limitation,
attorneys' fees and costs incurred in the investigation, defense, and settlement
of losses incurred in correcting any prohibited transaction or in the sale of a
prohibited loan, and in obtaining any individual prohibited transaction
exemption under ERISA that may be required, and (iv) the exercise by Agent and
the Co-Lenders of their rights and remedies (including, without limitation,
foreclosure) under any Loan Documents (but excluding, as to any Indemnitee, any
such losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements incurred solely by reason of
the gross negligence or willful misconduct of such Indemnitee as finally
determined by a court of competent jurisdiction) (collectively, "Indemnified
Liabilities"). Owner further agrees that, without Agent's or the Co-Lenders'
prior written consent, it will not enter into any settlement of a lawsuit, claim
or other proceeding arising or relating to any Indemnified Liability unless such
settlement includes an explicit and unconditional release from the party
bringing such lawsuit, claim or other proceeding of each Indemnitee. Owner's
obligations under this Section shall survive the termination of this Agreement
and the payment of the Obligations.
(d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Owner, Agent, the Co-Lenders, all future holders of the Note
and their respective successors and assigns.
(e) Amendments and Waivers. (i) Neither this Agreement, the Note, or any
other Loan Document to which Owner or Guarantor is a party nor any terms hereof
or thereof may be amended, supplemented, modified or waived other than in a
writing executed by Owner, Guarantor, if applicable, and Agent. The parties
hereto acknowledge and agree that any amendment, modification approval, waiver
or request to be granted regarding the terms of this Agreement shall be given in
accordance with the terms, provisions and conditions of the Intercreditor
Agreement. The authority of Agent to act as Agent hereunder arises pursuant to
and is governed by the Intercreditor Agreement.
(ii) In the case of any waiver, Owner, Agent and all Co-Lenders shall be
restored to their former position and rights hereunder and under the outstanding
Note and any other Loan Documents, and any Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Event of Default, or impair any right consequent thereon.
Owner acknowledges and agrees that Agent may provide to the Co-Lenders, and
that Agent, and each of the Co-Lenders may provide to any Participant, originals
or copies of this Agreement, all Loan Documents and all other documents,
instruments, certificates, opinions, insurance policies, letters of credit,
reports, requisitions and other materials and information of every nature or
description, and may communicate all oral information, at any time submitted by
or on behalf of Owner, or Guarantor or received by Agent in connection with the
Loan or Owner or Guarantor.
(f) Marshaling; Recapture. Agent shall be under no obligation to marshal
any assets in favor of Owner or any other party or against or in payment of any
or all of the Obligations. To the extent Agent receives any payment by or on
behalf of Owner, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
Owner or its estate, trustee, receiver, custodian or any other party under any
bank ruptcy law, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the obligation or part thereof which
has been paid, reduced or satisfied by the amount so repaid shall be reinstated
by the amount so repaid and shall be included within the liabilities of Owner to
Agent and the Co-Lenders as of the date such initial payment, reduction or
satisfaction occurred.
(g) Survival. Except as expressly provided to the contrary herein, all
indemnities set forth herein including, without limitation, in Section 71(d)
shall survive the execution and delivery of this Agreement, the Note and the
Loan Documents and the making and repayment of the Loan hereunder.
(h) Domicile of Loan Portions. Lender and the Co-Lenders may transfer and
carry any Loan portion at, to or for the account of any domestic or foreign
branch office, subsidiary or affiliate, subject to Section 71(i) below.
(i) Taxes. (i) All payments made by Owner under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any governmental authority excluding, in the
case of Lender or any Co-Lender, net income and franchise taxes imposed on
Lender or any Co-Lender by the jurisdiction under the laws of which Lender or
any Co-Lender is organized or any political subdivision or taxing authority
thereof or therein, or by any jurisdiction in which Lender's or Co-Lender's
Domestic Lending Office or Eurodollar Lending Office, as the case may be, is
located or any political subdivision or taxing authority thereof or therein (all
such non-excluded taxes, levies, imposts, deductions, charges or withholdings
being hereinafter called "Taxes").
(ii) Notwithstanding anything to the contrary herein, if at any time or
from time to time Taxes are required to be deducted or withheld from the
payments required to be made to Lender or any Co-Lender hereunder solely by
reason of a Change in Law after the date hereof (other than as a result of any
transfer or assignment of any of the obligations of Owner hereunder), all
payment required to be made by Owner hereunder (including any additional amounts
that may be payable pursuant to this clause (b)) shall be increased to the
extent required so that the net amount received by Lender or any Co-Lender after
the deduction or withholding of Taxes imposed solely by reason of a Change in
Law after the date hereof will be not less than the full amount that would
otherwise have been receivable had no such deduction or withholding been imposed
by reason of such Change in Law. In the event that this clause (b) shall be
operative, Owner shall promptly provide to Agent evidence of payment of such
Taxes to the appropriate taxing authority and shall promptly forward to Agent
any official tax receipts or other documentation with respect to the pay ment of
the Taxes as may be issued by the taxing authority. If Owner fails to pay any
Taxes when due to the appropriate taxing authority or fails to remit to Agent
the required receipts or other required documentary evidence, Owner shall
indemnify Lender and any Co-Lender for any incremental taxes, interest or
penalties that may become payable by Lender or Co-Lender as a result of any such
failure. The agreements in this Section 71(i)(ii) shall survive the termination
of this Agreement and the payment of the Note and all other Obligations.
(iii) For purposes of this Section 71(i) the term "Change in Law" shall
mean the following events: (A) the enactment of any legislation by the United
States, including the enactment, amendment or modification of a treaty; (B) the
lapse, by its terms, of any law of the United States or any treaty to which the
United States is a party; or (C) the promulgation of any temporary or final
regulation under the Code.
(iv) Each Co-Lender that is not incorporated under the laws of the United
States of America or a state thereof agrees that, prior to the first date on
which any payment is due to it hereunder, it will deliver to Owner and Agent (i)
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Co-Lender is entitled to receive payments under this Agreement and the
Note payable to it, without deduction or withholding of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax. Each Co-Lender required to deliver to
Owner and Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the
preceding sentence further undertakes to deliver to Owner and Agent two further
copies of the said letter and Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such letter or form expires (which, in the
case of the Form 4224, is the last day of each U.S. taxable year of the non-
U.S. Co-Lender) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form previously delivered by it
to Owner and Agent, and such other extensions or renewals thereof as may
reasonably be requested by Owner or Agent, certifying in the case of a Form 1001
or 4224 that such Co-Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in
any such case an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Co-Lender from duly completing and delivering any such letter or
form with respect to it and such Co-Lender advises Owner and Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax. Notwithstanding clause (i),
if a Co-Lender fails to provide a duly completed Form 1001 or 4224 or other
applicable form and, under applicable law, in order to avoid liability for
Taxes, Owner is required to withhold on payments made to such a Agent that has
failed to provide the applicable form, Owner shall be entitled to withhold the
appropriate amount of Taxes. In such event, Owner shall promptly provide to such
Co-Lender or Agent evidence of payment of such Taxes to the appropriate taxing
authority and shall promptly forward to such Co-Lender or Agent any official tax
receipts or other documentation with respect to the payment of the Taxes as may
be issued by the taxing authority.
(j) Limitation of Liability. No claim may be made by Owner, or any other
Person against Agent, or any Co-Lenders or the Affiliates, directors, officers,
employees, attorneys or agent of any of such Persons for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any act, omission or event occurring in
connection therewith; and Owner hereby waives, releases and agrees not to ▇▇▇
upon any claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
(k) No Joint Venture. Notwithstanding anything to the contrary herein
contained, neither Agent, nor any Co-Lender by entering into this Agreement or
by taking any action pursuant hereto, will not be deemed a partner or joint
venturer with Owner and Owner and agree to hold Agent, and each Co-Lender
harmless from any damages and expenses resulting from such a construction of the
relationship of the parties hereto or any assertion thereof.
72. SPECIAL COVENANTS RELATING TO PROPERTY NOS. 30 (FIVE SEASONS HOTEL,
CEDAR RAPIDS), 57 (OMNI ALBANY), AND 59 (THE CLARION NIAGARA) SET FORTH ON
SCHEDULE A.
(a) Property No. 30 (Five Seasons Hotel, Cedar Rapids). (i) Owner agrees
and covenants to deliver on or before the date which is sixty (60 days from the
date hereof (the "Cedar Rapids Delivery Date"), an original fully-executed
counterpart of an estoppel by the ground lessor under the Ground Lease
applicable to the Mortgaged Property (the "Cedar Rapids Property") in the form
attached hereto as Exhibit H ("the Cedar Rapids Estoppel");
(ii) Upon the delivery of the Cedar Rapids Estoppel within the time frame
set forth above, Lender agrees to advance the maximum principal amount of the
future advance note by Servico Cedar Rapids, Inc. (the "Future Advance")
provided (i) no Event of Default exists, and (ii) Owner delivers to Lender a
datedown endorsement of the existing title policies insuring the lien of the
insured Mortgage as of the date of the advance (or an equivalent endorsement in
Texas) showing no exceptions to such policy other than the Permitted Exceptions
and otherwise acceptable to Lender in all respects; and
(iii) The proceeds of the Future Advance shall be applied to the
outstanding debt applicable to the first note and the mortgage secured thereby
held by ▇▇▇▇▇▇ Brothers Holdings Inc.
relating to the Cedar Rapids Property (the "▇▇▇▇▇▇ Note and Mortgage"). Owner
shall be required to satisfy the ▇▇▇▇▇▇ Note and Mortgage as of the date of the
Future Advance, irrespective of whether the proceeds of the Future Advance are
sufficient to satisfy the debt evidenced by the ▇▇▇▇▇▇ Note and Mortgage.
(b) Property No. 59 (Clarion Niagara). Owner hereby covenants and agrees as
follows: (i) that the Notes referred to in Nos. 2 and 3 of Schedule C-3 hereof
(collectively, the "Clarion Note"), the indenture of mortgage recorded on April
2, 1996, in Liber 3222 of Mortgages at Page 143, as assigned to ▇▇▇▇▇▇ Brothers
Holdings Inc. pursuant to an assignment of loan documents recorded on January
21, 1998 in Liber 1055 of Assignment of Mortgages at Page 26, as amended and
restated by an amended and restated indenture of mortgage, deed of trust,
assignment of leases and rents and security agreement recorded on January 21,
1998 in Liber 1055 of Assignment of Mortgages at Page 267, and a subordinate
mortgage, deed of trust, assignment of leases and rents and security agreement
recorded on January 21, 1998 in Liber 2860 of Deeds at Page 330 (collectively,
the "Clarion Mortgage"), together with all documents executed and delivered by
Servico New York, Inc. to ▇▇▇▇▇▇ Brothers Holdings Inc. in connection therewith
(the "Clarion Documents") shall mature on February 1, 1999 (the "Clarion
Maturity Date") and Owner hereby waives any right to a one (1) year extension
option contained in the Clarion Documents and/or the Seventh Amended and
Restated Consideration and Consent Agreement dated September 29, 1998 and (ii)
to deliver the following items on or before the Clarion Maturity Date: (A) an
original fully executed counterpart of the estoppel by the ground lessor under
the Ground Lease applicable to the Mortgaged Property in the form attached
hereto as Exhibit J; (B) an amendment and restatement of the Clarion Note in the
form of the Note, to be executed by Servico New York, Inc. and Niagara County
Industrial Development Authority in the principal amount equal to the Allocated
Loan Amount for Property No. 59 on Schedule A and an amendment and restatement
of the Clarion Mortgage in the form of the Mortgage, to be executed by Servico
New York, Inc. and Niagara County Industrial Development Authority securing the
principal amount of $19,168,000 (the "Note and Mortgage Amendment and
Restatement"), (C) an amendment and restatement of the assignment of leases and
rents dated as of January 16, 1998 and recorded in Liber 2800 at Page 279 in the
form of the Assignment, to be executed by Servico New York, Inc. and Niagara
County Industrial Authority (the "Assignment Amendment"), (D) a datedown
endorsement of the existing title policy insuring the lien of the insured
Mortgage as amended and restated pursuant to the Note and Mortgage Amendment and
Restatement showing no exceptions to such policy as of the date of such
Amendment and Restatement of Note and Mortgage and the Assignment Amendment
other than the Permitted Exceptions and otherwise acceptable to Lender in all
respects, and (E) an enforceability and due execution/authority opinion with
respect to the Note and Mortgage Amendment and Restatement and the Assignment
Amendment. The Note and Mortgage Amendment and the Assignment Amendment shall be
non-recourse with respect to the Niagara County Industrial Development Authority
only, but shall be with full recourse to the Owner. Notwithstanding the
foregoing, in the event that Owner shall not be able to satisfy (c)(ii)(A)-(E)
above within the time periods set forth therein, Owner agrees to comply with the
following: (1) Owner shall give Lender written notice on or before February 1,
1999 that Owner shall purchase the fee interest in the Mortgaged Property for
$1.00 in accordance with the terms of the Ground Lease relating to the Clarion
Property (the "Fee Interest Purchase"), (2) the Fee Interest Purchase shall
occur on or before March 1, 1999, (3) after the Fee Interest Purchase, Owner
shall deliver to Lender the documents referred in (c)(ii)(B) and (C) executed by
Owner as fee owner together with the title endorsement and the opinions referred
to in (c)(ii)(D) and (E) on or before March 1, 1999 and (4) in the event that
Owner delivers the notice referred to in (1) above, the Clarion Maturity Date
shall be extended to March 1, 1999.
(c) Owner's failure to comply with the terms, provisions and conditions of
(a), (b) or (c) above shall be an Event of Default and Lender shall be entitled
to all remedies hereunder, under the Mortgage, under the Note and the other Loan
Documents.
(d) Owner hereby agrees to pay to Lender as additional interest (the
"Additional Interest") with respect to the Cedar Rapids Property and the Clarion
Property the following: (i) with respect to the Cedar Rapids Property, on each
Payment Date through and including the Cedar Rapids Delivery Date an amount
equal to the product of (A) the Allocated Loan Amount for the Cedar Rapids
Property and (B) the difference between the Applicable Interest Rate on the Note
and the applicable note rate on the Cedar Rapids Note (or 1.43%) and (ii) with
respect to the Clarion Property, on each Payment Date through and including
February 1, 1999 or in the event that Owner exercises its rights pursuant to the
last sentence of subsection (b) above, March 1, 1999, an amount equal to the
product of (A) the Allocated Loan Amount for the Clarion Property and (B) the
difference between the Applicable Interest Rate on the Note and the applicable
note rate on the Clarion Note (or 1.43%).
(e) Notwithstanding anything contained to the contrary in this commitment
letter dated November 4, 1998, Owner agrees that it shall pay for all of
Lender's costs and expenses incurred on and after the date hereof in connection
with this Section 72, including due diligence costs and counsel fees and
disbursements incurred in connection with this Section 72 and the review and
approval of the documents, estoppels and information required to be delivered
herewith.
73. SPECIAL COVENANT RELATING TO PROPERTY NOS. 13 AND 57 ON SCHEDULE A
(WEST PALM BEACH AND ALBANY OMNI HOTELS) (a) Owner hereby agrees to deliver a
copy of the Property Improvement Plan or such other renovation plan developed by
the Franchisor (the "Franchisor's Plan") with respect to Property Nos. 13 and/or
57 set forth on Schedule A attached (the "Omni Hotels") upon receipt of same.
Upon receipt of the Franchisor's Plan, Lender shall retain, at Owner's cost and
expense, B.E.S.T. Consulting or such other engineer, mutually acceptable to
Owner and Lender, to prepare a cost estimate for the renovations set forth in
the Franchisor's Plan (the "Cost Estimate"). Owner agrees to deposit with Lender
the total amount of the Cost Estimate on or before the Final Month (defined
below) in monthly installments calculated by Lender as follows: a monthly amount
equal to (i) the Cost Estimate multiplied by (ii) a fraction, the numerator of
which is one (1) and the denominator of which is the product of (A) the total
number of full calendar months contained in the required renovation period in
the Franchisor's Plan (and if such number of calendar months is an odd number,
it shall be rounded downwards to the next even month number) and (B) 1/2 (the
"Omni Monthly Deposits"). The Omni Monthly Deposits shall be deposited with
Lender (the "Omni Reserve") on the first day of the calendar month of the
commencement of the renovation period and on the first day of each calendar
month thereafter through and including the Final Month. The Final Month shall be
the first day of the calendar month which is "X"-1 months immediately after the
first calendar month of the commencement of the renovation period pursuant to
the Franchisor's Plan. "X" shall be calculated as follows: the total amount of
full calendar months in the renovation period (and if such number of number of
months is an odd number, it shall be rounded downwards to the next even month
number) divided by 2. Lender will maintain the Omni Reserve in a segregated
account (the "Omni Reserve Account"), which shall be an Eligible Account, and
the Omni Reserve shall be invested and reinvested by Lender, at Owner's
direction, in one or more Eligible Accounts, subject to the following
restrictions: (A) such Eligible Investments and the proceeds thereof shall be
deemed a part of the Omni Reserve; (B) each such Eligible Investments shall be
made in the name of Lender (in its capacity as such) or in the name of a nominee
of Lender under its complete and exclusive
dominion and control or, if applicable law provides for perfection of pledges of
an instrument not evidenced by a certificate or other instrument through
registration of such pledge on books maintained by or on behalf of the issuer of
such investment, such pledge may be so registered; (C) Lender shall have the
sole control over such investment, the income thereon and the proceeds thereof;
(D) other than investments described in clause (B) above, any certificate or
other instrument evidencing such investment shall be delivered directly to
Lender or its agent; (E) the proceeds of each investment shall be remitted by
the purchaser thereof directly to Lender and (F) Lender shall not be liable for
any loss sustained on the investment of any funds constituting a part of the
Omni Reserve (except for losses resulting from Lender's gross negligences or
willful default).
(b) Owner hereby grants a first priority security interest to Lender, as
security for payment of all sums due under the Loan and the performance of all
other terms, conditions and provisions to be paid and performed, of all
Borrower's right, title and interest in and to the Omni Reserve and the Omni
Reserve Account and shall execute and deliver to Lender such UCC-1 Financing
Statements and other documents or instruments as Lender may request in order to
grant and perfect such security interest. Owner shall not, without obtaining the
prior written consent of Lender, further pledge, assign or grant any security
interest in the Omni Reserve or the Omni Reserve Account or permit any lien or
encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1
Financing Statements, except those naming Lender as the secured party, to be
filed with respect thereto. Upon the occurrence of an Event of Default, Lender
may apply any sums then present in the Omni Reserve to the payment of the Debt
(as defined in the Note) in any order in its sole discretion. Until expended or
applied as above provided, the Omni Reserve shall constitute additional security
for the Debt.
(c) Lender shall disburse amounts from the Omni Reserve in the same manner
and in accordance with disbursement requirements for the Required Repairs
Reserve as set forth in Section 64 hereof. Owner shall be required to comply
with all of the conditions precedent for disbursements as set forth in Section
64 when requesting disbursements from the Omni Reserve.
74. SPECIAL CANADIAN PROVISION. (a) The following provision relates to the
Canadian Property only: For purposes of the Interest Act (Canada), (i) whenever
any interest or fee under any Loan Document is calculated using a rate based on
a year of 360 days or 365 days, as the case may be, the rate determined pursuant
to such calculation, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which the period
for which such interest or fee is payable (or compounded) ends, and (z) divided
by 360 or 365, as the case may be, and (ii) the principle of deemed reinvestment
of interest does not apply to any interest calculation under any Loan Document.
(b) By the execution and delivery of this Loan Agreement or any other Loan
Document, the Canadian Guarantor shall not in any way be deemed to be a
"Borrower" of funds from Lender and Canadian Guarantor's sole obligation for the
payment of the Debt shall be pursuant to the Canadian Guarantee.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, Borrower and Lender have executed this instrument
as of the day and year first above written.
BORROWER
▇▇▇▇ ▇▇▇▇▇, as Vice President of each of
the Companies described on the attached
Exhibit G
LENDER:
▇▇▇▇▇▇ FINANCIAL CORPORATION,
individually and as Agent for one or more
Co-Lenders and successors
By: _________________________________
Name:
Title:
IN WITNESS WHEREOF, Canadian Guarantor has executed this instrument as of
the day and year first above written.
CANADIAN GUARANTOR
By: _________________________________
Name:
Title:
SCHEDULE A
List of Mortgaged Properties
Management/
TPW Franchise Consulting
PROPERTY NO. Name/Address Agreement Franchisor Agreement Manager
------------------------------------------------------------------------------------------------------------------------------------
1 Holiday Inn Sheffield September Holiday Inns October 5, Servico
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 24, 1991 Franchising, 1993 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
2 Holiday Inn Dothan August 14, Holiday Inns December , Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 1995 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Management
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
Allocated Loan
TPW Amount Release
PROPERTY NO. ("ALA") Price
------------------------------------------------------------
1 $4,719,199 130%
of ALA
------------------------------------------------------------
2 $1,819,195 125%
of ALA
------------------------------------------------------------
Management/
TPW Franchise Consulting
PROPERTY NO. Name/Address Agreement Franchisor Agreement Manager
------------------------------------------------------------------------------------------------------------------------------------
3 Hampton Inn Dothan August 16, Promus August , Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ Hotels, Inc. 1995 Management
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
------------------------------------------------------------------------------------------------------------------------------------
4 Holiday Inn Express Gadsden August 14, Holiday Inns December , Servico
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1995 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Management
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
8 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Flagstaff September 29, ▇▇▇▇▇▇ October 5, Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1989 ▇▇▇▇▇▇▇ 1993 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchise Corp.
Systems, Inc.
------------------------------------------------------------------------------------------------------------------------------------
11 Holiday Inn East Hartford May 28, 1998 Holiday August 21, Servico
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Hospitality 1998 Management
East Hartford, Connecticut Franchising, Corp.
08106 Inc.
------------------------------------------------------------------------------------------------------------------------------------
12 Holiday Inn New Haven May 28, 1998 Holiday August 21, Servico
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Management
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
▇▇▇▇▇ Inc.
------------------------------------------------------------------------------------------------------------------------------------
13 Omni Hotel West Palm January 7, Omni Hotels May 15, 1982 Royce
Beach 1992 Franchising Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Corporation Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ November 20, ITT November 21, Servico
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 1997 Sheraton 1997 Management
West Palm Beach, Florida Corporation Corp.
33401
------------------------------------------------------------------------------------------------------------------------------------
15 Holiday Inn Express August 14, Holiday Inns August 15, Servico
Pensacola 1995 Franchising, 1995 Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc. Corp.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
16 Holiday Inn University Mall August 14, Holiday Inns December , Servico
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1995 Franchising, 1996 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
17 Hampton Inn Pensacola August 16, Promus December , Servico
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1995 Hotels, Inc. 1996 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
------------------------------------------------------------------------------------------------------------------------------------
18 Holiday Inn Express Ft. August 14, Holiday Inns December , Servico
▇▇▇▇▇▇ 1995 Franchising, 1996 Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Inc. Corp.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
19 Holiday Inn Winter Haven November 17, Holiday November 21, Servico
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ 1997 Hospitality 1997 Management
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
Allocated Loan
TPW Amount Release
PROPERTY NO. ("ALA") Price
------------------------------------------------------------
3 $ 3,334,130 125%
of ALA
------------------------------------------------------------
4 $ 3,392,624 125%
of ALA
------------------------------------------------------------
8 $ 2,520,000 125%
of ALA
------------------------------------------------------------
11 $ 3,372,736 125%
of ALA
------------------------------------------------------------
12 $ 3,041,663 125%
of ALA
------------------------------------------------------------
13 $ 15,000,000 125%
of ALA
------------------------------------------------------------
14 $ 9,415,450 140%
of ALA
------------------------------------------------------------
15 $ 5,686,154 125%
of ALA
------------------------------------------------------------
16 $ 5,615,377 125%
of ALA
------------------------------------------------------------
17 $ 5,526,455 125%
of ALA
------------------------------------------------------------
18 $ 2,032,831 125%
of ALA
------------------------------------------------------------
19 $ 4,339,282 125%
of ALA
------------------------------------------------------------
Management/
TPW Franchise Consulting
PROPERTY NO. Name/Address Agreement Franchisor Agreement Manager
------------------------------------------------------------------------------------------------------------------------------------
26 Holiday Inn Brunswick September 24, Holiday Inns October 5, Servico
U.S. 341 at I-98 1991 Franchising, 1993 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
29 Holiday Inn Rolling ▇▇▇▇▇▇▇ November 20, Holiday November 21, Servico
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1997 Hospitality 1997 Management
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
▇▇▇▇▇ Inc.
------------------------------------------------------------------------------------------------------------------------------------
30 Five Season Hotel June 6, 1997 Holiday Inns April 23, 1997 Servico
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ (Conversion) Franchising, Management
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
39 Quality Hotel Metairie June 22, Choice October 5, Servico
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. 1994 Hotels 1993 Management
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Internationa Corp.
l, Inc.
------------------------------------------------------------------------------------------------------------------------------------
40 Columbia Hilton November 7, Hilton Inns, November 6, Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 1997 Inc. 1997 Management
Silver Spring, Maryland (Assignment) Corp.
21045
------------------------------------------------------------------------------------------------------------------------------------
41 Town Center N/A None February 19, Servico
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1998 Management
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
45 Frederick Holiday Inn May 28, 1998 Holiday August 21, Servico
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Hospitality 1998 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
46 Holiday Inn Washington, November 17, Holiday November 21, Servico
D.C. 1997 Hospitality 1997 Management
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Franchising, Corp.
Silver Spring, Maryland Inc.
20920
------------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Holiday Inn May 28, 1998 Holiday August 21, Servico
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Hospitality 1998 Management
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
48 Belmont Holiday Inn May 28, 1998 Holiday August 21, Servico
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Hospitality 1998 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
49 Northfield Hilton October 11, Hilton Inns, October 5, Servico
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 1983 Inc. 1993 Management
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
------------------------------------------------------------------------------------------------------------------------------------
50 Holiday Inn St. ▇▇▇▇ June 21, Holiday Inns October 5, Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Franchising, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Conversion) Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
Allocated Loan
TPW Amount Release
PROPERTY NO. ("ALA") Price
------------------------------------------------------------
26 $ 3,041,663 125%
of ALA
------------------------------------------------------------
29 $ 15,097,908 125%
of ALA
------------------------------------------------------------
30 $ 6,250,000 145%
of ALA
------------------------------------------------------------
39 $ 5,785,000 125%
of ALA
------------------------------------------------------------
40 $ 9,523,150 130%
of ALA
------------------------------------------------------------
41 $ 12,368,000 125%
of ALA
------------------------------------------------------------
45 $ 3,327,111 125%
of ALA
------------------------------------------------------------
46 $ 9,843,873 125%
of ALA
------------------------------------------------------------
47 $ 5,355,081 125%
of ALA
------------------------------------------------------------
48 $ 2,354,500 155%
of ALA
------------------------------------------------------------
49 $ 11,634,839 125%
of ALA
------------------------------------------------------------
50 $ 5,081,993 125%
of ALA
------------------------------------------------------------
Management/
TPW Franchise Consulting
PROPERTY NO. Name/Address Agreement Franchisor Agreement Manager
------------------------------------------------------------------------------------------------------------------------------------
51 Comfort Inn Roseville October 17, Choice October 17, Servico
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 1997 Hotels 1997 Management
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
57 Omni Albany Hotel October 29, Omni Hotels October ▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 1993 Management
Ten Eyck Plaza Corporation Corp.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
58 Holiday Inn Jamestown November 7, Holiday , 1997 Servico
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 1997 Hospitality Management
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
59 Clarion Hotel Niagara Falls March 19, Holiday December ▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1998 Hospitality 1997 Management
Niagara Falls, New York (Conversion) Franchising, Corp.
14303 Inc.
------------------------------------------------------------------------------------------------------------------------------------
60 Holiday Inn Niagara Falls May 20, 1998 ITT December 5, Servico
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Conversion) Sheraton 1997 Management
Niagara Falls, New York Corporation Corp.
14303
------------------------------------------------------------------------------------------------------------------------------------
61 Holiday Inn Grand Island January 16, Holiday December 5, Servico
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 1998 Hospitality 1997 Management
Grand Island, New York Franchising, Corp.
14072 Inc.
------------------------------------------------------------------------------------------------------------------------------------
62 Holiday Inn Fayetteville December 4, Holiday Inns October 5, Servico
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 1991 Franchising, 1993 Management
Fayetteville, North Carolina Inc. Corp.
28303
------------------------------------------------------------------------------------------------------------------------------------
67 Holiday Inn Greentree September 24, Holiday Inns October 5, Servico
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1991 Franchising, 1993 Management
Pittsburgh, Pennsylvania Inc. Corp.
15220
------------------------------------------------------------------------------------------------------------------------------------
68 Holiday Inn Parkway East December 4, Holiday Inns January 5, Servico
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 1991 Franchising, 1995 Management
Pittsburgh, Pennsylvania Inc. Corp.
15221
------------------------------------------------------------------------------------------------------------------------------------
70 Holiday Inn York Arsenal May 28, 1998 Holiday ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ Hospitality 1998 Management
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
------------------------------------------------------------------------------------------------------------------------------------
73 Four Points Hotel Hilton October 31, ITT June 14, 1996 Servico
Head 1996 Sheraton Management
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Corporation Corp.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Allocated Loan
TPW Amount Release
PROPERTY NO. ("ALA") Price
------------------------------------------------------------
51 $ 3,315,000 130%
of ALA
------------------------------------------------------------
57 $ 15,500,000 135%
of ALA
------------------------------------------------------------
58 $ 3,583,450 125%
of ALA
------------------------------------------------------------
59 $ 9,350,000 155%
of ALA
------------------------------------------------------------
60 $ 4,756,692 125%
of ALA
------------------------------------------------------------
61 $ 6,162,876 125%
of ALA
------------------------------------------------------------
62 $ 3,821,468 125%
of ALA
------------------------------------------------------------
67 $ 8,960,114 125%
of ALA
------------------------------------------------------------
68 $ 4,759,468 125%
of ALA
------------------------------------------------------------
70 $ 2,240,886 125%
of ALA
------------------------------------------------------------
73 $ 3,486,500 155%
of ALA
------------------------------------------------------------
Management/
TPW Franchise Consulting
PROPERTY NO. Name/Address Agreement Franchisor Agreement Manager
------------------------------------------------------------------------------------------------------------------------------------
74 Best Western Charleston September 20 Best Western August 31, Servico
Int'l Airport 1993 Internationa 1994 Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ l, Inc. Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
81 Holiday Inn Austin South September 22 Holiday Inns October 5, Servico
▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, 1993 Management
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Conversion) Inc. Corp.
------------------------------------------------------------------------------------------------------------------------------------
82 Holiday Inn Market March 27, Holiday Inns July 14, 1997 Servico
Center Dallas 1998 Franchising, Management
1955 Market Center (Conversion) Inc. Corp.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ March 27, Holiday November 21, Servico
12801 N.W. Freeway US 290 1998 Hospitality 1997 Management
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Conversion) Franchising, Corp.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
88 Holiday Inn Select Windsor September Holiday October 3, Servico
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 24, 1997 Hospitality ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Franchising, Corp.
▇▇▇ ▇▇▇ Inc.
------------------------------------------------------------------------------------------------------------------------------------
89 Days Inn June 1, 1998 Days Inn of May 2, 1993 Servico
Silver Spring, Maryland America, Management
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Inc. Corp.
Silver Spring, Maryland
------------------------------------------------------------------------------------------------------------------------------------
Allocated Loan
TPW Amount Release
PROPERTY NO. ("ALA") Price
------------------------------------------------------------
74 $ 5,200,000 125%
of ALA
------------------------------------------------------------
81 $ 8,905,000 130%
of ALA
------------------------------------------------------------
82 $ 6,495,032 125%
of ALA
------------------------------------------------------------
83 $ 10,180,565 125%
of ALA
------------------------------------------------------------
88 $ 6,581,982 125%
of ALA
------------------------------------------------------------
89 $ 2,222,753 125%
of ALA
------------------------------------------------------------
SCHEDULE B
[Intentionally Omitted]
SCHEDULE C
Global Note
1. Promissory Note dated the date hereof, in the original principal amount of
$4,719,199, made by Sheffield Motel Enterprises, Inc.
2. Promissory Note dated the date hereof, in the original principal amount of
$1,819,195, made by Dothan Hospitality 3053, Inc.
3. Promissory Note dated the date hereof, in the original principal amount of
$3,334,130, made by Dothan Hospitality 3071, Inc.
4. Promissory Note dated the date hereof, in the original principal amount of
$3,392,624, made by Gadsden Hospitality, Inc.
5. Promissory Note dated the date hereof, in the original principal amount of
$2,520,000, made by Servico Flagstaff, Inc.
6. Promissory Note dated the date hereof, in the original principal amount of
$3,372,736, made by AMI Operating Partners, L.P. (#11)
7. Promissory Note dated the date hereof, in the original principal amount of
$3,041,663, made by AMI Operating Partners, L.P. (#12)
8. Promissory Note dated the date hereof, in the original principal amount of
$3,041,663, made by Brunswick Motel Enterprises, Inc.
9. Promissory Note dated the date hereof, in the original principal amount of
$15,097,908, made by Servico Rolling ▇▇▇▇▇▇▇, Inc.
10. Promissory Note dated the date hereof, in the original principal amount of
$6,250,000, made by Servico Cedar Rapids, Inc.
11. Promissory Note dated the date hereof, in the original principal amount of
$5,785,000, made by Servico Metairie, Inc.
12. Promissory Note dated the date hereof, in the original principal amount of
$11,634,839, made by NH Motel Enterprises, Inc.
13. Promissory Note dated the date hereof, in the original principal amount of
$5,081,993, made by Minneapolis Motel Enterprises, Inc.
14. Promissory Note dated the date hereof, in the original principal amount of
$3,315,000, made by Servico Roseville, Inc.
15. Promissory Note dated the date hereof, in the original principal amount of
$3,821,468, made by Fayetteville Motel Enterprises, Inc.
16. Promissory Note dated the date hereof, in the original principal amount of
$8,960,114, made by Apico Inns of Green Tree, Inc.
17. Promissory Note dated the date hereof, in the original principal amount of
$4,759,468, made by Apico Hills, Inc.
18. Promissory Note dated the date hereof, in the original principal amount of
$2,240,886, made by AMI Operating Partners, L.P. (#70)
19. Promissory Note dated the date hereof, in the original principal amount of
$3,486,500, made by Servico Hilton Head, Inc.
20. Promissory Note dated the date hereof, in the original principal amount of
$5,200,000, made by Servico Northwoods, Inc.
21. Promissory Note dated the date hereof, in the original principal amount of
$8,905,000, made by Servico Austin, Inc.
22. Promissory Note dated the date hereof, in the original principal amount of
$6,495,032, made by Servico Market Center, Inc.
23. Promissory Note dated the date hereof, in the original principal amount of
$10,180,565, made by Servico Houston, Inc.
24. Promissory Note dated the date hereof, in the original principal amount of
$6,581,982, made by Apico Hills, Inc.
SCHEDULE C-1
AMENDED AND RESTATED FLORIDA NOTES
1. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $15,000,000, made by Servico Centre Associates, Ltd.
2. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $9,415,450, made by Servico West Palm Beach, Inc.
3. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $5,686,154, made by Servico Pensacola, Inc.
4. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $5,615,377, made by Servico Pensacola 7200, Inc.
5. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $5,526,455, made by Servico Pensacola 7330, Inc.
6. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $2,032,831, made by Servico Ft. ▇▇▇▇▇▇, Inc.
7. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $4,339,282, made by Servico Winter Haven, Inc.
SCHEDULE C-2
AMENDED AND RESTATED MARYLAND NOTES
1. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $9,523,150, made by Servico Columbia, Inc.
2. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $12,368,000, made by Servico Colesville, Inc.
3. Consolidated, Amended and Restated Promissory Note dated the date hereof,
in the original principal amount of $3,327,111, made by AMI Operating
Partners, L.P. (#45)
4. Amended and Restated Promissory Note dated the date hereof, in the original
principal amount of $9,843,873, made by Servico Maryland, Inc.
5. Consolidated, Amended and Restated Promissory Note dated the date hereof,
in the original principal amount of $5,355,081, made by AMI Operating
Partners, L.P. (#47)
6. Consolidated, Amended and Restated Promissory Note dated the date hereof,
in the original principal amount of $2,354,500, made by AMI Operating
Partners, L.P. (#48)
7. Promissory Note dated the date hereof, in the original principal amount of
$2,222,753, made by Servico Silver Spring, Inc.
SCHEDULE C-3
NY NOTES
1. Consolidated, Amended and Restated Promissory Note dated the date hereof,
in the original principal amount of $30,003,018 made by Albany Hotel, Inc.,
Servico Jamestown, Inc., Servico Niagara Falls, Inc. and Servico Grand
Island, Inc.
2. Subordinate Mortgage Note dated January 16, 1998, in the original principal
amount of $3,528,340.00 made by Servico New York, Inc. to ▇▇▇▇▇▇ Brothers
Holdings Inc., as assigned as of the date hereof to ▇▇▇▇▇▇ Financial
Corporation, as subsequently modified, amended and restated.
3. Bond dated March 29, 1996, in the original principal amount of
$6,155,000.00 made by Niagara County Industrial Development Agency to ORIX
USA Corporation, as assigned as of the dated hereof to ▇▇▇▇▇▇ Financial
Corporation, as subsequently modified, amended and restated.
SCHEDULE D
REQUIRED REPAIRS SCHEDULE
SCHEDULE E
SCHEDULE OF PARTICIPATIONS IN THE CASH MANAGEMENT SYSTEM
SCHEDULE F
SCHEDULE OF PROPERTIES GOVERNED BY CURRENT CASH MANAGEMENT SYSTEM
HI SHEFFIELD
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI DOTHAN
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HAMPTON INN DOTHAN
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI EXPRESS GADSDEN
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI EXPRESS PENSACOLA
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI UNIVERSITY MALL
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI WINTER HAVEN
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
HI EXPRESS FT. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HAMPTON INN PENSACOLA
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI BRUNSWICK
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI JEKYLL ISLAND
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
QUALITY HOTEL & CONF. CTR.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI FAYETTEVILLE
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ @ ▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI RALEIGH DOWNTOWN
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI HILTON HEAD
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BW CHARLESTON INT'L AIRPORT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FOUR POINTS HOTEL
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
HI BLOOMINGTON
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FT. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OMNI ALBANY HOTEL
▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CLARION HOTEL
Third & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI NIAGARA FALLS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HI JAMESTOWN
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HI GRAND ISLAND
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HI MONROEVILLE
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI GREENTREE
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI PARKWAY EAST
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CLARION-ROYCE HOTEL
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PENN
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI MEADOWLANDS
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI PHOENIX
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RAD. PHOENIX AIRPORT
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HJ FLAGSTAFF
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI SELECT AIRPORT PHX
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI EXPRESS PALM DESERT
▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SHERATON CONCORD HOTEL
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BW COUNCIL BLUFFS
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FOUR POINTS DES MOINES WEST
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ @ ▇-▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CROWNE PLZ FIVE SEASONS
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI MANHATTAN
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI WICHITA AIRPORT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BW CENTRAL
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ @ ▇-▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FOUR POINTS HOTEL OMAHA
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ @ ▇-▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI SANTA FE
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
RAMADA PLAZA
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
HI AUSTIN SOUTH
▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI MARKET CENTER
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
HI EAST HARTFORD
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI NEW HAVEN
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
DAYS INN SILVER SPRING
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HILTON INN COLUMBIA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI SILVER SPRING
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOWN CENTER HOTEL
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI INNER HARBOR
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI INT'L AIRPORT
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI ▇▇▇▇ BURNIE N.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI ▇▇▇▇▇▇▇▇ BRIDGE
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
HI BELMONT
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HI LANCASTER EAST
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI YORK ARSENAL ROAD
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
HI FRISCO
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI ROLLING ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI-ST. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
COMFORT INN-ROSEVILLE
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HILTON INN NORTHFIELD
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
HI LANSING WEST
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HI SELECT
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
OMNI HOTEL WPB
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SHERATON HOTEL
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
HI YORK MARKET STREET
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
HI LANCASTER NORTH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
SCHEDULE G
LIST OF AMI PROPERTIES
1. "▇▇▇▇▇ ▇▇▇▇▇▇ North"
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. "Pikesville"
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. "Moravia"
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. "Inner Harbor"
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. "International Airport"
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. "▇▇▇▇ Burnie ▇▇▇▇▇"
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. "Lancaster North"
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. "Lancaster East"
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. "York Market Street"
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
10. "Hazleton"
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE H
LIST OF PIP'S
Property No. PROPERTY
83. RAMADA HOUSTON
29. HI ROLLING ▇▇▇▇▇▇▇
61. HI GRAND ISLAND
60. HI NIAGARA FALLS
59. CLARION NIAGARA FALLS
14. SHERATON WEST PALM BEACH
88. HI WINDSOR
11. HI EAST HARTFORD
12. HI NEW HAVEN
47. HI ▇▇▇▇▇▇▇▇ BRIDGE
45. HI FREDERICK
70. HI YORK ARSENAL
48. HI BELMONT
58. HI JAMESTOWN
46. HI SILVER SPRING
SCHEDULE I
(FF&E LEASE AGREEMENTS)
PART I. LIST OF LEASE AGREEMENTS
LESSOR/SECURED LESSEE/DEBTOR ORIGINAL PRINCIPAL NOTES/SECURITY OUTSTANDING PRINCIPAL ANNUAL PAYMENTS
PARTY AMOUNT AGREEMENTS/LEASES AMOUNT ALLOCATED TO ALLOCATED TO
MATURITY/EXPIRATION MORTGAGED PROPERTIES MORTGAGED
DATES PROPERTIES
------------------------------------------------------------------------------------------------------------------------------------
CHARTER FINANCIAL, SERVICO, INC. $1,054,483.00 1. PROMISSORY NOTE $232,668 $187,656
INC. DATED 12/23/96, WHICH
NOTE MATURES12/25/99.
2. SECURITY AGREEMENT
DATED 12/23/96, WHICH
SECURITY AGREEMENT
MATURES 12/25/99.
------------------------------------------------------------------------------------------------------------------------------------
LYON CREDIT SERVICO, INC. $237,746.99 PROMISSORY NOTE DATED $29,869 $9,552
9/27/96, WHICH NOTE
MATURES 1/31/01.
------------------------------------------------------------------------------------------------------------------------------------
$220,405.77 PROMISSORY NOTE DATED $80,914 $34,500
9/27/96, WHICH NOTE
MATURES 10/31/01.
------------------------------------------------------------------------------------------------------------------------------------
$113,310.99 PROMISSORY NOTE DATED $37,875 $32,424
11/22/96, WHICH NOTE
MATURES 12/31/99.
------------------------------------------------------------------------------------------------------------------------------------
SECURITY AGREEMENT
DATED 12/26/95 $148,658 $76,476
(SECURES EACH OF THE
ABOVE NOTES).
------------------------------------------------------------------------------------------------------------------------------------
FINANCIAL MARKETING SERVICO N/A MASTER EQUIPMENT $114,217 $51,235
SERVICES, INC. MANAGEMENT LEASE DATED 10/25/95,
CORP., AS AGENT WHICH LEASE TERMINATES
FOR BORROWER 10/31/00.
------------------------------------------------------------------------------------------------------------------------------------
GELCO CORPORATION SERVICO, INC. N/A MASTER LEASE $13,566 $11,424
D/B/A GE CAPITAL AGREEMENT DATED
FLEET SERVICES 11/9/94, WHICH LEASE
TERMINATES ONLY UPON
30 DAYS' WRITTEN NOTICE
BY EITHER PARTY.
------------------------------------------------------------------------------------------------------------------------------------
TELERANT LEASING BRUNSWICK $104,551.20 LEASE AGREEMENT DATED $21,531 $25,740
CORPORATION MOTEL 3/31/94.
ENTERPRISES AND
SERVICO, INC.
(HOLIDAY INN
BRUNSWICK)
------------------------------------------------------------------------------------------------------------------------------------
LESSOR/SECURED LESSEE/DEBTOR ORIGINAL PRINCIPAL NOTES/SECURITY OUTSTANDING PRINCIPAL ANNUAL PAYMENTS
PARTY AMOUNT AGREEMENTS/LEASES AMOUNT ALLOCATED TO ALLOCATED TO
MATURITY/EXPIRATION MORTGAGED PROPERTIES MORTGAGED
DATES PROPERTIES
------------------------------------------------------------------------------------------------------------------------------------
TELERANT LEASING KDS $83,679.00 LEASE AGREEMENT $36,104 $18,024
CORPORATION CORPORATION 8/14/95
(QUALITY INN
METARIE)
------------------------------------------------------------------------------------------------------------------------------------
TELERANT LEASING KDS $84,465.00 LEASE AGREEMENT DATED $37,750 $18,288
CORPORATION CORPORATION AND 1/16/96
SERVICO, INC.
(HOLIDAY INN
AUSTIN SOUTH)
------------------------------------------------------------------------------------------------------------------------------------
TELERANT LEASING SHEFFIELD MOTEL $95,086.20 LEASE AGREEMENT DATED $32,063 $20,544
CORPORATION ENTERPRISES, INC. 3/27/95.
(HOLIDAY INN
SHEFFIELD)
------------------------------------------------------------------------------------------------------------------------------------
M&SD SERVICO, INC. N/A MASTER AGREEMENT OF $152,738 $133,656
AND SERVICO LEASE DATED JULY 13,
MANAGEMENT 1994.
CORPORATION, AS
AGENT FOR
AFFILIATES
------------------------------------------------------------------------------------------------------------------------------------
SANLYN & MINNEAPOLIS N/A 1. DISPLAY LEASE DATED $4,689 $8,412
ASSOCIATES, INC. MOTEL 9/14/95.
ENTERPRISES, INC. 2. SECURITY AGREEMENT
(HOLIDAY INN ST. DATED 10/6/95.
▇▇▇▇)
------------------------------------------------------------------------------------------------------------------------------------
GIAC LEASING SERVICO N/A MASTER EQUIPMENT $4,578 $7,764
CORPORATION MANAGEMENT LEASE AGREEMENT DATED
CORP., AS AGENT 9/11/92.
FOR AFFILIATES
------------------------------------------------------------------------------------------------------------------------------------
METLIFE CAPITAL SERVICO, INC. N/A EQUIPMENT LEASE $411 $4,278
AGREEMENT
------------------------------------------------------------------------------------------------------------------------------------
PART II. PROPERTY SPECIFIC FF&E ALLOCATIONS
PROP MORTGAGED PROPERTY LESSOR/LENDER ALLOCATED OUTSTANDING ALLOCATED ANNUAL
NO. PRINCIPAL AS OF 9/30/98 PAYMENTS
$ $
------------------------------------------------------------------------------------------------------------------------------------
1. HOLIDAY INN SHEFFIELD CHARTER FINANCIAL 2,538 2,040
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TELERENT 32,063 20,544
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ GE CAPITAL 3,966 3,468
M&SD 16,905 19,236
------ ------
55,472 45,288
------------------------------------------------------------------------------------------------------------------------------------
2. HOLIDAY INN DOTHAN FINANCIAL MARKETING SERVICES 4,391 2,124
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ CREDIT 2,084 5,496
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LYON CREDIT 11,513 792
------ ------
17,986 8,412
------------------------------------------------------------------------------------------------------------------------------------
3. HAMPTON INN DOTHAN FINANCIAL MARKETING SERVICES 5,819 235
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
PROP MORTGAGED PROPERTY LESSOR/LENDER ALLOCATED OUTSTANDING ALLOCATED ANNUAL
NO. PRINCIPAL AS OF 9/30/98 PAYMENTS
$ $
------------------------------------------------------------------------------------------------------------------------------------
4. HOLIDAY INN EXPRESS GADSDEN LYON CREDIT 2,084 792
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GE CAPITAL 2,577 2,124
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL MARKETING SERVICES 6,639 3,216
------ -----
11,300 6,132
------------------------------------------------------------------------------------------------------------------------------------
8. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FLAGSTAFF FINANCIAL MARKETING SERVICES 5,006 1,980
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CHARTER FINANCIAL 23,166 18,660
------ ------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 28,172 20,640
------------------------------------------------------------------------------------------------------------------------------------
13. OMNI HOTEL WEST PALM BEACH FINANCIAL MARKETING SERVICES 51,518 24,960
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ GE CAPITAL 3,130 2,436
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CHARTER FINANCIAL 22,157 17,844
LYON CREDIT 2,064 5,772
------ ------
78,869 51,012
------------------------------------------------------------------------------------------------------------------------------------
15. HOLIDAY INN EXPRESS PENSACOLA LYON CREDIT 2,084 792
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
16. HOLIDAY INN UNIVERSITY MALL LYON CREDIT 2,084 792
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
18. HOLIDAY INN EXPRESS FT. ▇▇▇▇▇▇ ▇▇▇▇ CREDIT 2,064 780
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
26. HOLIDAY INN BRUNSWICK TELERENT 923 3,780
U.S. 341 AT I-98 TELERENT 20,608 21,960
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LYON CREDIT 2,139 804
------ ------
23,670 26,544
------------------------------------------------------------------------------------------------------------------------------------
39. QUALITY HOTEL MATAIRIE TELERENT 36,104 18,024
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. M&SD 23,976 21,684
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CHARTER FINANCIAL 24,153 19,452
------ ------
84,233 59,160
------------------------------------------------------------------------------------------------------------------------------------
49. NORTHFIELD HILTON SANLYN & ASSOCIATES 4,689 8,412
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ CREDIT 29,906 11,304
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ M&SD 25,879 18,708
------ ------
60,474 38,424
------------------------------------------------------------------------------------------------------------------------------------
50. HOLIDAY INN ST. ▇▇▇▇ M&SD 22,075 19,968
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇) 411 4,278
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CHARTER FINANCIAL 40,143 32,340
FINANCIAL MARKETING SERVICES 2,405 ▇▇▇
▇▇▇▇ CREDIT 2,175 828
------ ------
67,209 58,266
------------------------------------------------------------------------------------------------------------------------------------
57. OMNI ALBANY HOTEL CHARTER FINANCIAL 46,396 37,368
STATE & LODGE STREETS FINANCIAL MARKETING SERVICES 19,478 9,432
TEN EYCK PLAZA LYON CREDIT 18,356 8,760
------ ------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 84,320 55,560
------------------------------------------------------------------------------------------------------------------------------------
62. HOLIDAY INN FAYETTEVILLE CHARTER FINANCIAL 41,216 33,444
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ CREDIT 2,157 792
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ GE CAPITAL 3,893 3,396
------ ------
47,266 37,416
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67. HOLIDAY INN GREENTREE FINANCIAL MARKETING SERVICES 10,520 5,100
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ M&SD 18,961 21,564
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ CHARTER FINANCIAL 7,995 6,444
LYON CREDIT 2,192 828
------ ------
39,668 33,936
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PROP MORTGAGED PROPERTY LESSOR/LENDER ALLOCATED OUTSTANDING ALLOCATED ANNUAL
NO. PRINCIPAL AS OF 9/30/98 PAYMENTS
$ $
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68. HOLIDAY INN PARKWAY EAST M&SD 21,365 15,444
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ CREDIT 2,192 828
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ LYON CREDIT 9,742 8,340
GIAC 4,578 7,764
------ ------
37,877 32,276
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73. FOUR POINTS HOTEL HILTON HEAD LYON CREDIT 25,472 9,624
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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81. HOLIDAY INN AUSTIN SOUTH M&SD 23,577 17,052
▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇ TELERENT 37,750 18,288
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ LYON CREDIT 2,217 840
CHARTER FINANCIAL 24,904 20,064
FINANCIAL MARKETING SERVICES 8,441 3,336
------ ------
96,889 59,500
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89. DAYS INN SILVER SPRING LYON CREDIT 28,133 24,084
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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EXHIBIT A
Schedule of Each of the Premises
EXHIBIT B
FORM OF REQUEST FOR RELEASE
FF&E REPLACEMENT RESERVE DISBURSEMENT REQUEST
*Note: Attach supporting documentation to this form
Project Name _________________________
Date _________________________________
Project Location _____________________
Project No. __________________________
====================================================================================================================================
DESCRIPTION OF LOCATION OF INVOICE #/DATE OR AMOUNT PAID OR FOR LENDER'S USE ONLY
ITEMS REPLACED INSTALLATION VENDOR NAME CONTRACT PAYMENT REQUESTED DATE PAID CHECK # APPROVED DISAPPROVED
====================================================================================================================================
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TOTAL
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Owner hereby certifies to Lender that (i) the FF&E Replacements that are
the subject of this written request have been completed, (ii) the amounts
requested are for the cost of such FF&E Replacements that have been paid or
incurred since the immediately preceding request, (iii) the FF&E Replacement for
which the disbursement is requested is a permitted expenditure on the current
Approved Capital Budget and Schedule B attached to the Loan Agreement, (iv) the
amount requested is less than or equal to the amount budgeted for such FF&E
Replacement in the current Approved Capital Budget and Schedule B, and (v) the
FF&E Replacements that were the subject of the prior written request for
disbursement have been made in accordance with all applicable Legal Requirements
of any Governmental Authority having jurisdiction over the applicable Mortgaged
Property to which the FF&E Replacements are being provided and the cost of such
FF&E Replacements have been paid in full.
OWNER:
Name:
Title:
EXHIBIT C
NOTICE OF REQUEST FOR RELEASE
[OWNER]
______________________, 19_____
▇▇▇▇▇▇ Financial Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
We refer to that certain mortgage loan made by you to us in the original
principal sum of $___________ secured by premises known as ___________, [CITY],
[STATE], [_____________, [CITY], [STATE], and _______________, [CITY], [STATE]
evidenced by a Note (the "Note") and secured by a [THOSE CERTAIN]
Mortgage(s)/Deed(s) of Trust covering said premises ([COLLECTIVELY] the
"Security Instruments") and Loan Agreement made by and between us and Lender,
each dated as of ______________ (the "Loan"). This certificate is delivered to
you, pursuant to Paragraph 61(c) of the Loan Agreement. All capitalized terms
used herein shall have the same meanings herein as they have in the Loan
Agreement.
On or about ___________ ____, 19___ (the "Release Date"), we shall deliver
to you $______, together with all other sums required under the Loan Agreement.
In connection with the prepayment, we also request a Property Release of
the premises known as __________________, [CITY], [STATE] (the "Release
Premises") pursuant to Section 61 of the Loan Agreement covering the Release
Premises. In order to induce you to make a Property Release of the Release
Premises from the lien of the related Security Instruments, the undersigned
hereby represents and certifies as follows:
1. The amount being delivered to you hereunder is in the amount required
pursuant to Section 61 of the Loan Agreement.
2. No Event of Default has occurred and is continuing.
3. Each of the items required for a Property Release under Section 61 of the
Loan Agreement are enclosed herewith or have previously been delivered to
you.
4. The Aggregate Debt Service Coverage Ratio (as defined in the Loan
Agreement) after giving effect to the Property Release shall be equal to or
greater than the Origination DSCR or the Current DSCR.
5. All legal, record, beneficial and economic interests of the Release
Premises shall, on the Release Date, simultaneously with the Property
Release, be transferred and conveyed to a Release Premises Transferee.
6. Each of the representations and warranties contained in the Note, the
Security Instruments and all Other Loan Documents are true and correct as
of the date hereof.
Owner hereby request a Property Release of the Release Premises from the
lien of the Security Instruments and related Loan Documents.
[OWNER]
EXHIBIT D
[INTENTIONALLY OMIT]
EXHIBIT E
Cash Management Agreement
EXHIBIT F
Notices to Tenants/Credit Card Companies
EXHIBIT G
Sheffield Motel Enterprises, Inc., an Alabama corporation
Dothan Hospitality 3053, Inc., an Alabama corporation
Dothan Hospitality 3071, Inc., an Alabama corporation
Gadsden Hospitality, Inc., an Alabama corporation
Servico Flagstaff, Inc., an Arizona corporation
AMIOP Acquisition Corp., a Delaware corporation, as the sole general partner of
AMI Operating Partners, L.P., a Delaware limited partnership
Palm Beach Motel Enterprises, Inc., a Florida corporation, as the sole general
partner of Servico Centre Associates Ltd., a Florida limited partnership
Servico West Palm Beach, Inc., a Florida corporation
Servico Pensacola, Inc., a Delaware corporation
Servico Pensacola 7200, Inc., a Delaware corporation
Servico Pensacola 7330, Inc., a Delaware corporation
Servico Ft. ▇▇▇▇▇▇, Inc., a Delaware corporation
Servico Winter Haven, Inc., a Florida corporation
Brunswick Motel Enterprises, Inc., a Georgia corporation
Servico Rolling ▇▇▇▇▇▇▇, Inc., an Illinois corporation
Servico Cedar Rapids, Inc., an Iowa corporation
Servico Metairie, Inc., a Louisiana corporation
Servico Columbia, Inc., a Maryland corporation
Servico Colesville, Inc., a Maryland corporation
Servico Maryland, Inc., a Maryland corporation
NH Motel Enterprises, Inc., a Michigan corporation
Minneapolis Motel Enterprises, Inc., a Minnesota corporation
Servico Roseville, Inc., a Minnesota corporation
Albany Hotel, Inc., a Florida corporation, f/k/a Albany Motel Enterprises, Inc.
Servico Jamestown, Inc., a New York corporation
Servico New York, Inc., a New York corporation
Servico Niagara Falls, Inc., a New York corporation
Servico Grand Island, Inc., a New York corporation
Fayetteville Motel Enterprises, Inc., a North Carolina corporation
Apico Inns of Green Tree, Inc., a Pennsylvania corporation
Apico Hills, Inc., a Pennsylvania corporation
Servico Hilton Head, Inc., a South Carolina corporation
Servico Northwoods, Inc., a Florida corporation
Servico Austin, Inc., a Texas corporation
Servico Market Center, Inc., a Texas corporation
Servico Houston, Inc., a Texas corporation
Servico Silver Spring, Inc., a Florida corporation
Servico Windsor, Inc., a Florida corporation (Canadian Guarantor)
EXHIBIT H
CEDAR RAPIDS ESTOPPEL
EXHIBIT I
[INTENTIONALLY OMITTED]
EXHIBIT J
CLARION ESTOPPEL
EXHIBIT K
Referred Ground Rent Calculation
(#57 -Omni Albany)
LOAN AGREEMENT
between
▇▇▇▇▇▇ FINANCIAL CORPORATION, INDIVIDUALLY
AND AS AGENT FOR ONE OR MORE CO-LENDERS AND SUCCESSORS,
Lender
THE BORROWERS NAMED HEREIN
Borrowers
and
SERVICO WINDSOR, INC.
CANADIAN GUARANTOR
Dated: as of _________ ___, 1998
TABLE OF CONTENTS
Section Page
1. Defined Terms 1
2. Payment of Debt; Incorporation of Covenants, Conditions
and Agreements 10
3. Warranty of Title 10
4. Insurance 11
5. Payment of Taxes 15
6. Tax, Insurance and Ground Rent Escrow Fund 15
7. FF&E Replacement Reserve; Repair Escrow 17
8. Condemnation 24
9. Leases and Rents 26
10. Representations Concerning Loan 27
11. Single Purpose Entity; Authorization 32
12. Maintenance of Mortgaged Property 35
13. Transfer or Encumbrance of the Mortgaged Property 35
14. Estoppel Certificates; Affidavits 38
15. Changes in the Laws Regarding Taxation 38
16. No Credits on Account of the Debt 39
17. Documentary Stamps 39
18. Controlling Agreement 39
19. Books and Records 39
20. Performance of Other Agreements 43
21. Further Assurances; Right to Split the Loan 43
22. Recording of Mortgage 44
23. Reporting Requirements 44
24. Events of ▇▇▇▇▇▇▇ ▇▇
▇▇. Late Payment Charge; Servicing Fees 47
26. Right to Cure Defaults 47
27. Remedies 48
28. Right of Entry 50
29. Security Agreement 50
30. Actions and Proceedings 51
31. Waiver of Setoff and Counterclaim 51
32. Contest of Certain Claims 51
33. Recovery of Sums Required to Be Paid 52
34. Marshalling and Other Matters 52
35. Intentionally Omitted 52
36. Intentionally Omitted 52
37. Intentionally Omitted 52
38. Management of the Hotel 53
39. Handicapped Access 55
40. ERISA 55
41. Indemnification 56
42. Notice 57
43. Authority 57
44. Waiver of Notice 57
45. Remedies of Borrower 57
46. Sole Discretion of Lender 58
47. Non-Waiver 58
48. No Oral Change 58
49. Liability 58
50. Inapplicable Provisions 58
51. Section Headings 58
52. Counterparts 59
53. Certain Definitions 59
54. Homestead 59
55. Assignments 59
56. Intentionally Omitted 59
57. Agent for Receipt of Process 59
58. Service of Process 60
59. WAIVER OF JURY TRIAL 60
60. CHOICE OF LAW 60
61. Property Releases 60
62. Intentionally Omitted 64
63. Intentionally Omitted 64
64. Required Repairs; Required Repair Funds 64
65. Special Condominium Rider. 67
66. Lock-box Account 70
67. Ground Leases 73
68. Contribution 73
69. Recourse. 74
70. Confidentiality. 74
71. Syndication. 75
72. Special Covenants Relating to Property Nos. 30 80
73. Special Covenant Relating to Property Nos. 13 and 57 on Schedule A
(West Palm Beach and Albany Omni Hotels) 82
74. Special Canadian Provision. 83