EXHIBIT 10.15
This instrument prepared by
and when recorded return to:
Xxxxxxx X. Xxxxxxxx, P.A.
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000 _____________________________________
(Space Above For Recorder's Use Only)
NOTE AND DEED OF TRUST
ASSUMPTION AGREEMENT
(CSFB 1999-C1; LOAN NO. M760990006)
THIS NOTE AND DEED OF TRUST ASSUMPTION AGREEMENT ("AGREEMENT") dated as of
______________ ___, 2003 ("EFFECTIVE DATE"), is entered into among JPMORGAN
CHASE BANK F/K/A CHASE MANHATTAN BANK, A NEW YORK BANKING CORPORATION, AS
TRUSTEE FOR THE REGISTERED HOLDERS OF CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., COMMERCIAL PASS-THROUGH CERTIFICATES, SERIES 1999-C1
("LENDER"), having an address at Structured Finance Services (MBS), 000 Xxxx 00
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Re: CSFB 1997-C1; Loan No.
M760990006, XXXX SUITES/XXXX HOSPITALITY, L.L.C., a Delaware limited liability
("ORIGINAL BORROWER"), having an address at 0000 X. Xxxxxxxxxx Xxxx, Xxxxxxxx
Xxxxxx, Xxxxxxx 00000, and SUMMIT GROUP OF SCOTTSDALE, ARIZONA, LLC, a South
Dakota limited liability company ("NEW BORROWER"), having an address at c/o The
Summit Group, 0000 X. Xxxxxxxxx Xxx., Xxxxx 0, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000.
New Borrower's taxpayer identification number is 000000000. Original Borrower
and New Borrower are hereinafter sometimes referred to as "BORROWER PARTIES".
PRELIMINARY STATEMENT
A. Original Borrower is the current owner of fee title to those certain
parcels of real property ("LAND") and the buildings and improvements thereon
("IMPROVEMENTS"), commonly known as the "Springhill Suites by Marriott" and the
"Courtyard by Marriott" both located in the City of Phoenix, County of Maricopa,
State of Arizona, more particularly described in Composite EXHIBIT A attached
hereto and made a part hereof (the Land and the Improvements are hereinafter
sometimes collectively referred to as the "PROJECT").
B. Lender is the current owner and holder of a loan ("LOAN") in the
original principal amount of $17,000,000.00, as evidenced and/or secured by the
Loan documents described on EXHIBIT B attached hereto (such documents, as
amended, together with any and all other agreements, documents, instruments
evidencing, securing or in any manner relating to the Loan,
shall hereinafter be collectively referred to as the "LOAN DOCUMENTS"). The Loan
is secured by the Project, as more particularly described in the Security
Instrument.
C. New Borrower desires to purchase the Project from Original Borrower and
to assume Original Borrower's obligations under the Loan Documents as provided
herein.
D. A sale of the Project to, and the assumption of the Loan by, a third
party without the consent of the holder of the Security Instrument is prohibited
by the terms thereof.
E. The Lender has agreed to consent to the following requested actions (the
"REQUESTED ACTIONS"): Original Borrower selling the Project to New Borrower and
New Borrower assuming all of Original Borrower's obligations under the Loan
Documents, on the terms and conditions hereinafter set forth.
In consideration of $10.00 paid by each of the parties to the other, the
mutual covenants set forth below, and other good and valuable consideration,
receipt and sufficiency of which are acknowledged, the parties agree as follows:
ARTICLE 1
ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS
1.1 ORIGINAL BORROWER REPRESENTATIONS. As a material inducement to Lender
to enter into this Agreement and to consent to the Requested Actions, Original
Borrower acknowledges, warrants, represents and agrees to and with Lender as
follows:
(a) Authority of Original Borrower. Original Borrower is a duly
organized, validly existing limited liability company in good standing under the
laws of the State of Delaware and is duly authorized to transact business in the
State of Arizona. Xxxxxxx Xxxxxx, as authorized agent of Original Borrower,
acting alone without the joinder of any other manager or member of Original
Borrower or any other party, has the power and authority to execute this
Agreement on behalf of and to duly bind Original Borrower under this Agreement.
The execution and delivery of, and performance under, this Agreement by Original
Borrower has been duly and properly authorized pursuant to all requisite company
action and will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to Original Borrower or the articles of organization
or the operating agreement or any other organizational document of Original
Borrower or (ii) result in a breach of or constitute or cause a default under
any indenture, agreement, lease or instrument to which Original Borrower is a
party or by which the Project may be bound or affected.
(b) Compliance with Laws. Original Borrower has not received any
written notice from any governmental entity claiming that Original Borrower or
the Project is not presently in compliance with any laws, ordinances, rules and
regulations bearing upon the use and operation of the Project, including,
without limitation, any notices relating to Environmental Laws.
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(c) Title to Project and Legal Proceedings. Prior to the Effective
Date Original Borrower was the owner of fee title in the Project. There are no
pending or threatened suits, judgments, arbitration proceedings, administrative
claims, executions or other legal or equitable actions or proceedings against
Original Borrower or the Project, or any pending or threatened condemnation
proceedings or annexation proceedings affecting the Project, or any agreements
to convey any portion of the Project, or any rights thereto to any person or
entity not disclosed in this Agreement, including, without limitation, any
government or governmental agency.
(d) Additional Loans. Neither Original Borrower nor any member or
affiliated entity of Original Borrower currently has any outstanding loans with
Lender other than the Loan or makes payments with respect to a loan to Wachovia
Securities, as servicer.
(e) Franchise Agreement. The Franchise Agreements dated January 27,
1997 (collectively, "FRANCHISE AGREEMENTS"), between Original Borrower and
Marriott, Inc. ("FRANCHISOR"), pursuant to which Original Borrower has the right
to operate the hotels located on the Project under the name(s) and/or hotel
system(s) controlled by such Franchisor, as "Springhill Suites by Marriott" and
"Courtyard by Marriott" are in full force and effect and there is no default,
breach, or violation existing thereunder by any party thereto and no event has
occurred that, with the passage of time or the giving of notice, or both, would
constitute a default, breach or violation by any party thereunder. As of the
date of closing of the Requested Actions, the Franchise Agreements have been
terminated and all sums due thereunder have been paid in full.
(f) Loans to Related Entities. There are no loans payable by Original
Borrower to any members of Original Borrower or any other Related Entities.
(g) Management Agreements. The Development and Management Agreements
dated January 22, 1997 (collectively, "MANAGEMENT AGREEMENT") between Original
Borrower and Inn Alpha Management Corp., a New York corporation ("EXISTING
MANAGER"), is in full force and effect and there are not any existing defaults
thereunder. As of the Closing Date of the Requested Actions, the Management
Agreements have been terminated and all sums due thereunder paid in full.
(h) Leases. There are no leases between Original Borrower, as
landlord, and any third party, as tenant, demising space in the Project.
1.2 ACKNOWLEDGMENTS. WARRANTIES AND REPRESENTATIONS OF NEW BORROWER. As a
material inducement to Lender to enter into this Agreement and to consent to the
Requested Actions, New Borrower acknowledges, warrants, represents and agrees to
and with Lender as follows:
(a) Authority of New Borrower.
(i) New Borrower. New Borrower is a duly organized, validly
existing limited liability company in good standing under the laws of the State
of South Dakota and is duly authorized to transact business under the laws of
the State of Arizona. Summit Hospitality of Scottsdale Arizona, LLC, a Delaware
limited liability company ("SUMMIT") is the
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managing member of New Borrower. Summit, acting alone without the joinder of any
other member or manager of New Borrower or any other party, has the power and
authority to execute this Agreement on behalf of and to duly bind New Borrower
under this Agreement and the Loan Documents. The execution and delivery of, and
performance under, this Agreement by New Borrower has been duly and properly
authorized pursuant to all requisite company action and will not (i) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to New
Borrower or the articles of organization or the limited liability company
agreement of New Borrower or any other organizational document of New Borrower
or (ii) result in a breach of or constitute or cause a default under any
indenture, agreement, lease or instrument to which New Borrower is a party or by
which the Project may be bound or affected.
(b) Summit. Summit is a duly organized, validly existing limited
liability company in good standing under the laws of the State of Delaware and
to the extent required by Arizona law, is authorized to transact business in the
State of Arizona. Xxxxx X. Xxxxxxxxxxx ("BOEKELHEIDE") is the Chief Manager of
Summit. Boekeleide, acting alone without the joinder of any other officer,
manager or member of Summit or any other party, has the power and authority to
execute this Agreement on behalf of and to duly bind Summit and New Borrower
under this Agreement and the Loan Documents to the extent provided for herein.
The execution and delivery of, and performance under, this Agreement by Summit
on behalf of New Borrower has been duly and properly authorized pursuant to all
requisite company action and will not (i) violate any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to Summit or its Articles of
Organization, Limited Liability Company Agreement, or any other organizational
document of Summit, or (ii) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which Summit is a
party or by which the Project may be bound or affected.
(c) Financial Statements. The financial statements and other
information ("FINANCIAL STATEMENTS") of Boekelheide which have been previously
delivered to Lender are true, complete and accurate in every material respect
and accurately represent the financial condition of Boekelheide as of the date
thereof. All of the assets shown on the Financial Statement of Boekelheide are
owned by him as his sole property, and not jointly owned with any other person
or entity unless specifically noted therein. New Borrower also acknowledges and
agrees to cause Principals to timely comply with all financial requirements set
forth in the Loan Documents, including, without limitation, those set forth in
Section 18 of the Security Instrument. New Borrower acknowledges that the
Financial Statements have been provided to Lender to induce Lender to enter into
this Agreement and are being relied upon by Lender for such purposes. Lender to
enter into this Agreement and are being relied upon by Lender for such purposes.
(d) Bankruptcy Proceedings. Neither New Borrower nor any of New
Borrower's members or managers or affiliates or other entities which may be
owned or controlled directly or indirectly by New Borrower or its members
(collectively, "RELATED ENTITIES") has been a party to any Debtor Proceeding (as
hereinafter defined) within seven (7) years prior to the date of this Agreement.
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(e) New Franchise Agreement. The Franchise Agreements of even date
herewith (collectively, the "NEW FRANCHISE AGREEMENT"), between New Borrower and
Franchisor, true and correct copies of which have been delivered to Lender,
pursuant to which New Borrower has the right to operate the hotels under name(s)
and/or hotel system(s) controlled by such Franchisor, are in full force and
effect and there is no default, breach, or violation existing thereunder by any
party thereto and no event has occurred that, with the passage of time or the
giving of notice, or both, would constitute a default, breach or violation by
any party thereunder. All fees due to Franchisor under the Franchise Agreement,
and the terms and provisions of the Franchise Agreement, are subordinate to the
Security Instrument. New Borrower shall not terminate, cancel, modify, renew or
extend the New Franchise Agreement, or enter into any agreement relating to the
right to operate the hotel located on the Project under a name other than
"SPRINGHILL SUITES BY MARRIOTT" for the portion of the Project located at 17020
N. Scottsdale Road, Scottsdale, Arizona, Phoenix, Arizona or "COURTYARD BY
MARRIOTT" for the portion of the Project located at 17010 N. Scottsdale Road,
Scottsdale, Arizona, Phoenix, Arizona, without the prior express written consent
of Lender. New Borrower shall comply with all terms and conditions of the New
Franchise Agreement, including but not limited to the maintenance and operation
of the facilities required to serve alcoholic beverages. New Borrower shall
comply with all terms and conditions of the Security Instrument regarding the
operation of the Project as a hotel, including but not limited to Sections 11
(jj) and 64 of the Security Instrument. The term "Franchise Agreement" in the
Security Instrument shall hereinafter refer to the New Franchise Agreement.
(f) Liquor License. New Borrower shall obtain a liquor license in New
Borrower's name for use at the Courtyard by Marriott. New Borrower shall provide
Lender with copies of the application submitted by New Borrower for such liquor
license and shall provide evidence satisfactory to Lender within 30 days
following the date of New Borrower's receipt of such liquor license of the
perfection of Lender's first priority security interest in such new liquor
license. Failure of New Borrower to timely submit such evidence reflecting
Lender's security interest shall constitute a default under the terms hereof.
Additionally, New Borrower does hereby assign to Lender, all of New Borrower's
right, title and interest in and to any liquor license being obtained by New
Borrower for the Courtyard by Marriott, to the extent assignable, as additional
security for the Loan, which assignment is evidenced by this Agreement.
(g) Property Improvement Plan/Immediate Repairs. In connection with
the New Franchise Agreement, Franchisor requires certain improvements/repairs be
made to the Project as more particularly set forth in the Property Improvement
Plan with a walk through date of April 29, 2003 ("PIP"), a copy of which is
attached hereto as EXHIBIT C. New Borrower shall comply with the terms and
conditions of the PIP, timely complete such improvements/ repairs within the
time frames set forth in the PIP (or such longer time as the Franchisor may
agree), and provide written confirmation of such completion to Lender.
(h) Post Closing Transfer of Licenses. Borrower Parties shall cause
the licenses, permits and operating agreements (collectively the "LICENSES")
more particularly described on the attached EXHIBIT "D" to be transferred into
the name of the New Borrower within the timeframe(s) set forth on said EXHIBIT
"D." The failure to timely transfer the Licenses shall constitute a default
under the Security Instrument.
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(i) Defaults on Other Indebtedness. Neither New Borrower nor any
Related Entities has materially defaulted under its or their obligations with
respect to any other indebtedness, and, with respect to immaterial defaults by
New Borrower or any Related Entities under its or their obligations with respect
to any other indebtedness, such immaterial defaults have been cured prior to the
date of this Agreement.
(j) Title to Project and Legal Proceedings. There are no pending or,
to the best of New Borrower's knowledge, threatened suits, judgments,
arbitration proceedings, administrative claims, executions or other legal or
equitable actions or proceedings against New Borrower.
(k) New Borrower's Organizational Documents. New Borrower is in
compliance with, and its organizational documents do not conflict with, any of
the requirements of Section 12 of the Security Instrument. New Borrower is not
in violation and will not violate of any of the terms, covenants, conditions or
other provisions of its organizational documents or the single purpose entity
requirements set forth in the Loan Documents to the extent such requirements do
not conflict with its organizational documents, approved by Lender.
(l) Assets of New Borrower. The only assets of New Borrower are the
Project and cash or cash equivalents.
(m) Management of Project. New Borrower is entering into that certain
Property Management Agreement with The Summit Group, Inc., a South Dakota
corporation ("PROJECT MANAGER") for the management of the Project (the "NEW
MANAGEMENT AGREEMENT"). The term "MANAGEMENT AGREEMENT" or "MANAGEMENT
AGREEMENT" in the Loan Documents shall hereafter refer to the New Management
Agreement. New Borrower covenants and agrees to comply with and to cause the
Project Manager to comply with all terms and conditions of the Loan Documents
concerning the management of the Project, including without limitation the
obligation to obtain Lender's consent to the management of the Project by any
entity other than Project Manager.
(n) Summit Loan. Any loan made by The Summit Group Inc. to New
Borrower will be satisfied and paid in full at the Closing, and New Borrower
will provide evidence thereof to Lender.
(o) Bona Fide Sale. The Requested Actions represent a bona fide sale,
transfer or conveyance for cash or equivalent consideration.
(p) New Borrower Parties' Interests. Neither of New Borrower nor any
of its members, managers, or principals (collectively "NEW BORROWER ENTITIES")
is obtaining a loan to finance its interest in New Borrower or the Project or
pledging its interest in New Borrower to any party, and none of New Borrower's
members, managers, principals, or affiliated entities have any right to take
over control from any of such other members.
(q) Additional Loans. Neither New Borrower nor any Related Entity
currently has any outstanding loans with Lender other than the Loan or makes
payments with respect to a loan to Wachovia Securities, as servicer.
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(r) Cash Management Agreement. [NEED COPY OF EXISTING AGREEMENT.]
(s) Bankruptcy. None of New Borrower Entities has any intent to (i)
file any voluntary petition under any Chapter of the Bankruptcy Code, Title 11,
U.S.C.A. ("BANKRUPTCY Code"), or in any manner to seek any proceeding for
relief, protection, reorganization, liquidation, dissolution or similar relief
for debtors ("DEBTOR PROCEEDING") under any local, state, federal or other
insolvency law or laws providing relief for debtors or (ii) directly or
indirectly to cause any involuntary petition under any Chapter of the Bankruptcy
Code to be filed against any of New Borrower Entities, or (iii) directly or
indirectly to cause the Project or any portion or any interest of any of New
Borrower Entities in the Project to become the property of any bankrupt estate
or the subject of any Debtor Proceeding.
1.3 ACKNOWLEDGMENTS, WARRANTIES AND REPRESENTATIONS OF BORROWER PARTIES. As
a material inducement to Lender to enter into this Agreement and to consent to
the Requested Actions, Borrower Parties acknowledge, warrant, represent and
agree to and with Lender as follows:
(a) Indebtedness. As of July 29, 2003, the outstanding principal
balance of the Loan was $16,073,118.90, and the following escrow and reserve
balances (collectively, "ESCROW BALANCES") are being held by Lender: (i) a tax
escrow balance of $77,599.47; (ii) an insurance escrow balance of $41,044.28;
(iii) a replacement reserve escrow balance of $1,364,038.51; (IV) a holdback
reserve balance of $82,644.84; and (v) a lockbox sweep reserve balance of
$153,235.91. Further, Borrower Parties acknowledge and agree that Lender will
continue to hold the Escrow Balances for the benefit of New Borrower in
accordance with the terms of the Loan Documents. In the event of an error or
omission of the foregoing information, Lender does not in any way prejudice its
right and entitlement to all monies lawfully due Lender.
(b) Loan Documents. The Loan Documents constitute valid and legally
binding obligations of Original Borrower and, from and after the date hereof,
are valid and legally binding obligations of New Borrower to the extent provided
for herein, enforceable against Original Borrower, New Borrower and the Project
in accordance with their terms or as otherwise provided herein. Original
Borrower as to itself and New Borrower as to itself, each confirm that it has no
defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever against Lender or any of Lender's predecessors in interest and
any subsidiary or affiliate of Lender or any of Lenders' predecessors in
interest and any subsidiary or affiliate of Lender or any of Lender's
predecessors in interest, and all of the past, present and future officers,
directors, contractors, employees, agents, servicers (including, but not limited
to Lennar Partners, Inc), attorneys, representatives, participants, successors
of Lender and Lender's predecessors in interest (collectively "LENDER PARTIES")
with respect to (i) the Loan, (ii) the Loan Documents, (iii) the "DEBT" (as such
term is defined in the Security Instrument), (iv) any other documents or
instruments now or previously evidencing, securing or in any way relating to the
Loan, (v) the administration or funding of the Loan or (vi) the development,
operation or financing of the Project. To the extent any of Borrower Parties
would be deemed to have any such defenses, setoffs, claims, counterclaims or
causes of action, each of Borrower Parties as to itself only knowingly waives
and relinquishes them. New Borrower acknowledges that it has received copies of
all of the Loan Documents.
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(c) No Default. To Original Borrower's knowledge and to New Borrower's
actual knowledge, no event, fact or circumstance has occurred or failed to occur
which constitutes, or with the lapse or passage of time, giving of notice or
both, could constitute a default or "EVENT OF DEFAULT" as such term is defined
in the Loan Agreement.
(d) Further Assurances. Borrower Parties shall execute and deliver to
Lender such agreements, instruments, documents, financing statements and other
writings as may be requested from time to time by Lender to perfect and to
maintain the perfection of Lender's security interest in and to the Project, and
to consummate the transactions contemplated by or in the Loan Documents and this
Agreement.
1.4 REAFFIRMATION AND RELEASE. Original Borrower reaffirms, and, to the
best of New Borrower's knowledge, New Borrower affirms and confirms the truth
and accuracy of all representations and warranties set forth in the Loan
Documents, except as such representations or warranties are otherwise modified
or addressed herein, as if made on the date hereof. Original Borrower
acknowledges and agrees that nothing contained in this Agreement, nor the
Requested Actions, shall release or relieve Original Borrower from its
obligations, agreements, duties, liabilities, covenants and undertakings under
the Loan Documents arising prior to the date hereof, provided, however, by its
execution hereof, Lender hereby releases Original Borrower for any acts or
events occurring or obligations arising under the Loan Documents (with the
exception of the Hazardous Substances Indemnity Agreement, the provisions for
the release of Original Borrower being set forth in the Reaffirmation of
Hazardous Substances Indemnity Agreement and Consent of Indemnitors being
executed in connection herewith and with the exception of any liability of
Original Borrower based upon any material misrepresentation of Original Borrower
in this Agreement or any other document executed in connection herewith) after
the date of the closing of the sale of the Project to, and the assumption of the
Loan by New Borrower.
ARTICLE 2
COVENANTS OF BORROWER PARTIES
Borrower Parties covenant and agree with Lender that:
2.1 ASSUMPTION OF LOAN. New Borrower hereby assumes the indebtedness due
under the Note and all of Original Borrower's other obligations, as grantor,
mortgagor, borrower, assignor, trustor, indemnitor, guarantor, or maker, as the
case may be, under the Loan Documents to the same extent as if New Borrower had
signed such instruments, except to the extent modified or otherwise addressed
herein. New Borrower agrees to comply with and be bound by all the terms,
covenants and agreements, conditions and provisions set forth in the Loan
Documents, except to the extent modified or otherwise addressed herein.
2.2 ASSUMPTION FEE. Simultaneously with or prior to the execution hereof,
any or both of Borrower Parties shall pay to or has paid Lender: (i) an
assumption fee of $160,731.19; (ii) an administrative fee of $125.00, (iii) a
flood certification fee of $15.00, (iv) a credit review-fee of $100.00 and (v)
an insurance review fee of $400.00; each of which Borrower Parties agree are
fees for new consideration and are not interest charged in connection with the
Loan.
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2.3 RELEASE AND COVENANT NOT TO XXX. Borrower Parties, jointly and
severally, on behalf of themselves and all of their respective heirs, successors
and assigns, remise, release, acquit, satisfy and forever discharge Lender
Parties from any and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies, agreements,
liabilities, obligations, expenses, damages, judgments, executions, actions,
inactions, claims, demands and causes of action of any nature whatsoever, at law
or in equity, either now accrued or subsequently maturing, which any of Borrower
Parties now has or hereafter can, shall or may have by reason of any matter,
cause or thing, from the beginning of the world to and including the date of
this Agreement, including, without limitation, matters arising out of or
relating to (a) the Loan, including, but not limited to, its administration or
funding, (b) the Loan Documents, (c) the Debt (as defined in the Security
Instrument) and as otherwise described in the Loan Documents, secured hereby (d)
the Indebtedness described in Section 1.3 hereof, (e) any other agreement or
transaction between any of Borrower Parties and any of Lender Parties, and (f)
the Project or its development, financing and operation. Borrower Parties,
jointly and severally, for themselves and all of their respective heirs,
successors and assigns, covenant and agree never to institute or cause to be
instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of Lender Parties by
reason of or in connection with any of the foregoing matters, claims or causes
of action.
2.4 SAME INDEBTEDNESS; PRIORITY OF LIENS NOT AFFECTED. This Agreement and
the execution of other documents contemplated hereby do not constitute the
creation of a new debt or the extinguishment of the debt evidenced by the Loan
Documents, nor will they in any way affect or impair the liens and security
interests created by the Loan Documents, which New Borrower acknowledges to be
valid and existing liens and security interests in the Project. New Borrower
agrees that the lien and security interests created by the Security Instrument
continue to be in full force and effect, unaffected and unimpaired by this
Agreement or by the transfer of the Project or any collateral described in
financing statements filed in connection with the Loan Documents and that said
liens and security interests shall so continue in their perfection and priority
until the debt secured by the Loan Documents is fully discharged.
2.5 PAYMENT OF TRANSACTION COSTS AND EXPENSES. New Borrower shall pay at
the time of execution of this Agreement by Lender: (a) the legal fees and
disbursements of Lender's counsel, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP, in
connection with the preparation of this Agreement and the transactions
contemplated in this Agreement; (b) all recording costs and documentary stamps,
or other taxes if any, due upon the recording of this Agreement; and (c) the
costs of updating Lender's policy of title insurance insuring the Security
Instrument to a current date and endorsing such policy to include this Agreement
in the description of the Security Instrument with no additional exceptions, or,
at Lender's option, the cost of obtaining a new Lender's policy of title
acceptable to Lender insuring the Security Instrument as affected by this
Agreement.
ARTICLE 3
ADDITIONAL PROVISIONS
3.1 CONSENT OF LENDER. Subject to the terms of this Agreement, Lender
hereby consents to the Requested Actions. Borrower Parties agree that this
Agreement shall not be
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deemed an agreement by Lender to consent to any other transfer or conveyance of
the Project or assumption of the Loan, or a consent to any secondary financing
or secondary encumbrance on the Project or New Borrower or any interests in New
Borrower.
3.2 UCC FILINGS. Borrower Parties hereby grant and confirm unto Lender a
first lien priority interest in all the Collateral (as such term is defined in
the Security Instrument) to the maximum extent permitted by the Uniform
Commercial Code ("UCC"). Borrower Parties hereby further consent to the filing
of any financing statements or UCC forms required to be filed in the applicable
states or any other applicable filing office (collectively "FILINGS") in order
to perfect said interest and, notwithstanding anything contained in any of the
Loan Documents to the contrary, in accordance with the UCC, as amended
subsequent to the making of the Loan, said Filings may be made by Lender without
the consent or signature of either of the Borrower Parties. Additionally,
Borrower Parties consent to the modification of the description of the Property
in the Security Instrument to include the items described on EXHIBIT E attached
hereto and made a part hereof.
3.3 ADDITIONAL DOCUMENTS. Contemporaneously with the execution and delivery
of this Agreement and as a material inducement to Lender to enter into this
Agreement: (a) Borrower Parties hereby authorize Lender to file and/or record
new UCC Financing Statements for filing with the state of organization of New
Borrower and/or UCC Amendments amending the existing Financing Statements for
recording in the Records and for filing with the Arizona Secretary to add New
Borrower as an additional debtor; (b) Original Borrower, Xxxx Xxxxxx ("XXXXXX")
and Xxxxxxx shall have executed and delivered to Lender a Reaffirmation of
Environmental Indemnity and Consent of Indemnitors; (c) Xxxxxx and Xxxxxxx shall
have executed and delivered to Lender a Reaffirmation of Guaranty and Consent of
Guarantors; (d) Boekelheide shall have executed and delivered to Lender a
Guaranty; (e) New Borrower and Boekelheide shall have executed and delivered to
Lender an Environmental Indemnity; (f) Project Manager shall have executed and
delivered to Lender a Consent and Agreement; (g) New Borrower shall have
delivered to Lender fully executed copies of the New Franchise Agreement between
New Borrower and Franchisor together with a letter from Franchisor confirming
there are no outstanding requirements in connection with the issuance of the New
Franchise Agreement, a "comfort letter" or Tri-Party Agreement from Franchisor
in favor of Lender, a termination of the existing Franchise Agreement with
Original Borrower signed by Franchisor, and (h) Boekelheide shall have executed
a construction completion guaranty for the PIP in favor Lender, and any and all
other documents by and between New Borrower and Franchisor, all in form
acceptable to Lender.
3.4 REFERENCES TO LOAN DOCUMENTS. All references to the term "LOAN
DOCUMENTS" in the Security Instalment, the Assignment of Leases and Rents and
the other Loan Documents shall hereinafter mean and refer to: (i) all of the
Loan Documents described therein; (ii) this Agreement; and (iii) any and all
other agreements, documents and other instruments evidencing, securing or in any
manner related to the documents executed in connection with or otherwise
pertaining to this Agreement other than the Hazardous Substances Indemnity
Agreement and the Reaffirmation of Hazardous Substances Indemnity Agreement and
Consent of Indemnitors dated the date hereof in favor of Lender.
10
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 NO LIMITATION OF REMEDIES. No right, power or remedy conferred upon or
reserved to or by Lender in this Agreement is intended to be exclusive of any
other right, power or remedy conferred upon or reserved to or by Lender under
this Agreement, the Loan Documents or at law, but each and every remedy shall be
cumulative and concurrent, and shall be in addition to each and every other
right, power and remedy given under this Agreement, the Loan Documents or now or
subsequently existing at law.
4.2 NO WAIVERS. Except as otherwise expressly set forth in this Agreement,
nothing contained in this Agreement shall constitute a waiver of any rights or
remedies of Lender under the Loan Documents or at law. No delay or failure on
the part of any party hereto in the exercise of any right or remedy under this
Agreement shall operate as a waiver, and no single or partial exercise of any
right or remedy shall preclude other or further exercise thereof or the exercise
of any other right or remedy. No action or forbearance by any party hereto
contrary to the provisions of this Agreement shall be construed to constitute a
waiver of any of the express provisions. Any party hereto may in writing
expressly waive any of such party's rights under this Agreement without
invalidating this Agreement.
4.3 SUCCESSORS OR ASSIGNS. Whenever any party is named or referred to in
this Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns of such party shall be included. All covenants
and agreements in this Agreement shall bind and inure to the benefit of the
heirs, executors, legal representatives, successors, successors-in-title and
assigns of the parties, whether so expressed or not.
4.4 CONSTRUCTION OF AGREEMENT. Each party hereto acknowledges that it has
participated in the negotiation of this Agreement and no provision shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision. Borrower
Parties at all times have had access to an attorney in the negotiation of the
terms of and in the preparation and execution of this Agreement. Borrower
Parties have had the opportunity to review and analyze this Agreement for a
sufficient period of time prior to execution and delivery. No representations or
warranties have been made by or on behalf of Lender, or relied upon by Borrower
Parties, pertaining to the subject matter of this Agreement, other than those
set forth in this Agreement. All prior statements, representations and
warranties, if any, are totally superseded and merged into this Agreement, which
represent the final and sole agreement of the parties with respect to the
subject matters. All of the terms of this Agreement were negotiated at arm's
length, and this Agreement was prepared and executed without fraud, duress,
undue influence or coercion of any kind exerted by any of the parties upon the
others. The execution and delivery of this Agreement is the free and voluntary
act of Borrower Parties.
4.5 INVALID PROVISION TO AFFECT NO OTHERS. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any related
transaction at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
11
of like character and amount, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity. If any clause or provision
operates or would prospectively operate to invalidate this Agreement, in whole
or in part, then such clause or provision only shall be deemed deleted, as
though not contained, and the remainder of this Agreement shall remain operative
and in full force and effect.
4.6 NOTICES. Except as otherwise specifically provided to the contrary, any
and all notices, elections, approvals, consents, demands, requests and responses
("COMMUNICATIONS") permitted or required to be given under this Agreement and
the Loan Documents shall not be effective unless in writing, signed by or on
behalf of the party giving the same, and sent by certified or registered mail,
postage prepaid, return receipt requested, or by hand delivery or overnight
courier service (such as Federal Express), to the party to be notified at the
address of such party set forth below or at such other address within the
continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in accordance
with this Section. Any Communications shall be effective upon the earlier of
their receipt or three days after mailing in the manner indicated in this
Section. Receipt of Communications shall occur upon actual delivery but if
attempted delivery is refused or rejected, the date of refusal or rejection
shall be deemed the date of receipt. Any Communication, if given to Lender, must
be addressed as follows, subject to change as provided above:
JPMorgan Chase Bank f/k/a Chase Manhattan
Bank, a New York Banking Corporation, as Trustee
c/o Wachovia Securities
Real Estate & Financial Services
8739 Research Drive, URP4
XX0000
Xxxxxxxxx, XX 00000-0000
Re: CSFB 1999-C1; Loan No. M760990006
With a copy to: Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Director of Servicing
Re: CSFB 1999-C1; Loan No. M760990006
and, if given to Original Borrower, must be addressed as follows,
notwithstanding any other address set forth in the Loan Documents to the
contrary, subject to change as provided above:
Xxxx Suites/Xxxx Hospitality, L.L.C.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
and, if given to New Borrower, must be addressed as follows, subject to change
as provided above:
12
Summit Group of Scottsdale, Arizona, LLC
c/o The Summit Group
0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
4.7 GOVERNING LAW. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Arizona.
4.8 HEADINGS; EXHIBITS. The headings of the articles, sections and
subsections of this Agreement are for the convenience of reference only, are not
to be considered a part of this Agreement and shall not be used to construe,
limit or otherwise affect this Agreement.
4.9 MODIFICATIONS. The terms of this Agreement may not be changed,
modified, waived, discharged or terminated orally, but only by an instrument or
instruments in writing, signed by the Party against whom the enforcement of the
change, modification, waiver, discharge or termination is asserted. Lender's
consent to the Requested Actions shall not and should not be deemed to
constitute Lender's consent to any provisions of the organizational documents
that would be in violation of the terms and conditions of any of the Loan
Documents.
4.10 TIME OF ESSENCE; CONSENTS. Time is of the essence of this Agreement
and the Loan Documents. Any provisions for consents or approvals in this
Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Lender.
4.11 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all such counterparts together
shall constitute one and the same instrument.
4.12 WAIVER OF TRIAL BY JURY. BORROWER PARTIES HEREBY AGREE NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRLABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THE NOTE, THIS AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER
PARTIES, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE
AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER PARTIES.
13
The parties have executed and delivered this Agreement as of the day and
year first above written.
WITNESSES: LENDER:
JPMORGAN CHASE BANK F/K/A CHASE
MANHATTAN BANK, A NEW YORK
BANKING CORPORATION, AS TRUSTEE
FOR THE REGISTERED HOLDERS OF
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
COMMERCIAL MORTGAGE, PASS-
THROUGH CERTIFICATES, SERIES 1999-C1
By: Lennar Partners, Inc.,
as attorney-in-fact
By: [SEAL]
------------------------------------- ------------------------------
Print Name: Name:
------------------------- ----------------------------------
Title:
---------------------------------
-------------------------------------
Print Name:
-------------------------
STATE OF FLORIDA )
)SS:
COUNTY OF MIAMI-DADE )
This instrument was acknowledged before me, a notary public this
_______________ day of ______________, 2003, by ____________________, as
Vice President of Lennar Partners, Inc., a Florida corporation, on behalf of
said corporation as attorney-in-fact for JPMORGAN CHASE BANK F/K/A CHASE
MANHATTAN BANK, A NEW YORK BANKING CORPORATION, AS TRUSTEE FOR THE REGISTERED
HOLDERS OF CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., COMMERCIAL
MORTGAGE, PASS-THROUGH CERTIFICATES, SERIES 1999-C1, on behalf of the trust.
He/She ____________________________ is personally known to me or ________ has
produced a driver's license as identification.
----------------------------------------
Notary Public
My Commission Expires:
-----------------
14
WITNESSES: ORIGINAL BORROWER:
XXXX SUITES/XXXX HOSPITALITY, L.L.C.,
a Delaware limited liability company
By:
------------------------------------
Xxxxxxx Xxxxxx, Authorized Agent
-------------------------------------
Print Name:
-------------------------
-------------------------------------
Print Name:
-------------------------
STATE OF )
------------------------
)SS:
COUNTY OF )
-----------------------
Date of Acknowledgement:
------------
Acknowledgement of:
-----------------
This instrument was acknowledged before me this date by the persons
above-subscribed and if subscribed in a representative capacity, then for the
principal named and in the capacity indicated.
-------------------------------------
Notary Public
My commission expires:
--------------
15
WITNESSES: NEW BORROWER:
SUMMIT GROUP OF SCOTTSDALE, ARIZONA LLC,
a South Dakota limited liability company
By: Summit Hospitality of Scottsdale,
Arizona LLC, a Delaware limited
liability company,
its Managing Member
Print Name:
-------------------------
/s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------- ------------------------------------
Print Name: Xxxxxxxx Xxxxxx Xxxxx X. Xxxxxxxxxxx, Chief Manager
STATE OF SOUTH DAKOTA )
)SS:
COUNTY OF Minnehaha )
Date of Acknowledgement: July 30, 2003
Acknowledgement of: Xxxxx X. Xxxxxxxxxxx
Xxxxxxxx Xxxxxx
This instrument was acknowledged before me this date by the persons
above-subscribed and if subscribed in a representative capacity, then for the
principal named and in the capacity indicated.
/s/ Xxxx X. Xxxxxxxxxxxx --------------------
------------------------------------- XXXX X. XXXXXXXXXXXX
Notary Public NOTARY PUBLIC
My commission expires: January 2, 2008 SOUTH DAKOTA
--------------------
16
EXHIBIT A
LEGAL DESCRIPTION
COURTYARD BY MARRIOTT
City of Phoenix
County of Maricopa
State of Arizona
LOT 1, XXXX SUITES, a subdivision recorded in Book 433 of Maps, page 28, records
of Maricopa County, Arizona
Easements, Rights of Way and other benefits as set forth in Joint Use Agreement
recorded November 14, 1996 in Recording No. 96-0803692, amended in Recording No.
97-0573520 and amended in Recording No. 98-107102.
Easements, Rights of Way and other benefits as set forth in Joint Road Agreement
recorded November 14, 1996 in Recording No. 96-0803693
An easement for access driveways, walkways ingress and egress as set forth on
Reciprocal Easement Agreement recorded in Recording No. 96-0803694
An easement for sewer line as set forth in Recording No. 97-0587977
An easement for sewer line as set forth in Recording No. 97-0587978
SPRINGHILL SUITES
City of Phoenix
County of Maricopa
State of Arizona
LOT 2, XXXX SUITES, a subdivision recorded in Book 433 of Maps, page 28, records
of Maricopa County, Arizona
Easements, Rights of Way and other benefits as set forth in Joint Use
Agreement recorded November 14, 1996 in Recording No. 96-0803692, amended in
Recording No. 97-0573520 and amended in Recording No. 98-107102.
Easements, Rights of Way and other benefits as set forth in Joint Road Agreement
recorded November 14, 1996 in Recording No. 96-0803693.
An easement for access driveways, walkways ingress and egress as set forth on
Reciprocal Easement Agreement recorded in Recording No. 96-0803694
An easement for sewer line as set forth in Recording No. 97-0587977
An easement for sewer line as set forth in Recording No. 97-0587978
EXHIBIT "B"
LOAN DOCUMENTS
1. Deed of Trust Note dated July 31, 1998 (the "NOTE"), in the original
principal amount of $17,000,000, executed by Original Borrower in favor of
Credit Suisse First Boston Mortgage Capital, LLC ("ORIGINAL LENDER").
2. Deed of Trust, Assignment of Leases and Rents and Security Agreement
dated as of July 31, 1998, (the "SECURITY INSTRUMENT"), made by Original
Borrower in favor of a trustee for the benefit of Original Lender, and
encumbering the Project, recorded on July 31, 1998 in the Public Records of
Maricopa County, Arizona (the "RECORDS") as Document No. 98-0667046.
3. Assignment of Leases and Rents dated as of July 31, 1998 ("Assignment of
Leases") made by Original Borrower in favor of Lender recorded on July 31, 1998
in the Records as Document No. 00-0000000.
4. UCC-1 Financing Statements (the "FINANCING STATEMENTS") reflecting
Original Borrower, as debtor, and Original Lender, as secured party, recorded on
July 31, 1998 in the Records as Document No. 00-0000000 in the Records and filed
with the Office of the Secretary of Arizona ("ARIZONA SECRETARY") on August 31,
1998, as File No. 01027680.
5. Hazardous Substances Indemnity Agreement dated as of July 31, 1998
("ENVIRONMENTAL INDEMNITY") given by Original Borrower, Xxxxxxx X. Xxxxxxx and
Xxxx Xxxxxx, in favor of Original Lender.
6. Guaranty dated as of July 31, 1998 ("GUARANTY"), given by Original
Borrower, Xxxxxxx X. Xxxxxxx and Xxxx Xxxxxx in favor of Original Lender.
7. Assignment and Subordination of Management Agreement dated as of July
31, 1998, given by Inn Alpha Management Corp in favor of Original Lender (for
Springhill Suites).
8. Assignment and Subordination of Management Agreement dated as of July
31, 1998 given by Inn Alpha Management Corp in favor of Original Lender (for
Courtyard Inn by Marriott).
EXHIBIT C
PROPERTY IMPROVEMENT PLAN
[INTENTIONALLY DELETED FOR RECORDING PURPOSES]
EXHIBIT D
LICENSES
EXHIBIT E
With respect to any term used in the security agreement or other document
that serves as a security agreement in connection with the Loan and any
Financing Statements filed in connection therewith that is defined in either (i)
Article 9 of the U.C.C. as in force in the jurisdiction the law of which
governed the security interest at the time the Original Borrower authenticated
the security agreement, or (ii) Article 9 as in force at any relevant time in
the jurisdiction in which a Financing Statement or Amendment is filed, the
meaning to be ascribed thereto with respect to any particular item of property
shall be that under the more encompassing of the two definitions.
