EXHIBIT 10.H.
THIS INSTRUMENT PREPARED BY:
Xxxxxx X. Xxxxxx, Esq.
CARLTON, FIELDS, XXXX, XXXXXXXX,
XXXXX & XXXXXX, P.A.
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Loan No. 197-389
MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
---------------------------------------------
This Mortgage Modification and Extension Agreement (the "Agreement") is
made as of July 1, 1993, by and between LAUDERDALE BEACH ASSOCIATION, a Florida
general partnership (the "Borrower" or the "Mortgagor") with a mailing address
of 0000 Xxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, and AETNA LIFE INSURANCE
COMPANY, a Connecticut corporation (the "Lender" or the "Mortgagee") 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000.
R E C I T A L S
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Lender is the holder of a promissory note dated June 30, 1986 (the
"Original Note") as set forth in a Note and Mortgage Modification and
Consolidation Agreement dated June 30, 1986 (the "Consolidation") recorded in
Official Records Book 13525, Page 409, of the Public Records of Broward County,
Florida, evidencing a loan to Borrower in the principal amount of $92,000,000,
which is secured by the mortgage (the "Mortgage") set forth in the
Consolidation. The Original Note has been renewed pursuant to the provisions of
Borrower's Renewal Promissory Note dated effective as of July 1, 1993 (the
"Renewal Note") in favor of Lender in the principal amount of $88,461,087.65.
The Borrower has requested that the Mortgage be modified in the manner
hereinafter set forth, to which the Lender has consented, subject to the
following terms and conditions.
NOW, THEREFORE, in consideration of the premises, the Lender's agreement
to extend the maturity date as set forth in the Renewal Note, the agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. The foregoing recitals are true and correct and are incorporated by
reference herein. The defined terms of the Mortgage are incorporated
herein to the extent not expressly modified hereby.
2. The Mortgage is hereby modified and supplemented as follows:
(a) The Mortgage, as modified by this Agreement, secures the
obligations of Borrower evidenced by the Renewal Note. All
references to the "Note" in the Mortgage are deemed to mean the
Renewal Note, the maturity date of which is May 1, 2000, and all
references to the "note rate" in the
Mortgage shall mean the "Contract Interest Rate" as defined in the
Renewal Note.
(b) The definition of the "Ground Lease" in the Mortgage shall include the
Fourth Amendment to Ground Lease dated as of April 28, 1993, recorded
in Official Records Book 20611, Page 221, of the Public Records of
Broward County, Florida.
(c) All of the provisions of the Mortgage, as amended herein, shall be
deemed effective upon July 1, 1993 (the "Effective Date").
(d) The following shall be added before the period at the end of the last
sentence in Paragraph 1.10 of the Mortgage:
"it being understood that all such taxes shall be deemed due on
November 30th of each year."
(e) A new Paragraph 1.22 is added to the Mortgage as follows:
"1.22 Hazardous Materials. The Mortgagor will not permit any use,
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generation, transportation, treatment, handling, storage or disposal
of any hazardous materials on the Mortgaged Property except by
Mortgagor or typical tenants thereof in the normal course of their
business in a manner consistent with their occupancy and in compliance
with all applicable federal, state, county and local laws, rules and
regulations and in accordance with the terms of their respective
leases; provided, however, that such hazardous materials in the
quantities used shall not be known or suspected to pose a health or
safety hazard to occupants, employees or suspected to pose a health
or safety hazard to occupants, employees or visitors to the Mortgaged
Property or to any adjacent property and provided also that such
hazardous materials are not permitted to accumulate on the Mortgaged
Property in amounts in excess of those required in the ordinary course
of Mortgagor's or any such tenant's business. Copies of all notices of
environmental violations shall be forthwith delivered to Mortgagee."
(f) The second line through the number 1850002547 in the fifth line of
subparagraph 3.02(a) of the Mortgage is hereby deleted.
(g) The following shall be added at the end of subparagraph (b) of
Paragraph 4.01 of the Mortgage:
"or to make any deposit when due pursuant to, or to otherwise fail to
comply with any provision of, the Capital Reserve Escrow Agreement
(the "Reserve Agreement") dated the Effective Date by and among
Mortgagor, Mortgagee and Xxxxxxx and Xxxx of Florida, Inc."
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(h) The following shall be added at the end of subparagraph (f) of
Paragraph 4.01 of the Mortgage:
"which does not require the payment of money for a period of five (5)
days after notice of such default from Mortgagee to Mortgagor."
(i) The provisions of Paragraph 5.04 of the Mortgage shall be deleted in
their entirety and replaced with the following:
"5.04 Restrictions on Transfer and Encumbrances. (a) No transfer or
-----------------------------------------
assignment of all or any part of the Mortgaged Property shall be made
by Mortgagor, nor shall any condominium declaration affecting the
Mortgaged Property be recorded, nor shall Mortgagor change its
composition, form of business association or ownership, nor may there
be any assignment or transfer, directly or indirectly of (i) any
general partnership interest in Mortgagor held by its General
Partners, hereinafter defined; (ii) the interest in Marriott Hotel
Properties Limited Partnership, a Delaware limited partnership
("MHPLP" and a "General Partner") of, or ultimate ownership of, Hotel
Properties Management, Inc., unless Hotel Properties Management, Inc.
is removed as general partner of MHPLP by its limited partners and
thereafter no longer has an ownership interest in MHPLP; (iii) the
interest of RV Associates, a Florida general partnership, in R/V-C
Association, a Florida general partnership ("R/V-C" and a "General
Partner"); (iv) the interest of Xxxx Harbor, Ltd., a Florida limited
partnership ("Xxxx Harbor") in said RV Associates; or (v) the interest
of Xxxx Harbor, Inc., a Florida corporation, in Xxxx Harbor, and any
interest in said Xxxx Harbor, Inc., without in each case first having
obtained the prior written consent of Mortgagee, which may be withheld
in its sole discretion. Further, nor shall the two (2) person
"Executive Committee" of Mortgagor consist of other than Xxxx X.
Xxxxxxxx and Xxxxxx Xxxxxxx, unless Xxxxxx Xxxxxxx is no longer
employed by Host Marriott Corporation or Hotel Properties Management,
Inc. is removed as general partner of MHPLP by its limited partners
without in each case first having obtained the prior written consent
of Mortgagee, which may be withheld in its sole discretion.
(b) No encumbrance, pledge or hypothecation shall be made of (i) all
or any portion of the Mortgaged Property or of Mortgagor's interest
therein; (ii) any beneficial interest of the General Partners in the
Mortgaged Property; or (iii) the interest of any entity identified in
subparagraph (a) of this Paragraph 5.04, as to which there are
limitations on the transfer of such interests in said subparagraph
(a), in each case, without first having obtained the prior written
consent of Mortgagee, which may be withheld in its sole discretion;
provided, that the Tenant under the "Operating Lease", hereinafter
defined, may enter into equipment leases and space and concession
leases in the ordinary course of its hotel business at the Mortgaged
Property and pursuant to the terms of the Operating Lease.
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Mortgagee, as a condition to granting its consent to any such transfer
or further encumbrance, may require modification of the loan documents
including but not limited to an increase in the interest rate, a
change in the maturity date and the payment of an assumption fee. With
respect to any conveyance to which the Mortgagee shall consent
hereunder, the transferee shall agree to assume the payment of the
obligation evidenced by the Note and all obligations contained in this
Mortgage in accordance with their respective terms.
In the event of any violation of the covenants of this Paragraph 5.04,
then Mortgagee may, at its option, accelerate the indebtedness herein
secured and declare the entire amount of principal plus accrued
interest thereon, and the Prepayment Fee provided in the Note in the
event of default or prepayment, due and payable at once without notice
or demand."
(j) The provisions of Paragraph 5.15 of the Mortgage are hereby deleted
in their entirety and replaced with the following:
"Lender shall not be entitled to take any action to obtain any
personal money judgment or any deficiency decree against the
undersigned or any General Partner or its or their heirs, personal
representatives, successors or assigns, it being understood by the
Lender that it will enforce collection of the loan evidenced by the
Renewal Note (the "Loan") solely against the Mortgaged Property and
other collateral now or hereafter given to secure the Loan, except as
provided in the following sentence. Borrower and its General Partners
(specifically excluding, however, all partners of the General Partner
and all officers, directors, shareholders and employees of all
partners of the General Partners), will indemnify, defend and hold
harmless Lender from and against any losses, costs or claims,
including reasonable attorney's fees and expenses, arising from or
relating to (i) the fraud, misrepresentation or criminal acts of
Borrower, its partners, officers, directors, employees, agents,
General Partners or affiliates, (ii) the retention, diversion or
misapplication or rents, issues, profits or revenues generated by the
Mortgaged Property or any leases relating thereto during any period
when a default has occurred and is continuing under the Renewal Note,
this Mortgage or any other document evidencing or securing the
indebtedness evidenced by the Note (the "Loan Documents") or the
application of such rents, issues, profits or revenues generated by
the Mortgaged Property, or any leases relating thereto, during such
period of default other than to (a) legitimate and customary
reasonable operating expenses of the Mortgaged Property or (b) debt
service owed to Lender, (iii) security deposit paid by tenants of the
Mortgaged Property and not previously returned to or forfeited by,
such tenants, (iv) the application of insurance proceeds, condemnation
awards, or any similar compensation given in consideration for a
taking of all or part of the Mortgaged Property, other than in
accordance with the provisions of the Renewal Note, this Mortgage and
any other Loan
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Document and (v) the occurrence of any restricted event
concerning transfers or encumbrances with respect to the
Mortgaged Property and Borrower as described in Paragraph 5.04 of
the Mortgage, without Lender's prior written consent. The
liability of the General Partners hereunder shall be specifically
limited to the assets of such two (2) entities and shall exclude
any and all assets of the partners of the respective General
Partners (other than another General Partner) and their partners,
and shall further exclude any obligations on the part of any
partners, entities or other persons to contribute to the capital
of the General Partners.
Nothing contained herein shall limit or impair, or be construed
to limit or impair, the enforcement of the Mortgage against the
Mortgaged Property or against any other security or collateral
which Borrower may from time to time give to Mortgagee to secure
the payment of the amounts due on the Renewal Note, and the
performance and satisfaction of the undersigned's duties,
liabilities and obligations under the Renewal Note, the Mortgage
and any Loan Documents. The foregoing shall not be deemed to
prohibit the naming of Borrower, the General Partners and their
successors and assigns in any action or proceeding to enforce or
realize upon the rights and remedies provided herein or at law or
in equity, subject only to the foregoing limitation against an
ultimate personal money judgment or deficiency decree. The
foregoing exculpation from a personal money judgment or
deficiency decree does not alter, impair, limit or affect in any
manner the personal obligations of any person under any guaranty,
indemnification agreement or ground lease of a portion of the
Mortgaged Property upon which the Mortgage constitutes a lien."
3. Borrower shall indemnify and hold harmless Lender from and against any
and all liability, claims, costs, fees, interest, penalties and
expenses, if any, relating to or concerning the payment of Florida
documentary stamp and intangible taxes in connection with the Renewal
Note and this Agreement, including reasonable attorneys' fees and
costs, which provisions shall survive the satisfaction or other
termination of the Mortgage.
4. Borrower hereby acknowledges that (i) the principal amount evidenced
by the Renewal Note is owing to Lender without setoff or deduction of
any kind and (ii) Borrower has no claims of any nature against Lender
which would, in any manner, reduce or diminish Borrower's obligation
to Lender to repay the principal amounts evidenced by the Renewal
Note, accrued but unpaid interest thereon, and all other obligations
of Borrower to Lender under the Renewal Note, the Mortgage and this
Agreement.
5. The term "Personal Property" as used in the Mortgage is hereby amended
to include all of Borrower's rights to (i) income and accounts derived
from the occupation of hotel/motel rooms, rents, tenant leases,
licenses and hotel/motel guest receipts, all pertaining to or
connected with the Mortgaged Property; (ii)
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revenues arising from or associated with the Mortgaged Property; and
(iii) all funds held in the "Account" established pursuant to the
terms of the Reserve Agreement. Borrower hereby grants to Mortgagee a
security interest in all of the foregoing to the extent a security
interest has not previously been granted by Borrower to Mortgagee in
the Mortgage.
6. Borrower acknowledges that it has had the assistance of independent
legal counsel in negotiating and reviewing this Agreement.
7. Except as is modified herein, the provisions of the Mortgage and all
other documents executed in connection therewith remain in full force
and effect and all representations and warranties of Borrower in the
Mortgage are hereby reaffirmed on the Effective Date. In the event of
any conflict between the provisions of the Mortgage and this
Agreement, the provisions of this Agreement shall be controlling.
8. This Agreement may be executed in counterparts each of which shall be
deemed an original Agreement whether or not any particular
counterpart has been signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA
GENERAL PARTNERSHIP
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association,
and individually with respect to the Indemnification
set forth in Section 2(j) hereof.
By: R/V Associates, a Florida General Partnership,
as General Partner of R/V-C Association
By: Xxxx Harbor, Ltd., a Florida Limited
Partnership, as General Partner of R/V
Associates
Witnessed: By: Xxxx Harbor, Inc., a General Partner
of Xxxx Harbor, Ltd.
/s/ Xxxxxxx XxXxxxxxxx
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Print Name: Xxxxxxx XxXxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------
/s/ Xxxxxxxxxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx, as
------------------------------------ Vice-President of
Print Name: Xxxxxxxxxxx X. Xxxxxxxx Xxxx Harbor, Inc.
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By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: ________________________________
Its: ________________________________
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By:_______________________________________________
Its:______________________________________________
XXXXXXX & XXXX OF FLORIDA, INC.,
a Florida corporation
By: /s/ Xxxxxx Xxx
-----------------------------------------------
Its: Sr. V.P.
----------------------------------------------
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Loan No. 197-389
RENEWAL PROMISSORY NOTE
-----------------------
$88,461,087.65 Ft. Lauderdale, Florida
July 1, 1993
For value received, the undersigned ("Borrower") promises to pay to
the order of AETNA LIFE INSURANCE COMPANY ("Lender") at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000, the principal sum of EIGHTY-EIGHT MILLION FOUR
HUNDRED SIXTY-ONE THOUSAND EIGHTY-SEVEN AND 65/100 ($88,461,087.65) together
with interest on said principal, from and after July 1, 1993, at the rates
hereinafter set forth, computed on the basis of a 360-day year of twelve 30-day
months and 1/360th of the annual rate shall be charged for each day funds are
outstanding. Principal and interest shall be payable in the following manner and
over the following term:
(a) The interest rate shall be nine and three-eighths percent
(9.375%) per annum for the period of July 1, 1993 through the day
prior to the "Effective Date", hereinafter defined. Commencing on
August 1, 1993, and on the first day of each month thereafter
through and including March 1, 1994, monthly payments of
principal and interest in the amount of Seven Hundred Sixty-Five
Thousand Two Hundred Ten and NO/100 Dollars ($765,210.00) shall
be due and payable. On the Effective Date, a payment of interest
only at the annual rate of nine and three-eighths percent (9.375%)
on unpaid principal for the period of March 1, 1994 through the
Effective Date shall be due and payable.
(b) From and after March 29, 1994 (the "Effective Date"), the
interest rate shall be nine and one-eight percent (9.125%) per annum (the
"Contract Interest Rate"). A payment of interest only on the unpaid
principal balance of Eighty-Seven Million Eight Hundred Fifty-One Thousand
Seven Hundred Fifty-Eight and 78/100 Dollars ($87,851,758.78) at the
Contract Interest Rate shall be due on the first day of the month after the
Effective Date; on the first day of each of the twelve (12) months
thereafter through and including April 1, 1995, payments of interest only
at the Contract Interest Rate in the amount of Six Hundred Sixty-Eight
Thousand Thirty-Nine and 40/100 Dollars ($668,039.40) shall be paid. In
addition, on the first day of each of the twelve (12) months commencing on
May 1, 1994, Borrower shall pay a monthly amount equal to the difference
between the "Payment Amount", defined in paragraph (c) immediately below,
and the amount of the monthly payment of interest only required in this
paragraph (b) during said twelve (12) month period, to one of the
following, at Borrower's option: (1)
to the Capital Reserve Account established pursuant to the terms of the
Capital Reserve Escrow Agreement dated as of the Effective Date by and
among Borrower, Lender and Xxxxxxx and Xxxx of Florida, Inc.; or (2) to
Lender to be applied to the unpaid principal evidenced by this Note in the
inverse order of maturity of the payments due hereunder without imposition
of the Prepayment Fee hereinafter provided in this Note.
(c) Commencing on May 1, 1995 and on the first day of each month
thereafter until and including April 1, 2000, monthly payments of
principal and interest in the amount of Seven Hundred Seventy-Two Thousand
Six Hundred Ten and 76/100 dollars ($772,610.76) (the "Payment Amount",
which is the amount required to amortize the unpaid principal balance on
the Effective Date over a twenty-two (22) year period at the Contract
Interest Rate), each shall be due and payable.
(d) On May 1, 2000 (the "New Maturity Date") the entire unpaid
outstanding principal balance together with all accrued, but unpaid,
interest, shall be due and payable in full.
This Note is secured by (and is subject to), among other things, the Note
and Mortgage Modification and Consolidation Agreement recorded in Official
Records Book 13525, Page 409, of the Public Records of Broward County, Florida,
as amended and renewed by a Mortgage Modification and Extension Agreement dated
as of July 1, 1993, between Borrower and Lender (collectively the "Mortgage").
All payments shall be applied first to any late charge due hereunder, then
to interest due, and any balance shall be applied in reduction of principal,
except that if the holder hereof theretofore shall have made any permitted
advance under the terms of any instrument securing this Note and shall not have
been repaid, any money received pursuant to the provisions hereof, at the option
of such holder, first may be applied to the repayment of such advances and all
interest thereon and the balance, if any, applied as aforesaid on account of any
installment then due. All payments hereunder shall be payable in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
All installments of principal and/or interest are payable to Lender at
Lender's address first stated above, or at such other place as the holder hereof
may from time to time designate in writing, without deduction for or on account
of any present or future taxes, duties or other charges levied or imposed on
this Note or the proceeds hereof, or upon Borrower or Lender for or on account
of this Note by the United States of America or the State of Florida, or any
instrumentality, authority or political subdivision thereof. Borrower agrees,
upon the request of Lender, to pay all such taxes, duties and other charges in
addition to principal and interest on this Note. Notwithstanding anything to the
contrary herein, Borrower shall not be responsible for any United States Income
taxes and Florida Income or other state income or franchise taxes of Lender.
Failure to make a payment under this paragraph shall constitute a default under
the terms of this Note.
If (a) any of said installments of principal or interest and any other
monies due under this Note, under the Mortgage or under any "Loan Document",
hereinafter defined, are not paid
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upon the date payment is due, or (b) if default be made in the performance of
any of the terms, covenants, conditions or warranties contained in the Mortgage
or any other document evidencing or securing this Note (the "Loan Documents")
which do not pertain to the payment of money, and such default continues for
five (5) days after written notice of such default is given to Borrower, the
entire principal sum of this Note shall become due and payable at once without
further notice or demand at the option of the holder of this Note. This Note
shall be in default when any payment required to be made hereunder or under the
Mortgage or any Loan Document shall not be paid upon the date when due and shall
remain in default until said payment is made. While a default exists under this
Note, the Mortgage or any other Loan Document, the principal balance of this
Note shall bear interest at an annual rate of interest equal to the lesser of
the Contract Interest Rate plus six percent (6%) or the maximum amount permitted
by law, from the date of commencement of the default until the payment of all
sums due hereunder or thereunder. Any payment not received by Lender upon the
due date including, but not limited to, debt service payments and escrow deposit
payments, will be subject to a late charge in the amount of the lesser of (i)
six percent (6%) of the amount of the payment due or (ii) the maximum amount
permitted by law.
The Borrower and endorsers and guarantors, if any, of this Note further
severally waive demand, notice of nonpayment, presentment for payment, protest,
notice of protest and notice of extension of time of payment and consent that
the payment of any installment of principal and/or interest may be extended
without notice, and in case suit shall be brought for the collection hereof, or
the same has to be collected upon demand of an attorney, to pay reasonable
attorneys' fees for making such collection.
It is agreed that maker shall pay all costs of collection, including
reasonable attorneys' fees, on failure to pay any principal or interest when due
on this Note. Such costs and attorneys' fees shall include, but not be limited
to, reasonable attorneys' fees incurred by the holder hereof in any and all
judicial proceedings, including appellate proceedings arising out of the
enforcement and/or collection of this obligation or the Mortgage or any Loan
Document, whether such proceedings arise before or after entry of a final
judgment.
Borrower may prepay the loan evidenced hereby (the "Loan") in full, but not
in part, on any monthly payment date, provided that Borrower has given to Lender
thirty (30) days prior written notice of the prepayment, and that Borrower has
first paid to Lender a Prepayment Fee which will be the greater of: (a) one
percent (1%) of the outstanding principal balance of the Loan at the date of
prepayment, or (b) an amount to be calculated within three (3) business days
prior to the date of prepayment by (1) multiplying the principal balance of the
Loan on the date of prepayment by the amount by which (A) the effective
annualized yield on the Loan exceeds (B) the effective annual yield which can
then be obtained by the holder on United States Treasury obligations with
maturities as close to the New Maturity Date as are reasonably available, plus
one hundred (100) basis points (as reported by The Wall Street Journal, or
--- ---- ------ -------
comparable publication selected by Lender if The Wall Street Journal is not then
--- ---- ------ -------
published), then (2) dividing the result by twelve (12), and (3) multiplying the
result by the number of months (full or partial, based upon a year of twelve
(12) 30-day months) which remain in the term of
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the Loan. In the event of any voluntary or involuntary prepayment of all or any
portion of this Note (for any reason, including acceleration) the foregoing
Prepayment Fee will be due and payable. Notwithstanding the provisions of this
paragraph, Borrower may voluntarily prepay this Note in full with all accrued
interest at any time within ninety (90) days prior to the New Maturity Date and
the Prepayment Fee shall not be due or payable, provided, however, that Borrower
shall have given written notice of the prepayment to Lender at least thirty (30)
days prior to such prepayment. Once notice of Borrower's intention to prepay
this Note is given, Borrower may not revoke such notice. Any prepayment
resulting from the application by Lender (or Borrower with Lender's consent) of
the proceeds of insurance upon, or condemnation of, the "Property", hereinafter
defined, may be made without imposition of the Prepayment Fee.
Notwithstanding any provision herein or in any instrument now or hereafter
securing this Note, the total liability for payments in the nature of interest
shall not exceed the limits now imposed by the usury laws of Florida, or any
subsequent liberalization thereof. In the event of the acceleration of this
Note, the total charges for interest and in the nature of interest shall not
exceed the maximum amount allowed by the usury laws of Florida, and any excess
portion of such charges that may have been paid shall be refunded to the
Borrower at the time of acceleration. Such refund may be made by application of
the amount involved against the sums then due hereunder, but such crediting
shall not cure or waive the default occasioning acceleration.
It is agreed that the granting to Borrower or any other party of an
extension or extensions of time for the payment of any sum or sum due hereunder
or under the Mortgage or for the performance of any covenant or stipulation
thereof or the taking of other or additional security or release of any security
shall not in any way release or affect the liability of Borrower under this
Note.
The term Borrower as used herein, in every instance shall include its
successors and assigns, and shall denote the singular and/or plural, the
masculine and/or feminine, and natural and/or artificial persons whenever the
context so requires or admits.
Time shall be of the essence of each and every covenant and promise
contained in this Note and every other instrument securing the repayment of this
Note.
The holder of this Note shall not be entitled to take any action to obtain
any personal money judgement or any deficiency decree against the undersigned or
any General Partner, hereinafter defined, or its or their heirs, personal
representatives, successors or assigns, it being understood by the holder of
this Note that Lender will enforce collection of the Loan solely against the
property (the "Property") encumbered by the Mortgage and other collateral now or
hereafter given to secure the Loan, except as provided in the following
sentence. Borrower and its general partners (collectively the "General
Partners") (a) Marriott Hotel Properties Limited Partnership ("MHPLP"), a
Delaware limited partnership and (b) R/V-C Association, a Florida
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general partnership ("R/V-C") (specifically excluding, however, all partners of
the General Partners and all officers, directors, shareholders and employees of
all partners of the General Partners), will indemnify, defend and hold harmless
Lender from and against any losses, costs or claims, including reasonable
attorneys' fees and expenses, arising from or relating to (i) the fraud,
misrepresentation or criminal acts of Borrower, its partners, officers,
directors, employees, agents, General Partners or affiliates, (ii) the
retention, diversion or misapplication of rents, issues, profits or revenues
generated by the Property or any leases relating thereto during any period when
a default has occurred and is continuing under this Note, the Mortgage or any
other Loan Document or the application of such rents, issues, profits or
revenues generated by the Property, or any leases relating thereto, during such
period of default other than to (a) legitimate and customary reasonable
operating expenses of the Property or (b) debt service owed to Lender, (iii)
security deposits paid by tenants of the Property and not previously returned to
or forfeited by, such tenants, (iv) the application of insurance proceeds,
condemnation awards, or any similar compensation given in consideration for a
taking of all or part of the Property, other than in accordance with the
provisions of this Note, the Mortgage and any other Loan Document, and (v) the
occurrence of any restricted event concerning transfers or encumbrances with
respect to the Property and Borrower as described in Paragraph 5.04 of the
Mortgage, without Lender's prior written consent. The liability of the General
Partners hereunder shall be specifically limited to the assets of such two (2)
entities and shall exclude any and all assets of the partners of the respective
General Partners (other than another General Partner) and their partners, and
shall further exclude any obligations on the part of any partners, entities or
other persons to contribute to the capital of the General Partners.
Nothing contained in this Note shall limit or impair, or be construed to
limit or impair, the enforcement of the Mortgage against the Property or against
any other security or collateral which Borrower may from time to time give to
the holder of this Note to secure the payment of the amounts due on this Note,
and the performance and satisfaction of the undersigned's duties, liabilities
and obligations under this Note, the Mortgage and any Loan Document. The
foregoing shall not be deemed to prohibit the naming of Borrower, the General
Partners and their successors and assigns in any action or proceeding to enforce
or realize upon the rights and remedies provided herein or at law or in equity,
subject only to the foregoing limitation against an ultimate personal money
judgment or deficiency decree. The foregoing exculpation from a personal money
judgment or deficiency decree does not alter, impair, limit or affect in any
manner the personal obligations of any person under any guaranty,
indemnification agreement or ground lease of a portion of the Property upon
which the Mortgage constitutes a lien.
This Note is a renewal of existing indebtedness owed by Borrower to Lender
evidenced by the Note and Mortgage Modification and Consolidation Agreement
dated June 30, 1986 between Borrower and Lender (the "Consolidation") of which
this is a renewal note without enlargement of the principal balance of said
note. Proper documentary stamps have been paid on and affixed to the
Consolidation and on the mortgages consolidated thereby, securing the notes
previously consolidated by the Consolidation, as to which this Note is a Renewal
Note. This Note replaces in its entirety the Note set forth in the
Consolidation.
-5-
This Note is to be construed and enforced in accordance with the laws of
the State of Florida.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA GENERAL
PARTNERSHIP
By: R/V-C Association, a Florida Partnership,
a general partner of Lauderdale Beach Association,
and individually with respect to the
Indemnification set forth on pages 4 and 5 hereof
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
By: Xxxx Harbor, Ltd., a Florida Limited
Partnership, as General Partner of R/V
Associates
By: Xxxx Harbor, Inc., a General Partner of
Xxxx Harbor, Ltd.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxx, as
Vice-President of
Xxxx Harbor, Inc.
By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association, and individually
with respect to the Indemnification set forth on
pages 4 and 5 hereof.
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: /s/ T. Xxxxxx Xxxxxxxxx
------------------------------------------
Its: VP
------------------------------------------
-6-
LOAN NO. 197-389
REAFFIRMATION OF OPERATING LEASE SUBORDINATION AGREEMENT
--------------------------------------------------------
THIS REAFFIRMATION OF OPERATING LEASE SUBORDINATION AGREEMENT (the
"Agreement") is made as of the 29th day of March, 1994, by and between MARRIOTT
HOTEL SERVICES, INC., a Florida corporation ("Tenant") and LAUDERDALE BEACH
ASSOCIATION, a Florida general partnership ("Landlord").
R E C I T A L S:
---------------
Landlord and Tenant have heretofore entered into an Operating Lease
Subordination Agreement (the "Original Subordination") dated as of June 30,
1986, filed for record at Official Records Book 13525, Page 604, of the Public
Records of Broward County, Florida. The Original Subordination provides, among
other items, for the subordination of the "Lease", as defined therein, to the
lien of the "Mortgage", also as defined therein, held by Aetna Life Insurance
Company ("Aetna"). Landlord and Aetna are entering into a Mortgage Modification
and Extension Agreement, amending and renewing the terms of said Mortgage (the
"Mortgage Modification"). Aetna requires that this Agreement be executed in
order to reaffirm the terms and provisions of the Original Subordination.
NOW, THEREFORE, in consideration of the Mortgage Modification and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The foregoing recitals are true and correct and are incorporated by
reference herein.
2. The Original Subordination is hereby reaffirmed in all respects as if
given on the date hereof and all references therein to the "Mortgage"
shall be deemed to include the Mortgage, as amended by the Mortgage
Modification.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first set forth above.
TENANT:
Witnesses: MARRIOTT HOTEL SERVICES,
INC., a Delaware corporation
/s/ Xxxxx X. Best By: /s/ Xxxxx X. Xxxxxxx
------------------- --------------------------------
Print Name: Xxxxx X. Best
Its: Vice President
/s/ Xxxxxxx Xxxxxxx -------------------------------
-------------------
Print Name: Xxxxxxx Xxxxxxx
LANDLORD:
LAUDERDALE BEACH ASSOCIATION, a Florida
General Partnership
By: R/V-C Association, a Florida General
Partnership, a general partner of Lauderdale
Beach Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
Witnesses: By: Xxxx Harbor, Ltd., a Florida Limited
Partnership, as General Partner of
/s/ Xxxxxxxxxxx X. Xxxxxxxx R/V Associates
---------------------------
Print Name:X. X. Xxxxxxxx By: Xxxx Harbor, Inc., a General
Partner of Xxxx Harbor, Ltd.
/s/ Xxxxxxx XxXxxxxxxx
--------------------------- By: /s/ Xxxx X. Xxxxxxxx
Print Name: Xxxxxxx XxXxxxxxxx --------------------
Xxxx X. Xxxxxxxx, as
Vice-President of
Xxxx Harbor, Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
a General Partner of Lauderdale Beach
Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Xxxxxxxxxxx X. Xxxxxxxx By: /s/ T. Xxxxxx Xxxxxxxxx
--------------------------- ---------------------------------
Print Name:X. X. Xxxxxxxx Its: V.P
---------------------------------
/s/ Xxxxxxx XxXxxxxxxx
---------------------------
Print Name: Xxxxxxx XxXxxxxxxx
-2-
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 24th day of March, 1994, personally appeared before me Xxxx
X. Xxxxxxxx, Vice-President of Xxxx Harbor, Inc., a Florida corporation, on
behalf of the corporation, as a general partner of and on behalf of Xxxx Harbor,
Ltd., a Florida limited partnership, and a general partner of and on behalf of
R/V Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
[Florida Driver License, as identification [Strike inapplicable clause]],
and he acknowledged to me that he signed the foregoing instrument.
/s/ Xxx Xxxxxxxxx [NOTARY SEAL]
-----------------------------------
Notary Public
My Commission Expires: 00-00-00
XXXXX XX XXXXXXX )
) SS:
COUNTY OF BROWARD )
On this 29th day of March, 1994, personally appeared before me
T. Xxxxxx Xxxxxxxxx, the Vice President of Hotel Properties Management, Inc., a
corporation, on behalf of the corporation, to me personally known or if not
personally known [who produced ______________ as identification [strike
inapplicable clause]], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Xxx Xxxxxxxxx [NOTARY SEAL]
-----------------------------------
Notary Public
My Commission Expires: 11-23-97
-3-
AMENDED SUPPLEMENTAL ASSIGNMENT OF RENTS AND LEASES
---------------------------------------------------
THIS AMENDED SUPPLEMENTAL ASSIGNMENT OF RENTS AND LEASES is made as of July
1, 1993, from LAUDERDALE BEACH ASSOCIATION, a Florida general partnership
("Assignor") to AETNA LIFE INSURANCE COMPANY, a Connecticut corporation
("Assignee").
R E C I T A L S:
---------------
Pursuant to a Supplemental Assignment of Rents and Leases (the "Original
Assignment of Rents") dated June 30, 1986, recorded in Official Records Book
13525, Page 445, of the Public Records of Broward County, Florida, Assignor
assigned its interest in the leases, rents, income and profits more particularly
described therein. Assignor desires to amend the Original Assignment of Rents in
conjunction with the modification of the mortgage loan for which the Original
Assignment of Rents was made as additional security.
NOW, THEREFORE, in consideration of the modification of the mortgage loan
hereinafter described, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Assignor, Assignor hereby
agrees that the Original Assignment of Rents shall be amended as follows:
1. All covenants, agreements and provisions of the Original Assignment of
Rents are hereby reaffirmed by Assignor as if given on the date
hereof.
2. In addition to the loan documents for which the Original Assignment of
Rents was given as security, the Original Assignment of Rents, as
amended herein, shall also be additional security for Assignor's
Renewal Promissory Note dated as of July 1, 1993, in the original
principal amount of EIGHTY-EIGHT MILLION FOUR HUNDRED SIXTY-ONE
THOUSAND EIGHTY-SEVEN AND 65/100 ($88,461,087.65) DOLLARS in favor of
Assignee and the Mortgage Modification and Extension Agreement dated
as of July 1, 1993, between Assignor and Assignee securing said
Renewal Promissory Note. All references in the Original Assignment of
Rents to the "Note" and "Mortgage" shall be deemed to refer to said
Renewal Promissory Note and Mortgage Modification and Extension
Agreement, respectively.
3. Exhibit "A" to the Original Assignment of Rents shall be supplemented
by including therein the Fourth Amendment to Ground Lease dated as of
April 28, 1993, recorded in Official Records Book 20611, Page 221, of
the Public Records of Broward County, Florida.
4. Except as amended herein, the Original Assignment of Rents remains in
full force and effect.
IN WITNESS WHEREOF, Assignor has executed this instrument as of the date
first set forth above.
LAUDERDALE BEACH ASSOCIATION, a Florida General
Partnership
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
By: Xxxx Xxxxxxx, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
Witnesses: By: Xxxx Harbor, Inc., a
General Partner of Xxxx
/s/ Xxxxxxx XxXxxxxxxx Harbor, Ltd.
---------------------------
Print Name: Xxxxxxx XxXxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
/s/ Xxxxxxxxxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx, as
--------------------------- Vice-President
Print Name: X.X. Xxxxxxxx Xxxx Harbor, Inc.
By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Xxxxxxxxxxx X. Xxxxxxxx By: /s/ T. Xxxxxx Xxxxxxxxx
--------------------------- ----------------------------------------
Print Name: X.X. Xxxxxxxx T. Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx XxXxxxxxxx Its: VP
--------------------------- ----------------------------------------
Print Name: Xxxxxxx XxXxxxxxxx
-2-
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
)SS:
COUNTY OF BROWARD )
On this 29 day of March, 1994, personally appeared before me Xxxx X.
Xxxxxxxx, Vice-President of Xxxx Harbor Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Xxxx Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
[____________ as identification [strike inapplicable clause]], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Xxx Xxxxxxxxx
------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11/23/97
STATE OF Florida ) [SEAL APPEARS HERE]
) SS:
COUNTY OF Broward )
On this 29 day of March, 1994, personally appeared before me
Xxxxxxxx Xxxxxxxxx, the Vice President of Hotel Properties Management, Inc., a
------------------
Delaware corporation, on behalf of the corporation, as general partner of and on
behalf of Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership, and a general partner of and on behalf of Lauderdale Beach
Association, a Florida general partnership, to me personally known or if not
personally known who produced Florida Drivers License as identification [strike
inapplicable clause], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Xxx Xxxxxxxxx
----------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11/23/97
-3-
SUPPLEMENTAL SECURITY AGREEMENT
-------------------------------
THIS SUPPLEMENTAL SECURITY AGREEMENT (the "Agreement") is made as of July
1, 1993, from LAUDERDALE BEACH ASSOCIATION, a Florida general partnership
("Debtor") to AETNA LIFE INSURANCE COMPANY, a Connecticut corporation ("Secured
Party").
R E C I T A L S:
---------------
Debtor entered into a Security Agreement (the "Original Security
Agreement") dated as of June 30, 1986, in favor of Secured Party in order to
secure a loan (the "Original Loan") from Secured Party to Debtor in the amount
of NINETY-TWO MILLION DOLLARS ($92,000,000.00) as evidenced by a Note (the
"Original Note") set forth in a Note and Mortgage Modification and Consolidation
Agreement dated June 30, 1986, between Debtor and Secured Party. Secured Party
has agreed to renew the Original Loan and in connection therewith requires the
execution of this Agreement.
NOW, THEREFORE, for and in consideration of the renewal of the Original
Loan, the Original Security Agreement shall be amended as follows:
1. The indebtedness secured by the Original Security Agreement is the
indebtedness evidenced by Debtor's Renewal Promissory Note (the
"Renewal Note") dated as of July 1, 1993, in the principal amount of
EIGHTY-EIGHT MILLION FOUR HUNDRED SIXTY-ONE THOUSAND EIGHTY-SEVEN AND
65/100 ($88,461,087.65) DOLLARS. All references to the "Obligation" in
the Original Security Agreement shall be deemed to mean the obligation
of Debtor evidenced by the Renewal Note and any further renewals,
modifications or amendments thereof.
2. The term "Collateral" as defined in the Original Security Agreement
shall also include the Amended Supplemental Assignment of Rents and
Leases dated as of July 1, 1993, from Debtor to Secured Party.
3. All references to a security interest granted to General Electric
Credit Corporation reflected by UCC Financing Statement No. 1850002547
filed with the Secretary of State of the State of Florida, are hereby
deleted from the Original Security Agreement.
4. Exhibit "A" to the Original Security Agreement shall be amended by
adding thereto the Fourth Amendment to Ground Lease dated as of April
28, 1993, recorded in Official Records Book 20611, Page 221, of the
Public Records of Broward County, Florida.
5. Exhibit "B" to the Original Security Agreement shall be amended by
adding to Paragraph 3 thereof, the following:
"All revenues arising from or associated with the premises
described on Exhibit "A" hereto and all funds held in the
"Account" established pursuant to the terms of the Capital
Reserve Escrow Agreement by and among Debtor, Secured Party and
Xxxxxxx & Xxxx of Florida, Inc. dated March 29, 1994."
6. Except as amended herein, the terms and provisions of the Original
Security Agreement remain in full force and effect.
7. This Agreement may be executed in counterparts each of which shall be
deemed an original Agreement whether or not any particular counterpart
has been signed by all of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first set forth above.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA
GENERAL PARTNERSHIP
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach
Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
-2-
By: Xxxx Harbor, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
By: Xxxx Harbor, Inc., a
General Partner of
Xxxx Harbor,Ltd.
By: /s/ Xxxx X. Xxxxxxxx
---------------------
Xxxx X. Xxxxxxxx,
as Vice-President
of Xxxx Harbor,Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
General Partner of Lauderdale Beach
Association.
By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
By: /s/ T. Xxxxxx Xxxxxxxxx
----------------------------------------
Its: VP
----------------------------------------
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By: /s/ Malcolm Sina
----------------------------------------------
Its: A.V.P.
----------------------------------------------
-3-
RELEASE AND WAIVER OF CLAIMS
----------------------------
This Release and Waiver of Claims is made the 29th day of March, 1994,
by LAUDERDALE BEACH ASSOCIATION, a Florida general partnership (the "Borrower").
WHEREAS, the Borrower obtained a loan evidenced by a promissory note (the
"Note") dated as of June 30, 1986, in the original principal amount of
$92,000,000.00 (the "Loan") from AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Aetna") secured by, among other things, a Note and Mortgage
Modification and Consolidation Agreement recorded in Official Records Book
13525, Page 409 of the Public Records of Broward County, Florida (the
"Mortgage");
WHEREAS, the Borrower has requested that Aetna make certain modifications
to the Note, the Mortgage and all other documents executed in connection with
the Loan (collectively, the "Loan Documents");
AND WHEREAS, Aetna has agreed to make certain modifications to the loan
pursuant to the terms of its "Binding Letter Agreement" to Borrower dated
December 15, 1993 (the "BLA") one of the conditions of which is that Borrower
execute this Release and Waiver of Claims.
NOW THEREFORE, in consideration of the BLA and the agreements contemplated
thereby, the Borrower hereby:
1. Acknowledges that there are no offsets, counterclaims or defenses with
respect to the obligations of Borrower under the Loan Documents and any
modifications thereof and, to the extent that Borrower has any offsets,
counterclaims or defenses of any nature whatsoever, known or unknown, related to
the Note, the Mortgage or any other Loan Document or any modification therefor
to the property (the "Property") subject to the lien of the Mortgage, Borrower
expressly waives and releases any and all such offsets, counterclaims and
defenses which may exist on the date hereof; and
2. Releases and forever discharges Aetna and all of Aetna's directors,
officers, employees, administrators, agents, subsidiaries, affiliates,
attorneys, successors and assigns from any and all causes of action, demands,
claims, debts, accounts, liabilities, costs, expenses, contracts, promises,
agreements and damages whatsoever in respect to each and all of: (i) the
Property; (ii) the Loan Documents and any modifications thereof; and (iii) the
transaction contemplated by and executed in connection with the BLA, which arose
prior to or which are based directly or indirectly on acts, omissions or
circumstances which occurred or existed prior to the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this document to be duly
executed on the date first-above written.
LAUDERDALE BEACH ASSOCIATION, a Florida
General Partnership
By: R/V-C Association, a Florida General
Partnership, a general partner of Lauderdale
Beach Association.
By: R/V Associates, a Florida General
Partnership, as General partner of R/V-C
Association
By: Xxxx Harbor, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
Witnesses: By: Xxxx Harbor, Inc., a General
Partner of Xxxx Harbor, Ltd.
/s/ Xxxxxxxxxxx X. Xxxxxxxx
---------------------------
Print Name: X. X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------
/s/ Xxxxxxx XxXxxxxxxx Xxxx X. Xxxxxxxx, as
--------------------------- Vice-President of
Print Name: Xxxxxxx XxXxxxxxxx Xxxx Harbor, Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
a General Partner of Lauderdale Beach
Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Xxxxxxxxxxx X. Xxxxxxxx By: T. Xxxxxx Xxxxxxxxx
--------------------------- -----------------------
Print Name: X. X. Xxxxxxxx
/s/ Xxxxxxx XxXxxxxxxx Its: VP
--------------------------- -----------------------
Print Name: Xxxxxxx XxXxxxxxxx
-2-
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 29th day of March, 1994, personally appeared before me Xxxx X.
Xxxxxxxx, Vice-President of Xxxx Harbor, Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Xxxx Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or [if not personally known who produced
__________ as identification [strike inapplicable clause]], and he acknowledged
to me that he signed the foregoing instrument.
/s/ Xxx Xxxxxxxxx
------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 00-00-00
XXXXX XX Xxxxxxx )
) SS:
COUNTY OF Broward )
On this 29th day of March, 1994, personally appeared before me XXXXXX,
------
the Vice-President of Hotel Properties Management, Inc., a Delaware corporation,
on behalf of the corporation, as general partner of and on behalf of Marriott
Hotel Properties Limited Partnership, a Delaware limited partnership, and a
general partner of and on behalf of Lauderdale Beach Association, a Florida
general partnership, to me personally known or if [not personally known who
produced __________ as identification] [strike inapplicable clause], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Xxx Xxxxxxxxx
------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11-23-97
-3-
Loan No. 197389
CAPITAL RESERVE ESCROW AGREEMENT
--------------------------------
THIS CAPITAL RESERVE ESCROW AGREEMENT ("Agreement") is made and entered
into the 29 day of March, 1994, by and among LAUDERDALE BEACH ASSOCIATES, a
Florida general partnership ("Borrower"), AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation, ("Aetna") and XXXXXXX & XXXX OF FLORIDA, INC., a
Florida corporation ("Agent").
R E C I T A L S:
----------------
A. The Borrower has applied to Aetna for a renewal of its loan (the
"Loan") from Aetna with respect to the property (the "Property") known as The
Marriott Harbor Beach Hotel, Ft. Lauderdale, Florida. The Loan is evidenced by a
Renewal Promissory Note (the "Note") dated as of July 1, 1993, from Borrower to
Aetna and is secured by a Mortgage Modification and Extension Agreement (the
"Mortgage") dated as of July 1, 1993, from Borrower to Aetna on Borrower's
interest in the Property; and
B. In accordance with the terms and conditions of a Binding Letter
Agreement dated December 15, 1993 (the "BLA") Aetna is about to renew the Loan
evidenced by the Note in accordance with the BLA; and
C. Aetna has refused to renew the Loan and accept the Note and Mortgage
unless Borrower agrees to make the deposits and to perform the duties
hereinafter set forth.
NOW, THEREFORE, pursuant to the BLA and in consideration of the premises
and in order to induce Aetna to renew the Loan and to accept the Note and
Mortgage, Borrower hereby covenants and agrees with Aetna as follows:
1. Definitions. As used herein, the following terms shall have the
-----------
meanings hereinafter set forth:
(a) "Capital Assets" - shall mean furniture, fixtures and equipment
and other capital assets used at or in connection with the
Property.
(b) "Gross Revenues" - shall mean all revenues and receipts of every
kind derived from operating the Property and all departments and
parts thereof, including, but not limited to, income (from both
cash and credit transactions), before commissions and discounts
for prompt or cash payments, from: the rental of rooms, stores,
offices, exhibit or sales space of every kind; license, lease and
concession fees and rentals (not including gross receipts of
licensees, lessees and concessionaires); income from vending
machines; health club membership fees; food and beverage sales;
wholesale and retail sales of merchandise; service charges; any
annual membership fees from the operation of the "Ocean Club" at
the Property; and the proceeds, if any, from business
interruption or other loss of income insurance; provided,
however, that Gross Revenues shall not include: (i) gratuities to
Property employees; (ii) federal, state and municipal excise,
sales and use taxes or similar impositions collected directly
from patrons or guests or included as part of the sales price of
any goods or services; or (iii) any initiation fees charged to
members of said Ocean Club. If Borrower or any person having an
interest, directly or indirectly, in Borrower occupies any
portion of the Property (excluding complimentary rooms provided
in the normal course of business of the Property), then there
shall be included in Gross Receipts an amount not less than the
fair market rental value of any such space so occupied.
(c) "Tenant" - shall mean Marriott Hotel Services, Inc., a Delaware
corporation, which is the lessee under the Lease dated October
26, 1984, with Borrower with respect to operation of the
Property.
2. Deposits; Reporting.
-------------------
(a) Not later than April 20, 1994, and thereafter on the twentieth (20th)
day after the end of each succeeding calendar year quarter, Borrower shall
deposit or cause the deposit of (subject to any credit as hereinafter provided)
an amount equal to four percent (4%) of Gross Revenues with respect to the
twenty-eight (28) day accounting periods of Tenant which have ended during the
preceding calendar year quarter into the account (the "Account") to be
maintained by Agent at Xxxxxxx Bank or such other national bank acceptable to
Aetna in the name of Aetna for the benefit of Aetna and Borrower, less all
----
amounts expended by Borrower and Tenant for the purchase of Capital Assets
during such twenty-eight (28) day accounting periods ending in said preceding
calendar year quarter. In the event that Borrower or Tenant has expended more
than four percent (4%) of Gross Revenues for Capital Assets during such
twenty-eight (28) day accounting periods ending in any calendar year quarter,
Borrower's deposit obligations for succeeding quarter(s) shall be accordingly
credited by the amount of such excess expenditures. Agent shall invest the funds
in the Account in an interest bearing account which shall permit Agent to
withdraw the funds on demand. Interest on funds in the Account shall become part
of the Account and Borrower's deposit requirements herein shall be reduced by
the amount of such interest. Agent shall report all interest earned on the
Account for the account of Borrower, whose federal tax identification number is
00-0000000. Borrower shall not pledge, hypothecate, encumber or otherwise
transfer any interest in the Account. Borrower hereby pledges to Aetna and
grants a security interest to Aetna in the Account as additional collateral and
security for the Loan on the Property.
-2-
(b) Within twenty (20) days after the end of each calendar year quarter,
Borrower shall submit to Aetna a detailed schedule in form and content
satisfactory to Aetna setting forth the Gross Revenues received and Capital
Assets purchased with respect to the twenty-eight (28) day accounting periods
ending during the preceding calendar year quarter (which statements may be
audited by Aetna or its designee on an annual basis at Borrower's cost if the
results of such audit indicates that such statements are in error by
understating by more than five per cent (5%) said Gross Revenues received or
overstating by more than five percent (5%) the Capital Assets purchased, but
otherwise at the cost of Aetna), along with Tenant's or Borrower's certification
that all funds spent for Capital Assets and otherwise drawn from the Account for
Capital Assets during said calendar year quarter have been spent on Capital
Asset projects identified in Tenant's annual budget (the "Budget") for the
Project previously delivered to Aetna, and, if applicable, that all lien waivers
have been obtained with respect to Capital Assets purchased during said period.
3. Disbursements. Funds in the Account shall be held by Agent.
--------------
So long as Borrower is not in default under the Note, Mortgage or any other
document related thereto, funds shall be disbursed at the request of Tenant or
Borrower no more frequently than once each month for the purchase of Capital
Assets in accordance with the Budget pursuant to the following procedures and
guidelines:
(a) Tenant or Borrower shall submit a written request to Aetna or
Agent, specifying the amount of the disbursement sought and describing the
Capital Assets which have been contracted for or completed as of the date of the
request, along with Tenant's certification that such Capital Assets are
identified as a category in the Budget.
(b) In no event may Borrower or Tenant give an order for payment on
the Account for materials or labor directly to a contractor without the express
written authorization of Aetna. Neither Agent nor Aetna shall have any
responsibility to Borrower: (i) to see that any Capital Assets permitted
hereunder are constructed in accordance with applicable plans and
specifications, or that the work will be completed, or that sufficient funds are
available for completion; (ii) for mechanics' liens or claims by contractors; or
(iii) for claims which may be found upon waiver of lien and/or paid invoices
presented to Agent which have been forged or otherwise wrongfully procured; nor
where such document was executed by a person lacking authority to execute same;
provided, however, Aetna or Agent may inspect the Property and/or the status of
the work at any time.
4. No Waiver. The failure of Aetna to enforce strict performance of
---------
the terms and conditions hereof shall not constitute a waiver of its rights
hereunder.
5. Expenses of the Account. All costs and expenses of this Agreement
-----------------------
and the administration of the Account are to be borne by Borrower. Agent shall
be entitled to a fee of $600.00 per annum payable at the rate of $50.00 per
month plus $250.00 for each draw request, payable from the Account or by
Borrower if there are insufficient funds in the Account for such purpose;
provided, it is understood that such fees do not include any bank charges or
engineering
-3-
or similar expenses, if any, involved in processing any draw request.
6. Limitation of Liability of Agent. The obligations of Agent hereunder
--------------------------------
are subject to the following provisions which are expressly approved by Aetna
and the Borrower:
(a) Agent's duties shall be expressly limited to the safekeeping of
the Account, for the disbursement of same in accordance with this Agreement and
as otherwise specifically described in this Agreement. Agent will not be liable
for any act or omission done in good faith, or for any claim, demand, loss or
damage made or suffered by any party to this Agreement or pursuant to the order
of a Court of competent jurisdiction excepting such as may arise through or be
caused by Agent's negligence, fraud, mismanagement or willful misconduct.
Borrower and Aetna hereby indemnify Agent and agree to hold it harmless from and
against any and all claims, liabilities, damages, costs, penalties, losses,
actions, suits or proceedings at law or in equity, or any other expenses, fees,
or charges of any character or nature including reasonable attorney's fees and
the cost of defending any action, suit, or proceeding or resisting any claim,
whether or not litigation is instituted, which it may incur directly or
indirectly arising from or in any way connected with this Agreement, other than
those arising out of the negligence, fraud, mismanagement, or willful misconduct
of Agent.
(b) Agent is authorized to rely on any document believed by Agent
to be authentic in making any delivery of funds hereunder. Unless it has actual
knowledge to the contrary, Agent also may: (a) assume the validity and accuracy
of any statement or assertion contained in any such document believed to be
authentic; and (b) assume that any person who gives any writing, notice, advice
or instructions in connection with the provisions hereof has been duly
authorized to do so.
(c) Agent will have the right to resign as agent hereunder by sixty
(60) days prior written notice of resignation to Aetna and Borrower, provided
that such resignation may not be effectuated until Aetna has selected a
substitute agent to act under this Agreement and until the substitute agent
executes an acknowledgment reasonably acceptable to Aetna and Borrower that such
agent is assuming all of the obligations and duties of Agent under this
Agreement; provided, that if a substitute agent has not been designated as
aforesaid within one hundred twenty (120) days following the date of notice of
resignation from Agent, such resignation shall be effective at the end of said
one hundred twenty (120) day period nothwithstanding anything to the contrary
herein. Upon the effective date of such resignation, Agent shall deliver the
funds in the Account to the substitute agent. Such resignation and delivery will
relieve Agent from any further performance and liability with respect to this
Agreement, except for such performance or liability arising prior to the
effective date of such resignation. Any modification of the terms of this
Agreement may be made at any time by Borrower and Aetna, provided that the same
is reduced to writing, delivered to and accepted by Agent.
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(d) This Agreement is the only agreement binding on Agent relating to
the Account and Agent may rely absolutely hereon to the exclusion of any and all
other agreements between Aetna and Borrower.
7. Defaults. Upon notice in writing from Aetna (with a copy to Borrower)
--------
that Borrower is in default under any of the terms, conditions and provisions of
this Agreement, the Note, Mortgage or other document relating thereto and upon
the maturity of the Loan, in addition to any and all other remedies available to
Aetna, Agent shall, at the option of Aetna, pay all or any designated portion of
the balance remaining in the Account to Aetna, together with all accrued
interest thereon, to be applied to pay all late charges, collection costs
including attorneys' fees, fees, delinquent interest, accrued and accruing
interest and similar charges (collectively, "Charges") on the Loan all as
determined by Aetna in its sole discretion. Any funds remaining in the Account
after payment of the Charges shall be applied at Aetna's sole discretion to the
outstanding principal balance of the Loan as determined by Aetna. Upon payment
in full of all sums secured by the Mortgage, this Agreement shall terminate and
any balance in the Account shall be paid to Borrower.
8. Interpleader: In the event any party hereto, by written notice,
------------
notifies Agent that a dispute exists as to the proper party to whom Agent shall
make a payment out of the Account, Agent shall be entitled but not required to
deposit the balance then remaining in the Account, plus any accrued and unpaid
interest thereon, in the registry of the Circuit Court of the State of Florida,
Broward County, and to file an interpleader action in such Court to determine
the recipient of such payment, whereupon Agent shall have no further liability
for payment to any other party.
9. Miscellaneous. It is further agreed as follows:
-------------
(a) All notices given hereunder will be in writing and served by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at the following addresses:
As to Borrower: Lauderdale Beach Association
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
As to Aetna: Aetna Life Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Malcolm Sina
-5-
As to Agent: Xxxxxxx & Xxxx of Florida, Inc.
00000 X.X. 00xx Xxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxx
(b) None of the rights of the Borrower or the Agent hereunder may be
assigned voluntarily or by operation of law. Any such assignment without the
prior written approval of Aetna will be null and void ab initio.
(c) This Agreement will be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(d) This Agreement may be executed in counterparts each of which
shall be deemed an original Agreement whether or not any particular counterpart
has been signed by all of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and delivered on the
date first above written.
LAUDERDALE BEACH ASSOCIATION, a Florida General Partnership
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association
By: R/V Associates, a Florida General Partnership,
as General Partner of R/V-C Association
By: Xxxx Harbor, Ltd., a Florida Limited Partnership,
as General Partner of R/V Associates
By: Xxxx Harbor, Inc., a General Partner of
of Xxxx Harbor, Ltd.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx, as
Vice-President of
Xxxx Harbor, Inc.
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By: Marriott Hotel Properties Limited Partnership, a Delaware Limited
Partnership, a General Partner of Lauderdale Beach Association
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: /s/ T. Xxxxxx Xxxxxxxxx
-----------------------------
Its: VP
-----------------------------
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By: /s/ Malcolm Sina
-----------------------------------------
Its: A.V.P
----------------------------------------
XXXXXXX & XXXX OF FLORIDA, INC.,
a Florida corporation
By:_________________________________________
Its:________________________________________
-7-
STATE OF FLORIDA )
---------- ) SS:
COUNTY OF BROWARD )
---------
On this 29th day of March , 1994, personally appeared before me T.
Xxxxxx Xxxxxxxxx, the Vice President of Hotel Properties Management, Inc., a
Delaware corporation, on behalf of the corporation, as general partner of and on
behalf of Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership, and a general partner of and on behalf of Lauderdale Beach
Association, a Florida general partnership, to me personally known [or if not
personally known who produced Drivers License] as identification [strike
inapplicable clause], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Xxx Xxxxxxxxx [NOTARY PUBLIC SEAL]
---------------------------------
Notary Public
My Commission Expires: 11/23/97
STATE OF CONNECTICUT)
) SS:
COUNTY OF HARTFORD )
On this 25 day of March , 1994, personally appeared before me Malcolm
Sina, of AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, to me
personally known [or if not personally known who produced ______________ as
identification [strike inapplicable clause]] and he acknowledged to me that he
signed the foregoing instrument on behalf of AETNA LIFE INSURANCE CORPORATION.
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Notary Public
My Commission Expires:
[SEAL APPEARS] [NOTARY PUBLIC SEAL APPEARS HERE]
-8-
By: Marriott Hotel Properties Partnership, a
Delaware Limited Partnership, a General
Partner of Lauderdale Beach Association,
and individually with respect to the
Indemnification set forth in Section
2(j) hereof.
Witnessed: By: Hotel Properties Management, Inc.,
a Delaware Corporation, as General
Partner
/s/ Xxxxxxxxxxx X. Xxxxxxxx By: /s/ T. Xxxxxx Xxxxxxxxx
-------------------------------- ----------------------------
Print Name: X.X. Xxxxxxxx T. Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx XxXxxxxxxx Its: VP
-------------------------------- ----------------------------
Print Name: Xxxxxxx XxXxxxxxxx
Witness: AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxxx By: /s/ Malcolm Sina
-----------------
Malcolm Sina
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Print Name: Xxxxxx X. Xxxxxxxxx Its: AVP
----------------
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 29 day of March , 1994, personally appeared before me Xxxx X.
Xxxxxxxx, Vice-President of Xxxx Harbor, Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Xxxx Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
Florida Drivers License as identification [strike inapplicable clause], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Xxx Xxxxxxxxx [NOTARY PUBLIC SEAL]
---------------------------------
Notary Public
My Commission Expires: 11/23/97
-7-
