RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Dechert, Price and Xxxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Space Above This Line For Recorder's Use
--------------------------------------------------------------------------------
Loan # 0-000-000
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (this "Agreement") is dated as of July
1, 1998, by and between SONESTA BEACH RESORT LIMITED PARTNERSHIP, a Delaware
limited partnership having a mailing address of c/o Sonesta International Hotels
Corporation, T-00, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Office of the
Treasurer ("Borrower"), and STATE STREET BANK AND TRUST COMPANY, TRUSTEE
("Lender"), having a mailing address of 0 Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxx, XX 00000.
RECITALS
X. Xxxxxx is the owner and holder of certain indebtedness (the "Loan")
evidenced, inter alia, by that Second Renewal Promissory Note (the "Note") dated
December 1, 1993 from Key Biscayne Limited Partnership (the "Debtor"), as maker,
which Note is payable to the order of Aetna Life Insurance Company ("Aetna") in
the original principal amount of $24,142,088.26 and which Note was endorsed to
the order of Lender by way of a separate Allonge executed by Aetna and attached
to the Note, as well as the following documents and instruments evidencing and
securing the Loan (collectively with the Note, the "Loan Documents"):
(i) That certain Promissory Note dated December 28, 1984,
evidencing a loan to Debtor from Southeast Bank, N.A. in the original
principal amount of $22,000,000 (the "Original Note") and a Mortgage and
Security Agreement dated December 28, 1984, from Debtor to Southeast
Bank, N.A., which secures the Original Note and which is recorded in the
Public Records of Dade County, Florida in Official Records Book 12369,
Page 6689 (the "Original Mortgage"), which (i) Original Note, (iii)
Original Mortgage, and (iii) Assignment of Lessor's Interest in Leases
appurtenant thereto and recorded in the Public Records of Dade County,
Florida in Official Records Book 12369, Page 6716 (the "Original
Assignment"), were assigned to Aetna pursuant to that certain Assignment
recorded in the Public Records of Dade County, Florida in Official
Records Book 12514, Page 2826, and which Original Note was endorsed to
the order of Aetna pursuant to that certain endorsement affixed to the
Original Note and executed by Southeast Bank, N.A. The Original Note was
amended and restated by that certain Note Modification
-------------------------------
NO DOCUMENTARY STAMP TAX IS DUE UPON THE RECORDATION OF THIS AGREEMENT
PURSUANT TO SECTION 1146(C) OF THE UNITED STATES BANKRUPTCY CODE AND
PARAGRAPH 7 OF THE CONFIRMATION ORDER DATED JUNE 25, 1998, ENTERED IN CASE
#98-13500 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA.
Agreement by and between Aetna and Debtor dated May 17, 1985, and the
Original Mortgage was amended and restated by that certain Mortgage
Modification and Extension Agreement dated May 17, 1985 and recorded in
the Public Records of Dade County, Florida in Official Records Book
12514, Page 2827. As additional security for the Original Note, as
amended and restated, as aforesaid, Debtor executed in favor of Aetna
that certain Assignment of Rents and Leases dated May 17, 1985 and
recorded in the Public Records of Dade County, Florida in Official
Records Book 12514, Page 2847 (the "Second Assignment"). Debtor and
Aetna also entered into (i) that certain Note and Mortgage Modification
Agreement dated July 29, 1988 and recorded in the Public Records of Dade
County, Florida in Official Records Book 13804, Page 1027, (ii) that
certain Second Note and Mortgage Modification Agreement dated October 9,
1989 and recorded in the Public Records of Dade County, Florida in
Official Records Book 14290, Page 861, and (iii) that certain Third Note
and Mortgage Modification Agreement dated February 22, 1990 and recorded
in the Public Records of Dade County, Florida in Official Records Book
14461, Page 697. In addition, Xxxxxx executed and delivered to Aetna its
Accrual Promissory Note dated as of October 1, 1991, in the original
principal amount of $953,333.33, which was consolidated with Debtor's
indebtedness evidenced by the aforesaid Third Note and Mortgage
Modification Agreement pursuant to a Consolidating Note Agreement dated
as of October 1, 1991 between Debtor and Aetna, and renewed pursuant to
Debtor's Renewal Promissory Note dated as of October 1, 1991, and
further modified by Mortgage Modification Agreement dated as of October
1, 1991 and recorded in the Public Records of Dade County, Florida in
Official Records Book 16242, Page 1563, and which Accrual Promissory
Note and Renewal Promissory Note were each endorsed to the order of the
Lender for the registered holders of Aetna Commercial Mortgage Trust
Multiclass Pass-Through Certificates, Series 1997-XXXX by way of
separate Allonges executed by Aetna and attached to each of the
aforesaid Accrual Promissory Note and Renewal Promissory Note. The
Original Mortgage, as restated and subsequently assigned, amended,
modified and renewed, as aforesaid, is hereinafter referred to as the
"Mortgage."
(ii) The Lender is also the holder of (i) that certain Accrual
Promissory Note dated as of December 1, 1993 (the "Accrual Note") from
Debtor, in the principal amount of $2,192,906.23, and (ii) that certain
Promissory Note dated December 1, 1993 (the "Capitalized Interest Note")
from Debtor, in the principal amount of $2,142,088.26. The Note, the
Accrual Note and the Capitalized Interest Note have been consolidated
pursuant to the terms of a Consolidating Note Agreement dated effective
as of December 1, 1993, between Debtor and Aetna, and said notes, as
consolidated, have been renewed pursuant to the provisions of the Note
effective as of December 1, 1993, in favor of Aetna. The Accrual
Promissory Note, the Capitalized Interest Note and the Note were each
endorsed to the order of the Lender by way of separate Allonges executed
by Aetna and attached to each of the aforesaid Accrual Promissory Note,
Capitalized Interest Note and Note. The Accrual Promissory Note and the
Capitalized Interest Note are secured by a Mortgage Deed (the "Mortgage
Deed") dated as of December 1, 1993, from Debtor to Aetna and recorded
in the Public Records of Dade County, Florida in Official Records Book
16242, Page 1581. The Mortgage and the Mortgage Deed have been further
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consolidated and modified, and the Original Assignment and the Second
Assignment have been ratified and confirmed, pursuant to that certain
Mortgage Modification Agreement dated as of December 1, 1993, and
recorded in the Public Records of Dade County, Florida in Official
Records Book 16242, Page 1589. The aforesaid Mortgage, the Mortgage
Deed, the Original Assignment and the Second Assignment, each as
restated, assigned, amended, modified and renewed, as aforesaid,
together with the note or notes described in said documents, and all
other documents or instruments which may have been executed in favor of
Aetna in connection with the aforesaid documents were assigned by Aetna
to the Lender pursuant to that certain Assignment of Mortgage Loan dated
as of December 22, 1997 and recorded in the Public Records of Dade
County, Florida in Official Records Book 17976, Page 980.
B. The Loan is secured by, inter alia, a first priority lien on and in
that certain real property with improvements thereon and certain personalty
related thereto, commonly known as Sonesta Beach Resort located in Key Biscayne,
Florida and more fully described on the attached Exhibit A (the "Mortgaged
Property").
C. On or about April 23, 1998 (the "Petition Date"), Debtor filed a
petition for relief under Chapter 11 of the United States Bankruptcy Code, Case
#98-13500, (the "Bankruptcy Proceeding") in the United States Bankruptcy Court
for the Southern District of Florida (the "Bankruptcy Court").
D. On or about the Petition Date, Debtor filed that certain Joint Plan
of Reorganization dated April 23, 1998 (the "Plan") in the Bankruptcy
Proceeding.
E. On or about June 25, 1998, the Bankruptcy Court entered an order
confirming the Plan (the "Confirmation Order").
F. The Plan provides, inter alia, for: (i) the transfer of the Mortgaged
Property to Borrower; and (ii) the assumption of the Loan by the Borrower.
X. Xxxxxx has consented to the terms of the Plan.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, it is agreed as follows:
1. Xxxxxxxx hereby assumes and agrees to pay, perform and be
bound by all obligations of Debtor under, arising from or related to, and all
terms and conditions of, the Loan and the Loan Documents and the indebtedness
evidenced and secured thereby.
2. All references in the Loan Documents to "Maker", "Mortgagor",
"Assignor", "Borrower" or other similar references shall hereafter be deemed to
refer to and describe Borrower. All representations, covenants and warranties of
Debtor set forth in any of the Loan Documents are affirmed and remade by
Xxxxxxxx herein. Borrower (as debtor) hereby grants to Lender (as creditor) a
security interest in all personal property and fixtures related to the
-3-
Mortgaged Property, and in any other personal property or fixtures constituting
part of the Mortgaged Property.
3. The parties hereto hereby acknowledge and agree that none of
the Loan Documents has been modified, amended, cancelled, terminated, released,
superseded or otherwise rendered of no force and effect.
4. Each of the Loan Documents are hereby ratified and confirmed
by the parties hereto, and every provision, covenant, condition, obligation,
right and power contained in and under each of the Loan Documents shall continue
in full force and effect, affected by this Agreement only to the extent of the
assumption set forth herein.
5. Lender hereby consents to the assumption of the Loan Documents
by Xxxxxxxx.
6. Representations and Warranties of Borrower:
(A) Organization. Borrower (i) is a duly organized and
validly existing limited partnership in good standing under the laws of
the State of its formation, (ii) is duly qualified as a foreign entity
in each jurisdiction in which the nature of its business, or the
location of the Mortgaged Property makes such qualification necessary or
desirable, (iii) has the requisite power and authority to carry on its
business as now being conducted, and (iv) has the requisite power to
execute and deliver, and perform its obligations under, this Agreement
and the Loan Documents.
(B) Authorization. The execution and delivery by Borrower
of this Agreement, Xxxxxxxx's performance of its obligations thereunder
and under the Loan Documents and the security interests and liens
provided for in the Loan Documents (i) have been duly authorized by all
requisite entity action on the part of Borrower, (ii) will not violate
any provision of the Plan, any applicable legal requirements, any order,
writ, decree, injunction or demand of any court or other governmental
authority, any organizational document of Borrower or any indenture or
agreement or other instrument to which Borrower is a party or by which
Borrower is bound, and (iii) will not be in conflict with, result in a
breach of, or constitute (with due notice or lapse of time or both) a
default under, or result in the creation or imposition of any lien of
any nature whatsoever upon any of the property or assets of Borrower
pursuant to any indenture or agreement or instrument. Except for those
obtained or filed on or prior to the date hereof, Borrower is not
required to obtain any consent, approval or authorization from, or to
file any declaration or statement with, any governmental authority or
other agency in connection with or as a condition to the execution,
delivery or performance of this Agreement.
(C) Litigation. There are no actions, suits or proceedings
at law or in equity by or before any governmental authority or other
agency now pending and served
-4-
or, to the knowledge of Xxxxxxxx, threatened against Borrower, or the
Mortgaged Property except the Bankruptcy Proceeding.
(D) Agreements. Borrower is not a party to any agreement
or instrument or subject to any restriction which is likely to have a
material adverse effect on ability to perform obligations hereunder or
under the Loan Documents. Borrower is not in default in any respect in
the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any indenture, agreement or
instrument to which it is a party or by which Borrower or the Mortgaged
Property is bound.
(E) No Bankruptcy Filing. Borrower is not contemplating
either the filing of a petition by Borrower under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major
portion of Borrower's assets or property, and Xxxxxxxx has no knowledge
of any person contemplating the filing of any such petition against
Borrower.
(F) Location of Chief Executive Offices. The location of
Borrower's principal place of business is 000 Xxxxx Xxxxx, Xxx Xxxxxxxx,
Xxxxxxx 00000, and the location of Borrower's chief executive office is
c/o Sonesta International Hotels Corporation, T-00, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Xxxxxxxx has no other places of
business.
(G) Compliance. Borrower, the Mortgaged Property and
Xxxxxxxx's use thereof and operations thereat comply in all material
respects with all applicable legal requirements. Borrower is not in
default or violation of any order, writ, injunction, decree or demand of
any governmental authority, the violation of which is reasonably likely
to have a material adverse effect on Borrower or the Mortgaged Property.
(H) Solvency. Borrower (i) has not entered into this
Agreement with the actual intent to hinder, delay, or defraud any
creditor, and (ii) has received reasonably equivalent value in exchange
for its obligations under this Agreement and under the Plan. Xxxxxxxx's
assets do not and, immediately following the execution and delivery of
this Agreement and the consummation of the Plan, will not, constitute
unreasonably small capital to carry out its business as conducted or as
proposed to be conducted. Borrower does not intend to, and does not
believe that it will, incur debts and liabilities (including, without
limitation, contingent obligations and other commitments) beyond its
ability to pay such debts as they mature (taking into account the timing
and amounts to be payable on or in respect of obligations of Borrower).
(I) Title to the Mortgaged Property. Borrower owns good,
indefeasible, marketable and insurable fee simple title to the Mortgaged
Property, free and clear of all liens, other than the liens created by
the Loan Documents and those set forth on Exhibit B (the "Permitted
Encumbrances"). There are no outstanding options to purchase or rights
of first refusal affecting the Facility. The Permitted Encumbrances do
not and will not materially and adversely affect (i) the ability of
Borrower to pay in
-5-
full all sums due under the Note and other Loan Documents, or any of
its other obligations in a timely manner or (ii) the use of the
Mortgaged Property for the use currently being made thereof or the
operation of the Mortgaged Property as currently being operated.
(J) Enforceability. This Agreement and the Loan Documents
are the legal, valid and binding obligations of Borrower, enforceable
against Borrower in accordance with their terms. The Mortgage and other
Loan Documents create a valid and enforceable first mortgage lien and
security interest in the Mortgaged Property as security for the
repayment of the Loan. The Loan Documents are, as of the date hereof,
not subject to any right of rescission, set-off, counterclaim or defense
by Xxxxxxxx, including the defense of usury, nor will the operation of
any of the terms of the Note, the Mortgage, or such other Loan
Documents, or the exercise of any right thereunder, render the Loan
Documents unenforceable against Borrower, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense by
Borrower, including the defense of usury, and Xxxxxxxx has not asserted
any right of rescission, set-off, counterclaim or defense with respect
thereto.
(K) Conduct of Business. Borrower does not conduct its
business "also known as", "doing business as" or under any name other
than Sonesta Beach Resort-Key Biscayne.
(L) Survival of Representations and Warranties. Xxxxxxxx
agrees that (i) all of the representations and warranties of Borrower
set forth in this Agreement and in the other Loan Documents are made as
of the date hereof (except as expressly otherwise provided) and (ii) all
representations and warranties made by Borrower shall survive the
delivery of this Agreement and continue for so long as any amount
remains owing to Lender under this Agreement, the Note or any other Loan
Document.
7. All provisions of this Agreement shall be effective as of the
date hereof, and shall be binding upon and inure to the benefit of the
respective heirs, legal representatives, successors and assigns of the parties
hereto.
8. Matters of construction, validity and performance of this
Agreement and the obligations arising hereunder shall be governed by the
internal laws of the State of Florida.
9. No modification, amendment, extension, discharge, termination
or waiver of any provision of this Agreement, the Note or any other Loan
Document, or consent to any departure by Borrower therefrom, shall in any event
be effective unless the same shall be in a writing signed by the party against
whom enforcement is sought, and then such waiver or consent shall be effective
only in the specific instance, and for the purpose, for which given.
10. All notices, consents, approvals and requests required or
permitted hereunder or under any other Loan Document shall be given in
accordance with the terms of the Loan Documents and addressed, if to Lender, at
its address set forth on the first page hereof, and, if to Borrower, at its
designated address set forth on the first page hereof, or to such other address
-6-
as either party shall provide written notice to the other. A copy of all
notices, consents, approvals and requests, if directed to Lender, shall be
delivered concurrently to Dechert Price & Xxxxxx, 00 Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: Xxxxxxxxx X. Xxxxxxxxx,
Esq., Telefax Number 860/524-3930, and if directed to Borrower, shall be
delivered concurrently to: Sonesta International Hotels Corporation, T-00, 000
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Office of the Treasurer.
11. XXXXXXXX AND XXXXXX, TO THE FULLEST EXTENT THAT THEY MAY
LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH
RESPECT TO THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS.
12. Borrower shall pay all transaction costs, which shall
include, without limitation, reasonable fees, costs, expenses, and disbursements
of Lender and its attorneys, including local counsel, in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement, including
opinions of counsel required in connection therewith, (ii) the creation,
perfection or protection of Lender's liens in the Mortgaged Property (including,
without limitation, fees and expenses for title and lien searches and filing and
recording fees, intangibles taxes, personal property taxes), mortgage recording
taxes, and (iv) the costs and expenses of obtaining an endorsement and down
dating of the title policy issued in connection with the Loan.
13. This Agreement, together with the Exhibits hereto and the
other Loan Documents, constitutes the entire agreement among the parties hereto
with respect to the subject matter contained in this Agreement, the Exhibits
hereto and the other Loan Documents and supersedes all prior agreements,
understandings and negotiations between the parties.
14. Xxxxxxxx and the general partner(s) of Xxxxxxxx, upon request
from Xxxxxx, agree to execute such other and further documents as may be
reasonably necessary or appropriate to consummate the transactions contemplated
by the Loan Documents or this Agreement or to perfect the liens and security
interests intended to secure the payment of the Loan.
15. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed to be an original, and all of which
shall collectively constitute a single agreement, fully binding upon and
enforceable against the parties hereto.
Remainder of Page Intentionally Left Blank; Signature Page Follows
-7-
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement as
of the date first written above.
Borrower:
Witnessed By: SONESTA BEACH RESORT
LIMITED PARTNERSHIP
By: Florida Sonesta Corporation
General Partner
By:
------------------------------------ ----------------------------
Name: Name:
Title:
------------------------------------
Name:
Lender:
Witnessed By: STATE STREET BANK AND TRUST
COMPANY, TRUSTEE
By:
------------------------------------ ----------------------------
Name: Name:
Title:
------------------------------------
Name:
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STATE OF )
------------------------------------
) ss. ___________ ____, 1998
COUNTY OF )
-----------------------------------
Personally appeared , _______,_________________ of Florida Sonesta
Corporation, a Florida corporation and general partner of SONESTA BEACH RESORT
LIMITED PARTNERSHIP, a Delaware limited partnership, and acknowledged the
execution of this instrument to be his/her free act and deed and the free act
and deed of the corporation and limited partnership, before me this day.
----------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
[NOTARY SEAL]
STATE OF )
------------------------------------
) ss. ___________ ____, 1998
COUNTY OF )
-----------------------------------
Personally appeared , _______,______________________ of STATE STREET
BANK AND TRUST COMPANY, TRUSTEE and acknowledged the execution of this
instrument to be his/her free act and deed and the free act and deed of the
corporation, before me this day.
----------------------------------
Name:
Commissioner of the Superior Court
Notary Public
My Commission Expires:
[NOTARY SEAL]
-9-
EXHIBIT A
[Legal Description]
-------------------------------
NO DOCUMENTARY STAMP TAX IS DUE UPON THE RECORDATION OF THIS AGREEMENT
PURSUANT TO SECTION 1146(C) OF THE UNITED STATES BANKRUPTCY CODE AND
PARAGRAPH 7 OF THE CONFIRMATION ORDER DATED JUNE 25, 1998, ENTERED IN CASE
#98-13500 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA.
EXHIBIT B
[Permitted Encumbrances]
-------------------------------
NO DOCUMENTARY STAMP TAX IS DUE UPON THE RECORDATION OF THIS AGREEMENT
PURSUANT TO SECTION 1146(C) OF THE UNITED STATES BANKRUPTCY CODE AND
PARAGRAPH 7 OF THE CONFIRMATION ORDER DATED JUNE 25, 1998, ENTERED IN CASE
#98-13500 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT
OF FLORIDA.
