Exhibit 10.2
CONSENT TO MERGER
This Consent to Merger (this "Agreement") is entered into as of March 29,
2002 by and among MARRIOTT RESIDENCE INN LIMITED PARTNERSHIP, a Delaware limited
partnership ("Borrower"), with an address of 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx,
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Virginia 23219, Attn: Xxxxx X. Xxxxxx, RIBM ONE LLC, a Delaware limited
liability company ("Existing GP") with an address of c/o Host Marriott
Corporation 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxxx Xxxxxxx,
AHT RES I GP, INC., a Virginia corporation ("New GP"), with an address of 00
Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, AHM Res I
Limited Partnership, a Virginia limited partnership ("Lessee") with an address
of 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, and
LASALLE BANK NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE FOR THE BENEFIT OF THE
HOLDERS OF ISTAR ASSET RECEIVABLES TRUST COLLATERALIZED MORTGAGE BONDS SERIES
2000-1 ("Lender"), with an address of c/o iStar Asset Services, Inc., 000 Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxx 00000, Attn: Xxxxxxx Xxxxx.
RECITALS
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A. Borrower is the owner of those certain Marriott Residence Inn Hotels
described in Exhibit "C" attached hereto and incorporated herein by reference
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(collectively, the "Hotels") and located on the real property described in
Exhibit "A" attached hereto and incorporated herein by reference. Such real
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property, together with all improvements, fixtures and personal property located
thereon, is collectively referred to as the "Property".
B. By assignment, Lender is the owner and holder of a loan to Borrower in
the original principal amount of Thirty Million and No/100 Dollars
($30,000,000.00) (collectively, the "Loan") and the owner and holder of the
instruments and documents (collectively, the "Loan Documents") evidencing,
securing or otherwise relating to the Loan including, without limitation, (i)
that certain Loan Agreement dated October 10, 1995 by and between Borrower and
Starwood Mezzanine Investors, L.P. ("Original Lender"), (the "Loan Agreement"),
(ii) that certain Promissory Note dated as of October 10, 1995, from Borrower to
the order of Original Lender in the principal face amount of $30,000,000.00 (the
"Note"), and (iii) the instruments and documents described on Exhibit "B"
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attached hereto and made a part hereof.
C. iStar Asset Services, Inc. services the loan for Lender, as Primary
Servicer pursuant to a certain Primary Servicing Agreement dated as of May 17,
2000.
D. Borrower, Existing GP, Apple Hospitality Two, Inc. ("AHT") and AHT Res
Acquisition, L.P. ("Merger Sub") have entered into an Agreement and Plan of
Merger dated as of November 28, 2001 pursuant to which Merger Sub has merged
with and into Borrower (with Borrower being the surviving entity), and Borrower
has become a wholly owned indirect subsidiary of AHT (said merger being
hereinafter referred to as the "Merger").
E. In connection with the Merger, Borrower desires to, among other things,
enter into a master lease agreement (the "Lease Agreement") with Lessee for each
of the Hotels, assign to Lessee all of Borrower's right, title and interest
under the Management Agreement dated March 28, 1988 between Borrower and
Residence Inn by Marriott, Inc. ("Manager") (the "Management Agreement") and, in
connection therewith, Lessee desires to amend and restate the Management
Agreement in its entirety pursuant to an Amendment and Restatement of Management
Agreement by and between Lessee and Manager (the "Restated Management
Agreement").
F. Borrower has requested that Lender consent to, among other things, the
Merger, the Lease Agreement, the assignment of the Management Agreement to
Lessee and the amendment and
restatement of the Management Agreement pursuant to the Restated Management
Agreement, and Lender has agreed to consent to such matters subject to and in
accordance with the terms and conditions set forth in this Agreement including,
without limitation, the execution and delivery of the "Additional Documents" (as
hereinafter defined).
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. CONSENT TO MERGER. Subject to satisfaction of all of the conditions and
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covenants contained herein, Lender consents to (a) the Merger, including the
change in the general partner of Borrower to New GP and the change in the
limited partner of Borrower to AHT Res I LP, Inc., a Virginia corporation,
resulting therefrom, (b) the new partnership agreement of Borrower, (c) the
organizational documents of New GP, (d) the change in the principal place of
business of Borrower to Richmond, Virginia, (e) the Lease Agreement, (f) the
assignment to, and assumption by, Lessee of the obligations and liabilities of
Borrower under the Management Agreement, (g) the amendment and restatement of
the Management Agreement pursuant to the "Restated Management Agreement", and
(h) the modification of the Senior Loan Documents (as defined in the Loan
Agreement) pursuant to certain agreements, a schedule of which are attached
hereto as Exhibit "E" and made a part hereof (collectively, the "Senior Loan
-----------
Additional Documents"). This consent is strictly limited to the Merger and the
other transactions described in the immediately preceding sentence all occurring
in connection with, or as a result of, the Merger. This Agreement shall not
constitute a waiver or modification of any requirement of obtaining Lender's
consent to any future merger involving Borrower, any future transfer of
interests in Borrower, in the Property, the Hotels or any portion thereof or
interest therein, or future change to, or assignment of, the property management
agreement for the Hotels, nor shall it constitute a modification of the terms,
provisions, or requirements in the Loan Documents in any respect except as
expressly provided herein or in the documents and instruments being executed and
delivered by Borrower, New GP, Lessee, Manager and Lender in connection
herewith, certain of which documents and instruments are referenced in Section 3
hereof (such documents and instruments, collectively, the "Additional
Documents"). Borrower specifically acknowledges that any subsequent merger
involving Borrower, any future transfer of any interest in any of the Property,
the Hotels or interest in Borrower or any subsequent change to, or assignment
of, the property management agreement for the Hotels in violation of the Loan
Documents shall be a default thereunder. The Loan Documents are hereby ratified
and, except as expressly modified in this Agreement and the Additional
Documents, as applicable, remain unmodified and are in full force and effect.
2. LOAN INFORMATION. The Borrower, New GP and Lender agree that as of March
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28, 2002:
(a) The aggregate outstanding principal balance of the Note is
$20,734,190.57.
(b) The interest rate under the Note is a fixed rate of 15.25% per
annum accruing pursuant to the terms of the Note.
(c) The maturity date of each of the Note is September 30, 2002,
pursuant to the terms of the Loan Documents.
(d) As of the date hereof, the following listed payments are due and
payable on the first day of each calendar month, subject to the
terms of the Loan Documents:
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(i) $400,589.60 principal and interest installments;
(ii) $0 tax escrow deposits;
(iii) $0 insurance escrow deposits;
(iv) $0 replacement reserve deposits; and
(e) The current balance of each escrow account held by Senior Lender
with respect to the Loan is:
(i) $0 tax escrow account
(ii) $0 insurance escrow account;
(iii) $0 replacement reserve account; and
(f) All required payments due through March 1, 2002 under the Loan
Documents have been paid.
(g) There are no defenses or claims of setoffs with respect to any
sums or amounts owing under the Loan Documents.
(h) Lender is the current owner and holder of the Loan Documents.
3. CONDITIONS. In addition to any other conditions set forth herein or
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required by Lender, the following are the conditions precedent (such conditions
precedent and such other conditions set forth herein or required by Lender are
hereinafter referred to collectively as the "Closing Conditions") that must be
satisfied prior to the release of Lender's signature counterparts to this
Agreement and the Additional Documents to which Lender is a party, as more
particularly provided, below (the "Closing"):
(a) Receipt by Lender of four original counterparts to this Agreement
executed by all of the parties hereto, properly witnessed,
acknowledged and notarized.
(b) Receipt by Lender of four (4) original counterparts of that
certain Loan Modification Agreement in form and substance
satisfactory to Lender executed by Borrower, New GP, Lessee and
Lender.
(c) Receipt by Lender of four (4) original counterparts of that
certain First Amendment to Four Party Agreement in form and
substance satisfactory to Lender executed by Borrower, Lender,
LaSalle Bank National Association (f/k/a LaSalle National Bank),
as Trustee for Mortgage Pass-Through Certificates Series 1996-2
("Senior Lender"), Manager and Lessee.
(d) Receipt by Lender of two (2) original counterparts to that
certain Manager Estoppel, Ratification and Modification Agreement
in form and substance satisfactory to Lender executed by Manager
and Lender.
(e) Receipt by Lender of four (4) original counterparts of that
certain Lessee Estoppel, Subordination and Agreement in form and
substance satisfactory to Lender executed by Lender, Borrower and
Lessee.
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(f) Receipt by Lender of fifteen (15) Assignment of Rents and
Revenues relating to each of the Hotels in form and substance
satisfactory to Lender executed by Lessee.
(g) Receipt by Lender of a Security Agreements relating to the Hotels
in form and substance satisfactory to Lender executed by Lessee.
(h) Receipt by Lender of an Environmental Indemnity Agreement in form
and substance satisfactory to Lender executed by New GP.
(i) Receipt by Lender of an executed copy of the Restated Management
Agreement.
(j) Receipt by Escrow Agent of an original legal opinion of counsel
to Existing GP, in form and substance satisfactory to Lender.
(k) Receipt by Escrow Agent of an original legal opinion of Jenkens &
Xxxxxxxxx, in form and substance satisfactory to Lender.
(l) Receipt by Escrow Agent of original legal opinions of Jenkens &
Xxxxxxxxx LLP (CA) and Xxxx, Stettinius & Hollister LLP (OH) in
form and substance satisfactory to Lender.
(m) Receipt by Lender of a nondisqualification opinion of
, in form and substance satisfactory to Lender.
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(n) Receipt by Lender of evidence reasonably satisfactory to Lender
of the consummation of the Merger.
(o) Receipt by Lender of evidence reasonably satisfactory to Lender
that Senior Lender has consented to the Merger and the
transactions related thereto described in Section 1, above.
(p) Receipt by X.X. Xxxxxx Xxxxx of a federal wire to the attention
of iStar Asset Services, Inc. in the amount set forth in Section
4.
Upon confirmation by Lender that the Closing Conditions have been
satisfied, Lender shall deliver via courier to Xxxx Xxxx, Xxxxx & Xxxxxxx
L.L.P., Columbia Square, 000 Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000-0000
one fully executed counterpart original of this Agreement and deliver via
courier to Xxxxxx X. Xxxxx, Jenkens & Xxxxxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 one fully executed counterpart original of this Agreement
and the documents set forth in (b), (c), (e) and (g) above and deliver to
Manager at one fully executed counterpart of the documents
--------------------
set forth in (c) and (d), above. The release of Lender's signature counterpart
to this Agreement from escrow as described in the foregoing sentence shall
evidence that all of the Closing Conditions have been satisfied. Upon
satisfaction of the foregoing Closing Conditions as evidenced by the release of
Lender's signature page to this Agreement from escrow, but not otherwise,
Lender's consent provided in Section 1 of this Agreement shall become effective.
4. FEES, PAYMENT AND EXPENSES. Borrower covenants and agrees to pay on or
--------------------------
prior to Closing an amount equal to $245,102.91 via federal wire transfer of
immediately available federal funds to X.X. Xxxxxx Chase to the attention of
iStar Asset Services, Inc. which amount consists of (a) $207,341.91 for Lender's
evaluation of the Merger and the related transaction, (b) $25,261.00, which
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represents Lenders' attorneys fees incurred in connection with the Merger, (c)
$10,000, which represents a fee to First Union National Bank ("Master Servicer")
for Master Servicer's evaluation of the Merger and the related transaction, and
(d) $2,500, which represents Master Servicer's attorneys fees incurred in
connection with the Merger. Lender's wire transfer instructions are set forth in
Exhibit "C" attached hereto.
5. BORROWER'S RATIFICATION OF LOAN OBLIGATIONS. Borrower hereby expressly
-------------------------------------------
ratifies and confirms its obligation to pay the unpaid balance due and owing on
the Loan, all interest thereon as provided in the Note and all other obligations
under the Loan Documents and the Additional Documents to which it is a party.
Without limiting the generality of the foregoing, Borrower expressly covenants
and agrees to pay all loan installments as they become due and to observe all
its obligations of the Loan Documents and the Additional Documents to which it
is a party. Borrower's acknowledgment and ratification of the foregoing
obligations (a) is absolute, unconditional and is not subject to any defenses,
waivers, claims or offsets, and (b) shall not be affected or impaired by any
agreement, condition, statement or representation of any person or entity.
Borrower, Existing GP and New GP, by their execution of this Agreement,
severally agree to reimburse, defend, indemnify and hold Lender, its officers,
agents, loan servicers and employees harmless from and against any and all
liabilities, claims, damages, penalties, expenditures, losses or charges
(including, but not limited to, all legal fees and court costs), which may now
or in the future be undertaken, suffered, paid, awarded, assessed or otherwise
incurred as a result of or arising out of any fraudulent or tortious conduct of
such party in connection with this Agreement or the Property, including the
intentional misrepresentation of financial data presented to Lender. The terms
of the previous sentence are recourse obligations of Borrower, Existing GP and
New GP and shall not be restricted by any limitation on personal liability set
forth in the Loan Documents or the Additional Documents.
6. NO REPRESENTATIONS OF LENDER. The parties hereto agree that (a) Lender
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has made no representations or warranty, either express or implied regarding the
Property and has no responsibility whatsoever with respect to the Property, its
condition, or its use, occupancy or status, and (b) no claims relating to the
Property, its condition, or its use, occupancy or status, will be asserted
against Lender or its agents, employees, professional consultants, affiliated
entities, successors or assigns, either affirmatively or as a defense.
7. BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower hereby
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represents, warrants, and covenants to Lender that:
(a) Borrower is the owner of the Property and is duly authorized to
execute, deliver and perform this Agreement.
(b) Any court or third-party approvals necessary for Borrower to
consummate the Merger and/or enter into this Agreement have been
obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of Borrower
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of Borrower, enforceable against Borrower in
accordance with their terms and have not been modified
5
either orally or in writing except as expressly set forth in the
Additional Documents, as applicable.
(e) There is no existing "Event of Default" (as defined in the Loan
Documents) or event or condition that, with the giving of notice
or passage of time or both, would constitute an Event of Default.
(f) All taxes and assessments applicable to the Property that are due
and payable as of the Closing have been paid.
(g) Intentionally Omitted.
(h) There is no bankruptcy, receivership or insolvency proceeding
pending or, to the best of Borrower's knowledge, threatened
against Borrower.
(i) Borrower does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor in a
proceeding under the Code (as hereinafter defined), (ii) seek
consent to or not contest the appointment of a receiver or
trustee for itself or for all or any part of its property, (iii)
file a petition seeking relief under any bankruptcy, arrangement,
reorganization or other debtor relief laws, or (iv) make a
general assignment for the benefit of its creditors.
(j) All of the insurance coverage required pursuant to the terms of
the Loan Documents is in full force and effect, with all required
premiums paid.
(k) All representations and warranties contained herein shall be true
as of the date of this Agreement and the Closing and shall
survive the Closing.
(l) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(m) The ownership of Borrower, as of the date hereof and, after
giving effect to the Merger, is accurately described in each and
every respect on Exhibit "D" attached hereto and by this
-----------
reference made a part hereof.
(n) (i) Borrower is not an "employee benefit plan" as defined in
Section 3(3) of ERISA, which is subject to Title I of ERISA, or a
"governmental plan" within the meaning of Section 3(32) of ERISA;
(ii) Borrower is not subject to state statutes regulating
investments and fiduciary obligations with respect to
governmental plans; and (iii) one or more of the following
circumstances is true of Borrower:
(x) Equity interests in Borrower are publicly offered
securities, within the meaning of 29
C.F.R Section 2510.3-101(b)(2);
(y) Less than twenty-five percent (25%) of each outstanding
class of equity interests in Borrower are held by "benefit
plan investors" within the meaning of 29
C.F.R.Section 2510.3-101(f)(2); or
(z) Borrower qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29 C.F.R.
Section 2510.3-101(c) or (e) or an
6
investment company registered under The Investment Company
Act of 1940.
(o) The April 1, 2002 payments due under the Loan Documents shall be
paid in accordance with the provisions of the Loan Documents, and
the consummation of the Merger and the other transactions
consented to herein will not alter the course of said payments.
(p) Borrower has delivered to Lender true, correct and complete
copies of the all Senior Loan Additional Documents.
(q) Borrower hereby reaffirms the obligations of Borrower under
Section 7.1 of the Loan Agreement, to the extent such obligations
are applicable.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
8. NEW GP'S REPRESENTATIONS, WARRANTIES AND COVENANTS. New GP hereby
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represents, warrant, and covenants to Lender that:
(a) New GP is duly authorized to execute, deliver and perform this
Agreement and the Additional Documents to which it is a party.
(b) Any court or third-party approvals necessary for New GP to enter
into this Agreement and the Additional Documents to which it is a
party have been obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of New GP
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of New GP, as applicable, enforceable against
New GP, as applicable, in accordance with their terms and have
not been modified either orally or in writing, except as
expressly set forth in the Additional Documents, as applicable.
(e) There is no existing Event of Default or event or condition that,
with the giving of notice or passage of time or both, would
constitute an Event of Default.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against New GP.
(g) New GP does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor in a
proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement,
7
reorganization or other debtor relief laws, or (iv) make a
general assignment for the benefit of their creditors.
(h) All representations and warranties contained herein shall be true
as of the date of this Agreement and shall survive the Closing.
(i) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(j) The ownership of New GP, as of the date hereof, after giving
effect to the Merger, is accurately described in each and every
respect on Exhibit "E" attached hereto and by this reference made
-----------
a part hereof.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
9. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee hereby
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represents, warrant, and covenants to Lender that:
(a) Lessee is duly authorized to execute, deliver and perform this
Agreement and the Additional Documents to which it is a party.
(b) Any court or third-party approvals necessary for Lessee to enter
into this Agreement and the Additional Documents to which it is a
party have been obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of Lessee
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of Lessee, as applicable, enforceable against
Lessee, as applicable, in accordance with their terms and have
not been modified either orally or in writing, except as
expressly set forth in the Additional Documents, as applicable.
(e) There is no existing Event of Default or event or condition that,
with the giving of notice or passage of time or both, would
constitute an Event of Default.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against Lessee.
(g) Lessee does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor and a
proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement, reorganization or other debtor
relief laws, or (iv) make a general assignment for the benefit of
their creditors.
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(h) All representations and warranties contained herein shall be true
as of the date of this Agreement and the Closing and shall
survive the Closing.
(i) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(j) The ownership of Lessee, as of the date hereof and, after giving
effect to the Merger, are accurately described in each and every
respect on Exhibit "D" attached hereto and by this reference made
-----------
a part hereof.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
10. EXISTING GP'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Existing GP
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hereby represents, warrants, and covenants to Lender that:
(a) Existing GP is duly authorized to execute, deliver and perform
this Agreement.
(b) Any court or third-party approvals necessary for Existing GP to
enter into this Agreement have been obtained.
(c) The entities and/or persons executing this Agreement on behalf of
Existing GP are duly authorized to execute and deliver this
Agreement.
(d) This Agreement is in full force and effect and the transactions
contemplated herein constitute valid and binding obligations of
Existing GP enforceable against Existing GP in accordance with
its terms and this Agreement has not been modified either orally
or in writing.
(e) Immediately prior to the consummation of the Merger (a) the Loan
Documents were in full force and effect and constituted the valid
and binding obligations of Borrower and Existing GP, as
applicable, enforceable against Borrower and Existing GP, as
applicable, in accordance with their terms and, (b) there was no
existing Event of Default or event or condition that, with the
giving of notice or passage of time or both, would constitute an
Event of Default. To Existing GP's knowledge, the Loan Documents
continue to be in full force and effect and constitute the valid
and binding obligations of Borrower, enforceable against Borrower
in accordance with their terms.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or, to the best of Existing GP's knowledge, threatened
against Existing GP.
(g) Existing GP does not have any intention to do any of the
following prior to the Closing or within the 180 days following
the Closing: (i) seek entry of any order for relief as debtor in
a proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement, reorganization or other debtor
relief laws, or (iv) make a general assignment for the benefit of
their creditors.
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(h) All representations and warranties of Existing GP contained
herein shall be true as of the date of this Agreement and shall
survive the Closing.
(i) To the best of Existing GP's knowledge, Lender has not waived any
requirements of the Loan Documents nor any of Lender's rights
thereunder.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
11. RATIFICATION BY EXISTING GP. Existing GP hereby acknowledges, covenants
---------------------------
and agrees that nothing contained in this Agreement, or otherwise, shall be
deemed or construed to release Existing GP from any liability or other
obligations under the Loan Documents accruing or arising prior to the date of
Closing including, without limitation, Existing GP's liabilities and obligations
under the terms of the Environmental Indemnity Agreement executed by Existing GP
(any and all such obligations accruing prior to the date of Closing shall be
herein referred to as the "Existing GP Obligations"). Existing GP hereby
expressly ratifies and confirms the Existing GP Obligations. Existing GP's
acknowledgment and ratification of the foregoing Existing GP Obligations (a) is
absolute, unconditional and is not subject to any defenses, waivers, claims or
offsets, and (b) shall not be affected or impaired by any agreement, condition,
statement or representation of any person or entity.
12. RELEASE OF LENDER. Borrower, for itself and for its agents, employees,
-----------------
representatives, officers, directors, general partners, limited partners,
members, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, servants and attorneys, and Existing GP, for itself
and for its agents, employees, representatives, officers, directors, members,
partners, limited partners, members, joint shareholders, beneficiaries,
trustees, administrators, subsidiaries, affiliates, servants and attorneys
(collectively, the "Borrower Releasing Parties") jointly and severally release
and forever discharge Lender and iStar Asset Services, Inc., and their
respective successors, assigns, partners, directors, officers, employees,
agents, attorneys, administrators, trustees, subsidiaries, affiliates,
beneficiaries, shareholders and representatives (collectively, the "Released
Parties") from all liabilities, obligations, costs, expenses, claims and
damages, at law or in equity, known or unknown, of any kind or nature whatsoever
with respect to the Loan, the Loan Documents, the administration or funding of
the Loan, the transactions contemplated hereby or with respect to any acts or
omissions of any of the Released Parties. The Borrower Releasing Parties agree
that this release is a full, final and complete release and that it may be
pleaded as an absolute bar to any or all suit or suits pending or which may
thereafter be filed or prosecuted by any of the Borrower Releasing Parties, or
anyone claiming by, through or under any of the Borrower Releasing Parties. The
Borrower Releasing Parties agree that this release is binding upon Borrower and
Existing GP and intended to be binding on each of the Borrower Releasing Parties
and their respective agents, employees, representatives, officers, directors,
general partners, limited partners, members, joint shareholders, beneficiaries,
trustees, administrators, subsidiaries, affiliates, employees, servants and
attorneys.
13. REFERENCES IN THE LOAN DOCUMENTS. Borrower, New GP and Lender hereby
--------------------------------
acknowledge and agree that the terms "Beneficiary", "Lender" and "Assignee"
contained in the Loan Documents shall be deemed to refer to Lender and its
successors and/or assigns. Borrower, New GP and Lender further acknowledge and
agree that from and after the date hereof, this Agreement and the Additional
Documents shall be deemed and construed to be "Loan Documents" under the Loan
Documents for all purposes.
14. RATIFICATION AND CONFIRMATION OF THE LOAN. Each of Borrower, New GP and
-----------------------------------------
Lessee agrees to perform each and every obligation under the Loan Documents, as
specifically
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modified by this Agreement and the Additional Documents, and under the
Additional Documents to which it is a party, in accordance with their respective
terms and conditions. Each of Borrower, New GP and Lessee ratify, affirm,
reaffirm, acknowledge, confirm and agree that the Loan Documents, as
specifically modified by this Agreement and the Additional Documents, remain in
full force and effect and, together with any Additional Documents, represent
legal, valid and binding obligations of each of Borrower, New GP and Lessee, as
applicable, enforceable against Borrower, New GP and Lessee, as applicable, in
accordance with their terms. Each of Borrower, New GP and Lessee acknowledge and
agree that, as of the date hereof, they have no defenses to their respective
obligations under the Loan Documents and the Additional Documents, any and all
such defenses being hereby irrevocably waived, released and relinquished.
Borrower, New GP and Lessee agree that this Agreement does not diminish, impair,
release or relinquish the liens, powers, titles, security interests and rights
securing or guaranteeing payment of the Loan, including the validity or first
priority of the liens and security interests encumbering the Property granted
Lender by the Loan Documents and the Additional Documents.
15. NONWAIVER. The parties hereto acknowledge and agree that (a) any
---------
performance or non-performance of the Loan Documents prior to the date of this
Agreement does not affect or diminish Lender's ability to require future
compliance with the Loan Documents, and (b) in the future, Lender will require
strict compliance with and performance of the Loan Documents. Nothing contained
herein shall be construed as a waiver of any of Lender's rights or remedies with
respect to any default under this Agreement, any Additional Documents or any
Loan Document.
16. BANKRUPTCY OF BORROWER, NEW GP AND LESSEE. Borrower covenants and
-----------------------------------------
agrees that in the event Borrower shall (i) file any petition with any
bankruptcy court or be the subject of any petition under the United States
Bankruptcy Code (11 U.S.C. Section 101 et seq., the "Code"), (ii) file or be the
------
subject of any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or other
relief for debtors, (iii) have sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator, or liquidator, or (iv) be the
subject of any order, judgment, or decree entered by any court of competent
jurisdiction approving a petition filed against such party for any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or relief for debtors, Lender shall
thereupon be entitled, and Borrower irrevocably consents, to the entry of an
order by a bankruptcy court granting to Lender relief from any automatic stay
imposed by Section 362 of the Code, or otherwise, on or against the exercise of
the rights and remedies otherwise available to Lender as provided in the Loan
Documents, this Agreement, the Additional Documents or as otherwise provided by
law or in equity, and Borrower irrevocably waives its right to object to,
attempt to enjoin or otherwise interfere with such relief and the exercise and
enforcement by Lender of its rights and remedies following entry of such order.
Without limiting the generality of the immediately preceding sentence, Borrower
agrees that Lender will be entitled to and it consents to immediate relief from
the automatic stay imposed by the Code to allow Lender to take any and all
actions necessary, desirable or appropriate to enforce any rights Lender may
have under the Loan Documents or the Additional Documents, including, but not
limited to, the right to possession of the Property, collection of rents, and/or
the commencement or continuation of an action to foreclose Lender's liens and
security interests. Borrower further agrees that the filing of any petition for
relief under the Code which postpones, prevents, delays or otherwise hinders
Lender's efforts to collect the amounts due under the Note or to liquidate any
of the collateral therefor shall be deemed to have been filed in bad faith and,
therefore, shall be subject to prompt dismissal or conversion to a liquidation
case under the Code upon motion therefor by Lender. Further, Borrower agrees
that it will not seek, apply for or cause the entry of any order enjoining,
staying, or otherwise prohibiting or interfering with Lender's obtaining an
order granting relief from the automatic stay and enforcement of any rights
which Lender may have under the Loan Documents or the Additional Documents,
including, but not limited to, Lender's right to possession of the Property,
collection of rents
11
and/or the commencement or continuation of an action to foreclose Lender's liens
and security interests under the Loan Documents and/or the Additional Documents.
New GP covenants and agrees that in the event New GP shall (i) file any
petition with any bankruptcy court or be the subject of any petition under the
Code, (ii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or other relief for debtors, (iii) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, or (iv) be the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
for debtors, Lender shall thereupon be entitled, and New GP irrevocably
consents, to the entry of an order by a bankruptcy court granting to Lender
relief from any automatic stay imposed by Section 362 of the Code, or otherwise,
on or against the exercise of the rights and remedies otherwise available to
Lender as provided in the Loan Documents, this Agreement, the Additional
Documents or as otherwise provided by law or in equity, and New GP irrevocably
waives its right to object to, attempt to enjoin or otherwise interfere with
such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, New GP agrees that Lender will be entitled to
and it hereby consents to immediate relief from the automatic stay imposed by
the Code to allow Lender to take any and all actions necessary, desirable or
appropriate to enforce any rights Lender may have under the Loan Documents or
the Additional Documents, including, but not limited to, the right to possession
of the Property, collection of rents, and/or the commencement or continuation of
an action to foreclose Lender's liens and security interests. New GP further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays or otherwise hinders Lender's efforts to collect the
amounts due under the Note or to liquidate any of the collateral therefor shall
be deemed to have been filed in bad faith and, therefore, shall be subject to
prompt dismissal or conversion to a liquidation case under the Code upon motion
therefor by Lender. Further, New GP agrees that it will not seek, apply for or
cause the entry of any order enjoining, staying, or otherwise prohibiting or
interfering with Lender's obtaining an order granting relief from the automatic
stay and enforcement of any rights which Lender may have under the Loan
Documents or the Additional Documents, including, but not limited to, Lender's
right to possession of the Property, collection of rents and/or the commencement
or continuation of an action to foreclose Lender's liens and security interests
under the Loan Documents or the Additional Documents.
Lessee covenants and agrees that in the event Lessee shall (i) file any
petition with any bankruptcy court or be the subject of any petition under the
Code, (ii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or other relief for debtors, (iii) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, or (iv) be the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
for debtors, Lender shall thereupon be entitled, and Lessee irrevocably
consents, to the entry of an order by a bankruptcy court granting to Lender
relief from any automatic stay imposed by Section 362 of the Code, or otherwise,
on or against the exercise of the rights and remedies otherwise available to
Lender as provided in the Loan Documents, this Agreement, the Additional
Documents or as otherwise provided by law or in equity, and Lessee irrevocably
waives its right to object to, attempt to enjoin or otherwise interfere with
such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, Lessee agrees that Lender will be
12
entitled to and it hereby consents to immediate relief from the automatic stay
imposed by the Code to allow Lender to take any and all actions necessary,
desirable or appropriate to enforce any rights Lender may have under the Loan
Documents or the Additional Documents, including, but not limited to, the right
to possession of the Property, collection of rents, and/or the commencement or
continuation of an action to foreclose Lender's liens and security interests.
Lessee further agrees that the filing of any petition for relief under the Code
which postpones, prevents, delays or otherwise hinders Lender's efforts to
collect the amounts due under the Note or to liquidate any of the collateral
therefor shall be deemed to have been filed in bad faith and, therefore, shall
be subject to prompt dismissal or conversion to a liquidation case under the
Code upon motion therefor by Lender. Further, Lessee agrees that it will not
seek, apply for or cause the entry of any order enjoining, staying, or otherwise
prohibiting or interfering with Lender's obtaining an order granting relief from
the automatic stay and enforcement of any rights which Lender may have under the
Loan Documents or the Additional Documents, including, but not limited to,
Lender's right to possession of the Property, collection of rents and/or the
commencement or continuation of an action to foreclose Lender's liens and
security interests under the Loan Documents and/or the Additional Documents.
17. COMPLIANCE WITH INTEREST LAW. It is the intention of the parties hereto
----------------------------
to conform strictly to any present or future law which has application to the
interest and other charges under the Loan Documents (the "Interest Law").
Accordingly, notwithstanding anything to the contrary in the Loan Documents, the
parties hereto agree that the aggregate amount of all interest or other charges
taken, reserved, contracted for, charged or received under the Loan Documents or
otherwise in connection with the Loan shall under no circumstances exceed the
maximum amount of interest allowed by the Interest Law. If any excess interest
is provided for in the Loan Documents, then any such excess shall be deemed a
mistake and canceled automatically and, if theretofore paid, shall be credited
against the indebtedness evidenced and secured by the Loan Document (the
"Indebtedness") (or if the Indebtedness shall have been paid in full, refunded
by Lender), and the effective rate of interest under the Loan Documents shall be
automatically reduced to the maximum effective contract rate of interest that
Lender may from time to time legally charge under the then applicable Interest
Law with respect to the Loan. To the extent permitted by the applicable Interest
Law, all sums paid or agreed to be paid to Lender for the use, forbearance or
detention of the Indebtedness shall be amortized, prorated, allocated and spread
throughout the full term of the Loan.
18. FURTHER ASSURANCES. The parties hereto agree to do any act or execute
------------------
any additional documents required by Lender, from time to time, to effectuate
the purposes of this Agreement or to better assure, convey, assign, transfer,
perfect or confirm unto Lender the property and rights intended to be given it
in the Loan Documents and the Additional Documents. In furtherance of and
without limiting or diminishing anything in the foregoing, Borrower and New GP
covenant and agree that Borrower shall deliver to Lender on or before April 29,
2002 evidence in form and substance reasonably satisfactory to Lender (a) that
New GP is qualified to do business in California, Colorado, Georgia, Illinois,
Michigan, Missouri and Ohio, (b) that Lessee is qualified to do business in
Illinois and Ohio, (c) that AHM Res I GP, Inc. (the general partner of lessee)
is qualified to do business in Illinois and Ohio, and (d) that appropriate
required documentation has been filed in Delaware, California, Colorado,
Georgia, Illinois, Michigan, Missouri and Ohio evidencing that New GP is the new
general partner of Borrower (collectively, the "Post Closing Items"). Borrower
and New GP acknowledge that following Lender's receipt and review of each of the
Post Closing Items, Lender may reasonably require the delivery of additional
documentation, information or revisions to the Loan Documents to address matters
raised thereby and Borrower and New GP acknowledge and agree that the
requirements of this paragraph shall not be deemed satisfied until all of the
Post Closing Items, and all of such additional documentation, information or
other matters or Loan Document revisions as Lender may require following receipt
thereof, are delivered to Lender and approved by Lender. Borrower and New GP
further acknowledge and
13
agree that the failure to comply with the terms of this paragraph on or before
April 29, 2002 shall constitute an Event of Default under the Loan Agreement and
the other Loan Documents. Further, Borrower and New GP acknowledge and agree
that Borrower shall remain responsible for all costs and expenses incurred by
Lender in connection with the satisfaction of the Post Closing Items.
19. LIABILITY. If any party hereto consists of more than one person, the
---------
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns forever.
20. SEVERABILITY. If any term, covenant or condition of this Agreement is
------------
held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such term, covenant or condition and the validity or
enforceability of the remaining terms, covenants or conditions shall not in any
way be affected.
21. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed and
----------------------------
construed in accordance with the laws of the State of New York (other than those
conflicts of laws provisions that would defer to the substantive laws of another
jurisdiction). Without in any way limiting the preceding choice of law, the
parties elect to be governed by New York law in accordance with, and are relying
(at least in part) on, Section 5-1401 of the General Obligations Law of the
State of New York. The parties hereto submit to personal jurisdiction in the
state courts located in said state and the federal courts of the United States
of America located in said state for the enforcement of any obligations
hereunder and waive any and all personal rights under the law of any other state
to object to jurisdiction within such state for the purposes of any action,
suit, proceeding or litigation to enforce such obligations.
22. NO RESTRICTIONS ON PERFORMANCE. The execution and delivery of this
------------------------------
Agreement and compliance with the provisions hereof, will not conflict with, or
constitute a breach of or a default under any agreement or other instrument to
which any party hereto is a party or by which it is bound.
23. DEFINITIONS. Unless the context clearly indicates a contrary intent or
-----------
unless otherwise specifically provided herein, words used in this Agreement
(including pronouns) shall include the corresponding masculine, feminine or
neuter forms, and the singular form of such words shall include the plural and
vice versa. The words "included", "includes" and "including" shall each be
deemed to be followed by the phrase, "without limitation." The words "herein",
"hereby", "hereof", and "hereunder" shall each be deemed to refer to this entire
Agreement and not to any particular paragraph, article or section hereof. Not
withstanding the foregoing, if any law is amended so as to broaden the meaning
of any term defined in such law, such broader meaning shall apply subsequent to
the effective date of such amendment. Where a defined term derives its meaning
from a statutory reference, any regulatory definition is broader than the
statutory reference and any reference or citation to a statute or regulation
shall be deemed to include any amendments to that statue or regulation and
judicial and administrative interpretations of it.
24. SECURITIES ACT OF 1933. Neither Borrower nor any agent acting for
----------------------
Borrower has offered the Note or any similar obligation for sale to or solicited
any offers to buy the Note or any similar obligation from any person or party
other than Lender, and neither Borrower nor any agent acting for Borrower will
take any action which would subject the sale of the Note to the provisions of
Section 5 of the Securities Act of 1933, as amended.
25. COMPLIANCE WITH ERISA. As of the date of this Agreement, neither
---------------------
Borrower nor New GP nor Lessee maintains any employee benefit plan which require
compliance with ERISA. If
14
at any time Borrower, New GP or Lessee shall institute any employee benefit
plans, they shall at all times comply with the requirements of ERISA.
26. SOLE DISCRETION OF LENDER. Wherever pursuant to this Agreement, Lender
-------------------------
exercises any right given to it to approve or disapprove, or any arrangement or
term is to be satisfactory to Lender, Lender's decision to approve or disapprove
or to decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole and absolute discretion of Lender and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
27. HEADINGS, ETC. The headings and captions of various paragraphs of this
-------------
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
28. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Agreement.
29. INTEGRATION, SURVIVAL. This Agreement, the Additional Documents, and
---------------------
the Loan Documents embody the entire agreement by and between the parties hereto
with respect to the Loan. Except as otherwise specifically provided herein, all
obligations of any party contained in this Agreement, the New Loan Documents or
the Loan Documents shall survive the Closing, and Lender hereby preserves all of
its rights against all persons or entities and all collateral securing the Loan,
including, without limitation, the Property.
30. NO ORAL CHANGE. This Agreement, and any provisions hereof, may not be
--------------
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of any party hereto, but only by an
agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
31. NOTICES. Except as otherwise specified herein, any notice, consent,
-------
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Loan Agreement using the address for a
party hereto set forth at the top of the first page of this Agreement.
32. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
--------------------
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THE LOAN OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE ADDITIONAL DOCUMENTS, OR THE LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S CONSENT
TO THE MERGER.
[remainder of page intentionally left blank]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day, month and year
first above written.
BORROWER:
---------
MARRIOTT RESIDENCE INN LIMITED
PARTNERSHIP, a Delaware limited partnership
By: AHT Res I GP, Inc., a Virginia
corporation, its sole general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: President
-------------------------------------
(CORPORATE SEAL)
NEW GP:
-------
AHT RES I GP, INC., a Virginia corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Its: President
-----------------------------------------
(CORPORATE SEAL)
LESSEE:
-------
AHM RES I LIMITED PARTNERSHIP, a
Virginia limited partnership
By: AHM Res I GP, Inc., a Virginia
corporation,its sole general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: President
-----------------------------------
(CORPORATE SEAL)
[signatures continue on next page]
16
EXISTING GP:
------------
RIBM ONE LLC, a Delaware limited liability
company
By: /s/ Xxxxxx X Xxxxxxx
------------------------------------------------
Name: Xxxxxx X Xxxxxxx
----------------------------------------
Its: President
-----------------------------------------
LENDER:
-------
LASALLE BANK NATIONAL ASSOCIATION, AS INDENTURE
TRUSTEE FOR THE BENEFIT OF THE HOLDERS OF ISTAR
ASSET RECEIVABLES TRUST COLLATERALIZED MORTGAGE
BONDS SERIES 2000-1
By: iStar Asset Services, Inc., as duly authorized
primary servicer
By: /s/ Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx
Its: President
17
ACKNOWLEDGMENTS
---------------
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHT Res I GP, Inc., a Virginia corporation, general
partner of Marriott Residence Inn Limited Partnership, a Delaware limited
partnership, the party named as Borrower in the aforementioned legal instrument,
and being by me first duly sworn did depose and say to me that he/she is the
President of AHT Res I GP, Inc.; that he/she knows the seal of such corporation;
that the seal imprinted on the legal instrument to which this acknowledgment is
attached is attached an imprint of the true corporate seal of said corporation;
that after being duly informed of the contents and import of such legal
instrument he/she signed and caused the seal of such corporation to be imprinted
on such legal instrument as the officer of such corporation indicated above;
that he/she has signed and sealed the same in the name of and on behalf of such
corporation (acting as the general partner of Marriott Residence Inn Limited
Partnership) by the authority, order and resolution of its Board of Directors;
that he/she has signed his/her name thereto on behalf of said corporation, as
general partner of said limited partnership, by like order; that the execution
of said legal instrument was his/her free and voluntary act and deed and the
free and voluntary act and deed of said corporation and said limited partnership
for the consideration, purposes and uses set forth in such legal instrument to
the other parties thereto as such; and that on behalf of said limited
partnership, he/she has received a true copy of such legal instrument without
charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxx X. Xxxxxx
[NOTARIAL SEAL] -----------------------------------
Notary Public
Commission Expires: Dec 31, 2002
18
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHT Res I GP, Inc., a Virginia corporation, the party
named as New GP in the aforementioned legal instrument, and being by me first
duly sworn did depose and say to me that he/she is the President of AHT Res I
GP, Inc.; that he/she knows the seal of such corporation; that the seal
imprinted on the legal instrument to which this acknowledgment is attached is
attached an imprint of the true corporate seal of said corporation; that after
being duly informed of the contents and import of such legal instrument he/she
signed and caused the seal of such corporation to be imprinted on such legal
instrument as the officer of such corporation indicated above; that he/she has
signed and sealed the same in the name of and on behalf of such corporation by
the authority, order and resolution of its Board of Directors; that he/she has
signed his/her name thereto on behalf of said corporation by like order; that
the execution of said legal instrument was his/her free and voluntary act and
deed and the free and voluntary act and deed of said corporation for the
consideration, purposes and uses set forth in such legal instrument to the other
parties thereto as such; and that on behalf of said corporation, he/she has
received a true copy of such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxx X. Xxxxxx
[NOTARIAL SEAL] -----------------------------------
Notary Public
Commission Expires: Dec 31, 2002
------------
19
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHM Res I GP, Inc., a Virginia corporation, sole general
partner of AHM Res I Limited Partnership, a Virginia limited partnership, the
party named as Lessee in the aforementioned legal instrument, and being by me
first duly sworn did depose and say to me that he/she is the President of AHM
Res I GP, Inc.; that he/she knows the seal of such corporation; that the seal
imprinted on the legal instrument to which this acknowledgment is attached is
attached an imprint of the true corporate seal of said corporation; that after
being duly informed of the contents and import of such legal instrument he/she
signed and caused the seal of such corporation to be imprinted on such legal
instrument as the officer of such corporation indicated above; that he/she has
signed and sealed the same in the name of and on behalf of such corporation
(acting as the sole general partner of AHM Res I Limited Partnership) by the
authority, order and resolution of its Board of Directors; that he/she has
signed his/her name thereto on behalf of said corporation, as sole general
partner of said limited partnership, by like order; that the execution of said
legal instrument was his/her free and voluntary act and deed and the free and
voluntary act and deed of said corporation and said limited partnership for the
consideration, purposes and uses set forth in such legal instrument to the other
parties thereto as such; and that on behalf of said limited partnership, he/she
has received a true copy of such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxx X. Xxxxxx
[NOTARIAL SEAL] -----------------------------------
Notary Public
Commission Expires: Dec. 31, 2002
20
STATE OF Maryland )
)
COUNTY OF Xxxxxxxxxx )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxxx X. Xxxxxxx, personally known
to me to be the person named in and who signed the legal instrument to which
this acknowledgment is attached and which was produced to me in the State and
County aforesaid, on behalf of RIBM One LLC, a Delaware limited liability
company, the party named as Existing GP in the aforementioned legal instrument,
and being by me first duly sworn did depose and say to me that he/she is the
President & Manager of RIBM One LLC; that he/she knows the seal of such limited
liability company; that the seal imprinted on the legal instrument to which this
acknowledgment is attached is attached an imprint of the true corporate seal of
said limited liability company; that after being duly informed of the contents
and import of such legal instrument he/she signed and caused the seal of such
limited liability company to be imprinted on such legal instrument as the
officer of such limited liability company indicated above; that he/she has
signed and sealed the same in the name of and on behalf of such limited
liability company by the authority, order and resolution of its Board of
Directors; that he/she has signed his/her name thereto on behalf of said limited
liability company by like order; that the execution of said legal instrument was
his/her free and voluntary act and deed and the free and voluntary act and deed
of said limited liability company for the consideration, purposes and uses set
forth in such legal instrument to the other parties thereto as such; and that on
behalf of said limited liability company, he/she has received a true copy of
such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxx X. Xxxxxx
[NOTARIAL SEAL] -----------------------------------
Notary Public
Commission Expires: May 31, 2003
21
STATE OF Connecticut )
)
COUNTY OF Hartford )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxxxx Xxxxx, personally known to me
to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of iStar Asset Services, Inc., as Primary Servicer and
Attorney-in-Fact for LaSalle Bank National Association, as Indenture Trustee for
the benefit of the Holders of iStar Asset Receivables Trust Collateralized
Mortgage Bonds Series 2000-1, the party named as Lender in the aforementioned
legal instrument, and being by me first duly sworn did depose and say to me that
he/she is the President of iStar Asset Services, Inc.; that he/she knows the
seal of such corporation; that the seal imprinted on the legal instrument to
which this acknowledgment is attached is attached an imprint of the true
corporate seal of said corporation; that after being duly informed of the
contents and import of such legal instrument he/she signed and caused the seal
of such corporation to be imprinted on such legal instrument as the officer of
such corporation indicated above; that he/she has signed and sealed the same in
the name of and on behalf of such corporation (acting as Primary Servicer and
Attorney-in-Fact) pursuant to proper authority; that he/she has signed his name
thereto on behalf of said corporation (acting as Primary Servicer and
Attorney-in-Fact) by like order; that the execution of said legal instrument was
his/her free and voluntary act and deed and the free and voluntary act and deed
of said corporation (acting as Primary Servicer and Attorney-in-Fact) for the
consideration, purposes and uses set forth in such legal instrument to the other
parties thereto as such; and that on behalf of said corporation (acting as
Primary Servicer and Attorney-in-Fact), he/she has received a true copy of such
legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxxxx Xxxxxxxxxxxxx
[NOTARIAL SEAL] -----------------------------------
Notary Public
Commission Expires: March 31, 2005
22
EXHIBIT "A"
Legal Description
-----------------
A-1
EXHIBIT "B"
Loan Documents
--------------
All documents dated as of October 10, 1995 unless otherwise stated.
1. Promissory Note in the original principal amount of $30,000,000 by Borrower
to Original Lender.
2. Loan Agreement between Borrower and Original Lender.
3. Four-Party Agreement by and between Borrower, German American Capital
Corporation, Lender and Residence Inn by Marriott, Inc.
4. Indemnity Agreement by Borrower and RIBM One Corporation in favor of Lender.
5. Junior Assignment of Management Agreement and Manager's Consent by Borrower
to Original Lender.
6. Manager's Letter Agreement from Borrower and Marriott Residence Inn by
Marriott, Inc.
7. UCC Financing Statements relating each of the Hotels.
8. Junior Deed of Trust and Security Agreement from Borrower for the benefit of
Original Lender with respect to the Inn located in Costa Mesa, Orange County,
California.
9. Junior Assignment of Rents and Revenues from Borrower to Original Lender with
respect to the Inn located in Costa Mesa, Orange County, California.
10. Junior Deed of Trust and Security Agreement from Borrower for the benefit of
Original Lender with respect to the Inn located in Costa Mesa, Los Angeles
County, California.
11. Junior Assignment of Rents and Revenues from Borrower for the benefit of
Original Lender with respect to the Inn located in Costa Mesa, Los Angeles
County, California.
12. Junior Deed of Trust and Security Agreement from Borrower for the benefit of
Original Lender with respect to the Inn located in La Jolla, San Diego County,
California.
13. Junior Assignment of Rents and Revenues from Borrower for the benefit of
Original Lender with respect to the Inn located in La Jolla, San Diego County,
California.
14. Junior Deed to Secure Debt and Security Agreement from Borrower for the
benefit of Original Lender with respect to the Inn located in Smyana, Georgia.
15. Junior Assignment of Rents and Revenues from Borrower for the benefit of
Original Lender with respect to the Inn located in Smyana, Georgia.
B-1
16. Junior Deed to Secure Debt and Security Agreement from Borrower for the
benefit of Original Lender with respect to the Inn located in Atlanta/Dunwoody,
DeKalb County, Georgia.
17. Junior Assignment of Rents and Revenues from Borrower for the benefit of
Original Lender with respect to the Inn located in Atlanta/Dunwoody, DeKalb
County, Georgia.
18. Junior Deed to Secure Debt and Security Agreement from Borrower for the
benefit of Original Lender with respect to the Inn located in Atlanta/Buckhead,
Xxxxxx County, Georgia.
19. Junior Assignment of Rents and Revenues from Borrower for the benefit of
Original Lender with respect to the Inn located in Atlanta/Buckhead, Xxxxxx
County, Georgia.
20. Junior Mortgage and Security Agreement from Borrower to Original Lender with
respect to the Inn located in Oakland County, Michigan.
21. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Oakland County, Michigan.
22. Junior Mortgage and Security Agreement from Borrower to Original Lender with
respect to the Inn located in DuPage County, Illinois.
23. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in DuPage County, Illinois.
24. Junior Deed of Trust, Assignment of Rents, Security Agreement, Financing
Statement and Fixture Filing from Borrower for the benefit of Original Lender
with respect to Inn located in Boulder County, Colorado.
25. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Boulder County, Colorado.
26. Junior Open-End Mortgage, Security Agreement and Fixture Financing Statement
from Borrower to Original Lender with respect to the Inn located in Xxxxxxxx
County, Ohio.
27. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Xxxxxxxx County, Ohio.
28. Junior Open-End Mortgage, Security Agreement and Fixture Financing Statement
from Borrower to Original Lender with respect to the Inn located in Xxxxxxxxxx
County (Dayton South), Ohio.
29. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Xxxxxxxxxx County (Dayton South), Ohio.
30. Junior Open-End Mortgage, Security Agreement and Fixture Financing Statement
from Borrower to Original Lender with respect to the Inn located in Xxxxxxxxxx
County (Dayton), Ohio.
31. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Xxxxxxxxxx County (Dayton), Ohio.
32. Junior Open-End Mortgage, Security Agreement and Fixture Financing Statement
from Borrower to Original Lender with respect to the Inn located in Franklin
County, Ohio.
B-2
33. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in Franklin County, Ohio.
34. Junior Future Advance Deed of Trust and Security Agreement from Borrower for
the benefit of Original Lender with respect to the Inn located in St. Louis
County (Chesterfield), Missouri.
35. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in St. Louis County (Chesterfield), Missouri.
36. Junior Future Advance Deed of Trust and Security Agreement from Borrower for
the benefit of Original Lender with respect to the Inn located in St. Louis
County (Galleria), Missouri.
37. Junior Assignment of Rents and Revenues from Borrower to Original Lender
with respect to the Inn located in St. Louis County (Galleria), Missouri.
38. Fifteen (15) separate Subordination, Non-Disturbance and Attornment
Agreements between Original Lender and Residence Inn by Marriott, Inc.
B-3
EXHIBIT "C"
Lender's Wiring Instructions
----------------------------
Bank: X.X. Xxxxxx Xxxxx
Account Name: iStar Asset Services, in trust for First Union National Bank, in
trust for LaSalle Bank National Association, as Indenture
Trustee, for Holders of iStar Asset Receivables Trust,
Collateralized Mortgage Bonds, Series 2000-1 Primary Collection
Account
Account Number: 230-914101
ABA Number: 000-000-000
C-1
EXHIBIT "D"
Ownership Structure of Borrower, New GP and Lessee
--------------------------------------------------
D-1
EXHIBIT "E"
Schedule of Senior Loan Consent Documents
-----------------------------------------
E-1
