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Exhibit 10.2
Real Property and Financing Statement Indexes
XXXXXXX Xxxxxx County Clerk's Office Superior Court
Filed and Recorded July 11, 1990 at 11:40
/s/ Xxxxxxx Xxxxx, CLERK
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS*
From
IVY STREET HOTEL LIMITED PARTNERSHIP
and
ATLANTA MARRIOTT MARQUIS LIMITED PARTNERSHIP,
as Grantors
To
MARRIOTT/PORTMAN FINANCE CORPORATION,
as Grantee
Date: As of July 10, 1990
Secured Note Amount: $199,000,000.00
Maturity Date: July 10, 1997
Property: Land Lot(s): 51
District: 14
County: Xxxxxx
State: Georgia
RECORD AND RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
The Citizens and Southern National Bank
c/x Xxxxxx Xxxxxxxxx
Xxxxxx & Xxxxxx
1100 C & S National Bank Building
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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* THIS INSTRUMENT IS TO BE FILED IN THE REAL ESTATE RECORDS AND IS ALSO TO BE
INDEXED IN THE INDEX OF FINANCING STATEMENTS. THE NAMES OF THE DEBTOR AND THE
SECURED PARTY, THE MAILING ADDRESS OF THE SECURED PARTY FROM WHICH
INFORMATION CONCERNING THE SECURITY INTEREST MAY BE OBTAINED AND THE MAILING
ADDRESS OF THE DEBTOR ARE AS DESCRIBED
(footnote cont'd on p. 1)
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I certify that the Intangible Tax required by law on the notes prior to the
recording of Security Deed (@$1.50 per $500 or fraction as shown by face of
Security Deed) in the amount of $25,000.00 tax has been paid, this 11 day of
July, 1990.
XXXXX X. XXX, Tax Commissioner By /s/ X. Xxxxxxx, Deputy.
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X. Xxxxxxx, Deputy
TABLE OF CONTENTS
RECITALS
Paragraph I .................................................................3
Paragraph II .................................................................7
Paragraph III ...............................................................21
Paragraph IV ................................................................22
Paragraph V..................................................................24
Article 1 INDEBTEDNESS..................................................24
Article 2 IMPOSITIONS...................................................24
Article 3 MAINTENANCE AND REPAIRS; WASTE................................27
Article 4 COMPLIANCE WITH LAWS; USE OF-PREMISES;
ETC. .......................................................29
Article 5 INSURANCE; ETC. ..............................................31
Article 6 ALTERATIONS; DEMOLITION; ETC..................................41
Article 7 TRANSFERS; PLEDGES; FINANCING.................................42
Article 8 PRIORITY OF SECURITY DEED; NO MERGER..........................53
Article 9 CONDEMNATION..................................................54
Article 10 SPACE LEASES..................................................56
Article 11 ASSIGNMENT OF LEASES AND RENTS; ETC...........................57
Article 12 GRANTEE MAY CURE OWNER'S AND/OR
GROUND LESSOR'S DEFAULT.....................................59
Article 13 BOOKS AND RECORDS; FINANCIAL
STATEMENTS, ETC. ...........................................60
Article 14 RECORDED INSTRUMENTS..........................................62
Article 15 DEFAULT; ACCELERATION OF PRINCIPAL............................62
Article 16 LEGAL EXPENSES; SUBROGATION;
WAIVER OF OFFSETS...........................................65
Article 17 INDEMNIFICATION...............................................66
Article 18 NO CREDITS....................................................67
Article 19 DEFAULT AND FORECLOSURE.......................................68
Article 20 SEVERANCE; RELEASE............................................76
Article 21 NO WAIVER.....................................................77
Article 22 MODIFICATION..................................................78
Article 23 NOTICES.......................................................78
Article 24 FURTHER ASSURANCES............................................79
Article 25 GROUND LEASE; JOINDER OF GROUND LESSOR........................80
Article 26 MISCELLANEOUS PROVISIONS......................................85
Article 27 APPLICATION OF FUNDS..........................................89
Article 28 SUCCESSORS AND ASSIGNS........................................90
Article 29 GENDER AND NUMBER; CONSTRUCTION...............................90
Article 30 INVALIDITY OF PROVISIONS......................................91
Article 31 GRANTEE'S REPRESENTATIVE......................................91
Exhibit A Description of Land
Exhibit B Permitted Exceptions
Exhibit C Security Agreement Information
Exhibit D Existing Indebtedness
18650015
DEED TO SECURE DEBT, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
STATE OF GEORGIA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
THIS DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES
AND RENTS (hereinafter referred to as the "Deed") entered into as of this 10th
day of July, 1990 by IVY STREET HOTEL LIMITED PARTNERSHIP (hereinafter referred
to as "Owner"), a Georgia limited partnership, having an office at 00000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, ATLANTA MARRIOTT MARQUIS LIMITED
PARTNERSHIP (hereinafter referred to as "AMMLP" or "Ground Lessor" and together
with the owner hereinafter referred to as the "Grantors", such Grantors to have
joint and several liability hereunder), a Delaware limited partnership having an
office at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and MARRIOTT/PORTMAN
FINANCE CORPORATION, a Delaware corporation having an office at 00000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Grantee").
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IN EXHIBIT C ATTACHED HERETO, IN COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE
9, SECTION 402 OF THE UNIFORM COMMERCIAL CODE, TITLE 11 OF THE OFFICIAL CODE
OF GEORGIA ANNOTATED.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES
OBLIGATIONS CONTAINING PROVISIONS FOR EXTENSIONS OF TIME FOR PAYMENT AND
OTHER MODIFICATIONS IN THE TERMS OF THE OBLIGATIONS.
A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT, PURSUANT TO WHICH THE
GRANTEE MAY TAKE THE COLLATERAL AND SELL IT WITHOUT GOING TO COURT IN A
JUDICIAL FORECLOSURE ACTION UPON DEFAULT BY GRANTOR UNDER THIS INSTRUMENT.
PORTIONS OF THE COLLATERAL ARE GOODS WHICH ARE OR ARE TO BECOME AFFIXED TO
OR FIXTURES ON THE LAND DESCRIBED IN EXHIBIT A HERETO.
THE COLLATERAL SECURES INDEBTEDNESS EVIDENCED BY THE NOTE SECURED HEREUNDER
IN THE ORIGINAL PRINCIPAL AMOUNT OF ONE HUNDRED NINETY NINE MILLION AND
NO/100 DOLLARS ($199,000,000.00), THE FINAL MATURITY OF WHICH IS JULY 10,
1997.
W I T N E S S E T H:
WHEREAS, AMMLP is the owner of the fee estate in the land described in
Exhibit A hereto and all rights, easements and appurtenances thereto
(collectively, the "Land"); and
WHEREAS, pursuant to a Ground Lease between Ground Lessor, as landlord,
and the Owner, as lessee, dated May 28, 1985 (as may be amended or supplemented
from time to time, the "Ground Lease"), the Owner is the owner of the leasehold
estate in the Land, and the fee owner of certain other property interests
described below, including the buildings and improvements now and hereafter
erected on the Land (the fee and leasehold estates under the Ground Lease in the
Land, buildings and improvements sometimes referred to hereinafter as the
"Premises"); and
WHEREAS, the Grantee is simultaneously with the execution and delivery
hereof issuing certain notes due July 10, 1997 under that certain Indenture
dated as of July 1, l990 between the Grantee, as Issuer, Marriott Corporation
("Marriott"), as Guarantor, and The Citizens and Southern National Bank, as
Collateral Trustee, Senior Trustee and Subordinated Trustee (as may be amended
or supplemented from time to time, the "Indenture"); and
WHEREAS, the Owner is executing and delivering to the Grantee a secured
note of even date herewith in the principal amount of $199,000,000 due on or
before July 10, 1997 (as may be amended or supplemented from time to time, the
"Secured Note"), said Secured Note to be payable at such times and with interest
thereon at such rates as specified therein; and
WHEREAS, as further security for the payment and performance of the
obligations secured by this Deed, concurrently with the execution and delivery
of this Deed, the Owner is executing and delivering to the Grantee a Management
Agreement Assignment, a Security Agreement and a Bank Accounts Assignment (as
such terms are hereinafter defined); and
WHEREAS, as further security for the payment and performance of the
obligations secured by this Deed, concurrently with the execution and delivery
of this Deed, Ground Lessor, as owner of the fee estate in the Land and lessor
under the Ground Lease, is joining in the execution and delivery of this Deed
for the purpose of conveying, as security, its fee estate in the Land to the
Grantee and thereby subjecting the terms and provisions of the Ground Lease to
the terms and provisions of this Deed; and
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WHEREAS, concurrently with the execution and delivery of this Deed, the
Grantee, as the Issuer under the Indenture, intends to execute an Assignment and
Pledge Agreement (as hereinafter defined), pursuant to which there shall be
assigned and/or pledged to the Collateral Trustee (as hereinafter defined) this
Deed, the Secured Note, the Assignment, the Bank Accounts Assignment and the
Security Agreement, all as collateral for the Notes authorized to be issued
pursuant to the Indenture;
NOW, THEREFORE,
I. To secure the payment of the aforesaid principal sum of One Hundred
Ninety Nine Million and No/100 Dollars (S199,000,000.00) with interest thereon
according to the Secured Note (including Default Interest, if any, Secured Note
Additional Interest, if any, and Deferred Interest calculated in accordance with
the Secured Note but not to exceed $17,589,720.00, as such terms are hereinafter
defined) with final payment due on July 10, 1997, and to secure the faithful
performance of each and every covenant, term, condition and agreement of the
Grantors contained herein, in the Secured Note and the other Financing Documents
(as hereinafter defined), and the payment by the Grantors to the Grantee of all
such sums, if any, as may be expended or advanced by the Grantee in the
performance of any obligation of the Grantors hereunder or as may be expended or
advanced by the Grantee to protect and preserve the collateral granted hereunder
or the security interest hereby created therein, and any other sums or charges
which may be due and payable by the Grantors to the Grantee hereunder or
thereunder (collectively sometimes hereinafter referred to as the
"Obligations"), the Grantors do hereby GRANT, ASSIGN, BARGAIN, SELL, CONVEY,
TRANSFER, PLEDGE and SET OVER unto Grantee all of the following Mortgaged
Premises (as hereinafter defined), subject, however, to the Permitted Exceptions
(as hereinafter defined), TO HAVE AND HOLD all the Mortgaged Premises unto
Grantee, its successors and assigns forever, and the Grantors warrant and
covenant that the Owner and Ground Lessor are lawfully seized and possessed of
the Mortgaged Premises and have good right to convey the same and do hereby bind
themselves, their successors and assigns to warrant and forever defend the title
to the Mortgaged Premises unto Grantee against every person whomsoever lawfully
claiming or to claim the same or any part thereof (subject, however, to the
Permitted Exceptions), to wit:
ALL of the Ground Lessor's fee estate in and to the Land and the Ground
Lessor's rights, title and interest as landlord under the Ground Lease and the
Ground Lessor's rights, title and interest, if any, which it may hereafter
acquire in the leasehold estate in and to the Land and as tenant under the
Ground Lease and the premises demised thereunder;
ALL of the Owner's leasehold estate in and to the Land and the Owner's
right, title and interest as tenant under the Ground Lease and the premises
demised thereunder, including, without limitation, renewals and extensions, if
any, and rights
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to so renew and extend, and the lessee's interest under the Ground Lease in
and to "Tenant's Investment", as such term is defined in the Ground Lease;
TOGETHER with all right, title and interest of the Grantors now owned
or hereafter acquired, in and to, all and singular, the easements, tenements,
hereditaments and appurtenances belonging to or in any way appertaining to the
Premises and the reversion and remainder thereof including, without limitation,
all right, title and interest of the Grantors under that certain Agreement,
dated February 21, 1984, by and between the City of Atlanta and the Owner, which
Agreement was filed and recorded April 16, 1984 in the Office of the Clerk of
the Superior Court of Xxxxxx County, Georgia in Book 8931, page 310;
TOGETHER with all right, title and interest of the Grantors now owned
or hereafter acquired, in and to any land lying in the bed of any street, road
or avenue, open or proposed, in front of or adjoining or adjacent to the
Premises and any and all sidewalks, alleys and strips and gores of land adjacent
to or used in connection with the Premises;
TOGETHER with all right, title and interest of the Grantors in and to
all insurance or other proceeds for damage done to buildings, structures or
other improvements or personal property of the Grantors on the Premises and all
awards heretofore made or hereafter to be made to or for the account of the
Grantors for the permanent or temporary taking by eminent domain of the whole or
any part of the Mortgaged Premises or any lesser estate in, or easement
appurtenant to the Mortgaged Premises (including, without limitation, any awards
for change of grade of streets), all of which proceeds and awards are hereby
assigned to the Grantee subject to the further provisions of this Deed;
TOGETHER with all of the rents, issues, benefits and profits of the
Mortgaged Premises, including all right, title and interest of Ground Lessor in
and to the Ground Lease (including Ground Rent) and all right, title and
interest of the Grantors in and to the Space Leases (as hereinafter defined) now
or hereafter entered into covering any part of the Mortgaged Premises, and all
security and other deposits and down payments made pursuant thereto, all of
which are hereby assigned to the Grantee, subject, however, to the right of the
Grantors to receive and use the same as hereinafter provided, subject, further,
to the right, power and authority hereafter given to and conferred upon the
Grantee to collect and apply such rents, issues, benefits and profits;
TOGETHER with all of the records and books of account now or hereafter
maintained by or on behalf of the Grantors in connection with the operation of
the Mortgaged Premises;
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TOGETHER also with all right, title and interest of the Grantors in and
to (a) all buildings, structures and other improvements now or hereafter
erected, constructed or situated upon the Premises or any part thereof; (b) all
machinery, devices, fixtures, interior improvements, appurtenances, equipment
and articles of personal property of every kind and nature whatsoever now or
hereafter attached to or placed in or upon the Premises or any such building,
structure or other improvement, whether as a hotel or otherwise, or any part
thereof, and used or procured for use in connection with the operation of any
such building, structure or other improvement, including, but without limiting
the generality of the foregoing, all materials, engines, furnaces, boilers,
stokers, pumps, tanks, heaters, oil burners, dynamos, generators, motors,
scales, motor vehicles, laboratory and testing equipment, swimming pools and
related equipment, maintenance equipment of every kind and nature, switchboards,
partitions, doors, electrical wiring and equipment, projection equipment,
heating, plumbing, washroom, toilet and lavatory fixtures and equipment,
lifting, ventilating and incinerating apparatus, sprinkler and other fire
extinguishing and fire prevention apparatus or systems, air-conditioning
apparatus, gas, electric and steam fixtures, elevators, conveyors, escalators,
hoists, vaults and safes, fittings, radiators, chutes, ducts, machinery, snow
removal, sweeping, vacuuming and other cleaning equipment, tools, building
supplies, window washing hoists, as well as all additions thereto and
replacements thereof collectively (exclusive of "Furnishings and Furniture,"
as defined below), "Building Service Equipment"] (such buildings, structures
or improvements now or hereafter erected, constructed or situated upon the
Premises or any part thereof and the Building Service Equipment are sometimes
collectively called the "Improvements"); (c) all of the furniture,
furnishings, beds, bedsprings, mattresses, bureaus, chiffonniers, chairs,
chests, desks, bookcases, tables, rugs, carpets, curtains, draperies, hangings,
decorations, pictures, outdoor sculpture and works of art, divans, couches,
glassware, silverware, tableware, linens, towels, bedding, blankets, china,
ornaments, bric-a-brac, kitchen equipment, and utensils, bars, bar fixtures,
uniforms, safes, cash registers, accounting and duplicating machines,
telephones, communication equipment, vaults, washtubs, sinks, stoves, ranges,
radios, television sets, laundry machines, iceboxes, refrigerators, awnings,
screens, window shades, venetian blinds, statuary, lamps, mirrors, and all other
appliances, fittings, and equipment of every kind now or hereafter situated in,
or used in the operation of the business conducted at the rooms, halls, lounges,
restaurants, bars and kitchen facilities, offices, lobbies, lavatories,
basements, cellars, vaults and other portions of and of the Improvements, as
well as any and all replacements thereof and additions thereto (collectively,
the "Furnishings and Furniture"); and (d) all leases, if any, leasing to the
Grantors any of the property described in (a), (b) and (c) above, including,
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without limitation, Permitted Leased Equipment (as hereinafter defined).
The Owner shall have the right, at any time and from time to time to
remove and dispose of Building Service Equipment or Furnishings and Furniture
which may have become obsolete or unfit for use or which is no longer useful in
the operation and maintenance of the Improvements or the business conducted
thereat, provided that the Owner promptly replace the same with other Building
Service Equipment or (except as hereinafter provided) Furnishings and Furniture,
as the case may be, owned by Owner and free of liens or claims (or leased by the
Owner provided same qualify as Permitted Leased Equipment), not necessarily of
the same character but of at least equal quality, value and usefulness in
connection with the operation and maintenance of the Improvements or the rooms,
halls, lounges, offices, lobbies, lavatories, basements, cellars, vaults,
restaurants, bars and kitchen facilities or other portions of the Improvements
or the business conducted thereat, and, in any event, of a type and quality at
least comparable with other premier class convention hotels in the Marriott
hotel system. Notwithstanding the foregoing, the Owner shall not be obligated to
replace such Furnishings and Furniture as may have become functionally obsolete,
provided that the Improvements and Furnishings and Furniture, as a whole, are of
a type and quality at least comparable with other premier class convention
hotels in the Marriott hotel system.
All property of every kind acquired by the Grantors after the date
hereof, which by the terms hereof is required or intended to be subjected to the
lien or security interest of this Deed shall, immediately upon the acquisition
thereof, and without the necessity of any further deed of trust, mortgage or
other instrument, become subject to the lien and security interest of this Deed.
Neither the Owner nor the Ground Lessor may acquire nor agree to acquire any
property of any nature which by the terms hereof is required or intended to be
subjected to the lien or security interest of this Deed subject to any chattel
mortgage, security agreement, conditional sale, or other lien, encumbrance or
charge, except as expressly permitted herein;
TOGETHER with the Grantors' rights, if any, in and to the name or
names, if any, as may now or hereafter be used for the Improvements, including
"Atlanta Marriott Marquis" and the good will associated therewith;
TOGETHER with the Grantors' rights, if any, in and to al1 permits,
licenses and contract rights, to the extent assignable (including, without
limitation, leasing, maintenance, service and architectural contracts), but no
such assignment shall be construed as a consent by the Grantee to any permit,
license or contract so assigned or to impose on the Grantee any obligations with
respect thereto;
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TOGETHER with the Grantors' rights, if any, in and to all water, water
rights, mineral rights, ditches, ditch rights, reservoirs and reservoir rights
appurtenant to, located on or used in connection with the Land or the
Improvements, whether existing now or hereafter acquired;
TOGETHER with all of the Owner's rights, title and interest in and to
any right pursuant to Section 365(h) of the U.S. Bankruptcy Code (the
"Bankruptcy Code") or any successor to such Section, (a) to possession or
statutory term of years derived from or incident to the Ground Lease or (b) to
treat the Ground Lease as terminated; and
TOGETHER with all right, title and interest in Owner's option under the
Ground Lease to purchase Ground Lessor's fee estate in the Land (the "Purchase
Option"), with any other right, title and interest hereafter acquired by the
Owner in and to all options to purchase or lease the Premises or any other
collateral granted under any of the Real Estate Security Documents, or any
portion thereof or interest therein.
All of the foregoing including, without limitation, the described
property, premises, appurtenances, easements, estates, rights, privileges,
interests and franchises hereby granted and released, assigned, transferred, set
over and mortgaged, or intended so to be, are hereinafter collectively referred
to as the "Mortgaged Premises".
This Deed is intended (a) to operate and is to be construed as a deed
passing the title to the Mortgaged Premises to Grantee and is made under those
provisions of the existing laws of the State of Georgia relating to deeds to
secure debt, and not as a mortgage, and (b) to constitute a security agreement
pursuant to the Uniform Commercial Code of Georgia.
II. In addition to other definitions contained herein, the following
terms shall have the meanings set forth below unless the context of this Deed
otherwise requires.
1. "Accounting Period" shall mean the four (4) week accounting periods
having the same beginning and ending dates as Owner's four (4) week accounting
periods, except that an Accounting Period may occasionally contain an additional
number of days when necessary to conform the Owner's accounting system to the
calendar.
2. "Accounting Quarter" shall mean the Accounting Periods ending on the
third, sixth, ninth and last Accounting Periods within each Fiscal Year of the
Owner.
3. "Additional Financing" shall have the meaning specified in Section
7.6.
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4. "Administrative Services Agreement" shall mean the Administrative
Services Agreement, dated as of the date hereof, between the Grantee and Eastdil
Realty, Inc.
5. "Administrative Services Representative" shall mean Eastdil Realty,
Inc. or any permitted replacement Administrative Services Representative.
6. "Affiliate" shall mean, with respect to any specified Person,
except as elsewhere in this Deed specifically provided, any other Person that
directly or indirectly controls, is controlled by, or in under common control
with such specified Person. For purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlled by"
and "under common control" have meanings correlative to the foregoing.
7. "Affiliate Loans" shall have the meaning specified in Section 7.6.1.
8. "AICPA" shall mean the American Institute of Certified Public
Accountants or any successor standard-setting authority for certified public
accountants.
9. "AMMLP" shall mean Atlanta Marriott Marquis Limited Partnership, a
Delaware limited partnership.
10. "Appraisers" shall mean a Person not an Affiliate of the Grantors,
the Grantee, the Collateral Trustee, Senior Trustee, Subordinated Trustee or the
Administrative Services Representative engaged in the business of appraising
property or otherwise competent to determine the market value of the Mortgaged
Premises, who shall be (i) a nationally recognized independent appraiser, and
(ii) a member of the American Institute of Real Estate Appraisers (or any
successor thereto) with at least ten years' experience in appraising mayor
hotels in the United States.
11. "Approved Cash Equivalent" shall mean United States Treasury
securities, U.S. denominated certificates of deposit having terms of six (6)
months or least issued by and money market accounts of an Eligible Bank.
12. "Architect" shall mean Xxxx Xxxxxxx & Associates or other
nationally recognized licensed independent architect or engineer holding a
current certificate of registration from the Georgia State Board of
Architecture.
13. "Assignment and Pledge Agreement" shall mean the Assignment and
Pledge Agreement, dated as of the date hereof,
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from the Grantee, as assignor, to the Collateral Trustee, as assignee, as may be
amended and supplemented from time to time.
14. "Award" shall have the meaning specified in Section 9.2.
15. "Bank Accounts Assignments" shall mean the Collateral Assignment of
Bank Accounts, dated as of the date hereof, from the Owner, as assignor, to the
Issuer, as assignee, as may be amended and supplemented from time to time.
16. "Bankers Trust Loan" shall have the meaning specified in Section
7.6.3.
17. "Bankruptcy Code" shall have the meaning specified in Paragraph I.
18. "Building Service Equipment" shall have the meaning specified in
Paragraph I.
19. "Business Day" shall have the meaning specified in the Indenture.
20. "Certificate of No Material Impairment" shall mean an Officers'
Certificate with respect to a proposed action to the effect that in the good
faith judgment of the officers executing such Certificate, in light of then
current circumstances, the taking of such proposed action will not result in a
Material Impairment. A Certificate of No Material Impairment shall be binding
and conclusive on the Grantee and the Holders that the action described therein
does not cause a Material Impairment, absent bad faith or fraud.
21. "Collateral Trustee" shall have the meaning specified in the
Indenture.
22. "Debt Service" shall mean, in respect of any Indebtedness of the
Owner for any period (exclusive of Affiliate Loans and Guaranty Loans),
principal (other than "balloon payments" of principal due on demand or at
maturity) and all interest which is payable during such period (other than
default interest) including any Secured Note Additional Interest (or, with
respect to any Subordinate Deed, any similar amount on account of withholding or
excise taxes) which is payable during such period with respect to such
Indebtedness; provided, however, Debt Service on the Secured Note shall mean the
interest payable and accrued for any period (i.e., interest payable at the
Payment Rate plus Deferred Interest accruing during such period, as such terms
are defined in the Secured Note). For purposes of calculating the amount of Debt
Service payable during any period under any Indebtedness with respect to which
payments of Secured Note Additional Interest (or, with respect to any
Subordinate Deed, similar amounts on account of withholding or excise taxes)
-9-
are payable at the time the Debt Service Coverage Test is actually being
applied, there shall be included in Debt Service the maximum amount actually due
and payable by the Owner during such period on account of such payments of
Secured Note Additional Interest (or such similar amounts on account withholding
or excise taxes) after giving effect to any of "caps" or other limitations with
respect thereto provided for under the terms of such Indebtedness. For purposes
of calculating the amount of Debt Service payable during any period under any
Indebtedness which provides for interest at other than a fixed rate (which is
not a participation, contingent payment or payment of default interest or
Secured Note Additional Interest (or similar amounts on account of excise or
withholding taxes, with respect to any Subordinate Deed) which is not included
in Debt Service as provided above), there shall be included in Debt Service the
amount which would be payable by the Owner during such period on account of
interest assuming the maximum interest rate payable by the Owner under the terms
of such Indebtedness (i) after giving effect to any "caps" or other limitations
with respect thereto provided for under the terms of such Indebtedness and (ii)
after giving effect to any arrangements (including, without limitation, interest
rate swaps) which modify the maximum effective rate of interest to the Owner
with respect to such Secured Indebtedness, provided that such arrangements are
made with a Person which, at the time such arrangement is made, either (A) has a
Rating of at least "A" by a Rating Agency or (B) has a Net Worth of at least $1
billion; provided, however, such maximum interest rate shall not exceed two
hundred (200) basis points over the true interest rate payable as of the date
the Debt Service Coverage Test is being applied.
23. "Debt Service Coverage Test" shall be satisfied if, at the time the
Debt Service Coverage Test is being applied, the Net Cash Flow of the Owner from
the Mortgaged Premises for each of the previous two semi-annual interest payment
periods for the Secured Note (without an expense deduction for Ground Rent),
shall equal or exceed 115% of the aggregate Debt Service of the Owner for the
two, six month periods following the date on which the Additional Financing then
contemplated is being entered into.
24. "Default Interest" shall have the meaning specified in the Secured
Note.
25. "Default Rate" shall have the meaning specified in the Secured
Note.
26. "Deferred Interest" shall have the meaning specified in the Secured
Note.
27. "Deferred Interest Commencement Date" shall mean March 24, 1991.
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28. "Depositary" shall mean the Collateral Trustee.
29. "Eligible Bank" shall mean any bank or trust company organized or
regulated under the 1aws of the United States or Japan, having a Rating of at
least "A" from each Rating Agency.
30. "Environmental Indemnity" shall mean the Environmental Indemnity,
dated as of the date hereof, from the Grantors to the Grantee and the Collateral
Trustee, as may be amended or supplemented from time to time.
31. "Equipment" shall mean collectively, the Building Service Equipment
and Furnishings and Furniture.
32. "Event of Default" shall have the meaning specified in Article 15.
33. "Expense Deductions" shall mean all operating expenses (including,
without limitation, fixed expenses) of the Mortgaged Premises (excluding all
payments made in respect of any borrowings of the Owner, the Incentive
Management Fee, as defined in the Management Agreement, and Ground Rent),
calculated on an accrual basis of accounting in accordance with generally
accepted U.S. accounting principles, including, without limitation:
(a) contributions to the Repairs and Equipment Reserve (as defined
in the Management Agreement) and any other required reserves;
(b) the cost of all insurance (including premiums, deductibles and
other self-insured losses);
(c) lease payments for only the telephone equipment or other
equipment which is approved by Owner and the maintenance portion of
Approved Equipment Leases (as defined in the Management Agreement);
(d) the cost of sales including salaries, wages, fringe benefits
(i.e., insurance, sick leave, holiday and vacations, pensions and
similar benefits), payroll taxes and other costs related to Hotel
employees;
(e) departmental expenses including all expenses incurred in the
generation of departmental revenues, including, without limitation,
room revenues, food and beverage revenues, telephone revenues, parking
revenues and retail sales/rental revenues;
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(f) administrative and general expenses and the coat of Hotel
marketing, advertising, business promotion and public relations
expenses, heat, light and power;
(g) the cost of inventories and fixed asset supplies consumed in
the operation of the Hotel;
(h) all costs and fees of independent accountants or other third
parties who perform Services in connection with the Mortgaged Premises;
(i) the cost and expense of technical consultants and operational
experts for specialized services in connection with non-routine Hotel
work;
(j) the Basic Management Fee;
(k) the Hotel's pro rata share of costs and expenses incurred by
the Management Company in providing Chain Services (as defined in the
Management Agreement);
(1) Impositions;
(m) a reasonable reserve for bad debts and/or doubtful accounts
receivable as determined by the Management Company in accordance with
its accounting policies and consistent with other premier convention
hotels in the Marriott hotel system; and
(n) the cost of routine maintenance, repairs and minor alterations,
the cost of which can be expensed under generally accepted accounting
principles.
34. "Extraordinary Revenues" shall mean the proceeds from (a) sales or
other dispositions of any of the assets of the Owner other than in the ordinary
course of business of the Mortgaged Premises; (b) proceeds of casualty
insurance; (c) Awards or proceeds from the sales in lieu of and under the threat
of a Taking; (d) income derived from securities and other property acquired and
held for investment; (e) proceeds of the Secured Note and of any other
borrowings by the Owner, including Affiliate Loans; and (f) proceeds from
capital contributions of he partners of the Owner.
35. "Financing Documents" shall have the meaning specified in the
Indenture.
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36. "Financial Statements" shall have the meaning set forth in the
definition of "Net Worth" herein.
37. "Fiscal Year" shall mean the fiscal year of the Owner.
38. "Furnishings and Fixtures" shall have the meaning specified in
Paragraph I.
39. "Governmental Authorities" shall mean all Federal, state, county,
municipal and local governments and all departments, commissions, boards,
bureaus and offices thereof, having jurisdiction over the Mortgaged Premises or
any part thereof.
40. "GP-AMMLP" shall mean Marriott Marquis Corporation, a Delaware
corporation, and any successor or assign which is the sole general partner of
AMMBP.
41. "Grantee" shall mean the Issuer, as defined in the Indenture,
subject to the terms of the Assignment and Pledge Agreement and Paragraph III
herein.
42. "Grantors" shall mean, collectively, the Owner and Ground Lessor
herein named, or any subsequent holder or holders of the Owner's and Ground
Lessor's estates in the Mortgaged Premises or any portion thereof, and their
respective heirs, executors, administrators, successors and assigns.
43. "Gross Revenues" shall mean the sum of all revenue and income of
any kind from the operation of the Mortgaged Premises, calculated on the accrual
basis of accounting, including rentals or other payments from lessees, licensees
or concessionaires (but not including gross receipts of any such lessees,
licensees or concessionaires except as may be received by or on behalf of Owner
as rent), the proceeds of business interruption insurance and telephone charges
and all interest on deposits, all determined in accordance with generally
accepted accounting principles, excluding all refunds, rebates, discounts and
credits of a similar nature, given, paid or returned by the Owner or the
Management Company in the course of obtaining such revenue and income; provided,
however, that any amounts received, recognized or realized, in the nature of the
following shall not be included as Gross Revenues: (a) applicable sales, use and
excise taxes or similar governmental charges collected directly from patrons or
guests, or as part of the sales price of any goods, services or displays
(including, without limitation, occupancy, gross receipts, admission, cabaret or
similar equivalent taxes); (b) gratuities; (c) Extraordinary Revenues; and (d)
interest earned on the Repairs and Equipment Reserve (as defined in the
Management Agreement).
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44. "Ground Lease" shall have the meaning specified in the Recitals.
45. "Ground Lessor" shall mean Atlanta Marriott Marquis Limited
Partnership ("AMMLP") or any subsequent holder or holders of the Ground Lessor's
estate in the Mortgaged Premises or any portion thereof.
46. "Ground Rent" shall mean the Rental, as defined in the Ground
Lease.
47. "Guaranties" shall mean the Interest/Principal Guaranty and the
Principal Guaranty, collectively.
48. "Guarantor" shall mean Marriott.
49. "Guaranty Loans" shall have the meaning specified in Section 7.6.2.
50. "Holder" shall have the meaning specified in the Indenture.
51. "Hotel" shall mean the Atlanta Marriott Marquis Hotel presently
located upon the Land.
52. "Hotel Consultant" shall mean Laventhol & Xxxxxxx, Xxxxxxx
Xxxxxxxxx & Company, Xxxxxxx, Xxxx & Xxxxxxx or any other nationally recognized
independent Person, whichever Owner shall select, which has performed hotel
consulting for at least ten years.
53. "Impositions" shall mean all duties, taxes, water and sewer rents,
rates and charges, assessments (including, but not limited to all assessments
for public improvements or benefit), charges for public utilities, excises,
levies, license and permit fees and other charges, ordinary or extraordinary,
whether foreseen or unforeseen, of any kind and nature whatsoever, which prior
to or during the term of this Deed will have been or may be laid, levied,
assessed or imposed upon or become due and payable out of or in respect of, or
become a lien on the Premises, the Improvements, the Equipment or any other
property or rights included in the Mortgaged Premises, or any part thereof or
appurtenances thereto, or which are levied or assessed against the income
received by the Owner or Ground Lessor from all or any part of the Mortgaged
Premises (other than income, franchise or other taxes based upon net income), by
virtue of any present or future law, order or ordinance of any Governmental
Authority.
54. "Improvement" shall have the meaning specifed in Paragraph I.
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55. "Indebtedness" shall have the meaning specified in the indenture
(except that for purposes of this Deed, "Indebtedness" shall not include the
Ground Lease).
56. "Indenture" shall have the meaning specified in the Recitals.
57. "Independent Accountants" shall have the meaning specified in the
Indenture.
58. "Institutional Lender" shall mean any reputable commercial bank,
savings and loan association or building loan association, real estate
investment trust, insurance company or pension fund, trust or similar
organization which has a net worth of at least One Hundred Million Dollars
($100,000,000) and total assets of at least Five Hundred Million Dollars
($500,000,000).
59. "Insurance Adjuster" shall mean an insurance claims adjuster
employed by the insurance carrier insuring the Premises with respect to a
particular casualty, which adjuster shall have at least five (5) years'
experience with respect to the adjustment of insurance proceeds for property
claims.
60. "Interest/Principal Guaranty" shall have the meaning specified in
the Indenture.
61. "Issuer" shall have the meaning specified in the Indenture.
62. "Land" shall have the meaning specified in the Recitals.
63. "Legal Requirements" shall mean all present and future laws,
ordinances, rules, regulations and requirements of all Governmental Authorities,
and all orders, rules and regulations of any national or local board of fire
underwriters or other body exercising similar functions, foreseen or unforeseen,
ordinary or extraordinary, which may be applicable to the Mortgaged Premises or
any part thereof, or to the use or manner of such of any of the foregoing by any
Person, or to the owners thereof, or to the tenants, or occupants thereof (with
respect to the Mortgaged Premises), whether or not any such law, ordinance,
rule, regulation or requirement shall necessitate structural changes or
improvements or shall interfere with the use or enjoyment of any of the
foregoing, and shall also mean and include all requirements of the policies of
public liability, fire and all other insurance at any time required to be
maintained in force under this Deed with respect to any of the foregoing.
64. "Management Agreement" shall mean the Restated and Amended Hotel
Management Agreement, dated May 28,
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1985, between the Owner and the Management Company, as amended by the First
Amendment to the Restated and Amended Hotel Management Agreement dated as of the
date hereof between the Owner and the Management Company, as same may be further
amended or supplemented.
65. "Management Agreement Assignment" shall mean the Assignment of
Management Agreement, dated as of the date hereof, by the Owner and the
Management Company to the Issuer, as same may be amended or supplemented.
66. "Management Company" shall mean Marriott Hotels, Inc. and any
successor or assign permitted under the terms of the Management Agreement and
the Management Agreement Assignment.
67. "Marriott" shall mean Marriott Corporation.
68. "Marriott Commitment" shall mean collectively, (i) that certain
loan commitment letter dated May 28, 1985 pursuant to which Marriott committed
to lend to the Owner up to $33,000,000 and (ii) that certain Marriott/Ivy Street
Loan Agreement, dated as of the date hereof, between Marriott and the Owner
concerning the agreement of Marriott to lend the Owner certain funds without any
amendments or supplements thereto.
69. "Marriott Controlled Person" shall have the meaning specified in
Section 7.3.1.
70. "Material Impairment" shall be deemed to result from any proposed
action, if such proposed action, in light of then current circumstances, would
(i) materially adversely impair the fair market value of the Mortgaged Premises,
or (ii) materially adversely impair the security of the Deed as a whole. In
deciding whether the standard set forth in clauses (i) and (ii) of the preceding
sentence have been complied with, the Grantors shall consider the cumulative
effect of the proposed action and of all actions previously taken with respect
to which Certificates of No Material Impairment were given or required to have
been given, but such prior actions shall be taken into account only if, and to
the extent, that such prior actions would have had an adverse effect even if
there had been no change in circumstances since the date such prior actions were
taken.
71. "Mortgaged Premises" shall have the meaning specified in Paragraph
I herein.
72. "Net Cash Flow" shall mean, with respect to any period, the amount
by which Gross Revenues exceeds Expense Deductions.
73. "Net Worth" shall mean, with respect to a Person and a date, and
based upon such Person's audited financial
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statements which are certified by Independent Accountants (or if such Person
does not have audited financial statements, based upon such Person's "reviewed"
financial statements prepared by Independent Accountants) and prepared in
accordance with generally accepted U.S. accounting principles or in accordance
with the accounting principles or requirements determined or promulgated by a
regulatory agency having jurisdiction over such Person, as applied in Canada,
the United Kingdom, the Netherlands, France, Switzerland, Italy, the Federal
Republic of Germany, or Japan ("Financial Statements") and dated as of the end
of the latest fiscal year of sueh Person (unless such fiscal year ended within
120 days of the date as of which Net Worth is determined, in which event, unless
Financial Statements are available within such 120 day period, such Financial
Statements may be dated as of the end of the prior fiscal year of such person),
the owners' equity of such Person computed on a consolidated basis. Any
Financial Statements which are prepared in accordance with accounting principles
or requirements of Canada, the United Kingdom or Japan and in which any amounts
therein are shown in a currency other than U.S. Dollars shall be, for purposes
of determining Net Worth, converted to U.S. Dollars in effect as of the date
with respect to which such Financial Statements were prepared.
74. "Notes" shall have the meaning specified in the Indenture.
75. "Note Principal Amount" shall mean the principal sum of
$199,000,000.
76. "Obligations" shall have the meaning specified in Paragraph I
herein.
77. "Officers' Certificate" shall mean the certificate of the Owner or,
as specified in a particular case, a specified Person, in the case of a
corporation, signed by its Chairman of the Board, its Chairman to the Executive
Committee, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, its Secretary or an
Assistant Secretary or in a case of a partnership, signed by a direct or
indirect general partner thereof (and if such direct or indirect general partner
is a corporation, such certificate shall be signed by such corporation, as
direct or indirect general partner by such Person that would be required to sign
such a certificate if such partnership were a corporation) or in case of an
entity other than a corporation or a partnership, such Person as is authorized
to bind such entity, and delivered to the Grantee. Any Officers' Certificate
delivered pursuant to the terms of the Financing Documents shall be binding and
conclusive on the Grantee, Holders and the Administrative Services
Representative, if applicable, absent bad faith, gross negligence or fraud. Such
Officers' Certificate shall contain a statement that (a) in ordinary course of
the
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performance by the signer of his duties, he would normally obtain knowledge of
or (b) he has made such inquiry as is sufficient, in his reasonable judgment, as
to, in each case, the existence of any conditions or events necessary to make
the statement set forth in such Officers' Certificate.
78. "Opinion of Counsel" shall have meaning specified in the Indenture.
79. "Original Note Principal Amount" means $196,500,000.
80. "Outstanding" shall have the meaning specified in the Indenture.
81. "Owner" shall mean Ivy Street Hotel Limited Partnership, or any
subsequent holder or holders of the Owner's estate in the Mortgaged Premises or
any portion thereof, and its or their respective heirs, executors,
administrators, successors and assigns.
82. "Permitted Equipment Lease" shall mean any assignment, pledge,
grant of a security interest in, conditional sale or other title retention
agreement given by the Owner to a provider, lessor or supplier of equipment,
materials or supplies for use in connection with the Premises (any such
equipment, materials and supplies is hereinafter referred to as "Permitted
Leased Equipment") which is given by the Owner to acquire the use of such
Permitted Leased Equipment, provided (a) any Permitted Equipment Lease shall not
cover the heating, ventilation, air conditioning, electrical, plumbing or other
mechanical systems of the Improvements (unless the Permitted Equipment Lease
specifically provides that the Permitted Leased Equipment covered thereby will
not, in any circumstances, be removed from the Premises and will be available
for use by the Grantee upon foreclosure, Grantee's exercise of its power of sale
hereunder or acceptance of a deed in lieu thereof), and (b) with respect to all
Permitted Equipment Leases in effect at any one time, the annual aggregate costs
to be incurred by Owner in connection therewith (exclusive of maintenance
charges) which are not passed through to Space Tenants shall not exceed Five
Hundred Thousand Dollars ($500,000.00); provided, however, Permitted Equipment
Leases may nevertheless be entered into by Owner when such annual aggregate
costs of all Permitted Equipment Leases (exclusive of maintenance charges) in
effect at any one time exceed $500,000 if, prior to the execution of each
Permitted Equipment Lease entered into when the annual aggregate costs of all
Permitted Equipment Leases (exclusive of maintenance charges) are, or upon
execution of the proposed Permitted Equipment Lease will be, in excess of
$500,000, the Owner and the Management Company delivers to the Grantee an
Officers' Certificate certifying that (i) the terms of the Permitted Equipment
Lease are commercially reasonable, (ii) the Permitted Equipment Lease is
permitted under the terms of the Owner's partnership agreement, (iii) the
Permitted Leased Equipment is reasonably necessary for the
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operation of a premier class convention hotel and (iv) if commercially
available, the terms of the Permitted Equipment Lease provide the Grantee with
notice of any default under the Permitted Equipment Lease and give the Grantee
the opportunity to cure any such default.
83. "Permitted Exceptions" shall mean those matters set forth on
Exhibit B annexed hereto.
84. "Person" shall have the meaning specified in the Indenture.
85. "Postman" shall mean Xxxx X. Xxxxxxx, Xx.
86. "Premises" shall have the meaning set forth in the Recitals.
87. "Principal Guaranty" shall have the meaning specified in the
Indenture.
88. "Purchase Option" shall have the meaning set forth in Paragraph I
herein.
89. "Qualified Purchaser" shall have the meaning specified in Section
7.1.1 of this Deed.
90. "Rated or Rating" shall having the meanings specified in the
Indenture.
91. "Rating Agency" shall having the meaning specified in the
Indenture, except that the Rating Agency shall be as elected by the Owner, if
the Issuer has not designated a Rating Agency under the Indenture.
92. "Real Estate Security Documents" shall have the meaning specified
in the Indenture.
93. "Rents" shall mean all of the rents, revenues, income, proceeds,
profits and other benefits paid or payable by any Persons to the Owner for
using, leasing, licensing, possessing, operating from, residing in, or otherwise
enjoying the Mortgaged Premises.
94. "Required Net Worth Certificate" shall mean, with respect to a
Person, a given minimum Net Worth amount (the "Minimum Net Worth") and a date
(the "Determination Date"), an Officers' Certificate of such Person to the
effect that the Net Worth of such Person, determined as of such Determination
Date, is at least equal to the Minimum Net Worth. In addition to providing such
certificate, such Person will also show the Financial Statements which provided
the basis for such certificate to the Grantee, or, alternatively, provide a
certificate from an Independent Accountant to the same effect as such
certificate.
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95. "Secured Indebtedness" shall mean any Indebtedness which the Deed
or any Subordinate Deed secures.
96. "Secured Note" shall have the meaning specified in the Recitals.
97. "Secured Note Accreted Amount" shall have the meaning specified in
the Secured Note.
98. "Secured Note Additional Interest" shall have the meaning specified
in the Secured Note.
99. "Secured Note Yield Maintenance Amount" shall have the meaning
specified in the Secured Note.
100. "Security Agreement" shall mean the Security Agreement, dated as
of the date hereof, between the Owner, Ground Lessor and the Grantee, as same
may be amended or supplemented.
101. "Service Agreements" shall mean agreements, other than Space
Leases and the Management Agreement, which relate to the operation or
maintenance of the Improvements, such as utility contracts, maintenance
agreements and service contracts.
102. "Space Leases" shall mean any and all leases (excluding the Ground
Lease), licenses, concessions or other agreements (written or verbal, now or
hereafter in effect), which grant a possessory interest in and to, or the right
to use part of the Improvements, but specifically excludes the Management
Agreement, subleases to which the Owner is not a party and any agreements for
the temporary rental of hotel rooms, meeting and banquet rooms and similar hotel
facilities. The Space Leases shall not include Service Agreements.
103. "Space Tenant" shall mean the tenant, or other user or occupant of
part of the Improvements under a Space Lease.
104. "State" shall mean the State of Georgia, in which the Premises are
located.
105. "Subordinate Deed" shall have the meaning specified in Section
7.6.
106. "Subordinate Lender" shall have the meaning specified in Section
7.7.1.
107. "Subordinated Obligations" shall mean the debtor's obligations to
a Subordinate Lender under a Subordinate Deed and the related loan documents.
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108. "Substitute Real Estate Collateral" shall have the meaning
specified in the Indenture.
109. "Taken" or "Taking" shall have the meaning provided in Section
3.3 hereof.
110. "Total Loss" shall have the meaning specified in Section 5.12.
111. "Total Taking" shall have the meaning specified in Section 9.3.
112. "Veto Power" shall mean with respect to any Person, the direct or
indirect rights (whether pursuant to the constituent documents of such Person,
by contract or through representation on a board of directors or other governing
body of such Person or in another manner) which either legally or, in practical
effect, enable them to make or veto significant management decisions with
respect to such Person.
113. "Work" shall have the meaning provided in Section 5.11.2 hereof.
114. "Yield Maintenance Amount" shall have the meaning specified in the
Indenture.
The term "as may be amended and supplemented" when used to qualify any
agreement described above, shall not be deemed the consent by the Grantee to, or
agreement to be bound by, any amendment or supplement to such agreement, or a
waiver or modification of the Grantee's right (if any) to consent to any such
amendment. Furthermore, any reference to a Person's heirs, executors,
administrators, successors and/or assigns, when used with respect to any Party
described above, shall not be deemed a consent by the Grantee to, or a waiver or
modification of the Grantee's right (if any) to consent to any sale, assignment,
conveyance or other transfer of such Person's interests.
III. Concurrently with its execution and delivery to the Grantee, this
Deed is being collaterally assigned to the Collateral Trustee, as trustee for
the benefit of the Holders under the Indenture and pursuant to the Assignment
and Pledge Agreement. The address of the Collateral Trustee is as shown on the
cover of the Assignment and Pledge Agreement. Upon such assignment, the
Collateral Trustee shall for all purposes be Grantee hereunder and shall
exercise and benefit from all of the rights and remedies of the Grantee
hereunder subject to the terms hereof, including, without limitation, the right
to inspect the Premises, to give and receive notices, to receive financial
information, to grant or withhold consent or approvals, to benefit from
indemnities, and to exercise all rights and remedies of the Grantee hereunder.
The Grantors hereby acknowledge the
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foregoing and agree to be bound to the Collateral Trustee, upon the execution
and delivery of such Assignment and Pledge Agreement, as if the Collateral
Trustee were the Grantee hereunder and had executed this Deed as the Grantee.
IV. The Grantors represent, covenant and warrant as follows:
1. that Owner is lawfully seized and possessed of the leasehold estate
granted under the Ground Lease and the Ground Lessor is lawfully seized and
possessed of the fee estate in the Land, and that they hold good and marketable
title thereto and to the rest of the Mortgaged Premises, subject only to the
Permitted Exceptions;
2. that the Mortgaged Premises are now free and clear of all liens,
security interests and encumbrances whatsoever, other than the Permitted
Exceptions, and that the Grantors have good right and lawful authority to
mortgage and convey the same in the manner and form herein provided, and that
they will warrant and defend title to the Mortgaged Premises against all claims
and demands whatsoever (other than the Permitted Exceptions);
3. that the Real Estate Security Documents and the Environmental
Indemnity have been authorized, executed and delivered in accordance with
applicable law and all partnership, corporate and governmental consents,
authorizations and approvals necessary or required therefore have been duly or
effectively taken or obtained;
4. that the Real Estate Security Documents (exclusive of the Assignment
and Pledge Agreement) and the Environmental Indemnity are legal, valid and
binding obligations of the Owner and/or the Ground Lessor, as the case may be,
enforceable in accordance with their terms against the parties thereto, except
as may be limited by bankruptcy, insolvency and other laws affecting creditors'
rights generally and by equitable principles of law;
5. that the Ground Lease and the Management Agreement were duly
authorized, executed and delivered, are in full force and effect, and the Owner
and the Ground Lessor have received no notice of default thereunder and have no
knowledge of (a) any default thereunder, (b) any violations of any Governmental
Requirements applicable to the Premises or the operation thereof which could
adversely affect the value of the Mortgaged Premises, or (c) any non-compliance
by the Owner or the Ground Lessor of their obligations under the Permitted
Exceptions;
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6. that the Owner is a limited partnership, duly organized and validly
existing under the laws of the State of Georgia and duly authorized to do
business ]n the State of Georgia, and has the power and lawful authority to own
its properties, to carry on its business as now conducted and to enter into and
perform its obligations under the Secured Note, the Deed, the Management
Agreement Assignment, the Security Agreement, the Bank Accounts Assignment and
the Environmental Indemnity. The general partners of the Owner are AMMLP and
Portman. GP-AMMLP is an indirect wholly-owned subsidiary of Marriott;
7. that the execution and delivery of the Secured Note, the Management
Agreement Assignment, the Security Agreement, the Bank Accounts Assignment and
the Environmental Indemnity and the performance by the Owner of its obligations
thereunder will not conflict with, or cause a default under, (a) the partnership
agreement of the Owner or any judgment, statute, rule, order, writ, decree or
injunction of any Court or Governmental Authority having jurisdiction over it,
or (b) any agreement binding upon the Owner or its property, the effect of which
conflict with, or default under such agreement would be to materially impair the
ability of the Owner to perform its obligations under the Secured Note, the
Management Agreement Assignment, the Security Agreement, the Bank Accounts
Assignment or the Environmental Indemnity;
8. that the Owner has all necessary certificates, licenses and other
approvals, governmental and otherwise, necessary for the operation of the
Premises as presently operated and conducted and the conduct of its business at
the Premises as presently operated and conducted and all required zoning,
building code, land use, environmental and other similar permits or approvals,
all of which are in full force and effect as of the date hereof and not subject
to revocation, suspension, forfeiture or modification (except to the extent any
particular type of permit or approval for comparable Improvements is customarily
subject to revocation, suspension, forfeiture or modification, provided,
however, the Owner has no knowledge of any anticipated revocation, suspension,
forfeiture or modification);
9. that the Premises and the present and contemplated use and occupancy
thereof are in full compliance with all applicable zoning ordinances, building
codes, land use and other similar laws, other than such violations which have an
immaterial effect on the value of the Mortgaged Premises;
10. that the Ground Lessor is a limited partnership, duly organized and
validly existing under the laws of the State of Delaware and qualified to do
business in the State of Georgia, and has the power and lawful authority to own
its properties, to carry on its business as now conducted and to
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enter into and perform its obligations under this Deed, the Security Agreement
and the Environmental Indemnity. The sole general partner of the Ground Lessor
is Marriott Marquis Corporation ("GP-AMMLP"); and
11. that the execution and delivery of this Deed, the Security
Agreement and the Environmental Indemnity and the performance by the Ground
Lessor of its obligations thereunder will not conflict with, or cause a default
under, (a) the partnership agreement of the Ground Lessor or any judgment,
statute, rule, order, writ, decree or injunction of any court or Governmental
Authority having jurisdiction over it, or (b) any agreement binding upon the
Ground Lessor or its property, the effect or which conflict with, or default
under such agreement would be to materially impair the ability of the Ground
Lessor to perform its obligations under this Deed.
V. The Grantors and the Grantee further covenant as follows:
1. INDEBTEDNESS.
1.1 The Owner will pay, as and when due, the indebtedness
evidenced by the Secured Note and secured hereby. As used in this Article and
elsewhere in this Deed, the term "indebtedness" shall mean and include the Note
Principal Amount, together with all interest thereon (including Default
Interest, Secured Note Additional Interest, if any, and Deferred Interest
payable with respect to the Secured Note), and Secured Note Yield Maintenance
Amount, if any, secured by this Deed, all costs of collection provided for
herein, and all other sums and charges at any time secured by or otherwise due
under this Deed or the Secured Note.
2. IMPOSITIONS.
2.1 The Grantors will pay or cause to be paid as and when due and
payable, and before they become delinquent, all Impositions. Notwithstanding
the foregoing, if by law any Imposition may at the option of the taxpayer be
paid in installments (whether or not interest shall accrue on the unpaid balance
thereof), the Grantors may, provided that no Event of Default and no event
which, with notice or passage of time or both, could constitute an Event of
Default, shall then exist under this Deed, and provided that payment in
installments would not create or cause to be created any lien on the Mortgaged
Premises (other than with respect to liens with respect to Impositions not yet
due and payable), cause to be paid or to pay the same (and any accrued interest
on the unpaid balance of such Imposition) in installments as they fall due and
before any fine, penalty, further interest or cost may be added thereto.
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2.2 The Grantors will pay or cause to be paid any taxes
(including, without limitation, stamp taxes and note intangible taxes), with
interest and fines and penalties, if any, except income taxes assessed by the
United States government or the State or any political subdivision of either, or
franchise or similar taxes based upon or measured by income, that may be levied,
imposed or assessed on the Grantee under or upon or by reason of this Deed, the
Secured Note or the receipt of the interest payable thereunder, or the other
Real Estate Security Documents.
2.3 In the event a tax or other governmental charge (other than
income, franchise or other taxes based upon net income and other than recording
or filing charges) is imposed directly or indirectly on this Deed, the Secured
Note or the indebtedness secured hereby, or any modification, amendment,
extension and/or consolidation hereof or upon the interest of the Ground Lessor,
the Owner or the Grantee in the Mortgaged Premises, in lieu of or in addition to
a tax on the Mortgaged Premises and/or the Improvements, whether by reason of
(a) the passage after the date of this Deed of any law of the State of Georgia
deducting from the value of real property for the purposes of taxation of any
lien thereon, (b) any change in the laws for the taxation of deeds to secure
debt or debts secured by deeds for state or local purposes or the manner of the
collection of any such taxes, or (c) a change in the means of collection of any
such tax or otherwise, the Grantors shall, within fifteen (15) days after notice
by the Grantee, pay such taxes and deliver to the Grantee satisfactory evidence
of payment thereof. If the Grantors shall pay such taxes pursuant to the terms
hereof, then in such event, the Grantors, at their option, shall have the right
to elect to prepay in full the Secured Note and all other amounts due under this
Deed and the Secured Note (exclusive of Secured Note Yield Maintenance Amount)
and cause the Issuer to redeem the Notes in full (exclusive of Yield Maintenance
Amount) in accordance with the provisions of the Indenture and the Notes and the
procedures set forth in Article Eleven of the Indenture. If such payment of the
tax or other governmental charge by the Grantors shall be unenforceable, then
the Grantee, at its option, within sixty (60) days after giving notice to the
Holders of such unenforceability, may declare the Note Principal Amount (or, if
prior to the Deferred Interest Commencement Date, the Original Note Principal
Amount and the Secured Note Accreted Amount) and all other indebtedness to be
immediately due and payable (exclusive of Secured Note Yield Maintenance
Amount), and the Grantors shall cause the Notes immediately to be redeemed in
full by the Issuer in accordance with the provisions of the Indenture, the Notes
and the procedures set forth in Article Eleven of the Indenture.
2.4 The certificate, advice or xxxx of the appropriate official
designated by law to make or issue the same
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or to receive payment of any Imposition, which such certificate, advice or xxxx
indicates the nonpayment of such Imposition, shall be prima facie evidence that
such Imposition is due and unpaid at the time of the making or issuance of such
certificate, advice or xxxx.
2.5 The Grantors shall have the right, after giving notice to the
Grantee, to contest the amount or validity, in whole or in part, of any
Imposition, or to seek a reduction in the valuation of the Land, Improvements or
the Equipment as assessed for real estate or personal property tax purposes by
appropriate proceedings diligently conducted in good faith, but only after
payment of such Imposition, unless such payment would operate as a bar to such
contest or interfere materially with the prosecution thereof, in which event the
Grantors may postpone or defer payment of such Imposition, and upon request by
the Grantors, the Grantee shall postpone or defer payment of such Imposition if:
2.5.1 Neither the Mortgaged Premises nor any part thereof
would by reason of such postponement or deferment be in imminent danger of being
forfeited or lost; and
2.5.2 The Grantors shall either have deposited with the
Grantee the amount so contested and unpaid, (net of any portion thereof paid to
or deposited with the applicable taxing authority) together with all interest
and penalties in connection therewith and all charges that may or might be
assessed against or become a charge on the Mortgaged Premises, or any part
thereof, in such proceedings or in lieu thereof, or shall have posted with the
Grantee a bond by an independent, reputable surety company in such amount,
whereby such surety undertakes to pay such Imposition, interest, penalties and
charges in the event that the Grantors shall fail to pay the same upon the final
disposition of the contest (including appeals), or in the event that the
Mortgaged Premises or any part thereof is in imminent danger of being forfeited
or lost during the pendency of such contest or if the Grantors fail to increase
the amount of such bond or deliver an Officers' Certificate as hereinafter
provided. In determining the amount of such deposit or bond, the Grantors shall
be credited with any amounts theretofore deposited with the Grantee in respect
of the Imposition being contested. Any deposit made by the Grantors under the
provisions of this subsection 2.5.2, together with any additions thereto made
pursuant to this subsection 2.5.2, and all interest, if any, earned thereon,
shall be held and disposed of as hereinafter provided. Upon the termination of
any such proceeding (including appeals), or if the Grantors should so elect, at
any time prior thereto, the Grantors shall pay the amount of such Imposition or
part thereof as finally determined in such proceeding (or appeal), the payment
of which may have been deferred during the prosecution of such proceeding (or
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appeal), together with any costs, fees, interest, penalties or other liabilities
in connection therewith, and upon such payment, the Grantee shall return any
amount deposited with it (and not previously applied by it as hereinafter
provided) and interest thereon, if any, with respect to such Imposition. Such
payment, at the request of the Grantors, shall be made by the Grantee out of the
amount deposited with it with respect to such Imposition, to the extent that
such amount is sufficient therefor, and any balance due shall be paid by the
Grantors and any balance remaining shall be paid by the Grantee to the Grantors
with interest, if any, earned thereon. During the pendency of such contest
provided for herein, the Grantors shall increase the amount deposited with the
Grantee or the amount of the bond, as the case may be, at least thirty (30) days
in advance of any increase in the amount so contested and unpaid (or as soon
thereafter as the Grantors obtain knowledge of such increase), or in the amount
of interest, penalties or any other charges that may or might be assessed
against or become a charge on the Mortgaged Premises, or any part thereof, and
shall simultaneously deliver to the Grantee an Officers' Certificate certifying
as to the sufficiency of such increased deposit or bond, and, upon failure of
the Grantors to either increase the deposit or bond as aforesaid, or to deliver
an Officer's Certificate with respect thereto, the Grantee may require the
amount theretofore deposited with it to be applied (or the Grantee may require
application of the bonded amount by the surety company, if a bond has been
furnished) to or on account of the payment, removal or discharge of any such
Imposition and the interest and penalties in connection therewith and any costs,
fees or other liability accruing in any such proceeding, or any part of any of
the same, regardless of the effect thereof on the Grantors' contest, and the
balance, if any, shall be returned to the Grantors. If, at any time during the
continuance of such proceeding, the Mortgaged Premises or any part thereof, is,
in the reasonable judgment of the Grantee, in any substantial danger of being
forfeited or lost, the Grantee may require that the amount theretofore deposited
with it be applied to the payment of such Imposition (or the Grantee may require
application of the bonded amount by the surety company, if a bond has been
furnished) in the manner provided in the preceding sentence. Notwithstanding
anything contained herein to the contrary, no such deposit held by the Grantee,
or any part thereof, shall be returned to the Grantors so long as any Event of
Default or any event which, with notice or passage of time or both, could
constitute an Event of Default shall exist hereunder. Any monies held by the
Grantee under this subsection 2.5.2 shall, at the direction of the Owner, be
invested in Approved Cash Equivalents.
3. MAINTENANCE AND REPAIRS; WASTE
3.1 The Grantors will not commit or permit waste on the Mortgaged
Premises and will keep and maintain at its
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own expense, or cause to be maintained, the Improvements and the Furnishings and
Furniture in a first-class condition and state of repair, and in a condition
consistent with the premier class convention hotels in the Marriott hotel
system. The Grantors will promptly make all necessary repairs, renewals,
replacements, additions and improvements to the Improvements, Furnishings and
Furniture, interior and exterior, structural and non-structural, foreseen and
unforeseen, or otherwise necessary to insure that the same as part of the
security under this Deed shall not in any way be diminished or impaired, subject
to reasonable wear and tear. The Grantors will neither do nor permit to be done
anything to the Mortgaged Premises that may materially impair the value thereof
or which may violate any covenant, condition or restriction affecting the same,
or any part thereof, or any change therein or in the condition thereof which
will increase the danger of fire or other hazard arising out of the operation
thereof. All Service Agreements affecting the Premises (i) shall be bona fide
agreements, and (ii) shall be on commercially reasonable terms and conditions in
light of then market conditions and (iii) if between the Owner and Affiliates
thereof or Affiliates of a partner of Owner, same shall comply with the
provisions of the partnership agreement of the Owner with respect to dealings
with Affiliates. The Grantors shall deliver to the Grantee copies of each
Service Agreement with an Affiliate of the Owner or a partner of the Owner
executed after the date hereof which requires annual payments to the service
provider in excess of Two Hundred Thousand Dollars ($200,000.00). The Grantee,
its authorized employees and/or its agents may enter and inspect the Mortgaged
Premises at any time during usual business hours and upon reasonable prior
notice to the Owner (except in the event of an emergency, in which event such
entry may be without notice and during non-business hours), to inspect the
Mortgaged Premises or to determine whether it is necessary to make such repairs,
replacements, renewals or additions, or to perform such items of maintenance, to
the Mortgaged Premises.
3.2 The Mortgaged Premises shall be operated solely as a premier
class convention hotel and related operations and as the "Atlanta Marriott
Marquis Hotel," subject to the provisions of the Management Agreement
Assignment. The Grantors shall cause the Mortgaged Premises to be operated under
standards comparable to those presently prevailing in the premier class
convention hotels in the Marriott hotel system.
3.3 In the event that any portion of the Improvements or
Equipment shall be damaged or destroyed by fire or any other casualty, the
Grantors shall repair, replace, rebuild or alter the same without regard to the
adequacy of any insurance proceeds provided for in this Deed, all as provided in
Section 5.11 hereof. In the event of a taking of any portion of the Mortgaged
Premises as a result of any exercise of the right of condemnation or the power
of eminent domain or by agreement of
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the interested parties in lieu of such condemnation (hereinafter called a
"Taking" or having been "Taken"), the Grantors shall promptly restore, replace,
rebuild or alter any Improvements affected, and repair or replace any Equipment
taken so as to restore the Mortgaged Premises as nearly as practicably possible
to its condition and value immediately preceding such Taking, without regard to
the adequacy of condemnation proceeds, if any, made available to the Grantors
pursuant to Section 9.3 hereof.
4. COMPLIANCE WITH LAWS; USE OF PREMISES; ETC.
4.1 The Grantors, at their own expense, will promptly cure all
violations of law, other than such violations which have an immaterial effect on
the value of the Mortgaged Premises, and will comply with, or cause to be
complied with, all present and future Legal Requirements, other than such
violations which would have an immaterial effect on the value of the Mortgaged
Premises.
4.2 The Grantors will use and permit the use of the Mortgaged
Premises only in strict accordance with any applicable licenses and permits
issued by Governmental Authorities, other than such deviations which have an
immaterial effect on the value and operation of the Mortgaged Premises and the
security of the Deed.
4.3 The Grantors will procure, pay for and maintain all permits,
licenses and other authorizations required pursuant to any Legal Requirement to
be procured and/or maintained by the owners and/or operators of the Mortgaged
Premises for use of the Mortgaged Premises, or any part thereof, and for the
lawful and proper operation and maintenance thereof.
4.4 Notwithstanding the foregoing, the Grantors shall have the
right, after prior notice to the Grantee, to contest by appropriate legal
proceedings, diligently conducted in good faith, the validity or application of
any Legal Requirement if and so long as the Grantors shall promptly furnish to
the Grantee an Officers' Certificate to such effect showing the steps taken to
comply with such provisions, provided in each case that:
4.4.1 If by the terms of any such Legal Requirement,
compliance therewith pending the prosecution of any such contest may legally be
delayed without the incurrence of any lien, charge or liability of any kind
against the Mortgaged Premises, or any part thereof, and without subjecting the
Grantors or the Grantee to any liability, civil or criminal, for failure so to
comply therewith, the Grantors may delay compliance therewith until the final
determination of any such proceeding.
4.4.2 If any lien, charge or civil liability would be
incurred by reason of any such contest or
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deferral with compliance, the Grantors nevertheless may contest as aforesaid and
delay as aforesaid, provided that such delay would not subject the Grantee to
criminal liability and the Grantors (a) furnish to the Grantee security
reasonably satisfactory to the Grantee against loss or injury by reason of such
contest, delay or deferral and (b) prosecutes the contest with due diligence.
4.4.3 Notwithstanding the foregoing, if any delay in
compliance with any Legal Requirement shall, in the reasonable judgment of the
Grantee, place all or any part of the Mortgaged Premises in substantial danger
of being forfeited or lost, the Grantors shall, upon notice from the Grantee,
immediately comply with such Legal Requirement.
4.5 The Grantors will not, without the prior written consent of
the Administrative Services Representative (a) initiate, support or obtain any
zoning reclassification of the Premises, seek any variance under existing zoning
ordinances applicable to the Premises (b) use or permit the use of the Premises
in a manner which would result in any use becoming a non-conforming use under
applicable zoning ordinances, (c) modify, amend or supplement any of the
Permitted Exceptions, (d) impose or consent to any restrictive covenants or
encumbrances upon the Premises, execute or file any subdivision plat affecting
the Premises or the Improvements to any municipality, or (e) permit or suffer
the Premises to be used by the public or any person in such manner as might make
possible a claim of adverse usage or possession or of any implied dedication or
easement. Consent of the Administrative Services Representative to any of the
foregoing matters described in clauses (a) through (e) above shall not be
unreasonably withheld or delayed, provided that, together with the Grantors'
request for such consent, the Grantors deliver to the Administrative Services
Representative and the Grantee Certificates of No Material Impairment with
respect to such matter.
4.6 The Grantors shall not operate or permit the Premises or any
part thereof to be operated as a cooperative, condominium or similar form of
ownership.
4.7 The Grantors will not engage, directly or indirectly, in any
business or activity other than (a) the acquisition, construction, ownership,
alteration, management, leasing, operation and financing of the Mortgaged
Premises, any activities which the Grantors, in good faith, believe are
incidental to the operation of the Mortgaged Premises as a premier class
convention hotel and any activities reasonably necessary for the performance of
their obligations hereunder or the other Financing Documents, or the obligations
of the Issuer under the Indenture (to the extent required to enable the Issuer
to comply with its obligations thereunder), or necessary to
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perform their obligation. under any other instruments evidencing or securing any
Subordinate Deeds or other financings or credit arrangements permitted under the
Financing Documents, and (b) as to Owner only, the ownership and operation of
the Issuer and any other subsidiary created for the sole purpose of obtaining
financing for the Mortgaged Premises.
4.8 GP-AMMLP will not engage, directly or indirectly, in any
business or activity other than those reasonably necessary to perform its
obligations as the sole general partner of AMMLP.
4.9 The Grantors and GP-AMMLP will do or cause to be done all
things necessary to preserve and keep in full force and effect their existence,
rights and franchises. In no event shall the Grantors be deemed in default
pursuant to this Section 4.9 by reason of any dissolution of the Ground Lessor
or the Owner resulting from the withdrawal of a partner of the Ground Lessor or
the owner or a transfer of a partnership interest in the Ground Lessor or the
Owner or the death, dissolution, liquidation, termination, bankruptcy or
insolvency of a partner of the Ground Lessor or the Owner provided that the
Ground Lessor or the Owner, as the case may be, is reconstituted within a
reasonable period of time after such dissolution; provided, however, that
nothing herein shall be deemed to permit a transfer otherwise prohibited under
Article 7 hereof.
4.10 None of the assets of Ivy Street Hotel Limited Partnership
shall constitute plan assets for purposes of the Employee Retirement Income
Security Act of 1974, as amended.
4.11 All of the terms and provisions of the Environmental
Indemnity are deemed repeated herein as if same were separately fully set forth
in this Deed and the obligations of the Grantors under such provisions (as
incorporated herein) shall be secured by this Deed and shall survive any
termination or satisfaction of this Deed. The provisions of the Environmental
Indemnity shall be enforceable separately or in conjunction with this Deed, at
the Grantee's election.
5. INSURANCE, ETC.
5.1 The Grantors shall keep the Premises, the Improvements and
Equipment insured for the benefit of the Grantee, an loss payee, as follows:
5.1.1 Against damage or loss by fire and such other hazards
(including water, sprinkler leakage, collapse, lightning, windstorm, hurricane,
hail, explosion, riot, riot attending a strike, civil commotion, vandalism,
malicious mischief, aircraft, vehicle and smoke) under an "All Risk" form on an
"Agreed Amount" basis, in an amount not leas than the full
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replacement coat (as defined in Section 5.8) of the property insured, adding the
Grantee as loss payee thereunder.
5.1.2 Rent/business interruption or use and occupancy
insurance utilizing an "All Risk" coverage in an amount necessary to provide for
not less than one (1) year's loss of profit plus continuing overhead (including
all Debt Service) for interruptions caused by any occurrence covered by the
insurance referred to in subsection 5.1.1 with an extended period of indemnity
for 180 days.
5.1.3 Against damage or loss by flood if the Premises are
located in an area identified by the Secretary of Housing and Urban Development
or any successor as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of 1968
or the Flood Disaster Protection Act of 1973, as amended, modified, supplemented
or replaced from time to time.
5.1.4 Boiler and machinery insurance in the amount of full
replacement cost, which insurance shall be written on a comprehensive form and,
if not provided under the same policy affording the property insurance required
by Subsection 5.1.1., appropriately coordinated under a "joint loss agreement"
(or the equivalent) with the coverage hereinabove described, and shall cover all
steam, mechanical and electrical equipment, including, without limitation, any
boilers, pressure vessels, pressure piping, components of central heating,
ventilation or air conditioning systems, or similar apparatus, installed in the
Premises.
5.1.5 During the period of any construction, repair,
restoration or replacement of any portion of the Improvements, a standard
builder's xxxx policy with extended coverage for an amount at least equal to the
full replacement cost of such Improvements and worker's compensation, in
statutory amounts.
5.1.6 Fidelity Bond coverage in an amount no less than
S3,000,000 (which coverage may be part of a Marriott blanket policy).
5.2 The Grantors shall also procure and maintain commercial or
comprehensive general liability insurance covering the Grantors and the Grantee
against claims for bodily injury, personal injury or death or property damage
occurring in, upon or about or resulting from the Premises, or any street,
drive, sidewalk, curb or passageway adjacent thereto, in standard form and with
such insurance company or companies and in the amount no less than equal to the
lesser of (a) $100,000,000, or (b) the greatest amount commercially available at
commercially reasonable rates and terms, which insurance shall include liquor
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liability, employer's automobile non-ownership liability, safe deposit box lega1
liability and innkeepers' legal liability, garage keepers liability (to the
extent necessary to protect guests' valet parked vehicles), workers'
compensation (in statutory amounts, which coverage, however, may be
self-insured), employers' liability, garage liability and blanket broad form
contractual liability coverage, which insures contractual liability under the
indemnification set forth in Article 17 of this Deed (but such coverage or the
amount thereof shall in no way limit such indemnification). Grantee acknowledges
that safe deposit box legal liability and innkeepers' legal liability may be
limited in amount by Legal Requirements. Grantee shall be named as an additional
insured under all liability policies.
5.3 The Grantors, at the Grantee's request, shall procure and
maintain such other insurance, through endorsements or otherwise, or such
additional amounts of insurance, covering the Grantors or the Premises, as the
Grantee shall from time to time reasonably require, including, without
limitation, insurance coverage commonly required by mortgagees of premier class
convention hotels in Atlanta.
5.4 All insurance required under this Article shall be fully paid
for and nonassessable. The property insurance shall be issued by such insurance
companies doing business in the jurisdiction in which the Premises are located
having a then current rating in the latest edition of Best's Insurance Reports
of not less than "A" (Policyholders' Rating) and not less than "IX" (Financial
Size Category). The primary liability insurance shall be issued by such
insurance companies doing business in the jurisdiction in which the Premises are
located having a then current rating in the latest edition of Best's Insurance
Reports of not less than "A", "IX", if such rating is available on commercially
reasonable terms, but in no event less than "A", "VIII"; provided, however, the
primary liability insurance may be issued by an insurance company having a
Best's rating of "A", "VIII" only if the Grantors shall have delivered to the
Grantee an Officers' Certificate certifying that a rating of "A", "IX" or higher
is not then available on commercially reasonable terms. The Grantee consents to
the Grantors' present carrier of primary insurance coverage, provided its Best's
rating remains not less than "A", "VIII". Notwithstanding the foregoing, all
excess liability insurance may be issued by insurance carriers rated not less
than "B+", "VIII" or if not rated, either (i) which have a surplus in excess of
$500,000,000 or (ii) which the Grantors, in their reasonable judgment, conclude
would have equivalent ratings of "B+", "VIII" or higher if such insurance
carrier were evaluated by Best's Insurance Reports and deliver to the Grantee an
Officers' Certificate as to such conclusion. Supplementing the foregoing, all
insurance required under this Article 5 (except for such excess liability
insurance issued by unrated carriers permitted
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under this Section 5.4) shall be issued by such insurance companies having
Best's ratings not less than those of insurance carriers for comparable
insurance covered by the Marriott blanket policy for premier class convention
hotels in the Marriott hotel system. All insurance required under this Article 5
shall have deductible limits charged to either or both of the Grantors in an
amount no greater than those limits applicable to other premier class convention
hotels in the Marriott hotel system, but in no event greater than $250,000.
5.5 The Grantors shall also deliver to the Grantee original
certificates of insurance and renewals thereof at least five (5) days prior to
renewal evidencing the insurance required under this Section and any additional
insurance on the Premises.
5.6 The Grantors shall not carry separate or additional insurance
concurrent in form or contributing in the event of loss with that required under
this Section unless endorsed in favor of the Grantee in accordance with the
requirements of this Article and otherwise approved by the Grantee in all
respects.
5.7 In the event of the sale, under the power of sale created
herein, of the Mortgaged Premises or the foreclosure of this Deed or other
transfer of title or assignment of the Mortgaged Premises in extinguishment, in
whole or in part, of the Obligations, all right, title and interest of the
Grantors in and to all policies of insurance required under this Article (other
than blanket policies) or otherwise then in force with respect thereto and all
proceeds payable thereunder and unearned premiums thereon shall immediately vest
in the purchaser or other transferee of the Mortgaged Premises. The Grantors
agree, immediately upon demand, to execute and deliver such assignments or other
authorizations or instruments as may be necessary or desirable to effectuate the
foregoing.
5.8 For purposes of this Section, the term "full replacement cost"
shall mean the actual cost of replacing the property in question, without
allowance for depreciation and exclusive of the cost of excavations, foundations
and footings, as determined for the Improvements and the Furnishings and
Furniture from time to time.
5.9 Within thirty (30) days after the commencement of each Fiscal
Year, the Owner, Management Company and AMMLP shall provide Grantee with
Officers' Certificates stating that the insurance coverage for the Premises
complies with the requirements of this Deed, such statements in said Officers'
Certificates to be confirmed in writing by a senior insurance consultant used by
Marriott with a minimum of five (5)
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years' experience with respect to insurance coverage for hotels or a senior
member of Marriott's risk management department.
5.10 All such insurance policies shall (a) provide as follows: (i)
all losses except those not exceeding $2,500,000.00 per occurrence payable
thereunder with respect to the Improvements and Furnishings and Furniture shall
be payable directly to the Grantee (rather than to any of the other insureds and
the Grantee jointly) pursuant to a standard mortgagee clause or standard
lender's loss payable clause naming the Grantee, without contribution as the
loss payable party, such provision to be in form and substance reasonably
satisfactory to the Grantee and such proceeds of loss to be held and applied by
the Grantee, as provided in Section 5.11; and (ii) all losses thereunder shall
be adjusted by the Grantors, provided that in no event shall the Grantors
approve or consent to any final adjustment in any amount exceeding $2,500,000.00
per occurrence without obtaining the prior approval of the Administrative
Service Representative to the amount of such adjustment, which approval shall
not be unreasonably withheld or delayed; (b) provide that the insurer agrees to
give not less than thirty (30) days' prior written notice to the Grantee of a
proposed policy cancellation or of a material change in the policy provisions;
(c) provide that no act, omission or negligence of the Grantors which might
otherwise result in a forfeiture of such insurance or any part thereof, shall in
any way affect the validity or enforceability of such insurance insofar as the
Grantee is concerned. If, notwithstanding the provisions of Section 5.10(a)(i),
any such insurance proceeds are made payable to the Grantors, rather than the
Grantee, as is required, Grantors hereby appoint Grantee as their
attorney-in-fact, irrevocably, to endorse or transfer any such payment to the
name of Grantee. The policy or policies of insurance of the character required
hereunder may consist of blanket policies insuring the Mortgaged Premises and
other property of the Grantors or Marriott or Marriott Affiliates; provided that
such policy or policies shall set forth the amount of insurance in force
thereunder applicable to the Mortgaged Premises, Improvements and Furnishings
and Furniture and shall otherwise comply with the provisions of this Article 5
and shall afford the same protections to the Grantee as would be provided by
property policies individually applicable to the Mortgaged Premises (except with
respect to any flood hazard insurance required by Section 5.1.3 herein).
5.11 In the event that any of the Improvements or Furnishings
and Furniture shall be damaged or destroyed, in whole or in part, by fire or
other casualty, or all or any portion of the Premises are Taken, the Grantors
shall give prompt notice thereof to the Grantee (except with respect to any
damage, the cost of which to repair is less than $100,000), and shall promptly
restore, replace or rebuild the damaged or destroyed Improvements and
Furnishings and Furniture, or restore, replace,
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repalr or rebuild the portion of the Mortgaged Premises not so taken, in either
case as nearly as possible to the value, condition, character (as a premier
class convention hotel) and size such Improvements and/or Furnishings and
Furniture were in prior to such damage or destruction or Taking, without regard
to the adequacy of insurance proceeds or the Award. All such restoration shall
be performed diligently, in a good and workmanlike manner, in compliance with
all Legal Requirements and consistent with a premier class convention hotel in
the Marriott hotel system. If the damage, destruction or Taking requires either
restoration work costing in excess of $2,500,000 or structural work, the plans
and specifications therefor shall be delivered to the Grantee, together with an
Architect's certificate (except for non-structural work for which no Architect
is used) with respect to item (i) below and an Officers' Certificate as to items
(i), (ii) and (iii) below certifying that (i) the plans and specifications
comply substantially with all applicable Legal Requirements, (ii) the
restoration work indicated by the plans and specifications comply with all other
requirements in this Deed governing alterations and (iii) the restoration work
indicated by the plans and specifications restores the Improvements and/or
furnishings as nearly as possible to the value, condition, character (as a
premier class convention hotel) and size as same were in prior to such damage or
destruction or Taking. If by reason of any such damage or destruction any sums
are paid under any insurance policy hereinabove mentioned or contemplated, or if
by reason of any Taking any Award is paid, such sums shall be paid as follows
(except that the proceeds of any loss of business interruption coverage shall be
paid as provided in Section 5.13 below):
5.11.1 If the aggregate insurance proceeds or Award (net of
all collection costs, including attorney's fees and consultants' fees) received
by reason of any single instance of such damage or destruction or Taking, as the
case may be, shall be $2,500,000.00 or less, such net insurance proceeds or
Award, as the case may be, shall be directly paid over to the Owner by the
insurer, who shall hold the same as a trust fund to be used first for the
payment of the entire cost of restoring, repairing, rebuilding or replacing the
damaged or destroyed Improvements and Furnishings and Furniture, or the
Improvements not so Taken and Furnishings and Furniture located therein, as the
case may be, and the balance, if any, shall be delivered to the Depositary who
shall hold such balance for application to the next installment of interest on
the Secured Note and thereafter shall deliver any remaining balance to the
Grantors; provided, however, that if any Event of Default shall exist hereunder
at the time such proceeds or Award are to be paid over to the Owner and if the
entire Principal Balance of the Secured Note has been declared due and payable,
such proceeds shall at the option of the Grantee be paid to the Grantee to be
applied as provided in Section 506 of the Indenture, unless any
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such declaration and the consequencoe thereof are rescinded and annulled in
accordance with the provisions of Section 502 of the Indenture or waived
pursuant to Section 513 of the Indenture.
5.11.2 If the aggregate insurance proceeds or Award (net of
all collection costs, including attorneys' fees and consultants' fees)
received by reason of any single instance of such damage or destruction or
Taking shall be more than $2,500,000.00, or shall be $2,500,000.00 or less, but
such proceeds or Award are required to be paid to Grantee pursuant to the
provisions of Section 5.11.1 hereof, all such net proceeds or Award are required
to be paid to the Depositary, and each such insurance company or Governmental
Authority concerned is hereby authorized and directed to make payment of such
loss or of such Award directly to the Grantee instead of the Grantors. If the
Grantee, by reason of such insurance or Award, receives any money for loss or
damage or Taking, as the case may be, such amount shall be applied to the
repair, replacement, restoration or rebuilding of the damaged or destroyed
Improvements or Furnishings and Furniture, or such Improvements not so Taken and
Furnishings and Furniture located therein, subject to the provisions of Section
5.12 and Section 9.3 herein. Should such insurance proceeds or Award be applied
to the repair, replacement, restoration or rebuilding of the damaged
Improvements or Furnishings and Furniture or such Improvements not so Taken and
Furnishings and Furniture located therein (the "Work"), such proceeds or Award
shall be paid out by the Depositary from time to time to the Owner (or, at the
option of Grantee, jointly to the Owner and the persons furnishing labor and/or
material incident to such Work or directly to such persons) as the Work
progresses subject to the following conditions: (a) an Architect shall be
retained by the Owner (except an Architect shall not be required for
non-structural Work for which it is commercially reasonable to perform without
an architect), at the Owner's expense, and charged with the preparation of the
plans and specifications for the Work and periodic inspection thereof and the
Owner shall have prepared and submitted to the Grantee the plans and
specifications for such Work in accordance with Section 5.11; (b) each request
for payment by the Owner shall be made on ten (10) days' prior written notice to
Grantee and shall be accompanied by Officers' Certificates of Owner and
Management Company and, except for non-structural Work for which it is
commercially reasonable to perform without an architect, a certificate (with
respect to item (i) below only) to be made by the Architect charged with the
preparation of the plans and specifications for the Work and periodic inspection
thereof, dated no more than ten (10) days prior to such request, stating, among
such other matters as may be reasonably required by Grantee, that: (i) all of
the Work completed has been done in substantial compliance with the approved
plans and specifications; (ii) the sum requested is justly required to reimburse
the Owner for payments by the Owner to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers,
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architects or other persons rendering services or materials for the Work, giving
a brief description of such services and materials and the several amounts so
paid or due to such persons, and stating that no part of such expenditures has
been or is being made the basis, in any previous disbursement or then pending
request, for the withdrawal of insurance proceeds or the Award; (iii) that the
full deductible amount contained in the insurance policy or policies under which
insurance proceeds have been disbursed has been theretofore applied by the Owner
to the cost of the Work; (iv) when added to all sums previously paid out by the
Owner, the sum requested does not exceed the value of the Work done to the date
of such certificate; and (v) the amount of insurance proceeds or Award remaining
in the hands of Grantee will be sufficient on completion of the Work to pay for
the same in full (giving in such reasonable detail as the Grantee may require an
estimate of the cost of such completion); (c) each request shall be accompanied
by waivers of lien satisfactory in form and substance to Grantee covering that
part of the Work for which payment is requested, together with a certificate by
a title company or licensed abstractor or by other evidence satisfactory to
Grantee that there has not been filed with respect to the Mortgaged Premises any
mechanic's lien or other lien, affidavit or instrument asserting any lien or any
lien rights with respect to the Mortgaged Premises; (d) there has not occurred
and is continuing any Event of Default; and (e) in the case of the request for
the final disbursement, such request is accompanied by a copy of any Certificate
of Occupancy or other certificate required by any Legal Requirement to render
occupancy of the Mortgaged Premises lawful. If, upon completion of the Work, any
portion of the insurance proceeds or Award has not been disbursed to the Owner
(or one or more of the other aforesaid persons), the Grantee shall retain such
balance for application to the next installment of interest on the Secured Note
and thereafter shall deliver any remaining balance to the Grantors; provided,
however and if the entire unpaid principal amount of the Secured Note has been
declared due and payable, such balance shall, at the option of the Grantee, be
paid to the Grantee to be applied as provided in Section 506 of the Indenture,
unless such declaration and the consequences thereof are rescinded and annulled
in accordance with the provisions of Section 502 of the Indenture or waived
pursuant to Section 513 of the Indenture. Nothing herein shall be interpreted to
prohibit the Depositary from (A) withholding from each such disbursement ten
percent (10%) of the amount otherwise herein provided to be disbursed, and from
continuing to withhold such sum, until the earlier of (i) the expiration of the
time permitted for perfecting liens against the Mortgaged Premises has expired
and (ii) the Grantor's delivery of all lien waivers necessary to preclude the
filing of any liens against the Mortgaged Premises in connection with such Work,
at which time the amount withheld shall be disbursed to the Owner (or to the
Owner and any person or persons furnishing labor and/or material for the Work or
directly to such persons), or (B)
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applying at any time the whole or any part of such insurance proceeds or Award
to the curing of any Event of Default. If at any time the Grantee shall
determine that the insurance proceeds or the Award which are to be applied to
the Work under this Section 5.11 and which are to be paid to or for the account
of the Owner in accordance with the terms of this Deed will be insufficient to
pay the entire cost of the Work, the Owner shall pay the deficiency to Grantee
within ten (10) days after request therefor, prior to receiving any part of such
insurance proceeds or Award, such monies to be invested by the Grantee in
accordance with Section 5.15 and disbursed from time to time for the Work in
accordance with this Section 5.11. This Section shall not be deemed for the
benefit of any third person or party, including those furnishing labor, supplies
or materials for the Work, and nothing herein shall be deemed to create any
right of such persons in and to such insurance proceeds or Award.
5.12 In the event of a Total Loss (as such term is defined
hereinbelow), the Grantee may, by written notice given within forty-five (45)
days after the determination that a Total Loss has occurred, declare the Note
Principal Amount (or, if prior to the Deferred Interest Commencement Date, the
Original Note Principal Amount and Secured Note Accreted Amount) and all other
indebtedness to be immediately due and payable (exclusive of Secured Note Yield
Maintenance Amount) and all net proceeds of insurance or Awards shall be applied
to such indebtedness and the Grantors shall cause the Issuer to redeem the Notes
in full (exclusive of Yield Maintenance Amount) in accordance with the
provisions of the Indenture, the Notes and the procedures set forth in Article
Eleven of the Indenture. The balance, if any, of such insurance proceeds or
Award not required to be applied in accordance with the foregoing sentence shall
be paid over to the Grantors. A Taking or casualty with regard to which the
Award or the net insurance proceeds exceeds $2,500,000 shall be deemed to be a
"Total Loss" for the purposes of this Section 5.12 and Section 9.3 hereof if,
within sixty (60) days from the Taking or the casualty, the Grantors and the
Management Company shall not deliver to the Grantee Officers' Certificates
(together with the Architect's and/or Insurance Adjuster's and/or Appraisers'
estimates as set forth below) certifying that either:
(a) the cost of the repair or restoration of the Improvements
and the Furnishings and Furniture required hereunder, as estimated by
an Architect and/or an Insurance Adjuster, at the Grantors' sole cost
and expense, is an amount equal or less than $20,000,000; or
(b) the cost of repair or restoration of the Improvements and
the Furnishings and Furniture required hereunder, as estimated by an
Architect and/or an Insurance Adjuster, at the Grantors' sole cost and
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expense, is an amount greater than $20,000,000 and less than or equal
to $65,000,000, but that the fair market value of the Premises after
such repair or restoration, as estimated by an Appraiser, at the
Grantors' sole cost and expense, shall be greater than or equal to
$222,000,000.
Notwithstanding the foregoing, the sixty (60) day period in which the Grantors
and the Management Company are obligated to submit Officers' Certificates in
accordance with this Section 5.12 may be extended for such additional period,
not to exceed sixty (60) days, necessary for the Grantors and the Management
Company, acting diligently, to obtain such Officers' Certificates if, at least
fifteen (15) days prior to the expiration of the initial sixty (60) day period
(but no earlier than thirty (30) days prior to the expiration of such period),
the Grantors and the Management Company submit Officers' Certificates certifying
that (i) they have diligently sought to obtain the estimates required under this
Section 5.12 and have been unable to obtain such estimates within the initial
sixty (60) day period, (ii) they reasonably believe that such estimates can and
will be obtained within such additional sixty (60) day period and (iii) they
have not previously obtained any oral or written estimates from an Architect
and/or an Insurance Adjuster inconsistent with the certifications set forth in
(a) and (b) above.
5.13 All net proceeds of rent/business interruption insurance
payable as a result of the occurrence of any damage or destruction shall be paid
to the Depositary. The Depositary shall apply such proceeds to payment of
scheduled debt service under the Secured Note, Impositions, insurance premiums,
and the normal operating expenses of the Premises from and after the date of the
occurrence of such damage until the completion of the restoration or replacement
or until the exhaustion of such proceeds, whichever comes first. Upon completion
of such restoration or replacement, any remainder of such business interruption
insurance held by the Grantee shall be paid to the Owner; provided, however,
that if any Event of Default shall exist hereunder at the time such proceeds or
Award are to be paid over to the Owner and if the entire indebtedness under the
Secured Note has been declared due and payable, such proceeds shall at the
option of the Grantee be paid to the Grantee to be applied as provided in
Section 506 of the Indenture, unless any such declaration and the consequences
thereof are rescinded and annulled in accordance with the provisions of Section
502 of the Indenture or waived pursuant to Section 513 of the Indenture.
5.14 Nothing in Section 5.12 hereof contained shall relieve the
Grantors of their duty to repair, restore, rebuild or replace the Improvements
and the Furnishings and Furniture following damage or destruction by fire or
other casualty in the event that no or inadequate proceeds of insurance
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are available to defray the cost of such repairing, restoring, rebuilding or
replacement. In addition, nothing contained herein shall relieve the Owner of
its duty to make or cause to be made all payments required by the Secured Note
and this Deed subsequent to the occurrence of any fire or other casualty or
Taking.
5.15 All insurance proceeds or Awards deposited with Depositary
shall at the direction of the Owner be invested in Approved Cash Equivalents.
The certificates or other instruments evidencing all such obligations shall be
in the possession of the Depositary or, if in registered form, registered in
the name of the Depositary or a financial intermediary selected by and acting on
behalf of the Depositary, and, if issued in book-entry form, the name of the
Depositary should appear on the books of the Federal Reserve Bank or other
issuing party or agent therefore as the owner of such book-entry securities. The
Depositary shall not be liable for any loss resulting from the liquidation of
each and every such investment, except if same results from its gross negligence
or willful misconduct. Interest earned on such insurance proceeds or Award shall
be used and applied in the same manner as the proceeds and the Awards and paid
to the same parties who are entitled to receive the balance of the proceeds or
Award on which it was earned after the payment of all costs in connection with
the required restoration.
6. ALTERATIONS; DEMOLITION; ETC.
6.1 No part of the Improvements (exclusive of Furnishings and
Furniture) shall be altered, removed or demolished, nor shall any new or
additional building, structure or improvements or extension of or addition to an
existing building, structure or improvement, be constructed, if such alterations
are of a structural nature or would, in the reasonable judgment of the Owner,
exceed $2,500,000 in aggregate cost during any twenty-four (24) month period,
unless the Owner and the Management Company deliver to the Grantee the plans and
specifications for such alterations together with Officers' Certificates
certifying that such alterations do not reduce the value or utility of the
Improvements nor change the character thereof as a premier class convention
hotel and an Architect's certificate (except for non-structural work for which
no Architect is used) certifying that the plans and specifications substantially
comply with all applicable Legal Requirements. If, in the reasonable judgment of
the owner, such alterations would exceed $l0,000,000 in aggregate cost during
any twenty-four (24) month period, such alterations shall be permitted only if
the Officers' Certificates and Architect's certificate described in the
foregoing sentence are delivered to the Grantee, together with a certification
from an Appraiser or a Hotel Consultant confirming the matters set forth in the
Officers' Certificates. The Grantee may require that the Owner obtain a payment
and/or
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performance bond in form satisfactory to the Grantee from the contractor
performing the work (or other security comparable thereto reasonably
satisfactory to the Grantee). All work performed by the Owner in accordance with
this Article shall be in compliance with all applicable Legal Requirements. No
Eguipment with a value of more than $2,500,000 shall be removed from the
Premises during the course of any work performed in accordance with this Article
(except for such Equipment the Grantors are permitted to dispose of under this
Deed), unless the Grantors take such action and deliver such financing
statements as are necessary to retain the Grantee's security interest in such
Equipment. The provisions of this Article shall apply to any change, alteration
or addition made or required to be made by the Grantors in the course of
complying with the provisions of any other Article contained herein. If plans
and/or specifications shall be required by law to be filed with any Governmental
Authority prior to or at any time in connection with such alterations or
demolition or new construction (regardless of cost), duplicates of all sets of
such plans and/or specifications shall be furnished to the Grantee.
7. TRANSFERS; PLEDGES; FINANCING
7.1 No sale, conveyance, assignment, lease (except as permitted by
Article 10 herein), mortgaging, pledging, encumbering, creating a security
interest in or security deed on, or other transfer of, all or part of the
Mortgaged Premises or any of the rents, issues or profits generated thereby
shall be permitted without the prior written consent of the Grantee, except for
(a) sales of Equipment in the ordinary course of business of the Hotel, (b)
Permitted Equipment Leases, (c) sale by the Ground Lessor of the fee estate in
the Land to the Owner in accordance with Section 12.01 of the Ground Lease as
presently in effect, (d) sale of all of the Ground Lessor's interest and the
Owner's interest in the Mortgaged Premises to a Qualified Purchaser; provided
that (i) the Qualified Purchaser shall be a single purpose entity permitted only
to engage in the business and activities set forth in Section 4.7, (ii) upon any
sale to a Qualified Purchaser, the Grantors shall have satisfied the Tax
Condition (as defined in the Indenture), (iii) Marriott shall remain obligated
under the Guaranties and under its guaranty of the Management Company's
obligations under the Management Agreement, (iv) subject to the provisions of
the Management Agreement Assignment, Marriott Hotel, Inc. shall remain the
Management Company of the Hotel under the Management Agreement (v) the Hotel
name shall remain the "Atlanta Marriott Marquis", subject to such changes
permitted under the Management Agreement Assignment, and (vi) the transfer will
not constitute a "prohibited transaction" for purposes of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") nor will such
transfer cause any of the actions which the Qualified Purchaser would be
required to perform under any of the Financing Documents
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to be a "prohibited transaction" for purposes of ERISA, (e) encumbering all or a
portion of the Mortgaged Premises as permitted under and in accordance with
Section 7.6 herein in connection with certain Additional Financings and (f) a
Taking. A sale within the meaning of this Section 7.1 shall be deemed to include
an installment sales agreement wherein all or part of the Mortgaged Premises is
to be sold for a price to be paid in installments.
7.1.1 A "Qualified Purchaser", for purposes of this Section
7.1, shall mean (a) a limited partnership of which, at the time of the sale and
thereafter during the term of the Secured Note (i) (A) Marriott (or one or more
of Marriott's wholly owned subsidiaries) owns not less than a 51% equity
interest in and controls, directly or indirectly, the sole general partner in
such limited partnership or (B) if the general partner of the Qualified
Purchaser is a limited partnership, then Marriott (or one or more of Marriott's
wholly owned subsidiaries) owns not less than a 51% equity interest in and
controls, directly or indirectly, the sole general partner in the sole general
partner of the Qualified Purchaser, (ii) the limited partners have no greater
control or Veto Power than that of the limited partners of the Owner, (iii) the
limited partners shall be restricted from transferring or encumbering all or a
majority of all of their aggregate rights and interests in one transaction or a
series of related transactions and (iv) the Net Worth of which (excluding any
interest in the Mortgaged Premises) is at least $15 million; or (b) an entity
which at the time of the sale (i) has, together with its Affiliates permitted to
be consolidated under generally accepted accounting principles, a Net Worth
(inclusive of any interest in the Mortgaged Premises) of at least $75 million
and the entity owning the Mortgaged Premises has a Net Worth (exlusive of the
interest in the Mortgaged Premises) of at least $15 million, or (ii) has a Net
Worth (exclusive of any interest in the Mortgaged Premises) of at least $15
million and is or is owned and controlled by an experienced and recognized owner
and/or manager of major hotels in the United States with at least 750 Class A
hotel rooms in the United States under its ownership and/or management or (c) a
Subordinate Lender (or a subsidiary of such Subordinate Lender) which acquires
the Mortgaged Premises by exercise of a power of sale, foreclosure, deed in lieu
of foreclosure or other enforcement of a Subordinate Deed. The Grantors shall
deliver to the Grantee an Officers' Certificate and Required Net Worth
Certificate evidencing the satisfaction of the requirements of this Section
7.1.1 prior to any transfer to a Qualified Purchaser.
7.1.2 Each transferee of the Premises or a direct ownership
interest therein (such as an interest as tenant-in-common) shall, upon such
transfer, be deemed automatically to have assumed or joined in, as the case may
be, the obligations of the transferor accruing after such transfer under this
Deed, the other Real Estate Security Documents and the
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Environmental Indemnity, subject, in each case, to the limitations on recourse
set forth herein (with all references to "Grantors" or "Owner" in Section 26.7
being deemed to refer to such transferee) and in the Environmental Indemnity and
shall execute and deliver to the Grantee instruments (in recordable form) to
confirm such assumption.
7.2 Except as permitted in Section 7.3 below, without the prior
written consent of the Grantee, no sale, assignment, pledge, hypothecation,
encumbering or other transfer, directly or indirectly and whether of record or
beneficially (including the amalgamation, merger or consolidation of the Owner
or AMMLP or the owner of a direct or indirect ownership interest therein with
another Person), of any ownership interests in or assets of the Owner, AMMLP,
GP-AMMLP shall be permitted (exclusive of asset divestitures expressly permitted
by this Deed), nor shall the admission of an additional general partner in the
Owner or AMMLP nor the creation or issuance of new stock of GP-AMMLP be
permitted without the prior written consent of the Grantee. Furthermore, no
change in the control of the Owner, AMMLP or GP-AMMLP (including any change in
the identity of the sole managing general partner of Owner or AMMLP) shall be
permitted without the prior written consent of the Grantee. The Grantee has
specifically relied upon the particular financial status, abilities and
management of the Ground Lessor and Owner in entering into the Financing
Documents and providing the financial accommodations to the Owner thereunder.
The loan evidenced by the Secured Note would, furthermore, not have been made
unless the Mortgaged Premises were under the ownership of the Grantors.
Accordingly, subject to those transfers expressly permitted under this Article
7, the adequacy of the Grantee's security depends upon the Grantors continuing
to hold and own their estates in the Mortgaged Premises until the indebtedness
under the Secured Note has been paid in full. The owner (or a Qualified
Purchaser succeeding to Owner's interests in the Mortgaged Premises) will at all
times directly own one hundred percent (100%) of the shares of the Issuer.
7.3 Notwithstanding the provisions of Section 7.2, the following
transfers shall be permitted, provided that Marriott shall remain obligated
under the Guaranties and under its guaranty of the Management Company's
obligations under the Management Agreement, and, subject to the provisions of
Section 3.2, Marriott Hotels, Inc. shall remain the Management Company under the
Management Agreement and the Hotel name shall remain the "Atlanta Marriott
Marquis" (subject to such changes permitted under the Management Agreement
Assignment):
7.3.1 Sales, assignments, pledges, hypothecations, or other
transfers of limited partnership interests in the Owner and AMMLP, provided that
(a) there is no increase in the control rights and/or Veto Power, if any, of the
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limited partners, and (b) such transfers, alone or together with any and all
previous transfers, shall not constitute a transfer of all or substantially
all of the limited partnership interests in AMMLP to a single Person or a group
of Affiliates; provided, however, that the foregoing clauses (a) and (b) shall
not apply with respect to a transfer to a Person controlled, at all times, by
Marriott and of which Marriott (or one or more of Marriott's wholly owned
subsidiaries) owns not less than a 51% equity interest (a "Marriott Controlled
Person"), so long as Persons who are neither Marriott nor Marriott Controlled
Persons shall have no greater control rights and/or Veto Power, if any, after
such transfer than they had prior to such transfer; and further provided, that
the foreclosure of any assignment, pledge, hypothecation or encumbrance shall
be considered to be a transfer subject to the restrictions in (a) and (b) of
this Section 7.3.1
7.3.2 Sale or transfer (excluding any assignment, pledge,
hypothecation, encumbering, sale or other transfer made for the purposes of
granting a security interest) of all of the ownership interests in GP-AMMLP to
another Person which (a) is and continues to be wholly-owned by Marriott, (b)
has and maintains thereafter a Net Worth at least equal to that of the
then-existing GP-AMMLP; and (c) is and continues to be a special purpose entity
for the purposes permitted by Section 4.8;
7.3.3 Sale or transfer (excluding any assignment, pledge,
hypothecation, encumbering, sale or other transfer made for the purposes of
granting a security interest) of Portman's general partnership interests in the
Owner to Persons which are and shall continue to be wholly owned and controlled
by Portman, Marriott and/or AMMLP; and
7.3.4 Transfer of Portman's general and limited partnership
interests in the Owner resulting from the death or incapacity of Portman;
provided, however, that upon the death or incapacity of Portman, his interest as
a general partner shall be converted to that of a limited partner in accordance
with the provisions of the partnership agreement of the Owner and no Person
other than Xxxx X. Xxxxxxx, III shall replace Portman as a general partner upon
such death or incapacity without the Grantee's prior written consent.
7.4 Without the prior consent of the Grantee, the partnership
certificates and agreements of the Owner and AMMLP presently in effect shall not
be modified, supplemented or amended (except those required to evidence
transfers permitted under this Article 7) nor shall such certificates or
agreements be allowed to terminate, expire, lapse or become ineffective.
7.5 For purposes of this Article 7, "control", when used with
respect to any Person, shall mean the power to direct the management and
policies of such Person,
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directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
7.6 Additional Financing. Neither the Owner, AMMLP nor GP-AMMLP
will incur, create, assume or allow to remain outstanding any Indebtedness,
except for:
(a) Indebtedness in respect to taxes, assessments and
governmental charges or levies as and to the extent permitted to remain
unpaid and undischarged by Section 2.5 of this Deed;
(b) Unsecured current liabilities (not the result of
borrowing) incurred and customarily paid in the ordinary course of
business for current purposes and not evidenced by any note or other
evidence of Indebtedness;
(c) Permitted Equipment Leases, if applicable;
(d) The Indebtedness described on Exhibit D, which the
Grantors hereby represent identifies any and all other existing
Indebtedness of Owner, AMMLP and GP-AMMLP and as to which the Owner
agrees that from and after the occurrence and during the continuance of
an Event of Default or an event as to which the Grantee has given the
Owner notice which, with notice or passage of time or both, would
become an Event of Default, the Owner shall not, without the prior
written consent of the Grantee, make any payments, in cash or other
property, of any or all of the obligations under any of such
Indebtedness;
(e) Indebtedness of AMMLP to another partner of the Owner
under a Cure Loan to AMMLP made pursuant to Section 6.4.1 of the
partnership agreement of the Owner;
(f) The indebtedness secured by this Deed; and
(g) Additional Financings (as defined below).
The following financings (each an "Additional Financing") may be incurred,
provided that (i) prior to entering into any Additional Financing, the Owner
delivers an Officers' Certificate to the Grantee certifying that no Event of
Default has occurred and is continuing nor has any event occurred which is, or
after notice or lapse of time or both would become an Event of Default under
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this Deed (except same shall not be a condition with respect to Affiliate Loans
and Guaranty Loans) and that such Additional Financinq, as described in such
Officers' Certificate, is in compliance with the provisions of this Section 7.6,
(ii) the payment of all sums thereunder shall be fully subordinated to payments
by the Owner under the Secured Note in accordance with the followinq provisions
of this Section 7.6 and Section 7.7 and the Owner agrees that from and after the
occurrence and during the continuance of an Event of Default or an event as to
which the Grantee has given the Owner notice which, with notice or passage of
time or both, would become an Event of Default, the Owner shall not, without the
prior written consent of the Grantee, make any payments, in cash or other
property, of any or all of the obligations under the Additional Financings,
(iii) when secured in whole or part by all or a portion of the Mortgaged
Premises, such lien shall be fully subject and subordinate to the lien of this
Deed and the rights of the Grantee hereunder and the deed to secure debt or
comparable security instrument executed in connection therewith shall expressly
contain the provisions set forth in Section 7.7 and (iv) no such financings
shall provide for participations or contingent payments based on gross revenues,
sales, appreciation in value or other items except pursuant to Section 7.6.1
below (each such permitted deed to secure debt herein referred to as a
"Subordinate Deed" and the indebtedness secured thereby, items Indebtedness"):
7.6.1 Secured or unsecured loans from Marriott, any person
who at all times is a Marriott Controlled Person, any partner in the Owner or
any Person controlled, at all times, by Portman and of which Portman owns not
less than a 51% equity interest, to the Owner ("Affiliate Loans"), provided (a)
such Affiliate Loans contain terms and interest rates not more onerous to the
Owner than are commercially reasonable, (b) all payments on such Affiliate Loans
are payable solely in compliance with the provisions of Article 27 herein and
solely from (i) the amount by which Net Cash Flow of Owner for the semi-annual
interest payment period under the Secured Note immediataly preceding the date of
such payment exceeds all payments actually made during such period in respect of
any secured or unsecured borrowings of Owner (other than Affiliate Loans), (ii)
net proceeds from sales or other dispositions of any of the assets of the Owner
permitted under this Deed after the acquisition of any replacements thereof,
(iii) net proceeds from casualty insurance or Awards from a Taking which the
Owner is entitled to retain under this Deed after any required restoration or
repair, (iv) net proceeds of any Additional Financing permitted under Section
7.6.3 herein, (v) the proceeds of capital contributions of the partners in the
Owner and (vi) the net proceeds of any Affiliate Loan and (c) the loan
documentation entered into, if any, with respect to such Affiliate Loans shall
acknowledge such limitation on payments set forth in the foregoing clause (b) of
this subsection 7.6.1 and shall furthermore provide that from and after
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the occurrence and during the continuance of an Event of Default or an event
which, with notice or the passage or time or both, would become an Event of
Default, as to which Grantee has given the lender notice (provided the Grantee
has notice of such loan), the lender shall not, without the prior written
consent of the Grantee, in each instance, ask, demand, seek, take or receive,
directly or indirectly from the owner, in cash or other property, by set-off, or
in any other manner, payment of any or all or the obligations to such lender
under the Affiliate Loan;
7.6.2 Unsecured loans from one or more third party
Institutional Lenders to the Owner, which loans are fully guaranteed by Marriott
and the proceeds of which are used to fund debt service actually paid under the
Secured Note and for which debt service Marriott would have otherwise been
liable pursuant to the Interest/Princlpal Guaranty ("Guaranty Loans"), provided
(a) all payments by the Owner on such loans are payable solely in compliance
with the provisions of Article 27 herein and solely from (i) the amount by which
Net Cash Flow of Owner for the semi-annual interest payment period under the
Secured Note immediately preceding the date of such payment exceeds all payments
actually made during such period in respect of any secured or unsecured
borrowings of Owner (other than Guaranty Loans), (ii) net proceeds from sales or
other dispositions of any of the assets of the Owner permitted under this Deed,
(iii) net proceeds from casualty insurance or Awards from a Taking to which the
Owner is entitled to retain under this Deed after any required restoration or
repair, (iv) net proceeds of any Additional Financing permitted under Section
7.6.3 herein, (v) the net proceeds of Affiliate Loans and (vi) the proceeds of
capital contributions of the partners in the Owner and (b) the loan
documentation entered into with respect to such Guaranty Loans shall acknowledge
such limitation on payments set forth in the foregoing clause (a) of this
subsection 7.6.2 and shall furthermore provide that from and after the
occurrence and during the continuance of an Event of Default or an event which,
with notice or the passage of time or both, would become an Event of Default, as
to which Grantee has given the lender notice (provided the Grantee has notice of
such loan), such lender shall not, without the prior written consent of the
Grantee, in each instance, ask, demand, seek, take or receive, directly or
indirectly from the Owner, in cash or other property, by set-off, or in any
other manner, payment of any or all of the obligations to such lender under the
Guaranty Loan (other than from Marriott, as guarantor);
7.6.3 Unsecured loan(s) from one or more third party
Institutional Lenders to the Owner in an aggregate principal amount not to
exceed $20,000,000, less the outstanding principal amount from time to time
under the loan from Bankers Trust Company to the Owner pursuant to a Loan
Agreement and Offering Basis Finance Agreement, both dated as of October 15,
1987, between the Owner and Bankers Trust Company as in effect on the date
hereof (the "Bankers Trust Loan"); provided
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that any such unsecured loan(s) shall provide that from and after the occurrence
and during the continuance of an Event of Default or an event which, with notice
or the passage of time or both, would become an Event of Default, as to which
Grantee has given the lender notice (provided the Grantee has notice of such
loan), such lender shall not, without the prior written consent of the Grantee,
in each instance, ask, demand, seek, take or receive, directly or indirectly
from the Owner, in cash or other property, by set-off, or in any other manner,
payment of any or all of the obligations to such lender under the unsecured loan
(other than from a guarantor of such loan); and
7.6.4 On or after January 1, 1992, secured or unsecured
loan(s) from a third party Institutional Lender to the Owner for the sole
purpose of financing the Owner's acquisition of the fee estate in the Land,
provided that:
(a) the aggregate amount of the loan(s) do not exceed the
purchase price of the fee estate in the Land (including transaction costs) and
that such net proceeds are applied solely to purchase the fee estate in the Land
from the Ground Lessor in accordance with the provisions of Section 12.01 of the
Ground Lease as in effect on the date hereof;
(b) after giving effect to the loan(s), the Debt Service
Coverage Test is satisfied;
(c) as of the date of the execution and delivery of the loan
documents with respect to the secured loan(s), (i) the aggregate sum of the Note
Principal Amount of the Secured Note (plus Deferred Interest to such date) and
all other Indebtedness of the Owner (excluding Affiliate Loans and Guaranty
Loans), including the principal amount of proposed secured loan(s), does not
exceed an amount equal to ninety percent (90%) of the fair market value of the
Mortgaged Premises based upon an appraisal of the Mortgaged Premises prepared by
an Appraiser, at the Owner's sole cost and expense, such appraisal to be dated
not more than six (6) months prior to the date of such determination and (ii)
the total outstanding balance of the Notes, including principal and Deferred
Interest to such date, net of the unfunded outstanding amount of the Principal
Guaranty, does not exceed an amount equal to seventy-five percent (75%) of the
fair market value of the Mortgaged Premises based upon an appraisal of the
Mortgage Premises prepared by an Appraiser, at the Owner's sole cost and
expense, such appraisal to be dated not more than six (6) months prior to the
date of such determination. For the purposes hereof, the principal amount of the
proposed secured loan(s) securing "zero coupon" or other discount indebtedness
shall be deemed to be the lesser of (i) the accreted principal amount at
maturity of such loan(s), or (ii) the accreted principal amount of such loan(s)
at the Stated Maturity (an defined in the Secured Note); and
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(d) any such unsecured loan(s) shall provide that from and
after the occurrence of an Event of Default or an event which, with notice or
the passage of time or both, would become an Event of Default, as to which
Grantee has given the lender notice (provided the Grantee has knowledge of such
loan), such lender shall not, without the prior written consent of the Grantee,
in each instance, ask, demand, seek, take or receive, directly or indirectly
from the Owner, in cash or other property, by set-off, or in any other manner,
payment of any or all of the obligations to such lender under the unsecured
loan.
Prior to the incurring of any Secured Indebtedness or any unsecured loan(s)
permitted under Section 7.6.4, there shall be delivered to the Grantee (x) true
and correct copies of the Subordinate Deed, if any, the note evidencing such
indebtedness and any other loan documents related thereto and (y) an Officers'
Certificate of the Owner setting forth in reasonable detail the calculations and
other evidence required to demonstrate compliance with this Section 7.6 as
confirmed by a certificate of Independent Accountants, stating that, based on
such Officers' Certificate, the requirements of this Section 7.6 have been met.
With respect to the satisfaction of the Debt Service Coverage Test, the
Officers' Certificate delivered to the Grantee shall include a certification by
the Management Company that the calculation of item (m) in the definition of
"Expense Deductions" is in accordance with the Management Company's accounting
policies and consistent with other premier convention hotels in the Marriott
hotel system.
7.7 Each Subordinate Deed shall provide substantially as follows:
7.7.1 The lien and rights of the lender under the Subordinate
Deed (the "Subordinate Lenders") shall be fully subject and subordinate to the
lien of and security title granted by this Deed and the rights of the Grantee
hereunder, including all subsequent modifications, amendments, extensions,
renewals, consolidations or replacements hereof (excluding any increases in the
indebtedness secured by this Deed other than as expressly permitted hereunder or
under the Secured Note); and the Subordinate Lender shall agree to execute and
deliver from time to time, at the request of the Grantee, such additional
documents as may be reasonably necessary to confirm such subordination;
7.7.2 The Subordinate Lender will send copies of all notices
of default under the Subordinate Deed which it delivers to the Ground Lessor or
Owner under the provisions of the Subordinate Deed;
7.7.3 The Subordinate Lender will not exercise its power of
sale or exercise any other right or take any other remedial action (excluding
the advancing of monies in
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order to protect its security or in connection with the operation of the
Premises) which it is entitled to take with respect to the Mortgaged Premises
unless and until it shall have given the Grantee not less than sixty (60) days'
prior written notice of and an opportunity to cure or cause to be cured any
default beyond the applicable grace periods under the Subordinate Deed or, if
such default is subject to a longer cure periods, such longer cure period as is
provided in the Subordinate Deed. In any foreclosure action or the Subordinate
Lender's exercise of its power of sale, notice thereof will be given to the
Grantee and true copies of all papers served or entered in connection therewith
will be served upon the Grantee;
7.7.4 From and after the occurrence and during the
continuance of an Event of Default or an event which, with notice or passage of
time or both, would become an Event of Default, as to which Grantee has given
the Subordinate Lender notice, the Subordinate Lender will not, without the
prior written consent of the Grantee, in each instance, ask, demand, seek, take
or receive, directly or indirectly from the Owner, in cash or other property, by
set-off, by realizing or seeking to realize upon any collateral (subject,
however, to the Subordinate Lender's right to pursue a foreclosure of the
Subordinate Deed to the extent permitted under Section 7.7.3), or in any other
manner, payment of, or security for, any or all of the obligations to the
Subordinate Lender under the Subordinate Deed or the related loan documents (the
"Subordinate Obligations"). The foregoing sentence shall not, however, preclude
the Subordinate Lender from realizing upon collateral which secures the
Subordinate Obligations but which does not secure the indebtedness secured by
this Deed.
7.7.5 Notwithstanding anything to the contrary contained in
this Deed, if the Grantee gives its consent or is satisfied as to any matter to
which the consent or satisfaction of both the Grantee and the Subordinate Lender
is required, then the Subordinate Lender shall be deemed to have given its
consent or to be satisfied under this Deed or under the Subordinate Lender's
documents, provided the Grantee has given the Subordinate Lender notice with
respect thereto (but in no event shall such notice be a condition to the
effectiveness of Grantee's consent or satisfaction as to any such matter),
unless the Subordinate Lender (a) reasonably determines that the Grantee's
consent or satisfaction is imprudent and would materially and adversely impair
the Subordinate Lender's security in the Premises and (b) gives the Grantee
written notice of such determination together with an explanation of the reasons
therefor. Notwithstanding that the Owner shall be entitled to take certain
actions with the approval of the Grantee, the Grantee shall owe no fiduciary
duty of any kind to the Subordinate Lender nor shall it be held responsible or
accountable to the Subordinate Lender for any consent or approval
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which the Grantee shall give or which it shall be entitled to give, to the
Owner.
7.7.6 The Grantee may collect and retain any and all proceeds
and Awards realized from insurance or from condemnation proceedings as to the
Premises and apply them first in the manner provided for in this Deed. The
Subordinate Lender shall have no claim to such proceeds and no right to be made
a party to the proceeds check issued by any insurance company or condemning
authority unless and until all sums required to be paid under this Deed have
been first paid in full to the Grantee.
7.7.7 The Subordinate Lender shall, to the extent permitted
by applicable law, waive any and all equitable claims or rights which it may
have, including, but not limited to, the right to xxxxxxxx assets, which impose
a restriction on the Grantee as to the manner or order in which it, in its
sole discretion, is entitled to exercise its rights and remedies under the
Financing Documents;
7.7.8 The subordination provisions of the Subordinate Deed
and the provisions relating to this Deed and other Financing Documents shall be
for the benefit of the Grantee and its successors and assigns;
7.7.9 The Grantee may waive any of the terms, covenants or
conditions of this Deed or any of the other Financing Documents in whole or in
part and may release any portion of the Mortgaged Premises or any other
security, and grant much extensions and indulgences in relation to the
indebtedness secured by this Deed as the Grantee may determine, without the
consent of the Subordinate Lender, and without any obligation to give notice of
any kind to the Subordinate Lender, and without in any manner affecting the
priority or the lien of this Deed on all or any part of the Mortgaged Premises;
7.7.10 That nothing in the terms of this Deed shall be deemed
a consent by the Grantee to any sale of the Premises by foreclosure or by a sale
pursuant to a power of sale except to a Person to whom the Premises may be
transferred without causing a default under Section 7.1 of this Deed;
7.7.11 That the Subordinate Lender shall not request the
appointment of any receiver for the Premises unless prior notice has been given
to the Grantee and such receiver shall be instructed by the Subordinate Lender
to apply (to the extent permitted by applicable law) any rents, issues and
profits received first to the payment of costs and expenses of the Premises,
then to amounts then due under the terms of this Deed and the Secured Note, and
then to the payment of interest (but not principal) then due and payable under
the Subordinate Mortgage; and
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7.7.12 The Subordinate Lender will not seek to evict any
Space Tenant in any foreclosure action or in connection with its exercise of its
power of sale nor take any other action in connection therewith which would have
the effect of terminating any Space Lease.
8. PRIORITY OF SECURITY DEED; NO MERGER
8.1 This Deed is and will be maintained as a valid first priority
security deed on the Mortgaged Premises, and the Grantors will not, directly or
indirectly, create or suffer or permit to be created, or to stand against the
Mortgaged Premises or any portion thereof, or against the rents, issues and
profits therefrom, and will promptly discharge any security deed or charge on
the Mortgaged Premises (or any pledge or other encumbrance of the direct or
indirect ownership interests of the Grantor) other than the Permitted Exceptions
and as permitted by Article 7 hereof; provided, however, that nothing herein
contained shall require the Grantors to pay or cause to be paid any Imposition
prior to the time the same shall become due. The Grantors will keep and maintain
the Mortgaged Premises, and every part thereof, free from all liens of persons
supplying labor and materials in connection with the construction, alteration,
repair, improvement or replacement of the Improvements or of the Equipment. If
any such liens shall be filed against the Mortgaged Premises, or any part
thereof, the Grantors agree to discharge the same of record, by bonding or
otherwise, within thirty (30) days after the filing thereof. The Grantors shall
exhibit to the Grantee upon request all receipts or other satisfactory evidence
of the payment of taxes, assessments, charges, claims, liens or any other item
which may cause any such lien to be filed against the Mortgaged Premises.
8.2 In no event shall the Grantors do or permit to be done, or
omit to do or permit the omission of, any act or thing which, the doing or
omission of which would impair the security or priority of this Deed.
8.3 All Space Leases (excluding concession agreements which have
terms of less than three years) of all or any portion of the Mortgaged Premises
executed after the date hereof will (a) be subordinated to the security interest
created by this Deed and to all renewals, modifications, consolidations,
replacements, increases and extensions thereof, (b) require the Space Tenants
thereunder to execute any documents required to further effectuate such
subordination at the Grantee's request and (c) provide that following sale of
the Mortgaged Premises or any part thereof through foreclosure or otherwise, or
following conveyance of the Mortgaged Premises or any part thereof by deed in
lieu of foreclosure, the Space Tenant under each such Space Lease will, upon ten
(10) days' written notice from the purchaser of the Mortgaged
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Premises or any part thereof (or its assignee) given within thirty (30) days
after the sale thereof, attorn to such purchaser or assignee as the direct
tenant of such purchaser or assignee.
8.4 It is the intention of the parties hereto that if the Grantee
shall at any time hereafter acquire title to all or any portion of the Mortgaged
Premises, then, and until the indebtedness secured hereby has been paid in full
or Substitute Real Estate Collateral has been provided, the interest of the
Grantee hereunder and the security interest of this Deed shall not merge or
become merged in or with the estate and interest of the Grantee as holder and
owner of title to all or any portion of the Mortgaged Premises and that, until
such payment, the estate of the Grantee in the Mortgaged Premises and the
security interest of this Deed and the interest of the Grantee hereunder shall
continue in full force and effect to the same extent as if the Grantee had not
acquired title to all or any portion of the Mortgaged Premises.
9. CONDEMNATION
9.1 The Grantors shall promptly notify the Grantee of notice to it
of the institution of any proceeding or negotiations for the Taking of the
Premises or any part thereof, shall keep the Grantee currently advised, in
detail, as to the status of such proceedings or negotiations and will promptly
give to the Grantee copies of all notices, pleadings, judgments, determinations
and other papers received or delivered by the Grantors therein. The Grantee
shall have the right (but shall have no obligation) to appear and participate
therein at the Grantors' cost and may be represented by counsel, who, if the
Grantee elects, may also be the counsel retained by the Owner and/or the Ground
Lessor. The Grantors from time to time will execute and deliver to the Grantee
all instruments requested by the Grantee or as may be required to permit such
participation. The Grantors will not, without the prior written consent of the
Administrative Services Representative, which consent shall not be unreasonably
withheld or delayed, enter into any agreement for the Taking of the Premises, or
any part thereof, with anyone authorized to acquire the same by eminent domain
or in condemnation.
9.2 In the event that the Premises, or any portion thereof, shall
be Taken, the Grantee shall be entitled to and shall receive (subject to the
provisions of Section 5.ll and 9.3 herein) the total of such portion of all
awards made that shall be allowed or allocated to the Grantors or the Grantee
with respect to all the right, title and interest of the Grantors in and to the
Premises or the portion thereof affected (herein called the "Awards"). The
obligations of the Owner to perform the terms, covenants and conditions of this
Deed and to continue to make all payments on the indebtedness shall continue
unimpaired
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until the actual vesting of title in such proceeding and the prepayment of
the Secured Note and any other indebtedness secured hereby.
9.3 If a Taking results in a Total Loss, the provisions of Section
5.12 shall apply. If a Taking results in a Total Taking (as hereinafter
defined), the Grantee, within forty-five (45) days of the determination of a
Total Taking, may declare the Note Principal Amount (or, if prior to the
Deferred Interest Commencement Date, the Original Note Principal Amount and the
Secured Note Accreted Amount) and all other indebtedness to be immediately due
and payable (exclusive of Secured Note Yield Maintenance Amount) all net
proceeds of the Award shall be applied to such indebtedness and the Grantors
shall cause the Issuer to redeem the Notes in full (exclusive of Yield
Maintenance Amount) in accordance with the provisions of the Indenture, the
Notes and the procedures set forth in Article Eleven of the Indenture. The
balance, if any, of such Award not required to be applied in accordance with the
immediately preceding sentence of this Section, shall be paid over to the
Grantors. A Total Taking shall be either (a) a Taking of all of the Ground
Lessor's fee title to the Premises and the Owner's leasehold interest in the
Premises or (b) if the Grantors and the Management Company fail to deliver,
within sixty (60) day. after the Taking, Officers' Certificates (together with
the Hotel Consultant's confirmation as set forth below) certifying that either
(x) the value of the Mortgaged Premises has been reduced by less than $2,500,000
or (y) the projected Net Cash Flow upon restoration, plus the amount available
under the Guaranties to pay Debt Service under the Secured Note in accordance
with Paragraph 19 thereof, will be sufficient to pay all future Debt Service
under the Secured Note and the foregoing conclusion is confirmed by a written
projection of a Hotel Consultant delivered to the Grantee. Notwithstanding the
foregoing, the sixty (60) day period in which the Grantors and the Management
Company are obligated to submit Officers' Certificates in accordance with this
Section 9.3 may be extended for such additional period, not to exceed sixty (60)
days, necessary for the Grantors and the Management Company, acting diligently,
to obtain such Officers' Certificates if, at least fifteen (15) days prior to
the expiration of the initial sixty (60) day period (but no earlier than thirty
(30) days prior to the expiration of such period), the Grantors and the
Management Company submit Officers' Certificates certifying that (i) they have
diligently sought to obtain the information and confirmation required under this
Section 9.3 and have been unable to obtain such information and confirmation
within the initial sixty (60) day period, (ii) they reasonably believe that such
information and confirmation, as applicable, can and will be obtained within
such additional sixty (60) day period and (iii) they have not previously
obtained any oral or written estimate inconsistent with both of the
certifications set forth in clauses (x) and (y) above.
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9.4 In the event of a Taking of all or part of the Premises for
temporary use or occupancy, the net amount of such Award shall be held in escrow
by the Depositary until there becomes payable the respective installments due on
the indebtedness and accruing during the period of such Taking for temporary use
or occupancy, at which times such monies shall be delivered to the Grantee and
applied to such installments due on the indebtedness,
9.5 The Grantors shall promptly notify the Grantee if the whole or
any portion of the Premises shall be taken in condemnation proceedings for a
temporary use or occupancy.
9.6 If any balance of Award paid to the Grantee pursuant to the
provisions of this Article 9 remains held by the Grantee after the payment in
full of the indebtedness, such balance shall be paid over to the Owner.
10. SPACE LEASES
10.1 The Grantors will not enter into any Space Leases of all or
any portion of the Premises (excluding transient room rentals, restaurant
rentals to customers and conference room rentals in the ordinary course of the
Hotel's business) except that Owner may enter into Space Leases which are to
retail Space Tenants for actual occupancy and whose business is consistent with
the operation of a premier class convention hotel, under bona fide Space Leases
on commercially reasonable terms and conditions in light of then market
conditions. In no event shall any Space Lease contain an option to purchase all
or any portion of the Premises.
10.2 The Owner shall not cancel (or accept a cancellation or
surrender of) any Space Lease or materially modify or waive any provision of a
Space Lease unless, in the good faith Judgment of the Owner, such cancellation,
modification or waiver is commercially reasonable in light of then market
conditions or, with respect to a termination or cancellation, is in the normal
course of operation of the Premises for default of the Space Tenant entitling
Owner to so terminate the Space Lease. The Owner shall not collect or accept
payments of rent under any Space Lease more than one month in advance, except
for security deposits.
10.3 The Owner shall duly and punctually perform and observe all
of the material terms, covenants and conditions of the Space Leases required to
be performed and observed by it as landlord thereunder. The Owner will further
do all things necessary to preserve and keep unimpaired its rights under all
Space Leases, except that Owner may terminate any Space Lease as permitted in
Section 10.2 above. The Owner shall require all Space Tenants to observe, keep
and perform all
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material covenants and agreements imposed upon them under the Space Leases.
The Owner shall appear in and defend any action or proceeding arising under
or in any manner connected with any of the Space Leases.
10.4 The Owner shall furnish to the Grantee a true and complete
copy of each Space Lease promptly after its execution. The Owner shall deliver
annually to the Grantee a schedule of all Space Leases then in effect, which
schedule shall include the following: (a) the name of the Space Tenant under the
Space Lease; (b) a description of the space leased thereunder, including but
not limited to the approximate number of square feet leased thereunder, type of
activity performed under such lease and type of space leased; (c) the rental
rate, including any escalations, if any; (d) the term of the Space Lease; and
(e) such other information as the Grantee may request.
11. ASSIGNMENT OF LEASES AND RENTS; ETC.
11.1 The Grantors hereby assign to the Grantee, as further
security for the payment of the indebtedness secured hereby, all of the
Grantor's right, title and interest in and to the rents, issues and profits of
the Mortgaged Premises (including the Ground Rent), together with the Ground
Lease, all Space Leases and any other documents evidencing such rents, issues
and profits now or hereafter in effect and any and all deposits held as security
under said Space Leases, and shall, upon demand, deliver to the Grantee an
executed counterpart of each such Space Lease or other document. Nothing
contained in the foregoing sentence shall be construed to bind the Grantee to
the performance of any of the covenants, conditions or provisions contained in
the Ground Lease or any such Space Lease or other document or otherwise to
impose any obligation on the Grantee (including, without limitation, any
liabi1ity under the covenant of quiet enjoyment contained in the Ground Lease or
any Space Lease in the event that by reason of any sale under this Deed by
virtue of the power of sale herein granted or pursuant to any order or judgment
in any judicial proceeding or otherwise, any tenant shall have been barred and
foreclosed of all right, title and interest and equity of redemption in the
Premises), except that the Grantee shall be accountable for money actually
received pursuant to such assignment. The Grantors hereby further grant to the
Grantee the right (a) with or without taking possession of the Premises, to
receive the rents, issues or profits of the Premises; (b) to enter upon and take
possession of the Premises without the appointment of a receiver, or an
application therefor, with or without employing for a managing agent of the
Premises and let the same, either in its own name, or in the name of the
Grantors; (c) to dispossess by the usual summary proceedings any Space Tenant
defaulting in the payment of rent to the Grantee, and (d) to apply said rents,
issues and profits, after payment of all necessary charges and expenses, on
account
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of said indebtedness. Such assignment and grant shall continue in effect until
the indebtedness secured by this Deed is paid or Substitute Real Estate
Collateral is purchased and deposited with the Collateral Trustee in accordance
with and in the full amount required by Article Thirteen of the Indenture, the
execution of this Deed constituting and evidencing the irrevocable consent of
the Grantors to the entry upon and taking possession of the Premises by the
Grantee pursuant to such grant, whether foreclosure or other remedy hereunder
has been instituted or not and without applying for a receiver. The Grantee,
however, hereby waives the right to enter upon and take possession of the
Premises for the purpose of collecting said rents, issues and profits, and the
Grantors shall have a license to collect and receive the same until the
occurrence and during the continuation of an Event of Default by the Owner
and/or Ground Lessor under any of the covenants, conditions or agreements
contained in this Deed. Neither the entry upon and taking possession of the
Premises, nor the collection and application of the rents, issues and profits as
aforesaid, nor any other action taken by the Grantors in connection therewith,
shall cure or waive any default hereunder or waive or modify any notice thereof
or notice of acceleration of the maturity of the Secured Note. Such license of
the Grantors to collect and receive said rents, issues and profits may be
revoked by the Grantee upon any such Event of Default by the Owner and/or Ground
Lessor by giving not less than five (5) days written notice of such revocation,
served personally upon or sent by registered or certified mail to the record
owner of the Premises.
11.2 Upon notice and demand, the Owner shall, from time to time,
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered to the Grantee, in form satisfactory to the Grantee, one or more
separate assignments (confirmatory of the general assignment provided in Section
11.1 hereof) of the lessor's interest in any Space Lease now or hereafter
affecting the whole or any part of the Premises, which shall also restrict the
Owner's right or power, as against the Grantee, to cancel, abridge or otherwise
modify, or accept prepayments of installments of rent to become due under, any
such Space Lease to the extent provided herein; that the Owner shall pay to the
Grantee the reasonable expenses incurred by the Grantee in connection with the
preparation and recording of any such instrument; that the Owner will (a)
fulfill or perform each and every material condition and covenant of each such
Space Lease to be fulfilled or performed by the lessor thereunder, (b) give
prompt notice to the Grantee of any notice of default by the lessor thereunder
received by the Owner together with a complete copy of any such notice, and (c)
enforce, short of termination thereof, except to the extent provided herein, the
performance or observance of each and every material covenant and condition
thereof by the lessee thereunder to be performed or observed.
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11.3 A notice in writing by the Grantee to the Space Tenants under
the Space Leases advising them that the Owner has defaulted hereunder and
requesting that all future payments of rent, additional rent or other charges
under the Space Leases be made to the Grantee (or its agent), shall be
construed as conclusive authority to such Space Tenants that such payments are
to be made to the Grantee (or its agent), and such Space Tenant shall be fully
protected in making such payments to the Grantee (or its agent), and the Owner
hereby irrevocably constitutes and appoints the Grantee the attorney-in-fact and
agent of the Owner, coupled with an interest, for the purpose of endorsing the
consent of the Owner on any such notice.
11.4 Upon notice and demand, the Ground Xxxxxx shall execute,
acknowledge and deliver to the Grantee, in form satisfactory to the Grantee, a
separate assignment (confirmatory of the general assignment provided in Section
11.1 hereof) of the lessor's interest in the Ground Lease, which shall also
restrict the Ground Lessor's right or power, as against Grantee, to cancel,
abridge or otherwise modify, or except prepayments of installments of Ground
Rent to become due under the Ground Lease to the extent provided in Article 25
herein; that the Owner shall pay to the Grantee the expenses incurred by the
Grantee in connection with the preparation and recording of any such instrument;
that the Ground Lessor will (a) fulfill or perform each and every condition and
covenant of the Ground Lease to be fulfilled or performed by the ground lessor
thereunder, (b) give prompt notice to the Grantee of any notice of default by
the ground lessor thereunder received by the Ground Lessor together with a
complete copy of any such notice, and (c) enforce, short of termination thereof,
the performance of observance of each and every covenant and condition thereof
by the ground lessee thereunder to be performed or observed. A notice in
writing by the Grantee to the Owner under the Ground Lease advising it that a
default has occurred hereunder and requesting that all future payments of Ground
Rent and other charges under the Ground Lease be made to the Grantee (or its
agent), shall be construed as conclusive authority to Owner that such payments
are to be made to the Grantee (or its agent), and the Ground Lessor hereby
irrevocably constitutes and appoints the Grantee, the attorney-in-fact an agent
of the Ground Lessor, coupled with an interest, for the purpose of endorsing the
consent of the Ground Lessor on any such notice.
12. GRANTEE MAY CURE OWNER'S AND/OR GROUND LESSOR'S DEFAULT.
Without limiting any other provision of this Deed, and without waiving
or releasing the Owner and/or the Ground Lessor from any obligation or default
hereunder, the Grantee (or any receiver of the Mortgaged Premises) shall have
the right, but not the obligation, upon the occurrence and continuance of an
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Event of Default, to make any payment or to perform or observe any other term,
covenant, condition or obligation required to be performed or observed by the
Owner and/or the Ground Lessor under this Deed or indebtedness secured hereby
that the Owner and/or the Ground Lessor has failed to make, perform or observe,
or take any appropriate action, including, without limitation, entry on the
Mortgaged Premises and performance of work thereat, as it, in its sole
discretion, may deem necessary or appropriate to cause such other term,
covenant, condition or obligation to be promptly performed or observed on behalf
of the Owner and/or the Ground Lessor or to protect the security of this Deed.
All monies expended by the Grantee in exercising its rights under this Article
12, including, but not limited to, legal expenses and disbursements, together
with interest thereon at the Defaults Rate from the date of each such
expenditure, shall be paid by the Grantors to the Grantee forthwith upon demand
by the Grantee, and shall be secured by this Deed.
13. B00KS AND RECORDS; FINANCIAL STATEMENTS, ETC.
13.1 The Grantors will keep proper records and books of account,
in which true, correct and complete entries will be made in accordance with
generally accepted accounting principles consistently applied, reflecting all
financial transactions of the Grantors. All financial statements required to be
delivered under this Article 13 shall be prepared in accordance with generally
accepted accounting principles consistently applied. The Grantors further
covenant that they will, at any reasonable time, and from time to time, permit
the Grantee or any agents or representatives thereof to examine and make copies
of and abstracts from the books and records of account of, and visit the
Premises and to discuss the affairs, finances and accounts of the Grantors with
their partners, officers and other representatives.
13.2 The Grantors shall each deliver to the Grantee:
13.2.1 Not later than ninety (90) days after the expiration
of each Fiscal Year, and within sixty (60) days after the expiration of each
Accounting Quarter (other than the last Accounting Quarter), reasonably detailed
balance sheets, statements of income, changes in partners' capital and cash flow
for such period for Owner and Ground Xxxxxx, including comparative statements
from the figures for the previous year, or Accounting Quarter, as the case may
be;
13.2.2 Any and all budgets, accountings, projections,
statements and reports required to be prepared by the Management Company under
the Management Agreement, including any recommendations of the Management
Company relating to the budget, operations or capital improvements
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for the Hotel, supplemental statements and data and, no later than thirty (30)
days after the beginning of each Fiscal Year, an "Annual Operating Projection"
for the Hotel, as defined in the Management Agreement;
13.2.3 Not later than one hundred twenty (120) days after the
expiration of each Fiscal Year, the statement of Annual Gross Room Sales (as
defined in the Ground Lease) certified by the Owner, prepared in accordance with
the requirements of the Ground Lease; and
13.2.4 The year-end financial statements for each Fiscal Year
for each of Owner and Ground Lessor shall be accompanied by an Independent
Accountants' Report with respect thereto and such Independent Accountants'
Report shall include a report from the Independent Accountants stating that they
have no knowledge of any Event of Default which is continuing as of the date of
such statement or, if in the opinion of the Independent Accountants, any Event
of Default shall exist, shall include a statement as to the nature and status
thereof. Each such Independent Accountants' Report and report on Event of
Default shall also include such other reports, schedules, assumptions and
information as may be pertinent thereto and customarily included in reports of
such type. Such statements for each Fiscal Year and each Accounting Quarter
shall be accompanied by an Officers' Certificate certifying that to the best
knowledge and belief of the signers of such certificate, all such statements are
true and correct in all material respects, such statements were prepared under
their supervision in accordance with generally accepted accounting principles
consistently applied and consistent with the principles applied in the financial
statements for the preceding Fiscal Year and stating that such officer has no
knowledge of any Event of Default hereunder which is continuing as of the date
of the delivery of such statement, or, if any such Event of Default exists,
specifying each such Event of Default and the nature, status and period of
existence thereof and what action is being taken and proposed to be taken with
respect thereto.
13.3 The Owner covenants that it will, at its own expense, deliver
to the Grantee, within fifteen (15) days after request, a written statement
executed by the Owner, in recordable form, setting forth (a) the amount then due
under the Secured Note; (b) the date to which interest has been paid under the
Secured Note; (c) whether any offsets or defenses exist against the indebtedness
secured hereby, and, if any such offsets or defenses are alleged to exist, then
the nature of such offsets or defenses; and (d) any other matters reasonably
requested by the Grantee.
13.4 The Grantee covenants that it will, at the Grantor's expense,
deliver to the Grantors, within fifteen
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(15) Business Days after request, a written statement executed by the Grantee,
setting forth (a) the Original Note Principal Amount and the Secured Note
Accreted Amount, (b) the date to which interest has been paid under the Secured
Note and (c) whether the Grantee has delivered the Owner or AMMLP a notice of
default under the Deed.
13.5 The Grantors shall also make available to the Grantee, upon
reasonable notice by the Grantee, such information with respect to the Mortgaged
Premises as the Grantee may, from time to time, reasonably request.
14. RECORDED INSTRUMENTS
The Grantors will promptly perform and observe, or cause to be
performed and observed, all of the terms, covenants and conditions of all
instruments of record affecting the Mortgaged Premises, where noncompliance
therewith might affect the security of this Deed or might impose any duty or
obligation upon the Ground Lessor, Owner or any Space Tenant under a Space
Lease, and the Grantors shall do or cause to be done all things reasonably
within their respective control to preserve intact and unimpaired and to renew
any and all rights of way, easements, grants, appurtenances, privileges,
licenses, franchises and other interests and rights in favor of or constituting
any portion of the Mortgaged Premises.
15. DEFAULT; ACCELERATION OF PRINCIPAL
15.1 The occurrence of any one or more of the following events
(each herein called an "Event of Default") for any reason whatsoever, and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
governmental body or otherwise shall be an "Event of Default" hereunder:
15.1.1 Any default shall occur in the payment of any
installment of interest (or Secured Note Additional Interest, if any) on the
Secured Note, as and when the same shall become due and payable, and continuance
of such default for three (3) days, but not less than two (2) Business Days; or
15.1.2 Any default in the payment of Secured Note Yield
Maintenance Amount, the Original Note Principal Amount, the Secured Note
Accreted Amount or the Deferred Interest, if any, at the maturity of the Secured
Note, by acceleration or otherwise; or
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15.1.3 Any default in the performance, or breach, of any
material covenant or warranty, or any material inaccuracy in any representation
(or any material misstatement) when made of the Owner or Ground Lessor contained
herein or in the other Financing Documents or in any Officers' Certificate
delivered pursuant hereto or thereto (other than a covenant, representation or
warranty, a default in the performance of which or breach of which is
specifically dealt with elsewhere in this Section), and with respect to a
default or breach, continuance of such default or breach for a period of thirty
(30) days after there has been given, by registered or certified mail (and
otherwise in accordance with Article 23 hereof), to the Owner by the Grantee or
to the Owner and the Grantee by the Holders of at least 25% of the aggregate
principal amount of the Notes then Outstanding, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder (unless such default or breach requires work
to be performed, acts to be done, or conditions to be removed which cannot by
their nature reasonably be performed, done or removed, as the case may be,
within such thirty (30) day period, in which case no Event of Default shall be
deemed to exist as long as the Owner or Ground Lessor shall have commenced (or
caused to have commenced) curing the same within such thirty (30) day period and
shall prosecute (or cause to be prosecuted) the same to completion with
reasonable diligence); or
15.1.4 Either of the Grantors shall default in the
performance of their obligations under Section 4.7 hereof, or GP-AMMLP shall
default in the performance of its obligations under Section 4.8 hereof; or
15.1.5 The entry by a court having jurisdiction over the
Premises of a decree or order for relief in respect of the Owner, AMMLP,
GP-AMMLP or the Management Company in an involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency, reorganization (relating
to an insolvency) or other similar law or the appointment of a custodian,
receiver, liquidator, assignee, trustee, seguestrator or other similar official
of such Person, or of any substantial part of its property, or in connection
with such a proceeding ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of ninety (90) consecutive
days; or
l5.1.6 The commencement by the Owner, AMMLP, GP-AMMHP or the
Management Company of a voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization (in connection with an
insolvency) or other similar law or the commencement of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by such
Person to the entry of a decree or order for
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relief in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization (in connection with the insolvency
of such Person) or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding, or the filing by such Person of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or state bankruptcy insolvency or similar law, or the consent by such Person to
the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, seguestrator or similar
official of any substantial part of the property of such Person, or the making
by such Person of an assignment for the benefit of creditors, or the admission
by such Person in writing of its inability to pay its debts generally as they
become due; or
15.1.7 Any order, judgment or decree shall be entered in any
proceeding against the Owner, AMMLP, GP-AMMLP or the Management Company
decreeing the dissolution or split-up of the Owner, AMMLP, GP-AMMLP or the
Management Company or the divestiture of any assets of the Owner, AMMLP,
GP-AMMLP or the Management Company (other than pursuant to a Taking) having, in
the aggregate, a value in excess of S250,000, and such order, judgment or decree
shall remain undischarged or unstayed for a period in excess of sixty (60) days;
or
15.1.8 The Grantors shall make or permit to occur any sale,
conveyance, pledge, encumbering or other transfer in violation of Article 7 to
occur; or
15.1.9 Final judgment for the payment of money in excess of
S250,000 shall be rendered by a court of record against the Ground Lessor or
Owner and the Ground Lessor or Owner shall not discharge the same or provide for
its discharge in accordance with its terms, or procure a stay of execution
thereof within thirty (30) days from the date of entry thereof and within such
period of thirty (30) days, or such longer period during which execution of such
judgment shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
15.1.10 If Marriott shall cease to own, directly or
indirectly, all of the issued and outstanding shares of capital stock of the
Management Company; or
15.1.11 If an "Event of Default" shall occur and be
continuing under either of the Guaranties, the Indenture or any other of the
Financing Documents; or
15.1.12 If there shall occur a default in the observance or
performance by either party of its covenants, agreements or obligations under
the Management Agreement and such default is not cured within any applicable
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notice and/or grace period provided in such agreement (provided, however, the
Management Company's failure to meet the Minimum Performance Standards, as
defined in the Management Agreement, or to cure such failure as provided by
the terms of the Management Agreement, shall not be deemed a default for
purposes of this Section 15.1.12) or if either party to any such agreement shall
terminate or seek to terminate the Management Agreement, except as permitted by
the Management Agreement Assignment; or
15.1.13 If a default and the expiration of any applicable
grace and cure period (without the cure thereof) has occurred under any
Additional Financing; or
15.1.14 If the Grantors shall fail to pay any tax which they
are required to pay under Section 2.3 within the period after notice provided
for therein; or
15.1.15 If the Owner shall fail to comply with its
obligations and undertakings under a Letter Agreement, dated the date hereof,
from the Grantors to the Grantee and the Collateral Trustee with respect to
certain improvements to the Premises, after the passage of any applicable grace
period and the delivery of any notice provided for in such Letter Agreement.
If an Event of Default occurs and is continuing, the Grantee may, and,
if pursuant to the terms of Section 502 of the Indenture, the Notes have been
accelerated at the direction of the Holders, the Grantee shall, by written
notice declare the Secured Note to be due and payable and the Grantee may
exercise the remedies provided for herein for an Event of Default; provided,
however, that any such declaration and the consequences thereof may be rescinded
and annulled in accordance with the provisions of Section 502 of the Indenture,
or waived pursuant to Section 513 of the Indenture.
16. LEGAL EXPENSES; SUBROGATION; WAIVER OF OFFSETS
16.1 The Grantors will pay to the Grantee, on demand, all costs,
charges and expenses (including, without limitation, attorneys' fees and
expenses) incurred or paid at any time by the Grantee because of the failure of
the Ground Lessor or owner to perform, comply with or abide by any of the
stipulations, agreements, conditions or covenants contained herein or in any
other Financing Document, together with interest on each such payment made by
the Grantee at the Default Rate from the date each such payment is made.
16.2 If any action or proceeding be commenced in which the
Grantee is made a party, or in which it becomes necessary to defend or uphold
the security interest or priority of this Deed, all sums paid by the Grantee for
the reasonable expense of any litigation to prosecute or defend the title,
rights and security interest created by this Deed (including,
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without limitation, attorneys' fees and expenses) shall be paid by the Grantors,
together, to the extent permitted by law, with interest thereon at the Default
Rate from the date each such payment is made, and all such sums and the interest
thereon shall be a lien on the Mortgaged Premises, prior to any right, title or
interest in or claim upon the Mortgaged Premises attaching or accruing
subsequent to this Deed, and shall be deemed to be secured by this Deed. In any
action or proceeding to foreclose this Deed, or to recover or collect the debt
secured hereby, the provisions of law respecting the recovery of costs,
disbursements and allowances, if inconsistent with the foregoing, shall prevail
unaffected by this covenant.
16.3 Provided that a waiver of subrogation can be obtained by
Ground Lessor and Owner from their respective insurance carriers at commercially
reasonable rates using commercially reasonable efforts, Grantors waive any and
all right to claim or recover against Grantee, its officers, the Premises,
Grantors' property or the property of others under Grantors' control from any
cause insured against or required to be insured against by the provisions of
this Deed.
16.4 All sums payable by Grantors hereunder shall be paid without
notice, demand, counterclaim, setoff, deduction of defense and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Grantors hereunder shall in no way be released, discharged or
otherwise affected by reason of: (a) any damage to or destruction of or any
Taking of the Mortgaged Premises or any part thereof; (b) any restriction or
prevention of or interference with any use of the Mortgaged Premises or any part
thereof; (c) any title defect or encumbrance or any eviction from the Land or
the Improvements or any part thereof by title paramount or otherwise; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation, or other like proceeding relating to Grantee, or any action taken
with respect to this Deed by any trustee or receiver of Grantee, or by any
court, in such proceeding; (e) any claim which Grantors have, or might have,
against Grantee; or (f) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing, whether or not Grantors shall have notice or
knowledge of any of the foregoing. Grantors waive all rights now or hereafter
conferred by statute or otherwise to any abatement, suspension, deferment,
diminution, or reduction of any sum secured hereby and payable by Grantors.
17. INDEMNIFICATION
Grantors indemnify, defend and hold Grantee harmless against: (a) any
and all claims for brokerage, leasing, finders or similar fees which may be made
relating to the Premises or the indebtedness, excluding claims with respect to
any fee payable to Eastdil Realty, Inc., Nomura Securities International, Inc.
or Nomura International Plc or to any Person
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to the extent claiming by, through or under Eastdil Realty, Inc., Nomura
Securities International, Inc. or Nomura International Plc relating to the
Mortgaged Premises or the indebtedness (other than those fees payable at the
closing of the transactions contemplated by this Deed and any fees and expenses
payable to Eastdil Realty, Inc. in its capacity as Administrative Services
Representative) and (b) any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses (including its attorneys'
fees actually incurred, together with reasonable appellate counsel fees actually
incurred, if any) of whatever kind or nature (except to the extent caused by the
gross negligence or willful misconduct of the Grantee or by the actions of the
Grantee after the Grantee forecloses upon the Deed and succeeds to the ownership
of the Mortgaged Premises) which may be imposed on or incurred by Grantee at any
time pursuant either to a judgment or decree or other order entered into by a
court or administrative agency or to a settlement reasonably approved by
Grantors, which judgment, decree, order or settlement relates in any way to or
arises out of the offer, sale or lease of the Mortgaged Premises and/or the
ownership, use, occupation or operation of any portion of the Mortgaged Premises
including without limitation: (i) ownership of this Deed, the Premises or any
interest therein or receipt of any rents (excluding income taxes of the
Grantee); (ii) any accident, injury to or death of persons or loss of or damage
to property occurring in, on or about the Premises 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 Premises or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (iv) any failure on the part of the Ground
Lessor or Owner to perform or comply with any of the terms of this Deed; or (v)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Premises or any part thereof. The indemnity provided
for by this Article 17 shall not apply to the liability of Grantee under this
Deed, if any, to Owner or the Ground Lessor. Any amounts payable to the Grantee
by reason of the application of this Article shall become immediately due and
payable and shall bear interest at the Default Rate, from the date loss or
damage is sustained by Grantee until paid, and the same shall be added to the
indebtedness secured hereby and be secured by this Deed. The obligations of the
Grantors under this Article shall survive any termination or satisfaction of
this Deed.
18. NO CREDITS
The Grantors shall not have, nor will they claim nor demand nor be
entitled to receive, any credit or credits against the principal or interest or
other indebtedness secured hereby provided, and the same shall be paid without
abatement of or deduction from, and without counterclaim or set-off against such
principal, interest and other indebtedness for any reason, including, without
limitation, for so much of the taxes assessed
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against the Mortgaged Premises as is equal to the tax rate applied to the amount
due on this Deed or any part thereof, and no deduction shall otherwise be made
or claimed from the taxable value of the Mortgaged Premises, or any part
thereof, by reason of the indebtedness secured hereby or by this Deed.
19. DEFAULT AND FORECLOSURE
19.1 If an Event of Default shall occur and be continuing, Grantee
may, at Grantee's election and by and through Grantee or otherwise, exercise any
or all of the following rights, remedies and recourse or any of the remedies set
forth in the other Financing Documents:
19.1.1 Declare the Note Principal Amount (or, if prior to the
Deferred Interest Commencement Date, the Original Note Principal Amount and
Secured Note Accreted Amount), Deferred Interest, if any, Secured Note
Additional Interest, if any, Default Interest, if any, the accrued interest and
any other accrued but unpaid portion of the indebtedness and the Secured Note
Yield Maintenance Amount to be immediately due and payable, without further
notice, presentment, protest, demand or action of any nature whatsoever (each of
which hereby is expressly waived by Grantors), whereupon the same shall become
immediately due and payable, time being of the essence in this Deed, and no
omission on the part of Grantee to exercise such option when entitled so to do
shall be considered as a waiver of such right.
19.1.2 Demand that the Grantors shall forthwith surrender to
Grantee the actual possession of the Mortgaged Premises, and/or terminate the
license granted Grantors in Section 11.1 hereof to receive the rents, issues and
profits generated by the Mortgaged Premises and, to the extent permitted by law,
enter and take possession of all of the Mortgaged Premises without the
appointment of a receiver, or make an application therefor, and exclude Grantors
and its agents and employees wholly therefrom, and have joint (and several)
access with Grantors to the books, papers and accounts of Grantors.
If the Grantors shall for any reason fail to surrender or deliver the
Mortgaged Premises or any part thereof after such demand by Grantee, Grantee may
obtain a judgment or decree conferring upon Grantee the right to immediate
possession or requiring the Grantors to deliver immediate possession of the
Mortgaged Premises to Grantee, and the Grantors hereby specifically covenant and
agree that Grantors will not oppose, contest or otherwise hinder or delay
Grantee in any action or proceeding by Grantee to obtain such judgment or
decree. The Grantors will pay to Grantee, upon demand, all expenses of obtaining
such judgment or decree, including reasonable compensation to Grantee, its
attorneys and agents and all such expenses and compensation
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shall, until paid, become part of the Indebtedness and shall be secured by this
Deed.
Upon every such entering upon or taking of possession, Grantee may
hold, store, use, operate, manage and control the Mortgaged Premises and conduct
the business thereof, and, from time to time (a) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterment and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (b) insure or keep the Mortgaged
Premises insured; (c) manage and operate the Mortgaged Premises and exercise all
the rights and powers of the Grantors to the same extent as Grantors could in
their own names or otherwise act with respect to the same; and (d) enter
into any and all agreements with respect to the exercise by others of any of the
powers herein granted to Grantee, all as Grantee from time to time may determine
to be in its best interest. Whether or not Grantee has obtained possession of
the Mortgaged Premises, upon the termination of Grantors' license to receive the
Rents, the Grantee may collect, xxx for and receive all of the Rents and other
issues, profits and revenues from the Mortgaged Premises, including those past
due as well as those accruing thereafter. Anything in this Deed to the contrary
notwithstanding, Grantee shall not be obligated to discharge or perform the
duties of the landlord to any Space Tenant or incur any liability as the result
of any exercise by Grantee of its rights under this Deed, nor shall Grantee be
responsible or liable for waste committed on the Premises by any tenant or other
person or for any dangerous or defective condition of the Premises or for any
negligence in the management, upkeep, repair or control of the Premises
resulting in the loss, injury or death to any tenant, licensee, employee or
stranger, and Grantee shall be liable to account only for the Rents actually
received by Grantee.
Whether or not Grantee takes possession of the Mortgaged Premises,
Grantee may make, modify, enforce, cancel or accept surrender of any Space
Lease, remove and evict any Space Tenant, increase or decrease Rents under any
Space Lease, appear in and defend any action or proceeding purporting to affect
the Mortgaged Premises, and perform and discharge each and every obligation,
covenant and agreement of Grantors contained in any Space Lease. Neither the
entering upon and taking possession of the Mortgaged Premises, nor the
collection of any Rents and the application thereof as aforesaid, shall cure or
waive any Event of Default theretofore or thereafter occurring, or affect any
notice of an Event of Default hereunder or invalidate any act done pursuant to
any such notice. Grantee shall not be liable to Grantors, anyone claiming under
or through Grantors or any one having an interest in the Mortgaged Premises by
reason of anything done or left undone by Grantee hereunder. Nothing contained
in this Subsection 19.1.2 shall require Grantee to incur any expense or do any
act. If the Rents are not sufficient to
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meet the costs of taking control of and managing the Mortgaged Premises and/or
collecting the Rents, any funds expended by Grantee for such purposes shall
become indebtedness of Grantors to Grantee secured by this Deed. Such amounts,
together with interest at the Default Rate and attorneys' fees and expenses if
applicable shall be immediately due and payable. Notwithstanding Grantee's
continuance in possession or receipt and application of Rents, Grantee shall be
entitled to exercise every right provided for in this Deed or by law upon or
after the occurrence of an Event of Default. Any of the actions referred to in
this Subsection 19.1.2 may be taken by Grantee at such time as Grantee is so
entitled, without regard to the adequacy of any security for the indebtedness
hereby secured. For the purpose of carrying out the provisions of this
paragraph, Grantors hereby constitute and appoint Grantee the true and lawful
attorney-in-fact of Grantors to do and perform, from time to time, any and all
actions necessary and incidental to such purpose and do by these presents,
ratify and confirm any and all actions of said attorney in fact in the Premises.
In the event that all such interest, deposits and principal
installments and other sums due under any of the terms, covenants, conditions
and agreements of this Deed shall be paid and all Events of Default shall be
cured, and as a result thereof Grantee surrenders possession of the Mortgaged
Premises to Grantors, the same right herein given to Grantee shall continue to
exist if any subsequent Events of Default shall occur.
19.1.3 Sell the Mortgaged Premises or any part thereof at one
or more public sales before the door of the courthouse of Xxxxxx County,
Georgia, without notice except as required or set forth herein (as the Mortgaged
Premises is not residential as to Grantors), to the highest bidder for cash, in
order to pay the indebtedness, and insurance premiums, liens, assessments, taxes
and charges, including utility charges, if any, with accrued interest thereon,
and all expenses of sale and of all proceedings in connection therewith,
including attorney's fees, after advertising the time, place and terms of sale
once a week for four (4) weeks immediately preceding such sale (but without
regard to the number of days) in a newspaper in which Sheriff's sales are
advertised in said county. At any such public sale, Grantee may execute and
deliver to the purchaser a conveyance of the Mortgaged Premises or any part of
the Mortgaged Premises in fee simple, with full warranties of title and to this
end, Grantors hereby constitute and appoint Grantee the agent and
attorney-in-fact of the Grantors to make such sale and conveyance, and thereby
to divest the Grantors of all right, title and equity that the Grantors may have
in and to the Mortgaged Premises and to vest the same in the purchaser or
purchasers at such sale or sales, and all the acts and doings of said agent and
attorney-in-fact are hereby ratified and confirmed and any recitals in said
conveyance or conveyances as to facts essential to a valid sale shall be binding
upon the Grantors. The aforesaid
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power of sale and agency hereby granted are coupled with an interest and
are irrevocable by death or otherwise, are granted as cumulative of the other
remedies provided hereby or by law for collection of the indebtedness and shall
not be exhausted by one exercise thereof but may be exercised until full payment
of all of the indebtedness. In the event of any sale under this Deed by virtue
of the exercise of the powers herein granted, or pursuant to any order in any
judicial proceedings or otherwise, the Mortgaged Premises may be sold as an
entirety or in separate parcels and in such manner or order as Grantee in its
sole discretion may elect, and if Grantee so elects, Crantee may sell the
collateral covered by this Deed at one or more separate sales in any manner
permitted by the Uniform Commercial Code of the State of Georgia, and one or
more exercises of the powers herein granted shall not extinguish nor exhaust
such posers, until the entire Mortgaged Premises is sold or the indebtedness is
paid in full. If the indebtedness is now or hereafter further secured by any
chattel mortgages, pledges, contracts or guaranty, assignments of lease or other
security instruments, Grantee may at its option exhaust the remedies granted
under any of said security instruments either concurrently or independently, and
in such order as Grantee may determine.
Grantee, may, in addition to and not in abrogation of the rights
covered under the immediately preceding subparagraph, or elsewhere in this
Article 19, either with or without entry or taking possession as herein provided
or otherwise, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (a) to enforce payment of the Secured Note, the
Guaranties or the performance of any term, covenant, condition or agreement of
this Deed or any other right and (b) to pursue any other remedy available to it,
all as Grantee in its sole discretion may elect.
19.1.4 Upon application to a court of competent jurisdiction
Grantee shall be entitled as a matter of strict right and without notice to
Grantors or regard to the adequacy of the Mortgaged Premises for the repayment
of the indebtedness, or the solvency of any Person liable for payment thereof,
for appointment of a receiver of the Mortgaged Premises and the Grantors do
hereby irrevocably consent to such appointment. Any such receiver shall have all
the usual powers and duties of receivers in similar cases as permitted under the
laws of the State of Georgia, including the full power to rent, maintain and
otherwise operate the Mortgaged Premises upon such terms as may be approved by
the court, and shall apply such Rents in accordance with the provisions of
Section 19.9 hereinbelow. Grantors shall pay to Grantee upon demand all
expenses, including receiver's fees, attorney's fees and expenses, costs and
agent's compensation, incurred pursuant to the provisions of this Section, and
any such amounts paid by Grantee shall be added to the indebtedness and shall be
secured by this Deed.
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19.1.5 Exercise any and all other rights and remedies granted
under this Deed or now or hereafter existing in equity, at law, by virtue of
statute or otherwise.
19.1.6 Pay, perform or observe any term, covenant or
condition of this Deed not paid, performed or observed by Ground Lessor and/or
the Owner and all payments made or costs or expenses incurred by Grantee in
connection therewith shall be secured hereby and shall be, without demand,
immediately repaid by the Grantors to Grantee with interest thereon at the
Default Rate. Grantee shall be the sole judge of the necessity for any such
actions and of the amounts to be paid. Grantee is hereby empowered to enter and
to authorize others to enter upon the Mortgaged Premises or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming liable to Grantors or any person in
possession holding under the Grantors.
19.1.7 Exercise any and all other rights and remedies granted
under any other Financing Document, in such order and priority as the Grantee
shall determine in its sole discretion.
19.2 The Mortgaged Premises may be sold in one or more parcels and
in such manner and order as the Grantee, in its sole discretion, may elect, it
being expressly understood and agreed that the right of sale arising out of any
Event of Default shall not be exhausted by any one or more sales.
19.3 The Grantee shall have all rights, remedies and recourses
granted in the Deed and available at law or equity (including specifically those
granted by the Uniform Commercial Code) and same (a) shall be cumulative and
concurrent, (b) may be pursued separately, successively or concurrently against
Grantors, or others obligated under the Financing Documents, or against the
Mortgaged Premises, or against any one or more of them, at the sole discretion
of the Grantee, (c) may be exercised as often as occasion therefor shall arise,
it being agreed by Grantors that the exercise or failure to exercise any of same
shall in no event be construed as a waiver or release thereof or of any other
right, remedy or recourse and (d) are intended to be, and shall be,
nonexclusive. Moreover, the Grantee may not be required to proceed hereunder
before proceeding against any other security and shall not be required to
proceed against any other security before proceeding hereunder, and shall not be
precluded from proceeding against any or all of any security in any order or at
the same time. Notice is hereby given to all Persons now or hereafter claiming
an interest in the Mortgaged Premises subordinate and inferior to this Deed that
such Persons shall have no right or claim of right to cause a marshalling of the
Grantors' assets or property before proceeding against the security afforded by
this Deed or to
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proceed or to enforce any of the remedies afforded the Grantee hereunder or by
law in any order or at the same time or at all.
19.4 Neither Owner nor any other Person hereafter obligated for
payment of all or any part of the indebtedness shall be relieved of such
obligation by reason of (a) the failure of Grantee to comply with any request of
Owner or Ground Lessor, or of any other person so obligated, to foreclose this
Deed or to enforce any provisions of the Financing Documents, (b) the release,
regardless of consideration, of the Mortgaged Premises or any other collateral
security for the indebtedness or the addition of any other property to the
Mortgaged Premises of any other collateral security for the indebtedness, (c)
any agreement or stipulations between any subsequent owner of the Mortgaged
Premises and the Grantee extending, renewing, rearranging or in any other way
modifying the terms of the Financing Documents or any other collateral security
for the indebtedness without first having obtained the consent of, given notice
to or paid any consideration to Grantors, or such other person, and in such
event Grantors and all such other persons shall continue to be liable to make
payment according to the terms of any such extension or modification agreement
unless expressly released and discharged in writing by the Grantee, or (d) by
any other act or occurrence save and except the complete payment of the
indebtedness.
19.5 The Grantee may release, regardless of consideration, any
part of the Mortgaged Premises or any other collateral security for the
indebtedness without, as to the remainder, in any way impairing, affecting,
subordinating or releasing the conveyance, lien or security interests created in
or evidenced by this Deed of its stature as a first priority security deed, lien
or security interest in and to the Mortgaged Premises. For payment of the
indebtedness, the Grantee may resort to any other security therefor held by
Grantee in such order and manner as the Grantee may elect. The Grantee may, to
the full extent that it may lawfully do so, pursue any one or more remedies
permitted hereunder or under applicable law to enforce the provisions of this
Deed, to collect the indebtedness secured hereby or to realize the security
given therefor at the same time or at different time without in any way
impairing or waiving their right to pursue any other remedies so provided.
19.6 Without notice to or consent of the Grantors and without
impairment of the lien and rights created by this Deed, the Grantee may accept
(but Grantors shall not be obligated to furnish) from the Ground Lessor, Owner
or from any other Person or Persons, additional security for the Secured Note.
Neither the giving of this Deed nor the acceptance of any such additional
security shall prevent the Grantee from resorting to such additional security,
and/or to the security created by this Deed, in any order, separately or
together, without affecting the Grantee's lien and rights under this Deed.
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19.7 Grantors agree, to the full extant permitted by law, that in
case of an Event of Default hereunder, neither Owner nor Ground Lessor nor
anyone claiming through or under Crantor will set up, claln or seek to take
advantage of any moratorium, reinstatement, forbearance, appraisement,
valuation, stay, extension, homestead, exemption or redemption laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure
of this Deed, or the absolute sale of the Mortgaged Premises, the delivery of
possession thereof immediately after such sale to the purchaser at such sale, or
the exercise of any other remedy hereunder, and the Grantors, for themselves and
all who may at any time claim through or under them, hereby waive to the full
extent that Grantors may lawfully so do, the benefit of all such laws, and any
and all right to have assets subject to the security interest of this Deed
marshalled upon any foreclosure or sale in inverse order of alienation.
19.8 In case the Grantee shall bave proceeded to invoke or enforce
any right, remedy or recourse permitted under this Deed and the same shall have
been determined adversely to the Grantee, or the Grantee shall thereafter elect
to discontinue or abandon same for any reason, the Grantee shall have the
unqualified right to do so and, in such an event, (a) Grantors and the Grantee
shall be restored to their former positions with respect to the indebtedness,
this Deed, the Mortgaged Premises and otherwise, (b) all rights, remedies,
recourses and powers of the Grantee shall continue as if same had never been
invoked, (c) each and every Event of Default declared or occurring prior or
subsequent to such withdrawal, discontinuance or abandonment shall and shall be
deemed to be a continuing Event of Default and (d) neither this Deed, nor the
Secured Note nor the indebtedness, nor any other Financing Document, shall be or
shall be deemed to have been reinstated or otherwise affected by such
withdrawal, discontinuance or abandonment; and Grantors hereby expressly waive
the benefit of any statute or rule of law now provided, or which may hereafter
be provided, which would produce a result contrary to or in conflict with the
above.
19.9 The proceeds of any foreclosure or sale of, and the Rents and
other amounts generated by the holding, leasing, operation or other use of, the
Mortgaged Premises or any part thereof together with any other moneys at the
time held by the Grantee, shall be applied as provided in Section 506 of the
Indenture.
19.10 Grantee, at its option, is authorized to foreclose this Deed
subject to the rights of any Space Tenants of the Mortgaged Premises, and the
failure to make any such Space Tenants parties to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted to be by
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Grantor, a defense to any proceedings instituted by Grantee to collect the
indebtedness.
19.11 Upon any foreclosure sale or sales of all or any portion of
the Mortgaged Premises under the power herein granted, Grantee may bid for and
purchase the Mortgaged Premises and shall be entitled to apply all or any part
of the indebtedness as a credit to the purchase price.
19.12 In the event of any such foreclosure sale or sales under the
power herein granted, Owner and Ground Lessor shall be deemed tenants holding
over and shall forthwith deliver possession to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law applicable
to tenants holding over.
19.13 Grantee shall have the power to institute and maintain such
suits and proceedings as it may deem expedient (a) to prevent any impairment of
the Mortgaged Premises by any acts which may be unlawful or constitute an Event
of Default under this Deed, (b) to preserve or protect its interest in the
Mortgaged Premises and in the Space Leases and Rents arising therefrom and (c)
to restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be prejudicial to the interest of
Grantee.
19.14 In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Ground Lessor or Owner, their creditors or their property, Grantee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Grantee allowed in such proceedings for the entire amount of the indebtedness at
the date of the institution of such proceedings and for any additional amount of
the indebtedness which may become due and payable after such date.
19.15 Waiver of Grantors' Rights. BY EXECUTION OF THIS DEED AND BY
INITIALING THIS SECTION 19.15, GRANTORS EXPRESSLY: (a) ACKNOWLEDGE THE RIGHT OF
GRANTEE TO ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE SECURED NOTE AND ANY
OTHER INDEBTEDNESS AND THE POWER OF ATTORNEY GIVEN HEREIN TO GRANTEE TO SELL THE
MORTGAGED PREMISES BY NON-JUDICIAL FORECLOSURE UPON AN EVENT OF DEFAULT
HEREUNDER WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH
NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF
THIS DEED: (b) WAIVE ANY AND ALL RIGHTS WHICH GRANTORS MAY HAVE UNDER THE
CONSTITUTION OF THE UNITED STATES OF AMERICA (INCLUDING, WITHOUT LIMITATION, THE
FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS
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FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, (i) TO NOTICE
AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY GRANTEE OF ANY RIGHT OR REMEDY
HEREIN PROVIDED TO GRANTEE, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY
REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS DEED AND (ii) CONCERNING THE
RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION ANY MORATORIUM, REINSTATEMENT,
MARSHALLING, FORBEARANCE, APPRAISEMENT, VALUATION, STAY, EXTENSION, HOMESTEAD,
EXEMPTION OR REDEMPTION LAWS: (c) ACKNOWLEDGE THAT GRANTORS HAVE READ THIS DEED
AND ANY AND ALL QUESTIONS OF GRANTORS REGARDING THE LEGAL EFFECT OF THIS DEED
AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTORS, AND GRANTORS HAVE
CONSULTED WITH COUNSEL OF GRANTORS' CHOICE AND HAVE BEEN APPRISED OF AND
COUNSELED WITH RESPECT TO POSSIBLE ALTERNATIVE RIGHTS OF GRANTORS PRIOR TO
EXECUTING THIS DEED AND INITIALLING THIS SECTION 19.15; AND (d) ACKNOWLEDGE THAT
ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTORS' HAVE BEEN MADE KNOWINGLY,
VOLUNTARILY, INTELLIGENTLY, INTENTIONALLY AND WILLINGLY BY GRANTORS AS PART OF A
BARGAINED FOR LOAN TRANSACTION AND THAT THIS DEED IS VALID AND ENFORCEABLE BY
GRANTEE AGAINST GRANTORS IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
INITIALLED BY GRANTORS:
/s/_____________________
/s/_____________________
20. SEVERANCE; RELEASE
20.1 Severance. This Deed and the Secured Note may at any time, at
the sole election of the Grantee, be split or divided into two notes and two
deeds constituting liens on the Mortgaged Premises or portions thereof in such
principal amounts as may be agreed upon, but in no event to exceed the aggregate
principal amount evidenced by the Note and secured, or which under any
contingency may be secured, by this Deed. The Grantors, upon request of the
Grantee, shall execute, acknowledge and deliver to the Grantee and/or its
designee or designees such documents as may be necessary to effectuate the
foregoing, including such supplemental or substitute deeds to secure debt,
assignments of rents and leases and security agreements and supplemental or
substitute notes as the Grantee may require. The Grantors shall pay all
reasonable expenses in connection with the making and recording of such
documents, including, without limitation, recording fees, mortgage recording
taxes, if any, note intangible tax, if any, the fees, expenses and disbursements
of the Grantee's attorneys, fees and expenses relating to examination of title
and title insurance premiums, if any.
20.2 Release. If (a) the Owner (or such other Person as may be
specified in the applicable provisions of the Indenture) shall have elected to
effectuate the portion of the Property Release described in Section 1305(1) of
the Indenture and shall have so elected in accordance with any of the terms of
the Indenture, or (b) if the provisions of this Article 20 shall otherwise be
expressly applicable pursuant to any of the
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other provisions of the Financing Documents, then in any such event the Grantee
shall,
(i) deliver to the Owner a duly executed satisfaction of this
Deed and any of the other recorded Real Estate Security Documents, in recordable
form pursuant to which this Deed and such other instruments shall be discharged
or recorded together with the original of the Secured Note marked cancelled; and
(ii) deliver to the Owner such Uniform Commercial Code
termination statements and other instruments as shall be reasonably requested by
the Grantors, to terminate the liens and security interests created hereunder or
under the Security Agreement, Management Agreement Assignment, Bank Accounts
Assignment, or pursuant hereto or thereto, and release to the Grantors or any of
its designees any other collateral held by the Grantee hereunder or thereunder,
provided, however, that nothing in this Article 20 shall be deemed to require
the Collateral Trustee to release any collateral held by it pursuant to Articles
Thirteen, Fourteen or Fifteen of the Indenture or under the Principal Guaranty
or the Interest/Principal Guaranty or any funds or property held pursuant to
Article Four of the Indenture.
Any release, satisfaction, assignment, endorsement, termination
statement or other instrument executed by the Grantee pursuant to (i) above
shall be without recourse, representation or warranty.
21. NO WAIVER
21.1 No failure or delay or omission on the part of the Grantee in
exercising any power or right hereunder shall operate as a waiver thereof or a
waiver of any other term, provision or condition hereof, nor shall any single or
partial exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power hereunder; and all
rights and remedies of the Grantee hereunder are cumulative and shall not be
deemed exclusive of any rights or remedies provided by law.
21.2 A consent or waiver in one or more instances of any of the
terms, covenants, conditions or provisions hereof or of the indebtedness secured
hereby shall apply to the particular instance or instances and at the particular
time or times only, and no such consent or waiver shall be deemed a continuing
waiver, but all of the terms, covenants and other provisions of this Deed and of
the indebtedness secured hereby shall survive and continue to remain in full
force and effect; and no consent or waiver shall be effective unless in writing,
dated and signed by the Grantee.
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22. MODIFICATION
No change, amendment, modification, cancellation or discharge hereof,
or any part hereof, shall be valid unless in writing, dated and signed by the
party against whom such change, amendment, modification, cancellation or
discharge is sought to be charged.
23. NOTICES
Any notice, direction, request or demand (each a "Notice") which by any
provision of this Deed is required or permitted to be given or served by the
Grantee to or on the Owner may be given or served only if in writing and either
delivered personally with receipt acknowledged, by courier with receipt
acknowledged, or mailed by registered or certified mail, postage prepaid, return
receipt requested addressed to the Owner at 00000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, 00000, Attention: Legal Department/Hotel Operations with a copy to
Xxxx X. Xxxxxxx, Xx., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: Legal Department and a copy to the Guarantor at its address set forth
in the Guaranties or as otherwise filed with the Collateral Trustee. In
addition, the Grantee shall give or serve copies of all notices of default or
Event of Default hereunder (in the manner hereinabove specified) to any
Subordinate Lenders, but in no event shall the Grantee be required to give
notices of default or Event of Default to more than three (3) Subordinate
Lenders. Any Notice which by any provision of the Deed is required or permitted
to be given or served by the Grantee to or on the Ground Lessor may be given or
served only if in writing and either delivered personally with receipt
acknowledged, by courier with receipt acknowledged, or mailed by registered or
certified mail, postage prepaid, return receipt requested addressed to the
Ground Lessor at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal
Department/Hotel Operations. Any such Notice or other document shall be deemed
given or served as of the date of the delivery to the Owner and/or the Ground
Lessor, as the case may be, (and the copies to Portman and the Guarantor as
required above), and, if such Notice is a notice of default, then also to the
Subordinate Lenders, except that if a Notice or other document is refused
delivery or cannot be delivered because of a changed address of which no Notice
was given, such Notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver. Any Notice by the Owner or
the Ground Lessor to or upon the Grantee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made to the Issuer,
and, upon the assignment of this Deed to the Collateral Trustee on the date
hereof, to the Collateral Trustee, in both cases as provided in the Indenture.
All Notices and documents delivered to the Grantee pursuant to this Deed shall
be simultaneously delivered to the Administrative Services Representative, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx;
provided, however, any
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failure to so deliver any Notice or other document shall not be a default
hereunder.
24. FURTHER ASSURANCES
24.1 The Grantors will, at any time and from time to time after
the execution and delivery of this Deed, promptly upon request, execute and
deliver such further deeds to secure debt, mortgages, instruments of further
assurances and other documents and do such further acts and things as the
Grantee may reasonably request in order to evidence further and keep valid and
effective the lien, security title and security interest of this Deed and
otherwise to effect fully the purposes of this Deed.
24.2 The Grantors shall execute any and all such documents,
including Financing Statements pursuant to the Uniform Commercial Code of the
State of Georgia, as the Grantee may request, to preserve and maintain the
priority of the title granted hereby to property which may reasonably be deemed
personal property or fixtures, and shall pay to the Grantee on demand any
expenses reasonably incurred by the Grantee in connection with the preparation,
execution and filing of any such documents. The Grantors hereby authorize and
empower the Grantee to execute and file, on the Grantors' behalf, all Financing
Statements, and refilings and continuations thereof as the Grantee reasonably
deems necessary or advisable to create, preserve and protect said title. This
instrument is hereby made and declared to be a security agreement encumbering
each and every item of personal property included herein as a part of the
Mortgaged Premises, in compliance with the provisions of the Uniform Commercial
Code as enacted in the State of Georgia (the "Code"). The remedies for any
violation of the covenants, terms and conditions of the security agreement
contained in this instrument shall be (a) as prescribed herein, or (b) as
prescribed by general law, or (c) as prescribed by the specific statutory
consequences now or hereinafter enacted and specified in the Code, all at the
Grantee's election and the discretion of the Grantee. The Grantors and the
Grantee agree that everything used in connection with the production of income
from the Premises or adopted for use therein or which is described or reflected
in this instrument, is, and all times and for all purposes and in all
proceedings, legal and equitable, shall be, regarded as part of the real estate
conveyed hereby and that the filing of any financing statement or statements in
the records normally having to do with personal property shall not in any way
affect such agreement. Similarly, the mention of any such financing statement of
statements of the rights in and to (i) the proceeds of any insurance policy, or
(ii) any award in eminent domain proeeedings for a Taking or for a loss of value
or (iii) the Grantors' interest as lessor in any present or future leases or
rights to income growing out of the use and/or occupancy of
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the Premises, whether pursuant to a lease or otherwise, shall not in any way
limit any of the rights of the Grantee as determined by this instrument or
affect the priority of the Grantee's security interest granted hereby or by any
other recorded document, it being understood and agreed that such mention in
such financing statement or statements is solely for the protection of the
Grantee in the event any court shall at any time hold, with respect thereto,
that notice of Grantee's priority of interest, to be effective against all
persons or against a particular class of persons, must be filed in the Code
records. The names of "Debtors" and "Secured Party" (which are the Grantors and
the Grantee, respectively), the address of the Debtors and the Secured Party
(which is also the address from which information concerning the security
interest created hereby may be obtained from Secured Party) are set forth in
Exhibit C, attached hereto. The Grantors agree to furnish the Grantee with
notice of any changes in either of their (A) name, identity or corporate
structure, (a) residence or principal place of business, or (C) mailing address
within ten (10) days after the effective date of any such change.
25. GROUND LEASE; JOINDER OF GROUND LESSOR
25.1 The Ground Lessor, being the owner in fee simple of the Land,
joins in this Deed for the purpose of subjecting and subordinating its fee
estate in and to the Land and its rights, title and interest as landlord under
the Ground Lease to the security title of this Deed but, by so doing, does not
intend to, and shall not, unless specifically provided, assume any personal
liability for the compliance, observance or performance of any of the covenants
or conditions of this Deed or for the payment of the Secured Note or of any
other sums required to be paid hereunder. However, in the event of the
termination of the leasehold estate for any reason whatsoever, the ground Lessor
shall be deemed to have made the covenants of the Owner set forth herein and the
word "Owner" shall be deemed to refer to the Ground Lessor whenever the sense of
this Deed as it affects the Ground Lessor so requires. The Ground Lessor agrees
that this Deed shall constitute a "Fee Mortgage" under the Ground Lease,
notwithstanding the provisions of Section 6.06 of the Ground Lease or otherwise.
25.2 The Ground Lessor and the Owner together covenant with the
Grantee that, in any foreclosure action or proceeding to exercise the power of
sale under this Deed, the Grantee may proceed against either the Land or the
leasehold estate therein created by the Ground Lease, or both, and the Land
and/or such leasehold estate may be sold to one or more purchasers at the sale.
The Owner and the Ground Lessor for themselves and all who may claim under them,
hereby waive, to the extent that they lawfully may, all right to have the
estates covered by this Deed marshalled upon any sale pursuant to the power of
sale granted hereunder.
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25.3 The Grantors agree that all of the terms, covenants and
conditions of the Ground Lease shall be subject and subordinate to the terms,
covenants and conditions of this Deed including, without limitation, the
provisions with respect to casualty, Takings, assignment and subletting. Ground
Lessor furthermore expressly subordinates any and all claims which Ground
Lessor has or may have in and to the leasehold estate under the Ground Lease or
against owner by reason of any default by Owner under the Ground Lease or
otherwise, to the rights and claims of the Grantee hereunder or under the
Financing Documents. Furthermore, notwithstanding the provisions of Article 27
herein, from and after the occurrence and during the continuance of an Event of
Default, the Ground Lessor shall not, without the prior written consent of the
Grantee, in each instance, ask, demand, seek, take or receive, directly or
indirectly from the Owner, in cash or other property, by set-off or in any other
manner, payment of any Ground Rent and the Owner shall not make any such payment
as aforesaid to the Ground Lessor.
25.4 The Owner will pay all Ground Rent and other charges required
under the Ground Lease as and when the same are due, and the Owner and Ground
Lessor will keep, observe and perform, or cause to be kept, observed and
performed, all of the other terms, covenants, provisions and agreements of the
Ground Lease on the part of the lessee or lessor, respectively, thereunder to be
kept, observed and performed, and will not in any manner, cancel, terminate or
surrender, or permit any cancellation, termination or surrender of the Ground
Lease, in whole or in part, or modify, amend or permit any modification or
amendment either orally or in writing of any of the terms thereof in any
material respect, and any attempt on the part of the Owner or the Grantee to
exercise any such right shall be null and void. Prior to any modification of the
Ground Lease, the Owner shall deliver to the Grantee an Officers' Certificate
certifying that the modification (i) does not modify the Ground Lease in any
material respect, (ii) does not adversely affect in any material respect the
rights of Grantee and (iii) does not affect the provisions of the Ground Lease
providing that there shall be no merger of the fee and leasehold interests under
the Ground Lease.
25.5 The Owner will do, or cause to be done, all things necessary
to preserve and keep unimpaired the rights of the Owner as lessee under the
Ground Lease, and to prevent any default under the Ground Lease, or any
termination, surrender, cancellation, forfeiture or impairment thereof, and in
the event of the failure of the Owner to make any payment required to be made by
the Owner pursuant to the provisions of the Ground Lease or to keep, observe or
perform, or cause to be kept, observed or performed, any of the terms,
covenants, provisions or agreements of the Ground Lease, the Owner agrees that
the Grantee may (but shall not be obligated to) take any action on behalf of the
Owner
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to make or cause to be kept, observed or performed any such terms, covenants,
provisions or agreements and to enter upon the Premises and take all such action
as may be necessary therefor, to the end that the rights of the owner in and to
the Ground Lease shall be kept unimpaired and free from default, and all money
so expended by the Grantee, with interest thereon at the Default Rate from the
date of each such expenditure, shall be added to the indebtedness and shall be
paid by the Owner to the Grantee promptly upon demand by the Grantee. The Ground
Lessor hereby agrees to accept from the Grantee any performance of any term,
condition, covenant or obligation by the Grantee on behalf of the Owner as
performance by the Owner, but the Ground Lessor agrees that in no event shall
the Grantee be obligated to render any such performance. In such event the
Grantee shall have, in addition to any other remedy of the Grantee, the same
rights and remedies in the event of non-payment of any such sum by the Owner as
in the case of a default in the payment of any sums due under the Secured Note.
25.6 The Owner will enforce the obligations of the Ground Lessor
to the end that the Owner may enjoy all of the rights granted to it under the
Ground Lease, and the Owner and the Ground Lessor will promptly notify the
Grantee in writing of any default by the Ground Lessor or by the Owner in the
performance or observance of any of the terms, covenants or conditions on the
part of the Ground Lessor or the Owner, as the case may be, to be performed or
observed under the Ground Lease. If, pursuant to the Ground Lease, the Ground
Lessor shall deliver to the Grantee a copy of any notice of default given to the
Owner, such notice shall constitute full authority and protection to the Grantee
for any action taken or omitted to be taken by the Grantee in good faith in
reliance thereon.
25.7 If any action or proceeding shall be instituted to evict the
Owner or to recover possession of the Premises or for any other purpose
affecting the Ground Lease or this Deed, the Owner will, immediately upon
service thereof on or to the Owner, deliver to the Grantee a true copy of each
petition, summons, complaint, notice of motion, order to show cause and of all
other provisions, pleadings, and papers, however designated, served in any such
action or proceeding.
25.8 The Owner and Ground Lessor covenant and agree that unless
the Grantee shall otherwise expressly consent in writing, the fee title to the
Land and any other property demised by the Ground Lease and the leasehold estate
granted thereunder shall not merge, but shall always remain separate and
distinct, notwithstanding the union of said estates either in the Owner, the
Ground Lessor, or a third party by purchase or otherwise.
25.9 Upon the foreclosure of the security title granted by this
Deed pursuant to the provisions hereof or
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sale of the Premises pursuant to the power of sale granted hereunder, any Space
Leases then existing and affecting all or any portion of the Premises shall not
be terminated or destroyed by application of the doctrine of merger or as a
matter of law or as a result of such foreclosure or sale.
25.10 No release or forbearance of any of the Owner's obligations
under the Ground Lease, pursuant to the Ground Lease or otherwise, shall release
the Owner or the Ground Lessor from any obligations under this Deed, including
the Owner's obligation with respect to the payment of rent as provided for in
the Ground Lease and the performance of all of the terms, provisions, covenants,
conditions and agreements contained in the Ground Lease, to be kept, performed
and complied with by the tenant therein.
25.ll The Owner will give the Grantee prompt written notice of the
commencement of any arbitration or appraisal proceeding under or pursuant to the
provisions of the Ground Lease. The Grantee shall have the right to intervene
and participate in any such proceeding and the selection of an arbitrator and
the Owner shall confer with the Grantee to the extent which the Grantee deems
reasonably necessary for the protection of the Grantee. Upon the written request
of the Grantee, after default under the Ground Lease and after the expiration of
any applicable grace period, the Owner will exercise all rights of arbitration
conferred upon it by the Ground Lease.
25.12 The lien of this Deed shall attach to all of the Owner's
rights and remedies at any time arising under or pursuant to Subsection 365(h)
of the Bankruptcy Code, including, without limitation, all of the Owner's rights
to remain in possession of the Premises. Neither Owner nor the Ground Lessor
shall, without the Grantee's prior written consent, elect to treat the Ground
Lease as terminated under Subsection 365(h)(1) of the Bankruptcy Code, 11 U.S.C.
ss. 365(h)(1). Any such election made without the Grantee's consent shall be
void.
25.12.1 The Owner hereby unconditionally assigns, transfers
and sets over to the Grantee all of the Owner's claims and rights to the payment
of damages arising from any rejection of the Ground Lease by the Ground Lessor
or any other fee owner of the Premises under the Bankruptcy Code. The Grantee
shall have the right to proceed in its own name or in the name of the Owner or
the Ground Lessor in respect of any claim, suit, action or proceeding relating
to the rejection of the Ground Lease, including, without limitation, the right
to file and prosecute any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect to the lessor or any fee
owner under the Bankruptcy Code. Unless any Event of Default shall have occurred
and be continuing, the Owner shall be entitled to join with the Grantee in such
proceedings, provided, however, that in doing so the Owner shall
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take no actions which are adverse to the interests of the Grantee. This
assignment constitutes a present, irrevocable and unconditional assignment of
the foregoing claims, rights and remedies, and shall continue in effect until
all of the obligations secured by this Deed shall have been satisfied and
discharged in full. Any amounts received by the Grantee as damages arising out
of the rejection of the Ground Lease as aforesaid shall be applied first to all
costs and expenses of the Grantee (including, without limitation, attorneys'
fees) incurred in connection with the exercise of any of its rights or remedies
under this section. The Owner shall promptly make, execute, acknowledge and
deliver, in form and substance satisfactory to the Grantee, a UCC Financing
Statement (Form UCC-1) and all such additional instruments, agreements and other
documents, as may at any time hereafter be required by the Grantee to effectuate
and carry out the assignment made pursuant to this section.
25.12.2 If pursuant to Subsection 365(h)(2) of the Bankruptcy
Code, the Owner shall seek to offset against the rent reserved in the Ground
Lease the amount of any damages caused by the nonperformance by the Ground
Lessor or any fee owner of any of their obligations under the Ground Lease after
the rejection by the Ground Lessor or any fee owner of the Ground Lease under
the Bankruptcy Code, the Owner shall, prior to effecting such offset, notify the
Grantee of its intent to do so, setting forth the amounts proposed to be so
offset and the basis therefor. The Grantee shall have the right to object to all
or any part of such offset that, in the reasonable judgment of the Grantee,
would constitute a breach of the Ground Lease, and in the event of such
objection, the Owner shall not effect any offset of the amounts so objected to
by the Grantee. Neither Grantee's failure to object as aforesaid nor any
objection relating to such offset shall constitute an approval of any such
offset by the Grantee. The Owner shall pay and protect the Grantee and indemnify
and save the Grantee harmless from and against, any and all claims, demands,
actions, suits, proceedings, damages, losses, costs and expenses of every nature
whatsoever (including without limitation attorneys' fees and expenses) arising
from or relating to any offset by the Owner against the rent reserved in the
Ground Lease.
25.12.3 If any action, proceeding, motion or notice shall be
commenced or filed in respect of the Ground Lessor or any fee owner, the
Premises or the Ground Lease in connection with any case under the Bankruptcy
Code, the Grantee shall have the option, exercisable upon notice from the
Grantee to the Owner, to conduct and control any such litigation with counsel of
the Grantee's choice. The Grantee may proceed in its own name or in the name of
the Owner in connection with any such litigation, and the Owner agrees to
execute any and all powers, authorizations, consents or other documents required
by the Grantee in connection therewith. The Owner shall, upon demand, pay to the
Grantee all costs and expenses (including attorney's fees and expenses) paid or
incurred by the Grantee in
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connection with the prosecution or conduct of any such proceedings. Any such
costs or expenses not paid by the Owner as aforesaid shall be secured by the
lien of this Deed and shall be added to the principal amount of the indebtedness
secured hereby. Unless an Event of Default shall have occurred and be
continuing, the Owner shall be entitled to join with the Grantee in such
proceedings, provided, however, that in doing so the Owner shall take no actions
which are adverse to the interests of the Grantee. The Owner shall not commence
any action, suit, proceeding or case, or file any application or make any
motion, in respect of the Ground Lease in any such case under the Bankruptcy
Code without the prior written consent of the Grantee, which consent shall not
be unreasonably withheld or delayed.
25.12.4 The Owner shall, after obtaining knowledge thereof,
promptly notify the Grantee of any filing by or against the Ground Lessor or
other fee owner of a petition under the Bankruptcy Code. The Owner shall
promptly deliver to the Grantee following receipt, copies of any and all
notices, summonses, pleadings, applications and other documents received by the
Owner in connection with any such petition and any proceedings relating thereto.
25.12.5 If there shall be filed by or against the Owner a
petition under the Bankruptcy Code and the Owner, as lessee under the Ground
Lease, shall determine to reject the Ground Lease pursuant to Section 365(a) of
the Bankruptcy Code, the Owner shall give the Grantee not less than thirty
(30) days' prior notice of the date on which the Owner shall apply to the
Bankruptcy Court for authority to reject the Ground Lease. The Grantee shall
have the right, but not the obligation, to serve upon the Owner within such
thirty (30) days period a notice stating that the Grantee demands that the Owner
assume and assign the Ground Lease to the Grantee pursuant to Section 365 of the
Bankruptcy Code. If the Grantee shall serve upon the owner the notice described
in the preceding sentence, the Owner shall not seek to reject the Ground Lease
and shall comply with the demand provided for in the preceding sentence.
26. MISCELLANEOUS PROVISIONS
26.1 All sums which, by the terms of this Deed or any other Financing
Documents are payable by the Grantors to the Grantee shall, together with the
interest thereon provided for herein or in such other Financing Documents, be
secured by this Deed and added to and deemed part of the indebtedness secured
hereby whether or not the provision which obligates the Grantors to make any
such payment to the Grantee specifically so states.
26.2 Any interest provided to be paid to the Grantee in this Deed, or
any other Financing Document, whether or not such interest is on the principal
sum of such indebtedness,
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or on any other sum which is due under Section 26.1 hereof, shall constitute
part of the indebtedness secured hereby.
26.3 The assignment and security interest herein granted shall not
be deemed or construed to constitute Grantee as a trustee or trustees in
possession of the Mortgaged Premises, to obligate Grantee to lease the Mortgaged
Premises or attempt to do same, or to take any action, incur any expenses or
perform or discharge any obligation, duty or obligation whatsoever under the
Ground Lease, any of the Space Leases or otherwise.
26.4 By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Grantee pursuant to this Deed,
including (but not limited to) any Officers' Certificate, balance sheet,
statement of profit and loss or other financial statement, survey, appraisal or
insurance policy, Grantee shall in no event be deemed to have warranted,
consented to, or affirmed the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not be or constitute any warranty, consent
or affirmation with respect thereto by Grantee.
26.5 All obligations contained in this Deed are intended by the
parties to be, and shall be construed as, covenants running with the Mortgaged
Premises.
26.6 This Deed shall be governed by and construed according to the
laws of the State of Georgia, without giving effect to principles of conflicts
of law.
26.7 Non-Recourse.
26.7.1 Notwithstanding anything to the contrary in this Deed
or in any of the other Real Estate Security Documents, but subject to the
provisions of subparagraph 26.7.2 of this Subsection 26.7, by accepting this
Deed and the other Real Estate Security Documents, the Grantee agrees that (i)
Grantee's source of satisfaction of the indebtedness evidenced by the Secured
Note and/or secured by this Deed and Grantee's recourse with respect to the
breach of any covenants or other undertakings of the Grantors under this Deed or
the other Real Estate Security Documents (subject, however, to Grantee's right
to cure the Grantors' defaults in accordance with the provisions of the Real
Estate Security Documents, including, without limitation, Article 12 of this
Deed; provided, however, such limitation on recourse shall nevertheless apply to
the Grantors' obligations under the last sentence of Article 12 and comparable
provisions of the other Real Estate Security Documents) is limited to the
Mortgaged Premises, the rents, issues, profits therefrom and all other property
covered by this Deed, any other collateral or security for the Secured Note and
this Deed, and any other assets of the Owner and (ii) neither the Ground Lessor
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nor any of the partners (or constituent partners in such partners), officers,
directors or shareholders of the Grantors or any person comprising or
controlling the Grantors (collectively, the "Exculpated Parties") shall have any
personal liability for the payment of said indebtedness or for the performance
of any other covenant or other undertaking of the Grantors under any of the Real
Estate Security Documents, and the Grantee will not seek to enforce out of any
assets, other than the Mortgaged Premises and other collateral or security for
the Secured Note and this Deed, of the Ground Lessor or the Exculpated Parties,
any judgment for any sum of money which is or may be payable under the Secured
Note or under any of the other Real Estate Security Documents, or for any
deficiency remaining after foreclosure of the Deed or sale pursuant to the power
of sale herein, nor shall Grantee bring any action against Owner, Ground Lessor
or any of the Exculpated Parties seeking specific performance of any obligations
under any of the Real Estate Security Documents, unless and except as may be
necessary in order to fully foreclose or to otherwise realize upon the
collateral available to Grantee for the satisfaction of the indebtedness secured
hereby.
26.7.2 (1) Nothing herein contained shall be deemed to be a
release, waiver, discharge or impairment of the Secured Note, this Deed or any
other collateral or security given or to be given to secure the Secured Note or
otherwise in connection therewith or herewith, or shall preclude the Grantee
from foreclosing the Deed or exercising its power of sale in case of any default
hereunder or under the Real Estate Security Documents, or from enforcing any of
its rights or remedies hereunder or under the Secured Note, except as set forth
in this Section 26.7, including the appointment of a receiver or putting into
effect the assignment of said rents, issues, or profits contained in this Deed
or any separate assignment of rents, or from obtaining injunctive relief under
the Real Estate Security Documents or from enforcing any of its rights with
respect to any other security or collateral.
(2) Furthermore, nothing herein contained shall be
taken to prevent recourse to and the enforcement (i) against the Issuer of its
obligations to the extent provided for in the Indenture or (ii) against the
Guarantor of its obligations to the extent provided for in the Guaranties. It is
specifically agreed that the foregoing provisions of this Section 26.7 shall not
operate to relieve any of the Grantors or the Exculpated Parties of any
liabilities such parties would otherwise have under the Real Estate Security
Documents:
(a) For fraud or intentional or willful misrepresentation;
(b) For any distribution to the partners of the Owner or the
Ground Lessor (whether as a capital distribution or a repayment of
debt or otherwise) of any monies arising with respect to the
Premises collected by the Owner or the Ground Lessor, as the
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case may be, after a default has occurred under the Deed and the
Grantee has given notice to the Grantors of such default, to the
full extent of the monies so collected and distributed to any of
the partners of the Owner or the Ground Lessor, as the case may
be, during the period commencing with the giving of any such
notice and continuing until the default has been cured as
permitted by and in accordance with the terms of this Deed;
(c) For the payment of Ground Rent by the Owner and/or the
receipt thereof by the Ground Lessor in violation of Subsection
25.3 of this Deed;
(d) For the fair market value as of the time of the giving
of any notice referred to in clause (b) hereinabove of any
personal property or fixtures removed or disposed of by the Owner
or the Ground Lessor, other than in accordance with the terms of
this Deed, during the period commencing with the giving of any
such notice and continuing until the default has been cured as
permitted by and in accordance with the terms of this Deed;
(e) For the misapplication by the Owner, Ground Lessor or
their agents, employees or Affiliates of any proceeds, to the full
extent of said misapplied proceeds, under any insurance policies
or awards resulting from condemnation or the exercise of the power
of eminent domain or by reason of damage, loss or destruction to
any portion of the Premises;
(f) For any damage to or destruction of the Premises
intentionally or recklessly committed by the Ground Lessor or the
Owner; and
(g) For the Grantors' obligations under the Environmental
Indemnity, subject to the provisions concerning recourse set forth
therein.
26.8 Grantors hereby waive and renounce all homestead and similar
exemption rights provided for by the Constitution and Laws of the United States
and/or the State of Georgia in and to the Mortgaged Premises as against the
collection of the indebtedness secured by this Deed, or any part thereof.
26.9 Grantors agree that where, by the terms of this conveyance or
the indebtedness secured hereby, a day is named or a time fixed for the payment
of any sum of money or the performance of any agreement, the time stated enters
the consideration and is of the essence of the whole contract.
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26.10 Any provision of this Deed or any of the other Real Estate
Security Documents notwithstanding, the amount of any attorneys' fees payable by
the Grantors to the Grantee under this Deed or under any of the other Real
Estate Security Documents shall not be governed by the provisions of O.C.G.A.
ss 13-1-11.
26.11 If the Secured Note is accelerated after an Event of
Default, such Event of Default shall be deemed to be "continuing" hereunder
unless such Event of Default is waived, rescinded or annulled as contemplated by
Sections 502 or 513 of the Indenture or all of the Obligations are paid.
26.12 The Grantee shall not, by signing this Deed, become or be
considered to be an endorser, co-maker or co-obligor on the Secured Note or on
any other obligation of the Grantor secured by this Deed.
26.13 This Deed may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
27. APPLICATION OF FUNDS
At any time prior to the indefeasible satisfaction in full of all
obligations under the Secured Note, the Owner shall not, without the prior
consent of the Grantee, apply or distribute any sums other than in any one or
more of the following ways (to the extent not prohibited by the Financing
Documents): (a) in respect of Deductions (as defined in the Management
Agreement), (b) payments from reserve funds of Owner for the purposes for which
the reserves were established, (c) payments made to the Ground Lessor to
purchase the fee estate in the Land pursuant to the Purchase Option (and
customary transaction costs incurred in Connection therewith) but only if and
when such option is exercised by the Owner, (d) payments (other than Deductions)
for the operation, repair, maintenance, improvement or restoration of the Hotel
and (e) payments for the following purposes, as long as such payments are made
in accordance with the following priorities:
(1) first to the payment of Ground Rent (as presently defined
in the Ground Lease) then due and payable;
(ii) then to the payment of all interest and any and all
other sums then due and payable under the Secured Note, this Dead
or any other Financing Documents;
(iii) then to the payment of all interest and all other sums
then due and payable under the Bankers Trust Loan and such other
unsecured loans to the Owner made in accordance with Section
7.6.3, if any, to the extent the proceeds thereof are used for the
payout of any items
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required by this Article 27 to be paid pursuant to clauses (a),
(d), (i) and (ii) above;
(iv) then to the payment of all interest and any and all
other sums then outstanding under Guaranty Loans;
(v) then to the full repayment to Marriott of any outstanding
"Interest Loans" made by Marriott to the Owner pursuant to the
Marriott Commitment;
(vi) then to the payment of all interest and any and all
other sums then due and payable under any loans made in accordance
with Section 7.6.4, if any;
(vii) then to the payment of all interest and any and all
other sums then due and payable under any other loans made to the
Owner other than as described in (viii) below;
(viii) then to the payment of all interest and any and all
other sums then outstanding under any other loans made by Marriott
and by partners in the Owner to the Owner in accordance with the
Owner's presently existing partnership agreement; and
(ix) then for any purpose whatsoever.
28. SUCCESSORS AND ASSIGNS
The covenants and agreements contained in this Deed shall run with the
land and bind the Grantors, the heirs, executors, administrators, legal
representatives, successors and assigns of the Grantors and all subsequent
owners, encumbrancers and tenants of the Mortgaged Premises, or any part thereof
(provided that nothing in this Section shall be deemed to constitute the consent
of the Grantee to any sale, lease, assignment, conveyance or encumbrance of the
Mortgaged Premises by Grantors), and shall bind and inure to the benefit of the
Grantee, its successors and assigns and all subsequent beneficial owners of this
Deed.
29. GENDER AND NUMBER; CONSTRUCTION
29.1 In this Deed, wherever the context so requires, the neuter
gender includes the masculine and/or feminine gender and the singular number
includes the plural.
29.2 The words "include" or "including" or words of similar import
shall be deemed to be followed by the words "but not limited to" or "without
limitation".
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30. INVALIDITY OF PROVISIONS
If fulfillment of any provision hereof or any transaction related
hereto or to the Secured Note, at the time performance of such provisions shall
be due, shall involve transcending the limit of validity prescribed by law, then
ipso facto, the obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provisions herein contained operates or would
prospectively operate to invalidate this Deed in whole or in part, then such
clause or provision only shall be held for naught, as though not herein
contained, and the remainder of this Deed shall remain operative and in full
force and effect.
31. GRANTEE'S REPRESENTATIVE
The Grantee has, by separate agreement (the "Administrative Services
Agreement"), appointed Eastdil Realty, Inc. ("Eastdil"), as the Grantee's
representative (referred to herein as the "Administrative Services
Representative") in exercising certain consent rights expressly granted in
Subsections 4.5, 5.10 and 9.1 of this Deed and performing certain services on
behalf of the Collateral Trustee. The Grantors and their representatives shall
meet with the Administrative Services Representative and its representatives
from time to time, but not less than once per year, as reasonably requested by
the Grantee. Any action by the Administrative Services Representative pursuant
to this Deed or the other Financing Documents in accordance with the
Administrative Services Agreement shall be binding upon the Grantee. The Owner
shall pay or cause to be paid all fees and
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expenses required to be paid to the Administrative Services Representative under
the Administrative Services Agreement.
IN WITNESS THE EXECUTION HEREOF, Grantors and Grantee have executed
this Deed as of the day and year first above written.
GRANTORS:
IVY STREET HOTEL LIMITED PARTNERSHIP
Signed, sealed and By: Atlanta Marriott Marquis
delivered in the Limited Partnership,
presence of: General Partner
[N.P. SEAL]
/s/ Xxxxxxx Xxxxxx
----------------------- By: Marriott Marquis Corporation,
Witness General Partner
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------- ---------------------------
Notary Public Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
Commission
Expiration Date:
XXXX X. XXXXX
NOTARY PUBLIC, State of New York
No. 4746837
Qualified in Suffolk County
Commission Expires April 30, 1991
------------------------------ Attest: Xxxxxxx XxXxxxx
(NOTARIAL SEAL) -----------------------
Its Assistant Secretary
-------------------
(CORPORATE SEAL)
[CORP.
SEAL]
By: Xxxx X. Xxxxx (SEAL)
Signed, sealed and -------------------------
delivered in the Xxxx X. Xxxxxxx, Xx.,
presence of: General Partner
By: Xxxx X. Xxxxx,
[N.P. SEAL] pursuant to a Power
of Attorney recorded on
/s/ Xxxxxxx Xxxxxx July 11, 1990, in the
------------------------------ Office of the Clerk of
Witness the Superior Court of
Xxxxxx County, Georgia,
/s/ Xxxxxx X. Xxxxxxx in Deed Book 13547 at
------------------------------ Page 2.
Notary Public
Commission
Expiration Date: 10-2-91
------------------------------
(NOTARIAL SEAL)
XXXXXX X. XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Term Expires Oct 0, 000
-00-
XXXXXXX XXXXXXXX XXXXXXX LIMITED
PARTNERSHIP
Signed, sealed and By: Marriott Marquis Corporation,
delivered in the General Partner
presence of:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------ ----------------------------
Witness Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
/s/ Xxxx X. Xxxxx
------------------------------ Attest: /s/ Xxxxxxx XxXxxxx
Notary Public ------------------------
Its Assistant Secretary
--------------------
(CORPORATE SEAL)
Commission
Expiration Date:
------------------------------
(NOTARIAL SEAL)
[N.P.
SEAL]
XXXX X. XXXXX
NOTARY PUBLIC, State of New York
No. 4746837
Qualified in Suffolk County
Commission Expires April 30, 1991
[CORP.
SEAL]
GRANTEE:
Signed, sealed and MARRIOTT/PORTMAN FINANCE CORPORATION
delivered in the
presence of:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------
Witness Name: Xxxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxx Attest: /s/ Xxxx X. Xxxxx
------------------------------ ---------------------------
Notary Public Its Assistant Secretary
----------------------
(CORPORATE SEAL)
Commission
Expiration Date: 10-2-91
------------------------------
(NOTARIAL SEAL)
XXXXXX X. XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Term Expires Oct 2, 1991
[N.P. [CORP.
SEAL] SEAL]
-93-
EXHIBIT A
DESCRIPTION OF THE LAND
ALL THAT TRACT or parcel of land lying and being in Land Xxx 00 xx xxx 00xx
Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx, containing 3.58 acres, same being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at a drill hole set which marks the
intersection of the northerly Right-of-Way Line of Xxxxxx Street (Sixty (60')
foot Right-of-Way) with the easterly Right-of-Way Line of Peachtree Center
Avenue (Sixty (60') foot Right-of-Way); thence traveling along the northerly
Right-of-Way Line of said Xxxxxx Street south 89 degrees 10 minutes 36 seconds
east a distance of 207.07 feet to a drill hole set on said Right-of-Way Line
which drill hole set is the TRUE POINT OF BEGINNING; from the TRUE POINT OF
BEGINNING as thus established leaving said Right-of-Way Line and traveling north
00 degrees 49 minutes 24 seconds east a distance of 112.72 feet to a point;
thence traveling north 89 degrees 10 minutes 36 seconds west a distance of
206.60 feet to a nail set on the easterly Right-of-Way Line of said Peachtree
Center Avenue; thence traveling along said Right-of-Way Line north 01 degree 03
minutes 48 seconds east a distance of 177.30 feet to a drill hole set on said
Right-of-Way Line; thence leaving said Right-of-Way Line and traveling south 89
degrees 10 minutes 36 seconds east a distance of 205.92 feet to a point; thence
traveling north 00 degrees 49 minutes 24 seconds east a distance of 113.30 feet
to a nail set on the southerly Right-of-Way Line of Xxxxx Street (Sixty (60')
foot Right-of-Way); thence traveling along said Right-of-Way Line south 89
degrees 19 minutes 51 seconds east a distance of 296.41 feet to a drill hole set
on said Right-of-Way Line at its intersection with the westerly Right-of-Way
Line of Courtland Street (Seventy (70') foot Right-of-Way); thence traveling
along the westerly Right-of-Way Line of said Courtland Street south 01 degree 03
minutes 16 seconds west a distance of 404.12 feet to a drill hole set on said
Right-of-Way Line at its intersection with the northerly Right-of-Way Line of
said Xxxxxx Street; thence traveling along the northerly Right-of-Way Line of
said Xxxxxx Street north 89 degrees 10 minutes 36 seconds west a distance of
294.84 feet to a drill hole set on said Right-of-Way Line, which drill hole set
marks the TRUE POINT OF BEGINNING.
The above described property being shown on that certain Survey entitled
"ALTA/ACSM Land Title Survey for Atlanta Marriott Marquis Limited Partnership,
Ivy Street Hotel Limited Partnershlp, Marriott/Portman Finance Corporation, The
Citizens and Southern National Bank & Ticor Title Insurance Company of
California", prepared by Planners and Engineers Collaborative, bearing the seal
of Xxxxxx Xxx Xxxxx, Georgia Registered Land Surveyor No. 2080, dated January 5,
1990.
TOGETHER WITH the following two (2) easement parcels, on the terms and subject
to the conditions set forth with respect thereto in, to and under that certain
Declaration of Easements and Restrictions dated on September 1, 1982 and
recorded at Deed Book 8291, Page 40, Xxxxxx County, Georgia Records; as amended
by First Amendment to Declaration of Easements and Restrictions, dated as of
August 4, 1983, recorded at Deed Book 8657, Page 385, aforesaid Records:
EASEMENT PARCELS
(Marquis Two Tower)
All that tract or parcel of land lying and being in the City of Atlanta, in Land
Xxx 00 xx xxx 00xx Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx, and being more
particularly described as follows:
BEGINNING at the point formed by the intersection of the east right-of-way line
of Peachtree Center Avenue (formerly known as Ivy Street) (as presently located)
with the south right-of-way line of Xxxxx Street (as presently located); run
thence south 89 degrees, 19 minutes, 51 seconds east, as measured along the
south right-of-way line of Xxxxx Street (as presently located), a distance of
205.44 feet to a point; run thence south 00 degrees, 49 minutes, 24 seconds
west, a distance of 113.30 feet to a point; run thence north 89 degrees, 10
minutes, 36 seconds west, a distance of 205.92 feet to a point lying on the east
right-of-way line of Peachtree Center Avenue (formerly known as Ivy Street) (as
presently located); run thence north 01 degrees, 03 minutes, 49 seconds east, as
measured along the east right-of-way line of Peachtree Center Avenue (formerly
known as Ivy Street) (as presently located) a distance of 112.75 feet to a point
formed by the intersection of the south right-of-way line of Xxxxx Street (as
presently located) with the east right-of-way line of Peachtree Center Avenue
(formerly known as Ivy Street) (as presently located) and the POINT OF
BEGINNING; being property shown on the plat of survey, to which reference is
made for all purposes, prepared for P.C. Towers, L.P., a Georgia limited
partnership, by Planners and Engineers Collaborative, bearing the certification
of Xxxxxx X. Xxxxx, Georgia Registered Land Surveyor, number 2080, dated July
20, 1988, last revised September 9, 1988.
-2-
(Marquis One Tower)
All that tract or parcel of land lying and being in the City of Atlanta, in Land
Xxx 00, xx xxx 00xx Xxxxxxxx, xx Xxxxxx Xxxxxx, Xxxxxxx, and being more
particularly described as follows:
BEGINNING at the point formed by the intersection of the east right-of-way line
of Peachtree Center Avenue (formerly known as Ivy Street) (as presently located)
with the north right-of-way line of Xxxxxx Street (as presently located); run
thence north 01 degrees, 03 minutes, 49 seconds east, as measured along the east
right-of-way line of Peachtree Center Avenue (formerly known as Ivy street) (as
presently located), a distance of 112.72 feet to a point; run thence south 89
degrees, 10 minutes, 36 seconds east, a distance of 206.60 feet to a point; run
thence south 00 degrees, 49 minutes, 24 seconds west, a distance of 112.72 feet
to a point located on the north right-of-way line of Xxxxxx Street (as presently
located); run thence north 89 degrees, 10 minutes, 36 seconds west, as measured
along the north right-of-way line of Xxxxxx Street (as presently located), a
distance of 207.07 feet to a point formed by the intersection of the east
right-of-way line of Peachtree Center Avenue (formerly known as Ivy Street) (as
presently located) with the north right-of-way line of Xxxxxx Street (as
presently located) and the POINT OF BEGINNING; being property shown on the plat
of survey, to which reference is made for all purposes, prepared for P.C.
Towers, L.P., a Georgia limited partnership, by Planners and Engineers
Collaborative, bearing the certification of Xxxxxx X. Xxxxx, Georgia Registered
Land Surveyor, number 2080, dated July 20, 1988, last revised September 9, 1988.
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EXHIBIT B
PERMITTED EXCEPTIONS
1. a. All taxes for the year 1990, liens not yet due or payable, and
subsequent years.
b. The following matters as shown on that certain Survey entitled "ALTA/ACSM
Land Title Survey for Atlanta Marriott Marquis Limited Partnership, Ivy
Street Hotel Limited Partnership, Marriott/Portman Finance Corporation,
The Citizens and Southern National Bank & Ticor Title Insurance Company of
California", prepared by Planners and Engineers Collaborative, bearing the
seal of Xxxxxx Xxx Xxxxx, Georgia Registered Land Surveyor No. 2080,
dated January 5, 1990:
1. Stairs and grate encroaching onto property adjoining to the southwest;
2. Twelve (12') foot diameter column centered on the southwesterly most
boundary line of the Premises;
3. Three (3) planters encroaching onto property adjoining to the
southwest;
4. Air vent encroaching onto property adjoining to the southwest;
5. Overhead concrete structures encroaching onto the Rights-of-Way of
Peachtree Center Avenue, Xxxxx Street, Courtland Street and Xxxxxx
Street;
6. Air vent encroaching onto property adjoining to the west-northwest;
7. Three (3) planters encroaching onto property adjoining to the
west-northwest;
8. Stairs and grate encroaching onto property adjoining to the northwest;
9. Five (5') feet of a fifteen (15') foot Georgia Power vault easement
traversing a portion of the northerly boundary line of the Premises;
10. Mechanical vault located in the northerly portion of the Premises and
encroaching onto the Right-of-Way of Xxxxx Street;
11. Two (2) islands located on the northerly portion of the Premises and
encroaching onto the Right-of-Way of Xxxxx Street;
12. Two (2) water meters located on the northeasterly boundary line of the
Premises;
13. Three (3) signs located on the northeasterly boundary line of the
Premises;
14. Seven (7) signs located on the southeasterly and southerly boundary
lines of the Premises;
15. Steel pipe with clean-outs traversing a portion of the southerly
boundary line of the Premises and encroaching onto the Rights-of-ways
of Courtland Street and Xxxxxx Street;
16. Grate traversing a portion of the southerly boundary line of the
Premises; and
17. Paving and curbing located throughout the Premises and encroaching
onto the Rights-of-Ways of Peachtree Center Avenue, Xxxxx Street,
Courtland Street and Xxxxxx Street.
c. Easements, Restrictions and Covenants created pursuant to Declaration of
Easements and Restrictions between Ivy Street Associates, Ltd. and The
X. X. Company, dated September 1, 1982, recorded at Deed Book 8291, Page
40, Records of Xxxxxx County, Georgia; as amended by First Amendment to
Declaration of Easements and Restrictions dated as of August 4, 1983, and
recorded at Deed Book 8657, Page 385 in the aforesaid Records.
d. Easement Agreement between The X. X. Company, a Georgia limited
partnership, and Georgia Power Company, dated September 1, 1982, recorded
at Deed Book 8291, Page 76, Records of Xxxxxx County, Georgia.
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EXHIBIT C
SECURITY AGREEMENT INFOMATION
PART 1
Description of the Debtor and the Secured Party
A. Debtor:
1. Name and Legal Structure:
The Debtor is comprised of Ivy Street Hotel Limited Partnership, a Georgia
limited partnership, and Atlanta Marriott Marquis Limited Partnership, a
Delaware limited partnership.
2. The principal place of business of the Debtor in the State of Georgia
is located at 000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
3. Ivy Street Hotel Limited Partnership has been using or operating under
said name and legal structure without change since July 31, 1982 and
Atlanta Marriott Marquis Limited Partnership has been using or operating
under said name and legal structure without change since May 28, 1985.
B. Secured Party: Marriott/Portman Finance Corporation is a Delaware
corporation.
PART 2
Notice Mailing Addresses of the Debtor and the Secured Party
A. The mailing address of the Debtor is:
Ivy Street Hotel Limited Partnership
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department/Hotel Operations
with a copy to:
Xxxx X. Xxxxxxx, Xx.
c/o Portman Properties
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Department
Atlanta Marriott Marquis Limited Partnership
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department/Hotel Operations
B. The mailing address of the Secured Party is:
Marriott/Portman Finance Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
EXHIBIT D
EXISTING INDEBTEDNESS
1. Amounts currently owing and amounts which from time to time herafter may be
owing by Owner in accordance with the provisions of the following:
Loan Agreement between Ivy Street Hotel Limited Partnership and Bankers
Trust Company dated as of October 15, 1987
Offering Basis Finance Agreement between Ivy Street Motel Limited
Partnership and Bankers Trust Company dated October 15, 1987
2. Amounts currently owing by Owner to Marriott under loans made pursuant to
the Marriott Commitment (which loans shall nevertheless be subject to the
provisions of Section 7.6.1 hereof).
