Exhibit 10.7(a)
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Prepared by:
And when recorded mail to:
Xxxxx, Johnson, Robinson,
Xxxx & Ragonetti, P.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
MORTGAGE AND LOAN MODIFICATION AGREEMENT
This MORTGAGE AND LOAN MODIFICATION AGREEMENT (this "Agreement"),
dated as of March 24, 2004, to be effective as of December 1, 2003 (the
"Effective Date"), is made by and between SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership ("Borrower"), and SUNAMERICA LIFE
INSURANCE COMPANY, an Arizona corporation ("Lender").
RECITALS
A. On or about June 2, 2000, Lender made a loan in the principal
amount of $31,000,000.00 (the "Loan") to Borrower.
B. The Loan is evidenced by a Consolidated and Renewed Promissory
Note dated May 30, 2000, in the original principal amount of the Loan executed
by Borrower to the order of Lender (the "Note"), and is secured by, among other
things, a Consolidated, Amended and Restated Mortgage, Security Agreement,
Fixture Filing, Financing Statement and Assignment of Leases and Rents dated as
of May 30, 2000 (the "First Mortgage"), executed by Borrower for the benefit of
Lender, encumbering certain real property and improvements thereon commonly
known as the Sonesta Beach Resort, Key Biscayne, County of Miami-Dade, Florida,
and more particularly described in the First Mortgage and in EXHIBIT A attached
hereto (the "Property"). The First Mortgage was recorded with the Clerk of
Miami-Dade County, Florida, on June 2, 2000, in Official Records Book 19137,
Page 1265.
C. In connection with the Loan, Borrower executed a Replacement
Reserve and Security Agreement dated as of May 30, 2000 (the "Replacement
Reserve and Security Agreement") for the benefit of Lender.
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D. The Note, the First Mortgage, the Replacement Reserve and
Security Agreement and each other document executed by Borrower and evidencing
or securing the Loan (excluding, however, the Non-Recourse Guaranty Agreement
and the Second Mortgage (as such terms are hereinafter defined)), are referred
to herein, collectively, as the "Loan Documents."
E. On or about June 2, 2000, Lender also made an additional advance
of $19,865,733.66 (the "Cambridge Additional Advance") on an existing loan (the
"Original Cambridge Loan") to certain affiliates of Borrower, Sonesta of
Massachusetts, Inc., a Massachusetts corporation, and Xxxxx X. Xxxxxxxxx, Xxxxx
X. Xxxxxxxxx, and Boy X.X. xxx Xxxx, trustees of the Charterhouse of Cambridge
Trust, and not individually, under a Declaration of Trust dated December 27,
1963 and recorded at Middlesex South, Commonwealth of Massachusetts, Deeds Book
11160, Page 340, as amended by Amendment of Declaration of Trust dated July 8,
1966 and recorded at Middlesex South, Commonwealth of Massachusetts, Deeds Book
11160, Page 359 (collectively, the "Cambridge Borrower"), and, in connection
with the Cambridge Additional Advance, (i) Lender and Cambridge Borrower
consolidated, amended and restated the Original Cambridge Loan and the Cambridge
Additional Advance pursuant to that certain Amended and Restated Promissory Note
dated May 30, 2000, in the original principal amount of $41,000,000.00, executed
by Cambridge Borrower to the order of Lender (the "Cambridge Note"), and (ii)
Lender and Cambridge Borrower entered into certain other modifications to the
Original Cambridge Loan pursuant to that certain Mortgage and Loan Modification
Agreement dated as of May 30, 2000 executed by Lender and Cambridge Borrower
(the "First Cambridge Modification Agreement") to, among other things,
cross-default and cross-collateralize the Original Cambridge Loan and the Loan.
F. In connection with the Cambridge Additional Advance, and in
order to effectuate the cross collateralization of the Original Cambridge Loan
and the Loan, Lender required Borrower to execute that certain Non-Recourse
Guaranty Agreement dated as of May 30, 2000 (the "Non-Recourse Guaranty
Agreement"), whereby Borrower guaranteed payment and performance of Cambridge
Borrower's obligations under the Original Cambridge Loan, and to secure
Borrower's obligations under such Non-Recourse Guaranty Agreement with a second
Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment
of Leases and Rents dated as of May 30, 2000 granted by Borrower for the benefit
of Lender and encumbering the Property (the "Second Mortgage"). The Second
Mortgage was recorded with the Clerk of Miami-Dade County, Florida, on June 2,
2000, in Official Records Book 19137, Page 1312.
G. The loan evidenced by the Cambridge Note, as modified by the
First Cambridge Modification Agreement and as modified pursuant to the Mortgage
and Loan Modification Agreement of even date herewith between Cambridge Borrower
and Lender, is referred to herein as the "Cambridge Loan."
H. As of the Effective Date, (i) the outstanding principal balance
existing under the Loan is $29,750,020.66 and there is no accrued and unpaid
interest due thereon, and (ii) the outstanding principal balance existing under
the Cambridge Loan is $39,346,801.84 and there is no accrued and unpaid interest
due thereon.
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I. Borrower and Lender wish to provide modified repayment terms for
the Loan, and wish to modify certain terms of the Note, the First Mortgage, the
Second Mortgage and the other Loan Documents to reflect certain other agreements
as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree
as follows:
1. NO DEFENSES, SETOFFS OR COUNTERCLAIMS. The Lender has performed
all of its obligations to date under the Loan Documents, and the amounts owed by
the Borrower to the Lender under the Loan are free from any defenses, setoffs or
counterclaims in favor of the Borrower against the Lender. To the extent that
any such defenses, setoffs, or counterclaims now exist, Borrower hereby waives
and releases the same in exchange for the Lender's agreement to modify the Loan
and the Loan Documents as set forth herein.
2. MODIFICATION OF NOTE.
(a) Section 1 of the Note is hereby modified to provide that:
(i) The balance of principal outstanding from time to
time under the Note shall continue to bear interest at eight and sixty
one-hundredths percent (8.60%, hereinafter the "Note Rate"), based on a
360-day year for the actual number of days elapsed.
(ii) Commencing on January 1, 2004, and on the first day
of each month thereafter through and including December 1, 2006 (the
"Reduced Payment Period"), provided that no Event of Default has occurred
under the Note or any of the other Loan Documents, payments of interest
only on the principal balance of the Note, at the rate of five percent
(5.00%) per annum based on a 360-day year for the actual number of days
elapsed (the "Reduced Payment Rate"), shall be payable, in arrears. Unpaid
accrued interest on the Note shall be added to the principal balance of the
Note on December 1, 2004, December 1, 2005 and December 1, 2006. Maker may
pay any accrued but unpaid interest on the Note which has been added to the
principal balance of the Note, without prepayment premium, at any time and
from time to time, on or before December 31, 2007, as provided in Section
4.23 of the First Mortgage.
(iii) Commencing on January 1, 2007, and on the first day
of each month thereafter through and including December 1, 2007 (the
"Interest Only Payment Period"), provided that no Event of Default has
occurred under the Note or any of the other Loan Documents, payments of
interest only on the principal balance of the Note, at the Note Rate, based
on a 360-day year for the actual number of days elapsed, shall be payable,
in arrears.
(iv) Commencing on January 1, 2008, and on the first day
of each month thereafter through and including June 1, 2010 (the "Principal
and Interest
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Payment Period"), combined payments of principal and interest shall be
payable, in arrears, in the amount of $251,712.92.
(v) The entire outstanding principal balance of the Note,
together with all accrued and unpaid interest and all other sums due
thereunder, shall be due and payable in full on July 1, 2010 (the "Original
Maturity Date").
(b) Section 5 of the Note is hereby modified to provide that
if Maker delivers a Defeasance Notice to Holder during the Reduced Payment
Period or the Interest Only Payment Period:
(i) Unpaid accrued interest on the Note shall be added to
the principal balance of the Note on the Defeasance Date; and
(ii) Maker shall then satisfy the Defeasance Requirements,
including the remittance of the Defeasance Deposit, such that the
Defeasance Collateral will be sufficient to pay as and when due the
principal of and interest on the Note on each regularly scheduled payment
date thereunder and on the Original Maturity Date, at the Note Rate and on
the payment schedule set forth in the Note, and not as modified by Section
2(a) of this Agreement.
(c) The third sentence of Section 18 of the Note is hereby
deleted in its entirety and replaced with the following:
The agreement contained in this paragraph to limit the personal
liability of Maker shall become null and void and be of no further
force and effect in the event (i) that the Property or any part
thereof or any interest therein, or any interest in Maker, shall be
further encumbered by a voluntary lien securing any obligation upon
which Maker or any general partner, principal or affiliate of Maker
shall be personally liable for repayment, whether as obligor or
guarantor which has not been approved in advance by Holder; (ii) of
any breach or violation of Section 4.23 or 4.24 of the Mortgage; (iii)
of any breach or violation of Section 5.4, 5.5 or 5.7 of the Mortgage;
(iv) of any fraud or material misrepresentation by Maker in connection
with the Property, the Loan Documents or the application made by Maker
for the Loan; or (v) of any execution, amendment, modification or
termination without the prior written consent of Holder, if such
consent is required under the terms of Section 5.3 of the Mortgage, of
any Lease.
3. MODIFICATION OF FIRST MORTGAGE.
(a) Sections 1.2, 1.3, 1.6, 1.12, 1.13, 1.15, 1.20, 1.21, 1.25
and 1.26 of the First Mortgage are hereby deleted in their entireties, and the
following substituted therefor:
"1.2 CAMBRIDGE LOAN DOCUMENTS: The Cambridge Note, all of the
mortgages, deeds of trust, and other instruments and
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documents executed by the Cambridge Borrower and/or Guarantor securing
the Cambridge Note, including any guaranty agreements, environmental
indemnity agreements, replacement reserve agreements, collateral
assignment of liquor licenses, lease certificates, and all other
documents executed or delivered by the Cambridge Borrower and/or
Guarantor in connection with the transaction pursuant to which the
Cambridge Note has been executed and delivered, together with the
Cambridge Modification Agreement and the other documents executed by
the Cambridge Borrower and/or Guarantor in connection with the
Cambridge Modification Agreement. The term 'Cambridge Loan Documents'
also includes all modifications, extensions, renewals, and
replacements of each document referred to above.
1.3 CAMBRIDGE NOTE: The Amended and Restated Promissory Note dated
as of May 30, 2000 executed by the Cambridge Borrower and payable to
the order to Mortgagee in the principal face amount of $41,000,000.00,
as modified by the Cambridge Modification Agreement, the last payment
under which is due on July 1, 2010, or, if extended by Mortgagee by
its terms, July 1, 2015, unless such due date is accelerated, together
with all renewals, extensions and modifications of such consolidated
and renewed promissory note.
1.6 ENVIRONMENTAL INDEMNITY AGREEMENT: The Environmental Indemnity
Agreement dated as of May 30, 2000 made by Mortgagor and Guarantor for
the benefit of Mortgagee, as modified by (a) the Modification
Agreement, and (d) the Reaffirmation Agreement.
1.12 INTANGIBLE PERSONALTY: The right to use all trademarks and
trade names and symbols or logos used in connection therewith, or any
modifications or variations thereof, in connection with the operation
of the improvements existing or to be constructed on the Property,
together with all accounts, deposit accounts (including, without
limitation, the Pledged Accounts), letter of credit rights, monies in
the possession of Mortgagee (including without limitation proceeds
from insurance, retainages, deposits for taxes and insurance and
monies on deposit in the Additional Collateral Account), Permits,
contract rights (including, without limitation, rights to receive
insurance proceeds), amounts paid as rents of the Property or the
fees, charges, accounts, or other payments for the use or occupancy of
rooms and other public facilities in the Property, and general
intangibles (whether now owned or hereafter acquired, and including
proceeds thereof) relating to or arising from Mortgagor's ownership,
use, operation, leasing, or sale of all or any part of the Property,
specifically including but in no way
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limited to any right which Mortgagor may have or acquire to transfer
any development rights from the Property to other real property, and
any development rights which may be so transferred.
1.13 LEASE CERTIFICATE: The Certificate Concerning Leases dated as
of March 24, 2004, and effective as of the Effective Date, made by
Mortgagor to Mortgagee concerning the Leases.
1.15 LIMITED GUARANTY AGREEMENT: The Limited Guaranty Agreement
dated as of May 30, 2000 made by Guarantor for the benefit of
Mortgagee, as modified by the Reaffirmation Agreement.
1.20 NON-RECOURSE GUARANTY AGREEMENT: The Non-Recourse Guaranty
Agreement dated as of May 30, 2000 made by Mortgagor for the benefit
of Mortgagee, and secured by the Second Mortgage, as modified by the
Reaffirmation and Modification of Non-Recourse Guaranty Agreement
dated as of March 24, 2004, executed by Mortgagor for the benefit of
Mortgagee, pursuant to which Mortgagor has guaranteed payment and
performance of the Cambridge Note and the other Cambridge Loan
Documents.
1.21 NOTE: Mortgagor's Consolidated and Renewed Promissory Note
dated as of May 30, 2000, payable to the order of Mortgagee in the
principal face amount of $31,000,000.00, as modified by the
Modification Agreement, the last payment under which is due on July 1,
2010 or, if extended pursuant to its terms, July 1, 2015, unless such
due date is accelerated, together with all renewals, extensions and
modifications of such Promissory Note. All terms and provisions of the
Note are incorporated by this reference in this Mortgage.
1.25 REPLACEMENT RESERVE AND SECURITY AGREEMENT: The Replacement
Reserve and Security Agreement dated as of May 30, 2000, executed by
Mortgagor for the benefit of Mortgagee, as modified by the
Modification Agreement.
1.26 SECOND MORTGAGE: The Mortgage, Security Agreement, Fixture
Filing, Financing Statement and Assignment of Leases and Rents dated
as of May 30, 2000 executed by Mortgagor for the benefit of Mortgagee
and securing Mortgagor's obligations under the Non-Recourse Guaranty
Agreement, as modified by the Modification Agreement."
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(b) The following definitions are hereby added to the end of
Article 1 of the First Mortgage:
"1.28 ADDITIONAL COLLATERAL ACCOUNT: An account maintained by
Mortgagee or a Servicer designated by Mortgagee, into which Excess
Cash Flow shall be deposited in accordance with Section 4.23, and
which shall be additional Collateral for the Loan.
1.29 ANNUAL CAPITAL EXPENSE AMOUNT: An amount equal to five percent
(5.00%) of Gross Revenue (as defined in Section 4.23(e)) for the
Reduced Payment Period and the Interest Only Payment Period (as
defined in Section 4.23(a)).
1.30 CAMBRIDGE MODIFICATION AGREEMENT: The Mortgage and Loan
Modification Agreement dated as of March 24, 2004, executed by
Cambridge Borrower and Mortgagee.
1.31 CAPITAL EXPENSE LIMIT: The Annual Capital Expense Amount plus
such Annual Capital Expense Amounts accrued in prior years and not
applied to Capital Expenses of the Property.
1.32 EFFECTIVE DATE: December 1, 2003.
1.33 MODIFICATION AGREEMENT: The Mortgage and Loan Modification
Agreement dated as of March 24, 2004, and effective as of the
Effective Date, executed by Mortgagor and Mortgagee.
1.34 PLEDGED ACCOUNTS: The Additional Collateral Account and the
Pledged Operating Account.
1.35 PLEDGED OPERATING ACCOUNT: That certain deposit account (ABA #
000000000, Account # 8026272255) maintained by Mortgagor with First
Colonial Bank.
1.36 REAFFIRMATION AGREEMENT: The Reaffirmation and Modification of
Limited Guaranty Agreement and Environmental Indemnity Agreement dated
as of March 24, 2004, and effective as of the Effective Date, executed
by Guarantor for the benefit of Mortgagee."
(c) Section 4.12 of the First Mortgage is hereby modified to
provide that, in addition to the financial reports described therein, Mortgagor
must also provide to Mortgagee, by the twentieth (20th) day of each month during
the Reduced Payment Period and the Interest Only Payment Period (as such terms
are defined in Section 4.23(a)), a report of the Gross Revenue, Operating
Expenses, Net Cash Flow and Excess Cash Flow of the Property for the previous
calendar month (the "Net Cash Flow Report"). The Net Cash Flow Report shall be
in such detail as Mortgagee may require, shall be prepared in accordance with
the Uniform System of Accounts for the Lodging Industry, Ninth Revised Edition,
First Printing 1996 as
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adopted by the American Hotel and Motel Association, as amended or supplemented
from time to time, and shall be certified as true and correct by Mortgagor (or,
if required by Mortgagee during the continuance of any Event of Default,
certified by an independent certified public accountant acceptable to
Mortgagee).
(d) A new Section 4.23 is hereby added to the First Mortgage,
as follows:
"4.23 APPLICATION OF NET CASH FLOW TO CAPITAL EXPENSES; DEFERRED
INTEREST REDUCTION PAYMENTS; ADDITIONAL COLLATERAL ACCOUNT.
(a) For the period from January 1, 2004 through December 31, 2006
(the "Reduced Payment Period"), and for the period from January 1,
2007 to December 31, 2007 (the "Interest Only Payment Period"), all
Net Cash Flow from the Property shall, at Mortgagor's election, either
be (i) retained in the Pledged Operating Account or transferred by
Mortgagor to the Central Account as provided in subsection 4.23(b),
(ii) used to pay Capital Expenses of the Property, subject to
Mortgagee's prior written approval to the extent that such Capital
Expenses exceed the Capital Expense Limit, (iii) paid to Mortgagee or
Servicer for deposit in the Additional Collateral Account, as set
forth in subsection 4.23(b) hereof, or (iv) paid to Mortgagee (any
such payment a "Deferred Interest Reduction Payment") and applied (A)
first, to accrued but unpaid interest on the Loan, and (B) second, to
accrued but unpaid interest which has been previously added to the
principal balance of the Loan during the Reduced Payment Period
("Capitalized Interest"), without prepayment premium. Except for
payments of Capitalized Interest pursuant to subsection 4.23(a)(iv)(B)
hereof, Mortgagor shall not be permitted to prepay the principal
balance of the Loan except as set forth in Section 5 of the Note.
Deferred Interest Reduction Payments during the Reduced Payment Period
and the Interest Only Payment Period, if any, may be made no more than
once per month, and shall be remitted together with the regularly
scheduled monthly payment of interest under the Note. Net Cash Flow
shall not be used by Mortgagor for any purpose, other than as provided
in this subsection 4.23(a).
(b) So long as no Event of Default has occurred, Mortgagor may make
daily transfers of Net Cash Flow from the Property to a corporate bank
account maintained by Guarantor (the "Central Account"), provided that
Guarantor shall properly account for all funds so transferred as
Mortgagor's funds. So long as no Event of Default has occurred, Net
Cash Flow (as defined in subsection 4.23(d) hereof) from the Cambridge
Property may be used to fund Operating Expenses (as defined in
subsection 4.23(f) hereof) of the Property, and Net Cash Flow from the
Property may be used to fund
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Operating Expenses of the Cambridge Property. So long as no Event of
Default has occurred, Mortgagor and Cambridge Borrower may calculate
Gross Revenues, Operating Expenses, Net Cash Flow and Excess Cash
Flow, for purposes of this Section 4.23, on a consolidated basis for
both the Property and the Cambridge Property. Each month during the
Reduced Payment Period and the Interest Only Payment Period, on or
before the twentieth (20th) day of the month, Mortgagor shall remit to
Mortgagee all Net Cash Flow for the prior month from the Property, or
from the Property and the Cambridge Property on a consolidated basis,
as applicable, which was not applied in accordance with subsections
4.23(a)(ii) or (iv) hereof (the "Excess Cash Flow"), if any. All
Excess Cash Flow so received by Mortgagee shall be retained in an
account (the "Additional Collateral Account") maintained by Mortgagee
or an entity designated by Mortgagee to service the Loan ("Servicer"),
and held as additional Collateral for the Loan. So long as no Event of
Default has occurred, in months in which Gross Revenue from the
Property (or from the Property and the Cambridge Property on a
consolidated basis, as applicable) is insufficient to fund Operating
Expenses of the Property (or of the Property and the Cambridge
Property on a consolidated basis, as applicable), Mortgagor may obtain
a disbursement of funds from the Additional Collateral Account in the
lesser of (i) the amount necessary to pay the unpaid Operating
Expenses for the subject month, or (ii) the balance in the Additional
Collateral Account, less any minimum required balance required by the
depository bank to be maintained therein, upon submission of a written
request to Mortgagee or Servicer. So long as no Event of Default has
occurred, Mortgagor may obtain a disbursement of funds from the
Additional Collateral Account to make a Deferred Interest Reduction
Payment to Mortgagee as provided in subsection 4.23(a)(iv), in the
lesser of (i) the amount requested by Mortgagor to make the Deferred
Interest Reduction Payment, or (ii) the balance in the Additional
Collateral Account, less any minimum required balance required by the
depository bank to be maintained therein, upon submission of a written
notice to Mortgagee or Servicer.
(c) The annual operating statements for the Property described in
Subsection 4.12 hereof shall indicate the amount of Net Cash Flow for
each twelve month period from January 1 through December 31 included
in the Reduced Payment Period and the Interest Only Payment Period,
and shall certify (i) the application of Net Cash Flow for the
relevant period to Capital Expenses, subject to Mortgagee's prior
written approval to the extent that
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such Capital Expenses exceed the Capital Expense Limit; (ii) the
payment of Net Cash Flow for the relevant period to Mortgagee for
deposit in the Additional Collateral Account; and/or (iii) that
Deferred Interest Reduction Payment(s) to Mortgagee have been made in
the amount of all remaining Net Cash Flow for the relevant period.
(d) For purposes of this Section 4.23, "Net Cash Flow" shall mean
the difference between Gross Revenue and Operating Expenses for the
applicable period.
(e) For purposes of this Section 4.23, "Gross Revenue" shall mean
all revenue received by or on behalf of Mortgagor from or with respect
to the Property for the relevant period for which the calculation of
Gross Revenue is being made, including, but not limited to rents, room
charges, parking fees, payments from tenants and other occupants of
any portion of the Property or from the operation of the Property, and
payments received from insurance on account of business or rental
interruption and condemnation proceeds from any temporary use or
occupancy. Gross Revenue shall not include: (i) proceeds from the sale
or other disposition of any part or all of the Property, or from any
financing or refinancing of the Property; (ii) proceeds from any
condemnation of any part or all of the Property (except for temporary
use or occupancy); (iii) proceeds on account of a casualty to the
Property (other than payments from insurance on account of business or
rental interruption); (iv) other insurance proceeds (other than in
compensation of lost rent or its equivalent); (v) similar items or
transactions, the proceeds of which under generally accepted
accounting principles are deemed attributable to capital and are not
in the nature of rent; and (vi) contributions or loans to Borrower by
any member or affiliate of Borrower.
(f) For purposes of this Section 4.23, "Operating Expenses" shall
mean all ordinary and necessary operating expenses actually incurred
by Mortgagor in connection with the operation of the Property and the
continued existence in good standing of Mortgagor for the relevant
period for which the calculation of Operating Expenses is being made,
including but not limited to (i) payments made to Mortgagee for taxes
and insurance, if any, under the Mortgage, (ii) debt service as
required by the Note (excluding Deferred Interest Reduction Payments),
and (iii) actual Capital Expenses of the Property, not in excess of
the Capital Expense Limit, paid in accordance herewith, but excluding
(a) any non-cash expenditure, such as depreciation, and (b) any
payment to a member or affiliate of Mortgagor, including, without
limitation, payments to a member or affiliate of Mortgagor for
management of
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the Property, not pre-approved by Mortgagee, but including management
fees paid in accordance with a Management Agreement entered into by
Mortgagor (if any) and approved by Mortgagee. For purposes of this
subsection 4.23(f), the fees, and the methods of calculation thereof,
indicated on the "Corporate Fees and Charges Schedule" delivered by
Mortgagor to Mortgagee on February 20, 2004 have been pre-approved by
Mortgagee.
(g) For purposes of this Section 4.23, "Capital Expenses" shall mean
all cash expenditures for the Property that would be considered
capital in nature under generally accepted accounting principles."
(e) A new Section 4.24 is hereby added to the First Mortgage,
as follows:
"4.24 COVENANTS CONCERNING ACCOUNTS.
(a) During the term of the Loan, Mortgagor shall maintain the
Pledged Operating Account as the exclusive account into which Gross
Revenue from the Property shall be deposited.
(b) Unless and until Mortgagor has received written notice from
Mortgagee that an Event of Default has occurred and specifying the
Event of Default (any such notice being referred to herein,
individually, as a "Default Notice"), (i) Mortgagor shall deposit all
Gross Revenue received by or for the benefit of Mortgagor and
attributable to the Property into the Pledged Operating Account, and
(ii) funds on deposit in the Pledged Operating Account may be
withdrawn by Mortgagor from time to time to pay Operating Expenses as
and when due, to pay for Capital Expenses in amounts not to exceed the
accrued Capital Expense Limit, and for transfer to the Central
Account, subject to the restrictions contained in this Mortgage.
(c) After Mortgagor's receipt of a Default Notice, and during the
continuance of any Event of Default, (i) Mortgagor shall deposit all
revenues received by or for the benefit of Mortgagor and attributable
to the Property into the Pledged Operating Account on the business day
received by Mortgagor, and (ii) Mortgagor shall have no right to
withdraw any funds in the Pledged Operating Account as contemplated in
Section 4.24(b) above for any purpose, including without limitation
for transfer to the Central Account.
(d) After Mortgagee has given any Default Notice, and during the
continuance of any Event of Default, Mortgagee shall apply, or
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cause to be applied, as and when due, funds on deposit in the Pledged
Operating Account and/or the Additional Collateral Account in the
following order and priority:
(i) first, to Mortgagor to pay actual Operating Expenses
and/or, subject to Mortgagee's prior written consent, not to be
unreasonably withheld, Capital Expenses, as set forth in a request for
disbursement to be delivered no more than twice monthly by Mortgagor
to Mortgagee;
(ii) second, to Mortgagor, or Mortgagor's account, in
payment of monthly amounts pursuant to the tax and insurance escrows,
if any, for the Property required under this Mortgage;
(iii) third, to Mortgagee, or Mortgagee's account, in
payment of any late charges, default interest and other sums
previously due under the Note or other Loan Documents (other than
regularly scheduled monthly payments due under the Note) and to
repayment of any advances, costs, expenses or other payments owing by
Mortgagor to Mortgagee under this Mortgage or the other Loan
Documents; and
(iv) fourth, to Mortgagee, or Mortgagee's account, in
payment of the regularly scheduled monthly payment then due under the
Note.
(e) Mortgagor shall deposit, and Mortgagor shall cause its agents
and/or property manager or managers to deposit, all revenues received
by or for the benefit of Mortgagor and attributable to the Property
into the Pledged Operating Account by wire transfer or by direct or
traditional deposit, and, if any such revenues are received by
Mortgagor in the form of checks, drafts or other instruments then
Mortgagor shall also immediately endorse (if applicable) and deposit
same into the Pledged Operating Account."
(f) A new Section 4.25 is hereby added to the First Mortgage,
as follows:
"4.25 APPRAISAL. On one occasion while any portion of the Secured
Obligations remains unpaid, upon written request by Mortgagee,
Mortgagor shall obtain and deliver to Mortgagee, at Mortgagor's
expense, an MAI appraisal of the Property (a) made by an appraiser
certified in the state where the Property is located and approved by
Mortgagee, and (b) satisfactory to Mortgagee in all other respects."
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(g) A new Section 4.26 is hereby added to the First Mortgage,
as follows:
"4.26 CONSENT TO RELIEF FROM AUTOMATIC STAY. In the event of the
filing of a petition in bankruptcy by or against Mortgagor under the
United States Bankruptcy Code, Mortgagor consents and agrees to the
entry of immediate relief from the automatic stay of section 362(a) of
the Bankruptcy Code, and shall not contest any motion by Mortgagee for
termination of, or other relief from, such automatic stay."
(h) A new Section 5.11 is hereby added to the First Mortgage,
as follows:
"5.11 DISTRIBUTIONS TO OWNERS PRIOR TO PRINCIPAL AND INTEREST
PAYMENT PERIOD. Without the prior written consent of Mortgagee,
Mortgagor will not distribute any portion of the Gross Revenue from
the Property to any other holder of a direct or indirect ownership
interest in Borrower, prior to the commencement of the Principal and
Interest Payment Period (as defined in the Note); provided, however,
that payments to a member or affiliate of Mortgagor which have been
pre-approved by Mortgagee, as described in subsection 4.23(f) hereof,
shall be allowed."
(i) EXHIBIT B, Permitted Exception No. 1, of the First Mortgage
is hereby deleted in its entirety, and the following substituted therefor: "Real
property taxes for 2003 and subsequent years not yet due and payable."
4. MODIFICATION OF SECOND MORTGAGE.
(a) Sections 1.2, 1.3, 1.6, 1.10, 1.14, 1.15, 1.17, 1.22, 1.23
and 1.27 of the Second Mortgage are hereby deleted in their entireties, and the
following substituted therefor:
"1.2 CAMBRIDGE LOAN DOCUMENTS: The Cambridge Note, all of the
mortgages, deeds of trust, and other instruments and documents
executed by the Cambridge Borrower and/or Guarantor securing the
Cambridge Note, including any guaranty agreements, environmental
indemnity agreements, replacement reserve agreements, collateral
assignment of liquor licenses, lease certificates, and all other
documents executed or delivered by the Cambridge Borrower and/or
Guarantor in connection with the transaction pursuant to which the
Cambridge Note has been executed and delivered, together with the
Cambridge Modification Agreement and the other documents executed by
the Cambridge Borrower and/or Guarantor in connection with the
Cambridge Modification Agreement. The term 'Cambridge Loan Documents'
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also includes all modifications, extensions, renewals, and
replacements of each document referred to above.
1.3 CAMBRIDGE NOTE: The Amended and Restated Promissory Note dated
as of May 30, 2000 executed by the Cambridge Borrower and payable to
the order to Mortgagee in the principal face amount of $41,000,000.00,
as modified by the Cambridge Modification Agreement, the last payment
under which is due on July 1, 2010, or, if extended by Mortgagee by
its terms, July 1, 2015, unless such due date is accelerated, together
with all renewals, extensions and modifications of such consolidated
and renewed promissory note.
1.6 ENVIRONMENTAL INDEMNITY AGREEMENT: The Environmental Indemnity
Agreement dated as of May 30, 2000 made by Mortgagor and Guarantor for
the benefit of Mortgagee, as modified by (a) the Modification
Agreement, and (d) the Reaffirmation Agreement.
1.10 FIRST MORTGAGE: The Consolidated, Amended and Restated Mortgage,
Security Agreement, Fixture Filing, Financing Statement and Assignment
of Leases and Rents dated as of May 30, 2000 executed by Mortgagor for
the benefit of Mortgagee and securing Mortgagor's obligations under
the Note, as modified by the Modification Agreement.
1.14 INTANGIBLE PERSONALTY: The right to use all trademarks and trade
names and symbols or logos used in connection therewith, or any
modifications or variations thereof, in connection with the operation
of the improvements existing or to be constructed on the Property,
together with all accounts, deposit accounts (including, without
limitation, the Pledged Accounts), letter of credit rights, monies in
the possession of Mortgagee (including without limitation proceeds
from insurance, retainages, deposits for taxes and insurance and
monies on deposit in the Additional Collateral Account), Permits,
contract rights (including, without limitation, rights to receive
insurance proceeds), amounts paid as rents of the Property or the
fees, charges, accounts, or other payments for the use or occupancy of
rooms and other public facilities in the Property, and general
intangibles (whether now owned or hereafter acquired, and including
proceeds thereof) relating to or arising from Mortgagor's ownership,
use, operation, leasing, or sale of all or any part of the Property,
specifically including but in no way limited to any right which
Mortgagor may have or acquire to transfer any development rights from
the Property to other real property, and any development rights which
may be so transferred.
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1.15 LEASE CERTIFICATE: The Certificate Concerning Leases dated as
of March 24, 2004, and effective as of the Effective Date, made by
Mortgagor to Mortgagee concerning the Leases.
1.17 LIMITED GUARANTY AGREEMENT: The Limited Guaranty Agreement
dated as of May 30, 2000 made by Guarantor for the benefit of
Mortgagee, as modified by the Reaffirmation Agreement.
1.22 NON-RECOURSE GUARANTY AGREEMENT: The Non-Recourse Guaranty
Agreement dated as of May 30, 2000 made by Mortgagor for the benefit
of Mortgagee, as modified by the Reaffirmation and Modification of
Non-Recourse Guaranty Agreement dated as of March 24, 2004, executed
by Mortgagor for the benefit of Mortgagee, pursuant to which Mortgagor
has guaranteed payment and performance of the Cambridge Note and the
other Cambridge Loan Documents.
1.23 NOTE: Mortgagor's Consolidated and Renewed Promissory Note
dated as of May 30, 2000, payable to the order of Mortgagee in the
principal face amount of $31,000,000.00, as modified by the
Modification Agreement, the last payment under which is due on July 1,
2010 or, if extended pursuant to its terms, July 1, 2015, unless such
due date is accelerated, together with all renewals, extensions and
modifications of such Promissory Note.
1.27 REPLACEMENT RESERVE AND SECURITY AGREEMENT: The Replacement
Reserve and Security Agreement dated as of May 30, 2000, executed by
Mortgagor for the benefit of Mortgagee, as modified by the
Modification Agreement."
(b) The following definitions are hereby added to the end of
Article 1 of the Second Mortgage:
"1.29 ADDITIONAL COLLATERAL ACCOUNT: An account maintained by
Mortgagee or a Servicer designated by Mortgagee, into which Excess
Cash Flow shall be deposited in accordance with Section 4.23 of the
First Mortgage.
1.30 CAMBRIDGE MODIFICATION AGREEMENT: The Mortgage and Loan
Modification Agreement dated as of March 24, 2004, executed by
Cambridge Borrower and Mortgagee.
1.31 EFFECTIVE DATE: December 1, 2003.
1.32 MODIFICATION AGREEMENT: The Mortgage and Loan Modification
Agreement dated as of March 24, 2004, and effective as of the
Effective Date, executed by Mortgagor and Mortgagee.
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1.33 PLEDGED ACCOUNTS: The Additional Collateral Account and the
Pledged Operating Account.
1.34 PLEDGED OPERATING ACCOUNT: That certain deposit account (ABA #
000000000, Account # 8026272255) maintained by Mortgagor with First
Colonial Bank.
1.35 REAFFIRMATION AGREEMENT: The Reaffirmation and Modification of
Limited Guaranty Agreement and Environmental Indemnity Agreement dated
as of March 24, 2004, and effective as of the Effective Date, executed
by Guarantor for the benefit of Mortgagee."
(c) EXHIBIT B, Permitted Exception No. 1, of the Second
Mortgage is hereby deleted in its entirety, and the following substituted
therefor: "Real property taxes for 2003 and subsequent years not yet due and
payable."
5. MODIFICATION OF REPLACEMENT RESERVE AND SECURITY AGREEMENT. The
Replacement Reserve and Security Agreement is modified as follows:
(a) All references to the term "Note" contained in the
Replacement Reserve and Security Agreement shall be deemed to refer to the Note
as defined herein and as modified by this Agreement; all references to the term
"Loan" contained in the Replacement Reserve and Security Agreement shall be
deemed to refer to the loan evidenced by the Note.
(b) All references to the term "Mortgage" contained in the
Replacement Reserve and Security Agreement shall be deemed to refer to the First
Mortgage, as defined herein and as modified by this Agreement.
(c) All references contained in the Replacement Reserve and
Security Agreement to the term "Loan Documents" shall be deemed to refer to such
term as defined herein and as modified by this Agreement.
(d) From the Effective Date until the earlier of (i) the
expiration of the Interest Only Payment Period (as defined in Section 4.23(a) of
the First Mortgage), or (ii) the occurrence of a Reinstatement as set forth in
Section 6 of this Agreement, Borrower's obligations to make monthly deposits to
the Replacement Reserve Account pursuant to Section 4 of the Replacement Reserve
and Security Agreement, to submit Capital Budgets pursuant to Section 6 of the
Replacement Reserve and Security Agreement, and to submit reports pursuant to
Section 8 of the Replacement Reserve and Security Agreement shall be suspended,
it being the intent of the parties that such obligations shall be superseded by
the provisions of the new Sections 4.23, 4.24 and 5.11 of the First Mortgage
during such period.
(e) Any amounts on deposit in the Replacement Reserve Account
on the Effective Date may be withdrawn by Borrower and applied to Capital
Expenses during the Reduced Payment Period and/or the Interest Only Payment
Period with the prior written approval of Lender, which consent shall not be
unreasonably withheld or delayed.
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(f) Upon the earlier of (i) the expiration of the Interest Only
Payment Period, or (ii) the occurrence of a Reinstatement as set forth in
Section 6 of this Agreement, Borrower's obligations to make monthly deposits to
the Replacement Reserve Account pursuant to Section 4 of the Replacement Reserve
and Security Agreement, to submit Capital Budgets pursuant to Section 6 of the
Replacement Reserve and Security Agreement, and to submit reports pursuant to
Section 8 of the Replacement Reserve and Security Agreement shall be fully
reinstated.
6. REINSTATEMENT. On the first day of any month during the Reduced
Payment Period or the Interest Only Payment Period, provided that no Event of
Default has occurred under the Note or any of the other Loan Documents, the
Borrower may effect a "Reinstatement" of the Loan by satisfying the following
conditions:
(a) Borrower shall deliver written notice to Lender, not less
than thirty (30) days prior to the Reinstatement, of Borrower's intent to effect
a Reinstatement; and
(b) On the date of the Reinstatement, Borrower shall pay all
accrued and unpaid interest on the Note, except any accrued and unpaid interest
which has been added to the principal balance of the Note.
Upon the occurrence of a Reinstatement pursuant to this Section 6:
(a) Section 1 of the Note shall be amended to provide that (i)
commencing on the date of the Reinstatement, and on the first day of each month
thereafter through and including June 1, 2010, combined payments of principal
and interest shall be payable, in arrears, in the amount of $251,712.92; and
(ii) the entire outstanding principal balance of the Note, together with all
accrued and unpaid interest and all other sums due thereunder, shall be due and
payable in full on the Original Maturity Date.
(b) Borrower's obligations to submit monthly Net Cash Flow
Reports pursuant to Section 4.12 of the First Mortgage shall be terminated.
(c) Sections 4.23, 4.24 and 5.11 of the First Mortgage shall
be terminated and of no further effect.
(d) Borrower's obligations to make monthly deposits to the
Replacement Reserve Account pursuant to Section 4 of the Replacement Reserve and
Security Agreement, to submit Capital Budgets pursuant to Section 6 of the
Replacement Reserve and Security Agreement, and to submit reports pursuant to
Section 8 of the Replacement Reserve and Security Agreement shall be fully
reinstated.
7. MODIFICATION OF ENVIRONMENTAL INDEMNITY AGREEMENT. The
Environmental Indemnity Agreement dated as of May 30, 2000, executed by Borrower
and Guarantor (the "Environmental Indemnity Agreement"), is modified as follows:
(a) All references to the term "Note" contained in the
Environmental Indemnity Agreement shall be deemed to refer to the Note as
defined herein and as modified by
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this Agreement; all references to the term "Loan" contained in the Environmental
Indemnity Agreement shall be deemed to refer to the loan evidenced by the Note.
(b) All references to the term "Mortgage" contained in the
Environmental Indemnity Agreement shall be deemed to refer to the First
Mortgage, as defined herein and as modified by this Agreement.
(c) All references contained in the Environmental Indemnity
Agreement to the term "Loan Documents" shall be deemed to refer to such term as
defined herein and as modified by this Agreement.
(d) In consideration of Lender's willingness to enter into this
Agreement, Borrower hereby reaffirms all of its agreements and obligations under
the Environmental Indemnity Agreement, as modified hereby.
8. MODIFICATION OF OTHER LOAN DOCUMENTS.
(a) All references to the term "Note" contained in the Loan
Documents shall be deemed to refer to the Note as defined herein and as modified
by this Agreement; all references to the term "Loan" contained in the Loan
Documents shall be deemed to refer to the loan evidenced by the Note.
(b) All references to the term "Mortgage" contained in the Loan
Documents shall be deemed to refer to the First Mortgage as defined herein and
as modified by this Agreement.
(c) All references to the term "Second Mortgage" contained in
the Loan Documents shall be deemed to refer to the Second Mortgage as defined
herein and as modified by this Agreement.
(d) All references contained in any of the Loan Documents to
the term "Loan Documents" shall be deemed to refer to such term as defined
herein and as modified by this Agreement.
9. REAFFIRMATION OF LOAN DOCUMENTS.
(a) Borrower hereby re-makes each and every representation and
warranty of Borrower to Lender contained in Article III of the First Mortgage,
Article III of the Second Mortgage, and Section 1 of the Environmental Indemnity
Agreement, each as modified hereby.
(b) As modified hereby, the terms and provisions of the First
Mortgage, Second Mortgage and the other Loan Documents are hereby ratified and
confirmed, and shall be and remain in full force and effect, enforceable in
accordance with their terms.
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10. GRANT OF LIEN AND SECURITY INTEREST.
(a) Borrower hereby acknowledges and confirms that the First
Mortgage, as modified hereby, constitutes a first priority security conveyance
of and first lien on the Property, subject only to the Permitted Exceptions set
forth therein. Borrower hereby acknowledges and confirms that the Second
Mortgage, as modified hereby, constitutes a second priority security conveyance
of and second lien on the Property, subject only to the First Mortgage and to
the Permitted Exceptions set forth in the Second Mortgage.
(b) In consideration of Lender's willingness to enter into this
Agreement and (i) with respect to the First Mortgage, as security for Borrower's
obligations under the Note and the other Loan Documents (as such terms are
defined in the First Mortgage, as modified hereby), and (ii) with respect to the
Second Mortgage, as security for Borrower's obligations under the Non-Recourse
Guaranty Agreement (as defined in the Second Mortgage, as modified hereby),
Borrower hereby (A) grants, bargains, sells, conveys, mortgages, and warrants
unto Lender the entire right, title, interest and estate of Borrower in and to
the Property, whether now owned or hereafter acquired; TO HAVE AND TO HOLD the
same, together with all and singular the rights, hereditaments, and
appurtenances in anywise appertaining or belonging thereto, unto Lender and
Lender's successors, substitutes and assigns forever, and (B) grants to Lender a
security interest in the Property, Chattels and Intangible Personalty (as
defined in the First Mortgage and Second Mortgage, each as modified hereby),
each on the terms and conditions set forth in the First Mortgage and Second
Mortgage, as modified hereby. Notwithstanding anything to the contrary contained
in this Agreement, recovery under the Second Mortgage continues to be limited to
$20,000,000.00.
11. ENDORSEMENT TO LENDER'S TITLE INSURANCE POLICY. Upon closing of
the loan restructure transaction described in this Agreement, Borrower shall
deliver to Lender, at Borrower's sole expense, an endorsement to Lender's title
insurance policy or a new title insurance policy, satisfactory in form and
substance to Lender, issued by a title insurance company approved by Lender, in
an amount not less than the amount of the Loan, insuring Lender (a) that the
First Mortgage as modified by this Agreement is a valid first and prior lien on
the Property, subject only to such exceptions to and conditions of title as
Lender may approve, and containing such additional endorsements as Lender may
require; and (b) that the Second Mortgage as modified by this Agreement is a
valid second lien on the Property, subject only to the First Mortgage and such
exceptions to and conditions of title as Lender may approve, and containing such
additional endorsements as Lender may require.
12. OPINION OF BORROWER'S COUNSEL. Upon closing of the loan
restructure transaction described in this Agreement, Borrower shall deliver to
Lender a legal opinion of independent counsel to Borrower, in form and substance
satisfactory to Lender, opining that the Loan as restructured is not usurious
under any applicable law, that the loan restructure transaction and the
execution and delivery of all documents in connection therewith have been duly
authorized by all necessary parties (other than Lender), and that all such
documents are binding and enforceable in accordance with their terms, and
addressing such other matters as Lender may reasonably require.
74
13. PAYMENT OF COSTS AND EXPENSES. Borrower shall pay all costs and
expenses incurred by Lender in connection with this Agreement and in connection
with the restructure of the Loan, including, without limitation, all reasonable
attorneys' fees, recording fees and title insurance fees (including the fees for
issuance of the endorsement to Lender's title insurance policy or a new title
insurance policy, as applicable) deemed necessary by Lender. Such costs and
expenses shall be paid by Borrower upon closing of the loan restructure
transaction described in this Agreement ("Closing"). Such costs and expenses
shall be considered Operating Expenses of the Property, as defined in subsection
4.23(f) of the First Mortgage, for the period in which they are paid by
Borrower. Failure to pay such costs and expenses upon Closing shall constitute a
default by Borrower under Section 6.3 of the First Mortgage, and continuance of
such failure for a period of thirty (30) days following written notice thereof
from Lender to Borrower shall constitute an Event of Default under the First
Mortgage.
14. MISCELLANEOUS.
(a) All capitalized terms used herein without definition shall
have the meanings given to them in the First Mortgage.
(b) This Agreement may be executed in several counterparts, and
executed counterparts bearing signatures of Borrower and Lender shall constitute
a fully-executed original of this Agreement.
(c) This Agreement shall be governed by the laws of the State
of Florida, without giving effect to its principles of conflicts of laws.
(d) The parties hereby agree to execute any and all additional
documents that may reasonably be required in order to evidence, secure or carry
out the agreements and undertakings set forth in this Agreement.
(e) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their permitted successors and assigns.
(f) EACH PARTY TO THIS AGREEMENT KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS AGREEMENT, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE NOTE, THE FIRST MORTGAGE, SECOND
MORTGAGE OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR
TO ANY LOAN DOCUMENT OR ORIGINAL LOAN DOCUMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES TO ENTER INTO THE TRANSACTIONS EVIDENCED BY THIS
AGREEMENT.
(g) Borrower shall not deposit funds attributable to the
Property into the Pledged Operating Account unless and until a Notice of
Assignment and Control Agreement concerning such account, in form and substance
satisfactory to Lender, has been executed by Borrower, Lender and the depository
bank at which the account is maintained, and a fully
75
executed original of such Notice of Assignment and Control Agreement has been
delivered to Lender.
15. NOVATION. It is the intent of the parties to this Agreement that
this Agreement shall not constitute a novation and shall in no way adversely
affect the lien priority of the First Mortgage or the Second Mortgage. In the
event that this Agreement, or any part hereof, shall be construed by a court of
competent jurisdiction as operating to affect the lien priority of said First
Mortgage or Second Mortgage, or either of them, over the claims which would
otherwise be subordinate thereto, then to the extent so ruled by such court, and
to the extent that third persons acquiring an interest in such property as is
encumbered by the First Mortgage and the Second Mortgage between the time of
execution of the First Mortgage and the Second Mortgage and the execution hereof
are prejudiced thereby, then, at Lender's option, this Agreement, or such
portion hereof as shall be so construed, shall be void and of no force and
effect, and this Agreement shall constitute, as to that portion, a subordinate
lien on the collateral described herein, incorporating by reference the terms of
the First Mortgage and the Second Mortgage, and which First Mortgage and Second
Mortgage then shall be enforced pursuant to the terms therein contained,
independent of this Agreement; provided, however, that notwithstanding the
foregoing, the parties hereto, as between themselves, shall be bound by all
terms and conditions hereof until all indebtedness owing from the Borrower to
the Lender shall have been paid in full.
16. TAXES; INDEMNIFICATION. Borrower shall pay when due any
documentary stamp taxes, intangible personal property taxes or other taxes which
are assessed in connection with the execution, delivery or recordation of this
Agreement (collectively, "Taxes"). Borrower shall indemnify, defend and hold
harmless Lender from any and all such Taxes.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BORROWER:
Witnesses: SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited
partnership
/S/ By: Florida Sonesta Corporation, a Florida
----------------------------------- corporation, its General Partner
Print Name: Boy Xxx Xxxx
-----------------------
/S/ By:/S/
----------------------------------- ------------------------------
Print Name: Xxxxxx Xxxx Xxxxx X. Xxxxxxxxx, Vice President
-----------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this 22nd day of
March, 2004, by Xxxxx X. Xxxxxxxxx, as Vice President of Florida Sonesta
Corporation, a Florida corporation, General Partner of Sonesta Beach Resort
Limited Partnership, a Delaware limited partnership, who is known to me.
Serial Numbers, if any:
-------------------------
My commission expires: 4/2/2010
/S/
----------------------------------
Notary Public
Xxxxx X. Xxxxxxxxx
----------------------------------
Print Name
[SIGNATURES CONTINUED ON NEXT PAGE]
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LENDER:
Witnesses: SUNAMERICA LIFE INSURANCE
COMPANY, an Arizona corporation
/S/ By: AIG Global Investment Corp., a
------------------------------------ New Jersey corporation, its investment
Print Name: Xxxx X. Xxxxxx advisor
------------------------
/S/ By:/S/
------------------------------------ -----------------------------------
Print Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxx
------------------------ --------------------------------
Title: Managing Director
-------------------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
The foregoing instrument was acknowledged before me this 22nd day of
March, 2004, by Xxxxx Xxxxx, as Managing Director of AIG Global Investment
Corp., a New Jersey corporation, investment advisor of SunAmerica Life Insurance
Company, an Arizona corporation, WHO IS KNOWN TO ME,
Serial Numbers, if any:
-------------------------
My commission expires: 1/10/07
-------------------------
/S/
----------------------------------
Notary Public
Xxxxxxxxx Muslein
----------------------------------
Print Name
78
