This document prepared by:
Xxxxxxxx X. Xxxxxx
Xxxx, Xxxx & Xxxxx
Three First National Plaza
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
After recording return to:
Xxxxx Xxxxx
Broad and Xxxxxx
Corporate Centre at Boca Raton
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
AMENDMENT TO AND ASSIGNMENT OF KBHA/PLT INDEBTEDNESS
THIS AMENDMENT TO AND ASSIGNMENT OF KBHA/PLT INDEBTEDNESS (the
"Amendment") is made as of July 1, 1998 among KEY BISCAYNE LIMITED PARTNERSHIP,
a Florida limited partnership ("KBLP"), KEY BISCAYNE BEACH HOTEL ASSOCIATES,
LTD., a Florida limited partnership ("KBHA"), PARTNERS LIQUIDATING TRUST, a
Delaware trust ("PLT") and SONESTA BEACH RESORT LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership").
Recitals
A. KBLP, KBHA (referred to as "Key Biscayne Hotel Associates,
Ltd."), PLT, FLORIDA SONESTA CORPORATION, a Florida corporation ("FSC"), KEY
BISCAYNE LAND CORPORATION, a Florida corporation ("Sonesta II"), STRATEGIC
REALTY ADVISORS, INC., an Illinois corporation ("SRAI") and SONESTA
INTERNATIONAL HOTELS CORPORATION, a New York corporation ("Sonesta
International") have executed and delivered (or joined in) that certain
CONTRIBUTION AND FORMATION AGREEMENT dated as of January 30, 1998 and First
Amendment to Contribution and Formation Agreement dated as of April 3, 1998
(collectively, the "Agreement"), pursuant to which, inter alia, KBLP agreed to
contribute certain of its real property and improvements, commonly known as the
Sonesta Beach Resort and legally described on Exhibit A hereto (the "Property")
to the Partnership.
B. KBLP is the borrower under certain loans from (i) KBHA
(such indebtedness, which is indicated on Exhibit B attached hereto and
incorporated herein, is referred to as the "KBHA Indebtedness"), and (ii) PLT
(such indebtedness, which is indicated on Exhibit B attached hereto and
incorporated herein, is referred to as the "PLT Indebtedness"). The
combined obligations of KBLP under the KBHA Indebtedness and the PLT
Indebtedness is referred to herein and the Agreement as the "KBHA/PLT
Indebtedness").
C. The Agreement requires certain amendments to the KBHA/PLT
Indebtedness.
Agreements
NOW THEREFORE, for and in consideration of the foregoing
recitals, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Initially capitalized terms used but not
otherwise defined herein have the same meanings given them in the Agreement or
in the documents evidencing or securing the KBHA/PLT Indebtedness, as the
context requires.
2. KBHA/PLT Indebtedness Amendments and Assignment. (a) In
exchange for a note from the Partnership in the principal amount of $500,000 in
the form attached hereto as Exhibit C (the "KBHA/PLT Note"), a guaranty from FSC
in the form attached hereto as Exhibit D (the "FSC Guaranty"), pursuant to which
FSC shall guaranty the obligations of the Partnership under the KBHA/PLT Note,
and a back-up guaranty of collection from Sonesta International in the form
attached hereto as Exhibit E (the "Sonesta Guaranty"), pursuant to which Sonesta
International shall guaranty the obligations of FSC under the FSC Guaranty to
guaranty the KBHA/PLT Note (the "Sonesta Guaranty"), KBHA and PLT hereby assign
all of their respective right, title and interest in, to and under the KBHA/PLT
Indebtedness (including all security interests of KBHA and PLT with respect to
the KBHA Indebtedness and the PLT Indebtedness) to the Partnership, free and
clear of all claims, liens and encumbrances. Certain of the security interests
being assigned are set forth on Exhibit F attached hereto.
(b) Payments made in respect of the KBHA/PLT Note shall be
paid to KBHA.
(c) Prior to the Measurement Date, the Partnership shall not
release the security interests, if any, securing the KBHA/PLT Indebtedness
(other than in connection with a refinancing of the Aetna Indebtedness or its
replacement), without KBLP's consent.
(d) This Amendment, the KBHA/PLT Note, the FSC Guaranty and
the Sonesta Guaranty constitute the "KBHA/PLT Indebtedness Amendments" defined
in Section 2.3(c) of the Agreement.
3. Headings. The subject headings of the Sections of this
Amendment are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
4. Governing Law. The validity and interpretation of this
Amendment and of each and every clause, term and part hereof shall be governed
by and construed in accordance with the laws of the State of Florida applicable
to contracts made and to be performed therein.
5. Severability. If any provision hereof is held or finally
determined to be invalid or unenforceable to any extent for any reason, to the
extent that such provision is valid and enforceable, the arbiters or court of
competent jurisdiction, as the case may be, shall construe and interpret said
provision to provide for maximum validity and enforceability.
6. Binding Agreement. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs and legal representatives.
7. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the day and year first above written.
Signed, sealed and delivered KEY BISCAYNE LIMITED PARTNERSHIP, a
in the presence of: Florida limited partnership, its general partners
_____________________________________________ By: KEY BISCAYNE BEACH HOTEL
ASSOCIATES, LTD., a Florida limited
Print Name: _________________________________ partnership
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
and
_____________________________________________ By: VMS REALTY INVESTMENT, LTD., an
Illinois limited partnership
Print Name: _________________________________
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
_____________________________________________ KEY BISCAYNE BEACH HOTEL
ASSOCIATES, LTD., a Florida limited
Print Name: _________________________________ partnership, its general partner
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
PARTNERS LIQUIDATING TRUST,
Print Name: _________________________________ a Delaware trust
_____________________________________________ By: _____________________________________________
Print Name: _________________________________ Its ________________________________________
SONESTA BEACH RESORT LIMITED PARTNERSHIP,
a Delaware limited partnership
_____________________________________________ By: FLORIDA SONESTA CORPORATION, a
Florida corporation, its general partner
_____________________________________________ By: _____________________________________________
Xxxxx X. Xxxxxxxxx, its Vice President
Print Name: _________________________________
STATE OF ______________)
) SS.
COUNTY OF ______________)
I, the undersigned, a Notary Public, in and for the County and
State aforesaid, DO HEREBY CERTIFY, that Xxxxxxx X. Xxxxxx, the authorized
signatory of VMS REALTY INVESTMENTS, LTD., an Illinois limited partnership and
of KEY BISCAYNE BEACH HOTEL ASSOCIATES, LTD., a Florida limited partnership, a
general partner of KEY BISCAYNE LIMITED PARTNERSHIP, a Florida limited
partnership, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that as such authorized signatory, he/she signed and delivered
the said instrument as his/her free and voluntary act, and as the free and
voluntary act and deed of said entity, for the uses and purposes therein set
forth.
Given under my hand and official seal, this ____ day of _________.
My commission expires _________
_____________________________________________
Notary Public
STATE OF ______________)
) SS.
COUNTY OF ______________)
I, the undersigned, a Notary Public, in and for the County and
State aforesaid, DO HEREBY CERTIFY, that Xxxxxxx X. Xxxxxx, the authorized
signatory of KEY BISCAYNE BEACH HOTEL ASSOCIATES, LTD., personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that as such authorized
signatory, he/she signed and delivered the said instrument as his/her free and
voluntary act, and as the free and voluntary act and deed of said entity, for
the uses and purposes therein set forth.
Given under my hand and official seal, this ____ day of _________.
My commission expires _________
_____________________________________________
Notary Public
STATE OF ______________)
) SS.
COUNTY OF ______________)
I, the undersigned, a Notary Public, in and for the County and
State aforesaid, DO HEREBY CERTIFY, that _________________________, the
authorized signatory of PARTNERS LIQUIDATING TRUST, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that as such authorized signatory,
he/she signed and delivered the said instrument as his/her free and voluntary
act, and as the free and voluntary act and deed of said entity, for the uses and
purposes therein set forth.
Given under my hand and official seal, this ____ day of _________.
My commission expires _________
_____________________________________________
Notary Public
STATE OF ______________)
) SS.
COUNTY OF ______________)
I, the undersigned, a Notary Public, in and for the County and
State aforesaid, DO HEREBY CERTIFY, that Xxxxx X. Xxxxxxxxx, the authorized
signatory of FLORIDA SONESTA CORPORATION, the general partner of SONESTA BEACH
RESORT LIMITED PARTNERSHIP, personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that as such authorized signatory, he/she signed and
delivered the said instrument as his/her free and voluntary act, and as the free
and voluntary act and deed of said entities, for the uses and purposes therein
set forth.
Given under my hand and official seal, this ____ day of ________.
My commission expires _________
_____________________________________________
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
KBHA/PLT INDEBTEDNESS
EXHIBIT C
KBHA/PLT NOTE
$500,000 July 1, 1998
For Value Received, SONESTA BEACH RESORT LIMITED PARTNERSHIP,
a Delaware limited partnership hereby promises to pay to the order of KEY
BISCAYNE BEACH HOTEL ASSOCIATES, LTD., a Florida limited partnership ("KBHA")
and PARTNERS LIQUIDATING TRUST, a Delaware trust ("PLT"), the principal sum of
FIVE HUNDRED THOUSAND DOLLARS ($500,000).
This Note shall be due and payable on the Measurement Date. No
interest shall accrue on amounts due hereunder unless this Note is paid after
the Measurement Date, in which event the amount unpaid shall bear simple
interest from the Measurement Date at twelve percent (12%) per annum until this
Note is paid in full.
This Note may be prepaid in whole or in part at any time
without penalty. Payment shall be made by check to KBHA sent to KBHA x/x XXXX,
x/x Xxxxxxxxx Realty Advisors, Inc., 000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, or to such other address as KBHA shall provide to the
Partnership.
If this Note is placed in the hands of an attorney for
collection, the Partnership agrees to pay KBHA's reasonable attorney fees and
costs reasonably incurred in connection therewith whether or not an action is
filed. If an action is filed, the amount of such fees and costs shall be fixed
by the court and shall include fees and costs on any appeal.
This Note and the rights of the parties shall be governed
solely by the laws of the State of Florida.
The undersigned waives presentment, protest and demand, and
notice of protest, demand and dishonor.
This Note is being delivered pursuant to, subject to and in
accordance with (i) that certain CONTRIBUTION AND FORMATION AGREEMENT dated as
of January 30, 1998 and FIRST AMENDMENT TO CONTRIBUTION AND FORMATION AGREEMENT
dated as of April 3, 1998 (collectively, the "Agreement") among KEY BISCAYNE
LIMITED PARTNERSHIP, a Florida limited partnership ("KBLP"), KEY BISCAYNE BEACH
HOTEL ASSOCIATES, LTD., a Florida limited partnership ("KBHA"), PARTNERS
LIQUIDATING TRUST, a Delaware trust ("PLT"), FLORIDA SONESTA CORPORATION, a
Florida corporation, KEY BISCAYNE LAND CORPORATION, a Florida corporation,
STRATEGIC REALTY ADVISORS, INC., an Illinois corporation and SONESTA
INTERNATIONAL HOTELS CORPORATION, a New York corporation, and (ii) that certain
AMENDMENT TO AND ASSIGNMENT OF KBHA/PLT INDEBTEDNESS of even date herewith among
KBLP, KBHA, PLT and the Partnership. Initially capitalized terms used but not
otherwise defined herein have the same meanings given them in the Agreement.
SONESTA BEACH RESORT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: FLORIDA SONESTA CORPORATION, a
Florida corporation, its general partner
By: ____________________________________
Xxxxx X. Xxxxxxxxx, its Vice President
EXHIBIT D
FSC GUARANTY
EXHIBIT E
SONESTA GUARANTY
EXHIBIT F
CERTAIN ASSIGNED SECURITY INTERESTS
1) Mortgage and Security Agreement from Biscayne Beach Hotel Associates, Ltd.,
a Florida Limited Partnership, to VMS Mortgage Company II, an Illinois
Partnership, filed December 31, 1984, in Official Records Book 12369, Page
6889, in the amount of $2,000,000.00, as modified by Non-Disturbance and
Attornment Agreement filed December 31, 1984, in Official Records Book
12369, page 6942; Modification Agreement filed May 10, 1985, in Official
Records Book 12506, page 769; Amendment of Note and Fourth Mortgage filed
June 7, 1993, in Official Records Book 15941, page 83. Said mortgage,
through mesne assignments, was assigned to Partners Liquidating Trust, by
instrument filed January 21, 1994, in Official Records Book 16220, page
4140, together with that UCC-1 Financing Statement in favor of VMS Mortgage
Company II, filed December 31, 1984 in Official Records Book 12369, page
6938; and
2) Mortgage from Key Biscayne Limited Partnership to Key Biscayne Beach Hotel
Associates, Ltd., dated February 4, 1994, filed February 8, 1994, in
Official Records Book 16242, page 1680, securing the original principal sum
of $1,317,426.00, as modified by Non-Disturbance and Attornment Agreement
filed February 8, 1994, in Official Records Book 16242, page 1709, together
with that UCC-1 Financing Statement in favor of Key Biscayne Beach Hotel
Associates, Ltd., filed February 8, 1994, in Official Records Book 16242,
page 1717, as modified by UCC-3, Statement of Change, filed July 8, 1994,
in Official Records Book 16431, page 3367; and UCC-3, Statement of Change,
filed July 8, 1994, in Official Records Book 16431, page 3368.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
Signed, sealed and delivered KEY BISCAYNE LIMITED PARTNERSHIP, a
in the presence of: Florida limited partnership, its general partners
_____________________________________________ By: KEY BISCAYNE BEACH HOTEL
ASSOCIATES, LTD., a Florida limited
Print Name: _________________________________ partnership
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
and
_____________________________________________ By: VMS REALTY INVESTMENT, LTD., an
Illinois limited partnership
Print Name: _________________________________
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
_____________________________________________ KEY BISCAYNE BEACH HOTEL
ASSOCIATES, LTD., a Florida limited
Print Name: _________________________________ partnership, its general partner
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
PARTNERS LIQUIDATING TRUST, a
Delaware trust
_____________________________________________ By: Key Biscayne Beach Hotel Associates, Ltd., a
Florida limited Partnership, its attorney-in-fact
Print Name: _________________________________
_____________________________________________ By: _____________________________________________
Xxxxxxx X. Xxxxxx, Authorized Signatory
Print Name: _________________________________
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
_____________________________________________ By: FLORIDA SONESTA CORPORATION, a
Florida corporation, its general partner
Print Name: _________________________________
_____________________________________________ By: _____________________________________________
Xxxxx X. Xxxxxxxxx, its Vice President
Print Name: _________________________________